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

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 

The Sunday Times, 2 December

http://www.timesonline.co.uk/tol/news/world/us_and_americas/article2982640.ece

“A senior lawyer for the US Government has told the Court of Appeal in London that kidnapping foreign citizens is permissible under US law because the US Supreme Court has sanctioned it.”

Although commonly believed that the US may only use “extraordinary rendition” as
permitted kidnap of suspected terrorists, a senior lawyer (Alun Jones QC) for the
American government has told an inquiry that due to good American case law relating back to the 1860s on “bounty hunting”, the Supreme Court may not rule international kidnapping illegal.

An extradition treaty exists between the UK and the US, but apparently (case law
between the US and Mexico) the UK may not have any legal remedy to an abduction of a
British national. The US Justice Department refused comment on this assertion that the US may freely kidnap British citizens.

By Oscar Tang

The Telegraph, 3 December

“The US government’s view emerged during an Appeal Court hearing involving Stanley Tollman, a former director of Chelsea football club and a friend of Baroness Thatcher.”

 Further details found at:

http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2007/12/03/wkidnap103.xml

The extradition laws which came into force in 2003 are said to be unfair and biased against UK citizens. The effect is (a) onesided – ie giving the US more power than the UK when extraditing criminals; and (b) can be used against anybody – not just suspected terrorists – and increasingly against white collar criminals.

There is a useful summary of the concerns and legal framework in The Lawyer (from 2006)

http://www.thelawyer.com/cgi-bin/item.cgi?id=120584&d=386&h=388&f=387

“Control Orders Breach Human Rights, Lords Rule”

Daily Telegraph, 31/10/2007

The newspaper article deals with an objection by senior judges to the 18 hour home curfew
as it breaches the right to liberty (article 5 of the European Convention on Human Rights (ECHR)) and the right to fair trial (article 6 ECHR).Furthermore, they held that a 12-hour curfew was permitted and that suspected terrorists should be subject to “civil fair trial procedures”. which has been breached in some cases by the “special advocate procedure” .

Full story at:

http://www.telegraph.co.uk/news/main.jhtml;jsessionid=GMQFNYKNM215JQFIQMFCFF4AVCBQYIV0?xml=/news/2007/10/31/ncontrol131.xml

The foundation of the Rule of Law, as a moral principle, has been undermined, because
the human rights (including the right to liberty)  of persons subject to control orders have not been protected.

“Control orders breach human rights, law lords say”Guardian Unlimited, 31/10/2007 The government must rethink some aspects of control orders imposed on terrorism suspects, the law lords said today, while ruling that the overall system can remain in place. In a complex and lengthy series of decisions, Britain’s most senior judges said that the most restrictive aspect of the regime, an 18-hour home curfew, breached the human right to liberty. However, they held that shorter curfews, possibly up to 16 hours, were acceptable.

Full story at:

http://www.guardian.co.uk/terrorism/story/0,,2202266,00.html  

By Joanna Glajzer and Alec Liong   

Further information can be found at: 

BBC Q&A Control Orders

http://news.bbc.co.uk/1/hi/uk/6268959.stm

Control Orders: Key cases October 2007

http://news.bbc.co.uk/1/hi/uk/7070391.stm 

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

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

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

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

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

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:

http://www.commonsleader.gov.uk/output/page2128.asp