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Jack Alaric Simson Caird: A Code of Constitutional Standards

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The Constitution Unit of University College London is today publishing a report which sets out a code of constitutional standards based on the reports of the House of Lords Select Committee on the Constitution. Since 2001 the Committee has made many recommendations in its reports, and the goal of this report was to codify these recommendations in order to make the Committee’s analysis of the constitution more accessible. The report, by Robert Hazell, Dawn Oliver and myself, contains a code of 126 constitutional standards, each of which is relevant to the legislative process, and each of which has been extracted from the 149 reports of the Constitution Committee that were reviewed. The standards are organised into five sections: the rule of law; delegated powers, delegated legislation and Henry VIII clauses; the separation of powers; individual rights; and parliamentary procedure.

The Constitution Committee’s formal terms of reference were set by the House of Lords Liaison Committee when it was established in 2001 and have not changed since then: ‘to examine the constitutional implications of all public Bills coming before the House; and to keep under review the operation of the constitution’. The Constitution Committee decided against drawing up a formalised code of constitutional norms in their first report to inform their bill scrutiny, instead the Committee adopted a pragmatic approach. The Committee identifies the norms that are relevant to each particular bill or inquiry in question. This flexible approach has a number of advantages, but one disadvantage is that the Committee’s conception of the normative foundations of the constitution is not easily accessible.

The first aim of the code in this report is to make the normative foundations of the Committee’s work more accessible. As part of their work, the Committee has made choices about what the constitution means in the context of the legislative process. It is these choices that the code seeks to highlight. It is important to note that the Committee advanced many of the cited standards in relation to particular bills, and did not put them forward as generalised standards. There is little doubt that if the Committee were to advance its own code of constitutional standards, it would look different to the code within this report. Nevertheless, the code does represent an accurate summary of the constitutional norms that the Committee has sought to uphold in its work since it was established in 2001.

In terms of the content of the code, it is noteworthy that many of the standards appear to be derived from the principles that underpin the parliamentary process. For example, standards that seek to regulate the use of fast-track legislation are not just general principles of good governance, nor are they are based on a particular constitutional principle, but rather they are derived from the normative foundations of the parliamentary process itself. Such standards serve to protect the integrity of the parliamentary process. This focus on parliamentary norms demonstrates the value of giving a parliamentary committee the task of assessing the constitutional implications of government bills. It has enabled the Committee to articulate the normative implications of the principles that form the foundations of the parliamentary process.

The second aim of the code is to provide a resource for those involved in the legislative process. It is widely recognised that one of the disadvantages of the United Kingdom’s uncodified constitution is that it is not easily accessible, and within Parliament the task of pointing out the constitutional implications of bills often falls to constitutional experts, particularly in the Lords, and the relevant committees. If the norms of the constitution were more readily accessible, it would be reasonable to expect more parliamentarians to engage with them during the legislative process. By publishing this code, it is hoped that parliamentarians, and others involved in the law-making process will make use of the standards within it during their scrutiny. The code might also be used by the Constitution Committee to develop its own code of legislative or constitutional standards.

The third aim is to contribute to the debate on the value of legislative standards within the legislative process in Westminster. In an earlier blog post, I put forward a critique of the code of legislative standards developed by the House of Commons Select Committee on Political and Constitutional Reform in their report titled ‘Ensuring standards in the quality of legislation’. In that post, I argued that although their code would represent a significant step forward, I thought it did not go far enough. Since that post, the Government has issued its response to the PCRC’s report. The Government could not be clearer – it does not think that a code of legislative standards is a good idea (paras 12-15). It suggests that the Cabinet Guide to Making Legislation is all that is needed for parliamentarians to judge the standard of the Government’s approach. Further, the Government argued that the PCRC’s code would risk encouraging a ‘box-ticking mentality’, and they point out that the code does not provide the ‘degree of objectivity it envisages.’ The latter point is surprising because the PCRC’s code makes every effort to be as ‘neutral’ as possible.

The Government appears to have misinterpreted the rationale for a code of soft law standards. The idea is to stimulate parliamentary debate on aspects of bills to which the standards relate, rather than to introduce an objective box-ticking exercise. The presence of parliamentary sovereignty and the absence of a codified constitution are sometimes taken to mean that Government and Parliament legislate into a normative vacuum. That somehow parliamentary sovereignty means that the government does not have to justify why a bill seeks to depart from the existing norms of the constitution. That idea, as Murray Hunt has recently argued in Parliament and the Law, is antithetical to any meaningful idea of constitutionalism. A code of constitutional standards is designed to challenge the myth of the normative vacuum and to raise the standard of justification within the legislative process, but without legally limiting Parliament’s legislative capacity. In this sense a code of soft law standards does not represent a threat to the political nature of the legislative process, as the code would always the subject of debate, and could be changed by purely political means. Soft law constitutional standards developed within Parliament might even find support from political constitutionalists, because they serve to enhance the quality of parliamentary debate by focusing the minds of parliamentarians on the value of the political process and the norms that form its basic architecture. Even if the standards are prescriptive, this does not mean that they cannot be departed from. The value of a code of soft law standards does not depend on them being complied with all of the time, instead it depends on then being used as the basis for debate and justification within the legislative process.

There seems to be little to lose and everything to gain from making more use of soft law codes of standards in Westminster. As this code demonstrates, committees within Parliament are already articulating the normative standards that are vital to the integrity of the parliamentary process. The challenge is to maximise the benefits of this work by making those standards as accessible and as influential as possible. It is hoped that this code makes a small contribution to this aim.

Jack Alaric Simson Caird is a  doctoral student at Queen Mary University of London. 

Suggested citation:  J. Alaric Simson Caird, ‘A Code of  Constitutional Standards’ U.K. Const. L. Blog (8th January 2014) (available at http://ukconstitutionallaw.org)

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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.

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Tom Hickman: Justice & Security Bill: Defeat, or Not a Defeat: That is the Question.

Last week the House of Lords approved a number of amendments to the Justice and Security Bill in three divisions called by Lord Pannick (the amendments were also in names also of Lord Lester, Lord Beecham and Baroness Berridge). The amendments were intended to implement the recommendations of the Joint Committee of Human Rights (“JCHR”), which the Government had refused to accept. The amendments have been widely reported as a major defeat for the Government on its highly controversial plans for use of Closed Material Procedure (“CMP”) in civil proceedings. However although the amendments are greatly to be welcomed, in key respects they did not go far enough, and indeed the Government might well be quietly pleased with the result.

The Lords’ amendments would, in summary, make the following changes to the use of CMP as presently set out in the Bill:

      • They would ensure that a Judge decides whether CMP should be used in any given case, and that it would not be a decision taken (in form or substance) by the Secretary of State.
      • CMP would only be available as a last resort and if fairness cannot be achieved by any other means.
      • The court would be required to balance the interests of national security against the interests of fairness and open justice in deciding whether to agree to the use of CMP.
      • Either party could apply for a CMP and not just the Government.

As Lord Pannick put it in debate on 21st November, the amendments would, “help to ensure that, if we are to have CMPs, there are proper limits, proper controls, a proper balance and judicial discretion, and that CMPs are a last resort”.

These amendments would redress some of the more glaring, not to say outrageous, defects in the Bill. As introduced the Bill not only provided a jurisdiction for inherently unfair proceedings in which one party to the case is denied access to key evidence—that is, CMP—but it would have entitled one of the parties to the litigation—that is, the Government—to decide whether or not to use such a procedure. I criticised this at some length in a previous post on this site after the Bill was unveiled (a post which also provides background to the present discussion). It is critical that, if CMP is to be introduced, it is for the courts and not the Government to determine whether it should be used in any given case. The Government’s justification for the introduction of CMP was to increase fairness and accountability by enabling the courts to consider all relevant evidence. Questions of fairness and relevancy of evidence are matters for the courts to determine and not one of the parties to the case.

The safeguards that the House of Lords have now voted for reflect a number of the “constraining principles” that the Bingham Centre for the Rule of Law called for if CMP was to be introduced, in its response to the Government’s Green Paper (a response co-written by Adam Tomkins and myself (see also: “Minimum Safeguards – Bingham Centre briefing paper on the Justice and Security Bill”, 5 July 2012). The amendments also reflect the views of the House of Lords Constitution Committee and of the Independent Reviewer of Terrorism Legislation, David Anderson QC.

However, it is difficult to imagine that the Government thought it could push through Parliament not only CMP but a system that ties the hands the courts as to whether CMP should be used in any given case. It is very difficult to imagine that the system set out in the Government’s Bill would be upheld in the courts given the serious and unnecessary exacerbation of the impairment of equality of arms that would be entailed in such an approach. Therefore, whilst it is gratifying that the House of Lords stood up to the Government on this issue and inserted some vital safeguards, it would have been a very sad day indeed for our Parliamentary democracy if even this aspect of the Bill had passed through Parliament unscathed.

From a less sanguine perspective there are three important things the House of Lords did not do.

First, the Lords did not vote down Part 2 of the Bill, which contains the provisions relating to CMP, altogether. On the contrary, an amendment proposed by Lord Dubs that would have had this effect was comprehensively rejected. This was despite powerful views being expressed, such as by the former DPP, Lord Macdonald, who stated, “I would not introduce these processes into our system without the most compelling evidence to justify this extraordinary change, and I do not see it.”

A number of Peers, well qualified to opine on this issue, accepted that CMP could be justified in exceptional cases. Lord Woolf, for instance, declared himself “a hedger not a ditcher” on the basis of his experience as Treasury Devil in which he had known cases where important evidence had been excluded from judicial consideration. Unsurprisingly, Baroness Manningham-Buller, former Director General of MI5, argued that CMP is the only way that Judges can make a judgment on the accusations of “wicked iniquities” levelled against the service which she said they could not defend themselves against under the current law.

Lord Phillips of Worth Matravers, who whilst President of the Supreme Court in Al Rawi & Ors v Security Service & Ors  avoided expressing a view on CMPs, also stated that he was “reluctantly persuaded of the need, in the interests of justice, for a closed material procedure in exceptional cases”. But he pointed out that it is inevitable that if CMP is brought in to law it will “undoubtedly be challenged” in the Supreme Court and in Strasbourg and that it will be necessary for the Government to demonstrate that the inroads into fair trial rights are the minimum necessary and are subject to available safeguards. With this I would respectfully agree, and this brings me on to the second thing that the House of Lords has not done.

One of the features of the CMP contained in the Bill is that once a case has been deemed suitable for CMP there is no balancing of interests in determining whether evidence should be disclosed or whether it should be considered behind the impenetrable veil of the CMP. The need for such a balancing exercise was another of the “constraining principles” set out in the Bingham Centre’s Green Paper response. Its importance has also been recognised by the JCHR and the Constitution Committee. Such a balance has been part of the law of disclosure in England since Conway v Rimmer in 1968 (and since 1956 in Scots law). Absence any such balance CMP operates like a black box from which no information of any use or interest emerges. All information of even marginal sensitivity is immune from disclosure even if this is overwhelmingly in the interests of justice for it to be disclosed. Entire “classes” of information regarded as of some sensitivity, such as any information relating to activities of the Intelligence Services, for example, are considered to be non-disclosable.

The recent case of SSHD v CC & CF [2012] EWHC 2837 (Admin) demonstrates this clearly. This is a control order/TPIM case and therefore one of the limited types of case where CMP is currently applied under statutory authority. The Government has mirrored this form of CMP in the Bill. No balancing exercise is applied when considering what evidence should be disclosed.

CC & CF is important in this context because, exceptionally, the case was not solely about whether the two defendants had been involved in terrorism-related activity. The defendants argued that the imposition of control orders on them had been an abuse of process because of the involvement of British officials in what they claim to have been unlawful detention and mistreatment in Somaliland and in their unlawful return to the UK (where control orders were imposed). These are precisely the sort of allegations that the Government wants to be subject to CMP if raised in a private law claim. The fact that, unusually, such allegations were raised in control order/TPIM proceedings means that we can see precisely what would be the result if the Justice and Security Bill were to be passed in its present form.

In his judgment in CC & CF Lloyd Jones J decided the issue in the following, very short, terms:

 “132. …The position of the Secretary of State in these proceedings is that she neither confirms nor denies that the UK authorities were involved in the arrest, detention and deportation of the Respondents [from Somaliland]. I have addressed these issues with that position in mind.

 133. With considerable reluctance I have come to the conclusion that these matters cannot be addressed in my open judgment. However, I have addressed these matters in detail in my closed judgment.”

There is no more than that. The defendants lost but they do not know why. The “closed judgment” is, of course, part of the CMP from which the individuals concerned are excluded. They do not know to what extent, if at all, the British authorities were involved in their arrest, detention and deportation. They do not even know what the Government’s case is. The Judge considered his hands were tied, presumably because the British Government has a policy of not acknowledging the presence of British operatives in Somaliland – a form of blanket secrecy (although even this is a guess).

Whether or not such blanket secrecy is justified in the control order context, where the evidence generally relates to activities of suspected terrorists and not the activities of the Government, it is clearly unjustified in other civil proceedings. Indeed, on this point I can claim the support of the Intelligence and Security Committee itself, which in its  Annual Report for 2011-2012, in which the Government’s CMP proposals were considered, stated that CMP could be justified only in respect what the Committee referred to as two “narrow categories” of information:

 “• The first is UK intelligence material which would, if disclosed publicly, reveal the identity of UK intelligence officers or their sources, and their capability (including the techniques and methodology that they use);

• The second is foreign intelligence material, provided by another country on a strict promise of confidentiality.”

CC & CF shows that the form of CMP currently embodied in the Bill would throw the blanket of secrecy far, far wider than the Intelligence and Security Committee contemplates. The impression is often given by the Government that CMP does not operate in this ‘black box’ fashion. On the Today programme on 19 November 2012, for example, Ken Clarke said that judges would “only allow secret hearings where lives are at risk”. However this is simply not the case.

Lord Pannick proposed an amendment based on the JCHR recommendations that would have introduced a balancing of interests approach once a court had approved a CMP in a given case. This was the fifth division of the House and on this occasion the amendment was defeated. Why was this so given that there had been a head of steam behind the JCHR recommendations? We can only speculate. The significance of the issue raised by this division appears not to have been fully appreciated by the House and neither the issue nor the amendment was the subject of any significant debate. It may have been thought by many Peers that the principle of balancing had been established by the third division, and indeed Lord Pannick suggested that the proposed amendment to clause 7 was the equivalent of that already voted upon in the third division in respect of clause 6. In fact the third division only related to the CMP “gateway” or “trigger” (as it has been called).

A more depressing reason for the rejection of the proposed amendment, which surely played a part, was the lateness of the hour. The division occurred at 10.15pm. Only 210 Peers voted. By comparison over 400 Peers had voted in each of the first three divisions in which the Government was defeated. There was an unfortunate prescience to Lord Lester’s comments earlier in the evening that no “serious point” should be made in the House “after the dinner hour”.

The implications of this are troubling. In general, issues that have been voted on by the House of Lords cannot be reopened by an amendment in the House at a later stage. Given the importance of this issue, as I have sought to explain, it would be a calamity if it fell in such a way (or indeed, if it fell at all). It is possible that the House of Commons might recognise its significance, not least given the disconnect between the views expressed by the Intelligence and Security Committee and the reality of the form of CMP proposed by the Government. It is also at least possible that the House of Lords might yet be able to give proper consideration to this issue on the basis that although it has been the subject of a vote, it has not been the subject of full debate (see Erskine May, 24th ed. 2011, p.619). As CC & CF shows, this is a crucial safeguard against unnecessary secrecy and inequality of arms, and not an issue on which Parliament should give way.

This brings me to the third and final thing that the House of Lords has not done. It has not introduced any requirement for a system of CMP, if enacted, to be the subject of independent review after a certain period of operation. This is something that Adam Tomkins and I proposed in our response to the Green Paper, if CMP were to be introduced. The JCHR has endorsed a similar idea.

As is often the case in relation to legislation relating to national security matters, Parliament is being asked to act on trust without seeing the evidence that has persuaded the Government to change the law. Parliament is asked to accept that exceptional cases raising intractable national security issues exist and that they pose real and justified problems for the Government and for the courts. But Parliament is being given no information about those cases.

In addition to this, the issue on which Parliament is being asked to decide is one of genuine complexity with clear potential to lead to unintended consequences for the civil justice system. There is no other country in the world that has such a system from which lessons can be drawn. In these circumstances it is appropriate that if some form of CMP is introduced, the legislation should require a full and independent review of its operation, which will obviously require Government cooperation. It should not be left to Select Committees, such as the JCHR, to attempt to do this of their own motion. Indeed, members of such committees would not have the requisite access to closed judgments to carry out a comprehensive review. Since this issue was not the subject of a vote, it is hoped that it may yet be the subject of amendment.

This blog has not by any means sought to address all the areas of concern in the Bill. It has said nothing, for example, about the clear potential for CMP to be used far and wide in cases against the military, the police and against other law enforcement institutions—way beyond the type of cases that are said to be prompting the Bill. My purpose in this blog has been to provide an overview of the House of Lords debates on key aspects of the Bill and to suggest that, far from being a defeat for the Government, the central features of the Bill remain intact and Parliament still has a great deal of work to do.

 

Tom Hickman is a Barrister, Blackstone Chambers and a Reader in Law, University College London.  

Suggested citation: T. Hickman, ‘Justice and Security Bill: Defeat or Not a Defeat: That is the Question’ UK Const. L. Blog (27th November 2012) (available at http://ukconstitutionallaw.org).

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Jack Simson Caird: The Justice and Security Bill and the House of Lords Constitution Committee

On Tuesday this week the Justice and Security Bill [HL] received its second reading in the House of Lords. Hayley Hooper and Tom Hickman have both commented on the constitutional significance of the Bill in earlier posts to this Blog. This post focuses upon the role of the House of Lords Constitution Committee in scrutinising the constitutional implications of the Bill. The Constitution Committee published its report on the Bill last Friday, following its usual procedure of reporting in time for second reading in the Lords. The report argues that key elements of the Bill ‘challenge’ two principles of the rule of law: open justice and natural justice [para. 9-10].  The report’s analysis and conclusions on the constitutionality of the Bill are likely to have a major impact upon the scrutiny it receives in the committee and report stages in the Lords. The last legislative proposal of constitutional significance to be introduced in the Lords was the Public Bodies Act 2011. The Constitution Committee’s analysis of that Bill made a major impact on the Lords’ scrutiny, which in turn resulted in parts of the Bill being radically rewritten (see para. 6-10 of the Committee’s Sessional Report 2010-2012). There is no guarantee that the Constitution Committee will be able to replicate this level of influence with the Justice and Security Bill [HL], however, there are a number of indicators from their report and the second reading debate which lead me to think that they might.

The Committee’s report on the Bill is unusually long, but its content follows a familiar pattern. It begins by setting out its constitutional verdict on the provisions which would extend the ‘closed material procedure’ to certain civil proceedings [para.9]. The provisions are described as ‘a constitutionally significant reform, challenging two principles of the rule of law: open justice and natural justice’ [para.10]. This is a significant choice of words. The Committee is effectively claiming that these legislative provisions do not adhere to the rule of law, a core principle of the United Kingdom’s unwritten constitution. The strength of this constitutional verdict makes it difficult for the Government to avoid, and peers will expect them, at the very least, to offer a well-reasoned response.

Effective constitutional interpretation requires well-reasoned evidence and the Committee’s verdict is supported by extensive analysis. This reasoning plays a key role in the supporting constitutionalism within the committee stage, as it explains to peers what amendments are needed to make the relevant provisions constitutionally acceptable. The first step in the Committee’s reasoning is to set to out the key differences between the law of Public Interest Immunity and the Closed Material Procedure [para. 7-10]. On the constitutionality of the latter they cite the words of Lord Dyson in Al Rawi v Security Service, who stated (at para. 14) that it ‘involves a departure from both the open justice and the natural justice principles.’ The Committee admits that these principles are ‘neither absolute or inflexible’, however, departure from these constitutional principles can only be accepted if sufficient compelling evidence is presented. One of the Committee’s most significant contributions to constitutionalism is that it facilitates a culture of constitutional justification within the legislative process, and this demand for ‘clear evidence’ is an example of this feature of their work.

The report then examines the constitutional significance of the CMP scheme proposed in the Bill, paying particular attention to the Government’s claim that it is designed to increase ‘fairness’. [para.13] The Committee argues the scheme has three basic flaws. The first is that the scheme gives only the Secretary of State the right to apply for a ruling that material be treated as closed [para. 18]. To create to such an imbalance in the equality of arms in civil proceedings when it is not strictly necessary to achieving the aims of the Bill is an unnecessary departure from a constitutional principle, and the Committee recommends that Clauses 6 and 7 should be amended to remedy this imbalance [para. 19].  The second flaw is that the procedure does not allow the courts to conduct a Wiley balancing exercise and the Committee complains that no evidence has been produced to show that this removal of a key constitutional safeguard would make civil proceedings on national security any fairer [para. 21-24].  They propose that the procedure should ensure that the courts balance the interest of national security against the risk to the fair administration of justice when considering whether to withhold evidence.  Further, they suggest that the courts should be able to consider whether material could be disclosed to the parties in private or in redacted form if they consider that the fair administration of justice requires it.  The third flaw is that the Bill gives the Secretary of State the exclusive discretion to decide between PII and CMP [para. 25-31].  They consider the choice between the two procedures to be a ‘case–management’ issue and therefore should be task for the courts rather than the executive.  Each of these examples of the application of constitutional norms to legislative provisions is vital to the facilitation of the amendment process within the committee and report stages. It is relatively certain that individual peers will table amendments during the committee stage to give effect to each of these instances of constitutional interpretation, and this process is a key driver of constitutionalism within the legislative process.

The second reading debate is often a good gage of the strength of feeling in the House of Lords towards the relevant Bill. The debate last Tuesday did not reach the heights of the second reading of the Public Bodies Bill and the Health and Social Care Bill, where the Committee’s concerns were both extremely prominent, however, there were nonetheless some telling signs that the concerns of the Committee will be addressed later in debate. One positive sign was the number of references to the Joint Committee on Human Rights’ comprehensive report on the Green Paper that preceded the Bill. In the debate Lord Lester of Herne Hill indicated that the JCHR intends to report again on the Bill before the report stage and will table amendments in Committee. Furthermore, the presence of Henry VIII clause means that the House of Lords Committee on Delegated Powers and Regulatory Reform is likely to report and table amendments [para. 32]. The involvement of all three of these committees is going to place pressure on the Government to make concessions, and this increases the chances that the Constitution Committee’s concerns will make an impact on the Bill. Together this triumvirate of committees form an additional de facto legislative stage for major constitutional bills, and when they are all involved on a Bill they represent a significant constitutional hurdle for Government legislation. Their value to constitutionalism is especially important, because there are individual peers, such as Lord Pannick (a member of the Constitution Committee), that have the legislative ability to give effect to their constitutional arguments in amendments. In his speech in the debate, Lord Pannick reiterated  the concerns of the Constitution Committee, and delivered the following scathing verdict:

‘On the case made so far by the Government, the provisions of Part 2 of the Bill regarding both CMPs and Norwich Pharmacal orders are, I suggest, unnecessary and unfair, and will undoubtedly damage the ability of the courts to give judgments that are fair and are seen to be fair.’

This speech indicates that Lord Pannick will devote his considerable legislative ability to the task of improving the Bill, and this is another reason to be optimistic that the Bill will be subject to significant amendment.

To end on a note of caution, each of the Ministers who introduced the Bill and summed up at the end of the debate did not make any specific commitments that the Government would seek to bring forward amendments to give effect to any of the concerns raised by the peers. However, the Home Office Minister Lord Henley’s statement that ‘I am sure that there are many things on which we will be able to get agreement’ is encouraging. The Constitution Committee’s conclusion on the Justice and Security Bill puts the Government in a difficult situation. If they wish to preserve the constitutional legitimacy of the Bill they have two options. They could amend the Bill to satisfy the Committee’s concerns. Alternatively, they could advance their own constitutional arguments to rebut those of the Constitution Committee. Although I imagine that the Government Legal Service is well equipped with constitutional expertise, I feel quite confident in predicting that this second option is beyond them.

Jack Simson Caird is a doctoral student at Queen Mary University of London.

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Jack Simson Caird: A Report on the United Kingdom Constitution Law Group Seminar: ‘From Constitutional Scrutiny to Constitutional Review: Ten Years of the House of Lords Select Committee on the Constitution’

A UK Constitutional Law Group seminar on the House of Lords Select Committee on the Constitution took place in Parliament on 25 January. The three speakers were: Lord Norton of Louth (Current member and the first Chairman of the Constitution Committee), Baroness Jay of Paddington (The current Chairman of the Constitution Committee) and Professor Dawn Oliver (University College London). The session was chaired by Sebastian Payne of the UK Constitutional Law Group and was kindly sponsored by Lord Norton of Louth. The seminar was designed to mark the growing influence of the Committee and to assess its contribution to parliamentary scrutiny over the past ten years.

Lord Norton provided an overview of the Committee’s work since establishment. He began by giving an account of how the Committee started out. It was given an extremely broad remit: ‘to examine the constitutional implications of all public bills coming before the House; and to keep under review the operation of the constitution’ (Select Committee on the Constitution, First Report, Reviewing the Constitution, (2001-2002; HL 11), para.1) and it had to quickly work out how it was going to operate. Norton explained that they used their very first report to investigate and decide upon their working methods.  He noted that one of the most important legacies of the report was “the two p’s test” (at para.22).  The test is that for a Bill to trigger a report from the Committee it must raise a constitutional issue that is a principal part of the constitutional framework and one that raises an important question of principle.

Lord Norton set out the different types of report produced by the Committee. The Committee has produced: seventy reports on legislation, twenty reports on own-initiative investigations, and thirty-five reports to the House, which includes annual reports and reports of meetings with the Lord Chancellor. This makes a total of one hundred and twenty-six reports.

Lord Norton gave three examples of own-initiative investigations. The first was a report on devolution from their second parliamentary session in operation. Norton explained that the investigation took up a large amount of time, with evidence sessions taking place in Scotland, Wales and Westminster. The result was a comprehensive report which is a testimony to the time and effort put in the investigation. The second investigation cited by Lord Norton was titled ‘Parliament and the Legislative Process’. The report had a significant impact, as the recommendation in the report which called for post-legislative scrutiny to become standard practice was accepted by the government, and after a Law Commission report, has been implemented. The third example cited was the Fast-Track Legislation report, which recommended that Ministers should have to justify why pre-legislative scrutiny is not used and a shortened timetable is employed. Lord Norton explained that government has taken this recommendation on board and Ministers do now justify the use of fast-track legislation.

Lord Norton made a couple of interesting points on the Bill scrutiny work. He pointed out that often changes to legislation have been secured through correspondence with the relevant minister, rather than through the reports themselves. He also noted that the current session has been the high point in terms of the Committee’s reports impact upon the debates within the House.

In summing up Lord Norton set out what he saw to be the four main functions of the Committee. The first is to inform the constitutional debate in the House. The second is to develop constitutional principles through its legislative reports and investigations. The third is to call the government to account by getting them to justify their proposals. The fourth is to shape the legislative process and how it happens. What they would like to do in the future and are yet to achieve is to shape the constitutional change process. Lord Norton ended by noting that it is now difficult to imagine how Parliament operated without the Constitution Committee.

Baroness Jay of Paddington focused on the work of the Committee in the current session (2010-2012). The Committee has been extremely busy over the current session, publishing twelve bill reports. Baroness Jay emphasized that a common thread to their reports is a concern over the Coalition’s approach to the process of constitutional change. A number of the committee’s reports lament the fact that political expediency has prevented a full and proper consultation process being used. A good example of this would be the Fixed-term Parliaments Bill, and the Constitution Committee’s report contained particularly crisp criticism of government’s short-termism.

In terms of influencing legislative outcomes, Baroness Jay observed that the Committee has had most impact on Bills that were not obviously constitutional. The Public Bodies Bill (now an Act) is the first example of this. The Committee’s report played a major role in the debates on the Bill and led, in a relatively direct way, to the removal of Schedule Seven (one of the most problematic elements of the Bill) and to the insertion of a sunset clause.  The second example is the Health and Social Care Bill. The Committee’s first report on the Bill expressed their disquiet at the Bill’s alteration to the constitutional and legal responsibility of the Secretary of State for the Health Service.  They recommended that the government reinstate the provision from the 2006 Act. At Second Reading the Minister indicated that he would not be wiling to make this particular change, however he did indicate that he would be willing to work with the Committee to find a compromise on this issue before the Bill went to the next stage of the legislative process. The Minister agreed to let officials from the Committee talk directly to the Bill team in the Department of Health. This process produced a series of amendments which the Committee published in their second report on the Bill and are due to be debated on the 9th of February, and in all probabilities they will form part of the Bill.  Baroness Jay noted that this process represents a fascinating innovation in the process of parliamentary scrutiny. It allows for legislative amendments to be produced which respond directly to the concerns of a committee. She asked whether this could provide a template for parliamentary scrutiny by committees in the future.
Baroness Jay ended on a less positive note. She pointed out that despite these instances of influence, where the government were willing to listen, the reality is that there is no obligation for them do so and if they really want to, they can ignore the Committee’s view. She cited as evidence the government’s reaction to a recommendation from the Committee’s report on the process of constitutional change, which argued for ministerial statements on constitutionality to be included in the explanatory notes to a Bill. In their response they refused to accept the case for such a change.

Professor Dawn Oliver set out her view of the place of the Constitution Committee in the British Constitution. Professor Oliver began by pointing out that most Western Democracies have constitutional standards set out in a written constitutional document and an independent body, separate from the executive and the legislature, which conducts post-legislative constitutional review which can invalidate an unconstitutional law (Germany and the USA). The United Kingdom does not have either of these things. Instead Britain relies on other things to protect constitutional principles, such as: the intra-parliamentary, pre-legislative scrutiny work of parliamentary committees, and in particular of the House of Lords Constitution Committee, their effects ‘upstream’ in government and the general British pro-constitutional culture.

Professor Oliver outlined some of the characteristics of Constitution Committee’s that enable it to protect constitutional principles. It is separate from and independent of the government, it conducts preventative and abstract review or bills and draft bills, it examines the working of the British constitution, it articulates objective constitutional standards and criteria for these purposes and it makes recommendations as to how the standards can be upheld, and it is highly regarded. For Oliver the Constitution Committee is in effect a substitute for judicial review of legislation. However, she explained that the United Kingdom is not alone among Western democracies in relying upon an intra-parliamentary body to perform abstract pre-legislative scrutiny. There are especially strong similarities with our Northern European neighbours. In both Sweden and Finland Parliamentary Committees, like the HL Constitution Committee, are charged with scrutinising bills for constitutionality and reporting to government and Parliament on their findings. The Finnish Constitutional Law Committee operates in a quasi-judicial way, and is particularly highly respected in government and Parliament.

Professor Oliver then explained some of the reasons why the United Kingdom shares a similar approach to constitutional review to the Netherlands, Finland and Sweden. In all four countries there is a strong rule of law and broad respect for similar constitutional principles. These principles are upheld by constitutionally non-partisan bodies that are independent of government: the HL Constitution Committee, the Constitutional Law Committees in Sweden and Finland, and the Councils of State in the Netherlands and Sweden. The fact of parliamentary sovereignty and the absence of constitutional judicial review are accepted as placing a heavy responsibility on elected politicians not to misuse their powers in relation to the constitution and that responsibility is broadly accepted by them. Oliver noted that it should be realised that approaches other than judicial review to the protection of constitutionality can, if the culture is right, be just as, if not more, effective and avoid negative unintended consequences.

Oliver argued that above all the existence and work of the Constitution Committee helps to fend off the incoming cultural tides of Americanised constitutional preferences for judicial review of Acts of Parliament, of constitutional irresponsibility on the part of politicians, of partisan constitutional politics, and of the politicisation of the judiciary. In concluding Oliver noted that ‘in its own modest way the Constitution Committee is the Thames Barrier and the Teddington lock and weir of the British Constitution.’

Jack Simson Caird is a doctoral student at Queen Mary University of London.

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Jack Simson Caird: Parliamentary Constitutional Review: The Case of the Health and Social Care Reform Bill

There are certain news stories which require a double-take. On the 11th and 12th of October, a number of UK news sources reported that the Health and Social Care Reform Bill was facing strong opposition in the Lords because of the ‘constitutional questions’ it raised. Hearing this on the radio in the morning, perhaps before a dose of caffeine, you might have thought that you had misheard and that for some strange reason Barack Obama’s health legislation was still going through Congress, or, more likely, that another country with a codified constitution was deep in debate over a legislative proposal that sought to radically reform their health system. Students of the British Constitutional do not expect major political debates in the United Kingdom, such as the current debate over the reform of the National Health Service, to focus on ‘constitutional’ questions.

That the constitutional implications of the bill became the focus of the Second Reading debate in the Lords would not be a surprise if you have been following the chamber’s legislative scrutiny work during the current parliamentary session. It has long been noted that the Lords, as a legislative chamber, takes a special interest in constitutional matters, but what this parliamentary session has shown is that they are getting exceptionally good at constitutional scrutiny. In this post, the example of the Health and Social Care Reform Bill is used to highlight this work and in particular the contribution of its own Select Committee on the Constitution.

Why was the British media reporting on the subject of the constitutional implications of the Heath and Social Care Reform Bill on the 11th and 12th of October? On the 30th of September the House of Lords Select Committee on the Constitution published its report on the Bill, and it is this intervention which is the root cause of the media stories. The report is a remarkably effective piece of constitutional analysis. It explains clearly and succinctly the three key changes that the proposed Bill would make to the existing duties of the Secretary of State for Health [para. 13]. The report then explains:

The combination of these changes matters, constitutionally, because it is not clear whether the existing structures of political and legal accountability with regard to the NHS will continue to operate as they have done hitherto if the Bill is passed in its current form. As such, the House will wish carefully to consider whether these changes pose an undue risk either that individual ministerial responsibility to Parliament will be diluted or that legal accountability to the courts will be fragmented.’ [para. 18]

The implication is clear, these changes to the responsibility of the Secretary of State are not, in their view, constitutionally acceptable. It is noticeable that the report does not just issue its judgment, it then invites peers to act.

The media stories of the 11th and 12th of October were actually directly prompted by the amendment to the motion moved by Lord Owen, and supported by Lord Hennessy of Nympsfield. The amendment sought the appointment of a Select Committee to examine the issues raised by the Constitution Committee’s report. The media stories appeared to be mainly interested in the amendment because the government claimed that it if successful it could wreck the Bill, a fact that the authors denied.  The Committee would work alongside the committee of the whole house and its sole focus would be on the constitutional implications of the Bill. The proposed Select Committee would have Parliamentary Counsel at its disposal, to enable it to resolve the issues relating to the proposed changes to the constitutional responsibilities of the Secretary of State. The authors pointed out that this procedure was not without precedent, it was used on the Constitutional Reform Bill in 2004 and was regarded as a success. Lord Owen explained that the normal process, of a committee of the whole house, was less likely to secure the changes to the Bill which the Constitution Committee has called for: ‘only the weight of an all-party and probably unanimous Select Committee will give the weight to make this change.’ In the end the vote on the amendment was lost by sixty-eight votes, however, the loss does not diminish the value of this example, what I am interested in is the political process which led to the vote.

Over ten years ago, the Wakeham Commission on Reforming the House of Lords, recommended the establishment of a committee on the constitution, which would help the House of Lords to act as constitutional ‘longstop’. The Lord Owen amendment and the media stories that reported it are both evidence of the impact that the Committee’s work is now having. The Committee is establishing itself as the United Kingdom’s primary constitutional interpreter and there are number of reasons which can be offered to explain this achievement. Its Bill scrutiny reports contain exceptionally good constitutional analysis, which is both direct and accessible in style, and crucially these reports are having a major impact on legislative debates. The reason for this is that the Constitution Committee is a proper legislative committee, in that it employs tactics to ensure that its analysis get the maximum exposure in the legislative debate on the Bill. The Committee’s Annual Report of 2007-2008 explained that it had adopted the practice of tabling amendments in the name of the Chairman, to ensure that its concerns did not disappear from view in the Committee stage. Additionally, the Committee tries to ensure that its scrutiny reports are published before the Second Reading debate so that peers have the opportunity to engage with the report and the bill at the earliest possible stage. [para. 6]  The Lord Owen amendment and publicity which is created was a direct result of the fact that Committee had managed its report in good time so that peers had a chance to digest the information and react.

Strategy played a part in getting the constitutional questions into the media reports, but the other key factor was the quality of the analysis within the report. One reason to explain how the Committee can produce such a persuasive piece of constitutional analysis is the quality of the personnel at its disposal. The Committee is a good example of a subject specialist committee, in that its membership has a great deal of constitutional expertise. It includes among its members: Lord Norton of Louth, a leading expert on parliaments and the British Constitution, Lord Goldsmith the former Attorney-General, Lord Irvine of Lairg the former Lord Chancellor and Lord Pannick, a leading barrister who specialises in Public Law and Human Rights. In addition two part-time legal advisers serve the Committee: Professor Richard Rawlings and Professor Adam Tomkins. The constitutional expertise within the committee ensures a high quality of analysis, and also gives the committee a special status. The membership is regarded as eminent and unpartisan, and this means that when the committee issues a critical report, the House of Lords is sure to listen.

At this stage it is not clear what the impact of the Constitution Committee’s report will be on the bill. However, if the example of the Public Bodies Bill is anything to go by, the Committee Stage could see the Government make the changes that the Constitution Committee’s report demand. In that case, the government initially resisted the Constitution Committee’s call for alterations to the Henry VIII clauses within the Bill, but after consistent pressure from the Lords, where virtually every speech made reference to the Committee’s report, the Government accepted the need for major changes. If something similar occurs with the Health and Social Care Reform Bill it would confirm my suspicions that we are witnessing the emergence of a form of parliamentary constitutional review in the United Kingdom. That it is the House of Lords which is adopting the practice, is perhaps evidence of the benefit of having legislators operate with the threat of reform over their heads.

It is often noted that the idea of ‘constitutionality’ does not apply to the British political context because of the absence of a codified constitution and a designated constitutional interpreter. However, the Bill scrutiny reports of the Select Committee on the Constitution are beginning to change this and the idea of ‘constitutionality’ appears increasingly important to the UK’s legislative process. Although the Constitution Committee has no formal powers, its ability to influence other Lords is allowing the Committee to take make a real impact on the legislative process.

Jack Simson Caird is a doctoral student at Queen Mary University of London.

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Robert Hazell and Kate Malleson: Increasing democratic accountability in the appointment of senior judges

The Lords Constitutional Committee’s inquiry into the judicial appointments process has asked what role should be played by the executive and Parliament in the appointments process of the senior judiciary. The case for enhancing the input of both branches of government is now very strong.

One consequence of the Constitutional Reform Act 2005 is that the appointment of judges has been almost wholly removed from the hands of the executive. This change was based on a  misunderstanding of the British constitution, which rests not on rigid separation of powers, but on a careful balance of powers between all three branches of government.

For the system of government to work properly there needs to be trust, confidence and mutual respect between all three branches of government: executive, legislature and judiciary. Appointments to the judiciary are too important to be left to the Judicial Appointments Commission alone. Because of its power to put forward a single name, and the extreme difficulty for the Lord Chancellor in rejecting that name, the JAC has become de facto an appointing body.  Ministers should have greater choice; and the legislature should be more strongly involved, in its classic scrutiny role. To act as a check and balance on both executive and judiciary, and to hold the ring when there are tensions between them, Parliament has an important role to play.

The creation of the JAC was a logical next step from the reforms already undertaken to make the process of judicial appointments fairer, more open and more transparent. But the Executive needs to have a meaningful final say in senior judicial appointments, which is the system in other common law countries.

The arguments advanced for giving a role to Parliament are strengthened if (as we believe should happen) Ministers are given an element of choice, by requiring the JAC to submit a short list rather than a single name. The Commission could submit the names ranked in their order of preference, with a commentary explaining the reasons for their preference. That would help to make explicit the criteria and reasoning applied by the Commission, and require ministers to be explicit about their own criteria if they decided not to follow the Commission’s rank order.

To present ministers with a single name assumes too simplistic a model of “merit“. Ministers may take a different view about the balance of skills and experience that are required when filling a vacancy.  They may feel that a public or constitutional lawyer is required to fill a gap on the Supreme Court, rather than another commercial lawyer; someone who can provide stronger leadership (as implicitly Lord Irvine did when appointing Lord Bingham to be senior law lord) or a candidate who can enhance the diversity of the Court. That is essentially a policy decision, and it is right that policy decisions should ultimately be made by ministers.

To guard against concerns that ministers might allow political bias to creep into their decisions, they should be subject to scrutiny by Parliament. Judicial appointments and the work of the Commission generally should be subject to scrutiny by the Commons Justice Committee and the Lords Constitution Committee (as evinced by the current inquiry). But very senior judicial appointees (Justices of the Supreme Court, and the four heads of division) should be invited by Parliament to present themselves for a scrutiny hearing. The committee would have no power of veto over the appointment. The main purpose of the hearing would be to introduce the new appointee to Parliament, and to give the committee the opportunity to develop a dialogue with the most senior judges on constitutional, legal and judicial policy.  Such dialogue is becoming increasingly frequent, with the judges having given evidence 19 times to the Commons Justice Committee in the last five years, four times to the Lords Constitution Committee, and once to the Joint Committee on Human Rights, the Commons Public Administration Committee, and the Public Accounts Committee.

Since 2008 Select Committees have been scrutinising appointments to the most important public bodies.  Pre-appointment scrutiny hearings for the top 60 public appointments were first introduced under Gordon Brown’s premiership.  Fears were expressed that this would undermine the integrity of the public appointments process; or that Select Committees would engage in inappropriate lines of questioning.  Research conducted by the Constitution Unit shows that neither concern has proved justified.

The arguments for parliamentary scrutiny of top judicial appointments also contain reasons which are specific to judges:

—  Parliament has the power to scrutinise all acts of the executive. Appointments of senior judges are an important exercise of ministerial discretion, and it is equally important that they should be subject to parliamentary scrutiny.

—  The judges fear that ministers may show political bias if they are given a choice. Parliamentary scrutiny can be a useful check against such bias.

—   Parliament nowadays has little contact with the judges. The senior judges are largely unknown to MPs. Supreme Court justices will be unknown to the Lords now that the law lords have departed. There is value in a formal presentation of the senior judges to Parliament, to foster continuing dialogue.

—    Through such dialogue political and judicial actors can better understand the constraints under which the other operates.  This understanding has been lacking in some aspects of the privacy debate

—  The judges should meet the body vested with the constitutional power to dismiss them. Senior judges can be removed only by resolution of both Houses of Parliament.

The main arguments advanced against such a proposal are as follows:

—  It would risk politicising judicial appointments, as they are in the United States. But the American constitution involves built-in conflict between President and Congress. Supreme Court appointments in the US are less on merit, and overtly partisan, in a manner quite foreign to the UK.

—  It would expose appointees to intrusive questioning about their personal and private lives. Even in the US, such questioning is the exception not the rule. In the UK, it is unknown: Select Committees have followed the Liaison Committee guidelines on proper lines of questioning.

The committee conducting the scrutiny hearings could be the Justice Committee in the Commons, the Constitution Committee in the Lords, or a joint sitting of both committees. Given the constitutional guardian function of the House of Lords, and the role of both Houses in dismissing judges, we would favour a joint session of both committees.

Robert Hazell is Director of Constitution Unit in the Department of Political Science, UCL. Kate Malleson is Professor of Law at Queen Mary, University of London.  They are leading an AHRC-funded project on the politics of judicial politics in Britain’s Changing Constitution.

 

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