“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

Waging War and the Royal Prerogative

Should the power to declare war be made more democratic? Should it be the power of people rather than of Kings asks Michael Waite in the Guardian, July 2006.http://politics.guardian.co.uk/columnist/story/0,,1832004,00.html 

The House of Lords Constitution Committee’s Fifteenth Report of Session 2005-06 – “Waging War: Parliament’s role and responsibility” (published July 2006) recommended that the role of Parliament in deploying UK forces abroad be established in a new convention.  

The introduction to the report provides a very useful description of the nature of the prerogative power to declare war and deploy forces abroad, its evolution and the constraints upon it. Is accountability to Parliament enough? You might also read the conclusion to the report as a timesaving device. The Committee concluded at paragraph 103 that:  

“The exercise of the Royal prerogative by the Government to deploy armed force overseas is outdated and should not be allowed to continue as the basis for legitimate war-making in our 21st century democracy. Parliament’s ability to challenge the executive must be protected and strengthened. There is a need to set out more precisely the extent of the Government’s deployment powers, and the role Parliament can—and should—play in their exercise.” The Committee recommended: “that there should be a parliamentary convention determining the role Parliament should play in making decisions to deploy force or forces outside the United Kingdom to war, intervention in an existing conflict or to environments where there is a risk that the forces will be engaged in conflict.” [para 108] 

Which should comprise the following features [para 110]:

“(1)  Government should seek Parliamentary approval (for example, in the House of Commons, by the laying of a resolution) if it is proposing the deployment of British forces outside the United Kingdom into actual or potential armed conflict;

(2)  In seeking approval, the Government should indicate the deployment’s objectives, its legal basis, likely duration and, in general terms, an estimate of its size;

(3)  If, for reasons of emergency and security, such prior application is impossible, the Government should provide retrospective information within 7 days[169] of its commencement or as soon as it is feasible, at which point the process in (1) should be followed;

(4)    The Government, as a matter of course, should keep Parliament informed of the progress of such deployments and, if their nature or objectives alter significantly should seek a renewal of the approval.”

Summary found in press release at:  http://www.parliament.uk/parliamentary_committees/lords_press_notices/pn270706const.cfm

See also summary of Government’s response of 7 November 2006 at: http://www.parliament.uk/parliamentary_committees/lords_press_notices/pn231106const.cfm

Are Constitutional Conventions Binding?

  What are constitutional conventions?  

See p 20 Bradley & Ewing. There are a great number of different descriptions and meanings attributed to conventions, or in Dicey’s words, “constitutional conventions”.  Bradley & Ewing state that “constitutional conventions” are those rules and principles which “do not have the force of law but are of great importance in maintaining constitutional government”. 

If conventions do not attain the force of law, in what sense are they binding? 

This question is considered in your course reading, but also at great length in an article by Joseph Jaconelli in the Cambridge Law Journal 64(1), March 2005, pp. 149-176 (available from the KCL electronic library – you will have to use your ATHENS login).   http://journals.cambridge.org/action/displayIssue?jid=CLJ&volumeId=64&issueId=01 

Jaconelli argues that conventions are normative, in the sense that they prescribe, rather than merely describe behaviour. Conventions may be said to be binding on those to whom they apply. Remember the three part test set out by Sir Ivor Jennings which focuses on “precedent”, “actors” and the “reason for a rule”. Jaconelli uses this test as an underlying framework for his analysis and argues that conventions are social rules which are not legally enforceable in the courts. Any degree of enforceability or sense of obligation is placed on a non-legal basis. You might find useful the analysis of AG v Jonathan Cape (at pp 159-161) which was on your reading list.