Monthly Archives: October 2011

Kate Malleson: Judicial views on the selection process for senior judges

The President of the Supreme Court, Lord Phillips, gave evidence to the House of Lords Constitution Committee¹s inquiry into the judicial appointments process last week. He argued against the introduction of any form of parliamentary hearings for Justices of the Supreme Court or the Lord Chief Justice. In this view, he is joined by most, if not all, the other members of the Supreme Court and senior judiciary who remain to be convinced that there is any role for Parliament in the appointment process of individual judges. More surprising, was Lord Phillips’ view about potential reforms to the role of the Lord Chancellor in the process. He argued that he would like the Lord Chancellor to be on the selection commission for Supreme Court appointments, believing that this would be preferable to the LC having a veto late in the process. Even more unexpectedly, Lord Phillips strongly objected to the requirement that he must sit on the panel to choose his successor – he said that he had tried to argue that one can interpret the provision to excuse the President when the next President is to be selected but that he had not been successful in persuading others that his interpretation is tenable. Although this is the first time (as far as I am aware) that Lord Phillips has expressed this view publicly, he is not alone amongst the judges in accepting that the current process, whereby the President and Deputy President both sit on the Supreme Court ad hoc selection committee is problematic. There has been a strong groundswell of opinion outside the judiciary that this arrangement is likely to promote self-replication and is inconsistent with all other senior appointments processes in either the public or private sector. It appears from the evidence taken by the Committee that some of the senior judges share this concern. This therefore looks like an area in which the Committee is likely to recommend reform.  The last surprise from Lord Lord Phillips was his decision to produce a draft of a provision that might replace the ‘merit’ provision in the Constitutional Reform Act 2005. His amendment read that: “The Commission must select that candidate who will best meet the needs of the Court having regard to the judicial qualities required of a Supreme Court Justice and the current composition of the Court”. Having produced the draft provision Lord Phillips made clear that he  himself would object to such a change and would argue against it. What the Committee will make of that position, is hard to know.

This post originally appeared in  the Constitution Unit’s Blog as part of a project on judicial independence.

Kate Malleson is Professor of Law at Queen Mary University of London.

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UKCLG event Wednesday 2 November 2011: Stephen Sedley

The next UK Constitutional Law Group event will be on Wednesday  2nd November 2011 at 6pm in the Keeton Room, Bentham House, UCL Faculty of Laws,Endsleigh Gardens, London WC1H 0EG.

Sir Stephen Sedley , President of the UK CLG, will speak on, “Monsieur Jourdain’s epiphany: doing theory without knowing it”. The talk is to mark the publication of his new book  Ashes and Sparks (CUP 2011).  There will be a drinks reception after the discussion.


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Lecture: A Bill of Rights for the UK?

A Bill of Rights for the UK?

Chair: Madeleine Colvin, Immigration Judge, Human Rights Consultant, Doughty Street Chambers human rights lawyers association

Speaker:  Professor Colin Harvey, Head of the Law School, Queen’s University Belfast and Northern Ireland Human Rights Commissioner 2005-2011

Discussant:  Jonathan Cooper, HRLA Chair

This seminar is an opportunity to engage with the Commission on a Bill of Rights’ consultation process: Do We Need a UK Bill of Rights? The deadline for responses is 11 November 2011. For more details about the Commission’s Discussion Paper, please go to:

Date & Time

Wednesday 2nd November 2011 6pm – 7.30pm Light refreshments will be provided on conclusion, sponsored by the BPP Human Rights Unit


BPP Law Centre, 68-70 Red Lion Street, London WC1R 4NY

CPD accreditation

1.5CPD (applied for)

The event is free and open to all. To reserve a place please email

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Nick Barber: The Special Adviser Who Wasn’t.

Much has, and surely will, be written about the strange case of the Defence Minister, Liam Fox, his friend, Adam Werritty, and a philanthropic bunch of rich people and foreign governments, all of whom were bound together in a complicated and rather unclear mixture of holidays, chance meetings, and informal chats.  Following the Report by the Cabinet Secretary  last week, it might be time to step back and reflect on some of the constitutional issues raised by the affair.  One thing that has been revealed is a lack of clarity – at least in the minds of some – about the position of Special Advisers.  The office of Special Adviser is now found in statute: Special Advisers are temporary Civil Servants, and are subject to a variety of regulatory structures. Werritty’s work for Fox resembled that of a Special Adviser, even though he had not been appointed to this role.   Following the Fox affair, the place of what might be termed de facto Special Advisers should be reassessed, and ways should be found to bring them within the legal framework that applies to their de jure counterparts.

1. The Office of Special Adviser

The British Civil Service has, for many generations, provided expert advice on the implementation and development of government policy.  One crucial feature of this advice – a demand now found in the Civil Service Code – is that it is apolitical.  The Civil Service is constitutionally bound to assist any elected government, moving seamlessly from the Labour government to the new Coalition regime.  The ideology behind government may change, but the Civil Servants who implement that ideology remain in post, striving – so far as they can – to serve the incoming government as well as they served the old.   The apparently technocratic nature of the Civil Service raises at least two types of concern.  First, as anyone who has ever watched Yes Minister knows, the reality can sometimes fall short of the ideal.  Like any organisation, the Civil Service will have institutional ideas about what is and is not possible or desireable.  The line between technical objections to the good sense of a policy and political objections to the ideology that lies behind it is hard to draw.  Secondly, sometimes Ministers want explicit political advice about policy: about how it will be received by the public and the party.  The limitations of the Civil Service – limitations that are the flip side of its strengths – create a need for Special Advisers.  Special Advisers provide an independent source of advice to balance that of the Civil Service, and, also, can provide the sort of explicit political advice the Civil Service is constitutionally barred from offering.  Consequently, it is unsurprising that the office of Special Adviser predates its formal recognition in law; it emerged as a response to, and alongside, the developing professionalism of the Civil Service.

Though Special Advisers bring many strengths to government, they also bring many dangers.  Civil Servants operate within a defined regulatory environment, but – in the early stages of their existence – there were no controls over the office of Special Adviser.  There was no mechanism for checking the character of Special Advisers on appointment, and no formal process for making their identity public.  There were no limits on the gifts and hospitality that they could receive from outside sources.   Perhaps the most concerning part of this was that we, the electorate, did not necessarily know the identity and financial connections of those who were advising Ministers on a regular basis.   There are, then, considerable hazards in allowing Special Advisers to operate outside of a legal framework, and these dangers led to the formalisation of their position: measures were passed regulating their appointment and operation.

The current statutory framework for special advisers is grounded in the Constitutional Reform and Governance Act 2010.  This statute provides a number of important constraints on the operation of Special Advisers.

First, under s.15, Special Advisers are selected by their future Minister, but their appointment requires the approval of the Prime Minister.  This allows for some degree of scrutiny of the candidate.

Secondly, under the same section, Special Advisers are classed as civil servants for the duration of their office.  This entails that – with the exception of the requirement that appointments are made on merit, and political impartiality be observed – the Civil Service Code applies to Special Advisers.

Thirdly, under s.16, an annual report must be placed before Parliament that provides information about the number and cost of Special Advisers.

Fourthly, under s.8, the Minister for the Civil Service must produce a Code of Conduct for Special Advisers, a Code that will form part of their contract of employment.

As a result of this framework, the conduct of Special Advisers is directly regulated by two codes: the Code of Conduct for Special Advisers and – with the exceptions set out above – the Civil Service Code.  For our purposes, paragraph 5 of the Code of Conduct for Special Advisers is of particular interest.  It states that:

‘They should not misuse their official position or information acquired in the course of their official duties to further their private interests or the private interests of others. They should not receive benefits of any kind which others might reasonably see as compromising their personal judgement or integrity. They are required to declare details of gifts and hospitality received in accordance with the rules set out in their departmental staff handbooks. Departments will publish on a quarterly basis, information about gifts and hospitality received by their departmental special advisers.’

Those who want to learn more about the office of Special Adviser should read a very helpful paper written by Oonagh Gay.  It should be noted that since that paper was written, the relevant sections of the Constitutional Reform and Governance Act 2010 have come into force.

2. The Position of Adam Werritty

The impetus for this meditation on the office of Special Adviser is the Report of the Cabinet Secretary into the conduct of Liam Fox, the Defence Secretary, and his friend, Adam Werritty.  Reading the Report, it seems that Werritty was engaged in the type of tasks that Special Advisers undertake.  So, it transpires that Werritty organised a meeting for Fox with officials from a foreign government [para. 5], attended meetings with the Ambassador Designate to Israel [para. 6], and held an official meeting with the Parliamentary Under Secretary of State for International Security Strategy at Fox’s suggestion [para. 9].  The Report goes on to tell us that Fox met Werritty on 18 overseas visits, and during ‘some of these visits Mr Werritty attended informal meetings with Dr Fox at which foreign officials were present.’ [para. 12] and, on two occasions, ‘Dr Fox had pre-arranged meetings overseas at which a member of his private office should have been present because of the likelihood that government business would be discussed’. [para. 13]

One of the curious things about the Werritty case is that Fox appears to have facilitated and allowed Werritty to behave as if he were a Special Adviser without bringing him within the reach of the regulatory rules governing that office.  Werritty was, it seems, a de facto but not de jure Special Adviser – which might explain why many people, perhaps even Werritty himself – were unclear about his exact role in Government.

Werritty received some benefits as a result of his links to Fox.  It seems that at least some of his travel costs were paid for by people and institutions who were aware of, and valued, his connection to Fox.  Fox himself introduced Werritty to a potential donor on at least one occasion.  As the Cabinet Secretary put it, the ‘links between Dr Fox and Mr Werritty means that the donations given to Mr Werritty could at least be seen as giving rise to the perception of a conflict of interest.’ [para. 17]

As a consequence of Werritty’s position as a de facto, but not de jure, Special Adviser, Fox did not need the approval of the Prime Minister before continuing the professional relationship he had with Werritty.  In particular, the Cabinet Office was not aware of Werritty’s role [para. 25], so did not have the chance to subject him to the scrutiny to which other Special Advisers may be subject.  Furthermore, Werritty was not required to disclose the hospitality and benefits he received as a result of his connection with Fox [paras. 16-17] in the way that a de jure Special Adviser would have been obliged to do.

It might be thought that as Werritty was not paid, the normal mechanisms for appointing a Special Adviser did not apply to him.  However, the Ministerial Code [para. 3.2] makes it clear that unpaid Special Advisers also fall within the regulatory system.  This can make things complicated: the line between someone acting as an unpaid Special Adviser and someone who simply give some assistance to a Minister is a soft one, and may give rise to confusion.  Ministers meet and talk to lots of people – all of whom are eager to offer advice – and it would be a mistake to expect Ministers to disclose details of all of these conversations.  However, it is hard to see that there should have been much confusion over Werritty’s role, and his position ought to have been formalized through the regulatory structure provided for Special Advisers.

3. Lessons From the Affair

One of the tricky things about this incident is that the problem stemmed, in part, not from the lack or inadequacy of rules, but from the failure of a Minister to follow them.  The Cabinet Secretary’s proposals in his Report are, in essence, that the existing rules should be better enforced by Civil Servants within the Minister’s department.  The Cabinet Secretary does not consider the wider question of the role of unpaid, de facto, Special Advisers – and it is unfortunate the report did not make it clear to Ministers that such people ought to be included within the regulatory framework established for the office.

Finally, it may be time to reconsider the limits on the number of unpaid Special Advisers a Minister can utilize.  It could be that Fox’s failure to formalize Werritty’s position was simply caused by the limits placed on the number of Special Advisers a Minister can appoint: the Ministerial Code confines him to two, and these posts were already filled. Had Werritty been formally appointed as a Special Adviser, he would have been placed within a clear regulatory framework.  Some, at least, of the concerns raised by his conduct might have been allayed.   Perhaps the limit on the number of Special Advisers a Minister can appoint should be reconsidered.  Even if two remains as a maximum for paid advisers, Ministers should be allowed to appoint a larger number of unpaid advisers.  Whilst some may find the proliferation of Special Advisers unattractive, this concern should be weighed against the benefits of ensuring that people acting as de facto Special Advisers are publically indentified as such, and subject to the relevant codes of conduct.

Nick Barber is a Fellow of Trinity College, Oxford. 

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Bradley W. Miller: Assisted Suicide and Judicial Review

What considerations can justify a court overturning a recent constitutional precedent?  This constitutional perennial is once again in the foreground as a Canadian court is asked to revisit a 1993 judgment (R. v. Rodriguez, [1993] 3 SCR 519)) upholding the constitutionality of the criminal prohibition of assisted suicide.  The sole justice from that panel remaining on the Supreme Court of Canada is Chief Justice Beverley McLachlin, who had dissented.

Understandably, the plaintiffs in Carter et al v. Attorney General of Canada (BC Supreme Court, Vancouver Registry No. S112688) to be argued in November 2011, have skirted the question.  The only allegation pleaded that could be relevant to whether a court should overturn Rodriguez is that “(a) significant number of countries now authorize physician-assisted suicide”, although the constitutional significance of foreign practice remains deeply controversial in Canada.

Some further background, then, is needed.  It is often said that constitutional litigation is the only alternative in the face of legislative indifference or inaction.  But in this case the refusal to legislate is, on any account, a considered refusal and not mere inattention.  Since Rodriguez, bills proposing the decriminalization of physician-assisted suicide were introduced in the House of Commons in 1994, 2005, and most recently in 2009, along with a motion calling for a special parliamentary committee to review the criminal prohibition of euthanasia and assisted suicide in 1997.  All of these bills and motions were defeated.  Additionally, a Special Committee of the Senate held hearings in 1995 and in its report recommended that euthanasia and assisted suicide remain criminal offences.  So the circumstances are different from those said to have preceded the Canadian courts’ initial foray into same-sex marriage; that the matter had never been put up for serious debate in any public forum prior to the issuance of the writ.  Nor can it be credibly argued that the legislation in question is the product of animus against any group of persons who lack access to Parliament.

What about changes in public opinion?  The plaintiffs can, if they choose, point to opinion polls reporting comparatively high levels of support from the general public (though not from physicians) for some form of decriminalization.  But Canadian courts are reluctant to let questions of constitutional principle be answered by opinion polls.  WJ Waluchow has argued that courts ought to be wary of majority opinion, and only give effect to what he characterizes as the “community’s constitutional morality”, understood as the “moral norms and convictions to which the community, via its various social forms and practices, has committed itself and that have in some way or other been drawn into the law via the rule of recognition and the law it validates.” (Common Law Theory of Judicial Review (2007), p. 227)  Opinion polls are not a suitable guide for judicial reasoning; courts, on this theory, may only be guided by deep, settled convictions that have been drawn into law.

This brings us, then, to questions of the development of constitutional doctrine.  The Supreme Court of Canada has, in recent years, not been shy about modifying settled Charter of Rights doctrine.  This is often in response to concerns that legal tests that have been adopted have become breeding grounds for confusion and ad hoc decision making.  The career of s.15(1), the Charter’s anti-discrimination provision, has been a poster child for this sort of thing.  Nevertheless, it is rare for the court to directly overturn a previous decision.  It did so recently in Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia (2007), where it explicitly overturned a 20 year old precedent that held that the Charter’s guarantee of freedom of association under s. 2(d) does not provide a right to collective bargaining.  It did so by relying (uncharacteristically) on the original intent of the framers and acknowledging that its earlier decision was simply wrong.  The reliance on original intent is highly unusual in Canadian constitutional jurisprudence, and can only be explained by the Court’s anxiety that its departures from precedent appear principled and restrained, and not simply a matter of the Court having changed either its mind or its membership.

The Court will also take changes in international law and the practices of other jurisdictions as capable of justifying a change in domestic constitutional interpretation, but this is highly selective: see Sauvé v. Canada (Chief Electoral Officer) (2002), a prisoner voting case in which McLachlin CJ rejects the relevance of the practices of “self-proclaimed democracies” [para. 41] such as the UK, US, Australia, and New Zealand.

A more common avenue for escaping the strictures of precedent is for the court to formally uphold a precedent, while arguing that new or different facts, once fed into a proportionality test – fast becoming “one test to rule them all” – mandate a different result.  For example, when explaining why its constitutional review of the tobacco advertising restrictions in 2007 would not be governed by a 1995 precedent (RJR-MacDonald v. Canada (AG)), the Court stressed the significance of a different factual matrix:  in 1995, apparently, the Court was unaware that smoking could be addictive or a risk factor in fatal illness (Canada (AG) v. JTI-Macdonald (2007)).  Similarly, in a 2001 case on the constitutionality of extradition to face the death penalty (United States v. Burns, (2001)), the Court explained that ten years earlier (Kindler v. Canada (Minister of Justice), (1991)) it was unaware of the prevalence of wrongful conviction. These explanations, of course, are not always convincing, but they do allow a way around a precedent without admission of a change of heart.

Where does this leave Carter v. AGC?  To succeed in overcoming Rodriguez (given the hurdle placed by the continuing attention of both houses of Parliament), the plaintiffs would have to demonstrate that Rodriguez has been overtaken by developments in Canadian law dealing with the concepts of dignity, sanctity of life, and autonomy and that the experience with physician-assisted suicide in other regimes since 1993 should vitiate any concerns expressed in Rodriguez about the need to maintain the prohibition in the interests of the vulnerable.

On the question of whether there has been robust change to the concept of autonomy in Charter jurisprudence, the plaintiffs face an uphill battle.  There has indeed been an expanded licence for obscenity and indecency, and a minority of judges have held intermittently that the Charter may protect “basic choices going to the core of what it means to enjoy individual dignity and independence” (Godbout v. Longueil (1997)).  But all attempts to date to harness that proposition in support of a constitutional challenge to a criminal law have failed (see, eg, R. v. Malmo-Levine (2003), a Charter challenge to the criminalization of possession of marijuana).

Another question, of course, is the relevance of the contested legacy of the Netherlands and other jurisdictions since 1993.  The statutory framework adopted by the Dutch is considerably different from that adopted in, for example, Oregon.  The impact of each system on such matters as the incidence of non-consensual euthanasia and the availability and quality of palliative care remains has to be carefully assessed.  There is a large and controversial body of scholarship on these and other matters, and much time at trial will have to be given over to expert evidence.

Significantly, however, the plaintiffs in Carter are not proposing the adoption of any legislative framework.  They are simply demanding that the prohibition on assisted suicide be struck down as unconstitutional.  Were such an order granted, it would mean, of course, that there would be no safeguards or guidelines whatsoever to govern the practice of assisted suicide.  A reviewing court would not be in a good position institutionally to choose to adopt a Dutch model or an Oregon model or indeed any model of legislation at all.  The plaintiffs’ expectation, no doubt, is that the court would simply suspend its declaration of invalidity for a year or so to allow for Parliament to craft the necessary safeguards.

And here problems start to metastasize beyond considerations of whether a court is justified in overturning precedent.  A court cannot simply assume that if it strikes down the prohibition, Parliament will be able to draw up a replacement that both permits assisted suicide and satisfies Parliament’s obligation to protect the vulnerable.  Even assuming that such a regime would be possible, a political settlement might not be.  To understand the danger here, one only has to bear in mind the legislative aftermath of the Supreme Court of Canada’s decision to strike down the Criminal Code’s abortion provisions (R. v. Morgentaler (1988)).  The Court’s clear expectation was that Parliament would enact successor legislation, containing some new restrictions that would be applied more evenly across Canada.  But no successor legislation proved politically feasible, and as a result Canada remains without any legislative restrictions on abortion whatsoever.  Among the self-proclaimed democracies it is alone on this.

Once a court ventures into a morally charged debate such as abortion or assisted suicide, it changes the political dynamic in ways that cannot be anticipated.  The possibility of legislative failure has to be borne in mind by any reviewing court.

Bradley W. Miller is an Associate Professor in the Faculty of Law at the University of Western Ontario.

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Jack Simson Caird: Parliamentary Constitutional Review: The Case of the Health and Social Care Reform Bill

There are certain news stories which require a double-take. On the 11th and 12th of October, a number of UK news sources reported that the Health and Social Care Reform Bill was facing strong opposition in the Lords because of the ‘constitutional questions’ it raised. Hearing this on the radio in the morning, perhaps before a dose of caffeine, you might have thought that you had misheard and that for some strange reason Barack Obama’s health legislation was still going through Congress, or, more likely, that another country with a codified constitution was deep in debate over a legislative proposal that sought to radically reform their health system. Students of the British Constitutional do not expect major political debates in the United Kingdom, such as the current debate over the reform of the National Health Service, to focus on ‘constitutional’ questions.

That the constitutional implications of the bill became the focus of the Second Reading debate in the Lords would not be a surprise if you have been following the chamber’s legislative scrutiny work during the current parliamentary session. It has long been noted that the Lords, as a legislative chamber, takes a special interest in constitutional matters, but what this parliamentary session has shown is that they are getting exceptionally good at constitutional scrutiny. In this post, the example of the Health and Social Care Reform Bill is used to highlight this work and in particular the contribution of its own Select Committee on the Constitution.

Why was the British media reporting on the subject of the constitutional implications of the Heath and Social Care Reform Bill on the 11th and 12th of October? On the 30th of September the House of Lords Select Committee on the Constitution published its report on the Bill, and it is this intervention which is the root cause of the media stories. The report is a remarkably effective piece of constitutional analysis. It explains clearly and succinctly the three key changes that the proposed Bill would make to the existing duties of the Secretary of State for Health [para. 13]. The report then explains:

The combination of these changes matters, constitutionally, because it is not clear whether the existing structures of political and legal accountability with regard to the NHS will continue to operate as they have done hitherto if the Bill is passed in its current form. As such, the House will wish carefully to consider whether these changes pose an undue risk either that individual ministerial responsibility to Parliament will be diluted or that legal accountability to the courts will be fragmented.’ [para. 18]

The implication is clear, these changes to the responsibility of the Secretary of State are not, in their view, constitutionally acceptable. It is noticeable that the report does not just issue its judgment, it then invites peers to act.

The media stories of the 11th and 12th of October were actually directly prompted by the amendment to the motion moved by Lord Owen, and supported by Lord Hennessy of Nympsfield. The amendment sought the appointment of a Select Committee to examine the issues raised by the Constitution Committee’s report. The media stories appeared to be mainly interested in the amendment because the government claimed that it if successful it could wreck the Bill, a fact that the authors denied.  The Committee would work alongside the committee of the whole house and its sole focus would be on the constitutional implications of the Bill. The proposed Select Committee would have Parliamentary Counsel at its disposal, to enable it to resolve the issues relating to the proposed changes to the constitutional responsibilities of the Secretary of State. The authors pointed out that this procedure was not without precedent, it was used on the Constitutional Reform Bill in 2004 and was regarded as a success. Lord Owen explained that the normal process, of a committee of the whole house, was less likely to secure the changes to the Bill which the Constitution Committee has called for: ‘only the weight of an all-party and probably unanimous Select Committee will give the weight to make this change.’ In the end the vote on the amendment was lost by sixty-eight votes, however, the loss does not diminish the value of this example, what I am interested in is the political process which led to the vote.

Over ten years ago, the Wakeham Commission on Reforming the House of Lords, recommended the establishment of a committee on the constitution, which would help the House of Lords to act as constitutional ‘longstop’. The Lord Owen amendment and the media stories that reported it are both evidence of the impact that the Committee’s work is now having. The Committee is establishing itself as the United Kingdom’s primary constitutional interpreter and there are number of reasons which can be offered to explain this achievement. Its Bill scrutiny reports contain exceptionally good constitutional analysis, which is both direct and accessible in style, and crucially these reports are having a major impact on legislative debates. The reason for this is that the Constitution Committee is a proper legislative committee, in that it employs tactics to ensure that its analysis get the maximum exposure in the legislative debate on the Bill. The Committee’s Annual Report of 2007-2008 explained that it had adopted the practice of tabling amendments in the name of the Chairman, to ensure that its concerns did not disappear from view in the Committee stage. Additionally, the Committee tries to ensure that its scrutiny reports are published before the Second Reading debate so that peers have the opportunity to engage with the report and the bill at the earliest possible stage. [para. 6]  The Lord Owen amendment and publicity which is created was a direct result of the fact that Committee had managed its report in good time so that peers had a chance to digest the information and react.

Strategy played a part in getting the constitutional questions into the media reports, but the other key factor was the quality of the analysis within the report. One reason to explain how the Committee can produce such a persuasive piece of constitutional analysis is the quality of the personnel at its disposal. The Committee is a good example of a subject specialist committee, in that its membership has a great deal of constitutional expertise. It includes among its members: Lord Norton of Louth, a leading expert on parliaments and the British Constitution, Lord Goldsmith the former Attorney-General, Lord Irvine of Lairg the former Lord Chancellor and Lord Pannick, a leading barrister who specialises in Public Law and Human Rights. In addition two part-time legal advisers serve the Committee: Professor Richard Rawlings and Professor Adam Tomkins. The constitutional expertise within the committee ensures a high quality of analysis, and also gives the committee a special status. The membership is regarded as eminent and unpartisan, and this means that when the committee issues a critical report, the House of Lords is sure to listen.

At this stage it is not clear what the impact of the Constitution Committee’s report will be on the bill. However, if the example of the Public Bodies Bill is anything to go by, the Committee Stage could see the Government make the changes that the Constitution Committee’s report demand. In that case, the government initially resisted the Constitution Committee’s call for alterations to the Henry VIII clauses within the Bill, but after consistent pressure from the Lords, where virtually every speech made reference to the Committee’s report, the Government accepted the need for major changes. If something similar occurs with the Health and Social Care Reform Bill it would confirm my suspicions that we are witnessing the emergence of a form of parliamentary constitutional review in the United Kingdom. That it is the House of Lords which is adopting the practice, is perhaps evidence of the benefit of having legislators operate with the threat of reform over their heads.

It is often noted that the idea of ‘constitutionality’ does not apply to the British political context because of the absence of a codified constitution and a designated constitutional interpreter. However, the Bill scrutiny reports of the Select Committee on the Constitution are beginning to change this and the idea of ‘constitutionality’ appears increasingly important to the UK’s legislative process. Although the Constitution Committee has no formal powers, its ability to influence other Lords is allowing the Committee to take make a real impact on the legislative process.

Jack Simson Caird is a doctoral student at Queen Mary University of London.

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Tom Hickman: The Bill of Rights Commission and the How Question

Has anybody else noticed that the Bill of Rights Commission’s consultation is missing a question? In its consultation, which closes on 11 November 2011, the Commission first asks whether we need a Bill of Rights. No problem there. But its second question is, if so, “what do you think a Bill of Rights should contain?” As it happens, the same questions were asked by the Joint Committee on Human Rights in its call for evidence in 2007, reflecting orthodox thinking about constitutional reform: do we need it and if so what should the legislation say? But the most important question is left unasked.

The question is: how do you think a Bill of Rights should be introduced?

The reason why the Commission is embarking on this project—and unlike some I don’t believe that it is necessarily a long-grass exercise which is not intended to result in any actual constitutional reform—is because the ‘how question’ has not been properly asked or answered in the past. The Human Rights Act lacks legitimacy precisely because it was brought about by a legal and political elite through the ordinary Parliamentary process.

The lack of serious concern for process in constitution-making in the UK is a reflection of the degree to which the sovereignty of the Westminster Parliament dominates thinking both consciously and unconsciously. But such thinking is out of place when it comes to a Bill of Rights. This is because all the good reasons for having a Bill of Rights relate not to the ‘what question’ but to the ‘how question’.  There are not in truth many improvements that can be made either to the catalogue of rights contained in the Human Rights Act or to the mechanism by which the Act brings them in to force; and insofar as improvements of this sort might be made, they could be made by amending the Human Rights Act. [1]

The really good reasons for having a Bill of Rights relate to the need to give the wider population a sense of ownership of the measure and to make good use of the opportunity for uniting, educating and engaging the population in and around our shared constitution.   How one achieves this is the really important and difficult question. Yet once again, it is most likely to be the question that is not adequately addressed or answered. The Joint Committee on Human Rights, for instance, concluded its examination by setting out what the Bill of Rights ought to contain and suggesting its enactment should be preceded by a six (possibly twelve) month period of “consultation”. It did not take seriously enough the inclusive national project that is required to consider the Bill of Rights and what it should say.

To do this properly will be a major national undertaking, particularly given the amount of catching-up to be done. Most school leavers have little idea of even the rudiments of our legal system and one is lucky if even first term law students with fistfuls of straight A*s can tell you what the highest court is or whether a contract has to be written or not (I will be glad to be contradicted).

The members of the Commission are certainly well aware of the need to engage the public as well as of their own lack of diversity. Speaking at the marvellous Public Law Project Annual judicial review conference last Thursday, Lord Lester QC referred to the dispiriting number of white, senior, QCs on the panel (the comma before QCs is advisedly placed); although, as he pointed out, that is hardly their fault.

One member of the audience objected. The Commission was at least responsible for the inadequate form that the consultation process has taken, noting that it consists entirely of a posting on the Ministry of Justice website which is likely to provoke responses only from the usual suspects of already-engaged lawyers and NGOs. Quite right. The Commission’s consultation process would not pass muster applying principles of good consultation and falls even further short of what is required if it is held up as part of the civic engagement that ought to proceed the enactment of a Bill of Rights.

Unfazed as ever, Lord Lester pointed out that the consultation is only the first stage and painted the picture of the Commission led by Baroness Kennedy tramping up and down the country visiting schools and community centres. Welcome and interesting as that will be, it is regrettable that the Commission hasn’t specifically asked consultees what sort of process it, and the politicians that follow it, should be engaging in. This is an issue on which imaginative thinking is urgently needed. Readers of this blog have a few weeks left to provide their thoughts.


Tom Hickman is a barrister at Blackstone Chambers.

[1] Perhaps the only one that really justifies a Bill of Rights would be the introduction of a strike-down power, but this is hardly likely to be contained in a Bill of Rights in the current political climate in any event. For discussion of the reasons for having a Bill of Rights see Public Law After the Human Rights Act (Hart 2010) Chapter 1.


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UKCLG event Wednesday 2 November 2011: Stephen Sedley

The next UK Constitutional Law Group event will be on Wednesday  2nd November 2011 at 6pm in the Keeton Room, Bentham House, UCL Faculty of Laws, Endsleigh Gardens, London WC1H 0EG.

Sir Stephen Sedley , President of the UK CLG, will speak on, “Monsieur Jourdain’s epiphany: doing theory without knowing it”. The talk is to mark the publication of his new book  Ashes and Sparks (CUP 2011).  There will be a drinks reception after the discussion.

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Jacob Rowbottom: Press independence and the Leveson Inquiry

The view of the press as the ‘fourth estate’ is sometimes described by media historians as a myth created to legitimise the press in the nineteenth century. It has nonetheless had an enduring role in debates about press freedom. While the meaning of the term ‘fourth estate’ seems to have changed over the years, now it is commonly used to refer to the watchdog and checking roles of the press. In debates the term is normally used to argue against any regulations of the press. However, I argue the fourth estate/watchdog argument explains a problem with the current press in the phone hacking scandal. That view of the press might even point to the introduction of some controls on the media. Before getting to that argument, I first want to look at the way the fourth estate/watchdog was advanced at the recent Leveson Inquiry preliminary seminars. The seminars are not part of the formal record, but brought together a number of media professionals, experts and academics to help define the issue for the inquiry.

Most of those representing the press at the Leveson seminars made clear their opposition to a statutory regulator of the press – no surprise. What interested me were the justifications for press freedom. Alan Rusbridger, editor of the Guardian, told the seminar:

‘The press is sometimes called the fourth estate and that is probably too grandiose a concept for most journalists’ tastes but it does suggest an important, coherent and independent force in society. That apartness is crucial. The press doesn’t share the same aims as Government, the legislature, the executive, religion or commerce, it is or it should be an outside.’

He referred to the hacking scandal to illustrate the importance of press freedom – where the ‘normal checks and balances in civil society’ (the police, the Press Complaints Commission and Parliament) failed, the Guardian was able to step in and cover the abuses. Under this view, the press uses its resources to investigate and hold the powerful to account.

While not using the language of the ‘fourth estate’, many other participants at the seminar stressed the importance of press independence and the idea that the news media can act as a check on government. Paul Dacre, editor of the Daily Mail, said that most journalists work hard to ‘give voice to the voiceless and expose the misdeeds of the rich, the powerful and the pompous’ and that to over-regulate the press would put ‘democracy itself in peril.’ Former News of the World editor Phil Hall said that a government-appointed regulator would ‘inevitably increase the pressures on editors to give governments a wide berth, when surely their role is to question and hold to account our leaders and politicians.’

That approach to press freedom holds the press out as something separate to other speakers. It is an institution that requires freedom to perform a role for the public benefit. As Alan Rusbridger again said:

‘A free press is anyway not there for the benefit of a group called journalists. It’s primarily there for the benefit of ordinary citizens.’

Similarly, Trevor Kavanagh, associate editor of the Sun, told the seminar that ‘biggest loser of all, if we go further down the road of regulation, is the British public.’ By making these points, the rights being asserted are not ordinary free speech rights, but a separate right held by an institution.

Ronald Dworkin has warned that such a line of argument actually weakens the position of the press and provides a poor strategy when arguing against regulation. By premising press freedom on its contribution to the public benefit, it is something to be balanced with competing claims in the public interest. (see A Matter of Principle, p.387). According to Dworkin, the argument is one of policy rather than principle and is not a trump. By pursuing this line of argument, the press are opening themselves up to arguments that they should be subject to responsibilities. This is less problematic in the European setting where Article 10 of the ECHR allows for competing claims to be taken into account. Furthermore, even if the watchdog justification does open the door to some balancing, its advocates say it provides a strong argument that should outweigh the competing considerations.

The key argument underlining the watchdog function is that the press as an institution must be independent. While there is debate about whether this means independence from advertisers and other commercial pressures or from subsidies from moguls and oligarchs, most agree that it means independence from government. In the Leveson seminars, these arguments have been used to warn against further regulation of the press as a response to the hacking scandal. However, the importance of press independence underlines one of the central problems of the hacking scandal. The hacking of phones did not occur due to an absence of laws. Legislation was already in place prohibiting the practices of the private investigators. The question is why those laws were not enforced?

The answer to that is one of the matters Leveson will consider, but a lack of press independence and separation from government is one possible explanation. A part of the press became too close to politicians and the police. This gave the press a chance to lobby, apply pressure and thereby make any further investigation by politicians and the police into the hacking less likely. At the Leveson seminars, Damian Tambini (London School of Economics) and Ivor Gaber (City University) raised the possibility that journalists acted with impunity because they believed they would not have to face any consequences for the actions, as a result of their close relations with government. Tom Watson made an argument along similar lines in the House of Commons in 2010, when he said of the tabloid press:

‘They laugh at the law; they sneer at Parliament. They have the power to hurt us, and they do, with gusto and precision, with joy and criminality. Prime Ministers quail before them, and that is how they like it.’

It is that power to ‘hurt’ that is thought to give the press leverage, which discourages officials taking actions for their wrongdoings.

So the normal boundaries between press and politics were breached, but in this account it was the press that were able to bully or pressure government rather than vice versa. Should this be a concern from the perspective of press freedom? Could it be taken to mean that Murdoch reflects the ideal of press freedom, in so far as he can stand up to politicians? I would argue not and that such leverage over the political sphere is deeply problematic if we are concerned with the press as an independent check on government.

First, if the press are treated favourably by officials, then it may be asked what are the press doing in return and how does this affect the coverage of those officials? Secondly, if the press has strong lobbying power over the government and potentially has disproportionate influence on areas of policy, then it ceases to act as a check on government power. Just as Berlusconi’s media empire is not the most vigorous check on the Italian premier, News Corp’s credibility as a watchdog is jeopardised in a system where Rupert Murdoch is (to quote Lance Price) treated like a Cabinet member. Where the press has such political influence it becomes a participant in the political process with its own policy preferences to pursue – it is closer to a pressure group (whether for corporate or ideological goals) rather than institution with specific role in scrutinising the powerful.

An emphasis on the watchdog function and the independence of the press might point to some reforms or regulations that promote separation from government. I don’t think full separation is possible or desirable (and in my view that is a problem for the watchdog account). The press will always need to develop contacts with politicians for their stories and the politicians depend on the press to carry their messages. That is healthy, but some steps might be considered to draw a boundary.

First are transparency measures. There have been steps towards this with the Freedom of Information Act and government disclosure of information, but more could still be done. A more formal system of publishing information about lobbying, which the Coalition has promised, would shed more light on the influence of the media on policy making. This would cover those instances where a newspaper proprietor or editor speaks with a minister to discuss policy. The disclosure obligations need not be limited to politicians. For example, George Monbiot recently proposed that journalists disclose their sources of income on a on a register.  There are, however, shortcomings to disclosure strategies. Much communication between politicians would still take place off the radar, such as off the record briefings between a politicians and journalists.

Second is to focus on the ‘revolving door’, in which former officials go on to work for the media and those in the media go on to work in government. Just as former ministers are given a cooling off period before they can take up jobs that involve lobbying, a cooling off period could be imposed before former officials can work in the media and media professionals work in government. That might curtail the potential conflicts of interest that can arise if officials or journalists cosy up to one another to secure future employment. This strategy raises problems of its own. There are some jobs in government for which journalists are thought to be well qualified, such as in press relations. Furthermore, would such a prohibition stop a politician writing for a newspaper? If so, then the rule would be overly restrictive and might stop some important communications from politicians. Others might think they do too little and only curtail one type of connection between media and the press.

A third area concerns the power of the press. Arguments for the press as an institutional check on government suggest the need for a strong media that is not intimidated by the government and is well resourced. On this view, the concentration of the press is not a bad thing if it gives the newspaper a strong base from which to perform its function. There is, however, a need to ensure that there is a multiplicity of voices in the media and competition between media outlets. That way, it is hoped that the different newspapers will provide a check on one another, a point that Rusbridger mentioned (although the track record of newspapers actually doing this is questionable). More importantly, more diverse ownership would also limit the power (actual or perceived) of any media company and possibly reduce its leverage over politicians. The questions about media ownership have a role to play in separating the press and politicians.

The watchdog argument for press freedom has a long history. Personally, I think it is just one argument among several and need not dominate the discussion. However, if the argument is to be taken seriously (as many editors seem to wish), then we should follow its logic and think about ways to secure the independence of the press and keep it separate from government. That may not point to an absence of regulation.

Jacob Rowbottom will be taking up a fellowship at University College, Oxford in the new year.

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Roger Masterman and Jo Murkens: What Kind of a Court is the UK Supreme Court?

The United Kingdom Supreme Court (UKSC) is something of a novel institution among apex courts.  It is not a typical supreme court with strong powers of constitutional review, but it has powers to determine the legality of administrative and executive acts and to review statutes on human rights and European Union law grounds.  It cannot be conceived as the ‘ultimate guardian of the constitution’, but it clearly discharges a range of constitutional functions which are in many ways approximate to those carried out by top courts elsewhere.  It is not a federal court, but has power to determine competence disputes between the Westminster Parliament and devolved legislatures and administrations.  It is not an agent of the legislature, though its work is conditioned by the doctrine of parliamentary sovereignty.  It undertakes no constitutionally-prescribed checking function, though it can be seen to play a ‘counter-majoritarian’ (at paras 209-211) role in holding government to account.  It is not a political institution, though it clearly makes decisions that are politically controversial.  As a result, the UKSC neither clearly fits, nor completely eschews, the institutional precedents of other national apex courts.

Some explanation for this can be found in the fact that it was never an objective of the Labour government to engage (in this area at least) in radical constitutional redesign.  The transition from Appellate Committee of the House of Lords to Supreme Court displays much of the continuity and incrementalism that is characteristic of constitutional change in the United Kingdom; neither the jurisdiction nor composition of the UKSC, for instance, depart radically from those of the House of Lords.

At the same time however, as a result of the of the UK’s traditional apathy towards separation of powers as a template of institutional design, the severing of structural links between the legislature and top court was a marked development, and the most visible aspect of the Constitutional Reform Act’s new regime.  The creation of a formal apex court, autonomous of the elected branches of government, is also a milestone in the formalisation of the judicial branch and its functions and a manifestation of the ongoing shift in the balance of power, away from politicians towards the judges, which has implications for all constitutional institutions.

Any attempt to characterise the UKSC has to take account of the past: the judicial House of Lords was subordinated to Parliament, and did not play a leading role in the interpretation of constitutional law and politics.  Any new conception also has to take account of the present: the incremental accrual of functions relating to EU Law, individual rights and devolution – alongside the burgeoning constitutional function of the common law – have begun to cement the place of the UKSC as a constitutional actor in its own right.  Lord Hope has spoken of the ‘added authority’ carried by decisions handed down by a Supreme Court independent of Parliament.  In terms of powers, Lord Phillips has acknowledged that the UKSC discharges ‘some of the functions of a constitutional court’, while in Parliament the suggestion has been made that the UKSC is becoming ‘increasingly robust’.  Finally, the conception of the UKSC has to make provision for the future: there are judicial dicta by Lord Steyn and Baroness Hale in Jackson that the courts may claim an inherent power to strike down legislation or, at least, to render ineffective any Act of Parliament deemed to be ‘unconstitutional’.  Whilst this may still be viewed as a hypothetical scenario, how widespread is the view amongst the senior judiciary that Parliament can with impunity violate the fundamental precepts of the rule of law?

The precise constitutional status of the UKSC is difficult to encapsulate, but two traps need to be avoided.  The UKSC does not have suprema potestas: the establishment of the UKSC will not usher in an age of ‘judicial supremacy’.  But neither is it ‘a third chamber in perpetual session’: the passive-subservient conception of the United Kingdom’s apex court no longer reflects judicial attitudes, nor the status of the UKSC as an independent constitutional actor.

In short, the essence of modern constitutionalism is not determined by its form (e.g. visible separation of powers, documentary constitution, higher-order law etc.) but through its content.  The ‘new constitutional settlement’ that consists of the Human Rights Act 1998, the devolution legislation of 1998, and the Constitutional Reform Act 2005 is best understood as allowing for a constitutional relationship between Parliament and the courts in which each is able to make a distinctive contribution to the furtherance of rights protection and the articulation of constitutional standards.  The search for an ultimate constitutional authority is a diversion: as Lord Cooke has argued ‘legislative and judicial functions are complementary; the supremacism of either has no place.’

In providing a focal point around which the judicial checking and balancing functions of the UK constitution might coalesce, the creation of the UKSC finally vindicates aspects of the French and American constitutional paradigm.  However, instead of forming part of a revolutionary constitutional moment or explicit break with the past, the UKSC ushers in a more visible separation of powers by stealth.  Alongside the traditional legislative-executive dualism, and skirting the extremes of constitutional subordination and superiority, the UKSC has emerged as an autonomous and co-equal agent of the constitution.


Roger Masterman is Reader in Law at Durham University.

Jo Murkens is Senior Lecturer in Law at the London School of Economics and Political Science


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