Monthly Archives: March 2013

Conor Gearty: The Important Inconvenience of the Rule of Law

conorOmar Othman is a resident of this country – guilty of no crime and up to now facing no charges – whose home country wants to put him on trial in a case where the key evidence against him will in all likelihood have been procured by torture. The only reason he probably won’t be tortured is because the state concerned has reluctantly promised (as an inducement to get him back) not to follow its usual routine.

If this person’s name were MacKinnon or Giles or Gary and the country Syria or Sudan, we’d have outraged Daily Mail editorials and a civil libertarian Home Secretary.  But it is Abu Qatada and the state is Jordan.

In politics universal values (the rule of law; the protection of human rights; the prohibition on torture) are fine – but only so long as they don’t get in the way of our diplomatic or political interests, the career ambitions of our leading politicians, or the propensity of our allies to do evil.

The law doesn’t work like this.

It deals in legal commitments.  No bit of the Human Rights Act or of the European Convention on Human Rights or the Convention Against Torture has a proviso ruling out their protection for foreigners with ‘funny’ names or for those with the ‘wrong’ ethnic or religious backgrounds.  The three senior judges who have just reminded the government of this yet again in the latest ruling on Abu Qatada are not necessarily liberal, or progressive, or devotees of some kind of judicial cult worshipping at the shrine of Shami Chakrabarti.  They are just doing in a dull old-fashioned kind of way what is made inevitable by their training, their culture, and the unequivocal democratic laws that it is their job to apply.

The facts of this case are surely by now well-known.  It concerns the refusal by the Secretary of State to revoke the deportation order against Abu Qatada notwithstanding the ruling of the European Court of Human Rights that to send him to Jordan for trial would in the circumstances amount to a flagrant denial of his article 6 right (under the European Convention) to a fair trial.  The Special Immigration Appeals Commission having made the decision to uphold the application, it was always a long shot that the Court of Appeal – with oversight only on issues of law – would overrule its specialist subordinate, and so it turned out.  Here was a ‘detailed and careful judgment by an experienced tribunal’ (para 42) on the nature of the burden of proof and on what is entailed by the ‘flagrant denial of justice’ test that applied to cases such as the one before the court.

The subject matter also mattered.

As the Master of the Rolls, speaking for the Court of Appeal, put it:

‘Torture is universally abhorred as an evil.   A state cannot expel a person to another state where there is a real risk that he will be tried on the basis of evidence which there is a real possibility may have been obtained by torture.  That principle is accepted by the Secretary of State and is not in doubt.  That is the principle which SIAC had to apply in the present case in the light of all the evidence that it heard and read.  This included evidence as to what had happened and what there was a real risk would happen if Mr Othman faced a retrial on the very serious charges that he faces.  SIAC found that there was a real risk that evidence obtained by torture would be admitted at the retrial and that, as a consequence, there was a real risk that he would be subject to a flagrant denial of justice’  (para 58)

Successive governments and the Tories in particular have long had a problem with the rule of law.  It seriously inhibits the security services in their desire to take national security wholly back – Cold War style – into the realm of the executive.  It also inconveniently stands against the populist manoeuvring favoured by the dark side of both main Parties.

But ….

The rule of law is what Conservatives in particular were brought up to believe in, a bit of the imperial history (Magna Carta, Blackstone, Dicey; etc) that Michael Gove will soon be making all little Englanders learn by rote.   In the good old days the judges saved embarrassment by looking the other way when radicals were shafted, shocking bail conditions imposed, foreigners unceremoniously thrown out.  This went on right into the 1980s (Spycatcher; the Birmingham Six; the miners’ strike).   But things have changed.  The Hales, Neubergers, Dysons of today are not the ex-servicemen, rabid anti-Communists and Tory placemen of yesteryear.  And there is now the European Court of Human Rights to keep them honest, as it did in the Abu Qatada case itself last year when overruling our judges’ effort to be relaxed about torture evidence as long as it was being allowed in Amman and not the Old Bailey.

This is how the Court of Appeal dealt with the politics, what in cricket might be called the straightest of straight bats:

‘Mr Othman is considered to be a dangerous and controversial person.  That is why this case has attracted so much media attention.  It is entirely understandable that there is a general feeling that his deportation to Jordan to face trial is long overdue.   But the principles that we have to apply do not distinguish between extremely dangerous persons and others who may not constitute any danger in the United Kingdom and whom the Secretary of State wishes to deport to face trial in another country.  The fact that Mr Othman is considered to be a dangerous terrorist is not relevant to the issues that are raised on this appeal.  It would be equally irrelevant if we were deciding the question whether there was a real risk that he would be tortured if he were returned to Jordan.‘ (para 56).

What will the government do?

In the short term it has enough legal devices to hand to continue to make the life of Abu Qatada and his family hell without exposing their hand against him in any kind of fair prosecution for a serious offence.  If they get the chance they might even press charges if they can be assured of the secret justice for which they have been fighting so hard in recent weeks.

In the longer term the Conservatives only get away with supporting universal values like the rule of law and human rights while also condemning non-white foreigners, deadbeat immigrants and benefit scroungers because they are always silently whistling that none of the values we supposedly uphold really in truth applies to these reprobates.  Nigel Farage has thrown the Party into a panic precisely because he is talking about this, not covertly whistling.

Short of abolishing the rule of law and universal human rights  the party is left with the poor consolation of being able only to shout insults at the judges –like a political version of the limbless black knight in Monty Python and the Holy Grail who roars at his adversary ‘Come back and I’ll bite your legs off.’

 Conor Gearty is Professor of Human Rights Law, LSE, and a Barrister at Matrix Chambers.

Suggested citation: C. Gearty ‘The Important Inconvenience of the Rule of Law’ UK Const. L. Blog (30th March 2013) (available at http://ukconstitutionallaw.org)

An earlier version of this post appeared in The Guardian.

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Filed under Human rights, Judiciary

Christopher McCrudden: Equality and the Good Friday Agreement: Fifteen Years On

 mccrudden2-high-res-1_1The Northern Ireland peace agreement was born on the 10th April 1998, Good Friday, in Belfast and will thus celebrate its 15th birthday next week. One of the central elements of the Agreement was to achieve equality between the two main communities in Northern Ireland. It was an ambitious attempt to achieve this aim through a significant restructuring of the Northern Ireland constitution. This aspect of the Agreement has implications, therefore, for the role of constitutions in achieving equality more broadly. The fifteenth anniversary provides a suitable occasion to assess the outcomes achieved, and to look to the future.

The Northern Ireland constitutional model incorporated in the Belfast-Good Friday Agreement is neither unique, nor particularly unusual in a global context.  It is a classic democratic consociation, as political scientists term it. Four key elements of democratic consociation are commonly identified.

These are, first, the sharing of executive and, often, legislative and security powers among representatives of all the major communities, especially those with histories of prior antagonism. Examples of specific arrangements include collective presidencies and co-premierships; examples also include concurrent or qualified majority rules. Plainly such power-sharing aims to achieve greater inclusivity and jointness in decision-making than ‘winner-takes-all democracy’.

The second key feature is community autonomy. Each constituent group has significant internal self-government in at least one public function (for example, in establishing and controlling its own schools). Equality across the communities applies in these respects. Self-government accompanies shared government.

The third feature is the widespread use of the proportionality principle, understood to encompass proportional representation in shared institutions, and the allocation of important resources and public offices. For example, posts in the civil service, security forces, and judiciary, are shared out by reference to the proportions the groups have in the population as a whole, or in the labour market. Proportionality may also apply to the allocation of public expenditures, e.g., each group may receive the same per capita funding for its primary schools.

Lastly, because power-sharing, proportionality, and autonomy may not provide sufficient assurance to particular groups that their interests will not be over-ridden, explicit veto rights may be granted to each of the communities on vital issues, with variations in how these veto rights are allocated and legally entrenched.

How does all this relate to the equality agenda? Apart from the attempt to achieve equality at the level of the legislature and the executive, there are three additional legislative features of the equality agenda in Northern Ireland that relate to the Agreement: first, the fair employment legislation which began in 1976, was fundamentally restructured in 1989, and more minimally reformed as a result of the Belfast/Good Friday Agreement; second, section 75 of the Northern Ireland Act 1998 which established a public sector equality duty on public bodies resulted directly from the Agreement itself; and third, the (now repealed) quota provisions regarding the recruitment to the Northern Ireland Police Service is derived from the Patten Commission established as a result of the Agreement. There are five points I want to make.

First, the equality agenda comprising these elements can best be understood in the context of the Northern Ireland consociational model. It is, of course, separable from it – much of the equality agenda borrows its techniques from other countries (such as the United States) where consociations are not in operation. But placing it within the consociational model emphasizes the extent to which equality in Northern Ireland is primarily about securing the third of the three elements I described earlier – the proportionality principle. It is this that marks the equality agenda in Northern Ireland out from that in the rest of the United Kingdom or, indeed, in the Republic of Ireland.

Second, it is also useful to see the equality agenda in the context of the consociational model for another critical reason: the effective enforcement of fair employment after 1990, and the debate over the public sector equality duty in the early 1990s was a critical element in the “confidence building” measures that resulted in nationalist (and particularly republican) politicians agreeing to the other elements of the consociational package, in particular the first of these, the sharing of legislative, executive and security powers with the other parties. The orthodox histories of the run up to the Belfast/Good Friday Agreement largely, I think, underestimate the extent to which there was a parallel “peace process” that supported the main process, but which concentrated less on security and power-sharing issues and more on economic, social and human rights issues.  In practice, the two went hand in hand.

The relative success in getting these equality measures accepted and implemented provided a degree of reassurance that the Northern Ireland state was capable of reform and transformation, and laid some of the political ground work for the Agreement. The Americans, and largely because of them the Irish Government, understood this; I was never convinced that the British Government did (or, perhaps, does) fully comprehend the importance of this.

The third reason for emphasizing the consociational context of the equality agenda is that the other elements of the consociational model act as a limit on a liberal individualistic equality agenda. This can be seen in two respects.  First, the consociational model depends on the recognition and (to a degree) the institutionalization, of the two major communities as the key political actors. For some, though not for me, this is anathema because it appears to emphasize existing divisions rather than transcending them; and this came to a head in particular in the debate over the Patten police quota arrangements.

A second limit on the equality agenda arising from consociation relates to schools. I said that one of the features of a consociation is a degree of autonomy in certain spheres.  In Northern Ireland, the best example of an autonomy arrangement relates to primary and secondary education, which is a closely guarded sphere of Catholic influence.  Fair employment legislation has carved out teaching in schools as an exception.  This can really only be understood when seen in the consociational context.

I will end by making two further points.  The first is that, to a considerable extent, the strategy worked, not just in the sense that it helped build confidence (which it did), but in its own terms. In particular, research supported by the Nuffield Foundation demonstrates pretty definitively that the effective enforcement of the fair employment legislation in the 1990s led to a significant shift in the labour market with significantly reduced inequality between Catholics and Protestants, at the same time as achieving significant desegregation. There is a more complex story to tell, but suffice to say it is a very good news story, and one that Northern Ireland should be proud of. It is the success of this legislation that has significantly taken the poison out of the discrimination issue (a poison that those of us who worked in the area remember only too well). The same applies to the Patten quota, which has succeeded in restructuring the composition of the police service from one that was overwhelmingly Protestant to one that is now proportional, and has contributed to the increased acceptance of the police in the nationalist community.

Finally, what of the future? Although by no means unique globally, consociational arrangements are unusual in the British and Commonwealth world, and are therefore continually under pressure; there is a sense among some opinion formers in Britain that the Westminster model is in some way the “norm” and that, in time, the aim should be to return Northern Ireland to “normality”.  In the equality context, this means constant indirect pressure to reduce the specifically Northern Ireland features of the approaches taken to equality, such as compulsory monitoring in fair employment, a significant regulatory presence in the labour market in the shape of the Equality Commission, and the process requirements of the public sector equality duty concerning civil society participation in decision-making, and impact assessment. Both the European Union and the domestic courts have recognized the importance of preserving the Northern Ireland equality model, and have resisted attempts to force change.[1]

The greater danger comes, I think from, a sense among some opinion formers in London (and even some in Belfast) that the equality job has been done, equality has been achieved, and we can therefore simply dismantle the panoply of equality requirements, particularly in a time of financial cutbacks. That view, I suggest, should be strongly resisted. The importance of the equality agenda in enabling the Belfast-Good Friday Agreement to be concluded in the first place, and ensuring that a stable government could eventually be established and maintained, should be recognized and lessons learned. It would be a mistake, I think, of incredible stupidity with incalculable costs if inequality between the two communities were to become a significant problem again in Northern Ireland.

Christopher McCrudden FBA is Professor of Equality and Human Rights Law, Queen’s University Belfast, and Leverhulme Major Research Fellow (2011-2014). It is an edited version of a talk presented on the 27th March 2013 at the British Academy seminar “The Good Friday Agreement: 15 Years On”.

Suggested citation: C. McCrudden, ‘Equality and the Good Friday Agreement: Fifteen Years On’ UK Const. L. Blog (29th March 2013) (available at http://ukconstitutionallaw.org)
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[1] Unlike in Bosnia Herzegovina, where there have been systematic external attempts to dismantle the consociational arrangements, explored further in Christopher McCrudden and Brendan O’Leary, Courts and Consociations: Human Rights versus Power-Sharing (OUP, 2013).

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Mark Elliott: Devolution, the West Lothian Question, and the nature of constitutional reform in the United Kingdom

mark1Earlier this week, the McKay Commission published its Report on the Consequences of Devolution for the House of Commons. The Commission’s terms of reference required it to determine “how the House of Commons might deal with legislation which affects only part of the United Kingdom, following the devolution of certain legislative powers to the Scottish Parliament, the Northern Ireland Assembly and the National Assembly for Wales”. In other words, the Commission was established to do that which Lord Irvine of Lairg (in)famously counselled against: viz to tackle the West Lothian Question. (Irvine reportedly said that the best thing to do about that question was to “stop asking it”.) There are various ways in which the question can be framed. The Commission, for its part, took the central issue to be the possibility that “MPs from outside England could help determine laws that apply in England, while MPs from England would have no reciprocal influence on laws outside England in policy fields for which the devolved institutions would now be responsible”.

The notion of reciprocity—or, more accurately, the lack of reciprocity that is a function of the UK’s asymmetric model of devolution—has always been at the heart of the West Lothian Question. Viewed more broadly, the fact that the West Lothian Question has arisen and remained unanswered for so long is reflective of a typically British approach to constitutional reform—one that treats the constitution as a work-in-progress, and which accepts disjointedness and inelegance as the price of pragmatism and speed. Within that tradition of constitutional reform, loose ends are an inevitable result of an underlying reluctance to confront big-picture questions. The McKay Commission’s approach to the West Lothian Question is of a piece with this dominant approach to constitutionalism in the UK, in that it proposes a practical solution that leaves the some fundamental questions unanswered.

The Commission’s guiding principle—and where that principle did not lead it

The Commission is clear that doing nothing should not be regarded as a viable option. In doing so, they rightly reject the view (advanced by Vernon Bogdanor in evidence to the Commission) that because England has a de facto predominance in the UK, it has “no need to beat the drum or blow the bugle”. Bogdanor argues that if England seeks to exploit its inherent dominance, it may strain the Union to “breaking point”. But this overlooks the potentially fissiparous effect of leaving the West Lothian Question hanging and thereby stoking a sense of disempowerment. This is a sphere in which perception matters: and the risk is that England may perceive itself to be (as Richard Rawlings, “Concordats of the Constitution” (2000) 116 LQR 257, put it) “the spectre at the feast”.

Instead, the Commission concludes that: “Decisions at the United Kingdom level having a separate and distinct effect for a component part of the United Kingdom should normally be taken only with the consent of a majority of the elected representatives for that part of the United Kingdom.” The Commission recommends that this principle be adopted by means of a resolution of the House of Commons. The question then became how this guiding principle should be given practical effect.

One obvious issue is that the “separate and distinct effect” formulation is undeniably vague. As Brigid Hadfield, “Devolution, Westminster and the English Question” [2005] PL 286, put it, “What … is an English law? If it cannot be defined with sufficient precision, then non-English MPs cannot fairly be precluded from voting on it.” By advocating the vaguer “separate and distinct effect” formulation, the Commission implicitly acknowledges that the matter is a complex one in relation to which judgement would have to exercised, rather than something that can be reduced to a clear-cut formula. But acknowledging complexity is not the same thing as resolving it, and the application of the “separate and distinct” criterion would doubtless excite controversy. Such definitional difficulties are not good reasons for shelving attempts to resolve the West Lothian Question (on the ground that it is all too difficult), but there is clearly further work to be done here.

Leaving to one side the inevitable questions of categorisation, how does the Commission propose that its guiding principle should be implemented? It rejects the creation of a separate English legislature, arguing that it might have a destabilising effect and would likely require wholesale constitutional reform. What, though, of the more modest proposal that only MPs representing English constituencies (or MPs representing English and Welsh constituencies) should be allowed to vote on laws likely to have a “separate and distinct effect” upon England (or upon England and Wales)?

The Commission rejects this option too. Its reasons for doing so are largely pragmatic. In particular, it fears that different “classes” of MPs would be created, and that the possibility of “deadlock” would arise: a Government might enjoy a majority in Parliament as a whole whilst lacking an outright majority of English MPs. Such a scenario is alien to the standard modus operandi of the UK system, in which (typically) a single party has an overall majority such that the Executive is able to drive its business through Parliament with (at least a degree of) impunity. In any event, the flip-side of the “deadlock” problem is arguably more profound. It concerns the dual functions ascribed to the post-devolution UK Parliament, whereby it is required to sustain not only the UK Government but also the de facto English Government. This is the sort of big-picture issue that the McKay Commission fails squarely to confront—a point that I develop below.

The Commission’s key proposals

Having rejected an English Parliament and “English votes for English laws” (along with various other options), the Commission concludes that its guiding principle should be implemented (first) by giving a voice to English (or English and Welsh) MPs in relation to relevant Bills, and (second) by making it politically difficult—but not impossible, either as a matter of law or parliamentary procedure—to enact relevant Bills in the absence of majority support on the part of relevant MPs.

As to the first point, the Report says that “views from England
(or England-and-Wales) should be known before a final decision is made about something with a separate and distinct effect”. The Commission identifies a range of ways in which this might be achieved. One possibility is modelled on “legislative consent motions” whereby, under the Sewel convention, the consent of a devolved legislature may be sought to the enactment of UK legislation encroaching upon devolved competence. The McKay Commission envisages that an analogous procedure might be used in relation to UK legislation liable to have a “separate and distinct” effect upon England (or England and Wales), the suggestion being that a Grand Committee consisting of all MPs representing relevant constituencies would render an opinion (by means of a resolution) as to whether the (relevant parts of the) Bill should be proceeded with. Other options identified by the Commission include debating a motion “expressing
 an opinion on that part of a bill relating separately and distinctly to England (or England-and-Wales)”, and the committal of relevant Bills to specially-constituted Public Bill Committees in which the party balance would reflect that which obtained in England (or England and Wales) rather than in the whole House. The Report does not express a firm conclusion as to which of these options should be taken forward; it identifies further questions that would need to be resolved, and suggests that the Government should put its preferred options to the House of Commons, and that a Select Committee should subsequently advise the House on points of detail.

So much for a distinctive English (or English and Welsh) “voice”. What if that voice (by a majority) opposes a Bill or relevant parts of it? Here, the Commission is very clear that MPs representing English (or English and Welsh) constituencies should not have a power of veto. It therefore rejects a “double-lock” procedure, under which it would be necessary, where relevant, to secure the approval not only of a majority of all MPs but also the approval of a majority of English (or English and Welsh) MPs. This reflects the Commission’s view that once the views of MPs representing particularly affected parts of the country have been heard and considered, “the UK majority should prevail, not least in order to retain the UK Government’s accountability at election time for decision-making during its time in office”.

However, at the same time as rejecting a “double-lock”, the Commission proposes a “double-count” procedure. This would involve making public not just the names of MPs who voted for and against the Bill, but also the constituencies they represent—with a view to determining whether relevant Bills (or provisions) attracted the support of a majority of MPs representing relevant constituencies. Although no legal or procedural consequences would ensue if a majority of the latter type were not secured, the Commission envisages that “if a government was seen to have failed to attract the support of a majority of MPs from England (or England-and-Wales) for business affecting those interests, it would be likely to sustain severe political damage”. The intention, therefore, is to disincentivise the use of MPs from unaffected (or less affected) parts of the country to push through legislation against the wishes of the majority of MPs representing particularly affected parts of the UK, whilst stopping short of preventing such a practice.

In preferring double-count over double-lock, the Commission cites its own guiding principle—that decisions “should normally be taken only with the consent of a majority of the elected representatives for that part of the United Kingdom” (emphasis added). The Commission’s defence of this position rests upon the principle of reciprocity. Devolved legislatures’ wishes with respect to incursions by Westminster into areas of devolved competence are normally respected (via the use of legislative consent motions under the Sewel convention), but are not necessarily respected (because Westminster could, at least in theory, override their wishes by asserting its legislative supremacy, which is undiminished by devolution).

By the same token, while English (or English and Welsh) MPs should be able to object to UK legislation likely to have “separate and distinct” effects upon England (or England and Wales), they should not thereby be able to veto such Bills. Instead, the consequences of oibjecting—like the consequences of a devolved legislature refusing to endorse a legislative consent motion—should play out on the political stage. The essence of the proposal, therefore, is to place (for these purposes) the group of MPs representing English (or English and Welsh) constituencies in a position vis-à-vis the (full) Westminster Parliament that is analogous to the position that devolved legislatures occupy in relation to Westminster. And, as the Commission notes, the analogy would likely be extended by the emergence of a constitutional convention corresponding to the Sewel convention. (It is worth noting in passing that the likely prescriptiveness of such a convention would mean that a double-lock requirement might well obtain in effect if not in form, just as the UK Parliament’s capacity unilaterally to interfere in devolved affairs is rendered essentially notional by the Sewel convention.)  

The bigger picture

The analogy outlined above is persuasive as far as it goes—but, arguably, it does not go far enough because it takes insufficient account of two sets of distinctions and the relationship between them. First, there is the distinction between the twin roles performed by all Westminster-style legislatures: viz legislating, on the one hand, and determining the composition of and sustaining the Executive, on the other. Second, there is the distinction between the way in which the Westminster Parliament, on the one hand, and the devolved legislatures, on the other, discharge those roles. The McKay Commission’s focus is upon the way in which the Westminster Parliament discharges its first—i.e. legislative—function. But there is insufficient consideration of the second function—i.e. determining the composition of and sustaining the Executive.

The analogy between devolved legislatures and Westminster breaks down because, unlike the former, the latter has to determine the composition of and sustain a Janus-like Executive: one that functions both as the Government of the United Kingdom and as the Government of England. Within this distinction is concealed the West Lothian Question writ large. As conventionally framed, the West Lothian Question is concerned with micro-level (albeit important) questions concerning Parliament’s legislative function and its exercise in relation to individual Bills. But a macro-level question also arises. Because the Westminster Parliament must sustain not only the UK Executive but also the de facto English Executive, no amount of finessing of the procedure whereby legislation is enacted can get around the possibility that elections to the UK Parliament may yield an Executive that does not accurately reflect the wishes of voters in England (as refracted through Parliament as an electoral college). Indeed, the 2010 election is a case in point, in that the Conservative Party won an overall majority of English but not UK constituencies.

It is in this sense that the McKay Commission might be said to have failed fully to grasp the nettle. The underlying issue that is never fully grappled with is that the post-devolution Westminster Parliament is required to perform a set of functions that may be in tension with one another. And this raises questions about our constitutional architecture more profound than those addressed by the Commission. It does not, of course, follow that that particular nettle should be grasped. As noted at the outset of this post, a certain degree of messiness is an unavoidable byproduct of the approach that characterises constitutional reform in the UK—and history teaches that the results of that approach do not necessarily yield a constitution lacking workability or public acceptance.

Viewed thus, the McKay Commission’s proposed solution to the West Lothian Question is of a piece with the type of constitutionalism that generated the question in the first place. It provides a partial, practical workaround to a problem created by a disjointed set of constitutional changes. Whether all of this showcases the merits of the UK’s highly pragmatic approach to constitutional reform or reflects a failure to confront difficult and fundamental questions is a matter of perspective. In any event, the McKay Commission’s Report shows that Lord Irvine was wrong; the West Lothian Question needed to be asked, and we could do a lot worse than answer it by implementing the Commission’s proposals. It is likely, however, that the concern underpinning Irvine’s reluctance to engage with the question derived from his recognition that once one begins to pick away at the loose edges of the constitution, it may quickly begin to unravel. It follows, then, that while asking the West Lothian Question is not unwise, thinking about it too hard might well be discomforting.

Mark Elliott is Reader in Public Law at the Faculty of Law, University of Cambridge. 

Suggested citation: M. Elliott, ‘Devolution, the West Lothian Question, and the nature of constitutional reform in the United Kingdom’  UK Const. L. Blog (26th March 2013) (available at http://ukconstitutionallaw.org)

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Filed under Devolution, England, Scotland, UK Parliament

Mike Gordon: Ministerial Responsibility After Huhne

mike-gordon-pictureDoes the Chris Huhne affair have constitutional implications?  In one sense, the answer to this question might be a rather obvious one.  From a constitutional perspective – although certainly not from a political perspective – the case seems relatively uncontroversial.

Huhne resigned from his post as Secretary of State for Energy and Climate Change on 3rd February 2012, initially to defend himself against a criminal charge of perverting the course of justice.  Huhne, it was alleged, had passed penalty points for a speeding offence to his ex-wife, Vicky Pryce, to avoid a driving ban in 2003.  This allegation was denied by Huhne until 4th February 2013, when the former Minister entered a plea of guilty on the first day of his trial for this offence.  Huhne subsequently resigned as MP for Eastleigh, and after Pryce was also convicted of perverting the course of justice for her part in the affair, both were sentenced to eight months imprisonment on 11th March 2013.

There can be little doubt that it was necessary for Huhne to resign as Energy Secretary, especially since he has now admitted perverting the course of justice, a matter which was denied at the time of his resignation from the Cabinet.  The critical tenets of the convention of individual ministerial responsibility are well established, and can be readily applied to this case.  Adopting Brazier’s definition, a Minister is individually responsible for ‘(a) his private conduct, (b) his general conduct of his department, and (c) acts (or things left undone) by civil servants in his department’ (Constitutional Practice, 3rd ed. (1999), 150).

That a Minister must, among other things, accept responsibility for his or her personal conduct is also made abundantly clear in the current iteration of the Ministerial Code (2010).  By clause 1.1, ‘Ministers of the Crown are expected to behave in a way that upholds the highest standards of propriety’.  By clause 1.2, Ministers must ‘protect the integrity of public life’ and ‘observe the Seven Principles of Public Life’, among which are ‘selflessness’, ‘integrity’, ‘openness’, ‘honesty’ and ‘leadership’.  By clause 1.2(d), ‘Ministers should be as open as possible with Parliament and the public’.  Indeed, the need for current Ministers to maintain the highest standards of conduct is made clear in the Prime Minister’s foreword, which poses a stark challenge for the coalition: ‘Our new government has a particular and historic responsibility: to rebuild confidence in our political system’.

In misleading the authorities about the identity of the driver who had committed the speeding offence in 2003, Huhne’s personal conduct fell below the standard which could be expected of a Minister.  Whatever view is taken about the utility and proportionality of Huhne and Pryce’s subsequent conviction and jail sentences, Huhne had violated his constitutional obligations as a Minister, and it was right that he resigned from public office.

The Huhne affair might then be seen to raise few difficulties for constitutional lawyers.  However, if we try to look at the underlying state of individual ministerial responsibility, as revealed by considering the Huhne case in its broader political-constitutional context, it may be seen as indicative of a wider trend.  Or, put another way, perhaps the Huhne affair is of interest from a constitutional perspective because of what it was not about, rather than what it was.

Simon Jenkins, reacting to this case in an article in The Guardian, argues that Huhne and Pryce have been punished and condemned severely for their personal conduct because of a broader inability to hold those in public office to account for their official conduct.  This is, Jenkins maintains, a manifestation of ‘a public craving for revenge on those in any sort of power’: ‘[t]he truth is that we have so few ways of making power answer for its misdeeds that we grab hold of any stick that will do. There is virtually no accountability for incompetence in office beyond the ballot’.

An assessment of the accuracy of Jenkins’ frank analysis of the relationship between the public’s reaction to poor personal conduct, and their inability to hold those wielding public power to account for poor official performance is, of course, well beyond the scope of this post.  Nevertheless, it does provide a provocative vantage point from which to examine the extent to which the Huhne affair may be one in a line of such incidents.

If we look at the circumstances in which other senior Ministers have been forced to resign in the present Parliament, all seem to relate crucially to their personal conduct, as opposed to departmental failings.  David Laws resigned as Chief Secretary to the Treasury in May 2010 as a result of his excessive expenses claims (although Laws is now back in government).  Liam Fox resigned as Defence Secretary in October 2011 due to what Sir Gus O’Donnell’s report called a ‘blurring of lines’ between his private and official responsibilities, related to the position of his friend and ‘adviser’ Adam Werritty.  And most recently, in October 2012 Andrew Mitchell resigned as Chief Whip as a result of allegations – consistently denied by Mitchell, and now the subject of a police investigation into whether he was the victim of a conspiracy – that he called a police officer a ‘pleb’.

And this cannot simply be because no departmental or official failings have occurred.  While the selection of instances of government ‘errors’ may understandably be regarded as subjective, a number of examples might be identified, even though doubtlessly contestable – the ‘pausing’ of NHS reform; reversal of policy on the sale of forests; Jeremy Hunt’s handling of the News Corp bid for BSkyB; and the West Coast Mainline ‘fiasco’.

This may seem an unscientific approach to ministerial responsibility.  It focuses only on one term of one government, and that of an exceptional coalition government at that.  Yet it is unclear that coalition government would in principle provide vastly different challenges for individual ministerial responsibility as compared to those that would be experienced in single party government (in contrast with collective ministerial responsibility, which must be approached differently in a period of coalition).

Moreover, it might instinctively be thought that this trend is not new, and its emergence may be traced back through the New Labour years, the Conservative era before that, and even beyond (although Woodhouse indicates that only three out of ten resignations due to individual ministerial responsibility in the period 1982-1992 were the result of ‘private indiscretion’, in contrast with the period 1972-1982, in which the two senior ministerial resignations which occurred were both a result of private conduct; Ministers and Parliament (1994), 174).  To try to sustain such a proposition would require testing in a much more substantial manner than is possible in a short blog post; yet even if a pattern was shown only to have developed or been amplified recently, the implications could still be usefully explored.

A further objection might be that political accountability is about much more than resignations, or the lack thereof.  And indeed, this challenge has much force – resignation from ministerial office may be the ultimate sanction for poor conduct, but it is not the only one.  Minsters may also be subsequently demoted to a more junior post, or removed from government entirely at a Cabinet reshuffle; be required to apologise to Parliament and/or members of the public; perhaps even the embarrassment suffered as a result of being criticised by the opposition or the press could be considered a ‘sanction’ of sorts (it is certainly an incentive to avoid poor performance).

Resignation is, however, the sanction which is most visible to citizens, and most straightforward to quantify.  While this certainly cannot be considered to represent the entire spectrum of political accountability, nor can it be seen as the only measure of the effectiveness of such accountability, the frequency with which and circumstances in which resignations occur are still worthy of consideration in their own right.

As a result – and the tentative nature of the following comments is worth emphasising – if this brief survey does provisionally suggest the existence of a pattern, the Huhne affair may have constitutional implications after all.  That is, it may be indicative of a trend that a Minister’s responsibility for his or her personal conduct is given greater emphasis than their responsibility for the actions of their department and/or civil servants.  Or (and with apologies to George Orwell), while all varieties of individual ministerial responsibility are equal, some are more equal than others.

If this is the case, what are the consequences?  Two key, interrelated questions seem to emerge: (1) is this a satisfactory position?; and (2) does our traditional conception of individual ministerial responsibility need to be revised?  Those who believe that mechanisms and principles of political accountability are of critical importance in a constitutional order may find this position to be inadequate.   An emphasis on personal conduct might be seen to distract attention from the crucial matter – holding those who exercise public power to account for the unacceptable performance of their official duties.

Yet the answers to these questions would be complex, and could raise issues relating to the essential nature of constitutional conventions.  Are conventions simply descriptive of practice (representing what Marshall called a ‘positive morality’ of the constitution) or normative, in that they represent a vision of what the constitution ought to be (for Marshall, a ‘critical morality’; Constitutional Conventions (1984), 11-12)?  If conventions are descriptive, perhaps the way we explain and understand individual ministerial responsibility does need to be revisited and/or augmented.  If normative, however, perhaps to do so would seemingly endorse the trend, and thereby undermine political accountability.

Perhaps, however, the fundamental tenets of individual responsibility do not need to be reassessed, and the trend identified is simply a short-term function of the political character of the convention.  As Finer famously argued, resignations only result ‘if the minister is yielding, his Prime Minister unbending, and his party is out for blood’ (‘The Individual Responsibility of Ministers’ (1956) Public Administration 377-396, 383).  These conditions (which would also need to be supplemented in the modern era, in particular to take account of the role of the media) might be thought more likely to obtain in relation to personal conduct, which is inherently attributable to the Minister in question, than departmental failings, which are difficult both to establish and to associate definitively with a particular individual.

Or, alternatively, might these developments best be analysed in light of the purpose, or more accurately purposes, of individual ministerial responsibility?  On the one hand, the convention serves to secure accountable government (at least in part) for citizens via Parliament.  On the other hand, the convention serves to secure effective government (at least in part) for the Prime Minister, who can remove Ministers whose performance has been deficient.  The potential tension between these purposes might remind us that different constitutional actors will have different objectives when individual responsibility is invoked, and that this convention alone, no matter how well defined, will therefore never be sufficient to achieve effective political accountability in a constitution.

Perhaps such change (if indeed this is change) in individual ministerial responsibility is to be expected.  Or perhaps it is merely a symptom of a more fundamental set of issues relating to the state of political accountability in the UK.  Whatever the case may be, if nothing else this post has aimed to demonstrate that the Huhne affair raises a range of questions about political accountability that merit further consideration.  And given the attention of public lawyers seems to have been diverted from ministerial responsibility in recent years, renewed engagement with this crucial constitutional convention could prove to be of value.

Dr Mike Gordon is a Lecturer in Public Law at Liverpool Law School, University of Liverpool.

Suggested citation: M. Gordon, ‘ Ministerial Responsibility After Huhne’   UK Const. L. Blog (25th March 2013) (available at http://ukconstitutionallaw.org)

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Helen Fenwick: The Report of the Bill of Rights Commission: disappointing Conservative expectations or fulfilling them?

helen1The Commission delivered its Report – A UK Bill of Rights? – The Choice Before Us – to the Government in December 2012. It is an odd document, dominated by the lack of agreement in the Commission as to the role that any human rights’ instrument in Britain should play. That was unsurprising since at the inception of the Commission the Coalition partners appeared to want it to play two different roles – defending or attacking the HRA. From the very outset the Commission and the idea of a Bill of Rights (BoR) was relied upon by Cameron and other senior Conservatives to allay anger in the Conservative party, and among some voters, directed at decisions made under the Human Rights Act. David Cameron announced the Commission’s inception in March 2011 at Prime Ministers’ Questions as a reaction to criticism of the decision of the Supreme Court that sex offenders should be able to challenge their inclusion on the Sex Offenders’ register. He indicated that a BoR would address the concerns expressed (17.3.11; see the Telegraph in relation to R and Thompson v SSHD). The idea that a BoR could right the wrongs of the HRA – would provide a panacea for the HRA’s ills – had apparently been embedded in the Conservative party psyche for some years: David Cameron in a speech to the Centre for Policy Studies in 2006 Balancing freedom and security – A modern British Bill of Rights said that the HRA should be repealed: “….The Human Rights Act has a damaging impact on our ability to protect our society against terrorism…. . I am today committing my Party to work towards the production of a Modern Bill of Rights”. In contrast, the 2010 Liberal Democrat election manifesto promised to “Ensure that everyone has the same protections under the law by protecting the Human Rights Act.”

This piece will suggest that the ‘panacea’ notion was always an illusion. It will argue that the polarised nature of the Commission in political terms, and its remit, inevitably meant that Cameron’s apparent expectations of the goods its Report would deliver were always likely to be disappointed, but that its key proposal – that there should be a new BoR – might prove advantageous in future for the Conservative party.

The majority proposal of a new Bill of Rights

The Commission was obviously constrained by its terms of reference, which most significantly included the following: to “investigate the creation of a UK Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in UK law, and protects and extend our liberties” (see Ministry of Justice18.3.11). If some senior Conservatives considered that the BoR could be used to restrict rights, that remit meant that it was obviously unlikely to deliver that result.

The Commission found that the strongest argument, and the one advanced by the largest number of their respondents, was that the UK already has a bill of rights in the shape of the HRA (A UK Bill of Rights? – The Choice Before Us, Overview, para 68). But, in a decision criticised by the minority (Prof Philippe Sands QC and Baroness Helena Kennedy) the majority in the Commission did not accept that therefore enactment of a new Bill of Rights was unnecessary since: ‘there is a lack of public understanding and ‘ownership’ of the Human Rights Act’ (Report, para 80) which they found was ‘equally, if not even more, evident in relation to the European Convention on Human Rights and the European Court of Human Rights’. In other words, the majority did not accept that the HRA was already playing the role of a BoR and could just continue to do so.

The majority in the Commission did not think that a public education programme about the HRA (para 7.36) or ECHR was the answer because public perceptions were not likely to change (para 12.8); so they found that there was a strong argument for a fresh beginning in the form of a new BoR (para 12.7), but without recommending repeal of the HRA. Seven out of the nine Commissioners therefore recommended introduction of a Bill of Rights: “a majority of members believe that the present position is unlikely to be a stable one. Some of the voices both for and against the current structures are now so strident, and public debate so polarised, that there is a strong argument for a fresh beginning.” (para 84) Two of the Liberal-Democrat nominees in the minority, Helena Kennedy and Philippe Sands, in their separate paper in Vol 1, disagreed with the proposal for a new BoR; they also disagreed with the majority on the issue of support for the HRA and pointed out that the current arrangements were more strongly supported in Wales, Scotland and Northern Ireland than in England. But although the majority of the Commission gave support to the introduction of a new BoR (para 12.7), the role it should play in terms of creating a ‘fresh beginning’ remained unclear, as discussed below.

A polarised Report

The uneasy compromise reached between the two parties in setting up the Commission was reflected in its membership – split between nominees from each party – and in the fragmented nature of the Report itself, which contains no less than eight separate papers by Commission members or groups of members, dwarfing the sections of the Report that the majority managed to agree on. Indeed, it would not be too much of an exaggeration to say that seeking to discover any majority proposals in the Chapters in Volume 1 among the mass of descriptive material, discussion of the views of respondents, and the separate papers, is a strangely onerous task. There are two volumes running to 514  pages combined, but aside from the short ‘over view’ section at the beginning of Volume 1, it is hard to find more than about 15 pages in the body of the Report dealing with the proposals, and even those pages are largely concerned with the views of the respondents. Clearly, lack of unanimity meant that the Commission had to rely on majority views from respondents. However, the majority departed from those views in relation to the key proposal that there should be a new BoR rather than relying on the HRA as a BoR.

The separate papers reveal that the ideas of the Commission members as to the role a Bill of Rights should play are, overall, not reconcilable with each other. As Helena Kennedy and Philippe Sands put it in their separate paper: “the fault lines amongst us are real and deep”. On the one hand, a number of the Conservative nominees, reflecting views expressed at various times by Cameron, Grieve and May, appear to consider that it should be utilised to enhance Parliamentary autonomy and escape from the ‘absolutism’ of the ECHR, or from the ECHR altogether; on the other, the view of the Liberal Democrat nominees could be characterised as being that rights’ protection should be enhanced or maintained, either by means of a new BoR or via the HRA.

Baroness Kennedy and Philippe Sands’ minority paper entitled “In Defence of Rights” opposed the idea of a new BoR, but said: “We remain open to the idea of a UK Bill of Right were we to be satisfied that it carried no risk of decoupling the UK from the Convention”, a proposition they were not prepared to be associated with. They did not support a new BoR because their work on the Commission had “alerted [them] to what they believe is the real possibility that some people support a UK Bill of Rights as a path towards withdrawal from the European Convention” – a view expressed by a number of their colleagues on the Commission (ie certain of the Conservative nominees) (para 12.5). Lord Faulks QC and Jonathan Fisher QC in a paper entitled ‘Unfinished Business’ found: “In the period since our appointment as members of the Commission on a Bill of Rights it has become increasingly clear that a key issue, if not the key issue, has not been adequately considered by the Commission and reflected in the terms of its report. The issue concerns how the UK should respond to the judicially activist approach taken by the European Court of Human Rights to the ECHR over the last 30 years”. They concluded that “there are strong arguments that the cause of human rights, both in the UK and internationally, would be better served by withdrawal from the Convention and the enactment of a domestic Bill of Rights.”

Given such polarisation of ideas in the Commission as to the role of the HRA, ECHR and any new BoR, it is unsurprising that the ideas put forward for the content of any BoR were highly tentative and cautious, and that proposals for a BoR, as opposed to the HRA, put forward at various points in pursuit of the ‘BoR as panacea’ notion in particular by Dominic Grieve, did not find their way into the Commission’s proposals.

Would the ‘proposals’ if realised in a BoR create a difference from the HRA?

While the majority on the Commission agreed that there should be a new BoR, they were clearly unable to agree on its content. So the discussion below struggles to identify any clear recommendations from the majority that would differentiate such a BoR from the HRA. In general there are no ‘proposals’ in the sense of firm recommendations – the majority would only go so far as to identify matters worthy of consideration if a BoR was ever in contemplation.

Enforcement mechanisms and the impact of the Strasbourg jurisprudence

The problem, from the anti-HRA viewpoint espoused by a number of senior Conservatives, is partly that the interpretations of the Convention rights at Strasbourg on a number of contentious issues – in particular prisoners’ voting rights, aspects of counter-terrorism law and deportation of non-citizens – are ones that are not assented to by the Westminster Parliament, or in some instances by judges in the House of Lords/Supreme Court, (SSHD v AF (no 3) (2009)) but which may have effect in UK law (see eg Theresa May’s speech to the conservative party conference in Oct 2011) or in effect constrain Parliament (eg compare PM Qs 24th Oct 2012 cols 922-3 with the Voting Eligibility (Prisoners) Draft Bill Nov 2012, Cm 8499).

From this viewpoint the effects of ss2 and 3 HRA combined, or of ss2 and 6, are part of the problem. S2 HRA can operate in conjunction with ss3 or 6 to allow a Strasbourg decision, that happens to bear on a matter currently in front of a domestic court, to have legal effect in domestic law (as occurred in AF no3), before the executive has a chance to react to the decision. While the government is bound under Article 46 ECHR by final Strasbourg decisions, the executive might well prefer to delay and procrastinate, or to bring forward legislation to Parliament which might represent a more minimal response to the Strasbourg decision than court-based findings would or might.

Senior Conservatives have proposed changes to s2 HRA to create greater leeway for courts to depart from Strasbourg, presumably partly with a view to creating more ‘wriggle-room’ in relation to the Article 46 duty. In 2009 Dominic Grieve said that the equivalent of s2 HRA in a BoR should allow or require the domestic courts to take a different stance from Strasbourg in a wider range of circumstances than those currently accepted. Grieve has argued that the HRA had been “interpreted as requiring a degree of deference to Strasbourg that I believe was and should be neither required nor intended”. Instead, he said, a new bill of rights, which would replace the Human Rights Act, would make it clear that British courts could allow for UK common law to take precedence over decisions by the Strasbourg Court: “We would want to reword it to emphasise the leeway of our national courts to have regard to our own national jurisprudence and traditions and to other common law precedents while still acknowledging the relevance of Strasbourg court decisions” (Grieve Middle Temple Lecture, 2009). He has also said: ‘there is no duty in the ECHR to follow Strasbourg case-law’ (Conservativehome blog 2009). Commission member Anthony Speaight said on this in evidence to the Constitutional Reform Select Committee in 2011: ‘the court…makes decisions that something or other is a human right that would not by the average Briton be regarded as a human right….’. Grieve’s key speech on the ECHR in 2011 targeted s2 HRA as a failing section on the basis that it allows Strasbourg interpretations of the ECHR too much purchase in domestic law. He has also said on s3 that it is wrong that courts should ‘have power to stand a statute on its head’ (Conservativehome blog 2009).

Unsurprisingly, the Commission’s proposals did not meet these concerns. In seeking to interpret the Convention rights under the Human Rights Act, the domestic judiciary must merely ‘take into account’ any relevant Strasbourg jurisprudence, under s2; it was clearly the intention underlying s2 that the jurisprudence would not be viewed as, in effect, binding (see Klug and Wilbore ‘Follow or Lead?’ (2010) 6 EHRLR 621). But the stance taken towards s2 in the jurisprudence overall bears little relation to the wording it employs. It was found in Ullah in the House of Lords that the judges should follow any clear and constant jurisprudence of the Strasbourg court, a finding generally referred to as ‘the mirror principle’, (eg Lewis ‘The European Ceiling on Human Rights’ [2007] PL 720) which until recently remained the dominant approach (Manchester CC v Pinnock (2010)). On the other hand, in R v Horncastle (2010) the Supreme Court considered that departure even from clear jurisprudence was exceptionally acceptable under s2 HRA, as Parliament originally intended. The Commission noted that there was a substantial body of opinion that wanted to enable it to be made clearer that courts were free to depart from Strasbourg (at paras 56 and 57). The Commission noted that JUSTICE had reflected this position: “there has been a longstanding debate on whether section 2 [of the Human Rights Act] requires our judges to be bound by the jurisprudence of the European Court of Human Rights. Although there is a clear line of case law which suggests our judges consider themselves so bound, there is nothing in the Human Rights Act 1998 which requires this approach…The judges themselves appear to be moving away from this unduly restrictive approach…Rightly we consider that the language in the Human Rights Act 1998 strikes an appropriate balance between respect for the boundaries of the Convention and encouragement of the development of independent domestic rights jurisprudence.” (para 56)

But although, as JUSTICE noted, it cannot be said that the judges have confined themselves only to ‘taking account’ of the Strasbourg jurisprudence, the Commission did not propose a change to the position under s2: ‘There was also a clear majority in favour of maintaining the requirement in the Human Rights Act on UK courts to ‘take into account’ relevant judgments of the European Court of Human Rights with three quarters of those responding on this issue wanting to maintain the current formulation. However, a number of those taking this view did so on the basis that our courts were now correctly interpreting the Act’s wording in this respect having failed on some occasions to do so in the past’ (para 58).

The Commission proposals were somewhat equivocal as to the key current domestic ECHR enforcement mechanism in s6 HRA, recommending in its ‘over-view’ that consideration should be given to broadening the definition of ‘public authority’ so that private sector organisations providing public services would count as ‘public authorities’ (para 97) although in the Conclusions chapter it merely stated that “the current definition of a public authority within the Human Rights Act should be looked at again if a UK Bill of Rights were to be taken forward” (para 12.26).

Grieve had proposed that the s10 HRA fast-track procedure for responding to a s4 declaration should be abolished (British Academy Forum (2010)) which would be one means of limiting the impact of s4, which has come to be viewed as creating a de facto obligation upon the executive to act, even though as a matter of law a s4 declaration can be disregarded. But the Commission proposed no change to ss4 or 10, finding that s4 had performed successfully (para 12.25).

Overall, no ideas for significant changes to the interpretation and implementation of the rights in the UK were put forward by the majority to warrant consideration in relation to any BoR. The Commission concluded that the mechanisms in any UK Bill of Rights should be broadly similar to those in the Human Rights Act (para 95).

Changes to the listed rights?

Any aim of senior Conservatives of seeking to weaken the ties to Strasbourg via a BoR would not be realised via changes to the listed rights, as far as this Report is concerned, which was no doubt inevitable, given the Commission’s remit. The Commission said that it did not oppose the concept of additional rights in a BoR in principle (para 12.18). When listed rights were referred to in the Commission’s proposals, the reference was, it appears, to the list of ECHR rights in Sched 1 HRA (para 12.11) possibly with some additions. The Commission considered the inclusion of a right to jury trial, but the Report found that there were problems regarding the forms that a right to trial by jury could take (paras 8.41, 8.44). It also looked at the possible inclusion of rights to administrative justice and the creation of limits on the power of the state to impose administrative sanctions without due process of law, such as fines for speeding (British Academy Forum (2010)). The Commission merely concluded that consideration should be given to inclusion of such rights (para 8.44), if there was to be a BoR.

The free-standing anti-discrimination Protocol, Protocol 12 ECHR has not been ratified by the UK and there are no indications at present that the current government intends to ratify it. None of the speeches of Conservative spokespersons before or after the 2010 Election made mention of the possibility of protecting the further rights under Protocol 12. The Commission found that if a BoR was under consideration in future “the most obvious candidate for inclusion” was Protocol 12 and the “right to equality and non-discrimination currently enshrined in the Equality Act 2010″ (paras 8.15, 8.23 and 91).

Various groups put forward arguments to the Commission for specific additions to the current HRA Sched 1 rights, such as the inclusion of certain socio-economic rights (eg Children’s Rights Alliance advocating the inclusion of children’s rights). But the Commission did not recommend that particular “socio-economic” or environmental rights should be added to a bill of rights: “All other things being equal a majority of members believe that such choices are better made by Parliaments rather than judges.” (paras 91and 8.21) Similarly the Report noted that “Approaching 100 respondents to our consultations were in favour of the incorporation into any UK Bill of Rights of rights contained in international instruments which the UK has already signed but not fully incorporated into our domestic law” (para 8.45), but did not make a proposal that such rights should be included.

So in terms of the list of rights covered, any Bill of Rights based on these proposals could look something like an ‘HRA plus’ (term used by JCHR), but not plus much. Chapter 8 of Vol 1, which considered these rights, was concerned more with the views of respondents to the Commission, than with clear proposals.

The question whether a BoR should give greater guidance to judges on balancing competing rights was answered in the negative: ‘On balance our conclusion, in line with that of the majority of respondents on this issue, is that if there were to be a UK Bill of Rights the balancing of competing rights within such a Bill, where such occurred, would be better left to the courts not least because of their ability to weigh the competing considerations against the facts of the particular case before them.’ (para 8.51)

The Commission considered that changes to the wording used to express the rights could be employed to create a distinctively ‘British feel’ to the instrument in order to address the public’s lack of allegiance to the HRA. It was not proposed that the wording of the rights themselves should see any radical change but the Commission considered that if a BoR was under consideration it would be “desirable in principle” that its wording should reflect “the distinctive history and heritage of the countries within the United Kingdom.” (para 86 and 8.8)

Relationship between the ‘proposals’ and the concerns about the HRA identified by the majority

One of the firmer conclusions of the majority was that “the key argument is the need to create greater public ownership of a UK Bill of Rights than currently attaches to the Human Rights Act” (para 12.11). However, the proposals that emerged would be unlikely, if realised in practice, to address that need, taking account of the context – the apparently deep public dissatisfaction with the HRA. They are so modest and cautious (even leaving aside the devolution context which clearly provided a problematic back-drop to the Commission’s work) (Chap 12, 12.3, 12.4 and Chap 9) that they might be said to amount in effect to a proposal to re-badge the HRA in a BoR, despite the Commission’s acceptance that it has become discredited in the eyes of the public. A key question, unexplored in the Report, is – why is there dissatisfaction with the HRA? Of course there was no public information campaign prior to its introduction, leaving a vacuum which created room for a narrative hostile to the HRA to take hold. Lord Lester, speaking as a member of the Commission, has attributed the nature of that narrative to a prolonged media attack on the HRA which has at bottom the purpose of protecting their own commercial interests; he said on this issue to the Political and Constitutional Reform Committee in 2011: “some sections of the media—self-interested, God bless them—have campaigned vigorously against the Human Rights Act, totally unscrupulously, completely unfairly, mischaracterising everything as being a result of the Human Rights Act…” (Answer to Q 59). He indicated that the hostility might spring from restrictions “on their right to invade personal privacy” created by the HRA (Answer to Q 65).

For example, the idea – part of the media campaign against the HRA – that human rights’ concerns stand in the way of Britain’s ability to combat terrorism, has found a particular focus in relation to Abu Qatada (see eg The Sun 15.4.12). David Cameron’s speech to the Parliamentary Assembly of the Council of Europe in 2012, during the UK’s six month chairmanship of the Council, reiterated the theme of seeking enhanced subsidiarity as a key reform. He referenced counter-terrorism and prisoners’ voting rights as examples of issues on which the Court should be very slow to intervene, once democratic debate on the issue and full scrutiny in national courts, taking the Convention into account, had occurred. Referencing the Qatada case as illustrating the need for reform, he said ‘we have gone through all reasonable national processes…yet we are still unable to deport [or detain him]’. Thus, parts of the media and senior members of the Conservative party have taken the stance – possibly coincidentally – that the Human Rights Act makes dealing with suspected terrorists harder, putting lives and national security at risk; and the lines between the actual impact of the HRA in this respect in legal terms, and what would occur in any event under the ECHR at the international level, have become blurred, perhaps intentionally.

Thus if a BoR was to be introduced, based on these proposals, which would play a role very similar to that of the HRA, it would appear probable that parts of the media might attack it as a merely re-badged HRA, leading again to public dissatisfaction with the new BoR. But conversely and unpalatably it might appear to follow that if a new BoR was introduced post-2015 under a Conservative government, not based on these proposals, and disassociated from the ECHR, it would be welcomed by parts of the media, meaning that it might be more likely to command public acceptance, at least in England.

Conclusions

It is concluded that there was never any real basis for considering that the Commission might propose a BoR which would answer to the expectations of a BoR expressed by Cameron in 2011. Clearly, the split in nominees, on party lines, and the Commission’s remit, always suggested that the proposals for a BoR that eventually emerged were not likely to do so. It would appear that the role a number of Conservatives apparently wanted the BoR to play, and the proposals likely to emerge from that Commission, were never likely to cohere with each other. It seems unlikely that there was ever any real expectation from the point of view of the Conservative leadership that the proposals would lead to a new BoR that might cure the ills of the HRA. Thus, deployment of the notion of a BoR for the last few years as a panacea for the ills of the HRA has arguably always been an illusion, designed to calm right-wing concerns about non-repeal of the HRA, since repeal was almost certainly impossible in the context of the Coalition. In a much-reported speech Theresa May recently made it clear in relation to the Qatada saga that repeal of the HRA and withdrawal from the ECHR would be on the table if the Conservatives gained a majority in 2015. “When Strasbourg constantly moves the goalposts and prevents the deportation of dangerous men like Abu Qatada, we have to ask ourselves, to what end are we signatories to the Convention?” she said. No mention was made of the Commission’s Report on the BoR: the role Cameron had previously outlined for it appears to have been quietly forgotten. In other words, senior Conservatives seem to be distancing themselves from this Report, unsurprisingly, and the debate appears to be shifting from the ills of the HRA to those of the ECHR at Strasbourg.

This piece has argued that the Commission did fulfil the role of simultaneously preventing conflict between the Coalition partners over the HRA for a time and calming Conservative concerns regarding decisions under the HRA. But in so far as there were real expectations  that a BoR would provide an answer to the ‘problem’ of the HRA, the Report might appear to be disappointment to the Conservative leadership since if its proposals (or ideas it put forward that could warrant consideration) were realised in practice it clearly would not provide the panacea apparently hoped for. But on the other hand, the majority of the Commission did propose a new Bill of Rights, creating a momentum behind the BoR idea which might be advantageous post-2015 to a Conservative government if one is returned and pushes forward with the proposals recently floated by Theresa May regarding the HRA and ECHR. The proposal of a BoR could help to pave the way to repeal of the HRA; it might allay concerns that Britain would become ‘a pariah state’ (Dominic Grieve) if it withdrew from the ECHR, and the BoR itself could act as a Trojan horse in terms of restriction of rights (Michael Fordam QC Report, para 7.32).

 Helen Fenwick is Professor of Law at The University of Durham.

 

Suggested citation: H. Fenwick, ‘The Report of the Bill of Rights Commission: disappointing Conservative expectations or fulfilling them?’   UK Const. L. Blog (21st March 2013) (available at http://ukconstitutionallaw.org)

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Aileen McHarg: The Leveson Report, the Royal Charter and the Scottish Parliament: A Reply to Jamieson

aileenIain Jamieson’s earlier post argues that the ability of the Scottish Parliament to implement its own model of press regulation in response to the Leveson Report has effectively been ousted by the UK government’s proposal to establish a UK-wide system of press regulation by Royal Charter.  I would take issue with two aspects of his analysis.

First, Jamieson claims that, since the provisions of the proposed Royal Charter will be entrenched by clause 92 of the Enterprise and Regulatory Reform Bill, which applies to Scotland, the Scottish Parliament cannot legislate to amend the Royal Charter or provide that it should not apply to Scotland.  Clause 92 provides that the Charter cannot be amended except in accordance with the procedure laid out in the Charter itself (two thirds majority of each House).  As Jacob Rowbottom has argued on this blog, the degree of entrenchment actually provided by this device is limited because clause 92 can itself be repealed or amended by subsequent UK legislation with no special majority.

To argue that the Scottish Parliament will nevertheless bound be by clause 92 therefore requires the further claim that, because clause 92 (however indirectly) ‘occupies the field’ in relation to press regulation, the Scotland Act 1998 will be impliedly repealed insofar as it devolves power to legislate on that issue to the Scottish Parliament.  There are at least three ways of responding to this implied repeal argument, all of which lead to the conclusion that the Scottish Parliament will not in fact be bound by clause 92.

The first, and most speculative, response would be to rely on Laws LJ’s obiter dictum in Thoburn to the effect that, since the Scotland Act is a constitutional statute, it cannot be impliedly repealed.  This would mean that the only way in which the Scottish Parliament’s legislative competence can be reduced would be through express amendment via primary legislation or a section 30 order, either of which would require (by convention, in the former case, and by statute, in the latter) the consent of the Scottish Parliament.

It is, however, unnecessary to adopt such a heterodox approach.  A second, more conventional, approach would be to accept that the Scotland Act may be impliedly repealed, but to argue, as Barber and Young have done (‘The Rise of Prospective Henry VIII Clauses and Their Implications for Sovereignty’ [2003] PL 112, pp 112-6), that a statute can only be impliedly repealed by a subsequent statute on the same subject matter, not merely by a later conflicting statutory norm.  Since the Enterprise and Regulatory Reform Bill does not deal with the same subject matter as the Scotland Act (the division between reserved and devolved legislative competences), it cannot impliedly repeal the transfer of power to the Scottish Parliament effected by the Scotland Act even if a norm contained within it or flowing from it for the time being ‘occupies the field’ of a particular devolved competence.  It would, on this analysis, still be open to the Scottish Parliament to assert its legislative competence in relation to press regulation and repeal (expressly or impliedly) the provisions contained in clause 92.

A third, even more conventional approach, would lead to the same conclusion.  This would be to accept that a statutory provision can be impliedly repealed by a later inconsistent statutory norm, even if the subject matter of the two statutes is not identical.  This view, however, requires a more nuanced approach to when such a conflict arises.  In relation to the Scotland Act 1998, for instance, it may be argued that the transfer of legislative competence in devolved areas to the Scottish Parliament is not inconsistent with (and therefore not impliedly repealed by) later UK legislation on a devolved matter because the Scotland Act itself, in s.28(7) expressly envisages that such a situation may occur.  This approach suggests that the Scotland Act, properly understood, involves a sharing of legislative power between the UK and Scottish Parliaments, and that the latest norm on a particular devolved matter will prevail irrespective of the Parliament from which it emanates.  This analysis would appear to be the one which best fits the post-devolution legislative practice, where the Scottish Parliament has regularly consented to allow the UK Parliament to legislate on its behalf, but has on some occasions subsequently amended such legislation.

The second point which arises out of Jamieson’s blog concerns whether the UK government is legally or constitutionally entitled to impose a system of press regulation on Scotland via the royal prerogative.  The constitutional position, as set out in written answer by Tony Blair on 30 June 1999,  is that where the exercise of prerogative powers relates to a matter within devolved competence, it is for the First Minister rather than Ministers of the Crown to advise the Queen.  The situation is slightly different in relation to business of the Privy Council, such as grant or amendment of a Royal Charter, because it is the Privy Council as a whole rather than a particular minister which advises the Queen.  Nevertheless, the written answer states that:

the advice in relation to a particular matter which the Privy Council offers to Her Majesty is in many instances based, either by virtue of statutory provision but more often by convention, on advice or information provided to the Privy Council by one or more particular Ministers of the Crown as the Privy Counsellor with the principal interest in that matter.’

It goes on to state that, in areas of devolved competence, the Privy Counsellor with the principal interest would be the First Minister (who is a member of the Privy Council).

It is not clear from these provisions whether the Privy Council as a whole is entitled to depart from the advice of the principal minister.  Where there is a conflict of views between members of the same administration it may perhaps be argued that the majority view should prevail.  However, in the case of a conflict between the view of the First Minister and other Privy Counsellors representing the UK government, there is a strong case (for the reasons that Jamieson outlines) for saying that it should not.

Given that the question of who should advise the monarch on the exercise of the royal prerogative is a matter of convention rather than law, it may be difficult to argue that the UK government would be acting illegally if the Privy Council were to recommend the adoption of a system of press regulation applying throughout the UK in the face of Scottish opposition.  As a matter of constitutional morality, though, it is hard to avoid the conclusion that to treat the design of a new UK-wide system of press regulation as a matter for negotiation purely between the main parties in the UK Parliament is constitutionally improper.

Contrary to Jamieson, therefore, I would argue that just because the UK government has chosen a regulatory vehicle which manages to avoid the application of the Sewel Convention, it does not thereby follow that the Scottish Parliament is compelled to accept it or deprived of its competence to legislate for a different system of press regulation in Scotland.

(I am grateful to Chris Himsworth for his very helpful comments on this note and particularly for alerting me to the Blair written answer.)

Aileen McHarg is Professor of Public Law at the  University of Strathclyde.

 Suggested citation: A. McHarg, ‘The Leveson Report, the Royal Charter and the Scottish Parliament: A Reply to Jamieson’ UK Const. L. Blog (21st March 2013) (available at http://ukconstitutionallaw.org)

 

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Iain Jamieson: The Leveson Report, the Royal Charter and the Scottish Parliament

The Scottish Parliament can legislate to regulate the press in Scotland. This is because this matter  is not made a reserved matter. In principle, therefore, it would be competent for the Scottish Parliament to legislate to give effect to the Leveson Report in whatever way they thought fit.

It was for this reason that the Scottish Government appointed an Expert Group under the chairmanship of  Lord McCluskey  to consider what was the most appropriate way of giving effect to that Report in Scotland. The Expert Group has now published their report but it has been met with an almost universal hostile reception by the press.

However, the Expert Group Report may, to a large extent, now be irrelevant.  This is as a  result of the way in which the UK Government is proposing to give effect to the  main recommendations in Leveson regarding the setting up of the Recognition Panel  to recognise the independent regulatory body for the press.   The UK Government propose to do so by means of a Royal Charter. This will be contained in an Order in Council made under the Royal Prerogative. There is nothing in the Royal Charter to indicate that it is not intended to extend to Scotland. In the absence of any such indication, it will extend to Scotland.

By implementing the Leveson Report in this way, the UK Government has, in effect, bypassed the need to obtain the consent of the Scottish Parliament to the terms of the Royal Charter in so far as they extend to Scotland.. This is because the consent of the Scottish Parliament is only required, under the Sewel Convention, to approve any Bill proposed in the UK Parliament which deals with devolved matters or affects the legislative competence of the Parliament. Neither the Royal Charter nor the Order in Council will constitute such a Bill. The Scottish Parliament will, therefore, have  been deprived of having any say in the provisions of that Royal Charter.

Given the terms of the Royal Charter, it would not appear that the Scottish Parliament could provide for the press in Scotland to be compelled to join a regulatory scheme, as the McCluskey Report proposed.  Accordingly, it would seem that all that would be left for the Scottish Parliament to do is to provide , as a matter of Scots law, for  similar incentives to encourage the press to join the new regulatory scheme as those made in clause 21A of the Crime and Courts Bill (as amended  at Third Reading in the Commons).

In certain circumstances, the UK Parliament can over-ride the prerogative and it is thought that the Scottish Parliament would also be able to do so within devolved matters.  It may be thought, therefore, that it would still be possible for the Scottish Parliament to legislate to amend the Royal Charter or to provide that it should not apply in Scotland.

However, this would not appear to be possible because the Royal Charter also provides that it cannot be amended, or the Recognition Panel dissolved, unless a draft of the proposed change has been laid before the UK Parliament and approved by a resolution of two thirds of the members of each House.  No mention is made of any need to obtain the consent of the Scottish Parliament, whether by simple majority or otherwise.

These provisions in the Royal Charter are entrenched by clause 92 of the Enterprise and Regulatory Reform Bill (as amended at HL Report) which provides-

“Where a body is established by Royal Charter after 1 March 2013 with functions relating to the carrying on of an industry, no recommendation may be made to Her Majesty in Council to amend the body’s Charter, or dissolve the body, unless any requirement included in the Charter on the date it is granted for Parliament to approve the amendment or dissolution have been met.”

This clause extends to Scotland (see clause 97(8)). However, it may be doubted whether, given the very general terms of clause 92, it would trigger the need for a LCM (or Sewel motion) in the Scottish Parliament but, even if it did, the consent required would only relate to that provision and not to the terms of the Royal Charter itself.

The effect of all this is that the Scottish Parliament has, in effect, been  deprived of its power to make substantive provision for the regulation of the press in Scotland. This has been done not by any of the recognised ways of amending the list of reserved matters in Schedule 5 to the Scotland Act 1998, such as by means of a section 30 order, but indirectly as a by-product of the UK Government deciding to use the Royal Prerogative to give effect to Leveson.

Suggested citation: I. Jamieson, ‘The Leveson Report, the Royal Charter and the Scottish Parliament’ UK Const. L. Blog (20th March 2013) (available at http://ukconstitutionallaw.org)

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