Category Archives: UK Parliament

by Constitutional Law Group | May 10, 2013 · 7:30 am

Tarunabh Khaitan: Caste as Race—A Welcome First Step

My 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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Filed under UK government, UK Parliament

Tagged as Caste Discrimination, Discrimination Law, Equality Act 2010

by Constitutional Law Group | April 25, 2013 · 3:30 pm

Jeff King: Deference, Dialogue and Animal Defenders International

In Animal Defenders International, the European Court of Human Rights upheld the British ban on political advertising in the broadcast media (s.321 Communications Act 2003), consistently with the judgments of the UK House of Lords and High Court, but in an apparent departure from its previous caselaw in the VgT (Verein gegen Tierfabrik v. Switzerland, no. 24699/94 ECHR 2001‑VI) case. The key issue in the case was whether a blanket ban (or ‘general measure’) was a proportionate restriction of the freedom of expression, or whether some class of exception (a ‘case-by-case’ approach) for groups such as the NGO in this case ought to be recognized. I am in complete agreement with Jacob Rowbottom ’s view on the correctness of the Court’s judgment and the desirability of a general ban. In brief, the problem with making case-by-case or category-based exceptions for advocacy groups is that there is a risk of profusion of ‘non-profit’ groups that are in fact created and backed by well-monied interests, the unveiling of which becomes an impossible regulatory task in the shadow of constant litigation. The focus of the present comment is on three further matters raised by the case that are of importance for British constitutionalism: the role of judicial restraint; the merit of rigorous human rights-based parliamentary scrutiny of legislative proposals; and the value of UK-Strasbourg dialogue.

Many academics have stepped into what is often called ‘the deference-debate.’ [*] One group, in which we find Murray Hunt, Aileen Kavanagh, Alison Young, myself, and I think to a more subtle extent Alan Brady, believe that there is a role for both the practice of judicial restraint, and also for a specific doctrine of judicial restraint, though none of us is generally skeptical of the judicial protection of human rights. On the other hand, we find Trevor Allan arguing a cogent case that a doctrine (e.g. a set of overtly recognized principles) of judicial restraint would be pernicious, that it will lead to excessive deference, and that any proper role for judicial restraint is already comprehended within the legal standards themselves – in legal concepts such as proportionality, Wednesbury reasonableness, fairness and so on. For the unanimous judgment of the House of Lords in Huang v SSHD [2007] UKHL 11, Lord Bingham made the following finding, after summarizing a range of immigration-specific factors for consideration:

The giving of weight to factors such as these is not, in our opinion, aptly described as deference: it is performance of the ordinary judicial task of weighing up the competing considerations on each side and according appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice. That is how any rational judicial decision-maker is likely to proceed.

Who needs a doctrine, in other words? This largely agrees with the views of both Trevor Allan and Tom Hickman. The problem though is that this view depends entirely on the judge having Lord Bingham’s intuitions about ‘appropriate weight,’ which are not as widely shared as we all would wish. In Animal Defenders International, the Court split 9/8 and Rowbottom, the country’s leading legal expert on the matter, was himself convinced that Strasbourg would decide against the ban. The safe bet was on losing.

The substance of the majority’s decision gave enormous weight to the comprehensive examination of the issue within the legislative process (and in court thereafter):

114. […] The Government, through the DCMS [the Department], played an important part in that debate explaining frequently and in detail their reasons for retaining the prohibition and for considering it to be proportionate and going so far as to disclose their legal advice on the subject (paragraphs 50-53 above). The 2003 Act containing the prohibition was then enacted with cross-party support and without any dissenting vote. The prohibition was therefore the culmination of an exceptional examination by parliamentary bodies of the cultural, political and legal aspects of the prohibition as part of the broader regulatory system governing broadcasted public interest expression in the United Kingdom and all bodies found the prohibition to have been a necessary interference with Article 10 rights.

115. It was this particular competence of Parliament and the extensive pre-legislative consultation on the Convention compatibility of the prohibition which explained the degree of deference shown by the domestic courts to Parliament’s decision to adopt the prohibition (in particular, paragraphs 15 and 24 above). The proportionality of the prohibition was, nonetheless, debated in some detail before the High Court and the House of Lords. Both courts analysed the relevant Convention case-law and principles, addressed the relevance of the above-cited VgT judgment and carefully applied that jurisprudence to the prohibition. Each judge at both levels endorsed the objective of the prohibition as well as the rationale of the legislative choices which defined its particular scope and each concluded that it was a necessary and proportionate interference with the applicant’s rights under Article 10 of the Convention.

116. The Court, for its part, attaches considerable weight to these exacting and pertinent reviews, by both parliamentary and judicial bodies, of the complex regulatory regime governing political broadcasting in the United Kingdom and to their view that the general measure was necessary to prevent the distortion of crucial public interest debates and, thereby, the undermining of the democratic process.

The Court here effectively endorses a notion of judicial restraint in deference to the substance and process by which the decisions were undertaken in this situation. The very issue of the viability of an exception as an alternative to a blanket ban had been batted back and forth by several bodies during the legislative process (and insufficiently so by the Strasbourg court in previous cases, as the UK argued in this case). The majority judgment showed respect for that process and awareness of their own limitations in second-guessing it in a complex context, when the stakes are high. (The concurring judgment of Sir Nicholas Bratza was even better on this and other points, but I pass over it here for a variety of reasons).

By contrast, the two dissenting judgments had no time for this. The first group of dissenters quote the notorious court-sceptic JAG Griffith as authority for the implied point that the British courts defer too much to Parliament (Joint Dissenting Opinion of Judges Ziemele et.al., para.2), and then chastise the majority in the following terms:

“Nor does the fact that a particular topic is debated (possibly repeatedly) by the legislature necessarily mean that the conclusion reached by that legislature is Convention compliant; and nor does such (repeated) debate alter the margin of appreciation accorded to the State. Of course, a thorough parliamentary debate may help the Court to understand the pressing social need for the interference in a given society. In the spirit of subsidiarity, such explanation is a matter for honest consideration. In the present judgment, however, excessive importance has been attributed to the process generating the general measure, which has resulted in the overruling, at least in substance, of VgT, a judgment which inspired a number of member States to repeal their general ban -a change that was effected without major difficulties.”

Both parts of this quote are misguided in my view. Dismissing the outcome because such a process can yield wrong results (obvious) is to miss the point that this process, on this issue, did deserve considerable weight for a range of substantive reasons. They include the fact that the interlocutors in that process had special knowledge of British politics, commercial media, and consumer habits, and studied the phenomenon at great length and in good faith. The second part of this quote states a claim that could be a highly material point – surely if the revoked ban had not led to problems elsewhere, then that supports the view that the blanket ban isn’t necessary. But how do they know whether the ban has not in fact been pernicious there? No evidence is given on this point, and we cannot assume no news is good news when we haven’t looked. We do know that the impact of the Citizens United v Federal Communications Commission 558 U.S. 310 case in America, which struck down a not entirely dissimilar ban on ‘electioneering communications’ funded by corporations, has been terrible. One study determined that the case accounted for 78% of campaign spending in the 2012 Presidential election. (For a more nuanced view of its impact, see here).

The other dissenting judgment, of Justices Tulkens, joined by Judges Spielmann and Laffranque, at least addressed this issue:

“17. The references to other systems in the context of that examination were brief and selective. The system most frequently referred to, as an example to be avoided, was that of the United States (paragraphs 37-54 of the judgment), but the latter country’s regulatory system is so different to that in issue here that the comparison strikes me as barely relevant.”

In this hubristic gesture, Judge Tulkens sweeps aside the virtually unanimous domestic agreement that it is both relevant and indeed persuasive. What is brushed aside in the dissenting judgments more broadly include the views of the Neill Committee on Standards on Public Life, which visited several countries and reported at length to Parliament; the Joint Committee on Human Rights; the Independent Television Commission; the Joint Committee on the Draft Communications Bill; the Electoral Commission; and the unanimous opinion of the UK Parliament. These bodies not only know local dynamics, but had greater subject-matter expertise and took more time for consideration. To offer only one illustration, the Neill Committee Report was 262 pages, and the Committee undertook visits to five countries, considered over 400 written submissions, and spent seventeen days taking evidence from 120 individual experts representing 75 organisations in public hearings held around Britain. It also commissioned two relevant research studies, one of them analyzing freedom of expression jurisprudence.

I will not delve into the UK literature on judicial restraint here to show how the various factors adduced in that literature would counsel the right outcome here. In brief, the relative expertise was greatly skewed towards the British institutions, both political and judicial; the exact human rights issue was the subject of protracted debate and litigation; the claimant group was not clearly politically marginalized or vulnerable to begin with (a point which is anyway not decisive here); and the cost of getting the issue wrong could be immense and irreversible (hence an impediment to much needed flexibility). The principles of restraint and deference alluded to by the authors above all draw attention to these items and above all warn judges to resist the temptation to think that once human rights are in play, the judge decides in splendid isolation from policy or considerations of competence. To those who think this is all obvious, the near miss in Animal Defenders International reminds us that it isn’t.

Having explored this much, I can deal briefly with my second and third points. The second concerns the value of parliamentary consideration of human rights issues. I am presently engaged in research that examines parliamentary responses to section 4 declarations of incompatibility, and am struck by the incredible professionalism and rigour that is often (not always) found in this process. The JCHR in particular draws the direct attention of both houses to significant human rights implications of bills. It does so on the basis of advice from its legal advisor (presently Mr. Murray Hunt) and always in due consideration of the domestic and international law, as well as considerations of policy. It considers evidence submitted by a variety of NGOs and engages in extended correspondence with the Government on particular bills. It is the interaction between this Committee, Government and Parliament, where the normative guidance set out in the jurisprudence of the courts unites with the participatory advantages and working flexibility of the legislative process. It may look revolutionary in the human rights context, but it is in fact a workaday illustration of a more widely acknowledged truth - that pre-legislative scrutiny, as well as legislative scrutiny, is extremely valuable for helping to identify key issues before views ossify and legislative change becomes impeded by inertia and competition. It can also potentially play a constructive role in litigation afterwards, either helping or harming a legal challenge to the Convention-compatibility of legislation (pace Article 9 of the Bill of Rights 1689 – on which see further the AHRC Report by Hunt, Hooper and Yowell, Parliament and Human Rights, pp.49-50).

The last point is that this case does represent precisely the merits of UK judges scrutinizing the state’s arguments in UK courts, in Convention-rights terms and with due consideration of Strasbourg jurisprudence, before the issue travels to Strasbourg for consideration there. The Strasbourg Court not only essentially adopted the reasoning of the UK courts, but in doing so it explicitly rowed back from its own jurisprudence (i.e. the VgT case). This is an entirely appropriate form of institutional dialogue, and shows maturity of judgment, the flip side of the much-maligned UK courts’ own willingness to apply rules laid down in Strasbourg. The upshot of this is plain: a British Bill of Rights that acted as a substitute for the Human Rights Act 1998 would have destroyed that dialogue, and made the wrong outcome in Animal Defenders International more likely.

Jeff King is Senior Lecturer in Law at The Faculty of Laws, UCL.

Suggested citation: J. King, ‘Deference, Dialogue and Animal Defenders International’ U.K. Const. L. Blog (25th April 2013) (available at http://ukconstitutionallaw.org).

[*] Some important works in this vein include M. Hunt, ‘Sovereignty’s Blight: Why Contemporary Public Law Needs a Concept of Due Deference’ in Bamforth and Leyland, Public Law in a Multi-Layered Constitution (Hart 2003); A. Kavanagh, ‘Defending Deference in Public Law and Constitutional Theory’ (2010) 126 Law Quarterly Review 222 (see also her book Constitutional Review under the UK Human Rights Act (CUP 2009) Part II; A. Young, ‘In Defence of Due Deference’ (2009) 72 The Modern Law Review 554; J. King, ‘Institutional Approaches to Judicial Restraint’ (2008) 28 Oxford Journal of Legal Studies 409, and Judging Social Rights (CUP 2012) Part II (elaborating four principles of restraint). For the earliest statement of the best critique, see TRS Allan, ‘Human Rights and Judicial Review: A Critique of “Due Deference”’ (2006) 65 The Cambridge Law Journal 671, a position refined and enhanced in Professor Allan’s more recent (and forthcoming) work. See also the nuanced position of Dr. Tom Hickman, Public Law after the Human Rights Act (Hart 2010) (accepting and outlining a role for ‘weight’ and guiding principles, but rejecting the idea of a doctrine). Alan Brady’s Proportionality and Deference under the UK Human Rights Act (CUP 2012) integrates deference into the proportionality analysis in a manner that I believe has more in common with the doctrinalists than with Allan’s approach. Leadings treatise writers such as Paul Craig, Timothy Endicott and Jeffrey Jowell all recognize the role for judicial restraint but have largely steered clear of the question of whether any doctrine is necessary.

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Filed under Human rights, UK Parliament

Tagged as Animal Defenders Case, Election Broadcasts, European Court of Human RIghts, freedom of expression, Media Law

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

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

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

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

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

Strengths & Weaknesses

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

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

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

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

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

The Real Issue: The Process of Constitutional Change

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

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

Conventions and English Regionalism

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

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

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

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

Composition

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

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

Public Interest

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

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

The Future?

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

Conclusion

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

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

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

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Filed under Constitutional reform, UK Parliament

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

by Constitutional Law Group | April 2, 2013 · 2:51 pm

Dawn Oliver: Parliamentary Sovereignty in Comparative Perspective

I Parliamentary sovereignty in other countries

In this post I defend the absence of judicial strike down powers in the UK by exploring the ways in which other countries besides the UK manage to function well as liberal democracies without courts enjoying strike down powers, and looking at some of the negative aspects of the USA system, which is sometimes held up as a model to which the UK should look.

A doctrine of parliamentary sovereignty in the particular sense that the courts will give effect to legislation passed by the Parliament on any subject matter, even if it is ‘unconstitutional’, is not unique to the UK. It applies in common law based New Zealand which – like the UK – does not have a formally entrenched written constitution (though a 75% majority in a referendum is required to certain aspects of the electoral system). It also applies in some of our Northern European neighbours, notably Finland, Sweden and the Netherlands.

New Zealand

Politics in New Zealand resembles that of the UK in a number of respects, including the development of constitutional conventions of political restraint in relation to the constitution and the cultivation of good relations between the courts, the Parliament and the executive (M. Palmer ‘Open the door and where are the people’ The white population of New Zealand is relatively homogeneous and cohesive. Special measures – the Treaty of Waitangi – protect the Maori.

The New Zealand Parliament enacted a Constitution Act in 1986 which describes the country’s constitutional arrangements but leaves the traditional doctrine of parliamentary sovereignty broadly in place. The principal purpose of the 1986 Act was to patriate the New Zealand constitution by breaking its links with and dependence on the United Kingdom’s legal system.

The constitutionality of laws in New Zealand, not being protected by American-style judicial review, is promoted in a range of informal ways. In 1986 Minister of Justice, later Prime Minister, Geoffrey Palmer established a non-statutory Legislation Advisory Committee. The Committee is serviced by the Ministry of Justice and generally meets every six weeks. Its terms of reference are as follows:

(a) to provide advice to departments on the development of legislative proposals and on drafting instructions to the Parliamentary Counsel Office;

(b) to report to the Attorney General on the public law aspects of legislative proposals that the Attorney General refers to it;

(c) to advise the Attorney General on any other topics and matters in the field of public law that the Attorney General from time to time refers to it;

(d) to scrutinise and make submissions to the appropriate body or person on aspects of Bills introduced into Parliament that affect public law or raise public law issues;

(e) to help improve the quality of law-making by attempting to ensure that legislation gives clear effect to government policy, ensuring that legislative proposals conform with the LAC Guidelines and discouraging the promotion of unnecessary legislation.

Its members include the President of the Law Commissioners, academics, practising barristers, judges and parliamentary counsel and civil servants. While it has no delaying power and it is open to the government to ignore its reports, it is assumed to have an effect upstream in government during the preparation and then the parliamentary processing of bills. It is very rare for the New Zealand Parliament to pass laws that would be regarded as ‘unconstitutional’. I shall return to lessons that may be drawn from the New Zealand approach in due course.

Sweden, Finland and the Netherlands

Doctrines of parliamentary sovereignty in the sense that the courts may not hold an act passed by the primary legislator to be invalid as being ‘unconstitutional’ also operate among some of our Northern European neighbours (see Jaakko Husa‘ Guarding the Constitutionality of Laws in the Nordic Countries: A comparative perspective’ in 48 American Journal of Comparative Law, 2000, p. 345). Practice in these non-common law, small country jurisdictions may seem of little relevance to the UK, but we share a number of important and influential characteristics with them which can cast light on how they, and the UK, manage quite well without constitutional review by the courts.

There is very little American or German style ‘judicial review’ of legislation in Sweden: judicial review is only permitted if the conflict with the Constitution or another higher law is ‘clear’ or ‘manifest’ (see Thomas Bull ‘Judges without a Court: Judicial Preview in Sweden’ in T. Campbell, K. D. Ewing and Adam Tomkins The Legal Protection of Human Rights: Sceptical Essays, Oxford, Oxford University Press, 2011; Lars-Goran Malmberg in X. Contiades, ed. Engineering Constitutional Change: A Comparative Perspective on Europe, Canada and the USA, Abingdon, Routledge, 2012); in Finland there is none (see Jaakko Husa The Constitution of Finland, Oxford, Hart Publishing, 2011; Tuomas Ojanen ‘Constitutional amendment in Finland’ in Contiades ed, above; M. Suksi ‘Finland’ in Oliver and Fusaro, How Constitutions Change, Oxford, Hart Publishing, 2011; Kaarel Tuori in T. Campbell, K. D. Ewing and Adam Tomkins The Legal Protection of Human Rights: Sceptical Essays, above). These countries rely substantially on pre-legislative, abstract scrutiny – preview – of bills by special parliamentary committees: for instance the important and highly regarded Constitutional Committee of the Finnish Parliament; and, in the case of Sweden, on the work of its extra-parliamentary legislative committees in preparing proposals for legislation, and its Law Council, an official independent body similar to the French Conseil d’état or the New Zealand Legislation Advisory Committee, which scrutinises and reports on bills.

The Netherlands also lacks judicial review of Acts for constitutionality by the courts: this is forbidden by article 120 of the Constitution (see C A J M Kortmann and P P T Bovend’Eert The Kingdom of the Netherlands: An Introduction to Dutch Constitutional Law, Boston, Kluwer Law and Taxation Publishers, 1993). The Netherlands system relies on its Council of State to ‘control’ [scrutinise] and report on bills before they are passed. Its parliamentary committees are weak.

Each of the ‘preview’ bodies in these three countries includes lawyers in its membership – judges, academics or practitioners – and in some respects they adopt formal procedures which resemble those of the courts: hence the phrase ‘judicial preview’ may be applied to them, though they are none of them ‘courts’. In summary, each of these countries has developed a system of constitutional preview involving extensive consultation about and expertly advised non-partisan scrutiny of legislative proposals at a number of stages in the legislative process which has proved effective in preventing the making of ‘unconstitutional’ laws.

Despite the restrictions on or absence of judicial review for constitutionality only seldom, if at all, are laws passed which seriously conflict with constitutional principles in these countries. (Readers may be thinking that ‘seldom’ is not as good as ‘never’; and why does only ‘serious’ conflict matter? Perfection is unachievable in these matters. Is it the fact that bad laws of a constitutional nature have never been passed and given effect by the courts under their written constitutions in countries with judicial review? Surely not. (I shall consider the position on this issue in the United States briefly below.) On the other hand the Netherlands is a monist system and thus treaties, including for instance human rights treaties, have direct legal effect and give rise to rights that individuals may enforce in the courts. Thus there is in practice a form of judicial review of provisions in Acts which a court in the Netherlands may ‘disapply’ in case of incompatibility with treaty provisions, some of which are ‘constitutional’ in nature.

Sweden and the Netherlands, like the UK, are constitutional monarchies: they have evolved continuously over at least two centuries gradually subjecting the exercise of formerly wide powers by the head of state and government to legal and conventional constraints. The Constitution of Sweden dates from the Instrument of Government, 1809. The Constitution of the Netherlands as an independent state and monarchy dates back to 1814. Finland was part of Sweden until it became a Russian Grand Duchy – similar to a monarchy – of Russia in 1809. The Finnish Constitution of 1917-1919 was drafted on the assumption that the country would be a monarchy or German Grand Duchy, but this became impossible after the defeat of Germany in World War I and Finland turned to electing a President who enjoyed some powers of a King. Thus although the Finnish Head of State is a President the country has retained some of the traditions of continuity that constitutional monarchies possess ( see Seppo Hentila in The Parliament of Finland (Helsinki, The Parliament of Finland, 2000) pp. 35-45; Jaakko Husa, above.)

Each of these countries has a parliamentary executive, thus allowing constitutional traditions and conventions of responsible and responsive government to evolve and regulate the relations between the parliament and the executive in ways that are not possible in non-parliamentary, presidential systems; each has a fairly homogeneous population most of whose members share senses of common identity and common interests. Where, as in the Aland Islands of Finland, a population has a separate identity, special arrangements for their protection have been made. These countries have fairly consensual political traditions (see for instance Arend Lijphart, The Politics of Accommodation: Pluralism and Democracy in the Netherlands, 2nd edn. , Berkeley: University of California Press, 1975, on The Netherlands), and there are cultures of non-partisan approaches to constitutional matters or political traditions of pragmatic compromise: these tendencies may be reinforced by the fact that each uses a system of proportional representation in elections. The Finnish Constitutional Committee and the Swedish and Netherlands Councils of State act in quasi-judicial ways, taking advice from lawyers, often academics, and evidence, formulating their opinions in terms of constitutional legality, and generally adopting non-political positions.

Where a non-partisan approach to constitutional matters does not exist in a substantial section of the population of a state, where for instance a population is seriously divided on class, racial, sectarian, tribal or religious grounds, non-partisan politics, especially in relation to minorities and constitutional matters, may be impossible: experience in Northern Ireland, with its divided unionist and nationalist communities, in the middle of the twentieth century illustrates the point. In such countries there may well be a need for a judicially enforceable Constitution –and/or international agreements to resolve conflicts – as are provided for by the Northern Ireland Act 1998 and the Belfast Agreement (Cm 3883, 1998).

The UK shares many characteristics with New Zealand, Sweden, Finland and the Netherlands including evolution of constitutional arrangements over many years and parliamentary executives. Of course, the UK does not have a tradition of consensual party politics or coalition government. This may be due to the first past the post electoral system and to the fact that British politics retains elements of a class system, which in turn are reflected in some of the policies of the main political parties: class is less important in New Zealand and our Northern neighbours than in the UK. The UK does however, I suggest, have cultures and traditions that are hostile to partisan, and in favour of non-partisan, constitutional politics – again, Northern Ireland has been an exception: there consociationalism now provides a new form of consensus politics. But among the general public and in opposition parties opposition to partisanship in constitutional politics is deeply embedded in Great Britain.

It is broadly agreed and understood among Westminster parliamentarians and among the general public that constitutional change should not be brought about with a view to benefiting the party or parties in government or their supporters; rather constitutional changes should promote honestly held views about the public interest and where the balance between individual rights and conflicting public interests lies. Allegations of partisanship are of course made, especially by opposition parties and the critical press, when constitutional changes are under consideration. But Governments proposing change in the UK will never admit to partisanship: if they were to do so this would attract general public disapproval.

Partisan party political considerations no doubt influence the priority given to some proposals for constitutional change over others: commitments by the Labour government that was elected in 1997 to devolution to Scotland and Wales were no doubt influenced by fear of the Scottish National Party and Plaid Cymru winning over Labour voters if no such promise was made. That consideration does not however of itself detract from the merits of devolution, which are based in senses of shared national and regional identities and desires for government in these areas to promote general interests within each territory and for public servants to prioritise the interests of their populations, and not sectional interests.

This non-partisan understanding about constitutional change in the UK may exist because each government is an opposition in waiting and each opposition party is a government participant in waiting. The electoral system operates so that there are regular changes of government. It is not therefore in the interests of either government or opposition parties to concede a right to the others to use their power in relation to the constitution for party political advantage without any public interest justification. The terms of such debates take for granted that constitutional change should be non-partisan.

To sum up, nowadays the systems in New Zealand, Sweden, Finland and the Netherlands, and in the UK, include informal procedures, legal and political cultures and traditions which enable their constitutional arrangements to function reasonably well and generally without discriminating against parties and classes of people – without judicial strike down powers.

II Countries in which the courts may disapply or strike down legislation: the case of the USA

As is well known doctrines of parliamentary sovereignty in the specific sense that the courts will apply Acts passed by the Parliament regardless of their wisdom, workability or constitutionality do not apply in many countries with written and entrenched constitutions: the Constitution itself may contain clauses which limit the legislator’s power to make certain laws, for instance laws which interfere with federal principles or constitutionally protected human rights, or the independence of the judiciary either forever (eternity clauses, as in the German Basic Law) or unless and until the text of the Constitution is amended in accordance with special procedures such as two thirds majorities in the legislature and assent by three quarters of the states (as in the USA), referendums (as in Switzerland) and so on. And in those countries the courts – either all courts, or a Constitutional or Supreme Court – may disapply (in a concrete case) or strike down (for universal effect) legislation passed by the legislator/Parliament which breaches the Constitution: the USA and Germany are well known examples of countries in which a strike down power exists, but this is the case in very many liberal democracies.

The USA

The USA is an interesting example of how a system based on the common law has evolved differently from that of New Zealand and the UK and its Northern European neighbours. The USA was formed in a revolution and rejected the hereditary monarchy; it introduced instead an elected, rather monarchical, Presidency many of whose powers are very broad and ill-defined in the Constitution, legally controlled to an extent by Congress and by judicial review by the Supreme Court – but not, politically, by conventions. Other presidential powers are so constrained by Congress, in which the President may not have a majority, that it becomes almost impossible for even the most basic new laws to be passed without protracted political wrangling.

Why is this not the case in the UK – and in New Zealand and Canada and other Commonwealth nations? (s ee for instance T. Kahana ‘Canada’, M. P. Singh ‘India’, and P. Rishworth ‘New Zealand’ in Oliver and Fusaro, eds, above). In these countries conventions have evolved over time to deal with the fact that the Crown was not subject to judicial review – individual ministerial responsibility to Parliament being the most significant of these conventions. No such evolution took place in the USA because, the system being presidential rather than parliamentary, no confidence relationship exists between the President and Congress, and because all the ground rules are assumed to be contained in the Constitution and the decisions of the Supreme Court: in this respect the USA is a highly positivist system. The fact that the USA took a different and ‘non-conventional’ route from that taken by the UK and many Commonwealth countries and many other constitutional monarchies may go some way to account for the development of constitutional judicial review in the USA and in other states with executive presidencies, and for its absence in the UK and its legally related cousins.

The positivist approach and the absence of political conventions that constrain the exercise of executive power may also account for the fact that neither party political nor constitutional politics in the USA are consensual: the Constitution itself has been subject to political manipulation, the appointments to the Supreme Court have become politicised, and many executive and Supreme Court decisions on constitutional issues are wide open to allegations of political partisanship. Given that the United States Supreme Court’s constitutional judicial review jurisdiction is commonly looked to as an example to be followed by the UK, we should bear in mind that America is very different from the UK in many respects. It is not a parliamentary system. It is federal while the UK is a union state: it is essential in a federation that the states are judicially protected against encroachment on their powers by the federal institutions. By contrast the devolution arrangements in the UK specifically preserve the UK Parliament’s sovereignty. America’s political culture is even more aggressive than that of the UK and far less civil in its political and legal affairs: incivility is recognised as a problem in the USA (see for instance Susan Herbst, Rude Democracy: Civility and Incivility in American Politics, Philadelphia, Temple University Press, 2010; Dr Leslie Gaines-Ross ‘Incivility is harming America’s reputation’ at http://reputationxchange.com/2011/06/21/incivility-is-harming-americas-reputation/) whereas it is not – so far – seen to be a real problem in UK politics and legal practice.

The US Supreme Court has of course a positive record in relation to the Constitution, in particular human rights, in some areas, including the desegregation of schools (Brown v Board of Education 347 US 483 (1954)), and abortion (Roe v Wade 410 US 113 (1973). American arrangements are not, however, by any means watertight guarantees of human rights or good government (see generally T. Campbell, K.D. Ewing and A. Tomkins The Legal Protection of Human Rights: Sceptical Essays, above), and this should be borne in mind by those arguing for the adoption of constitutional review in the UK. No system is watertight. The USA Constitution and the Supreme Court’s role in interpreting and upholding the Constitution, and the political and public cultures there have not prevented the following:

a) Slavery (abolished by the Thirteenth Amendment, 1865; compare the ending of slavery throughout the British Empire by Act of Parliament in 1833, and its ending at common law in Somersett v Steuart (1772) 20 St Tr 1 (England) and Knight v Wedderburn (1778) Moor 14545 (Scotland)).

b) Racial segregation (upheld by the Supreme Court in Plessy v Ferguson 163 US 537 (1896), but later declared unconstitutional by the Supreme Court in Brown v Board of Education 347 US 483 (1954); the move to constitutionally required integration came with the Supreme Court decision in Green v School Board of New Kent County 391 US 430 (1968)).

c) Discrimination (phased out in a series of Civil Rights Acts in 1964, 1965 and 1968).

d) The denial of voting rights to slaves (ended by the Fifteenth Amendment, 1870, which guaranteed the right to vote without regard to race) and women (the Nineteenth Amendment, 1920, completed the extension of the franchise to women, providing that the right to vote could not be denied ‘on account of sex’).

e) Denial of many labour rights (Lochner v New York 198 US45 (1905)).

f) Prohibition (established by the Eighteenth Amendment in 1920, ended by the Twenty First Amendment in 1933).

g) The race based gerrymandering of district boundaries (found to be unconstitutional by the Supreme Court in Gomillion v Lightfoot 364 US 339 (1960); see also Miller v Johnson 515 US 900 (1995) and Hunt v Cromartie 532 US 234 (2001). Partisan gerrymandering continues).

h) The widespread use of the death penalty,

i) The upholding of unfair campaign financing practices (Buckley v Valeo 424 US 1 (1976); Citizens United v Federal Election Commission 558 U.S. 310 (2010)).

j) Resolution by the top court of a major presidential election dispute in favour of the candidate who received fewer votes than his opponent, reinforcing the incentives for a President to pack the Supreme Court with sympathetic judges (Bush v Gore 531 US 98 (2000)).

k) Detention of suspects without trial off-shore for lengthy periods.

Such problems should be borne in mind by those encouraging the UK and its courts to adopt US style judicial review, especially if they are encouraged to do so unilaterally and without a mandate in the form of legislation passed by Parliament or the adoption of a written constitution for the UK. A move to judicial review of legislation in the UK could well undermine the positive pro-constitutionalism, non-partisan aspects of the political and governmental culture.

III Concluding remarks

Of course other countries with entrenched written constitutions and Constitutional or Supreme Courts exercising judicial review of Acts may have different experiences of the workings of their arrangements. Such a system works well in Germany, for instance. But each has its own history and political and legal cultures. These should not be overlooked when fundamental changes to the British arrangements by virtue of unilateral and thus irreversible assumption of a strike down power by the courts is contemplated or argued for. Hints by some of the judges in Jackson v. Attorney General ([2006] 1 AC 262) to the effect that the courts may exercise a reserve power to refuse to give effect to a provision in an Act that was contrary to the rule of law should ring alarm bells. If the UK were to adopt an entrenched written constitution providing for a Supreme or Constitutional Court with strike down powers the controversies about such powers would not go away. But at least the Court could point to the Constitution as granting it that power. Our current courts cannot point to any such legitimating source: they should not assume such a power.

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

Suggested citation: D. Oliver, ‘Parliamentary Sovereignty in Comparative Perspective’ UK Const. L. Blog (2nd April 2013) (available at http://ukconstitutionallaw.org)

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Filed under Comparative law, Judiciary, UK Parliament

Tagged as America, comparative law, constitutional review, New Zealand, Parliamentary sovereignty

by Constitutional Law Group | March 26, 2013 · 4:57 pm

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

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

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

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

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

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

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

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

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

The Commission’s key proposals

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

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

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

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

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

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

The bigger picture

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

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

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

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

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

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

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Filed under Devolution, England, Scotland, UK Parliament

Tagged as Devolution, England, McKay Report, Parliament, West Lothian Question

by Constitutional Law Group | March 25, 2013 · 9:08 am

Mike Gordon: Ministerial Responsibility After Huhne

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Filed under UK Parliament

Tagged as Ministerial Code, Ministerial Responsibility

by Constitutional Law Group | March 18, 2013 · 12:38 pm

Jacob Rowbottom: Entrenching a Royal Charter – some initial thoughts

After much political manoeuvring over the weekend, a deal has been struck on the Royal Charter to implement Leveson. A key point is that it will prevent the Charter being unilaterally changed by future governments. An amendment to the Enterprise and Regulatory Reform Bill seeks to achieve this by providing:

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

It is stated in general terms, not referring to the newspaper industry, to avoid anything resembling a ‘press law’.

My initial thoughts are that this clause raises a few questions. It allows for some procedural entrenchment of certain types of Charter, as gives the government power to include ‘requirements’ relating to parliamentary approval, such as a super-majority. It does not require the initial version of the Royal Charter to be approved by Parliament. So, if a future government decides to set up a body by Charter with functions relating to a particular industry, but fears that the opposing party (if elected) may wish to tinker with it, that government can insert terms saying the Charter cannot be amended without a three-quarter majority in both the Commons and Lords. The hands of the future governments would be tied by the decision of its predecessor.

Constitutional lawyers are familiar with this type of issue when looking at the manner and form argument in relation to legislation. However, prerogative powers are different, are less transparent and do not go through the same process of scrutiny. This means that if the terms of a Charter are thrashed out behind closed doors between interested parties, they can be put in terms that protect it from change without a super-majority. Maybe we should be cautious about giving ministers a power to entrench. While limited to only to Charter bodies ‘with functions relating to the carrying on of an industry’ (and I have no idea how often this will crop up), it sounds like a significant power to give to the government that sets up the body.

The terms of such a Charter may be safe from changes by ministers, as the clause controls recommendations being made ‘to Her Majesty in Council to amend the body’s Charter or dissolve the body’. However, it would still be open to Parliament to override the terms of the Charter. For example, what happens if in future the new press regulator becomes subject to criticism and the political party in government argues that some changes need to be made to the body that recognizes the regulator (it is the recognition body that will be established by Charter). That government would not be able to amend the Charter itself without a super-majority, but it could certainly pass primary legislation to change the functions of the recognition body with a simple majority. If that means the changes have to go through the full rigour of political scrutiny in Parliament, that is no bad thing. However, many of the arguments advanced against having a Leveson statute were that future governments could tinker with the law through amendment. As I argue in a recent paper, that possibility is still left open with the case of a Royal Charter. While a decent system of independent self-regulation can be established through a Charter, it is not clear whether it offers any advantages over legislation.

Jacob Rowbottom is a Fellow of University College, Oxford.

Suggested citation: J. Rowbottom, ‘Entrenching a Royal Charter – Some Initial Thoughts’ UK Const. L. Blog (18th March 2013) (available at http://ukconstitutionallaw.org)

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Filed under UK Parliament

Tagged as Leveson Inquiry, Press Freedom

by Constitutional Law Group | March 14, 2013 · 12:21 pm

John Stanton: Localism in action?

Last week the Department for Communities and Local Government reported that Eden in Cumbria had become the first area in the country to vote for the approval of a neighbourhood plan, setting out the community’s vision for local development. The right for a community to make such plans is set out in Section 116 and Schedule 9 of the Localism Act 2011, amending the Town and Country Planning Act 1990. Eric Pickles MP considered that this was “localism in action and a fantastic result for people … who have worked hard to make sure they are in the driving seat by deciding what’s best for their community”. Indeed, the DCLG notes that the neighbourhood planning power “replaces top down regional planning” and “gives communities a new role” and a stronger voice. This post considers, however, whether the power really does this.

For many, many years incoming governments and local government departments have continuously voiced the need to decentralise to local authorities and communities, to encourage citizen participation and to put power in the hands of the people. From John Prescott in 1998 and Ruth Kelly in 2006 to Eric Pickles in 2011; recent local governmental policies, White Papers and enactments have been littered with such promises for reform and invigoration. And whilst I don’t necessarily argue that these have been wholly unsuccessful, constantly shifting reforms and policy-bases have meant that there has been no stability to local government development over the last few decades. As a result, any success there has been has not been long-lasting. For example, the 2009 Local Democracy, Economic Development and Construction Act’s duty on local councils to respond to petitions, with the aim that local people would be more encouraged to get involved and local authorities more inclined to listen, was repealed just two years after its introduction. Only time will tell if the neighbourhood planning provision in the Localism Act 2011 will bring more long term benefits.

The crux of this issue, however, rests on the fact that there is too great a reluctance on the part of centralised authorities to ‘let go’ of local government, meaning that its policy bases shift at the whim of the changing central governmental landscape. For local government development and democracy to thrive, central government needs actually to ‘let go’ of local authorities and to engage less in the micro-management and bureaucratic guidance of local government in which it seems constantly to have been engaged in recent years. To explain, the aforementioned 2009 Act laid down precisely and meticulously those instances when local petitions could be invoked, how local people could set them up and the requirements necessary for them to be considered by local authorities; on a sub-local governmental level, New Labour’s regeneration initiatives, whilst encouraging citizen involvement in community development, laid down in detail those instances where citizens could participate and how they were to work towards local regeneration; and the Localism Act, whilst proclaiming (in Part 1, Chapter 1) that a local authority can do anything an individual can do, goes on to prescribe exactly how a local authority can act under that power. Whilst the introduction of such provisions and policies, decentralising and locally empowering, should be praised; their true democratic potential and the stable and ongoing improvement of local government development and democracy will only come, I argue, when centralised authorities let go of the reins a little. Coming back to the power in s.116 and Schedule 9 Localism Act, if community powers to make neighbourhood plans are to be successful, central government is going to have to let local communities get on with it and not overly prescribe or micro-manage the manner of the power or the way in which it operates. The Localism Act’s provision is detailed; time will tell the extent to which it really gives communities freedom to develop independently.

This constantly shifting and overly bureaucratic attitude towards local government has, I argue, also played an instrumental part in local government election turnouts. Individuals associate local political party potential with their national counterparts; and whilst various factors have contributed to wider citizen disenchantment with centralised politics, so this has been reflected at the local ballot boxes. In short, constantly changing policy and central government continuously assuming a firm hand on the local governmental tiller has given rise to voter apathy and disenchantment. Indeed, whilst last week was notable for the folk of Eden, Cumbria, the DCLG seem reluctant to draw attention to the fact that only 34% of the local population turned out to vote for the neighbourhood plan; instead seeking to praise the favourable comparison with the 19% turnout for the PCC elections. Such a low turnout is typical of local democracy and, indeed, whilst it is not the worst recorded attendance, it is far from democratically satisfactory.

What needs to happen, therefore, is that central government needs to stop over prescribing local authority powers and micro-managing the way in which such powers are used. In the US, local government is one of the most popular levels of government and its council-manager structure one of the most successful (see: W Hansell, ‘Council-manager government in the United States in the twentieth century’ (2000) JLGL 60). Reasons underlying this are that there is no constitutional protection for what the US local authorities can do or the powers that they have, meaning that there is no centralised control (see Hansell). Instead, local government in America thrives on a culture of decentralisation, empowerment and – most importantly – independence (see Hansell). Unelected council-managers, strongly accountable to elected local officials, are appointed to manage and oversee local government and local democracy in any one area (see Hansell). This system is of great interest and whilst by no means the first to explore or consider it, I argue that taking management of local governmental development and democracy away from centralised government, rife with its own political and governmental issues and pressures, and into the hands of locally appointed managers seems a particularly desirable model. Local governments would be able to develop on their own and not at the whim or on the basis of widespread, politically-motivated and constantly shifting policies; such developments would be specific to a local area and would be independently and locally implemented; and most of all – local government would be seen as an entirely different and independent entity by the people. As such, election turnouts would be less influenced by national political issues or centralised policy-drives, and based more on the performance of local managers and, through their accountability to local officials, their success in guiding the policies in a local area. Of course, the US constitutional framework is fundamentally different from our own and putting such a local governmental structure into practice would be an administrative task of grand proportions; but it makes one wonder, doesn’t it? In an age where everyone is looking upwards at the EU and the ECHR, perhaps it is time to let local governments fend for themselves and, free from centralised ties, focus on the real improvement of democracy and development at the local level; with the funds to make it happen, of course (another issue for another day).

The Localism Act and the neighbourhood planning provision that gave cause for celebrations in Cumbria last week, then, is by no means a failure. It promises decentralisation, empowerment and citizen involvement and should be praised for the manner in which it sets this out. Its song is not an entirely new one, however, and it inspires a sense of déjà vu in terms of its profile for local democratic reform. If local democracy and local government are to develop and be invigorated in the way in which so many recent governments have promised, then a change in attitude is needed. There needs to be less micro-management and less bureaucracy from centralised institutions. Local government should be local.

John Stanton is a lecturer in law at City University, London.

Suggested citation: J. Stanton ‘Localism in action? UK Const. L. Blog (14th March 2013) (available at http://ukconstitutionallaw.org).

Scott Stephenson: The Constitutional Significance of Statutory Repeal: How Far Can Parliament Turn Back the Clock?

The current system for human rights protection in the UK is once again under siege. In the last week, statements were made indicating that the Conservative Party’s manifesto for the next election would include major reforms to current arrangements. Chris Grayling, Justice Secretary and Lord Chancellor, declared that a future Conservative Government would repeal the UK Human Rights Act 1998 ‘and start[] again’, suggesting that it would be replaced by alternative legislation. Theresa May, Home Secretary, announced that the manifesto would include a promise to withdraw the UK from the European Convention on Human Rights.

In response, Mark Elliott, Conor Gearty and Adam Wagner wrote that these proposals might not have the effect that many people assume they would. Some of their arguments concern the ineffectiveness of partial reform—removing one element of the scheme for human rights protection but not both. In this post, I focus on their comments that relate to reform at the domestic level—repeal of the UK HRA followed by either no replacement law or a statute that confers markedly reduced powers on courts.

Mark Elliott and Conor Gearty raise two points about repeal of the UK HRA. First, the UK HRA has expanded the protection of rights at common law. As is well known, prior to the UK HRA many rights were recognised at common law and courts developed rules and principles to give effect to them. The principle of legality is one example, which provides that ‘[f]undamental rights cannot be overridden by general or ambiguous words’. These rights, rule and principles would not only subsist after repeal but also operate in an expanded guise. Mark Elliott states that the UK HRA has accelerated the protection of rights at common law by ‘produc[ing] a kind of alchemy, leading judges to discover what was already implicit in the common law while simultaneously augmenting the common law.’ Enactment of the UK HRA has fostered an awareness of rights throughout the British legal system that repeal is unlikely to mollify: ‘To assume … that repealing the HRA or even withdrawing from the ECHR would rid domestic law of the foreign influences that have supposedly tainted it in recent years betrays a naïve misunderstanding of the nature of our common law constitution.’ This awareness will be reflected in the direction and pace of common law development.

Second, repeal of the UK HRA may prompt courts to employ alternative, more controversial, means of protecting rights. British judges have occasionally suggested that a court might decide to disapply or invalidate a statute in exceptional circumstances. In R (Jackson) v Attorney General, Lord Hope stated that the principle of parliamentary sovereignty ‘is no longer, if it ever was, absolute … It is no longer right to say that its freedom to legislate admits of no qualification whatever.’ The UK HRA has, as Mark Elliott and Conor Gearty note, reduced the need for courts to contemplate this issue with respect to human rights. Judges are supplied with a range of remedial powers to address executive and legislative actions that violate rights, obviating the need to turn to the common law to respond such as through a power of invalidation. Furthermore, Conor Gearty observes that ‘some judges might even be emboldened to strike down acts of parliament for breach of human rights, something that the current legislation specifically prohibits and so would be easier with the Human Rights Act off the scene.’ Thus, repeal of the UK HRA might, depending on what replaces it, re-agitate this controversial, untested realm of constitutional law by removing two defusing factors: the provision of statutory remedies and the prohibition on invalidation.

These comments underscore that enactment and repeal are substantively different acts—one is not the mirror image of the other. Putting the doctrine of implied repeal to one side (see Factortame and Thoburn), the UK HRA was deliberately designed not to disturb the power of express repeal. Unlike the human rights instruments of most countries, it is not constitutionally entrenched and is therefore capable of express amendment and repeal through the ordinary law making process. Yet here we see the UK HRA opening a gulf between constitutional form and substance—even if Parliament complies with the constitutional procedure for repeal, the substantive rights are not necessarily withdrawn if courts incorporate them into the common law. Parliament can attempt to abolish common law rights by express enactment, but this may only raise another set of constitutional constraints. Courts may either impede their ouster using the same techniques they have with privative clauses or invoke the second scenario mentioned above (statutory invalidation).

More importantly, the issue raises the question of how courts should interpret a legislative decision to repeal. Not all statutes are alike. Lord Justice Laws has said (in the context of implied repeal) that ‘[w]e should recognise a hierarchy of Acts of Parliament: as it were “ordinary” statutes and “constitutional” statutes.’ The UK HRA is undoubtedly a statute of this stature, even beyond the matter of implied repeal. British courts, for instance, took s 3(1) of the UK HRA to constitute a ‘strong adjuration’ to develop a markedly more expansive principle of legality, thereby augmenting the judiciary’s constitutional role.

By extension, does this mean that not all repeals are alike? If the enactment of a statute can affect the common law, should courts take the repeal of a statute, especially one that is constitutional, as an indication of how they should develop the common law in future cases? Should courts interpret a legislative decision to repeal the UK HRA as a similarly ‘strong adjuration’ to abandon the more expansive principle of legality? After all, courts could, if the UK HRA were repealed, continue to interpret statutes in the same manner and even continue to issue informal declarations of incompatibility. But if enactment of the UK HRA amounted to a legislative decision to transfer greater responsibility to courts for the protection of rights, should its repeal be understood as a reversal of that transfer of responsibility? Should the response of courts differ if repeal is accompanied by a good faith effort on the part of Parliament to increase its capacity and willingness to protect rights, for example, by strengthening the Joint Committee on Human Rights or reforming the House of Lords?

While such questions are speculative at this point in time, they raise weighty issues of constitutional law. The prospect of repeal invites us to consider the interaction between statute and common law, the difference between entrenched and unentrenched human rights instruments, the bi-directionality of law—whether it is possible for the legislature to give with one hand and take away with the other and whether that is the appropriate frame of reference for human rights—and the scope and limits of legislative power to direct and modify the role the judiciary performs in society.

Scott Stephenson is a Fox International Fellow at Cambridge University and a J.S.D. Candidate at Yale University

Suggested citation: S. Stephenson ’The Constitutional Significance of Statutory Repeal: How Far Can Parliament Turn Back the Clock?’ UK Const. L. Blog (7th March 2013) (available at http://ukconstitutionallaw.org)

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Filed under Human rights, UK Parliament

Tagged as Constitutional Statutes, Human Rights Act, Human Rights Act Reform

by Constitutional Law Group | February 11, 2013 · 2:40 pm

Stuart Lakin: Parliamentary Privilege, Parliamentary Sovereignty, and Constitutional Principle

While this was probably not its primary objective at the time, the Daily Telegraph scoop on MPs’ expenses in 2008 has led to the reinvigoration of debates about Parliamentary privilege. Since then, this area of law and Parliamentary practice has hardly left the news, both mainstream and legal. We have had the Chaytor decision, the arrest of Damien Green MP, the flouting of super-injunctions by MPs, phone hacking as a possible contempt of Parliament, questions about whether certain forms of contempt of Parliament (e.g. refusing to give evidence to a Select Committee) should be enforceable by the courts, and so on. The CLG held a brilliant seminar on this topic towards the end of last year.

The latest stage of this doctrinal resurgence is a Green Paper, Parliamentary privilege Cm 8318, published at the behest of the Government in April 2012 (all references in parenthesis below will be to this Paper unless otherwise indicated). The overarching question in the Paper, in the words of David Cameron, is:

“whether the balance is right in all cases between the necessary protection afforded by privilege, and the important principle that MPs and peers should be subject wherever possible to ordinary criminal and civil laws” (para 32, quoting a letter by the PM)

The Government broadly answers that question with a ‘yes’:

“The Government believes that, notwithstanding the discrete areas discussed in this paper where there may be a case for legislative change, the boundaries of parliamentary privilege have for the most part been very clear, and its operation has not been sufficiently problematic to justify such a radical departure from the UK’s basic constitutional underpinning.” (para 39)

Among some of the more interesting recommendations (or options) for legislative change (or maintenance of the legislative status quo) are the following:

- That codification of the law on privilege is not necessary (paras 37-39)

- That the phrases ‘proceedings in Parliament’ and ‘place out of Parliament’ in Art IX of the Bill of Rights 1689 do not need to be clarified in legislation (para 59-61 and para 80-82)

- That a general rule might be introduced disapplying privilege in cases of alleged criminality, subject to certain excepted offences “where the alleged criminal offence related closely to the principal reason for the protection of privilege” (see, generally chapter 3)

- That a ‘safeguard’ should be introduced whereby the consent of the DPP (or equivalent) is needed before evidence of ‘proceedings in parliament’ can be used in a criminal prosecution (para 141)

- That, given the Speaker’s discretion on the use of the House sub judice rules, there is no need for legislative change on civil liability (e.g. for defamation or breach of court injunctions) (para 167)

- That, given the Chaytor decision, there is no need for legislation to clarify the exclusive cognisance of Parliament (para 206-217)

Discussion

In this post, I want to make three points about the issues covered in the Green Paper (and in debates about Parliamentary privilege more generally). First, I want to say something about the nature of the privilege debate: the type of reasoning that can inform this issue. I shall suggest that both the Green Paper and the decision in Chaytor correctly approach questions about the meaning and scope of Parliamentary privilege as a matter of constitutional principle. Apologies to readers for banging the same old drum!

Secondly, I want to consider the relationship between the privilege debate and debates about Parliamentary sovereignty. I shall argue that these two debates are coterminous: they each involve competing arguments of constitutional principle about, for instance, the separation of powers, democracy, and the rule of law. Both the powers of each House of Parliament to regulate its internal workings, and the powers of Parliament to legislate, will depend on the meaning that one ascribes to these principles.

Thirdly, I shall argue that constitutional principles of the sort just described, properly understood, recommend a narrow account of Parliamentary privilege and legislative power. The undoubted democratic justification for these Parliamentary powers must always be sensitive, I shall say, to the demands of individual rights and the principle of equality before the law. Judges must be left to strike the correct balance between these principles in each given case. (For a compelling recent argument to this effect, see Sir Stephen Sedley’s recent LRB piece on privilege and superinjunctions).

I shall take these three points in turn.

A. The Nature of the Privilege Debate

What is striking as one reads the Green paper is the normative character of its reasoning. Each of the different issues for consideration are presented in terms of a range of competing principles. We could begin with David Cameron’s words (above) which refer, in substance, to the balance between Parliamentary privilege and the principle of equality before the law. Take the following additional examples:

Freedom of speech is necessary for “free and frank debate” and to “freely represent the views of [an MP’s] constituents” (para 45).

“[I]t is unsatisfactory that anyone should not know, in any given circumstance, whether the actions they are undertaking are covered by absolute privilege.” (para 51)

“Though an individual’s right to approach their MP is an essential part of the democratic process, this has to be balanced against the rights of others, including potentially the right to a fair trial and the right to privacy. Extending qualified privilege to all forms of correspondence could…undermine the rule of law” (para 73)

“It can be argued that it is wrong in principle to deny the courts access to any relevant evidence when the alleged act is serious enough to have been recognised as a criminal offence.” (para 94)

“The draft clauses are therefore one way in which it might be possible to balance two competing requirements – ensuring that parliamentary privilege cannot be used to evade the reach of the courts where criminality is suspected, while protecting the right of free speech and debate in Parliament by minimising any chilling effect to free speech in parliamentary proceedings.” (para 101)

“the issues [in relation to super-injunctions] are similar to a longstanding concern about anonymity injunctions and the balance between the legal and human rights of others and the ability of parliamentarians to make statements about them in proceedings under the protection of absolute privilege. (para 164)

Any lawyer could be forgiven for thinking that they were reading passages from a Lord Steyn judgment rather than a set of governmental proposals. Expressed in this way, the debate about Parliamentary privilege is rightly cast as one of constitutional principle. Where one stands on the correct balance between the principles mentioned above (and other relevant principles), will depend, in part, on one’s general theory of the correct distribution of powers between Parliament and courts. Someone who believes that representative democracy is the paramount principle in the constitution will likely defend a robust account of Parliamentary privilege, one that elevates MPs’ freedom of speech and the exclusive cognisance of Parliament, over judicially enforceable individual rights. Someone who, by contrast, believes that the rule of law and individual rights lie at the foundations of the constitution may advance a much weaker account of Parliamentary privilege. He may think that democracy must sometimes give way to those principles – or that democracy entails the judicial protection of those principles. I shall explain in the third section below why I am with those who favour the latter account.

The Chaytor decision sets the tone for the Green Paper. Throughout its judgment, the Supreme Court places the concept of Parliamentary privilege in the context of the written and unwritten principles of the constitution. The threshold question of kompetenz-kompetenz (i.e. who gets to decide on the limits of Parliamentary privilege) is a good early example. That the courts have the power to decide on the scope of Parliamentary privilege is justified by the principle that the Houses of Parliament cannot be a judge in their own cause about the extent of their own jurisdiction (see paras 14-16 of Chaytor, applying the seminal case of Stockdale v Hansard). Similarly, the key finding in Chaytor that privilege applies only to the ‘core or essential business of Parliament’ stems from the principles that justify the very purpose of the Bill of Rights 1689: the need for collective deliberation and decision-making (para 62 of Chaytor). I shall return to this reasoning about the Bill of Rights in the next section when I turn to the notion of Parliamentary sovereignty.

Two points occur about the privilege debate just described. First, the type of reasoning in both the Green Paper and Chaytor is in stark contrast to more traditional debates on this topic. One customarily finds dry, textual debates about the meaning of the phrases ‘proceedings in Parliament’ and ‘place out of Parliament’. People compile and compare lists based on the ‘ordinary language’ meaning of those statutory phrases. And when this exercise fails (as it inevitably does), they call for the creation of a new committee to draw up further lists. The Green Paper and Chaytor decision are refreshing for their rejection of that unreflective approach. As we have seen, they each focus instead on the constitutional principles that determine whether any given form of conduct should or should not be covered by Parliamentary privilege. It is little surprise that the Government has counselled against codification of the law of privilege in the Green Paper. Beyond relatively abstract statements of principle, constitutional law simply does not lend itself to this kind of formalism (a point made very well by Forsyth and Elliott in relation to administrative law in their recent post).

Secondly, we should welcome the open-minded approach taken both by the Government and the Supreme Court towards constitutional doctrine in general. Note the following phrase in the Ministerial Forward to the Green Paper:

“[The Chaytor decision] served as a reminder that even the most durable of constitutional tenets should periodically be reviewed.”

A more elaborate way of putting this same point is as follows. The correct understanding of the British constitution must depend on a constant reassessment of how the underlying principles of the constitution – democracy, individual rights, the rule of law, the separation of powers, and so on – impact on the practices of institutions, officials and individuals.

B. Parliamentary Privilege and Parliamentary Sovereignty

The two points I have just made about the privilege debate bring me to my second argument in this post. It is that debates about Parliamentary sovereignty (i.e. the legislative powers of Parliament) should be conducted in precisely the same way as debates about Parliamentary privilege. Indeed, these two debates, I suggest, are coterminous: they revolve around the same types of principles, and they generate identical accounts of the proper scope of Parliament’s powers (or each type) vis-a-vis courts.

Before I develop this argument, let me first contrast the privilege debate described in the last section with traditional Parliamentary sovereignty debates. Where the debate about Parliamentary privilege in the Green Paper and Chaytor is principled and open-minded about the tenets of the constitution, the sovereignty debate in the UK is typically unprincipled and dogmatic (can you imagine a periodic review on the question of the whether or not Parliament is still sovereign?!) Parliamentary sovereignty, it is often contended, is just a fact about law and the constitution; it requires no justification in its defence, and no argument of principle can dislodge it from its preeminent position. This latter approach is, of course, the legacy of influential figures such as Dicey. Dicey is often lauded as the Father of the constitution, but he is really the Father – or at least one important ancestor – of a morally sterile mode of constitutional argument, one that embraces empirical observation of what ‘actually happens’ in the constitution (as if everybody agrees on this!) over normative argument about why and how different facts about the constitution are morally significant.

This blog is not the place to delve too deeply into the case for one or other of these approaches (or some other approach) to constitutional analysis. I have had a tentative go at this elsewhere. For now, I shall take my lead from the Green Paper and the Chaytor decision, and explain how the principled arguments of the Government and Supreme Court about Parliamentary privilege can be applied equally to the issue of Parliamentary sovereignty.

Our starting point is John Locke, the Glorious Revolution of 1688, and the Bill of Rights 1689. Locke’s arguments in his Second Treatise on Government are often thought to have precipitated the Glorious Revolution, or at least to have provided the ex post facto justification for it. At the heart of Locke’s argument is a repudiation of the idea of absolute authority. His immediate target was Monarchical power. But his argument against absolute authority is wider than that. It is an argument against any form of absolute authority, and an argument in support of authority limited or defined by law. Locke gives his own detailed account of the nature of those limits. Parliament (or ‘the Commonwealth’), he said, must act in a way that honours peoples’ natural rights of liberty and quality, and the fundamental law of nature (the preservation of life). But again, we should not lose sight of Locke’s bigger point. It is this: an authority only has the legal power to act in a way that accords with the principles or reasons that justify the existence of that authority (whatever those principles or reasons might be).

The Bill of Rights 1689, I suggest, is an attempt to enshrine the broad Lockean principle just stated. Art IX tells us – to put it a plainly as possible – that Parliament has the legal right to do its particular job, and that, in so far as it is doing that job, no person or body has the legal power to interfere; but Art IX also suggests that there may be a need for some other person or body to interfere if Parliament does things that are not part of its job. This is precisely the way that the Supreme Court approached the Bill of Rights in Chaytor. As noted above, Lord Phillips said, first, that Art IX should be given a “narrow ambit restricted to the important purpose for which it was enacted” (para 62 of Chaytor); and secondly, that it must be the courts that decide what that purpose is, and whether or not Parliament has acted contrary to it. Crucially, Lord Phillips’s point speaks as much to Parliamentary sovereignty as it does to Parliamentary privilege. The idea that Parliament can do anything in its legislative capacity is equally inimical to the Lockean principle as the idea that Parliamentarians are protected by privilege for any type of conduct. There is no principled basis, in my view, on which to treat these two sets of Parliamentary powers differently. (It therefore makes no sense to suggest, as the Government occasionally does in the Green Paper (e.g. para 23), that Parliamentary privilege is justified by Parliamentary sovereignty. This is entirely circular.)

Three points need to be made on the back of these conclusions. First, a clarification. I said above that the Bill of Rights 1689 enshrines the Lockean principle; it does not create that principle. In other words, even without the Bill of Rights, the powers of Parliament and courts would depend on the principles that justify the existence, role and functions of those institutions in the constitution. The need for principled justification of the powers of Parliament and courts is fundamental to the constitution; it is not something that any Act of Parliament or judicial ruling can dispense with.

That first point leads to a second. Given that Parliament’s powers arguably derive from the principle of democracy (properly understood), it is doubtful whether it even has the legislative power to control some of the issues canvassed in the Green Paper. If, as I shall argue in the next section, the principle of democracy needs to be understood in the light of individual rights and the rule of law, then some individual rights (and corresponding civil or criminal law duties) may be among the principles that define Parliament’s powers (of each type). In familiar public law parlance, certain proposals/recommendations in the Green Paper are arguably ultra vires the powers of Parliament.

That second point raises a third. The conclusion that Parliament and courts must act in accordance with the principles that justify their existence, role and functions still leaves much work to do. We need to advance arguments about which principles, understood in which way, have which effect in the constitution. There is plenty of room for disagreement on these questions. My point in this section is that these questions apply as much to the issue of Parliament’s legislative power as they do to the issue of Parliamentary privilege.

C. Parliamentary Power and the Role of Courts

And so we come to the crunch question. What are Parliament’s powers (of each type) vis-a-vis courts in the British constitution? Those who take an expansive view of the ‘core or essential business of Parliament’ rely, whether explicitly or implicitly, on a particular model of democracy, rights, the rule of law and the separation of powers. Democracy, they suppose, means that elected representatives should be free to say or do whatever is necessary to promote the collective interest. Individual rights and the principle of equality before the law must yield to that democratic imperative. The role of courts, they say, is simply to implement Parliament’s will (or to acquiesce to the different forms of conduct of MPs): judges have no legitimate power to question any aspect of Parliament’s work.

These arguments, I think, misunderstand the principles of the constitution. If democracy has any value at all, it must be that each member of a political community is treated as an equal in the way that political decisions are taken. On this understanding, democracy entails that individuals enjoy certain political rights against Parliament, rights that protect them against discriminatory or arbitrary treatment (the right not to be defamed or subjected to hate speech may well be among such rights). Closely allied to that conception of democracy is an egalitarian model of the rule of law. The legal rights and duties that flow from Parliamentary enactments or judicial decisions must be applied rigorously and consistently to institutions, officials and individuals alike. As Dicey himself said: noone is above the law. And to return to Locke: “where law ends, tyranny begins”.

These understandings of democracy, rights and the rule of law recommend a narrow account of Parliamentary privilege and Parliamentary legislative power (or perhaps even the negation of the former). Whether or not an individual MP, or Parliament as a legislature has the power act in a given way must depend on how that form of action impacts on individual rights. Only exceptionally, if ever, can the interests of the many override these rights. What concrete implications do these arguments of principle have for the questions raised in the Green Paper? To take the central question of the Paper, I do not think that MPs should enjoy blanket protection against any form of criminal or civil liability. Much is made in the Green Paper (and elsewhere) of the ‘chilling effect‘ on MPs of potential liability (para 100); but an MP’s licence to operate outside the law, I suggest, is a far more chilling prospect. A judgment must be made in each case on whether MPs have acted lawfully or not. For example, MPs should be free to debate hate speech, but not to engage in hate speech (see para 118-119). The criminal law concept of mens rea should apply in Parliament as everywhere else.

What, then is the role of courts. Should Parliament itself have the power to punish/prevent the infringement of individual rights through its contempt jurisdiction (and should Parliament have the power to determine the legality of its own enactments); or should courts have this power? The answer, I think, is clear for at least two reasons. First, Parliament cannot be a judge in its own cause about the legality of its Members’ conduct, or the legality of its own enactments. An independent branch of government must perform this role (can Chaytor be read as a British Marbury v Madison?) Secondly, specifically in relation to privilege, for Parliament itself to exercise coercive powers, and impose coercive penalties and punishments would surely fall foul of ECHR art 6 and its common law equivalent. If Parliament was once the ‘High Court’ of Parliament, that is manifestly no longer the case.

Stuart Lakin is a Lecturer in Law at the University of Reading

Suggested citation: S. Lakin ‘Parliamentary privilege, Parliamentary sovereignty, and Constitutional Principle’ UK Const. L. Blog (11^th February 2013) (available at http://ukconstitutionallaw.org)

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