Monthly Archives: July 2011

Carol Harlow: Press, Police and Parliament

So the silly season is back with a second instalment of last year’s soap opera but with the two main protagonists, Politicians and Press, in different stances! The Daily Telegraph, last year’s Press champion in the great parliamentary expenses row, has retired wearing the victor’s crown of investigative journalism. It leaves the field to the News of the World – suddenly, after more than a century, an ex-tabloid. Rupert Murdoch, most powerful of media magnates, is very much on the back foot, humbled and betrayed, as he told the Culture, Media and Sport Select Committee of the House of Commons (CMSC) (Phone Hacking – uncorrected evidence: HC 903-ii 20 July 2011), by unknown employees at the NoW. Rebecca Brookes and Andy Coulson, both editors of the NoW at a time when the hacking of private cell-phones – unforgivably including that of missing schoolgirl Millie Dowler during the course of what became a murder investigation – was allegedly taking place, deny all knowledge, as does James Murdoch, chairman of News International. The first two have since been arrested, bringing into issue the PM’s involvement with Coulson, who worked as communications director at Number 10 until his resignation in January this year after allegations of involvement in phone-hacking.

This enthralling soap opera is really no more than an instalment in a necessary debate over press freedom, press accountability and privacy that we have never really held. Looking back at debates on the Human Rights Bill, we find Jack Straw announcing to the Commons that the Labour Government had no plans to legislate on privacy; the matter was best left to the judges [HC Deb. 22 December 1997 vol. 303 cc639-40] Fierce lobbying ensured that press freedom was strongly emphasised in debates on the Bill and we find explicit reference to the importance of freedom of expression and need to protect the publication of ‘journalistic material’ ‘in the public interest’. No attempt was made to define that slippery phrase. No regulatory machinery was put in place; the field was left to the purely voluntary Press Complaints Commission (PCC). Unsurprisingly, the judiciary at first moved with circumspection. But Eady J’s recent decision in the action brought by Max Mosley against the NoW (Mosley v News Group Newspapers Ltd. [2008] EWHC 1777) that publication of material about the ‘private personal life’ of public figures, especially if obtained by covert surveillance methods, is not automatically covered by a ‘public interest’ defence but is actionable and can be restrained by injunction provoked a forthright attack on the judiciary from Daily Mail editor Paul Dacre. There was a further outcry when the use of so-called ‘super injunctions’ to bar publication of items concerning the private life of celebrities was revealed (see http://www.parliament.uk/business/news/2011/may/injunctions). The revelation culminated in an unseemly episode in which individuals were named in the House of Commons by John Hemming MP in a use of parliamentary privilege condemned by many parliamentarians as improper. The CMSC had previously issued a report on Press standards, privacy and libel (HC 362, 2009-10), which dealt at some length with phone-hacking. It was this that enabled the CMSC to call for new evidence from the Murdochs which, fortunately, they agreed to give.

The backcloth against which the current soap opera is being played out is one of rapid technological advance that has made intrusive invasions of privacy almost effortless. We have, as the Information Commissioner has put it, been ‘sleepwalking into a surveillance society’ where surveillance is considered acceptable [ICO, Surveillance Studies Network, A Report on the Surveillance Society: Full Report (2006).  People are happy to post intimate details of their lives and other people’s secrets on social networking sites. Relationships are conducted and news exchanged by blogging, twittering and tweeting. Transparency is the ultimate virtue. In the case of TV and broadcasting, freedom to publish is balanced by a measure of accountability. Ofcom, the statutory regulator, can intervene to protect people from being treated unfairly in television and radio programmes and from having their privacy invaded.  As already indicated, no such statutory machinery is in place in respect of the press; the Press Complaints Commission (PCC) is wholly dependent on voluntary submission to its tenuous authority. It has no sanctions at its disposal. In the NoW phone-hacking affair, the PCC had to admit that it had been misled and its Chairman (Baroness Buscombe) conceded that the present informal machinery was inadequate:

“The status quo is clearly not an option, and we need to identify how the model of an independent PCC can be enhanced best to meet these challenges. Hence the action we have taken today.”

(Statement from the PCC on phone hacking, 6 July 2011)

Does this go far enough? Has the time come for a statutory regulator? This is the question that faces the Leveson inquiry set up to:

 “inquire into the culture, practices and ethics of the press; its relationship with the police; the failure of the current system of regulation; the contacts made, and discussions had, between national newspapers and politicians; why previous warnings about press misconduct were not heeded; and the issue of cross-media ownership. [Lord Justice Leveson] is to make recommendations for a new, more effective way of regulating the press—one that supports its freedom, plurality and independence from Government, but which also demands the highest ethical and professional standards. He will also make recommendations about the future conduct of relations between politicians and the press.”

(The Prime Minister, David Cameron, HC Deb, 13 July 2011, col 311).

The Leveson Inquiry has a second task for which its powers under the Inquiries Act 2005 to summon witnesses and take evidence under oath and in public may be more appropriate: to examine the extent of unlawful or improper conduct at the News of the World and other newspapers, and the way in which management failures may have allowed it to happen and to look into the original police investigation of phone-hacking and allegations of corrupt payments to police officers, with implications for the relationships between newspapers and the police. These allegations have already claimed the heads of two of the Met’s most senior officers, Commissioner Sir Paul Stephenson and Assistant Commissioner John Yates In response, Theresa May, the Home Secretary, has asked for an inquiry by the Independent Police Complaints Commission (IPCC) into the p hone-hacking investigation; a further inquiry into the powers of the IPCC; an inquiry by Elizabeth Filkin, previously Parliamentary Commissioner for Standards, on ‘ethical considerations concerning relations between the Met and the media’; and  an inquiry by the Inspectorate of Constabulary into police corruption generally (see HC Deb 18 July 2011, Col. 622).  To date the phone-hacking scandal has spawned twelve – thirteen if one includes the Speaker’s inquiry into how shaving foam came to be thrown at Rupert Murdoch in a House of Commons committee room – many of which seriously overlap. How effective are they? Do they primarily serve to deflect public wrath when things go wrong? (C Harlow and R Rawlings, Law and Administration (Cambridge University Press, 3rd edn 2009, ch. 12).

What the government has notably not done is to halt the passage of its Police Reform and Social Responsibility Bill, which introduces elected police commissioners to whom chief constables will henceforth be accountable (See Baroness Browning, HL Deb, 18 July 2011 Col. 1116). The Bill is currently paused after Third Reading in the House of Lords and returned to the House of Commons for consideration of a Lords ‘wrecking amendment’ (see HL Deb 11 May 2011, Col. 895) It is too much to hope that this will prove an opportunity to abandon a measure very widely seen as a dangerous and inappropriate politicisation of the police leading inevitably to a serious dilution of police independence and of real accountability. Surely such a measure, which breaks with a fundamental constitutional convention, could at least await the outcome of the Leveson Inquiry? And is a judicially-chaired public inquiry, even with the aid of a reasonably high-powered advisory panel*, really the most appropriate forum to debate wide-ranging matters of policy such as press freedom or police independence? The Leveson Inquiry is effectively acting as a Royal Commission. It might be better to make it one.

 

Carol Harlow is Emeritus Professor of Law at the London School of Economics

 


*  The panel consists of Liberty Director Shami Chakrabarti, former West Midlands police chief Sir Paul Scott-Lee, ex-Ofcom chairman Lord David Currie, former Channel 4 News political editor Elinor Goodman, ex-Daily Telegraph political editor George Jones and former Financial Times chairman Sir David Bell.

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Colin Harvey: Where now for the Northern Ireland Bill of Rights Process?


The Northern Ireland Human Rights Commission (NIHRC) submitted its advice on a Bill of Rights on 10th December 2008 (I should declare that I served as a human rights commissioner during this time). The Northern Ireland Office (NIO) issued a response and consultation document on 30th November 2009, and on 16th December 2010 the NIO published the reactions to its proposals (36,492 responses were received). In the intervening period, the UK General Election produced a new coalition government, and a new Secretary of State; Shaun Woodward (Labour) was replaced by Owen Paterson (Conservative). Owen Paterson inherited a Bill of Rights process that in its current form was initiated under a Labour government, spanned at least a decade and was intimately meshed with the Northern Ireland peace process.  Noting the high-level of support for the sort of Bill of Rights proposed by the Commission (and thus rejection of the narrow approach endorsed by the NIO), as well as continuing party political disagreement, the NIO highlighted the role of consensus in taking this work forward, and its desire to consider the matter further. The implication was that the absence of party political consensus remained a determining factor, and that further progress would not be made. An expansive, extensive and exhaustive process looked like it had shuddered to a halt.

The argument in support of a Bill of Rights for Northern Ireland has been around for some time. The landmark texts of the peace process tend to confirm that enhanced human rights protection was intended to be one logical outcome. Current developments therefore possess a distinctive heritage, ultimately given practical expression in the Belfast/Good Friday Agreement 1998 and subsequent agreements (the notion of a Bill of Rights has never been formally rejected at this level). This point cannot be lightly skipped, and gives the Northern Irish discussions a quality of their own; they are not sensibly reduced to a simplistic conversation about UK constitutionalism. The fact that the Agreement was endorsed in both jurisdictions on the island of Ireland, underpinned by British-Irish international agreements, and reflected a sophisticated form of bi-national accommodation, must not be rendered constitutionally insignificant in a British or Irish context.

Therefore, the Commission did not start with a blank page in several senses; the mandate was forged within a particular constitutional moment and peace process.  Based upon the Agreement’s remit (as reflected in the Northern Ireland Act 1998), the Commission launched the latest phase of discussions on 1 March 2000 in Derry and Belfast. What is apparent now is just how extensive this rights-based dialogue was. The focus that sometimes falls on substantive disagreement should not mask the areas where agreement was possible, and the beneficial societal and political implications of having this constitutional conversation. No one seriously doubted that the political parties disagreed (and would continue to do so). Few doubted that hard political negotiations would some day follow the Commission’s advice. Why else farm out such constitutionally significant work to a newly created Human Rights Commission? What did exist was a shared belief among many that a new constitutional bill of rights might be one normative pillar of the promised post-conflict ‘fresh start’. As a consequence of the Agreement’s clear language, it was taken for granted that this new constitutional measure would supplement and build on the European Convention on Human Rights. No backward steps were envisaged.

The story of the Commission’s efforts is now reasonably well known. Consultation documents from 2001 and 2004 sketched out ways forward, and reactions demonstrated, among other things, that political consensus was absent. The idea emerged in 2002-2003 to establish a round-table forum that might bring the parties and civil society together to achieve agreed recommendations. Following the St Andrews Agreement 2006, the Bill of Rights Forum was launched in December 2006 with the express aim of securing agreement on a way forward that would inform the Commission’s final advice. The Forum was composed of an independent Chair (Chris Sidoti) and 28 members (14 representatives of the community and voluntary sector and 14 representatives of all the main political parties). The Commission was one of the official observers. The Forum handed over its report on 31st March 2008. The Chair’s comments at the handover event acknowledged the minimal level of consensus achieved, and the challenges ahead if a negotiated resolution was to be found. With the full weight of evidence gathered through the consultations, a grasp of the politics of the process, an agreed methodology for its work, and input from a range of advisers, the Commission set itself a deadline and worked towards completion of its advice. On 10th December 2008 another landmark was reached when the advice was finally handed over.

It is unsurprising to note that the Commission was internally divided, with two commissioners (from backgrounds in political unionism) dissenting from the final document. The levels of agreement and disagreement, evident throughout, simply re-surfaced following the submission of the advice. There were three broad strands to this. First, those participants who believed that the Commission had exceeded its remit in procedural and substantive terms. Procedurally, in the sense that – from this perspective – the Commission was not asked to draft a Bill of Rights (or something that looked uncannily like it), and substantively, that the Commission had gone too far in proposing rights that could not be credibly subsumed under the particular circumstances of Northern Ireland. Second, those who were generally content with the advice, who felt that the Commission had got it just about right, and wanted to know how this work was going to proceed to completion (their attention turned to the British government). Third, and sometimes neglected, those who believed the Commission’s advice did not go far enough on matters such as children’s rights, language rights, and in challenging the existing legal culture in Northern Ireland. The voices of those arguing that the Commission had adopted a ‘maximalist agenda’ often drowned out those who believed it could have gone further. Those falling within strand one were largely associated with political unionism and, given the power-sharing dynamics of political life in Northern Ireland, the notional ‘veto power’ was always likely to prove decisive (although the lack of political will across all parties should not be underestimated).

As the Northern Ireland process was stumbling forward, someone thought it wise to initiate a debate about a British Bill of Rights. Both David Cameron and Gordon Brown started talking up the potential for such a new constitutional document from 2006 onwards. For different reasons, both seemed to share a worry about the strength of the nationalistic glue that was holding Britain together, and saw a new ‘British document’ as one element of a resurgent British constitutional patriotism. The Conservative Party viewed this as a convenient way of replacing the Human Rights Act; despite the evidence to the contrary, this was a constitutional measure whose national credentials and practical implications were increasingly questioned. Even though in the end the Labour Party rediscovered its faith in the Human Rights Act (and the Liberal Democrats rowed in behind), both major parties seemed to share a common concern about the imagined British patriotic deficit. All of this was, of course, taking place at a time when events in Scotland, Northern Ireland, Wales and England were placing the traditional idea of a unitary United Kingdom under considerable strain.

Following the UK General Election, and after much discussion, the end result was the establishment on 18th March 2011 of an intriguingly composed new Commission on a Bill of Rights. The terms of reference could not be clearer: ‘The Commission will investigate the creation of a UK Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in UK law, and protects and extend our liberties’. An anxiety-ridden constitutional conversation about Britishness, with the Human Rights Act 1998 as one of its initial political targets, has now been transformed into discussion of a new UK Bill of Rights that builds on the European Convention domestically. The Commission is tasked with reporting by the end of 2012 on its investigation into the creation of a UK Bill of Rights (the language again is instructive) and is required to consult with the devolved administrations, among others.

One neat and seemingly obvious response to these developments is that the Northern Ireland process should now plug into this UK dialogue. There is no reason in principle why developments in Northern Ireland cannot inform progress elsewhere, and engagement seems defensible. However, we should not miss some of the complexities of a fragile and sophisticated peace process, and also arguably the capacity of this new Commission. I have argued in other contexts, that Northern Ireland has witnessed the emergence of a ‘political constitution’ carved out carefully over decades and giving life to principles which underpin politics and law. These are constitutional principles that can form a bridge between British and Irish constitutionalism, and stand a decent chance of acknowledging and respecting the essentially bi-national forms of accommodation to be found in Northern Ireland. These principles include a distinctive form of self-determination, a particular version of power-sharing self-government, notions of parity of esteem between Irish nationalists and British unionists, tailored mechanisms and standards to advance rights, equality and social justice (that include the concept of equivalence in Ireland, North and South), as well as firm and focused British-Irish inter-governmental co-operation. This political constitutionalism (in the sense that its origins and dynamics can be traced to political and democratic processes) finds legal form in international agreements, and in the law and practice of the UK, Northern Ireland, and Ireland. Whether the implications are yet fully understood within British or English constitutional legal discourse or even accepted, is of less importance than the fact that a new and more pluralistically informed version of constitutionalism is emerging. In that context, the Northern Ireland Bill of Rights process has an integrity of its own that must be respected in any constitutional conversations that are to happen in Ireland or in Britain around human rights. To put this plainly: any processes would need to be mindful and respectful of a political constitutionalism that cannot be reduced to an integrative UK-wide version of legal constitutionalism, particularly one animated principally by anxiety about British national identity and potentially harking after the erosion of existing protections (although it should be observed that the terms of reference for the Commission on a Bill of Rights are carefully and wisely crafted in this respect). More straightforwardly, the Northern Ireland process is at an advanced stage, with detailed proposals and counter-proposals available. In that sense, the hard substantive work has already been done. It is surely open, for example, to the new Commission in London to recognise this, welcome it, and propose that the Northern Ireland process proceed to completion; it need not wait until the end of 2012 to say it.  It is to be hoped that some of the proposals from Northern Ireland might even inform the wider discussions in the UK (the presence of Lord Lester as a member of the Commission, and a former adviser to the Human Rights Commission with a longstanding interest in Northern Ireland, will no doubt assist).

There are four things to underline by way of a tentative conclusion. First, wearily looking back and bemoaning missed opportunities is easy, as is an exclusive focus on disagreement. It is worth defending the intrinsic value of the process, the scale of participation, the seriousness with which it was taken and engaged with, and the many remarkable proposals that emerged. Stalled as it now is, the Northern Ireland Bill of Rights process is something worth celebrating.  As intangible as it may seem, it has impacted on the sort of human rights culture we now have in Northern Ireland.

Second, a Human Rights Commission would always, in my own view, be well advised to focus on its overriding human rights mandate, and its status and standing as a rights-based institution. Societies that create such bodies must expect them to be human rights commissions. That need not mean they should be utterly insensitive to context; the best human rights organisations know how to weave generalised human rights standards into the fabric of localised debates. A Commission, however, that set out to pitch its advice to the lowest common denominator, or to neglect its own complex constitutional context, would be doing a democratic disservice to society. That is a wordy way of saying that the Northern Ireland Human Rights Commission was surely right to offer internationally grounded, comparatively informed and carefully tailored contextualised human rights advice to government.

Third, the step of final political negotiation is a necessary one that needs to be thought through, but it is not evident that a human rights commission, in the role of adviser, should principally orient itself in this way. It is not hard to see that advances in Northern Ireland were made when it was political conducive and possible. ‘Getting the politics right’ is part of making progress in democracies. The 1998 Agreement paved the way for the new Commission, the St Andrews Agreement 2006 led to the creation of the Bill of Rights Forum. The Human Rights Act 1998 – reflecting ideas long debated and fought over – had to wait for the correct political moment (the election of a Labour government in 1997). But political strategy and tactics cannot be the determining factors in the constitutional conversations that we have, and it cannot be right to expect a human rights commission to achieve party political agreement (how could it?).  Party political consensus should be sought and delivered by those institutions with more experience of this work, and ones that are capable of delivering negotiated outcomes. Placing the onus on a human rights commission or bill of rights forum to resolve party politics seems like a distraction from the political leadership and responsibility necessary to advance this significant work. What this reveals is the greater challenge for advocates of any version of rights-based political constitutionalism; that is of encouraging the practical assumption of responsibility by those constitutional actors who most often object loudly to judicial empowerment. How do we ensure that legislatures, executives and political parties take responsibility for, and claim ownership of, these normative commitments in more than rhetorical senses? How might we improve the responsiveness and capacity of legislatures in this respect? If progress is now to be made in Northern Ireland, then the political parties and both governments must find a credible vehicle to establish and build on the agreement that does exist, and indicate how this outstanding aspect of the 1998 Agreement can be brought to completion.  The Commission has completed its principal mandated task, by providing the final advice. At this advanced stage in the process, it now falls to a form of political negotiation that can deliver the required practical outcomes (if there is political will to do so).

Finally, Northern Ireland stills needs the sort of constitutional bill of rights envisaged in our peace process. One that is attentive to the particular circumstances of Northern Ireland (including the form of emergent constitutionalism sketched above), one that builds on the existing frameworks of protection, and is open to – and informed by – the ongoing global dialogue on rights and equality. As welcome as giving further effect to the European Convention on Human Rights is, as important as it remains to defend the progressive floor created through the Human Rights Act, should this be the height of our ambitions for a post-conflict society like Northern Ireland?  Securing a new constitutional Bill of Rights will require political leadership and practical mechanisms that can promote negotiated political outcomes (for surely that is where the challenge now rests). If there is any hope for this process perhaps it rests in always reminding ourselves how far we have already come.

 

Colin Harvey is Professor of Human Rights Law at Queen’s University Belfast.

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Andrew Le Sueur: Crazy constitutionalism

I’m reading David Aaronovitch’s Voodoo Histories: The Role of the Conspiracy Theory in Shaping Modern History (2009). It’s excellent, but although it makes passing reference to conspiracy theories about the European Union it says nothing about one that deals with the foundations of the British constitutional system.

Sunstein and Vermeule have defined a conspiracy theory as ‘an effort to explain some event or practice by reference to the machinations of powerful people, who attempt to conceal their role (at least until their aims are accomplished)’: see (2009) 17(2) The Journal of Political Philosophy 202, 205. Of course, some conspiracy theories – defined in this way – are both justified and true. What concerns me are those that are unjustified and false. In a bewildering, uncertain and unfair world, where participation in and respect for organised politics is declining and public understanding of the constitution and law is poor, it shouldn’t be a surprise that some people turn to outlandish ways of explaining the constitution. The lack of surprise should not, however, mean that mainstream constitutional lawyers should ignore what I call ‘crazy constitutionalism’. In this blog post I want to shed some light on one particular conspiracy theory and suggest a course of action.

Throughout the UK, there are people who make the claim that the whole constitutional and legal apparatus in Britain is a conspiracy to rob men and women of their common law rights. Drawing on the ‘freeman of the land’ movement from North America, UK groups of various political leanings subscribe to the main tenants of this theory. They include The People’s United Community (TPUC), Lawful Rebellion, the British Constitution Group and White Rabbit Education Network. Their view of the world is propagated through websites, social media, and events across Britain. New supporters are actively recruited. Dozens of people spend evenings and weekends in the study of law, drawing on legal materials but unconstrained by the mainstreams’ basic frameworks of understanding.

On one level, the world imagined seems like a heady mix of ‘The Truman Show’, a Dan Brown novel, ‘Raiders of the Lost Ark’ with a sprinkling of quasi-religious self awakening.

But the freeman belief system is also a call to practical engagement with government and courts. Actions include adopting a particular stance towards official forms (for example voter registration documents, jury summons), which are returned with a series of questions. When an official asks ‘Do you understand’, a freeman of the land will respond ‘I do not stand under that statement’ (to avoid, according to freeman of the land thinking, accepting the jurisdiction of the official).

In legal proceedings in which freeman come to court (‘de facto courts’) in relation to non-payment of council tax, repossession actions, bankruptcy proceedings and criminal prosecutions, hearings are disrupted by self-proclaimed freemen of the land working through a series of rituals: on entering a court, he may say to the judge: ‘We claim common law jurisdiction before we enter this vessel … do we have an accord?’. (The reference to the court as a ‘vessel’ is explained by the central place given to maritime law in the legal worldview of freemen).  The judge will be asked if he or she is ‘on oath’. Confusion may reign as the freeman places a birth certificate before the court. Most dramatically, on 7 March 2011 several hundred freemen stormed a court in Birkenhead in an attempt to arrest the judge.

Freemen of the land dismiss mainstream accounts of the constitution and legal system as a deception, perpetrated on a huge scale. At the heart of freeman of the land constitutional framework is the idea that there is a fundamental distinction to be drawn between a natural man/woman and a corporation. When parents register the birth of a child, they are entering a contract with the State to ‘sign over the legal title of the baby’. At that point, the child becomes a ‘strawman’, a fictitious legal entity owned by the State and used as collateral in commercial transactions. Significance is attached to the fact that birth certificates have similar physical attributes to documents used in commerce – watermarks, dates of issue, registration numbers, and so on. Using the naming conventions of freemen of the land, “Mr Andrew Le Sueur” is the person – the legal fiction or birth certificate; “Andrew, of the Family Le Sueur” is the man. In court proceedings, a freeman of the land will produce a birth certificate as the ‘person’ summoned to appear and the man is regarded as a ‘lay adviser’.

Freemen of the land express their understanding of the constitution using what at first sight seems like vocabulary and legal concepts which are familiar to mainstream constitutional lawyers: ‘personality’, ‘jurisdiction’, ‘lawful authority’, ‘common law’ and ‘the rule of law’.

A basic aspect of the belief is that public bodies – local authorities, the police, government departments, courts – are corporations run for profit (as evidenced by the facts that some have ratings by credit reference agencies and some have county court judgments registered against them). Another key tenet of belief is that men and women have the ability to choose which ‘law form’ they operate under. This state of affairs is thought to be derived from clause 61 of Magna Carta 1215 (a provision omitted from later reissues of the charter). Freemen of the land assert that they are not bound by legislation or commercial law (of which maritime law is of especial importance) unless they consent to be bound in a particular situation. Official demands – for payment, to appear in court, to complete the census – are merely invitations that may be declined.

Lawyers working in the mainstream are likely find it easy to dismiss the freeman of the land movement as pseudolegal woo (at the same time as accepting that there are sincere and well-meaning people involved in the cause). If the movement in the UK were confined to a few websites, clips on YouTube and meetings in draughty community centres, no more would need be said. Trivial disruption of public administration – whether it’s refusing to complete the census or pay TV licences—might also be overlooked. But the events in Birkenhead County Court on 7 March 2011, even if it praised by some Daily Mail readers—escalates matters. It is time to take the freeman movement seriously.

A starting point needs to be research into the phenomenon, its impact on public administration and the rule of law. It would be interesting to know whether HM Court and Tribunal Service keep records of hearings disrupted by freemen of the land tactics and what, if any training, magistrates and other judges receive in dealing with freemen.

One practical strategy advocated by Sunstein and Vermeule is introducing some ‘cognitive diversity in the groups that generate conspiracy theories’ (op cit, 226). They have in mind infiltration by ‘government agents’. In an era of radical cost cutting in public services, suggesting that local government officers and civil servants should spend time contributing to freeman of the land online discussion sites is unthinkable; I also have doubts as to whether official intervention is desirable. But shouldn’t academics and legal professionals – as concerned citizens – dip into them now and then, to ask some challenging questions and state some facts?

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Lords Constitution Committee report on reform process

The House of Lords Constitution Committee has published a report on the process of constitutional change in the UK today; read it here.

The report concludes: “67.  We believe that the best way to proceed at the present time is to seek to strengthen the role that both Houses of Parliament and the existing parliamentary committees can play in relation to the process of constitutional change. This can best be done by ensuring that the government abide by what is currently accepted as best practice. We do not, however, accept that the government should continue to pick and choose which processes to apply to which proposals. We therefore recommend that a clear and consistent process be set down in a manner which retains flexibility whilst also holding the government to account for their decisions.”

 

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Robert Hazell and Kate Malleson: Increasing democratic accountability in the appointment of senior judges

The Lords Constitutional Committee’s inquiry into the judicial appointments process has asked what role should be played by the executive and Parliament in the appointments process of the senior judiciary. The case for enhancing the input of both branches of government is now very strong.

One consequence of the Constitutional Reform Act 2005 is that the appointment of judges has been almost wholly removed from the hands of the executive. This change was based on a  misunderstanding of the British constitution, which rests not on rigid separation of powers, but on a careful balance of powers between all three branches of government.

For the system of government to work properly there needs to be trust, confidence and mutual respect between all three branches of government: executive, legislature and judiciary. Appointments to the judiciary are too important to be left to the Judicial Appointments Commission alone. Because of its power to put forward a single name, and the extreme difficulty for the Lord Chancellor in rejecting that name, the JAC has become de facto an appointing body.  Ministers should have greater choice; and the legislature should be more strongly involved, in its classic scrutiny role. To act as a check and balance on both executive and judiciary, and to hold the ring when there are tensions between them, Parliament has an important role to play.

The creation of the JAC was a logical next step from the reforms already undertaken to make the process of judicial appointments fairer, more open and more transparent. But the Executive needs to have a meaningful final say in senior judicial appointments, which is the system in other common law countries.

The arguments advanced for giving a role to Parliament are strengthened if (as we believe should happen) Ministers are given an element of choice, by requiring the JAC to submit a short list rather than a single name. The Commission could submit the names ranked in their order of preference, with a commentary explaining the reasons for their preference. That would help to make explicit the criteria and reasoning applied by the Commission, and require ministers to be explicit about their own criteria if they decided not to follow the Commission’s rank order.

To present ministers with a single name assumes too simplistic a model of “merit“. Ministers may take a different view about the balance of skills and experience that are required when filling a vacancy.  They may feel that a public or constitutional lawyer is required to fill a gap on the Supreme Court, rather than another commercial lawyer; someone who can provide stronger leadership (as implicitly Lord Irvine did when appointing Lord Bingham to be senior law lord) or a candidate who can enhance the diversity of the Court. That is essentially a policy decision, and it is right that policy decisions should ultimately be made by ministers.

To guard against concerns that ministers might allow political bias to creep into their decisions, they should be subject to scrutiny by Parliament. Judicial appointments and the work of the Commission generally should be subject to scrutiny by the Commons Justice Committee and the Lords Constitution Committee (as evinced by the current inquiry). But very senior judicial appointees (Justices of the Supreme Court, and the four heads of division) should be invited by Parliament to present themselves for a scrutiny hearing. The committee would have no power of veto over the appointment. The main purpose of the hearing would be to introduce the new appointee to Parliament, and to give the committee the opportunity to develop a dialogue with the most senior judges on constitutional, legal and judicial policy.  Such dialogue is becoming increasingly frequent, with the judges having given evidence 19 times to the Commons Justice Committee in the last five years, four times to the Lords Constitution Committee, and once to the Joint Committee on Human Rights, the Commons Public Administration Committee, and the Public Accounts Committee.

Since 2008 Select Committees have been scrutinising appointments to the most important public bodies.  Pre-appointment scrutiny hearings for the top 60 public appointments were first introduced under Gordon Brown’s premiership.  Fears were expressed that this would undermine the integrity of the public appointments process; or that Select Committees would engage in inappropriate lines of questioning.  Research conducted by the Constitution Unit shows that neither concern has proved justified.

The arguments for parliamentary scrutiny of top judicial appointments also contain reasons which are specific to judges:

—  Parliament has the power to scrutinise all acts of the executive. Appointments of senior judges are an important exercise of ministerial discretion, and it is equally important that they should be subject to parliamentary scrutiny.

—  The judges fear that ministers may show political bias if they are given a choice. Parliamentary scrutiny can be a useful check against such bias.

—   Parliament nowadays has little contact with the judges. The senior judges are largely unknown to MPs. Supreme Court justices will be unknown to the Lords now that the law lords have departed. There is value in a formal presentation of the senior judges to Parliament, to foster continuing dialogue.

—    Through such dialogue political and judicial actors can better understand the constraints under which the other operates.  This understanding has been lacking in some aspects of the privacy debate

—  The judges should meet the body vested with the constitutional power to dismiss them. Senior judges can be removed only by resolution of both Houses of Parliament.

The main arguments advanced against such a proposal are as follows:

—  It would risk politicising judicial appointments, as they are in the United States. But the American constitution involves built-in conflict between President and Congress. Supreme Court appointments in the US are less on merit, and overtly partisan, in a manner quite foreign to the UK.

—  It would expose appointees to intrusive questioning about their personal and private lives. Even in the US, such questioning is the exception not the rule. In the UK, it is unknown: Select Committees have followed the Liaison Committee guidelines on proper lines of questioning.

The committee conducting the scrutiny hearings could be the Justice Committee in the Commons, the Constitution Committee in the Lords, or a joint sitting of both committees. Given the constitutional guardian function of the House of Lords, and the role of both Houses in dismissing judges, we would favour a joint session of both committees.

Robert Hazell is Director of Constitution Unit in the Department of Political Science, UCL. Kate Malleson is Professor of Law at Queen Mary, University of London.  They are leading an AHRC-funded project on the politics of judicial politics in Britain’s Changing Constitution.

 

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Durham University: Separation of Powers Workshop

Contemporary issues in separation of powers workshop

15 July, 12:15 to 17:30, Tristram Room, St John’s College, Durham University

The Human Rights Centre will be hosting a workshop themed around current issues relating to separation of powers in the United Kingdom on Friday 15th July, at St John’s College, Durham University.

The programme can be found here

For further details please contact Roger Masterman

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THES: The Bill of Rights Commission

Readers might be interested to know that Colin Harvey and Colm O’Cinneide have  published a short opinion piece in the Times Higher Education  Supplement on the recently established Bill of Rights Commission.

It is available at: http://www.timeshighereducation.co.uk/story.asp?sectioncode=26&storycode=416649&c=1

 

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