Category Archives: Constitutional reform

by UKCLG blog editors | April 12, 2013 · 9:52 am

James Lambert: Law Via the Internet Conference 2013

Why is an international conference on free access to law being hosted this year in Jersey (population 90,000 and British Crown Dependency)?

It is 11 years since the declaration on Free Access to Law was signed in Montreal and the Free Access to Law Movement was founded. Since then the movement has grown to include organisations from more than 50 countries, and recent Law Via the Internet (LVI) conferences have been hosted by members in Africa, Asia and North America. Now, for the first time, LVI comes to the British Isles.

The Jersey Legal Information Board has been a member of the Free Access to Law Movement since 2008 and is proud to host LVI2013, where the over-arching theme will be “Free Access to Law in a Changing World”. But where does Jersey’s pedigree, in the free access to law context, come from? The Jersey Legal Information Board (JLIB) was established in 1999 under the chairmanship of the Island’s chief justice. As a direct provider of legal information, JLIB is almost unique in being a government sponsored agency. JLIB’s Vision is for Jersey’s legal system “to be, and be recognised as, the global best for a small jurisdiction”. Historically, JLIB has played a major role in ensuring that the Island’s statutes and case law have been made available online to Jersey’s legal profession, and to prospective investors and regulators worldwide. More recently, there has been a strategic shift towards making the law more widely and freely accessible to all, and to support this process, JLIB has been a member of the Free Access to Law Movement for the last 5 years.

One of many issues regularly debated by the Free Access to Law Movement, and a particular problem that afflicts Jersey as a small island jurisdiction, is the issue of balancing public interest and open justice with the privacy of the individual, which will be a major theme of this year’s conference.

The principle of open justice is regarded as being of constitutional significance. In the past, when judgments remained in practical obscurity, there were few privacy issues (the effort required to extract them from the Court archives exceeded the desire to view them). However, now that they are published on the Internet, Googling a name has become a pastime for the idle or inquisitive. JLIB has received complaints from people who committed serious offences as young adults, were sent to prison, but now 10 or 12 years later are trying to get their lives back on track. They feel haunted by the publication of judgments which can be read by prospective employers, people who would like to settle old scores, or people they meet in the street. This is especially significant to a small island population.

Neither the Data Protection Law nor the Rehabilitation of Offenders Law in Jersey restrict the publication (in full) of judgments on the JLIB website. However, it would not be unreasonable to apply a process of redaction (or ‘pseudonymisation’) to protect the identity of victims and witnesses involved in criminal cases.

JLIB has addressed this issue by working with the courts, the Children’s Service and the Data Protection Commissioner to agree a protocol for when a judgment should be redacted or indeed retained in a restricted area of the website to which access is limited to the legal profession and the judiciary. These include:

Criminal cases involving under-18s – redacted.
Criminal case victims and witnesses – redacted.
Trust cases involving minors – redacted.
Sexual assault case victims – redacted and restricted access.
Public Law Children cases – redacted and restricted access.
Adoption cases – redacted and restricted access.

Statute law already prevents the identification of victims of sexual assault, under-18s in criminal or public law children proceedings, and adopted children. The above protocol therefore reflects and exceeds existing statutory requirements, and is included in a set of guidelines which have been shared with other Free Access to Law Movement members.

Balancing of interests involves an examination on a case by case basis, and balancing the need for judicial accountability with the need for the privacy of the individual. However, the stated view of Jersey’s judiciary and over-riding principal is that justice must be seen to be done. Public trust and confidence in the justice system would be jeopardised if judicial hearings were routinely held in private. There is also a need for open and public hearings to satisfy the public or community catharsis.

Since the Arab Spring, there has been an increasing interest in free access to law in countries where the rule of law is only starting to be established. Publicly available free access to law is seen as essential in the move towards establishing democracy, respect for human rights, and the creation of a market economy. Most people in these countries are very familiar with mobile technology, with expectations of receiving information, legal or otherwise, via the Internet. For the first time, therefore, the conference will include a track entitled ‘Online legal information – starting from scratch’ followed by a practitioners workshop.

The conference is already attracting global interest from places as far afield as Japan, Vanuatu, New Zealand, Namibia, Australia, Zimbabwe, USA, Canada, Mongolia – not to mention many jurisdictions closer to home. The Conference takes place on 26-27th September 2013, and further details can be found here.

James Lambert is Director of Services in the Jersey Court Service.

Suggested citation: J. Lambert, ‘Law Via the Internet Conference 2013’ , UK Const. L. Blog (12 April 2013) (available at http://ukconstitutionallaw.org).

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Filed under Constitutional reform, Human rights

Tagged as Free Access to Law Movement, Jersey

by Constitutional Law Group | April 3, 2013 · 7:59 am

Craig Prescott: The Union, Constitutional Change and Constitutional Conventions (and English Regionalism?)

Last week, the House of Commons Political and Constitutional Reform Committee published their report, Do We Need A Constitutional Convention For the UK? (HC 2012-13 371). It is an interesting document, mainly because its very existence shows that the idea of a constitutional convention is becoming more mainstream within Westminster. But the report raises many questions, not all of which are fully answered. The central thrust of the report is that considering the raft of changes made to the constitution since 1997, particularly devolution, ‘it is time to conduct a comprehensive review so that the Union can work well in the future’ (para 111), and that this review should take the form of a ‘constitutional convention to look at the formal constitutional structure of the UK’. Matthew Flinders in his evidence provides the rationale for undertaking such a review now, stating that

‘the constitutional fault-lines that have always existed within the Westminster Model have arguably grown into significant gaps – possibly even chasms – as a result of recent reform. The old constitutional rules and understandings through which politicians and the public made sense of the political sphere no longer seem to apply. Moreover a number of issues on the political horizon – not least a planned referendum on Scottish independence – are stretching the constitutional elasticity of the Westminster Model to breaking point.’ (para 33).

Whilst ultimately leaving the issue open, the Committee suggest that the convention would have a particular focus on the relationship between the ‘different elements of the UK and how it functions as a whole’, but the English Question, ‘the fact that England…outside London does not have its own devolved settlement – must be addressed first’ (para 113). The concern of the Committee is the asymmetrical nature of devolution, and the ‘gaping hole’ of England. Whilst the timing of these things is perhaps never ideal, especially at the moment with so many issues in flux, it is unfortunate that the Committee published its report without considering the proposals of the McKay Commission on the ‘West Lothian Question’ – the most manifest pressure on the constitution that asymmetrical devolution creates. (The McKay Commission has been discussed by Mark Elliott.)

Strengths & Weaknesses

The report should be welcomed as a rare example in British constitutional debates – politicians thinking ahead. The Scottish referendum, to be held on 18th September 2014, will increase the pressure on the union, whatever its result. If the vote is yes, then a substantial part of the Union will withdraw and if the vote is no, ‘devo-max’ has been promised, but will place the unitary nature of the Union under more strain. The problem with this example of future cartography, is that it is unclear what the issues will be. The consequences to the rest of the Union of a Scottish withdrawal will remain elusive until the terms of that withdrawal become clearer. Likewise, ‘Devo-max’ is still a slippery concept. Much may depend on the result of the referendum. If independence is soundly defeated, then pressure for significant change could be less than it currently appears.

These uncertainties lead to the Reports main weakness: namely, it is difficult to provide examples of the sort of issues that a UK wide constitutional convention on the future of the Union could resolve. The firmest proposal that the report makes is to consider the devolution of financial powers to English local government, but it is not clear that a uniform settlement is needed across all the devolved institutions and English local government, which would be the real value of a UK-wide constitutional convention. Indeed, the report is rather sanguine about the prospect of federalism, which would be a logical rationale for a UK-wide convention (paras 48 – 53). As Alan Trench states, what ‘is vital for Wales is of much less importance in eastern England. To the extent there is a ‘Scottish’, ‘Welsh’ or ‘north-east English’ interest in the Union, each of these different’

Alternatively, a UK convention could be a more technical exercise that ‘tidied up the loose ends of devolution’, which would see how the relationship between the different institutions could be improved (see John McCallister MLA, para 35). If this is the case, there seems little to be gained with a constitutional convention over the more traditional method of a Commission to consider these technical issues. Commissions have been used extensively as the main driver of change in devolution, with the Richard Commission directly led to the Government of Wales Act 2006, the Calman Commission led to the Scotland Act 2012 and the Silk Commission in Wales is ongoing.

If the desire is for a technical tidying up of devolution arrangements, this does not appear to fit with the use of constitutional conventions so far. The international use of conventions has so far developed into two categories. Firstly, they are used to devise a new constitution for a state (such as in Iceland), or, conventions are used to discuss a particular issue (for example the Citizen’s Assemblies on Electoral Reform in British Columbia and Ontario). The proposal of the Committee somehow falls in-between these two categories. As a convention would be an experimental device in the UK, and no convention has been held in a political unit the size of the UK some care should be taken for a convention not to be too novel.

For this reason, there seems to be a greater argument for a constitution convention on House of Lords Reform (a point made in written evidence by Michael Gordon and Brian Thompson of University of Liverpool). This would be consistent with the use of conventions abroad, and fulfills the rationale behind a convention, which is to increase the range of ‘inputs’ into the constitutional change process beyond the government of the day to not only other political parties but to those who will be subject to the new constitutional structure – the people. The use of conventions reflects these twin needs. Parties across the political spectrum need to have confidence in the viability of a constitutional structure to foster stability, and that the people can confer legitimacy on new constitutional structures, to the extent that sections of the public are willing to accept perceived negatives decisions from the new structure. If a convention is to merely tie up the loose ends of asymmetric devolution, a convention is not necessarily required to fulfill these twin needs.

The Real Issue: The Process of Constitutional Change

The real issue that lurks in the background of the Committee’s report is not really the structure of asymmetric devolution, but an increasing dissatisfaction with the process of constitution change, which created the situation in the first place (this was considered by the House of Lords Constitution Committee in its report, The Process of Constitutional Change (HL 2010-12 177). The main problem is that despite all the changes enacted since 1997, there has never been a holistic look at how the changes affected the constitution as a whole. Indeed, shortly after the 1997 General Election, the incoming Labour Government rejected the very idea of a White Paper discussing its constitutional change agenda in an overarching fashion. No Minister was given overall responsibility for the constitutional reform agenda and the idea of a declaratory White Paper ‘embracing, describing and linking the whole rolling process’ was decided against (Peter Hennessy, The Prime Minister – The Office and Its Holders Since 1945 (Penguin 2000)).

This approach has now started to reveal its flaws – the issues surrounding the sustainability of a post 2015 Government relying on Scottish seats for its majority are vividly described here. The suggestion for a constitutional convention is ultimately delayed a reaction to this, but could be addressed at the wrong target at the wrong time. If anything, a constitutional convention considering asymmetric devolution should have been convened before devolution was enacted.

Conventions and English Regionalism

To this extent, the report is on safer ground when suggesting a ‘pre-convention’ or forum to consider English local government. Perhaps the Committee should have gone further and suggested a full-blown convention for English local government. It would comply with the rationales for a convention indicated above. However, the idea of regionalism is rejected outright in the report on the grounds that there is no appetite for another layer of politicians (para 14). This perhaps can be explained in the context of the poor public finances and the lingering shadow of the MP expenses scandal making the prospect of more politicians an unlikely one. But the Committee is at risk of falling into the same trap as the current and previous Governments who viewed the rejection of Local Mayors and Regional Assemblies as a rejection of the very idea of regionalism.

Yet this is not necessarily case. The one occasion a robust scheme was proposed in England, it was comprehensively approved in a referendum – in London. Whilst this could be due to the particular characteristics of the capital, there is some support for similar structures outside London. During the May 2012 referendum on an elected Mayor in the City of Manchester, opinion polls showed more support support for a Mayor across the Greater Manchester area on the London model, than the Mayoral proposal on offer which was rejected

One of the advantages of a constitutional convention is that it is an opportunity for some fresh thinking on issues which have proved beyond resolution by the more regular constitutional change mechanisms. This is another reason that makes House of Lords reform is a prime candidate for a convention. By increasing the ‘inputs’ into the process, it allows for options that have fallen outside the purview of politicians to be considered. For example, the Calman Commission through its public engagement processes found that the role of the Crown Estate in Scotland was a far more important issue for people than politicians’ realised. Conventions also allow for the thorough consideration of issues, something that was lacking in the years following the 1997 General Election. It just could be that a constitutional convention held on a regional level could be the way to bring English regionalism fully to life. At least this way, it could be put to the people.

However, holding a constitutional convention on such an issue necessitates making certain choices. The decision at which level to hold an English constitutional convention, (at Local, Regional or England-wide level) could be viewed as impliedly prejudging the conclusion of the convention. If it is held on a England-wide level, is that precluding a more local solution? Does the holding of a convention on a regional level preclude the option of devolution to the North of England? (The Hannah Mitchell Campaign Organisation are campaigning on this very issue.) When the demos and territorial scope of an institution are itself up for discussion, the creation of a convention itself needs to be very carefully considered (Stephen Tierney, Constitutional Referendums (OUP, 2012). This is where the Committee’s idea of a pre-convention could be useful. An example can be drawn from New Zealand, where the Constitutional Advisory Panel is currently engaging with the public by asking for the views of the public of possible areas of the constitution that they feel may need change It could be that a similar sort of process could be useful to frame an English constitutional convention.

Composition

The other main choice is the composition of a convention. There are three elements that could be reflected. Politicians are the most obvious element, as they work daily within the existing constitutional structure and have a direct interest in any new constitutional structure. But this direct interest is also self-interest, as change is rarely desirable amongst those already in positions of power. A barrier to English regionalism is that both Westminster and local councils could see regional institutions as a new competing powerbase. For this reason, expertise is the second element, as the assumptions and interests of politicians can be challenged. Expertise clearly includes experts from academia and public policy, but it can also be more broadly defined to include representative groups such as business organisations, trade unions and religious institutions. This element can also bring different perspectives on the issue, including international comparisons. The Australian Constitution Convention in 1998, held to consider whether to retain the Queen as Head of State combined these two elements, with half being politicians elected onto the convention, and the other half being appointed experts. The final element is the people themselves. In principle this is consistent with the rationale of holding a convention, in that public involvement allows the people to confer legitimacy onto a new constitutional structure. Also, if the proposals are to be put to the broader electorate in a referendum, then people may have a greater degree of trust in the proposal, if members of the public have been involved in devising the proposal. Usually, representation of this element has been through (largely) random selection, as in the Citizens’ Assemblies on Electoral Reform in British Columbia and Ontario.

The Citizens’ Assemblies in British Columbia and Ontario both saw their proposals falter in referendums (although in British Columbia 57.7% supported the proposal, but it was short of the 60% threshold). This raises two questions. Firstly, whether a convention with different elements in its composition would have arrived at a proposal, which would have proved more appealing to a greater portion of the electorate. Or, whether you have to accept that however a convention is composed, sometimes the issue is too intractable for it to be resolved on that occasion. The second question is that if proposals are to be put to a referendum, then as much focus should be attached on the rules and conditions of the referendum as there is on the convention that frames the question.

Public Interest

Short of an Ackerman-esque major ‘constitutional moment’, the perennial difficulty with constitutional change is the limited desire amongst the general public for constitutional change and debate. Experiments aimed at increasing engagement with politics in general have been met with limited success. For example, the 25% turnout at the open primary in Totnes before the 2010 election did not ‘indicate a zealous public chomping at the bit to get involved’ (Ruth Fox, ‘Engagement and Participation: What The Public Want and How Our Politicians need to Respond’, 62 Parliamentary Affairs 673). The Hansard Society’s Annual Audit of Political Engagement consistently shows that around 50% have little interest in politics. However, a convention would be entirely new to British politics and its novel nature, could spark a greater level of interest, particularly if it tapped into the prevailing dissatisfaction with politics and involved members of the public.

Iceland’s Constitutional Council provides an interesting example of a particularly high level of public engagement (the report discusses Iceland in paras 24-27). After a National Forum of 1,000 citizens discussed themes for a new constitution, the Constitutional Council, was created with 25 citizens elected to draft the new constitution. An interesting feature of the Council’s method was its use of the internet to engage with the public. The Council posted draft articles on the internet and social media, inviting public comment and then posted redrafts taking account of the comments received. Council meetings were broadcast on the television and internet. After being approved in a non-binding referendum, the constitution is awaiting ratification. Whilst there are major differences between Iceland and the UK – Iceland’s population is around 320,000, compared to the UK’s 60 million, elements of the three-stage process of a general meeting, elections and engagement could be a useful process for future reform mechanisms. The method of using the internet to allow discussions of draft articles is particularly interesting as it would allow the broader public to scrutinise proposals. For more on Iceland see Thorvaldur Gylfason, ‘From Collapse to Constitution: The Case of Iceland’, CESifo Working Paper No. 3770

The Future?

Finally, the report makes an interesting hint. It suggests that the use of a convention with an open remit could struggle to reach conclusions (para 81). This is almost certainly correct. If a convention with an open remit to consider the issue of the relationship between the devolved institutions would struggle, it raises the issue of how appropriate a convention would be to codify the UK constitution. Given the complexity of such a task, it could be that the best use of the convention method would be not to have one convention, but several conventions. Each convention would consider a different aspect of a codified constitution, possibly operating with other procedures, where appropriate, and all being subject to one overarching body co-ordinating the whole process. It must be noted that having several conventions or bodies, whilst logical, could have difficulties in engaging the public across the different procedures, bodies and conventions. Clearly, this is a consideration for another time, particularly as the Committee is considering this very issue, with its inquiry into Mapping the Path to Codifying or Not Codifying the UK Constitution.

Conclusion

By offering something new to the constitutional change process, constitutional conventions have a potential role in resolving constitutional issues, which have eluded the more traditional methods. The Reports main value is in identifying constitutional conventions as a method for constitutional change that should be pursued. However, the report has possibly approached the issues in the wrong order. Conventions need to be examined first, and it needs to be establish how conventions can be used as a sound and viable process in the UK. Only then can you consider for which issues a convention would be appropriate. House of Lords reform is clear case, as the ordinary processes of constitutional change have broken down time and time again. The future of the Union and the English Question are two further candidates, but it is too early to be definitive about this. Wait until 19th September 2014.

Craig Prescott is a Teaching Assistent and Ph.D student at the School of Law, University of Manchester.

Suggested citation: C. Prescott, ‘The Union, Constitutional Change and Constitutional Conventions (and English Regionalism?)’ UK Const. L. Blog (3rd April 2013) (available at http://ukconstitutionallaw.org)

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Filed under Constitutional reform, UK Parliament

Tagged as Convention for the UK, English Regionalism, House of Commons Political and Constitutional Reform Committee, McKay Report, West Lothian Question

by UKCLG blog editors | March 12, 2013 · 7:22 am

Stephen Tierney: After the referendum – the Scottish Government’s proposal for a written Constitution

The debate over Scottish independence has turned recently to discussion of the post-referendum landscape. On 5 February the Scottish Government published Scotland’s Future: from the Referendum to Independence and a Written Constitution which suggests that a two stage process would follow upon a majority Yes vote. From the date of the referendum until March 2016 a period of constitutional negotiations with the UK Government is proposed, culminating in the formal grant of independence by Westminster. Following the Scottish parliamentary elections in May 2016 a constitution-framing process, internal to Scotland only, would then take place. Although the prospect of a Yes vote is, to say the least, far from certain with support failing to rise above 35% in most polls, each of these proposed stages is interesting, not least for the questions left unanswered in the Scotland’s Future paper.

The first issue is timing. Scotland’s Future (1.6) states: ‘The right time for a written constitution to be drafted is… after independence, not before. At that point the people of Scotland, whatever their views in the referendum, will be able to engage fully in the process of planning for our country’s future.’ It is, therefore, not the intention of the Scottish Government to engage in setting out a draft constitution in advance of the referendum. But it still seems inevitable that speculation about the content of a future constitution of an independent Scotland will inevitably be a focal-point, albeit possibly not a major one, of the referendum campaign, particularly after the Scottish Government publishes its promised White Paper towards the end of this year on the content of independence which will inevitably contain commitments which would in due course require constitutional protection.

Not surprisingly, therefore, Scotland’s Future is somewhat light on the possible content of a new constitution, but there are some hints about the Government’s preferences. It is notable in itself that the Government proposes a written constitution (Scotland’s Future 1.5). It also suggests that the Sovereign will continue as head of state (2.14); that there will be a Supreme Court of Scotland, and that this court will have the power to strike down unconstitutional legislation (the constitution will contain ‘citizens rights that cannot be taken away by a decision of Parliament’ – 1.5). This raises a number of questions about court structure under the new regime. How would a new Supreme Court be established and how would it be populated? Would it be a free-standing court with personnel separate from the existing superior courts in Scotland, and if so could this be justified given the limited number of constitutional issues that come from Scotland to the UK Supreme Court at the moment? Or would judges from the Court of Session sit on this on an ad hoc basis?

There is also a reference to Scotland’s membership of the European Union (and of course there is a separate debate about how that membership will be secured) being subject to constitutional provision (2.3). Little is said about institutional arrangements. One question that will inevitably arise in the referendum campaign is whether there would be any proposals to make the Scottish Parliament bicameral or at least to institute some model of review body to assess and scrutinise draft legislation.

Scotland’s Future spends longer setting out a commitment to collectivist values in the form of social rights which it suggests will also enjoy constitutional protection. There is a proposal to enshrine within the constitution an entitlement to public services and ‘to a standard of living that, as a minimum, secures dignity and self-respect’ (1.10) and possibly also ‘constitutional rights in relation to issues such as welfare, pensions, health care and education’ (1.10). There is also a radical suggestion that principles on climate change, the environment and the sustainable use of Scotland’s natural resources should be constitutionally protected and that there might be a constitutional ban on nuclear weapons being based in Scotland. Each of these proposals of course raises questions about what type of enforcement would accompany such provisions; in particular would the courts be vested with the duty to enforce social and environmental rights etc., the constitutional appropriateness of such a duty the competence of judges to execute it. The final substantive proposal in Scotland’s Future is for an examination of the war power and a constitutional guarantee that this power would be shared by the Scottish Government and the Scottish Parliament. Separately, the Government has also suggested constitutional provisions on Scotland’s system of local government.

The paper also turns to process and it is here that the two stage approach emerges. The first stage after the referendum would be the interim period within which Scotland would become independent. The intention is that during this period of some 15-16 months up to March 2016, agreements will be reached between the Scottish and UK Governments on this transition, establishing the timetable towards ‘independence day’ in March 2016. All of this would pave the way for the scheduled elections to the Scottish Parliament in May that year, which would on this proposal become elections to the Parliament of an independent country.

Scotland’s Future acknowledges that the following issues would need to be the subject of negotiation and agreement: ‘the division of financial and other assets and liabilities (including oil revenues and assignation of other tax revenues, military bases and overseas assets), the transfer to the Scottish Parliament and Government of political authority over institutions previously controlled at Westminster… and the timetable for the speediest safe removal of weapons of mass destruction from Scotland.’ Interestingly, there is also reference to the ‘on-going co-operative arrangements that the peoples of Scotland, England, Wales and Northern Ireland would share’. It is not clear what is meant by this, although notably the Scottish Government during its period in office between 2007 and 2011 produced a White Paper ‘Scotland’s Future: Draft Referendum (Scotland) Bill Consultation Paper’ which famously stated that under independence ‘the social union with the remainder of the UK would be maintained, with the nations continuing to co-operate on a range of matters’. It is not clear if this is what is meant by ‘on-going co-operative arrangements’ in Scotland’s Future. It is also acknowledged in Scotland’s Future that some matters will remain unresolved until after independence as happened in the split between the Czech Republic and Slovakia; in other words even after 2016 there would still be an on-going period of gradual separation.

Turning to process, it is also suggested that the Scottish Government will seek to make the post-referendum negotiations inclusive (2.7) by inviting ‘representatives from the other parties in the Scottish Parliament, together with representatives of Scottish civic society’ to join in these negotiations and in helping to ensure ‘the continuity of those public services which are in reserved areas.’ The basis for the interim arrangements would be a ‘constitutional platform’ to facilitate the new Parliament and Government elected in 2016. There would potentially be something of a constitutional vacuum after ‘independence day’ when the writ of the Scotland Act would no longer run but in which no new constitution would have yet been promulgated. And so (2.10) ‘until that constitution is drafted and comes into force, arrangements will be in place from independence day to consolidate the existing rights of citizens and give the Scottish Parliament and Government the legal, financial and other powers necessary to govern Scotland effectively across the full range of national issues. These arrangements will form Scotland’s constitutional platform.’ A number of questions arise: where would sovereignty rest in this period – would the Scottish Parliament take on a new sovereign power through the constitutional platform, or would there be some notional reversion to the sovereignty of the pre-1707 Scottish Parliament? And what of the Crown, the Privy Council etc.? Finally, Scotland’s Future proposes a constitutional path to terminate Westminster’s authority. The UK Parliament would legislate ‘to acknowledge the end of its power to legislate for Scotland’ (2.13) in a way similar to the Malta Independence Act 1964 and the 1931 Statute of Westminster.

There is also some discussion of the process towards a written constitution. Scotland’s Future suggests the possibility of a constitutional convention to be convened by the newly elected independent Scottish Parliament to draft this (1.7). It is not clear what shape this would take but it ‘should engage all the people of Scotland in the process of nation-building and allow them a say in defining how our country will work. (1.6)’ Reference is made to the citizen-led assemblies and constitutional conventions convened in British Columbia (2004), the Netherlands (2006), Ontario (2007) and Iceland (2010) as well as the citizen-led constitutional convention convened in Ireland in 2012. Given that such an open process is proposed we must assume that the substantive proposals for the written constitution set out in Scotland’s Future would themselves be open to revision. For example, such a constitutional convention may well decide not to include social rights and could also opt for a republican rather than monarchical system of government etc. Finally, another question is, would there be referendum to ratify this constitution and would the referendum find its way into the constitution as a standard mechanism of constitutional amendment? What we know of referendum use is that it tends to be contagious; once used to change a system of government it often finds its way into a new constitution as part of the process of future change.

It is likely that these issues will be discussed in detail over the next 18 months. Regardless of the outcome of the referendum they may well also prompt wider UK debates about constitutional change and could also help frame the landscape for further constitutional re-thinking in Scotland, even in the event of a majority No vote.

Stephen Tierney is Director, Edinburgh Centre for Constitutional Law. This blog is based upon a paper given to the Law Society of Scotland on 7 March 2013. I am grateful to those present for a most fruitful discussion of the paper.

Suggested citation: Stephen Tierney, ‘After the referendum – the Scottish Government’s proposal for a written Constitution’ , UK Const. L. Blog (12 March 2013) (available at http://ukconstitutionallaw.org).

Ryan Goss: What is the Bill of Rights Commission’s ‘strong argument’?

This week’s report from the Commission on a Bill of Rights was entitled ‘The Choice Before Us’. In framing that choice, a majority of the Commission concluded that, ‘on balance, there is a strong argument in favour of a UK Bill of Rights’. In this post, I explore and test that ‘strong argument’ as it is developed in the Commission’s report. I ask whether the argument developed in the report is as strong as the majority might like us to believe.

The report does not articulate its ‘strong argument’ in a particularly pithy way (perhaps this is a result of the fractured nature of the Commission’s report – there are minority views on particular points as well as separately-explained-but-concurring majority opinions, and a series of additional opinion papers). Instead, a series of constituent sub-arguments appear to form the central ‘strong argument’ spoken of by the majority. It is to these sub-arguments that I turn. In doing so I draw on the Overview and the substantive section of the report.

The majority begin by noting that ‘the other 46 signatory states to the European Convention on Human Rights generally have their own written constitution, their own national bill of rights written in their own words or both’. This observation, the majority states, would only be ‘a piece of academic curiosity, if there were widespread public acceptance of the legitimacy of our current human rights structures’. At this point we might pause briefly to wonder whether the Commission inquired into the levels of ‘widespread public acceptance’ of human rights structures in the other 46 states (the lengthy comparative sections in Chapter 5 certainly give no detailed consideration to levels of ‘public acceptance’ in other comparable jurisdictions). Without such consideration, the Commission’s sub-argument in this regard risks confusing the existence of national bills of rights with the widespread public acceptance of those bills of rights.

The report develops its concern about public acceptance by holding that ‘there is a lack of public understanding and “ownership” of the Human Rights Act’ and of the European Convention on Human Rights. The ownership argument appears to be twofold. First, the majority report concludes that there is a lack of understanding about the current human rights arrangements. Second, there is the suggestion that the current arrangements are ‘widely regarded by the public as “foreign” or European’.

Some might think that concerns about ‘lack of understanding’ and ‘regard’ could be addressed by improving understanding about existing arrangements rather than by far-reaching constitutional reform. Not the majority. Those members of the commission found it ‘hard to persuade themselves that public perceptions are likely to change in any substantial way as a result [of better public education and understanding], particularly given the highly polemical way in which these issues tend to be presented by both some commentators and some sections of the media’.

Instead of education, therefore, the majority issues a carefully-caveated call for a new British Bill of Rights incorporating and building ‘on all of the UK’s obligations under the European Convention on Human Rights’. Here we must pause again to consider the Commission’s logic: the problem, as identified by the Commission, is poisoned public understanding in a politicised and polemical environment. The Commission does not think a public education campaign about the existing system can overcome such politicisation, but is nonetheless apparently confident that ‘some commentators and some sections of the media’ will restrain their polemicism when it comes to a new structure built on and incorporating the old structure. A triumph of hope over experience?

Naturally the notion of a Bill of Rights built on and incorporating existing rights leaves plenty of room for ambiguity. The Commission, for example, suggests that a Bill of Rights might ‘define more clearly the scope of some rights and adjust the balance between different rights’. One wonders if such definition and adjustment could easily be done consistently with the UK’s obligations in Strasbourg. We might also wonder whether the apparent concerns about ‘Europeanness’ and ‘foreignness’ would truly be addressed by a new structure built on and incorporating the existing relationship with Strasbourg. (The separate opinion of Lord Faulks QC and Jonathan Fisher QC develops the sceptics’ arguments).

The majority also suggests that, while any Bill of Rights ‘should have at its core the rights currently in the European Convention’, the language of the Bill need not be ‘identical’ to that of the Convention. Instead, the Bill of Rights could be ‘written in language which reflected the distinctive history and heritage of the countries within the United Kingdom’. If the Commission is right and the public discourse is so politicised and polemical that the public cannot be educated about the existing system, we might wonder about the extent to which the public can be educated about the details of the language of a proposed Bill of Rights. Moreover, it is admirably optimistic for any group of lawyers to argue that two differently-drafted sets of rights could be practically identical in effect. Either the two sets of rights are different, in which case the UK risks placing itself in contravention of the UK’s obligations in Strasbourg (which may or may not be a problem, but is something which must be honestly confronted), or the two sets of rights are identical, and the British people would be being sold the same old rights in different clothing (one might wonder what the ‘polemical’ commentators and media analysts might make of such a manoeuvre).

The Commission is careful to identify reasons to proceed slowly and respectfully of existing constitutional arrangements. But if there is indeed ‘a choice before us’, the future of human rights protection in the UK deserves open and honest discussion of the alternatives, and the arguments for and against major constitutional change. Unfortunately, as the Commission itself notes seemingly without irony, ‘it is not always easy to disentangle…what are tactical positions rather than fundamental beliefs’.

There may be an argument made in the majority’s report. But is it a strong argument?

Ryan Goss is a Junior Research Fellow in Law, Lincoln College, Oxford

Suggested citation: R. Goss, ‘What is the Bill of Rights Commission’s ‘strong argument’?’ UK Const. L. Blog (20th December 2012) (available at http://ukconstitutionallaw.org,

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Tagged as Human Rights Act, Human Rights Act Reform, Human Rights Commission

by Constitutional Law Group | December 19, 2012 · 3:02 pm

Colm O’Cinneide: The Commission on a Bill of Rights: Playing On Even While the Goalposts Have Shifted?

a_ocinneide The Commission on a Bill of Rights has reported. As expected, its members did not reach agreement on a common set of conclusions. Seven of the nine commissioners took the view that there were ‘strong arguments in favour of a UK Bill of Rights’, on the basis that it would represent a ‘fresh beginning’ and provide a way of side-stepping the ‘highly polarised debate’ that now surrounds the HRA. In their view, such a Bill of Rights should provide ‘no less protection than is contained in the Human Rights Act’, and be ‘written in language which reflected the distinctive history and heritage of the countries within the United Kingdom’ in order to attract ‘greater public ownership’ and popular legitimacy than the HRA currently enjoys. However, two commissioners, Baroness Kennedy QC and Philippe Sands QC, disagree: in their view, the majority have failed to identify any real shortcomings in the functioning of the HRA, the case for introducing a new Bill of Rights has not been made, and there is a real risk that the majority’s conclusions will be used to justify attempts to ‘decouple’ the UK from the ECHR system of rights protection and to dilute rights protection for non-citizens and other vulnerable groups.

Media and political reaction to the Commission’s report has been largely hostile. Many commentators have already written it off in Sadiq Khan MP’s phrase as a ‘dog’s breakfast’, and it may disappear into political limbo. However, public lawyers will find much in the report to sink their teeth into, even if not everything in it will be to their taste.

To start with, the Commission’s report engages seriously with the complexity of UK human rights law while attempting to stay within its constrained terms of reference. As Adam Wagner has suggested, it has produced an ‘interesting health check of the human rights system as it is functioning today, warts and all’. It shows considerable sensitivity when it comes to the devolved regions, and correctly makes the point that any move towards drawing up a UK Bill of Rights must proceed gradually and take place within the context of a wider constitutional debate. The majority also make the important point that most Council of Europe member states have national bill of rights which often protect rights to a similar or even a greater degree than the ECHR while also attracting a high degree of ‘public ownership’, in contrast to the HRA.

However, the majority then leap to the conclusion that a UK Bill of Rights couched in suitably resonant language could come to enjoy a similar status. This is a big assumption. Not all national bill of rights have enjoyed a charmed existence – for example, the Canadian Bill of Rights 1960 failed to attract popular affection or to protect rights to any meaningful degree. Everything depends on the content of a Bill of Rights, its mode of enactment and the substance of the legal protection it provides for human rights – and the majority report is remarkably vague when it comes to these key points.

For example, the majority provide little detail as to how any UK Bill of Rights might function in concrete legal terms. They suggest that the ‘mechanisms in any UK Bill of Rights should be broadly similar to those in the Human Rights Act’ and in particular should contain a similar mechanism to the declaration of incompatibility provided for under s. 4 HRA. However, by mentioning s. 4 while conspicuously omitting any reference to s. 3 HRA, this conclusion obscures more than it illuminates when it comes to the key question of how much freedom should courts have to interpret legislation in a manner that complies with human rights principles. Crucially, the report is also silent on the key legal issue as to whether Convention rights as interpreted by the European Court of Human Rights should continue to be applied by national courts in tandem with any new national provisions, as is the case in every other member state of the Council of Europe.

The majority does reach a clear conclusion that socio-economic and environmental rights should not be protected under any future UK Bill of Rights, on the basis that it is ‘undesirable in principle to open up to decisions of the judiciary issues which, in their view, are better left, to elected legislatures’. In contrast, it concludes that a Bill of Rights could protect some additional rights such as the right not to be discriminated against on the grounds of ‘innate characteristics’, such as gender or ethnic origin. However, this specific right is already effectively protected under EU law and the Equality Act 2010, and the report sheds little light on what other rights could be protected that are not currently covered by the HRA.

In general, the majority report reads like a summary of the limited common ground shared by the seven commissioners who agreed to lend their names to it. The differences it glosses over are graphically illustrated by the separate papers written by various members of the Commission which are attached to the main report. These papers present a fascinating diversity of views, and highlight the tenuous nature of the common ground shared by the majority.

For example, Martin Howe QC sets out in detail in a paper entitled ‘A UK Bill of Rights’ how he thinks such a Bill of Rights could be worded using the language of the common law so as to provide better protection for basic civil and political rights than currently exists under the ECHR/HRA. However, he also suggests that such a Bill of Rights could legitimately grant non-nationals a lesser degree of rights protection than currently exists under the ECHR/HRA. Furthermore, in a subsequent paper entitled ‘Entrenchment of a UK Bill of Rights’, he agrees with Anthony Speaight QC that the judicial power to re-interpret legislation under s. 3 HRA should be significantly pruned back. In other words, Howe’s proposal would provide a significantly lower level of legal protection for rights than is currently available under the ECHR/HRA.

In contrast, in a joint paper entitled ‘Unfinished Business’, Lord Faulks QC and Jonathan Fisher QC show little interest in working out the intricacies of how a UK Bill of Rights might be designed. Instead, they make it clear that, in their view, the function of any home-grown UK Bill of Rights would be to limit the influence of what they consider to be the ‘judicially activist’ European Court of Human Rights. Their paper cites a grab-bag of sources, including the Mail on Sunday letters column and some rather selectively interpreted judicial writings, to make the case that the case-law of the Strasbourg Court has diminished respect for human rights in the UK, and present the proposed Bill of Rights as a first step in altering this narrative.

A third and radically different perspective is provided by Lord Lester QC in a paper headed ‘A Personal Explanatory Note’. Lord Lester both defends the Strasbourg Court against its critic and argues that the HRA is ‘a well-drafted and subtle compromise respecting both Parliamentary sovereignty and the need for effective legal protection of fundamental rights’. In his view, a home-grown Bill of Rights would build upon the achievements of the HRA, by approaching European human rights law ‘through UK law rather than around UK law’ and rooting human rights protection in deep British constitutional soil.

In other words, the majority disagree sharply on the key questions on the purpose and function of any future UK Bill of Rights and its relationship with the ECHR system of rights protection. However, they nevertheless agree that a UK Bill of Rights would represent an improvement on the status quo, on the basis that it would have a better chance of attracting public ownership. This conclusion seems to be based on a considerable faith in the symbolic appeal of any such future Bill of Rights and its capacity to bridge the current sharp divide that exist between supporters and opponents of the current state of UK human rights law. As Baroness Kennedy and Philippe Sands point out in their powerfully-argued dissenting opinion, entitled ‘In Defence of Rights’, it is ‘difficult to imagine how agreement could be reached on the idea of a UK Bill of Rights, even in principle, when views are so polarised as to what such an instrument might contain’.[1] Furthermore, as I have argued elsewhere, it remains open to question whether a UK Bill of Rights could in fact resolve all the current controversies that surround human rights law.

In general, it is hard to avoid the impression that the Bill of Rights debate has moved on from when the Commission was initially established in March 2011. It seems to have served as a learning process through which Tory politicians and think-tanks in particular have identified what they consider to be the real enemy, namely the alleged judicial activism of the Strasbourg Court. This is graphically demonstrated by an article published in the Daily Telegraph by the Justice Secretary (and Lord Chancellor) Chris Grayling MP on the day that the Commission published its report, where he promised only to ‘read and digest’ the Commission’s report while making it clear that the real problem as he sees it with human rights law is that the Strasbourg Court ’has overstepped the mark’. Mark Elliott, David Feldman and myself writing on this blog have highlighted the potentially serious consequences of Grayling’s suggestion that ‘it is time to examine how to curtail the involvement of the European Court of Human Rights in UK domestic matters’. However, it is clear that the real debate is now focused upon the UK’s relationship with the ECHR, and not on whether a new UK Bill of Rights is necessary or desirable.

Colm O’Cinneide is a Reader in Law at University College London.

Suggested citation: C. O’Cinneide ‘The Commission on a Bill of Rights: Playing On Even While the Goalposts Have Shifted?’ UK Const. L. Blog (19th December 2012) (available at http://ukconstitutionallaw.org,

[1] Kennedy and Sands also make the important point that political and public attitudes towards the ECHR/HRA are not as uniformly antagonistic as the majority assume, especially when viewed from the perspective of the devolved regions.

Cormac Mac Amhlaigh: Whether You Agree With its Conclusions Or Not, the Bill of Rights Commission Hit On An Important Issue For Human Rights and the Future of Britain.

cormac So the Bill of rights Commission has produced its final report after a 21-month long study into the state of human rights in British law, tackling the major question of whether Britain needs a Bill of Rights. The reaction from the legal fraternity has been marked by, well, slight disappointment. The biggest news of the report seems to be less its content and more the fact that it failed to reach unanimity on the questions in its terms of reference, such was the disagreement among its members about how to proceed. For some this was inevitable given the competing factions and vested interests which led the creation of the commission in the first place.

On the million dollar question of whether Britain needs a bill of rights, the plurality (given that there was no consensus) gave a qualified yes. One of the main reasons for this conclusion was the fact that the other obvious candidate for the title of Britain’s bill of rights, The Human Rights Act 1998, lacked sufficient ‘ownership’ by the public at large . A domestic bill of rights which, significantly, would build on, rather than replace, the rights contained in the Human Rights Act, would go some way in fostering popular engagement with human rights.

For some, not least the dissenting minority report of the commission, the necessity of a bill of rights is at best superfluous and at worst a smoke screen for more sinister motives such as undermining the rights already protected under the European Convention of Human Rights or a prelude to the UK’s withdrawal from the Convention. Whichever interpretation of the motivations of the plurality’s recommendations in the report, it does hit on an important issue.

Historically, bills of rights, as much as written constitutions, have been the product of a rupture with the past and the symbol of a brighter future. The French Declaration of the Rights of Man and the Citizen and the Bill of rights stitched into the US constitution as a series of amendments were part of the process of transition from the ancien regime to the founding of a new political community. More recently the German and Italian constitutions’ robust bills of rights, the myriad bills of rights of post-colonial constitutions, and those of the former soviet bloc countries and the new South Africa were all part of a transition from past tyranny to a more just future.

In this sense, bills of rights have played a strong identificatory function, a robust statement of the identity of a newly founded political community. The identity of this new community was marked by what it was not; a rejected ‘other’ be it a tyrannical monarch on the other side of Atlantic, as in the US case, or closer to home as in France, brutal dictatorships as in Germany, Latin America or the ex-Soviet countries or an odious regime such as apartheid in South Africa.

This identificatory function of a bill of Rights is something which the Human Rights Act, or indeed the Bill of Rights commission itself, would have difficulty fulfilling. Whereas copying and pasting from international human rights instruments into a domestic bill of rights as the Human Rights Act essentially does is not uncommon (see the ex-Soviet state constitutions and the myriad post-colonial constitutions), the nature and passage of the human rights Act, an ordinary Act of parliament passed pursuant to an election manifesto, was not quite the wide-ranging deliberative ‘constitutional moment’ which could have discharged this identificatory function. The bill of rights commission itself, while proposing a constitutional convention amongst its recommendations, could not have hoped to discharge this function either, so limited was its remit, membership and visibility among the wider public.

The identificatory function of a bill of rights is considerably complicated in an increasingly dis-United Kingdom. One of the reasons for the equivocation in the opinion of the plurality as to when such a bill of rights should be created in the report was the fact that with a referendum on Scottish independence looming, and a parallel bill of rights process for Northern Ireland ongoing, that the question of drafting a bill of rights for the UK as a whole, would require the resolution of the constitutional question of the shape of the United Kingdom into future.

However, the identificatory function of a bill of rights is crucial to this shape given that it constitutes a statement of the kind of political community the current (and future) UK is; one that upholds the rule of law and human rights or one that does not. As such, the question of a bill of Rights for Britain is inextricably bound up with the question of the future form of the UK, and like the question of form, is not one that will go away anytime soon.

Cormac Mac Amhlaigh is Lecturer in Public Law at the University of Edinburgh.

Suggested citation: C. Mac Amhlaigh, ‘Whether you agree with its conclusions or not, the bill of Rights Commission hit on an important issue for human rights and the future of Britain.’ UK Const. L. Blog (19th December 2012) (available at http://ukconstitutionallaw.org

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Tagged as Human Rights Act, Human Rights Act Reform, Human Rights Commission

by Constitutional Law Group | December 6, 2012 · 5:24 pm

David Mead: Who You Gonna Call – Mythbusters: the Need For Vigilance in the Great HRA Debate

davidmead It’ll be over by Christmas we thought – strongholds taken, fortifications dug in and positions entrenched. “It gives too much power to judges”…”why do we need to have any more European law?”…”like health and safety, only gone madder.” The debate over the HRA and a possible British Bill of Rights has become formulaic and sterile, no quarter ever conceded lest that be seen as a weakness for the other side to steamroller in and on to success. Gavin Phillipson in his recent ‘blogpost in these pages noted the political coalescence against the HRA. Truth and accuracy have succumbed to hyperbole and straw men, victims of the battle. Becoming tougher on rights and tougher on the causes of rights is only likely to intensify in the run-up to the publication of the Commission on a Bill of Rights report, expected in the next few weeks.

The latest skirmish saw the defeat this week of a ten-minute rule bill proposed by Tory backbencher, Richard Bacon (coincidentally my local MP). His bill, calling for repeal of the HRA, was defeated by 195 votes to 72. As with many of those seeking repeal or arguing for wholesale reform, much of the blame was misdirected – lain instead at the door of the undemocratic European Court and its perceived illegitimacy. That is, it is true, a question – but not one that is integral to resolving the conundrum of the HRA. Another weapon, almost always in the hands of the right, is to claim that the HRA and the ECHR has trivialised support for ‘real’ rights, or as Nick Herbert in his recent Policy Exchange Kingsland Memorial lecture called “the great rights”.

These points , and many more, need to be confronted by all of us who support some form of home-grown system for protecting rights but – and this is the point of this post – do we really offer that support best by creating and propagating our own myths? It is one thing to disabuse readers of The Sun which was urging the government to “Rip Up The Human Rights Act; the cause of rights can only be enhanced by showing underhand tactics for what they are. It is another to found a positive case for retention by being “economical with the actualité”.

Rebuttals and counters put out by supporters of the HRA aren’t immune from charges of partiality. The evening before the ten-minute rule debate, shadow Secretary of State for Justice, Sadiq Khan, put out Ten Myths about the Human Rights Act on LabourList, in an attempt to head off many of the usual suspects that were likely to be arrayed the following day. Khan is right on many points: clearly the HRA is likely to be more protective of rights for no other reason than that the common law can be “overridden by new legislation.” He was right too to highlight media portrayals that present a skewed truth. There was never any hope of Dennis Nielsen ever obtaining hard-core S & M pornography by calling in aid Article 10 – and it was rejected at the permission stage – yet shadow Home Secretary David Davis in an article in The Daily Telegraph in August 2004 asserted he’d been able to do so. These misunderstandings (in best light) – perhaps deliberate falsities – need to be combated. The DCA did so successfully in its Review of the Implementation of the Human Rights Act in 2006 but have these corrections made it in the public psyche – or are we still suffering the equivalent of EU “bent banana” syndrome? Equally, as Khan notes, there is a clear lack of public understanding, but not lack of support it seems – though of course it was the Labour government that simply landed it, without any consultation or public “buy-in”, something on which Alice Donald has commented so forcefully. It must also be sensible to advert to the Tories’ insistence on it being a British Bill of Rights – with its undertones of nationalism and concerns about limiting eligibility – and to assert that the rights in the HRA are rights for all equally, that it’s not simply “lefty claptrap about rights of minority groups”.

As well as these sound points, Khan does run the risk of some own goals, which might allow his rebuttals to be latched onto in turn by opponents as mischief-making and myth-creating. First, to deal with the assertion that “The HRA is foreigners imposing their human rights laws on Britain”, Khan writes that “history shows that it was Brits that wrote the ECHR. They are our human rights laws.” This of course is true of the Convention itself, the role of David Maxwell-Fyfe (later Lord Kilmuir) well-known, so to that extent, the ECHR is if not a British invention then at least very heavily influenced by British involvement. But is that what critics really mean, really complain about? It is not the ECHR that is ‘applied’ in the UK through the mechanism of s.2 but the case-law of the Strasbourg Court. The Convention itself is broadly worded and vague; it is case-law that tells us, to take an example, that the right to life in Article 2 also requires states to carry out an effective investigation into deaths. To that extent Gavin Phillipson and Alex Williams are surely not right (p.897) to argue that the HRA only makes rights binding, not the case law? No, the worry is that it is the jurisprudence of the Court that is being domesticated, either as an interpretative tool under s.3 or as a measure of government legality under s.6. Like all member states, the UK has only one judge at the Court. In that sense, the HRA – and the mirror principle adopted as the touchstone for s.2 – means that it is not unreasonable to assert there has been foreign imposition; simply pretending that the worry is misplaced does not make that worry vanish. Whether it is a good or bad thing is a further normative question – as is whether a panel of largely foreign unelected judges is qualitatively different to and lesser than a bench of home-grown unelected ones, given the universality of human rights …but these are not the questions Khan is grappling with. The fact that s.2 only requires judges to take account of Strasbourg law – and are not bound – does not really meet the objection, given the way the “no more, no less” principle has operated. Neither is Khan considering whether or not in extremis that there be an override power for national parliaments to be able to show their clear disagreement with ex cathedra pronouncements from the Court. On that, as we are seeing with the prisoner vote issue in the UK, there can quite properly be differences of view, yet it does the case for retaining the HRA little good for its supporters’ counter-arguments to be dealt with so easily.

Khan’s other problematic contention is when he counters the assertion that “judges now make our laws, not Parliament”. He gives this short shrift too:

Our Parliament is sovereign – it makes the laws of the land. Courts and judges don’t make laws – they operate within the laws as set by Parliament. Under the HRA, courts can only highlight human rights abuses – the so-called “declaration of incompatibility” – and it’s for Parliament to decide how to respond to such a declaration. While it can ignore the declaration, Parliament can’t be forced to change the law against its will.

It’s here I fear we’d simply have to agree to disagree. I have on these pages blogged about the dialogue model and specifically the downplaying of the impact of transformative readings under s.3. I have heard Francesca Klug and Shami Chakrabarti make the same point at public lectures in the past year: we shouldn’t be overly concerned with how the HRA operates since parliament retains its residual power to make and change law. Judges cannot do so; the most they can do is ‘warn’ by declaring legislation incompatible. That assumes a more pivotal role for s.4 than is usually accorded it, certainly in view of various judicial exhortations that it be a last resort. A more used remedy, certainly more versatile and more valuable to individual litigants, may well be s.3. “May well” because we simply do not know – and that is the problem. Data are not maintained on how far and on how many occasions judges have read words into statutes. If parliament is not aware – and the instances of s.3 being used does not feature in the annual Ministry of Justice report on human rights judgments – how will it know it has to act? It is a fudging of the real issue to maintain all is rosy simply because there is no strike-down power.

The position adopted by Khan here is also partial in that it ignores the wider judicial/political relationship being thrown out of kilter by enhanced proportionality review. It could feasibly be argued – and David Blunkett dedicated some of his career to exactly this – that the real impact of the HRA is in empowering judges to question and to control the substance of ministerial discretion on human rights grounds, so diminishing the scope for unchallengeable political decision-making. There are sound arguments either way – both as to whether judges indeed do so and should do so – but resolving that is not the point. Khan does not simply relegate this element of judicial power, he ignores it. While it could be argued that he is simply trying to deal with the ten most commonly lined-up counters to the HRA, he of course selected those ten. While the question of judicial power in the realm of legislation is undeniably a key one, the number of cases over the past decade where judges have utilised s.3 or s.4 are in low double-figures. That is probably the number of JR cases in a few months that the Administrative Court faces where the question is the proportionality of a minister’s decision. To ignore that crucial aspect is to mislead.

That leads to my final comment. In seeking to defend the HRA against its naysayers, there is no mention in Khan’s account of how the Labour Party in government – albeit before he was elected as an MP in 2005 – undermined the very legislation it brought in. Again, of course, that was not part of Khan’s project – but can half a picture really be true? From the Prime Minister downwards, unfounded and uncorrected assertions were made that the blame for various unpopular events taking place or unfurling – the Afghan hijackers not being deported, the release to kill again of Antony Rice – was the HRA. It is well documented in the JCHR report of 2006 on the DCA Review (above), in fact damningly so, that “…the Human Rights Act has been used as a convenient scapegoat for unrelated administrative failings within Government”. Is it so surprising now that the anti campaign has ascended to such heights when the framers of the Act gave it such a foothold? Dealing with the past, reconciliation, is the only real way to lay secure foundations for the future.

There are many and varied tough choices that need to be made as we move toward a future possibly with a British Bill of Rights rather than the HRA. At the heart of contemporary bills of rights debates is how to devise a mechanism that responds to the benefits that majoritarian decision-making can herald, for accountability, responsiveness and democratic legitimacy, and to the concerns it brings viz. that by definition it does not cater well for minorities – as well as the fact that it is responsive to our wishes only temporarily, at best to those currently able to vote. Human rights should be eternal, not ephemeral. That’s why conferring power on judges who do not need to seek election, let alone re-election, who can rise about party shenanigans, can seem so attractive. This must be especially so when the voting system functions to distort political power. The pitfalls are again well rehearsed. I’m not proposing a solution but simply wondering whether “the next time you’re faced with a Tory in full flow castigating the HRA”, as Sadiq Khan ended his piece, you really are better off equipped with a myth-making myth-buster of your own?

David Mead, Professor of Public Law and UK Human Rights, University of Essex

Suggested citation: D. Mead, ‘Who you gonna call – Mythbusters: the need for vigilance in the great HRA debate’ UK Const. L. Blog (6th December 2012)(available at http://ukconstitutionallaw.org).

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Filed under Constitutional reform, Human rights, UK Parliament

Tagged as Human Rights, Human Rights Act Reform

by Constitutional Law Group | November 6, 2012 · 4:42 pm

Paul Bernal: Internet Anonymity: A Very British Dilemma

Andy Smith, a senior security official at the Cabinet Office, caused quite a stir at the Parliament and Internet Conference last month, when he suggested that people should use false names and provide false information on the internet – and in particular, when using social networking sites. Reaction was explosive in both directions: Labour MP Helen Goodman called his comments ‘totally outrageous’, while security expert Alec Muffett, in a wonderfully strident blog, expressed strong support, calling Smith an ‘epic hero’. Both sides have strong reasons for their beliefs – and the disagreement is one that has been echoed over the years. It reflects an issue that seems to have particular interest for the British: when, how, and where to we have the right to anonymity – and who, when and where do people have the right to demand from us our real names and details.

Do we have a right to anonymity online?

There is a famous cartoon from the New Yorker back in 1993, with the caption ‘On the Internet, nobody knows you’re a dog’. It reflected the idea that your online ‘persona’ could be something you create, something that has no real connection to your ‘real world’ identity. In those seemingly long-lost days, the internet was a bit of a wilderness – a kind of ‘wild west’ where there was no place for law or governments. John Perry Barlow’s famous ‘Declaration of the Independence of Cyberspace’ in 1996 included the suggestion that ‘Your legal concepts of property, expression, identity, movement, and context do not apply to us.’ The inclusion of the word ‘identity’ was crucial. Identity, and the ability and right to either determine it or conceal it – to mask it – was fundamental to way that the pioneers of the internet saw their world. The adoption of the Guy Fawkes mask as the symbol of the current hacker group ‘Anonymous’, and indeed their very name, shows how that ideal has continued as a key part of what is considered to be ‘freedom’ on the internet.

Bringing in the law

As time has passed, however, things have changed online. Businesses have come in, and turned the place into a substantially commercial environment. Governments have come in, and tried to take a grip – to bring some kind of law and order to the online world. Both businesses and governments have seen the anonymity that characterised the internet in the early days as something threatening – and have sought to deal with it. From a government perspective, if we are to enforce law we need real names – to catch terrorist and paedophiles, to stop cyber-bullying and nasty anonymous commentators we need real names, which is why Helen Goodman found Andy Smith’s comments so outrageous.

From a business perspective, if they want to have a grip on their customers, the more information they can find out the better – and ‘real names’ and ‘real’ information is the best of all. That’s why the sharpest intakes of breath when Andy Smith made his remarks at the Parliament and Internet conference were from the Facebook delegation. Facebook’s policy is that we should all only use our real names on Facebook. Anonymity and pseudonymity are not only frowned upon but actually against their terms and conditions. Without real names, Facebook’s data – what they gather from us – would be far less valuable, and hence Facebook itself would be far less valuable.

An honourable British tradition?

There is, however, an honourable British tradition in our right to withhold our name and identity even from the authorities. Looked at from the perspective of our European neighbours, Britain does not have a particularly good record in terms of privacy – our loving embrace of CCTV cameras is considered quite extreme, and we were the drivers of the Data Retention Directive, considered by Peter Hustinx, the European Data Protection Supervisor to be ‘the most privacy-invasive instrument ever adopted by the EU’ – and yet when it comes to Identity Cards, we are firmly opposed. Most European nations, even those keenest on privacy in other ways, accept identity cards without much complaint. We don’t – and have not, since the famous case of Willcock vs Muckle ([1951] 2 KB 844) where the whole idea of identity cards in peacetime was considered almost un-British.

The National Registration Act, 1939, had allowed the police to ask for identity cards, for security purposes during the Second World War. The police continued to use it, and Willcock, a noted liberal, had refused to produce it when asked by police constable Muckle, and was prosecuted under the Act. Willock appealed, and still lost, but Lord Goddard commented that:

“From what Mr. Gattie [a prosecution lawyer] has told the court it is obvious that the police now, as a matter of routine, demand the production of national registration cards whenever they stop or interrogate a motorist for whatever cause. Of course if they are looking for a stolen car or have reason to believe that a particular motorist is engaged in committing crime, that is one thing: but to demand production of the card from all and sundry, for instance, from a woman who has left her car outside a shop longer than she should, or on some trivial occasion of that sort, is wholly unreasonable. This Act was passed for security purposes; it was never passed for the purposes for which it is now apparently being used.”

The inference is clear: that regular and trivial requirement for proof of identity is ‘wholly unreasonable’. Lord Goddard went on to say that relations between people and the police was something that we in this country are proud of – and that for police to regularly demand that people prove their identity would damage that relationship. Peoples identities are their own business, unless there is a drastic or emergency need for that identity to be revealed.

This is a tradition that has continued. Jacob Rees-Mogg MP, commenting on the potential expansion of police powers to demand identities contemplated in the London Local Authorities Bill, in December 2011, evoked another very British source: P.G. Wodehouse.

“Members will remember that Bertie Wooster, when arrested for pinching a policeman’s helmet on boat race night—I think wines had been taken—gave a false name when arrested. I cannot remember what name he gave, but I think he said that he lived in Acacia avenue. It might be a good address to give if you are ever caught doing things you should not do. There was no additional fine for giving a false name and Bertie Wooster paid the fine handed down at the magistrates court in London—five guineas, which was a lot of money in those days—but got away with giving a false name. There is a great tradition, from Odysseus to Bertie Wooster, of being allowed to hide one’s name from people who do not necessarily have the full authority to request it.”

There are current politicians who are known for using ‘false’ names: Conservative Party Chairman Grant Schapps is believed to have used at least three in addition to his own (Michael Green, Sebastian Fox and Chuck Champion), and the revelations of his use of those identities, whilst it has been criticised, has not been suggested to be illegal, and his party has not chosen to discipline him in any way.

There is of course a difference between anonymity and pseudonymity. Withholding your name and details, as Willcock did, is different from assuming a ‘false’ name, as Grant Schapps did and as Andy Smith advocated. However, in a practical sense, when operating on the internet, simply withholding your name is not an option. Online services require usernames and other user information – so to get the protection and rights that anonymity would provide can only be done by following Bertie Wooster’s approach and adopting a false name. Where anonymity is impossible, pseudonymity is the next best thing.

Rights to anonymity and pseudonymity?

The feeling in the Parliament and Internet Conference when Andy Smith made his statement may have been mixed, but there were sufficient numbers of people in the room who supported him – some just as vehemently as Alec Muffett – for it to be something that needs to be taken seriously. There are risks attached to the approach, and Helen Goodman’s concerns do have a real basis, but those risks are neither as great nor as insoluble as they might seem. Even when a pseudonym is used, where damage is caused it can be ‘broken’ – and the use of Norwich Pharmacal orders can help to reveal the person behind the problem. The respective rights can be held in some kind of balance. For most of us, for ordinary people, as Andy Smith suggested, pseudonymity can provide protection and reduce the risk of our data being misused, being hacked or lost. What is more, in suggesting that we should all use false names when needed, or not disclose our names at all, he seems to have been tapping into a long-standing British tradition, one supported not only in convention but in law.

Perhaps, if the Bill of Rights Commission really wants to look at specifically British rights, a right to use whatever name or details you choose unless there is a genuine, urgent and important reason not to, should be one of the rights that they consider. If they do, they would be facing considerable opposition, both from people like Helen Goodman who are concerned about the risks and dangers of crime online and from lobby groups from the likes of Facebook, whose business models might seem to be under threat. Whether the words – and the spirit – of P.G. Wodehouse and of Lord Goddard are strong enough to defend against them is another matter. I would like to think so.

Dr. Paul Bernal is a lecturer in the UEA Law School and a member of media@UEA. He blogs at: http://paulbernal.wordpress.com/ and tweets as @paulbernalUK.

Suggested citation: P. Bernal, ‘Internet Anonymity: A Very British Dilemma’ UK Const. L. Blog (6th November 2012) (available at http://ukconstitutionallaw.org).

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Filed under Constitutional reform, Human rights

Tagged as Anonymity, freedom of expression, Internet

by Constitutional Law Group | November 1, 2012 · 6:09 pm

Graham Gee: The Crime and Courts Bill and the JAC

The Crime and Courts Bill resumes its passage through the House of Lords this week. In a post in July, Patrick O’Brien offered some thoughts on proposals in the Bill on judicial appointments. I agree with Patrick’s analysis and merely want to add some thoughts on the limited changes relating to the Judicial Appointments Commission proposed by the Bill.

(1) One of the chief complaints of officials who operate under the CRA’05 is that it is overly prescriptive. The Crime and Court Bill’s key proposal on the JAC seeks to inject flexibility into the arrangements relating to the JAC’s composition and is fairly uncontroversial. Under Schedule 12 CRA, the JAC must have 15 members, comprising a lay chair, a further 5 lay members, 5 judicial members, a lay justice, a tribunal member, a barrister and a solicitor. The JAC recognizes that there is a case for “introducing a mechanism to allow flexibility into [its] size”. For example, it was envisaged that the JAC would in time assume responsibility for selecting lay magistrates. The MoJ has since made clear that this will not happen, raising the question of whether it is necessary for a lay magistrate to be a statutory member of the JAC. The Bill therefore seeks to inject flexibility into the JAC’s composition by requiring the Lord Chancellor to make provision about its composition via regulations agreed with the Lord Chief Justice. There are also uncontroversial proposals in the Bill on the role of the JAC’s vice-chair and the selection and term of commissioners.

(2) What bears emphasis is how little the Bill impinges directly on the JAC. This is surprising since, according to interviews conducted as part of a project on The Politics of Judicial Independence, relations between the JAC and the MoJ were so rocky between 2006-10 that thought was given to abolishing the JAC, and either brining judicial appointments back “in-house” in the MoJ or shifting responsibility to the Commissioner for Public Appointments. Given, then, that its very future was in doubt two years ago, what explains the fact that the JAC emerges relatively unscathed in the Bill? One explanation points to the significant personnel changes that have occurred since 2010 within both the JAC and the MoJ. Relations were rockiest when Jack Straw was Lord Chancellor and Baroness Prashar chaired the JAC. At the MoJ, not only are we onto our third Lord Chancellor since the start of 2010, there has been significant staff changes at all levels as well. Meanwhile the JAC has a new leadership team (headed by Chris Stephens as the chair and Nigel Reeder as Chief Executive) and an entirely new slate of Commissioners. There is, in essence, a “new” JAC. The question that arises is how willing is the new JAC to challenge the MoJ. For example, a constant source of tension between the JAC and MoJ has been the Lord Chancellor’s imposition of additional, non-statutory criteria for judicial office. Typically, the non-statutory criteria require applicants to demonstrate prior judicial experience. The “old” JAC routinely challenged the use of these criteria, arguing that it unnecessarily restricted the diversity of applicants. Will the “new” JAC be equally willing to challenge the Lord Chancellor on the use of non-statutory criteria?

(3) The Bill proposes to transfer the Lord Chancellor’s responsibility for making appointments below the High Court to the Lord Chief Justice. The proposal is for the JAC to make recommendations to the LCJ, who will have the power to decide whether to accept them. As Robert Hazell, Kate Malleson and I have argued, this proposal is misguided. While there might be a case for claiming that at the lower levels of the judiciary, the involvements of the Lord Chancellor is not required on grounds of political accountability, the goal of improving judicial diversity requires the continued involvement of the Lord Chancellor. Experience in other countries suggests that diversity does not happen automatically as the composition of the legal profession changes. Rather, it requires political will to drive forward changes, some of which might not be well received by the judiciary. Removing the Lord Chancellor removes the scope for this political will.

In the context of this blogpost, what interests me is whether the proposed transfer of the appointment power from the Lord Chancellor to the LCJ might change the relationship between the JAC and the LCJ. There have been tensions from time to time between the JAC and the judiciary. It was significant, however, that the LCJ offered support—behind the scenes and in public—when relations with the MoJ were rockiest, highlighting the LCJ’s role as a guardian of the independence of the JAC from the Government. It seems almost inevitable that relations between JAC and the LCJ will change once the LCJ must decide whether or not to accept the recommendations for judicial office made by the JAC. Relations may be shaped in part by how frequently the LCJ rejects or requests reconsideration of the JAC’s recommendations. Since 2006, the JAC has made nearly 3,000 recommendations, with the Lord Chancellor rejecting or requesting reconsideration only 5. (These figures are for the High Court and below). It will be interesting to see whether the LCJ is as sparing with the use of these powers.

(4) Much of the debate on the Bill in the House of Lords has concentrated on the proposal that the Lord Chancellor is to be included in the selection panels for the offices of the Lord Chief Justice and the President of the UK Supreme Court. The price for inclusion on the panel is loss of the veto at the end of the appointment process currently enjoyed by the Lord Chancellor. A constellation of peers from across the political and legal communities oppose this proposal lest it lead to what they deem an inappropriate level of political involvement on senior appointments. (For the second reading debate, see here and here; for the committee stage, see here and here). Comparatively little attention has been paid to whether transfer of the Lord Chancellor’s responsibility for appointments below the High Court to the Lord Chief Justice will lead to excessive judicial influence on appointments to the lower ranks. This proposal to transfer responsibility to the LCJ must be read alongside the already extensive judicial influence on JAC-run selection exercises: (i) five commissioners on the JAC are judges; (ii) before the Lord Chancellor must consult with the LCJ before directing the JAC to begin a selection exercise; (iii) each selection panel contains a judge, who is normally from the jurisdiction to which the appointment relates; (iv) judges draft the case studies that form part of the selection process; (v) judges write references for applicants; and (vi) towards the end of the process, the JAC must consult with the LCJ about the candidate that it intends to recommend to the Lord Chancellor. The influence of (vi) should not be underestimated: there were suggestions that the former Lord Chancellor, Ken Clarke, would not appoint those who had not been approved by the LCJ. Judicial influence, in short, runs deep throughout every stage of the appointment process. To be clear, judges have a legitimate interest and important role to play in appointments. However, there is an argument to be made that there is already too much judicial influence on JAC-led processes—even before transferring the final appointment power over lower level posts from the Lord Chancellor to the LCJ.

(5) Concerns about the extent of judicial influence on JAC-run selection processes point to the importance of safeguarding the independence of the JAC not merely from the Government, but also from the judiciary. Since judges have a legitimate interest in appointments, and since they inevitably have an important if largely unseen role to play in the selection process, inappropriate judicial influence can be difficult detect and calls for constant vigilance. The risk of judicial capture is real. The primary duty to safeguard the independence of the JAC from inappropriate judicial influence falls on the JAC Chair, leadership team and the Commissioners. The public interest in judicial appointments requires that the JAC is willing and able to resist judicial capture.

Graham Gee is a lecturer at the University of Birmingham. He is working with colleagues from UCL and Queen Mary on an AHRC-funded project on The Politics of Judicial Independence.

Suggested citation: G. Gee, ‘The Crime and Courts Bill and the JAC’ UK Const. L. Blog (1st November 2012) (available at http://ukconstitutionallaw.org)

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Filed under Constitutional reform, Judiciary

Tagged as Crime and Courts Bill 2012, judicial appointments, lord chancellor

by Constitutional Law Group | October 17, 2012 · 2:31 pm

Mike Gordon: Time for a Citizens’ Assembly on Lords Reform?

After the collapse of the coalition government’s House of Lords Reform Bill in August, the UK Parliament’s upper chamber remains resolutely unreformed. The substance of this most recent attempt to complete the process of reform which commenced with the first Parliament Act in 1911 has been examined in detail by a Joint Committee on the Draft Bill, in recent contributions to this blog, and elsewhere. For some, although certainly not all, the demise of the Bill is not to be lamented, yet the reasons for this vary substantially. Almost every element of the Bill has been criticised by someone, somewhere, with it being surprisingly difficult to identify a key overriding deficiency of the proposed reform (although clause 2, which provided that nothing in the Bill would affect the primacy of the House of Commons is perhaps the leading contender for most frequently considered flaw). The failure of this attempt at reform thus had an air of inevitability about it, fulfilling the prophecies of the many commentators who confidently predicted that the Bill would not attract sufficient support to progress through Parliament.

The primary purpose of this post is not, however, to reconsider the merits and/or demerits of the Reform Bill. The innovations proposed in the Bill have already been thoroughly evaluated, perhaps with the exception of the sheer length of time the government’s reform plan would have taken to implement, with three new intakes of elected members envisaged over the course of three general elections. Indeed, a staggered transition to the new arrangements, with reform of the Lords potentially incomplete until 2025, would in my view have engendered unnecessary uncertainty in relation to the legitimacy of the interim chamber(s), and unduly delayed the development of a distinct political culture and working practices appropriate to the reconfigured house. And, of course, a three stage process would have left future governments with two convenient opportunities to ‘pause’ reform prior to its conclusion, potentially transforming interim arrangements into a more enduring state of affairs as is almost traditional in relation to the Lords.

Nevertheless, the purpose of this post is to suggest a way forward. While it has been argued that this most recent proposal represented a once in a generation chance to reform the House of Lords, this seems likely to have been rhetoric rather than reality. Lords reform has already proved to be an issue of remarkable resilience, remaining a matter of debate for over a century. All three major UK political parties now accept that the Lords is in need of reform, and committed to bringing about change in their 2010 manifestos (distinguishing this issue markedly, for example, from the also failed attempts to reform the voting system for elections to the House of Commons). Further, the possibility of Lords reform being re-employed as a bargaining chip between potential coalition partners cannot be discounted. This is especially the case in an era when a pluralist approach to politics, filtered through a first-past-the-post voting system designed to cater for two parties, leaves the prospect of future hung parliaments more rather than less likely.

Yet even if a need for reform of some kind is accepted in principle, have politicians, academics and other interested parties reached the point of fatigue with respect to the detail of reform of the House of Lords? The volume of material produced might suggest not, yet as the failed proposals, committee reports, and academic commentaries mount up, it becomes ever more difficult to see how progress which is satisfactory to a large enough contingent can be achieved. Appeals to international experience cannot in and of themselves offer a clear way forward, due to the diversity evident when the composition and powers of elected second chambers around the world are compared. How might we move, then, from the wealth of solutions that we presently have, to decide definitively how to put the upper house in order?

One way in which this objective might be achieved is to focus on the methodology of constitutional reform, rather than the substance of the reform itself. In circumstances of disagreement about the desirability of competing visions of a reconfigured House of Lords, the major political parties could together commit to resolve this disagreement by democratic means. The Joint Committee on the Draft Bill proposed that a shift to an elected House of Lords was of such constitutional significance as to require that a referendum be held to approve the change. Yet the three main political parties could go further, and commit to convene a citizens’ assembly after the next general election to settle the issue of Lords reform decisively.

Citizens’ assemblies have been used in a number of countries in recent years to assess options for specific constitutional reforms, and make recommendations which can then be put to the general public for further consideration, and potentially, approval at a referendum. Citizens’ assemblies were established in Canada to consider electoral reform at a provincial level, in British Columbia in 2004 and Ontario in 2006, with referendums subsequently held (two in the case of British Columbia) giving the electorate the opportunity to accept or reject the assemblies’ proposals. The Canadian assemblies were comprised of citizens selected at random from the electoral register, with adequate representation of geographical regions, men and women, and aboriginal people ensured. Further, at a national level, a Civic Forum on electoral reform was convened in the Netherlands in 2006, which was also composed of randomly selected citizens. This Civic Forum was, however, tasked with making recommendations to the Dutch government, rather than directly to the people via a referendum, in contrast with the two Canadian assemblies (on these citizens’ assemblies generally see G. Smith, Democratic Innovations: Designing Institutions for Citizen Participation (CUP: 2009), Ch 3).

Similar methodology is also imminently to be used in Ireland, where a constitutional convention, with two-thirds of the members to be citizens selected at random, is to be established to consider a number of specific constitutional issues (including the reduction of the Presidential term of office to five years, reducing the voting age to 17, and reviewing the Dáil electoral system) and report to the Houses of the Oireachtas. Interestingly, for present purposes, the convention will not consider reform of the Irish Seanad, with a referendum on abolition of the upper house instead to be held in the latter half of 2013.

Finally, and most boldly, in Iceland citizens were chosen to form a Constitutional Council to draft a new revised constitution for the state in the aftermath of the 2008 financial crisis. Following a larger National Assembly held in 2010, which involved a significant number of randomly selected citizens reflecting on the core values underpinning the Icelandic constitutional settlement, a smaller group of 25 citizens were tasked with producing a new constitution, relying extensively on the internet to canvass the views of members of the wider public. These citizens were selected originally via an election to a Constitutional Assembly, distinguishing this example from those considered above, but this was subsequently invalidated by the Icelandic Supreme Court on technical grounds, leading to the formal appointment by the government of the same ‘elected’ individuals to a Constitutional Council (on the process of reform in Iceland generally see T. Gylfason, ‘From Collapse to Constitution: The Case of Iceland’ CESIFO Working Paper No. 3770, June 2012, at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2034241). Having been considered by Althingi, the Icelandic Parliament, six questions relating to the draft constitution will now be put to a referendum of the people of Iceland in a matter of days, on 20^th October 2012.

This necessarily brief sketch is intended simply to demonstrate that citizens’ assemblies (whether comprising of members selected at random or by election) can be, and increasingly have been, employed to consider both specific and general constitutional conundrums. Such assemblies can be tasked with assessing a variety of alternative solutions, drawing on appropriate expert support and the views of the general public, and ultimately making recommendations for evaluation and approval in the polity at large. The virtues of such citizen-led deliberation are that it enables a broader range of perspectives to be considered in a public space designed for informed reflection, while enhancing the authority and legitimacy of the proposals developed, which are untainted by any general disillusionment with professional politicians. As such, and perhaps crucially in relation to the problem of the House of Lords, a citizens’ assembly could be used to bypass deadlock or intransigence among political elites, and provide fresh impetus for constitutional reform.

Of course, the utility of citizens’ assemblies should not at this stage be overstated; they are not necessarily a panacea for all constitutional ills, and while such mechanisms have obvious classical democratic origins, are only gradually re-emerging as a tool which can be used for the implementation of contemporary constitutional reform. Further, the use of a citizens’ assembly to develop proposals for reform does not guarantee that successful reform will actually be the result, as the Canadian examples clearly demonstrate. In light of this, the result of the imminent Icelandic referendum will be of great interest to those who find the idea of citizens’ assemblies attractive in principle.

Nonetheless, in relation to Lords reform in the UK, a citizens’ assembly could potentially offer a very useful democratic solution to a problem politicians have been unable to resolve, as well as a normatively appealing way of increasing popular engagement with constitutional issues in its own right. And if the key objection to the continued existence of the House of Lords is its undemocratic nature, it would be apt for the future of the upper chamber to be settled by a group of UK citizens, potentially subject to the approval of the entire electorate at a referendum. The time seems right for the UK to experiment with such an approach to constitutional change, and convene a citizens’ assembly to try to solve the problem of Lords reform once and for all.

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

Suggested citation: M. Gordon, ‘Time for a Citizens’ Assembly on Lords Reform?’ UK Const. L. Blog (17th October 2012) (available at http://ukconstitutionallaw.org)

1 Comment

Filed under Comparative law, Constitutional reform, UK Parliament

Tagged as Citizens' Assemblies, Democracy, House of Lords, House of Lords Reform, Iceland, Ireland

Category Archives: Constitutional reform

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Mike Gordon: Time for a Citizens’ Assembly on Lords Reform?

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