Monthly Archives: September 2012

News: British Academy Report on Human Rights and the UK Constitution

Human rights law has been the subject of considerable controversy over the past few years. A new report, written by Colm O’Cinneide, Reader in Law at UCL, and released on September 27 by the British Academy Policy Centre, aims to clarify the central issues at stake in this debate. The report, Human Rights and the UK Constitution,analyses the relationship that currently exists between the European Convention on Human Rights (ECHR) and UK law, and on how the Human Rights Act (HRA) fits within the UK’s constitutional architecture. It also explores the options for a new UK Bill of Rights, and examines the case for and against reform of existing human rights law. Completion of the report was overseen by a steering group comprised of five British Academy Fellows – Professors Vernon Bogdanor, John Eekelaar, David Feldman, Sandra Fredman and Conor Gearty – and also Francesca Klug (LSE). The report is available at:

https://www.britac.ac.uk/policy/Human-rights.cfm

 

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Dawn Oliver: Response to Gavin Phillipson on Lords Reform

I feel as bit as if I have been run over by a bulldozer after reading Gavin Phillipson’s blog about House of Lords reform. It assumes that all opponents of the Government bill on Lords Reform are unthinking and /or stupid. Given that some very eminent commentators without political axes to grind as well as some sensible politicians – and there are some! – opposed the proposals, this does not seem to me to be a convincing starting point.

Let us remember just a few basic points.

  1. Most other countries with second chambers are federal: the members of their second chambers represent the members of the federation and have particular responsibilities for protecting and representing the interests of the states in the federation as set out in their Constitutions. This is not the position in the UK.
  2. Comparisons with other countries with elected second chambers can only take us so far: they all have written constitutions, most of which give their courts or court-like bodies (unelected of course, but legitimate) the power to decide, post-legislatively, upon the constitutionality of laws passed by their legislatures, and indeed in many cases to consider and make recommendations by way of ‘preview’ about the quality of drafting, the evidence base for policy proposals etc.
  3. In the absence of such extra-parliamentary checks, the UK relies strongly on intra-parliamentary ones: the Joint Committee on Human Rights, the House of Lords Constitution Committee, the House of Lords Delegated Powers and Regulatory Reform Committee, the Merits Committee and others do these jobs very well. This is because of the kinds of people who are members of these committees.
  4. I do not believe that enough elected members of a reformed second chamber would be as good at these very important functions as current members of the House of Lords engaged in this work are.
  5. The parties are likely to choose as their candidates those with political records e.g. in local and regional/national government, not people with the experience needed for these functions.
  6. And I do not believe that 20% appointed members could be counted on to do the job as well or have the same influence on its doing as current cross benchers.
  7. The combination of elected and appointed members proposed in the draft bill would not produce a system of scrutiny and checks on government as good as or better than the present arrangements as they operate in practice.
  8. Thus going over to a largely elected composition in the second chamber risks throwing the baby out with the bathwater.
  9. So comparisons with other countries, though superficially attractive, can be misleading.
  10. These points do not imply that the present arrangements in our second chamber are satisfactory. The House of Lords is far too large, the continuation of hereditary members is completely inappropriate, appointments are made in exercises of unregulated patronage by the Prime Minister and leaders of the parties, and many members of those appointed do not have useful experience or expertise to bring to the work done in the chamber. Unless and until the House becomes elected these matters ought as a matter of urgency to be rectified.
  11. One solution might be for the UK to adopt a written constitution that would (i) enable a court or courts to take on the function of constitutional scrutiny of bills or Acts, (ii) establish a body akin to the French Conseil d’état that would scrutinise bills for drafting etc and (iii) put in place an elected second chamber.
  12. But adoption of a written constitution for the UK is not going to happen in the foreseeable future. As Sebastian Payne argued in his recent blog, the time is not ripe.
  13. Meanwhile reform of the devil we know that works well is preferable to replacing it with a devil we do not know that might look like an angel but be unable to carry out the functions which need to be done within Parliament as they cannot be done elsewhere under our current arrangements.

Dawn Oliver is Emeritus Professor of Constitutional Law at University College London. 

 Suggested citation: D. Oliver, ‘Response to Gavin Phillipson on Lords Reform’ UK Const. L. Blog (26th September 2012) (available at http://ukconstitutionallaw.org

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Gavin Phillipson: Lords Reform: why opponents of the Government Bill were wrong

So the attempt to bring long-overdue comprehensive reform to our second chamber has failed. The plan for an 80% elected, 20% appointed House, with the hereditary rump removed and Prime Ministerial patronage ended, has been defeated. Leaving aside the purely party political factors that contributed to this outcome, I think we can identify two key reasons why Conservative MPs in particular refused to support the Bill: first, simple “small c conservatism”, manifested on this occasion in the “principle of unripe time” variant so nicely dissected by Sebastian Payne last week on this blog; second, simple parochialism: the deployment of arguments against reform that wholly failed to take account of the experience of other countries – a tendency that was present not only in the views of politicians, but of many of the academic commentators as well, including, alas, on this blog.

The key argument for democratic reform

The main arguments in favour of democratic reform are simple and have been made many times: that the House of Lords exercises real legislative power, which should flow from a democratic mandate, rather than Prime Ministerial patronage and hereditary entitlement. At present, our second chamber has an effective “electorate” of a mere handful of people, something that should be considered indefensible. A linked argument, often overlooked, but almost as important, is more practical: that, while the Lords has a real effect on legislation, much of its excellent policy work, including its proposed revisions to legislation, currently goes to waste because of its perceived lack of legitimacy; its amendments can be, and often are, swatted aside by governments and MPs on this basis. The sweeping assertion of Commons “financial privilege” to allow the rejection without consideration of whole swathes of painstakingly debated Lords’ amendments to the Welfare Reform Bill (considered on this blog recently by Jeff King) was only the most recent and drastic example of this well known tendency. While Donald Shell probably goes too far in saying that the UK has for some time been working under a system of “de facto unicameralism”  (‘The Future of the Second Chamber’ (2004) 57(4) Parlt. Aff. 852, 855), he is right to emphasise the emasculated role of the Lords, deriving mainly from the conventional limits upon its powers, which stem in turn from its perceived lack of legitimacy. It is a commonplace that our constitution lacks the formal checks and balances that other democracies have and, as a result (many believe) still suffers from an over-mighty Executive, able to secure the passage of most of its legislation, however draconian or ill-conceived. The argument then is that we need a more legitimate and therefore more powerful upper chamber with the confidence to make much fuller use of its existing powers to amend or delay legislation where it considers that the government needs to think again (see e.g. the evidence of Dr Renwick to the Joint Committee on the Draft Bill, para 56). As the Public Administration Select Committee argued in a powerful report back in 2002, “second chamber reform is … about strengthening Parliament as a wholein relation to an executive that is uniquely powerful in the British system” (Fifth Report of 2001-2002, hereafter, ‘PAC’). I also believe that the Government (and the PAC) were right to propose a majority-elected House rather than a fully elected chamber; I have made that case elsewhere (‘Solving the second chamber paradox’ (2004) PL 352), and do not repeat it here. Instead I examine the main arguments against the proposed reform, those which carried the day.

The main bogeymen: Commons “primacy” and gridlock.

This was perhaps the main argument against the Bill, expressed over and over again by Conservative MPs and others: that reform of the second chamber would “threaten the primacy of the Commons” and lead to gridlock, because a reformed chamber, no longer hamstrung by its lack of legitimacy, would use its legal powers far more fully than at present. This argument was repeated so often that we have become used to it, but when one stands back and thinks about, it is really quite extraordinary: essentially the contention is that we should keep the Lords as it is precisely because of its lack of legitimacy, which allows the Commons routinely to override it, thus preserving its “primacy” and preventing gridlock. It is evident that some means of preventing endless partisan struggles between the two chambers of the legislature is needed. But the current system – using the acknowledged lack of legitimacy of one House in order to make it too hesitant to use regularly the powers that it has – is an extraordinarily crude and wrong-headed way to achieve this result. No-one would propose a deliberately illegitimate chamber as part of a new constitutional settlement in a democracy. The passionate defence of the current House by so many merely illustrates once again what has been called the astonishing power of the actual.

But of course the argument is also flawed and exaggerated even in its own terms. Let us deal first with the endlessly-repeated fear that a democratic Lords would “threaten the primacy of the Commons”. Exactly what this meant was never fully explained but the basic argument is quite evidently wrong. The Commons’ “primacy” – meaning its status as the foremost chamber – is secured by a number of factors. The most important of these are: the Parliament Acts, which legally limits the powers of the Lords; the fact that only the Commons can vote supply, and that only the Commons can throw out a government, through a motion of no confidence and bring about an early General Election (under the Fixed Term Parliament Act 2011). All of these factors would remain after reform (if necessary, legislation could specifically state that the Parliament Acts applied to the new House). Moreover, the combination of rolling replacement of its membership with long terms of office in the upper chamber – meaning that the Commons could always claim the fresher mandate – plus the 20% appointed element, would stop the Lords claiming primacy even in terms of democratic legitimacy. The “primacy” point, then, is simply misconceived.

The fear of “gridlock” is the weaker and more rational, but still exaggerated version of this argument. Undoubtedly, as the Joint Committee observed (para 34), a reformed House would use its legal powers more, to an extent that we cannot predict with certainty. At least some of the conventions currently restraining it would drop away, or weaken. While the Lords would still be legally subordinate to the Commons, and have less of a democratic mandate, the Upper House would become more powerful in practice. It is curious, however, that this is so often characterised as a negative factor, given that ensuring a more powerful second chamber is one of the main arguments in favour of reform. What would be the consequences of a more assertive Lords? Assuming that no party ordinarily had a majority in the second chamber (a crucial condition for reform) it would mean that governments would have to negotiate and sometimes compromise in order to get their legislation through it, although presumably some version of the Salisbury convention in relation to manifesto Bills could be retained. Would this be so bad? Russell’s research clearly indicates that, while Government control of the second chamber can render it too weak and Opposition control too likely to result in deadlock with the first chamber, the option of no overall control is “the most effective option”, because a House “controlled by forces independent of government can help create a form of consensus politics which results in better political outcomes in the longer term.” (Reforming the Lords: Lessons from Overseas (OUP, 2000), (hereafter ‘LFO’) at 299 and 164). So where the government had a policy that was manifesto-mandated, or had cross-party support, or was very popular (such that the parties felt it imprudent to oppose it) it would still be able to get its legislation through, without much difficulty. But where both opposition parties opposed it, and the government could not convince the independent peers to support it, it would either have to wait a year and then use the Parliament Acts, or make concessions. Given that a non-manifesto policy opposed by both other parties would typically be one that was at best notionally supported by only around the 40-odd per cent of the electorate who voted for the government, it is not clear why this would be such a bad thing.

Such arguments, however, got little airing in the Lords reform debate. More opposition from the Lords was considered to be self-evidently bad, because it would inevitably lead to “gridlock” – again, not a term that was generally explained, but one which sounded like the government’s whole legislative programme being brought to a juddering halt.  That this would be the result of a more democratic Lords was indeed generally presented as a plain fact; thus Tory MP Nick Soames said, “The inevitable result of [the reform] will be gridlock and constitutional crisis” (Telegraph, 9 July 2012), while Vernon Bogdanor stated bluntly that “The upper House would become an opposing rather than a revising chamber” (JC Report, para 30).  Such statements however, are not factual propositions, but speculative conjectures and not ones supported by the overseas evidence. And it is here that the debate was at its most frustrating.

Meg Russell at the UCL Constitution Unit has done extensive and excellent research in this area, including in her Lessons from Overseas book (and see her evidence to the Joint Committee). And yet time after time, politicians, academics and pundits felt able to confidently to pronounce on what would happen in a system where the second chamber was largely or wholly elected, without citing even a jot of the widely available evidence which, broadly speaking, serves to refute the “gridlock” fear.  As the PAC crisply put it in its 2002 report: “Three quarters of the 64 bicameral legislature around the world have largely or wholly elected second chambers, and very few suffer from … difficulties [of gridlock]“. Countries which actually do at times suffer from legislative deadlock, such as the United States or Australia, have systems in which the two houses are co-equal, there being no mechanism like the Parliament Acts which allow one simply to override the other, or ones like Japan, in which a “super-majority” in the first chamber is needed to bypass opposition in the second. If the electoral system allows the Opposition to have a majority in the second chamber – as can happen in both the US and Australia – this also tends to aggravate the problem.   (The latter point is one reason why the principle of “no overall” control in the second chamber has commanded widespread acceptance for some time, and hence why (as the Government rightly proposed) the second chamber must use some form of PR for its electoral system). In other words, those countries with elected second chambers that do suffer from deadlock have quite different constitutional setups from the UK’s. However, many contributors to the debate appeared to feel no need to deal with the fact that the overseas evidence either did not support, or even contradicted the predictions they so confidently made. With respect, the same thing may be said about the comments of Nick Barber and Danny Nicol on this blog that adding democracy to the Lords would not enhance democracy in the UK because, if there are too many elected bodies “citizens will become uncertain about which bodies they should engage with, and may tire of the process.” One might expect at least a nod to the fact that a very large number of democracies have some form of elected second chambers; acknowledgment perhaps of a need to inquire whether the citizens of such democracies really are confused by this and therefore less engaged citizens.  Must the solution to this alleged problem really be an undemocratic chamber of Parliament?

The Lords does not need democratic legitimacy for the kind of work it does

This is one of the more subtle arguments against democratic reform of the second chamber. In its cruder forms, it rests on a straightforward misrepresentation of the work the Lords actually does, as when the Daily Telegraph claimed that, “The purpose of the Upper House is not to make law, but to ensure that the power of the elected chamber is kept in check and its legislation properly scrutinised” and that it was “a revising chamber devoid of legislative authority”. Such claims are simply false – and internally contradictory to boot: how does the Lords “keep in check” the power of the Commons except by revising – that is, amending its legislation – and by doing so, make law? With slightly more plausibility, it is sometimes instead said that the Lords are not “legislators” but “revisers of legislation, a task that does not require election to confer legitimacy.” One might dismiss such objections as pure conservative propaganda, until we note that similar things were said by Professor Sir John Baker of Cambridge University, who in evidence to the Joint Committee argued that the House of Lord’s role “does not require the sanction of the ballot box to give it legitimacy any more than the judicial role because the House of Commons can insist on the last word” (Report, para 18).

There are several possible arguments mixed up here, and they need to be teased out. Some appear to rest on the notion that “revising” legislation is just “scrutinising” it, which doesn’t require democratic legitimacy. Hence one parliamentarian argued that “The upper House is…like an audit commission examining legislation passed by Parliament…Selecting people to perform a scrutiny or audit role is very different from selecting people to produce legislation, or determine public policy and the shape of a Government (HC, Deb, col. 244, (January 21, 2003).  But this is a simple misstatement of the role of the Lords: select committees, academics, lobby groups, NGOs etc all scrutinise legislation, but only the House of Lords gets to change it.

In the face of this obvious fact, the argument sometimes changes to one a little closer to reality: that, while the Lords proposes changes to legislation, it always defers if the Commons doesn’t agree. This casts the Lords as some kind of advisory body, tentatively proffering its views on legislation, but immediately backing down if the government or the Commons doesn’t like them. As one peer put it, “when the Commons disagrees with our view, we always recognise, with no argument, that it has been elected and we have not, and we surrender”. (HL col. 666, (January 21, 2003 (Baroness Knight)). Similarly, a cross bencher, Lord Karkkhar recently argued that the current House “ultimately and always” bows to the “primacy” of the Commons.  However, it is simply not the case that while the Commons legislates, the Lords merely proposes revisions. The Lords does what the Commons does: it doesn’t create legislation (private members Bills aside), rather it assents to government Bills and amends them. The difference of course, is that the Lords amends legislation against the wishes of the government quite frequently, whereas the Commons does so extremely rarely. It was pointed out during debates on Lords Reform under Blair that of the first 639 whipped votes held under that government, the Lords defeated the government in 164 of them, that is, one in four.  Most recently, in the 2010-12 session the Lords inflicted 48 legislative defeats on the government,  compared to none in the Commons.  Of course the Lords  often give way, if their amendments are rejected by the Commons even once, but, in some cases, they do not, and pressure of time then forces the government to accept them. As Lord Forsyth put it: “People believe that this House has no powers, but it has the power to bring the whole of the Government’s programme to a halt if it chooses to do so” (HL Deb, col.244, (January 21, 2003). The Lords is therefore a more active legislative body than the Commons. And it is also not the case that Lords’ amendments are invariably concerned only with drafting or technical aspects (therefore not requiring democratic legitimacy). Well known examples from the last ten years or so of legislation in relation to which important legislative changes were forced upon governments by the Lords include: the European Parliamentary Elections Act 1999,  the Mode of Trial Bill (2000), the 2001 and 2005 Terrorism Bills and the Racial and Religious Hatred Bill 2006.  The Lords’ insistence in 2007 upon the extension of the new offence of corporate manslaughter to include prison and police officers was another notable example: this amendment of principle was rejected four times by the Commons and Government but finally forced upon them by the Lords (Corporate Manslaughter and Corporate Homicide Bill 2007).  And the Lords has continued its active role since the Coalition Government came to power: well known examples include the marathon struggle over the Parliamentary Voting System and Constituencies Bill and changes made to the Legal Aid and Health and Social Care Bills.  The Constitution Unit furnishes many other examples from the last seven years.

Once this is accepted, it becomes clear that the actual work of the Lords requires democratic legitimacy. Any body of “wise persons”,  academics, NGOs, professional organisations etc, could set themselves up into an advisory body and scrutinise government Bills, suggesting amendments to it. Many such bodies in effect do this, when they comment on Green or White Papers, or even draft legislation. This is of course a useful process. However, were such a body suddenly to announce that it had the right to reject or change provisions in legislation carried by the Commons–an absolute right in the case of secondary legislation—there would naturally be an outcry at its illegitimate arrogation of legislative power. Such a body would have no more right to alter legislation than the law school of which I am a member would have the right to amend a Criminal Justice Bill, claiming as its legitimacy to do so, the undoubted collective expertise and independence of its members.

The final variant of the argument considered here is the comparison of the current House of Lords with the judges: both, it is said, are not elected, and yet both wield considerable powers over legislation; since we accept one, we should accept the other (see e.g. the recent comments of Professor Baker above). This argument is flawed because it pays no regard to the quite different roles of the judges and that of the second chamber of Parliament. In comparison with the enormous and possibly still legally unlimited power wielded by Parliament, the judicial branch exercises only a relatively narrow band of power, which is ultimately either given to it by Parliament (in the case of statutory interpretation) or confined to issues that Parliament has acquiesced in leaving in judicial hands (the common law). Even in relation to their extensive powers under the Human Rights Act (HRA), the courts remain bound by unambiguous incompatible primary legislation; importantly also, these powers were explicitly given to the courts by Parliament and may be removed by simple repeal of the HRA. Moreover, in making their decisions, judges are not called upon to exercise their own unconfined judgment, still less their party-political views. They are not asked to decide, de novo, what they think best for society. The House of Lords as a legislative body is, precisely, asked to do this: to bring peers’ individual political views to bear upon issues such as foundation hospitals, fox-hunting, liability of the police for corporate manslaughter, cuts to legal aid and changes to the governance and structure of the NHS. Peers thus exercise political power in a quite different way from the judiciary: they are asked to offer a view on the same issues as the Commons, issues that are the routine stuff of political conflict.

The hybrid nonsense.

Nick Barber suggests that hybrid models in general are of a “low standard” and some hostility towards the proposed hybrid model in the Bill was evident during the reform debate. Such arguments fall into two main strands considered below.

“Hybridity is incoherent”

The first main argument against hybridity is the so-called “Strathclyde paradox (after Lord Strathclyde, former Conservative Leader in the Lords): “If election is so good, why should the public not elect all our Members? If it is bad, why elect any at all?” This piece of schoolboy logic has gained considerable support.  Lord Cunningham’s evidence to the Joint Committee was to this effect, arguing against what he termed the “the muddle in the middle”: “You cannot be half democratic. You have to be either democratic or not” (para 96). Such arguments are flawed because they rests upon the false premise that electing members is straightforwardly either good or bad. But reform of the Lords must be judged against more than one criterion. Russell’s study of second chambers overseas led her to propose three crucial factors (LFO, pp. 163-164 and 250-254), which were adopted by the PAC in its 2002 report: distinct composition; perceived legitimacy; adequate powers. Parliament’s previous Joint Committee on Lords Reform expounded the distinct composition point to include principles of no domination by one party, (relative) independence from party and technical expertise of the sort that the current House offers ((H.L. 17 H.C. 171 (2002-03), para 3). If these are borne in mind, it becomes apparent that election to the second chamber has some advantages and some drawbacks. Election is “good” in terms of legitimacy: if there were to be no elected members, this would prevent the House from having sufficient democratic legitimacy to assert itself effectively against the Executive-dominated Commons. But the issue does not rest solely upon legitimacy. Once we recall the “distinctiveness” factors just noted, we can see why we might not want all the chamber’s members to be elected, desirable though this would be in terms of legitimacy. Such a course of action would preclude the appointment of non-politicians to the House, who would add expertise, independence and thus distinctive value to it. Having different classes of members – in other words a hybrid House – ensures that these different requirements can all be met.  In contrast, the so-called Strathclyde paradox only has any force if it is assumed that reform of the Lords is to be judged by one criterion alone.

“Hybridity would be unstable”

The other objection, originally voiced by Vernon Bogdanor, was that a House with a mixture of unelected and elected members would be unstable, with the unelected members being stigmatised (“who elected you”?) if they frustrated the will of the elected ((Reform of the House of Lords: a Sceptical View’ (1999) 70(4) Political Quarterly 375).  Fortunately, this argument now appears to be losing traction: it did not appear to trouble the Joint Committee unduly, and indeed, clearly has little force in a chamber with 80% elected members, who could never be outvoted by the unelected members. (This did not stop Lord Cormack complaining mysteriously to the Joint Committee that the Government’s Bill “would create a situation where the will of the elected could be frustrated by the non-elected” (para 96), without explaining how the 20% appointed membership could outvote the 80% elected). Unelected members would have to side with elected members in order to win a vote so there would never be a clear division between the two groups. In the odd instance in which the votes of appointees acted as a tie-breaker as between the votes of the divided political members, the public would probably view with relief the sight of the squabbling parties having the issue resolved by the dispassionate intervention of independent experts. Russell finds little or evidence either from overseas or the current Lords that having a mixed membership in this way would cause problems (JC, para 105).  Again, however, such evidence was rarely cited. Instead, parochialism reigned, and Lords reform once again languishes in the long grass.

The writer gave evidence to the Joint Committee on Reform of the House of Lords. 

Gavin Phillipson is a Professor of Law at Durham University.

 Suggested citation: G. Phillipson, ‘Lords Reform: why opponents of the Government Bill were wrong’ UK Const. L. Blog (26th September 2012) (available at http://ukconstitutionallaw.org).

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Sebastian Payne: Constitutional Change and the ‘Principle of Unripe Time’

In a recent Whitehall farce the deputy Prime Minister Nicholas Clegg urgently recalled an advance copy of a speech circulated to the media so that it could be amended to delete words that were causing a stir. The extract in question was the following, “Continued trouble in the economy gives the bigots a stick to beat us with, as they demand we ‘postpone’ the equalities agenda in order to deal with ‘the things people really care about.’ As if pursuing greater equality and fixing the economy simply cannot happen at once.” (See The Guardian, 12.09.2012, p11)  The equality issue here was legislating to allow for same-sex marriage. The offending words, or word, was the description of the opponents of such a law as ‘bigots’. Act 1, scene 3 of the farce has the deputy Prime Minister’s spokesman saying, “This was not something the deputy prime minister has said. It was not something he was ever going to say.”

Whether the opponents of same-sex marriage are bigots or not depends upon the reasons for their objections. What attracted my interest in this incident was the observation, “As if pursuing greater equality and fixing the economy simply cannot happen at once.”  Mr Clegg is correct in identifying this particular objection as a false dichotomy. After all, different government ministers deal with the economy and law reform. Management of the economy is not primarily dependent upon legislative activity requiring a monopoly of the legislative timetable. There is also a distinct difference between objections to reform that focus on the substance of the proposals and objections based on timing. My own experience of arguing in favour of a written constitution is that objections of the latter type are more common than those based on substance. In discussion with one famous constitutional lawyer, her comment on such a reform was, “It’s not going to happen and that is that.” In a panel discussion in front of an international audience, my advocacy of a written constitution for the UK was responded to by an eminent constitutional lawyer with the words, “I do not see a constitutional moment”.

Reading this summer Eric Hobsbawm’s autobiography Interesting Times (Abacus, 2003) I was amused to come across the following passage about Cambridge University as he first encountered it as an undergraduate in the 1930’s and subsequently as a don,

 “The Cambridge past, like the ceremonial fancy-dress past of British public life, was not, of course, a chronological succession of time, but a synchronic jumble of its surviving relics. The glory and continuity of seven centuries were supposed to inspire us, to assure us of our superiority and to warn us against the temptations of ill considered change…The main contribution of Cambridge to political theory and practice, as described brilliantly by the classicist F.M.Cornford in his little squib Microcosmographica Academica (1908) was ‘the principle of unripe time’. Whatever anyone proposed, the time for doing it was not yet ripe. It was powerfully reinforced by the principle of “the entering wedge”.” (page 103)

It is interesting to reflect on the dynamics of constitutional change especially so in the UK where change is often dragged out across the centuries. We appear to have rationalised and institutionalised the snail’s pace of reform by calling it ‘evolution’.

Two striking cases of failure to deliver constitutional reform are in relation to the House of Lords and on war powers. In both cases there has been cross party agreement in recent years that reform is required. With Lords reform there has been a failure to find an acceptable model of reform which those who want no change at all have been able to exploit. This failure has been a product, I would suggest, of offering proposals that would change the composition and basis for membership of the upper chamber but have failed to address the broader systemic consequences of such change. A case of more work being needed rather than less. With reform of the war powers there have been three substantial select committee reports on this since 2004 and a shorter though still significant select committee report in May last year from the Political and Constitutional Reform Committee. Since the May 2011 Report there have been two further very short reports (9th and 12th Reports of Session 2010-12) from the same committee urging the government to act. Notwithstanding the Foreign Secretary’s commitment given on the 21st March 2011 in the House of Commons to, “enshrine in law for the future the necessity of consulting Parliament on military action” the government’s resolve to do so appears to have evaporated. The 12th  Report, whilst welcoming the inclusion in the revised Cabinet Manual of a reference to a convention to consult Parliament, expresses dismay at the overall content of the letter received from the Minister for Political and Constitutional Reform, in particular the following passage,

 “As the Government has already committed to observing the convention, the case for urgency has not been established, and I do not therefore believe it would be appropriate to set out a fixed timetable for progress on this matter. I understand that this will not satisfy the Committee’s concerns.”

 Major constitutional change does occur in the UK so the question remains why radical change sometimes happens and in other instances proceeds in dribs and drabs or not at all. If there are no hard and fast laws of the social world that determine what will be the precursors to constitutional change presumably there are certain factors likely to lead to it. Revolution is one such factor but arguably the very nature of revolution is constitutional change, which pushes the causal question one step back rather than answering it. In relatively settled societies such as the UK constitutional change appears to result from long standing demands or grievances which have emerged as a coherent programme and have coincided with the political opportunity to implement them. The Labour government of 1945 is one example and, notwithstanding criticisms of the coherence of the programme, the 1997 Labour government is another.  The Belfast Agreement is another interesting example of change through mediation post-conflict, a solution achieved through the relevant parties acknowledging stale-mate. What appears to be the problem with the present Coalition government’s ambitions for change is that there are three groups involved, the left and right wings of the Conservative party and the Liberal Democrats. They are not agreed between them as to what is desirable and being a more fragile coalition than was at first apparent, there is not the political authority to impose the constitutional change that was apparently part of the government’s programme. Advance, centre stage, the ‘unripe moment’ accompanied by the ‘entering wedge’.

Sebastian Payne is a lecturer in law at the University of Kent and co-convenor of the UK Constitutional Law Group.

 Suggested citation: S. Payne, ‘Constitutional Change and the ‘Principle of Unripe Time’’ UK Const. L. Blog (23 September 2012) (available at available at http://ukconstitutionallaw.org).

 

 

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Alan Trench: Welsh byelaws and the UK Supreme Court

At the end of July, we learned that the UK Attorney-General has referred the first Act of the National Assembly passed since the March 2011 referendum to the UK Supreme Court. There’s news coverage of this from the BBC here, and a good analysis from Toby Mason of BBC Wales here.  This is the first time that any devolved legislation has been referred to the Supreme Court before receiving royal assent; it is the first time the UK Government’s law officers have challenged the legal competence of devolved legislation; and it is the first time that legal challenges involving Welsh legislation have been brought.  Any one of those would make it a noteworthy event indeed.  To find all three of them in one place – coupled with a significant point of law – makes it a case of rare interest.  The latest information is that there will be a hearing in early October.

This post will discuss what the case is about, how it comes before the court and what the constitutional political issues at stake are, as well as the black-letter legal ones.  It is a case of interest that goes far beyond Wales, because although there are significant differences between the Welsh arrangements and those for Scotland or Northern Ireland, the case also raises some rather broader questions about the legal working of devolution.

This is not the first time Wales has broken new ground in challenging how devolution works, of course.  Most notably, Wales was the first jurisdiction to refuse consent to Westminster legislation affecting a devolved function under the Sewel convention – aspects of the Police Reform and Social Responsibility Act 2011.  Perhaps the more provisional, evolutionary nature of the Welsh arrangements mean that it is more prone to test the legal aspects of its devolution arrangements than Scotland or Northern Ireland, where they are more clearly established.

The legal background 

The bill that the Attorney General is challenging is the Local Government Byelaws (Wales) bill, which was passed by the National Assembly on 3 July 2012.  The Byelaws bill is a pretty dull piece of legislation.  Its main effect is to enable Welsh local authorities to make byelaws under a number of specified powers for places like public conveniences, sea-side promenades or private swimming pools, without requiring that these be ‘confirmed’ by an approving authority.  Up to now, and still in England, byelaws have to be made under specific statutory powers, with procedural requirements including local advertising.  They must then be approved by a confirming authority, historically the Home Secretary, before they can come into effect.  To secure that approval, it is usually necessary to use established model byelaws, or else to make a strong argument why something different is needed and why it is appropriate in a particular case.  Welsh byelaws would still need to be limited to specified purposes, be consulted on, and advertised in the local area; but many of them would not need approval by another level of government.

In the case of the Byelaw bill, the power to make byelaws under the various statutes involved – the Public Health Amendment Act 1907, the Public Health Act 1936, the Highways Act 1980 and more – was passed to the National Assembly by the ‘jumbo’ transfer of functions order in 1999.  These powers were passed unconditionally, and by virtue of paragraph 30 of Schedule 11 to the 2006 Act have now passed to the Welsh Government.  However, the power for local authorities to make byelaws, which is set out in section 236 of the Local Government Act 1972, provides that confirmation of byelaws is a matter for concurrent action by both to be the Assembly (meaning now the Welsh Ministers) and the Secretary of State.  Thus, to the extent that the Byelaws bill alters the way section 236 LGA 1972 works, it affects a function of the Secretary of State.

Schedule 7 to the Government of Wales Act 2006 provides that devolved legislation can only affect pre-commencement functions of UK ministers like the section 236 bye-law confirming power if it does so only incidentally or consequentially to its main purpose, or if the Secretary of State gives her consent.  Consent has not been given in this case.  In the Attorney General’s view, clauses 6 and 9 of the Byelaws bill therefore transgress on UK ministers’ powers, so are beyond the powers of the National Assembly.

Referring a bill to the Supreme Court

The Attorney General has never before used his power to refer a devolved bill to the UK Supreme Court, though he has a similar one under each of the devolution settlements (under section 33 of the Scotland Act 1998 and section 11 of the Northern Ireland Act 1998, as amended by sections 27-8 of and Schedule 7 to the Justice (Northern Ireland) Act 2002) .  This is therefore an unprecedented step, and takes us into unknown territory.  When issues have arisen with devolved legislation in the past, they have been resolved quietly behind the scenes – perhaps by amending the legislation, perhaps by adjusting the devolution settlement to ensure the bill is within competence.  As all devolved legislation needs a declaration whether it is within the legislative powers of the parliament involved from both the minister or other member responsible for the bill, and the presiding officer, it is highly unusual for a bill to reach this stage with any major question about its legal competence.

In this case, both the presiding officer and the Minister for Local Government and Communities stated that they considered the bill to be within the Assembly’s legislative competence.  The explanatory memorandum makes no reference to the issue about confirming powers at all, and indeed implies that confirmation was simply a matter for Welsh Ministers, with no obligation for them to act in conjunction with UK ones at all.

A reference means that the case goes straight to the Supreme Court, without any earlier hearing in the High Court or Court of Appeal.  In the Welsh case, the procedure is set out in Schedule 9 of the 2006 Act.  The procedure bears some resemblances to the procedure for an advisory opinion of the European Court of Justice, which is quite a novelty for lawyers from the UK, and has never been used before.  But the lawyers will need to work out what to do quite quickly, as a hearing is apparently due to start on 9 October.

Functions of Ministers of the Crown

It has been increasingly clear for some time that the protection of the position of Ministers of the Crown was likely to be a serious brake on the exercise of the National Assembly’s legislative powers under Part 4 of the 2006 Act.  Many executive functions were transferred to the National Assembly in 1999 (by what is known as the ‘jumbo’ transfer of functions order), and a few others have been since.  Those functions were then transferred to the Welsh Ministers when the 2006 Act came into effect (by paragraph 30 of Schedule 11 to the 2006 Act).  But there remain a good many residual UK functions, reflecting the history of administrative entanglement between England and Wales – and the defensiveness of some Whitehall departments about devolution.  Those arguments were re-fought when the 2006 Act was being framed, and one key safeguard was the block on legislation affecting functions of ‘ministers of the Crown’.

One of many problems with that safeguard is that no-one knows quite how far it reaches.   There is no list of functions of ministers of the Crown, and producing one would be a huge task that would inevitably produce mistakes.  But that history of administrative entanglement goes back a long way (remember: the Welsh Office was only created in 1964), and has a powerful effect.  And UK Departments have been keen to maintain control over important functions like planning for big energy projects or defence installations, as well as safeguarding water supplies, business regulation and the common law of England and Wales.  That has usually been done by express provision, rather than by relying on a general saving clause as here.

It is worth noting that the position for Wales is rather different from that for Scotland.  There, following an opinion of the Attorney General, the UK Government has accepted that it is within the power of the Scottish Parliament to legislate for matters that affect UK ministers, provided the legislation is within Holyrood’s legislative competence – i.e., that the legislation does not ‘relate to’ a reserved matter.  There is no general saving for UK ministerial functions, though there are rather fewer of them relating to devolved functions in Scotland.  This is documented in Devolution Guidance Note 15, which also emphasises the need for consultation before Holyrood legislates in ways that affect UK ministers.

It is also worth noting that a ‘reserved powers’ model of conferring legislative powers on the National Assembly would not solve this problem.  Nor would creating a separate Welsh legal jurisdiction (though that might have an effect on it).  The problem arises because of the relationship between UK executive functions and devolved legislative powers, not the scope of those powers.

The politics of this case

In some circumstances, constitutional litigation can happen more or less by accident.  Even years after legislation is passed, a private litigant can raise the question of whether the Act was in fact legally competent.  That does not appear to be the case here.  I understand that the Wales Office tried repeatedly to draw the Welsh Government’s attention to the problem, and to suggest what changes they needed for the Secretary of State to be able to give her consent (which she was willing in principle to do).  The Welsh Government failed to respond, in circumstances that suggest this cannot have been accident or oversight.  But legally speaking the Welsh Government’s position here is weak, if not hopeless; the legislation affects a function of a minister of the Crown, consent has not been given, therefore the legislation is beyond the Assembly’s powers.  The Welsh Government seems to be walking into a judgment that what would have been the Assembly’s first Act is void.   The only hope for its argument might be if it could show that the formal protection of the UK Minister’s confirming power had in fact fallen into disuse, but even if this can be proven it is hard to see how it helps given the clear position under statute.

Equally, this analysis means that the UK Attorney General had little choice but to refer the bill to the Supreme Court.  The legal position is quite clear.  If he failed to do so, he would have been in dereliction of his duty; he would, effectively, be conniving at the National Assembly passing legislation it had no power to pass.  His legal role means that not only does he have the power to make such a reference, but in these circumstances he has to do so.  Even if he did not, it would not solve the problem – the legal flaw in the legislation would remain, and (for example) any person aggrieved at his or her conviction under a bye-law made under the new system would be able to challenge their conviction.  In that sense, the power the Attorney General has (and his exercise of it) are ways of bringing matters to a head sooner rather than later, and his use of it is an appropriate response to pretty aggressive tactics from the Welsh Government.  The only surprise here is that the Attorney General waited until the last day he had to bring this challenge (there is a 28-day limit), rather than doing so promptly after the bill was passed.

Why might the Welsh Government have drafted and promoted legislation that was beyond the Assembly’s law-making power, and handled matters so as to invite such a legal challenge?  That is a question best directed at the First Minister or Counsel General, of course.  Two reasons suggest themselves why they might do so, though.

The first is that they think there is just a chance that the Supreme Court will find in their favour, and want to see how much leeway or support they can get from the court.  In the Axa case, Lord Hope – inaccurately, in my view – said obiter that the ‘essential nature of the legislatures created’ for Wales, Scotland and Northern Ireland were the same in each case (at paragraph 43).  That may have given them an (unjustified) degree of optimism in what the Court might say, given that these constraints do not apply under the Scotland or Northern Ireland settlements.  It would certainly look like an avenue worth exploring, even if the chance of success is limited.

The second is that they know they are going to lose, and want to use the Court’s judgment to underline to the wider public just how limited the new legislative powers of the National Assembly are.  There could be no more powerful sign of that than that the first, innocuous Act of the Assembly is in fact blocked.  After all, there are more contentious bills in the pipeline – notably the Human Tissue bill.  That in turn may serve a wider political purpose, of making it hard politically for the Secretary of State to refuse consent to legislation in future.  It may even secure some guidelines from the Court about how the Secretary of State should approach the giving or withholding of consent, rather than simply leave it to the Secretary of State’s untrammelled discretion.

In that context, it is worth looking at the forebears of the provision that legislation affecting ministers of the Crown needs consent.  Two spring readily to mind.  The Northern Ireland Act 1998 creates three sorts of legislative powers: ‘excepted’ and ‘reserved’ matters, which are beyond the Northern Ireland Assembly’s competence, and ‘transferred’ ones, which are the rest.  Reserved matters can be devolved by a relatively simple order, so they are candidates for future devolution (though that has not happened in practice), and they may also be the subject of devolved legislation with the Secretary of State’s consent.  In the early years of the Assembly, this power was used relatively often, mainly when criminal offences were being created in connection with devolved functions (something not needed under Part 4 of the 2006 Act; see section 108(5)).  With the devolution of justice and policing, the need for that seems to have diminished considerably.

The other model is the more general inspiration for the 2006 Act – the Scotland Act 1978.  That never came into effect, of course, but it provided for a ‘defined powers’ model of legislative devolution.  It also gave extensive powers to the Secretary of State for Scotland (part of the UK Government, not the devolved administration) to approve legislation passed by the Scottish Assembly before that legislation came into effect.  That would have turned the Secretary of State into a Viceroy in all but name.  Such powers would have been very problematic – had the 1978 Act ever come into effect, it would either have stopped devolution working, if used, or otherwise fallen into disuse.  The danger in Wales is that the power of the Secretary of State to consent to legislation affecting ministers of the Crown is sufficiently broad that, although in form it safeguards the legal functions of UK minsters, in practice it operates as a discretionary veto on what the National Assembly may do.

Conclusion: a bad place to be

The fundamental issue here is that the March 2011 referendum creates a strong public expectation that the National Assembly will have power to legislate for the twenty devolved ‘subject areas’ set out in Schedule 7.  Formal niceties about protecting UK ministers’ functions were no part of that.  Undermining the effective working of that model of devolution will risk de-legitimising that model of devolution, and raise questions about what should happen instead.  Given the strength of public support for devolution, that is a dangerous course for all involved.  Even if the Supreme Court’s decision about the Byelaws will does no more than confirm that the Act is beyond the Assembly’s powers for want of the Secretary of State’s consent, it will both increase political tensions between Cardiff and London, and make a significant step forward in relying on the judicial resolution of difficult points in the devolution arrangements.  There are serious reasons to doubt whether the constitutional framework of devolution as it presently operates can withstand that.

Alan Trench is honorary fellow at the University of Edinburgh, honorary senior research fellow at the Constitution Unit, University College London, and author of the blog Devolution Matters.

Suggested citation: A. Trench, ‘Welsh byelaws and the UK Supreme Court’ UK Const. L. Blog (17 September 2012)(available at available at http://ukconstitutionallaw.org).

 

Update (4th October 2012): 

Since I wrote the post above, the Welsh Government has released a collection of papers and correspondence regarding the Byelaws bill and the court challenge.  They go back to September 2011 and show that the Welsh Government considers that the National Assembly has power to remove functions of ministers of the crown through its power to alter such functions when that is incidental to and or consequential on other, intra vires, provisions in Acts of the Assembly.  We will see what the Supreme Court makes of that line of reasoning.  As the removal was central rather than incidental to the statutory scheme in the bill, it is hard to see how the argument is likely to succeed.

The papers released also show that, although the Welsh Government was well aware of the UK Government’s view that the Assembly had no powers to legislate without the Secretary of State’s consent, it did not seek to make the Assembly aware of that problem.  Nor did it ask for consent from the Secretary of State, even when that was offered subject to limited amendments to the bill.

The documents released can be found on the Welsh Government’s website here, and I’ve written a more detailed post about it on Devolution Matters, here.

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Filed under Devolution, Wales

David Mead: Talking about dialogue

There was much talk in the early days of the Human Rights Act 1998– and indeed more recently too – by commentators such as Francesca Klug, Richard Clayton QC, Tom Hickman and Aileen Kavanagh of whether the structure in section 3 and section 4 would facilitate what has become known as ‘dialogue’. This summer’s issue of Public Law contains an interesting survey by Po Jen Yap of academic thinking on the topic. As many will no doubt know, the dialogic model was first propounded by Peter Hogg and Alison Bushell in the context of the Canadian Charter as a half-way house between legislative and judicial supremacy. Their research showed that strike down decisions produced a legislative sequel in the vast majority of cases. I don’t propose discussing the normative claims of the dialogic model, nor the views of those who dispute its application and relevance. Instead my focus is its possible relevance to the UK, alongside some wider issues relating to the role of Parliament in the process of guaranteeing rights.

The dialogue model, under constitutional bills of rights, provides a plausible framework for constitutional adjudication between on one hand the extremes of legislative dictat (and the flaw of ballot-box majoritarianism) and on the other of conferring on unelected and unaccountable judges the power to countermand decisions bearing the imprimatur of democracy. In very brief terms, it assumes the legitimacy of the courts’ power to invalidate legislation but if a judge does decide a statute is invalid, it asserts that legislatures have a choice of responses: they might insist that its say, its legislation, be upheld; they might moderate the terms of the rights-violating law in question along lines ‘suggested’ by the judgment; or they might accept the courts as having had the final word. In each though, parliamentarians must heed what the courts have said on the question of compatibility. There is thus dialogue, a constitutional conversation, between the two arms – about the content of a right, about its scope or reach, about its applicability to given facts, or about legitimate intrusions upon rights.

Though clearly different – since in the UK, a court cannot strike down – it was thought that a court declaring legislation to be incompatible would ignite parliamentary debate and response. From their study of 65 cases in the period 1983–1994, Hogg and Bushell concluded that about 80 per cent produced such a response within two years. The problem is that the comparison simply does not stack up. Much of the original theorising about dialogue had been prompted by the question – worry, perhaps? – of who should have the last word. Canada was different to the United States in that the final word did not necessarily rest with the Chief Justice and judges in Ottawa. Provincial or federal legislatures have always been free to reject judicially-imposed meanings about scope or limitations by re-enacting the impugned law (with a sunset provision of five years) using the ‘notwithstanding’ provision of s 33. In the USA, such a consequence would be impossible – a far more cumbersome constitutional amendment is the only alternative. In Canada then the presumptive last word rests with the judiciary. Taking a recent example, if politicians want to overturn the decision of the Supreme Court of British Columbia invalidating the criminal prohibition on physician-assisted death, they must now positively act. Under the HRA, the opposite holds true: a declaration of incompatibility has no effect on the validity, operation or effect of legislation whenever passed. Westminster needs do nothing and its will prevails still. This is, as Conor Gearty out it, the beauty of the Human Rights Act: just as the judicial appears about to triumph, the political re-asserts its control.

All that only obtains if a court decides to declare legislation incompatible. If it decides instead to rely on its power under s 3 to ‘read and give effect’ to legislation that is patently incompatible then Westminster does need to act to return to the status quo ante. If it does not – or, as I would contend, does not realise it needs to – then the effective last word is in the hands of judges, and not simply as a means to deal with the instant case and for those litigants before the court, and not simply prospectively either. The courts have ‘discovered’ the true meaning of a section or a word by altering its clear meaning, denying Parliament’s clear instruction in the original Act (though arguably, of course, giving effect to its clear instruction in the Human Rights Act itself). It is a welcome sign though (see the AHRC/Oxford Human Rights Hub research Parliaments and Human Rights: Redressing the Democratic Deficit) that Parliamentary involvement in human rights protection is on the up, at least through the medium of JCHR reports being referred to during debates. There is some concern that this is not really parliamentary but a small cadre of either committee members or interested die-hards, and that the Commons is far less active than the Lords. There is evidence too that Parliament is reacting reasonably well to s 4 declarations: at the AHRC two-day seminar discussing that research, Jeff King discussed his research findings. Out of 19 s 4 declarations to date, 14 have produced some response, a hit-rate slightly under the 80 per cent reported by Hogg and Bushell.

One would expect declarations under s 4 to be followed up in Parliament. They are a clear judicial sign that something is rotten in the state of human rights. Ministers will have been joined to proceedings by virtue of s 5. It’s also likelier that declarations of incompatibility will make the news whereas transformative readings under s 3 tend not to – or not in the same contextualised way and to the same extent. A non-scientific, non-exhaustive study of contemporaneous UK newspaper reporting of key human rights cases, using Nexis, does seem to bear this out.  There were only three that covered the House of Lords judgment in Mendoza (one in The Times and two in The Daily Telegraph respectively) and all three were little more than Law Reports or summaries. None make any explicit reference to the wide use made of s 3. Similarly, the rape shield decision in R v A in May 2001 made the news only in The Guardian, The Independent and The Telegraph (though there were also a couple of newspaper pieces referring to it later in the year as the HRA approached the  first anniversary of coming into force). By contrast, the House of Lords decision to hold provisions of the Anti-Terrorism, Crime and Security Act 2001 incompatible with the ECHR, in R v A and Others, produced over 120 newspaper hits for the single week from 17-24 December 2004. Clearly, not all of this coverage was concerned with the intricacies of the scheme in ss 3–4, given the importance of terrorism as a narrative, but it is also clear simply from a cursory look that there was certainly much more media discussion surrounding the wider constitutional framework than was ever the case in the reporting of any of those major s 3 cases.

It is instructive too that all the focus is on s 4. There is not so far as I can tell, any work comparable to Jeff King’s being done for the interpretation cases under s 3 for the simple reason that they are difficult to track down. There is nothing similar to Ministry of Justice’s annual report on human rights judgments, including s 4 declarations (the most recent of which was published this week), or the follow-up work of the JCHR. Indeed if one were to read the former, there’d be no way of knowing how widely used – or not – the new interpretative power is. There is simply no mention in the JCHR 2009/10 guidance that ministers inform them, let alone keep track themselves of how s 3 cases have fared. It is hard to see why Parliament, acting either by MPs individually or through the collective strength of the JCHR, should be any less inclined or any less entitled to know, as Lord Millett in Mendoza put it (at [70]), that cat is being read as including cat or dog than they are to know that in Morris discriminatory aspects of the Housing Act 1996 relating to those who became unintentionally homeless were held to have breached the ECHR. The only collation of s 3 readings that I know of in the public domain is that contained in the appendix to Lord Steyn’s speech in Mendoza, way back in 2004. The problem for practitioners, academics and politicians is simply keeping abreast. Given that s 3 can arise and be used in any legal context, it would mean reading the judgments of any court or tribunal (not simply, for s 4, the High Court and above) hoping to spot one. Of course I do not do this – I doubt anyone does – but it does mean I spend a fair bit of time each week skim reading summaries from Lawtel, or relying on colleagues to let me know if one crops up in their own areas of expertise. I keep a running folder in my email inbox – O v Crown Court at Harrow, anyone, reading down provisions relating to bail?  The same is true of the use of s 19. This was used most recently when the House of Lords Reform Bill was introduced in early July as a result of the non-extension of the franchise to prisoners – in clear breach of Hirst and Scoppola. It took a discussion on the UK Human Rights blog to establish that this was not the second time the power had been used but the third though, as Elin Weston pointed out, it arose for the Local Government Bill 2000 (because of the ban on promoting homosexuality in schools) only when the Bill reached the Commons. The only time it had previously been used on presentation to Parliament was the Communications Bill of 2003, given its absolute ban on political advertising. Maintaining and publishing a database of this sort of information is exactly the role of government, surely?

We can see not only this lack of transparency but also a wider problem associated with the use of s 3 in the House of Lords decision in Hammond in 2005 where the procedure for review of mandatory life sentences post-Anderson (in the Criminal Justice Act 2003) were effectively re-written. I am guessing that those with an interest in criminal justice/penal policy might have heard of it – few others will have done. It certainly doesn’t appear in the indices of any of the major texts on the HRA. Despite the legislation being clear – these were to be ‘determined by a single judge of the High Court without an oral hearing’ – the House decided it should be read subject to the following implied condition: a High Court judge has discretion to order an oral hearing, where such hearing is required to comply with a prisoner’s fair trial rights under Article 6. What is intriguing about Hammond is that it did not make it into the list of section 3 readings in the Lord Chancellor’s Review of the Implementation of the Human Rights Act in July 2006 (p 17). This might be because, in a very technical sense it was not a s 3 case at all – the adopted reading had been agreed on by all parties. Correspondence with the DCA indicated the list was drawn up on counsel’s advice bearing that view out… but that supports the case being made here about transparency. Neither an interested lay reader nor an MP worried about Parliament’s carefully crafted words being flouted (reversed in fact) would ever have known of it. That must be a concern. The greater concern though stems from that agreement between counsel. As Lord Hoffmann noted ([29]), the House was not being asked to decide whether such a bold exercise in ‘interpretation’ was permissible. Only two years before, in 2003, Parliament had made its views very clear – clear one must assume in knowledge that the ECHR protects fair trial rights (though I have not gone back to Hansard in writing this piece). There is a real problem with our constitutional fundamentals if, with the consent of the other side in lis pendens with an obvious vested interest in a favourable outcome, the executive is able to have, using Lord Millet’s words again, black read as including not black. That risks subverting the internal boundaries between the two political arms. Does it not offer an incentive to ministers to agree to term X on the floor of the House or in Committee, knowing when it is argued in the courts – at the instigation no doubt of someone who stands to lose by term X being applied – they will simply succumb and agree to term Y instead? There are grave difficulties with the constitutional suitability and propriety of such a course – and who knows in how many other cases it has occurred?

This piece has highlighted some problems with the way sections 3 and 4 work and interrelate. There is a real need for some institutional and mechanical tinkering with the HRA’s scheme of protection, if it is to remain an aspirational template for the parliamentary model. Most obvious is to see that the threat from section 3 is as great as from section 4, albeit of a different flavour. Courts should not be able to allow the scheme to be subverted in the manner of Hammond. Irrespective of possible agreement between counsel, s 5 might be amended so that it covers not simply the Crown for s 4 but (as occurred in Wilson (No 2) in relation to the use of Hansard) entitles the Speaker too to intervene whenever a court is considering using s 3. Secondly, sufficient resources should be available to create a live database of s 3 readings, populated with data from courts themselves. Thirdly, it should be a requirement under the HRA that a responsible Minister report formally to Parliament what course of action is planned in response to a declaration of incompatibility. That would make more concrete the recommendation of the JCHR in 2009/10 in its Guidance for Departments that ministers report to it within 14 days. It would thus also complement the requirement in section 19 during the legislative process, though as an aside an amendment there would ensure on-going statements during passage and amendment not simply on one day, at second reading and not simply for government-sponsored bills either. Last, either through s 19 or otherwise, there needs to be an ongoing commitment by the executive to consider the human rights implications of legislation it proposes and to make parliament aware of its concerns and its position. This means much more than that the minister simply make a bland statement one way or the other. Change does seem afoot here; we might contrast the relatively lengthy discussion of relevant ECHR principles in the Explanatory Notes to the Defamation Bill with the paucity of analysis in the those accompanying SOCPA 2005 assessing the Strasbourg position on demonstrations around Westminster. This tallies, as Elin Weston pointed out in the blog discussion above, with Ken Clarke’s indication in evidence to the JCHR that he would expect to see free-standing Human Rights Memorandums with perhaps greater regularity (q 32). More food for thought for the Bill of Rights Commission perhaps?

David Mead is a Senior Lecturer in Law at the UEA Law School.

Suggested citation: M. Mead, ‘Talking about dialogue’ UK Const. L. Blog (15 September 2012)(available at http://ukconstitutionallaw.org).

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Filed under Comparative law, Human rights, Judiciary, UK Parliament

Carol Harlow: How not to do things with rules

For many years now, administrative lawyers have been puzzling over the relationship of rules and discretion. When is a rule a rule? Does the term properly cover ‘quasi-legislation’ or what is now generally called ‘soft law’? In his seminal study, Discretionary Justice (Urbana, Louisiana State University Press, 1969), KC Davis argued that rules of this type should be used to structure and confine administrative discretion. The consequence would be greater transparency; light would be cast on some ‘dark and windowless areas of administrative law’. The managerial style of public administration since the 1980s has taken the technique very much further. Public administration is now dominated by various forms of rule, a development hastened by the greater use of ICT by government departments. Policy statements, government papers, guidance and other information is now widely accessible on government websites and what is not openly published is often made available through requests made under the Freedom of Information Act 2000.

Generally benign, these developments have brought their own problems to which the over-burdened and generally unloved immigration service has been particularly prone. It is not so long since a previous Home Secretary declared his department ‘unfit for purpose’ and immigration case law regularly reveals scenes of great confusion, with policy changes introduced so rapidly that even officials cannot keep up (see eg R (Rashid) v Home Secretary [2005] EWCA Civ 744). The recent Supreme Court case of R (Munir and Rahman) v Home Secretary [2012] UKSC 32 casts further light ­– if this were needed – on the somewhat arbitrary way in which ministers of all political persuasions tinker with immigration policy. In 1996, the Home Office issued a Policy Document (DP 5/96) on deportation policy in cases involving children born in the UK and resident for seven or more years (the so-called 7-year concession). In practice, concession effectively glossed a later policy document contained in departmental ‘Instructions’ (the ‘Long Residence Concession’) which made no mention of the 7-year concession. In 1999, the Home Office ‘modified’ DP5/96 in a ministerial statement that significantly stated (i) that each case must be considered on its merits subject to a ‘general presumption’ that the 7-year concession would be observed; and (ii) that ‘certain factors’ should be considered as ‘relevant to reaching a judgment’ in such cases. In 2003, the Long Residence Concession was modified in a Statement of Changes to the Immigration Rules duly laid before Parliament (HC 538, 2003), which actually made no direct mention of the concession ­– never formally withdrawn, though it was at some point apparently taken off the departmental website. Suddenly, in 2008, however, the Minister for Borders and Immigration in a written parliamentary statement withdrew DP 5/96. M and R, who had hoped to benefit from the 7-year concession, challenged the withdrawal by judicial review, arguing that it was irrational and unfair and also invalid because the proper parliamentary procedure had not been followed.

Before setting out the argument in greater detail, it is necessary to feed in a second case decided by the same court (Lords Hope, Walker, Clarke, Dyson and Wilson JJSC) on the same day. R (Alvi) v Home Secretary [2012] UKSC 33 concerned the points-based system of entry for non-EEA nationals who wish to work in the United Kingdom, introduced in 2008 by a Statement of Changes in Immigration Rules duly laid before Parliament (HC 1113, 2008). So far, so good. But HC 1113 made reference both to a resident labour test as defined in ‘guidance’ published by the United Kingdom Border Agency (UKBA) and to a ‘list of skilled occupations’ to be maintained by UKBA. A, who had entered lawfully as a student but stayed on illegally, was in 2009 refused leave to remain on the ground that his job was not so listed and that his salary fell below the stipulated requirement for the policy. A challenged this decision on the ground that the list was contained in ‘Occupational Codes of Practice’ published only on the departmental website; it had never been laid, as it should have been, before Parliament.

These cases raised several tricky questions concerning the nature and quality of ‘bureaucratic rules’. The status of the Immigration Rules has always been a puzzle. They derive from the Immigration Act 1971, which for the first time imposed statutory controls on Commonwealth citizens. Section 3(2) provides that the Home Secretary

shall from time to time… lay before Parliament statements of the rules or any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter…

In both our cases Statements of Changes had been made and laid and their validity was not in issue. The question was whether policy changes introduced through informal rule-making were valid, or if they too ought to have been laid.  Taken together the two cases raised three central questions:

  • What is the legal status of the Immigration Rules?
  • Can the Rules be changed or modified by ‘soft law’?
  • Is it open to the Home Secretary fall back on the prerogative powers?

The prerogative power

This question got a brusque reception! The only mention of prerogative in the 1971 Act was a saving clause (s 33(5)), which provided that the Act should not be taken to ‘supersede or impair’ the prerogative as applicable to aliens. Unanimously, in a single judgment delivered by Lord Dyson, the Supreme Court ruled (i) that the prerogative powers had never extended to Commonwealth citizens and (ii) that Parliament had in any event intended the 1971 Act to be the sole source of powers to regulate immigration (Munir at [23]-[26]). This simple application of the principle in De Keyser’s case (A-G v De Keyser’s Royal Hotels [1920] AC 508) will come as no surprise to constitutional lawyers, who have watched the courts in recent years ‘structure and confine’ the ultimate discretion of the royal prerogative almost out of existence. It is only in exceptional cases, involving defence and security or foreign affairs – as in the recent case of the unfortunate Chagos Islanders, expelled from the islands by an Order in Council made under the prerogative – that an argument based on prerogative powers will receive a sympathetic hearing – and even then the courts are hard to persuade (see, eg, the judgment of the High Court in R (Bancoult) v Foreign Secretary [2006] EWHC 1038, overruled by the House of Lords at [2008] UKHL 61). In our rule-based administration, such arguments will become increasingly rare.

The Immigration Rules (IRR)

If the power to make the IRR derives from statute, then the Immigration Act was in more ways than one ambiguous. It contained no specific grant of power to make regulations, and the Supreme Court was driven to imply one from a reference in a Schedule to ‘Instructions’. Both a power, exercisable in terms of s 3(2), and a duty to make regulations, vested in the Secretary of State, was however confirmed (Munir at [27]). Lord Dyson went on to dispose shortly of the thorny question of the legal status of the IRR: these were not, as the House of Lords had opined in MO (Nigeria) v Home Secretary [2009] ULHL 25, an executive statement of policy; they were subordinate legislation made under the authority of the 1971 Act. The IRR were in short ‘hard law’ that had to be laid before Parliament. This decisive ruling should end the uncertainty and unease registered by Sedley LJ in Pankina v Home Secretary [2010] EWCA Civ 719 at ‘rules being elevated to a status akin to law’.

Changes of policy       

The ground was now cleared for the crunch question: when was a rule a ‘statement of practice’ that needed to be laid in terms of s 3(1)? In Munir, the Court was able effectively to side-step this question since, if withdrawal of DP 5/96 was, as argued, unlawful because of failure to follow the requisite parliamentary procedure, it must follow that DP 5/96 was itself invalid for the same reason. In any event, DP5/96 was not a ‘statement of practice’ because it incorporated discretion: each case had to be considered on its merits and the factors ‘relevant to reaching a judgment’ might or might not be applied. Judged by the rule-of-thumb established by Lord Dyson, that the less the flexibility inherent in the concessionary policy, the more likely it was to fall within s 3(2), DP5/96 was merely a ‘concessionary policy statement’. Perhaps the only surprise here lies in the total absence of any mention of the doctrine of legitimate expectation.

In Alvi, it was harder to resolve the crunch question and, although there were no dissenting judgments, the Supreme Court Justices were not so tidily at one. There was general agreement that the points system did amount to a statement of practice within s 3(2) and did need to be laid. Both the ‘guidance’ and the ‘List of Skilled Occupations’ posted on the departmental website created requirements which the immigrant ‘must’ satisfy; they were in short, determinative of rights and must be laid before Parliament.

These nice distinctions (which surely fall within Humpty Dumpty’s famous observation that words mean what the speaker wants them to mean) leave much room for jurisprudential analysis. What are we to make, for example, of Lord Dyson’s conclusion in Munir that a ‘concessionary policy statement’ is not a ‘statement of practice’? Of more interest, however, is where the boundary between rules and discretion lies. This is, after all, a question that administrative lawyers have been discussing at least since KC Davis wrote, with many contributions from distinguished jurists, such as Ronald Dworkin’s ‘hole in the donut’ metaphor. It is fair to say that there is much academic support for the idea of rules and discretion as points on a spectrum or sliding-scale, though needless to say, the academic debate (summarised in ch 5 of C Harlow and R Rawlings, Law and Administration, Cambridge University Press, 2009) found no place in the two Supreme Court decisions. Indeed Lord Dyson in Alvi simply brushed aside the notion of a spectrum as advanced by Sullivan LJ in R (Joint Council for the Welfare of Immigrants) v Home Secretary [2010] EWHC 3524 (Admin) in favour of a clear binary distinction between ‘substantive’ and ‘procedural/evidential’ requirements – a distinction that he immediately rejected as not providing a ‘satisfactory basis for deciding what is and what is not a rule within the meaning of s 3(2)’. Lord Dyson’s solution was that ‘a rule is any requirement which a migrant must satisfy as a condition of being leave to enter or leave to remain’ (emphasis mine). This ‘solution’ reprises the well-known problem of distinguishing ‘must’ from ‘may’ traversed many years ago in Padfield v Ministry of Agriculture, Fisheries and Food [1968] AC 997 and rather suggests that a rule is a rule when Humpty Dumpty (a.k.a. the Home Office, UKBA or, indeed, the Supreme Court) chooses to treat it as mandatory.

What is the outcome for immigration law? It is now clear that the IRR are subordinate legislation and that any change to them involving mandatory requirements or conditions will have to be laid. This is a conclusion reached by Lord Wilson ‘without enthusiasm’; he rightly saw that it would create ‘an astonishingly prescriptive system’ (Alvi [128]). Lord Hope in the leading judgment, expressed similar concern (Alvi [65]) over the burden on Parliament, falling for the most part on the House of Lords Committee on the Scrutiny of Secondary Legislation (formerly the ‘Merits Committee’), if the process of laying were not to become a mere procedural formality. Equally, there would be a burden on the courts from the ‘rapid succession of cases’ and new opportunities afforded for challenge (Alvi [54]). Against these negative impacts, however, the dangers of allowing the Home Secretary unfettered discretion to change the rules must be weighed.

How can this rigid and inflexible system, brought about through a laudable desire for legal certainty and administrative consistency, be ameliorated or, better still, evaded? Has the Supreme Court opened an escape hatch in Munir? Provided the draftsman is careful to scatter the magic words ‘may’ liberally throughout the text, perhaps substituting ‘advice’ for ‘guidance’, statements of policy change may ’scape laying. How immigration officials will read the rules is, of course, another question altogether!

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

Suggested citation: C. Harlow, ‘How not to do things with rules’ UK Const. L. Blog (15 September 2012) (available at http://ukconstitutionallaw.org).

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