Tag Archives: Parliament

Jack Simson Caird: A Proposal for a Code of Legislative Standards?

jackOn the 20 of May the House of Commons Political and Constitutional Reform Committee (the PCR) published its report on legislative scrutiny standards titled ‘Ensuring standards in the quality of legislation’. The Report contains two eye catching and ambitious proposals for parliamentary reform: the creation of a joint committee on legislative standards and the adoption of a code of legislative standards. This blog is about the second of these proposals. The proposal is a significant one, and if implemented it would dramatically improve the information available to parliamentarians in their scrutiny of government bills. The PCR’s code is in effect a series of questions and demands for information relating to the content and to the timetable of a bill, that the government would answer within the explanatory notes to a bill. In this blog post, I draw attention to the code proposed by the PRC and I offer a critique of their approach, and in particular of the decision not to include substantive legislative standards.

The code, within Annex A of the report, states:

‘The purpose of this Code is twofold: first to set standards based upon existing evidence of good practice that ensures quality legislation, and second, to set out the information that Parliament expects to be provided for the purpose of scrutinising legislation.’

It is clear that the Code fulfills the second of these goals. The code contains a total of 37 demands for information, and if answered in good faith the responses to these demands would provide parliamentarians with much of what is needed for effective scrutiny of a bill. For example, the Code asks:

‘(c) Does the bill in whole or in part affect a principal part of the constitution, and

does it raise an important issue of constitutional principle?’

  (r) Is the bill considered by the Government to be a piece of emergency/fast-track

legislation, and if so, why?

(v) Does the bill include, and if yes, in what clauses:

(i) Purpose or overview clauses,

(ii) New definitions of existing legal concepts,

(iii) Index clauses for definitions,

(iv) Formulae,

(v) Any new drafting techniques or innovations?’

If proper answers to these questions were included in the explanatory notes it would in effect accelerate the scrutiny process. Parliamentarians would have, at the outset, much of the basic information needed to scrutinise the detail within a Bill. Other significant standards include a demand for: (i) Provision of an informal “Keeling-like” Schedule (not to form part of the bill) where substantial amendments will be made to an earlier Act, (k) The policy objectives of the bill, (w) A list of any new criminal offences and/or civil penalties created by the bill, and a summary of how they relate to existing offences, (z) a list of clauses with retrospective application, (bb) a list of Henry VIII powers. Each of the standards has been carefully crafted and draws on experiences of a number of key participants in and observers of the scrutiny process, and the Committee should be commended for producing such a well drafted and researched list of standards. Too often the legislative process is a game of cat and mouse between the scrutineers within Parliament and the government, whereby the justification for a Bill or specific clauses is gradually and painfully extracted from the government, when in reality is should be presented at the outset. The adoption of this code would remedy this defect, and would allow parliamentarians to use their precious time to examine the justificatory basis for the Bill from the outset, instead of spending it working out what the government is trying to achieve.

The problem with the Code proposed relates to the extent it fulfills the first of the two goals it set itself: ‘to set standards based upon existing evidence of good practice that ensures quality legislation.’ The norms within the code set certain expectations as to the information that should be supplied by the government, and in doing this they hint at what legislation should or should not do, for example standard (u) asks for the following:

In relation to large multi-topic bills (aka. omnibus/portmanteau/Christmas tree bills), an explanation as to how the parts of the bill bring into effect the bill’s central policy purpose and why it cannot be separated into individual bills

The implication is that there is a presumption that ‘large multi-topic bills’ should not be used, but the standards resists the temptation to be so bold as to actually say that, and instead it asks for an explanation for why the government has decided to depart from the norm of single topic bills. Why not demand more? The code could say: large multi-topic bills should not be used, any departure from this norm must be justified in a statement in the explanatory notes which explains why the Bill could not be separated into individual bills. This highlights the root of my main problem with code, it does not contain any substantive legislative standards. None of the standards included state in clear terms what legislation should and should not do.

A legislative scrutiny standard is not a legally enforceable rule, it is a soft law instrument which is designed to inform participants in the legislative process. As it is not legally enforceable, any standard that relates to the content of legislation does not prevent the government ignoring it, just as they might ignore those within the code proposed by the PRC. The advantage of stating that ‘large multi-topic bills’ should not be used, is that it communicates a stronger message, one that is commensurate to the significance of the principles to the United Kingdom’s parliamentary democracy. There are undoubtedly scenarios where ‘large multi-topic bills’ might be justified, but the obligatory language could equally be used to set a requirement that the government should explain in precise terms the basis for its decision to depart from a particular norm. Ultimately, the end result in terms of information produced by the government might be the same, but message sent is different.

The remit of the Australian Senate Scrutiny of Bills Committees contains a number of substantive legislative scrutiny standards. The Senate committee is charged with examining all bills and reporting on whether they:

  1. trespass unduly on personal rights and liberties;
  2. make rights, liberties or obligations unduly dependent upon insufficiently defined administrative powers;
  3. make rights, liberties or obligations unduly dependent upon non-reviewable decisions;
  4. inappropriately delegate legislative powers; or insufficiently subject the exercise of legislative power to parliamentary scrutiny.

These examples of substantive legislative scrutiny standards demonstrate the strength of the message that such standards can communicate. While it is clearly not a like for like comparison, the contrast between the tone and approach of the standards within the Senate Committee’s remit and those within the Code is striking.

The PCR’s Report explains the reasons behind the decision to avoid obligatory language and substantive standards. While the Report recognises that ‘an objective set of quality standards’ is necessary ‘to compare and judge bills and Acts’ (para 55), it explains that it is important that the standards within the code are ‘politically neutral’ (para 58). It is axiomatic that the Code should not be seen to be in any way party political, but I am not sure that this is a sound basis for excluding substantive scrutiny standards from the Code or for deciding to avoid a ‘subjective’ drafting style. I would argue that the rationale for setting legislative scrutiny standards is to articulate a vision of how the legislative process should work, based upon an interpretation of the norms that are fundamental to the United Kingdom’s parliamentary democracy. These norms are not as politically controversial within Parliament as other political ideas, but they nonetheless have implications for the content of legislation, as well as for the nature of the information presented by government to Parliament.

The report also states that the standards should ‘require policy to be explained by reference to the contents of the bill, without questioning the substance of the policy (para 58)’. I would suggest that this division between the contents of a Bill and the substance of a policy does not stand up to scrutiny. For example, if the government introduces a bill which grants a minister an unfettered statutory power to abolish by order, with little parliamentary oversight, a public body established by primary legislation, where does the contents of the Bill end and the policy start? The legislative means are part of the policy. In other circumstance it may be possible to separate the two, but the fact that is not a reliable distinction means that it should not provide the basis for the design of general legislative standards.

This anxiety to be seen to be political neutral and to avoid commenting on the merits of legislative proposals is unwarranted because it dilutes the message communicated by the standards. One of the basic rationales of soft law legislative scrutiny standards is to create a set of normative principles that can be used by parliamentarians to engage in legislative scrutiny. A code should communicate to parliamentarians what the authors believe to be the principles that should be followed by government within legislative process. In turn this should create an expectation that if a Government wishes to depart from such a principle then it should strive to justify the basis for such a departure. However, the language of justification was rejected by the PRC: ‘where proposed or existing scrutiny list criteria suggest requiring “justifications” to be provided or comment upon the “necessity” of provisions, we consider that such terms risk creating the appearance of subjectivity and have therefore altered the wording to be more neutral (para 61)’. I do not think that a desire to be ‘neutral’ offers an adequate basis for omitting these terms. This language is needed to communicate the significance of departing from the norms in question.

It should be noted that the PCR’s report states that their proposal should be seen as beginning of a debate over the value and content of such a code. The Code they have proposed is an invaluable contribution to the debate over the role that soft law scrutiny standards should play in the legislative process. However, I would argue that there is also a role for other types of legislative scrutiny standards that use a different approach. To that end, I am involved in a Constitution Unit project, with Professor Dawn Oliver and Professor Robert Hazell, which aims to produce a code of legislative scrutiny standards based on those articulated by the House of Lords Select Committee on the Constitution in their scrutiny reports since its establishment in 2001. Many of these are substantive, and yet politically neutral in the sense that they are not controversial and state widely accepted constitutional principles. We hope to produce the code shortly.

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

Suggested citation:  J. Simson Caird ‘A Proposal for a Code of Legislative Standards?’  UK Const. L. Blog (14th June 2013) (available at http://ukconstitutionallaw.org)

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

mark1Earlier this week, the McKay Commission published its Report on the Consequences of Devolution for the House of Commons. The Commission’s terms of reference required it to determine “how the House of Commons might deal with legislation which affects only part of the United Kingdom, following the devolution of certain legislative powers to the Scottish Parliament, the Northern Ireland Assembly and the National Assembly for Wales”. In other words, the Commission was established to do that which Lord Irvine of Lairg (in)famously counselled against: viz to tackle the West Lothian Question. (Irvine reportedly said that the best thing to do about that question was to “stop asking it”.) There are various ways in which the question can be framed. The Commission, for its part, took the central issue to be the possibility that “MPs from outside England could help determine laws that apply in England, while MPs from England would have no reciprocal influence on laws outside England in policy fields for which the devolved institutions would now be responsible”.

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

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

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

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

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

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

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

The Commission’s key proposals

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

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

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

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

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

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

The bigger picture

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

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

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

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

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

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

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Patrick O’Brien: The Member for the Australian Jungle, Nadine Dorries MP

Nadine Dorries’ recent, rather quixotic, decision to expose herself to the vagaries of I’m a Celebrity, Get Me Out of Here and, in the process, to absent herself from the Commons for up to a month has led to severe criticism, but rather oddly, does not appear to have broken any Commons rules. For those unfamiliar with it (I will presume nothing about the viewing habits of the average UKCLG Blog reader), I’m A Celebrity is a reality TV show set in an Australian rainforest in which a group of B- and C-list celebrities are required to compete a series of increasingly demeaning and unpleasant activities (such as eating assorted invertebrates and being buried in a coffin) in return for food. Viewers are permitted to vote for which contestant should be subjected to a particularly unpleasant task each day. Readers may not be entirely surprised to learn that Dorries has not proven to be a hit with the viewers, who so far have voted for her to endure a ‘bug burial’ and something called ‘rotten rhymes’ that is no doubt equally repugnant but about which I couldn’t be bothered to find out more.

There do not appear to be any rules governing an MP’s attendance in the Commons. The Parliamentary Oath merely requires members of Parliament to ‘be faithful and bear true allegiance to Her Majesty Queen Elizabeth, her heirs and successors, according to law’. The Code of Conduct for MPs, refers to very general principles of conduct (selflessness, integrity, objectivity, accountability, openness honesty, and leadership), but has very little to say about the day-to-day duties of an MP and deals primarily with financial interests and the obligations to disclose them. As with all external interests, Dorries will be required to disclose her fee for participation in the programme. However, she has decided to donate her MP’s salary received while she is in participating in the programme to charity. Whilst there is a procedure for members of the Lords to take a leave of absence from Parliament there appears to be no equivalent procedure for MPs, many of whom of course take on external paid work as barristers, doctors, members of company boards and so on. The same laxity with regard to attendance does not apply in all Parliaments. Both Houses of Congress in the United States impose a duty upon members to attend, and indeed possess a power to compel attendance by absent members by arresting them if proceedings become inquorate. The Standing Orders of the US Senate (Rule VI) provide that ‘No Senator shall absent himself from the service of the Senate without leave’. In the event that proceedings become inquorate absent senators may be compelled to attend. (Rule XX of the House makes specific reference to the arrest of absent members by the Sergeant-at-Arms). In a number of jurisdictions (such as Germany, France and Ireland) allowances are reduced on a pro rata basis for absence or removed from parliamentarians who do not meet an attendance threshold. In Westminster it seems that attendance is a matter for party whips, who have a role in authorising absences for holidays and by virtue of their power over the career of an MP possess a great deal of influence. Dorries has angered her own party sufficiently to lose the Conservative whip (she disputes the whips’ claim that she gave no advance notice of her intention to be absent from Parliament for up to one month) and may remain outside the Conservative Party on her return to Westminster.

Whilst she has absented herself from Parliament and deprived her constituents of her services, there is a rather pleasing irony involved in Dorries winning a public vote to be covered in thousands of cockroaches. Is it possible that her trip to Australia could have more of a democratic flavour than this? Dorries’ own explanations of her decision to participate in I’m a Celebrity had a representative flavour to them. “A lot of people don’t vote and if they can see I am a normal mother who comes from a poor background and who didn’t go to a posh school, they may think they can be a politician too. Maybe they will trust us more.” (The Guardian) She also maintained that “I may have to eat a kangaroo’s testicle, but I may also get to talk about a twenty week limit for abortion.” (Conservative Home) The latter is clearly ridiculous, but there may be something in her claim to stand for and seek to engage with a certain section of society. Amongst the many and varied roles of an MP – legislator, constituency worker, party member, Government Minister or party spokesperson – we can plausibly include a duty to engage with the public. I’m A Celebrity doesn’t seem like a sensible forum for this, but Dorries may not be far off the mark in suggesting that MPs need to work to break down the perception that MPs are an alien class of professional politicians who inhabit a separate world. Those who with combine work in Parliament with a job outside often argue that exposure to the world outside Westminster makes them better representatives and legislators.

The classic dichotomy in political representation centres on the distinction between acting as a delegate for one’s constituents – pursuing the will of constituents directly – or acting as a trustee – relying on one’s own judgment as the best interests of constituents. Since Dorries has absented herself from Parliament and so will not be making any decisions whilst in the jungle, we can assume that these do not apply here, [1] but one model used by political scientists gets us closer to a fit with Dorries’ Australian adventure. According to the ‘gyroscopic’ model, voters select an MP based not on a norm of accountability but based on who they are – based on their own sense of right and wrong, on their experience and on their capacity. Edmund Burke, on his election as MP for Bristol in 1774, wrote that ‘Your representative owes you not his industry only, but his judgment, and he betrays, instead of serving you, if he sacrifices it to your opinion.’ Comparisons with Burke flatter Dorries far beyond her due, but in a polity in which Boris Johnson has risen to national prominence largely on the basis of a few incoherent appearances on Have I Got News For You it would be naïve to dismiss the possibility that voters simply want a clown. The Hansard Society’s annual Audit of Political Engagement for 2012 reveals that the proportion of the public who describe themselves as ‘very’ or ‘fairly’ interested in politics dropped to 41%, a decline of 16% since the 2011 Audit and the lowest figure recorded in the nine years of the Audit series. 30% of those surveyed said they were ‘unlikely’ or ‘absolutely certain not’ to vote (an increase of 10%). In describing herself in an explanatory blog on Conservative Home as ‘an anti-politics politician’ Dorries fits perfectly within this paradigm and has put her finger on a serious problem. Is it possible that – however implausibly – her appearance on I’m A Celebrity could make her a better MP?

Patrick O’Brien is a Research Associate at the Constitution Unit, University College London. 

Suggested citation: P. O’Brien, ‘The Member for the Australian Jungle, Nadine Dorries MP’,  UK Const. L. Blog (15th November 2012) (available at http://ukconstitutionallaw.org)


[1] See J Mansbridge, ‘Rethinking Representation’ (2003) 4 American Political Science Review 515 for a useful summary of some models used by political scientists.

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Robert Thomas: The New Immigration Rules and the Right to Family life

In June 2012, Theresa May, the Home Secretary, laid a new statement of changes in immigration rules before Parliament. There is nothing necessarily extraordinary in that; the immigration rules set out the criteria governing the entry into and removal from the UK of foreign nationals and they are frequently amended – as a previous blog by Carol Harlow has noted – to reflect changes in immigration policy.

However, there is something quite distinctive and significant about the June 2012 rules – HC 194 – namely, they seek to prescribe how judicial bodies are to interpret and apply the right to family life under Article 8 ECHR in immigration cases. The government’s aim is, essentially, to reduce the scope for foreign nationals to avoid removal from the UK on the basis that this would breach their right to family life. The machinery for administering immigration policy has been repeatedly been criticised for not being fit for purpose and also for allowing foreign nationals without any right to remain in the UK under ordinary immigration categories to use Article 8. One particularly high-profile issue has been the use of Article 8 by foreign national prisoners, which has been highlighted by the Daily Telegraph in its “End the Human Rights Farce” campaign. Furthermore, the Coalition Government’s general policy is to reduce inward migration.

The new immigration rules raise a number of issues: (i) what exactly is being proposed and how? (ii) what Parliamentary process has been used? and (iii) how might the courts respond to the new rules?

What is being done and how?

 Article 8 is a qualified right and any interference is permissible only so long as it is proportionate and justifiable. In the immigration context, Article 8 has assumed a distinctive role as it is frequently relied upon by foreign nationals who challenge their removal. These challenges have generated an enormous volume of case-law on the legal test to be applied as regards the balance to be struck between family life on the one hand and immigration policy on the other. But, to summarise, the key issue is this: should the courts accept that in most cases the balance between family life and immigration control has been laid down in the Immigration Rules – or should decision-makers themselves determine in each individual case where the proportionate balance lies?

In Huang, the Court of Appeal held that the Immigration Rules represented the appropriate balance between public policy and private right: individuals who did not qualify under the ordinary immigration rules would only succeed under Article 8 grounds if their case was truly exceptional. However, when the same case went to the House of Lords, it held that there was no test of exceptionality: the ultimate question is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. There was, the House of Lords held, no reason to defer to the Immigration Rules which “are not the product of active debate in Parliament, where non-nationals seeking leave to enter or remain are not in any event represented.”

Following Huang, then, it was for the decision-maker – whether initially a caseworker at the UK Border Agency, an immigration judge on appeal, or a court judge by way of further appeal – to make her own assessment as to whether or not removal would breach an individual’s right to family and private life. This test has been accepted and applied since 2007. However, the loss of control here has evidently been too much for the Coalition Government to bear – especially when under acute media and political pressure to respond to public concern – real or otherwise – on immigration.

The rationale for the new rules, therefore, commences by way of critique. According to the Home Office, the Huang approach has resulted in unpredictable and inconsistent decision-making which are anathema to good administration (seasoned observers of the behaviour, action, and inaction of the UK Border Agency and its predecessors may relish the irony here: see, for instance, a special report of the Parliamentary Ombudsmen and multiple reports by the House of Commons Home Affairs Committee on the UKBA’s handling of immigration applications). It has also meant that the courts do not defer to Parliament’s or the Government’s view of where the appropriate balance lies between family life and immigration control. Consequently, the solution – so the Government says – is to introduce new Immigration Rules to do two things: (i) to specify where the balance is to lie, that is, adopt a rules-based approach to proportionality; and (ii) to do so in a way which ensures that the new Rules have democratic legitimacy and should therefore only be subject to a light-touch judicial review.

How do the new Rules attempt to do this? By specifying the criteria to be applied in family life cases. For instance, in foreign national prisoner deportation cases, the new rules state that family or private life (including the best interests of any child, even though always a primary consideration) will not outweigh the public interest in seeing the person deported where they have received a custodial sentence of at least 4 years unless there are exceptional circumstances. This rule allows little scope for a Huang-style general balancing exercise; the main issue under the new rule is whether or not there are “exceptional circumstances”, ie a return to the position reached by the Court of Appeal in Huang.

For those foreign national prisoners with a custodial sentence of between one and four years, the new rules introduce different requirements. Deportation will be proportionate unless they have a genuine and subsisting relationship with a partner in the UK and they have lived in the UK with valid leave continuously for at least the last 15 years and there are insurmountable obstacles to family life with that partner continuing overseas; or they have a genuine and subsisting parental relationship with a British citizen child, or a foreign national child who has lived in the UK continuously for at least the last seven years immediately and it would be unreasonable to expect the child to leave the UK and there is no other family member who is able to care for the child in the UK. Alternatively, they might have lived continuously in the UK for at least the last 20 years and they have no ties (including social, cultural or family) with their home country; or they are under 25 years, have spent at least half of their life living continuously in the UK and have no ties or there are exceptional circumstances.

There are similarly complex and lengthy rules concerning the tests to be applied to other categories of person other than foreign national prisoners, such as cases concerning children and those individuals who seek to remain by virtue of their long residence in the UK. Putting the detailed rules to one side, thee general thrust is to limit and confine discretion and for the Government to give a clear policy steer to the courts as to how they should interpret Article 8. What the Government intends is for the focus of the courts to shift away from assessing the proportionality in each individual case to assessing the proportionality of the Rules themselves. As the rule embody the proportionality assessment at a general level, it is not necessary – the Home Office says – to re-determine it in every individual case.

What Parliamentary process has been used?

A key aspect of the Government’s plan has been to circumvent the concern expressed by the House of Lords in Huang – that the Immigration Rules are not the product of active debate in Parliament. The new rules were debated and approved by the House of Commons.

Or were they? What actually happened on 19 June 2012 is that the Commons debated and approved a Government motion that Article 8 is a qualified right and that the criteria governing immigration are laid down in the Immigration Rules. So much is obvious to anyone with a passing acquaintance with the issues. However, some MPs at the time and, later the House of Lords Scrutiny of Secondary Legislation Committee, queried the relevance and consequences of the June debate. The Home Office’s inconsistent use of the term “Immigration Rules” caused considerable confusion throughout the Commons’ debate. One MP, for example, asked which Rules they were being asked to endorse – the ones current on 19 June or the new version of the rules as amended by HC 194 which would come into effect on 9 July 2012 (HC Deb col 806)).

The Scrutiny Committee has doubted whether procedurally the debate delivered a sufficiently clear endorsement of the wider policy to assist the courts. Although it was the Home Office’s firm intention to provide the courts with a clear policy steer on the weight to be given to Article 8 of ECHR in relation to the Immigration Rules, it was equivocal about the procedural approach for delivering it. According to the Scrutiny Committee, while the Home Secretary’s intention is clear, questions remain about whether the Government’s approach can deliver it: the Home Office provided no evidence to support its view that the procedural approach it proposes will lead the courts to react in the way the Home Office anticipates.

Putting the formal motion to one side, the purpose of the June debate was all about sending a clear message to the courts: apply the new rules or else risk defying the Government. As Theresa May stated:

 “the immigration rules will no longer be a mere starting point, with leave granted outside the rules or appeals allowed under article 8 for those who do not meet them. The immigration rules will instead take into account article 8, relevant case law and appropriate evidence and they will be proposed by the Executive and approved by the legislature. Of course, the courts have a clear constitutional role in reviewing the proportionality of measures passed by Parliament, but now the focus of the courts should be on considering the proportionality of the rules rather than the proportionality of every individual application determined in accordance with the rules. Where the courts consider individual deportation decisions, it should now be with consideration of Parliament’s public policy intent firmly in mind.” (col 763)

The Government would no doubt have been confident that it would face few problems in the Commons on the substantive issue of confining family life for, amongst others, foreign national prisoners: only a few brave MPs would take issue with that. The Labour party’s line was that the message being sent to the courts was not strong enough because the policy was only being introduced through the Immigration Rules and not through primary legislation (col 774).

How, then, might the courts respond?

It is clear that the new rules will, before long, be challenged in the courts. This might initially take a little while. A case may first be determined by the Upper Tribunal (Immigration and Asylum Chamber), then by the Court of Appeal, the Supreme Court, and perhaps ultimately Strasbourg. The Home Office, though, seems ready for it. Along with the new rules, it published a detailed statement of ECHR compatibility which, unsurprisingly, concluded that the new rules are compatible with Article 8 ECHR.

What then of the courts? Since Huang, the Supreme Court has, in a number of cases, emphasized that the fact-sensitive and judgmental nature of the proportionality assessment in immigration cases cannot be constrained by rules. In EB (Kosovo), Lord Bingham stated:

 “the … [tribunal] … must make its own judgment and that judgment will be strongly influenced by the particular facts and circumstances of the particular case. The authority will, of course, take note of factors which have, or have not, weighed with the Strasbourg court. It will, for example, recognise that it will rarely be proportionate to uphold an order for removal of a spouse if there is a close and genuine bond with the other spouse and that spouse cannot reasonably be expected to follow the removed spouse to the country of removal, or if the effect of the order is to sever a genuine and subsisting relationship between parent and child. But cases will not ordinarily raise such stark choices, and there is in general no alternative to making a careful and informed evaluation of the facts of the particular case. The search for a hard-edged or bright-line rule to be applied to the generality of cases is incompatible with the difficult evaluative exercise which article 8 requires.”

In another Article 8 case decided at the same time as EB (Kosovo) – Chikwamba – Lord Scott put it more succinctly:

“policies that involve people cannot be, and should not be allowed to become, rigid inflexible rules. The bureaucracy of which Kafka wrote cannot be allowed to take root in this country and the courts must see that it does not.”

The problem with the new rules is that there will always be cases that fall on the wrong side of the rigid requirements laid down, but which a court or tribunal may nonetheless conclude deserve to be allowed because of the strength of countervailing factors. It is generally recognised in administrative law that when the decision task at hand is particularly important – when the error costs of incorrect decisions are particularly high – then flexibility and discretion are to be preferred to rigid rules which are over-inclusive. Also, a flexible standard as applied by a court or tribunal enables affected individuals to participate directly in the decision-making process. But, these factors have to be weighed against political forces pushing in the opposite direction.

There are a number of options for the courts. First, the courts could simply accept the new rules and apply them by recognising them as the Government’s clear wish as approved by the House of Commons. This supine posture, however, seems unlikely. The Immigration Rules are subordinate legislation and not in any way immune from judicial scrutiny. Even if the courts recognise the need for some deference, the importance of Article 8 is a major countervailing force. As the House of Lords noted in Huang:

 “Human beings are social animals. They depend on others. Their family, or extended family, is the group on which many people most heavily depend, socially, emotionally and often financially. There comes a point at which, for some, prolonged and unavoidable separation from this group seriously inhibits their ability to live full and fulfilling lives.”

Secondly, the courts could go the other extreme and strike down the relevant immigration rules as incompatible with Article 8 as interpreted by the House of Lords in Huang. This is possible – if, for instance, the courts find that the rules so restrict the proportionality assessment that they do not comprise a valid interpretation of the case-law. Judicial invalidation of the Immigration Rules is rare, but not unknown. A determined Government could in response do two things: (i) change the rules on each occasion to accommodate the flexibility required by the courts; or (ii) introduce primary legislation, but that would take up valuable legislative time.

Thirdly, the courts could take a middle path by interpreting the Rules against the general background of the Human Rights Act and hold that the new rules do not absolve the courts from applying Article 8 under the HRA. After all, what is the legal status of formal secondary rules which seek to lay down the executive’s interpretation as to how independent courts ought to assess the proportionality of decisions that infringe a qualified ECHR right? The courts could conclude that, in the human rights context, the rules are to be treated as more akin to administrative guidance – a set of relevant considerations no doubt, but not formally binding because of overarching ECHR standards.

The scene is, then, set for a showdown – sometime in 2013-14 I would guess. It is almost as if the Government has drawn a line in the sand and has now dared the courts to cross it. Picking an argument with the courts has, of course, long been the stock-in-trade of Home Secretaries when the normally hard-grind of government gets even tougher; former Home Secretaries such as Michael Howard and David Blunkett both had their run-ins with the courts. A cynical observer might suggest that lying beneath all the formal surface issues of the rules, Parliamentary procedure, case-law, and so on, the Government has been in search of a future blame-avoidance strategy. If the courts accept the rules, then fine, but they are rejected, then the Government can always throw any political come-back into the courts’ direction. As Baroness Hale noted in Walumba Lumba, “[t]hese are just the sort of circumstances, where both Ministers and their civil servants are under pressure to do what they may know to be wrong, in which the courts must be vigilant to ensure that their decisions are taken in accordance with the law. To borrow from the civil servants’ correspondence, the courts must be prepared to take the hit even if they are not.”

Robert Thomas is Professor of Public Law at the School of Law, University of Manchester

Suggested citation: R. Thomas, ‘The New Immigration Rules and the Right to Family Life’  UK Const. L. Blog (4th October 2012) (available at http://ukconstitutionallaw.org

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Grégoire Webber: Commons and Government: Some Tools of Opposition

Many things once said cannot now be said about the Westminster constitution. In times past, one could affirm with conviction that the government’s relations with the House of Commons were guided by the ability of the Commons to choose another government. The assembly which chooses our prime minister, Bagehot would write in 1867, can choose another at any time. It ‘electoral function’ is constant. Today, the willingness of the Commons to choose another government seems less potent, with party discipline in turn disciplining the judgment of Members of Parliament. With few exceptions, the electoral function of the Commons is paired with the electoral function of the citizenry: they choose on occasion of general elections. Does it follow that the parliamentary opposition is less potent in holding the government to account? Mindful of the distorting potential of any one example, recent events in the Parliament of Canada provide some avenues for reflection.

On 14 June 2012, the House of Commons sat for more than 22 consecutive hours. Near all of that time was devoted to recording report stage divisions on 157 motions to amend the government’s budget implementation bill, the Jobs, Growth and Long-term Prosperity Act (Bill C-38). The opposition was defeated on each one of the amendments, as it expected to be. So why did it insist on the amendments and persist in calling for division?

The opposition parties decried how the more than 400 pages comprising Bill C-38 contained various provisions having too little relation to the implementation of the Minister of Finance’s budget. A summary of the changes proposed in the bill include: (a) the creation of a new Act of Parliament, the Canada Environmental Assessment Act, which would modify the number of federal environmental assessments; (b) changes to the protection of fish habitats under the Fisheries Act; (c) raising the age of eligibility to qualify for old age security benefits; (d) reform of the unemployment insurance benefit system; (e) eliminating the office of the Inspector General within the Canadian Security Intelligence Service; and (f) amending the Immigration and Refugee Protection Act’s federal skilled-worker programme.

The opposition insisted that various measures warranted sustained parliamentary study and should be separated from the budget bill. The government disagreed, insisting on the importance and immediacy of the package of reforms. With the whips exerting their influence during committee study, no amendments to the bill were accepted by the government members holding a majority on the Standing Committee on Finance, the only House committee to review Bill C-38. The bill returned to the floor of the House and there the opposition parties looked to exert influence.

More than 871 motions to amend the bill were placed on the notice paper. The Speaker ruled that (a) ‘motions to delete clauses have always been found to be in order’, subject to minimising ‘the amount of time spent in the House on this kind of motion by grouping them as tightly as possible and by applying the vote on one to as many others as possible’ and (b) that motions to amend clauses of the bill submitted by members who had no opportunity to present amendments at committee stage were, ‘consistent with the current practice’, selected ‘except in the case where similar motions had already been considered by the committee and where all other procedural requirements have been met’. Of the 871 motions, the Speaker’s ruling resulted in 157 votes scheduled for report stage.

The House did not rise on 13 June 2012 and continued into the following day. True to the procedure of the House, the parliamentary calendar insisted that the 13th of June did not end at the 24th hour, but only at the 47th (in non-parliamentary terms: 11:44pm on 14 June 2012). In the 22-hour report stage marathon, 157 votes were taken on division, two MPs celebrated their birthdays, and various sleep deprivation tactics were employed to keep the government members alive to the need to rise when their turn on division arose. The presence of government members was especially important given the official opposition’s insistence that all amendments to the budget implementation bill, even to those parts not of a financial matter, should be considered a matter of confidence.

In the end, Bill C-38 passed report stage without amendment. On 18 June, the bill received third reading and, that same day, received first reading in the appointed Senate, where it is expected to receive quick passage. The government secured the passage of its bill through the House, as both it and the opposition knew it would. Why, then, the bother of 157 votes and lack of sleep?

Under the Westminster constitution, the opposition is constitutionally presumed to lose to the government and, with few exceptions, can hope for no greater a victory than a diminished majority for the government on division. When faced with a majority government, the tools available to the opposition are no longer to convince the House that another government should be preferred, but rather the following: argument and time. Opposition members can try to persuade the government or they can try to frustrate the government’s timetable.

The opposition will persuade the government when it has persuaded the public first, but then the influence belongs primarily to the constituents who lobby backbench MPs who in turn lobby their frontbench in caucus. The merits of arguments against the government’s proposals may fall on deaf ears across the isle, but they are made not so much to the prime minister and his cabinet, but to their supporters in the public.

In its use of time, however, the influence is entirely that of the opposition, though it may be encouraged by popular support or discouraged by its absence. Without doubt, the very presence of an opposition within the Commons delays government. Ivor Jennings reported how, between 1 and 7 September 1939, the UK Parliament ‘passed enough legislation to occupy two or three sessions, because the Opposition agreed not to oppose’. It follows that, because the constitution does not ask the opposition to agree not to oppose (save in emergency circumstances), the opposition is entitled to its time to criticise the government and to examine and comment on proposals brought before it. But how much time and for how long?

The answer turns on the relationship of the government to the opposition. Marathon sittings are not the norm and, so, one might surmise that they are called on only to signal other breaches of the norm. In this case, the opposition concluded that the government’s omnibus budget implementation bill has an abuse of the procedure of the House and a challenge to parliamentary scrutiny of the government’s legislative proposals. In turn, it denied that government access to the usual channels to facilitate the workings of the parliamentary calendar.

Had the government capitulated and redrawn its budget bill, it could have expected opposition support for timely passage of its budget, and perhaps, in turn, for timely passage of its other measures, but all at the expense of carrying through in an expedited manner reforms of its choosing.

What did the opposition achieve with its 22-hour marathon if not the defeat of the government or amendments to the bill? Within the chamber, it signalled to the government that, notwithstanding the government’s recently acquired majority within the House, the minority opposition would not stand idly by while the government pursues the business of governing. Perhaps emboldened by the knowledge that the government’s backbenchers will sustain the chamber’s confidence in the frontbench, the opposition will be searching in holding the government to account. Although omnibus budget implementation bills have been used in the past, the opposition can rightly be taken to question: what is to stop a government from including the all of the legislative measures outlined in the Speech from the Throne in a single budget bill and proroguing the chamber until the next speech and budget?

Beyond the chamber, the opposition successfully drew attention to the government’s (ab)use of parliamentary procedure, with much popular commentary and greater attention to the government’s budget and other measures than might otherwise have been received.

Whether the achievements of the opposition within and beyond the chamber will endure beyond a news cycle is open to question, but consider the following two thoughts in closing: (i) at the end of the 22-hour marathon, the official opposition showed no signs of defeat despite losing 157 divisions to the government—instead, the chant “2015” (being the year of the next federal election) ‘started in the upper reaches of the NDP backbench and soon cascaded into a common, deskthumping chorus just before midnight Thursday in the House of Commons’; and (ii) perhaps echoing the same message, albeit from the other side of the isle, several government backbenchers feared that their leadership had expended ‘substantial political capital’ in achieving in one budget bill what could have been achieved, without loss of political capital, in several over time.

Grégoire Webber is Lecturer in Law at the London School of Economics and Political Science.

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