Tag Archives: constitutional conventions

Graham Gee: Do Lord Chancellors defend judicial independence?

graham-gee-webAs part of its inquiry into the office of Lord Chancellor, the Constitution Committee asks whether “new” (i.e. post-2003) Lord Chancellors have actually defended judicial independence in line with their customary and now statutory duty to do so. I was asked for examples earlier this summer when appearing before the Committee (with Andrew Le Sueur and Patrick O’Brien). I tried to identify some, but rather garbled my answer. Earlier in the year I also sketched some thoughts about Lord Chancellors in Public Law, but struggled to find clear-cut examples. One reason is that collective cabinet responsibility and the confidentiality of exchanges between Lord Chancellors and judges mean that outsiders will seldom have a full picture of what has occurred behind closed doors. This is unfortunate since my impression is that many lawyers assume—mistakenly, I think—that new Lord Chancellors are neither willing nor able to defend judicial independence. This post is hopefully third time lucky in correcting this assumption. By drawing on press reports, public statements and interviews that Robert Hazell, Kate Malleson, Patrick O’Brien and I conducted between 2011-2013, I want to piece together evidence that suggests that new Lord Chancellors can and do defend judicial independence.

Ministerial Criticism

An important part of the Lord Chancellor’s role is to encourage colleagues to respect the convention that ministers should not criticize judicial decisions or the judges who deliver them. One way Straw sought to “repair fences with the judiciary” (p498) after the tensions of the Blair era was by clamping down on breaches of the convention, as obliquely acknowledged in 2010 by the LCJ (Q13). Few ministers, if any, broke the convention during Straw’s tenure as Lord Chancellor. According to a senior official we interviewed, officials in Straw’s private office would contact counterparts in other departments in advance of judgments in politically contentious cases to remind them that ministers must not criticize judicial decisions in public. The contact was between officials, but reflected the tone set by Straw.

Not all Lord Chancellors will be as successful as Straw in promoting respect for the convention: from time to time ministers will vent their frustration. The question that then arises is whether the Lord Chancellor will fulfill his or her duty by, for example, speaking with the ministers, rebuking them and eliciting an undertaking that their outbursts will not be repeated. In 2006, the Home Secretary, John Reid, criticized the sentence handed down to Craig Sweeney, a sex offender. Further criticism followed from the PM’s spokesman in a press briefing and Vera Baird, a junior minister at the Department of Constitutional Affairs. This episode is commonly cited as one where Lord Falconer, “did not fulfill [the Lord Chancellor’s duty] in a satisfactory manner”.  But, as I see it, this should be read as an example of a Lord Chancellor energetically —and, if a long view is taken, rather successfully—enforcing his duty.

No doubt this whole episode was unedifying. But it is difficult to imagine what more Falconer could have done. According to our interviews, the Lord Chancellor spoke with the Home Secretary on the day of his comments. During a tense conversation, Reid indicated that he would not repeat the criticism. When on the next day the PM’s spokesman endorsed Reid’s criticism, Lord Falconer spoke with Blair to explain why Reid’s comments were inappropriate. Like Reid, the PM indicated that the criticism would not be repeated. At the end of the week Vera Baird said on the radio that the judge had got the sentence wrong. Falconer spoke with her and procured a written apology, which was published on the department’s website. Falconer also appeared that week on the BBC’s Question Time programme, stressing that judges should not be treated “as whipping boys”. Deciding how to respond to a ministerial outburst is always a question of judgment. It seems reasonable for Falconer to have concluded that discreet action behind closed doors would be more effective than more public steps. And arguably he was proven correct: so far as I can recall, Reid did not breach the convention during the rest of his time as Home Secretary, at least not as brazenly, with Blair also muted in his public comments on the courts during his final year as PM. Viewed in this light, Falconer could be said to have fulfilled his duty effectively.

Much ultimately depends on the lead set by the PM. This in turn raises the question of whether new Lord Chancellors can effectively rebuke the PM, on whose patronage they will depend to a greater extent than their predecessors who were usually at the end of an eminent legal career and not ambitious for promotion. A recent example suggests that new Lord Chancellors will take senior colleagues, and even the PM, to task. In 2011, the PM and Home Secretary criticized the Supreme Court’s decision in Re (F) on the notification requirements for sexual offenders. Ken Clarke wrote to the Home Secretary, with the letter copied to No. 10 in an indirect rebuke to the PM. As reported on The Spectator’s blog, Clarke reminded Theresa May, and by extension David Cameron, that they were “constitutionally obliged to accept the independence of the judiciary”. I suspect that this incident was one that Lord Phillips had in mind when he referred to “one or two occasions” where Lord Chancellors have “made it plain” to ministers and even the PM that public criticism was not acceptable. (As an aside: Clarke himself received a letter from Phillips objecting to the comments and encouraging him to take action. But as one judge remarked, Clarke would likely have done so with or without judicial encouragement).

Responding to Legitimate Judicial Concerns

A second way that Lord Chancellors can defend judicial independence is by listening to legitimate judicial concerns and articulating them inside government. An example is Lord Falconer’s battle over proposed changes to judicial pensions. In late 2004, The Daily Telegraph reported that a row erupted in cabinet over Falconer’s proposal to exempt judges from rules in that year’s budget that would cap tax relief on pension contributions at £1.5m. The Lord Chancellor had promised an exemption to judges before clearing this with his colleagues. In his memoirs Jonathan Powell relates how the matter, quite unusually, came to the cabinet, where Gordon Brown “and others raised strong objections” (63). No decision was taken for several months, but the Lord Chancellor continued arguing for a judicial exemption. Despite opposition from Labour backbenchers, Falconer announced in late 2005 that judicial pensions would be de-registered from the Finance Act 2004, and hence not subject to the cap. In other words, the judges won their exemption with the Lord Chancellor’s help.

Arguably, this episode was less about judicial independence and more about judicial self-interest. But the judges themselves presented the issue as one impinging on their independence—and for present purposes I’ll assume that they were correct. Threats of judicial resignations and judicial review were important alongside Lord Falconer’s efforts. And it is true that in a different financial climate in 2013 the Treasury clawed back the exemption. On its own terms, however, this furore saw the Lord Chancellor resist pressure from powerful colleagues and backbench opposition to successfully represent judicial interests.

Evaluating Lord Chancellors

My point is that there is evidence that Lord Chancellors can and do defend judicial independence. I’m not suggesting that everything in the garden is rosy. Relations between the government and the judges are at times strained, and Lord Chancellors and judges will disagree about how best to manage, organize and fund the courts, and may have serious disagreements about important issues relating to legal aid and judicial review. There will also be times when Lord Chancellors are slow to defend judicial independence, if they do anything at all. All of this is true and yet much, and possibly most of the time, Lord Chancellors still take seriously their duty to defend judicial independence. Over and above this basic insight, four further points must be kept in mind.

First, it is unrealistic to expect new Lord Chancellors to be preeminent guardians of judicial independence in the same way as was said to be true of pre-03 officeholders. One consequence of twinning the office with the role of Secretary of State for Justice is that Lord Chancellors spend much less time on judiciary-related issues. This likely makes it more difficult to respond as swiftly to judicial concerns. But even if the post-2003 Lord Chancellors are less reliable and less proactive guardians, and even if they not a systematic defender of judicial independence, this does not mean that their role is without value.

Second, the fact that Lord Chancellors might not be the preeminent guardian is off-set by the many other actors who contribute to judicial independence. Some have a clear responsibility to do so (e.g. the LCJ; the JAC; the JCIO, the Constitution Committee); others do so indirectly via their day-to-day work (e.g. the clerks in the Table Office). Other actors within government help foster judicial independence (e.g. the Attorney General; the Treasury Solicitor; other government lawyers). The Lord Chancellor is only one part—albeit, as the examples above demonstrate, a very important part—of the way judicial independence is secured.

Third, politicians without the legal pedigree of old-style Lord Chancellors, or who are not even lawyers at all, can grasp the importance of judicial independence. Several of our judicial interviewees commended recent Lord Chancellors, albeit acknowledging that they had not always seen eye-to-eye with them. One senior judge, for example, said that Straw and Clarke clearly understood judicial independence, and another judge said that he had been “quite impressed” by Grayling despite his lack of legal training, a view echoed by a third judge. New-style Lord Chancellors will not sound like their predecessors, and often this grates on lawyers’ ears (e.g. when Ken Clarke could not recall how many women were on the Supreme Court). But lawyers should be less precious about this, and recognize instead that the new Lord Chancellors can potentially bring something of value to policy discussions (e.g. by adding political impetus to the judicial diversity debate or encouraging judges in leadership roles to “succession plan”).

Finally, Le Sueur and O’Brien have each argued that the office should be abolished, with its functions easily subsumed within the twinned role of Secretary of State for Justice. (See Patrick O’Brien’s posts here and here). I disagree. There is still value in ascribing certain important constitutional functions to the office of Lord Chancellor as distinct from, even if occupied by the same person as, the Secretary of State. This can assist officials who brief new ministers about the office’s special responsibility to defend judicial independence, especially important if the new minister is not legally qualified. It presumably also helps a Lord Chancellor when reprimanding colleagues if he or she can point to their customary duty as Lord Chancellor. And as Lord Hope has suggested, “we would lose something intangible” if the office was scrapped. In a constitution such as ours, symbols such as the office of Lord Chancellor matter. But, above all, now is not the time to inject more uncertainty into the judicial system by scrapping the role. Judicial-executive relations have changed considerably since 2003, and will do so for some time yet as the full implications of recent reforms become clear. What is required now is a period of relative stability to allow new practices to solidify, leadership roles to become clearly defined and relationships to mature.


Graham Gee is a lecturer at the University of Birmingham. Between 2011-13, he worked with Robert Hazell, Kate Malleson and Patrick O’Brien on an AHRC project exploring, amongst other things, the office of Lord Chancellor. Their book on The Politics of Judicial Independence in the UK’s Changing Constitution is published by CUP in 2015.

Suggested citation: G. Gee,Do Lord Chancellors defend judicial independence?’ U.K. Const. L. Blog (18th August 2014) (available at http://ukconstitutionallaw.org).


Leave a comment

Filed under Judiciary

Gavin Phillipson: “Historic” Commons’ Syria vote: the constitutional significance. Part II – the way forward

gppIn Part I of this blog post I set out in detail the reasoned case for my opinion that, following the Syria vote in August 2013, there is a constitutional Convention to the effect that  ‘the Government must, before, commencing any military action, permit a debate and vote in the House of Commons and abide by its result, subject to a narrow exception where truly urgent action is required.’ The question I address in this post is whether this situation has now resolved the long-standing democratic deficit in this area, or whether further reform is needed, and if so, what form that should take.

There are three basic options for reform. First, and most radically, the prerogative could be abolished and replaced by legislation, a War Powers Act, setting out the lawful powers of the government to use armed force, and the procedures to be followed whereby Parliament may authorise it in specific cases. In replacing a prerogative power by a statutory one, this would follow the model used in relation to the prerogative of dissolution in the Fixed Term Parliaments Act 2011. Second, the prerogative could be retained, but supplemented by a legal obligation to consult Parliament on the use of force – the model used for the recent codification of the ‘Ponsonby’ rule in Part 2 of the Constitutional Reform and Governance Act 2010.  The Foreign Secretary, William Hague, made a rather surprising pledge during the Libya debates that “we will enshrine in law for the future the necessity of consulting Parliament on military action” (HC Deb, 21 March 2011, col. 799). However, since then, the Government has shown no appetite for pursuing this pledge, and successive governments and parliamentary committees have come out against this option, including most recently a report this year by the Constitution Committee of the House of Lords (2nd of 2013-14), discussed further below. That then leaves what seems to be the only currently realistic option: that the existing/emerging Convention be placed on a firm basis and concretized by means of a House of Commons resolution, setting out in a definitive and authoritative text the terms of the relevant Convention. The rest of this post considers the case for such a resolution and makes some preliminary suggestions about its possible content.

The core of the case for a Resolution

The arguments for a resolution are three-fold and may be summarised as the arguments from (1) clarifying the existing Convention, (2) guaranteeing its integrity; and (3) enhancing the separation of powers. As to the first, as the Constitutional and Political Reform Committee has said: ‘There is an urgent need for greater clarity on Parliament’s role in decisions to commit British forces to armed conflict abroad’ (8th Report of 2010-12, para 6). Despite the new Syria precedent, it is submitted that this argument still applies, in that many aspects of the Convention remain uncertain, and some may even still dispute its existence.  The House of Lords Constitution Committee in its 2013 report, rightly commented that, ‘The decision to use armed force overseas is one of the most momentous a Government can make’ and immediately went to note that ‘At present…there is no standard process by which Parliament becomes involved’ (para 1). A resolution would both end any uncertainty as to the existence of a Convention, and also serve to clarify – at least to some extent – its terms. Parliament’s constitutional role in relation to a matter of such high importance should not be left in doubt any longer.

Second, there is the argument based on preserving the integrity of the Convention. As Adam Tomkins observed about the adoption of parliamentary resolutions in 1997 setting out the terms of the Convention of Ministerial Responsibility:

No longer is ministerial responsibility merely an unwritten constitutional Convention… It is now a clear parliamentary rule, set down in resolutions by both Houses of Parliament… The government acting on its own cannot now change the terms [of this Convention] in the way that the Conservative government did throughout its period in office. (The Constitution after Scott: Government Unwrapped (1998), p. 62).

In other words, once a Convention is given concrete form through embodiment in a parliamentary resolution, it may not be unilaterally altered by the government of the day as a way of easing, should they become irksome, the constraints that conventions impose on government action. Passing such a resolution places the content of the Convention in the keeping of Parliament – the body responsible for checking the executive – rather than with the executive itself. In turn this deals with a key weakness of Conventions generally: that those bound by them are often responsible for defining and redefining their content, and may use that power to water down or even emasculate the norm that is meant to bind them.

The final argument is related, and like the second, ultimately derives from the separation of powers. Were Parliament to set down the terms of this Convention it would serve an important symbolic function: it would assert that the Convention is not merely a matter of executive obedience to a self-created rule, but of compliance with a norm authoritatively and formally affirmed by Parliament. Compliance would become not merely a matter of what we might call the Executive’s internal morality, but rather an aspect of the formal set of checks and balances exercised by the legislature as against the executive. This would greatly strengthen its perceived normative force.

There might seem therefore to be a clear case for a parliamentary resolution in this area, as previous Committees, including the Public Administration (10th Report of 2007-08, para 79) and Political and Constitutional Reform Committees (8th Report of 2010-12, para 6) both found. Surprisingly, however, as noted above, the House of Lords’ Constitution Committee has recently come out against such a course of action, something that is contrary to what seemed to be the Committee’s previously expressed position (15th Report of Session 2005-06, paras 85-93 and 108-110). What then are the Committee’s arguments against it in its 2013 Report?

The views of the House of Lords Constitution Committee against formalisation of the convention.

  1. It is important to note that the Committee is not opposed to the Convention it believes ought to and does exists in this area. The Report states clearly:

in an area as important as the use of armed force abroad, the norm should be that the Government provide Parliament with the opportunity to exercise prospective oversight of executive decision-making (para 38).

The Report added that it was:

inconceivable that the Prime Minister would either refuse to allow a Commons debate and vote on a deployment decision, or would refuse to follow the view of the Commons as expressed by a vote (para 67).

Why then did the Committee come out against formalising the Convention in a resolution? As an initial point, it may be noted that it is not always easy to tease out the Committee’s specific arguments against a parliamentary resolution, because the report also discusses the possibility of a legal requirement to consult Parliament and the Committee does not always distinguish clearly between the two: paragraphs 48–61 of the Report discuss the case for and against both types of ‘formalisation’ of Parliament’s role, and this is not conducive to the clearest analysis.

Perhaps the Committee’s key objection was that legislation or a resolution would have to set out in detail when Parliament’s consent was required and this could cause major definitional problems: a definition of ‘armed conflict’ might be needed, which could be problematic and even then, the Committee said, there can be ‘grey areas between military and diplomatic engagements’; moreover, there would be the question of whether operations involving Special Forces alone would require permission (paras 51-52). There are five linked responses to this line of argument. First, with respect, the line between diplomacy and use of force is surely not as grey as suggested; no example was giving of when undertaking military action might be seen as ‘really diplomacy’. Second, even if there could be de facto grey areas (such as the deniable deployment of Special Forces), while this might matter greatly in relation to a legal obligation to seek the consent of Parliament, it would matter far less (if at all) in relation to a Resolution. This is because, third, a Resolution could overcome this difficulty either (a) by specifically exempting any operation involving only Special Forces, as recommended in the Brown Government’s Governance of Britain proposals (para 217), (b) leaving it to the Prime Minister to decide when the consent of the Commons was required, or (c) allowing the Commons, by vote, to decide when to trigger the requirement for resolution (see further below). Either of the latter two routes would wholly solve the problem that troubled the Committee, and yet neither were discussed, despite the fact that the latter was the suggestion of one of its witnesses, Lord Mayhew, discussed in its 2006 Report (para 92).

Moreover, fourth, even if a definition retained some area of ambiguity, were a situation to arise in which a Prime Minister wished to authorise some kind of military action, and genuinely considered that it fell outside the terms of the Resolution, then he or she could simply proceed to order that action and rely on persuading the House of this at the relevant time. If, in the event, the House was not so persuaded, then neither the government, nor the armed services would be at risk of any legal consequences as result; rather the Prime Minister would face only the possibility of formal censure by the House. And fifthly, of course, this risk of censure already applies under the current Convention. No-one is clear now about exactly what situations the Convention covers so that exactly the same problem (lack of clarity as to when a Commons’ vote was required) could arise now as under a resolution. The difference is that a resolution would be bound to clarify at least some of the current uncertainty and thus (contrary to the Committee’s view) would necessarily improve the current position in that respect.

In short, the crux of the argument here is that the Committee appeared to think that lack of certainly would only matter under a resolution. However, since the same or a higher degree of lack of clarity arises under the current situation, this does not amount to an argument against a resolution.

The Committee’s other arguments against codification-by-resolution were similarly unpersuasive. Thus, the Committee said:

 ‘In some instances Parliament might want to grant consent subject to constraints on the type of action that may be undertaken. This could harm military effectiveness and limit commanders’ freedom of manoeuvre’ (para 57).

This however is beside the point: since there is already a Convention that Parliament be consulted, Parliament could already grant its consent in this way. This objection is thus irrelevant to the question whether the already existing Convention should be formalised. Whether this happens or not, in any future case of proposed military action, the terms on which any consent might be granted would be set down in the specific government motion put down for approval in the House. The issue the Committee raises is to do with the terms upon which Parliament should grant its consent to military action – as it must already do – and has nothing to do with the issue under discussion, which is whether or not the existing Convention should be formalised.

The Committee also argues that there is a need to maintain flexibility – for example, in leaving it to the Prime Minister alone to decide how and when, in the course of an unfolding international situation, to seek Parliamentary approval (para 58). Again, however, this is a non-sequitur. This concern relates to a substantive issue, regarding the content of any resolution – it does not address the issue of whether a resolution is desirable or not in the first place. If the Government and others believe that any conventional obligation to consult Parliament should leave maximum flexibility in the hands of the Prime Minister, then the resolution can be drafted that way – and indeed there is a model in the draft resolution proposed by the Brown Government: Governance of Britain, pp. 53-56. In the same way, the other matters about which the Committee expressed concerns – whether intelligence information and/or legal advice as to the lawfulness of use of force should be disclosed (para 52) – are likewise substantive issues. The resolution could – again, as in the draft Brown resolution– leave all such questions in the hands of the Prime Minister. Or it could specify that the legal advice itself – or the gist of it – must be disclosed. Again, the Committee’s arguments here go to the question of how the resolution ought to be drafted, not whether there ought to be one. As before, the Committee seemed to think that, because there could be disagreement over the precise content of the resolution, it would be better not to have one at all. But this is surely wrong-headed. It is precisely because of the fact that there is at present some disagreement over the terms of the emerging convention (e.g. as to whether legal advice should be disclosed) that such questions should be resolved one way or the other in a resolution, so that the position is clear.

In other cases, the Committee simply overstates the rigidity that a resolution would bring. For example, it notes:

The House of Commons has secured a commitment from the Government that any decision to arm the Syrian National Coalition should be taken only after the Commons has voted on the matter. Provision of arms to a conflict such as that in Syria was not a scenario envisaged by previous proposals for formalising Parliament’s role, yet a process has been crafted by which the House of Commons will have its say. This demonstrates the benefits of flexibility (para 62).

The suggestion seems to be, that, had a resolution been passed, limiting the Convention to instances in which the Government planned to take military action, that somehow the Commons could not have secured the commitment to a vote before arming the rebels. This however is clearly not the case: the commitment was secured because many MPs felt strongly about the issue and were able to pass a Commons motion. This could happen in future, regardless of whether any resolution on consultation over force were passed. A resolution requiring a vote before using military force does not preclude votes on other issues, should the House wish to hold them.

The Committee then puts forward a fifth argument, which unwittingly undercuts many of its other objections. This is that formalisation is unnecessary, because the Government is bound to seek the consent of the Commons anyway (paras 59 & 62-64). First of all this takes no account of the points made above, that the Resolution has the triple benefits of clarification, preserving the Convention’s integrity and affirming it as not merely a rule self-created by the Executive. But second, by acknowledging that the government must seek the consent of the Commons already, the Committee implicitly accepts that many of the things that it fears could come about only as a result of a resolution could in fact happen regardless of any such resolution. At present, when such a debate and vote happens, an Opposition amendment could be passed, which would tie the military’s hands; at present uncertainties could arise over the disclosure of intelligence and legal advice and in relation to the appropriate time when approval should sought – indeed whether approval should be sought at all in particular cases when swift, or even secret action is thought necessary.

In short the Committee’s report seems bedevilled by a straightforward confusion: between the question of whether there is or ought to be a Convention at all, and the quite separate issue of whether that Convention should be clarified and formalised. Most of the Committee’s concerns were to do with the first issue, not the second. Even when dealing with the second issue, the Committee failed to note that the ambiguities it identified all arise under the current situation; in other places the Report simply exaggerated the extent to which codification would inevitably bring undesirable rigidity.

If one were therefore minded to reject the view of the Constitution Committee as unpersuasive, what is the best way forward?

The way forward: how should a resolution be drafted?

Given that the previous Brown Government brought forward a detailed proposal on this issue, which has never been implemented, one might be tempted to look back to the model set out in Governance of Britain. However, any such temptation should be resisted. The scheme set out therein appeared to be designed to allow for the appearance of a liberalising reform, while in reality maintaining maximum governmental control over the process. The proposal was for the approval of the House of Commons to be sought by way of debate and vote before committing the armed forces to conflict. However, there were numerous important caveats. First of all, as is generally agreed to be necessary, the government could decide to waive the requirement in cases of urgency or where surprise military action was required (para 216). This is only sensible; however, there was no requirement for retrospective approval of a decision to use armed force in such cases: the government would simply inform the House without, seemingly, permitting either debate or vote (para 218).

Second, it would be entirely for the prime minister to decide (a) when in the process of the build-up to conflict to seek approval from Parliament (para 223); and (b) what information to give Parliament on the background to the situation and the government’s reasons for wishing to use armed force (para 221). In relation to the former, it is, of course, far harder, politically, for Parliament to vote against such a proposal when troops have already been deployed in a neighbouring country and war is imminent, as in the case of Iraq. As discussed in Part I of this post, such a vote would be likely to force the prime minister to resign, as Tony Blair was prepared to do had he lost the vote on the Iraq war; and this is likely to deter a negative vote by many MPs belonging to the governing party. Therefore leaving the timing of the vote in the hands of the Prime Minister simply invites them to time the vote in a way that puts maximum pressure upon their own side to vote yes.

As to the latter issue – what information Parliament should be supplied with – given the huge controversy over the completeness and accuracy of the information given to Parliament in the run-up to the Iraq war, the suggestion of leaving this matter entirely within the Prime Minister’s discretion seems perverse. In particular, the Brown Government proposed that the Attorney General’s advice on the legality of the proposed use of force would not be revealed (para 222) – despite the intense controversy over this point in relation to the Iraq war and calls for such advice to be revealed in full on future occasions. Moreover, it was proposed that the Prime Minister could decide not to provide any information, if to do so would, in his or her opinion, ‘prejudice . . . the United Kingdom’s international relations’ (p. 53, Annex A, para 3(11)(a)). In short, the Prime Minister, in deciding how to present the case for war to Parliament, would, as the Public Administration Select Committee pointed out, be left entirely judge in his or her own case:  there was to be no independent element at all in the process (10th Report of 2007–08, paras 72-74). In short, the proposed reform was of the most timid and executive-friendly nature.

My own view therefore would be that, while a proposed resolution could usefully draw upon some of the basics of the draft in Governance of Britain, the following changes should be made:

    • The timing of the debate and vote should not be left to the Prime Minister. The resolution should provide that a debate and vote should take place as soon as reasonably practicable after the Government had formulated a policy in favour of military action, and except in cases of genuine urgency, before the deployment of military forces and well before the outbreak of hostilities.
    • Either the A-G’s full legal advice should itself be disclosed to Parliament, or as the Public Administration Committee recommended, at the least a ‘genuinely full and frank statement of the legal basis for a conflict decision’ (ibid, para 78) should be provided.
    • The Prime Minister should provide to Parliament as full an account as possible of the factual case for the use of force. Where any part of the case depended upon intelligence that it was genuinely necessary to keep secret, it could, as previously suggested, be shared on a confidential basis with the Intelligence and Security Committee, which could then report on whether it shared the Prime Minister’s view that the evidence justified the use of force.
    • Where a case of genuine urgency required the use of force without Parliament’s consent, then such approval should be sought retrospectively, within a set period of time, e.g. seven or 14 days.
    • There should be no exception for the requirement to seek the Commons’ assent simply on the basis that the House was not then sitting. For such an important matter, the House should be recalled, as with the Syria vote (except, as with all votes, in a case of genuine urgency).
    • If it was felt that there was real difficulty in coming up with drafting that made it clear when the obligation to consult Parliament applied, then Lord Mayhew’s suggestion above could be adopted: the resolution could provide that the Commons would trigger the application of it to a particular conflict decision by motion. Alternatively, the resolution could include a definition of when the obligation applied but supplement it by a clause stating the obligation would also apply in any case where the Commons voted by motion that it should.
    • The Resolution, once passed, should then be underpinned by changes to the Standing Orders of the House, as Sebastian Payne has suggested, in order to reinforce its binding force on the executive.

There are indications that the Coalition Government is divided on the issue and has no plans at present to bring forward a Resolution: its response last month to the Constitution Committee’s Report made clear that it had still not decided how to proceed. There is however, nothing in principle to stop the House of Commons, via the Political and Constitutional Reform Committee, which is shortly to report on this issue, taking the initiative by bringing forward a text of its own for consideration by the Lords or adoption by the Commons. Now that the Back Bench Business Committee can schedule time for a debate and vote, there is no need for the Commons simply to await action from the government. Even if the Committee’s resolution was not eventually adopted by the Commons, such action would be likely to provoke the Government into bringing forward its own resolution without further delay. Given the critical importance of proper parliamentary accountability for conflict decisions, it is high time for Parliament in this area to take control of its own destiny. 

 Gavin Phillipson is a Professor of Law at Durham University.

Suggested citation: G. Phillipson, ‘ ‘Historic’ Commons’ Syria vote: the constitutional significance. Part II – the Way Forward’  UK Const. L. Blog (29th November 2013) (available at http://ukconstitutionallaw.org).

The author has given evidence to the Political and Constitutional Reform Committee, and this post largely reproduces that evidence, which was first published on the Committee’s web pages.

Leave a comment

Filed under UK Parliament

Adam Perry and Farrah Ahmed: Constitutional Conventions and Legitimate Expectations

FarrahAdamCourts and commentators have sometimes said the administrative law doctrine of legitimate expectations is incoherent. They say that the various ways of acquiring a legitimate expectation do not hang together; nothing unifies them. For example, Lord Brown in Paponette v Attorney General of Trinidad and Tobago agreed with a commentator’s description of the doctrine of legitimate expectations as a mere ‘patchwork’ and ‘little more than a mechanism to dispense palm-tree justice’. Both Richard Clayton and Mark Elliott have in the past favoured the ‘disaggregation’ of the doctrine.

We think this is too pessimistic. The doctrine of legitimate expectations does rest on a coherent foundation, and this post is an attempt to sketch the reason why, based on an analogy with constitutional conventions.

As readers of this blog will know, in addition to the legal rules of the constitution, there are non-legal conventions of the constitution. These conventions are normally grounded in a long practice among constitutional actors. Dicey thought that all constitutional conventions governed the exercise of the Crown’s discretionary powers. This ignores the many conventions that do not apply to the Crown, but it is correct insofar as conventions typically impose limits on discretionary powers. More exactly, the non-legal rules of the constitution impose limits on the powers conferred by the legal rules of the constitution.

Like constitutional actors, administrative decision-makers are given discretionary powers by legal rules. And, like constitutional actors, they are limited in the exercise of those powers, including by non-legal rules. We think that it is these non-legal rules that give rise to legitimate expectations.

Let us step back for a moment and explain some of the basic features of the doctrine. When you have a legitimate expectation that a decision-maker will follow a procedure or make a decision, you may be entitled to the law’s protection if that procedure is not followed or that decision is not made. There are difficult questions about when, exactly, you are entitled to the law’s protection, and what form that protection should take. But the most basic question – and the one we are discussing here – is what gives you a legitimate expectation in the first place.

Courts have answered that question in a piecemeal way. They have said that you have a legitimate expectation to a procedure or a decision if a decision-maker has promised to follow that procedure or to make that decision (for example, in R v North and East Devon Health Authority, ex p Coughlan). They have said that a policy of following a procedure or making a decision generates a legitimate expectation (as in R v Home Secretary, ex p Khan). Lastly, a consistent practice generates a legitimate expectation (as in the Council of Civil Service Unions v. Minister for the Civil Service ).

At first glance, promises, policies, and practices seem to have little in common. But in fact each of these three grounds of legitimate expectations can be thought of as constituting or making applicable a non-legal rule of one kind or another.

1.     Promises and moral rules. It is widely accepted, including by John Rawls and Joseph Raz, that there is a moral rule that requires people to keep their promises. If you promise to read a friend’s paper, you come under a moral, rule-based requirement to do as you promised. Likewise, if a decision-maker promises to hold a hearing, say, or to provide housing, it triggers the application of the promise-keeping rule.

2.     Policies and self-prescribed rules. Unlike promises, which make applicable a rule, policies are themselves rules. You create a rule for yourself by creating a personal policy, such as a policy not to mark late papers or a policy not to eat dessert. An administrative decision-maker creates or prescribes a rule for itself by making a policy designed to structure the exercise of its powers.

3.     Practices and social rules. Social rules arise, in essence, from a practice of people regularly acting in some way and of them treating that pattern of conduct as a standard or guide to how to behave. The practices that generate legitimate expectations are the same sort of practice. Take R v Inland Revenue Commissioners, ex p Unilever plc. The Inland Revenue had the discretion to accept late claims for tax relief, and on at least 30 occasions exercised that discretion in favour of Unilever. Unilever would submit an estimate, and then after a delay it would submit its final calculation, which the Inland Revenue would accept. This arrangement lasted harmoniously for 25 years. But then one year, without warning, the Inland Revenue enforced the time limit, reaping a ‘windfall’ of £17 million. Unilever successfully claimed a legitimate expectation to an exemption from the time limit. What is significant, from our perspective, is that the ingredients of a social rule are present in the case, too. There was a long pattern of conduct. That pattern was not a coincidence of habits. It grew on itself over time. Past interactions formed the basis of future interactions. There was a ‘scheme of close cooperation’ that the parties ‘faithfully followed’. Just as long practice forms a guide to future conduct in the constitutional context, the long interaction between Unilever and the Inland Revenue helped establish a standard against which the parties conduct could be measured. In this way there arose a norm, a ‘micro’ social rule, between the parties, one that required the Inland Revenue to accept Unilever’s late returns. Other cases (eg, R v British Coal Cpn, ex p Vardy and R v Brent LBC, ex p Gunning) can be thought of similarly.

Thought of in these terms, the coherence of the doctrine of legitimate expectations lies in the fact that legitimate expectations always arise from the fact that an administrative decision-maker has bound itself with a non-legal rule, whether moral, self-prescribed, or social.

What we see, then, is a similar dynamic between legal and non-legal rules in the constitutional and the administrative context. In each context, legal rules confer powers and those powers are restricted by non-legal rules. There are differences, of course. The law usually (though not always) protects legitimate expectations, but there is no law requiring constitutional actors to comply with constitutional conventions. It is a serious matter to break a convention, but it is not illegal in itself. (Even if, as Dicey believed, the breach of a convention always leads to a violation of a legal requirement.)

Reflecting on other possible differences could shed light, not just on the nature of legitimate expectations, but also on the nature of conventions. For example, some commentators (including Joseph Jaconelli) think that conventions are, or are very similar to, social rules. That would make all conventions like the regular practices that generate legitimate expectations in cases such as Unilever.

But what about the promises and policies that generate legitimate expectations? Do they not have counterparts in the constitutional context? The Sewel Convention may be an example of a ‘convention’ that arose from a promise, but it is a controversial case. Nor is it easy to think of clear examples of policies that amount to ‘conventions’. It would be surprising – but interesting – if the constitution included non-legal rules of only one mode of origin. That would be a difference with the administrative context, and one without an obvious explanation.

In summary, administrative decision-makers bind themselves with non-legal rules as constitutional actors do. In so binding themselves, administrative decision-makers generate legitimate expectations. That fact helps establish the coherence of the doctrine of legitimate expectations, which has been in some doubt. More generally, it might be possible to gain some insight into the non-legal rules present in the constitutional and administrative contexts by considering them alongside each other. We develop these points in more detail in an article forthcoming in the Cambridge Law Journal.

Adam Perry is a Lecturer in Law at the University of Aberdeen.

Farrah Ahmed is a Senior Lecturer in Law at the University of Melbourne. 

Suggested citation: A. Perry and F. Ahmed, ‘Constitutional Conventions and Legitimate Expectations’ UK Const. L. Blog (18th October 2013) (available at http://ukconstitutionallaw.org)


Filed under Judicial review

Nick Barber: Can Royal Assent Be Refused on the Advice of the Prime Minister?

Nick1There is a very good article in the most recent edition of the Law Quarterly Review.  It is by Rodney Brazier, and is concerned with the nature and mechanics of royal assent.  It is a fascinating read, and, as with all Brazier’s work, characterised by a dry wit.  There is, however, one claim, made almost in passing, that I think is mistaken.  Brazier addresses the question of when, if ever, a monarch could properly refuse to give assent to legislation.  He rightly concludes that it is almost impossible to imagine situations in which assent should be refused, but leaves open the possibility that it might be appropriate for the Monarch to refuse assent if advised to do so by her Ministers.  In suggesting that royal assent could be refused on ministerial advice Brazier is not alone.  The assertion has also been made by Geoffrey Marshall in Constitutional Conventions, and Adam Tomkins in Public Law – and may, for all I know, have been made by others, too.   On the other hand, Anne Twomey (in an article in Public Law in 2006) argued that the issue remains open, and gives a number of examples, mostly from Australia, which suggest the Monarch need not accept the advice of her Ministers to refuse assent.  So which position is correct?  If the Prime Minister (or the Cabinet, collectively) advised the Queen to refuse to give her assent to legislation, what, constitutionally, should she do?

Before I set about answering this question it might be worth explaining why I think it is important.  It sounds like a piece of constitutional arcana: the chances of the issue arising seem remote, given that the Prime Minister is Prime Minister because he or she normally has the support of the Commons.  But it could become very important very quickly.  The days when one party dominated the Commons seem, for now, to be over.  It is easy to imagine a minority government facing legislation they disliked, or to imagine MPs stuck in an unwanted coalition becoming increasingly willing to defy the party whips.  The Fixed-term Parliaments Act makes it less likely that such a vote would trigger the resignation of the government, but the Prime Minister might still seek to use the royal veto to stop the bill becoming law.  The issue might also become important if there was an attempt to codify the constitution.  If the convention was included in our new, written Constitution, how should it be expressed?  Would the Constitution effectively give the power to the Prime Minister to veto legislation?     But finally, as well as potentially important, the question is also interesting: it turns on the interpretation of a convention, and forces us to consider what criteria a successful interpretation would meet.

Interpreting conventions is a tricky business. Sir Ivor Jennings famously asserted that there were three elements to a convention: there were precedents, the actors involved must believe themselves to be bound by a rule, and there must be good reasons for the rule.  Geoffrey Marshall advanced a similar understanding of conventions, but did so more pithily: conventions are, wrote Marshall  ‘…the rules that the political actors ought to feel obligated by, if they have considered the precedents and reasons correctly’ (at p. 12, and also here at p. 39).

I have explored the nature of conventions at great length in The Constitutional State.  For our present purposes, though, the question turns on the role that a reason plays in our understanding of a convention.  It is only once we have identified a reason for the convention that we can start to interpret it.

Now, some hard-nosed political scientists would argue that interpretation is impossible, partly because they would reject the inclusion of a requirement of a ‘reason’ within the definition of a convention.  All we – we as academics – can do is describe the actions and beliefs of those within the political community.  It is not for us to seek to resolve uncertainties around the rule by trying to interpret it.  There is certainly some merit to this position.  After all, one of the core features of a rule is that it has an existence separate from the reasons that may underpin it.  A rule can exist, and continue to shape behaviour, even if the reasons for it have disappeared or, indeed, never existed in the first place.  It would seem unnecessarily confusing if, when providing an account of the British constitution, we refused to recognise a convention that those acting within the system followed just because we could not see a reason for their adherence to the rule.

Does this mean that consideration of the reasons for a convention fall beyond the capacities of those seeking to understand the constitution?  First, the line between the descriptive and the evaluative is notoriously hard to draw.  Even the driest account of a constitution needs to pick and choose to a certain extent.  A description of the British constitution that resolutely refused to select between competing interpretations of its rules would be worthless – radically undermined by the inclusion of crazy understandings of the constitution.  And it would also be incomplete.  A good description of a convention should try to identify why the rule is valuable.  Part of this can be done by looking at why those following the convention think it is valuable – if they have given any thought to the matter – but the further question of whether they were correct in their beliefs would remain open.  A good account of a convention would also address this issue.

A second explanation for why we – that is, those who read a blog of this type – should try to identify a good reason for a convention is that we are part of the constitutional community that contains the rule.  The political pressure that secures obedience to convention comes from our community. Our understanding of the convention may, then, affect how those in power understand the rule.  It would be hubristic to suppose Her Majesty is an avid reader of this blog, but we can be fairly certain that her office will have filed a copy of Professor Brazier’s article in some drawer, waiting for the day when there is a dispute over the exercise of royal assent.  Whilst the conclusions of an anthropologist, studying the rain-dance of an Amazon tribe, will not affect the practice she studies, the conclusions of a constitutional lawyer on the meaning of a convention may well help shape how those following a convention understand the rule.  This influence brings responsibility: we have an obligation to our community to identify bad or pointless conventions and, also, to explain why good conventions are worth having.

The correct understanding of the convention of royal assent requires us, as Ronald Dworkin would say, to put the rule in its best light.  If we are able to identify a good reason for the rule we can – sometimes – then resolve ambiguities or uncertainties around the rule by reference to this reason.  What, then, is the reason for the convention on royal assent?

Those who argue that the Queen should accept the advice of her Ministers do not explain at any length why they adopt this interpretation of the convention.  Perhaps the best explanation of their understanding is that they group the convention on royal assent along with the rest of the conventions surrounding the prerogative powers.  Practically all of the Queen’s prerogative powers are now exercised on the advice of Ministers, normally the Prime Minister.  The prerogative can be used to appoint ministers, declare war, annex territory, sign treaties, and many other things besides.  That the Queen no longer has any discretion about the exercise of these powers is important because it upholds democratic government.  Ministers are accountable to Parliament and, ultimately, to the electorate, for the ways they use these powers.  In the words of Walter Bagehot , a republic has insinuated itself beneath the folds of a monarchy.

But does this reason justify the inclusion of royal assent within the group of prerogative powers that are exercised on ministerial advice?  It is hard to see that it does.  Now the convention is operating against democratic values, rather than upholding them.  Rather than supporting parliamentary government, it would undermine it.  The point of the convention on royal assent is to uphold the primacy of the democratic element of the constitution in the making of law.  But just as it would be undemocratic to allow one person – the Monarch – to veto legislation, so too it would be undemocratic to give this power to the Prime Minister.  In short, when presented with a bill that has passed through Parliament in a proper manner, the duty of the Monarch is to give assent – irrespective of the advice of her Ministers.  There is no room for discretion.   On its best interpretation, this is what the convention requires: if the Monarch were to accept the advice of her Prime Minister on this issue, she would be acting unconstitutionally.

Nick Barber is a Fellow of Trinity College, Oxford, and University Lecturer in Constitutional Law. 

Suggested citation: N. W. Barber, ‘ Can Royal Assent Be Refused on the Advice of the Prime Minister?’   UK Const. L. Blog (25th September 2013) (available at http://ukconstitutionallaw.org).


Filed under UK Parliament

Events in June: (1) political influences, (2) transnational human rights litigation and (3) dissenting judgments

UK Constitutional Law Group members and blog readers are invited to three events in June.

10 June 2013, starting at 5 pm: a joint event by the UK CLG, Devolution Club and London Metropolitan UniversityHow politics influences the constitution: time for new constitutional conventions? Foreword – Aleesandro Torre (chairman of the Devolution Club); chair – Sebastian Payne (co-convenor, UK CLG); speakers – Lord Norton of Louth (University of Hull and House of Lords) and Giovanni Rizzoni (House of Deputies, Italy); discussant – Peter Leyland (London Metropolitan University). Venue: Italian Cultural Institute, 39 Belgrave Square, London SW1X 8NX.

The following two events are organised by BPP University College in the “Fresh Perspective on Law” series. For more information please contact the seminar convenors, Chris Monaghan (ChrisMonaghan@bpp.com) or Thomas Bennett (ThomasBennett@bpp.com).

11th June 2013, starting at 6pm: “Barriers in International Law to Transnational Human Rights Litigation” by Paul Mora, Lecturer, BPP Law School. “An international trend towards States providing reparation for violations of human rights has become discernible in recent years. However, this movement has not overcome the barriers imposed by international law on individuals who seek to obtain civil remedies before the national courts of foreign states for their alleged abuses. This lecture will evaluate the international doctrines of jurisdiction and immunity in light of the recent decisions of the US Supreme Court in Kiobel v. Royal Dutch Petroleum, and the International Court of Justice in Germany v. Italy. It will argue that these decisions are correctly decided in so far as they recognise the horizontal nature of the international legal system whereby sovereign States are equal, and their national courts cannot assert regulatory competence over another.” Paul David Mora is a Lecturer in Law at BPP Law School, University College. He has a research interest in public international law, and his work in this field was cited by an amicus curiae brief before the US Supreme Court in Kiobel v. Royal Dutch Petroleum. This event is accredited for 1 CPD Point. Venue: BPP Law School Waterloo, 137 Stamford Street, London SE1 9NN. Register here.

26th June 2013, starting at 6pm:An Evening of Dissent: Exploring the importance of Dissenting Judgments in English Law“. A discussion panel will examine the importance of dissenting judgments in English Law. In what should be a lively and informed event, the panel will look at dissenting judgments from a contemporary and historical perspective. There will be focus on the value of dissenting judgments for practitioners, as well discussing whether there is a need for clearer judgments (such as at the ECtHR). Confirmed panellists include: Professor Ian Loveland, City University; Catharine MacMillan, Reader in Legal History at Queen Mary, University of London; Richard Booth QC, One Crown Office Row; Chris Monaghan, Senior Lecturer in Law, BPP University College;· Neal Geach, Senior Lecturer in Law at the University of Hertfordshire. This event is accredited for 1.5 CPD Points. Venue: BPP Law School Waterloo, 137 Stamford Street, London SE1 9NN. Register here.

Leave a comment

Filed under Events