Category Archives: UK government

by | May 10, 2013 · 7:30 am

Tarunabh Khaitan: Caste as Race—A Welcome First Step

khaitan_tarunabhMy earliest memory of my encounter with the caste system is that of a ten year old growing up in my small hometown in Bengal. Playing with the neighbourhood kids, I spotted the familiar figure of Lakkhi—squatting over the open drain in the neighbourhood, cleaning it assiduously. Her back was turned to us, and thinking it would be a good idea to surprise her, I snuck close and playfully threw my arms around her. That innocent embrace invited immediate criticism from children not yet in their teens, taunting me for having touched an ‘untouchable’. I remember feeling ashamed of myself for having failed to imbibe the nuances of caste. It would take a good few years for me to realise that the real reason to be ashamed was not thinking about what Lakkhi felt at that time.

But caste is not something that exists only in the cities and villages in the Indian subcontinent. With the diaspora, caste has travelled around the world, the United Kingdom being no exception. Despite activist and academic demands, the then Labour government decided not to prohibit caste discrimination when it enacted the Equality Act 2010. Instead, section 9(5) of the Act permitted a Minister to amend the Act ‘so as to provide for caste to be an aspect of race’—a power that was never exercised. Section 97 of the recently enacted Enterprise and Regulatory Reform Act 2013 now requires the concerned Minister to amend the definition of ‘race’ in section 9(1) of the Equality Act to include ‘caste’. The new legislation also empowers the Minister to review the operation of the amended section 9(5) of the Equality Act and repeal it if necessary. The House of Lords would have preferred a more straightforward and permanent expansion of the definition of ‘race’ by Parliament directly, but compromised to persuade a cautious Commons.

The controversy illuminates a key aspect of the point of discrimination law. Discrimination law does not prohibit all distinctions between classes of persons that are unreasonable, arbitrary, or even wrongful. The Equality Act will not interfere with an employer’s refusal to hire a qualified applicant named Wendy because he disapproves of people whose first names begin with the letter ‘W’. Similarly, (unless a correlation with race can be established) eye-colour is not a protected characteristic on its own right. Nor is football club fandom. In order to be protected, the ground has to have some salience in a given society, a salience conferred upon it by its close connection with relative group disadvantage. Sex is protected because women are significantly more disadvantaged than men, and race is protected because blacks (and some other races) suffer pervasive disadvantage (it will take more than a blog post to explain why it may still be alright to protect men and whites anyway). Wendy is not protected because the letters of people’s names do not define any group that suffers (or is likely to suffer) pervasive and systemic disadvantage. The employer’s refusal to hire her is eccentric, arbitrary and wrong, and may even be illegal under certain circumstances—but not by virtue of discrimination law. It is unlikely that another employer will treat Wendy similarly.

The current controversy is really about whether caste is salient enough in this country to merit the protection of the Equality Act. In other words, the moot question is whether, in the UK, a dalit person—someone at the bottom of the caste hierarchy—is more like a woman or a black person or like Wendy. There has never been any doubt about the salience of caste in India. The first legal response in British India came early in the form of the Caste Disabilities Removal Act 1850. The Constitution of 1950 abolished untouchability, provided for dalit access to temples, prohibited caste discrimination and mandated affirmative action for ‘lower’ castes. Several statutes have been enacted after independence too. Of course, serious concerns over the design, implementation and impact of these measures remain. The point is that caste clearly satisfies the salience requirement in the Indian context, and this has been recognised by Indian law for over a century and a half. The question before the Westminster Parliament was whether it is also salient in the UK.

A government commissioned study reported in late 2010 that caste was a relevant feature in the lives of about 5% of the British population to make them potential victims or perpetrators of caste discrimination. It also found that caste was not specific to a particular religion, but affected all religious groups from the Indian subcontinent. The report identified evidence—mostly qualitative case studies—‘suggesting caste discrimination and harassment of the type covered by the Equality Act 2010’. Individual cases involving allegations of caste-related harassment in schools and workplace, denial of admission to a school, discrimination in recruitment and promotions by employers, and discrimination by health and social care workers were recorded. There were also cases of discriminatory treatment which would probably not be covered by the Equality Act, including segregated places of worship, caste-based voting behaviour and attempts to prevent inter-caste marriages.

The study recognised that although ‘a single case of caste discrimination or harassment proves that it exists … legislation to address a single case is rare. Therefore, if any cases of caste discrimination or harassment were identified, the study needed to provide some indication of whether these were isolated cases or not. Within this study, this could only be done qualitatively, drawing on the evidence in the literature, from discussions with interested parties and experts and from the qualitative interviews. Quantifying the extent of caste discrimination would require a representative survey.’ (11) This methodological limitation also meant that no evidence of indirect caste discrimination could be produced. The absence of concrete quantitative data was perhaps one reason why the government and the Commons dithered over the extension of the protection of Equality Act to caste.

Even the limited qualitative evidence unearthed by the 2010 study, along with plausible surmises based on the salience of caste in the subcontinent, caste’s close connection with cultural identity and the enthusiasm with which some migrant communities seek to preserve cultural distinction, suggest that caste-based discrimination is likely to be a significant phenomenon in certain sections of the South Asian population living in the UK. Furthermore, the web of personal, social and professional interactions and relationships is likely to be denser and stronger within a minority ethnic group living in a multicultural society. Caste discrimination can have a pervasive effect on many significant aspects of the life of a ‘low’ caste person living in a largely South Asian neighbourhood—where the local schools, workplaces, places of worship, shops, restaurants and hotels are likely to have a substantial South Asian presence—even though only 5% of the British population is potentially caste-conscious. To such caste-burdened individuals, it is little solace that the rest of the population is indifferent to caste. The relevant experiences of a dalit girl from Birmingham are far more likely to resonate with that of a black man in inner city London than to that of Wendy, wherever she might be from. The issue of caste discrimination in the UK highlights the need to protect even those characteristics that are salient only within particular sub-groups in a given society.

In the absence of good quantitative evidence, Parliament has done well to be guided by the available qualitative evidence and plausible surmises and prohibit caste discrimination (even if only tentatively and temporarily)—for the cost of inaction is likely to be greater. More concrete and comprehensive data is necessary to determine whether treating caste as an aspect of race is appropriate. It may turn out that our surmises were mistaken and the qualitative data inadequate. On the other hand, future research could buttress our commitment to deal with caste discrimination in the UK and require further action.

It may turn out that caste’s particular impact on the marital and religious lives of people requires a rethink of antiperfectionist liberal assumptions about the necessary distance between the state and certain areas of private life. Caste is likely to intersect with race and religion to a significant degree, and caste discrimination could be compounded by discrimination based on sex, disability and marital status. Although section 14 of the Equality Act recognises discrimination based on a combination of two grounds, it may not be adequate to capture the various ways in which caste interacts with other protected grounds. Given caste’s strong connection with an unprotected ground—vegetarianism—the law may need to consider whether distinctions based on food preference amount to indirect caste discrimination.

Instead of being an outlier among grounds protected by discrimination law, caste (like disability before it) may bring new insights to our understanding of the concept of discrimination—insights that may well benefit groups carrying the burdens of other forms of discrimination too.

 

Tarun Khaitan is a Fellow in Law, Wadham College, University of Oxford.

Suggested citation: T. Khaitan, ‘Caste as Race—A Welcome First Step’ U.K. Const. L. Blog (10th May 2013) (available at http://ukconstitutionallaw.org).

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by | May 9, 2013 · 11:58 am

Liz Fisher: Gov.Uk?

fishereAs some of you may have noticed, the UK government has a new website www.gov.uk which not only replaces the old Direct.gov site but also the individual government department and public body websites. Since late last year the 24 major government departments have been moving to this new platform. That move is now complete and smaller agencies and public bodies are now undertaking the shift. The new website won a Design of a Year Award in mid April with one of the judges describing it as ‘the Paul Smith of websites’ and another noting that ‘it creates a benchmark for which all international government websites can be judged on’ (BBC Report,  last accessed 9 May 2013).

I do not pretend to have any expertise in web design, information technology or anything like that, but I do think the new website is something that public lawyers should be thinking carefully about for three reasons. The first reason is that the shift to the new website raises a practical problem that many of us as scholars know too well – a consequence of the move is that some old web addresses are now defunct. In some cases, new links have been provided (and work seamlessly) but not in all. This is not a new problem and applies across the public and private sectors. It is a particular problem in relation to government websites because many government documents are web based and websites are now being cited as the way to find them. As a lecturer, author, and a journal editor the shift to the new platforms have caused all kinds of issues. Government websites are a major scholarly resource and yet there has been little discussion about that fact among public lawyers. Part of the debate of course needs to be about how these websites are stored and archived. Many documents have been shifted to the National Archives and a welcome development is that the British Library has since early April begun to harvest websites in the UK domain (British Library  last accessed 9 May 2013). But part of the debate also needs to be about how we as scholars cite and deploy such websites. Thus for example style guides for journals and scholarly works don’t often provide guidance on how to manage the fact that websites are likely to disappear. We as scholars need to have a conversation about these issues.

The second issue raised by the new website is about transparency. As I have written before on this blog (last accessed 9 May 2013), the Coalition government has had, and still has  a major policy about transparency,  but I’m afraid I haven’t found the new website very transparent at all. On the old website it was relatively easy to find documentation in relation to topics – that required clicking through a series of subheadings. As you did so, you not only found documents but also explanations of how the documentation fitted into the bigger legal and institutional perspective. These frameworks were not always perfect, but generally speaking they provided a good map of the activities of a government department. The new website is focused around ‘policies’ which don’t seem to have any logical order. The search tool works quite well, but provides no context for the documents you find. Thus you can produce a list of documents, but no explanation of how they relate to each other. Again, there are some exceptions to this (the page of biodiversity protection on the DEFRA website springs to mind (accessed 9 May 2013)

This relates to the third issue that the new website raises, and perhaps the most significant. As I have argued elsewhere (accessed 9 May 2013), the creation of an administrative transparency mechanism is really about building the architecture of public administration and a website is no exception. To paraphrase Harlow and Rawlings, behind every government department website is a theory of public administration. The theory behind this website is very much a ‘rational-instrumental’ one (Elizabeth Fisher, Risk Regulation and Administrative Constitutionalism (2007). The website’s focus on ‘policies’ and subsequent ‘actions’ taken pursuant to such policies means that a government department is largely conceptualised as a conduit for delivering an agenda set by the political party in government. Some of these policies are about specific reforms (planning for example), and other ‘policies’ are a continuance of a long entrenched complex regime (nature conservation). The overall impression however is that the role of public administration is to deliver the government’s particular strategy.  This approach raises an interesting question of how the website will need to evolve with a change in government. It also gives very little impression of the institutional structure of a government department or the way in which some policy areas develop incrementally over time from a variety of sources. The rational instrumental model of public administration has of course come to dominate understandings of UK public administration in the last three decades (David Faulkner, ‘Government and Public Services in Modern Britain? What Happens Next?’ (2008) 79 Political Quarterly 232) so the structure of the new website is not surprising. With that said, we should not let this website narrow our vision, and thus debate, about the nature and role of public administration.

I do appreciate that my response could be seen as akin to those people who get annoyed when the supermarket is rearranged and they can’t find where the eggs are anymore. Likewise, it is also clear tweaks and adjustments are being made. My overall point is not that change is bad, but in the information technology age, a government website really matters. It is a resource we regularly use that frames our understanding of what public administration does and what we should expect of it. The website maybe a marvel of design but I do wonder what kind of ‘benchmark’ it is which other ‘government websites can be judged on’. Whatever the case, we as public lawyers should be taking a keen interest in this new site and thinking about its role and nature, and its implications for the practice and study of public law.

Liz Fisher is  Reader in Environmental Law at Oxford University.

Suggested citation: L. Fisher, ‘Gov.Uk?’ U.K. Const. L. Blog (9th May 2013) (available at http://ukconstitutionallaw.org).

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by | April 29, 2013 · 1:34 pm

Eoin Carolan: An oligarchy of the self-interested or enthusiastic?: Open Public Services in the Big Society

EoinOpen Public Services and the Big Society

The coalition government’s programme of public service reform continues apace. The coming into effect of parts of the Health and Social Care Act 2012 on April 1st was the latest in a series of changes to the structure and delivery of public services through measures like the Localism Act 2011 or the Free Schools programme. As the White Paper on Open Public Services indicates, these individual changes form part of a broader plan to fundamental re-model how Britain’s government operates. The White Paper is clear that this reform programme is wide-ranging and ambitious. What is less clear from government pronouncements, however, is whether or how it is intended to ensure the democratic legitimacy and character of the proposed reforms.

While the Big Society’s moment in the political sun seems to have passed, the open public services agenda has plainly been influenced by the ideas that coalesced under that electorally-ambiguous banner. Most closely associated with Philip Blond’s ‘Red Toryism’ (reviewed here), the ‘Big Society’ was also the subject of a detailed and thoughtful work by Jesse Norman MP (reviewed here).

Blond and Norman’s work shares a similar diagnosis of the source of (what they regard as) Britain’s current malaise, and of the most effective remedies for the nation’s social and political ills. They both identify the interrelated rise of individualism and of a centralised and interventionist state as the root causes of social decline. Both bemoan the atomising effects of a system in which the state has destroyed all alternative sources of civic power so that it operates alone and unchecked in propagating the prescriptions of a centralised elite. Both also see the solution in a number of interrelated measures: reducing the powers and size of the state; encouraging social and economic entrepreneurship; and devolving power and responsibility from central government to non-state entities such as charities or community organisations.

The White Paper on Open Public Services substantially mirrors this Big Society vision of a connected and pluri-polar society in which the state shares authority with other civic organisations. Big Society values permeate the text: the identification of a top-down and prescriptive central government as the cause of government dysfunction; a desire to remove the state’s monopolistic or privileged position; and a commitment to achieve this by decentralising and disaggregating power.

This is reflected in the five principles which the document identifies as fundamental to reform:

  • Wherever possible, we will increase choice.
  • Public services should be decentralised to the lowest appropriate level.
  • Public services should be open to a range of providers.
  • We will ensure fair access to public services.
  • Public services should be accountable to users and to taxpayers

The first three principles, in particular, underscore the disaggregated character of the system. The White Paper actively encourages more fragmented systems of decision-making and service delivery. This reflects the core idea animating its programme of reforms – that decisions should not be taken by central government but by bodies that are closer to, directly responsive to, or controlled by the choices of the individual user.

Increased choice – and the logically prior principle of increased competition – are at the heart of the White Paper’s vision. According to it, “the job of government … is to create an open framework within which people have the power to make the choices that are best for them”. Critically, the document states that “the principles of open public service will switch the default from one where the state provides the service itself to one where the state commissions the service from a range of diverse providers”. As the more recent Open Public Services 2012 document summarises it, the reforms “mea[n] re-thinking the role of government – so that government at all levels becomes increasingly funders, regulators and commissioners” rather than direct service providers.

The presumption under the Big Society system is thus that services will not be provided by the state and that they will be provided by a range of different bodies. The White Paper appears to suggest that this will occur regardless of how effectively a service is being provided by a particular body, whether state-controlled or otherwise. For there to be choice, it would seem, there must always be competition between different providers. This emphasis on choice as the animating engine of service delivery is, if anything, intensified in the Open Public Services 2012. This repeatedly identifies user choice as the central focus of the reform agenda. Choice is seen as both a normative and an instrumental good.

The problem of choice

This raises the obvious question of whether the provision of choice should be both the primary goal and chief criterion of effective government action. There are various reasons to suspect that legitimate government must involve more than a basic guarantee of some level of choice. Ensuring that a citizen has the right to choose between expensive or inadequate alternatives does little, for example, to secure good government.

Similarly, confining the government’s role to the provision of choice leaves the end user primarily responsible for the ultimate outcome – thereby ignoring whether that user is offered an appropriate choice or is capable of making an effective choice.

Indeed, there are various issues where it would seem contrary to the broader public interest for service delivery to focus on satisfying user choice – such as creation and marking of school exams, or the dispensation of antibiotics for example.

It seems obvious that a focus on choice alone offers a peculiarly narrow image of government. The White Paper recognises that there are some limitations to a choice-oriented approach, noting that assistance may be necessary to ensure that some users or geographical areas have adequate choices open to them. It seems telling, however, that the measures intended to address these limitations treat them, in essence, as distortions in the market of choice: information deficits, market dominance, or skewed distributions.

Furthermore, the remedies prescribed are input-oriented devices that aim to cure those distortions. So-called voice mechanisms provide information which might not otherwise be factored into the market, while the various fairness supports identified in the document tend to operate by facilitating more effective market participation (either by information or curative incentives) by those who might otherwise be vulnerable consumers. In all instances, however, the processes of decision-making or service delivery remain primarily regulated by the discipline imposed by competition and user choice.

The basic unit of accountability under the Big Society system thus remains the individual user. From a democratic perspective, there is a clear danger that a system premised on responding to user demands will only to those users who articulate demands, or who articulate them in the most effective form. This is liable to distort the representative or democratic character of the system. As Schattschneider observed, “’the flaw in the pluralist heaven is that the heavenly choir sings with a strong upper-class accent. Probably about 90% of the people cannot get into the pressure system.

Devolving decision-making to third-party organisations creates a risk that power will in fact be exercised by those who are sufficiently motivated by self-interest or ideology to engage with the ‘choice’ process, with neither providing a truly representative reflection of the local community’s views. In this way, open public services may become an oligarchy of the self-interested or enthusiastic.

One of the core concerns for administrative law or regulation over recent decades has been to minimise the potential for self-interested actors to have undue influence over public decisions. Fears over regulatory capture are a commonplace in this literature. Yet, the notion of open public services seems to entirely ignore this issue, instead seeking to turn over the design and delivery of public services to anyone with the incentive or inclination to put themselves forward. As any user of Wikipedia (or anyone whose students use Wikipedia) will know, this type of open sourced project attracts not only those acting out of some benevolent sense of civic duty but also those who wish to further their own personal or ideological agendas. In many instances, it is the latter groups who have the greater incentive to succeed. This belies the easy assumption that an open public services Wikiocracy will lead to a more effective or democratic government.

A good example of this weakness is the role envisaged in the White Paper for what it describes as independent champions. On closer inspection, the notion that these ‘champions’ will enhance the democratic character of the system seems highly suspect. In fact, the idea seems directly contrary to democratic principles. The White Paper proposes, for example, that pressure groups such as HealthWatch or the Taxpayers Alliance should be entitled to a specific role in contributing to and monitoring service provision. Yet it does not seem to give any consideration to the question of why private groups with a specific policy position should have a preferred role in the governance process conferred upon them. In particular, the White Paper does not consider what obligations, if any, such bodies should meet in terms of membership criteria, representative character, political funding, donations policy or transparency.

This is especially concerning when concerns have previously been raised about the composition and background of one of the groups specifically identified in the White Paper.  The use of nominally ‘independent’ or ‘expert’ groups as the acceptable face of an ideological agenda is a well established practice in American politics. The White Paper not only makes this possible but seems, on one view, to actively anticipate it. Democratic accountability is not enhanced by privileging the input of the self-appointed.

This speaks to a fundamental dilemma at the heart of the Open Public Services and Big Society agendas: how can a system whose main selling point is its promise to get government out of the way nonetheless ensure the defence of minimum substantive values? There is a sense that supporters of these reforms trust that the system proposed includes self-executing safeguards of core values. The nature of these mechanisms varies. The government seem to believe in competition and choice, while others like Blond would seem to place more faith in the self-government of communities or active associations.

The primary objection, however, is that these solutions trust in assumptions about the likely behaviour of services users and of disaggregated groups that are neither evidence-based nor necessarily supported by anecdotal experience. Reposing faith in communities, for example, may be based on no more than the assumption that decision-making, like cheese or craftsmanship, is better when it is local – more organic, more authentic, more attuned to local tastes and culture. Although this may tap into powerful contemporary narratives and beliefs, Triesman’s work reminds us that such faith in localism may be naively misplaced:

 [T]he popularity of decentralization feeds off romantic images of life in small, usually rural communities …. The mystique of the Athenian polis combines with images of communal barn raisings, church picnics, summer hayrides and so on. Of course, such a view of small-town life is highly selective. Besides dancing around the Maypole, the New England townspeople found time to burn witches and pin scarlet letters onto adulterers.

 This illustrates how the ‘Big Society’ rests on what are, in essence, organisational caricatures about state and non-state bodies. The more mundane reality is that governance institutions, at all levels, have significant strengths and weaknesses. The tendency across most national systems towards checks and balances is a matter not only of constitutional principle but also of operational practice. To entrust significant decision-making powers to autonomous non-state units is potentially problematic from the perspective of both constitutional legitimacy and good government, reflecting a faulty assumption that grassroots involvement is always progressive.

What is needed is an approach which accepts the limits of these varying institutional forms and seeks instead to make use of their strengths rather than focusing on their weaknesses. Democratic experimentalism – by combining the delegation of power to local or non-state actors with robust systems of peer monitoring and empirical review – is one example of how the challenges identified by Big Society advocates might be met in a more effective and democratically-appropriate manner. While these alternatives may lack the ideological purity and simplicity of the Big Society model, the reality is that government is typically a messy and multi-faceted affair. In that regard, theories like democratic experimentalism that take comparative institutional analysis seriously seem more likely to produce effective outcomes than ones – like the Big Society – that seem premised on institutional caricatures and an antipathy to government.

Eoin Carolan is a  lecturer in law at University College Dublin

This is an abridged summary of a piece published in this month’s edition of Public Law.

Suggested citation: E. Carolan, ‘An oligarchy of the self-interest or enthusiastic?: Open Public Services in the Big Society’ U.K. Const. L. Blog (29th April 2013) (available at http://ukconstitutionallaw.org).

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by | February 28, 2013 · 7:42 pm

Carol Harlow: What price inquiries?

charlowTwenty-five years ago, when the Justice-All Souls Committee published its review of English administrative law it asserted that, over the last forty years, inquiries had ‘been appropriated to the purposes of land use control to such an extent that the planning inquiry has become the typical inquiry’ (Administrative Justice – Some Necessary Reforms (Oxford: Clarendon Press, 1988 at 262). 49 of the 64 pages allocated to inquiries were duly devoted to planning inquiries, the rest being lumped together under the rubric of ‘Ad Hoc Inquiries’. Other than to remark that public inquiries might leave some individuals ‘with a sense of dissatisfaction’ the Committee had little to say about them. The same could hardly be the case today. Routine planning inquiries form around 5% of the Planning Inspectorate’s current workload, the majority of applications being decided on the papers, while the costly and contentious ‘Big Planning Inquiry’ has been replaced by an Infrastructure Planning Commission in 2008, which in turn had its functions transferred to the Planning Inspectorate, now an independent agency, by the Localism Act 2011. On the other hand, public space is increasingly cluttered with the reports of ‘ad hoc’ public inquiries, raising the question what purpose do they really serve?

Writing in 1992, embittered by his treatment by Lord Justice Scott during the Inquiry into connivance of ministers and public servants in the illegal export of arms to Iraq (HC 115 (1995/6), Lord Howe suggested that a public inquiry might serve six rather disparate objectives:

  1. To establish the facts
  2. To learn from events
  3. To provide catharsis for ‘stakeholders’
  4. To reassure the public
  5. To make people and organisations accountable
  6. To serve the political interests of government.

 (G. Howe, ‘The Management of Public Inquiries’ (1999) 70 Pol. Quarterly 294)

Lord Howe’s grudge against Scott lay with his preference for inquisitorial procedure; Scott refused to allow legal representation of witnesses at the inquiry on the grounds of length and prolixity (though he did give some warning of the questions he would be likely to ask and promised to notify in advance anyone who would be criticised in the report). The dissatisfaction of public lawyers more generally lay precisely in the ‘length and prolixity’ of the proceedings. Looking back, it seems that the only interests served by the Scott Inquiry were those of the government. An inquiry that took three years and cost around £7 million – a high price for even a 5-volume Report, – ended with a confidence motion calling for the resignation of two ministers, won by the Major Government by just two votes.

Was this the shape of things to come? The Saville Inquiry set up by Tony Blair in 1998 to establish the truth about ‘Bloody Sunday’ (30 January 1972) when the British army opened fire on civil rights protesters in Londonderry, received 2,500 witness statements and compiled some 160 volumes of evidence, 13 volumes of photographs, 121 audiotapes and 110 videotapes, all of which had to be photocopied and sent to representatives of the ‘interested parties’. Its procedures were twice judicially reviewed. It did establish the facts but at what a cost; when the ten-volume report was published twelve years later (The Bloody Sunday Inquiry ) it had cost the taxpayer £195 million. It could, I suppose, be argued that on this occasion the delays were functional; they created space for a political settlement to be negotiated in the shadow of the pending report. Unsurprisingly, the report was welcomed by relatives of the victims but was less well received by the victims of IRA violence. It is indeed unlikely that it caused any of its readers to change their position and much the same is likely to be true of the Chilcot Inquiry into the Iraq War when finally it reports.

It was partly in reaction to the mounting costs of Saville that the Government embarked on new legislation – described as a consolidation measure to replace the seldom-used Tribunals of Inquiry Act 1921 – which became the Inquiries Act 2005.  The Bill was hotly opposed on the ground that it bundled up too much power in ministers, including the power to suspend or wind up an inquiry; to prevent disclosure or publication of any evidence or documents given; and to bar the attendance of witnesses. It was feared that these powers would be used to prevent disclosure of material concerning the security services, most notably in a raft of inquiries under way into the Northern Ireland Troubles, which could be transferred into an inquiry under the Act – as did in fact occur with the Wright Inquiry and Inquiry into the death of Robert Hamill, originally set up under the Police (Northern Ireland) Act 1998 (costs around £33 million).

Inquiry costs

It has to be said that the Act has done little to cut the cost of public inquiries. According to a Post-legislative Assessment of the Inquiries Act conducted in 2010, three of the 12 inquiries held under the 2005 Act by 2010 had cost over £10 million: the Baha Mousa Inquiry cost £13 million and the Inquiry into the murder of Billy Wright in the Maze Prison cost over £30 million and took 5 years to complete.). Although the inquiry concluded that Wright’s death was due to the negligence of prison officers, his father, who had campaigned over many years for the inquiry, called it proof of ‘clear and unequivocal collusion’ – another example of incomplete catharsis. The problem here is that the general public is inclined to interpret accountability in terms of the number of heads that roll and is probably unaware that the Inquiries Act 2005 provides that an inquiry ‘is not to rule on, and has no power to determine, any person’s civil or criminal liability’, while the Coroners and Justice Act 2009 now bars any verdict that names individuals or points to their guilt. Such costs, only justifiable if the inquiries came to a clear and unequivocal conclusion, bear comparison with the escalating costs of prosecutions in serious fraud cases, said to prevent justice from being done (See Fraud Advisory Panel, Tackling the Crisis in The Prosecution of Serious Fraud.).

No doubt it was for cost-cutting motives that the inquiry into the murder of lawyer Pat Finucane in Northern Ireland in 1989 by Sir Desmond de Silva QC became a review of the evidence of two earlier inquiries held respectively by Lord Stevens and the Canadian justice, Judge Cory (Report of the Patrick Finucane Review by The Rt Hon Sir Desmond de Silva QC, HC 802 (2012/13). This procedure, which meant that he had no statutory powers of compulsion, was in the event justified by the fact that Sir Desmond was in no way inhibited from uncovering ‘new and significant information that was not available to Sir John Stevens or Justice Cory’; from publishing this material; and from coming up with the challenging conclusion that ‘a series of positive actions by employees of the State actively furthered and facilitated [Finucane’s] murder and that, in the aftermath of the murder, there was a relentless attempt to defeat the ends of justice’ (Report at [115]). But this conclusion, described by the Prime Minister, Davis Cameron as revealing ‘shocking state collusion’, failed once again to satisfy Finucane’s widow who, supported by Ed Miliband and Amnesty International, called the review ‘a sham, a whitewash and a confidence trick’ and demanded a full and independent inquiry (The Huffington Post (UK), 20 February 2013). In his remarks under ‘lessons for the future’ – which he had not been asked expressly to address – Sir Desmond wryly commented [113]: ‘Perhaps the most obvious and significant lesson of all, however, is that it should not take over 23 years to properly examine, unravel and publish a full account of collusion in the murder of a solicitor that took place in the United Kingdom’.

Overlap and underkill

This highlights a further deficiency of the public inquiry: the overlapping machinery for accountability and the number of disparate and piecemeal processes that are generated and the failure to provide ‘joined up justice’. The trouble is that the 2005 Act was not exclusive; it repealed some of the statutory powers to order inquiries and provided for a general code of procedure (The Inquiry Rules 2006, SI 2006/1838) but did not exhaust the powers of ministers and indeed anyone else who wishes to do so, to set up an inquiry. The prize (if that is the right word) should be awarded to the Hillsborough Disaster Inquiries into the death of 96 football supporters and injury of hundreds more at a match in Hillsborough stadium on 15 April 1989. By 2009, this had attracted: two internal police investigations into the conduct of South Yorkshire Police; an inquiry by Lord Justice Taylor, published in two parts in 1989 and 1990; an investigation by the Health and Safety Executive; a two-stage coroner’s inquest; an unsuccessful private prosecution following the DPP’s decision not to prosecute; a paper review of the evidence by Lord Justice Stuart Smith; and two civil actions, which caused outrage when police officers succeeded in claims for damages when victims’ relatives did not (Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310; Frost v Chief Constable of South Yorkshire [1999] 2 AC 455). It should be noted that the two Taylor Reports had blamed the police, while Lord Justice Stuart Smith, although castigated by the Hillsborough relatives, had picked up the fact that the police had rewritten many of the witness statements. Why did nothing happen? (Pause for rueful reflection).

Only when Andy Burnham, then Health Secretary, waived the 30-year non-disclosure rule on public records in 2009 and Home Secretary Jack Straw appointed an independent panel in 2010 to review the new evidence, did action commence. In line with modern practice, the Report of the Hillsborough Independent Panel, with all the documentation, is published (Hillsborough: The Report of the Hillsborough Independent Panel,  HC 802 (2011/12). Agreed unanimously by the 8-member panel, the report was largely written by Professor Phil Scraton of QUB, a long-term supporter of the Hillsborough families. It once again blamed the police for tampering with witness statements and categorically denied there was any evidence to verify police allegations of exceptional levels of drunkenness or violence among Liverpool fans. Hillsborough – along with many other unsuccessful inquiries – attests to the very great difficulty of holding the forces of law and order to account through a public inquiry. Typically, the two officers most involved in the disaster both retired, having avoided conviction in the criminal prosecutions and disciplinary action for neglect of duty. A reopened coroner’s inquest is now awaited. A more encouraging message from Hillsborough concerns the very great importance for accountability of freedom of information legislation and the contemporary climate of transparency.

The sad case of ‘Baby P’, murdered by his mother’s boy friend while under the radar of Haringey social services, is somewhat different. His death was the subject of (1) an internal inquiry by Haringey Council into the performance of its social services department of which only the executive summary was published; (2) an external inquiry ordered by the minister (Ed Balls) in terms of the Children Act 2004 and conducted by Ofsted, the Healthcare Commission and the Chief Inspector of Constabulary; and a further inquiry by Lord Laming (below). There was also a Coroner’s inquest, finally adjourned as purposeless. Alongside, the legal system was functioning quite normally: the actual killers were convicted and imprisoned; the civil courts intervened to protect the position of Haringey’s Head of Children’s Services, summarily dismissed under pressure from the minister without the benefit of a hearing R(Shoesmith) v Ofsted and others [2010] EWHC Admin 852; [2011] EWCA Civ 642); and two doctors who had apparently missed the scale of Baby P’s injuries were disciplined by the BMC.

Lessons for the future?

More significant from the standpoint of the public inquiry is the report commissioned by the Secretary of State from Lord Laming. In 2002-3, Lord Laming had held another inquiry into the death of Victoria Climbié in Haringey: The Victoria Climbié Inquiry Cm 5730 (2003). Specifically asked to make recommendations as to ‘how such an event may, as far as possible, be avoided in the future’, Lord Laming had produced 106 recommendations over matters ranging from training of social workers to problems with ‘joined up governance’. His report was accepted and the recommendations found their way into government policy (See Every Child Matters: Change for Children (2004); Working Together to Safeguard Children: A guide to inter-agency working to safeguard and promote the welfare of children (2006)). Now Lord Laming was being asked to provide ‘an urgent report’ on the progress made across the country to implement effective arrangements for safeguarding children. His Report (Lord Laming, The Protection of Children in England: A Progress Report,  HC 330 (2008/9), which this time contained only 58 recommendations, revealed how far from perfect the implementation of his Climbié report had been. It also highlighted the scale of the problem: of 11 million children living in England, 200,000 are at high risk of domestic abuse and violence, of whom 37,000 are the subject of a care order and 29,000 of a child protection plan. Haringey, be it noted, is a deprived and impoverished local authority ranking 5th in London on the index of multiple deprivation, where in 2007, 36.4% of children were assessed as living in poverty; 176 were subject to a child protection plan and 476 were in care, amongst the highest figures in the country. Is it surprising that in these circumstances not all the Laming recommendations were implemented?

How far are inquiries being given the policy-making functions traditionally allocated to Royal Commissions and are they suited to such a role? Lord Laming is a distinguished and experienced social worker – though this was not enough to restrain criticism of his appointment as Chair of the Climbié inquiry, on the ground that his own department had once been criticised in a local ombudsman investigation. Perhaps a judge would have been more impartial – but then, what of expertise? The recent report into the failures of care at Mid-Staffordshire NHS Foundation Trust was the second, ‘generic’ stage of a non-statutory inquiry – another increasing trend in inquiry proceedings – demanded, we are told by the Chairman, shocked by the facts that he unearthed in his first, specific inquiry (Independent Inquiry into Care Provided by Mid Staffordshire NHS Foundation Trust January 2005–March 2009, HC 375-1 (2010/11)). The Report, which ran to more than 1770 pages, contained 290 recommendations, took 2 1/2 years and cost over £13 million (Report of Inquiry into Mid-Staffordshire NHS Foundation Trust Public Inquiry, HC 947 (2012/13)).   Robert Francis QC is a barrister specialising in medical negligence. He appointed a panel of assessors, mostly with medical experience. One has nonetheless to query his qualifications to remodel our health services on the back of an inquiry into a single monumental failure. And will its fate be any different from the little-known Boorman review of health services in London (Full Report of the NHS Health and Well-Being Review (November 2009)) or for that matter Andrew Lansley’s hotly contested, and perhaps less well researched, proposals for remodelling health services, later to be remodelled in the Health and Social Care Act 2012?

The same may be said of Lord Leveson, a senior judge from the common law bar, invited to inquire into the ‘culture, practices and ethics of the press’ (Report into the Culture, Practices, and Ethics of the Press,  HC 213 (2012/13). The inquiry was divided into bite-sized modules: specific investigations into phone hacking and other journalistic iniquities, which Lord Justice Leveson was undoubtedly well-qualified to conduct; his procedures were undoubtedly swifter and less costly, at just over £5 million, than the Bloody Sunday Inquiry. Module 4, which contained recommendations for ‘a more effective policy and regulation that supports the integrity and freedom of the press while encouraging the highest ethical standards’, is more contestable. Even though the support of assessors  with considerable press experience renders this more palatable and more like a Royal Commission, the qualifications of the group to remodel the press are dubious, leaving space for the Government to reject its most important recommendation. Reassuring the public, making the press accountable or serving the political interests of government?

I believe that we are expecting too much from public inquiries. The Inquiries Bill was based on the report of a Select Committee (PASC, Government by Inquiry, HC 54 (2004/5) and a government consultation paper, ‘Effective Inquiries’. But these did not really address the many problems of ‘The Big Public Inquiry’ and contained no real examination of their functions as ‘an instrument of government’. We have been left with a heterogeneous set of arrangements for investigation, with overlapping functions and variable procedures. There is no real attempt at ‘joined up governance’. Each inquiry is limited by its terms of reference or statutory remit, which may overlap or may leave serious gaps. Our expectations are highly contradictory: establishing facts, for example, may do little for accountability; learning lessons for the future may require a diminution in accountability; and making organisations accountable may, as the Justice/All Souls Committee concluded all those years ago, provide little catharsis for individual victims. What remains all too often at very great cost to the taxpayer is serving the political interests of government.

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

Suggested citation: C. Harlow, ‘What Price Inquiries?’ UK Const. L. Blog (28th February 2013) (available at http://ukconstitutionallaw.org).

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by | December 16, 2012 · 3:46 pm

Mark Elliott: Judicial review – why the Ministry of Justice doesn’t get it

mark1Following the Prime Minister’s declaration of “war” on judicial review last month, the Ministry of Justice has now published a consultation paper in which it sets out, and invites comments on, specific proposals concerning the judicial review process. They include reducing the time limit for seeking judicial review in certain circumstances. In planning cases, the limit would come down to six weeks, and in procurement cases to 30 days. The Government also proposes to reduce the scope for renewing applications for permission to seek judicial review following an initial refusal. In particular, such renewal applications would not be permitted by way of an oral hearing in cases where “substantially the same matter” had already been the subject of a hearing before a judge or where, on the papers, a judge had ruled the claim to be “totally without merit”. Court fees would also go up. Applying for judicial review would cost £235 instead of £60 (as at present), and a new fee (of £215-£235) would apply to oral renewals.

These ostensibly dry proposals do not appear to amount to a “war” on judicial review, not least because there is no attempt to immunize any categories of Government decisions against all judicial scrutiny. But this does not mean that the proposals are trivial. Shorter time limits will undoubtedly make it harder for some challenges to be made, given the time needed to put together some applications. Meanwhile, reducing the scope for challenging initial refusals of permission to seek judicial review arguably assumes that the initial stage is more robust than it actually is. In fact, empirical research by Bondy and Sunkin shows that it is something of a lottery, with significant variation between individual judges’ inclination to grant permission. And while, in the general scheme of things, £235 may not be a huge amount of money (given the other costs often associated with litigation), there is something rather troubling about increasing court fees in order to make access to the courts more difficult – which is arguably the purpose here.

These aspects of the proposals are considered in more detail by Adam Wagner in a thoughtful piece published on the UK Human Rights Blog. In this post, however, I wish to focus more on the “mood music” associated with the MoJ’s consultation, and will suggest that it inadequately reflects – indeed, distorts – the constitutional significance and role of judicial review.

“Pyrrhic victories”

Part of the Government’s case for making judicial review more difficult is that, compared with a few years ago, far more claimants are now seeking to bring judicial review applications: a phenomenon which, the argument goes, has undesirable implications both for judicial resources and public administration. Much is therefore made of the fact that only a small proportion of applications for permission to seek judicial review are granted; that fewer than half of cases that proceed to a substantive hearing are decided in favour of claimants; and that even those claimants who are successful may win only “pyrrhic victories” – all of which supposedly demonstrates that the judicial review process is, for the most part, an unwelcome and unnecessary distraction from the business of governing.

This argument can be contested in a variety of ways, but here I concentrate on one particular aspect of it – namely, the dismissal of some (perhaps many) successful judicial review claims as merely pyrrhic victories, “with the matter referred back to the decision-making body for further consideration in light of the Court’s judgment”. Given the context (described above) of this claim in the consultation paper, its import is presumably that pyrrhic victories are pointless ones, because the decision-maker might ultimately make the same decision again. But to make such an argument is to miss the point in spectacular fashion.

It is undeniably the case that success on a number – but by no means all – of the judicial review grounds will result in the matter being referred back to the decision-maker in the way described in the consultation paper. But such victories are far from unimportant. Viewed in instrumental terms, it is impossible to know in advance whether any given judicial review victory will be pyrrhic – in the sense of failing to prevent the unwanted substantive decision from being retaken – or not. If, for instance, a court rules that the decision was flawed because a legally irrelevant consideration was taken into account or an improper purpose pursued, the new decision – taken only on the basis of relevant considerations and for statutorily authorized purposes – may or may not differ.

But even this instrumental analysis misses the point – or at least fails to capture the whole of it. For judicial review is about far more than merely helping some claimants to get the decision they want. In normative terms, it discharges a constitutionally imperative function by enabling the Government to be held to rule-of-law based standards of good administration and due process. Viewed in this way, there is no such thing as a pyrrhic judicial review victory: every victory – whatever the eventual outcome for the individual – is a victory for the rule of law.

The “negative effect” of judicial review on decision-makers

The consultation paper contains a second, equally surprising assertion. According to paragraph 35:

“It is not just the immediate impact of Judicial Review that is a concern. We also believe that the threat of Judicial Review has an unduly negative effect on decision makers. There is some concern that the fear of Judicial Review is leading public authorities to be overly cautious in the way they make decisions, making them too concerned about minimising, or eliminating, the risk of a legal challenge.”

As well as noting the highly impressionistic nature of this assertion – should not Government policy be based upon more than “belief” and unsubstantiated “concern”? – three specific points may be made in response to it.

First, the argument, even if taken at face value and assessed on its own terms, is lamentably weak. It reduces to the contention that public authorities should be shielded from judicial review to a greater extent than they are at present because of their tendency – if exposed to judicial review – to do things that the law does not actually require of them. The solution to this problem – if it exists – is so obvious as not to require elaboration.

Second, it could just as easily – and, arguably, more convincingly – be contended that the threat – or, putting the matter less pejoratively, possibility – of judicial review may have a positive effect on decision-makers. This point can be made in relation to specific individual cases, an obvious and notable recent example being supplied by the collapse of the Government’s decision to award the West Coast rail franchise to First Group. It is clear that that decision – which had been robustly defended by Ministers – may well have stood had judicial review not been in prospect.

Third, the foregoing argument can be applied in a broader sense. Not only may the prospect of judicial review impact upon particular decisions; it may also influence the approach to decision-making within Government more generally. Looked at in this way, the principles of good administration enforced via judicial review constitute a template of best practice – and one that is taken seriously thanks to its legal enforceability. This is reflected, for instance, in the former Cabinet Secretary’s foreword to the 2006 edition of The Judge Over Your Shoulder, who commended it “as a key source of guidance for improving policy development and decision-making in the public service”. This point cannot be pressed too far. It is, for instance, well-known that public authorities are not particularly good at internalizing judicial decisions within their front-line decision-making processes; but this is hardly a reason for attempting to shield public bodies from judicial review.

Judicial review as an unwelcome irritant

In one sense, the consultation paper says the “right” things about judicial review. It is, for instance, acknowledged to be a “critical check on the power of the State”; and the intention behind the reforms “is not to deny, or restrict, access to justice, but to provide for a more balanced and proportionate approach”. (“Proportionate to what exactly?” one wonders.) But underlying the consultation paper is a mindset that postulates judicial review proceedings as an unwelcome irritant. For instance, it is said (without the provision of any examples) that:

“[They] create delays and add to the costs of public services, in some cases stifling innovation and frustrating much needed reforms, including those aimed at stimulating growth and promoting economic recovery.” 

Similarly, in his media statement accompanying the publication of the consultation paper, Chris Grayling, the Lord Chancellor and Secretary of State for Justice, said:

“We have seen a huge surge in Judicial Review cases in recent years. The system is becoming mired in large numbers of applications, many of which are weak or ill-founded, and they are taking up large amounts of judicial time, costing the court system money and can be hugely frustrating for the bodies involved in them.”

This reflects sentiments expressed by the Prime Minister in his speech to the CBI in November. Judicial review, like other trappings of the administrative state such as consultations, audits and compliance with EU procurement rules, was cited as a factor that makes the Government “far too slow at getting stuff done”. Being distracted by such matters was not what had made the UK “one of the most powerful, prosperous nations on earth”. And so part of the solution, said Cameron, was to cut back on judicial reviews, “many of which are completely pointless”, thereby “getting a grip” on this “massive growth industry”.

Whatever lip service is paid to the constitutional importance of judicial review in the consultation paper, the mood music is pretty clear. Judicial review is not a Good Thing. Of course, it is hardly surprising that politicians are not fond of judicial review, given that they are among those on the receiving end of such proceedings (not, of course, that this should really bother them that much if many cases are “completely pointless” and victories merely “pyrrhic”). In that sense, the fact that the Government has brought forward these proposals against the backdrop of antagonism towards the courts’ judicial review powers has a certain “Dog Bites Man” quality to it.

Judicial review in its broader constitutional setting

But this surface observation masks a deeper point about the nature of the constitution and judicial review’s place within it. If Parliament is sovereign, then there is clearly no legal inhibition upon its clipping the courts’ wings – whether in the relatively modest ways proposed in the consultation paper, or more profoundly via (for instance) the use of statutory ouster provisions. And there is equally nothing that legally prevents the Executive – its obvious vested interest notwithstanding – from pressing Parliament to enact such legislation. On this view, then, judicial review is fair game, and there is nothing improper – at least in a legal sense – if the political branches modify or curb the High Court’s supervisory jurisdiction.

However, as I have argued elsewhere, the UK’s unusual – including unwritten – constitutional arrangements are defensible and sustainable only for as long as the three branches of Government exhibit appropriate respect towards one another. This requires, among other things, that Parliament and the Executive acknowledge and accept that a key part of the courts’ constitutional role involves securing Government according to law. Indeed, it is increasingly clear that for at least some senior judges – consider, for instance, the by now well-known dicta in Jackson – the absence of such respect for the courts might trigger a wider breakdown in institutional comity.

It is difficult, if not impossible, to predict what would happen were such circumstances to eventuate, precisely because the unwritten constitution is animated and sustained by a fundamental uncertainty, or mystery, about the relationship between different loci of power.  It would, for instance, be going too far baldly to argue that judicial review is a constitutional fundamental such that Parliament is not sovereign – just as it would be going too far to assume blithely that the courts’ powers of judicial review are as constitutionally precarious as an orthodox application of the doctrine of parliamentary sovereignty would suggest. What can, however, be said with relative confidence is that acceptance by the political branches of the courts’ judicial review powers is a crucial component of the implicit institutional comity upon which the British constitution – in the absence of an explicit, formalized constitutional settlement – depends.

The Ministry of Justice’s proposals fall well short of a full-frontal attack upon judicial review, and as such they do not fundamentally threaten that comity. But they reflect both an underlying antagonism towards judicial review and an assumption that the courts’ powers in this area exist only on the terms and to the extent that the other branches are prepared to tolerate them. That assumption is a misplaced one, which exhibits inadequate sensitivity to the delicate, if unarticulated, nature of the UK’s constitutional settlement.

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

Suggested citation: M. Elliott,  ‘Judicial review – why the Ministry of Justice doesn’t get it’   UK Const. L. Blog (16th December 2012) (available at http://ukconstitutionallaw.org

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by | October 22, 2012 · 4:39 pm

Roger Masterman: The Prince, the Attorney-General, the Section 53 Certificate and the pretence of political neutrality

The Freedom of Information Act, which came into force on 1 January 2005, provides under s.53 for a power of ministerial veto.  Section 53(2) provides that:

‘[a] decision notice or enforcement notice … shall cease to have effect if, not later than the twentieth working day following the effective date, the accountable person in relation to that authority gives the Commissioner a certificate signed by him stating that he has on reasonable grounds formed the opinion that, in respect of the request or requests concerned, there was no failure [to satisfy the statutory ‘right to know’].’  

Ministers are under s.53, effectively given a power to determine that the requirements of the Freedom of Information Act should, in certain instances, not apply.  The inclusion of the Ministerial veto in the Freedom of Information Act was, perhaps unsurprisingly, the most controversial of the changes to the access to information regime introduced between publication of Your Right to Know in 1997 and the enactment of the statute in 2000; in a damning critique in the 5th edition of The Changing Constitution, Austin concluded that the veto power ‘undermines any credibility to the claim that the Act creates a legally enforceable individual right of access’ and amounted to ‘a fraud on democratic accountability.’  The saving grace – as Hazell and Busfield-Birch have recorded – has been that the veto power has, compared with similar measures overseas, been used relatively infrequently (‘Opening the Cabinet Door: Freedom of Information and Government Policy Making’ [2011] PL 260, 283).  To date, Ministers have overridden disclosure orders relating to Cabinet minutes concerning the 2003 invasion of Iraq, relating to Cabinet Sub-Committee meetings on devolution (twice) and relating to a risk assessment of proposed NHS reforms.

On 16 October 2012 the Attorney-General issued a further certificate under s.53, overriding (predictably in the light of amendments to the Freedom of Information Act made in the Constitutional Reform and Governance Act 2010) the decision of the Upper Tribunal in Evans v Information Commissioner [2012] UKUT 313 (AAC).  Evans – a decision covered in Hayley Hooper’s earlier post on this blog – concerned a request made under the Freedom of Information Act by journalists to a number of government departments seeking disclosure of ‘advocacy correspondence’ between the Prince of Wales and those departments.  The Upper Tribunal found that the correspondence should be disclosed on the basis that it would be ‘in the overall public interest for there to be to be transparency as to how and when Prince Charles seeks to influence government’ [4].  This post makes some observations relating to the reasons provided by the Attorney-General for deployment of the Ministerial veto in this instance.

In his statement of reasons explaining the use of s.53, the Attorney-General began by sketching the principles governing the relationship between the Monarch, governments and Ministers.  It is, he outlined:

‘a vital feature of the constitutional settlement that the Sovereign cannot be seen to favour one political party above another, or to engage in political controversy.  Without that preservation of political neutrality, the constitutional balance that allows for governments to be elected within the framework of inherited monarchy could be preserved.  Nor would it be possible for the Sovereign to fulfil his or her symbolic function as representative of the State.’ ([6])

This balance, as the Attorney-General continued, was by convention regulated by the constitutional trade-off that the Monarch utilises prerogative powers on Ministerial advice and, in turn, enjoys the right to ‘be consulted, to encourage, and to warn the government ([6]).’  A further convention – the education convention – extends to the right of the heir to the throne to be ‘instructed in the business of government’ ([8]).  The Attorney-General’s issue of the certificate relies on an interpretation of this particular convention that was rejected by the Upper Tribunal.

The Upper Tribunal found that ‘advocacy correspondence’ fell outside of the scope of the so-called education convention ([163]).  The Attorney-General disagreed, suggesting that such correspondence ‘enables the Prince of Wales better to understand the business of government; strengthens his relations with Ministers; and enables him to make points which he would have a right (and indeed arguably a duty) to make as Monarch’ ([9]).  Correspondence falling within the scope of the education convention should, the Attorney-General concluded, be protected by confidentiality ([10]).

In stressing the need for confidentiality, the Attorney-General highlighted the risk that, through disclosure, the Prince of Wales came to be viewed ‘as disagreeing with government policy’, adding that ‘any such perception would be seriously damaging to his role as future monarch, because he forfeits his position of political neutrality as heir to the throne, he cannot easily recover it when he is King.  Thus in this context, confidentiality serves and promotes important public interests ([10]).’

This account does not provide a convincing justification for the exercise of the ministerial override.  The public interest in non-disclosure seems to have been interpreted by the Attorney-General as a public interest in maintaining the appearance of the political neutrality of the Prince of Wales.  Perhaps maintenance of this appearance might have been of some value, had the Prince of Wales’ cause advocacy not been so widely commented upon, and had the Prince not been recorded as seeing his constitutional role as ‘seeking to make a difference’ of some undefined sort ([6]).  It is not the willingness of the Attorney-General to seek to uphold the confidentiality of personal correspondence merely relating to the Prince’s ‘deeply held personal views and beliefs’ ([12]) that is problematic here.  Rather, it is the fact that it is seemingly conceded on all fronts that those ‘deeply held personal beliefs ‘ were deployed in an attempt, or attempts, to influence governmental decision-making.  As a result of this ministerial veto, we will perhaps never know whether or not those interventions have had, or will have, any material effects in practice.

The reasons for issuing the veto seek to defend these interventions on educative grounds.  The assertion of the Attorney-General that the correspondence comprises ‘part of the [Prince’s] preparation for kingship’ ([15]) however clearly sits uneasily with the ‘advocacy’ objectives underpinning the correspondence.  It seems highly disingenuous to claim that letters from the Prince ‘urging a particular view upon Ministers’ ([5]) should be portrayed as a necessary component of the right of the heir to the Throne ‘to be instructed in the business of government’ ([8]) – all the more so when it is recalled that such instruction is defended as preparation for holding an office which ‘cannot be seen to favour one political party above another, or to engage in political controversy’ ([6]).  On this latter point, it should be noted that the Upper Tribunal found the contention that the ‘advocacy correspondence’ to be in the public interest as ‘good preparation’ for ascending to the throne to be ‘divorced from reality’ ([170]).

Having stressed the right of the Prince of Wales to ‘urge’ his ‘personal and deeply held views and convictions’ upon Ministers under the protection of confidentiality, the Attorney-General makes the following, matter-of-fact (and slightly surprising), assertion: ‘the Prince of Wales is party-political neutral ([10] emphasis added).’  The Attorney-General continues, ‘it is highly important that he is not considered by the public to favour one political party or another’ ([10]).  I suspect I am not alone in thinking that there would be better ways to maintain an appearance of political neutrality than preserving as apparent constitutional right the unfettered ability of the heir to the throne to confidentially lobby the government.  Regardless, while the technical point regarding party-political bias might be sustained – or at least, cannot now be disproven – it is far less clear that there has been no ‘engagement in political controversy’ whatsoever on the part of the Prince.  Why otherwise would the Attorney-General feel the need to concede that disclosure of the ‘advocacy correspondence’ ‘would potentially have undermined [the Prince’s] position of political neutrality’ ([12])?

In short, the Attorney-General asks us to buy into the idea of political neutrality while at the same time turning a blind eye to potentially political (and/or controversial) interventions made under protection of confidentiality and defended as serving (debatable) educative function.  All things told, this episode, while offering a tantalising glimpse into an area now covered by an absolute exemption, otherwise only casts light on a central weakness of our Freedom of Information regime, and a government co-opted into perpetuating continued (and intolerable) uncertainty over the political influence of the monarchy.

Roger Masterman is Reader in Law at Durham University.

Suggested citation: R. Masterman, ‘The Prince, the Attorney-General, the Section 53 Certificate and the pretence of political neutrality’  UK Const. L. Blog (22th October 2012) (available at http://ukconstitutionallaw.org)

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by | October 16, 2012 · 7:13 am

Hayley J. Hooper: Keep Calm and Carry On?

ON SEPTEMBER 18, 2012 the Upper Tribunal allowed an appeal, reversing decisions of the Information Commissioner relating to the release of “advocacy correspondence” between Prince Charles in his capacity as Heir to the Throne, and seven government departments. The information was originally requested by Guardian journalist Rob Evans and related to a time period between 2004 and 2005. In a piece written by Evans on October 12, 2012 in the Guardian it was reported that the “advocacy correspondence” where Prince Charles allegedly argued for changes in government policy in line with his personal viewpoint had become known as the “black spider memos” in reference to the Prince’s style of handwriting. The information requests have occupied the tribunals’ service for close to four years.

The decision in Evans v Information Commissioner [2012] UKUT 313 (AAC) is something of a novelty in several respects. First, this is likely to be one of the last decisions of its kind because as of January 19, 2011 communications between public authorities and the Heir to the Throne are now the subject of an absolute exemption under the Freedom of Information Act 2000 due to an amendment made by the Constitutional Reform and Governance Act 2010. Secondly, the decision of the Upper Tribunal created the unusual situation whereby a judicial body had to adjudicate on the scope of several constitutional conventions as they related to the Heir to the Throne.  Thirdly, it presents an opportunity to begin debating the proper conception of the public interest in knowing information about the activities of the Heir to the Throne in relation to his preparation for Kingship, and his role in public life generally.

This decision is not to be confused with other the recent FOI decision concerning Prince Charles in his capacity as head of the Duchy of Cornwall. On August 21, 2012 The Information Commissioner decided that information relating to Prince Charles’ legislative veto in relation to the Duchy of Cornwall was not exempt from disclosure under section 42(1) of the Freedom of Information Act 2000, which relates to “legal professional privilege”.

In view of this, this blog post has several aims. I begin by explaining the use of freedom of information law in the context of the case. In the next section I discuss the constitutional position of the Prince of Wales as the Heir to the Throne. Thereafter, I will consider the Upper Tribunal’s discussion of the scope of the relevant constitutional conventions. Finally, I will scrutinise the different consideration given to the concept of the “public interest” by the Upper Tribunal and Parliament in the 2010 Act.

 Exemptions under the Freedom of Information Act 2000

There are two types of exemption from the general right of access to information held by public authorities in the Freedom of Information Act 2000. The first is the “absolute exemption” which prevents to the disclosure of the information under any circumstances. Absolute exemptions historically included communications with the Sovereign, and since January 19, 2011 such an absolute exemption has also applied communications with the Heir to the Throne by virtue of section 37(1). The second type of exemption is a “qualified exemption”. Such an exemption refers to information ordinarily immune from disclosure unless it can be overridden by a public interest test. The public interest test in section 2(1)(b) places a duty on a public authority to decide whether “in all the circumstances of the case, the public interest in maintaining the exclusion of the duty to confirm or deny outweighs the public interest in disclosing whether the public authority holds the information”. Exemptions of this type apply for example to information relating to law enforcement (section 31), legal professional privilege (section 42), prejudice to the effective conduct of public affairs (section 36), environmental information (section 39), and commercial interests (section 43).

The relevant contested provisions before the Upper Tribunal in the Freedom of Information Act 2000 were section 37 and section 40, and section 41. Prior to being amended by the 2010 Act, section 37 imposed an absolute exemption from disclosure upon communications with the Sovereign entitled “Communications with Her Majesty, etc. and honours”. The 2010 Act extended this protection to similar communications with the Heir to the Throne. Section 40 is also an absolute exemption relating to personal information as defined by the Data Protection Act 1998. Section 41 also exempts absolutely information provided in confidence.   In respect of the Environmental Information Regulations 2004, the Department for the Environment, Food, and Rural Affairs DEFRA relied upon Regulation 12(5)(f) and Regulation 13 which related to  the interests of the person supplying the information and personal data, respectively. The Upper Tribunal did not decided whether Prince Charles’ communications amounted to personal data, and concluded that the environmental regulations contained a presumption in favour of disclosure that the Tribunal found no reason to depart from.

 The Constitutional Position of the Prince of Wales as Heir to the Throne

It should be noted that none of the parties to the litigation contended that Prince Charles’ activities of “advocacy” to government ministers was at any time or would be unconstitutional. The tribunal decided that there was no established constitutional position for the Heir to the Throne. However, it was noted by Counsel for Mr Evans that Prince Charles’s self-perceived role has been described on his behalf as representational, “drawing attention to issues on behalf of us all” and “representing views in danger of not being heard”. For an account of the Prince of Wales’ activities vis-à-vis his role as Heir to the Throne, the Tribunal drew heavily upon a 1995 article in Public Law by the expert witness for the seven government departments, Rodney Brazier, entitled “The Constitutional Position of the Prince of Wales”. In the 1995 article, Brazier pointed to several features of the Prince of Wales’ activity which were, in his view, “novel” or “surprising”. These included the fact that Prince Charles had arrogated for himself the right to communicate directly with Ministers on affairs of government. Also, Professor Brazier’s 1995 piece pointed out that the Prince was insisting upon enjoying the same rights as the incumbent Monarch in respect of the “tripartite convention”.

 Relevant Constitutional Conventions

Writing in 1984, Marshall wrote that the “major purpose of the domestic conventions is to give effect to the principles of governmental accountability that constitute the structure of responsible government.” All parties to the action agreed that there were three conventions which the case engaged. Both sides agreed upon Sir Ivor Jennings’ tripartite test for the existence of a constitutional convention. In The Law and the Constitution (5th ed., 1959) Jennings suggested that a constitutional convention exists if (i) there are precedents underpinning it, (ii) the parties to the relevant practice consider themselves to be bound by it, and (iii) there is a reason for the existence of the convention. Three constitutional conventions were deemed relevant to the dispute. These were the “Cardinal Convention”, which mandates that the Monarch acts on the advice of Ministers. The second was the “Tripartite Convention” which Bagehot famously described  in The English Constitution as being the Sovereign’s right to “…be consulted, the right to encourage, [and] the right to warn”. However, neither side advanced the proposition that either of these conventions applied to Prince Charles at the stage in question – when he was neither King nor Regent.

The tribunal remarked that the third convention, “the education convention”, had been regarded until now “as little more than a footnote.” This convention stated that the Heir to the Throne is entitled to be educated in the business of government. The seven government departments representing Prince Charles’ interests also argued that the scope of the education convention covered “advocacy correspondence” and required absolute confidentiality to ensure its proper operation. The Upper Tribunal ruled that the confidentiality of the education convention did not extend to advocacy correspondence. In so ruling, the Tribunal also rejected the seven departments’ contention that the advocacy correspondence merited additional protection over and above “routine” confidential correspondence because it fell within the scope of a constitutional convention.

Argument about the education convention revolved around the “admittedly new contention” advanced by the seven departments “that the education convention has been extended so that it covers all correspondence between government and the heir to the throne.” The Upper Tribunal rejected this contention, stating that “in the public examples that we have seen, the plain facts are that what Prince Charles is doing is not prompted by a desire to become more familiar with the business of government, and simply is not addressing what his role would be as king.” The conclusion of the Tribunal was that inclusion of “advocacy correspondence” within the education convention would involve “a massive extension” of that convention for which no good reason had been advanced. Moreover, the disclosure of advocacy communication would be a general benefit to the operation of the education convention because “[it] will focus the minds of the parties on the important principle that the education convention does not give constitutional status to advocacy communications.” So, because the “advocacy correspondence” fell outside of the scope of the education convention, the interest in maintaining confidentiality under that convention was not engaged.

 Differing approaches to the Public Interest of The Upper Tribunal and Parliament

The Upper Tribunal was rightly conscious of the politically charged subject matter of the case, noting in its introductory remarks that:

 “[some] will be horrified at any suggestion that correspondence between government and the heir to the throne should be published. They fear, among other things, that disclosure would damage our constitutional structures. Others may welcome such disclosure, fearing among other things that without it there will be no real ability to understand the role played by Prince Charles in government decision-making.”

 Therefore, it was common ground that the legal questions in the case revolved around one issue – the issue of disclosure – and whether or not any breach of confidence or privacy that disclosure involved would be in the public interest. The Tribunal, I think quite properly, made clear that it was not seeking “to weigh the benefits of a constitutional monarchy over those of a republic.” In this respect it successfully approached the issue in their intended manner – “dispassionately”.

The Tribunal is also to be commended for its extensive treatment of the question of public interest, which ran to twenty-one pages and covered eight separate aspects. Reference was also made to the Nolan Principles on Public Life for the purposes of general guidance. The aspects of the public interest identified were: (1) the promotion of good governance, (2) Royalty, government, and constitutional debate, (3) understanding Prince Charles’ influence, (4) the education convention and preparation for Kingship, (5) the public perception of Prince Charles, (6) chilling effects on frankness in communication between Prince Charles and Ministers, (7) maintaining confidences and preserving privacy, (8) and finally an attempt was made to take a general perspective on the overall balance. The Tribunal concluded that all eight aspects contained facets which, on balance, pointed towards disclosure in the public interest.

In the course of its evaluation of the public interest in maintaining confidences the Tribunal noted that there was a strong interest in maintaining confidentiality, following the test laid down in Prince of Wales v Associated Newspapers [2006] EWCA Civ 1776, but in view of their detailed consideration of the seven factors, that the “inherent weighty public interest in the maintenance of confidences” cited by the Information Commissioner was vital, it was outweighed by the public interest in disclosure. In respect of the overall balance the Tribunal made clear that it was not persuaded that correspondence between ministers and Prince Charles warranted “greater protection from disclosure than would be afforded to correspondence with others who have dealings with government in a context where those others are seeking to advance the work of charities or to promote views.”

Whilst the Upper Tribunal should be commended for its diligent evaluation of the public interest in respect of the areas it covered, the outgoing New Labour government, supported by Parliament were of the view that the public should simply “Keep Calm and Carry On”. Jack Straw, the Minister sponsoring the Bill during a Commons debate on March 2, 2010, claimed that there was a “lacunae” in the original Freedom of Information Act and that:

“We are blessed in this country by a constitutional monarchy of the highest standards. Whatever turmoil there might have been in our body politic, above it all, and held in continuing high respect, is the position of the sovereign… it is of great importance that we protect the political impartiality of the monarchy, the sovereign’s right and duty to counsel, to encourage and to warn the Government and the right of the heir to the throne to be instructed on the business of government in preparation for the time when they assume the monarchy.”

The former Government Minister’s position reminds the reader of Bagehot’s description of the “dignified” portion of the constitution. Bagehot, writing in the Victorian-era, opined:

“The use of the Queen, in a dignified capacity, is incalculable. [The] best reason why Monarchy is a strong government is, that it is an intelligible government. The mass of mankind understand it, and they hardly anywhere in the world understand any other.”

During the same debate Tony Wright MP (Lab) expressed the opinion that: “The question is whether such communications-after all, the amendment that we are being asked to consider is, in a sense, the Prince Charles amendment…”, and furthermore that government should have to make the case for “giving away a public interest test virtually in perpetuity”. Wright developed his case with reference to the example of homeopathic medicine:

“Let us consider homeopathy, which most sensible people think is not entirely supported by evidence. Suppose that Prince Charles, the heir to the throne, were to weigh in to the debate, giving heavy support to the idea that resources should be devoted to homeopathy. If a Government then decided to start allocating resources to homeopathy, people would be entitled to know that that act of lobbying had been extremely successful. We would want to know about it if it had come from any other source.”

However, since January 2011 Parliament has enacted a legal prohibition upon access to such information, and the only explicit justification offered by the sponsoring Minister was that this was the original intention of the Freedom of Information legislation, and protection of the Heir to the Throne had simply been overlooked by the draftsman. Despite this, there are many hypothetical examples above and beyond support for alternative medicine that would legitimately give rise to a public interest in disclosure. The overall conclusion of the Upper Tribunal is instructive:

“The media interest in Prince Charles’s interaction with ministers is substantial. It seems to us that this is not a factor which in itself necessarily favours disclosure. What is relevant is that there is a real debate, generating widespread public interest, on a matter which goes to the heart of our constitution. Sensationalism merely for the sake of it will not generally be in the public interest.”

The Tribunal noted that the 2010 Act represented “a change in legislative policy”. Such a change in policy is something parliament is constitutionally absolutely entitled to carry out. However, it is regrettable that such a fundamental change occurred in the course of a Bill which contained a laundry list of constitutional amendments, resulting in only a fleeting consideration of its potentially wide-ranging impact upon the operation of government. Bagehot’s seminal work first appeared in 1867. It now seems decidedly at odds with our information society that parliament should expect the people to remain ignorant of the persons and factors which might influence government policy.

Hayley J. Hooper is Lecturer in Law at Trinity College, Oxford.

Suggested citation: H. J. Hooper, ‘Keep Calm and Carry On?’   UK Const. L. Blog (16th October 2012) (available at http://ukconstitutionallaw.org)

Editor’s note: this post was revised on 25th October 2012.

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by | September 15, 2012 · 8:20 am

Carol Harlow: How not to do things with rules

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

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

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

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

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

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

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

The prerogative power

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

The Immigration Rules (IRR)

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

Changes of policy       

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

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

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

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

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

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

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

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by | June 14, 2012 · 5:43 am

Andrew Le Sueur: On queuing and queue jumping

Along with moaning about the weather, queuing is generally regarded as part and parcel of life in Britain. Next month’s Olympics look set to provide ample opportunities for both in London. At least there are now fewer bendy buses: my experience of the No 25 was that their multiple exists/entrances caused a breakdown of social conventions about whose turn it was to get on first, even among those of us who believe that queuing is fair.

Queuing is a fact of life in various public law settings. Queues can be a highly potent element in public and political accountability systems, performing roles as triggers and yardsticks. Recently, unacceptable waiting times at the UK Border control points at Heathrow led to questions in Parliament, extensive discussion in the news media, tweets from Joan Collins to the Home Secretary, and hopefully some action in the beleaguered Border Agency. Queuing also provides an accountability measure for access to NHS accident and emergency treatment: a couple of weeks ago, the King’s Fund reported a 26 per cent increase in the number of patients – that’s over 250,000 –waiting more than four hours in A&E (though the good news was that the NHS met its target to discharge 95 per cent of patients within four hours).

Queuing can also be valuable in other ways. I have heard it said that a benefit of the antiquated division system in the UK Parliament (where MPs and peers vote by leaving the chamber and queue to move through the “ayes” and “noes” lobbies) is preferable to electronic voting at seats because it provides opportunities for legislators to have quick words with each other, helpful in the day-to-day conduct of political business.

The question that is troubling me is: in what circumstances is it acceptable for someone to jump a queue in a public law context?  I have in mind situations where a public authority has an effective monopoly on the provision of a service or the right to regulate. Border control, issuing passports, and the determination of planning permission are examples. (In Britain, there are many situations where a relatively wealthy and well-informed person may choose to avoid a queue by seeking an alternative to government service provision in the market place – for instance, private health care instead of the NHS or arbitration instead of the courts ­– but that is a rather different situation to the one I have in mind).

As with so much in life, money (for those who have it) provides one set of possible options for queue mitigation.

A person queuing could try to flash the cash: to pay a public official to be allowed to move forward, out of one’s normal turn. In some jurisdictions, a payment to officials to have a decision made, or one’s case move forward in a court docket, is unexceptional. By most international comparisons, payments of this sort are thankfully uncommon in Britain. A tactic of offering a public law decision-maker a wodge of £20 notes in a brown envelop or an invitation to an exclusive golf-club followed by a slap-up lunch and a trip to a lap dancing club, if detected, will bring the Bribery Act 2010 into play, with criminal consequences. So, to state the obvious, corrupt practices are not acceptable ways of jumping a queue.

Payments to avoid or reduce queuing time in some situations are, however, lawful. Well-heeled travellers with business or first class tickets are welcomed at a “fast track” queue for UK Border control at several major British airports. The even-better-heeled may shell out for a “concierge service”, with an escort from the plane to a private and presumably very queue-less lounge for processing by a UK Border officer. These practices feel wrong to me (and I say that as a frequent flyer who sometimes pays over the odds to turn left when I get on a plane). Even if I were sure that airlines and concierge services paid a handsome fee to the UK Border Agency to recoup the costs of officials, plus more, it would still feel wrong.

In chapter 1 of his new book, The Moral Limits of Markets: What Money Can’t Buy (which I’m currently reading), Michael Sandel seems to strike a phlegmatic tone. The demise of the queue for those who are willing and able to pay, he writes, “at airports and amusements parks, at Shakespeare festivals and congressional hearings, in call centers and doctors’ offices, on freeways and in national parks – are recent developments, scarcely imaginable three decades ago. The demise of the queue in these domains may seem a quaint concern”.

As public lawyers, I think we should apply particular kinds of distinctions to queues, and take a principled approach to when queue jumping can and cannot legitimately take place. To my mind, buying a right to speedier decision-making by officers of the state at the UK Border at an airport is not the same as buying a Fastrack ticket for Alton Towers. Two features of the border control scenario should make us reluctant to allow preferential treatment to be bought and sold. One is that border control is a core activity of the state. The second is that it entangles (and I put it no higher than that) human rights: the corralling of passengers is a denial of liberty for governmental purposes, even if it does not register on the ECHR article 5 Richter scale; and the right to return to one’s country is also, for many passengers, in issue. The first come, first served fairness principle that underpins queuing ought to be main consideration, though other factors such as the desirability of showing special concern for frail, elderly or disabled people might also be included in a new one-size-fits-all egalitarian regime. So I’ve come to the conclusion that supermodels, sports stars, pop singers I haven’t heard of and some I have, captains of industry and the odd university vice-chancellor should queue shoulder to shoulder with everyone else. Speedier and more private decisions should not be bought and sold by the state.

This approach – of deprecating paid-for queue jumping for core state activities affecting human rights and fundamental freedoms – is not confined to the UK Border control. I’d argue that the three-tier passport renewal service (standard £77, fast track £112 and premium £129) also falls foul of the rule I’m advocating. With their newfound freedoms under the Localism Act 2011, it should not surprise us if paid-for queue jumping crops up in an increasingly wide range of situations in regulation and service provision by local authorities; and the need for other cash-strapped public authorities to “do more, with less” will see the phenomenon of paid-for queue jumping mushroom. What next: VIP lanes in polling stations on election days?

As the Prime Minister tells us, there are some situations in which “we are all in this together”.

Andrew Le Sueur is co-convenor of the UK Constitutional Law Group.

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by | June 7, 2012 · 9:42 am

Jacob Rowbottom: Ministers, media and the decision to investigate

Last week, an editorial in the Guardian called for the Independent Adviser on Ministerial Interests to be scrapped. The paper argued that, as the Adviser is called into action so infrequently, his £20,000 salary is not a good use of resources. Since that article was published, Baroness Warsi has been referred to the Independent Adviser, so at least the current holder of the office, Sir Alex Allan, has some work to be getting on with. However, controversy still surrounds David Cameron’s decision not to refer Jeremy Hunt to the Independent Adviser too.

While there are differing views as to whether Hunt acted in breach of the Ministerial Code, the difficulty lies with the process for deciding whether to refer a matter to the Independent Adviser. It is the Prime Minister that determines whether an alleged breach of the Ministerial Code should be subject to an independent investigation. Whenever I teach ministerial responsibility, most students are pretty quick to spot the basic problem with this arrangement, namely that the PM will have a strong incentive not to refer matters that might have significant political repercussions. So, some commentators speculate that Cameron has been unwilling to refer Jeremy Hunt because an investigation into his with News Corp might reflect badly on Number 10 too. By contrast, an investigation into Baroness Warsi’s alleged failure to disclose a business interest is less likely to wreak damage to the government as a whole (and may have little long term impact on Warsi’s career).

Whether such incentives are at play is speculative. While we can’t know for sure the PM’s reasons, there is still a public perception that the power to refer to the Independent Adviser is used strategically. The PM’s has discretion not only in initiating a formal investigation, but also in deciding the sanction in the event of a breach of the Ministerial Code. That latter discretion is unavoidable, as questions relating to the composition of the Cabinet are ultimately for PM.

The position of Independent Adviser was set up in 2006, as part of a gradual process that has led to more formalized controls on ministerial ethics. The current system seeks to provide some sort of independent check on ministers, while preserving the PM’s ultimate responsibility for the government. It is a system that is a mixture of political discretion and formal investigation. The current concern is that the former element undermines the latter. There are, of course, improvements that could be made. In 2008, the Public Administration Select Committee (PASC) called for the Independent Adviser to be given powers to initiate an investigation of an alleged breach of the Ministerial Code, without a referral from the PM. In March this year, the PASC made the same call again for such a powers to be granted. That change would preserve some political discretion, but do so at the sanctions rather than the initiation stage.

The very issue that has led to calls for Jeremy Hunt’s investigation, the role of the government in relation to the regulation of media mergers, raises a parallel issue. When a media merger is to take place, the Secretary of State has the power to initiate an investigation into the effects of that merger on media plurality (the public interest test). In such circumstances, the minister refers the matter to Ofcom. After Ofcom has made its report, the minister can then refer the merger to the Competition Commission (News Corp’s BSkyB bid was at this stage last summer when the phone hacking scandal broke). If the Commission makes a finding that the merger will be detrimental to the public interest, the minister has the power to approve, block, or attach conditions to the merger. Like the PM’s power on the Ministerial Code, the Secretary of State has the power to initiate an investigation and to impose remedies after the conclusion of the investigation, but an independent body conducts the investigation. It too is a mixture of political discretion and formal investigation. It is also similar to the Ministerial Code process in that there is great suspicion that the minister uses the discretion for strategic reasons.

Again, one solution is to give the investigator, in this case Ofcom, the power to get the process started without a reference from the minister. The House of Lords Communications Committee proposed such a reform in 2008. The possibility of handing the process to independent regulators was also recently discussed at the Leveson Inquiry. At the Leveson hearings, Vince Cable voiced opposition to such a change, arguing that politicians have a legitimate role to play in the media mergers regime. He said:

‘[…]elected politicians, ministers, have a role in the process, and I think that’s absolutely right. I think it’s right because when we’re talking about matters of public interest, we’re making qualitative judgments. We’re not following a sort of quantitative metric, which is what one would normally do with, say, a competition case, and I think it’s right that those decisions be made by people who are — have legitimacy through the democratic process, who are accountable to Parliament […]’

He went on to say that the risks of bias are limited, given that the Secretary of State has to follow a prescribed process, take legal advice and can be subject to judicial review. Cable then noted that to take the decision to initiate the process away from a politician would be to seek ‘artificial comfort’ in a bureaucratic mechanism.

Generally speaking, I have some sympathy with Vince Cable’s point. A decision does not become any less political by giving it to a bureaucrat or quango, and judgments involving the public interest are normally for the democratically accountable parts of government. The question of media plurality is, however, different. It is tied up with issues of power – namely who can own the media (and how much of it can be owned by one person). The media often legitimizes its power by claiming an ability to act as a check on politicians. While some newspapers may favour and give preferential coverage to a particular politician, plurality means that other titles out there may take a more critical stance. That check can be undercut if the minister uses a discretionary power to win favour from a particular media outlet, and give that outlet an advantage over its competitors. In other words, as media plurality is a component of a system that holds the government to account, we should be cautious about giving the government control over the composition of that system in specific cases (as opposed to formulating general rules on plurality).

Giving Ofcom the power to initiate an investigation is just one option. The Coordinating Committee for Media Reform proposes (along with a range of other media reforms) that the public interest investigation should be triggered automatically when a proposed merger meets a threshold of the market share. That approach would take a step away from the current reliance on discretion, whether from a politician or a regulator. Initiating investigations either through Ofcom or a thresholds approach would be an important step, but more may be necessary. In the case of Jeremy Hunt, the public interest investigation was already under way when he became Culture Secretary, and the issue was whether to refer the matter to the Competition Commission. The question is then whether the political discretion should be limited at that intermediate stage too, for example by letting Ofcom decide whether the merger should go on to the Commission.

The questions surrounding Jeremy Hunt both in relation to the Ministerial Code and media plurality raise parallel issues about the role of politicians in the very processes that are supposed to hold them to account. The reforms discussed here would not remove politicians from the processes altogether, but would at least stop them deciding when the wheels can be set in motion. That, I believe, would be a step towards a stronger system of political accountability.

Jacob Rowbottom is a Fellow of University College, Oxford. 

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