Constitution Committee 6th Report
January 2, 2008
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
The Times- 22nd 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
“The Governance of Britain” and a New Chapter on Liberty?
November 6, 2007
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:
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
Modernisation of the Commons
November 6, 2007
Main issue: ‘Individual responsibility’; there has been frustration
amongst the opposition in government, as well as from some government
backbenchers that ministers can only be quizzed on topics of which they
are notified in advance, giving them an advantage in the way that they
have time to prepare answers, and with the help of civil servants. This
reduces their accountability.
Proposed changes: The Commons Modernisation Committee, who are
concerned with the practices and procedures of the House of Commons,
have proposed a reform to deal with the responsibility issue. Under the
proposal, each minister in charge of a major government department will
face a monthly 15 minute questioning. The topics involved have to be
ones for which they are responsible but are without notice, giving no
time for extensive preparation, as well as being a regular occurrence.
It needs to be approved by MPs, but the government itself has already
given its backing to the proposal.
Relevance: Is a potential reform of current government (in particular,
House of Commons), procedure.
By Rachael Toon
Link to article on Times Online:
http://www.timesonline.co.uk/tol/news/politics/article2689562.ece
The modernisation of the House of Commons was debated on 25 October 2007 .
The Leader of the House of Commons, Harriet Harman said:
‘I will do everything I can to protect the rights of Back Benchers, to hold the Government to account, to ensure proper and timely scrutiny of legislation, and to enable the House to hold the most open, effective and best informed democratic debates in the world’
To put the questioning of ministers into context - the consequences of improved accountability can be seen most clearly on important matters. For example, the effect could be that “Groundhog day” situations, where politicians repeat the same political banalities when tough questions are raised (see John Redwood’s comments ), may become less frequent. This may in turn drive progress forward on topical questions such as membership of the EU. Read the Commons debate and speeches at:
Waging War and the Royal Prerogative
January 5, 2007
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
Parliamentary Sovereignty
January 4, 2007
The Supremacy Debate – the EU
There are a number of articles on your reading list concerning Factortame and the debate over whether membership of the EU is a limit on the sovereignty of Parliament.
The “Metric Martyrs Case” (Thoburn v. Sunderland City Council) raised this issue again. However, Laws LJ took the opportunity, more controversially, to take the view that Parliamentary sovereignty might be altered by the common law. He stated obiter that “constitutional statutes” may only be expressly repealed whereas “ordinary” statutes are subject to the doctrine of implied repeal. His views are yet to be embraced by the judiciary or by Parliament.
In a case comment in the European Law Review, Arnull states that:
“Laws L.J. went on to hold that the traditional doctrine of Parliamentary sovereignty had in any event been modified by the common law, which now recognised a category of rights which were to be classified as constitutional or fundamental. It followed that “[w]e should recognise a hierarchy of Acts of Parliament: as it were ‘ordinary’ statutes and ‘constitutional’ statutes … a constitutional statute is one which (a) conditions the legal relationship between citizen and State in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights.” The ECA was, by force of the common law, a constitutional statute. Such statutes could not be impliedly repealed.” See EL Rev 2002, 27(3), 239-240. (available on WESTLAW) .
An interesting case comment which also argues that Laws LJ’s classification of a “constitutional” statute is an incomplete one since it does not include statutes governing the inter-relationship of the institutions of government, as usally provided for in any constitution is found at: EL Rev [2002] 27(6), 771-779 (available on WESTLAW).
The Parliament Acts and the Hunting Ban
More recently, the decision of R (on the application of Jackson) v. Attorney General [2005] UKHL 56; [2006] 1 AC 262 (HL) (or Jackson v. Attorney General) has generated much constitutional debate over the question of parliamentary sovereignty.
The appellants challenged the Hunting Act 2004 Act on the basis that it had been passed in reliance on s2(1) Parliament Act 1949, amended by s1 Parliament Act 1949. They contended, however, that the 1949 Act was invalid because the Parliament Act 1911 as amended by the 1949 Act did not authorise its own amendment – it could only have been passed with the consent of the Commons, the Monarch and the House of Lords. They took the view that the 1949 Act is a piece of delegated legislation.
The Lords held that the Parliament Act 1949 (and hence the Hunting Act 2004) was a valid Act of Parliament. On one hand, Lord Bingham stated that the validity of the 1949 Act had been recognised by governments of different political persuasions for the last 50 years. On the other hand, Lord Steyn stated that this could theoretically result in the Commons introducing undemocratic legislation. Lord Hope underlined this by saying there were few checks on the Commons, controlled by the government, other than the electorate.
Full judgment found at:http://www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd051013/jack.pdfSee
Case Comment at: Mark Elliott The Sovereignty of Parliament, the Hunting Ban and the Parliament Acts CLJ [2005] 65(1) pp 1-4. http://journals.cambridge.org/action/displayIssue?jid=CLJ&volumeId=65&issueId=01 [Use ATHENS login.]
See also the article from January 2007 by Richard Ekins Acts of Parliament and the Parliament Acts, L.Q.R. 2007, 123(JAN), 91-115 available on WESTLAW.
In addition, Bradley & Ewing state at pp 77-78 that the decision demonstrates also that: “While British tradition has been strongly against the courts reviewing the validity of primary legislation, the courts cannot escape the task of deciding whether a document for which legislative authority is claimed is in law an Act of Parliament.”
Accountability – Freedom of Information Act 2000
January 3, 2007
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:
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.
Conventions
January 2, 2007
Labour’s constitutional reform package raises questions about the nature and existence of some constitutional conventions.
Relationship between the House of Commons and the House of Lords
The Joint Committee on Conventions addresses such questions under its remit:
“accepting the primacy of the House of Commons, … to consider the practicality of codifying the key conventions on the relationship between the two Houses of Parliament which affect the consideration of legislation, in particular:
(A) the Salisbury-Addison convention that the Lords does not vote against measures included in the governing party’s Manifesto;(B) conventions on secondary legislation; (C) the convention that Government business in the Lords should be considered in reasonable time; (D) conventions governing the exchange of amendments to legislation between the two Houses;”
See http://www.parliament.uk/parliamentary_committees/joint_committee_on_conventions.cfm
The Committee have now published a report of their findings, dated 3 November 2006.
http://www.publications.parliament.uk/pa/jt/jtconv.htm
(The report is fairly lengthy and contains weighty annexes – just read the relevant sections. For example, we talked in class about whether the Salisbury Convention would be undermined if we had an elected second chamber. See pp 24-31 Volume 1 of the November 3 2006 Report).
Scottish Devolution – the Sewel Convention
A Memorandum by the Scottish Executive describes the Sewel Convention as follows:
“The Sewel convention is part of the devolution settlement, and is reflected in the Memorandum of Understanding between the UK Government and the Devolved Administrations. The convention is that Westminster will not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament. Where the Executive considers it appropriate that provisions on devolved matters should be included in a Westminster Bill, it will invite the Scottish Parliament to signify its consent to this by means of a Sewel motion, having explained the purpose and effect of the provisions in question in an Executive memorandum. If the Parliament approves a Sewel motion, the Minister for Parliamentary Business will write to the Leader of the House of Commons conveying the Parliament’s agreement and informing him of the terms of the Parliament’s resolution.”
