Constitution Committee 6th Report

The House of Lords Constitution Committee in its 6th Report, published 11 July 2007 (referred to in class) examined the changing constitutional landscape in great detail (“the Report”). The criteria used in the Report for assessing the changing constitutional landscape are the rule of law and the independence of the judiciary. The introduction to the Report provides a useful summary of these points, together with questions regarding the impact of the Constitutional Reform Act 2005 and the creation of the Ministry of Justice on the UK’s constitutional arrangements.

The link below provides further links to the introduction and all sections of the Report. You might also find useful the appendices, which include papers from eminent professors  (including Professor Bradley), in particular, appendices 3-5; and evidence submitted by the Lord Chief Justice at appendix 8.

http://www.publications.parliament.uk/pa/ld200607/ldselect/ldconst/151/15102.htm

Governance of Britain: Selection of Judges

http://www.thelawyer.com/cgi-bin/item.cgi?id=128615  

The Lord Chief Justice Lord Phillips has called on the government to stay away from the selection of judges in the wake of ‘The Governance of Britain’ green paper published by the Ministry of Justice. Phillips claims that the Blair administration’s shake-up of the justice system had important implications for the independence of the judiciary.  

This ties into public law and the issue of keeping judges/judicial system as a unbiased third party that should interpret statues and Acts of Parliaments as they see fit. This occurs when ambiguity exists in certain statutes. The Rule of Law, as we have seen, claims that no governmental figure shall be above the law. Keeping judges as unbiased mediators of the law helps this – Dicey claimed ‘equality before the law – equal subjection of all classes to the ordinary law.’ It is vital that the courts serve as an unbiased body independent of the legislature which made the law, and that they act independently of the executive in interpreting the meaning of laws.

Phillips came out explicitly against any suggestion of electing judges, putting himself in opposition to the green paper published by the MoJ this year.  I’m only aware of one Commonwealth country where parliament is involved in judicial appointments, and that is Mozambique. I, for one, can see no need for such an innovation in the UK.” 

Also touches on separation of power (particularly question 5 of tutorial – sep of power )

By Tariq Teja 

 

House of Lords Reform: Has Godot Arrived?

by The Rt. Hon. Jack Straw MP, Lord High Chancellor and Secretary of State for Justice

A summary

After almost a century since Winston Churchill suggested a second chamber of 150 members, 100 elected and 50 appointed, it seems that reform of the House of Lords is finally turning into reality. Several reports, from committees set up and appointed by the Labour government under Tony Blair constituting both MPs and Lords, have in recent years recommended many changes to the Lords. Godot, the man who never arrives in Beckett’s most famous work, to which Robin Cook once compared Lords reform, seemed ready to arrive, as MPs voted, in free votes March this year, for a majority or fully elected second chamber, breaking the deadlock on the matter. However, the Lords rejected all options apart from 100 percent appointed, and Jack Straw assures the reader that he will strive for a “complete reform of the Lords”.
—

The article itself is from the Inner Temple 2007-8 Yearbook, pages 12-13.

 by Oscar X T Tang

Reforming the role of Attorney General – removal of power to prosecute?

As part of Brown’s constitutional settlement, it is likely that the Attorney General will lose her right to direct criminal prosecutions – leaving the Director for Public Prosecutions the final say in such matters. There would be an exception in cases involving national security or where there is a threat to international relations.

The Attorney General is the most senior Government legal adviser, the minister responsible for public prosecutions and also called to act independently in the public interest. The roles have resulted in conflict of interest, calling the constitutional position of the Attorney General into question – particularly as a result of scandals concerning the legal advice on the Iraq war, cash for peerages, and the BAE Systems investigation.   Lord Goldsmith was involved in these scandals arguably making him the most controversial Attorney General of all time.

When Gordon Brown became Prime Minister he wanted to dissociate himself from the discredited aspects of the Blair administration – including the role of the Attorney General. Baroness Scotland became the first black woman ever to take on the role of Attorney General on 28 June 2007 and many commentators saw this as a visible modernising step. A consultation on the role began in July 2007 and will end in November 2007.

http://politics.guardian.co.uk/constitution/story/0,,2201037,00.html

For a further explanation of the conflict of interest entailed by the role and constitutional reform see / browse sections of the Constitutional Affairs Committee 5th Report of 19 July 2007.

http://www.publications.parliament.uk/pa/cm200607/cmselect/cmconst/306/30602.htm

“High drama of appeals at new Supreme Court may go out on television”

The Times- 22^nd October 

http://business.timesonline.co.uk/tol/business/law/article2709537.ece

“High drama of appeals at new Supreme Court may go out on television” 

The Supreme Court:

Under the Constitutional Reform Act 2005, the Supreme Court is being created, ending the Lord Chancellor’s position as being the head of the judiciary and the role of the House of Lords as being the highest court in England. The 12 law lords, headed by Lord Bingham of Cornhill, are to become the first justices of the supreme court which is scheduled to open in October 2009 in Parliament Square.

The Court will:

— Hear appeals on arguable points of law of general public importance

— Act as the final court of appeal in England, Wales and Northern Ireland

— Hear appeals from civil cases in England, Wales, Northern Ireland and Scotland and criminal cases in England, Wales and Northern Ireland

— Assume the devolution jurisdiction of the Judicial Committee of the Privy Council. The Commonwealth jurisdiction of the council will remain unchanged.

The current law lords (Lords of Appeal in Ordinary) will remain as members of the House of Lords when the supreme court opens. However new appointees, who will be selected by a new commission, will not be members of the Lords.

Latest news:

Cameras will be allowed to broadcast high-profile hearings, such as the legality of detaining terror suspects without trial, before the new supreme court on television. Judges say that Jack Straw, the Justice Secretary, is keen to permit cameras into the court as part of the aim to make it more transparent. But Straw has indicated to judges that he does not favour allowing cameras into jury trials. Judges widely oppose it because they perceive it as a step towards American-style justice that could damage the nature of court proceedings. Mr Straw has told judges that he wants to proceed but only with their full support. Senior judges are said to be in favour of the plan. (Source: Department for Constitutional Affairs)

Summary by Abirami Ragukaran and Sonum Bagha

Brown’s Legislative Agenda – the Queen’s Speech Nov 07

The Queen’s speech emphasised the apparently new open and transparent Labour Government under Brown and set out his legislative agenda.

Some of the proposed bills and measures are as follows:  

“… 

Terrorism – Post-charge questioning and possible extension of pre-charge detention beyond 28 days

Education – Raises age of youngsters in education or training to 18

Energy – Bill paving the way for new generation of nuclear power plants

Climate change – New powers to meet target of cutting CO2 by 60% by 2050

Constitutional reform – Give MPs formal say over going to war

Health – New regulator with power to fine hospitals which fail to meet hygiene standards

Work: Consider extending flexible working to parents of older children

…”

See full article and links to others at:

http://news.bbc.co.uk/1/hi/uk_politics/7079333.stm

“The Governance of Britain” and a New Chapter on Liberty?

On 25 October 2007, Gordon Brown set out his plans to write the next chapter in the story of British civil liberties and pledged his commitment to a British Bill of Rights in a speech at the University of Westminister.

Mr Brown said that the British Bill of Rights would “entrench and enhance” individual freedoms.  Yet on the other hand, the Prime Minister stated that the bill would set out the responsibilities “that flow from British citizenship”.  He did not rule out controversial plans for ID cards nor the extension of the holding of terrorist suspects beyond 28 days but said that the latter would be subject to scrutiny.

See a summary of the meaning of a written constitution in the UK – as well as links to a summary of the Prime Minister’s speech on liberty and other documents at:

http://www.politics.co.uk/issue-briefs/domestic-policy/constitution/written-constitution/written-constitution-$366652.htm

This follows the publication on 3 July 07 of the Green Paper, “The Governance of Britain”. Gordon Brown said that the Green Paper sets out for  “a new British constitutional settlement that entrusts more power to parliament and the British people”. This “routemap” (rather than a “final blueprint”) concerns the shifting of power from the executive to Parliament ( for example through limits on the exercise of prerogative powers such as the declaration of war), and reform of public appointments and the role of the Attorney General etc.

See summary at:

http://politics.guardian.co.uk/constitution/story/0,,2117920,00.html

Governance of Britain Green Paper can be found at:

http://www.official-documents.gov.uk/document/cm71/7170/7170.pdf

 Related documents on Ministry of Justice Website:

http://www.justice.gov.uk/publications/governanceofbritain.htm

The Judiciary and Constitutional Reform

Supreme Court for the UK 

 “The Constitutional Reform Act 2005 made provision for the creation of a new Supreme Court for the United Kingdom. There have, in recent years, been mounting calls for the creation of a new free standing Supreme Court separating the highest appeal court from the second house of Parliament, and removing the Lords of Appeal in Ordinary from the legislature. On 12 June 2003 the Government announced its intention to do so.

At present the most senior judges, the Lords of Appeal in Ordinary, or Law Lords as they are often called, sit in the House of Lords. There are twelve of them. The House is the highest court in the land – the supreme court of appeal. It acts as the final court on points of law for the whole of the United Kingdom in civil cases and for England, Wales and Northern Ireland in criminal cases. Its decisions bind all courts below.

As members of the House of Lords, this means that they not only sit judicially, but are also able to become involved in the debate and subsequent enactment of Government legislation (although, in practice, they rarely do so). Creating a new Supreme Court will mean that the most senior judges will be entirely separate from the Parliamentary process.

It is important to be aware that the new Supreme Court will be a United Kingdom body legally separate from the England and Wales Courts since it will also be the Supreme Court of both Scotland and Northern Ireland. As such it falls outside of the remit of the Lord Chief Justice of England and Wales in his role as head of the judiciary of England and Wales.

The new Supreme Court is scheduled to be open for business in October 2009.”http://www.judiciary.gov.uk/about_judiciary/judges_and_the_constitution/supreme_court/index.htm

The judicial work of the current House of Lords will be transferred to the Supreme Court for the UK in 2006, following the enactment of the Constitutional Reform Act 2005. See a survey of their current judicial work:

http://www.parliament.uk/documents/upload/HofLBpJudicial.pdf  

The DCA provide a very brief summary of the background, roles and responsibilities of the Supreme Court for the UK on their website:

http://www.dca.gov.uk/supreme/index.htm This draws from their Consultation Document published in July 2003 (Read their executive summary as a timesaving device). http://www.dca.gov.uk/consult/supremecourt/index.htm Summary of Government’s response of July 2004:http://www.dca.gov.uk/consult/supremecourt/scresp.htm 

The existing Law Lords will become the first Justices of the Supreme Court in 2009. A list of the current Law Lords is found at:

http://www.parliament.uk/about_lords/the_law_lords.cfm  

The Lord Chancellor

 As a result of the Constitutional Reform Act 2005, the judicial role of the Lord Chancellor has been abolished. As of 3 April 2006, the Lord Chancellor’s judicial functions were transferred to the President of the Courts of England and Wales – the Lord Chief Justice, Lord Phillips – who is now the Head of the Judiciary. [Important Note: the Lord Chief Justice for England and Wales does not fall within the remit of the House of Lords – this being UK-wide.]. A summary of the key reforms can be found at: http://www.judiciary.gov.uk/about_judiciary/judges_and_the_constitution/constitutional_reform/index.htm 

The Judicial Appointments Commission (JAC)

  As we know, the Constitutional Reform Act enshrined judicial independence in statute (s 3 guarantee).  The JAC was established under s61 CRA 2005 – its aim being to increase the independence of the judiciary. 

From October 2006, the JAC implemented a new system for selecting judges. The framework document signed by Lord Falconer and Baroness Prashar (Lord Chancellor and Chairman of the JAC respectively) states that it is an executive non-departmental public body which possesses the following role [at paras 13 and 14]:

“ The Commission selects candidates for judicial office and recommends them to the Lord Chancellor for appointment. It is the Lord Chancellor who, in accordance with the provisions of the Act, makes the appointments or recommends the appointments to The Queen. 

The JAC is responsible for selections in relation to all judicial offices listed in Schedule 14 to the Act, as well as to the offices of the Lord Chief Justice, Heads of Division, Lords Justices of Appeal and High Court Judges. In the first year of operation some of the appointments are subject to transitional arrangements.”

Full transcript of the framework document: http://www.judicialappointments.gov.uk/docs/jac_framework_document.pdf  

Summary in press release: http://www.judicialappointments.gov.uk/press_release_high_ct_judges_311006.htm 

The JAC Chairman Baroness Prashar delivered a very clear and concise lecture on the reforms and the current role of the JAC on 6 November 2006 at Middle Temple.http://www.judicialappointments.gov.uk/docs/Middle_Temple_Guest_Lecture.pdf                      

House of Lords Reform Proposals

The DCA states that: “The Government believes a credible and effective second chamber of Parliament is vital to the health of our democracy.” 

There have been numerous proposals as to how this might be achieved.   

A chronology of events is available from the UK Parliament website up until March 2000. http://www.parliament.the-stationery-office.co.uk/pa/ld199798/ldbrief/ldreform.htm   Article by Alexandra Kelso, Reforming the House of Lords: navigating representation, democracy and legitimacy at Westminster. Parl. Aff. 2006, 59(4), 563-581. Kelso discusses the meaning of representation, democracy and legitimacy in the context of Lords Reform. She then surveys the proposals which have had the most impact on the debate over House of Lords Reform: the 1997 Labour Manifesto, the Wakeham Report in 2000, the 2001 White Paper, the 2002 PASC Report, and the 2002 Joint Committee Report. 

http://pa.oxfordjournals.org/cgi/reprint/gsl029?ijkey=y0M12Ql85zqzzAK&keytype=ref   

Report of the Royal Commission on the reform of the House of Lords chaired by Lord Wakeham – “A House for the Future” (known as the Wakeham Report, published January 2000): Executive Summary at: http://www.archive.official-documents.co.uk/document/cm45/4534/exec_sum.pdf 

 Useful overviews at: http://news.bbc.co.uk/1/hi/uk_politics/611734.stm 

And http://www.guardian.co.uk/lords/Story/0,,190350,00.html 

Full transcript: http://www.archive.official-documents.co.uk/document/cm45/4534/contents.htm  

See also: “Constitutional Reform: Next Steps for the House of Lords” (published 2003), together with the reports of the Joint Committee on House of Lords Reform (published 2002 and 2003) and the Government White Paper “The House of Lords: Completing the Reform”. at: http://www.dca.gov.uk/constitution/holref/holrefindex.htm  

Fifth Report of the Public Administration Select Committee (published February 2002). http://www.publications.parliament.uk/pa/cm200102/cmselect/cmpubadm/494/49402.htm See press release and summary of findings at: http://www.parliament.uk/parliamentary_committees/public_administration_select_committee/pasc_pn_05.cfm The Government’s response: http://www.publications.parliament.uk/pa/cm200102/cmselect/cmpubadm/794/79404.htm  

Extracts from the abovementioned reports are found in Fenwick and Phillipson, Text, Cases and Materials, pp. 341-417.  

The most recent proposals: 

House of Lords Reform Bill mentioned in Queen’s speech in 2005. Not yet introduced. http://news.bbc.co.uk/1/hi/uk_politics/4554271.stm 

On 15 November 2006 at the opening of the Parliamentary Session, the Queen stated in her speech that the government  ”will work to build a consensus on reform of the House of Lords and will bring forward proposals.”   http://news.bbc.co.uk/1/hi/uk_politics/6152534.stm 

Jack Straw, as Leader of the House of Commons, has the unenviable responsibility of reaching a cross-party consensus as to the reform of the upper chamber, whilst maintaining the pre-eminence of the Commons. His plans were leaked in the Sunday Times on 22 October 2006. http://www.timesonline.co.uk/article/0,,2087-2416022_1,00.html

See review of this at:http://politics.guardian.co.uk/lords/story/0,,1928945,00.html  

Lord Cunningham, chairman of the Joint Committee on Conventions is charged with broadly the same task as Straw and has recently unveiled a new report. See excellent article by Geoffrey Howe in the FT on 2  January 2007.http://www.ft.com/cms/s/ef45c328-9a8a-11db-bbd2-0000779e2340.html 

and further details at: http://news.bbc.co.uk/1/hi/uk_politics/6163398.stm

See speech by Lord Cunningham in House of Lords debate on 5 December 2006 (scroll down to relevant paras): http://www.publications.parliament.uk/pa/ld200405/ldhansrd/pdvn/lds06/text/61205-0001.htm 

Tony Blair has stated that the reform of the House of Lords will only proceed if a consensus is reached and has pledged that any reform will not be pushed through using the Parliament Acts. http://news.bbc.co.uk/1/hi/uk_politics/6085746.stm

Survey on failed proposals concerning the second chamber up until 2005:http://www.parliament.uk/commons/lib/research/notes/snpc-02973.pdf  

Recent special report from the Guardian: http://politics.guardian.co.uk/lords/0,,442877,00.html  

See also BBC Key stories on House of Lords reform, including cash for peerage investigations (see links on following page)http://news.bbc.co.uk/1/hi/uk_politics/4848746.stm

 MPs vote for elected second chamber March 2007

“The Commons voted unexpectedly by 337 to 224, a majority of 113, in favour of a 100 per cent elected Lords.” Some might see this as a delaying tactic over future reform for others it is a landmark in the modernisation of the British Parliament.

http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2007/03/08/nlords08.xml

Accountability – Freedom of Information Act 2000

The Freedom of Information Act 2000 entered fully into force on 1 January 2005. The Act was designed to improve transparent and open government by providing individuals with an enforceable right to obtain information held by public authorities.

The JISC briefing paper on the FOI Act published in 2002, provides a very useful information overview of the Act at:

http://www.jisclegal.ac.uk/freedomofinformation/foiaclong.htm

For more information on how the Act applies to public authorities – see their list of publications :

http://www.jisclegal.ac.uk/freedomofinformation/freedomofinformationPub.htm

The Information Commissioner’s Office is an independent authority designed to oversee the access to official information – including the implementation and enforcement of the Act.

http://www.ico.gov.uk/what_we_cover/freedom_of_information/the_basics.aspxThe

DCA (Department of Constituional Affairs) is the government department responsible for policy concerning the Freedom of Information Act.

http://www.foi.gov.uk/index.htm

The House of Commons Select Committee on Constitutional Affairs scrutinises the work of the DCA regarding freedom of information.

http://www.foi.gov.uk/reference/constitutionalAffairsCommittee.htm

The Committee on Constitutional Affairs published their seventh report in June 2006 which surveys the implementation and enforcement of the FOI. Their main criticisms concerned the delays in providing information in response to requests (which it notes must be done in a “reasonable time”) and also the Information Commissioner complaints resolution system. (They also voice concern over the long-term storage of electronic records).  Read the summary and introduction for a survey of what has happened in the first year of the life of the Act.

http://www.publications.parliament.uk/pa/cm200506/cmselect/cmconst/991/99102.htm

Practical implementation of the Act

The FOI was in the news with respect to a request for information made to the Home Office regarding the number of absconded prisoners. From April 2006, almost 700 prisoners have escaped from open prisons , 401 of these remain at large. Story of 6 January 2007. http://news.bbc.co.uk/1/hi/uk_politics/6237935.stm

The Home Office keeps a log of information it has released under the Act – the page concerning justice and prisons may be found at: http://www.homeoffice.gov.uk/about-us/freedom-of-information/released-information/

Examples of released information concerning prisoners who have absconded from open prisons may be found at:

http://www.homeoffice.gov.uk/about-us/freedom-of-information/released-information/?view=Search+results&foi_SearchTerm=absconded

There is a useful DCA account of the s31 “maintenance of good order and security in prisons” exemption and the operation of the public interest test - listing hypothetical examples of how this might work in practice.

http://www.foi.gov.uk/guidance/exguide/sec31/chap06.htm