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The Constitution of the United Kingdom: A Contextual Analysis
9781849469074, 9781849469104, 9781849469098

Author / Uploaded
Peter Leyland

Table of contents :
Preface to the Third Edition
Contents
Table of Cases
Table of Legislation
1. UK Constitution
PART I: CONSTITUTIONAL CONTEXTS
INTRODUCTION
WHAT IS LIBERAL DEMOCRACY?
FREEDOM OF EXPRESSION AND THE BROADCASTING AND PRINT MEDIA
PHONE HACKING, MEDIA INFLUENCE AND CONSTITUTIONAL OVERSIGHT
THE UK CONSTITUTION, CONSTITUTIONALISM AND GOOD GOVERNANCE
PART II: HISTORY
THE IMPORTANCE OF HISTORY
QUALIFYING ABSOLUTE MONARCHY
THE EMERGENCE OF PARLIAMENT AND THE PATH TO DEMOCRACY
DEFINING THE NATION: WHAT IS THE UNITED KINGDOM?
EMPIRE, COMMONWEALTH AND EUROPE
CONCLUSION
FURTHER READING
2. The Sources of the Constitution
INTRODUCTION
PART I: SOURCES OF THE CONSTITUTION
STATUTE LAW
THE COMMON LAW
EUROPEAN UNION LAW
EUROPEAN CONVENTION ON HUMAN RIGHTS
LEGAL TREATISES
THE LAW AND CUSTOMS OF PARLIAMENT
THE ROYAL PREROGATIVE
PART II: CONSTITUTIONAL CONVENTIONS
DEFINING CONVENTIONS
THE PRACTICAL IMPORTANCE OF CONSTITUTIONAL CONVENTIONS
CONCLUSION
FURTHER READING
3. Constitutional Principles
INTRODUCTION
PARLIAMENTARY SOVEREIGNTY
THE RULE OF LAW
SEPARATION OF POWERS
CONCLUSION: REDEFINITIONS OF POWER
FURTHER READING
4. The Crown and the Constitution
INTRODUCTION
WHAT IS THE ROYAL PREROGATIVE?
THE CONSTITUTIONAL ROLE OF THE MONARCH
DOES THE MONARCH RETAIN REAL POWER?
WHAT IS THE 'CROWN'?
PUBLIC INTEREST IMMUNITY
LIABILITY OF THE CROWN IN TORT AND CONTRACT
EVALUATION: REFORM OR ABOLITION?
CONCLUSION
FURTHER READING
5. Parliament
INTRODUCTION
PART I: ELECTIONS AND THE HOUSE OF COMMONS
THE ELECTORAL SYSTEM
ALTERNATIVES TO FIRST PAST THE POST?
ELECTRONIC VOTING
THE HOUSE OF COMMONS AND THE FORMATION OF A GOVERNMENT
PART II: THE HOUSE OF COMMONS
THE HOUSE OF COMMONS AND THE ROLE OF MPs
THE SPEAKER
GOVERNMENT AND OPPOSITION
PARLIAMENTARY PRIVILEGE
PARLIAMENTARY STANDARDS, THE CONDUCT OF MPs AND THE EXPENSES SCANDAL
PART III: THE HOUSE OF LORDS
INTRODUCTION AND HISTORY
COMPOSITION OF THE HOUSE OF LORDS
HOUSE OF LORDS: WHAT NEXT?
PART IV: PARLIAMENT AS LEGISLATOR
PUBLIC BILLS
PRIVATE MEMBERS\u2019 BILLS AND PRIVATE BILLS
PARLIAMENTARY SCRUTINY OF DELEGATED LEGISLATION
PART V: PARLIAMENT AS WATCHDOG
PARLIAMENTARY QUESTIONS
DEPARTMENTAL SELECT COMMITTEES
PUBLIC ACCOUNTS COMMITTEE AND THE NATIONAL AUDIT OFFICE
THE PARLIAMENTARY OMBUDSMAN
CONCLUSION
FURTHER READING
6. Government and Executive
INTRODUCTION
THE PRIME MINISTER
THE PRIME MINISTER AND THE CABINET
THE PRIME MINISTER: POLICY FORMATION AND IMPLEMENTATION
PRIME MINISTER'S PRESS OFFICE AND GOVERNMENT 'SPIN'
SHAPING GOVERNMENT DEPARTMENTS
POLITICAL ACCOUNTABILITY AND INDIVIDUAL MINISTERIAL RESPONSIBILITY
MINISTERIAL RESPONSIBILITY: ANSWERABILITY OR RESIGNATION?
CODES OF PRACTICE AND THE SCOTT REPORT
MINISTERIAL RESPONSIBILITY AND THE PRESS
THE CIVIL SERVICE
NEW PUBLIC MANAGEMENT AND EXECUTIVE ACCOUNTABILITY
THE CONSTITUTIONAL REFORM AND GOVERNANCE ACT 2010
GOVERNMENT OPENNESS AND THE FREEDOM OF INFORMATION ACT 2000
E-GOVERNMENT REVOLUTION
CONCLUSION
FURTHER READING
7. The Constitutional Role of the Courts
PART I: SURVEYING THE CONSTITUTIONALROLE OF THE COURTS
INTRODUCTION
COMMON LAW AND STATUTORY INTERPRETATION
REFORMING THE OFFICE OF LORD CHANCELLOR
APPOINTING AND DISMISSING JUDGES
A SUPREME COURT FOR THE UNITED KINGDOM
PART II: ADMINISTRATIVE LAW AND JUDICIAL REVIEW
INTRODUCTION TO ADMINISTRATIVE LAW
RED LIGHT AND GREEN LIGHT THEORY
THE IMPACT OF JUDICIAL REVIEW
DISTINGUISHING PUBLIC LAW FROM PRIVATE LAW
THE REQUIREMENTS OF STANDING
GROUNDS OF JUDICIAL REVIEW
THE QUESTION OF MERITS
JUDICIAL REVIEW CASES
PART III: THE CONSTITUTIONAL PROTECTION OF RIGHTS AND THE HUMAN RIGHTS ACT 1998
VERTICAL OR HORIZONTAL EFFECT
PROPORTIONALITY REVIEW
REPLACING THE HRA WITH A BRITISH BILL OF RIGHTS?
CONCLUSION
FURTHER READING
8. Devolution and Local Governance
INTRODUCTION
PART I: DEVOLUTION
SCOTTISH DEVOLUTION
WELSH DEVOLUTION
POWER-SHARING IN NORTHERN IRELAND
FUNDING DEVOLUTION
INTERGOVERNMENTAL RELATIONS
THE POLITICS OF DEVOLVED GOVERNMENT
RELATIONS WITH EUROPE
DEVOLUTION AND THE COURTS
PART II: DEVOLUTION AND ENGLAND
ADDRESSING THE WEST LOTHIAN QUESTION
DEVOLUTION AND PARLIAMENTARY REFORM
PART III: LOCAL GOVERNMENT
INTRODUCTION TO LOCAL GOVERNMENTIN THE UNITED KINGDOM
FROM LONDON TO MANCHESTER: THE CONSOLIDATION OF CITYWIDE GOVERNMENT?
THE FRAMEWORK OF LOCAL GOVERNMENT
THE FINANCING OF LOCAL GOVERNMENT
FROM COMPULSORY COMPETITIVE TENDERING TO BEST VALUE
LOCAL GOVERNMENT, CITIZEN PARTICIPATION AND THE BIG SOCIETY
ACCOUNTABILITY MECHANISMS
THE PROSPECTS FOR LOCAL GOVERNMENT
CONCLUSION
FURTHER READING
9. Conclusion: The UK Constitution
UK MEMBERSHIP OF THE EU
THE DYNAMICS OF DEVOLUTION
CONSTITUTIONAL PROTECTION OF CITIZEN RIGHTS
THE CASE FOR A CODIFIED CONSTITUTION?
FURTHER READING
Index

Citation preview

THE CONSTITUTION OF THE UNITED KINGDOM This acclaimed book provides a topical and contextual outline of the principles, doctrines and institutions that underpin the United Kingdom constitution. The third edition of The Constitution of the United Kingdom has been comprehensively revised and updated to take account of recent constitutional developments and debates. This includes: the revised framework for devolution following the 2014 referendum in Scotland, the constitutional ramifications of the realignment of UK politics reflected in the result of the 2015 general election and the debate over the possible replacement of the Human Rights Act 1998 with a British Bill of Rights. The chapters are written in sufficient detail for anyone coming to the subject for the first time to develop a clear and informed view of how the constitution is arranged and how it operates. The main themes include: discussion of the history, sources and conventions of the constitution; later chapters deal with: constitutional principles, the role of the Crown, Parliament and the electoral system, government and the executive, the constitutional role of courts including the protection of human rights, the territorial distribution of power between central, devolved and local government, and the European Union dimension. In addition, the book offers analysis of the evolution of the uncodified UK constitution, its strengths and perceived weaknesses, and of reforms aimed at its modernisation.

Cover description UK Constitution: To the Lighthouse Number Ten Downing Street, headquarters of the government and the Executive, is represented at the centre of the composition, both as a lighthouse and a beam of light. The relationship with parliamentary democracy is suggested by an iconic ballot box below the ‘10’. The time, 1215 on the face of Big Ben, is a reminder of Magna Carta and the long ancestry of the contemporary constitution. At the base of the purple triangular pyramidal lighthouse, the portcullis symbol stands for the Westminster Parliament, the legislative branch and the heart of UK politics. A civil servant in bowler hat and umbrella beside the portcullis represents the executive. Just above, the Union Jack, depicted in the form of beams of red on blue canton, juxtaposed with yellow stars. This is a reference to the limits of sovereignty and the UK’s relationship with the European Union, while also showing the constitutional protection of rights under the European Convention of Human Rights, now incorporated through the Human Right Act 1998. The symbols of the judicial branch and the rule of law in the form of the UK Supreme Court forms a counterbalance in the opposite upper corner. All three emblems in close proximity delineate the separation of powers and overlapping powers. The national emblems of the devolved parts of the UK: Wales (a dragon), Ireland (a shamrock) and Scotland (St Andrews Cross—white saltire on azure field, in the shape of pyramids) occupy the right hand side. The enthroned Queen Elizabeth II in coronation robes with royal standard (a red lion rampant) denotes constitutional monarchy. Putachad, Artist

Constitutional Systems of the World General Editors: Peter Leyland, Andrew Harding and Benjamin L Berger Associate Editors: Grégoire Webber and Rosalind Dixon In the era of globalisation, issues of constitutional law and good governance are being seen increasingly as vital issues in all types of society. Since the end of the Cold War, there have been dramatic developments in democratic and legal reform, and post-conflict societies are also in the throes of reconstructing their governance systems. Even societies already firmly based on constitutional governance and the rule of law have undergone constitutional change and experimentation with new forms of governance; and their constitutional systems are increasingly subjected to comparative analysis and transplantation. Constitutional texts for practically every country in the world are now easily available on the internet. However, texts which enable one to understand the true context, purposes, interpretation and incidents of a constitutional system are much harder to locate, and are often extremely detailed and descriptive. This series seeks to provide scholars and students with accessible introductions to the constitutional systems of the world, supplying both a road map for the novice and, at the same time, a deeper understanding of the key historical, political and legal events which have shaped the constitutional landscape of each country. Each book in this series deals with a single country, or a group of countries with a common constitutional history, and each author is an expert in their field. Published volumes The Constitution of the United Kingdom; The Constitution of the United States; The Constitution of Vietnam; The Constitution of South Africa; The Constitution of Japan; The Constitution of Germany; The Constitution of Finland; The Constitution of Australia; The Constitution of the Republic of Austria; The Constitution of the Russian Federation; The Constitutional System of Thailand; The Constitution of Malaysia; The Constitution of China; The Constitution of Indonesia; The Constitution of France; The Constitution of Spain; The Constitution of Mexico; The Constitution of Israel; The Constitutional Systems of the Commonwealth Caribbean; The Constitution of Canada; The Constitution of Singapore; The Constitution of Belgium; The Constitution of Taiwan; The Constitution of Romania Link to series website http://www.hartpub.co.uk/series/csw

The Constitution of the United Kingdom A Contextual Analysis Third Edition

Peter Leyland

OXFORD AND PORTLAND, OREGON 2016

Hart Publishing An imprint of Bloomsbury Publishing plc Hart Publishing Ltd 16C Worcester Place Oxford OX1 2JW UK

Bloomsbury Publishing Plc 50 Bedford Square London WC1B 3DP UK

www.hartpub.co.uk www.bloomsbury.com Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA www.isbs.com HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published 2016 © Peter Leyland Peter Leyland has asserted his right under the Copyright, Designs and Patents Act 1988 to be identified as Author of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. Crown copyright material is reproduced with the permission of the Controller of HMSO and the Queen’s Printer for Scotland. Any European material reproduced from EUR-lex, the official European Communities legislation website, is European Communities copyright. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN: PB: 978-1-84946-907-4 ePDF: 978-1-84946-909-8 ePub: 978-1-84946-908-1 Library of Congress Cataloging-in-Publication Data Names: Leyland, Peter, lecturer in law, author. Title: The constitution of the United Kingdom : a contextual analysis / Peter Leyland. Description: Third edition. | Portland, Oregon : Hart Publishing, 2016. | Series: Constitutional systems of the world | Includes bibliographical references and index. Identifiers: LCCN 2016001021 (print) | LCCN 2016001591 (ebook) | ISBN 9781849469074 (pbk. : alk. paper) | ISBN 9781849469081 (Epub) Subjects: LCSH: Constitutional law—Great Britain. Classification: LCC KD3989.L49 2016 (print) | LCC KD3989 (ebook) | DDC 342.41—dc23 LC record available at http://lccn.loc.gov/2016001021 Typeset by Compuscript Ltd, Shannon

Preface to the Third Edition This edition of the Constitution of the UK : A Contextual Analysis has been thoroughly updated to address the main constitutional developments since 2012. These include: the referendum in 2014 on Scottish Independence, the subsequent changes to Scottish devolution, modifications to the voting system at Westminster referred to as EVEL, new initiatives in local government, and the implications of significant case law in the area of judicial review and human rights. Once again, I am deeply grateful to many colleagues and friends for their help and support. Special thanks to my fellow editors Andrew Harding, Ben Berger, Grégoire Webber and Rosalind Dixon. I would also like to mention Gordon Anthony, Nicholas Bamforth, Nicola Lupo, Sandro Torre and Sebastian Payne. At Hart Publishing thanks go to Bill Asquith, Tom Adams and Mel Hamill. Finally, I would like to warmly congratulate Putachad for producing another brilliant cover. Peter Leyland 2 March 2016

vi

Contents Preface to the Third Edition��v Table of Cases��xiii Table of Legislation�� xvii 1. UK CONSTITUTION: CONTEXT AND HISTORY��1 PART I: CONSTITUTIONAL CONTEXTS��1 Introduction��1 What is Liberal Democracy?��2 Freedom of Expression and the Broadcasting and Print Media��4 Phone Hacking, Media Influence and Constitutional Oversight��8 The UK Constitution, Constitutionalism and Good Governance��11 PART II: HISTORY��14 The Importance of History��14 Qualifying Absolute Monarchy��14 The Emergence of Parliament and the Path to Democracy��17 Defining the Nation: What is the United Kingdom?��19 Empire, Commonwealth and Europe��21 Conclusion��23 Further Reading��23 2. THE SOURCES OF THE CONSTITUTION��25 Introduction��25 PART I: SOURCES OF THE CONSTITUTION��26 Statute Law��26 The Common Law��27 European Union Law��28 European Convention on Human Rights��30 Legal Treatises��31 The Law and Customs of Parliament��32 The Royal Prerogative��32

viii Contents

PART II: CONSTITUTIONAL CONVENTIONS��32 Defining Conventions��33 The Practical Importance of Constitutional Conventions��37 Conclusion��42 Further Reading��43 3. CONSTITUTIONAL PRINCIPLES��45 Introduction��45 Parliamentary Sovereignty��47 The Rule of Law��65 Separation of Powers��71 Conclusion: Redefinitions of Power��81 Further Reading��83 4. THE CROWN AND THE CONSTITUTION��85 Introduction��85 What is the Royal Prerogative?��87 The Constitutional Role of the Monarch��90 Does the Monarch Retain Real Power?��95 What is the ‘Crown’?��96 Public Interest Immunity��97 Liability of the Crown in Tort and Contract��98 Evaluation: Reform or Abolition?��99 Conclusion�� 101 Further Reading�� 102 5. PARLIAMENT�� 105 Introduction�� 105 PART I: ELECTIONS AND THE HOUSE OF COMMONS�� 108 The Electoral System�� 108 Alternatives to First Past the Post?�� 111 Electronic Voting�� 113 The House of Commons and the Formation of a Government�� 113 PART II: THE HOUSE OF COMMONS�� 115 The House of Commons and the Role of MPs�� 115 The Speaker�� 117 Government and Opposition�� 118

Contents ix

Parliamentary Privilege�� 119 Parliamentary Standards, the Conduct of MPs and the Expenses Scandal�� 120 PART III: THE HOUSE OF LORDS�� 125 Introduction and History�� 125 Composition of the House of Lords�� 127 House of Lords: What Next?�� 129 PART IV: PARLIAMENT AS LEGISLATOR�� 133 Public Bills�� 134 Private Members’ Bills and Private Bills�� 139 Parliamentary Scrutiny of Delegated Legislation�� 139 PART V: PARLIAMENT AS WATCHDOG�� 140 Parliamentary Questions�� 140 Departmental Select Committees�� 141 Public Accounts Committee and the National Audit Office�� 149 The Parliamentary Ombudsman�� 152 Conclusion�� 153 Further Reading�� 155 6. GOVERNMENT AND EXECUTIVE�� 157 Introduction�� 157 The Prime Minister�� 158 The Prime Minister and the Cabinet�� 160 The Prime Minister: Policy Formation and Implementation�� 163 Prime Minister’s Press Office and Government ‘Spin’�� 167 Shaping Government Departments�� 168 Political Accountability and Individual Ministerial Responsibility�� 171 Ministerial Responsibility: Answerability or Resignation?�� 172 Codes of Practice and the Scott Report�� 173 Ministerial Responsibility and the Press�� 175 The Civil Service�� 176 New Public Management and Executive Accountability�� 178 The Constitutional Reform and Governance Act 2010�� 182

x Contents

Government Openness and the Freedom of Information Act 2000�� 183 E-Government Revolution�� 186 Conclusion�� 188 Further Reading�� 189 7. THE CONSTITUTIONAL ROLE OF THE COURTS�� 191 PART I: SURVEYING THE CONSTITUTIONAL ROLE OF THE COURTS�� 191 Introduction�� 191 Common Law and Statutory Interpretation�� 192 Reforming the Office of Lord Chancellor�� 196 Appointing and Dismissing Judges�� 198 A Supreme Court for the United Kingdom�� 201 PART II: ADMINISTRATIVE LAW AND JUDICIAL REVIEW�� 203 Introduction to Administrative Law�� 203 Red Light and Green Light Theory�� 205 The Impact of Judicial Review�� 211 Distinguishing Public Law from Private Law�� 213 The Requirements of Standing�� 214 Grounds of Judicial Review�� 215 The Question of Merits�� 218 Judicial Review Cases�� 219 PART III: THE CONSTITUTIONAL PROTECTION OF RIGHTS AND THE HUMAN RIGHTS ACT 1998�� 222 Vertical or Horizontal Effect�� 225 Proportionality Review�� 226 Replacing the HRA with a British Bill of Rights?�� 236 Conclusion�� 240 Further Reading�� 241 8. DEVOLUTION AND LOCAL GOVERNANCE�� 243 Introduction�� 243 PART I: DEVOLUTION�� 246 Background to Devolution�� 246 Scottish Devolution�� 247 Welsh Devolution�� 255

Contents xi

Power-Sharing in Northern Ireland�� 258 Funding Devolution�� 262 Intergovernmental Relations�� 263 The Politics of Devolved Government�� 264 Relations with Europe�� 267 Devolution and the Courts�� 268 PART II: DEVOLUTION AND ENGLAND�� 273 Addressing the West Lothian Question�� 274 Devolution and Parliamentary Reform�� 276 PART III: LOCAL GOVERNMENT�� 279 Introduction to Local Government in the United Kingdom�� 279 From London to Manchester: The Consolidation of Citywide Government?�� 280 The Framework of Local Government�� 283 The Financing of Local Government�� 285 From Compulsory Competitive Tendering to Best Value�� 287 Local Government, Citizen Participation and the Big Society�� 288 Accountability Mechanisms�� 291 The Prospects for Local Government�� 292 Conclusion�� 293 Further Reading�� 294 9. CONCLUSION: THE UK CONSTITUTION: FACING THE FUTURE�� 297 UK Membership of the EU�� 298 The Dynamics of Devolution�� 300 Constitutional Protection of Citizen Rights�� 301 The Case for a Codified Constitution?�� 302 Further Reading�� 307 Index�� 309

xii

Table of Cases Court of Justice of the European Union Amministrazione della Finanze dello Stato v Simmenthal SpA (Case 106/77) [1978] ECR 629�� 53 R v Secretary of State for Transport, ex parte Factortame Ltd (Case C-213/89) [1990] ECR I-2433�� 54 Van Gend en Loos (Case 26/62) [1963] ECR 1�� 28, 52 European Court of Human Rights Hirst v United Kingdom (No 2), App no 74025/01, 6 October 2005�� 237 Lawless v Ireland (No 3) (1961) 1 EHRR 15�� 234 United Kingdom A v Secretary of State for the Home Department [2004] UKHL 56��233, 234 Anderson, Reid and Doherty v Scottish Ministers [2001] UKPC D5, [2002] HRLR 6�� 270 Anisminic v Foreign Compensation Commission [1969] 2 AC 147�� 217 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223�� 206, 207, 216, 218, 219, 226 Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2003] UKHL 37�� 214 Attorney-General v De Keyser’s Royal Hotel Ltd [1920] AC 508�� 88, 89 Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109�� 184 Attorney-General v Jonathan Cape Ltd [1976] QB 752�� 34 Axa General Insurance Ltd v Lord Advocate [2011] UKSC 46��271–73 Barrett v Enfield BC [2001] 2 AC 550�� 99 Begum case. See R (on the application of SB) v Head Teacher and Governors of Denbigh High School Belmarsh case. See A v Secretary of State for the Home Department Bradlaugh v Gossett (1884) 12 QBD 271�� 120 British Railways Board v Pickin [1974] AC 765�� 49

xiv Table of Cases Bromley v Greater London Council [1983] 1 AC 768�� 219 Bulmer v Bollinger [1974] 2 All ER 1226�� 28, 52 Burmah Oil Co Ltd v Lord Advocate [1965] AC 75�� 28, 68 Campbell v Mirror Group Newspapers Ltd [2004] 2 WLR 1232�� 226 Case of Proclamations (1611) 12 Co Rep 74�� 86 Conway v Rimmer [1968] AC 910�� 97 Corporate Officer of the House of Commons v Information Commissioner [2008] EWHC 1084 (Admin), [2008] WLR (D) 155��5 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374�� 89, 90, 216, 218 Credit Suisse v Allerdale BC [1997] QB 306�� 288 Darnel’s case (1627) 3 State Trials 36�� 16 Douglas v Hello! Ltd [2001] 2 WLR 992�� 226 Duncan v Cammell Laird and Co Ltd [1942] AC 624�� 97 Duport Steels Ltd v Sirs [1980] 1 WLR 142, HL�� 78 Ellen Street Estates v Minister of Health [1934] 1 KB 590�� 51 Entick v Carrington (1765) 19 State Tr 1029�� 27, 66 Five Knights’ case. See Darnel’s case Garland v British Rail Engineering Ltd [1983] 2 AC 751�� 195 GCHQ case. See Council of Civil Service Unions v Minister for the Civil Service Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 3 All ER 411�� 224 H v Lord Advocate [2012] UKSC 24�� 26 Hazell v Hammersmith and Fulham LBC [1992] 2 AC 1�� 288 Heather v Leonard Cheshire Foundation and HM Attorney-General [2001] EWHC Admin 429��225, 226 Imperial Tobacco v Lord Advocate [2012] UKSC 61�� 271 Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617�� 214 Jackson v Attorney-General [2005] UKHL 56, [2006] 1 AC 262�� 48, 49, 62, 65, 126, 137, 194 Liversidge v Anderson [1942] AC 206�� 68 Lord Chancellor’s Practice Direction [1966] 1 WLR 1234�� 193 M v Home Office [1994] 1 AC 377��27, 77, 220 Manchester City Council v Pinnock [2010] UKSC 45�� 239 Martin v HM Advocate [2010] UKSC 10�� 270 Nottingham City Council v Secretary of State for the Environment [1986] AC 240�� 219 O’Reilly v Mackman [1983] 2 AC 237�� 213 Padfield v Minister for Agriculture, Fisheries and Food [1968] AC 997�� 217 Pepper v Hart [1993] 1 All ER 42�� 193

Table of Cases xv Porter v Magill [2001] UKHL 67, [2002] 1 All ER 465�� 291 Prohibitions del Roy (1607) 77 ER 1342, 12 Co Rep 63�� 38, 74 R v A (No 2) [2002] 1 AC 45�� 224 R v British Broadcasting Corporation, ex parte Prolife Alliance [2003] UKHL 23, [2003] 2 WLR 1403�� 229 R v Chaytor [2010] UKSC 52�� 124 R v Chief Constable of West Midlands Police, ex parte Wiley [1995] 1 AC 274�� 97 R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan [1993] 2 All ER 853�� 214 R v Lord Chancellor, ex parte Witham [1997] 2 All ER 77�� 220 R v North and East Devon Heath Authority, ex parte Coughlan [2000] 2 WLR 622 �� 221 R v Panel on Takeovers and Mergers, ex parte Datafin [1987] 1 All ER 564�� 213 R v Secretary of State for Employment, ex parte Equal Opportunities Commission [1995] 1 AC 1�� 54 R v Secretary of State for Foreign Affairs, ex parte World Development Movement Ltd [1995] 1 WLR 386��215, 220 R v Secretary of State for Social Services, ex parte Child Poverty Action Group [1990] 2 QB 540�� 215 R v Secretary of State for the Environment, ex parte Rose Theatre Trust Co [1990] 1 QB 504�� 215 R v Secretary of State for the Home Department, ex parte Brind [1991] 1 AC 696�� 68 R v Secretary of State for the Home Department, ex parte Cheblak [1991] 1 WLR 890�� 80 R v Secretary of State for the Home Department, ex parte Daly [2001] 3 All ER 433�� 227 R v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995] 2 All ER 244��89, 221 R v Secretary of State for the Home Department, ex parte Northumbria Police Authority [1989] QB 96�� 89 R v Secretary of State for Transport, ex parte Factortame (No 2) [1991] 1 AC 603, [1991] 3 CMLR 769��53, 195 R v Shayler [2002] UKHL 11�� 229 R (on the application of Bradley) v Secretary of State for Work and Pensions [2009] QB 114��152, 153 R (on the application of Cart) v Upper Tribunal [2011] UKSC 28�� 210 R (on the application of Chester) v Secretary of State for Justice and McGeoch v Lord President of the Council [2013] UKSC 63�� 237 R (on the application of Equitable Members Action Group) v HM Treasury [2009] EWHC 2495 (Admin)�� 153

xvi Table of Cases R (on the application of Evans) v Attorney-General [2015] UKSC 21�� 94 R (on the application of Mohamed) v Secretary of State for Foreign Affairs [2010] EWCA Civ 65�� 98 R (on the application of Q) v Secretary of State for the Home Department [2003] EWHC 195 Admin, The Times, 20 February 2003�� 79 R (on the application of the Prolife Alliance) v British Broadcasting Corporation [2002] 2 All ER 756, CA�� 227, 229, 236 R (on the application of Rogers) v Swindon NHS Primary Care Trust and Secretary of State for Health [2006] EWCA Civ 392�� 233 R (on the application of SB) v Head Teacher and Governors of Denbigh High School [2005] EWCA Civ 199, [2005] 2 All ER 396; [2006] UKHL 15�� 231, 232, 236 R (on the application of South Wales Sea Fisheries) v National Assembly for Wales [2001] EWHC Admin 1162, [2002] RVR 134�� 271 R (on the application of Ullah) v Special Adjudicator [2004] UKHL 26�� 238 Ridge v Baldwin [1964] AC 40�� 217 Roberts v Hopwood [1925] AC 578�� 218 Robinson v Secretary of State for Northern Ireland [2002] UKHL 32��271, 272 Roy v Kensington and Chelsea and Westminster Family Practitioner Committee [1992] 1 AC 624�� 213 Starrs and Chalmers v Procurator Fiscal, Linlithgow [2000] HRLR 191�� 270 Stockdale v Hansard (1839) 9 Ad & El 1�� 120 Thoburn v Sunderland City Council [2003] QB 151, [2002] 3 WLR 247�� 26, 55 Wednesbury case, See Associated Provincial Picture Houses Ltd v Wednesbury Corporation X (Minors) v Bedfordshire CC [1995] 2 AC 633�� 99 YL v Birmingham City Council [2007] UKHL 27��225, 226 United States Brown v Board of Education of Topeka 347 US 483 (1954)�� 194 Bush v Gore 531 US 98 (2000)��194, 199 Marbury v Madison (1803) 1 Cranch 137, 5 US 137 (1803)��50, 194 US v Nixon 418 US 683 (1974)�� 72

Table of Legislation European European Constitution�� 29 European Convention on Human Rights�� 3, 25, 27, 30, 31, 45, 50, 57, 67, 192, 195, 196, 223, 225–28, 236–40, 270, 302 Art 2��227, 233 Art 3��79, 227 Art 4(1)�� 227 (2)�� 227 (3)�� 227 Art 5��227, 234, 235, 270 Art 6�� 76, 210, 270 Art 7�� 227 Art 8�� 79, 225, 228 Arts 8–11�� 227 Art 9�� 231 Art 10�� 4, 230 (2)�� 229 Art 14�� 235 Art 15�� 234 Art 46�� 237 Protocol 1�� 227 Treaty of Amsterdam��28, 298 Treaty of Lisbon 2007��28–30, 52, 56, 57, 298, 299 Treaty of Maastricht (Treaty on European Union) (TEU)�� 28, 116, 135, 244, 298 Art 3B�� 244 Art 4.3�� 53 Art 5.3�� 244 Art 5.4�� 244 Treaty of Nice��28, 298 Treaty of Rome 1957��22, 27, 28, 52, 53 Art 5�� 53 Art 119�� 54 Treaty on the Functioning of the European Union (TFEU) Art 48(6)�� 56 Art 157�� 54

xviii Table of Legislation France Constitution Art 2�� 232 Loi no 2002-228 of 15 March 2004�� 232 Ireland Constitution 1937�� 21 Italy Constitution 1948 Art 104�� 199 Art 138�� 62 Law 59/97�� 170 South Africa Constitution 1996��2 United Kingdom Primary Legislation Acquisition of Land Act 1919�� 51 s 7(1)�� 51 Act of 1543�� 19 Act of Settlement 1701�� 17, 26, 41, 46, 74, 77, 201 Act of Union 1536��19, 247 Act of Union 1707��20, 27, 55, 246, 255 Act of Union 1800��20, 21, 27 Anti-Terrorism, Crime and Security Act 2001��55, 233, 234, 236 Appellate Jurisdiction Act 1876�� 129 Audit Commission Act 1998�� 291 Bill of Rights 1689�� 17, 19, 26, 40, 41, 45, 55, 63, 73, 94, 106, 119, 195 Art I�� 17 Art IV�� 17 Art VI�� 17 Art IX��49, 106, 119, 124 British Railways Act 1968�� 49 Broadcasting Act 1990��9 Broadcasting Act 1996 s 3(3)��9

Table of Legislation xix Communications Act 2003�� 6, 187 s 319��7 s 320��7 Constitutional Reform Act 2005�� 41, 46, 75, 76, 81, 129, 191, 197, 200–03 Pt 3�� 201 s 3�� 197 s 18�� 198 s 26�� 202 s 27�� 202 s 40��249, 270 Sch 9�� 249 Constitutional Reform and Governance Act 2010�� 39, 174, 176, 182, 183 Pt 1�� 90 Pt 2�� 90 s 3�� 182 s 5�� 182 s 6�� 182 s 7(4)�� 182 s 8�� 182 Criminal Justice Act 1988 s 171�� 89 Criminal Justice and Public Order Act 1994�� 67 Crown Proceedings Act 1947 s 1�� 98 s 2�� 98 s 28�� 97 Damages (Asbestos-related Conditions) (Scotland) Act 2009�� 272 Data Protection Act 1998�� 187 Defence Act 1842�� 89 Deregulation and Contracting Out Act 1994�� 80, 139, 195 Education Act 1944�� 279 Employment Act 1980�� 79 Employment Protection (Consolidation) Act 1978�� 176 Environmental Protection Act 1990 s 159�� 96 Equal Pay Act 1970�� 176 European Communities Act (ECA) 1972�� 27, 28, 45, 52, 54, 57, 195 s 2�� 195 (1)�� 54, 57 (2)��54, 267 s 3��54, 195

xx Table of Legislation European Parliamentary Elections Act 1999�� 63 European Union Act 2011�� 29, 30, 55–57, 62, 300 s 2�� 56 (3)(a)�� 56 s 3�� 56 s 4�� 56 s 5�� 56 s 6�� 56 s 18�� 57 European Union (Amendment) Act 2008�� 29, 52 Federation of Malaya Independence Act 1947�� 21 Fixed Term Parliaments Act 2011��39, 92, 160 Freedom of Information Act 2000�� 5, 82, 98, 123, 146, 157, 163, 177, 183–86, 188 Pt II��98, 184 s 1�� 184 s 23�� 184 s 24�� 184 s 26�� 184 s 50��5 s 53�� 185 Freedom of Information (Scotland) Act 2002 s 30�� 266 Government of Ireland Act 1914�� 63 Government of Ireland Act 1920��20, 259 Government of Wales Act 1998��27, 55, 202, 246, 255, 256, 269, 271 ss 3–7�� 255 s 22(2)�� 256 ss 64–68�� 255 Sch 2�� 256 Government of Wales Act 2006�� 255, 257, 258, 271, 300 s 93�� 257 s 94�� 257 s 95�� 271 s 108(4)�� 271 (5)�� 271 ss 110–115�� 258 s 114(2)�� 258 Sch 7�� 258 Greater London Authority Act 1999�� 280 s 154�� 282 s 155�� 282 Sch 23�� 282

Table of Legislation xxi Greater London Authority Act 2007�� 281 Pt VI�� 281 Health and Social Care Act 2008 s 145�� 226 Health and Social Care Act 2012�� 153 House of Lords Act 1999��128, 129 Housing Act 1925�� 51 Housing Act 1985�� 279 Pt III�� 279 House of Lords Act 1999�� 63 Human Rights Act (HRA) 1998�� 3, 4, 25, 27, 30, 45, 50, 55, 57, 58, 67, 76, 79, 81, 82, 192, 195, 196, 205, 210, 214, 215, 218, 222–41, 270, 297, 301–03, 305 s 2��238, 239 s 3��223, 224, 226, 238 (1)�� 224 s 4�� 224, 235, 238 s 6�� 226, 231, 236 (2)�� 225 (3)(b)�� 225 s 7�� 215 s 19�� 225 Hunting Act 2004��49, 63, 137 Identity Cards Act 2006�� 138 Indian Independence Act 1947�� 21 Intelligence Services Act 1994�� 163 Interpretation Act 1978�� 193 Irish Free State (Agreement) Act 1922�� 21 Legal Aid, Sentencing and Punishment of Offenders Act 2012��69, 222 Legislative and Regulatory Reform Act 2006�� 194 Life Peerage Act 1958��63, 128 Local Government Act 1888�� 279 Local Government Act 1894�� 279 Local Government Act 1933�� 279 Local Government Act 1972�� 279, 283, 284 s 101�� 285 s 137�� 289 s 151�� 291 Local Government Act 1974 Pt III�� 291 Local Government Act 1985��279, 284 Local Government Act 1988 s 2�� 287

xxii Table of Legislation Local Government Act 1992 s 13(1)�� 284 Local Government Act 1999�� 287 Pt II�� 286 s 3�� 287 s 6�� 287 Local Government Act 2000��61, 285 Pt I�� 288 Pt II�� 289 Pt III�� 291 s 2�� 288 s 3�� 288 s 4�� 289 s 8�� 289 s 11�� 289 s 12�� 289 s 21�� 289 s 34�� 61 ss 34–36�� 289 Local Government Devolution Act 2015�� 293 Local Government Finance Act 1982�� 291 Local Government Finance Act 1992�� 285 Local Government (Scotland) Act 1994�� 284 Local Government (Wales) Act 1994�� 284 Localism Act 2011��61, 62, 279, 282, 290–93 s 1�� 291 s 21�� 62 s 53(3)�� 62 s 72�� 62 Sch 2�� 62 Magna Carta 1215��14, 15, 55, 73, 86, 222, 301 Art 39��15, 222 Mental Health (Public Safety and Appeals) (Scotland) Act 1999 s 1�� 270 Merchant Shipping Act 1988�� 53 Pt II�� 54 s 14�� 53 Metropolis Management Act 1855�� 218 Ministers of the Crown Act 1975�� 169 Municipal Corporation Act 1835�� 279 National Audit Act 1983�� 150 National Health Service and Community Care Act 1990 s 60�� 96

Table of Legislation xxiii Nationality, Immigration and Asylum Act 2002�� 79 s 55�� 79 Nigeria Independence Act 1960�� 51 Northern Ireland Act 1998�� 27, 202, 246, 258–60, 269, 272 Pt II�� 260 s 5(2)�� 260 (6)�� 260 s 16(8)�� 272 s 68�� 259 s 73�� 259 Northern Ireland (Elections) Act 1998 s 1�� 260 Northern Ireland (St Andrews Agreement) Act 2006�� 261 Official Secrets Act 1911��176, 183 s 2�� 183 Official Secrets Act (OSA) 1989��176, 183, 222, 229 s 1�� 229 s 4�� 229 Overseas Development and Co-operation Act 1980 s 1�� 220 Parliament Act 1911�� 19, 27, 36, 39–42, 59, 63–65, 92, 126, 128, 137, 138, 159, 160 s 2�� 64 (1)�� 63 Parliament Act 1949��19, 41, 63–65, 126, 137, 138 Parliament Recognition Act 1689�� 17 Parliamentary and Health Services Commissioners Act 1987�� 152 Parliamentary Commissioner Act 1967�� 152 Sch 1�� 152 Sch 2�� 152 Parliamentary Standards Act 2009�� 123 Petition of Right 1628��15, 16, 26 Police and Criminal Evidence Act 1984�� 25 Political Parties, Elections and Referendums Act 2000�� 109 Prevention of Terrorism Act 2005�� 236 Prison Act 1952 s 47(2)�� 227 Public Order Act 1986�� 222 Race Relations Act 1976�� 176 Recall of MPs Act 2015 s 1�� 124 Reform Act 1832�� 18, 55 Reform Act 1867��18, 31, 55

xxiv Table of Legislation Reform Act 1883�� 18, 55 Reform Act 1884�� 18, 55 Regional Assemblies (Preparations) Act 2003 s 1�� 61 Rent Act 1977 Sch 1�� 224 Representation of the People Act 1918�� 27 Republic of Ireland Act 1948�� 21 Scotland Act 1979�� 60 Scotland Act 1998��27, 55, 202, 246, 248, 250, 251, 253, 256, 258, 269, 270 Pt IV�� 251 ss 5–8�� 249 s 28�� 50 ss 28–39�� 250 s 29�� 272 (2)(b)�� 248 (d)�� 239 s 44�� 270 s 45�� 249 s 46�� 249 s 98�� 249 Sch 5�� 248 Sch 6�� 249 Scotland Act 2012�� 251 Scotland Act 2016��244, 248 Security Services Act 1989 s 3�� 66 Senior Courts Act 1981��213, 220 s 31(3)�� 214 Sex Discrimination Act 1975�� 176 Sexual Offences (Amendment) Act 2000�� 63 Statute of Westminster 1931�� 21 Supreme Court Act 1981. See Senior Courts Act 1981 Town and Country Planning Act 1971�� 288 Trade Union and Labour Relations Act 1974�� 78 Transport Act 2000 ss 163–77�� 282 Transport (London) Act 1969�� 219 Treaty of Union 1707�� 20 Tribunals Courts and Enforcement Act 2007�� 210 Wales Act 1979�� 60 Wales Act 2014�� 258 War Crimes Act 1991�� 63

Table of Legislation xxv War Damages Act 1965�� 28, 68 Welsh Church Act 1914�� 63 Youth Justice and Criminal Evidence Act 1999�� 224 Zimbabwe Act 1979�� 22 Secondary Legislation Civil Procedure Rules (SI 1998/3132) Pt 54�� 213 Defence of the Realm Regulations�� 88 Rules of the Supreme Court (SI 1965/1776) Ord 53�� 213 South Wales Sea Fisheries (Variation) Order 2001 (SI 2001/1338)�� 271 United States Constitution��14, 74, 142, 199, 236 Art II, s 2�� 199 Patriot Act 2001�� 236

xxvi

1 UK Constitution Context and History

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Democracy – Freedom of Expression – Mass Media – Constitutionalism – Good Governance – History – Monarchy – Parliament – United Kingdom – Empire – Commonwealth – Europe PART I: CONSTITUTIONAL CONTEXTS INTRODUCTION

O

UR DISCUSSION BEGINS by explaining why the u nwritten UK constitution is unusual. In general the constitution is the text that sets out the fundamental and superior law of the nation. It not only describes the main institutions of the state, but also provides a framework of basic rules that determine the relationship between these institutions. In addition, it will usually provide in outline the legal and non-legal rules and procedures that define the system of central and local government. At the same time, the constitution normally places limits on the exercise of power and sets out the rights and duties of individual citizens. Tom Paine explained that it is the property of a nation, and not of those who exercise the government: ‘A constitution is a thing antecedent to the government, and always distinct there from.’1 In nearly every other state the term constitution refers to this document (or series of documents) that contains this fundamental and 1

T Paine, Rights of Man [1791] (London, Penguin, 1969) 213.

2 UK Constitution

superior law of the nation. The constitution of the United Kingdom is unwritten/uncodified in the sense that it is not contained in any single document. Furthermore, a codified constitution, as a form of higher order law, will generally be entrenched. A specified procedural device (eg a referendum or a higher majority plus federal ratification) must be followed to introduce changes, which makes a codified constitution relatively difficult to amend. In contrast to most others, the UK constitution is not entrenched. In consequence, it is relatively flexible, in the sense that any aspect can be changed by way of ordinary legislation and certain aspects can be modified by convention (discussed in Chapter 2). The next point to stress is that constitutions will often be designed to deliver a particular system of government, and, at the same time, respond to prevailing local conditions. The founding fathers who drafted the constitution of the United States were keen to include strong institutional inhibitions on the exercise of anything approximating to kingly powers, while also creating a federation with a territorial division of authority between central government and State governments. On the other hand, the Soviet constitutions in Russia under Lenin and Stalin following the revolution in 1917 were conceived to deliver an ideological commitment to a socialist state of workers and peasants. The capitalist system of economics and individual property is expressly rejected in the text of these constitutions. We might compare the South African constitution, which followed a protracted struggle to overturn a previous regime based on apartheid. The 1996 constitution seeks to achieve reconciliation between ethnic groups, and it is intended to create a democratic state committed to non-racialism and non-sexism and to the advancement of human rights and freedoms and the achievement of equality. The United Kingdom lacks a written constitution which has been custom-built to achieve particular goals, but rather the nation has acquired in piecemeal fashion over the span of several centuries a constitution which supports a liberal democratic system of government. WHAT IS LIBERAL DEMOCRACY?

Next, we need to be clear about what is meant by liberal democracy.2 In setting out a model of democracy Professor Sunstein has explained 2 For further discussion see J Morison, ‘Models of Democracy: From Representation to Participation’ in J Jowell and D Oliver (eds), The Changing Constitution, 5th edn (Oxford, Oxford University Press, 2005).

Constitutional Contexts 3

that ‘the central goal of a constitution is to create the preconditions for a well functioning democratic order, one in which citizens are genuinely able to govern themselves,’3 and he advocates a form of deliberative democracy which is marked out by political accountability and a high degree of reflectiveness and a general commitment to reason giving. More commonly, this term liberal democracy refers to the fact that power and legitimacy are reached through the indirect consent of the population as a whole. The consent to be governed is achieved after an electoral process delivers representatives to a Parliament. The majority in Parliament vote for laws which, to some extent at least, reflect the will of the majority. However, when looking at constitutional systems, it would be a mistake to believe that a system of majority rule, in itself, satisfies the credentials of liberal democracy. This is because, while it may be accepted that in some matters the will of the majority should prevail, in regard to others, a crucial feature of ‘liberal democracy’ is that there are limitations on majority rule. For example, the interests of minorities must always be protected to some degree. In practical terms, this means that political parties may offer policy choices to the electorate regarding say, higher or lower levels of taxation, the role of the public sector, and particular policies to pursue in education, health, social services, and law and order. However, the constitutional arrangements in a liberal democratic system must prevent the tyranny of the majority from prevailing by establishing strong constitutional guarantees. This is normally achieved in the field of civil liberties by means of a charter or bill of rights, which will set out the extent of rights which will be protected (eg freedom of speech and religion, freedom to demonstrate, freedom from arbitrary arrest, and so on). However, the United Kingdom with its uncodified constitution relied on ordinary laws, and a tradition of restraint demonstrated by the executive organs of the state, until the Human Rights Act (HRA) 1998 incorporated the European Convention on Human Rights into domestic law.

3 C Sunstein, Designing Democracy: What Constitutions Do (Oxford, Oxford University Press, 2001) 6.

4 UK Constitution FREEDOM OF EXPRESSION AND THE BROADCASTING AND PRINT MEDIA

A key hallmark of liberal democratic systems is the recognition of basic freedoms and, in particular, freedom of expression. It is worth briefly pausing to see how the role of press and broadcasting media operates and is regulated under the UK constitution. First, as we just noted, this right to free expression, included under Article 10 of the European Convention on Human Rights, has become integrated as part of domestic law since the enactment of the HRA 1998 (which is discussed in Chapter 7). Although this freedom might be limited under specific laws (eg incitement to racial hatred, or defamation) freedom of expression must allow for a general right to project opinions through the publication of newspapers, pamphlets, and magazines and through access to television, radio, and cinema. The magnification of the political function of the media might be understood in terms of its ‘capacity to discover and publish what authority wished to keep quiet, and to give expression to public feelings which were not, or could not be, articulated by the formal mechanisms of democracy.’4 It was this potential which turned the broadcasting media into major actors on the public scene. Politicians employ the mass media to further their ends, but they are also extremely wary of the capacity of the press and broadcasting media to bring the mighty down by rooting out incompetence and wrongdoing. The demise of Richard Nixon as President of the United States, following the exposure of the Watergate break-in, and its coverup, is a classic example of investigatory reporting providing the basis for subsequent official action, eventually resulting in the President’s resignation. Ministerial resignations in recent years have been attributable in part at least, to campaigns pursued in the press and broadcasting media.5 In an investigatory capacity the media go beyond providing readers, listeners and viewers with information and the range of ideas and opinions which enables them to participate in a political democracy by performing a vital role as public watchdog.6 The scandal in 2009 which 4

E Hobsbawn, The Age of Extremes (London, Abacus, 1994) 581. One such example was the resignation of the Secretary of State for Transport, Stephen Byers, in May 2002. 6 E Barendt, Freedom of Speech, 2nd edn (Oxford, Oxford University Press, 2007) 418. 5

Constitutional Contexts 5

erupted over the excessive and in some cases fraudulent expenses claimed by MPs can be cited as a high-profile example at the core of the political system.7 The disclosure of these abuses was triggered by journalists from the Sunday Times (Heather Brooke and Jon UngoedThomas) and Sunday Telegraph (Ben Leapman) making use of the Freedom of Information Act 2000. They had requested further information on MPs’ expenses, including the disclosure of claim forms and supporting documents. These applications had been refused. They followed the procedure under section 50 to refer the matter to the Information Commissioner and then to the Information Tribunal. Both decided that a fuller breakdown of the expenses should be provided. On final appeal to the High Court it was confirmed that a correct balance had been reached between the privacy of MPs and the legitimate public interest in the disclosure of this information, given the deep flaws in the additional costs allowance system for MPs which had been identified.8 Not only did this reporting result in a revision of the system for claiming expenses but also a number of MPs and peers were successfully prosecuted for fraudulent claims. In other words, in a positive way the media is capable of acting as an important counterweight to politicians/ government in a system where, as we shall see, the executive organs of the state are strong. (For further discussion of this scandal in relation to Parliament, see Chapter 5.) This capacity of the media to act as a check on the democratic process is clearly very important. The experience in Italy in the first decade of this century draws attention to the potential problems if the independence of the broadcasting media is undermined: ‘In a country resting on universal suffrage, … the corruption of information—through the overwhelming control of the media, especially television, both private and state—is a pre-condition for the debasement of democracy.’9 The Italian state institutions operating under the constitution were not able adequately to withstand the conflicts of interest that arose with the election of a Prime Minister who was not only in a position as the owner of national TV channels to manipulate opinion in his favour, but also, 7 P Leyland, ‘Freedom of Information and the 2009 Parliamentary Expenses scandal’ [2009] PL 675. 8 Corporate Officer of the House of Commons v Information Commissioner and others [2008] EWHC 1084 (Admin); [2008] WLR (D) 155. 9 M Jacques, ‘The Most Dangerous Man in Europe’, The Guardian 5 April 2006.

6 UK Constitution

as Prime Minister, capable of using his influence to make appointments to the state broadcasting channels to suit his interests. Perhaps surprisingly, there is no specific constitutional protection in the United Kingdom, but could a comparable situation arise here? First, as Members of Parliament, ministers already have a duty to act in the interests of the nation as a whole, as well as special duties to their constituents. Second, under the ministerial code of practice (referred to in Chapter 6) all ministers, including the Prime Minister, must ensure that no conflict arises, or appears to arise, between their public duties and their private interests. The list of declared personal interests must cover all kinds of financial interests, as well as relevant non-financial private interests, such as links with outside organisations (including broadcasting organisations). However, there have never been any formal restrictions on private ownership of the print media, and the press is subject to two forms of self-regulation carried out by the Independent Press Standards Organisation (IPSO) set up in 2014 to replace the Press Complaints Commission and the Independent Monitor of the Press (IMPRESS). Many national newspapers continue to display strongly partisan allegiances. For example, the Daily Telegraph and Daily Mail have consistently supported the Conservative Party, while the Daily Mirror has endorsed Labour. On the other hand, The Sun, the News of the World, The Times and the Sunday Times, owned by Rupert Murdoch, switched allegiance from Conservative to Labour in 1997 and then back to the Conservatives between 2010 and 2015. As the discussion of the News of the World scandal below demonstrates, newspapers reflect the views of their owners in their editorials, and they seek to influence the political opinions of their readers, especially at election times. However, by way of contrast, cinema, radio, and television have been subject to varying kinds of statutory regulation. Technical progress has made the media increasingly difficult to control. Such regulation has to address the conflicts of interest that inevitably arise in the quest to open up markets by allowing bidding for broadcast channels. The Communications Act 2003 lays down the conditions for the granting of licences and, in doing so, it sets limits on cross-media ownership (eg combining print media with broadcast media).10 Equally, the legislation seeks to protect a wider public interest by controlling the editorial line. It sets out special 10

Communications Act 2003, c 5.

Constitutional Contexts 7

impartiality requirements relating to elections and referendums.11 Further, it requires that the news generally on broadcast television and radio is reported with due accuracy.12 Moreover, the Office of Communications (OFCOM) as regulator is under a statutory duty to ensure that its licensees do not project their own views on politically controversial matters. In a democratic system there needs to be a strong public interest dimension to state regulation in this field. In addition, there are mechanisms in place to safeguard the relative independence of the BBC as state broadcaster. The BBC is required to be impartial. It must refrain from expressing its own opinion on current affairs or on matters of public policy.13 The corporation operates under a renewable Royal Charter which requires the governors of the BBC to act as regulators and makes them ultimately responsible for its management (the director general appointed by the governors is responsible for the day-to-day running of the organisation). To minimise political manipulation, the appointment process for BBC governors is conducted under certain guidelines (the Nolan principles)14 by the Office of the Commissioner for Public Appointments (OCPA). After the interviewing process, recommendations are put forward to the Secretary of State for Media and Culture, and then to the Prime Minister.15 In sum, in the domain of broadcasting the BBC and other broadcasters can act as a conduit for criticism of politicians as long as this criticism is not part of an agenda set by the broadcaster. Despite the absence of a constitution, citizens are generally able to express themselves, and the freedom of the press and broadcasters to disseminate information in the United Kingdom is constrained by an intricate combination of formal regulation and informal safeguards.

11 Ibid. 12

Communications Act 2003, ss 319 and 320. G Robertson and A Nicol, Media Law (London, Penguin, 2002) 826. 14 These are: selflessness, integrity, objectivity, accountability, openness, honesty, leadership. 15 The Hutton Inquiry (2004) into the death of government scientist David Kelly in 2003 exposed the tension which often exists between the BBC and the government over the reporting of news and current affairs. See A Doig and M Phythian, ‘The Hutton Inquiry: Origin and Issues’ (2005) 58 Parliamentary Affairs 104. 13

8 UK Constitution PHONE HACKING, MEDIA INFLUENCE AND CONSTITUTIONAL OVERSIGHT

Important issues pertaining to the degree of constitutional a ccountability in relation to the media were vividly highlighted in 2011 in the so-called ‘Hackgate’ scandal. The hacking into mobile phones came to the forefront of public attention again after the May 2010 general election when Prime Minister Cameron appointed Andy Coulson, former editor of the News of the World, as his Director of Communications at Number 10 Downing Street. In 2007 a former royal editor of the News of the World and a private investigator working for the paper were convicted and imprisoned for hacking into the voicemails of Buckingham Palace aides. Coulson was editor of the newspaper when this criminal activity was revealed. This appointment by the Prime Minister was controversial partly because of the connection with News International through the News of the World, but mainly because there were allegations that illegal practices, such as phone hacking, had been widespread at the paper, raising the possibility of editorial collusion in law breaking. As further accusations began to emerge, Coulson’s position became untenable and he resigned in January 2011. The resignation severed the direct link with News International. Although there were no allegations of serious wrongdoing by the Prime Minister or any other ministers, this did not prevent Mr Cameron’s judgement from being called into question for going ahead with the appointment with only limited vetting, despite the warnings that had been received by his personal office. Following in the footsteps of Lord Northcliffe (1865–1922) and Lord Beaverbrook (1879–1964), the press barons of previous generations, Mr Rupert Murdoch as owner of News International and a leading shareholder in BskyB has exercised a significant influence over domestic politics in the United Kingdom for many years. At a time when News International was seeking to extend its ownership by completing the takeover of BskyB, concern began to focus on the position of the Murdoch press as further revelations emerged. It was well known that leading political figures from both main parties, including Prime Ministers Thatcher, Blair, Brown and Cameron, have been keen to obtain the endorsement of the Murdoch press. The question that has been asked as a result of the scandal over phone hacking concerns the wider implications of the nexus between News International and successive governments. The price of gaining approval from these

Constitutional Contexts 9

papers might be measured in terms of both regular access to political decision-makers at the highest level and influence over the decisionmaking process. The association may not only have affected policy formation generally, but might be regarded as particularly undesirable in situations where government policy requires a balancing of the wider public interest against the commercial interests of this company with its extensive media holdings. The bid by Mr Murdoch’s News Corporation for BSkyB for increased market dominance highlighted this problem. The Culture Secretary and Ofcom, the media regulator, were faced with having to decide whether the bid should be allowed to proceed at all (as a fit and proper [corporate] person to continue to hold a broadcasting licence),16 and what, if any, conditions should be imposed before the deal was allowed to go ahead. Further questions relating to the public interest have arisen in the past, for example, over the acquisition by Sky of screening rights over major sporting events including Premiership football, Test cricket and Ryder Cup golf. In addition, the revelations associated with the hacking scandal drew attention to the cultivation of relationships involving, on the one hand, News International journalists and executives and, on the other, senior politicians and the police, including officers at the highest level of the Metropolitan Police. However, the concern was not simply that such influence has penetrated deeply into public life, but that it led to at least some degree of complicity in unlawful conduct and morally reprehensible practices by News International (and probably other newspapers). The targets of gross invasions of privacy by the press have been the victims of serious crime as well as celebrities. The government’s response to the outrage directed towards News International was to set up a public inquiry in July 2011 with a wide remit. It was chaired by Lord Justice Leveson, a senior judge, and the Inquiry was empowered to compel witnesses to appear before it. Lord Justice Leveson later reported on the alleged widespread invasions of privacy by journalists hacking into mobile telephones and the conduct of criminal investigations into the matter by the Metropolitan Police, in particular relating to their failure to pursue inquiries concerning newspapers owned by News International despite possessing clear evidence. Furthermore, it looked

16

See Broadcasting Acts 1990 and 1996, s 3(3).

10 UK Constitution

into payments made by newspapers to Metropolitan Police officers for information relating to criminal investigations that were in progress.17 At the same time this scandal was investigated in depth as a matter of parliamentary oversight by two departmental select committees.18 The Culture, Media and Sport Committee summoned the key players in News International, including Rupert and James Murdoch,19 while the Home Affairs Committee heard evidence from senior figures in the Metropolitan Police.20 The televised select committee hearings resulted in reports and recommendations. The cumulative effect of the public inquiry and these parliamentary investigations was to draw attention to the pervasive influence of News International, the murky practices of journalists working for News International and other papers, and the extent of criminal wrongdoing. In consequence, some journalists, newspaper executives and policemen were liable to prosecution and faced terms of imprisonment. However, it was difficult to formulate general recommendations to prevent the repetition of such conduct in the future. Arguably the key recommendation of the Leveson Inquiry was ignored. This was to replace the deeply flawed and ineffective Press Complaints Commission with a new voluntary, independent, selforganised regulatory system supported by a backstop of legislation in order to ensure that the regulatory and investigatory element was independent and effective. The government was reluctant to legislate in the face of press resistance. The difficulty in placing restrictions on the media and strengthening laws relating to privacy is that such laws run the risk of inhibiting the investigative role of the media which, as we have seen above, is crucial in establishing the accountability of government and individual politicians. The Independent Press Standards O rganisation

17 Leveson, ‘An Inquiry into the Culture, Practices and Ethics of the Press: Vols 1–IV, 29 November 2012’: webarchive.nationalarchives.gov.uk/20140122145147/ www.levesoninquiry.org.uk/about/the-report. 18 Related issues raised were also considered by other parliamentary committees, eg the House of Lords Select Committee on Communication. See Select Committee on Communications’ 3rd Report of Session 2010–12, ‘The future of investigative journalism’, HL Paper 256, 16 February 2012. 19 Culture Media and Sport Committee, ‘News International and Phonehacking’ Eleventh Report of Session 2010–12, HC 903-1, 1 May 2012. 20 Home Affairs Committee, ‘Unauthorised tapping or hacking of mobile communications’ Thirteenth Report of Session 2010–12, July 2011, HC 907.

Constitutional Contexts 11

(IPSO), the main revamped self-regulatory body s upported by most of the newspaper industry, falls well short of having the investigatory powers and independence identified by Leveson. In relation to the police, a protocol was introduced requiring government ministers and police officers to disclose their dealings with the media. THE UK CONSTITUTION, CONSTITUTIONALISM AND GOOD GOVERNANCE

The UK constitution has evolved in the sense that the rules which have come into being have been accumulated as a response to circumstances, and they can be regarded as the residue of a historical process with particular laws and conventions incorporated following significant events. Apart from describing institutions and procedures, the starting point in drafting a codified constitution or modifying an existing constitution is to come as close as possible to reaching a consensus on any limits imposed on the majority. As we observed above, each constitution reconciles these issues in its own individual fashion. Unlike most other constitutions, the UK constitution has not been designed according to any ideology or theory to deliver a particular system of government. Despite lacking any guiding principle, the UK system could also be said to display the characteristics of what might be described as constitutionalism.21 The vast majority of constitutions set out a framework of rules which, if applied and interpreted in the spirit intended, would produce if not a version of liberal democracy, at least conditions of good governance. The point to stress is that the constitution needs to be supported by mechanisms which allow the commitments in the text to be implemented. In many constitutions there is a significant gulf between the statement in the constitution and actual compliance. In the majority of cases it is achieving substantial conformity with the rules that becomes the crucial issue. Indeed, as one well-known commentator puts it: ‘The fundamental notion of the Rechtsstaat or the rule of law was … not conceived out of the blue and introduced without resistance. It was, in 21 A Harding and P Leyland, ‘Comparative Law in Constitutional Contexts’ in E Örücü and D Nelken (eds), Comparative Law Handbook (Oxford, Hart Publishing, 2007) 322ff.

12 UK Constitution

fact, the fruit of political conflict and scholarly disputes stretching over many centuries.’22 Rather than compliance with strict constitutional rules, in the United Kingdom the interpretation of some of the important constitutional conventions may arise as a matter of debate and controversy (see the discussion of individual ministerial responsibility in Chapter 6). The first point would be to note that any exercise of political power will be bounded by a system of higher order rules which will usually be set out clearly in the constitution. The second point is to recognise what these rules are likely to concern. For example, in virtually every case these rules will specify the procedure for making valid legislation, and a distinction will often be drawn between what can be the permissible content of ordinary legislation as opposed to law relating to the constitution itself. Further, the higher order rules contained in the constitution will outline the method for the formation of the government, and the rules may place limits on the action taken by the executive organs of the state, including the civil service and the police, in the implementation of law. Finally, the constitution may provide that a court (often a constitutional court) has the capacity to invalidate legislation or executive action which fails to comply with the law of the constitution. Constitutionalism is defined in terms of adherence to the rules and to the spirit of the rules. As Professor De Smith has observed: ‘[this] becomes a living reality to the extent that these rules curb arbitrariness of discretion and are in fact observed by the wielders of political power.’23 A genuine constitution for reformers in the eighteenth century, such as Tom Paine, restrained and regulated the exercise of absolute power. Apart from its positive aspects, namely, dealing with the generation and organisation of power, a constitution may be taken to comprise a series of devices designed to curb discretionary or unlimited power. It seeks to establish different forms of accountability24 not simply through a system of freely elected government, but by placing restrictions on the power of the majority. This accountability is reliant on transparency,

22 R Van Caenegem, An Historical Introduction to Western Constitutional Law (Cambridge, Cambridge University Press, 1995) 17. 23 S De Smith, ‘Constitutionalism in the Commonwealth Today’ (1962) 4 Malayan Law Review 205. 24 See C Harlow, Accountability in the European Union (Oxford, Oxford, University Press, 2002) ch 1, ‘Thinking about Accountability’.

Constitutional Contexts 13

and it is acted out in a number of familiar ways:25 an obligation for the government to be responsible to the elected Parliament; legal limits established by the courts (often including a constitutional court) on the exercise of public power; formal financial accountability in public affairs; accountability through contractual agreement where public services are provided by private organisations; and, additionally, accountability through the intervention of constitutional oversight bodies such as parliamentary select committees, ombudsmen, and courts (discussed in later chapters). Moreover, the constitution also results in further ground rules in the form of laws, codes of practice, and conventions being adopted to ensure fair play at every level.26 Finally, an equally significant characteristic of constitutionalism is a degree of self-imposed restraint which operates beyond the text of the constitution, and its attendant rules, especially on the part of political actors and state officials. The point to stress here is that all nations have a constitution of some kind, but constitutionalism is only established in a true sense where political behaviour is actually contained within certain boundaries. In the first place, the rules need to embody a defensible constitutional morality which accords with principles of good governance27 but the constitution also represents a sufficiently widely accepted political settlement. In the second place, there must be a general adherence at all levels to the constitutional rules and the wider body of law and conventions associated with them. In the United Kingdom we will soon discover that there is a debate about the adequacy of constitutional safeguards, especially in relation to the exercise of executive power, but although the rules are often embodied in informal conventions, there is generally a high degree of compliance by the main political actors.

25 For a discussion of the development of such mechanism in the United ingdom, see D Oliver, Constitutional Reform in the UK (Oxford, Oxford University K Press, 2003) chs 1–3. 26 Loughlin points out: ‘Like all representational frameworks, a constitution is a way of organising, and hence also of generating, political power … and orchestrating the public power of the state’: see M Loughlin, The Idea of Public Law (Oxford, Oxford University Press, 2003) 113. 27 For a discussion of ‘good governance’ from a global perspective, see FN Botchway, ‘Good Governance: The Old, The New, The Principle and The Elements’ (2001) 13 Florida Journal of International Law 159.

14 UK Constitution PART II: HISTORY THE IMPORTANCE OF HISTORY

In general, constitutions are formally adopted as a specific text of special importance introduced at a decisive moment in a nation’s history to achieve obvious goals. For example, the constitution of the United States was approved after the success over the British in the American War of Independence. The ‘Bill of Rights’ was adopted as the first 10 amendments in 1791, but apart from a further 17 amendments the constitution has remained in its original succinct form. The First Republic in France was introduced shortly after the revolution of 1789, and the most recent Fifth Republic was introduced in 1958 to redress the instability of previous constitutions by bolstering the presidential role. In modern times there has been no single domestic event that has required a comprehensive revision of the UK constitution and so the United Kingdom has no constitutional text with this special status. Rather, the constitution is comprised of a variety of sources including statute law, common law, and constitutional conventions (the sources of the constitution are discussed in Chapter 2). The constitutional arrangements for the United Kingdom have evolved in phases reflecting the political, social, and economic experiences of many centuries. The events selected for coverage are dealt with thematically rather than in chronological sequence, and they are intended to set the scene for the discussion that follows in subsequent chapters. QUALIFYING ABSOLUTE MONARCHY

The first recurring theme worth mentioning involves certain qualifications which have been placed in the exercise of the absolute authority of the monarchy. An obvious starting point looks back to medieval times, and relates to the dispute between the King and his barons which culminated in the drawing up of the Magna Carta of 1215.28 The feudal system originally operated on the basis that the King’s barons or nobles held their lands from the King in exchange for an oath to him of loyalty 28 www.bl.uk/treasures/magnacarta/translation.html; C Breay, Magna Carta: Manuscripts and Myths (London, British Library, 2002).

History 15

and obedience, but with the obligation to provide a fixed number of knights whenever these were required for military service. By the reign of King John this feudal obligation for service was expressed through the imposition of arbitrary financial payments determined by the King and his entourage of royal officials, which were often used to maintain an army. The barons were dissatisfied with what they regarded as a form of unjust taxation, and they were sufficiently united to insist on the King recognising a disparate catalogue of demands. The shopping list of grievances was very much a top-down settlement favouring the barons and covering not only the celebrated right to justice in Article 39 but also the freedom of the Church, recognition that London and other cities should enjoy their own liberties and customs, navigation of rivers, inheritance, guardianship of land, seizure of property and feudal dues. As one commentator has observed: ‘[A] common core was an undertaking by the crown to observe a precisely formulated code of behaviour towards their subjects or, in other words, to respect their rights and liberties as specified in the charters.’29 The charter became famous as a constitutional document not simply because it refers to some fundamental rights, for instance by providing that no one should be denied justice or punished except by judgment of their peers or by the law of the land, but because, at the beginning of the seventeenth century, in resisting absolute Royal authority, its significance was championed by Chief Justice Sir Edward Coke and it was relaunched and elaborated as the Petition of Right 1628. The impact of the original charter was marginal as within weeks King John, encouraged by the Pope, reneged on his promise to uphold the undertakings contained therein. Although only selected provisions of the Magna Carta were later confirmed by future Kings and the English Parliament, certain rights and liberties may be traced back to the original document, which included limitations on Royal power.30 The limitation on royal authority by constitutional means was achieved in stages. The Tudor monarchs, notably Henry VIII and Elizabeth I, were very powerful, and they were personally active in the affairs of government, but by this period Parliament also became increasingly important. While these Tudor monarchs were able to dominate Parliament, they also ruled through Parliament in order to legalise 29 30

Van Caenegem, above n 22, 17. A Arlidge and I Judge, Magna Carta Uncovered (Oxford, Hart Publishing, 2014).

16 UK Constitution

their actions: ‘the sixteenth century had a concept of the supremacy of law, embodied in the rule of the common law and sovereignly controlled by statute, which limited the free power of monarchy and was so recognised, in theory and practice by the Crown.’31 The seventeenth century was of great constitutional significance. The Stuart Kings, particularly Charles I (1625–49), sought to claw back the initiative from Parliament by re-asserting the divine right of kings to govern. An obvious problem for the King was that Parliament had to be summoned when he wished to raise taxes, for example, to pursue foreign policy, to fight wars, or to crush insurrection. The Petition of Right in 1628, which arose after a person had been imprisoned for refusing to pay a loan imposed by the King (see Darnel’s Case 1627, also known as ‘the Five Knights’ Case’)32 had already signalled dissatisfaction, because Parliament rejected the idea of taxation without its consent, and it questioned the Crown’s authority to impose arbitrary imprisonment and martial law. The struggle between the Crown and Parliament came to a head with the Civil War (1642–49). As well as contesting the right to impose taxes without Parliament’s consent, mentioned above, the King’s authority to summon and dismiss Parliament at will was also called into question. The resistance of MPs to the King’s demands when Parliament was recalled culminated in an event of symbolic importance. The King entered Parliament in person with soldiers at his side in order to arrest five dissenting MPs. The Speaker of the House of Commons refused to co-operate with the King’s demands in an act of open defiance. At this point factions within Parliament were prepared to resort to armed insurrection to resist the King’s demands. In the struggle that followed parliamentary forces prevailed over those of Charles I, and the King was tried and executed in 1649. Oliver Cromwell’s Commonwealth under the Instruments of Government lasted only a few years before the restoration of the monarchy with the accession of Charles II in 1660. Charles II’s reign was relatively uneventful in regard to constitutional matters. However, he was succeeded by his brother James II, who was not only a Roman Catholic, but, like his father Charles I, was prepared to disregard the will of Parliament. The use of his royal authority to promote Catholics to prominent positions in what had become a 31 32

G Elton, England Under the Tudors (London, Methuen, 1974) 483. (1627) 3 State Trials 36–37.

History 17

strongly Protestant nation sparked a strong backlash with far-reaching constitutional implications. With the prospect of revolt on the horizon, James dissolved Parliament in 1688 before fleeing the country. In the meantime the opponents of James II invited William of Orange (a Dutch Protestant), who was married to James’s daughter Mary, to take up the throne on certain conditions. The position of the King in relation to Parliament was set out in the Bill of Rights of 1689, later enacted as the Parliament Recognition Act of 1689. This landmark document was not a charter of citizens’ rights in the modern sense, because it was not concerned to define comprehensively the rights of citizens. Nonetheless, it is extremely important for setting in place certain fundamentals of the contemporary constitution. In particular, it confirmed that it was illegal for the Crown to execute laws, raise taxes, or keep an army in peacetime without the consent of Parliament (Articles I, IV, and VI). It provided not only that a freely elected Parliament should meet on a regular basis, but also it gave formal recognition to the privileges of P arliament, which included a right to free speech and debate for MPs, and it gave them the right to regulate their own proceedings without limitation or interference either from the Crown or from the courts. Shortly afterwards, the Act of Settlement 1701 regulated the succession to the throne and also established the security of tenure of judges. In sum, as Hill observes: ‘The men of property [were] secure and unfettered in their control of local government; as taxpayers they determine government policy … [they] won freedom—freedom from arbitrary taxation and arbitrary arrest, freedom from religious persecution, freedom to control the destinies of their country through their elected representatives, freedom to buy and sell.’33 (The constitutional role of the Crown is considered further in Chapter 4.) THE EMERGENCE OF PARLIAMENT AND THE PATH TO DEMOCRACY

As has just been stressed, the UK Bill of Rights of 1689 established that ultimate Sovereignty was vested in the King in Parliament, not in the King alone. The power of the Crown and the prerogatives of the Crown were thereafter restricted. In theory at least, unlimited authority 33

C Hill, The Century of Revolution (London, Abacus, 1978) 263 and 265.

18 UK Constitution

had been granted to Parliament as the body with unrestricted l aw-making capacity. However, this change was only a limited step towards parliamentary democracy in a modern sense. The problem was that Parliament represented elite groups and it mainly protected property rights. The idea of a representative Parliament had been in evidence at least from Edward I’s Model Parliament of 1295, whose membership was based on the principle of two knights from each county, two burgesses from each borough, and two citizens from each city. Further, by 1341 the House of Commons was meeting separately. In fact, the composition and powers of Parliament re-emerged as an issue of great constitutional importance during the course of the late eighteenth and early nineteenth centuries. As well as the development of political ideas associated with popular ‘revolutions’ in America and France which recognised citizen rights, the nation itself was experiencing rapid transformation. There were new pressures associated with industrialisation, the growth of population, and the rapid expansion of towns and cities. While the complexion of the nation and the distribution of its population was in the course of changing, only a small minority had the right to vote, and the geographical division into constituencies sending members to the House of Commons no longer corresponded to where the centres of population were now located in the industrial cities and towns of the Midlands and the North. Reform Acts in 1832, 1867, 1883, and 1884 went some way towards extending the right to vote, and to redistributing seats more evenly but it was not until 1918 that universal suffrage for men and votes for women over 30 were secured, with women securing equal voting rights in 1928. At the beginning of the twentieth century, the extension of the franchise had far-reaching constitutional consequences. More representative political parties (eg the Liberal and Labour Parties) were given a mandate from the wider electorate to introduce programmes of social reform, and, having obtained a majority in the elected House of Commons, the government in power claimed authority to achieve its political goals. On the other hand, the House of Lords (sometimes referred to as ‘the Upper House’) comprised the titled nobility (titles were originally granted directly by the King, but by the nineteenth century candidates were nominated by the Prime Minister) who originally derived their wealth and influence from the ownership of land. Peers were able to pass on their titles to the next generation by heredity, and as members of the House of Lords they had a traditional right to sit

History 19

and vote in P arliament. During the nineteenth and early twentieth centuries the landed aristocracy began to use this voting power in the House of Lords first to delay the process of parliamentary reform, and later to oppose the manifesto commitments and budget proposals of the elected Liberal Government. This opposition precipitated a constitutional crisis. The House of Lords as the unelected legislative chamber was expected to defer to the House of Commons in financial matters and when it not only blocked legislative proposals but also refused to pass a budget in 1909 it was eventually forced to agree to have its powers significantly qualified by way of the Parliament Acts of 1911 and 1949. The composition of the House of Lords remains unresolved, but a category of peers appointed for their lifetime only (life peers) was introduced in 1958, and in 1999 the majority of hereditary peers were excluded from participating in the business of the House. (The role of Parliament is discussed in Chapter 5.) DEFINING THE NATION: WHAT IS THE UNITED KINGDOM?

Another dimension to domestic constitutional evolution has concerned the formation of the United Kingdom, comprising England, Wales, Scotland, and Northern Ireland. In Chapter 8 we will consider the constitutional implications of recent devolution provisions, but at the outset, it is useful to be familiar with the territorial reach of the sovereign nation. In the case of Wales, conquest of the principality by England was completed under Edward I between 1272 and 1307. Royal authority over Wales was later set out in Henry VIII’s reign, first by an Act of 1536 ‘for laws and justice to be ministered in Wales’ which also allowed Wales to return MPs to Westminster, and second, the details of the political and legal assimilation of the union between England and Wales were contained in another statute of 1543. Edward I and other English kings ultimately failed in their attempts to overwhelm Scotland by force, but the thrones of Scotland and England were eventually united, when in 1603 James VI of Scotland succeeded Elizabeth I as James I of England. James had been unsuccessful in his attempt to effect a union of the two kingdoms in an administrative sense. Under the restored constitutional monarchy of William III and Mary, which was set in place by the Bill of Rights of 1689, it was not long before the Scots were faced with a choice. In essence, either the

20 UK Constitution

Parliaments of England and Scotland would have to unite, or there would have to be a separation of the monarchies. Taking account of the economic advantages of fusing the two nations, the Scottish Parliament opted for union. The Treaty of Union and the Act of Union with Scotland 1707 were of enormous significance. This agreement was recognition that England and Scotland were to come under a single Parliament of Great Britain and that the rule of succession for the two thrones would be the same. However, as part of the deal Scotland retained many of its national institutions (church, legal system, and educational system). The relationship between England and Ireland has been both turbulent and complex. In brief, England had assumed direct rule over Ireland in 1534, and Henry VIII was recognised as King of Ireland in 1541. The Catholic majority (later to generally support the Nationalist cause) were hostile to British rule, which tended to favour Protestant settlers (termed ‘Unionists’ as they remained loyal to the Crown and favoured maintaining close association with Westminster) introduced into Ireland mainly from Scotland by the English. There were many periods of rebellion, which were sometimes brutally suppressed. Following resolutions by the Parliaments in Westminster and Dublin, Ireland was eventually united with England at the beginning of the nineteenth century. This union was achieved by the Act of Union of 1800, which also confirmed the place of Irish MPs at Westminster. However, the prevailing arrangements were not acceptable to Irish N ationalists (who formed a substantial majority, particularly in the South of Ireland), some of whom resorted to intermittent violent struggle. Apart from repressive measures to confront the unrest, the political response of the Liberal Party (pioneered by WE Gladstone) was to attempt to introduce a considerable degree of Irish self-government in domestic affairs, but each of the Home Rule Bills of 1886, 1893, and 1912 was unsuccessful. This was largely because they failed to satisfy the competing claims of Nationalists and Unionists. To accommodate deep-seated differences, the Government of Ireland Act of 1920 was based on partition between the six counties in the North, comprising Northern Ireland with a Parliament in Belfast, and the remainder of Ireland with a Parliament in Dublin. However, the 1920 Act was only implemented in the North. A form of devolved government based at Stormont was set up in 1921 and Unionists secured a promise to allow the North to give its consent before any future assimilation with the South. The situation

History 21

concerning devolved government in Northern Ireland will be discussed further (in Chapter 8). Almost at the same time, the British Government reached an agreement with representatives of a provisional government of Ireland to allow an Irish Free State to be established. The Irish Free State (Agreement) Act of 1922 excluded the 26 counties of the South from jurisdiction of the UK Parliament under the Act of Union of 1800. The current Irish constitution dates from 1937, and the Republic left the Commonwealth under the Republic of Ireland Act 1948, which paved the way for the formation of an independent Republic of Ireland in 1949. In sum, the term United Kingdom now refers to a sovereign state which includes England, Wales, Scotland, and Northern Ireland. EMPIRE, COMMONWEALTH AND EUROPE

At the beginning of the twentieth century the United Kingdom was a powerful imperial nation. A quarter of the world’s population was ruled directly or indirectly from Westminster. Despite victory in World War I (1914–18) and World War II (1939–45), the diminution of Britain’s military, economic, and political influence was reflected in the transition from this vast empire to a self-governing Commonwealth. Viewed from a constitutional perspective this transition occurred in phases. First, there were self-governing colonies, referred to as dominions, which included Canada, Australia, South Africa, and New Zealand. The Balfour Declaration of 1926, later enacted through the Statute of Westminster 1931, established that the Westminster Parliament would not legislate for the dominions without their consent. In the words of one commentator: ‘Its main effect was to end the Empire-wide writ of the United Kingdom Parliament.’34 After World War II, the British withdrew from India in 1947 and the Indian Independence Act of 1947 created independent dominions of India and of Pakistan. Malaysia was granted independence under the Federation of Malaya Independence Act 1957. The rapid decolonisation of Africa began with Ghana gaining independence in 1957. In the 34 R Holland, ‘Britain, Commonwealth and the End of Empire’ in V Bogdanor (ed), The British Constitution in the Twentieth Century (Oxford, Oxford University Press, 2003) 638.

22 UK Constitution

West Indies, Jamaica and Trinidad were granted independence in 1962. Withdrawal from Africa was completed when, after a protracted dispute and civil war, the Zimbabwe Act of 1979 formally granted independence to Zimbabwe (formerly Southern Rhodesia). In each of these nations the Westminster Parliament gave up its local jurisdiction, and a new constitution was adopted usually featuring prominent elements of the Westminster model, together with a system of law based on the common law. The British Commonwealth has continued as a club of nations of ex-British colonial status with the Crown symbolically at its head. The nations co-operate in the common interests of their peoples and in the promotion of human rights, international understanding, and world peace.35 As the influence of empire and Commonwealth waned, and UK economic involvement with the United States diminished after World War II, so the importance of Europe has increased. The Treaty of Rome 1957, which set up the Common Market (EEC) without UK inclusion, was a first step towards Churchill’s vision of a ‘United States of Europe’36 which would be able to avoid the recurrence of war by featuring a close partnership between France and Germany together with other nations. The United Kingdom eventually joined the EEC (now the European Union (EU)) on 1 January 1973 after protracted negotiations. Although the United Kingdom signed up to a mainly economic treaty, from a constitutional perspective, membership of this supra-national organisation resulted in a sacrifice of sovereign power in a number of areas. A new hierarchy of law was recognised which meant that a set of European institutions were capable of making laws which could override the authority of the UK national Parliament and UK domestic courts (this issue is discussed in Chapter 3). Despite being highly controversial across the major political parties (Conservative, Labour, and Liberal Democrat), EU membership was entered into without consulting the electorate. The post hoc 1975 referendum settled the issue of association with Europe decisively in favour of continued EU membership after a passionate campaign during which otherwise strict rules of party loyalty (including collective Cabinet responsibility discussed in Chapter 6) were suspended. In recent years there have 35 For a fuller statement of principles, see www.thecommonwealth.org/Internal/ 20723/key_declarations/ and the Harare Commonwealth Declaration, 1991. 36 Winston Churchill set out these ideas in a speech delivered in Zurich in 1946.

History 23

been significant changes to the EU, with successive Treaties granting membership to many more nations (from nine in 1973 to a current total of 25 states) and extending the range of policy areas which are subject to EU law37 (see Chapters 2 and 9 for further discussion of the European Union). CONCLUSION

In this preliminary discussion we have seen that the most distinctive feature of the UK constitution is the fact that it lacks formal codification. Nevertheless, it displays the broad characteristics of what has been termed liberal democracy and achieves this without having guarantees set out as part of a set constitutional framework. Moreover, the constitution has been presented as a product of history, in the sense that many crucial aspects relating to the monarch, Parliament, the protection of rights, and the territorial extent and organisation of the nation have evolved in response to significant events. The next chapter will reveal that, in the absence of the authority provided by a single text, the constitution can only be approached by reference to a range of disparate sources, including formal law, but also including many pivotal constitutional conventions. FURTHER READING Arlidge A and Judge I, Magna Carta Uncovered (Oxford, Hart Publishing, 2014). Bagehot W, The English Constitution (London, Fontana, 1963). Barendt E, Freedom of Speech, 2nd edn (Oxford, Oxford University Press, 2005). Blick A, Beyond Magna Carta: A Constitution for the United Kingdom (Oxford, Hart Publishing, 2015). Bogdanor V, The New British Constitution (Oxford, Hart Publishing, 2009).

37 See I Ward, A Critical Introduction to European Law, 3rd edn (Cambridge, Cambridge University Press, 2009) ch 1.

24 UK Constitution

Holland R, ‘Britain, Commonwealth and the End of Empire’ in V Bogdanor (ed), The British Constitution in the Twentieth Century (Oxford, Oxford University Press, 2003). Loughlin M, The British Constitution: A Very Short Introduction (Oxford, Oxford University Press, 2013). Loughlin M, The Idea of Public Law (Oxford, Oxford University Press, 2003). Maitland F, The Constitutional History of England, 10th edn (Cambridge, Cambridge University Press, 1946). Marshall G, ‘The Constitution: Its Theory and Interpretation’ in V Bogdanor (ed), The British Constitution in the Twentieth Century (Oxford, Oxford University Press, 2003). Morison J, ‘Models of Democracy: From Representation to Participation’ in J Jowell and D Oliver (eds), The Changing Constitution, 5th edn (Oxford, Oxford University Press, 2005). Mount F, The British Constitution Now (London, Heinemann, 1993). Oliver D, Constitutional Reform in the UK (Oxford, Oxford University Press, 2003). Sunstein C, Designing Democracy: What Constitutions Do (Oxford, Oxford University Press, 2001). Tombs, R, The English and Their History (London, Allen Lane, 2014). Van Caenegem R, An Introduction to Western Constitutional Law (Cambridge, Cambridge University Press, 1995).

2 The Sources of the Constitution

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Statute Law – Common Law – European Union – European Convention on Human Rights – Legal Treatises – Law and Customs of Parliament – Royal Prerogative – Conventions INTRODUCTION

T

HE UNITED KINGDOM has a constitution but it is not a codified constitution. In other words there is no single document (or series of documents) that is known as constitution. The lack of a codified constitution also means that there is no body of rules which is antecedent to the institutions of state and government and which could therefore be said to form an act of foundation. Despite the fact that there is no fundamental law relating to the constitution, it is possible to approach a description of the constitution by reference to a number of key constitutional sources. To take an obvious example, the Human Rights Act 1998 makes the individual rights defined under the European Convention on Human Rights (ECHR) of central constitutional importance, but, at the same time, many other statutes may be of relevance to constitutional practice in the field of human rights: for instance, the Police and Criminal Evidence Act 1984 deals more specifically with police powers and the rights of the individual. In many nations today the constitution is linked to a system of representative government, but in the United Kingdom in particular, there is much less reliance on legal rules and safeguards, and much more reliance on constitutional conventions which are underpinned by a commitment to a democratic system of government. The evolution of the constitution has been possible because conventions are capable of being easily

26 The Sources of the Constitution

modified to accommodate changing circumstances. All constitutions are to some extent uncodified, with their own conventions, but a distinguishing feature of the UK constitution is that so much of its constitutional practice is governed by conventions. In consequence, particular attention in this chapter is devoted to discussing conventions as a source of the constitution and their significance in relation to constitutional practice. First of all we will consider the other sources of the constitution. PART I: SOURCES OF THE CONSTITUTION STATUTE LAW

In the United Kingdom the basic principle of the constitution is the doctrine of parliamentary sovereignty. Since the Bill of Rights of 1689 the courts have recognised Acts of Parliament as the highest source of law. In one sense it might be true to say that all statutes passed by Parliament that have not been repealed are part of the constitution. This is because each one has been passed to set out or refine particular areas of law and there is a coincidence between ordinary law and the constitution. However, in practical terms, it is obvious that certain statutes are of special constitutional importance. The Petition of Right 1628 concerned the principle of no taxation without representation. The Bill of Rights 1689, although not a modern Bill of Rights, as discussed in Chapter 1 secured a Protestant succession to the monarchy (a position that was confirmed by the Act of Settlement 1701). The Bill of Rights also formally confirmed that the seat of power had swung towards Parliament as part of a constitutional monarchy. The nature of constitutional statutes was considered in Thoburn v Sunderland City Council 1 and has been recognised subsequently by Lord Hope giving judgment in the UK Supreme Court.2 While Laws LJ in Thoburn did not set out any special test to determine the question of what would qualify, it was explained that constitutional statutes are pieces of legislation which condition the legal relationship between citizen and state in some general, overarching manner, or which enlarge 1

[2002] 3 WLR 247. H v Lord Advocate [2012] UKSC 24 at para [30].

2 See

Sources of the Constitution 27

or diminish the scope of what might be regarded as fundamental constitutional rights. A number of important constitutional statutes that will be the subject of discussion in later chapters were recognised by Laws LJ as falling into this category (constitutional statutes are discussed at greater length in Chapter 3). The Acts of Union with Scotland in 1707 and with Ireland in 1800 dealt with arrangements for combining the English Parliament first with the Scottish Parliament and then the Irish Parliament. The Parliament Act 1911 set limits on the powers of the House of Lords in regard to legislation. The Representation of the People Act 1918 extended the vote to all men over 21 and women over 30, and the Representation of the People Act 1969 reduced the voting age so that all adults over 18 could vote. The European Communities Act 1972 incorporated the Treaty of Rome and in so doing placed important limitations on the sovereignty of the Westminster Parliament. The Scotland Act 1998, the Government of Wales Act 1998, and the Northern Ireland Act 1998 set out the principles for devolution. The Human Rights Act 1998 had the effect of incorporating the ECHR directly into English law and in so doing provides the United Kingdom with what is, in effect, a bill of rights. THE COMMON LAW

In a system where judicial precedent applies, judicial decisions are binding and are used to develop the law on a case-by-case basis. The common law has always been an important source of the constitution. Certain aspects of private law, particularly concerning contract and tort, are comprised of rules originating from judicial decisions. There are particular landmark cases that have expanded the common law in a constitutional context. These decisions remain of constitutional significance. For example, the case of Entick v Carrington3 concerned trespass and placed limits on powers of the Crown and Secretary of State to interfere with the person or property of the citizen without lawful authority. More recently, the UK Home Secretary was found to be in contempt of court for ignoring an order of the High Court in M v Home Office4 (discussed in Chapter 3). However, it is important to 3 4

(1765) 19 State Tr 1029. [1994] 1 AC 377.

28 The Sources of the Constitution

note that decisions of the courts (including the Supreme Court, formerly the House of Lords) may be amended and overridden by later statutes, eg the decision in Burmah Oil Co Ltd v Lord Advocate5 prompted the UK Parliament to pass the War Damage Act 1965, which had retrospective effect. The courts accept the validity of Acts of Parliament and thus validate the concept of parliamentary sovereignty. Although they do not directly challenge legislation, part of their role is to interpret statutes under established rules of statutory interpretation (see Chapter 7). EUROPEAN UNION LAW

The European Communities Act 1972, which came into force on 1 January 1973, made the law of the European Community (now the European Union (EU)) an important constitutional source. In Van Gend en Loos6 the European Court of Justice had explained the implications for member states of becoming a member: The Community [now EU] constitutes a new legal order of international law for the benefit of which the States have limited their Sovereign rights … Independently of the legislation of member states, Community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage.

Some categories of EU law have direct effect, which means that any rights or obligations enjoyed by or imposed on any individual under the Treaties can be enforced in the English courts. This body of law is confined to those areas covered by the Treaty of Rome 1957 and subsequent Treaties. Each Treaty (ie the Maastricht, Amsterdam, Nice and Lisbon Treaties) has been incorporated into UK domestic law by statute. The law emanating from Europe that applies in the United Kingdom includes regulations, directives, and decisions. EU membership also means that rulings from the European Court of Justice can be binding on domestic courts within the United Kingdom. The importance of the EU was recognised by Lord Denning in Bulmer v Bollinger,7 when he famously described the Treaty of Rome as being ‘like an incoming tide. It flows into the estuaries and up the rivers. 5

[1965] AC 75. Case 26/62 [1963] ECR 1 at 12. 7 [1974] 2 All ER 1226. 6

Sources of the Constitution 29

It cannot be held back, Parliament has decreed that the Treaty is henceforth to be part of our law.’ Where it applies, EU law operates as a higher order law and will have the effect of overriding domestic legal provisions. The proposed European constitution was not proceeded with after it was rejected in referendums held in France and Holland in 2004. The E uropean Constitution has been followed by the Treaty of Lisbon which was signed on 13 December 2007. Notwithstanding the opposition expressed to the attempt to introduce a European Constitution, this treaty contains many of the same provisions. For example, it includes: a redistribution of voting weights between the Member States and qualified majority voting; removal of the national veto in areas such as climate change, energy, security and emergency aid; new powers granted to the European Commission, European Parliament and the European Court of Justice mainly in the fields of justice and home affairs; and a co-decision procedure which puts the Parliament on an equal footing with the Council for most legislation, including the budget. The Lisbon Treaty was adopted and incorporated into UK law by the European Union (Amendment) Act 2008 and it came into force on 1 December 2009. (For further discussion of the EU see Chapter 3.) The Treaty of Lisbon and the European Union Act 2011 Next, we turn to the implications of the Treaty of Lisbon and the European Union Act 2011 on domestic constitutional arrangements. From a constitutional angle we have already noted that the sacrifice of sovereign power in a number of areas to a supra-national economic and political organisation was a consequence of UK membership of the European Economic Community (now the EU). As an important step towards European stabilisation, a European Constitution was agreed between member states in 2004.8 Although it was abandoned following rejection in referendums in France and Holland, it was pointed out above that many of its provisions found their way into the Treaty of Lisbon. To some extent this measure might be regarded as a consolidation process, knitting together the provisions of previous treaties into a more coherent whole. As with national constitutions, moving towards a constitution at European level seeks to embed a general commitment 8 www.unizar.es/euroconstitucion/Treaties/Treaty_Const.htm.

30 The Sources of the Constitution

to core values and objectives, in this case, human dignity, freedom, democracy, equality, respect for human rights, security, justice, as well as economic freedoms, free movement of goods, capital, people, and services. Of course, the EU can already pass laws applying in member states relating to external trade and customs policy, the internal market, agriculture and fisheries, and many areas of domestic law, including employment, the environment, and health and safety at work. The Treaty of Lisbon has extended law-making into additional areas, including aspects of criminal justice, and asylum and immigration law but the UK and Ireland were able to negotiate a selective opt out. Further, to facilitate more effective action among the greatly increased family of nations, there is a redistribution of voting weights between nations and the principle of voting by qualified majority is more generally applied, but with a veto for members on foreign policy, defence, and taxation. Some advocates of a European constitution shared the belief that a reinvigorated Europe under a new constitution would enable Europe, as a collective force, to be better able to stand up to its major competitor, the United States, but also to resist the awesome power of financial markets and of global capitalism. For example, where individual nations have been increasingly unable to act to regulate and control the pressures exerted by multinational companies dominating markets, it might be reasoned that a Europe-wide regulatory system would be much better placed to intervene to protect consumers and to protect the environment. EUROPEAN CONVENTION ON HUMAN RIGHTS

Since the Human Rights Act (HRA) 1998 came into force in October 2000 the ECHR is incorporated as part of UK law. The ECHR can be regarded as amounting to a constitutional charter of rights. As we shall see in later chapters, the ECHR is an international treaty setting out basic individual rights including: right to life; liberty and security; prohibition of torture and slavery; right to fair trial; no punishment without law; right to respect for privacy and family life; freedom of thought, conscience, and religion; freedom of expression; freedom of assembly and association; and prohibition of discrimination. All public bodies, including the courts, are legally required to act in a way that is

Sources of the Constitution 31

compatible with the above rights, and a remedy may be sought if these citizen rights are breached (see Chapter 8). LEGAL TREATISES

The lack of a codified constitution has meant that academic and legal treatises that describe and analyse the nature of the constitution as it has evolved assume special status. For example, there are classic works that may be cited with authority when seeking to establish how the constitution operates. Walter Bagehot’s The English Constitution provided an influential account of parliamentary democracy during the mid-Victorian period. It was famous for making a distinction between the ‘efficient’ and ‘dignified’ parts of the constitution. The book was published at about the same time as the Second Reform Act of 1867 extended the right to vote to 1.5 million male householders and distributed more parliamentary seats to the main industrial towns. Probably the most influential contribution has been An Introduction to the Study of the Law of the Constitution by AV Dicey, which was first published in 1885. Although this study was and still is controversial, for instance in the sense that it might be characterised as hostile to modern forms of democracy, Dicey nevertheless provides arguably the most persuasive explanation of the core concepts of parliamentary sovereignty and the rule of law. Parliamentary practice and procedure, which is obviously an important part of the contemporary constitution, is frequently determined by reference to A Practical Treatise on the Law, Privileges, Proceedings and Usage of Parliament, now in its 23rd edition. This work is referred to simply as ‘Erskine May’ after the constitutional theorist who produced the original volume. Contemporary studies by constitutional experts are also relevant where there is a lack of clarity over aspects of constitutional practice. However, relying on academic sources is apt to present problems, since experts may differ in their interpretation of how constitutional doctrine applies. For example, the studies by Professors Christopher Forsyth and Sir William Wade and Professor Paul Craig on the subject of administrative law adopt markedly different approaches.9 Constitutional treatises should be regarded as subordinate sources, which 9 See W Wade and C Forsyth, Administrative Law, 11th edn (Oxford, Oxford University Press, 2014); P Craig, Administrative Law, 7th edn (London, Sweet & Maxwell, 2012).

32 The Sources of the Constitution

are only resorted to by the courts and other constitutional players when there is no other established authority. THE LAW AND CUSTOMS OF PARLIAMENT

The law and customs of Parliament refers to the resolutions of the two Houses of Parliament that establish parliamentary practice (standing orders of the House). This body of rules is of great political importance and it ranges from the regulation of debates to the functions of the leaders of the government and opposition. MPs and peers can change these rules. For example, the recommendations of the Select Committee on Procedure (1978) were adopted following the 1979 general election resulting in the introduction of the House of Commons Departmental Select Committees to scrutinise the work of government departments. It is important to note that as parliamentary rules and procedures are established by standing orders, they fall outside the scope of both legislation and common law. THE ROYAL PREROGATIVE

Many powers are exercised by ministers and officials under primary or secondary legislation, but the Royal Prerogative refers to those powers which have been left over from the period when the monarch was directly involved in the process of government. These remaining powers, now mainly exercised by ministers, include: making treaties; declaring war; deploying the armed forces; regulating the civil service; and granting royal pardons. The prerogative powers continue to be important for the operation of government in these areas, and the prerogative powers have been recognised by judges in developing case law. (The nature and extent of prerogative powers are discussed in more detail in Chapter 4.) PART II: CONSTITUTIONAL CONVENTIONS

Conventions are a particularly important source of the UK constitution and they are also crucial to understanding how the c onstitution functions. In the remainder of this chapter conventions will be discussed in more detail. An observer of the UK constitution would

Constitutional Conventions 33

build up a very incomplete account of its workings if attention was given only to legal rules, since conventions, in the words of one commentator, ‘provide the flesh which clothes the dry bones of the law.’ It is evident that: ‘The legal structure of the constitution is everywhere penetrated, transformed and given efficacy by conventions.’10 Conventions are the source of the non-legal rules of the constitution. They may be characterised as being associated with laws but at the same time they are distinct from them. They lubricate the formal machinery of government and assist in making government work. In this sense they have an important practical dimension. It is very difficult to settle constitutional disputes without understanding them. Moreover, conventions allow what would otherwise be a rigid legal framework to be kept up to date with the changing needs of government because they are capable of evolving. In subsequent chapters we will be looking in detail at a number of conventions, but first we need to understand why conventions have been difficult to define and note the different areas in which they apply. DEFINING CONVENTIONS

The difficulty in defining conventions is mainly because they encompass a wide range of practices, some of which are a lot more certain than others. The important thing to remember is that they determine many of the practices of government and aspects of conduct of state institutions. They are not the result of a legislative or a judicial process but rather often arise from what Professor Turpin calls ‘the hardening of usage’ over a period of time. A failure to adhere to an important convention might lead Parliament to cast a disputed practice into legislative form. Perhaps the most influential definition derives from AV Dicey, who explained that11 the ‘conventions of the constitution’ consists of maxims or practices which, though they regulate the ordinary conduct of the Crown, of ministers, and of other persons under the constitution, are not in strictness laws at all. 10 Sir Ivor Jennings, The Law and the Constitution, 5th edn (London, University of London Press, 1959) 81 and 113. 11 A Dicey, An Introduction to the Study of the Law of the Constitution, 10th edn (Basingstoke, Macmillan, 1959), 24.

34 The Sources of the Constitution

In recognising that conventions were mainly the customary rules which determined how the discretionary powers of the state were exercised, Dicey drew a special distinction between laws, which he explained were enforceable in the courts, and conventions, and he maintained that conventions were ‘rules intended to regulate the exercise of the whole of the remaining discretionary powers of the Crown.’ It is important to recognise that for Dicey the key characteristic is that conventions, unlike laws, are not enforceable in the courts. Conventions consist of the understandings, habits, practices, maxims, and precepts that are necessary to regulate the conduct of the sovereign, the Prime Minister, ministers, and officials, and also that of other constitutional players. It is true to say that conventions are not directly enforced in quite the same way as laws, but that the existence of conventions has been recognised by the courts as part of judicial reasoning. For example, in Attorney-General v Jonathan Cape Ltd 12 the Attorney-General on behalf of the government was unsuccessful in getting the court to enforce in the public interest the confidentiality requirement which forms part of the convention of collective Cabinet responsibility by getting the court to issue an injunction to prevent a former Cabinet minister from serialising his memoirs. However, as one commentator notes: The Attorney-General may be said to have been victorious in this case in gaining judicial acceptance of the principle that a legal obligation of confidentiality attaches to Cabinet proceedings, even though the court decided that the Crossman diaries no longer … retained their confidential character, and so fell outside the protection of the law.13

Sir Ivor Jennings, approaching the task of definition from a different perspective, suggested that three questions should be posed in order to identify a valid convention.14 The first task is to determine whether there is a precedent for the practice. Finding this out involves ascertaining how often and how consistently a practice has been observed previously. The second question asks whether those operating the

12

[1976] QB 752. Turpin and A Tomkins, British Government and the Constitution, 7th edn (London, Butterworths, 2011) 181. 14 Jennings, n 10 above, 131ff. 13 C

Constitutional Conventions 35

constitution have accepted the convention as binding. Could it be said that an obligation is created by the practice under consideration? While the first question merely requires a descriptive response, this second question is much more problematic. Some conventions are both relatively easy to identify and to follow and they are accordingly regarded as binding, for example, the requirement that the Prime Minister must be a member of the elected House of Commons. However, this is not always the case. For example, the convention of individual ministerial responsibility is of enormous constitutional importance. It concerns the accountability of the executive to Parliament, but there is considerable uncertainty over the exact way in which it applies. As we shall see in Chapters 5 and 6, there is debate among experts concerning how ministers are accountable to Parliament for shortcomings in their department, and, in particular, the circumstances when resignation by a minister is required. The final question posed by Jennings acknowledges the strong pragmatic dimension to the constitution. It asks whether there is a good political reason for the existence of a convention. By taking another example we can see what Jennings had in mind. The deference of the House of Lords to the House of Commons is very important. The legitimacy of the Commons has increased because it is the democratically elected House of Parliament. This approach also illustrates that many conventions have arisen because of usage over a period of time. During the constitutional crisis that followed the rejection of the budget in 1909 (explained further below) Prime Minister Asquith reminded King George V that it had been established that the Sovereign acts upon the advice of his or her ministers. He asserted respectfully that there was no longer any doubt that the final decisionmaking power rests with the elected government enjoying the confidence of Parliament. In some situations it may be difficult to know whether a practice has actually been recognised as a convention. Determining the validity of a convention may come down to establishing whether the actors regard the conduct as binding upon them. Dicey believed conventions formed part of a constitutional morality that is positive. Conventions are followed because a failure to obey them would lead to legal difficulties. For example, Parliament must assemble each year to pass financial resolutions and make a budget to raise taxes and pay for the government, armed forces, local government, etc. Dicey’s account does not

36 The Sources of the Constitution

explain why parliamentary sessions continue beyond setting a budget. In contrast, Jennings believed that disregarding conventions would result in political rather than legal problems. The refusal of the House of Lords to pass the budget in 1909 serves as an excellent illustration. This action by the Lords was in clear breach of a convention, and this failure to pass a Finance Bill prompted a political crisis for the obvious reason that a government without a budget to pay officials and the armed forces, and so on, could not govern. From the moment of the budget’s rejection a stalemate existed between the elected House of Commons and the mainly Conservative hereditary peers in the House of Lords. After protracted negotiations, King George V agreed to create sufficient peers to secure the passage of a Parliament Bill, curbing the powers of the Upper House, but only if there was a mandate from the electorate for the reform. After the general election in December 1910 returned a Liberal-dominated coalition committed to reform, the Conservative peers in the House of Lords backed down and passed the Bill. Apart from removing the general veto over legislation exercisable by the House of Lords, the Parliament Act of 1911 placed in statutory form what had been regarded as a convention, namely, that the House of Lords could not veto or delay money Bills. We can conclude this brief discussion by recognising that there is no way of knowing with certainty what an established convention is, except from the behaviour of the sovereign, politicians, or other officials responsible for operating it as part of the constitution. At least, it might be said of some conventions that they are rules of political practice that are regarded as binding by those to whom they apply. In this sense it could be claimed that they therefore provide a prescriptive view of what should happen in a range of given situations. However, Professor Griffith has rejected an approach to the constitution which is over-dominated by backward-looking conventions and he takes a much more pragmatic view—‘the constitution is what happens’ and goes on to suggest ‘if it works, it’s constitutional.’15 Since it is difficult to reach a satisfactory definition beyond this discussion, it will be informative to introduce some of the main conventions applying to the respective state institutions. Their constitutional importance will become more fully apparent as we proceed with this discussion in subsequent chapters. 15

J Griffith, ‘The Political Constitution’ (1979) 42 MLR 1 at 19.

Constitutional Conventions 37 THE PRACTICAL IMPORTANCE OF CONSTITUTIONAL CONVENTIONS

Before discussing the various elements of the constitution in more detail, it is important to be familiar with some of the main constitutional conventions. It will be apparent from the examples discussed below that many of these conventions are imprecise and may change over time. (1) The Crown Most of the important conventions that operate in relation to the sovereign bear witness to the passage of authority away from the Crown, and in the majority of cases there is very little discretion left with the monarch. For example, it has long been established that the royal assent to Bills completing their passage through the House of Commons and the House of Lords is never refused by the reigning monarch. To do so would undermine the capacity of a representative Parliament to pass legislation. By way of contrast, there are conventions where some discretion may have to be exercised. It is a well-established convention that the sovereign appoints the leader of the majority party in the House of Commons to form a government and become Prime Minister. Assuming one party enjoys such a majority, the leader of that party will always be chosen to form a government. However, if no party emerges from a general election as a clear winner (as occurred after the 1931, 1974 and 2010 general elections) it was believed that the monarch could decide whom to call upon to form a government. It is well known that George V acted as facilitator in 1931 to allow Ramsay MacDonald to emerge as the Prime Minister of a National Labour government; however, after a hung Parliament was elected in 2010, ‘The Queen and her advisers were insistent not only that she would in no way be involved in the government formation process, but that she should be seen not to be involved.’16 Previously, it appeared that advice may be taken from experts, but the final decision over whom to appoint rested with the monarch. In practice, after both the 1974 and 2010 general 16 V Bogdanor, The Coalition and the Constitution (Oxford, Hart Publishing, 2011) 19.

38 The Sources of the Constitution

elections, the incumbent Prime Minister remained in office exploring the p ossibilities before offering his resignation and recommending his successor. As the changes in practice between 1931 and 2010 illustrate, the convention has evolved. (For further discussion see Chapter 5: The House of Commons and the formation of a government.) Bogdanor recognises that the situation has changed, in effect side-lining the Queen, a result of the fact that by the end of the twentieth century the monarchy had become an increasingly symbolic institution. The lack of clarity on such an important question has led to calls for statutory procedures to be set in place which would determine the outcome should this situation recur.17 One of the most important constitutional conventions requires the Sovereign to act upon the advice of the Prime Minister and his or her ministers. In practice, although the business of government is conducted in the name of the Crown the key decisions are taken at ministerial level. Also, the sovereign’s speech given from the throne in the House of Lords at the opening of each session of Parliament setting out government policy is always written by the Prime Minister. Further, it has been recognised by convention that, upon the request of the Prime Minister, dissolution of Parliament will be granted by the Sovereign allowing a general election to be held. Finally, it has long been established that the sovereign in person cannot sit as a judge in his or her own courts.18 (2) Prime Minister, Cabinet and Executive Turning next to conventions in relation to the government and the executive, the roles of the Prime Minister and Cabinet have developed and continue to develop by convention. Sir Robert Walpole, usually regarded as the first Prime Minister, depended heavily on the King’s patronage and mainly operated as the King’s spokesman in Parliament. Walpole, who was officially appointed First Lord of the Treasury, disliked the use of the term ‘Prime Minister’, which carried with it the connotation that he was royal favourite.19 17 Fabian Commission Report, The Future of the Monarchy (14 July 2003). See Fabian Society website, publications archive. 18 See the famous case of Prohibitions del Roy (1607) 77 ER 1342; 12 Co Rep 63. 19 H Wilson, A Prime Minister on Prime Ministers (New York, Summit Books, 1977) 8.

Constitutional Conventions 39

Modern Prime Ministers continue to consult the monarch by having regular meetings, but by the nineteenth century the appointment of Prime Ministers came to depend on the results of the election process. The person sent for had to be capable of forming a government commanding a majority in Parliament. It has also been established by convention that the Prime Minister and the Chancellor of the Exchequer must be members of the House of Commons and, as a result, directly accountable to the electorate. Furthermore, until very recently there had never been any law setting out the formal limits on any of the prime ministerial powers. However, the provisions contained in the Fixed Term Parliaments Act 2011 stand out as an important exception. This is because, in future, barring exceptional circumstances such as the loss of a vote of no confidence in the House of Commons, general elections will be held at five-year intervals under the new Act rather than following the convention which has allowed the Prime Minister to request that the monarch dissolve Parliament any time within the five-year maximum length of a Parliament set out in the Parliament Act 1911 (see Chapter 6). We shall see later that the Prime Minister’s powers have grown enormously. Also, the precise relationship between the Prime Minister and the Cabinet has never been defined with any precision. For example, it has been suggested that during the course of the twentieth century the Cabinet system changed from the Cabinet acting as the sole decision-making body to the situation that prevailed up to the late 1970s where decision-making took place within Cabinet committees. Under Prime Ministers Thatcher and Blair, the Cabinet, rather than acting as decision-making body or a principal forum for debate, met for regular collegiate team-building and informal exchanges of views on policy matters at senior ministerial level.20 The Constitutional Reform and Governance Act 2010 provides a good example of legislation seeking to clarify an area that previously depended largely on convention. As we shall see in Chapter 6, the Act puts the running of the civil service on a statutory footing with formal recognition of the Prime Minister’s power to manage the service. At the same time it sets out procedures for the appointment of special advisers to the Prime Minister’s personal office and in other government 20 A Seldon, ‘The Cabinet System’ in V Bogdanor (ed), The British Constitution in the Twentieth Century (Oxford, Oxford University Press, 2003) 129.

40 The Sources of the Constitution

departments. The role of 10 Downing Street and the Cabinet Office in co-ordinating government had expanded according to the requirements of the office of Prime Minister from the period of World War I until the development of the contemporary machinery of government, but this occurred without any formal regulation by statute. Further conventions of central constitutional importance relating to the Prime Minister and Cabinet are discussed in later chapters. In particular, collective Cabinet responsibility requires the Cabinet to unite around a policy position or for dissenters to resign. The convention arose from the need to provide the sovereign with advice that was not conflicting (see Chapter 5). Individual ministerial responsibility concerns the accountability of ministers and the executive to Parliament and requires ministers to be directly answerable to Parliament for their actions (see Chapters 5 and 6). (3) Parliament Looking back historically, it has already been observed that the attempt of monarchs in the seventeenth century to govern without Parliament led to conflict between Parliament and the King. Since the Bill of Rights of 1689 it has been established that Parliament is summoned at least once a year. Furthermore, it is a convention of fundamental constitutional importance in the Westminster type of parliamentary system that the government should command a majority in the House of Commons, and that if it is unable to do so the government should fall. The rationale behind the convention is obvious. The government requires a majority in the elected chamber to pass the legislation it needs to govern effectively. The Prime Minister used to determine the date of an election within a five-year limit, as set by the Parliament Act 1911. However, the Prime Minister must offer to resign if his or her party loses a vote of confidence in the House of Commons. The defeat will trigger a general election.21 The strong impetus towards party organisation and discipline within Parliament (particularly the House of C ommons)

21 Such a resignation followed by a general election last occurred in 1979 when Prime Minister James Callaghan was defeated in a House of Commons vote of confidence by a single vote.

Constitutional Conventions 41

has resulted from the application of this convention, which has been recognised since 1841.22 Also, the so called ‘Salisbury convention’ recognises that the House of Lords should not use its delaying power under the Parliament Acts 1911 and 1949 in respect of legislation which forms part of the electoral programme of a governing party, once again showing deference to the elected House of Commons. Many procedural questions relating to Parliament are determined by convention and these include: the time allocated in the House of Commons to the official opposition; the fact that political parties are represented on committees according to the percentage of MPs supporting them; and the ‘pairing’ arrangements for MPs through which government and opposition whips allow for the non-attendance of MPs for votes in the House of Commons. Finally, the Speaker is elected by members of the House of Commons to preside over the House. Although the MP selected as Speaker will have been a member of the government or opposition party, it is a convention of the highest importance that she or he will, as Speaker, act with strict impartiality. (4) Judges and the Courts The Bill of Rights 1689 and the Act of Settlement 1701 formally recognised the importance of judicial independence by securing the tenure of judges. But there are a number of conventions relating to the judicial role. It is generally acknowledged that the professional conduct of judges should not to be questioned in Parliament, except where there is a substantive motion for dismissal. (Senior judges can only be dismissed by Parliament using this procedure, and no senior judges have been dismissed in modern times.) Until very recently there was no clear separation of powers in the United Kingdom, as we will see when discussing the role of the Lord Chancellor in Chapter 7. The Constitutional Reform Act 2005 has established a UK Supreme Court outside of Parliament and reformed a system of judicial appointments that previously depended upon informal soundings to determine the suitability of possible judicial candidates (see Chapter 7). Nevertheless, it was 22 P Norton, ‘The House of Commons and the Constitution: The Challenges of the 1970s’ (1981) 34 Parliamentary Affairs at 266–67.

42 The Sources of the Constitution

already an accepted convention that judicial appointments were made on merit (and not on the basis of political affiliation) and that serving judges should not have any active involvement with party politics. (In Chapter 7 we will assess how the courts deal with questions of legality under the rule of law.)23 The other side of this coin is the convention that ministers, as members of the executive branch, should avoid direct comment on specific cases under consideration by the courts during the course of litigation (particularly if the case involves the government). CONCLUSION

In this chapter we have observed that the uncodified UK constitution is comprised of a number of different sources, but it is quite clear that statute law is the predominant source of the constitution, as is evidenced by the recent battery of legislation reforming aspects of the constitution (devolution, human rights, and freedom of information Acts have been introduced since 1997, to name but a few examples). The doctrine of sovereignty proposes that Parliament is all-powerful and, in theory at least, has the capacity to determine the nature of the constitution. The limits of this doctrine will be critically examined in the next chapter. However, a substantial part of the discussion has concentrated on conventions as a constitutional source. Conventions vary, from well-established practices that will be applied with predictable outcomes to rather vague guidelines open to interpretation in the way that they are applied. Failure to adhere to conventions can have far-reaching consequences. The constitutional crisis following the budget in 1909, discussed earlier, was caused because the House of Lords chose to ignore the convention that recognised the predominance of the House of Commons over the House of Lords on financial matters. Legislation in the form of the Parliament Act 1911 was necessary to prevent a similar situation occurring. It has been suggested by some writers that a 23 Principles of judicial review have been developed which recognise the respective roles of the executive and the courts in regard to the decisions of public bodies. In cases referred to them the courts deal with the legality of acts of public authorities and set in place procedural safeguards, but the courts do not step into the shoes of the decision-maker. See eg S Sedley, ‘The Common Law and the Courts’ in Lord Nolan and S Sedley (eds), The Making and the Remaking of the British Constitution (London, Blackstone, 1997).

Constitutional Conventions 43

more extensive process of juridification or codification would serve to clear up other ambiguities surrounding the way conventions apply. It is worth remembering, however, that all constitutions have conventions. The UK constitution has more than its fair share, because the constitution as a whole has not yet been codified. In general conventions have served the constitution well in filling a gap between constitutional formality, in the sense of defining what the actors should do to make the constitution work, and political reality, in the sense of determining how such conduct might be modified to take account of changing circumstances. In essence, conventions provide built-in flexibility that can be regarded as a tremendous advantage. However, certain conventions, in particular individual ministerial responsibility, are of crucial importance in defining the mechanism for accountability and for the control of executive power. Many writers have argued that the rules surrounding this convention have not been modified sufficiently to account for modern conditions of government and the emergence of what is often termed the contracting state (see Chapter 6 and the discussion of ‘elective dictatorship’). FURTHER READING Anthony G, UK Public Law and European Law: The Dynamics of Legal Integration (Oxford, Hart Publishing, 2002). Bagehot W, The English Constitution (London, Fontana, 1963). Bogdanor V (ed), The British Constitution in the Twentieth Century (Oxford, Oxford University Press, 2003). Bradley A and Ewing K, Constitutional and Administrative Law, 15th edn (London, Longmans, 2010). Brazier R, Constitutional Practice: The Foundations of the British Constitution, 3rd edn (Oxford, Oxford University Press, 1999). Dicey A, The Law and the Constitution, 10th edn (London, Macmillan, 1959). Griffith J, ‘The Political Constitution’ (1979) 42 MLR 1. Leyland P, ‘Constitutional Conventions and Preservation of the Spirit of the British Constitution’ Diritto Publlico, Anno XX (2014), n 2, MaggioAgosto 2014, 411–31. Marshall G, Constitutional Conventions: The Rules and Forms of Political Accountability (Oxford, Oxford University Press, 1987).

44 The Sources of the Constitution

Munro C, Studies in Constitutional Law, 2nd edn (London, Butterworths, 1999) ch 3. Taylor R, ‘Foundational and Regulatory Conventions: Exploring the Constitutional Significance of Britain’s Dependency on Conventions’ (2015) Public Law 614. Van Caenegem R, An Introduction to Western Constitutional Law (Cambridge, Cambridge University Press, 1995). Wilson R, ‘The Robustness of Conventions in a Time of Modernisation and Change’ [2004] PL 407.

3 Constitutional Principles



Parliamentary Sovereignty – Rule of Law – Separation of Powers INTRODUCTION

A

NY DISCUSSION OF the British constitution depends upon a knowledge of the sources of the uncodified constitution, allied to familiarity with the main principles which underpin the current workings of the constitution. These concepts can be linked to landmarks in constitutional history mentioned earlier, but, at the same time, they are of central importance to current practice, and they are open to interpretation in different ways. For example, it was noted in the opening chapter that the Bill of Rights of 1689 makes the Crown subject to the will of Parliament and that it also recognises that Parliament (Crown, Lords, and Commons) has unlimited legislative authority. In short: ‘The principle inherent in the Bill of Rights is the supremacy of Parliament in law.’1 It will be necessary when discussing the sovereignty of Parliament to assess what this apparently absolute doctrine now means, given that the European Communities Act 1972 has been interpreted as allotting special status to European Union (EU) law, and the Human Rights Act (HRA) 1998 requires judges to interpret statutes according to the European Convention on Human Rights (ECHR). Another point worth making at the outset is that these doctrines are related to each other. Laws gain their legitimacy from a democratically elected sovereign Parliament before being scrutinised as part of the 1

C Munro, Studies in Constitutional Law, 2nd edn (London, Butterworths, 1999) 128.

46 Constitutional Principles

legislative process, but, at the same time, when implementing any such laws, there needs to be a way of protecting citizens from arbitrary treatment. Or, to put it another way, any discretionary powers given to the police or officials must have legal bounds. Dicey was at pains to stress that: ‘In England the idea of legal equality, or of the universal subjection of all classes to one law administered by the ordinary courts, has been pushed to the utmost limit.’2 The rule of law was regarded by Dicey as the idea that has the potential under the common law to qualify the supremacy of Parliament, but we will soon discover that the rule of law is difficult to define and it is not a neutral concept. Rather, it must have a strong moral dimension. Professor Jowell has pointed out that it ‘bears an aura of moral compulsion and over the years has been invoked to restrain the abuse of official power.’3 The final concept discussed in this chapter is separation of p owers. Constitutions necessarily describe different kinds of powers and functions and delineating the distinction between such powers and functions is frequently a central issue in drafting a constitution. The objective is almost invariably to prevent the concentration of too much unchecked power in one set of hands. Obviously, the United Kingdom lacks a custom-designed constitution embodying a strict separation of powers. Nevertheless, the concept and language of separation of powers is still relevant. Two aspects are mentioned as a prelude to the discussion that follows later in this chapter. First, the judicial review procedure that has developed under the rule of law results in the judicial branch overseeing the activities of the executive branch to prevent abuses of power. In this regard, the issue of judicial independence has been addressed at important moments in constitutional history to allow the courts to perform such a role. For example, the Act of Settlement of 1701 (see Chapter 1) protected judges from summary dismissal, and the recent Constitutional Reform Act 2005 (see Chapter 7) sets in place a system for judicial appointments that seeks to minimise executive interference. Second, in the United Kingdom there is no separation between the legislative and executive branches since ministers must be Members of Parliament. Such a fusion between legislative and e xecutive functions 2 A Dicey, An Introduction to the Study of the Law of the Constitution, 10th edn (Basingstoke, Macmillan, 1959) 193. 3 J Jowell, ‘The Rule of Law Today’ in J Jowell and D Oliver (eds), The Changing Constitution, 5th edn (Oxford, Oxford University Press, 2004) 6.

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at the heart of the system (as exemplified in the former p osition of the Lord Chancellor: see Chapter 7) has led commentators to consider whether formal and informal ‘checks and balances’ which exist as part of constitutional practice are sufficient to achieve adequate constitutional accountability by ensuring the containment of a powerful executive branch. PARLIAMENTARY SOVEREIGNTY

The legal sovereignty of Parliament was regarded by Dicey as the founding principle of the constitution. In his words, it meant that ‘Parliament … has under the English constitution the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament,’ and it is ‘the very keystone of the law of the constitution,’4 in the sense that the sovereignty of Parliament is a fundamental rule upon which no legal limits could be placed. This emphasis on the absolute power of Parliament is because in the absence of a codified constitution the all-powerful position of Parliament in its capacity to act as law-maker assumes special importance. In the first place, parliamentary sovereignty holds that, in theory at least, Parliament comprising the House of Commons, the House of Lords, and the Sovereign has the capacity to pass or repeal any law without any legal limits. As Blackstone remarked, it confirms that ‘Parliament can do everything that is not naturally impossible.’5 Second, a crucial aspect of the sovereignty of Parliament is that provisions in a more recent statute will prevail over those in an older statute. This is the essence of the doctrine of implied repeal and it would appear to follow from this proposition that Parliament cannot bind its successors. This limitation is because any pre-existing law can be superseded by an Act passed by a later Parliament. And it is a rule that has special importance in a constitutional context, because, on one view, if this applies strictly, it means that the entrenchment of constitutional principles/bill of rights is not possible. The capacity of P arliament to 4

Dicey, above n 2, 40 and 70. W Blackstone, Commentaries on the Laws of England, Book 1, 19th edn (London, Sweet & Maxwell, 1836) 161. 5

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reconstitute itself and entrench basic principles has been the subject of much theoretical debate in academic circles.6 For example, a critique by Sir Ivor Jennings of the orthodox theory argues that the rule of recognition as explained by Dicey is a common law concept.7 It has been accepted by the courts that statute law is superior to the common law. In consequence, it follows that Parliament can enact legislation changing this rule by drafting a statute that requires the courts to accept that some Acts of Parliament are protected from repeal by simple majority vote. In other words, if judges are subordinate to Parliament then Parliament can tell the judges what rules to follow in determining whether or not a statute is unconstitutional. At a practical level, following the far-reaching changes of recent years, it will be important for us to consider below whether the conference of power on other bodies has had a significant impact on sovereignty. To put it simply, has sovereignty really shrunk, as some commentators have contended?8 There is an influential view developed by Wade9 and Allan which maintains that Parliament’s sovereignty is itself established through judicial acceptance under the common law: ‘Legislation obtains its force from the doctrine of Parliamentary sovereignty, which is itself a creature of the common law and whose detailed content and limits are therefore of judicial making. Parliament is sovereign because the judges acknowledge its legal and political supremacy.’10 The next step in this argument is to maintain that a statute which flies in the face of common law values, eg because the measure is outrageously undemocratic, might be declared invalid by the courts. (As we note when discussing the Jackson case below, some House of Lords judges have repeated the highly controversial suggestion that primary legislation in extremis might by challenged in the courts.)11 One obvious objection to the common

6 See J Goldsworthy, The Sovereignty of Parliament: History and Philosophy (Oxford, Oxford University Press, 1999) ch 2, ‘Defining Parliamentary Sovereignty’. 7 I Jennings, The Law and the Constitution, 5th edn (London, University of London Press, 1959) 152ff. 8 Munro, above n 1, 149. 9 W Wade, ‘The Basis of Legal Sovereignty’ (1955) 13 Cambridge Law Journal 172. 10 T Allen, Law, Liberty and Justice (Oxford, Oxford University Press, 1993) 10. The point has been made that it could hardly, without circularity, be a doctrine based on statutory authority. 11 See Lord Steyn, Lord Hope, and Baroness Hale in Jackson v Attorney-General [2005] UKHL 56, [2006] 1 AC 262.

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law view takes things back a stage further and questions the legal source of judicial authority to make the common law: ‘The only alternative consistent with the argument is to think judges conferred authority on themselves.’12 Third, the sovereignty of Parliament means that there is no other body that has authority to challenge the validity of laws made by Parliament in the proper manner. This aspect of the doctrine contradicts a view held earlier that ‘an Act of Parliament could be disregarded in so far as it was contrary to the law of God or the law of nature or natural justice … [when] the supremacy of Parliament was finally demonstrated by the Revolution of 1688 any such idea has become obsolete.’13 Article IX of the Bill of Rights of 1689 provided that ‘proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.’ This assertion has been taken to mean that statutes passed by Parliament cannot be challenged by the courts in regard to their validity. For example, in British Railways Board v Pickin14 the plaintiff was adversely affected by a private Act of Parliament, namely the British Railways Act 1968. He attempted to argue that it was invalid on the grounds that Parliament had been misled as to relevant facts during the Bill’s passage through Parliament and also that certain procedural rules (standing orders) of the House of Commons had been ignored. The challenge was rejected on final appeal to the House of Lords. Lord Morris confirmed: ‘When an enactment is passed there is finality unless and until it is amended or repealed by Parliament.’ On the issue of the courts not being able to question the way legislation is passed, Pickin remains good authority. However, in Jackson v Attorney-General 15 (discussed in more detail below) it was unanimously held that the courts had jurisdiction to determine whether the disputed statute (the Hunting Act 2004) was a valid Act of Parliament. Had the court decided that this was not a valid statute, it would not have been able to set aside the legislation (the legislation would remain in force), but the court had the power ‘to ascertain the validity of a purported Act of Parliament.’16 12 J Goldworthy, The Sovereignty of Parliament: History and Philosophy (Oxford, Oxford University Press, 1999) 240. 13 Munro, above n 1, 130. 14 [1974] AC 765. 15 Above n 11. 16 A Young, ‘Hunting Sovereignty: Jackson v Her Majesty’s Attorney General’ [2006] PL 192.

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A further crucially important point about legal sovereignty that will be relevant in relation to many issues under discussion in this book is that this principle determines the relationship between Parliament and the courts. It means that although the courts have an interpretative function in regard to the application of legislation, it is Parliament, and not the courts, which has the final word in determining the law. This is markedly different from most codified constitutions. For example, in the United States, the Supreme Court held in Marbury v Madison17 that it could determine whether laws passed by Congress and the President were in conformity with the constitution, permitting judicial review of constitutional powers. The situation in the United States is that ultimately there is judicial rather than legislative supremacy. Before we further examine the current limits of sovereignty it is worth pointing out that with each of the measures of constitutional reform introduced post-1997 great care was taken to preserve the sovereignty of the Westminster Parliament (for example, in regard to devolution, see section 28 of the Scotland Act 1998). Also, the HRA 1998 is specifically designed not to undermine the doctrine of sovereignty. The courts cannot invalidate primary legislation which conflicts with rights under the ECHR; they are empowered only to make what is called a ‘declaration of incompatibility’ (see Chapter 7 for a more detailed discussion). Express Repeal and Implied Repeal In explaining the limits of parliamentary supremacy, it is important to understand the difference between express and implied repeal. Express repeal is relatively straightforward to set out. This is when a later statute declares that the whole or part of an earlier statute is being amended or repealed by the provisions that are being currently introduced. In legal terms there is general agreement among commentators that the power of the Westminster Parliament expressly to repeal legislation remains in place despite developments such as EU membership and the HRA 1998. However, it would be more accurate to say that any limitations to this power are likely to be political rather than legal.

17

(1803) 1 Cranch 137.

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For example, if Parliament decided to remove the right to vote at elections the resulting law would be legally valid, but the attempt to take away such a basic right might, at the same time, precipitate demonstrations and civil unrest. Similarly, there would be no legal impediment to Parliament repealing, for example, the Nigeria Independence Act of 1960 with provisions that purported to re-impose colonial status. Such an Act would, however, be unenforceable, and would no doubt also result in strong condemnation from Nigeria itself. If we turn to implied repeal, the situation in regard to the scope of Parliament’s power is less clear when there is a lack of consistency between an earlier and a later statute, without any guidance as to which will apply. There was, at one time, clear judicial authority to support the idea that a later statute will always prevail over an earlier one. A seminal case on this point is Ellen Street Estates v Minister of Health.18 A court had to determine what should happen where a provision (or provisions) in an earlier statute clashed with those in a later statute, and whether an attempt to bind a future Parliament was valid. This conflict concerned the construction of the Acquisition of Land Act 1919 and the Housing Act 1925. Section 7(1) of the Acquisition of Land Act 1919 was worded so that it might appear to bind later statutes, and the compensation scheme in this Act was more generous than that in the Housing Act 1925. A litigant was seeking to take advantage of the earlier scheme. However, the Court of Appeal held that, even if it had been the intention of the earlier Parliament to bind future Parliaments, the provisions of the later statute would take precedence. Maughan LJ stated: ‘The legislature cannot, according to our constitution, bind itself as to the form of subsequent legislation and, it is impossible for Parliament to enact that in a subsequent statute dealing with the same subject-matter there can be no implied repeal.’19 We need to examine why this doctrine stated by Maughan LJ has been significantly qualified by recent constitutional developments. Dicey was able to argue in the late nineteenth century that parliamentary legislation was supreme in the hierarchy of law, and that all statutes emanating from Parliament had equal authority, with the most recent prevailing. It is clear that this is no longer the case since certain Acts of Parliament have come to have special significance.

18 19

[1934] 1 KB 590. Ibid, at 597.

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Sovereignty and European Union Law It will be obvious that EU law emanating from the Treaty of Rome (and subsequent Treaties such as the Treaty of Lisbon 2007 which was incorporated into UK law by the European Union (Amendment) Act 2008) and developed by the European Court of Justice has fundamentally qualified the concept of parliamentary sovereignty. The EU comprises an additional institutional layer of government, operating at supranational level. For example, it consists of the European Commission, which is formed from Commissioners appointed by the governments of member states. This body is expected to represent the interests and objectives of the EU and is mainly concerned with initiating proposals, decision-making, and the implementation of rules throughout the EU. The Council of the EU, which comprises ministers from member states, exercises legislative and executive powers and functions. Further, there is a European Parliament, which consists of members elected in each member state. Although the European Parliament was not originally designed as a law-making body, it has to be consulted in the legislative process under the co-decision procedure. The important point to stress is that the European legislative process gives rise to particular forms of law which apply in the United Kingdom. Most prominently, there are regulations, which have general application in all member states, and there are directives, which are sometimes capable of having direct effect in the event that they are not implemented by individual member states. Membership of the EU means that for as long as the 1972 Act and successive legislation incorporating later Treaties remain in force, the UK Parliament has surrendered its powers to legislate in regard to those areas covered by EU law. The effect of EU law may be to confer rights directly on individuals that national courts must protect. As Lord Denning recognised in Bulmer v Bollinger 20 (see Chapter 2), this body of law has direct effect within member states and it has to be applied by the courts. When considering the limits of sovereignty we need to be clear about the status of EU law within individual member states. The decision in Van Gend en Loos 21 paved the way for the establishment of the supremacy of this body of law by developing the doctrine of primacy. It was in this ruling 20 21

[1974] 2 All ER 1226. [1963] CMLR 105.

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that the ECJ held that ‘the [EU] constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals.’ For our purposes, the radical impact of EU law can be demonstrated by reference to the landmark decision in R v Secretary of State for Transport, ex parte Factortame (No 2).22 The facts concerned the granting of fishing rights. The Merchant Shipping Act 1988 (section 14) established a new register of UK vessels restricted to those who satisfied certain conditions. One of these conditions specified that only vessels with 75 per cent or more UK ownership were eligible for registration. It was argued by the applicants, who were directors of Spanish companies, that this requirement infringed the anti-discrimination provisions of the Treaty of Rome on grounds of nationality. The matter was referred by the House of Lords to the ECJ in Luxembourg. The ECJ ruled that domestic courts were required to ensure effective protection of EU law rights. The Merchant Shipping Act 1988 obviously contravened rights recognised under EU law, and it followed that the UK domestic courts should not be precluded from granting interim relief to protect these rights. In line with its earlier decision in the Simmenthal Case 23 the ECJ had focused on the effectiveness principle and on the obligation of national courts under Article 5 (now 4.3 TEU) of the Treaty to ensure observance by setting aside obstructive national rules which precluded or limited the grant of an appropriate remedy. The ECJ did not actually specify the conditions under which a national remedy, such as interim relief, should be granted in a given case. The House of Lords was left to decide this point in accordance with national principles. However, the ECJ made clear that a rule that prohibited absolutely the grant of interim relief would contradict the principle of effectiveness.24 In Factortame (No 2) the House of Lords recognised that domestic legal systems were required under the Treaties to enforce directly

22

[1991] 1 AC 603, [1991] 3 CMLR 769. 106/77, Amministrazione della Finanze dello Stato v Simmenthal SpA [1978] ECR 629. 24 See P Craig, ‘Britain in the European Union’ in J Jowell and D Oliver, The Changing Constitution, 5th edn (Oxford, Oxford University Press, 2004) 99. 23 Case

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e ffective rights under EU law. Following this ruling by the ECJ,25 the House of Lords issued an injunction preventing the minister from enforcing the nationality requirements under Part II of the Merchant Shipping Act 1988 which were in conflict with EU law. Lord Bridge stated: ‘to insist that, in the protection of rights under [EU] law, national courts must not be inhibited by rules of national law from granting interim relief in appropriate cases is no more than a logical recognition of [the] supremacy [of EU law].’26 This decision confirmed that, in those areas covered by the Treaties, Parliament no longer reigns supreme; it will be European and not domestic law which predominates. In R v Secretary of State for Employment, ex parte Equal Opportunities Commission 27 the House of Lords, building on the Factortame decision, recognised that even a primary statute could be declared incompatible with EU law and held that in the instant case domestic equal opportunities legislation was contrary to Article 119 (now TFEU Article 157) and EU directives. Their Lordships further held that all national courts now had authority to review primary legislation where issues of compatibility with EU law arose. UK membership of the EU represents a significant qualification to the principle of parliamentary sovereignty. The doctrine of primacy requires that EU law prevail over domestic law in all areas covered by the Treaties. Although the European Communities Act (ECA) 1972 and the legislation incorporating subsequent Treaties passed through Parliament in the same way as other statutes, these measures can be regarded as a special kind of legislation. There is general agreement that the ECA 1972 (and subsequent Acts incorporating the Treaties) could be expressly repealed by Parliament. This step would be necessary if the United Kingdom ever decided to bring to an end its membership of the Union. However, assuming that this does not happen, the effect of sections 2(1), 2(2), and 3 of the ECA 1972 is to make the European Treaties, and the legislation emanating from them, the most authoritative source of UK law. After it was established in the courts that the will of Parliament had been to make domestic law subject to EU law, a major exception to the principle of implied repeal had been established.

25 Case C-213/89 R v Secretary of State for Transport, ex parte: Factortame Ltd [1990] ECR I-2433. 26 [1991] AC 603 at 658. 27 [1995] 1 AC 1.

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The wider constitutional and legal implications of such qualifications to sovereignty have become increasingly apparent. In Thoburn v Sunderland City Council 28 it was stated that ‘In the present state of its maturity the common law has come to recognise that there exist rights which should properly be classified as constitutional or fundamental … And from this a further insight follows. We should recognise a hierarchy of Acts of Parliament: as it were “ordinary” statutes and “constitutional” statutes.’ Laws LJ proceeded to reason that the two categories must be distinguished on a principled basis. In essence, he suggests that constitutional statutes are pieces of legislation which condition the legal relationship between citizen and state in some general, overarching manner, or which enlarge or diminish the scope of what might be regarded as fundamental constitutional rights. Such legislation might do both these things. The special status of constitutional statutes follows the special status of constitutional rights. Many examples can be cited from the well-known landmarks of constitutional history. Any such list would include: the Magna Carta 1215; the Bill of Rights 1689; the Act of Union 1707; the Reform Acts which distributed and enlarged the franchise; the HRA 1998; the Scotland Act 1998; and the Government of Wales Act 1998. After making this distinction Laws LJ controversially suggests that ordinary statutes may be impliedly repealed while constitutional statutes may not repealed in this way. There would be a requirement of express or specific words in the later statute to achieve the result. In brief, it would appear that this amounts to recognition of a higher order of laws operating at a constitutional level. An area where the constitutional status of statutes will be put to the test is in situations where the government uses its power to dominate Parliament to produce legislation that undermines the rights and liberties of citizens. The Anti-Terrorism, Crime and Security Act 2001, which granted the authorities extended powers to detain terrorist suspects, is one such example, which is discussed further in Chapter 7. Stemming the Erosion of Sovereignty: The European Union Act 2011 There has been considerable, and it appears growing, evidence indicating disenchantment with the European Union from the wider electorate 28

[2003] QB 151.

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in the UK and also in other European member states.29 In particular, the views of the Eurosceptic wing of the Conservative Party were reflected in a 2010 manifesto commitment preventing the transfer of any further sovereignty to Europe without a mandatory referendum. The European Union Act 2011 was passed in an attempt to prevent the incremental ceding of power to the EU.30 In particular, the Act introduces a complicated series of ‘locks’ by providing for parliamentary approval and a referendum to be held throughout the United Kingdom on new EU treaties, proposed EU treaty changes31 or where the European Council has adopted an Article 48(6)32 decision which would transfer significant powers from the UK to the EU. For example, section 2(3)(a) states that the Act providing for the approval of the treaty cannot come into force until ratification by referendum has taken place. The minister is required to present a statement before Parliament with reasons on whether a given provision falls within Article 48(6) and to judge whether it is significant enough to trigger a referendum.33 Moreover, the Act requires that the referendum approving the treaty provision or extension of powers must be held before the government agrees to implement the provision of EU law. This suggests that having negotiated and agreed on the treaty or provision at EU level but before bringing it into effect, there must now be approval by Parliament and approval by referendum. Another clear objective of this Act is to ensure that legislation would have to be passed before a ‘ratchet clause’34 or bridging clause in the EU Treaty could be used.35 29 For example, www.democracymovementsurrey.co.uk/dyk_pollwatch.html; the United Kingdom Independence Party (UKIP), a party which campaigns on the single issue of UK withdrawal from the EU, polled 3.2% of the votes cast in the 2010 general election; France and Holland rejected the EU Constitution in referendums held in 2005. 30 The Act enables the UK to ratify a Protocol to allow additional European Parliament seats for the UK and 11 other member states during the current European Parliament term, and to legislate for the extra UK seat. 31 European Union Act 2011, s 2 and s 3. 32 European Union Act 2011, s 4 sets out cases where a referendum is required. Under s 6 of the Act certain types of decisions are made subject to the referendum requirement. 33 European Union Act 2011, s 5. 34 This refers to self-amending provisions granting further powers to the EU brought in by the Lisbon Treaty. 35 A rachet clause in this context refers to provision that national vetoes blocking European issues can be progressively dispensed with under the Lisbon Treaty.

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The status of existing EU law is not affected by the 2011 Act. However, section 18 contains what has been controversially termed a sovereignty clause.36 The clause states that directly applicable EU law is recognised in the United Kingdom only by virtue of section 2(1) of the European Communities Act or by virtue of any other Act of Parliament. This approach recognises that EU law already in force is valid. It means, for example, that the supremacy clause in the Lisbon Treaty guaranteeing primacy continues to apply. It would take the express repeal of the European Communities Act 1972 and other relevant legislation by the UK Parliament to have the effect of nullifying these commitments. Although the Act does not affect the primacy of existing EU law it has the potential to undermine the future development of Europe. Given the hostility to the EU, substantial treaty changes are unlikely to gain popular approval in the future, but if the provisions are strictly interpreted it raises the spectre of regular referendums at prodigious expense. These might be triggered on relatively minor technical matters of EU law of little interest to the wider electorate. Another question now arises as to what the courts should do in respect of an Act of Parliament that, after a ‘no’ vote in a referendum, derogates from an EU Regulation or Directive. Would the derogating Act be interpreted so as to trump EU law?37 This is a complex piece of legislation which, quite apart from the referendum requirements, appears to place a considerable burden on ministers and on parliamentary time. The Human Rights Act 1998 and Sovereignty A limit to the doctrine of implied repeal is equally relevant to any discussion on human rights. In effect, the HRA 1998 incorporates the rights contained in the ECHR. The Act allows the courts to provide effective legal remedies for the breach of Convention rights while formally adhering to the doctrine of parliamentary sovereignty. As we shall

36 Professor Craig and several others giving evidence before the European Scrutiny Select Committee considered it nothing more than a restatement of dualism and nothing to do with sovereignty. See www.publications.parliament.uk/pa/ cm201011/cmselect/cmeuleg/633/63307.htm#a11. 37 European Union Bill Report, 13th Report of Session 2010–11, Select Committee on the Constitution, HL Paper 121.

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see later (Chapter 7), the effect of the Act is to put all public a uthorities (government and civil service, local and devolved government, the police, and the courts) under a legal duty to uphold this charter of rights. To inhibit non-compliance, ministers, when introducing parliamentary Bills, are required to issue a statement to the effect that the proposed legislation will be compatible with Convention rights, and this statement is published on the face of the Bill. The Act appears at one level specifically to preserve parliamentary sovereignty if a court makes a declaration of incompatibility this does not invalidate primary legislation. However, in an important sense here, too, there is no implied repeal, since the courts have been required from 2 October 2000 to interpret all subsequent legislation in a way that is compatible with Convention rights, if it is possible for them to do so. The purposive construction of subsequent statutes (the rule of construction which requires the courts to give priority to Convention rights when interpreting any statute) results in this provision under the HRA 1998 prevailing over a subsequently enacted statute. This exception to sovereignty is confined to situations where the courts are called upon to interpret the will of Parliament in respect to European Convention rights. Unlike the New Zealand model, there is no provision in the HRA 1998 to apply the doctrine of implied repeal when interpreting the Act, which means that Convention rights will be presumed by the courts to be protected, unless it is expressly stated to the contrary in a subsequent statute. (See Chapter 7 for further discussion of the effects of the HRA.) Political Sovereignty: Elections and Referendums Dicey argued that political sovereignty (as opposed to legal sovereignty, which rests with Parliament) lay with the electorate and it is therefore associated with representative and responsible government. Political sovereignty is based on the doctrine of the mandate. It means that manifesto policies are carried out by legislation passed by Parliament (we will be noting that the extension of franchise actually strengthened the power of government, not that of Parliament). However, the formidable powers to legislate without constitutional qualification allow a government with a popular mandate to make wide-ranging changes, including constitutional reforms. Thus, according to the Whitehall Model of executive dominance expounded by Birch, the government

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controls Parliament and not Parliament the government.38 Indeed, the term ‘elective dictatorship’ was used by Lord Hailsham to explain how parliamentary sovereignty had turned into the sovereignty of the House of Commons, which in turn is dominated by the party machine in the hands of the Prime Minister and the civil service.39 However, it can be argued that a different notion of popular sovereignty has been emerging as part of the contemporary constitution. According to the traditional model of the constitution which persisted until the mid1970s, MPs were elected as representatives of their constituents and were sent to Parliament to decide matters on their behalf. Where there was a matter of major constitutional importance (eg Parliament Act 1911 restricting the powers of the House of Lords) which arose and needed to be settled urgently by reference to the wider citizenry, a general election was used to determine the issue. Two elections were held in 1910 to ensure the government had a mandate for House of Lords reform. In February 1974, at a time when the nation was in the throes of a miner’s strike which was causing fuel shortages and power cuts, an early election was called on ‘who governs Britain?’. However, referendums have since been used to gauge public opinion.40 In order to put an end to the controversy following the decision by Prime Minister Edward Heath’s government to join the European Economic Community (European Union) in 1973 without gaining the approval of voters, a referendum was held by his successor as Prime Minister, Harold Wilson. The referendum campaign allowed both pro- and anti-common market views in both main parties to be articulated and then put to the electorate. The decisive vote in favour had the desired effect of removing the question of UK withdrawal from the forefront of politics. The referendum arising from the 2010 coalition agreement on whether to change the electoral system to the alternative vote method has been the only other national referendum since, and the decisive ‘no’ vote has similarly had the effect of erasing electoral reform from the immediate political agenda. In order to placate demands north of the border for

38 A Birch originally expounded this view in 1967; now see The British System of Government, 10th edn (London, Routledge, 1998) 163ff. 39 Lord Hailsham, ‘Elective Dictatorship’ (Richard Dimbleby Lecture, 1976). 40 ‘Referendums in the United Kingdom’ Report with Evidence, House of Lords, Select Committee on the Constitution, 12th Report of Session 2009–10, HL Paper 99.

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independent status the Westminster government conceded a binding referendum on Scottish independence which was held in September 2014. Although the statistical margin of 55 per cent to 45 per cent in favour of the union would appear to indicate that the matter had been settled, in practice, the campaign added impetus to the cause of Scottish Nationalists. In response the pro-union parties (Conservatives, Liberal Democrats and Labour) entered into a strong commitment to confer more powers on the Scottish Parliament, including tax-raising powers and other executive functions. Despite proceeding down this path with the promise of further legislation, Nationalist success in the 2015 General Election has demonstrated the rising tide of support for the Scottish Nationalists. In light of what appears to be an emerging trend by politicians to settle questions that are perceived as controversial and challenging by using this device, the question arises as to whether a clear rule or convention should be adopted to determine the circumstances when a referendum should be held. It has been suggested that the litmus test might be that a fundamental constitutional issue is at stake.41 Although national referendums might be regarded as exceptional, since 1975 regional referendums have become an increasing part of the contemporary UK constitution. Perhaps most prominently they have been employed in relation to the introduction of devolution (see also Chapter 8). The form of devolution proposed in the Scotland and Wales Acts of 1979 was made contingent not just on gaining majority approval in referendums in Scotland and Wales but also on at least 40 per cent of those entitled to vote voting ‘yes’ for each of the schemes to be activated. The threshold was not achieved and the proposals therefore lapsed. No such requirement was included two decades later when altogether different forms of devolution were put to the vote in Scotland, Wales and Northern Ireland. The decisive votes in favour in Scotland and Northern Ireland were a welcome demonstration of support for the proposals that had been agreed by the Westminster Parliament (see Chapter 8). Nevertheless, the Welsh Assembly government was successfully launched despite only being approved by the narrowest of margins. Equally, the introduction of an elected Mayor and Assembly for London depended on first gaining approval in a London-wide referendum. In effect, referendums have been used in 41 Ibid.

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each of these cases to consolidate major constitutional change. Popular endorsement arguably lends more permanence to the reform. Margaret Thatcher’s government was able simply to abolish the Greater London Council as a level of local government. However, it would be much more difficult in terms of practical politics for the central government to sweep away devolution and/or the London Mayor and Assembly without first gaining approval at a referendum. In recent years there have been statutes to introduce regional government and local government reform which employ referendums. These go beyond testing the water in advance of reform but rather are intended as a mechanism to promote deeper participation in the political process. The implementation of proposals for elected regional assemblies42 depended on a referendum being held in each of the designated regions to approve the principle.43 There was no scope under the Act to hold a general referendum in England on the broad principle of democratically elected regional government. The decision to set up the referendum process on a region-by-region basis at the behest of the Secretary of State was included because of a lack of political support for regional government in most parts of England. In the event the proposals for the north-east were overwhelmingly rejected, but had this scheme been approved in this referendum, a single English region would have been given a different form of regional governance while citizens in the remainder of England would not have been given the opportunity to vote on this important constitutional issue. Under the Local Government Act 2000 a referendum to replace an existing local council with an elected mayor and cabinet or a leader and cabinet would be held following a petition signed by five per cent or more of local electors.44 As part of the ‘big society’ project to empower communities the Localism Bill (enacted as the Localism Act 2011) would have allowed referendums to be held on local issues, triggered by a petition of the local community.45 If it had been put into effect this proposal would have taken power away from elected local politicians.

42

Your Region, Your Choice: Revitalising the English Regions, Cm 5511 (2002). Regional Assemblies (Preparations) Act 2003, s 1. 44 Local Government Act 2000, s 34. 45 I Leigh, ‘The Changing Nature of Local State’ in J Jowell, D Oliver, C O’Cinneide (eds), The Changing Constitution, 7th edn (Oxford, Oxford University Press, 2015) 291. 43

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At the same time, the Localism Act might be regarded as a centralising measure as it empowers the Secretary of State to use referendums both to test support for elected mayors in England’s largest cities46 and to block the spending of local authorities if this threatens to exceed the limits set by the Department of Communities and Local Government and the Treasury.47 Also, it will be apparent from the discussion above that the European Union Act 2011 introduces complex provision for the holding of referendums in a negative sense to prevent the erosion of sovereignty at the hands of the Europe Union. In terms of the overall national picture this discussion reveals that there are no clear ground rules on the conduct of referendums. In comparison, codified constitutions are likely to specify in some detail the circumstances when referendums must be held. For example, in Italy the adoption of constitutional amendments is made conditional on popular approval.48 As we have seen, referendums have been included in recent statutes for many different reasons. This trend promises to have an impact in ways that may not have been anticipated. It is very expensive to organise referendums, which might act as a disincentive to holding them with any frequency. For reasons of cost, these changes will almost certainly mean that referendum questions will be combined routinely with other elections.49 In consequence, voting in the UK may increasingly involve selecting candidates to serve at various levels of government and deciding other matters at the same time, ranging from local policy issues to technical questions of European Community law. In turn, the progressive reliance on referendums to determine such issues may have the effect of eroding the position of elected politicians otherwise expected to act as decision-makers on behalf of the wider electorate under the traditional model of the constitution. The Jackson Case: A Revised Interpretation of Sovereignty? Finally, we must consider Jackson v Attorney General.50 The decision by the House of Lords must be viewed in light of the wider debate over 46

Localism Act 2011, s 21 and Schedule 2. Localism Act 2011, s 72. 48 Italian Constitution 1948, Art 138. 49 Localism Act 2011, s 53(3). 50 Above n 11. 47

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the respective roles of Parliament and the judiciary.51 It has already been noted above that the issue of parliamentary sovereignty took centre stage when the courts were recently called upon to consider the validity of the Hunting Act 2004, which banned the hunting of foxes with dogs in the face of strong opposition from the hunting lobby. Also, we have seen how the Parliament Acts 1911 and 1949 radically modified the powers of the House of Lords.52 The Hunting Act 2004 was relatively unusual in that it had been repeatedly rejected by the House of Lords, and the House of Commons eventually invoked the override procedures set out under section 2(1) of the Parliament Act 1911 and the Parliament Act 1949 which allowed legislation to be passed into law without the approval of the House of Lords.53 It is important to remember that by passing the Parliament Acts of 1911 and 1949 Parliament had, in effect, reconstituted itself after the settlement of 1689 by changing the method for approving legislation in circumstances specified in these Acts. The claimants attempted to argue that the 1949 Act, which had reduced the delaying power of the Upper House to one year, was made by a form of subordinate legislature,54 and that it had not been validly enacted. In consequence, they sought a declaration that it should have no legal effect. It was possible to present such a case because the Parliament Act 1949 also depended upon section 2(1) of the Parliament Act 1911 and, therefore, it too only received the approval of the House of Commons and the Crown (and not the House of Lords). The effect of the 1949 Act was to increase the powers granted to the House of Commons, and the claimant’s case further rested on the proposition that this extension by the House of Commons of its own authority ran counter to the principle that delegates are prevented from increasing their own powers.

51 See J Jowell, ‘Parliamentary Sovereignty under the New Constitutional Hypothesis’ [2006] PL 562. 52 The Life Peerage Act 1958 and the House of Lords Act 1999 modified the composition of the second chamber. 53 The Parliament Acts have been invoked on rare occasions: the Government of Ireland Act 1914, the Welsh Church Act 1914, the War Crimes Act 1991, the European Parliamentary Elections Act 1999, the Sexual Offences (Amendment) Act 2000. 54 According to a view expressed by W Wade, Constitutional Fundamentals (London, Stevens, 1980) 27–28.

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The House of Lords (Judicial Committee) rejected this argument. Their Lordships held that the Parliament Act 1911 clearly provided that ‘any’ legislation passed in accordance with section 2 would be an Act of Parliament, and that such legislation should not be classified as a species of subordinate legislation. Taking full account of the historical background leading up to its passage, their Lordships preferred to view the effect of the Parliament Act 1911 as a restriction of the powers of the House of Lords rather than an extension of the powers of the House of Commons. It was also held that there was nothing in the 1911 Act which prevented the use of the procedure laid down in its provisions to amend the Act. In other words, the 1949 Act, which had the effect of doing precisely this, by restricting the delaying power to one year, was deemed to be valid. According to Dicey, the basic rule of the constitution is that Parliament has unlimited sovereignty. Parliament is omnipotent and therefore any valid law passed by Parliament would be recognised by the courts and it would trump any previous Act, including a law modifying the role of Parliament.55 On the other hand, critics of Dicey, notably Jennings, believed that legal sovereignty merely refers to the fact that the legislature has for the time being powers to make laws of any kind in the manner and form required by law,56 implying that effective qualifications to sovereignty might be effectively included. This judgment has not resolved the academic dispute, but some obiter statements depart from a Diceyan position by envisaging possible limits to parliamentary sovereignty. Lord Steyn and Baroness Hale stated that new laws could be passed to change manner and form in respect to the passage of legislation, by for example introducing a two thirds majority rule applying under particular conditions. Certain limits to sovereignty were linked to the exceptions contained in the Parliament Act 1911. Seven judges (out of nine) opined that any statute not receiving the consent of the House of Lords, which extended the life of a Parliament beyond the five years stipulated in the Parliament Act of 1911, would not be recognised by the courts as valid.57 On this view, it can be claimed that Parliament has bound its successors in regard to any Bill containing such a provision. 55

See quote from Dicey, above n 2, and ibid, ch 1. Jennings, The Law and the Constitution, 5th edn (London, University of London Press, 1959) 152ff. 57 Young, above n 16, 193. 56 I

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The Law Lords have been criticised at a technical level, perhaps unfairly, for failing clearly to resolve the conflicting legal issues raised in Jackson. However, it should be stressed that it is the political context which is of central importance here. In the first place, under the rules of the constitutional game as it is currently played, opening up the possibility of a successful direct challenge to legislation because of its failure to gain the approval of the unelected House of Lords would undermine the democratic process, and therefore probably precipitate a response from Parliament anyway. In the second place, as Lord Bingham recognised in his judgment, the modification to the principle in the Parliament Acts which has allowed the elected House of Commons to prevail over the House of Lords has been accepted by political players from all parties since the passage of the 1911 and 1949 Parliament Acts. Reference to practice appears to confirm the famous truism that ‘the constitution is no more and no less that what happens.’58 Finally, an emerging judicial view is also implied in some of the judgments which questions the unqualified supremacy of Parliament and foresees the possibility of judicial intervention to invalidate legislation where it involves flagrant abuse of power (threats to human rights, removal of judicial review, etc).59 It should be apparent that a significant step in the direction of challenging sovereignty through court decisions would fundamentally change the balance of the constitution (see Chapter 9 for further discussion on this point). THE RULE OF LAW

The conception of the rule of law expounded by Dicey needs to be understood together with the doctrine of parliamentary sovereignty. This is because the related concept of the rule of law, in effect, imposes qualifications to what appears to be the unlimited nature of parliamentary sovereignty. As Dicey explained: The sovereignty of Parliament and the supremacy of the law of the land … may appear to stand in opposition to each other, or to be at best only counterbalancing forces. But this appearance is delusive; the sovereignty of 58

J Griffith, ‘The Political Constitution’ (1979) 42 MLR 1, 19. M Elliott, ‘The Sovereignty of Parliament, the hunting ban and the Parliament Acts’ (2006) 65 Cambridge Law Journal 1, 3. 59

66 Constitutional Principles Parliament, as contrasted with other forms of sovereign power, favours the supremacy of law, whilst the predominance of rigid legality throughout our institutions evokes the exercise, and thus increases the authority of Parliamentary sovereignty.60

The rule of law is formally defined by Dicey as having three rather different connotations. First, it recognises the predominance of regular law over arbitrary power. There is an assertion that no one should be punished except for a clear breach of the law established in the ordinary courts. In a more general sense, the rule of law means that there should be an absence of arbitrary power and suggests that government and other public bodies require lawful authority in order to act. In terms of the practice of government in a contemporary context, this would rule out wide discretion placed in the hands of the executive which is not subject to strict legal qualification. In practice, it is not uncommon for modern legislation to grant wide discretionary powers. For example, section 3 of the Security Services Act 1989 empowered the Home Secretary to issue a warrant authorising the taking of action for the purpose of assisting the service to discharge any of its functions in connection with the obtaining of information. This could be done without the need to actually specify any suspected offence. Indeed, the proliferation of discretionary powers is a characteristic of the modern state. Second, the Diceyan approach to the rule of law requires strict equality before the law in the sense that no one is above the law and all persons are equally subject to the jurisdiction of the ordinary courts. This is a principle which, in theory, applies from the highest government ministers and top officials to the most humble citizens. It means that the government and the executive should be amenable to control by the courts. This control element was important for Dicey as it forms the basis of his criticism of the droit administratif (see discussion of the red light and green light theories of administrative law in Chapter 7). While the French system is characterised as affording special protection to officials, in contrast, the rule of law principle of equality was demonstrated by the famous decision in Entick v Carrington.61 This was the

60 A Dicey, An Introduction to the Law of the Constitution, 10th edn (Basingstoke, Macmillan, 1959) 406. 61 (1765) 19 St Tr 1030.

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occasion when Lord Camden CJ made an affirmation of the normal process of law. It was held that, in the absence of a statute or common law granting authority, the actions by the representatives of the King were unlawful. On closer examination, the idea of equality can be seen to be qualified in a number of respects. In the first place, certain groups enjoy legal immunity. To take some obvious examples, MPs are granted special (parliamentary) privileges, the Queen has immunity from legal proceedings, and diplomats also enjoy immunity. In the second place, inequality is present because discretionary powers are given to officials. They are granted powers that members of the public do not have (eg to raise taxes, to make compulsory purchases of land). Also, legislation frequently distinguishes one category of persons from another. To cite some examples, as part of housing law land lords are granted rights not granted to tenants, and likewise under employment law employers enjoy distinct rights to their employees. Third, in the absence of a codified constitution, Dicey pointed out that the rights of individuals have been defined and enforced by the courts. He argued that the British constitution is a result of the ordinary law of the land, in the sense that remedies protecting the liberties of the citizen have been developed under the common law. The concept of negative liberty works on the basis that, rather than setting out rights in positive form, conduct is lawful unless it contravenes specific law. From a Diceyan standpoint, the common law principles of natural justice (see the discussion of judicial review in Chapter 7) that are applied by the courts might be regarded as an expression of the rule of law. However, the view that rights in general can be protected in this way is difficult to sustain in the constitution as it functions today. In practice, there has been increasing reliance on statute law to set out rights and qualify rights. The most important recent example of this trend was the enactment of the HRA 1998. The HRA 1998 has the effect of incorporating the ECHR into domestic law, and so from 2 October 2000 the Convention became a surrogate ‘Bill of Rights’ for the United Kingdom. (See Chapter 9 for wider discussion of the debate surrounding constitutional codification.) The numerous statutory provisions that have reduced rights or qualified rights equally cast doubt on Dicey’s faith in the common law as the primary legal means for protecting the citizen’s liberties against the state. For example, the Criminal Justice and Public Order Act 1994

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placed further restrictions on the right of citizens to demonstrate and introduced important qualifications to the right to silence in criminal trials. Faced with such assaults on individual liberty, judicial eloquence has not been backed up by effective action. In Liversidge v Anderson62 Lord Atkin stated: In this country, amid the clash of arms, the laws are not silent. They may be changed but they speak the same language in war as in peace. It has always been one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachment on his liberty by the executive.

Lord Atkin’s worthy defence of freedom is found in a dissenting judgment. The minister’s decision to detain persons of external origin without cause was upheld by the House of Lords. It has been suggested that the outcome might have been different in today’s climate of increased judicial activism, but the point is that the courts cannot be depended upon to uphold rights, especially when there is a climate of great public fear and concern. Further, in R v Secretary of State for the Home Department, ex parte Brind,63 the House of Lords was not prepared to intervene to prevent a government broadcasting ban aimed at political parties sympathetic to paramilitary organisations in Northern Ireland who were not prepared to denounce the use of violence to secure their political aims. In general, the rule of law prevents governments from legislating retrospectively because of the injustice that such measures would be likely to cause. There have been exceptions, for example, where the implications of a court ruling threaten to have far-reaching consequences for the government.64 The Response to Dicey Does the rule of law enable us to distinguish democratic government from dictatorship and does it provide a sound basis for setting out constitutional rights? According to Dicey’s view, a society is governed under

62

[1942] AC 206, 244. [1991] 1 AC 696. 64 For example, the decision in Burmah Oil Co v Lord Advocate [1965] AC 75 prompted the War Damages Act 1965. 63

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the rule of law only if it meets his criteria, and it ultimately amounts to a political judgment whether a nation achieves such standards. In Dicey’s formulation an emphasis is placed on individual rights rather than social rights. The concept has the effect of excluding all but his definition of what comprises a liberal democracy from having the rule of law. Jennings launched a substantial critique of Dicey’s conception of rule of law65 because he argued that the rule of law must amount to more than: ‘law and order is better than anarchy.’ It is a doctrine which must be seen to exist within a context of democratic government. The problem is that without a moral dimension the rule of law could as easily be applied to a tyranny as to a liberal democratic society. It could describe any society where law and order exists, including the German Third Reich. Ferdinand Mount has attacked Dicey’s doctrine of the rule of law as being inescapably narrow, addressing rudimentary personal rights such as free speech and assembly but overlooking ‘the complex and diverse local and national bureaucracies both inside and outside the governmental system which had already become a feature of British life.’66 It is not surprising then that the Diceyan view has faced sustained criticism from left-of-centre advocates of progressive social reform, like Jennings, Robson, and Laski, because the rule of law overlooks the problem of addressing collective rather than individual social and economic rights.67 Formal equality under the law means very little if a large proportion of the population suffers from economic and social marginalisation. From a left-of-centre standpoint constitutional rights need to be defined beyond the liberal agenda of freedom of speech, religion, and assembly to include basic rights to housing, health, and education. Furthermore, in the current environment particularly in light of the introduction of courts fees and cuts to the availability of legal aid contained in the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the question of access to the law itself is controversial. A reduction 65 The Law of the Constitution, 10th edn (London, University of London Press, 1959). 66 F Mount, The British Constitution Now: Recovery or Decline? (London, Mandarin, 1993) 58. 67 J Jowell, ‘The Rule of Law Today’ in J Jowell and D Oliver (eds), The Changing Constitution, 5th edn (Oxford, Oxford University Press, 2004) 8.

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in the availability of legal assistance means that for many people the prospect of obtaining redress in the courts is not a realistic option. As a result there has been the emergence of alternative forms of redress: eg ombudsmen, law centres, and the citizens’ charter (which has been rebranded as Service First). Bradley and Ewing argue that ‘it is not possible to formulate a simple and clear cut statement of the rule of law as a broad political doctrine.’68 On the positive side, the rule of law has left the United Kingdom with a political and legal culture with an emphasis on due process. Put in simple terms, there is an expectation that government and the apparatus of state power will be exercised by ministers and officials operating within law. In turn, this power is arbitrated by an independent judiciary. It is generally the case that rule of law principles operate as a set of institutional restraints to the exercise of executive power. The rule of law addresses certainty in decision making and it determines how a satisfactory balance between rule and discretion can be reached when putting the law into effect. The problems might arise if the courts become too intrusive, as many would argue that the judges should have a subordinate role to a democratically elected Parliament and any government formed from it.69 Nevertheless, the judicial oversight function is very important and is closely related to the role of judicial review in its supervisory role under the ultra vires principle which will be discussed later (see Chapter 7). Dicey developed these ideas in a different era. The rule of law was presented as an ideal. Now it should be the basis for criticising, not admiring, our legal culture. In response to the profound changes that have taken place since Dicey, public lawyers and political theorists have been required to adapt these principles. We need to consider in the light of current constitutional practice the reality of questions about the ability of government to predominate over Parliament often referred to by Lord Hailsham’s term ‘elective dictatorship’. Indeed, it has been suggested that the United Kingdom has witnessed the triumph of a ‘Model of Governance’ over a ‘Model of Law’ in which regulation has become the basic technique of administration, and administrative programmes 68 A Bradley and K Ewing, Constitutional and Administrative Law, 14th edn (Harlow, Pearson, 2006) 105. 69 See, eg, M Loughlin, Public Law and Political Theory (Oxford, Oxford University Press, 1992) 197ff.

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are reduced to numbers and evaluated according to measures of value for money.70 If this is the case, how can the situation be redressed? In subsequent chapters we will see the need to identify the shortcomings of the mechanisms for control at the level of the administrative state and in regard to the conferment of rights. In a somewhat different sense, the rule of law might imply that law and order is always better than anarchy. However, the rule of law is not achieved simply by the semblance of order (eg citizens generally conforming to arbitrary and unjust law in Nazi Germany 1933–45 or in Soviet Russia, particularly under Stalin 1922–53) but it depends on restraints that apply to governments and that governments apply to themselves. The terms of reference of the Hutton Inquiry established by Tony Blair as Prime Minister provided scope to investigate the inner workings of government following disquiet over the justification for UK involvement in the Iraq war.71 Prime Minister Major set up the Scott Inquiry (discussed in Chapter 6) following the collapse of the Matrix Churchill trial. Both investigations were sanctioned not withstanding the potentially far-reaching implications for the government. In contrast, the Prime Ministers of Italy (Berlusconi 2001–06 and 2008–11) and Thailand (Thaksin Shinawatra 2001–06) have used their authority to suppress investigation of alleged abuse of the political system and ignored objections to a conflict of interest between their personal positions and their political office. The rule of law suggests that law and order and political liberty are mutually dependent, and it demands respect for what we termed constitutionalism (see Chapter 1). In the United Kingdom this will usually be associated with adherence to procedural rules and adherence to important constitutional conventions (discussed in Chapter 2). SEPARATION OF POWERS

The rationale behind the prescriptive doctrine of separation of powers is to avoid the concentration of power in the hands of a single 70 See, eg, C Harlow and R Rawlings, Law and Administration, 3rd edn (Cambridge, Cambridge University Press, 2009) 59ff, and C Harlow, Accountability in the European Union (Oxford, Oxford, University Press, 2002) 189. 71 Report of the Inquiry into the Circumstances Surrounding the Death of Dr David Kelly CMG by Lord Hutton [2004] HC 247.

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person or body. The diffusion of authority among different centres of decision-making has long been regarded as a safeguard against totalitarianism and a means of preventing the abuse of power. Contemporary views of the separation of powers originate from eighteenth-century thought. In The Spirit of Laws72 Montesquieu stated that all would be lost: ‘if the same man or the same ruling body, whether of nobles or of the people, were to exercise these three powers, that of law making, that of executing public resolutions, and that of judging crimes and civil causes.’ Tom Paine had written in 1792:73 ‘From the want of a constitution in England to restrain and regulate the wild impulse of power, many of the laws are irrational and tyrannical, and the administration of them vague and problematical.’ The constitution of the United States is heavily influenced by the idea of limiting and checking power. A clear distinction is made between legislative, executive, and judicial functions. For example, the legislative body is an elected Congress comprising the Senate and the House of Representatives. Congress is able to initiate legislation but this requires presidential approval. Equally, the President can initiate legislation, which requires approval from Congress. Another feature is that the government is formed from outside Congress. However, Congress has assumed a crucial role in keeping check on the government by a network of committees. The President has executive power and is responsible for appointing the government. However, the most important nominees for government and also for the Supreme Court require the approval of the Senate. An element of tension between the three branches is deliberately built into the system. The Watergate Affair involved the investigation by Congress of serious malpractice and a subsequent cover-up by the President, and it demonstrated that even the President could be forced to resign for a gross abuse of power.74 The UK constitution, by way of contrast, has no clear separation of powers. Rather, there is a limited separation of functions and a considerable number of overlapping powers. This does not mean, of course, that legal process is not employed as means of subjecting governmental power to legal control. But it might be more accurate to characterise the constitution as having a number of checks and balances. These will 72

Baron de Montesquieu, De L’Esprit des Lois [1748] Book XI, ch 6. T Paine, Rights of Man [1791] (London, Penguin, 1969) 217. 74 See US v Nixon (1974) 418 US 683. 73

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be considered at greater length in chapters five and six. Although the concept of separation of powers has not been deliberately incorporated into the UK constitution there is a long history of placing limits on the exercise of power. The Magna Carta, which was drawn up in 1215 as an agreement between the King and his barons was an early attempt to place formal limits on the exercise of royal power. In the seventeenth century the attempt by James I, and more especially Charles I, to revive the doctrine of absolute kingship based on divine right, led to the civil war between King and Parliament between 1642 and 1649. The conflict arose from the attempt to rule and raise taxes without the assent of Parliament. It resulted in a victory for Parliament and a short spell of republican rule under Oliver Cromwell. The monarchy was restored shortly after Cromwell’s death. Although Charles II was prepared to accept the throne on terms set out by Parliament, his brother James II provoked a renewed crisis by seeking to re-establish absolute rule and to favour Catholics in a nation which was predominantly Protestant. His conduct was in blatant defiance of Parliament, which was dissolved by the King in July 1688. This prompted a crisis. This attempt to rule without Parliament and then the prospect of a Roman Catholic successor to the throne in fact led to a collapse in support for the King, who fled from the country. At this point the terms of a new constitutional settlement were set out by an assembly of peers and MPs that declared itself to be Parliament. William of Orange, who was married to Mary, James II’s daughter, was invited by Parliament to take over the throne. Clearly, the supremacy of Parliament over the absolute supremacy of kings was demonstrated by the passage of the Bill of Rights of 1689, which engineered the change to the royal succession. However, apart from securing a Protestant succession, the Bill of Rights was primarily intended to make far-reaching limitations on the absolute power of the monarch. In the first place, it provides that Parliament cannot be suspended by the monarch except with its own consent. Second, it confirmed that the levying of taxes must be approved by Parliament, and third, it states that a standing army cannot be formed in peacetime without the consent of Parliament. The courts accepted this political settlement as law by recognising that statutes passed by Parliament, not, as previously, ‘enacted by the monarch in Parliament’, had to be enforced and that its enactments take precedence over the common law. In sum, Parliament had imposed conditions on the power of the King.

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Fusion of Powers It has already been pointed out several times that the UK constitution evolved gradually. It was not designed according to a blueprint which took on board the concept of separation of powers. In consequence, until very recently there has been no clear demarcation between legislative, executive, and judicial functions in the contemporary state. In fact there are institutions which combine more than one of these functions. The sovereign is technically part of all three branches. From the throne in the House of Lords, the Queen opens each session of Parliament. The government governs in her name. Justice is dispensed through the royal courts. In practise however, there is a strong element of constitutional limitation on the exercise of royal power. This is to the extent that there is no active contribution to the routine workings of government. In addition to legislation such as the Act of Settlement of 1701, this has often been achieved by the recognition of important conventions in relation to the exercise of prerogative power. Also, it was confirmed in Lord Coke’s landmark judgment in Prohibitions del Roy75 that the King, in person, was not able to judge disputes. The most obvious overlapping of powers is in Parliament. Rather than having a clear separation between legislature and executive as exemplified in the US constitution, the UK government is formed from within Parliament. It survives only if it is able to maintain its majority in the House of Commons. Indeed, this is what Walter Bagehot writing in the nineteenth century was keen to emphasise when he stated that ‘the efficient secret of the English Constitution may be described as the close union, the nearly complete fusion of executive and legislative powers.’76 After the majority party in the House of Commons is recognised as the government, its continuation in office depends upon being able to maintain a majority whenever there is a vote on government legislation or on major issues of confidence. The whips (party managers) have emerged to deliver this majority. As a result, there is no real impediment to the legislative competence of Parliament. This is because the government is able to count on its majority in the House of Commons to secure the passage of its legislative programme. What we described earlier as the supremacy of Parliament is, in fact, the supremacy of the 75 76

(1607) 77 ER 1342; 12 Co Rep 63. W Bagehot, The English Constitution [1867] (London, Fontana, 1963) 65.

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executive. It was noted earlier that this feature of the constitution has been termed ‘elective dictatorship’. A central concern is to prevent the abuse of power by establishing legal means of controlling power, and a key question for any student of the constitution is whether ministers as Members of Parliament are made sufficiently accountable to Parliament for their actions (see Chapter 6). Parliament, the Lord Chancellor and Supreme Court As part of the traditional constitution there has been an overlap between legislative and judicial powers in several different ways. The office of Lord Chancellor demonstrated this overlapping of powers and functions most graphically. First, the Lord Chancellor as a member of the House of Lords was head of the judiciary and President of the Chancery Division of the High Court. This position allowed the incumbent to sit personally as a judge in the House of Lords77 and the Judicial Committee of the Privy Council and to determine which other Law Lords sat on appeals.78 Second, this was because the incumbent held executive office as ministerial head of a government department and, by virtue of this position, was given a seat at the Cabinet table. Third, the Lord Chancellor not only had the right to participate in the legislative proceedings of the House of Lords but also presided over the House as its Speaker. In common with other ministers, the Lord Chancellor introduced legislation and participated in debates. This position produced a direct conflict of interest. For instance, the Lord Chancellor’s Department (now renamed the Ministry of Justice) had a central role in the appointment of senior judges. Parliament is primarily a legislative and scrutinising body, but it contained the Judicial Committee of House of Lords, which was until October 2009 the highest domestic appellate court. The Lords of Appeal in Ordinary (the Law Lords) were the judges that made up the highest domestic appellate

77 The Constitutional Reform Act 2005 prevents the Lord Chancellor from sitting as a judge. It also allows the Lord Chancellor to be a serving member of the House of Commons. 78 Also, under the Constitutional Reform Act 2005, from 2006 the Lord Chief Justice is designated as head of the judiciary and an elected Lord Speaker presides over the House of Lords.

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court while h aving the right to sit as peers in the House of Lords.79 Also, the appeals to the House of Lords sometimes involved political matters of controversy concerning the government. As we will see in Chapter 7, after the Human Rights Act was passed incorporating Article 6 of the ECHR, doubts were raised over the propriety of Law Lords being members of the legislature and of the Lord Chancellor acting as a Cabinet minister while sitting as a judge in such a court. The Constitutional Reform Act 2005 not only expressly recognised the constitutional importance of separation of powers but it provided for the introduction of a United Kingdom Supreme Court to replace the House of Lords. The new court has a similar jurisdiction to the House of Lords. Further, the methods of judicial appointment and of court administration have been modified. Post 2009 newly appointed Supreme Court judges, despite still having the title ‘Lord’, no longer have the right to sit in the House of Lords, and any previously appointed Law Lords are disqualified from participating in the legislative work of the Upper House whilst they remain in judicial office. Nevertheless, the House of Commons and the House of Lords can sit as courts that have the power to discipline their own members. The Attorney-General is the law officer of the Crown. In this capacity he or she acts as the government’s principal legal advisor, but the Attorney-General is also a minister who is able to initiate criminal and civil proceedings in the courts when this is seen as in the public interest. There is an expectation that ministerial duties will be performed independently of the government but there may be a clear conflict of interest. (For example, the Scott Inquiry was critical of the advice given by the Attorney-General over the use of public interest immunity certificates to prevent evidence going before the courts.) The Judicial Role In the light of the overlapping of powers characteristic of the constitution, to what extent does the United Kingdom have an independent and impartial judiciary? With the notable exception of the Lord Chancellor, 79 The Law Lords, with some other senior judges, have also been eligible to sit on the Appellate Committee of the Privy Council to hear appeals from mainly Commonwealth jurisdictions.

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who was always a prominent supporter of the government, senior judges are not appointed on grounds of their political affiliations and they have been granted protection against summary dismissal since the Act of Settlement of 1701. The rule of law doctrine, as explained above, requires the government/executive to operate according to the law. An independent judicial branch is required to ensure that this occurs. In recent times the judicial review procedure has become the principle method of challenging the legality of the actions of public bodies, whether they are operating under statutory powers or under prerogative powers. Procedural reforms and the development of the grounds of judicial review have contributed to a heightened profile for the courts and a period of greater judicial activism. There has been an enormous increase in the number of cases coming before the courts. During the late 1980s civil servants were alerted by a general circular called ‘The Judge over your Shoulder’ to be aware of judicial review. In the estimation of some commentators, the courts were assuming the guise of a surrogate opposition at a time when the official party political opposition in Parliament was particularly weak. However, there is a danger that the authority of Parliament could be undermined by excessive judicial activism. Indeed, ministers have claimed that instances of judicial activism undermine the authority of Parliament and their ability to implement policy. On the other hand, securing executive accountability to the law must equally be regarded as central to judicial review. The friction between the executive and the courts is often most obvious in areas of government competence falling under the Home Office. The examples which follow will serve to illustrate this in different ways. In M v Home Office80 an asylum seeker from Zaire was seeking judicial review of a decision by the Immigration Service (an executive agency which is part of the Home Office) to deport him, but the hearing coincided with the date set for his repatriation. The prospect of deportation before the judicial proceedings were complete led M’s lawyers to make an emergency application to the court to put matters on hold. The application was successful and an undertaking to the judge was given from the Home Office not to act while the case was pending. This instruction was not adequately communicated by the Home Office to the Immigration Service. In the meantime, M was flown out of the country. 80

[1994] 1 AC 377.

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Contempt proceedings were brought by M’s lawyers against the Home Secretary for ignoring a court order. This boiled down to a question of whether the courts were in a position to issue coercive orders against ministers. The sovereign’s courts were taking punitive action against the Crown in the guise of her ministers. The House of Lords held that the judge in the original case had jurisdiction to issue injunctions, including interim injunctions, against ministers and other officers of the Crown. At the same time, an injunction would be binding against the Home Secretary personally, notwithstanding the fact that he was operating in an official capacity and according to advice given to him. Reaching this conclusion involved drawing a distinction between the immunity from judicial process enjoyed by the Queen in person, and making a finding against a minister in his or her official capacity (or his or her department) or against a minister personally. It was reasoned that a finding of contempt against a government department would, in circumstances such as those applying in the instant case, ‘vindicate the requirements of justice’ and ensure that orders of the court are obeyed. This is a highly significant outcome, since it illustrates that the courts will intervene if a government department seeks to interfere with the administration of justice. In Duport Steels Ltd v Sirs 81 Lord Scarman and Lord Diplock recognised the danger of judges being drawn into politics and realised that too much discretion in disregarding a statute could lead to uncertain and arbitrary law. A steel company took an action against a trade union contesting the union’s immunity from tortuous liability under the Trade Union and Labour Relations Act 1974. In particular, the court had to decide whether or not secondary picketing by workers during the course of an industrial dispute was lawful. This was at a time when the Conservatives had recently won an election on a promise to curb trade union power but this proposal (including a provision to outlaw secondary picketing) was a matter of great public controversy between the major political parties. The Court of Appeal, presided over by Lord Denning MR, found in favour of the steel company. The House of Lords overturned the decision and by doing so upheld the statutory rights of trade unions. Their Lordships by overruling the Court of Appeal were not supporting the political position of the trade unions

81

[1980] 1 WLR 142, HL.

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in their industrial action. They were merely fulfilling their constitutional role in interpreting the statute according to the will of Parliament. Lord Scarman stated that ‘the constitution’s separation of powers, or more accurately functions, must be observed if judicial independence is not to be put at risk.’ A few months later the Employment Act 1980 came into force and outlawed the practice of secondary picketing that had been deemed by the House of Lords to be lawful under the previous statute. In a somewhat different context there is a constitutional convention (albeit a weak one) holding that ministers should not directly criticise judicial decisions. Such attacks have the potential to undermine the role of the courts in policing the executive under the rule of law. In what we have described as a period of judicial activism, the courts have been much more prepared to intervene in judicial review cases setting limits on executive power. Government ministers (both Conservative and Labour) have responded by being much more forthright in their criticism of the courts, especially where they appear to stymie the main thrust of legislation. A good example of such a clash was the ministerial reaction to a successful challenge to the Nationality, Immigration and Asylum Act 2002. The Act was introduced to clamp down on what the government portrayed as a flood of bogus claims for asylum. In R (on the application of Q) v Secretary of State for the Home Department 82 there was a challenge by way of judicial review to the way the measures were being applied by the Immigration Service. It was held that the requirement under section 55 of the Act that claims must be made as soon as reasonably practicable was being interpreted in a way that was unlawful. Its effect was to deny natural justice, and the consequent withdrawal of all support to those who did not make prompt claims would leave asylum seekers destitute. In turn, this interfered with the rights of asylum seekers under the European Convention on Human Rights by being in breach of Articles 3 and 8. (Since 2 October 2000 the HRA 1998 requires the courts to interpret legislation in a manner which is consistent with Convention rights.) The decision in the Administrative Court was strongly attacked by the Home Secretary, and the press (including The Times and the Telegraph) took their cue from the minister with accusations that the judge was deliberately overturning the will of Parliament and thereby 82

[2003] EWHC 195 Admin, The Times, 20 February 2003.

80 Constitutional Principles

undermining government policy. However, the conclusions reached in the Administrative Court were largely supported by the Court of Appeal, and no further appeal to the House of Lords was attempted by the Home Office. In other words, far from deliberately thwarting the will of Parliament, the judicial branch was merely performing its role by ensuring that executive power was being exercised according to the rule of law.83 Judges do not personally respond to criticism by ministers and the press. It has been suggested that a convention to prevent outspoken attacks of this kind should be followed more strictly to preclude attempts by politicians to apply pressure on the courts. The examples that have just been discussed suggest that to a considerable degree the judicial branch is prepared to follow a line which is independent of government. However, in certain policy areas the courts have been extremely reluctant to overturn decisions made by government. This has been especially true in cases involving national security, for example, R v Secretary of State for the Home Department, ex parte Cheblak,84 where the court held that a statement from the authorities that their action in serving a deportation notice was for national security reasons was sufficient under the enabling Act. Overlapping Powers It has been explained that concepts of the separation of powers have often attempted to distinguish legislative, executive, and judicial functions and propose that one organ of government should not exercise the functions of another. However, if we examine the role of the executive in the United Kingdom, we find there is an overlapping of both executive and legislative powers and executive and judicial powers. The executive functions of ministers and their departments are frequently combined with powers to formulate delegated legislation. It is common for legislation to provide scope for sub-rules and regulations to be drawn up by officials. The term ‘Henry VIII clause’ is applied when there is wide discretion in the making of delegated legislation.85

83

See A Bradley, ‘Judicial Independence under Attack’ [2003] PL 397. [1991] 1 WLR 890. 85 See, eg, the Deregulation and Contracting Out Act 1994. 84

Conclusion: Redefinitions of Power 81

Equally, the growth of the administrative state resulted in officialdom having judicial functions in many policy areas ranging from the allocation of means-tested benefits to the determination of immigration appeals. Of course, procedural safeguards were incorporated as part of the adjudication process operated by tribunals and other bodies but it is significant that the status of tribunals has been changed with the introduction of a national tribunal service comprising a First-tier and Upper-tier tribunal. Tribunals are now closer to being administrative courts presided over by judges and independent of the departments whose decisions they review. The constitutional reforms introduced by the Labour administration between 1997 and 2001 have had a farreaching impact on the shape of the constitution and it is not surprising that there have been shockwaves which have resonated since their introduction. For example, the HRA 1998 and the devolution legislation have extended the constitutional dimension to the role of the judiciary. In response, the Labour government reacted with further reform introducing the Constitutional Reform Act 2005 which, as we shall see in Chapter 7, addresses the conflicts which arise from the overlapping powers and functions that were integral to the Lord Chancellor’s office. CONCLUSION: REDEFINITIONS OF POWER

It is worth asking how useful this eighteenth-century conception of separation of powers is, given the present shape of the state and taking account of the way power is currently exercised. The position has changed radically over recent years. For example, since 1979, the United Kingdom has experienced: privatisation of public utilities; complex layers of state regulation; deregulation; new public management; the creation of ‘next steps’ agencies; contracting in the public sector; compulsory competitive tendering in local government; public–private partnerships; the citizen’s charter; and health service reorganisation (to name but a few of the most prevalent initiatives). State institutions, particularly central and local government, are increasingly tied into relationships with business, with the voluntary sector, and with consumer groups in many different ways. These modified approaches clearly have important implications in the shaping and management of our public institutions. Frequently services are publicly funded but the service is delivered under contract by the private sector (such services ranging

82 Constitutional Principles

from prisoner escort, street cleaning, and refuse disposal to school meals). It will be apparent that the term ‘governance’ has been used to describe the divergent patterns and tangled interweaving of public and private bodies.86 In addition, the HRA 1998 and the Freedom of Information Act 2000 have imposed additional obligations on public authorities in their dealings with the citizen. Another dimension has been the increasing prevalence of EU law as part of the domestic scene. What this really means is that the United Kingdom now has a ‘multi-layered’ constitution87 comprising policy networks at sub-national (ie devolved), national, and supra-national level. On the one hand, the public have been conferred with a new sets of rights and, on the other, there are increasingly dense networks through which power is exercised. Channels of accountability and perception between the political masters and end users are often blurred (take, for instance, the hostile public reaction to many aspects of EU policy). Such complexity may even call into question the predominant role of the state, and, in particular, the capacity of any government to intervene effectively by legislative means to address contemporary problems. For example, levels of immigration have remained high despite legislative initiatives in this field by successive administrations. As the UK constitution lacks any sense of overall design, the extent to which the separation of powers should have a central future role can be questioned. The most important consideration may be avoiding potential conflicts of interest between constitutional players rather than reshaping the institutions according to a particular model. In sum, these developments suggest that it is no longer realistic to analyse our constitution in terms of a unitary, self-correcting constitution. The idea which has been central to this discussion is that under a constitutional framework, whether formal or informal, power must have limits, and in order to achieve such limits there needs to be a division of power. In the UK constitution the separation of powers is an untidy concept. The idea certainly does not apply in the strict sense, as it does to a much more obvious extent in the United States. It is more accurate to conclude by emphasising that there are conventions that 86 See, eg, R Rhodes, Understanding Governance: Policy Networks, Governance, Reflexivity and Accountability (Buckingham, Open University Press, 1997). 87 See N Bamforth and P Leyland, ‘Introduction’ in N Bamforth and P Leyland (eds), Public Law in a Multi-Layered Constitution (Oxford, Hart Publishing, 2003).

Conclusion: Redefinitions of Power 83

are observed which safeguard some division of power and functions between the various branches of government. For instance, parliamentary select committees dominated by the party that forms the government frequently criticise the government and thereby provide some check on the executive. Judges generally display caution in making judgments that are politically sensitive. Ministers usually show some reserve in their criticisms of judicial decisions. The Lord Chancellor as the minister overseeing the process confirmed the appointment of judges for many years before the introduction of a Judicial Appointments Commission on grounds of professional competence rather than political affiliation. The idea of checks and balances rather than separation of powers conveys the importance of creating a tension between institutions with different constitutional functions. But reaching a satisfactory balance between these considerations remains problematic and the far-reaching changes that have been introduced in recent years threaten to present further challenges (see further Chapters 7 and 9 on the constitutional role of the courts). FURTHER READING Allan T, Law, Liberty and Justice: The Legal Foundations of the British Constitution (Oxford, Oxford University Press, 1993). Bingham T, The Rule of Law (London, Allen Lane, 2010). Bogdanor V (ed), The British Constitution in the Twentieth Century (Oxford, Oxford University Press, 2003). Craig P, ‘Dicey: Unitary, Self-correcting Democracy and the Rule of Law’ (1991) 106 Law Quarterly Review 105. Dicey A, Introduction to the Study of the Law of the Constitution, 10th edn (London, Macmillan, 1959). Elliott M, ‘The Principle of Parliamentary Sovereignty in Legal, Constitutional and Political Perspective’ in J Jowell, D Oliver and C O’Cinneide (eds), The Changing Constitution, 8th edn (Oxford, Oxford University Press, 2015). Goldsworthy J, Parliamentary Sovereignty: Contemporary Debates (Cambridge, Cambridge University Press, 2010). Goldsworthy J, The Sovereignty of Parliament: History and Philosophy (Oxford, Oxford University Press, 1999).

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Gordon M, Parliamentary Sovereignty in the UK Constitution (Oxford, Hart Publishing, 2015). Jowell J, ‘The Rule of Law and its underlying values’ in J Jowell, D Oliver, C O’Cinneide (eds), The Changing Constitution, 8th edn (Oxford, Oxford University Press, 2015). MacCormick N, Questioning Sovereignty: Law, State and Practical Reason (Oxford, Oxford University Press, 1999). Munro C, Studies in Constitutional Law, 2nd edn (London, Butterworths, 1999). Rawlings R, Leyland P and Young A (eds), Sovereignty and the Law (Oxford, Oxford University Press, 2014). Wade W, Constitutional Fundamentals (London, Stevens, 1980). Young A, Parliamentary Sovereignty and the Human Rights Act (Oxford, Hart Publishing, 2009).

4 The Crown and the Constitution



Royal Prerogative – Constitutional Monarchy – The Crown – Public Interest Immunity – Abolition INTRODUCTION

T

HE UNITED KINGDOM has a hereditary monarch as head of state. The Queen performs an important role as the personification of the nation. She appears on the national and international stage and in this capacity she is often associated with occasions of pomp and ceremony that evoke memories of imperial glory. It is particularly this feature that distinguishes the British monarchy from its counterparts in Holland, Belgium, and Scandinavia. However, as we shall see in the discussion that follows, although only limited power is exercised by the Queen on her own initiative, many constitutional functions still require her direct involvement. The path to constitutional monarchy has involved both the deliberate curtailment of royal power and its gradual erosion. The terminology is somewhat misleading. The government is still described as Her Majesty’s government, central government acts in the name of the Crown, and the courts are presided over by Her Majesty’s judges, but in modern times the monarch, although head of state, has a greatly subordinate constitutional role to Parliament, the government, and the courts. This is now accepted by reigning monarchs without question. In this chapter we will first discuss the institution of the monarchy, the royal prerogative, and the nature of the Crown as part of the current constitutional framework. During the Middle Ages and Tudor times kings and queens ruled through the exercise of the royal prerogative, but the idea that the powers of the monarch should be limited by law can be traced back

86 The Crown and the Constitution

at least as far as the Magna Carta of 1215. It was later established that general laws could not be made by way of proclamation—only Parliament could enact laws. It was also recognised that the King himself could not act as a judge, but must act through the judges in the courts. Since the Case of Proclamations1 it has been recognised that the scope of the prerogative can be determined by the courts. As we noted in Chapter 1, the events of the seventeenth century, and in particular the Civil War 1642–49 and the ‘Glorious Revolution’ of 1688, are significant in English constitutional history because they signalled the decisive end of any pretensions to absolute monarchy, with most powers over legislation and delegated legislation eventually passing to Parliament. This coincided with the emergence of the doctrine of the supremacy of Parliament described by Dicey. This trend was reinforced in the eighteenth century with the Hanoverian succession to the throne (of George I in 1714), by which time ministers were directly responsible for the day-to-day running of government. The scope of government activity was then much more limited, with only a few Whitehall departments (such as the Treasury, the Foreign Office, and the Board of Trade), but as the foundations of the modern administrative state were laid in the late nineteenth and twentieth century, with the role of government being greatly expanded, so the monarch became increasingly peripheral to the central activities of the executive. In this sense, the influential nineteenth—century writer on the constitution Bagehot was correct when he commented in reference to Queen Victoria that ‘she reigns but does not rule’.2 The abdication crisis which erupted in 1936, once again, confirmed the pre-eminence of Parliament and prime ministerial government over the monarch.3 Edward VIII shortly after succeeding to the throne decided he would like to marry his mistress, the American divorcee, Mrs Simpson. The Prime Minister, Stanley Baldwin, with the support of his Cabinet and the leader of the opposition, made it clear that, given the King’s position as head of the Church of England and the marriage vows that would be entailed, this match was constitutionally unacceptable. Edward therefore had to choose between the hand of Mrs Simpson and continuing on the throne. Confronted with what amounted to an 1

(1611) 12 Co Rep 74. Munro, Studies in Constitutional Law, 2nd edn (London, Butterworths, 1997)

2 C

256. 3 A Taylor, English History 1914–45 (London, Pelican, 1975) 490ff.

What is the Royal Prerogative? 87

ultimatum from the Prime Minister and his government, Edward gave up the throne in favour of his brother, who became King George VI. It will already be apparent from these examples that the evolution from a ruling monarchy to a constitutional monarchy took many hundreds of years. Moreover, the link with the past has special significance because, for a nation which has not experienced a recent political revolution, the monarchy represents tradition and continuity. The Queen, as a symbol of national identity, can be said to personify the state. She performs an important constitutional role but is, in fact, left with very little real political power. It is a convention of the highest constitutional importance that the monarch always follows the advice of her ministers. Many of the most far-reaching powers which formerly were exercised by the monarch, mainly prerogative powers, are now in the hands of the Prime Minister and the government. Although these powers are exercised by the government, they are still performed in the name of the monarch. WHAT IS THE ROYAL PREROGATIVE?

The majority of issues involving the use of the prerogative are concerned with governing the country. The prerogative includes crucial areas such as the conduct of foreign affairs, defence, and national security, and when outlining the Queen’s constitutional role it will be apparent that she has a major presence in many areas but exercises only limited power because the prerogative is now in the hands of the Prime Minister, ministers, or officials. The royal prerogative comprises residual powers and functions which were originally associated with the monarch. In considering the royal prerogative and its exercise it is useful to draw out a contrast between what appears to be the site of legal power as opposed to the constitutional reality of where power actually resides. In practical terms, the powers encompassed by the term ‘prerogative’ are of great importance for the effective working of government. They range from the conduct of foreign affairs, the making and ratification of treaties, the preservation of national security, the maintenance of the defence of the realm, and the exercise of the enormous powers of patronage available to the Prime Minister. Certain prerogatives are now regulated by constitutional conventions to enable government to function. The way these powers are exercised has recently

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been considered by parliamentary committees, and there have been recommendations to introduce statutory regulation in order to achieve greater clarity in respect to the scope and application of the prerogative and to achieve increased parliamentary approval and scrutiny. The prerogative involves distinguishing between of two elements: (a) the personal prerogatives of the monarch; and (b) the political prerogatives, that is, those used by the government/executive/Crown in foreign affairs and domestic policy. Generally speaking, government operates within the parameters conferred by Parliament under statutory provisions. There are certain areas where the prerogative provides the legitimation for the use of a common law power and confers certain immunities on those using it. Considerable controversy has arisen over the definition and extent of the prerogative, particularly between the accounts of Sir William Blackstone in the eighteenth century, who stresses the ‘special pre-eminence’ of the King’s powers, and Dicey in the nineteenth century, who was of the view that: The prerogative appears to be both historically and as a matter of actual fact nothing else than the residue of discretionary or arbitrary authority, which is at any given time legally left in the hands of the Crown … Every Act which the executive government can lawfully do without the authority of the Act of Parliament is done in virtue of this prerogative.4

This is a broad definition embracing all the non-statutory powers of the Crown of a residual (ie leftover) nature. Judicial decisions have tended to reflect the Diceyan position. The centrality of the concept of parliamentary sovereignty to the constitution means that, as a general rule, statutory powers prevail over the prerogative. Parliament has the capacity to curtail prerogative powers. In situations where there is a conflict between statute and the prerogative, the statute will always prevail. The leading case illustrating this principle is Attorney-General v De Keyser’s Royal Hotel Ltd.5 In 1916 during the course of World War I the government, acting in the name of the Crown, took control of a hotel to accommodate the headquarters of the Royal Flying Corps under the Defence of the Realm Regulations. It then denied the legal owners any right to compensation. Compensation 4 A Dicey, Introduction to the Study of the Law of the Constitution, 10th edn (London, Macmillan, 1959) 424. 5 [1920] AC 508.

What is the Royal Prerogative? 89

appeared to be available to them under statute, namely, the Defence Act 1842. It was argued by the Crown that since it had been acting under prerogative power in wartime any compensation for the requisition of this hotel was a matter within its discretion. However, the court held that this was now governed by statute. The statutory power in effect superseded the prerogative. Lord Atkinson stated that after the statute has been passed, and while it is in force, the thing it empowers the Crown to do can thenceforth only be done by and under the statute, and subject to all the limitations, restrictions and conditions by it imposed, howsoever unrestricted the Royal prerogative may theretofore have been.

But the De Keyser principle also suggests that where a statutory provision covers the same grounds as the prerogative, the latter falls into abeyance and might be re-activated should the statute be repealed. There may be areas where statutory powers and prerogative powers can exist in parallel without inconsistency.6 However, the House of Lords has more recently held that it was unlawful to act using the prerogative power where Parliament has given a minister a specific statutory power. In R v Secretary of State for the Home Department, ex parte Fire Brigades Union7 there was a successful challenge by the Fire Brigades Union when the minister sought to introduce a method for compensating victims under his prerogative powers. In doing so, in effect, he was by passing the scheme which had not yet been activated but had already been approved by Parliament under section 171 of the Criminal Justice Act 1988. In a somewhat different context, the decision of the House of Lords in the GCHQ case8 is of great importance. The challenge concerned a decision (under her prerogative powers) by the Prime Minister, as Minister for the Civil Service, to ban the union membership of civil servants at the government communications headquarters in Cheltenham without any prior consultation. In a famous judgment in which Lord Diplock explained the principles of judicial review (see Chapter 7), it was established beyond any doubt that, in principle, the exercise of prerogative powers by ministers could be subject to judicial review.

6 R v Secretary of State for the Home Department, ex parte Northumbria Police Authority [1989] QB 96. 7 [1995] 2 All ER 244. 8 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374.

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However, it was also recognised by Lord Scarman that the capacity of the courts to intervene might be qualified by other factors: [T]he law relating to judicial review has now reached the stage where it can be said with confidence that, if the subject matter in respect of which prerogative power is justiciable, that is to say if it is a matter on which the court can adjudicate, the exercise of the power is subject to review in accordance with the principles developed in respect of the review of the exercise of statutory power.9

In other words, while in general prerogative powers can be challenged, certain types of exercise of the prerogative are non-justiciable. For example, these areas would include decisions relating to: the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of ministers. The application for judicial review was ultimately unsuccessful in the GCHQ case because the Prime Minister was able to bring forward sufficient evidence to show that the failure to consult in the proper way had been made because of legitimate concerns over the risk to national security. There has been an important recent trend towards qualifying prerogative powers. The running of the civil service is no longer one of the personal prerogatives of the Prime Minister. Although the management of the service remains with the Prime Minister, it has been placed on a statutory footing for the first time under Part 1 of the Constitutional Reform and Governance Act 2010. The Act does not apply to the management of the diplomatic and security services which still remain under the prerogative (see Chapter 6). Under Part 2 of the same Act, treaties which are negotiated under ministerial prerogative powers must now be laid before Parliament for ratification. THE CONSTITUTIONAL ROLE OF THE MONARCH

The pivotal convention which applies to the monarch is that he or she is bound to act on the advice of his or her ministers. The fact that the UK constitution can be described as a constitutional monarchy rests upon this and other conventions. In other words, many things are done in the name of the monarch, and are performed under prerogative powers, 9

Ibid, at 407.

The Constitutional Role of the Monarch 91

but the monarch’s action is frequently governed by constitutional practice or by other political actors. However, there are also important technical questions over whether the residue of important, but sometimes ill-defined prerogative powers left in the hands of a reigning monarch can be justified in a contemporary constitutional context. For example, given the difficulties that have arisen with the formation of a government (discussed below) it has been suggested that legislation should be passed to determine who would become Prime Minister in the event of a future hung Parliament.10 (1) The formation of a government—The basic rule is that following a general election the monarch will always call upon the leader of the majority party in the House of Commons to form a government. A majority in the House of Commons is, of course, necessary to ensure that legislation can be passed. Given that the ability of voters to elect a government is the principle at the heart of parliamentary democracy, it is extremely important that the monarch accepts the verdict of the electorate in performing this role. The electoral system usually provides a clear winner, but this is not always the case. For example, after the February 1974 election neither the Conservatives nor Labour secured an overall majority. Labour emerged from the election with 301 seats, five more than the Conservatives, but the Conservatives polled a higher aggregate total of votes. To form a government either the Labour Party or the Conservative Party required the support of a combination of Liberals, Scottish Nationalists, Welsh Nationalists, and Northern Ireland MPs. The constitutional role of the monarch in this situation is to ensure that a viable government is formed. This means she should ask the leader of the party most likely to be able to sustain a government to become Prime Minister. After the February 1974 election, Mr Heath, the incumbent Prime Minister, did not resign but was unable to reach agreement with the Liberals. In consequence, the Queen had no real alternative to sending for Harold Wilson, whose Labour Party had the largest number of seats. Mr Wilson managed to govern for six months with a minority government before calling another election. After the 2010 general election which also delivered a hung Parliament, the incumbent Labour Prime Minister remained in 10 Downing Street until it was clear after negotiations between politicians that the Conservative and Liberal Democrats had reached an agreement to form a 10

See, eg, D Bean, The Future of the Monarchy (London, The Fabian Society, 2003).

92 The Crown and the Constitution

government (rather than a Labour-led rainbow agreement of Liberal Democrats and other minor parties). At this point Gordon Brown was in a position to recommend to the Queen that she should invite David Cameron to form a government. Crucially, the Queen’s neutrality was not compromised as it might have been had she been drawn into the government formation process.11 All the main political parties (Conservative, Labour, and Liberal Democrat) now elect their leader by process involving the balloting MPs and party members, but until 1965 the Conservative Party did not have a formal method for electing its leader. As a result, when a serving Conservative Prime Minister had to leave office prematurely, the monarch performed the task of deciding who should be the successor. This occurred with the resignations of Prime Minister Eden in 1956 and Prime Minister Macmillan in 1963. (2) The calling of elections—Until recently the Prime Minister could decide to call an election at any time within the five-year period specified by the Parliament Act 1911. Once the decision had been taken by the Prime Minister to call an election, the monarch was obliged, according to convention, to dissolve Parliament. It was clear that this power to dissolve Parliament could not be exercised independently of the intervention of the Prime Minister. There have been exceptional situations. One such arose in February 1974 when no party emerged from the election with a majority in the House of Commons. It has been suggested that, had Harold Wilson been unable to win a vote in the House of Commons after being invited to form a government, the Queen might have been in a position to refuse a request for a dissolution of Parliament, at least until other party leaders had been given the opportunity to attempt to form a government that was acceptable to Parliament. The Fixed Term Parliaments Act 2011 has taken the power to determine the timing of an election away from the Prime Minister by setting general elections at five-year intervals (see further Chapter 6). (3) Ministerial appointments—In regard to ministerial appointments at all levels the monarch follows the advice of the Prime Minister in approving the selections that he or she makes. There is no requirement that the monarch is consulted by the Prime Minister over the suitability

11 V Bogdanor, The Coalition and the Constitution (Oxford, Hart Publishing, 2011) 17.

The Constitutional Role of the Monarch 93

of these choices, and there is no longer power to refuse any of these choices. In the eighteenth and nineteenth centuries there were some instances when the monarch was reluctant to take advice. There is nothing that formally prevents the monarch expressing his or her opinion about the suitability of the choices proposed by the Prime Minister. George VI was reported to have expressed clear reservations when Winston Churchill selected Lord Beaverbrook as Minister for Aircraft Production and member of the War Cabinet in 1940, but nevertheless the Prime Minister’s choice prevailed.12 (4) Appointments and honours—There are many other official appointments which are conferred by the monarch, but these choices are nearly always made on the advice of the Prime Minister. These include the creation of peers, the appointment of archbishops and bishops, the appointment of all senior judges, and the conferment of most honours, such as knighthoods. However, the Queen is personally able to select members of the royal household, including her Private Secretary. In addition, there are a few honours that remain in the personal gift of the Queen. (5) Assent to legislation—In respect to passing of legislation, it should be remembered that, following its passage through Parliament, the royal assent is required for a bill to become law. It is an established convention (certainly since Queen Anne’s refusal in 1708 to sign the Scottish Militia Bill—and on that occasion she was acting on ministerial advice) that the monarch never refuses to give the royal assent to legislation, and that to do so would be unconstitutional. However, it might be argued that there could be extreme circumstances when refusal of the royal assent would be justified, for example, if Parliament approved legislation that sought to postpone indefinitely a general election in peacetime. The royal assent is also required for legislation passed by the Scottish Parliament, Northern Ireland Assembly and Welsh Assembly. (6) Following ministerial advice and collective responsibility—It is a crucially important convention of the constitution that the Queen always acts on the advice of her ministers. This doctrine is demonstrated at the opening of each session of Parliament. The Queen’s speech setting out her government’s policy is, in practice, always written by the government.

12 R Brazier, Constitutional and Administrative Law, 7th edn (London, Penguin, 1994) 125.

94 The Crown and the Constitution

Another equally important convention, collective Cabinet responsibility, is derived from the idea that any advice to the monarch should be unambiguous. This convention requires that members of the Cabinet are bound to defend the policy agreed around the Cabinet table, or alternatively a minister should resign from the government (this convention is discussed in greater detail in Chapter 6). It should be stressed that there is no active involvement by the monarch in the routine business of government. She has access to classified information and has confidential weekly meetings with the Prime Minister during which she is briefed on government policy. On these occasions the Queen can express her views and provide advice. However, the Prime Minister is not under any obligation to take account of these views. It is of crucial importance that the monarch is perceived as being above politics and impartial when it comes to performing the main constitutional functions. The Queen has resisted any such association, but Prince Charles as heir to the throne has been criticised for his involvement with controversial issues which have a political dimension.13 (7) Commander-in-chief of the armed forces—The Queen performs an important symbolic function as the nominal head of each of the armed forces, but under the Bill of Rights 1689 the keeping of an army by the Crown is made subject to the consent of Parliament. While the forces are now largely regulated under statute, ministers act under the prerogative to direct the armed forces in their strategic operations. (8) Head of state—As head of state, the Queen represents the nation on the international stage. In this capacity she hosts events at home and makes visits abroad. However, the Prime Minister, the Foreign Secretary, or other senior ministers will be entirely responsible for determining any matters of government policy or negotiating treaties that involve meetings with other heads of state or heads of government, and in this capacity ministers will be acting under their prerogative powers. (9) Head of the Commonwealth—At the turn of the twentieth century the British monarch was the figurehead for the British Empire. Independence has been conferred on virtually all former colonial possessions and many (53 nations and 2 billion people) have joined the 13 This question was brought to public attention after a contested information request by a Guardian journalist in 2005 for the release of correspondence concerning environmental issues between the Prince and various ministers, and finally resolved by the courts in 2015. See R (Evans) v Attorney General [2015] UKSC 21.

Does the Monarch Retain Real Power? 95

British Commonwealth, which seeks to promote co-operation between member nations. The Queen has a mainly symbolic role at its head. DOES THE MONARCH RETAIN REAL POWER?

A famous statement of the constitutional role was provided by Bagehot in the nineteenth century when he stated ‘she has the right to be consulted, the right to encourage and the right to warn,’ meaning by this that the monarch had become a ‘dignified’ rather than an ‘efficient’ (ie working) element of the constitution.14 We have already observed that in nearly every case the monarch’s powers and discretions are constrained by established conventions. However, the hung Parliament after the February 1974 election illustrates that there may be occasions when a convention is not clearly defined, and where considerable discretion is left in the monarch’s hands. The present Queen has the accumulated experience of having worked with 10 different Prime Ministers since she acceded to the throne in 1952. She is kept very closely in touch with the exercise of governmental power by means of a weekly audience with the Prime Minister during which she is fully briefed about the affairs of government, and she has access to all Cabinet papers. The meetings with the Prime Minister are strictly confidential, which allows her the opportunity to express views about matters of government policy. For example, it was widely reported in the press that there were misgivings expressed by the Queen over certain aspects of Margaret Thatcher’s domestic policy during the late 1980s. Also, in times of crisis, such as the involvement of British troops in the war in Iraq in the Spring of 2003, the Queen is kept fully informed of the latest developments. It should be emphasised that the Prime Minister is not under any obligation to take account of any royal opinions. Indeed, if a declared position on controversial political matters were to leak out, this would undermine the reputation for impartiality which is so important to the monarch’s constitutional role. Bagehot could almost be describing the present position when he summed up the powers of Queen Victoria more than 100 years ago as the rights to be consulted, to encourage and to warn ministers, but it has

14

W Bagehot, The English Constitution (London, Fontana, 1963) 111.

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been s uggested in light of the Queen’s current role that the right to be informed and to advise could now be added to the list.15 WHAT IS THE ‘CROWN’?

The Crown refers to the Queen in her official or her personal capacity. It is also the generic term used to refer to persons or bodies exercising powers which historically were the monarch’s personal powers. Thus the ‘Crown’ is applied to the executive branch of government. Ministers are of course servants of the Crown and in general statutory powers are conferred by Parliament on ministers in person.16 The blanket concept of the Crown conflicts with reality because it suggests that the diverse elements of the executive are a unified whole, with the concept of the Crown masking the fact that there are often conflicts and tensions between central government departments. We have already noted that the political prerogative is exercised by, or on the advice of, the Crown. In consequence, the term ‘Crown’, as it is employed in the United Kingdom, is a product of constitutional history, and it might be described as anachronistic. Comparable powers in Europe or the United States would be constitutionally exercised by, or on the advice of, what is called the state, executive, or government. The Crown has enjoyed certain legal immunities. For example, it may be able to avoid liability under a statute that is not expressed as being applicable to it. Such immunity has allowed public bodies to remain outside the scope of statutory provisions which otherwise provide for social welfare, employment rights, and public safety. However, most contemporary legislation has tended to restrict or entirely dispense with this immunity.17 The intention has been to ensure that government departments are not shielded from obligations that are placed upon them.

15 R Brazier, ‘The Monarchy’ in V Bogdanor (ed), The British Constitution in the Twentieth Century (Oxford, Oxford University Press, 2003) 78. 16 H Wade and C Forsyth, Administrative Law, 11th edn (Oxford, Oxford University Press, 2014) 35ff. 17 See, eg, National Health Service and Community Care Act 1990, s 60, and Environmental Protection Act 1990, s 159.

Public Interest Immunity 97 PUBLIC INTEREST IMMUNITY

The immunities enjoyed by the Crown have also been important in a judicial context. In proceedings involving the Crown (ie the various manifestations of the government) there are occasions where the normal rules of evidence are waived to protect a wider public interest. In an adversarial system, discovery is an important part of the trial process. This rule enables the parties to the action to examine information and documents from the other side. In general, courts will order the disclosure of relevant documents that are not voluntarily produced to allow a case to be prepared thoroughly in advance. At the same time this access to evidence reduces the possibility of either side being surprised or ambushed by the production of unexpected issues. In criminal cases, there is an even stronger right to be notified in advance of the prosecution’s case because of the importance of acquitting the innocent. However, it has been recognised by the courts that the Crown (and certain other public bodies, for example the police) occupied a special position. Crown privilege, now termed public interest immunity (PII), can be invoked if it is considered contrary to the public interest for the document(s) to be released on specified grounds, for example, doing harm to national security or revealing the name of a police informer. Although section 28 of the Crown Proceedings Act 1947 provides that the courts can make an order for the discovery of documents against the Crown, this right of discovery is subject to the major qualification that it does not affect the rule that evidence can still be withheld if the wider public interest so demands. The courts in cases such as Duncan v Cammell Laird and Co Ltd,18 Conway v Rimmer 19 and R v Chief Constable of West Midlands Police, ex parte Wiley 20 have been required to strike a balance between defining this public interest, on the one hand, and, on the other hand, ensuring that the power to withhold information is not abused by public authorities to shield them against legitimate claims from aggrieved members of the public or defendants. Defining the extent of such immunity touches on some fundamental questions. For example, how far ought official bodies to be allowed to cloak their activities in a veil of secrecy by 18

[1942] AC 624. [1968] AC 910. 20 [1995] 1 AC 274. 19

98 The Crown and the Constitution

reventing the release of information when matters are being disputed p in open court? These issues were brought to wide public attention in the Matrix Churchill affair in 1992. The directors of the Matrix Churchill company were prosecuted for selling defence equipment (a supergun) to Iraq in contravention of an arms embargo, and they were prevented by public interest immunity certificates signed by ministers from disclosing their association with the security services. It was argued that ministers should not have been advised by the Attorney-General that they were under a duty to sign these certificates when the guilt or innocence of these defendants was at stake. Finally on this point, the Freedom of Information Act 2000 introduces a legally enforceable right to information but in Part II it also sets out Public Interests exemptions. This area of the law may be developed further by the courts in light of the FOI 2000 (see eg R (Mohamed) v Secretary of State for Foreign Affairs [2010] EWCA Civ 65). LIABILITY OF THE CROWN IN TORT AND CONTRACT

The United Kingdom lacks a well-developed theory of the state and of a state administration,21 which means that contracts are entered into by Crown servants as agents acting on behalf of the Crown itself. It has been established that officials responsible for negotiating contracts on behalf of a government department are not personally liable under contract because it is the principal (the department) and not the agent (the official) who is responsible. A general right to sue the Crown under contract is provided by section 1 of the Crown Proceedings Act 1947, which removes the need to obtain the leave of the Attorney-General to bring an action against the Crown. Until 1947, prior to this enactment, a petition of right was required to recover damages from the Crown. Similarly, under section 2 of the Crown Proceedings Act 1947, the Crown (as opposed to the state) is liable in tort (which covers the other civil wrongs under the common law). For example, it can sue or be sued in the courts where there is a claim for negligence. In addition, as an employer, the Crown is liable for torts committed by its employees while in the course of their employment. It is also worth pointing out 21 See further J Allison, A Continental Distinction in the Common Law (Oxford, Oxford University Press, 2000) 32.

Evaluation: Reform or Abolition? 99

that other public bodies such as local authorities are in a similar p osition to the Crown with regard to their general exposure to liability in tort. In most respects, the Crown is treated in the same way as any other defendant, that is, to initiate an action against the Crown a litigant sues the department concerned or the Attorney-General. There are, however, fundamental limitations to the award of damages against the Crown and other public bodies.22 The extent to which individuals or corporations are able to recover damages from government and governmental bodies has the potential to call into question the place of private law remedies. A general right to recover damages against the Crown or a public body in regard to the manner in which it performs its statutory duties would indeed carry with it serious implications. More specifically, if policy matters were amenable to challenge by means of a claim for damages, this would be an indirect method of influencing the formulation and application of policy by democratically elected and publicly accountable bodies. Broadly speaking, the courts have been reluctant to grant damages for pure economic loss, except where there is a contract. As Professor Harlow puts it: The judges have always been concerned to maintain the ‘floodgates’. They do not wish to contribute to the creation of a society bent on litigation, premised on the illusion that every misfortune merits compensation. Even if there is little concrete evidence to justify fear of a ‘compensation culture’, … many modern cases are … test cases, … with serious implications for public funds.23

EVALUATION: REFORM OR ABOLITION?

The monarchy is a costly institution to preserve and it has been the subject of considerable controversy in recent years. In fact, there has been a varying tide of media criticism which has ebbed and flowed prompted by: the failure of royal marriages; the Queen’s initially cold reaction to the death of Princess Diana (the former wife of Prince Charles and 22 See, eg, X (Minors) v Bedfordshire County Council [1995] 2 AC 633, which set narrow limits on claims against local authorities working under a statutory scheme, and Barrett v Enfield Borough Council [2001] 2 AC 550, which recognised access to a court before a claim could be struck out. 23 C Harlow, Understanding Tort Law, 3rd edn (London, Sweet & Maxwell, 2005) 150.

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mother of his children, William and Harry); and the inappropriate comments and conduct of certain other members of the royal family. The British monarchy is an institution which retains many arcane procedures, and its members have been accommodated at taxpayers’ expense in palatial finery. While the associated pomp and ceremony of trooping of the colour to celebrate the Queen’s birthday and the state opening of Parliament might be an attraction for visitors from abroad, spectacles on a grand scale can be objected to as expensive and anachronistic luxuries. There have been calls to review the extent to which state funding through the ‘civil list’ should go beyond supporting the monarch and her immediate heirs, and to assess whether the public purse should extend to a total of seven royal palaces and to pay for transport in royal yachts, trains, and planes.24 In other words, it might be suggested that the British monarchy could be trimmed down, assuming a lower profile and becoming more like its Scandinavian counterparts. An equally trenchant objection is that: The monarchy remains symbolic of privilege over people, of chance over endeavour, of being something, rather than doing something. We elevate to the apex of our society someone selected not on the basis of talent or achievement, but because of genes.25

Given this type of criticism, namely of a class-based system founded on privilege by birth right, it is not surprising that republican alternatives have gained a more prominent place on the political agenda.26 For instance, there have been proposals to replace the monarchy with a republican constitution.27 However, in devising an alternative it would be difficult to match the range of significant constitutional functions which are exercised by the Queen to a new office without including significant changes to the role of Prime Minister, the Cabinet, and the civil service. The design of the office of President as Head of State viewed from an international perspective can have many forms.

24 R Blackburn and R Plant, ‘Monarchy and the Royal Prerogative’ in Constitutional Reform: Tbe Labour Government’s Constitutional Reform Agenda (London, Longman, 1999) 145. 25 ‘Time for the Monarchy to Step Aside’, The Observer, 30 June 2000. 26 A Gray and A Tomkins, How We Should Rule Ourselves (Edinburgh, Canongate, 2005). 27 Commonwealth of Britain Bill 1995–96.

Conclusion 101

The United States (or French) variant of a directly elected President with formidable executive powers and the ability to veto legislation28 would be much too radical a departure for the UK constitution to take on board. On the other hand, a directly elected President with a mainly ceremonial role similar to that granted to the President of the Irish Republic could serve as a possible model. Even if the type of role for a future President is defined, a further question which arises concerns reaching agreement on the type of candidates who might be suitably qualified to stand for election and hold such a high profile public office. Indeed, the difficulty in reaching sufficient consensus upon an acceptable alternative was recently demonstrated when a referendum was held in Australia in 1999. Despite misgivings over the status quo expressed in opinion surveys, the Australian electorate rejected the republican alternative to the Queen as head of state which was on offer. CONCLUSION

Many nations throughout the world have not accepted the republican case and continue to have constitutional monarchies. Spain can be cited as an example of a European nation which has welcomed the introduction of a constitutional monarchy in recent times. After the divisive Spanish Civil War (1936–39), which was followed by a generation of fascist dictatorship, Juan Carlos was named by Franco as his successor. His accession to the throne in 1975 reinstated a recognised dynasty and provided a means of reconnecting with a legitimate tradition associated with the nation’s history. However, Juan Carlos was intent on democratic reform and after elections were held a hereditary monarchy became the central feature of a new liberal democratic constitution adopted in 1978. Under the constitution the King has limited powers but he acts as a symbol of the ‘unity and permanence’ of the state and also stands in a position of neutrality, safeguarding the regular functions of the institutions of the state.29 The robustness of the new constitution was tested in 1981 when decisive action by the King, at the very pinnacle of the constitution, thwarted a military coup. At the same time, 28

M Vile, Politics in the USA (London, Hutchison, 1976) 183ff. Comella, The Constitution of Spain: A Contextual Analysis, 2nd edn (Oxford, Hart Publishing, 2013) 8, 71ff. 29 V

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this intervention arguably demonstrated the value of a constitutional monarchy which is backed by strong public support. Turning back to the United Kingdom, there is wide acknowledgement (even by detractors) that Queen Elizabeth II has performed her constitutional functions with an unflinching dedication to duty; rather, it is the prospect of a less sure-footed successor who might lack equivalent respect for accepted constitutional practice which has raised doubts about the future of the institution. Abolition of the monarchy is not on the immediate horizon. As has been noted above, it would require a written constitution embodying the comprehensive codification of the current conventions relating to the monarch, many of which have been discussed in this chapter. Indeed, notwithstanding the criticisms set out above, it can still be argued that the institution of the monarchy in the United Kingdom is very important in constitutional terms, because the reigning King or Queen personifies the nation as head of state and confirms a link with the nation’s past constitutional history. Moreover, as Bagehot stressed, the presence of an experienced and respected monarch acts as a stabilising influence, particularly during times of war or of political crisis. FURTHER READING Bagehot W, The English Constitution (London, Fontana, 1963). Bogdanor V, The Monarchy and the Constitution (Oxford, Oxford University Press, 1995). Blackburn R, ‘The Prerogative Power of Dissolution of Parliament: Law, Practice and Reform’ [2009] PL 766. Blackburn R, ‘Monarchy and Personal Prerogatives’ [2004] PL 546. Brazier R, ‘The Monarchy’ in V Bogdanor (ed), The British Constitution in the Twentieth Century (Oxford, Oxford University Press, 2003). Brazier R, Constitutional Practice, 3rd edn (Oxford, Oxford University Press, 1999). Brazier R, ‘Constitutional Reform and the Crown’ in M Sunkin and S Payne (eds), The Nature of the Crown: A Legal and Political Analysis (Oxford, Oxford University Press, 1999). Craig P, ‘Prerogative, Precedent and Power’ in C Forsyth and I Hare (eds), The Golden Metwand and the Crooked Cord (Oxford, Clarendon Press, 1998).

Conclusion 103

Freedland M, ‘The Crown and the Changing Nature of Government’ in M Sunkin and S Payne (eds), The Nature of the Crown: A Legal and Political Analysis (Oxford, Oxford University Press, 1999). Loughlin M, ‘The State, the Crown and the Law’ in M Sunkin and S Payne (eds), The Nature of the Crown: A Legal and Political Analysis (Oxford, Oxford University Press, 1999). Pimlott B, The Queen: A Biography of Queen Elizabeth II (London, Harper Collins, 1996). Tomkins A, Public Law (Oxford, Oxford University Press, 2003) ch 3.

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5 Parliament



Electoral System – House of Commons – House of Lords – Government and Opposition – Legislation – Parliamentary Committees – Parliamentary Privilege – Watchdog Functions – Ombudsman – Audit INTRODUCTION

I

N THE UNITED KINGDOM, Parliament is the body in which the legislative power is vested. It consists of an elected House of Commons and a House of Lords that is largely comprised of life peers (appointed for their lifetime) but with a residual membership of hereditary peers (whose titles are inherited), bishops and Law Lords (see later discussion on the composition of the House of Lords). In addition, in order for legislation approved by Parliament to become law, the royal assent is required. Apart from acting as the legislature for the United Kingdom, Parliament authorises the levying of taxation and controls national expenditure and it keeps a check on the executive. In this capacity it provides the main forum for providing political accountability. It also acts as a sounding board for the nation by debating issues of public concern and by giving the public and other vested interests the chance to lobby their MPs. This chapter will consider Parliament’s role as part of the contemporary constitution. However, it should be remembered that a power struggle between Parliament and the monarch was an important feature of constitutional history. Parliament’s origins were merely as an advisory body to the King. It was made up of the land-owning aristocracy and the established church, who were represented in the House of

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Lords. The House of Commons consisted of elected representatives of the gentry on a roughly geographical basis. Parliament functioned as a kind of representative body of local interests available for consultation, but by the fifteenth century it also assumed a more prominent role in passing legislation. Under the Tudor monarchs (Henry VIII, Mary I, and Elizabeth I) it reverted to a more passive role. However, although it could be summoned and dismissed at will, Parliament was required by the King to approve requests for the raising of revenue. The constitutional clashes of the seventeenth century were a direct result of attempts by the King to rule without recourse to Parliament. This overlooked the established practice that the King could not enact statutes without the consent of the two Houses of Parliament. ‘Parliamentarian theories maintained that God originally conferred the highest powers of government on the community as a whole, rather than a single person.’1 During the seventeenth century such responses to absolute monarchy led to Parliament asserting its role. The Civil War was waged by Parliament against King Charles I, and constitutional constraints were finally placed on the monarchy towards the end of the seventeenth century by the Bill of Rights of 1689. This established that Parliament must meet on a regular basis. It also conferred special privileges on Parliament. For example, Article IX of the Bill of Rights provides that the freedom of speech and debates and proceedings in Parliament shall not be called into question by any court. Since devolution the role of the Westminster Parliament has been affected by the so-called ‘West Lothian question’. The problem is that, since Scotland acquired its own Parliament and executive with powers over devolved matters, Scottish MPs at Westminster can vote on matters affecting England, while English MPs no longer have voting rights over devolved matters. There is a similar situation in respect to Wales and Northern Ireland, which also have their own law-making assemblies. Devolution has modified the role of Westminster MPs representing constituencies in Scotland, Wales, and Northern Ireland because local constituents are more likely to turn to members of the devolved bodies to deal with problems concerning devolved matters coming under the devolved executives—for example, agriculture, education, environment, housing, and health. A Scottish constituent is therefore much 1 J Goldsworthy, The Sovereignty of Parliament: History and Philosophy (Oxford, Oxford University Press, 1999) 96.

Introduction 107

more likely to go through a Member of the Scottish Parliament if he or she needs help with resolving a devolved matter. Thus the workload of Scottish, Welsh and NI MPs to Westminster has been much reduced. English Votes for English Laws The government elected in May 2015 has sought, at least partly, to address the West Lothian question by using their majority to change the internal procedure in the Westminster Parliament for the passage of government legislation affecting England. The version of English Votes for English Laws (EVEL) that has been implemented means that any bill designated by the Speaker as an English bill will have an extra stage in the House of Commons. It is considered by a Grand Committee composed of only English MPs. In effect, the Grand Committee has a veto on the legislation before the bill proceeds to the report stage, taken by the whole House. Such a change is controversial for a number of different reasons. At a time when the Scottish Nationalists have emerged as a powerful political force in Scotland, with 50 plus members elected north of the border, this marginalises their involvement by partly transforming Westminster into a Parliament for England on many domestic questions. Further, English MPs on the committee are given an extra opportunity to vote compared to other MPs, and as the Conservative Party has won a substantial majority of constituencies in England, it means that it is likely to dominate the Grand Committee. In any future situation where one or more parties formed a government, having an overall majority in UK constituencies, but another party enjoyed a majority in English constituencies, the veto in the hands of the Grand Committee would potentially undermine parliamentary sovereignty.2 In addition, the technical question of what counts as English legislation is problematic. In terms of drafting, bills may have one or just a few sections applying only to England. Would such a bill qualify for the revised procedure? Viewed more generally, legislation for England concerning devolved functions (eg health, education, social security, to name but a few) may have wider implications for the rest of the United Kingdom. This is because spending levels in England are directly reflected in the 2 V Bogdanor, ‘Why English votes for English laws is a kneejerk absurdity’, The Guardian, 24 September 2014.

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calculation of the Barnett formula which determines the block grant allocation for Scotland, Wales and Northern Ireland. Another issue is that the Speaker must now perform a task equivalent to statutory interpretation in setting out the boundaries of devolution. She or he has to determine whether a bill is an English bill, and, given the potential debate over the knock-on implications of prospective legislation, there is a danger that his or her impartiality might be called into question by having to rule on this question. In addition, it is unclear whether the rulings by the Speaker on this question are subject to judicial scrutiny.3 (The impact of devolution is discussed further in Chapter 8.) PART I: ELECTIONS AND THE HOUSE OF COMMONS

Before we look at the way both Houses of Parliament operate, it is important to investigate the relationship between the House of Commons and representative government. In order to do this, there will be a brief discussion of the electoral system and the role of political parties.4 THE ELECTORAL SYSTEM

The simple majority or first-past-the-post method of election in the United Kingdom has contributed to the political dominance of large parties. During the eighteenth and nineteenth centuries, the Tories and Whigs were the names of the parties in the ascendancy, but both tended to represent narrow factional interests, in particular, the landed gentry and the industrial entrepreneurs. By the end of the nineteenth century the Conservatives (originating from the Tories) and Liberals (originating from the Whigs) were the main parties who alternated in power. The Labour Party as the political voice of the trade union movement was founded in the late nineteenth century. After World War I, Labour began to replace the Liberals as the main left-of-centre party. However,

3 P Reid, ‘“English Votes on English Law”: Just Another Running Repair’ UK Const L Blog (28 October 2015). 4 For an overview, see J Curtice, ‘The Electoral System’ in V Bogdanor (ed), The British Constitution in the Twentieth Century (Oxford, Oxford University Press, 2003).

Elections and the House of Commons 109

Labour was mostly in opposition until 1945. Since the end of World War II, the Conservative and Labour Parties have alternated between government and opposition. The simple majority system operates by dividing the nation into 645 approximately equal constituencies in terms of population, each of which sends a single member to Parliament. It produces MPs who represent clearly defined geographical areas and, as we shall see, an MP might be regarded as an ‘ombudsman’ for his or her own constituents. Candidates selected by the political parties, and independent persons who pay the required deposit of £500 and are able to get sufficient nominations, can stand at general elections or at by-elections. The Political Parties, Elections and Referendums Act 2000 regulates the conduct of political parties and establishes an election commission to oversee the electoral process. The Act also requires political parties to be registered and it imposes restrictions on the source of donations to prevent foreign and anonymous support for political parties. The Act further requires that any donation of over £5,000 to a political party is declared. Both the Labour and Conservative Parties faced criticism following the 2005 election for accepting loans from donors in order to circumvent the provisions of this Act. The electoral system is extremely straightforward to understand. A voter simply puts a cross next to the name of his or her preferred candidate. The candidate receiving the most votes wins the seat. This is whether or not he or she receives a majority of the votes cast in that constituency. Although it is not in any sense proportionate, ‘first past the post’ registers the relative support between the parties with the widest following in the country. The major parties nearly always win the seats in their heartlands, but the outcome of elections is decided in more marginal constituencies, where a shift in support between the main parties will lead to a change in the member elected. The system favours parties polling nationally over 30 per cent of the popular vote. Moreover, a single party receiving between 40 per cent and 45 per cent of the national vote stands a good chance of gaining an overall majority of seats in the House of Commons and therefore of forming a government. In 1997 Labour achieved an overall majority of 180 seats with just under 44 per cent of the popular vote, and their majority hardly diminished when they received 42 per cent of the popular vote in 2001.

110 Parliament 2001 General Election Results Labour

42% popular vote

413 seats

62.7% seats

Conservative

32.7% popular vote

166 seats

25.2% seats

Liberal Democrat

18% popular vote

52 seats

7.9% seats*

*

The remaining proportion of votes and seats went to smaller parties and independents, eg Scottish Nationalists, Welsh Nationalists, Democratic Unionists, and Sinn Fein.

However, the 2001 result also shows that the system tends to favour two large parties because, to get elected, a concentration of support is required in any given constituency. Parties with national support which is distributed more thinly find it difficult to pick up seats. The Liberal Democrats with national support at around 18 per cent succeeded in having candidates elected only in the parts of the United Kingdom where there are pockets of concentrated support. Equally, the Scottish and Welsh nationalist parties benefited from the intensity of support in parts of Scotland and Wales. The Greens, with less than five per cent nationally, were unable to get a single member elected to the Westminster Parliament. Constituencies in Northern Ireland are contested by locally based parties mainly representing the loyalist majority (Ulster Unionists and Democratic Unionists) and the republican minority (Social Democratic and Labour and Sinn Fein). After the 2010 general election, for the first time since February 1974, no party emerged with an overall majority of seats in Parliament. Although the Conservatives improved their percentage vote by four per cent they failed to achieve sufficient seats for an overall majority. The Labour Party share of the vote fell by six per cent, which was its poorest showing since 1918. The Liberal Democrats marginally increased their share of the popular vote but won five seats fewer than in 2005. Nevertheless, on this occasion as third national political party holding the balance of power between the other two major parties they were in a position to negotiate a coalition deal with the Conservative party which lasted for the full parliamentary term. 2010 General Election Results Labour

30% popular vote

258 seats

40% seats

Conservative

36.1% popular vote

307 seats

47.5% seats

Liberal Democrat

24% popular vote

57 seats

8.8% seats

Elections and the House of Commons 111

The distortions in representation caused by first past the post were once again illustrated by the results of the May 2015 election which had a turnout of 66.1 per cent. Although opinion poll evidence had predicted another hung Parliament the Conservative Party managed to win a narrow overall majority of 12 seats. This increase to more than 51 per cent of seats was achieved with less than a one per cent increase in national support for the Conservative Party since 2010. The Scottish National Party (SNP) was the other big winner in the election, mainly at the expense of Labour. The SNP managed to pick up all but three seats North of the border, with 50 per cent of the popular vote in Scotland. The other national fringe parties (United Kingdom Independence Party (UKIP), British National Party (BNP) and Greens) had failed to win a single seat in 2005 and 2010 but managed to increase their share of the popular vote. In 2015 the vote for UKIP rose spectacularly to 12.6 per cent but in contrast to the SNP, Welsh Nationalists and Ulster parties the support for UKIP was widely dispersed. In consequence, it only managed to have one MP elected. The steep decline in the popular vote for the Liberal Democrats resulted in the party losing all but eight of its seats at Westminster. 2015 General Election Results Conservative

36.9% popular vote

331 seats

51% seats

Labour

30.4% popular vote

232 seats

36% seats

SNP

4.7% popular vote

56 seats

9% seats

Liberal Democrat

7.8% popular vote

8 seats

1% seats

UKIP

12.6% popular votes

1 seat

less than 1%

Others

22 seats

ALTERNATIVES TO FIRST PAST THE POST?

In a situation where two parties predominated, the endorsement of one side in preference to the other at elections allowed the party with most seats to claim a popular mandate for policies. It also ensured that its legislation passes through the House of Commons without much disruption. This has been the case even when a government has a small overall majority in the House of Commons. The risk of defeat in the voting lobby is a strong incentive for tribal party loyalties to prevail over

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personal conscience on any single issue. The system generally provides decisive government, since a party with a majority can carry through its policies without having to enter into pacts and compromise, as is often the case where a system of proportional election is adopted. Advocates of ‘first past the post’ might still argue that, on most occasions, it provides a clear outcome, and that it also prevents ‘extreme’ minority parties from doing well. These are crucial strengths which should be retained. Opponents of the present system, particularly the Liberal Democrats and UKIP, not only object because minority parties are greatly under-represented, but also because the shifts between political parties which govern has allowed lurches from the relatively extreme positions adopted by the Labour and Conservative Parties. The emergence of coalitions from the centre is regarded as preferable. The coalition agreement after the 2010 general election included a commitment to hold a national referendum allowing voters a choice between the retaining the present system or changing it in favour of the alternative vote (AV) system. AV is a preferential system that maintains single-member constituencies and seeks to ensure that all MPs have the support of more than half of the electors in their constituency. It works by allowing voters to rank candidates in order of preference. Candidates are elected outright if they receive more than half of the votes. If no candidate gains a majority on first preferences, the second preferences of the losing candidates are redistributed successively until a candidate emerges with more than half the votes. AV was decisively rejected in the May 2011 referendum. Such a system may be a barrier to extremist parties but opponents point out that it is not more proportional than first past the post and likely to result in the election of the least unpopular candidate. Rather, an additional member system similar to the one operating in Scotland and Wales for the devolved Parliament/ Assemblies would compensate for the gross disparity of first past the post. This approach would rely on electors having two votes; one would be counted on a simple majority basis, while the other would be proportional and based on a party list.5 Of course, there are many different systems of proportional representation that might be adopted as an 5 www.electoral-reform.org.uk/additional-member-system.

See also ‘The overnance of Britain: Review of Voting Systems: The experience of new votG ing systems in the United Kingdom since 1997’, Ministry of Justice, January 2008, Cm 7304.

Elections and the House of Commons 113

alternative. All the alternatives are more difficult to understand and each system has different strengths and weaknesses. For example, party list systems, such as the one now used in the United Kingdom for European Union elections, accurately reflect the votes cast for each party, but this method of election tends to give a great deal of power to the party leadership in drawing up the lists. Where it is used for electing national Parliaments (eg Israel), minority parties often end up holding the balance of power, and this method of voting provides an opportunity to extreme minority parties. Another feature which advocates of the status quo see as a disadvantage of proportional systems of election is that they often result in permanent coalition governments where, rather than following up manifesto commitments put to the electorate, policy deals are thrashed out by politicians in private after the election has taken place. ELECTRONIC VOTING

Electronic voting at election time by computer is on the horizon. It would cut down the expense of elections and allow results to be declared as soon as the polls close (assuming a secure system is devised). However, quite apart from the normal electoral process, more frequent consultation online from the citizen’s home is in prospect. Such an innovation would amount to an entirely new form of participatory democracy by allowing dialogue between government and the wider citizenry. The prospect of broadening consultation to inform decisionmaking by central and local government might be welcomed. It could help deliberations on many routine matters. On the other hand, the holding of online plebiscites as indicators of the public mood would have to be rigorously controlled, as testing the water in this way could easily be abused by government. For example, in order to justify the introduction of repressive legislation following a violent crime or terrorist attack the Home Secretary might calculate on getting ‘knee jerk’ approval for such measures in an electronic vote. THE HOUSE OF COMMONS AND THE FORMATION OF A GOVERNMENT

In terms of the broader constitutional context we can see that Parliament is crucial to the formation of the government. After a general

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election, the leader of the party with a majority in the elected House of Commons will be invited by the monarch to become Prime Minister. The procedure for the change of government in the event of a hung Parliament was put to the test following the 2010 general election. The guiding principle according to the Cabinet Secretary was to keep the Queen out of the political fray. Gordon Brown as incumbent was entitled as Prime Minister to remain in 10 Downing Street while the parties negotiated to form a government. Moreover, it would have been perfectly within the prerogative of the incumbent Prime Minister for the new Parliament to meet in order to test the opinion of the House of Commons.6 After an agreement has been reached or a vote taken, the Prime Minister will either be in a position to continue, assuming the agreement includes his party or the vote supports his party. If he is unsuccessful, then he will be in a position to resign and to recommend his successor. Gordon Brown resigned on 11 May 2010, four days after the election, and recommended to the Queen that David Cameron be appointed as his successor. This means that ‘Politics continue to be organised around the linchpin principle of the Westminster system— the need for governments to secure and retain the confidence of the popularly elected house.’7 The first job the Prime Minister has to perform is to select a government from the MPs elected to the House of Commons and peers who are members of the House of Lords. The predominance of the House of Commons over the House of Lords has given rise to the recognition of a convention dating back to 1902, that in order to be accountable to the electorate, the Prime Minister must be a member of the House of Commons. In 1963 Lord Home and Lord Hailsham, two of the leading contenders to succeed Harold Macmillan, renounced their inherited titles in order to be viable candidates to take over as Prime Minister, and Home (Sir Alec Douglas Home) actually succeeded to the Premiership. We have noted that one of the most important constitutional conventions requires that a government maintains its majority in the House of Commons. This convention dictates that the Prime Minister of a government that is defeated in the House of Commons on a vote of confidence must offer his or her resignation prompting an early general 6 V Bogdanor, The Coalition and the Constitution (Oxford, Hart Publishing, 2011) 21. 7 Ibid, 23.

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election. The last recent occasion when this occurred was in 1979. The Labour government of James Callaghan lost a vote of confidence by a single vote, giving rise to an early election. The requirement that a governing party sustains its majority in the House of Commons has a very important influence on the way Parliament operates. It means, for example, that, even where there are considerable factional divisions within a party in government on matters of policy, there is still a strong reason for backbench MPs on the government side to support the party line. This is because failure to do so could result in the loss of a confidence vote leading to an early general election and possible defeat at the ballot box. PART II: THE HOUSE OF COMMONS THE HOUSE OF COMMONS AND THE ROLE OF MPs

The House of Commons consists of 650 elected MPs, each of whom represents an individual constituency which is based on geographical area. MPs who are not members of the government or shadow government are referred to as ‘backbenchers’.8 Apart from representing their constituents, MPs participate in debates, vote on legislation, and serve on parliamentary committees. The House of Commons is presided over by the Speaker (and three deputies), who is elected by MPs. The Speaker detaches him/herself from previous party associations and has enormous authority. He or she determines who can contribute to debates and is required to rule on procedural matters as well as performing a quasi-judicial function when dealing with internal disciplinary issues concerning the conduct of MPs. MPs are sent to Parliament to represent their constituents, but they are not delegates. They may win their seat on the basis of manifesto pledges made by a political party to the electorate. However, once elected, there is no formal mechanism available to individual electors to compel their MP to follow manifesto policies. On the other hand, the political party to which MPs belong (exceptionally there may be MPs who do not belong to a major political party) is in a position to exert 8 R Brazier, Constitutional Practice, 3rd edn (Oxford, Oxford University Press, 1999) ch 10.

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pressure to encourage them to tow the party line. MPs may seem free to dissent from this position and vote with the opposition or abstain from voting. The divisions in the Conservative Party over the European Union led to a number of rebellions by Eurosceptic MPs. This made it difficult for the government of Prime Minister John Major, 1990–97, to introduce legislation incorporating the Treaty of Maastricht (which extended the role of Europe with the formation of the European Union). The matter was subject to a vote of confidence, but the government narrowly prevailed. In 1995 the same divisions in the Conservative Party in the House of Commons prompted Major to trigger a leadership election that he was able to win against his Eurosceptic opponent. Prime Minister Tony Blair, who enjoyed a much larger majority, lost the support of a significant minority of backbench MPs over some issues (eg the introduction of foundation hospitals and the war against Iraq). Behind the scenes, the party machine (whips) exerts strong pressure on individual members. In consequence, MPs who persistently vote with the opposition may lose the endorsement of their party (have the whip withdrawn). This punishment can be imposed on a temporary or on a permanent basis. Also, there is a geographical and local dimension to the role of MPs which has been re-enforced with the electoral success of the SNP in Scotland. MPs seek to represent the interests of their constituents and promote what they regard as their constituency interests. There are many examples of MPs articulating local views on contentious matters. One such issue concerns opposition voiced in Parliament to proposals to build a third runway at London’s Heathrow Airport. Local opposition is spearheaded in Parliament by local members. MPs will take up grievances on behalf of their constituents. But there may be limits to such support. MPs may be reluctant to back a local cause when this conflicts with the official party line. The adversarial character of parliamentary politics has exerted an enormous influence on the procedures that have developed. A twoparty system derived from having rival factions outbidding each other to act as advisers to the monarch (one in government; the other in opposition). In order to succeed in an adversarial system political parties have tended to be made up of broad coalitions of individuals with diverse shades of opinion. The factions need to keep together for a government to maintain its majority in Parliament. Nevertheless, if the policies of a party change too much, or if the leadership loses touch

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with the grass roots, the tension caused may result in rebellions inside the party and defections to other parties. One of the most dominant Prime Ministers of recent times, Margaret Thatcher, faced a leadership contest and was forced to step down because of divisions in her own parliamentary party.9 Parliamentary questions provide an important opportunity for individual members to raise matters on behalf of constituents and of general concern. MPs are expected to represent the interests of constituents whether or not they are political supporters. ‘Question time’ is the highlight of the parliamentary day, and it brings matters to the attention of the wider public. It will be pointed out below that ‘question time’ is also a procedure that permits MPs to call the executive to account for its actions. Early-day motions are another method for drawing attention to a matter of concern. There are limited opportunities for backbench MPs to initiate debates on subjects that they feel are important. Adjournment debates are available for raising issues and are held at the end of parliamentary business. These may be matters that cause embarrassment to the government, but emergency debates are granted only occasionally by the Speaker. The question of representation in Parliament, and particularly in the House of Commons, should also be considered in terms of the extent to which it achieves a gender and ethnic balance.10 The Parliamentary Labour Party had many more women than the Conservatives and the Liberal Democrats between 1997–2010. This was because of a deliberate policy before the 1997 election that favoured the selection of female candidates. Ethnic minorities are unevenly represented, with only a handful of MPs. The Scottish Parliament (40 per cent) and the Welsh Assembly (50 per cent) have among the highest concentrations of female representation in Europe. THE SPEAKER

The Speaker of the House of Commons was the elected official who spoke for his or her fellow members by communicating requests to 9

J Cole, As It Seemed to Me (London, Phoenix, 1996) 375. See, eg, R Campbell and J Lovenduski, ‘Winning Women’s Votes? The Incremental Track to Equality’ (2005) 58 Parliamentary Affairs 837. 10

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the King or Queen. In the present set-up, the Speaker (and the deputy speakers), apart from presiding over debates and determining the order in which members speak, performs an important quasi-judicial function in giving rulings on procedural points of order that arise. This includes whether a bill is considered to be a money bill and whether a bill is an English bill qualifying for the EVEL procedure discussed above. It is important to note that the Speaker is disqualified from direct participation in debates. In addition, he or she retains a historic role in formally representing the views of the House of Commons to the monarch. GOVERNMENT AND OPPOSITION

The official opposition has a vital part to play in the parliamentary system.11 It will be obvious that the role of the opposition is to oppose the government of the day, both by raising reasoned objections to its legislative proposals, and by criticising its performance as a government. The opposition also has to present itself as a government-in-waiting. As well as having a distinct set of policies, it has an alternative leader and government team in what is termed a ‘Shadow Cabinet’. On top of any earnings as MPs, the Leader of Her Majesty’s Opposition and the opposition Chief Whip are paid salaries, which is further acknowledgement of their formal status. In order to perform its function, the official opposition and other opposition parties are granted parliamentary time, and they are represented on all parliamentary committees. The opposition has a particularly important role in relation to public expenditure. A certain amount of time, called supply days (now opposition days), is set aside to debate in detail the estimates for public expenditure, but these opposition days can be used to discuss other policy issues. The opposition will often chose a sensitive topic which is likely to cause embarrassment to the government in anticipation that the debate will attract adverse publicity and a modification of policy. But the outcome of debates and votes in the House of Commons are usually a foregone conclusion. This is because the government whips are nearly always able to ensure a government majority for the ruling party (see references to ‘elective dictatorship’).12 However, an effective opposition 11

G Ganz, Understanding Public Law, 3rd edn (London, Fontana, 2001) 30. From Lord Hailsham’s phrase: Elective Dictatorship (London, British Broadcasting Corporation, 1976). 12

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may be able to cause long-term political damage to the government. For example, although the administration of Prime Minister John Major survived for several more years, the government’s credibility was seriously damaged by criticisms of economic mismanagement levelled at it by the opposition following the United Kingdom’s forced withdrawal from the European Exchange Rate mechanism on 16 September 1992. A degree of co-operation between government and opposition is required to allow many parliamentary procedures to operate and to facilitate the passage of legislation. For example, there will usually be agreement over the amount of time to be devoted to clauses of a government Bill. Finally, as a potential leader, the Prime Minister may confide in the Leader of the Opposition on matters of national importance or crisis, for example, where UK forces are engaged in action overseas. PARLIAMENTARY PRIVILEGE

Parliament has been given a number of important legal privileges which allows it to conduct its constitutional role without interference from the Crown or from the courts, and these amount to a source of constitutional law in their own right.13 The grant of these special privileges by the sovereign must be related to the struggle between the King and Parliament which came to a head in the seventeenth century with the English Civil War of 1642–49 and the ‘Glorious Revolution’ of 1688. The English Bill of Rights of 1689 provided under Article IX that the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place outside Parliament. The special privileges afforded to Parliament have been unchallenged by the Crown since 1688. In the absence of a codified constitution as a form of guarantee, these privileges are demanded from the monarch by the Speaker of the House of Commons and confirmed (as a symbolic gesture) at the beginning of each parliamentary session. In effect, this acknowledges the independence of Parliament, and Parliament is granted special rights to do certain things without having its legitimacy or its authority challenged by the sovereign, the government, or the courts. This means that, for example, in theory, MPs have an 13 C Munro, Studies in Constitutional Law, 2nd edn (London, Butterworths, 1999) ch 7.

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u nqualified freedom of speech. In practice, this means that what is said in Parliament cannot be the subject of defamation actions or prosecution in the courts. However, if this privilege is abused MPs may be disciplined by Parliament itself. The absolute freedom of speech can be regarded as the most significant of the privileges enjoyed today. This immunity has the potential to enable MPs to voice concern about matters of public concern in Parliament in circumstances where they would otherwise be forced to remain silent. It permits accusations in Parliament which, if repeated outside, would result in legal proceedings. For example, in 1955 at the height of the so-called ‘Cold War’ Kim Philby was exposed in Parliament as a spy. This revelation was the prelude to uncovering of the biggest security scandal in British history. In Stockdale v Hansard 14 the courts conceded jurisdiction to the House of Commons and refused to provide a remedy after being presented with a Speaker’s warrant asserting that it was not for the court to inquire into the business of Parliament. Lord Denman stated: ‘Whatever is done within the walls of either assembly must pass without question in any other place.’ Further, the case of Bradlaugh v Gossett 15 confirmed that the courts have no power to intervene in relation to the internal management and procedures of the House of Commons. It also recognised that Parliament is able to determine the nature and limits of parliamentary privilege. The recognition of parliamentary privilege has meant that Parliament has the right to control its own internal p roceedings without question. Moreover, Parliament is a court which can discipline and, if necessary, imprison its own members for misbehaviour. In recent years further steps have been taken to oversee the activities and behaviour of MPs. PARLIAMENTARY STANDARDS, THE CONDUCT OF MPs AND THE EXPENSES SCANDAL

The conduct of some MPs became a particular cause of concern during the 1990s and again in 2009 following the disclosure of apparently excessive claims for expenses. In 1994 Lord Nolan, a senior judge from the judicial panel in the House of Lords, was given the task of 14 15

(1839) 9 Ad & El 1. (1884) 12 QBD 271.

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reformulating guidelines in respect to regulating the conduct of MPs and setting up the Committee on Standards in Public Life. Public duty, selflessness, integrity, objectivity, accountability and openness, honesty and leadership were identified as forming the principles that should underpin the codes of practice. These principles should be applied to MPs. Furthermore, Members of Parliament are required not to bring the office of Member of Parliament into disrepute. One issue which brought this matter to the attention of the public was the revelation that some Conservative MPs (eg Tim Smith and Neil Hamilton) had received cash for asking questions in Parliament on behalf of private individuals, including Mohammed Al Fayed, the owner of Harrods. The disquiet was not because of the association with outside interests. It has already been pointed out that significant number of Conservative MPs, and some Labour and Liberal Democrat members, have links with business. Equally, the parliamentary Labour Party was formed to further the aims of the trade union movement and other affiliated bodies on the left of politics. The problem was that a number of MPs were presenting themselves as consultants and were acting through agents without declaring this role. In return for cash they promised to raise issues in Parliament. The concern was not only that there had been no declaration of interest, but also that this had the potential to interfere with an MP’s main job, namely, to represent the interests of their constituents. It has been established as a matter of principle that MPs should declare any personal interest in a matter brought before Parliament. For this purpose a Register of Members’ Interests is published and there are strict rules governing the financial interests that have to be declared. Failure fully to disclose such interests is regarded as a serious matter, which will lead to disciplinary action.16 The Parliamentary Commissioner for Standards has an investigatory role and MPs are required to co-operate with any investigation that is undertaken.17 The Standards Commissioner performs the functions previously carried out by separate Select Committees on Members’ Interests and on Privileges. These committees were combined in 1995, with the formation of a new House of Commons Select Committee 16 See

First Report of the Committee on Standards in Public Life, Cm 2850 (1995). See P Leopold, ‘Standards of Conduct in Public Life’ in J Jowell and D Oliver (eds), The Changing Constitution, 7th edn (Oxford, Oxford University Press, 2011) 404ff. 17

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on Standards and Privileges. It is chaired by a respected member of the opposition, has 11 members, and a quorum of five, with the power to appoint sub-committees. This Committee oversees the work of the officer of the House of Commons, the Parliamentary Commissioner for Standards, Kathryn Hudson. She is responsible for the maintenance of the Register of Members’ Interests and advises MPs on the registration requirements, but she also has the task of investigating specific complaints about the conduct of MPs. The Committee on Standards considers matters relating to privileges referred to it by the House, and matters relating to the conduct of MPs, including specific complaints about MPs’ conduct which have been made to the Commissioner and referred by him to the committee. In particular, the committee has power to order the attendance of any MP before the committee, and to require that specific documents or records in the possession of an MP relating to its inquiries, or to the inquiries of the Commissioner, be laid before the committee. In July 1996 the House adopted the committee’s proposals for a Code of Conduct for Members, which was accompanied by a Guide to the Rules relating to the Conduct of Members. In recent years under Labour a steady stream of cases have been referred for investigation. For example, in 2006 the failure of the then Deputy Prime Minister, John Prescott, to declare a stay on the ranch of an American tycoon (who had previously expressed a business interest in a government-sponsored project) attracted much attention in the press. The investigation and report by the Commissioner demonstrate that these procedures are strictly enforced, but also reveals the complexity and ambiguity of some of the rules governing what MPs and ministers are expected to enter on the register.18 A major public scandal erupted in 2009 in regard to inflated and in some cases fraudulent expenses claims from MPs. The matter came to light after Freedom of Information requests from three journalists investigating such claims were successful.19 There had been attempts to prevent detailed disclosure from taking place in the courts by Speaker Martin of the House of Commons20 and some MPs had been keen to pass a private members bill that would have made them exempt, or 18

Select Committee on Standards and Privileges, Thirteenth Report, 20 July 2006. P Leyland, ‘Freedom of Information and the 2009 Parliamentary Expenses Scandal’ [2009] PL 675. 20 See ‘Speaker “Leaned On” over Expenses’, BBC News, 28 May 2009. 19 See

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partially exempt, from the provisions of the Freedom of Information Act.21 The argument by the press that the publication of details of members’ expenses claims was in the public interest was upheld by the Information Commissioner and later confirmed by the High Court. To understand this affair in context it should be recognised that MPs in the UK receive a salary of £74,000 which is about average in comparison with their European counterparts22 but were allowed to claim up £100,000 for office expenses. The House of Commons had published a Green Book which was intended to provide detailed guidelines about the rules concerning the financial allowances available to MPs. The Department of Resources, formerly the Fees Office, was responsible for administering the rules and ensuring compliance. The principles set out left little doubt that elected politicians were expected to set an example of probity and honesty. All expenses claims should have been above reproach and reflected actual usage. It became apparent from these disclosures that many MPs maximised financial gain. For example by regularly changing the designation of their second home, a practice referred to as ‘flipping’, they were able to sell off the original property at a profit while claiming back the full cost of renovation. Some MPs, including one Cabinet minister, sold these secondary properties at a profit after having received repayments and mortgage relief, but avoided payment of capital gains tax on the sale. The payment of family members as staff was another practice which was called into question. The publication of details also revealed what might be termed ‘creative abuse of the rules’ with inappropriate claims, some of which appear almost comical in the light of the principles set out in the Green Book for Members referred to above. The catalogue of abuse which was placed in the public domain by the Daily Telegraph caused considerable damage to the credibility of the entire political class in the eyes of the general public. Parliament responded by passing the Parliamentary Standards Act 2009 which established an Independent Parliamentary Standards Authority with responsibility for overseeing the pay and expenses of MPs. A recent reform allows voters to petition for the removal of miscreant MPs from office. Under the new legislation the possibility of

21 The Freedom of Information (Amendment) Bill was introduced in 2006 but failed to complete its parliamentary stages in 2007. 22 news.bbc.co.uk/1/hi/uk_politics/7961849.stm#France.

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an early election arises when an MP is either: imprisoned; suspended from the House for 10 days or more; or found guilty of submitting false claims of expenses. If such a petition receives the support of at least 10 per cent of voters the sitting MP loses his or her seat and it will result in an early by-election.23 Another interesting aspect relating to parliamentary privilege arose when in R v Chaytor and others 24 a group of three MPs and a peer facing criminal charges of false accounting relating to their expense claims25 argued on final appeal before a nine-judge panel of the Supreme Court that the Crown Court had no jurisdiction to try them on the grounds that this would infringe parliamentary privilege. Article IX of the Bill of Rights of 1689 was used to suggest that freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court. After examining the relevant law, Lord Rodgers pointed out that the very fact that the House authorities co-operated with the police in the investigations suggested that they did not regard the allegations as falling into the category over which a privileged claim would be made. Lord Phillips concluded that ‘[P]recedent, the views of Parliament and policy all point in the same direction. Submitting claims for allowances and expenses does not form part of, nor is incidental to, the core essential business of Parliament, which consists of collective deliberation and decision making.’26 Moreover, it was further held that the House does not assert any exclusive jurisdiction to deal with criminal conduct, even where this relates to or interferes with proceedings in committee or in the House. Where it is considered appropriate, the police will be invited to intervene with a view to prosecution in the courts. After this alleged criminality had been exposed it would indeed have been a matter of great public concern if these political figures had been seen to use this ancient privilege to escape the full force of the law. In the event three MPs, Chaytor, Devine and Morley, as well as Lord Hanningfield, were subsequently prosecuted and imprisoned after being found guilty of false accounting.

23

Recall of MPs Act 2015, s 1. [2010] UKSC 52. 25 See P Leopold, ‘Standards of Conduct in Public Life’ in J Jowell and D Oliver (eds), The Changing Constitution, 7th edn (Oxford, Oxford University Press, 2011) 399. 26 R v Chaytor and others [2010] UKSC 52, para 62. 24

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We turn next to consider the role of the House of Lords. While it is generally acknowledged that the House performs an important revising function, its role and composition have been a matter of constitutional debate for more than a century. PART III: THE HOUSE OF LORDS INTRODUCTION AND HISTORY

Although members of the House of Lords are not elected, the so-called Upper House has broadly similar functions to the House of Commons. It scrutinises legislation as it passes through Parliament, and it requires the government to account for its policies. The House of Lords operates as a revising chamber with more time available and, in many cases, more expertise to perform this task. The House of Lords, which serves as the second chamber in the United Kingdom, is a very unusual body. In common with the Canadian Senate, it is entirely unelected and, as well as having a legislative role, it has performed the crucial judicial function of being the highest domestic appellate court, although it was announced in June 2003 that a Supreme Court would be established to perform this judicial appellate function. The House of Lords has been the subject of reform on several occasions, the most recent and far reaching, certainly in terms of composition, was in 1999, when the hereditary element was heavily pruned. This was to be the prelude to further reform, but, to date, there has been a lack of consensus as to what should happen next. While most commentators and politicians recognise that a second chamber should continue to have a role as a body which revises legislation and helps to scrutinise the executive, there has been much disagreement over the composition of the House of Lords or any such body that might replace it. The prospect of conflict between the two Houses resulting in gridlock has generally been avoided because there is an important convention (known as the ‘Salisbury’ convention) that establishes that the government’s manifesto commitments, in the form of Government Bills, are not voted down by the House of Lords at second reading stage. The legitimacy of the Lords had been called into question with the extension of voting rights during the course of the nineteenth century.

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As a hereditary body the House of Lords largely represented the landed aristocracy, but the social and economic changes resulting from the Industrial Revolution, including the growth of towns and cities, the emergence of powerful industrial interests, and the activities of protest movements and organised labour had an important bearing on politics. The response of the House of Lords to electoral reform is particularly relevant to this discussion. When the first Reform Bill of 1832 proposed a limited extension of voting rights and a fairer distribution of seats, the landed aristocracy in the House of Lords attempted to prevent the Bill’s passage through Parliament. It resisted again at the beginning of the twentieth century when a Liberal government was elected on a radical manifesto. The tactics of the Conservative opposition in the House of Lords, which thwarted the government’s attempts to introduce many of its policies by voting them down, triggered a constitutional crisis. The clash between the two Houses culminated in the rejection by the House of Lords of the Finance Bill (Budget) of 1909. This intervention departed from what was believed to be a convention that prevented the Lords from blocking money Bills. To overcome the stalemate, the Liberal government was required to contest two elections in 1910. The first was on the budget, and the second on the government’s proposals to curtail the powers of the Lords permanently. The prospect that the King would create enough Liberal peers to vote in favour of the Parliament Bill and thereby overwhelm the opposition prompted sufficient Conservatives in the House of Lords to back down and vote in favour of reform. The Parliament Act, which became law in 1911, clipped the wings of the House of Lords by replacing its capacity to veto legislation with a delaying power of two years (this was later reduced to one year by the Parliament Act 1949). The delaying power has been used on only a handful of occasions since 1949. The reluctance to invoke this power confirms the subordinate role of the House of Lords.27 It is mainly a revising chamber. In addition, the Parliament Act 1911 entirely removed any rights to veto or delay financial Bills. Nevertheless, in order to provide some balance between the two Houses the 1911 Act left the House of Lords with an absolute power to reject any legislation 27 As was pointed out in Chapter 3, the constitutional status of the Parliament Acts was recently considered by the House of Lords in Jackson v Attorney-General [2005] UKHL 56.

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which sought to prolong the lifetime of a Parliament and, at the same time, it reduced the maximum period between parliamentary elections from seven to five years. The present House of Lords is left with the power to delay legislation for up to a year. It can also amend and veto secondary legislation emanating from the Commons. In October 2015 the House of Lords used the procedure to veto controversial rules to cut tax credits proposed by the government. Following the publication of the Strathclyde Review in December 2015 the government proposes to respond by legislating to remove the veto over statutory instruments and replace it with a power to send laws back to the Commons requiring MPs to vote again on the measure in question.28 The government maintains that the change is justified as the unelected Lords lacks the legitimacy to interfere with the programme of an elected government with an absolute veto on secondary legislation. On the other hand, secondary legislation is frequently employed to introduce controversial changes and there is serious concern over the effectiveness of Parliament as a revising chamber given the fact that a government with a majority in the Commons is nearly always able to count on getting its legislation through Parliament. This change will alter the balance between the two Houses in favour of the Commons and the government of the day. COMPOSITION OF THE HOUSE OF LORDS

The House is composed of a number of different categories of peers. Viewed from a historical standpoint the Upper House of peers represented the families who had been elevated to the nobility by the King (dukes, marquises, earls, viscounts, and barons). It contained peers whose ancestry dated back to the medieval period. They also represented the interests of the established church. The power to appoint peers, which originally lay with the sovereign, has effectively since the eighteenth century been in the hands of the Prime Minister, whose nominees are rubber-stamped by the sovereign. An appointments commission, which is meant to be independent, is expected to take over the role of making recommendations for life peerages.

28

Hansard, 17 Dec 2015: Column 1740, Strathclyde Review.

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By the time the Parliament Act 1911 reformed the House of Lords, it was already evident to many that birth right was not a legitimate qualification for service in a modern legislature. Moreover, the predominance of hereditaries was iniquitous because the Conservatives were able to muster a majority by summoning their supporters amongst the hereditaries to vote. This built-in Conservative majority presented a particular problem for Liberal and later for Labour governments. Nevertheless, until 1999 hereditary peers, numbering over 758 out of 1,325, remained the largest single group. The House of Lords Act 1999 removed the voting rights of all but 92. A ballot was held among the hereditary peers to establish which of their number were to remain as a residue of working hereditary peers. It was argued that the 92 were necessary to provide continuity until the next phase in the process of reform was completed. The Lords Spiritual, representing the Church of England, also have a traditional right to sit in the House of Lords. The Archbishops of Canterbury and York and 24 other bishops are entitled to participate in the affairs of Parliament. Although the leaders of other denominations may be given life peerages, there is no guarantee of equivalent representation. The Royal Commission sought to address this anomaly by suggesting that all the major religions should be represented in a reformed second chamber. By far the largest category of members is that of the (around) 705 life peers. The Life Peerage Act 1958 allowed the appointment of a new category of barons serving for their lifetime only. In addition, the 1958 Act removed the sex discrimination barrier that had prevented women from sitting in the House of Lords. Although life peerages were available as an alternative to the hereditary principle from 1958, it was not until the election of Labour in 1964 that it became accepted practice to appoint exclusively life peers (there were a handful of hereditary peerages awarded as an exception during Margaret Thatcher’s term as Prime Minister, eg to Viscount Whitelaw and Viscount Tonypandy). It is worth noting that nominees for life peerages have fallen into two main categories. A certain number have been created on a regular basis as the political nominees of the main political parties. It has been a convention that, in order to perform the role of opposition effectively, opposition parties should be entitled to make recommendations to the serving Prime Minister. A substantial proportion of these political appointments is made up of politicians with experience in the House of Commons or at European, devolved, or local level. The second c ategory

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of nominees comprises those appointed in recognition of exceptional contributions to the wider community. Included under this head are captains of industry, retired leaders of trade unions, distinguished academics, former senior civil servants, retired generals, admirals, and air marshals, leading figures from the professions, arts, and sciences, and so on. The intellectual distinction and specialist knowledge of many life peers contributes to the high quality of debate in the House of Lords and to the contribution it makes as a body which revises legislation. With the exception of ministers and shadow ministers, peers are not paid, but are entitled to claim back expenses for travel, subsistence, and secretarial costs. The last distinct category is that of the Law Lords, created under the Appellate Jurisdiction Act 1876, who are appointed to serve on the highest domestic appellate court and are made life peers. The judicial committee had 12 working Law Lords with further retired Law Lords, who have the right to sit and vote for the remainder of their lifetime. There was a convention that serving Law Lords do not routinely participate in political debate. However, the Constitutional Reform Act 2005 has replaced the judicial committee of the House of Lords with a UK Supreme Court, and this change has ended the anomalous situation which allowed the Lord Chancellor, and the most senior serving judges, to also be members of the legislature. In January 2016 out of 820 members the party strengths in the House of Lords based on declared allegiances were: Labour 213, Conservative 250, Cross Bench 178, Liberal Democrats 111. Of the total eligible to sit in the House, 213 are women. Daily attendance averages between 350 and 450 peers. HOUSE OF LORDS: WHAT NEXT?

As has already been observed, the House of Lords Act of 1999 partially tackled the anomaly of hereditary peers, but this was intended only as a temporary measure until such time as the composition of a second chamber could be agreed.29 Each of the various options for reform has 29 For an evaluation of reform so far, see G Phillipson, ‘“The Greatest Quango of Them All”, “A Rival Chamber” or “A Hybrid Nonsense”? Solving the Second Chamber Paradox’ [2004] PL 352.

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far wider constitutional implications. If the United Kingdom was to follow most other nations and introduce an elected second chamber, this would provide an important element of democratic legitimacy. The method of election and gap between elections could be chosen on a different basis from the House of Commons; also the terms of office of members could be for a different period. In addition, the constituencies could be drawn so as to introduce a significant regional dimension. However, there are reasons for objecting to an elected, or mainly elected, second chamber. If it is accepted that the House of Commons should continue to have a predominant role, the democratic legitimacy of a reformed second chamber arising through election could be problematic. It might lead to the second chamber asserting its authority, and thereby acting as a competitor to the House of Commons. It could, for example, delay legislation more regularly, disrupting the process of government. Another potential drawback is the danger that an elected second chamber might duplicate the political tribalism of the House of Commons, with members dragooned by the party machine. Politicians mindful of having to face the voters at some future date would be less likely to display the relative independence compared to the Commons demonstrated by many members of the House of Lords in recent years. Moreover, there is evidence to suggest from a comparative study of the situation in Ireland, Spain, and Italy that the contribution of a second chamber as an effective legislative body tends to be undermined where the government enjoys a majority in both Houses.30 The recommendations of the Royal Commission under the chairmanship of Lord Wakeham,31 which was set up to address the fundamental problem of the composition of a reformed body and subsequent White Paper,32 in fact demonstrates the difficulty of reaching consensus on the next stage of reform. The Royal Commission considered that there should be an elected element of between 65 and 195 members (up to about 20 per cent) serving for between 12 and 15 years, elected at different times. Second, it recommended that the remaining members should be appointed by an independent statutory appointments 30 M Russell, Reforming the Lords: Lessons from Overseas (Oxford, Oxford University Press, 2000) 150–52 and 226–27. 31 The Royal Commission on the Reform of the House of Lords, A House for the Future, Cm 4534 (2000). 32 The House of Lords Completing the Reform, Cm 5291 (2001).

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commission operating under statutory guidelines designed to correct the u nder-representation of groups such as ethnic minorities, women, minority religions, and so on. The White Paper also opted for a very limited elected element of 20 per cent of the 600 members, an insufficient proportion to satisfy the pro-election lobby. However, it proposed that 330 would be nominated by the main political parties and that only 120 members would be appointed by the independent election commission. In 2003–06 successive reform proposals were voted down and strongly criticised as failing to satisfy either those favouring a predominantly elected second chamber or those preferring a mainly nominated body. By international standards the membership of the House of Lords remains extremely large at over 800 members, and only a limited proportion of peers attend on a regular basis. Recent proposals, based on 300–500 members, only go a limited way to answering the compelling case to reduce the size of the House but in a reformed house it is envisaged that all members will be regular participants. The coalition agreement between the Conservatives and Liberal Democrats following the 2010 general election included a pledge to reform the House of Lords before the 2015 general election. In 2012 the government introduced a bill after a joint committee of both houses had scrutinised a draft bill.33 In essence, the government proposed to change the composition of the House of Lords while retaining its present functions and powers. Strong emphasis was placed on its importance as a revising chamber. The reformed House would have comprised a mainly elected chamber of 462 members, with 360 elected members and 90 appointed members, including 12 bishops (but surprisingly there were no proposals to include representatives of other denominations). Another contentious feature was the arguably excessive duration of the term as candidates were to be elected by the single transferable vote system for a nonrenewable 15 years, with a third of the membership up for election at each general election. It would have involved a transitional period during which some existing peers would have remained in place. The bill lacked sufficient support and was abandoned after its second reading in the House of Commons. As mentioned above, an elected second chamber has a claim to legitimacy in a way that is different from an appointed chamber and for 33

House of Lords Reform Bill 52, 2012–13.

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this reason runs the risk of becoming a competitor to the House of Commons. The fear in some quarters is that a reformed upper house might challenge the primacy of the elected lower house. This tendency was recently illustrated by the further neutering of the House of Lords with the proposed removal of its veto over secondary legislation after it stepped in to reject a crucial aspect of government policy in October 2015. One advantage of an appointed chamber has been that many individuals with talent and experience have been elevated to a peerage. Such expertise has contributed greatly to the standard of debate and the capacity of the upper house to improve the quality of legislation but on the downside many peers have other commitments which makes their attendance irregular. Members of the reformed House would have received full remuneration. Notwithstanding any transformation of legislative procedures in the House of Commons in response to the West Lothian question that has seen the introduction of English Votes for English Laws (EVEL), there have been proposals to link reform of the House of Lords to the issue of territorial governance.34 For example, the Labour Party proposed in its 2015 manifesto a constitutional convention to consider replacing the present House of Lords with an elected Senate for the regions. Precise details were to be worked out by the convention but the key element would be regional representation of territory rather than population as with other second chambers. Under the US system, States enjoy equal representation in the Senate, irrespective of their size or population. This arrangement ensures bigger States in terms of population do not dominate decision-making. A reformed second chamber could provide territorial representation based on regions as applies to other second chambers. Such a body of up to 400 members (but preferably smaller) could be ‘indirectly elected’, possibly by elected local politicians from the different nations and regions of the UK or elected directly by proportional representation. A territorially composed Senate would give the devolved nations and the English regions a much stronger voice and act as a forum to settle disputes. Despite the persuasive case for introducing change along the lines referred to in this section as a response to devolution no proposals for Lords reform have been made by the Conservative government elected in May 2015. 34 P Scott, ‘The Upper Chamber and the Territorial Constitution’ UK Const L Blog (22 July 2015).

Parliament as Legislator 133 PART IV: PARLIAMENT AS LEGISLATOR

We will now consider the legislative process in more detail. In looking at this question the focus will be on considering how effective Parliament is as a legislative body and to what extent it is able to deliver high quality legislation. In the simplest terms, according to the doctrine of the mandate, Parliament has legitimacy because the most important part of it, namely, the House of Commons, is elected. The party with the strongest support in the Commons (usually a majority over other parties) is in a position to form a government. In turn, the government will introduce the policies that have been approved by the electorate. However, this only roughly describes the relationship between Parliament and law making. To some extent it is possible to see a correspondence between declared political aims at election times, and the legislation that is introduced by government.35 However, apart from legislation to put into effect manifesto pledges in the main policy areas, governments will also needs to introduce laws in response to pressing matters of topical concern which range from management of the economy and regulation of industry to measures in response to the threat of terrorism. Legislation also originates from a variety of other sources, some of which are outside Parliament. Some government Bills arise from the routine work of the Law Commission, which reports on the state of various aspects of civil and criminal law. Another increasingly important reason for the introducing legislation is to meet the requirements of EU law. Directives may need to be implemented by means of primary legislation.36 The introduction of devolution with a separate law-making apparatus has meant that now just over half of all legislation from Westminster applies only to certain parts of the United Kingdom.37

35 J Bara, ‘A Question of Trust: Implementing Party Manifestos’ (2005) 58 Parliamentary Affairs 585. 36 The European Scrutiny Committee of the House of Commons assesses the implications of laws coming from Brussels and decides which ones are debated at Westminster. 37 R Hazell, ‘Westminster as a “Three-in-One” Legislature’ in R Hazell and R Rawlings (eds), Devolution, Law Making and the Constitution (Exeter, Imprint, 2005) 228.

134 Parliament PUBLIC BILLS

A process of consultation may precede the introduction of government legislation. In order to facilitate this, a Green Paper or White Paper (government publication setting out intentions) will be issued to elicit responses from individuals and organisations likely to be affected by the proposed legislation. An important innovation in recent years has been the publication of some legislation as draft bills well in advance of their passage through Parliament in order to give more opportunities for consultation. In line with the practice in the Scottish Parliament, this process of pre-legislative scrutiny has allowed departmental select committees to take evidence, report, and make recommendations on proposals before the legislation goes through its formal parliamentary stages, and there is evidence to suggest that a significant proportion of recommendations have an impact on the final form of the legislation.38 Parliament is the focus for the activity of pressure groups. The central lobby of the House of Commons is where members of the public can meet their MPs to make representations. The modern trend has been to cultivate contacts with MPs and for MPs to take consultancies with commercial organisations. Labour MPs are frequently sponsored by trade unions, and some MPs, mainly Conservative, are associated with business interests, either as directors or as consultants. An intervention from the MP will be expected when the subject of discussion concerns areas where the pressure or interest group has a direct interest. As mentioned earlier, members are required to declare any such connections on a Register of Members’ Interests. As we review the parliamentary stages of government legislation, it is worth noting that Bills can be introduced in either the House of Commons or the House of Lords. The initial stage for legislation is called the first reading. This simply marks the announcement of the publication of the Bill. The principles contained in the Bill will be debated by the assembled House at the next stage, which is referred to as the second reading. The second reading is the main opportunity for MPs to debate the issues of principle contained in the proposal. If there is disagreement on the principles of the Bill, amendments may be put 38 J Smookler, ‘Making a Difference? The Effectiveness of Pre-Legislative Scrutiny’ (2006) 59 Parliamentary Affairs 522; The Briefing Paper Issues in Law Making, Number 5: Pre-Legislative Scrutiny (Hansard Society, 2004).

Parliament as Legislator 135

forward and a vote will take place at the end of the debate. While MPs have an opportunity during the debate to criticise the Bill, it should be recognised that it is extremely unusual for a government with a majority in the House of Commons to lose a vote on a division following the second reading. Defeat on a major platform of a government’s legislative programme might result in a vote of confidence. If the government were to lose such a vote, the Prime Minister would be under a constitutional obligation to ask the sovereign for a dissolution of Parliament, prompting an immediate election. The government side will be made aware by the party whips at the time of the vote of the consequences. As we saw earlier over the passing of the Bill incorporating the Maastricht Treaty, the prospect of defeat almost invariably leads to a win for the government side. After a Bill has surmounted the hurdle of being approved by a vote of the whole House, it moves on to the committee stage. This is when the Bill is normally considered by a public bill committee (formerly known as standing committees), although Bills of major constitutional importance (eg European Committees Bill 1972) are considered by a committee of the whole House. There is a different emphasis at this point, as the public bill committee concentrates on examining the provisions in much greater detail, clause by clause. A public bill committee comprises between 16 and 50 members, and the parties are represented on the committee according to their strength in the House of Commons. As a result, the government (assuming it has a majority in the Commons) is guaranteed a majority on the committee. It is also relevant to mention that the whips (who are the party managers) decide on the MPs that will serve on these committees. Members who tow the party line will be favoured, and those who tend to be independently minded will be kept off these committees. This has a significant impact on the approach of standing committees, as the whips are prepared to use their influence to keep the proposals of the government intact in situations where there is opposition to a Bill, and where amendments are likely to be suggested by the committee but resisted by the government. There are occasions when committees may be able to persuade a minister to change or reconsider parts of a Bill, but it is clear that standing committees have limited success in securing modifications from the government. Of course, the opposition may simply use the committee as a platform to present its alternative view and to inconvenience ministers.

136 Parliament

The effectiveness of public bill committees has been criticised for reasons other than the tendency towards partisanship just alluded to. Unlike the ‘subject’ committees that perform this function in the Scottish Parliament, public bill committees are non-specialist, in the sense that MPs assigned to public bill committees are not required to have any special interest or expert knowledge of the subject matter of the legislation. Moreover, public bill committees are not equipped with support staff able to undertake research or to provide the committee with advice. These are serious deficiencies, if it is accepted that the prime role of such committees is to improve the quality of the measure in question. This can be done only by drawing attention to potential weaknesses and by making carefully considered alternative suggestions. Under present procedures many clauses of proposed legislation may not be scrutinised at all by public bill committees.39 With reference to the successful operation of Australian and New Zealand models, it has been suggested that the quality of legislative scrutiny could be improved by the systematic application of checklists and standards, which would flag up issues such as: sub-delegation, Henry VIII clauses, retrospective effect, human rights implications, and so on.40 The report stage follows the committee stage and this is when the amended Bill is brought before the whole House. It is still possible for additional amendments to be made by ministers and for the opposition to suggest amendments. After the completion of the report stage, the Bill receives its third reading. At this point it is still possible to make verbal amendments. There can be short debates at the third reading stage, and the opposition can oppose the Bill by forcing a vote. Under the English Votes for English Laws procedure bills designated as English bills are assigned to a Grand Committee of English MPs in the House of Commons before proceeding to the third reading. After a Bill has successfully negotiated its passage through one House, it is sent to the other where it passes through the same stages. The procedures for the consideration of Bills in the House of Lords are broadly similar to those in the Commons. The committee stage of 39 P Norton ‘Parliament: A New Assertiveness?’ in J Jowell, D Oliver, C O’Cinneide (eds), The Changing Constitution, 8th edn (Oxford, Oxford University Press, 2015), 185ff. 40 D Oliver, ‘Improving the Scrutiny of Bills: The Case for Standards and Checklists’ [2006] PL 219 at 241.

Parliament as Legislator 137

legislation is different, as in the Lords it will be considered by the whole House. One of the main arguments for retaining a second chamber has been because of the performance of the House of Lords as a revising body for legislation. There are several reasons for this. The life peers, who are, in the main, the working members of the House of Lords, include leading members of the community and politicians. Although many may be past the peak of their careers, these peers will have specialist expertise and, in the case of politicians, useful experience of Parliament and government gained prior to their ‘elevation’ to the House of Lords. In addition, the House of Lords has more time to devote to detailed consideration of legislation. This element is especially important, as the procedural devices to curtail discussion and debate do not apply in the same way in the Upper House. Perhaps the biggest advantage over the Commons is that the party machine, operating through the whips, is much less effective in the Lords. Peers are more independently minded because failure to support the party line will not effect career prospects. The members are appointed for life, and thus have no election looming over the horizon, and the composition of the Lords is no longer skewed towards one party, as it used to be.41 The upshot is that since the abolition of most hereditary peers in 1999 the government suffers defeats in the House of Lords with increasing regularity (a striking 1649 times between 1999 and 2012), and legislation will frequently be amended during its passage through the House of Lords.42 If this occurs, the amended Bill returns to the Commons, where the Bill may be accepted by the Commons in its amended form. At this point negotiation is possible between the two Houses over the final form of the Bill. The Commons may simply reject the amendments and return the Bill to the House of Lords for approval.43 If the House of Lords is unwilling to accept the Bill, it has the option of invoking its powers under the Parliament Acts 1911 and 1949 which will delay the legislation for one year. The power is hardly ever used.44 The rarity of the

41 See M Russell, The Contemporary House of Lords: Westminster Bicameralism Revived (Oxford, Oxford University Press, 2013) 131ff. 42 Russell, ibid, 135. 43 R Whitaker, ‘Ping-Pong and Policy Influence: Relations Between the Lords and Commons, 2005–6’ (2006) 59 Parliamentary Affairs 536. 44 The last occasion was in regard to the Hunting Act 2004. See the discussion in Chapter 3 of Jackson v Attorney-General [2005] UKHL 56.

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a pplication of the Parliament Act is mainly because of a convention (‘the Salisbury Convention’) that the House of Lords will not block legislation that is introduced as part of an election manifesto commitment. However, there are occasions when government Bills are substantially amended through the intervention of the House of Lords.45 It will be apparent that sufficient time needs to be allocated to legislation for Parliament to adequately perform its function as a revising body. For instance, public bill committees should be given an opportunity to turn their attention to all the important clauses of a Bill. There is an obvious tension which arises. This is because the government will be keen to expedite its legislative programme in order to ensure that as many of its Bills as possible are fitted into the parliamentary session, while the opposition, which will often be resistant to the character of the changes proposed in a government Bill, could use the revising process as a means of blocking its progress. A number of procedural rules are available to facilitate the passage of legislation and these tend to operate in favour of the government. The closure shortens debate by allowing a vote to be taken but this requires the support of 100 members to apply. The guillotine involves the allocation of a strict timetable for the debate of each part of the Bill. This agreement may mean that some clauses are not discussed at all. The kangaroo at report stage enables only specified clauses to be selected for discussion. The application of these procedures depends on co-operation between government and opposition. The requirement of maintaining a majority in Parliament is a feature of the parliamentary system which the United Kingdom shares with Italy but, of course, the United States has an altogether different system. A President can and often does have a hostile majority in Congress (eg the Democrats were in control of both Houses following the midterm elections in November 2006). The struggle by a President to get legislation through Congress may result in gridlock but, although this might have a bearing on the effectiveness of the Federal government, it does not threaten the continuance of the government in office.

45

For example, the Identity Cards Act 2006. See Whitaker, above n 43, 540.

Parliament as Legislator 139 PRIVATE MEMBERS’ BILLS AND PRIVATE BILLS

Backbench MPs have limited opportunities to introduce legislation on their own initiative. There is an annual ballot for gaining a place high up in the queue. These Bills (private Members’ Bills) undergo a similar procedure to government legislation but any such proposals depend upon first having 100 sympathetic members to get through the second reading stage and the government allocating sufficient time for the Bill to pass through Parliament. This is the case even when the measure has considerable support, for example banning foxhunting; without time from the government, the measure will be likely to fail. Unlike public Bills and private Members’ Bills, private Bills are introduced to grant benefits or impose obligations on a specifically defined class of persons or to a particular private company or public body. Equally, private Bills may be used to authorise specific works or activities in a particular area. For example, the Channel Tunnel rail link between the Kent coast and central London was made possible by virtue of a private Bill. These measures are subject to a somewhat different procedure in Parliament to enable objections to be heard, but they must pass through both Houses and receive the royal assent. PARLIAMENTARY SCRUTINY OF DELEGATED LEGISLATION

The pressure on parliamentary time has given rise to an increasing trend towards the delegation of power to the executive. The use of skeleton legislation which allows ministers and their officials to draw up sub-rules has become widespread as a means of dealing with technical detail. The cumulative effect has been to give more broad-based powers to ministers and to officials. One example that illustrated the trend towards giving very widely drawn powers, so-called ‘Henry VIII clauses’, can be found in the Deregulation and Contracting Out Act 1994, which allows the minister responsible to: ‘repeal or amend any Act which authorises or requires the imposition of a burden on any trade, business or profession.’ Even more extreme, the Legislative and Regulatory Reform Bill which went before Parliament 2005/06 proposed in its original form to give ministers powers to alter any law passed by Parliament (This clause was modified following strong objections). The volume of delegated legislation, and the powers conferred as a consequence, has contributed

140 Parliament

to a discernible shift in the balance of power from the legislature to the executive. The procedures in Parliament for scrutiny are inadequate.46 Delegated legislation is published and laid before Parliament before it is introduced, but most of these measures will automatically come into effect after 40 days, unless a challenge is made. The parliamentary Joint Committee on Statutory Instruments can bring to the attention of Parliament measures over which it has concern but it does not have any power to challenge such measures. The ease with which delegated rules can be introduced further illustrates the degree of executive dominance over Parliament. PART V: PARLIAMENT AS WATCHDOG

In this section of the chapter we will evaluate the oversight function of Parliament. At this point we will discuss the mechanisms and procedures that have been formulated to undertake this crucial task and assess their effectiveness. It is worth considering as the discussion proceeds whether Parliament’s main function is really as a legislative body or as a body which effectively scrutinises the government. Since 2010 a number of important reforms have been introduced in an attempt to strengthen the authority of Parliament in the face of the government. The ability of Parliament’s to scrutinise the executive has been often undermined by party interests. For example, on behalf of the leadership the party whips were keen to steer away from departmental select committees MPs with an independence of mind who would ask challenging questions relating to policy matters. PARLIAMENTARY QUESTIONS

It has already been mentioned that parliamentary questions provide an important opportunity for individual members to raise matters on behalf of constituents. Backbenchers have a chance to interrogate

46 G Ganz, ‘Delegated Legislation: A Necessary Evil or A Constitutional Outrage’ in P Leyland and T Woods (eds), Administrative Law Facing the Future: Old Constraints and New Horizons (London, Blackstone, 1997) 80ff.

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the executive by framing oral questions that are directed at ministers. Ministers take turns in providing answers on most weekdays, as does the Prime Minister on Wednesdays for half an hour. Such probing can potentially be a source of deep embarrassment to the government. For example, the questioning of Margaret Thatcher by a Labour MP over the sinking of the Argentinian warship, the General Belgrano, during the Falklands conflict, revealed that the vessel was in fact heading away from the British forces, not towards them, as Parliament had previously been led to believe. There are important limitations, however, that reduce the ability of MPs adequately to fulfil their ostensible function of holding the executive to account at question time. First, the balloting procedure which determines whether a question is chosen for oral reply is determined by luck and not according to the gravity or relevance of the matter raised. Second, only limited time is available, with ministers answering questions for around 60 minutes each day except Fridays. Third, questions are limited to a narrow departmental remit. Fourth, compared to MPs who may rely on government sources for information related to questions, ministers are at an advantage as they are supported by civil servants and may be able to choose whether to release sensitive information into the public domain. DEPARTMENTAL SELECT COMMITTEES

Departmental select committees were established in 1979 to oversee the work of the major government departments. There were originally 14 of these committees but there are now 21. The committees consist of between 11 and 14 MPs, with the parties represented according to their relative strength in the House of Commons, which means that the governing party will have a majority on the committee. In fact, select committees should be regarded as an important extension of ministerial responsibility, helping to keep track of what ministers do with their responsibility for their departments and other agencies. Unlike the courts, which deal with ultra vires executive action or the abuse of power, the committees are at an advantage in that they can have an informal influence on the formative stage of policy-making, examining at their discretion political, social, and economic issues as they arise.

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The departmental select committees have been compared to those within the US system. However, there are substantial differences in their structure and effectiveness. With regard to structure, a central characteristic of the separation of powers under the US constitution is the way the legislature keeps check on the executive by means of Congressional committees. Although their wider reputation has been based on a number of scandals that have been revealed by special investigations (the most notable of all being Watergate in 1973/4), the committees undertake, on a day-to-day basis, the more routine tasks of initiating policy and scrutinising the executive, with their specific terms of reference being administration, policy, and expenditure. In fact, the Congressional committees are powerful bodies which are generously funded and equipped with full-time staff. They have formidable powers to summon before them papers or persons, including Secretaries of State (ministers) and top civil service officials and advisers. The Scottish Parliament and Welsh Assembly have introduced subject committees which combine the role of standing and select committees. The declared objective is for specialisation to achieve a degree of expertise in a particular area. This also addresses a criticism of the departmental committees working outside the parliamentary legislative process. In the UK system, Parliament (within the existing framework of the Westminster model) has always assumed the crucial role of acting as a formal check on the executive It became apparent to many MPs in the 1970s that to perform this task more effectively the place of select committees had to be revised and their inquisitorial powers needed to be strengthened. The new departmental committees were to have a clear function, that being to shadow all the main departments of state, with the aim of examining ‘expenditure, administration, and policy. To assist in their investigative role these committees have limited capacity to employ a staff of expert advisers, mainly on a part-time basis. Serving on these committees provides backbench MPs with an opportunity to be involved in the policy process. These committees also promote a degree of co-operation between MPs of all parties who may identify with the broad objectives of executive accountability. On the other hand, it might be argued that a more adversarial approach would provide greater accountability.

Parliament as Watchdog 143 Departmental Select Committees, July 2015 Name of committee

Government department

Maximum no of MPs

Quorum

Business Innovation and Skills

Business Innovation and Skills

11

3

Communities and Local Government

Communities and Local Government

11

3

Culture, Media & Sport

Culture, Media and Sport

11

3

Defence

Ministry of Defence

11

3

Education and Skills

Education and Skills

11

3

Energy and Climate Energy and Climate Change Change

11

3

Environment, Food Environment, Food and and Rural Affairs Rural Affairs

11

3

Foreign Affairs

Foreign and Commonwealth Office

11

3

Health

Health

11

3

Home Affairs

Home Office

11

3

International Development

International Development

11

3

Justice

Ministry of Justice

11

3

Northern Ireland Affairs

Northern Ireland Office

14

4

Public Administration and Constitutional Affairs

Cabinet Office

11

3

Science and Technology

Office of Science and Technology

11

3

Scottish Affairs

Scottish Office

11

3

Trade and Industry

Trade and Industry

11

3

144 Parliament Departmental Select Committees, July 2015 (Continued) Name of committee

Government department

Maximum no of MPs

Quorum

Transport

Transport

11

3

Treasury

Treasury, Board of Inland Revenue, Customs & Excise

11

3

Welsh Affairs

Welsh Office

11

3

Women and Equalities

Government Equalities Office

11

3

Work and Pensions

Work and Pensions

11

3

Since 1979, with each new Parliament following a general election, the departmental select committees have been reconstituted. Each is chaired by a member from one of the two largest parties, usually the government party. The committee then decides on appropriate subjects for scrutiny, although it should be noted that this very selectivity can be a source of weakness as well as strength. These subjects will include major matters of policy as well as more detailed administrative questions. It will be immediately apparent that the departmental select committees have a crucial advantage in comparison to public bill committees, in that they have the means to conduct more in-depth inquisitorial investigations which can give them considerable information not available to the mass of individual MPs, rather than being dependent, as these are, on asking particular questions and relying on the co-operation and goodwill of ministers and officials. This information will include not simply evidence before the committee, but also written submissions, departmental (official) briefs, visits (at home and abroad), informal meetings with non-parliamentarians, etc. The published reports of the departmental select committees, and their accompanying volumes of memoranda, provide MPs with a countervailing source of information to that of ministers and the executive departments, and in that sense the committees are of growing importance in holding ministers to account and in questioning civil servants. One important shortcoming is that the reports of the departmental committees are not debated by the House of Commons as a matter of course. Ministers and senior civil servants appear regularly before the department select committees. However, ministers (and MPs and peers) can

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refuse to attend (unless charged with contempt of Parliament and required by a vote of the House of Commons to do so). For example, the junior minister for agriculture, refused at first to appear before an inquiry into salmonella in eggs by the Agriculture Select Committee in 1988. Under previous practice ministers were able to refuse to allow officials to appear before the committees. This issue arose in 1992, when the Select Committee on Trade and Industry wished to question two retired named officials in the Ministry of Defence regarding matters arising from the Scott Inquiry concerning information they had about aspects of the controversy surrounding Matrix Churchill and the supergun affair. The Cabinet Office guidance to civil servants who are summoned to appear before these committees was revised following the Scott Report (for further discussion, see Chapter 6). These guidelines encourage officials to be helpful but specifically rule out: disclosing advice given to ministers or inter-departmental exchanges on policy issues; disclosing the level at which decisions were taken; and discussing the work of Cabinet committees or their decisions. Furthermore, civil servants are not permitted to express their own views on matters of policy. This supports the view that policy emanates from the politicians and not from civil servants. To some extent limitations as to time and resources result in a restricted focus of attention and, in consequence, an invariably selective impact on the issues of the day. However, recent research based on the detailed analysis of the reports of select committees not only indicates that committees are increasingly active but that about 40 per cent of their recommendations are accepted by government. Of course, they are less likely to be successful in influencing flagship policies based on manifesto commitments.47 Wright Reforms: Standing Up to the Executive It is important to recognise that the government was in a powerful position in regard to departmental select committees. This was partly because of their powers to appoint to these committees but also because it exercised control over the information made available to

47 M Russell and M Benton, Selective Influence: The Policy Impact of House of Commons Select Committees (London, Constitutional Unit, 2011) 7.

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them. The debate surrounding a freedom of information Act was partly concerned with the test which would be used to determine whether information is released into the public domain. The original ‘substantial harm’ test that appeared in the ‘Right to Know’ White Paper48 was diluted to a simple harm test included in the Freedom of Information Act 2000. The Information Commissioner now has an important role in deciding how the guidelines are applied. Departmental select committees were intended to be more independent than standing committees. This position was to be achieved by establishing a committee of selection to nominate members thus minimising the influence of the party whips. However, this situation did not long survive the partisanship that dominated the way Parliament operated, and the whips were regularly consulted on the membership of these committees. Indeed, government whips sought to remove the chairs of the Transport Committee and the Foreign Affairs Committee after the 2001 general election. Both of these chairs had earned a reputation for independence and presided over committees that had made reports that were critical of aspects of government policy. However, the failure to re-nominate these widely respected MPs caused a minor rebellion on the backbenches and their re-appointment was eventually confirmed. Nevertheless, the House of Commons rejected the proposal to remove the appointments to committees from the control of the whips in line with the recommendations of the Modernisation Committee in its second report 2001/02. The situation has changed following the report of a Select Committee on the Reform of the House of Commons chaired by Tony Wright MP which had been set up in July 2009 as a response to the MPs’ expenses scandal.49 The Wright committee was concerned to investigate ways in which the House of Commons might be able to resist the dominance of the executive. The election by alternative vote of the chairs of select committees by secret ballot of the whole house was one of the key recommendations of this report which was finally implemented in July 2010. Also, each party now elects its quota of the members of every select committee by secret ballot. The party composition of these committees reflects 48 Your Right to Know: The Government’s Proposals for a Freedom of Information Act, Cm 3818 (1997). 49 House of Commons Reform Committee, ‘Rebuilding the House’, HC 1117 (2008–09).

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pro rata party support in the House of Commons. The introduction of a Backbench Business Committee was another significant change that should also strengthen the hand of backbench MPs as this committee has responsibility for scheduling 35 days of debate. The conferral of these powers on ordinary MPs should mean that in the future the government will have significantly less clout in agenda setting. In 2003 the House of Commons decided that the chairs of the departmental select committees should receive an additional salary of £12,500 per annum in recognition of the additional workload the job entails. Serving on and chairing these important committees now provides an alternative career structure for MPs not reaching the front ranks of government or opposition. The Modernisation Committee of the House of Commons recommended that departmental select committees should have a much extended role and perform all of the following tasks: consider major policy initiatives; consider government responses to major emerging issues; propose changes where evidence persuades the committee that recent policy requires amendment; conduct pre-legislative scrutiny of Bills; examine and report on main estimates, annual expenditure plans, and annual resource accounts; monitor performance against targets in the public service agreements; take evidence from each responsible departmental minister at least annually; take evidence from independent regulators and inspectorates; consider the reports of Executive Agencies; examine treaties within their subject areas; consider major appointments made by a Secretary of State.50 In order to enhance the transparency of the process a number of committees have since adopted this practice with the co-operation of the relevant government department of holding pre-appointment hearings before certain important public appointments are confirmed.51 These committees tend to work more effectively at times when there is a narrow government majority, as this encourages a greater degree of inter-party co-operation. For example, in 1993 at a time when the Conservative government of John Major had a majority of only 21 seats the Trade and Industry Select Committee issued a critical report on 50

Modernisation Committee, First Report, Select Committees, HC 224-1, 2001/02. eg, ‘Appointments of Michael Cohrs and Alastair Clark to the Interim Financial Policy Committee’, Fourteenth Report of Session 2010–12, HC 1125, 7 June 2011. 51 See,

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the government’s policy in relation to the closure of coal mines, and in 1995 the Defence Select Committee reported unfavourably on the government’s handling of the effects of ‘Gulf War syndrome’ in 1995. On other occasions the committees have been criticised for tending to divide along party lines over controversial matters which involve direct criticism of the government and which might attract adverse publicity. For example, the Select Committee for Culture, Media and Sport repeatedly investigated plans for the M illennium Dome and the M illennium celebrations which involved the abuse of large amounts of public funds and inefficient management of the project, but, after intervention from the party whips, the censure of the government was toned down, so that the published reports referred to ‘constructive’ criticism of the government’s scheme.52 In the 2010–11 parliamentary session the departmental select committees for Culture, Media and Sport and for Home Affairs played a prominent part in further uncovering aspects of the News of the World hacking scandal (see Chapter 1). The investigatory role of these committees was well demonstrated in July 2011. Rupert and James Murdoch, Rebekah Brooks, the Metropolitan Police Commissioner and other senior officers were questioned by MPs before a live television audience in the style of the 1976 Watergate hearings in the USA. In tandem with the public inquiry chaired by Lord Justice Leveson the reports from these committees helped shape the official response to the alleged misconduct of the media and the Metropolitan Police. E-petitions and Popular Democracy E-petitions have been introduced as a way for the public to raise popular concerns before government and Parliament. At least six signatures are required to initiate the process. The government responds to all petitions receiving more than 10,000 signatures and any petition which attracts more than 100,000 signatures will be considered for debate in the House of Commons. For example, a petition to stop allowing immigrants into the UK which had 200,000 signatures was debated by the House of Commons in October 2015.53 An 11-member Petitions 52 See, eg, Select Committee for Culture, Media and Sport, Back to the Dome, Third Report, HC 21-1, 1998/99. 53 petition.parliament.uk.

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Select Committee was established by the House of Commons in 2015 to oversee the running of E-petitions and press for action if there is an inadequate response by government or the public body concerned to a topic that has been raised.54 PUBLIC ACCOUNTS COMMITTEE AND THE NATIONAL AUDIT OFFICE

The Public Accounts Committee (PAC) is one of the oldest and most prestigious parliamentary committees. Despite the fact that the scope of government was then much more limited than is now the case, W.E. Gladstone, as Chancellor of the Exchequer, recognised the need to provide a mechanism of accountability for public expenditure. The PAC was first created in 1861, while the office of Comptroller and Auditor General (described below) followed in 1866. In essence, this framework has survived to the present day.55 The House of Commons exercises some degree of control over government finance through the PAC. The amount of government spending is over £458 billion per annum.56 The PAC, more than most other parliamentary committees, operates in a less-partisan, non partypolitical way and consists of 15 MPs. The chair is always a senior member of the opposition, usually with experience as a Treasury minister but from May 2015 Meg Hillier MP has been chair and she was a former Labour Home Office Minister. The PAC’s remit is limited to the audited accounts of government departments. Ministers and departmental accounting officers (usually the senior civil servant, called a permanent secretary) appear before the PAC to be questioned, even interrogated, on issues arising from the annual audit of departmental accounts. Further, the introduction of television cameras in the House of Commons has brought these proceedings, and the important issues examined, to the wider public. Reports prepared by the PAC each year (30–40 in number) are always debated annually by the House of Commons. The 54 www.parliament.uk/business/committees/committees-a-z/commons-select/ petitions-committee/. 55 See J McEldowney, ‘Public Expenditure and the Control of Public Finance’ in J Jowell, D Oliver and C O’Cinneide (eds), The Changing Constitution, 8th edn (Oxford, Oxford University Press, 2015), 368ff. 56 Public Expenditure 2010–11, Provisional Outturn, Cm 8133 (July 2011).

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government will be expected to respond to any criticisms made by taking any necessary remedial action. The PAC is the only parliamentary committee which has comprehensive administrative support in the form of the National Audit Office (NAO), which is headed by the Comptroller and Auditor General (C & AG) (Sir Amyas Morse at the time of writing).57 The Comptroller used to be appointed by the government of the day, but the National Audit Act 1983 modified his or her status and that of the staff (around 750), establishing the post as an officer of the House of Commons. The method of appointment now is by means of a commission, of which the Prime Minister and the chair of the PAC are both members. This reinforces the element of independence in the system of accountability. The point to note is that the Comptroller and Auditor General and the National Audit Office are independent of government, and certify the accounts of all government departments and a wide range of other public sector bodies. Most of the PAC’s work consists in examining the value for money (VFM) reports undertaken by the NAO, which are intended to measure economy, efficiency and effectiveness of departments and other bodies in the way they have used their resources. The NAO works closely with the PAC, examining the effectiveness with which governmental bodies implement their assigned policy goals. Reports are based on the annual audit of all government departments. They are passed to the PAC where the evidence contained therein can be used effectively as a tool with which to probe into the details of expenditure, and this gives the reports of the PAC added authority. A widely publicised example concerned serious delays that occurred in issuing passports in 1999. This problem was caused by the introduction of a new computer system. The backlog led to much anxiety and inconvenience for members of the public who had booked their summer holidays abroad. By June, the Passport Agency had around 565,000 applications awaiting processing and applications were taking on average 50 days. The NAO immediately reported to Parliament, and the Committee of Public Accounts took evidence on its report in November 1999. The report points out that the Agency’s financial objectives were to recover, via the passport fee, the full cost of passport services and it recorded that the unit cost to the taxpayer of p roducing 57 The National Audit Office has a website which publishes its reports: https:// www.nao.org.uk.

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a passport would rise, in the absence of other changes. The NAO went on to estimate the cost of the additional measures taken by the Passport Agency to deal with the failures to be around £12.6 million. The figure included £6 million for additional staffing. In addition, at the time of the report £161,000 in compensation had already been paid to members of the public for missed travel and other expenses (including the purchase of umbrellas for members of the public waiting in the queue for emergency passports). The report has a strongly practical application and identifies key lessons that should be learned from such an episode. In particular, it identifies a need: (i) for proper testing of new systems before committing to live operation, in particular for staff to learn and work the system; (ii) to have realistic contingency plans in place; and (iii) when service delivery is threatened, to have the capability to keep the public well informed.58 There have been numerous instances of strongly critical investigations both by the NAO and the PAC. To take a more recent example, in 2005 the PAC investigated the Department for Work and Pensions, concentrating on fraud and error in the benefits system amounting to £3 billion. The PAC recommended simplification of the benefits system, introduction of benchmarking, and measuring performance against other comparable organisations.59 Although the PAC and the NAO have a crucial part to play in the process of scrutiny, they are concerned only with past expenditure, that is, on funds that have already been allocated. Essentially, this auditing work, although very important, is Parliament looking over its shoulder at items of expenditure with a paramount concern for the efficient and economical use of public money. However, the auditing process is relatively rigorous when compared with the well-known deficiencies in Parliament’s general control of proposed expenditure. Against a background of rapid and far-reaching government spending cuts which began in May 2010 with the Conservative–Liberal Democratic coalition assuming office, Professor McEldowney argues that the current financial crisis is having a major impact on the efficacy of the parliamentary scrutiny of finance. Although under the Interim Office for Budget Responsibility there is more transparency 58 National Audit Office, United Kingdom Passport Agency: The Passport Delays of Summer 1999, HC 812, 1998/99. 59 Public Accounts Committee, Fourth Report: Fraud and Error in Benefit Expenditure, HC 411, 2005/06.

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than before, the balance of influence between parliamentary control and government spending has shifted to the government’s advantage. Financial control of expenditure increasingly relies on the personal initiative of individual MPs.60 THE PARLIAMENTARY OMBUDSMAN

The Parliamentary Ombudsman (PO) was introduced by the Parliamentary Commissioner Act of 1967 to plug a manifest gap in dealing with grievances against officialdom. The main function of the PO is to investigate cases of maladministration (not actually defined in the Act) referred to him or her by MPs, but no actual power to grant a remedy is given to the PO. Nevertheless, in most cases the recommendations of the PO are followed by the department or public body concerned. The PO has formidable investigatory powers and a staff to assist with inquiries. The remit of the PO, first set out in Schedules 1 and 2 to the 1967 Act (later extended by the Parliamentary and Health Services Commissioners Act 1987), applies to most government and quasi-governmentalbodies. The filtering of complaints through MPs was insisted upon during the passage of the original bill in order that the role of backbench MPs would not be usurped, and it is certainly true that MPs continue to pursue matters against government departments on behalf of their constituents and often proceed more quickly than the formal approach of the PO. Moreover, this lack of direct access has been seen by many critics as a weakness. There have been high profile investigations by the PO which have resulted in awards of compensation in line with the PO’s recommendations, for example in regard to losses suffered by householders through the building of the Channel Tunnel rail link. The reports of the PO are submitted to the Public Administration Select Committee of the House of Commons and are also laid before the House.61

60 See, eg, J McEldowney, ‘Public Expenditure and the Control of Public Finance’ in J Jowell, D Oliver and C O’Cinneide (eds), The Changing Constitution, 8th edn (Oxford, Oxford University Press, 2015), 372ff. 61 ‘The Ombudsman in Question: The Ombudsman’s Report on Pensions and its Constitutional Implications’, HC 1081, 2006.

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In the Bradley case 62 the decision to reject the PO’s findings of maladministration and reject her recommendations was successfully challenged by way of judicial review. Many thousands of policyholders had lost out because of misleading advice from the department but offering compensation to the many individuals affected in line with the PO’s recommendations would have cost several billion. The case is of constitutional importance because the Court of Appeal considered the status of the ombudsman’s role in relation to central government. It stated that: ‘[T]he Secretary of State must proceed on the basis that the ombudsman’s findings of injustice caused by maladministration are correct unless they are quashed in judicial review proceedings.’ And it was further held that the minister could not simply reject the ombudsman’s findings because he preferred another view, he must have cogent reasons for doing so. CONCLUSION

The central question for us has been to consider how far Parliament contributes to a system of ‘representative and responsible’ government. The executive dominance of Parliament remains the most conspicuous feature of the legislative process. According to Bagehot this was the ‘efficient secret’ of the constitution.63 Even when there is determined opposition, as was the case with Health and Social Care Act 2012, it is very unusual for a government not to get a measure passed by Parliament. Although introduced ostensibly to correct the anomalies of representation caused by devolution, the position of the Conservative government elected in 2015 has been further strengthened following the introduction of the EVEL procedure for bills concerning England. This tendency will be further accentuated with the prospect of the removal of the House of Lords veto over secondary legislation. The dominance of the executive is a particular cause of concern when the opposition within Parliament is weak. In fact an important reason for having a reformed second chamber with enhanced legitimacy is to provide an effective counter to any government with an overall majority in the House of Commons. 62 R (on the application of Bradley) v Secretary of State for Work & Pensions [2009] QB 114. See also R (on the application of Equitable Members Action Group) v HM Treasury [2009] EWHC 2495 (Admin). 63 W Bagehot, The English Constitution (London, Fontana, 1963) 65.

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On the positive side, the PAC and NAO have improved their performance as examiners of government expenditure. We have seen in this chapter that departmental select committees perform an important role, but they do so unsystematically and not entirely adequately. Professor Tomkins has sought to argue that ‘we should abandon the notion that Parliament is principally a legislator. We should instead see Parliament as a scrutineer, or as a regulator, of government.’64 It is difficult to sustain such a view for as long as Parliament continues to function in its law-making capacity by approving a high volume of legislation each year. Indeed, Parliament has been criticised for neglecting to update its procedures sufficiently in order to secure improvements in the methods it employs for scrutinising legislation.65 Following in the footsteps of the Scottish Parliament, there has been a recent trend towards the publication of draft bills to allow for pre-legislative scrutiny and greater opportunity for consultation. While this is a response to the common complaint from individuals and organisations that it is difficult to inform and influence the policy-making process at the formative stage, concern remains over the effectiveness of the House of Commons public bill committees in providing systematic clause-by-clause scrutiny of legislation. Furthermore, departmental select committees still do not routinely engage in post-legislative scrutiny by monitoring legislation after it comes into force.66 By comparison the House of Lords has earned an enviable reputation as a revising chamber. Any reform programme for the upper house needs to find a way of modifying its composition to incorporate enhanced democracy combined with a regional dimension whilst also preserving its contribution to the legislative process. At the same time this must be achieved without challenging the primacy of the House of Commons. Finally, it will be apparent from Chapter 8 that devolution has introduced some improved methods for delivering accountability within Scotland, Wales, and Northern Ireland (eg subject committees), which might be transferable to the Westminster Parliament.

64 See A Tomkins, ‘What Is Parliament For?’ in N Bamforth and P Leyland (eds), Public Law in a Multi-Layered Constitution (Oxford, Hart Publishing, 2003) 55. 65 M Ryle, ‘House of Commons Procedures’ in R Blackburn and R Plant (eds), Constitutional Reform (London, Longman, 1999) 110. 66 First Report of the Select Committee on the Modernisation of the House of Commons.

Parliament as Watchdog 155 FURTHER READING Abraham A, ‘Ombudsman as Part of the UK Constitution: A Contested Role?’ (2008) 61 Parliamentary Affairs 206. Brazier A and Fox R, ‘Reviewing Select Committee Tasks and Modes of Operation’ (2011) 64 Parliamentary Affairs 354. Brazier R, Constitutional Reform: Reshaping the British Political System, 3rd edn (Oxford, Oxford University Press, 2008) chs 4 and 5. Kennon A and Blackburn R, Griffith and Ryle on Parliament: Functions, Practice, and Procedures, 2nd edn (London, Sweet & Maxwell, 2003). Leopold P, ‘Standards of Conduct in Public Life’ in J Jowell and D Oliver (eds), The Changing Constitution, 7th edn (Oxford, Oxford University Press, 2011). McEldowney J, ‘Public Expenditure and the Control of Public Finance’ in J Jowell, D Oliver and C O’Cinneide (eds), The Changing Constitution, 8th edn (Oxford, Oxford University Press, 2015). Munro C, Studies in Constitutional Law, 2nd edn (London, Butterworths, 1999). Norton P, ‘Parliament: A New Assertiveness?’ in J Jowell, D Oliver C O’Cinneide (eds), The Changing Constitution, 8th edn (Oxford, Oxford University Press, 2015). Oliver D, ‘Improving the Scrutiny of Bills: The Case for Standards and Checklists’ [2006] PL 219. Rogers R and Walters R, How Parliament Works, 6th edn (Harlow, Pearson, 2006). Russell M and Benton M, Selective Influence: The Policy Impact of House of Commons Select Committees (London, Constitutional Unit, 2011). Russell M, The Contemporary House of Lords: Westminster Bicameralism Revived (Oxford, Oxford University Press, 2013). Tomkins A, The Constitution after Scott: Government Unwrapped (Oxford, Oxford University Press, 1998). Tomkins A, ‘What Is Parliament For?’ in N Bamforth and P Leyland, Public Law in a Multi-Layered Constitution (Oxford, Hart Publishing, 2003). Walters R, ‘The House of Lords’ in V Bogdanor (ed), The British Constitution in the Twentieth Century (Oxford, Oxford University Press, 2003).

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6 Government and Executive

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Prime Minister – Collective Cabinet Responsibility – Policy Formation – Government ‘Spin’ – Government Departments – Individual Ministerial Responsibility – Codes of Practice – The Scott Report – Freedom of Information – E-government INTRODUCTION

T

HIS CHAPTER FOCUSES on the constitution in respect to the conduct of central government in the United Kingdom. It starts at the pinnacle of government by looking at the role of the Prime Minister and the Cabinet, before going on to consider the governmental mechanisms for the implementation of policy in the form of the civil service, and the constitutional significance of the Freedom of Information Act 2000. As we proceed with this discussion, and observe the way in which power is exercised, it is worth remembering the term ‘elective dictatorship’: this is because the principle concern is to assess what constitutional limits, safeguards, and democratic controls are placed on the Prime Minister, Cabinet, and civil service in the way they perform their functions. In terms of the exercise of constitutional power, it is helpful to view the UK political system as hierarchical, with the Prime Minister, and the Office at 10 Downing Street, at the apex of a triangle. At the next level we find the Cabinet Office, the departments of state, and then junior ministers responsible for particular policy domains. In turn, the entire machinery of government relies on a permanent civil service, which is, itself, hierarchical in structure.

158 Government and Executive THE PRIME MINISTER

Not only does the holder of prime ministerial office head the government, represent the nation, and lead the largest political party, but the Prime Minister is responsible for taking many decisions that determine domestic policy and the conduct of foreign affairs and for making an enormous range of appointments (in many cases these are rubberstamped by the monarch). While it is widely recognised that a UK Prime Minister1 has wideranging powers at his or her disposal, it is also clear that there is considerable scope to pursue a personal style of leadership. Some Prime Ministers, for example, John Major, favoured a more collegiate approach (a style referred to as primus inter pares) while others such as Margaret Thatcher and Tony Blair mould the office around their own personality, and they have become known for a more presidential style of leadership (virtually an elected monarch). If we look back to trace the constitutional derivation of the post it will be apparent that the office of Prime Minister is not defined under the constitution or any Act of Parliament, and, in fact, it originates from the early eighteenth century, when the sovereign found it convenient to rely on a small coterie of ministers. Authority from among them was assumed by a leading political figure. Sir Robert Walpole, generally acknowledged as the first Prime Minister, held the office of First Lord of the Treasury. Here was a politician who could be entrusted with the monopolisation of power and patronage, but to hold the position of head of government, the incumbent needed to have the confidence of the sovereign, and also to have the full support of Parliament.2 In the contemporary constitution it is the support of Parliament, or more precisely the elected House of Commons that is crucial to the formation and continuation of the government. After a general election the leader of the political party with a majority in the House of Commons will be called upon by the sovereign to form a government, and he or she will automatically become Prime Minister. If, as in 2010, no single party has an overall majority the procedure for the selection of the next Prime Minister is more complicated and may involve the intervention of the Monarch. (See Chapter 4.) 1 P Hennessey, The Prime Minister: The Office and its Holders since 1945 (London, Penguin, 2001). 2 R Crossman, ‘Introduction’ in W Bagehot, The English Constitution (London, Fontana, 1963) 20–22.

The Prime Minister 159

Once confirmed in office by the monarch, a Prime Minister is responsible for forming the government. The only limits on the selections dictated by convention are that all ministers must be members of Parliament and that the Prime Minister and the Chancellor of the Exchequer must be members of the House of Commons. In practice, however, there may be strong political constraints that limit the scope of a Prime Minister’s choices. For example, Prime Minister Tony Blair could not easily have denied Gordon Brown a major government post, given his prominent position in the parliamentary Labour party. A Prime Minister can also dismiss ministers and reconstitute the government at any time by reshuffling the pack. On one famous occasion, referred to as the ‘night of the long knives’, Harold Macmillan dispensed with seven cabinet ministers at one stroke.3 The Home Secretary was sacked in an extensive re-allocation of senior ministerial positions by Tony Blair following the poor performance of the Labour Party in local government elections in May 2006. Many of the powers that the Prime Minister now enjoys are prerogative powers that were formerly the personal prerogatives of the Sovereign. For example, this includes extensive powers of patronage and the right to negotiate treaties with other nations. Some appointments, such as appointments to the government, archbishops and bishops, and other honours, are entirely in the gift of the Prime Minister, while others are merely confirmed by the Prime Minister. These include life peerages,4 appointments of the most senior civil servants, and the highest judicial appointments. The Prime Minister was be able to determine the date of a general election within the five-year time frame set out by the Parliament Act 1911. Indeed, the Royal Prerogative to dissolve Parliament on the advice of the Prime Minister was regarded as a core feature of the constitution. This had meant that the Prime Minister and the party in power enjoyed the advantage by being able to determine the date of an election. It had been argued that this enabled a government to manipulate events to coincide with the timing of the election. Prime Minister Cameron was intent on surrendering this power. The Fixed Term 3 A Sampson, Macmillan: A Study in Ambiguity (London, Penguin, 1967) ch 13, ‘The Purge’. 4 Recommendations for life peerages are now first made by the House of Lords Appointments Commission and approved by the Prime Minister.

160 Government and Executive

Parliaments Act 2011 provides that general elections should take place regularly every five years, thus removing the Prime Minister’s discretion to advise the Monarch to dissolve the House at a time of the Prime Minister’s choosing. However, there is provision for an election before the scheduled date if the House of Commons decide to pass a motion supported by two-thirds of MPs or if the House of Commons back a motion (by a simple majority of members) of no confidence in the government. The Fixed Term Parliament Act helped cement the 2010 coalition agreement by setting the next election for May 2015 but until the legislation is repealed the PM’s right under the previously established convention to call an election no longer applies.5 Unless a government is defeated the interval between elections is set at five years. The main issue of controversy between the parties was whether there should have been a four-year or five-year period between elections. As head of the government, the Prime Minister represents the nation on the international stage and at EU summits. In this capacity the UK Prime Minister often takes a leading role, together with the Foreign Office, when entering into treaty negotiations with other nations. THE PRIME MINISTER AND THE CABINET

The Cabinet might appear to be the focal point of government decision-making. It comprises the group of senior ministers appointed by the Prime Minister6 to head the main government department and has between 22 and 24 members. According to Bagehot, it was a combining committee: ‘a hyphen which joins, a buckle which fosters, the legislative part of the State to the executive part of the State. In its origins it belongs to the one, in its functions it belongs to the other.’7 Major policy issues are often discussed at Cabinet, and conflicts between departments may be finally resolved over the Cabinet table, but key decisions may be taken in one of the many Cabinet committees which specialise in the various policy areas. It is generally recognised that there is a growing degree of dominance over the Cabinet 5 www.publications.parliament.uk/pa/ld201011/ldselect/ldconst/69/6902.htm.

6 The 2010 coalition agreement required the (Conservative) Prime Minister to surrender his exclusive prerogative to select the Cabinet to the (Liberal Democrat) Deputy Prime Minister. 7 W Bagehot, The English Constitution (London, Fontana, 1963) 68.

The Prime Minister and the Cabinet 161

by the Prime Minister. He or she is able to determine the composition and who chairs these committees.8 The Prime Minister will preside over the most important committees and is able to set the agenda for Cabinet meetings. This means that decisions of great importance may be reached by Cabinet committee and effectively kept within the Prime Minister’s inner circle of associates and advisers without providing an opportunity for discussion by the Cabinet. Examples of this have included the decision by the Attlee government (1945–51) to test Britain’s atomic bomb, and, much more recently, in 1997, the decision to change the management of financial policy by granting the Bank of England the power to set interest rates independently of government. The Prime Minister has a predominant role over the conduct of government, and this tended to increase during the course of the twentieth century. The fact that a Prime Minister usually has sole charge over appointing and dismissing ministers obviously means that he or she wields enormous power over the Cabinet and other ministers. A minister who fails to perform as expected, or who falls out of line, can be summarily dispensed with. For instance, Harriet Harman experienced difficulties with welfare reform and was replaced as Secretary of State for Social Security in the first reshuffle of the Labour government in June 1998. However, under the 2010 coalition agreement Prime M inister Cameron was not able to dismiss any of the five Liberal Democrat cabinet members without the approval of Deputy Prime Minister Clegg. No such constraints apply to the selection of ministers following the 2015 election. The Prime Minister has the capacity not only to change the complexion of the government by means of appointments that are made but also to remould the institutional structures of government departments to suit the direction of policy.9 Only the Prime Minister can call a Cabinet meeting.10 Collective Cabinet responsibility further contributes to this authority. This constitutional convention originates from the need for a Prime Minister to present the sovereign with unified advice from the government on matters of policy. The convention allows for the fact that the decision-making process will be controversial, with ministers 8 For a full list of Cabinet committtees, see https://www.gov.uk/government/ publications/the-cabinet-committees-system-and-list-of-cabinet-committees. 9 As Deputy Prime Minister and Lord President of the Council Nick Clegg had special responsibility for political and constitutional reform. 10 P Hennessey, Whitehall, 2nd edn (London, Pimlico, 2001) 306ff.

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frequently expressing divergent views on any issue brought to Cabinet for final decision. The convention demands confidentiality as any dissenting opinions are expressed privately. At the end of the discussion, after a free and frank exchange has taken place, the Prime Minister, who chairs the meeting, is responsible for identifying the feeling of the meeting and noting an agreed position. The convention of collective responsibility dictates that a member of the Cabinet who during the discussion voiced opposition to the view that is finally adopted must accept the decision. This requires him or her to vote and speak actively for the policy, or alternatively that minister should resign. As Secretary of State for Defence in 1986, Michael Heseltine was so annoyed, both by the decision not to support Westland, a British helicopter manufacturer, and by the way the decision was forced through Cabinet, that he resigned from Margaret Thatcher’s government by walking out of Cabinet to brief waiting journalists. The source of the Prime Minister’s political authority derives from his or her place as party leader. All major political parties elect a leader with the assumption that, should the party be victorious at a general election by emerging with a majority of seats in the House of Commons, the leader will become the next Prime Minister. Once in office, the Prime Minister is in a position of enormous authority but the fall of Margaret Thatcher demonstrated that it is possible for even the most powerful of Prime Ministers to lose the support of the parliamentary party and be forced from office. A number of issues contributed to Margaret Thatcher’s downfall after more than 11 years in Downing Street. For example, she had insisted upon the introduction of a new and highly unpopular local government tax, called the community charge or ‘poll tax’, against the advice of senior ministers. She was unable to reconcile the differences within her own party over Europe, and because of her own Euro-scepticism inflamed her critics. Most tellingly, her abrasive style of leadership led to numerous sackings and resignations, culminating in the unexpected departure of her deputy, Sir Geoffrey Howe. The political enemies on her own side, now on the backbenches, were eventually prepared to mount a challenge. Once it was clear from the result of an election among Conservative MPs for the party leadership, which had been forced by Michael Heseltine, that support from the parliamentary Conservative party was haemorrhaging, the huge authority and power that she had exercised for so long appeared to evaporate. This failure to win decisively on the first ballot made her resignation

The Prime Minister: Policy Formation and Implementation 163

inevitable. In effect, the ‘emperor’ had been deposed without ever suffering defeat at a general election.11 The Prime Minister has a special position in relation to the operation of the intelligence services.12 The Prime Minister is head of the intelligence and security services, with overall responsibility for security matters. In this sphere it is the Intelligence and Security Committee, established by the Intelligence Services Act 1994, which provides some parliamentary oversight over the three main organisations responsible for national security, namely: MI6, officially the Secret Intelligence Service (SIS); Government Communications Headquarters (GCHQ); and MI5, officially the Security Service.13 The committee examines expenditure, administration, and policy within what has been termed the ‘ring of secrecy’. The committee is appointed by the Prime Minister, after consultation with the Leader of the Opposition, is composed of a cross-party membership of nine, taken from both the House of Commons and the House of Lords, and is required to report annually to the Prime Minister on its work. The introduction of some oversight mechanisms is a useful development, but it is difficult to assess accurately how effectively the committee, tribunal, and Security Services Commissioner perform their respective roles as their most valuable work relates to classified material, which is deliberately placed beyond the public gaze and, as we shall see later, such information is designated as an excluded category under the Freedom of Information Act 2000.14 THE PRIME MINISTER: POLICY FORMATION AND IMPLEMENTATION

The growth of the Prime Minister’s Office at 10 Downing Street, with its own staff and with an increasingly high profile in co-ordinating the activities of government, has meant that a structure now exists for policy co-ordination. The capacity of a Prime Minister to drive the complex machinery of modern government from the top has increasingly depended on having in place an apparatus of administrative back up. 11

Hennessey, above n 1, 432ff.

12 www.intelligence.gov.uk/. 13

www.mi5.gov.uk/output/Page7.html; www.mi6.gov.uk/output/Page79.html. P Birkinshaw, Freedom of Information: The Law, the Practice and the Ideal, 4th edn (Cambridge, Cambridge University Press, 2010). 14 See

164 Government and Executive

In the first place, the Cabinet Office emerged as the department with overall responsibility for supporting the work of the Cabinet. Its primary function was (and is) to provide secretarial support to the Cabinet, and to the network of Cabinet committees where much of the detailed work of the Cabinet is carried out across departments on key issues. In charge of the Cabinet Office, which is at the same time the civil service department, is the Cabinet Secretary. As head of the home civil service, he or she also has the task of working as a conduit between the government and the civil service more generally. For example, he or she must guarantee the impartiality of a permanent civil service. In another capacity, the Cabinet Office deals with public sector appointments and promotions within the civil service. The Cabinet Office has overseen many of the public sector reforms that have been introduced in recent years. The Cabinet Secretary, as head of the civil service, presides over the Cabinet Office and from this position is responsible for upholding the integrity of the civil service. This includes overseeing the conduct of the civil service, civil service promotion, and public sector appointments. During the course of the twentieth century the importance of the Cabinet Office and the Prime Minister’s personal office in Downing Street greatly increased. In particular, the co-ordination of the activities of government was essential in both world wars (1914–18 and 1939–45). It should be remembered that in wartime the government comprised a national coalition made up of the most talented individuals from all parties, but the Prime Minister, assisted by a very small War Cabinet, was able to run the government.15 Since the 1960s the staffing levels have expanded, and there have been repeated attempts to improve the structure and organisation to meet challenges as they have arisen. For example, inside Downing Street itself, the Central Policy Review Staff (CPRS) was introduced by Prime Minister Heath in 1971 under the direction of Lord Rothschild to provide advice from outside the civil service. Subsequently, Prime Ministers have stamped their mark on the way the Cabinet Office and 10 Downing Street are organised. For example, the CPRS was dispensed with by Margaret Thatcher, who decided to build up her own Policy Unit into what Hennessey describes as ‘what has in effect [become] a proper Downing Street version of a

15

See, eg, A Calder, The People’s War (London, Panther, 1969) ch 3.

The Prime Minister: Policy Formation and Implementation 165

French Prime Ministerial cabinet.’16 This presented the opportunity for Margaret Thatcher to introduce her own gurus into Whitehall, including for example, the chief executive of Marks and Spencer, a merchant banker, and two professors of economics. The Policy Unit was formed into a group of experts that took a keen interest in many of the key policy areas of government, and it assumed a position to promote the main principles of Thatcherism throughout the government. This included the introduction of market principles and privatisation. (In a later section of this chapter we will discuss the impact of the ‘Next Steps’ initiative on the structure of the civil service.) Despite recognising the extensive powers apparently placed in the hands of the office holder, Mount rejects what he calls ‘the alternative theory of prime-ministerial government’ expounded by commentators such as Mackintosh and Crossman. For example, one barrier to be surmounted by the Prime Minister in exercising this power is a fiercely independent civil service that often provides incomplete briefing and advice, and then there are problems of communication and implementation which still have to be overcome before any policy is put into effect.17 The Prime Minister’s Office, based at 10 Downing Street, is relatively small in terms of numbers, certainly when measured against the size of the Cabinet Office and the wider civil service, but it has assumed growing importance in the conduct of government.18 In the main this has been in respect to giving advice on policy formation, in respect to overseeing the coordination and effective delivery of policy, and in respect to the communication of the government message through the Prime Minister’s press office. The Prime Minister is assisted by a Chief of Staff, and Prime Ministers have tended to surround themselves with a select group of policy advisers reflecting their own ideological viewpoint. In turn, this trend has confirmed the growing importance of the organisation based at 10 Downing Street. There were 36 special advisers under the Conservative government of John Major, and this figure escalated to 78 under the Labour government of Gordon Brown. The number was reduced to 68 under the coalition government led by David Cameron. 16

Hennessey, above n 1, 424. F Mount, The British Constitution Now (London, Mandarin, 1992) 136ff. 18 See A Seldon, ‘The Cabinet System’ in V Bogdanor (ed), The British Constitution in the Twentieth Century (Oxford, Oxford University Press, 2003). 17

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Moreover, the emphasis on improving service by means of a itizen’s Charter, initiated by John Major, was tailored around the C needs of the citizen, who was regarded as a customer. Charter Marks were awarded in recognition of excellent service delivery, measured according to criteria set out by this unit. Tony Blair as Prime Minister also placed strong emphasis on the effective delivery of policies in the public sector. To this end, the Strategy Unit was set up in 2002, bringing together the Performance and Innovation Unit (PIU), the Prime Minister’s Forward Strategy Unit (FSU), and parts of the Centre for Management and Policy Studies (CMPS). The Strategy Unit was responsible for doing long-term strategic reviews of major areas of policy, and it helped to co-ordinate the activities of government by undertaking studies of cross-cutting policy issues, and by working with departments to promote strategic thinking and improve policy-making across Whitehall. The Unit conducted investigations and issued regular reports that made practical recommendations. These were designed: to encourage stronger leadership from ministers and senior civil servants; to improve policy formulation and implementation; and to enhance the capacity for co-ordination across government. The Strategy Unit was disbanded in 2010. In consequence, under David Cameron the No 10 Policy Unit consists of only 22 special advisers to the Prime Minister.19 The role of the PIU has since been taken over by the Cabinet Office and the unit rebranded as the Efficiency and Reform Group (ERG), which disseminates a reform agenda based on best practice for all government departments. The use of the Internet to promote the government’s message represents an important innovation. The citizen is drawn into a new style of participatory democracy based on a transformed relationship between the individual and the information superhighway, which also embraces government and local government. The Strategy Unit seeks to make government more open and accessible through its e-government strategy and UK online campaign, aiming to improve the online information provided by government.20 The Strategy Unit, based in 19 R Hazell, ‘A Profession comes of age’ in B Yong and R Hazell (eds), Special Advisers: Who they are, what they do and why they matter (Oxford, Hart Publishing, 2014) 203. 20 J Morison, ‘Modernising Government and the E-Government Revolution: Technologies of Government and Technologies of Democracy’ in N Bamforth and P Leyland (eds), Public Law in a Multi-Layered Constitution (Oxford, Hart Publishing, 2003); S Ward and T Vedel, ‘The Potential of the Internet Revisited’ (2006) 59 Parliamentary Affairs 210.

Prime Minister’s Press Office and Government ‘Spin’ 167

10 Downing Street, has a leading role on issues that cut across government d epartments, including promoting information technology. This coordinating function may fall outside the remit of other individual government departments. PRIME MINISTER’S PRESS OFFICE AND GOVERNMENT ‘SPIN’

In order to present the government’s position effectively the need for a press office has been recognised for many generations, but in recent years the role of the opinion-formers has changed and become much more important.21 In part, this can be seen as a response to the fact that information is now constantly circulated 24 hours a day, and is available from foreign sources, through the Internet, and by satellite. It has become increasingly clear that policy initiatives can be seriously compromised by facing sustained adverse comment on television and radio, and in the press. Ultimately, the public perception of the government through the coverage it receives in the mass media has a major impact on the electoral fortunes of a political party. The role of the media in opinion-forming has transformed the way the business of government is conducted. The Prime Minister, as leader of the party, needs to keep in touch with the public mood and has a press office to assist with this task. Press secretaries are appointed to champion the cause of the government, and they have always been political appointments, introduced from outside government and civil service, to work in harmony with the serving Prime Minister. However, the pejorative term ‘spin doctor’ has been applied by critics to suggest that in recent years the function of the press secretary and the press office has gone beyond assisting the Prime Minister (and other ministers) with media management and opinion-forming. The task has in fact changed from putting the best possible interpretation on issues that come up, to actually taking the initiative in setting a political agenda for a particular area of government policy. Alistair Campbell, as press secretary and later director of communications at 10 Downing Street (until 2003) was widely criticised in the media for wielding a great deal of power behind the scenes, but without being subject to any direct control. 21 See generally A Blick, At Power’s Elbow: Aides to the Prime Minister from Robert Walpole to David Cameron (London, Biteback Books, 2013).

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Furthermore, Tony Blair decided when he became Prime Minister that any policy announcement across the entire government had to be cleared through the Downing Street press office. This practice was introduced to avoid an impression of disunity conveyed by the previous government led by John Major that resulted from inconsistent and contradictory messages being released by individual departments. However, the requirement that policy announcements have to be approved at the centre has meant that Downing Street and the press office have been able to control the political agenda across the entire spectrum of government activity.22 As a result, enormous power has been placed in the hands of appointed officials who are not directly accountable under the constitution for their activities. In response to some of these criticisms, the independent Phillis report in 2004 attempted to delineate the political and civil service roles more clearly.23 In line with the recommendations contained in the report, a new Permanent Secretary, Government Communications was appointed in 2004 whose remit was to focus on a strategic approach to communications across government to better inform and respond to the requirements of citizens and people who use and work in public services. In a complementary role, on the political side of the communications machine, the Prime Minister’s Director of Communication has responsibility for the day-to-day media activity at 10 Downing Street. He or she also assists Cabinet ministers and their special advisers with the political context for departmental communications, but does not directly exercise any executive power over the civil service.24 SHAPING GOVERNMENT DEPARTMENTS

The Prime Minister is not only able to reshuffle the team of ministers serving in the government, but he or she also has an apparently unlimited

22 See T Daintith, ‘Spin: A Constitutional and Legal Analysis’ (2001) 7 European Public Law 593, at 606. 23 Final Report of the Independent Review of Government Communications (19 January 2004) http://webarchive.nationalarchives.gov.uk/20100807034701/ http://archive.cabinetoffice.gov.uk/gcreview/News/FinalReport.pdf. 24 See B Yong and R Hazell, Special Advisers: Who they are, what they do and why they matter, (Oxford, Hart Publishing, 2014), 121ff.

Shaping Government Departments 169

capacity to create and to reshape government d epartments.25 In another context the accountability issue within departments, between government departments, and between departments, agencies and other public bodies is determined by the distribution of functions for distinct policy areas. The exercise of this kind of control has the advantage of allowing a Prime Minister who has received a mandate from the electorate to fashion the administrative organs of the state to facilitate the policy objectives that are regarded as a priority. A good example, dating from the 1960s, was when Prime Minister Wilson created the Department of Economic Affairs to manage economic planning and, then as its contribution to policy diminished, dispensed with the department in 1969.26 The Ministers of the Crown Act 1975 allows departmental reorganisation to be made by Order in Council, which is a form of delegated legislation. This provides scope for both transfers of functions and dissolutions of departments. More recently, Tony Blair, after he became Prime Minister in 1997 re-crafted major departments on a number of occasions. After his first election victory he was able to combine the parts of the former Department of the Environment responsible for local and regional government with the Department of Transport to form a mega-department, the Department of Transport, Local Government, and the Regions (DTLR). This was a portfolio created for his deputy, John Prescott. The problems in adequately delivering policy initiatives in the often distinct fields of transport and local government could to some extent be attributed to the unwieldy departmental structure in Whitehall. The lack of focus on issues relating to local government became more pronounced following the May 2001 general election. For example, attention was diverted by the rail crisis and the collapse of Railtrack, in particular. The resignation of the Secretary of State for Transport resulted in the Prime Minister deciding to introduce a significant departmental reorganisation which involved scrapping the DTLR. Responsibility for local government and the planning inspectorate was moved to a newly formed Office of the Deputy Prime Minister, while Transport became a separate department in its right. The Deputy Prime Minister’s

25

Ministerial Code, Cabinet Office, May 2010, 4.1. Sked and C Cook, Post-War Britain: A Political History (London, Penguin, 1979) 230. 26 S

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department (in effect, a re-launched Department of the Environment) brought together regional and local government (including the regional government offices), housing, planning, and regeneration, and it also included the social exclusion unit and neighbourhood renewal. As part of this structure, the Regional Co-ordination Unit was responsible for the co-ordination of regional and local government. In the May 2006 reshuffle, the Office of the Deputy Prime Minister was again reconstituted, this time as the Department for Communities and Local Government. The break-up of the DTLR might have removed an unmanageable conglomeration but, in itself, such action does not resolve the problem of policy co-ordination. In what has been termed an age of multi-layered governance, the present government has sought to deliver what it has called ‘joined up’ government. Co-ordination and control was proving particularly difficult to achieve in this policy domain. For instance, the policy networks that cut across local government are complex and involve a multiplicity of overlapping strands. These include housing, planning, environmental protection, and waste management, over which local authorities tend to have direct control, and education, transport, and regulation, where responsibility is split not only between central and local government but also with other bodies such as statutory regulators.27 Further powers have been conferred on London’s Mayor and Assembly (see Chapter 8). Despite repeated attempts to redraw departmental boundaries on an ad hoc basis, many inconsistencies remain in the allocation of responsibilities between policy areas. In most other nations, departmental re-organisation can be undertaken only by a more formal legal process. For example, in Italy a statute was passed in 1997 to allow a re-allocation of functions at the highest level of government between ministries, which has resulted in the compression of 20 ministries into 12.28

27 P Leyland, ‘UK Utility Regulation in the Age of Governance’ in N Bamforth and P Leyland (eds), Public Law in a Multi-Layered Constitution (Oxford, Hart Publishing, 2003). 28 See Italy: Law 59/97.

Political Accountability and Individual Ministerial Responsibility 171 POLITICAL ACCOUNTABILITY AND INDIVIDUAL MINISTERIAL RESPONSIBILITY

Individual ministerial responsibility is the constitutional convention which is concerned with the accountability between Parliament, the political decision-makers, and professional civil servants and the administrators responsible for implementing policy in the United Kingdom. In essence, a model of the constitution was conceived which sought to accommodate the existence of discretionary public power by the device of ministerial responsibility. The rule of law, as explained by Dicey,29 works on the basis that the courts police the boundaries of excessive ministerial power under the ultra vires principle, while Parliament oversees the actions of ministers within the boundaries of these powers. What does this add up to in practice? In a formal and procedural sense, ministers are responsible: this responsibility is in the sense that they are answerable to Parliament for their departments. In this way individual ministerial responsibility describes a ‘chain of accountability’. Officials answer to ministers, who answer to Parliament, which, in turn, answers to the electorate. This demonstrates how individual ministerial responsibility emerged as the convention which described constitutional accountability for policy matters, but, as we shall see from the examples cited below, the problem is that accountability is often no more than a requirement to give reasons and explanations for actions or decisions as part of the process of government. For the convention to operate, the basic requirement is that ministers are members of Parliament. As was recognised in the previous chapter, the answerability of ministers to Parliament is acted out in a number of ways. In particular, the relevant minister in the House of Commons or House of Lords introduces a public bill concerning his or her department in Parliament; backbench MPs are able to table questions to ministers on a regular basis; ministers are called to account for their policies before departmental select committees (of which there are 18); and the Public Accounts Committee in harness with the National Audit Office investigates past government expenditure by undertaking value for money (VFM) audits (see Chapter 5).

29 A Dicey, An Introduction to the Study of the Law of the Constitution, 10th edn (Basingstoke, Macmillan, 1959) 188ff.

172 Government and Executive MINISTERIAL RESPONSIBILITY: ANSWERABILITY OR RESIGNATION?

Ministers, then, are made accountable or answerable to Parliament by these routine procedures. In terms of general principle, individual ministerial responsibility recognises that the continuation in office of ministers depends upon them enjoying the confidence and support of MPs or peers. In practice, however, attempts to challenge the credibility of a minister are seldom successful when the government in power enjoys a substantial majority in the House of Commons. In 1954 Sir Thomas Dugdale resigned over the famous Crichel Down affair, where blame for departmental incompetence was clearly attributable to officials. Furthermore, the blameworthy action mostly occurred well before this minister took up office. In fact, this sacrifice was prompted for political reasons, and the resignation should be regarded as an exception to general practice. Unless the matter is taken up as a crusade by the press, what Richard Crossman explained, writing half a century earlier, still applies: [Since] the Government party controls Parliament, both resignations and dismissals for incompetence have become rare. Indeed, the incompetent minister with a departmental muddle to cover up may be kept in office for years … more votes will be lost by admitting the incompetence than by concealing it.30

The government can nearly always rely upon the support of its backbench MPs to sustain its majority and therefore there will be no need for a minister to fall on his or her sword and resign. Apart from Crichel Down, there have been examples of ministers accepting responsibility for policy and resigning, but this is rare. One such was the resignation of Lord Carrington as Foreign Secretary following the invasion of South Georgia by the Argentinians prior to the Falklands War in 1982. Lord Carrington accepted the blame for not responding to intelligence reports warning about the impending invasion. On the other hand, blame can be deflected for political mistakes by a sacrificial resignation, which identifies an individual minister rather than the Prime Minister or the government as a whole as being responsible for a policy oversight. For example, Leon Brittan, the Secretary of State for Trade and 30 R Crossman (ed), ‘Introduction’ in W Bagehot, The English Constitution (London, Fontana, 1963) 43 and 45.

Codes of Practice and the Scott Report 173

Industry took full responsibility for a departmental leak relating to the Westland affair, and his resignation in 1986 shielded the Prime Minister and the government from intensifying criticism at a time of crisis.31 Assuming the minister is the architect of the policy, it would appear to follow that, should the policy design prove to be fundamentally flawed, the minister should be held responsible. For example, in the previous chapter attention was drawn to critical reports from the departmental select committee in respect to the running of the M illennium Dome project.32 Project directors came and went, but there were no ministerial resignations. Ministerial responsibility has always been an imprecise convention, which delivers partial accountability. At best, it will normally require ministers to provide Parliament with information and also an explanation. The evidence demonstrates that resignations over policy are unusual, and supports the view that political considerations nearly always predominate. By way of contrast there have been many ministerial resignations prompted by questionable personal behaviour relating to financial probity, personal integrity, abuse of ministerial office and scandalous sexual behaviour. Perhaps the most famous example was the resignation in 1963 of the Secretary of State for War, John Profumo, for deliberately misleading Parliament. At the height of the ‘cold war’ he had denied his association with a high class prostitute who was also having an affair with a Russian military attaché (probable spy) stationed in London. CODES OF PRACTICE AND THE SCOTT REPORT

The reluctance of ministers to resign was further illustrated following publication of the Scott Report.33 A public inquiry chaired by a senior judge was set up to look into the processes of government after it emerged that arms had been supplied to Iraq with the covert support of government during the Gulf War between Iran and Iraq during the 1980s. This action was clearly in contravention of published government policy at the time. The issue came to public attention 31

See Hennessey, above n 10, 307. See, eg, Select Committee on Culture, Media and Sport, Back to the Dome, Third Report, 1998–99 HC 21-1. 33 Report of the Inquiry into the Export of Defence Equipment and Dual-Use Goods to Iraq and Related Prosecutions, 1995–96 HC 115. 32

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following the collapse of a prosecution against two directors of the Matrix Churchill company, which had been contracted to supply a supergun to Iraq. Although government ministers had used public interest immunity to prevent the disclosure of information in court on grounds of national security, the fact that these directors were working in collusion with the secret intelligence services came to light. It appeared that the government had been prepared to suppress this information in order to prevent embarrassment for having misled Parliament over its involvement, even if this meant imprisonment for these directors of Matrix Churchill. Many of Lord Justice Scott’s criticisms in the report related to the conduct of ministers, including the suggestion that the House of Commons had been misled by one minister, and that guidelines for the signing of public interest immunity certificates had been wrongly interpreted by the Attorney-General, but, despite criticism appearing in the report, neither minister resigned.34 The Scott Report also exposed a lack of candour, which amounted to a failure by ministers to meet the obligations of ministerial accountability by providing adequate information about the activities of their departments, and it was recognised that this failure tended to undermine the democratic process. In response, a revised code of practice was introduced for civil servants and ministers which has made it more difficult to mislead Parliament.35 In particular, civil servants are committed to core values of integrity, honesty, objectivity and impartiality, which means that they must not deceive or knowingly mislead Ministers, Parliament or the wider public when answering parliamentary questions or appearing before departmental select committees, and it requires all government departments and agencies to adopt a whistle-blowing procedure to allow concerns over any abuse to be raised. From a legal standpoint the latest code also confirms the contractual relationship between ministers and civil servants now set out in the Constitutional Reform and Governance Act 2010 and incorporated in the terms and conditions of employment for civil servants.36 34 A Tomkins, The Constitution After Scott: Government Unwrapped (Oxford, Oxford University Press, 1998) provides a detailed discussion of the report and its implications. 35 Civil Service Code Cabinet Office, updated 16 March 2015. 36 See N Bamforth, ‘Accountability of and to the Legislature’ in N Bamforth and P Leyland (eds), Accountability in the Contemporary Constitution (Oxford, Oxford University Press, 2013) 270.

Ministerial Responsibility and the Press 175 MINISTERIAL RESPONSIBILITY AND THE PRESS

In recent times, with the greater proliferation of information, the power of the media in attaching blame to ministers has been very much in evidence. For example, Stephen Byers resigned in May 2002 as Secretary of State for Transport. The trigger for his departure was not that his department had to manage the crisis on the railways following the collapse of Railtrack, or dealing with the unpopular policy of partprivatisation of the London Underground, but, rather, his credibility had been fatally undermined by the intense controversy surrounding his press secretary, who attempted to use the distraction of the events in the United States on 11 September 2001 to release bad news. Failure to dismiss this appointed official led to a campaign in the press, which uncovered further dissent within the department and ultimately exposed the weakness of the minister. Once again, in October 2002, the Secretary of State for Education and Employment resigned at least partly because of the level of media criticism over education policy in general, and in particular over criticism concerning her handling of the crisis regarding the grading of A-level examinations. This prompted a personal loss of confidence by the minister over the general strategic management of the department. However, these departures are unusual, for it appears that ministers very rarely sacrifice themselves as a result of policy failure or departmental shortcomings.37 Other examples of ministerial incompetence can be cited, however, where the minister survived. In 1992 the value of the pound collapsed, forcing the United Kingdom to withdraw from the exchange rate mechanism (ERM), but not before the Chancellor of the Exchequer on ‘Black Wednesday’ had used up £11 billion, virtually half the nation’s currency reserves, in a futile attempt to support the value of the currency. On this occasion it would appear that Chancellor of the Exchequer’s failure to resign immediately had the effect of substantially weakening the government of Prime Minister John Major. Professor Woodhouse has summed up the position as follows: Moving into the twenty-first century, the convention of ministerial responsibility can be defined loosely, as requiring, first, information rather 37 D Woodhouse, ‘UK Ministerial Responsibility in 2002: The Tale of Two Resignations’ (2004) 82 Public Administration 1.

176 Government and Executive than resignation; secondly, ministerial ‘accountability’ for everything but ‘responsibility’ for only some things; thirdly, civil service ‘responsibility’ for some things but ‘accountability’ only when this suits ministerial interests.38

A reformulation of ministerial responsibility has been called for which recognises the integral responsibilities of ministers for supervision of their department or agency. In particular, this would require that ministers make sure that adequate resources are available for the effective implementation of policies and that they assume direct control at times when things go wrong as part of explanatory and amendatory responsibility.39 THE CIVIL SERVICE

In March 2015 approximately 440,000 people were working for the United Kingdom Civil Service, with the figure expected to contract in line with the government plans to progressively reduce public spending.40 In order to consider the issues of accountability in respect to the operation of government itself, we need to explore in more detail the relationship between ministers and civil servants, and the re-organisation of the institutions of central government.41 In the first place, it is worth noting that until the Constitutional Reform and Governance Act 2010 was enacted there had never been a single statute or a set of delegated rules that regulated the conduct of civil servants or which establishes their constitutional position. For example, civil servants have a special position in law as servants of the Crown, but on matters of employment law, the Equal Pay Act 1970, the Employment Protection (Consolidation) Act 1978, the Sex Discrimination Act 1975, and the Race Relations Act 1976 all apply to the civil service. Civil servants are bound by the Official Secrets Acts 1911 and 1989 and by

38 D Woodhouse, ‘Ministerial Responsibility: Something Old, Something New’ [1997] PL 262, 280. 39 D Woodhouse, ‘The Reconstruction of Constitutional Accountability’ [2002] PL 73, 86. 40 http://www.ons.gov.uk/ons/dcp171778_418784.pdf,. 41 See generally G Drewry, ‘The Executive: Towards Accountable Government and Effective Governance’ in J Jowell and D Oliver (eds), The Changing Constitution, 7th edn (Oxford, Oxford University Press, 2011).

The Civil Service 177

the Freedom of Information Act 2000 (subject to statutory exceptions discussed below). Civil servants are also regulated by an assortment of codes of conduct and disciplinary codes. As we have already observed in our discussion of ministerial responsibility, some of these codes have an important bearing on the relationship of civil servants with ministers and with Parliament. For many generations, ministers have been in a position to rely upon a permanent and professional civil service, which, in most cases, has been led by an elite class of Oxford and Cambridge-educated officials, with a reputation for neutrality. The foundations of the modern service were laid following the Northcote-Trevelyan Report of 1854.42 This ground-breaking report, among other things, established the idea of appointment on merit and led to the division of the civil service into two classes comprising, on the one hand, policy-makers, and, on the other, more routine workers. The civil service remains a system of centralised hierarchical administration comprised of trained professionals, who operate according to prescribed and objective rules. The structure is designed to enable those at the base of the pyramid of administration to carry out the commands of those at the pinnacle. The role of the civil service is to implement policy, often by putting into effect detailed legislative provisions, and it establishes a system which limits the arbitrary exercise of power by officials. Nevertheless, in the United Kingdom, as in other comparable nations (eg France, Italy, and Germany), the legal framework of legislation will inevitably leave scope for the exercise of discretionary power, with the traditional model regarding ministers and civil servants as partners. This means that officials have been allowed some discretion to act, but this discretion is set within strict limits. It will be apparent from our discussion of political accountability below that the courts can be called upon to intervene to ensure that the exercise of any such discretion remains lawful. The UK civil service implements policy for whichever government is in power and, unlike in the United States, there is no ‘spoils system’ allowing politicians to routinely replace the most senior officials with a change of government. The service has a high reputation for intellectual excellence and integrity. It is considered to be neutral, with a capacity to give impartial advice to ministers. However, it has also attracted 42 Northcote–Trevelyan Report on the Organisation of a Permanent Civil Service (1854).

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criticism for lack of managerial competence and efficiency, and for a failure to attract the specialist expertise needed in many areas of government (see, for example, the Fulton Report 1968,43 which made more than 100 recommendations). The situation in regard to the structure and organisation of the civil service has changed significantly in recent years. The Conservative governments between 1979 and 1997 were critical of the traditional approach of many civil servants to questions of policy implementation which, it was argued, resulted in ineffective government. In order to pursue the radical Thatcherite agenda, which departed from the consensual policies of post-war generations, the association between the civil service and established interests in both business and the public and voluntary sector was revised. Since the 1980s there have been radical managerial innovations to help overcome resistance to reform by senior officials. Another manifestation of this change of approach, already alluded to, is that there has been an increase in the appointment by ministers of political advisers and special advisers, who exercise a growing influence on policy-making, and these advisers can also be involved lower down the administrative hierarchy to monitor progress with policy initiatives. NEW PUBLIC MANAGEMENT AND EXECUTIVE ACCOUNTABILITY

The New Public Management (NPM) initiative and the Next Steps reorganisation have been inspired by an ideological commitment to introduce the disciplines of the free market to the processes of government. A series of changes were introduced under the Conservative governments between 1987 and 1997 (and continued under Labour), which were designed to transform the performance of central government. In the interests of economy, the size of the civil service was reduced. Also, large proportions of what remained were called ‘Next Steps Agencies’. Indeed, the idea of running a public enterprise on a similar basis to a private business became a prevalent theme in publicly funded bodies throughout Europe and beyond. It depended upon the introduction of a new kind of contracting between the various levels of 43

The Report of the Committee on the Civil Service (Fulton), Cmnd 3638 (1966–68).

New Public Management and Executive Accountability 179

government and between government and the private sector. However, these administrative changes, which began in late 1980s, had serious implications for the political accountability of the civil service. The Conservative government, when it took office in 1979, inherited a central government bureaucracy of nearly 750,000 civil servants. The bare statistics demonstrate the impact of these reforms. By the time the Conservative left office in 1997 there were less than 500,000 remaining. The structure and organisation had also changed: 362,000 were assigned to 138 Next Steps Agencies (explained below), accounting for approximately 75 per cent of the service. This re-organisation resulted in the disappearance of a relatively uniform and monolithic structure, and its replacement by a much looser federation of many smaller units.44 In many cases, the initiative relieved departmental overload by handing over responsibility for budget and staffing to the agencies. These agencies, dealing with anything from the allocation of passports (part of the Home Office) to child support (Works and Pensions), continue to be run by civil servants who remain under the same conditions of employment, and staff continued to be bound by the Civil Service Management Code. Another aspect of this reform was the exposure of the service to business models. For example, it provided the opportunity to recruit private sector managers as agency chiefs, who could be ‘incentivised’ by high salaries. Such re-organisation also provided scope for internal restructuring. This reform enabled the role of ministers and senior civil servants engaged in the task of policy formulation to carry on more or less as before, as part of a main department under which the newly formed agency functioned. The new structures required the operational tasks to be placed in the hands of the agency by a form of non-legally binding contract, and this division conveyed an impression of agency autonomy based on an apparent separation between policy decisions and operational decisions. The entire scheme was deceptive. In practice, the agency was not a separate legal entity, and a dependency existed between the sponsoring department and the agency. For example, an agency would be granted fixed budgetary allocations, which arguably imposed even more rigid control over the policy process. A contradiction was thereby 44 R Rhodes, P Carmichael, J McMillan, and A Massey, Decentralising the Civil Service: From Unitary State to Differentiated Policy in the United Kingdom (Buckingham, Open University Press, 2003) ch 2.

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created between apparent independence of an agency and the control imposed from above. An equally worrying development which emerged following the introduction of Next Steps programme has been the deployment of a policy/operations dichotomy between the minister and the agency chief to shield the minister from blame before Parliament under the doctrine of ministerial responsibility for serious shortcomings within the departmental sphere. For example, in 1995, faced with criticism from an official inquiry following the escape of IRA prisoners from the Isle of Wight, the Home Secretary dismissed the head of the prison service for what he claimed was an ‘operational matter’ rather than personally accepting responsibility for any shortcomings.45 From the outset, NPM has been centrally concerned with the three ‘Es’, namely, ‘economy, efficiency and effectiveness’. Public services are forced to confront market-related disciplines.46 There is a presumption that the state (that is, central and local government) can function more effectively and efficiently while at the same time costing the taxpayer less. Central government agencies are expected to undertake market testing to ascertain whether service delivery can be achieved more efficiently. As part of the NPM process, internal performance is systematically monitored and assessed. Staff members have their performance annually reviewed, with pay levels often related to results achieved. This style of managerialism to improve outputs and introduce public sector ‘benchmarking’ has continued in phases, ‘Capability Review’, focused on leadership, strategy, and delivery while deep NPM requires the use of management consultants to supply commissioning support in the health service.47 However, it is much more difficult to assess efficiency and effectiveness that reaches beyond simple measures of costeffectiveness. In the sphere of government, measuring performance simply in terms of increased throughput on a ‘cost per unit’ basis is often misleading, particularly when dealing with services that involve the provision of care.

45 A Barker, ‘Political Responsibility for UK Prison Security—Ministers Escape Again’ Vol 76, Spring 1998 Public Administration 1–23 at 11ff. 46 See C Harlow and R Rawlings, Law and Administration (London, Butterworths, 1997) ch 5, ‘Blue Rinse’. 47 A Davies, ‘Beyond New Public Management: Problems of Accountability in the Administrative State’ in N Bamforth and P Leyland (eds), Accountability in the Contemporary Constitution (Oxford, Oxford University Press, 2013) 341ff.

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Another important way in which market solutions have been introduced is through privatisation. Many functions, ranging from prisoner escort services to the cleaning of government offices, that were formerly carried out by staff employed by the department are now performed by independent, privately owned, companies. The services are provided under a formal private law contractual obligation which has been negotiated between the department and the company, and the enforcement of the contract will generally be a matter of private law. But this calls into question any meaningful accountability in a public law sense for policy issues that might arise in relation to operational matters. The terms of the contract define all the parameters of the service provision, and there is no going back on such terms until such time as there is an opportunity to renegotiate the contract. In this sense, the same applies to public–private partnerships (PPPs) and Private Finance Initiatives (PFIs), which have been used to attract private finance into the public sector. The revised ministerial code recognises that ‘The Minister in charge of a department is solely accountable to Parliament for the exercise of the powers on which the administration of the department depends.’48 It is apparent that in some respects this re-organisation has led to a significant redefinition of the doctrine of ministerial responsibility. Less emphasis is placed upon detailed day-to-day supervision of the entire department. Accountability between the department and the agency tends to be mainly in respect of overall finance and budgeting matters. Great emphasis is placed on measurable criteria of financial efficiency. In consequence, greater autonomy brought about by agency status has promoted a divergence of interests between the agency and the department. It has resulted in a division into two distinct accountabilities, but no revised mechanism to address the problem.49 For example, ministerial responses to parliamentary questions on matters of detailed financial policy might fall under the remit of the agency chief executive, and in some cases the answers to questions provided by the chief executive may be considered inadequate. Although the precise criteria and terminology are modified to reflect local conditions, aspects of the NPM model have been manifest in 48

Ministerial Code, Cabinet Office, May 2010, 4.6. P Barberis, ‘The New Public Management and a New Accountability’ (1998) 76 Public Administration 451. 49

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much of Europe. This idea is not fundamentally concerned with democratic control and accountability, but rather with control through forms of contractual relationship. THE CONSTITUTIONAL REFORM AND GOVERNANCE ACT 2010

Concerns have been voiced over the creeping politicisation of the civil service.50 One example discussed above has been the increased role of special advisers introduced by the Prime Minister and other ministers (eg Alistair Campbell, Downing Street Press Secretary and Director of Communications 1997–2003 under Tony Blair) who may have exercised authority over permanent civil servants but without their respective positions being clearly defined. The Parliamentary Committee on Standards in Public Life had recommended that the role of the civil service and civil servants should be placed on a statutory footing.51 but the legislation was only passed right at the end of the Labour Government’s period in office. The Constitutional Reform and Governance Act not only dispenses with Orders in Council and places the management of the civil service on a statutory footing, and thus now under parliamentary scrutiny, but it also establishes a Civil Service Commission which is responsible for appointing civil servants.52 At the same time, the Act requires that a code of conduct be published for the civil service, the diplomatic service and for special advisers.53 These codes form part of the terms and conditions of service of civil servants, diplomats and special advisers and recognise that the core values of integrity, honesty, objectivity and impartiality set out in the Act must be upheld at all times.54 Some critics have argued that: ‘The quest for defined boundaries and roles at the top of government, where politics 50

A King, The British Constitution (Oxford, Oxford University Press, 2007) 233. See Parliamentary Committee on Standards in Public Life, Ninth Report: Defining the Boundaries within the Executive: Ministers, special advisors and the permanent civil service, 2003; Public Administration select committee, 8th Report, 2001–02, published 19 July 2002. D Oliver, Constitutional Reform in the UK (Oxford, Oxford University Press, 2003) ch 3. 52 Constitutional Reform and Governance Act 2010, s 3. 53 See ss 5, 6 and 8. 54 Constitutional Reform and Governance Act, s 7(4). 51

Government Openness and the Freedom of Information Act 2000 183

and administration intertwine, is misguided. Ambiguity, fuzziness, and grey areas are assets since they enable flexibility, and practical responses to unexpected happenings.’55 Revised codes have been published but these more explicit rules failed to prevent the intense controversy surrounding the appointment of former News of the World editor Andy Coulson as David Cameron’s Director of Communications. He was installed without the routine vetting and security clearance experienced by others holding this crucial office (see further Chapter 1). The resignation of Liam Fox as Secretary of State for Defence in October 2011 was prompted by the exposure that he had used a friend, Adam Werrity, ostensibly as an adviser in this sensitive policy area without having him vetted for security and officially appointed. In consequence, the appointee was not subject to this code designed to prevent any conflict of interest arising. GOVERNMENT OPENNESS AND THE FREEDOM OF INFORMATION ACT 2000

The Freedom of Information (FOI) Act 2000 requires the disclosure of information by the government and other public bodies and, as a result, it is having an important impact in delivering accountability in many areas.56 It will already be apparent that the convention of individual ministerial responsibility, which is central to executive accountability, hinges on an obligation to provide information. Until quite recently, the corridors of Whitehall and public authorities in general were shrouded in a cloak of secrecy. The blanket protection that public bodies had enjoyed under the ‘catch-all’ section 2 of the Official Secrets Acts 1911 was relaxed to some extent by the Official Secrets Act 1989. The failure of the government in the 1980s to prevent the circulation of the Spycatcher book,57 which had been written by an ex-spy in breach of the Official Secrets Act 1911 was a foretaste of difficulties

55 G Jones, ‘Against a Civil Service Act’ (2002) 22 (4) Public Money and Management 5, 6. 56 P Birkinshaw, ‘Regulating Information’ in J Jowell, D Oliver and C O’Cinneide (eds), The Changing Constitution, 8th edn (Oxford, Oxford University Press, 2015). 57 P Wright, Spycatcher (New York, Viking, 1987).

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to come in controlling the currency of information.58 The book had been p ublished abroad, but it was imported and became available in the United Kingdom despite injunctions issued by the courts. In a different context, the trenchant criticism contained in the Scott Report (see above), which looked into the collapse of the Matrix Churchill case, signalled a change of approach in regard to Parliament. The previous assumption that information in the possession of public bodies could be routinely held back was fundamentally questioned in this report, and the codes of practice which applied to ministers and civil servants were modified subsequently.59 Latterly, information placed in the public domain has proliferated exponentially through the internet, and this has, of course, transformed public expectations over the level of disclosure which is expected from public bodies. On its return to power in 1997 after 18 years in opposition, the Labour Party was committed to introducing a Freedom of Information Act. Despite its shortcomings touched on below, the FOI Act 2000 is a ground-breaking constitutional measure. The Act, which came fully into force on 1 January 2005, provides under section 1 a general right of access to information held by public authorities, including government departments. It imposes an obligation to provide information within a limited time frame. As well as meeting the requirement under the Act to provide publication schemes, government, local government, and public authorities have responded to the new situation by making vast amounts of information available to the public, often on their websites. Information which is exempt from disclosure is set out in Part II of the FOI Act 2000. The exempt categories fall into two classes, as the effect of the provisions differs depending on whether the sections confer absolute exemption, or qualified exemption subject to a prejudice test.60 In essence, the areas which have an ‘absolute exemption’ are those where the need to balance the public interest in disclosure against the public interest in maintaining the exemption does not arise. This covers information relating to secret intelligence services, criminal intelligence matters, and national security.61 58 See

Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109. See Sked and Cook, above n 26. 60 Freedom of Information Act 2000, s 26 deals with the effect of the exemptions in Part II. 61 Sections 23 and 24. 59

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For these categories, a certificate signed by a Cabinet minister, the Attorney General, the Attorney-General for Northern Ireland, or the Advocate General for Scotland certifying that the exemption is necessary is regarded as conclusive evidence. There is limited scope for challenge before the Information Tribunal, but the grounds are very narrow. For the second category of (qualified) exemptions, the application for information has to be balanced against the public interest in refusing disclosure. A test of prejudice has to be satisfied to justify non-disclosure. The areas that may be exempted are very wide ranging, as the following list illustrates: defence; communications with the royal family; all political advice; international relations; relations between the parliaments and assemblies of the United Kingdom, Scotland, Wales, and Northern Ireland; the economy; investigations by the police and customs and excise; court records; commercial information; health and safety; and all personal information and information provided to government in confidence. It will be apparent that this list includes any information relating to the formulation of government policy and investigations and proceedings carried out by a public authority. This exemption has been made subject to a test in order to deter public authorities from routinely suppressing such information. It was argued that a higher threshold of substantial prejudice (as applies in Scotland) would have been more effective in encouraging disclosure. Under the FOI Act 2000, the Information Commissioner performs an important function in overseeing the application of the Act. Should a matter be contested, the Commissioner is empowered to rule that material should be made available in the public interest, and an enforcement notice can be issued, but the minister retains an ultimate veto over any such decision.62 An important test case concerned the freedom of information requests which were made to force the disclosure of the advice given to the Prime Minister by the Attorney-General in March 2003 on the controversial matter of the legality of the second war against Iraq. Despite its initial argument that the advice from the Attorney-General was protected by client privilege, the opinion was released by the government in May 2005. The Commissioner later served a single enforcement notice in May 2006 requiring the disclosure of some, but not all, of the information relating to the advice that had been requested 62

Section 53.

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under the Act. He also ruled, after balancing the issues by applying the prejudice test, that sufficient information had been disclosed by the government.63 E-GOVERNMENT REVOLUTION

From cradle to grave, the encounter with information communication technology (ICT) and, in particular, the internet has become a significant and an increasing part of everyday experience. The new regime of openness under the FOI Act 2000, the introduction of publication schemes, and the sheer quantity of official information available on the internet have transformed public access to information, but equally these developments have implications for the accountability and accessibility of public bodies.64 Computers are used universally to store, process, and communicate large amounts of data, and this technology is well suited to delivering many government services. The Cabinet Office launched a large-scale consultation on a policy for electronic democracy based on the premise that ICT can ‘facilitate, broaden and deepen’ participation.65 As a result, computer technology is changing the ways in which services are delivered. For example, websites have been constructed allowing direct access to many services. The government gateway already allows many public services to be available online. It has been envisaged that the staged introduction of such technology as part of an evolutionary process might ultimately result in fully integrated online government, which, in turn, would require the radical modification of the structure and culture of administration to facilitate the introduction of this technology in the home. ‘From the point of view of the citizen he or she would not be interacting with individual government departments any longer but with “Government” as a single entity.’66 63

See ICO press release at: www.oco.org.uk. Ward and T Vedel, ‘Introduction: The Potential of the Internet Revisited’ (2006) 59 Parliamentary Affairs 212. 65 In the Service of Democracy: A Consultation Paper on a Policy for Electronic Democracy (Cabinet Office, July 2002). 66 J Morison, ‘Modernising Government and the E-government Revolution: Technologies of Government and Technologies of Democracy’ in N Bamforth and P Leyland (eds), Public Law in a Multi-Layered Constitution (Oxford, Hart Publishing, 2003) 177. 64 S

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A practical issue which is crucial to the general application of ICT concerns the extent of Internet access. Before government bodies at central and local level can depend upon the Internet, an even playing field is needed in the form of universal access to computers and a general capacity for citizens to connect online. It is estimated that 86 per cent of UK households currently have access to the internet,67 but the challenge is to overcome the difficulty of extending internet usage without introducing a form of social exclusion affecting disadvantaged groups (the poor, the elderly, individuals with limited literacy), who may well be particularly reliant on government and local government services. As Morison states: Ideas of separation of powers, rule of law and basic principles of legality do not seem to have troubled the information systems engineers. From the standpoint of formal constitutional theory, not only are there issues over the penetration of the voluntary and private sector into government but also there should be concerns over the deployment of information gathered in one (public) context within another (private) one and vice versa … [giving] rise to a whole host of other issues about privacy, data protection and confidentiality and human rights.68

The Internet has impacted on public engagement with political protest and debate through weblogs. It presents the possibility of flash mobilisation of opinion, but equally this technology is capable of being subverted by organised crime, extremist parties, and terrorist organisations. Although the handling of personal data is controlled under the Data Protection Act 1998, the Internet itself is largely selfregulated. Ofcom has a role in regulating competition but the Internet is placed beyond the reach of the Communications Act 2003. Internet regulation consists mainly of a series of regimes of self-regulation, which have been developed to apply to the different technical layers of delivery.69

67 www.ons.gov.uk/ons/dcp171778_412758.pdf. 68

Morison, above n 66, 179. Collins, ‘Networks, Markets, Hierarchies: Governance and Regulation of the Internet’ (2006) 59 Parliamentary Affairs 325. 69 R

188 Government and Executive CONCLUSION

Enormous power is focused on the office of Prime Minister. The most important political decisions are generally taken not by the full Cabinet, but through Cabinet committees, many of which are chaired by the Prime Minister, and the policy which goes before these committees is frequently drawn up by advisers in the Prime Minister’s office at 10 Downing Street, together with inputs from close political allies inside and outside of government. Indeed, ‘elective dictatorship’ is useful shorthand for the executive dominance which is a central characteristic of the UK constitution. It refers to the ease with which the government is able to secure a majority in Parliament for nearly all legislative proposals. The Prime Minister can control the parliamentary party through the power exercised by the party whips. The ascendancy of the Prime Minister over domestic politics is further boosted by extensive powers of patronage, including the uncontested right to appoint and dismiss ministers. Constitutional safeguards exist, but they are of limited effect. For example, the convention of individual ministerial responsibility requires the Prime Minister, ministers, and civil servants to appear before Parliament and before parliamentary committees to be interrogated on matters of policy. Members of Parliament may be constrained from asking searching questions by narrow guidelines, which inhibit officials in their responses. Official secrets legislation can be invoked when treading on the most sensitive and controversial aspects of the policy process. Also, the inquisitors on a parliamentary committee may be following an agenda dictated not by the qualitative aspects of the matter before them, but by political considerations identified by government or opposition whips. The FOI Act 2000 extends access to information and provides a mechanism, under the supervision of the Information Commissioner, to obtain the release of documents, but many legitimate areas of scrutiny are placed beyond its scope. Finally, a high-quality permanent civil service may be counted as one of the nation’s supreme constitutional assets. The attempts by successive governments to modernise the service by the imposition of free market disciplines associated with NPM and e-government has also had the effect of redefining, and, at the same time, attenuating, traditional channels of constitutional accountability.

Conclusion 189 FURTHER READING Birkinshaw P, ‘Regulating Information’ in J Jowell, D Oliver and C O’Cinneide (eds), The Changing Constitution, 8th edn (Oxford, Oxford University Press, 2015). Blick A and Jones G, Premiership: The Development, Nature and Power of the Office of the British Prime Minister (Exeter, Imprint Academic, 2010). Daintith T, ‘Spin: A Constitutional and Legal Analysis’ (2001) 7 European Public Law 593. Davies A, ‘Beyond New Public Management: Problems of Accountability in the Modern Administrative State’ in N Bamforth and P Leyland (eds), Accountability in the Contemporary Constitution (Oxford, Oxford University Press, 2013). Lord Hailsham, The Dilemma of Democracy (London, Fontana, 1978). Harlow C and Rawlings R, Law and Administration, 3rd edn (Cambridge, Cambridge University Press, 2009). Hennessey P, The Prime Minister: The Office and its Holders since 1945 (London, Penguin, 2001). Hennessey P, Whitehall, 2nd edn (London, Pimlico, 2001). Leyland P and Donati D, ‘Executive Accountability and the Changing Face of Government: UK and Italy Compared’ (2001) 7 European Public Law 217. Marshall G, Constitutional Conventions: The Rules and Forms of Political Accountability (Oxford, Oxford University Press, 1984) ch 4. Morison J, ‘Models of Democracy: From Representation to Participation’ in J Jowell and D Oliver (eds), The Changing Constitution, 6th edn (Oxford, Oxford University Press, 2007). Rawlings R, ‘A Coalition Government in Westminster’ in J Jowell, D Oliver and C O’Cinneide (eds), The Changing Constitution, 8th edn (Oxford, Oxford University Press, 2015). Tomkins A, The Constitution after Scott: Government Unwrapped (Oxford, Oxford University Press, 1998). Woodhouse D, ‘Ministerial Responsibility’ in V Bogdanor (ed), The British Constitution in the Twentieth Century (Oxford, Oxford University Press, 2003). House of Commons Political and Constitutional Reform Committee, Role and powers of the Prime Minister, First Report of Session 2014–15, HC 351(London, Stationary Office, 2014).

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Websites www.pm.gov.uk/output/Page1.asp www.cabinet-office.gov.uk/ www.civilservice.gov.uk civilservicecommission.independent.gov

7 The Constitutional Role of the Courts

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Common Law – Statutory Interpretation – Supreme Court – Lord Chancellor – Red and Green Light Theory – Judicial Review – Public Private Law Divide – Merits Issue – Human Rights – Wednesbury Unreasonableness – Proportionality PART I: SURVEYING THE CONSTITUTIONAL ROLE OF THE COURTS INTRODUCTION

T

HIS CHAPTER BEGINS by discussing the contribution of the common law and statutory interpretation in a constitutional context. The following section examines the historic office of the Lord Chancellor who has occupied a multi-faceted constitutional position that was in defiance of any formal conception of separation of powers. The UK constitution has lacked any clear separation of powers, but the extent to which Parliament, executive, and judiciary are in an ordered relationship with one another is of central importance to any constitutional concept of checks and balances. We will see that the re-designation of the ministerial position from Lord Chancellor’s Department, first to a Department of Constitutional Affairs (2003) and then to a Ministry of Justice (2007) has been much more than a nominal change. In fact, the constitutional role of the Lord Chancellor has been transformed, both in regard to parliamentary and judicial functions. Moreover, the provisions of the Constitutional Reform Act 2005 have exerted a significant impact in two key areas. Close attention is devoted to assessing the implications for judicial independence of the revised procedures for judicial appointments and the introduction

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of a Supreme Court for the United Kingdom to replace the Appellate Committee of the House of Lords. The second half of the chapter will consider the role of administrative law and, in particular, judicial review which has played an increasingly important part as a counter to the abuse of executive power by central and local government, as well as a range of other public bodies. Indeed, it will be apparent that the judicial profile has been heightened even further with the enactment of the Human Rights Act 1998 which provides a remedy in domestic courts for the infringement of ECHR rights by public authorities. The chapter concludes by reviewing the constitutional protection of rights and by evaluating the possible constitutional and legal consequences of attempting to replace the Human Rights Act with a British/UK Bill of Rights. COMMON LAW AND STATUTORY INTERPRETATION

It was pointed out in Chapters 1 and 2 that the common law is an important source of the constitution. Judges have the capacity to develop the law by setting precedents in the cases they decide. Some important areas of law, for example the law of contract and tort, have been largely created by judicial decisions. According to Chief Justice Coke writing in the seventeenth century: ‘[Cases] are not to be decided by natural reason, but by the artificial reason and judgment of law which requires long study and experience before that a man can attain cognizance of it.’1 This principle recognises the collective wisdom of the judges refined over long periods and organised through precedents. An alternative, more critical, view would be to question any mystical notion of judicial omnipotence and would prefer to regard the common law as the creation of a professional elite of lawyers. The laws emanating from the courts have tended to reflect many assumptions and prejudices of judges drawn from a narrow class.2 According to the doctrine of binding precedent, a decision made by a court in one case is binding on other courts of the same or lower status in subsequent cases involving similar facts. This rule is meant to 1 Coke, Reports, xii, 65, quoted from F Maitland, The Constitutional History of England, 10th edn (Cambridge, Cambridge University Press, 1946) 268–69. 2 See J Griffith, The Politics of the Judiciary, 5th edn (London, Fontana, 1997) xv.

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ensure that similar cases will be decided in a similar manner. It relies on a system with a hierarchical appellate structure, and the principle depends on courts following the decisions of the courts above them. The UK Supreme Court (formerly the Appellate Committee of the House of Lords) is the highest domestic appellate court and is generally bound by its previous decisions, although this highest court can make changes to the law when it considers them necessary.3 This relaxation of the rules of precedent provides scope at the highest domestic level to modify the law to bring it in line with changing circumstances and to avoid injustice. However, the need to weigh any considerations in favour of judicial innovation against the need for certainty and the danger of retrospectivity has meant that departures from precedent are rarely in evidence. It has been generally acknowledged that the courts will not ignore or dis-apply statutes, and the courts can review the legality of Acts of Parliament only where matters of European Union law arise. However, the courts are responsible for the interpretation of statute law in cases that are brought before them. It is necessary for judges to perform this interpretative function when hearing cases at first instance or when deciding contested points of law on appeal. In other words, Parliament is supreme in passing laws, while judges have to decide what Parliament intended when it approved a particular piece of legislation. In situations where there is ambiguity the Interpretation Act 1978 and the common law rules of statutory interpretation (the literal rule, golden rule, and mischief rule, among others) are employed to assist the courts in performing this4 task. A comparatively recent innovation following the judgment of the House of Lords in Pepper v Hart4 has been to allow the use by the courts of the reports in Hansard of debates in Parliament to clarify the intentions of Parliament in situations where legislation appears ambiguous or obscure. Parliamentary sovereignty is, according to Dicey and other influential commentators, the fundamental rule of the constitution, which recognises that Parliament has the power to pass or repeal any law, including ‘constitutional laws’.5 This doctrine, as was noted in Chapter 3, not only 3

Lord Chancellor’s Practice direction [1966] 1 WLR 1234. [1993] 1 All ER 42. 5 See J Goldsworthy, The Sovereignty of Parliament: History and Philosophy (Oxford, Oxford University Press, 1999) ch 1. 4

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makes the entrenchment of principles or law difficult but also means that the will of Parliament predominates over that of the courts. The position in the United Kingdom has often been contrasted with codified constitutions. In the United States, the Federal Supreme Court has a constitutional review function. The decision in Marbury v Madison6 in 1803 established the convention that the US Supreme Court could declare null and void as unconstitutional any statute or action of the federal or state governments which it considered conflicted with the supreme law of the constitution. This convention had the effect of establishing a principle of judicial sovereignty, giving the Court power to declare actions of other branches of government unconstitutional. Any such decision by the US Supreme Court will be binding on federal and state institutions. In exercising this function, there have been many occasions when the Court has been called upon to adjudicate at the centre of the political process. The US Supreme Court has to decide finally the legality of contentious political issues ranging from racial segregation in schools7 to the legitimacy of the presidential election process.8 Some academic commentators and judges have suggested that there might be limits to Parliament’s legal sovereignty: [I]t is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.9

Judicial review has been deployed as a way of checking a trend by which Parliament grants ministers sweeping delegated powers by the use of what are called ‘Henry VIII clauses’.10 The Legislative and Regulatory Reform Act 2006 was the focus of particular concern, because in its

6

5 US 137 (1803). Brown v Board of Education of Topeka 347 US 483 (1954). 8 Bush v Gore 531 US 98 (2000). 9 Lord Steyn, in Jackson v Attorney-General [2005] UKHL 56 at 102; see also Lord Woolf, ‘Droit Public English Style’ [1995] PL 57 at 68; T Allan, Law, Liberty and Justice: The Legal Foundations of British Constitutionalism (Oxford, Clarendon, 1993) 286. 10 W Wade and C Forsyth, Administrative Law, 11th edn (Oxford, Oxford University Press, 2014) 729. 7

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original form this measure proposed that ministers would have the power to alter any law passed by Parliament (thus going far beyond the Deregulation and Contracting Out Act 1994, which also give quite wide discretionary powers to ministers in a particular area). But should the judges depart from the sovereignty of Parliament established under the 1689 Bill of Rights? Any refusal by the courts to apply valid legislation would be a radical departure from constitutional principle and it would amount to a highly controversial development. This would mark a shift in the current balance of the constitution away from the executive, which is notionally accountable to an elected Parliament. Further, the danger is that a government with a majority in Parliament might respond by seeking to curb judicial authority. The United Kingdom still lacks a codified constitution but, with the introduction of so much legislation with constitutional implications, the position has changed in recent years. The European Communities Act 1972, under sections 2 and 3, qualified the doctrine of sovereignty by recognising that a competing source of law was judicially enforceable in the courts. The English courts must put into effect laws passed by European Union institutions11 even to the extent of suspending the provisions contained in domestic legislation. Moreover, the interpretative powers of the courts have been extended by the adoption of a rule of construction approach, which holds that words in a statute should be read to have a meaning that is consistent with Community law, even if this involves a departure from the language used in the statute.12 The Human Rights Act (HRA) 1998 has modified the position of the courts by incorporating the European Convention on Human Rights (ECHR) into domestic law. Parliamentary sovereignty is not directly compromised by the HRA 1998, but the ECHR may be regarded as equivalent to a domestic bill of rights because, in effect, Convention rights become part of domestic law by requiring public bodies to have regard to Convention rights in their dealings with members of the public. In yet another context, devolution has introduced a new kind of constitutional jurisdiction by requiring the courts to oversee the limits of the powers conferred as part of the devolution arrangements. There

11 See R v Secretary of State for Transport, ex parte Factortame (No 2) [1991] 1 AC 603, discussed in Chapter 3 above. 12 See Lord Diplock in Garland v British Rail Engineering Ltd [1983] 2 AC 751.

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is further discussion of the impact of the HRA 1998 and the courts and devolution in the sections below. REFORMING THE OFFICE OF LORD CHANCELLOR

The ancient office of Lord Chancellor, which can be traced back to the time of the Norman Conquest, exercised a combination of judicial, executive, and parliamentary functions.13 Until quite recently, the office conflicted with the idea of separation of powers. At one and the same time, the incumbent wore three hats. He or she was head of the judiciary, with a right to sit on the highest domestic appellate courts. He or she was not only a member of the House of Lords, but performed the function of Speaker. Finally, he or she was a prominent member of the Cabinet, as head of the executive department formerly known as the Lord Chancellor’s Department, which was responsible for making judicial appointments and for the running of the courts. In 2003, it was announced by the then Labour government that the Lord Chancellor’s position and the Appellate Committee of the House of Lords would be modified to address the anomalies relating to the overlapping of powers just alluded to. The impact of other constitutional reforms, particularly conflicts between this anachronistic office and the need to conform to ECHR principles introduced into domestic law by the HRA 1998, was another underlying reason for making these changes. While recognising that the Lord Chancellor’s position conflicted with any notion of separation of powers, it is important to remember that conventions operated which determined the previous boundaries of conduct in constitutional matters, and these rules prevented the Lord Chancellor from having an entirely political role. For example, although the Lord Chancellor was a senior Cabinet member, it was established that in his former capacity as a judge, he would not sit as a member of the judicial panel of the House of Lords in cases involving political controversy. Further, as the minister responsible for courts and judges, a legal background was considered essential for a Lord Chancellor. This special nexus with the legal profession was encouraged so that the views of judges and lawyers could be voiced with some authority at the Cabinet 13

D Woodhouse, The Office of Lord Chancellor (Oxford, Hart Publishing, 2001).

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table. In theory, the Lord Chancellor was capable of protecting the judicial branch from executive interference, particularly when it came to resource allocation (the extent to which this was true depended to a considerable degree on the personal authority of the office-holder). After the 2005 reforms it was unclear how far a specifically legal background would be needed in future. The Constitutional Reform Act 2005 provides that any candidate for the office of Lord Chancellor must be ‘qualified by experience’. As well as a professional legal background, the Prime Minister in making an appointment may now take into account parliamentary, ministerial and academic legal experience. Under the revised arrangements, the Lord Chief Justice is given the title President of the Courts of England and Wales. He or she is head of the judiciary, with the authority that comes from being appointed as chief judge. In this new capacity, he or she is responsible for ensuring that the views of the judiciary are effectively represented. Certain traditional aspects of the position have been retained, including the title Lord Chancellor, but at the same time obvious anomalies that conflicted with the separation of powers have been removed. The position can now be summarised as follows: 1. The Lord Chancellor/Secretary of State for Justice is the Cabinet minister at the head of the Ministry of Justice (the former Lord Chancellor’s Department/Department of Constitutional Affairs), which has responsibility for the appointment of judges, the administration of the courts, the provision of legal aid and (since 2007) for the prison service. The Lord Chancellor is directly accountable to Parliament for the efficiency and effectiveness of the courts system and of the prison service. In common with all other ministers, the Lord Chancellor must be a Member of Parliament, but there is no longer a requirement to be a member of the House of Lords. The most recent appointments to the office, Michael Gove, Christopher Grayling, Kenneth Clarke and Jack Straw, have remained MPs able to represent the Ministry of Justice in the House of Commons. 2. The Constitutional Reform Act 2005 formally recognises a principle of judicial independence. The legislation requires the Secretary of State for Justice and all those involved in the administration of justice, including in the appointment of judges, to be under a duty to respect and maintain judicial independence.14 14

Constitutional Reform Act 2005, s 3.

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3. The conflict of roles in Parliament between acting as a minister and presiding over the Upper House has been eliminated.15 The House of Lords is now presided over by ‘the Lord Speaker’. B aroness Hayman, the first office-holder, was elected by members in July 2006 by an alternative vote system for an initial term of five years. The office holder receives a salary of £101,000. In 2011 Baroness D’Souza was elected Lord Speaker after her predecessor announced she would not serve for another term. 4. The Lord Chancellor/Secretary of State for Justice is no longer eligible to sit as a judge on the judicial panels of the UK Supreme Court and Privy Council. The UK Supreme Court is presided over by a President and Deputy President. APPOINTING AND DISMISSING JUDGES

A crucial area that has been transformed by these changes concerns the role of the Lord Chancellor/Secretary of State for Justice in relation to judicial appointments. The traditional system for judicial appointments that has now been replaced lacked transparency. This was because it was based on consulting existing judges to obtain informal recommendations. Nevertheless, it was accepted that the recommendations made by the Lord Chancellor for senior judicial appointments (or recommendations by the Prime Minister for the Court of Appeal and House of Lords) went to the best-qualified individuals on the basis of their performance as barristers or solicitors rather than on the basis of any declared political affiliation.16 When it became clear that the judicial appointments system was going to be radically changed there was concern that the process could become politicised.17 For example, it is quite common under codified constitutions for the executive to propose and the legislature to approve

15

Constitutional Reform Act 2005, s 18. Nevertheless, it has been argued that political bias is discernible in significant judicial decisions. See, eg, J Griffith, Judicial Politics since 1920 (Oxford, Blackwell, 1993). 17 For further discussion see M Tushnet, ‘Judicial Accountability in Comparative Perspective’ in N Bamforth and P Leyland (eds), Accountability in the Contemporary Constitution (Oxford, Oxford University Press, 2013). 16

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appointments to the higher judiciary.18 There were very good reasons for not imitating the procedure in the United States and involving Parliament actively in the appointment process. The Constitution of the United States was drafted to incorporate separation of powers as a core doctrine. In regard to the appointment of the most senior judges who sit on the US Supreme Court, the power to nominate candidates is given to the executive in the form of the President. On the other hand, the Senate, as part of the legislature, has the duty of confirming presidential nominations.19 However, even though justices of the US Supreme Court once confirmed remain in place for their lifetime, this procedure has not been a guarantee of independence and political neutrality. The position has been exactly the reverse in regard to the US Supreme Court. The US Supreme Court exercises a constitutional review function and, unlike the UK courts, it has the power to police the constitution and to declare legislation invalid. This has projected the court into the forefront of political controversy on many occasions.20 Most obviously in recent times it was the US Supreme Court that finally had to decide the validity of the contested presidential election result in the year 2000 in the case of Bush v Gore.21 The political dimension of the Supreme Court’s role has resulted in deliberate attempts by US Presidents to select judicial candidates with views that appear to correspond to their own.22 An obvious danger in making any such reform in the United Kingdom to the system of judicial appointments was introducing any form of political interference into the process. The central objection made by Professor Griffith to the types of appointments to the judicial bench during the 1970s and 1980s concerned the elevation to the judiciary of a public school Oxbridgeeducated elite section of society, nearly all of whom experienced a similar legal training.23 More recently critics, for example Lady Hale, 18

Art 104 of the Italian Constitution is one such example. II, s 2. The Senate will hold hearings to examine the suitability of candidates but presidential nominations are ratified unless there are blemishes to personal reputation: S Finer, Five Constitutions (London, Penguin, 1979). 20 M Vile, Politics in the USA (London, Hutchinson, 1976) 242; R Denenberg, Understanding American Politics, 3rd edn (London, Fontana, 1992). See Chapter 6. 21 531 US 98 (2000). 22 M Tushnet, The Constitution of the United States: A Contextual Analysis, 2nd edn (Oxford, Hart Publishing, 2015) 128ff. 23 J Griffith, The Politics of the Judiciary, 5th edn (London, Fontana, 1997) 18ff. 19 Art

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no longer view the problem mainly in terms of social class, but rather identify the need to appoint judges who are more representative of society as a whole.24 Recent Lord Chancellors have recognised the importance of placing increasing emphasis on equality and diversity as well as the accepted qualities of integrity and judicial quality understood in terms of intellectual ability.25 Despite the changes to the appointments system discussed below, and close monitoring of who is appointed, there is still an under-representation of women and ethnic minorities at the highest judicial levels.26 The task of selecting judges is now in the hands of a Judicial Appointments Commission (JAC) for England and Wales, which has been established under the Constitutional Reform Act 2005 as an independent non-departmental body. This body is itself largely appointed by open competition and it is responsible for selecting judges up to and including High Court judges. It comprises 15 commissioners in total. There are five lay members, five judges (three from the Court of Appeal or High Court, one circuit judge and one district judge), two professional members (one barrister and one solicitor), one lay magistrate, and one tribunal member. The chair must be one of the lay members. Commissioners serve for between three and five years. The initial appointments to the Commission included seven women and two from ethnic minorities, one of whom chaired the Commission. The weight attached to recommendations by the JAC for England and Wales is of central importance, especially for appointments to the higher judiciary. This issue comes down to whether the power to select that is given to the JAC can be undermined by the ratification process. For appointments up to and including those to the High Court, the Secretary of State will inform the JAC when a vacancy arises. After the selection and interviewing process has been carried out by the JAC, a single name for each vacancy, together with reasons for the selection, will be forwarded to the Lord Chancellor. The Lord Chancellor can accept the recommendation and, indeed, in the vast majority of cases selections will be approved. However, the Lord Chancellor can ask the 24 Lady Hale, ‘Equality in the Judiciary’, Kuttan Menon Memorial Lecture, 21 February 2013; www.supremecourt.uk/docs/speech-130221.pdf. 25 See, eg, Lord Falconer, Lord Chancellor, Constitutional Reform Speech, University College London, 8 December 2003. 26 K Malleson, ‘Diversity in the Judiciary: The Case for Positive Action’ (2009) 36 Journal of Law and Society 376.

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JAC to reconsider, if it appears that the evidence submitted does not demonstrate suitability. The Lord Chancellor can reject a candidate or require reconsideration if there is some evidence that the nominated candidate cannot be considered for judicial appointment, or if he or she considers that the competition has not been conducted properly. In situations where the initial choice is not accepted the matter goes back to the JAC. The original candidate can be confirmed, or an alternative candidate can be selected with reasons. The recommended candidate goes back to the Secretary of State who can only reject a candidate if there is some evidence making the candidate unsuitable for consideration. Any such reasons must be set out in writing. If a candidate is rejected the Lord Chancellor is obliged to accept the next recommended candidate. It will be remembered that the Act of Settlement 1701 is regarded as a significant step in securing judicial independence, as it introduced security of tenure for judges who have been appointed ‘during good behaviour’ ever since. In modern times judges have a retirement age (currently 70 for High Court, Appeal Court, and House of Lords judges) but parliamentary action is necessary to remove senior judges, and none have been dismissed in recent times. In addition, the Constitutional Reform Act 2005 sets out procedures for exercising disciplinary powers over judges and for removing judges. At the same time as establishing a system of appointments and discipline, the 2005 Act introduces complaints procedures overseen by a judicial appointments ombudsman who must be a non-lawyer. A SUPREME COURT FOR THE UNITED KINGDOM

The Appellate Committee of the House of Lords was replaced by a UK Supreme Court with a broadly similar appellate jurisdiction in October 2009.27 The Supreme Court was not established as a constitutional court,28 although, of course, it presides over cases that raise 27

Constitutional Reform Act 2005, Part 3. For comparison with constitutional courts and supreme courts in other jurisdictions, see: A Harding and P Leyland (eds), Constitutional Courts: A Comparative Study (London, Wildy, Simmonds and Hill, 2009); J Goldsworthy (ed), Interpreting Constitutions: A Comparative Study (Oxford, Oxford University Press, 2006); B Dickson (ed), Judicial Activism in Common Law Supreme Courts (Oxford, Oxford University Press, 2007). 28

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c onstitutional issues. Furthermore, an important area of constitutional jurisdiction relates to the fact that the Supreme Court has taken over from the Judicial Committee of the Privy Council jurisdiction over ‘devolution issues’ arising from the Scotland Act 1998, Government of Wales Act 1998, and Northern Ireland Act 1998. While the courts frequently make judgments which develop the principles of the common law, the courts, and in particular the UK Supreme Court, do not have a general power of constitutional review. The panel of judges assigned initially to the court included the serving Lords of Appeal in Ordinary (Law Lords). As noted in Chapter 3, although the newly appointed Justices of the Supreme Court are given the title ‘Lord’ they are not able to sit or vote in the House of Lords. At its head the new court has a President and a Deputy President. For the appointment of judges to the Supreme Court a selection commission is specially convened for the purpose which must include the President and Deputy President of the Supreme Court and members of the JACs for England, Scotland, and Northern Ireland.29 To ensure that all parts of the United Kingdom have appropriate representation on the Supreme Court in terms of expertise concerning their jurisdictions, the Commission must consult the First Minister in Scotland, the Welsh Assembly, and the Secretary of State for Northern Ireland before making a recommendation of a suitably qualified person to the Lord Chancellor. The Lord Chancellor has then to consult further with senior judges and representatives from the devolved parts of the United Kingdom before reaching a decision on the Commission’s recommendation. If the Lord Chancellor approves of the Commission’s choice he can approve (‘notify’) the selection, which then goes on to be finally approved by the Prime Minister. At this point the Lord Chancellor also has the option, if certain specified grounds are satisfied, of rejecting the selection or requiring a reconsideration, but he or she has no power to choose an alternative candidate. For the appointment of Heads of Division of courts and Appeal Court judges, the JAC must set up a selection panel which reports its selection to the Lord Chancellor who has broadly similar options regarding acceptance, rejection, or asking for reconsideration. To briefly summarise the position following the implementation of the Constitutional Reform Act 2005: the Lord Chancellor has shed 29

Constitutional Reform Act 2005, ss 26 and 27.

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many of the traditional powers associated with the office, and the relationship between the Lord Chancellor, the judiciary, and the legal profession has been radically transformed. The most senior judge of the Supreme Court presides as President of the Supreme Court, while the Lord Chief Justice occupies a special role as head of the judiciary and legal profession. A new Judicial Appointments Commission has been established to play a predominant role in the selection of judges. Taken together, these are far-reaching reforms of great constitutional importance. In consequence, it will be crucial that, in practice, the safeguards set out in the Constitutional Reform Act 2005 are effective in underlining a necessary separation of powers and functions between the executive branch and the judicial branch. We have seen in this section that the role of the courts has been transformed in recent years. The government responded with important reforms. It decided to introduce a much stricter separation of powers, but to keep sovereignty in the hands of Parliament. The ancient office of Lord Chancellor has been reformed. The Constitutional Reform Act 2005 introduces a new system of judicial appointments, placing the main responsibility for appointments with an independent appointments commission. Serving judges have lost the right to be sitting members of the House of Lords in its legislative capacity. The Judicial Committee of the House of Lords has been replaced by a Supreme Court, with similar composition and powers to its predecessor. PART II: ADMINISTRATIVE LAW AND JUDICIAL REVIEW INTRODUCTION TO ADMINISTRATIVE LAW

At a time when the executive has become extremely powerful through what in this book we have called ‘elective dictatorship’, many commentators believe that judicial review has come to assume particular importance as a counterbalance to executive power. In particular, it performs a crucial constitutional role in the absence of any other mechanism for legislative review (eg a constitutional court). While some kind of oversight function is desirable, the extent to which the courts are able to intervene in the routine processes of government is highly controversial. We will see that the courts have come to exercise what is termed a supervisory jurisdiction, but we shall also see that a dministrative law

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needs to be understood more broadly in terms of the processes of policy implementation. In recent years one highly nuanced academic debate has focused upon the constitutional basis of judicial review. In brief, the so-called ‘ultra vires’ view argued that the ultra vires doctrine forms the basis for judicial review; in other words, if a decision-maker acts beyond the powers conferred by legislation the courts simply exercise a supervisory jurisdiction by interpreting the law so as to set limits on statutory authority.30 On the other hand, the common law view has regarded this account as inadequate, and rather it maintains that judicial review needs to be explained beyond looking at legislative intent. It recognises that wide-ranging principles of judicial review have been developed by the courts under the common law. This constitutes a sophisticated body of law that has come into existence independent of the legislature, and these principles are used to control the actions of administrative bodies.31 Leaving aside which of these views more accurately describes the position, administrative law in the United Kingdom is normally conceived around the control function of the courts described by Dicey under the rule of law. However, in terms of actual practice the implementation of administrative law is carried out by central and local government officials, and by private organisations under contract, with reference to relevant statutory powers contained in primary and secondary legislation. A network of administrative tribunals deals with disputes and appeals against decisions taken by officials. In contrast, continental systems of administrative law, such as those in France, Italy, Germany, or Spain tend to place much less emphasis on the role of courts (apart from administrative courts); rather, attention is concentrated on the nature of the administrative law (eg droit administratif in France) which provides the structure and functions of the public administration.32 This part of the chapter will be in three sections. 30 See, eg, C Forsyth, ‘Of Fig Leaves and Fairy Tales: The Ultra Vires Doctrine, the Sovereignty of Parliament and Judicial Review’ (1996) 55 Cambridge Law Journal 122. 31 P Craig, ‘Ultra Vires and the Foundations of Judicial Review’ (1998) 57 Cambridge Law Journal 63. 32 See HWR Wade and C Forsyth, Administrative Law, 11th edn (Oxford, Oxford University Press, 2014) as an exemplar of the UK court-centred approach, eg p 4: ‘The primary purpose of administrative law … is to keep the powers of the government within their legal bounds’.

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The first section sets out the well-known ‘red light and green light theory’ of administrative law, which helps to explain the historical context. The second section provides an account of the current law of judicial review. The third section discusses the impact of the Human Rights Act 1998 on the regime of public law with particular reference to some important cases. RED LIGHT AND GREEN LIGHT THEORY

In their influential study that begins by tracing the main trends in administrative law Harlow and Rawlings identify two contrasting models that are termed ‘red light’ and ‘green light’.33 The former is more conservative and directed at control; the latter is more liberal/socialist in orientation and facilitative in nature. The two models developed in tandem with the emergence of the modern state and serve broadly to characterise competing approaches to administrative law from the late nineteenth century until the latter part of the twentieth century. In the current situation these polarities have been largely replaced by a continuum of overlapping assumptions, combining elements from red light at one end of the spectrum to green light at the other. It might be more accurate to claim that the lights now converge at amber. The ‘Red Light’ View The ‘red light’ view is traced back to Professor Dicey and a political tradition of nineteenth-century laissez-faire (minimal state interference) theory that embodied a strong suspicion of governmental power exercised by emerging state bureaucracy at central or local government level. Standing behind such a view was a desire to minimise the encroachment of the state on the rights (especially property rights) of individuals. Dicey maintained that the concept of legal sovereignty (we have already observed that this concept was regarded by him as the fundamental principle of the constitution) favours the supremacy of law. Parliament establishes a framework of general rules in society. Dicey’s second 33 C Harlow and R Rawlings, Law and Administration, 3rd edn (Cambridge, Cambridge University Press, 2009).

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rinciple, the rule of law, was of equal importance to his account of the p constitution. For it was this concept that ensured that all public and private bodies, as well as individuals, would only act according to the law. The executive should govern strictly according to the rules set out by Parliament. The rule of law proposes that the law will operate to contain illegality and abuse, but without necessarily having, or needing, an explicit moral and political foundation. Dicey did not elaborate any special guiding principles for law in general (or administrative law in particular, of which he was highly sceptical). The philosophy underpinning the common law was entirely one of pragmatism, that is, of adjustment to changing circumstances. At its most basic level in the context of judicial review, intervention by the courts is justified when public bodies (or any other body or individual) exceed their legal powers (that is, act ultra vires or abuse their powers) when exercising a public function. If unchecked, the bureaucratic and executive power of state institutions or mechanisms will threaten the liberty of us all. Such a view is closely allied to the idea of a ‘self-correcting democracy’, explained by Craig, in which law performs an important control function.34 The courts come to be regarded as part of the constitutional system of ‘checks and balances’. The grounds of judicial review that have been developed by the courts might be viewed as the response of the common law. The modern state, and its attendant baggage of administrative procedures, guidance, and discretion, was established at the same time as the emergence of party government. From the outset there have been pronounced differences in ideological perspective between the main political parties as the state has evolved. For advocates of the ‘red light’ view, the judiciary was regarded as being autonomous and impartial and the common law was imbued with its own standards of independence and fairness. This meant that the courts could be relied upon as a kind of referee to adjudicate, not on the political or even the practical validity of any decision, but simply on the legality of executive action. Over time, judges have developed principles that have served to keep law at a step removed from politics; in other words, the courts should not be usurping the functions of public authorities on matters of fact, judgement, or policy.35 For example, we will soon see that Wednesbury 34 P Craig, ‘Dicey: Unitary, Self-correcting Democracy and Public Law’ (1991) 106 Law Quarterly Review 105. 35 J Jowell and A Lester, ‘Beyond Wednesbury: Substantive Principles of Administrative Law’ [1987] PL 369 at 382.

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unreasonableness (also known as irrationality) establishes a high hurdle to overcome in judicial review cases, which are often challenging decisions of public bodies.36 The main function of the judiciary according to the ‘red light’ view is perceived as interpreting and applying the strict letter of the law. This conceptualisation of the role of the courts serves the needs of the legal profession well by perpetuating a separation of law from policy issues, with the emphasis being placed on the strict construction of statutes or rules in isolation from their broader contextual framework. The problem is that the proposal that law can stand aside from politics and morality is strongly contested. Indeed, opponents of this view maintain that the ideological position of the judiciary is widely demonstrated by analysing crucial cases.37 The danger is now more accurately perceived as being that ministers and officials might tend to shelter behind a body of rules and delegated powers that have been created to facilitate the tasks of administration. Thus it is that, in a negative sense, judicial intervention becomes possible as a kind of safety-net, by taking up the democratic slack in those areas where parliamentary control is manifestly found wanting. Or by being activated during those periods when parliamentary opposition is regarded as being weak and ineffective. Tribunals and the ‘Green Light’ View The ‘green light’ perspective is based on an acceptance of a social democratic view of the state and regards law as an essential tool for the delivery of communitarian policy objectives. It originates from the utilitarian tradition of egalitarian and ameliorative social reform.38 The introduction of policies extending public service provision was supported by green light theorists. For example, this approach is typified in the writings of Laski, Jennings, Robson, and Griffiths from the London

36 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. See below under ‘Grounds of Judicial Review’. 37 J Griffith, The Politics of the Judiciary, 5th edn (London, Fontana, 1997). 38 See, eg, S Webb and B Webb, A Constitution for the Socialist Commonwealth of Great Britain (London, Longmans, Green & Co, 1920).

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School of Economics and Political Science.39 Statute law emanating from Parliament and resulting from the democratic process is regarded as the method for enabling the implementation of such policies. A statute is something concrete and can provide, in principle at least, the proper authority and framework with which to govern consensually. This position recognises that it is very much more difficult to achieve an adequate and sustainable provision of services without having the law on the side of the administration. Law comes to embody, in equal measure, both political legitimacy and moral persuasiveness. The contribution of the state is encouraged as the state bureaucracy is regarded as an effective means of facilitating the delivery of communitarian goals. It does this by assuming responsibility for at least basic minimum standards of provision, including housing, education, health, social security, and local services. The emergence of a modern conception of administrative law not only coincides with the political and economic changes that have witnessed the development of the modern state, but it is inseparably linked to these changes. The expansion of the state has given rise to the centralisation of powers in some areas, for example, central government, the civil service, agencies (such as the Prisons Agency or the Benefits Agency), and quasi-government bodies; and the broad territorial diffusion of power in others, for example, the emergence of local government as an important focus of decision-taking and spending in the nineteenth and twentieth centuries (most recently marked by the emergence of a Parliament in Scotland and Assemblies in Northern Ireland and in Wales). In sum, power that is exercised by public bodies has greatly expanded; accordingly, the mechanisms for accountability have assumed a new importance, particularly since the 1960s. It has been an equally important objective for advocates of what is termed the ‘green light’ view to establish organised institutions that are properly accountable, and at the same time capable of delivering these services effectively. The growth of bureaucracy in the public domain has meant a proliferation of delegated legislation, administrative rules, codes, and circulars. Some critics have argued that the emergence of 39 R Rawlings, ‘Distinction and Diversity: Law and the LSE’ in R Rawlings (ed), Law, Society and Economy Centenary Essays for the London School of Economics and Political Science 1895–1995 (Oxford, Oxford University Press, 1997) 5ff; W Robson, Justice and Administrative Law, 3rd edn (London, Stevens, 1951).

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strong party government (or ‘elective dictatorship’) has meant that Parliament no longer operates as anything like an adequate forum of accountability.40 As will have been apparent from the discussion in Chapter 5, these shortcomings are largely because both Houses may fail to provide effective mechanisms for scrutiny of the executive. The question is whether citizens have sufficient rights in the face of omnipresent central and local government powers or, indeed, those powers exercised by bodies now in the private sector, for example, the privatised utilities. The response from ‘green lighters’ to accountability issues has not been to rely primarily on the courts for redress but to build into the decision-making process certain rights, and a degree of participation by the citizen. We can see a reflection of this view in the growth of administrative tribunals, introduction of ombudsmen and, perhaps to a lesser extent, in proposals centring on freedom of information, Citizen’s Charter/‘Service First’, and the public sector benchmarking mechanism. The central concern has been to confer, for example, social welfare rights and a general empowerment of individuals in regard to the exercise of powers by public bodies. Equally, ‘green light’ advocates might wish to see the grounds of review in the courts developed to be more precisely focused on the detailed workings of particular administrative structures, for example, in the areas of social security or immigration control. Additional rights and powers to work through tribunals might be advocated, as these bodies can act as decision-makers/ facilitators, as well as encouraging internal dispute resolution. Tribunals might be regarded as the archetypical ‘green light’ remedy because of their ability to deal with a large throughput of cases speedily and informally. Until recently, tribunals tended to be relatively specialised bodies custom-designed by individual statutes to perform a particular adjudicative function in respect to an area of administration. Specific tribunals, by hearing a multiplicity of cases in crucial areas such as social security, employment, immigration or mental health, kept the courts unburdened. However, following the implementation of the recommendations contained in the Leggatt Report there has been

40 See, eg, Report on Ministers’ Powers, Cmnd 4060 (London, HMSO, 1932); Report of the Hansard Society Commission on Parliamentary Scrutiny, The Challenge for Parliament. Making Government Accountable (London, Hansard Society, 2001).

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a complete overhaul of tribunals in the UK to create a single tribunal service.41 It consists of a generic first tier able to hear cases from any of the fields now incorporated as part of the service, and the Upper Tribunal which mainly has an appellate jurisdiction.42 This change was partly in response to the ECHR’s Article 6 requirements of fair trial, now incorporated under the Human Rights Act. In order to provide a much clearer separation of powers tribunals are now independent of the departments which make the decisions under review, and tribunal judges have been made fully independent of the executive as they are appointed by the Judicial Appointments Commission. In R (on the application of Cart) v Upper Tribunal 43 the Supreme Court held that certain categories of decisions by the Upper Tribunal would not be subject to routine judicial oversight and be amenable to review only when raising an important point of principle. The upshot is that in the United Kingdom today there is an essentially self-contained tribunal service which bears more than a passing resemblance to the system of administrative courts found in continental systems.44 We can see that this ‘green light’ view implicitly challenges and corrects some of the misconceptions that may arise from the ‘red light’ view. It does this not by relying on the pragmatism which characterises the common law, but by adopting an instrumental approach (that is, it concentrates on the effectiveness of the measures in question). Administrative law becomes accepted as part of the total apparatus of government, not something largely distinct from it. It can be made to act as a regulator and facilitator to enable social policy to be implemented effectively and fairly. The ‘green light’ approach continues to be manifested in the contribution of administrative tribunals and statutory regimes of regulation (eg applying to public utilities and railways). In recent decades there has been a fundamental change affecting the nature of government, with a widespread tendency towards marketisation through the privatisation of many services that were once in the public sector and the development of public–private partnerships, and so on. Harlow and Rawlings recognised that by the 1980s in an era of 41

Sir Andrew Leggatt, Tribunals for Users: One System, One Service (HMSO, 2001). See the Tribunals Courts and Enforcement Act 2007. 43 [2011] UKSC 28. 44 L Brown and J Bell, French Administrative Law, 5th edn (Oxford, Oxford University Press, 1998). 42

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reinvented government it was no longer accurate to see things in terms of a polarisation of ‘red light’ and ‘green light’ views. In the contemporary arena the clear ideological divide of right and left between the main political parties has virtually disappeared. The major parties have adopted the principles of market capitalism to various degrees. Despite the fact that the higher judiciary still tend to be drawn from an Oxbridge elite, it is no longer clear that the affiliations of judges can still be measured in terms of support for one political standpoint to the detriment of others, or one view of the constitution. Indeed, during the 1980s and 1990s under the Conservative governments of Margaret Thatcher and John Major, the courts entered the political fray as a counterweight to government. They did so with a number of decisions that had the effect of challenging controversial policies (illustrated in the section on judicial review cases below). In following a more interventionist course of action the courts have projected themselves as a separate branch of government. THE IMPACT OF JUDICIAL REVIEW

By requiring public bodies to act lawfully, judicial review imposes legal limits to decision-making in the public domain. The grant of judicial review is discretionary in the sense that claims (formerly called applications) for judicial review are assessed by a judge who will consider whether they are sufficiently well founded to proceed. This remedy is available only to a claimant who has exhausted all other avenues of redress such as informal complaints procedures, ombudsmen, statutory rights of appeal, and so on. And it must normally be sought within a strict time limit that requires that an application be made promptly and in any event within three months from the time the decision was taken. The growing importance of judicial review would appear to be reflected in a spectacular increase in the number of cases coming before the courts. For example, between 1982 and 2005 the number of applications for permission for judicial review increased from 685 to over 5,000. In the next five years the figure had more than trebled to 16,300 for 2010.45 There are approximately the same numbers of 45 Judicial and Court Statistics 2010, Ministry of Justice, 144. Only a fraction of these applications proceed to a full hearing.

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claims concerning local government as central government. In the 1980s to reduce susceptibility to review civil servants were sent a circular entitled ‘The Judge over your Shoulder’, which contained advice on how to avoid obvious pitfalls when making decisions in the context of statutory powers. However, although the numbers of applications have steadily risen these statistics are, in themselves, somewhat misleading. First, this is because in order to filter out unmeritorious cases judicial review is a two-stage process, and only a small proportion of claims reach the final substantive stage in the form of a full court hearing. (For example, a public authority may prefer to settle and reconsider its decision or a claimant may withdraw if faced with the prospect of losing at the hearing.) Second, rather than showing an even distribution across the entire spectrum of government activity, the statistics reveal that a large percentage of applications are concerned with immigration cases. Third, although the number of cases has increased greatly in recent years the caseload represents a tiny fraction of decisions taken by public bodies (well under one per cent). It might be concluded from the bare statistics that there is uneven access to judicial review, and that, if government administration is taken as a whole, its impact is apparently not of central importance. On the other hand, the possibility of judicial review lurking in the background almost certainly has a deterrent effect and encourages decision-making bodies to act lawfully. The common law recognised the prerogative remedies (recently renamed: original names in italics) of a quashing order (certiorari), a prohibiting order (prohibition) and a mandating order (mandamus) which, together with the equitable remedies of the declaration and injunction, could be used to control an excess of legal authority. The effect of a quashing order is to invalidate a decision and make the decision-maker take the decision again lawfully. A prohibiting order prevents the decision from being taken. A mandating order requires the public body to act in a particular way. A declaration sets out the legal position between the parties without imposing a remedy. Injunctions are usually granted to prevent a public body from acting in a particular way. However, the private law remedy of damages, while sometimes available, is rarely granted in judicial review proceedings. General exposure to financial compensation would have far-reaching implications for the funding of public bodies (see the discussion of liability of the Crown in contract and tort in Chapter 4).

Administrative Law and Judicial Review 213 DISTINGUISHING PUBLIC LAW FROM PRIVATE LAW

A series of procedural innovations introduced in the late 1970s greatly simplified the process for applying (now claiming) for judicial review, and contributed to the increase in cases coming before the courts. The House of Lords decided unanimously in O’Reilly v Mackman46 that the application for judicial review procedure47 had been set up specifically to deal with public law issues and to impose, in the public interest, safeguards against, in Lord Diplock’s words: ‘groundless, unmeritorious or tardy attacks upon the validity of decisions made by public authorities in the field of public law.’ The public interest was therefore given priority over the private. The normal route would be by way of the judicial review procedure, with a number of limited exceptions being made to this general rule. A public law issue might be defined by reference to the authority making the decision: if it is a ‘public’ authority, then it should be subject to ‘public’ law regardless of the actual power being exercised. However, the exclusivity principle is subject to certain exceptions, for example, if the conduct of a public body impacts on private law rights as well as public law rights, an action can be brought in the ordinary civil courts.48 Apart from recognising that the judicial review procedure was directed at the control of public as opposed to private power, it has been necessary to find a method of distinguishing the public from the private—a task made more difficult by the increasing overlap between the two. For example, in what has been termed the ‘contract state’ not only has there been widespread privatisation and regulation, but also many governmental services, ranging from prisons to street cleaning and refuse disposal, are performed by private companies. The Court of Appeal in R v Panel on Takeovers and Mergers, ex parte Datafin49 was faced with the dilemma of deciding whether it was the source of the powers of the organisation which was the crucial factor, or the nature of the body itself and the public consequences of its decisions. 46

[1983] 2 AC 237. Introduced by Rules of the Supreme Court, Ord 53, later enacted under s 31 of the Supreme Court Act 1981 and revised under the Civil Procedure Rules, Part 54 (in 2000). 48 See, eg, Roy v Kensington and Chelsea and Westminster Family Practitioner Committee [1992] 1 AC 624. 49 [1987] 1 All ER 564. 47

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In this instance, the Panel on Takeovers and Mergers took the form of an entirely non-statutory, self-regulating association, set up by persons having a common interest, which had devised and operated a code of conduct to be observed in the takeovers and mergers of public companies. The court held that, bearing in mind that the panel did have government backing and was exercising public duties in the public interest, it should be subject to the control of public law. However, there has been a succession of cases where qualifications in the application of this functions test have seen charitable organisations, regulatory bodies, and religious organisations falling beyond the ambit of judicial review.50 As will be apparent in the section below, distinguishing between public and private bodies is relevant to cases with a human rights dimension, as the HRA 1998 applies directly only to public authorities.51 THE REQUIREMENTS OF STANDING

In order to proceed with a claim for judicial review the claimant must have standing, which is defined as having ‘sufficient interest’ in the contested matter.52 This hurdle has a useful function in that it deters frivolous or vexatious claims, but if the rules are too narrowly drawn worthy cases might also be excluded. The extent to which standing has to be a direct personal interest has been a matter of discussion in a number of important cases. For example, in Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd 53 the Federation objected to a decision taken by the tax authorities, who had reached a deal with a completely unconnected group of casual workers from the newspaper industry. Although it was held that this group representing small businesses did not have standing as ordinary taxpayers to mount a challenge, in an influential judgment Lord Diplock set out a more ‘open’ approach to standing: It would … be a grave lacuna in our system of public law if a pressure group, like this federation, or even a public-spirited taxpayer, were prevented by 50 See, eg, R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan [1993] 2 All ER 853. 51 See Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2003] UKHL 37. 52 Senior (formerly Supreme) Courts Act 1981, s 31(3). 53 [1982] AC 617.

Administrative Law and Judicial Review 215 outdated technical rules of locus standi [that is, standing] from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped.

Such an approach, which also recognises ‘group’ standing, has been in evidence in many subsequent cases. For example, the Child Poverty Action Group was recognised as a representative charitable organisation for poor families and thus was able to challenge changes to the benefits system using judicial review,54 and the World Development Movement, an international pressure group, was allowed to challenge the government’s decision to devote a substantial proportion of the overseas aid budget to the Pergau Dam project in Malaysia.55 On the other hand, in another well-known case, R v Secretary of State for the Environment, ex parte Rose Theatre Trust Co,56 in which standing was denied to a charitable trust which comprised members of the public and well-known figures in the theatre and the arts, it was held that the mere gathering together of people with a common interest did not achieve standing. It appears then that while there is a case for facilitating access to justice, it has also been recognised that, if no individual rights are at stake, granting unrestricted access to groups claiming to be representational runs the risk of allowing judicial review to become a means of political lobbying. As Professor Harlow puts it: ‘[T]he legal process is transmut[ed] into a freeway [and is in danger of becoming] a free-for-all.’57 Lastly, it is worth noting that the rules of standing under the HRA 1998 depend on a narrower ‘victim’ test58 which entails that an action is open only to a person who is personally subject to a violation of rights. However, in practice, this requirement has not proved a significant impediment to claimants. GROUNDS OF JUDICIAL REVIEW

The basic principle is that a public authority cannot act outside the power (ultra vires) conferred on it or abuse that power. The power often 54 R v Secretary of State for Social Services, ex parte Child Poverty Action Group [1990] 2 QB 540. 55 R v Secretary of State for Foreign Affairs, ex parte World Development Movement Ltd [1995] 1 WLR 386. 56 [1990] 1 QB 504. 57 C Harlow, ‘Public Law and Popular Justice’ (2002) 65 MLR 1 at 17. 58 See HRA 1998, s 7.

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derives from a statutory source; sometimes it is a prerogative power which is challenged, and abuse of power through failure to adhere to procedural rules is another familiar ground in judicial review cases. If power is exceeded the courts have the capacity to intervene by awarding a remedy. For example, a quashing order will have the effect of invalidating a decision taken by a public body. The body concerned is required to act lawfully when taking the decision in the future. On the other hand, the courts should not intervene when public bodies are acting within their powers unless Parliament has specifically given them the authority so to do, usually by way of granting a statutory right of appeal. In Associated Provincial Picture Houses Ltd v Wednesbury Corporation59 Lord Greene MR was concerned to emphasise that the courts only interfere with an act of an administrative authority if it has contravened the law. Even when the action is found to be ultra vires the court must not substitute itself for the decision-making authority. The court is acting in a supervisory capacity, not as an appellate body able to change the outcome. The terminology used to describe the main grounds of review was explained by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service:60 The first ground I would call ‘illegality’, the second ‘irrationality’ and the third ‘procedural impropriety’ … By ‘illegality’, as a ground for judicial review, I mean that the decision maker must understand correctly the law that regulates his decision making power and give effect to it. Whether he had or not is par excellence a justiciable question to be decided, in the event of a dispute, by … the judges, by whom the judicial power of the State is exercisable. By ‘irrationality’ I mean what can now be succinctly referred to as ‘Wednesbury unreasonableness’ … It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it … I have described the third head as ‘procedural impropriety’ [which includes] failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision … this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. 59 60

[1948] 1 KB 223. [1985] AC 374 (known as the GCHQ case) at 410–11B.

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Additional sub-grounds of review exist under each of these main categories referred to by Lord Diplock.61 Looking at the development and application of the grounds and sub-grounds under the common law, it becomes clear that for the decision-making process of public bodies to be lawful, it has to take place within a framework of rules. To take a few commonly occurring sub-categories associated with illegality (see Lord Diplock above), improper purpose/motive is clearly related to exceeding lawful authority, since it refers to the fact that the decisiontaker may have acted outside a statutory purpose, while the idea of relevance suggests that a body in exercising discretionary power must have regard only to legally relevant considerations. By the same token, it may have acted unlawfully by taking irrelevant considerations into account. Under the fettering principle, it can be unlawful for a decisionmaking body to form an over rigid policy in advance which prevents it from exercising the discretion granted to it. Improper delegation occurs when a decision-making body acting under statutory authority gives away the power to act to another body. An equally important aspect of judicial review has been the recognition of procedural protection under the rules of fairness/natural justice, for example, the right to a fair hearing. Furthermore, legitimate expectation, which is closely related to the doctrine of legal certainty, has become an important part of domestic administrative law, both in a procedural sense, and as a matter of substantive law. The first signs of renewed judicial activism emerged in the 1960s. The scope of fairness/natural justice in procedure was extended in Ridge v Baldwin.62 Limits were set on the exercise of ministerial discretion in relation to subjectively worded clauses in statutes in Padfield v Minister for Agriculture, Fisheries and Food.63 The concept of jurisdictional error and the status of statutory ouster clauses appearing to exclude judicial review were considered in Anisminic v Foreign Compensation Commission.64 In a famous assertion of its constitutional role the House of Lords held that statutory provisions appearing to limit the jurisdiction of the court

61 M Fordham, ‘Surveying the Grounds: Key Themes in Judicial Intervention’ in P Leyland and T Woods (eds), Administrative Law Facing the Future: Old Constraints and New Horizons (London, Blackstone, 1997). 62 [1964] AC 40. 63 [1968] AC 997. 64 [1969] 2 AC 147.

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were invalid.65 In the GCHQ case Lord Diplock acknowledged the potential for further developments by predicting that the principle of proportionality would be adopted by the common law. (Proportionality is now accepted as part of human rights jurisprudence. See the section below on the HRA 1998.) THE QUESTION OF MERITS

We have already noted that, according to the ‘red light’ view, the courts operating under the rule of law have, what we have called, a supervisory jurisdiction. They perform a control function but the scope of this jurisdiction is crucially important. Many writers have observed that even before the introduction of devolution and the HRA 1998 the reformulation of the grounds of judicial review coincided with a period of greater judicial activism.66 The constitutional effect of widening the scope of judicial review represents a rebalancing of power between Parliament and the courts. Roberts v Hopwood 67 can be cited as an early twentieth-century case which demonstrates the implications of judicial intervention. Poplar Council had been empowered under the Metropolis Management Act 1855 to pay its employees such salaries and wages ‘as … the council may think fit.’ Although the statute appeared to confer a broad discretion when a socialist local authority chose to use these wide discretionary powers to pay female and male workers equally and also a wage above the market rate, its policy was deemed to be unlawful by the House of Lords. Looking back to the post-World War II period, it is clear that a restricted role for the courts is envisaged in Lord Greene’s landmark judgment in Associated Provincial Picture Houses v Wednesbury Corporation.68 He stated: The court is entitled to investigate the action of the [public] authority with a view to seeing whether they have taken into account matters which they ought not to have taken into account, or, conversely, have refused to take 65 For further discussion, see W Wade and C Forsyth, Administrative Law, 11th edn (Oxford, Oxford University Press, 2014) 613ff. 66 See, eg, S Sedley, ‘Sounds of Silence: Constitutional Law without a Constitution’ (1994) 110 Law Quarterly Review 270. 67 [1925] AC 578. 68 [1948] 1 KB 223.

Administrative Law and Judicial Review 219 into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may still be possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere.

The example of a red-haired teacher dismissed for no other reason than the colour of her hair was used to illustrate how absurd a decision needed to be before the courts would be prepared to overturn it. To keep the courts a step removed from political decision-making, the concept of Wednesbury unreasonableness/irrationality deliberately erects a high hurdle to overcome before a court will be prepared to intervene on Wednesbury grounds alone. For example, a challenge to what was alleged to be an unfair rate-capping policy directed by central government (which was under Conservative control) at high-spending Labour local authorities was rejected by the House of Lords in Nottingham City Council v Secretary of State for the Environment.69 Lord Scarman made it clear that in cases of this type an extremely high threshold had to be overcome. Wednesbury unreasonableness/irrationality meant that the decision of the minister would have to have been so absurd that he must have taken leave of his senses for a remedy to be granted. JUDICIAL REVIEW CASES

There are important decisions which demonstrate a greater judicial willingness than was previously discernible to intervene in policing the activities of central and local government, often with controversial results. In Bromley v Greater London Council 70 the courts were called upon to decide on the legality of a policy decision by the Greater London Council (GLC) (later abolished). In line with a local election commitment the Council wanted to reduce fares on London transport. The Transport (London) Act 1969 placed the authority under a duty to develop policies, and to encourage, organise and, where appropriate, to carry out efficient and economic transport facilities and services for 69 70

[1986] AC 240. [1983] 1 AC 768.

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Greater London. This section of the Act appeared to give the GLC considerable discretion in the way it chose to run the transport system and allocate resources, but on final appeal to the House of Lords, it was held that the new policy was unlawful. The fiduciary duty owed to ratepayers (local taxpayers) had not sufficiently been taken into account when making the decision. The word ‘economy’ used in the Act was given a narrow interpretation in the House of Lords. The council was not acting irrationally, and an alternative approach to interpreting the statute would have recognised that the GLC had the scope to reallocate funding in the form of grants to underpin its reduced fares policy. A ministerial decision to grant aid to Malaysia for the Pergau Dam project under section 1 of the Overseas Development and Co-operation Act 1980 was successfully challenged as unlawful in R v Secretary of State for Foreign Affairs, ex parte World Development Movement Ltd 71 (referred to above in relation to standing). It was held by Rose LJ that Whatever the Secretary of State’s intention or purpose may have been, it is … a matter for the courts and not for the Secretary of State to determine whether, on the evidence before the court, the particular conduct was, or was not, within the statutory purpose.

The judge’s reading of the statute identified an abuse of power, but it is arguable that the court has come close to interfering with ministerial discretion in the sensitive area of the formulation of foreign policy. In an entirely different context it was held in R v Lord Chancellor, ex parte Witham72 that the introduction by the government of a flat rate court fee which applied to the unemployed and individuals on income support through a form of delegated legislation was ultra vires the Supreme Court Act 1981. The fee had the effect of preventing certain categories of individuals who were poor from having access to the courts and thereby interfered with a presumptive constitutional right. The court ruled that such a change to the Supreme Court Act could be made only by way of primary legislation. It has been suggested that a new jurisdiction of constitutional rights has been emerging from such decisions. In M v Home Office,73 as was pointed out in earlier chapters, clear limits were placed on governmental powers in the field of immigration 71

[1995] 1 WLR 386. [1997] 2 All ER 77. 73 [1994] 1 AC 377. 72

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and asylum. A political asylum seeker on the point of being deported obtained an order from the court requiring his immediate return to the United Kingdom. The Home Secretary ignored the court order and the asylum seeker was duly deported. The minister’s actions were successfully challenged. The House of Lords held that the minister had acted in contempt of court and that injunctions were available against officers of the Crown. The courts have redefined the scope of prerogative powers exercised by ministers when these powers appear to conflict with statutory powers. As we noted in Chapter 4, the House of Lords had to decide in R v Secretary of State for the Home Department, ex parte Fire Brigades Union74 the legality of a revised compensation scheme for victims of crimes of violence which was to be introduced using the minister’s prerogative powers. The case raised significant constitutional issues. The prerogative had been used in a manner which was inconsistent with the statutory scheme, albeit not yet activated, and this decision had frustrated the will of Parliament. The judges for the majority viewed the matter as a narrow question of legality. For them, on a reading of the legislation the minister was acting inconsistently with a statutory duty. The dissenting judgments argued that the courts were overstepping the boundary and trespassing on political territory by setting aside the decision of the Secretary of State. Grounds of judicial review have been developed by the courts and potentially their effect is to constrain certain forms of conduct by public authorities. For example, the doctrine of legitimate expectation, which is based on the principle of legal certainty, not only requires public authorities to adhere to standards of fair procedure but in certain circumstances has allowed a claimant to assert a substantive right. In the celebrated case of R v North and East Devon Heath Authority, ex parte Coughlan75 a long-term quadriplegic patient who had been expressly promised a home for life by the health authority successfully challenged a subsequent decision to close the home. This breach of promise without prior consultation was held by the Court of Appeal to fall into a category of decisions which were so unfair as to amount to an abuse of power. The danger in such cases is that the courts might have the

74 75

[1995] 2 All ER 244. [2000] 2 WLR 622.

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potential to interfere with the rights of democratically elected public authorities to change their policies. PART III: THE CONSTITUTIONAL PROTECTION OF RIGHTS AND THE HUMAN RIGHTS ACT 1998

As we noted in Chapter 2 the idea of positive rights was not part of the Diceyan constitution outlined in 1885. The rule of law operated on the basis that all conduct would be regarded as lawful unless it happened to conflict with a particular law. For example, UK citizens have enjoyed freedom of speech to the extent that what they uttered did not defame the reputation of another citizen contrary to the laws of libel and slander, divulge an official secret contrary to the Official Secrets Act 1989, or incite a person to racial hatred contrary to the Public Order Act 1986, and so on. In a liberal democracy as defined in Chapter 1 it is axiomatic that in a practical sense civil liberties and human rights are a prerequisite and are of central importance to the security and well-being of all ordinary citizens. Certain rights that were contested over many generations such as the universal right to vote may now appear relatively secure but the continuance of crucial rights may be under threat at any time. As the nation celebrated the 800th anniversary of Magna Carta in 2015 many judges, lawyers and academic commentators76 pointed to an impending crisis in the criminal and civil justice system that presents a direct threat to the spirit of the famous Article 39: No free man shall be seized or imprisoned or stripped of his rights or possessions, or outlawed or exiled or deprived of his standing in any other way, nor will we proceed with force against him or send others to do so except by the lawful judgment of his peers or by the law of the land’.

The imposition of courts fees in criminal cases and government cuts to the Legal Aid budget, which were justified as a money saving exercise, are not only having an impact on the sustainability of sections of the legal profession but they represent an assault on the right to a fair trial of ordinary citizens lacking the means to obtain legal representation. The Legal Aid, Sentencing and Punishment of Offenders Act 2012

76 See eg F Wilmot-Smith, ‘Necessity or Ideology’ (2014) 36(21) London Review of Books 15.

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came into force in April 2014. This piece of legislation deprives many citizens of basic access to justice. To be granted a legal aid certificate, applicants must cross three hurdles. They must first prove that their claim belongs in a category of law that is eligible for funding. Secondly, they must pass a ‘merits’ test by demonstrating that their case is serious. Thirdly, a ‘means’ test assesses income and capital. In most cases, this must be less than £2,657 gross monthly income. The upshot is that legal representation has been radically curtailed. And is now only available in family law cases where there is evidence of domestic violence. This demonstrates that the erosion of rights is on-going as part of political disagreement over such rights, and attacks on such rights need to be constantly resisted. Of course, the HRA approach requires a marked change in legal culture. This is because public authorities have been forced to comply with the Act from the time it came into force in October 2000. Any action by government or other public bodies that does not comply with the ECHR can be challenged as being unlawful. At the same time the HRA 1998 was a new departure for the UK constitution because it has the effect of incorporating the ECHR into domestic law. Prior to the enactment of the HRA 1998, the ECHR enjoyed the status of an international treaty. In the absence of any statute or domestic authority to the contrary, the courts endeavoured to interpret domestic law in a way that was consistent with the ECHR, but, in general, a citizen who considered that his or her Convention rights had been breached had to take the case to the European Court of Human Rights in Strasbourg for resolution, and this process often took in excess of five years. In contrast, the rights set out in the Convention might now be regarded as being equivalent to a domestic bill of rights. Since the Act came into force it is unlawful for a public authority to disregard an individual’s Convention rights. (The ECHR includes rights to: life; freedom from torture; freedom from slavery; freedom of thought, conscience, and religion; privacy; freedom of expression; and freedom of peaceful assembly and association.) It is stressed once again that the HRA 1998 seeks to prevent judicial supremacy from replacing Parliamentary supremacy. If the courts are called upon to determine whether primary or subordinate legislation is in incompatible with Convention rights, section 3 provides that ‘So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the

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Convention rights.’ This section confers an interpretative power which allows the courts to consider legislation and transform it by stretching its meaning, where it is possible to do so, in order to achieve Convention compatibility. This interpretative power under section 3 marks a significant shift of power from Parliament to judges, since the courts are able to rewrite sections of Acts by reading into them words that are not there, and by doing so, remove potential conflicts with the Convention. For example, in R v A (No 2)77 Lord Steyn held in respect of the Youth Justice and Criminal Evidence Act 1999 which, among other things, changed the rules for the conduct of rape trials: It is therefore possible under section 3 [HRA 1998] to read section 41, and in particular section 41(3)(c), as subject to the implied provision that evidence or questioning which is required to ensure a fair trial under Article 6 of the Convention should not be treated as inadmissible.

The judicial insertion of words has a substantial impact on the application of the section and, in consequence, on the balance between prosecution and defence in rape trials. Section 3(1) of the HRA 1998 was arguably given an even wider interpretation in Ghaidan v Godin-Mendoza.78 In this case the House of Lords interpreted the term ‘spouse’ under schedule 1 to the Rent Act 1977 to allow surviving same-sex partners to enjoy equal tenancy rights to heterosexual couples. The majority of their Lordships were mindful of achieving a correct separation between the courts and Parliament in fulfilling their interpretative obligation, and it is possible to view this case as acceptable judicial legislation: [T]he courts were interpreting existing statutory words as opposed to filling in gaps, no procedural modifications were required, there were no wideranging practical ramifications of the Convention compatible interpretation and the modification was an incremental addition to previous legislative amendments.79

The courts are not given power to invalidate primary legislation. If they find it impossible to interpret legislation in a Convention-friendly way, they can issue a declaration of incompatibility under section 4. This does ‘not affect the validity, continuing operation or enforcement’ of 77

[2002] 1 AC 45. [2004] UKHL 30, [2004] 3 All ER 411. 79 A Young, ‘Ghaidan v Godin-Mendoza: Avoiding the Deference Trap’ [2005] PL 23, at 27. 78

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the Act in question. The effect of a declaration of incompatibility is to refer the matter back to Parliament. The Act introduces a fast-track procedure for the purpose of amending any offending legislation (there have been examples of this procedure being used). After a declaration of incompatibility has been issued, section 6(2) stipulates that until such time as any offending legislation is amended it will not be unlawful for a public authority to act in a way which is incompatible with the Convention. To achieve the compatibility of prospective legislation there is a procedure at the drafting stage under section 19 requiring the relevant minister to ‘make a statement of compatibility’. VERTICAL OR HORIZONTAL EFFECT

The HRA 1998 has a ‘vertical’ effect by requiring public bodies such as government, local government, the courts, and the police in their dealings with the public to adhere to the Convention. The courts are required to determine what constitutes public functions for these purposes, and, since the Act has been in force, it has been necessary to determine how far its provisions extend. This task is complicated by the fact that the private sector frequently carry out high-profile governmental services that are publicly funded (eg, in the realms of health, education, housing, prisons, and so on). It would appear that ECHR rights are not only directly enforceable against public bodies in respect of all of their activities, but may also be directly enforceable against some private companies and organisations in respect of their public functions.80 In determining the extent to which the Act can be applied there were early indications that the courts would give a narrow definition to what constitutes a public body and such an approach could limit the scope of the Act. In Heather v Leonard Cheshire Foundation and HM Attorney-General 81 a claimant sought to argue that a decision to close one of its homes by the Leonard Cheshire Foundation, a charitable organisation, infringed Article 8 of the Convention, but it was decided that this decision was not amenable to review since the foundation was not exercising a public function. In YL v Birmingham City Council,82 a case 80

See HRA 1998, s 6(3)(b). [2001] EWHC Admin 429. 82 [2007] UKHL 27. 81

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with quite similar facts to Leonard Cheshire, the majority in the House of Lords missed an opportunity of redefining ‘function of a public nature’ in such a way as to address the obvious anomaly whereby certain categories of citizens sent by local authorities to private care homes would be denied a remedy under the HRA 1998. At this point the government stepped in to deal with the particular loophole that had arisen in YL and Leonard Cheshire: section 145 of the Health and Social Care Act 2008 provides that private bodies providing nursing and/or personal care will be performing a public function for the purposes of the HRA 1998. Section 6 of the HRA 1998 is directed primarily at public authorities, but it is clear that there are ways in which Convention rights apply ‘horizontally’ under the Act. The HRA 1998 gives no direct right to sue in the civil courts for an alleged breach of a Convention right by another individual or private company, but the courts are a public body to which the Act applies. Therefore, if an action is taken to sue in the courts on a private law matter which involves interpreting a statute affecting Convention rights, the courts are now required to interpret that statute according to section 3 in a way that is compatible with Convention rights. The same obligation attaches to the common law, which must be interpreted in a compatible manner.83 In sum, the HRA 1998 places no direct obligations in regard to the conduct of private citizens and private organisations. PROPORTIONALITY REVIEW

It is clear that the HRA 1998 establishes a new statutory type of illegality by requiring ministers and public officials at all levels to exercise their powers in ways that are compatible with Convention rights. Judicial review proceedings may be taken by victims to contest any violation of Convention rights by a public authority. The standard of review which is applied in cases involving ECHR rights is proportionality (rather than Wednesbury unreasonableness/ irrationality). In essence, the administrative court has to determine whether the interference with Convention 83 See Douglas v Hello! Ltd [2001] 2 WLR 992 and Campbell v Mirror Group Newspapers Ltd [2004] 2 WLR 1232. For example, Baroness Hale said in Campbell that the courts could not invent a new cause of action to cover types of activity not previously covered. But where there is a cause of action, the court, as a public authority, must act compatibly with both parties’ Convention rights.

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rights has been proportionate. In the first place, the proportionality test is a balancing exercise, which usually ends up deciding whether the means employed, involving interference with fundamental rights, are justified by the end, which is nearly always associated with considerations such as pressing social need, public policy, national security, or public good. Second, the court decides between competing interests (often those of an individual against those of a public authority). Therefore, it would appear that there is a danger of the court being sucked into the decision-making process itself, which should be regarded as the province of the executive (see discussion of the Prolife Alliance case below, and the divergence of views between the Court of Appeal and House of Lords). However, it might be argued that this question of proportionality is decided as a question of law, just as matters are determined under the ultra vires principle. The court decides the boundaries of discretion according to familiar grounds of judicial review; similarly, under proportionality the central issue is not the correctness of the decision or action taken by the executive branch, but simply whether the decision-maker is operating within the bounds set by the ECHR and the HRA 1998. A further point is that the approach of the courts will vary according to the ECHR Articles which are at issue, since the intensity of review will depend upon the subject matter in hand. Certain Convention rights are set out in absolute terms with no exceptions and cannot be balanced against a public interest. These are Article 2 (right to life), Article 3 (prohibition of torture), Article 4(1) (prohibition of slavery), and Article 7 (no punishment without law). On the other hand, the rights in Article 4(2), Article 4(3) (forced labour), and Article 5 (liberty and security) are subject to a long list of exceptions, while Articles 8–11 and the First Protocol of the ECHR permit a public authority to claim that the interference was necessary in the interests of a democratic society. The House of Lords confirmed that the proportionality test would apply to HRA 1998 in R v Secretary of State for the Home Department, ex parte Daly.84 The case concerned a challenge to regulations under section 47(2) of the Prison Act 1952 which affected the rights of prisoners. In this situation there was a conflict between the need to protect the rights of individuals in prison who might be exposed to regulations that could be regarded as oppressive and unnecessary, and the state having 84

[2001] 3 All ER 433.

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a legitimate interest in interfering with certain rights to ensure that prisons can be a secure and safe environment. It was pointed out by Lord Bingham that the prison population includes a core of dangerous, disruptive, and manipulative prisoners, hostile to authority and ready to exploit for their own advantage any concession granted to them. The question was whether new prison rules permitting staff to read the correspondence of prisoners when searching cells without the prisoner being present constituted a breach of Article 8 of the Convention. In a unanimous judgment the House of Lords accepted the view that the policy contained in this rule constituted a disproportionate breach of the Convention and that a prisoner should be entitled to be present when privileged correspondence is examined. Lord Steyn stated that proportionality should now be used in cases of this type. He was in no doubt that the differences in approach between the traditional grounds of review and proportionality may sometimes lead to different results: The starting point is that there is an overlap between the traditional grounds of review and the approach of proportionality. Most cases would be decided in the same way whichever approach is adopted. But the intensity of review is somewhat greater under the proportionality approach. Making due allowance for important structural differences between various Convention rights.

Proportionality operates as ‘a balancing exercise’: 1. it usually ends up deciding whether the means employed, involving interference with fundamental rights, are justified by the end, which is nearly always associated with considerations such as pressing social need, public policy, national security, or public good; 2. the court decides between competing interests (often those of an individual against those of a public authority). Significant Cases Under the Human Rights Act 1998 In the section that follows we will look more closely at a selection of cases decided under the HRA 1998 in order to consider its wider impact. Although concerning different rights and diverse policy areas such decisions demonstrate a greatly increased judicial profile in ensuring that the decision-making of government and other public bodies achieves an appropriate balance between legitimate public interests and the rights set out under the ECHR.

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Turning first to freedom of speech: R v Shayler 85 concerned a former member of the UK security services who made unauthorised disclosures of classified information that were widely reported in the press. He was subsequently charged with offences under sections 1 and 4 of the Official Secrets Act (OSA) 1989 and, in defence, claimed that his freedom of expression should be protected under Article 10(2) of the ECHR. The court was called upon to consider the weight to be given to pressing social need where national security considerations are at stake. The House of Lords approached the matter by applying the principle of proportionality. Lord Bingham stated that: ‘The acid test is whether, in all the circumstances, the interference with the individual’s convention right prescribed by national law [under the OSA 1989] is greater than is required to meet the legitimate object which the state seeks to achieve.’ Lord Bingham confirmed that ‘in any application for judicial review alleging a violation of a convention right the court will now conduct a much more rigorous and intrusive review than was once thought to be permissible’. Lord Hope stated that ‘the starting point is that an authority which seeks to justify a restriction on a fundamental right on the ground of a pressing social need has a burden to discharge … [it must] show that the legislative means adopted were no greater than necessary’, and he later commented that, ‘The restrictions must be rational, fair and not arbitrary, and they must impair the fundamental right no more than is necessary.’ It was also confirmed that there might be some cases where the national security implications were so sensitive and important as to make the matter virtually non-justiciable. In the instant case, after examining the provisions of the OSA 1989, their Lordships unanimously concluded that there were sufficient safeguards for any prospective whistle-blower built into the legislative framework. However, some of the case law has revealed a marked divergence of opinion among senior judges over the scope provided by the HRA 1998 for judicial intervention. The difference between the approach of the Court of Appeal and that of the House of Lords in the Prolife Alliance case86 provides a good example of two distinct conceptions of the judicial role. The claim involved a challenge to a decision by the BBC and other broadcasters not to transmit in Wales a party election broadcast 85

[2002] UKHL 11. R (on the application of the Prolife Alliance) v British Broadcasting Corporation [2002] 2 All ER 756, CA; R v British Broadcasting Corporation, ex parte Prolife Alliance [2003] UKHL 23, [2003] 2 WLR 1403. 86

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which had been made by the ProLife Alliance. The Alliance contended that this was in breach of its Convention rights to free speech under Article 10 of the ECHR. The broadcast used material that the broadcasters considered to be sensational and disturbing. Prior to this refusal it had been pointed out to the ProLife Alliance (as would be the case with others proposing to make election broadcasts) that a significant proportion of their programme would not comply with the relevant provisions of the Producers’ Guidelines of the BBC and the Programme Code of the Independent Television Commission in respect of matters of taste and decency. It was held by the Court of Appeal that freedom of political speech enjoyed by an accredited party at a public election, especially a general election, must not be interfered with save on the most pressing grounds. It was argued by Laws LJ that the courts owed a special responsibility to the public as the constitutional guardian of the freedom of political debate. While it was acknowledged that broadcasters enjoyed wide editorial discretion in entertainment and news reporting, it was argued that they did not have such a discretion where political free speech was concerned. The majority in the House of Lords rejected this approach, and their Lordships believed that the court had taken on the role Parliament had given to broadcasters. For example, Lord Nicholls stated: As it was, the Court of Appeal in effect carried out its own balancing exercise between the requirements of freedom of political speech and the protection of the public from being unduly distressed in their own homes. That was not a legitimate exercise for the courts in this case. Parliament has decided where the balance shall be held.

The majority concluded that there was nothing to indicate that the BBC had applied an inappropriate standard in assessing whether the broadcast was offensive. Their Lordships held that: 1. There was no challenge to the statutory or quasi-statutory requirement for exclusion of offensive material. The judgement of such matters required a value judgement by broadcasters and, by implication, not by the courts. 2. In making the decision whether to reject the programme the primary relevant consideration for the decision-maker was the power and persuasiveness of television, which still prevailed over the human rights considerations.

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3. The decision had been taken in a responsible manner with account taken of the implications for freedom of speech. 4. Although free speech is particularly important for elections, party political broadcasts were subject to the requirement not to broadcast offensive material. Lord Scott contributed a powerful dissenting judgment, which explained and developed many of the points made by Laws LJ in the Court of Appeal. However, the decision of the majority places clear limits on the capacity of the courts to intervene where Parliament has set out a clear statutory framework for the determination of such issues. The Court of Appeal decision comes close to a merits review, with the court, rather than the statutory body/regulatory authority, deciding what was fit for transmission. The court had no hesitation in expressing its opinion on whether the broadcast met the relevant criteria of taste. The question comes down to whether this is the court’s prerogative, or that of the decision-maker. Another important case, on this occasion concerning religious freedom, raised the issue of the respective roles of courts and decisionmakers in R (on the application of SB) v Head teacher and Governors of Denbigh High School.87 The United Kingdom has a general policy of multiculturalism which gives religious communities scope to wear dress associated with their beliefs. Denbigh High School in Luton is situated in a locality with a high proportion of Muslim students (about 80 per cent) and the school had a uniform policy for Muslim students which included a headscarf and coverage of the arms. The case arose because an Islamic student changed to a type of Islamic belief which required the wearing of a jilbab (full-length dress covering the arms). This was not acceptable to the school, and she was not allowed to attend school wearing this form of dress. In her claim for judicial review it was argued that there had been a violation of her right to manifest her religious beliefs under Article 9 of the ECHR. In other words, the school as a public body under section 6 of the HRA 1998 was, it was argued, acting unlawfully by not respecting her right to express her religious beliefs in this way.

87 [2005] EWCA Civ 199, [2005] 2 All ER 396, [2006] UKHL 15; see T Poole, ‘Of Headscarves and Heresies: The Denbigh High School Case and Public Authority Decision-making under the Human Rights Act’ [2005] PL 685.

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Could the HRA 1998 be used to gain legal recognition of this right by challenging the process of decision-making by the school? Although the administrative court rejected her claim, the Court of Appeal found against the school. In the leading judgment, Brooke LJ suggested that the school should have taken the decision by employing a legal test of proportionality in forming its policy. Lord Bingham, giving the leading judgment in the House of Lords, entirely rejected the approach adopted by the Court of Appeal. He explained that proportionality is a test to be applied by the court when reviewing decisions by public authorities after the decision has been taken. The obligation under the HRA 1998 lies in relation to formulating the substance of a policy, which needs to be Convention compatible, but public authorities (eg schools) need not themselves adopt a proportionality approach to their decision-making process.88 Further, not only was his Lordship unable to find Strasbourg authority for following the sort of reasoning process laid down by the Court of Appeal, but he also believed that such an approach would introduce ‘a new formalism’ and be ‘a recipe for judicialisation on an unprecedented scale’. In situations of this kind, it is the practical outcome that matters, not the type of the decision-making process that led to it. The school in laying down its rules, which were acceptable to and developed in consultation with mainstream Muslim opinion, had acted in an ‘inclusive, unthreatening and uncompetitive’ way.89 From a constitutional standpoint a contrast can be drawn between a policy approach in the UK accepting multiculturalism manifested in school dress codes which is confirmed in such judicial decisions as the Begum case and the position in France, which has a secular state under Article 2 of the Constitution. This provision allowed a controversial law to be introduced in 2004 banning the wearing of headscarves and other conspicuous religious symbols in French state schools.90 88

Poole, above n 87, 690. Some doubts over aspects of the policy were expressed in a thoughtful partly dissenting judgment by Baroness Hale. 90 Loi no 2004-228 of 15 March 2004. Supporters of the French ban argued that this new law was necessary to uphold the constitutional commitment to secularism, while opponents have viewed the 2004 law as a veiled attack on the Islamic community and more generally on the right to manifest religious beliefs. See, eg, S Mancini and M Rosenfeld, ‘Unveiling the Limits of Tolerance: Comparing the Treatment of Majority and Minority Religious Symbols in the Public Sphere’, Cardozo Legal Studies Research Paper No 309, 28 September 2010. 89

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In a quite different context, the right to life under Article 2 of the ECHR has been deployed on the vexed question of resource allocation. In R (on the application of Rogers) v Swindon NHS Primary Care Trust and Secretary of State for Health,91 the backdrop was the rationing of very expensive healthcare set against the claims of individuals, now given added impetus by the HRA 1998. A decision by the health authority to limit the availability of Herceptin as a treatment for breast cancer was challenged. This new drug was regarded as an effective but very expensive option, and the case also involved alleged discrimination as there was evidence that availability under the NHS varied according to locality, which amounted to a so-called ‘postcode lottery’. The Court of Appeal held that the prioritisation of funding for treatment which provided for exceptions in unidentified circumstances was not in itself unlawful. However, they declared that the policy was unlawful in this case because the decision-maker, that is the Primary Care Trust, had not specified what the exceptional circumstances would be and they were therefore unable to justify such a policy in clinical terms. They were instructed to devise a lawful policy and at the same time the decision not to treat the patient was quashed. The decision calls into question the use of the HRA 1998 by private individuals in such circumstances. The courts are called upon to look at the question from the perspective of the individual’s private right to be treated while the health service managers have to balance the rights of the many different patients that require treatment. With limited budgets, if an excessively expensive treatment is given to one patient by order of the court it might mean that there are inadequate resources for other categories of patients with equally serious conditions.92 The so-called Belmarsh case was a landmark decision which has vividly illustrated the potential and, at the same time, the limits of the HRA 1998. The government had been accused of eroding individual rights by introducing the Anti-Terrorism, Crime and Security Act in 2001,93 which permitted the indefinite detention of foreign nationals suspected of terrorism. The challenge was mounted by a group of suspects who 91

[2006] EWCA Civ 392. Syrett, ‘Opening Eyes to the Reality of Scarce Health Care Resources?’ [2006] PL 664. 93 See A Tomkins, ‘Legislating Against Terror: The Anti-Terrorism, Crime and Security Act 2001’ [2002] PL 205. 92 K

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had been kept in Belmarsh prison for three years. In recognition of the importance of the case, a nine-judge panel of the Judicial Committee of the House of Lords (rather than the normal five judges) in A and Others v Secretary of State for the Home Department 94 overturned delegated legislation and issued a declaration of incompatibility in respect of the Anti-Terrorism, Crime and Security Act 2001. First, it was argued by the Belmarsh detainees that the derogation from the Convention under Article 15 was unlawful. This was on the grounds that the threshold test of reliance, which requires proof of public emergency threatening the life of the nation, had not been satisfied. On this point alone the judges in the House of Lords, with the exception of Lord Hoffmann, sided with the government and accepted that great weight should be given to the judgment of the Home Secretary, his colleagues and Parliament. This approach was justified because the government was called on to exercise a pre-eminently political judgement requiring the advice of the security services. Moreover, it was acknowledged that the European Court of Human Rights had taken a fairly expansive view of what could constitute a threat to the life of the nation.95 (On the other hand, it was ruled that the derogation from Article 5 did not satisfy the condition of being ‘strictly required’: see below.) Second, the House of Lords rejected the government’s contention that the discrimination in the treatment of non-nationals was allowed on the grounds that the case was a matter of immigration law, which was placed beyond the reach of the courts. The detention was not an issue decided at the point of entry, rather the detainees’ treatment was a matter of security. The court held that this group of detainees was now being regarded differently from British citizens or those with a right of abode in the United Kingdom who were suspected terrorists. Third, a related question for the court to resolve concerned the lawfulness of the scheme under the Act, which selectively allowed for the detention of foreign nationals. Lord Bingham held: Assuming, as one must, that there is a public emergency threatening the life of the nation, measures which derogate from Article 5 are permissible only to the extent strictly required by the exigencies of the situation, and it is for the derogating state to prove that that is so.

94 95

[2004] UKHL 56. Lawless v Ireland (No 3) (1961) 1 EHRR 15.

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It is a matter of established principle that aliens should enjoy Article 5 protection ‘in accordance with domestic law and subject to the relevant international obligations of the state in which they are present.’ Such protection of course includes ‘the right not to be deprived of liberty except on such grounds and in accordance with such procedures as are established by law and the right to be equal before the courts.’ Lord Hope explained that: Put another way, the margin of the discretionary judgment that the courts will accord to the executive and to Parliament where this right is in issue is narrower than will be appropriate in other contexts.

It came down to whether persons in a similar situation to the detainees were subject to preferential treatment without objective justification, and the difference of treatment was on grounds of nationality or immigration status (which are proscribed grounds under Article 14). It was reasoned by the Law Lords that if measures short of detention were sufficient to deal with suspected terrorists with a right of abode in the United Kingdom, it was not possible to maintain that such measures were ‘strictly required’ under the derogation from Article 5 for foreign nationals similarly designated in terms of threat posed. At the same time it was held that indefinite detention without trial constituted a wholly disproportionate response to the problem. In reaching this conclusion the House of Lords was, in effect, required to consider the limits of judicial deference. Lord Bingham (the senior Law Lord) assessed the respective roles of Parliament, the executive, and the judiciary and decisively rejected a distinction that the Attorney-General had attempted to draw between democratic institutions such as the Immigration Service and the courts. It was wrong to stigmatise judicial decision-making as in some way undemocratic. It is particularly inappropriate in a case such as the present in which Parliament has expressly legislated in section 6 of the 1998 Act to render unlawful any act of a public authority … incompatible with a Convention right.

Moreover, he stated: [T]he greater the legal content of any issue, the greater the potential role of the court, because under our constitution and subject to the sovereign power of parliament it is the function of the courts and not of political bodies to resolve legal questions.

It was observed above that the House of Lords issued a declaration of incompatibility under section 4 of the HRA 1998 but this, of course,

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could not nullify the legislation directly. The suspects remained in prison. However, the judicial condemnation of the legislation in such comprehensive terms prompted the government to respond. It was persuaded to replace the incompatible provisions of the Anti-Terrorism, Crime and Security Act 2001 with a revised approach to controlling terrorist suspects under the Prevention of Terrorism Act 2005 involving arguably less Draconian ‘non-derogating control orders’ and ‘derogating control orders’ issued by the Secretary of State under judicial supervision. What has been the impact of the HRA 1998? The practice of public authorities has been affected by the imposition of a duty under section 6 of the HRA 1998, which requires them to conform with the ECHR. Public bodies, including the police, prison service, Immigration Service, and the courts, have been forced to modify many of their procedures to make sure that they perform their duties in a manner which is compliant with Convention rights. Turning to the courts, the proportionality principle gives judges a more sensitive tool to consider whether the restriction of a right can be justified (are the means used to impair the right or freedom no more than is necessary to accomplish the objective?). In cases such as Prolife Alliance and Denbigh High School the courts have been cautious about straying into the territory of administrative decisionmaking by public authorities. However, in the Belmarsh case the House of Lords was willing to issue a declaration of incompatibility in a situation where it considered that fundamental rights had been contravened in a disproportionate manner. Parliament responded by amending the offending legislation. In a period where there is a perceived increase in the threat of terrorism, the HRA 1998 has not prevented repressive legislation from reaching the statute book. Most recently, for example, the Prevention of Terrorism Act 2005 allows the detention of terrorist suspects without trial for periods of up to 28 days.96 REPLACING THE HRA WITH A BRITISH BILL OF RIGHTS?

Many constitutional commentators and public law practitioners would now acknowledge that in the absence of a codified constitution the incorporation of the ECHR into domestic law under the Human 96 The Patriot Act 2001 in the United States gives enormous powers to the authorities to combat terrorism, effectively suspending important rights under the Constitution.

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Rights Act 1998 has served as an effective method of enforcing citizen rights and minority rights without handing over too much power to the judiciary.97 Nevertheless, the 1998 Act has also attracted criticism; particular reference has been made to individual cases featured in the media where suspected terrorists, asylum seekers or sex offenders have appeared to use the law, sometimes at considerable public expense, as a shield from justice.98 Moreover, on the vexed question of the blanket denial of prisoner voting rights vigorous opposition has been voiced within Parliament and expressed more generally in the press in response to Strasbourg judgments99 which require changes to UK domestic law to achieve conformity with the Convention under Article 46. The Conservative Party entered the 2010 and 2015 elections promising to repeal the Human Rights Act 1998 and adopt a British/UK Bill of Rights as a substitute. However, it will be difficult to reach any sort of consensus over a replacement and no proposal was contained in the June 2015 Queen’s speech outlining the policy of the new government. Indeed, the wide divergence of views expressed by the independent Commission on a Bill of Rights set up by the Conservative/ Liberal government which reported in December 2012100 mirror the disagreements over rights protection across the wider community, and also within the main political parties. A majority of this Commission were prepared to support the principle of a British Bill of Rights, the assumption being that this charter of rights would incorporate and build on all of the UK’s obligations under the ECHR. No consensus emerged. Although the majority report concludes that the Convention would still be at the core of rights protection, it provides remarkably little detail on the nature of the rights that might be covered beyond existing ones. Presumably the charter would embody some general principles, including a commitment to the rule of law, an impartial judiciary and the recognition of some general values: liberty, democracy, fairness and perhaps civic duty. Without making significant substantive changes 97

See eg T Bingham, The Rule of Law (London, Allen Lane, 2010) 66ff. For example, the litigation concerning Mustafa Kamal Mustafa (Abu Hamza) which continued for eight years following an extradition request in 2004 by the USA. 99 See Hirst v United Kingdom (No 2), Application no 74025/01, 6 October 2005 and R (Chester) v Secretary of State for Justice and McGeoch v The Lord President of the Council [2013] UKSC 63. 100 The Commission on a Bill of Rights—A UK Bill of Rights?—The Choice Before Us, vols 1 & 2, 18 December 2012. 98

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there is some support for cosmetic redrafting of existing Convention rights in contemporary language and a novel element would be to introduce a link between citizen responsibilities and rights. However, there is no agreement concerning socio-economic rights. It is also significant that the Conservative Party, despite repeating its intention to repeal the HRA, is split on how to replace it and to date has not published any detailed proposals for a British Bill of Rights.101 On the other hand, minority views from the Commission favoured the adoption of a free standing British Bill of Rights and this could include taking the radical step of withdrawing from the ECHR. This approach reminds us that the key question from a technical legal standpoint is whether a British Bill of Rights would remain compatible with the European Convention and therefore allow the UK to continue with its international treaty obligations. For example, would it be possible to amend section 2 of the 1998 Act that requires a court or tribunal to take into account ECHR jurisprudence whenever it is relevant. The result of such a change would be that from then onwards Strasbourg case law would only be ‘advisory’. A replacement might also seek to qualify the interpretative role of the courts under section 3 and review the capacity of the courts to issue declarations of incompatibility under section 4. The application of section 2 has proved to be controversial. In a number of judgments the courts have tended to follow the approach taken by Strasbourg almost as if the case law was binding. In an influential judgment Lord Bingham had stated that while such case law is not strictly binding, the courts are bound: ‘in the absence of some special circumstances [to] follow any clear and constant jurisprudence of the Strasbourg Court’.102 Obviously, a complete failure to reflect the approach of Strasbourg would lead to cases being referred back to the European Court of Human Rights for final resolution. But one of the architects of the Human Rights Act, former Lord Chancellor, Lord Irvine, has argued extra-judicially that any appearance that domestic courts are directly bound by Strasbourg case law was a misinterpretation of the HRA. This is because according to section 2 the court must only take account of the jurisprudence.103 In other words, the act was drafted 101 See S Dimelow and A Young, ‘“Common Sense” or Confusion? The Human Rights Act and the Conservative Party’ (London, The Constitution Society, 2015). 102 R (Ullah) v Special Adjudicator [2004] UKHL 26, para 20. 103 See Lord Irvine of Lairg, ‘A British Interpretation of Convention Rights’ UCL, Bingham Centre, 14 December 2011 and ‘Lord Irvine: human rights law developed on a false premise’, The Guardian, 14 December 2011.

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to provide scope for autochthonous development of human rights principles within certain bounds. The Supreme Court has qualified the earlier position set out by Lord Bingham and apparently gone some way to endorsing this view. Lord Neuberger stated: This court is not bound to follow every decision of the European court. Not only would it be impractical to do so: it would sometimes be inappropriate, as it would destroy the ability of the court to engage in the constructive dialogue with the European court which is of value to the development of Convention law: … Where, however, there is a clear and constant line of decisions whose effect is not inconsistent with some fundamental substantive or procedural aspect of our law, and whose reasoning does not appear to overlook or misunderstand some argument or point of principle, we consider that it would be wrong for this court not to follow that line.104

In light of this approach and assuming that the UK remains a member of the Convention there seems to be very little point in amending section 2. Further obstacles encountered by attempting to replace the Human Rights Act concern the impact on devolution. From a legal standpoint the ECHR is directly incorporated by the 1998 devolution legislation as part of the devolution arrangements. The HRA applies in the sense that conformity with the Convention limits the legislative competence of the devolved legislatures.105 In consequence, securing changes to the HRA would require amendment of the original devolution legislation and therefore the agreement of the devolved Scottish Parliament and the Assemblies in Wales and Northern Ireland. There have been indications that a British/United Kingdom Bill of rights would be widely opposed in Scotland, Wales and Northern Ireland. Any change embarked upon without agreement carries with it far-reaching political implications. The Scottish Nationalists in particular have consolidated their position following the 2015 general election (the party has a majority in the Scottish Parliament and holds 56 out of 59 Scottish seats at Westminster). The party not only objects to any watering down of rights protection, but also shows no sign of consenting to the imposition of a charter of rights drafted by a Conservative Government at Westminster. At the same time, the Belfast peace agreement in Northern Ireland, already showing signs of fragility, is founded upon

104

105

Manchester City Council v Pinnock [2010] UKSC 45 at para 48. See Scotland Act 1998, s 29(2)(d).

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the incorporation of the ECHR and the availability of remedies for any breach of the Convention. Lastly, it should be clear from the discussion earlier in this chapter that the domestic courts employing the proportionality principle under the Human Rights Act have developed an impressive body of jurisprudence concerned with rights protection alongside the common law. The upshot is that no credible replacement British or UK Bill of Rights could simply revert to the pre Human Rights Act era without profound consequences. Rather, the challenge is to extend protection in the face of contemporary threats to citizen rights. Certainly, any attempt to withdraw from the Convention would undermine the UK’s international reputation and single the country out in Western Europe as a pariah nation. CONCLUSION

Against a backdrop of the manifest limitations in parliamentary scrutiny of primary legislation and delegated legislation and the ever-increasing powers handed over to the executive, we have seen in this chapter that judicial review has emerged as one important counterweight to executive dominance, with a growing recognition of the role of the courts. The jurisdiction under the HRA 1998 and the devolution legislation represent a further shift of power to the judiciary, who must now adjudicate on alleged breaches of Convention rights, inter-governmental disputes, and the validity of legislation emanating from the Scottish Parliament and the Northern Ireland Assembly. In turn, this much higher judicial profile raises a number of further and, as yet, unresolved issues about the role of the courts at the highest level. It may be widely accepted that these developments have resulted in a significant ‘constitutionalisation’ of public law, but there is much less agreement on whether the Supreme Court should also act as a constitutional court, in the sense of being able to determine the limits of powers under the constitution. Certainly, it would be a drastic step to dispense with the core principle of parliamentary sovereignty and allow the courts to invalidate legislation. The courts are not directly accountable, except through the appellate process. This would mean that unelected judges would have the capacity to undermine the legitimacy of decisions made by democratically elected politicians. Finally, it is doubtful whether

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members of a judiciary schooled in specialist areas of law have the training and background to equip them to act as guardians and regulators of an uncodified constitution. FURTHER READING Introduction to the Courts System Partington M, Introduction to the English Legal System 2015–2016 (Oxford, Oxford University Press, 2015). Twining W and Miers D, How to Do Things with Rules, 5th edn (Cambridge, Cambridge University Press, 2010). Supreme Court Reforms Hale B, ‘A Supreme Court for the United Kingdom?’ (2004) 24 Legal Studies 36. Le Sueur A, ‘The Foundations of Justice’ in J Jowell, D Oliver and C O’Cinneide (eds), The Changing Constitution, 8th edn (Oxford, Oxford University Press, 2015). Le Sueur A (ed), Building the UK’s New Supreme Court: National and Comparative Perspectives (Oxford, Oxford University Press, 2004). Malleson K, ‘The Evolving Role of the UK Supreme Court’ [2011] PL 754. Woodhouse D, ‘The Constitutional and Political Implications of a United Kingdom Supreme Court’ (2004) 24 Legal Studies 134. Judicial Review and Administrative Law Bamforth N, ‘Courts in a Multi-Layered Constitution’ in N Bamforth and P Leyland (eds), Public Law in a Multi-Layered Constitution (Oxford, Hart Publishing, 2003). Craig P, Administrative Law, 7th edn (London, Sweet & Maxwell, 2012). Elliott M, ‘Ombudsmen, Tribunals, Inquiries: Refashioning Accountability Beyond the Courts’ in N Bamforth and P Leyland (eds), Accountability in the Contemporary Constitution (Oxford, Oxford University Press, 2014). Fredmann S, ‘Adjudication as Accountability: A Deliberative Approach’ in N Bamforth and P Leyland (eds), Accountability in the Contemporary Constitution (Oxford, Oxford University Press, 2014).

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Griffith J, ‘The Political Constitution’ (1979) 42 MLR 1. Griffith J, The Politics of the Judiciary, 5th edn (London, Fontana, 1997). Harlow C and Rawlings R, Law and Administration, 3rd edn (Cambridge, Cambridge University Press, 2009). Leyland P and Anthony G, Textbook on Administrative Law, 7th edn (Oxford, Oxford University Press, 2012). Loughlin M, Sword and Scales: An Examination of the Relationship between Law and Politics (Oxford, Hart Publishing, 2000). Stevens R, ‘Government and the Judiciary’ in V Bogdanor (ed), The British Constitution in the Twentieth Century (Oxford, Oxford University Press, 2003). Wade W and Forsyth C, Administrative Law, 11th edn (Oxford, Oxford University Press, 2014). Civil Liberties and the Human Rights Act 1998 Amos M, Human Rights Law, 2nd edn (Oxford, Hart Publishing, 2014). Ewing K, ‘The Futility of the Human Rights Act’ [2004] PL 829. Gordon J and Klug F (eds), European Human Rights Law Review, Special Issue: 10 Years of the Human Rights Act [2010] (6) EHRLR 551. Irvine of Lairg, Lord, ‘The Impact of the Human Rights Act: Parliament, the Courts, the Executive’ [2003] PL 308. Kavanagh A, Constitutional Review under the UK Human Rights Act (Cambridge, Cambridge University Press, 2009). O’Cinneide C, ‘Human Rights and the UK Constitution’ in J Jowell, D Oliver and C O’Cinneide (eds), The Changing Constitution, 8th edn (Oxford, Oxford University Press, 2015). O’Cinneide C, ‘Legal Accountability and Social Justice’ in N Bamforth and P Leyland (eds), Accountability in the Contemporary Constitution (Oxford, Oxford University Press, 2014). Tomkins A, ‘Readings of A v Secretary of State for the Home Department’ [2005] PL 259. Wadham J, Mountfield H, Prochaska E and Brown C, Blackstone’s Guide to the Human Rights Act 1998, 6th edn (Oxford, Oxford University Press, 2011). Young Alison L, ‘Accountability, Human Rights Adjudication and the Human Rights Act 1998’ in N Bamforth and P Leyland (eds), Accountability in the Contemporary Constitution (Oxford, Oxford University Press, 2014).

8 Devolution and Local Governance

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Power Sharing – Barnett Formula – West Lothian Question – Intergovernmental Relations – Referendums – Participation – Rate Capping – Stakeholders – Competitive Tendering – Elected Mayors – Accountability Mechanisms – The Big Society – General Power of Competence INTRODUCTION

T

HIS CHAPTER EXAMINES the relationships between central government and the layers of devolved, regional, and local government charged with governing at a local level. Until the introduction of devolution the United Kingdom could be categorised as a centralised unitary state. However, the devolution legislation, which was introduced in 1998, conferred varying degrees of decision-making authority on Scotland, Wales, and Northern Ireland, and a Mayor and Assembly for London have also been introduced. The effect of these changes has been to set up a new set of democratically elected bodies and to confer substantial powers on devolved legislatures and executives. It will soon be apparent as the extent and implications of these reforms are discussed that the constitutional balance between central government and the regions has been significantly modified. In fact, the unequal treatment of England prompted the Westminster government to first attempt in 2004 to introduce a form of English regional government and recently to impose restrictions on the voting rights of non-English MPs (discussed below). Devolution has changed the face of UK politics with the emergence of the Scottish Nationalists as the dominant party in Scotland as well as creating a new constitutional

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dynamic. Not only have changes been made to the original scheme created in 1998, particularly in relation to Wales, but also the Independence Referendum in 2014 demonstrated that the Scottish electorate believed that devolution in Scotland had not gone far enough. The result will be the devolution of more competences to the Scottish Parliament together with considerable tax-raising powers.1 An underlying tension between devolution of power and the centralisation of power can be identified. If the UK trends in devolution and regional government are viewed from a wider European angle, the principle of subsidiarity set out in the consolidated version of the Treaty of the European Union (TEU) can be regarded as having farreaching significance in encouraging decentralisation and regionalism. Article 5.3 states that: Under the principle of subsidiarity in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional level and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.

Article 5.4 provides that ‘Under the principle of proportionality the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties’. Subsidiarity addresses the difficult question of what is best achieved in the application of European law and policy at European level, and what is best achieved at national level, but the principle is not prescriptive of the internal organisation of member states. Indeed, subsidiarity is not clearly defined and has been interpreted in different ways by different nations.2 For example, the UK Government interpreted Article 3B of the original TEU as representing decentralisation in the sense of power being exercised at the level of the nation state in seeking to achieve Community objectives. The Germans saw the principle applying to a federal system with Community objectives being implemented at the level of the individual states (which are called Lander). Notwithstanding these differences, the crucial point is that subsidiarity has legitimised claims for decentralisation in Europe. As one commentator puts 1

See Scotland Act 2016. P Craig and G de Búrca, EU Law: Text, Cases and Materials, 2nd edn (Oxford, Oxford University Press, 2002) 127ff. 2 See

Introduction 245

it: ‘No longer must arguments be made for the devolution of power from the nation-state. Instead the nation-state itself must defend its legitimacy against claims from communities demanding greater controls over decision making.’3 Also, the EU has been influential in encouraging devolved and regional government in a different context, namely, the capacity for the regions to be eligible for EU regional funding. To put it simply, it might appear that there has been a momentum building up giving rise to the weakening of the nation state, and a consolidation of the position of the EU, which has had the effect of promoting the cause of devolved forms of government. At the same time, a wider trend towards recognition of smaller nation states in Eastern Europe has been encouraged by the collapse of the Soviet Union in 1991 and the resurgence of nationalism. Despite the fact that varying degrees of power were conferred on the devolved institutions in Scotland, Wales and Northern Ireland as part of devolution, it would be a mistake to underestimate the continuing role of central government. In a formal sense the Westminster Parliament retained sovereignty, and, until recently, control over the financing of devolution (see below). Another feature of devolution has been the limited amount of litigation relating to the powers allocated. This is partly because the arrangements have been co-ordinated by a network of soft law agreements between Whitehall and the devolved administrations, called concordats. If we turn to local government, we find a different picture. Local government operates under powers granted by Parliament under statute. Far from extending the autonomy of local authorities, we will see that legislation has been introduced by governments of both Conservative and Labour persuasions to constrain the activities of local authorities and to rein back their spending powers. The effect of these policies has been to concentrate power at the centre. Local government has been in decline. Public involvement in the political process at a local level has atrophied, with turnouts at local elections dropping to extremely low levels. Recent governments have partially responded with attempts to encourage wider participation by introducing new models for decision-making by local councils, and by setting up more transparent accountability mechanisms. 3 J Hopkins, Devolution in Context: Regional Federal and Devolved Government in the European Union (London, Cavendish, 2002) 29–30.

246 Devolution and Local Governance PART I: DEVOLUTION BACKGROUND TO DEVOLUTION

Devolution has been the preferred form of government in Northern Ireland since the partition of Ireland in 1922, but it became an important political issue for the UK as a whole in the 1970s. Support for the Scottish Nationalist Party (SNP) had risen between 1964 and 1974, and the Welsh Nationalist Party also emerged as a force in domestic politics. However, the original devolution legislation for Scotland and Wales introduced by the Labour government of 1974–79 failed to attract the popular support in referendums required for its implementation. Subsequently, the Conservative Party was in government for 18 years. During this period political power was concentrated at Westminster, and South-East England boomed economically. This success was perceived to be at the expense of Scotland, Wales, and the English regions, which resulted in a build-up of pressure for change. There was a spectacular decline in political support for the Conservatives in Scotland and Wales, and the party failed to win a single Scottish or Welsh parliamentary seat at Westminster in the 1997 General Election. In 1997 the Labour Party was elected with a manifesto commitment to introduce devolution for Scotland and Wales. Labour also promised a directly elected Mayor and Assembly for London. Legislation was introduced immediately in the form of the Scotland Act (SA) 1998, and the Government of Wales Act (GWA) 1998. The electors of Scotland and Wales were required to approve the legislative measures passed by the Westminster Parliament in order for devolution to be put into effect, and referenda were successfully held in 1998. In contrast, the new form of devolution for Northern Ireland was intended to settle the conflict between the main communities. It was based on the ‘Good Friday’ peace agreement reached in April 1998. Devolution was introduced following a referendum on this agreement, which then formed the basis of the Northern Ireland Act (NIA) 1998. Devolution was not part of a grand constitutional design; rather the approach in each case needs to be understood in relation to the distinct history of each nation. Scotland has been united with England since the Act of Union of 1707, but aspects of the system were not fully integrated. For example, Scotland retained its own legal system and different system of education. In contrast, Wales is closely linked to England,

Devolution 247

for example, through the Act of Union of 1536, sharing institutions (except certain quangos) but with a strong separate cultural identity and language. Northern Ireland has two distinct and conflicting traditions that the power-sharing system seeks to reconcile. The extent to which power has been devolved varied markedly with each statute. The devolution legislation has produced an asymmetrical distribution of powers because the extent of the powers given to the Scottish Parliament and the Assemblies in Wales and Northern Ireland are different. The handover of power from Westminster to the devolved executives was relatively straightforward. The smooth transition was possible because, for the most part, the functions previously administered by the Scottish Office, Welsh Office, and Northern Ireland Office were conferred on the devolved executives, and the civil servants from central government formed the core administration as part of the new scheme. Moreover, the mechanisms of accountability that have been set in place as part of devolution are in several ways different from those at Westminster. The Labour government sought to bring democracy closer to the people by introducing these reforms. The devolution arrangements not only provide the electorate in each nation with the right to vote on the basis of proportional representation, but each piece of legislation introduces its own brand of democratic institutions and processes. SCOTTISH DEVOLUTION

The strongest support for devolution has been in Scotland, which has its distinct system of law, education, and church allied to a tradition of nationalism, with a minority seeking independence. In the wake of the discovery of reserves of oil and gas offshore in the 1960s, nationalists in the 1970s maintained that Scotland could claim economic selfsufficiency. The cause of nationalism has been further reinforced by UK membership of the European Union. A case has been made for an independent Scotland within Europe, which would not only expect to reap the benefits of EU funding provision, but would also be protected from the imposition of tariffs from England. Furthermore, an independent Scotland would possess a veto in Europe, which could be used if its interests were threatened. The Republic of Ireland served as a model of a successful small independent state, which had managed to establish itself within the EU. The Kilbrandon Commission, which reported in

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1973, recognised that the system of government was over-centralised and recommended an elected assembly for Scotland and a lesser form of legislative devolution for Wales. The SA 1998 conferred more powers than the other original devolution statutes. Scotland acquired a Parliament rather than an Assembly that was empowered to pass primary laws but this power was limited to matters within the scope of its legislative competence. Functions conferred on the Scottish Parliament and Executive included from the outset: education, law, courts, prisons, judicial appointments, economic development, agriculture, fisheries, local government, the environment, housing, passenger and road transport, forestry, and the arts. In the wake of the 2014 referendum on independence the list of competences has been significantly expanded.4 The Scottish Parliament assumes all powers in relation to the holding of elections at devolved level and for local government in Scotland. The additional list of powers devolved to the Scottish Parliament is headed in importance by the devolution of Welfare benefits which means the Scottish Parliament will have autonomy in determining the structure and value of existing benefits or of any new benefits which might replace them. Further, the Scottish Parliament will take over responsibility for the support for the unemployed. In addition, certain powers in relation to energy efficiency and fuel poverty will be transferred to Scotland. In the domain of broadcasting there will be a formal consultative role for the Scottish Government and Scottish Parliament in reviewing the Charter under which the BBC operates and in appointments to and the setting of strategic priorities for the broadcasting regulator OFCOM. Other areas where additional powers will be devolved include consumer advice and advocacy, rail franchising, roads and onshore oil and gas extraction.5 Matters reserved for Westminster are listed in some detail in the 1998 Act.6 This provision means that the interpretation of the SA 1998 under section 29(2)(b) is important constitutionally, since it provides that a matter is outside the competence of the Scottish Parliament if it relates to any of these reserved matters. If this section were to be given a narrow definition, it would restrict the Scottish Parliament’s legislative capacity. Originally the Judicial Committee of the Privy Council 4

See Scotland Act 2016. Scotland in the United Kingdom: An enduring settlement, January 2015, Cm 8990. 6 SA 1998, sch 5. 5 See

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was required to determine whether the Scottish Parliament enacted legislation outside its powers, and it was empowered to set aside such legislation.7 However, when the Supreme Court replaced the House of Lords in 2009 it took over jurisdiction for devolution cases from the Judicial Committee of the Privy Council.8 The Scottish Parliament can determine its own procedures for passing legislation and for executive accountability. A system of subject committees has been introduced which combines the oversight function of select committees with the role of standing committees in scrutinising legislation. The additional member system selected for Scotland is based on the election of a constituency member for each of the 73 pre-existing Scottish constituencies, with a total of 56 additional regional members.9 Each elector is entitled to cast two votes, one for a constituency candidate and the other for a regional candidate. A member is returned for each constituency on the basis of first past the post, and the additional member system operates on a top-up basis which allows a party that has won disproportionately fewer seats in relation to their overall level of support to be allocated additional seats from the party list of candidates. The system is designed to make sure that the outcome will be approximately proportional to the popular votes cast for each party. The Scottish system of devolved government has a single-chamber Parliament of 129 members (MSPs), which normally meets for a fouryear term. Following an election to the Scottish Parliament, a government is formed after Parliament has nominated a Scottish First Minister.10 If MSPs cannot agree on a suitable candidate as First Minister, the Parliament’s Presiding Officer is required to enter into negotiations with the parties to facilitate the selection of a candidate. After a nomination has been accepted the First Minister is empowered to appoint ministers from the MSPs to form a Scottish Executive. The executive is roughly equivalent to the Cabinet, and the ministerial appointments are made subject to formal approval by the Queen. The First Minister and Scottish Executive are directly accountable to the Scottish Parliament for the policies pursued by the devolved administration. 7

SA 1998, s 98, sch 6. Constitutional Reform Act 2005, s 40, sch 9. 9 SA 1998, ss 5–8. 10 SA 1998, ss 45 and 46. 8

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Scottish Legislation The Scottish Parliament can pass primary legislation in areas within its legislative remit.11 Bills can originate from ministers (executive bills), MSPs (members’ bills), or parliamentary committees (committee bills). The process is designed to be open and participatory with a formalised process of pre-legislative consultation. The first parliamentary stage allows discussion by the full Parliament of the general principles of a Bill. The second stage is designed to provide detailed scrutiny. The Bill is normally referred to the relevant subject committee, which takes evidence as the ‘lead’ committee (eg from Scottish ministers and officials) and then compiles a report. Unlike the standing committees at Westminster (see Chapter 5), these specialist subject committees, which are formed for each main policy area, perform an important role in regard to the passage of legislation, as well as being responsible for scrutinising the executive. At the third stage, the full Parliament decides whether to accept or reject the final amended version of the Bill. Although not part of the SA 1998 or parliamentary rules, it was agreed as part of the new arrangements that the UK Parliament would not normally legislate in areas devolved to Scotland without the consent of the Scottish Parliament. This agreement, which is commonly referred to as ‘the Sewel Convention’, was considered necessary to prevent the role of the Scottish Parliament from being undermined by the Westminster Parliament. However, in practice, the situation has not worked out quite as originally envisaged, because Scotland’s Parliament and executive have regularly consented to the Westminster Parliament legislating on devolved matters, so that Westminster legislation continues to be of importance in relation to certain devolved areas of competence. Despite the number of Sewel motions in terms of its overall output, the Scottish Parliament has still produced a substantial amount of ‘home grown or self-generated legislation.’12

11

SA 1998, ss 28–39. Page, ‘A Parliament that Is Different?’ in R Hazell and R Rawlings (eds), Devolution, Law-making and the Constitution (Exeter, Imprint Academic, 2005) 12. 12 A

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Finance and Tax Raising In its original form devolution failed to link spending with revenue raising at devolved level. The conferment of tax-raising powers on a Scottish Parliament had featured prominently in the discussion that preceded the introduction of the legislation. The referendum in Scotland to approve devolution had a second question, asking for the endorsement of a Parliament with tax-raising powers. Despite the attention devoted to this issue when devolution was under discussion, the financial powers actually conferred by the SA 1998 were limited, never used and have since been abolished.13 The £14 billion budget allocated by Westminster in 1998 was calculated under the block grant Barnett formula (explained below) dating from the late 1970s, which takes account of equivalent spending levels in England for the devolved functions, but Scotland has been granted under the formula a higher percentage (10.34 per cent) per member of the population to allow generously for the economic circumstances then prevailing. The Scottish Budget has risen significantly with the total amount for the tax year 2015–16 calculated at £37.5 billion, including some locally raised taxes available under the Scotland Act 2012.14 The Calman Commission, which was established by the Scottish Parliament and UK government in 2007 to review devolution nearly 10 years after its introduction, recommended the abolition of variable income tax and its replacement with a new Scottish rate of income tax.15 The main changes included in the SA 2012 have been overtaken by events and the financial powers about to be introduced under the Scotland Act 2015 will go considerably further on the path to granting Scotland a high degree of fiscal autonomy. The 2012 Act would have provided that the rates of income tax set annually by the United Kingdom government would be reduced for Scotland by 10p in the pound. At the same time the Scottish Parliament would levy a single rate of income tax to apply in Scotland in addition to the UK rate.

13 See Part IV, Scotland Act 1998 and the Scotland Act 2012 which sets out a new legislative framework repealing the Scottish Variable Rate. 14 Scottish Budget: Draft Budget 2015–16, The Scottish Government, Edinburgh 2014. www.gov.scot/Publications/2014/10/2706/downloads. 15 Calman Commission, Serving Scotland Better: Scotland and the United Kingdom in the 21st Century, Final Report, June 2009.

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The Scottish Parliament could choose a 10 per cent Scottish rate (which would restore the overall rate of income tax back to the levels for the rest of the UK) or it could choose a higher or a lower rate. If spending by the Scottish government increased beyond present levels the block grant allocation from Westminster would be reduced and the difference made up by raising the rate of the Scottish income tax. Although Scotland would continue to receive a block grant from Westminster, the Calman Commission looked beyond the Barnett formula to its replacement by a new needs-based block grant that would be determined by a UK Funding Commission operating at arm’s length from the treasury.16 Not only is the Scottish Parliament now also able to borrow money and raise revenue via other local taxes but also, following the introduction of the post referendum legislation in 2016, a significant proportion of Scottish revenue will be raised post 2016 via a Scottish income tax and from receipts from value added tax collected in Scotland. These changes introduce for the first time the substantial link between spending and revenue raising which was previously missing. Certainly, it will take some time for the full impact to feed through the system. In one study Fiscal Affairs Scotland has estimated that Scotland could have a large deficit after full fiscal autonomy is devolved.17 More spending in Scotland will now translate into higher taxes. According to one leading economist: There is only one way in which the Scottish government’s new freedom to vary income tax can be exercised, and that is to raise it. That was not what the supporters of devolution had in mind when they asked for additional powers.18

The 2014 Referendum: Independence for Scotland? In the elections for the Scottish Parliament held in May 2011 the Scottish Nationalists won an overall majority.19 This result and the subsequent 16

Ibid, Recommendations 3.1–3.7. ‘Scotland’s Fiscal Balance position: Better or worse off under Independence as part of the UK?’, Fiscal Affairs Scotland, August 2014. 18 J Kay, ‘Income tax in Scotland can only go up if new powers are exercised’ Financial Times, 3 December 2014. 19 J Curtice, ‘Put Out by the Count’, The Scotsman, 8 May 2011. 17 See

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consolidation of support for the SNP in the May 2015 general e lection has changed the political landscape in Scotland and at Westminster not only because it shows the unpopularity of the other parties at the ballot box, but because in Scotland’s unicameral system, the SNP is left in a dominant position in the Scottish Parliament and it is able to pass legislation notwithstanding opposition objections. The dominance of the SNP in Scotland also created an interesting dilemma over independence for the party. The SNP has been committed to independence and it therefore promised to hold a referendum on independence at the first opportunity but under the Scotland Act 1998 the right to call a binding referendum on independence lay with the Westminster government. Nevertheless, it was this unexpected electoral success, indicating a clear mandate in Scotland for an independence referendum, that prompted the UK government to enter into direct negotiations with the Scottish Government on the holding of such a referendum. The principle of a binding Scottish referendum was then conceded by Prime Minister Cameron on behalf of the Westminster coalition government. The vote for or against independence exposed the nation to the genuine risk of constitutional disintegration but, equally despite the electoral success of the SNP, surveys repeatedly suggested that there was no majority in Scotland in support of independence and a decisive rejection after a full debate might stem the incoming tide of nationalism.20 At the same time, the economic case for independence remained unclear. Would an independent Scotland be able to retain the pound? What remaining oil revenue would be available to a Scottish Exchequer after independence? The SNP were keen on leaving the UK but were intent on joining the EU as an independent nation state without any assurance that this would be possible. Further there was no consensus amongst those in favour of independence about what independence should amount to in practice. For example, would an independent Scotland keep the Queen as head of state and the same defence arrangements? A national discussion in Scotland ranged over this series of crucial, and, at the same time, controversial issues with the prospect of independence adding to the intensity of the debate. Both unionists and nationalists shared a belief in Scotland’s nationhood but unionists clung for the time being at least 20 See also P Leyland, ‘Referendums, Popular Sovereignty, and the Territorial Constitution’ in R Rawlings, P Leyland and A Young (eds), Sovereignty and the Law (Oxford, Oxford University Press, 2013) 153ff.

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to the idea that national aspirations could be reached within the United Kingdom. Turning next to the result, in response to the question: ‘should Scotland be an independent country?’, in statistical terms 2,001,926 voted to remain part of the Union by registering a ‘No’ vote, while 1,617,989 voted in support of independence with a ‘Yes’ vote. Although at one stage opinion polls suggested the campaigns were close, this outcome amounted to a decisive margin of 55.3 per cent against with 44.7 per cent in favour. The turnout of 3.6 million comprising 84.6 per cent of the electorate was very high by UK standards and it included many 16 and 17 year olds who were able to vote for the first time. Against the backdrop of falling participation in elections the referendum was viewed by many commentators as a victory for the democratic process because of the high turnout and the sophistication of the debate.21 Moreover, the bare statistics do not reflect the additional demands for autonomy which were integral to the popular mood of the campaign. Mainstream politicians from all three major national parties signed up to ‘The Vow’—a promise of additional powers for Scotland. In the immediate aftermath of the vote the all-party Smith Commission was set up to assist in its implementation by way of legislation and the nature of these powers is discussed above.22 Furthermore, the political consequences have been profound. Scottish First Minister Alex S almond resigned despite the strength of the nationalist campaign he fronted, to be replaced by his deputy Nicola Sturgeon, but the main development has been the continued sharp decline of the other major parties in Scotland, particularly the Labour Party, as evidenced by the result of the May 2015 election leaving them each with a single MP. On the other hand, the SNP advanced from 18.9 per cent of the vote and 6 seats in 2010 to 50 per cent of the popular vote, winning 56 out of the 59 Westminster seats in Scotland.

21 J Stanton, ‘Democracy and Scotland: Turning out for something special’ UK Const L Blog, 19 November 2014. 22 For a wider overview see: House of Lords, Select Committee on the Constitution, ‘Proposals for the devolution of further powers to Scotland’, 10th Report of Session 2014–15, 24 March 2015.

Devolution 255 WELSH DEVOLUTION

After the Act of Union of 1707 which combined the English and Scottish Parliaments, Scotland retained a distinctive legal system, educational system, and church. By way of contrast, Wales has been closely integrated with England for the purposes of law and administration since the late Middle Ages. Welsh nationalism has been inspired by a desire to see formal recognition of the Welsh national identity, language and cultural heritage, rather than being built upon distinctive institutions of law and administration. Although there has been strong nationalist support in some areas, it was not easy to muster a majority in favour of devolution. The referendum in 1998 with a 50.1 per cent vote in favour only just achieved the majority required for the provisions of the GWA 1998 to be activated (the 1978 referendum demonstrated minimal support for devolution). The electoral system for Wales is similar to that introduced in Scotland.23 The GWA 1998 set up a single-chamber Assembly for Wales, consisting of 60 members. It must be elected every four years. There is one member for each of the 40 Welsh constituencies (identical to the constituencies for the Westminster Parliament), and four for each of the five Assembly electoral regions. The method used is a mixture of simple majority and proportional representation. Each elector is given two votes. Assembly members for each constituency are returned by simple majority, while the four Assembly members for each region are returned under an additional member system of proportional representation. The Welsh Assembly is required to form policy and take decisions in its particular areas of responsibility, and through its subject committees it is responsible for executive scrutiny. However, the Welsh Assembly does not have the power to pass primary legislation. Since the introduction of devolution there have been calls to give the Welsh Assembly the power to pass laws (see GWA 2006 below), but to date it has been the responsibility of the Secretary of State for Wales to guide Welsh legislation through the Westminster Parliament. However, the Welsh Assembly does have the power to pass secondary legislation.24

23 24

GWA 1998, ss 3–7. GWA 1998, ss 64–68.

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The Welsh Executive has taken over by transfer orders most of the administrative functions of the Secretary of State for Wales under the GWA 1998.25 Cabinet members have the equivalent of departmental responsibility for their given policy areas. But whereas the Scottish Parliament is granted general competence, subject to the reserved matters under the SA 1998, in the case of Wales, powers are conferred in respect of particular areas of policy. The principal matters devolved are: agriculture, forestry, fisheries and food, environmental and cultural matters, economic and industrial development, education and training, health, housing, local government, social services, sport and tourism, town and country planning, transport, water and flood defences, and the Welsh language. The Assembly and executive are also responsible for many Welsh quangos (non-departmental governmental organisations, funded and appointed by government, eg Welsh Health authorities, the Welsh Tourist Board). The Cabinet style of government is formed following an election. The newly elected members of the Welsh Assembly vote for a First Secretary. Once elected, the First Secretary has the power to appoint an Executive Committee of Assembly Secretaries, which forms the equivalent of a Cabinet. The ministerial portfolios of this Executive Committee (the combinations of policy areas allocated to the individual Assembly Secretaries) determine the areas of competence of the scrutiny committees (subject committees) that are subsequently formed. The appointments to the Executive Committee may be from a single party or a combination of parties. Additional Powers for the Welsh Assembly The dynamics of devolution have been evident from the outset. It was obvious that there were shortcomings with the original system of devolution in Wales.26 Not only was there a lack of legislative power, but also the institutional arrangements did not quite work out in practice as originally envisaged. In particular, although the National Assembly of Wales was formed as a single corporate body, a de facto division 25

GWA 1998, s 22(2), sch 2. R Rawlings, ‘Hastening Slowly: The Next Phase of Welsh Devolution’ [2005] PL 824, at 825. 26

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emerged post-devolution between the Welsh Assembly government and the Welsh Assembly as representative body. The Welsh Assembly government has been recognised under the GWA 2006 as an entity separate from, but accountable to, the National Assembly. The Richards Commission was set up in 2002 to look into enhancing the powers of the Welsh Assembly and to consider changes to the electoral arrangements in Wales. The Commission27 recommended that the membership of the Welsh Assembly should expand from 60 to 80 members and that it should be elected by single transferable vote (STV) rather than the present additional member system. The Labour Party manifesto in May 2005 promised to ‘develop democratic devolution by creating a stronger [Welsh] assembly with enhanced legislative powers.’ Section 93 of the GWA 2006 was a major step towards enhancing the legislative power of, the Assembly. It granted powers to pass a form of law which was known as a ‘Measure of the National Assembly of Wales’. These ‘measures’ were enacted by first receiving scrutiny and approval by the Assembly, and then the measure being referred to the Westminster Parliament for approval by resolution of each House before being recommended as a new form of Order in Council.28 In effect, this new procedure created a special form of delegated legislation which potentially could be vetoed at Westminster. The revised procedure solved the problem of securing the passage through the Westminster Parliament of legislation required for Wales. Previously, Welsh Bills had to take their place in the queue, and then they were shepherded through Parliament by the Secretary of State for Wales.29 The revised legislative arrangements might have proved problematic if a strong conflict of wills had developed between the Welsh Assembly and the Westminster Parliament. After the 2011 National Assembly election Labour obtained a majority in the Assembly, while a Conservative/Liberal Democratic coalition government was in place at Westminster. In such circumstances the veto powers might have been exercised to rein back the Welsh Assembly, 27 Report of the Richard Commission on the Powers and Electoral Arrangements of the National Assembly for Wales (March 2004). 28 GWA 2006, s 94. Orders in Council are usually secondary legislation issued under powers in a parent Act, and they are often used for transferring powers and responsibilities. 29 R Rawlings, ‘Law Making in a Virtual Parliament: the Welsh Experience’ in R Hazell and R Rawlings (eds), Devolution, Law Making and the Constitution (Exeter, Imprint Academic, 2005).

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or the Secretary of State could have used powers granted under the 2006 Act to refuse, with reasons, to lay an Assembly Measure before Parliament. However, this problem never arose in practice because the Welsh Assembly acquired its own law-making powers. The GWA 2006 made provision for the holding of a referendum if there was support of a two-thirds majority of Assembly members to decide on granting the Assembly law-making powers. After receiving the requisite Assembly support a decisive ‘Yes’ vote of 63.5 per cent was registered in the Welsh referendum held in March 2011.30 In consequence, the Assembly elected in May 2011 was able to pass legislation relating to matters listed in Schedule 7 of the GWA 2006. In common with the SA 1998 and the NIA 1998, sections 110–115 of the 2006 Act introduces pre-legislative and post-legislative scrutiny to ensure that Assembly legislation remains within competence; in addition, however, under section 114(2) the Secretary of State for Wales may make an order prohibiting the Clerk from submitting a Bill for the Royal Assent. Wales is set to follow in the wake of Scotland in other significant respects. In line with the Silk recommendations the Wales Act 2014 paves the way for a locally raised income tax in Wales and further legislation is expected to introduce a reserved powers model of devolution (as in Scotland) which would result in all functions being devolved except those specifically listed as remaining with Westminster.31 It is highly significant that Welsh devolution is evolving to acquire greatly enhanced powers and thus more closely resemble the systems in Scotland and Northern Ireland. POWER-SHARING IN NORTHERN IRELAND

It was pointed out in the opening chapter that the culmination of the campaign for Irish home rule came after World War I and led to the formation of an independent Irish Free State in the mainly Catholic south; after first being given dominion status, the new state became the fully independent Irish Republic. For the six counties in Northern Ireland

30 Although this was a decisive endorsement the turnout in the referendum was only 35%. 31 See ‘Powers for a Purpose: Towards a Lasting Devolution Settlement for Wales’ February 2015, Cm 9020 and ‘Empowerment and Responsibility: Financial Powers to Strengthen Wales’ (Silk) Commission on Devolution in Wales, November 2012.

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the Stormont Parliamentary system of devolved government was set up by the Government of Ireland Act 1920 in order to avoid direct rule from Westminster. The arrangements conferred considerable powers to the Parliament and executive, but the method of government formation resulted in a permanent Unionist majority. The devolved government at Stormont pursued policies which were regarded as discriminatory by the Catholic minority, and the flaws in the system, particularly the under-representation of Catholics, contributed to the upsurge in violence during ‘the Troubles’ of the 1970s and 1980s. Stormont was suspended in 1972, and Northern Ireland was governed directly from Westminster, with executive functions being performed by the Secretary of State, Ministers of State, and officials at the Northern Ireland Office (see Chapter 1). The NIA 1998 was designed to restore devolved government.32 It resulted from protracted negotiations between the UK and Irish governments and main political parties which led to the Good Friday Agreement in 1998. The elements of power sharing were agreed by the parties, but the controversial question of disarmament of paramilitary elements was set to one side as a separate process to be realised in stages. The new arrangements were plagued with difficulties up until 2007. In particular, lack of progress with the disarmament process led to delays and later repeated breakdowns in the operation of devolved government itself. As well as establishing a system of devolved government, the main objective in Northern Ireland was to accommodate the deep-seated political differences between Unionist and Republican communities. Specialist watchdogs were designed to oversee the wider process of reconciliation. For instance, a Northern Ireland Human Rights Commission was set up under section 68 of the NIA 1998 to promote awareness of the importance of human rights in Northern Ireland. At the same time, the Equality Commission for Northern Ireland was established under section 73 of the NIA 1998 as an independent public body responsible for the elimination of discrimination, and also for promoting good relations between different racial groups.

32 C McCrudden, ‘Northern Ireland, The Belfast Agreement and the British Constitution’ in J Jowell and D Oliver (eds), The Changing Constitution, 6th edn (Oxford, Oxford University Press, 2007).

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A directly elected Assembly consisting of 108 members elected every four years was established in Northern Ireland.33 These members are elected by single transferable vote (STV) from 18 six-member constituencies. The Assembly is given competence to exercise legislative authority34 over those matters falling under the responsibility of the shared office of First and Deputy First Minister and the 12 N orthern Ireland government departments35 (with the possibility of taking on responsibility for other matters as detailed elsewhere in the Good Friday Agreement). The Presiding Officer of the Assembly examines proposed legislation to ensure it falls within the legislative scope of the Assembly. Legislation passed by the Assembly requires the Royal assent,36 and the NIA 1998 further provides that this law-making power should not affect the sovereignty of the UK Parliament.37 The NIA 1998 has created a unique system of compulsory powersharing at every level of decision-making to ensure joint participation by both communities in the processes of government. In order to accommodate Nationalist aspirations for a united Ireland, the system of government is linked to that of the Irish Republic. To satisfy Unionists’ fears that the union could be severed without consent there are links with the United Kingdom. The North–South Ministerial Council brings together members of the executive of the Northern Ireland Assembly and representatives of the Irish government for the purposes of cooperation on issues of common interest. The British–Irish Council is a body to consider broader mutual interests with the United Kingdom. It consists of representatives from the Scottish Parliament, Welsh Assembly, the Channel Isles, and the Isle of Man. To satisfy nationalist aspirations the need for on-going consent to remain part of the United Kingdom is built into the legislation. The Northern Ireland Assembly is

33

See Northern Ireland (Elections) Act 1998, s 1, and NIA 1998, Part II. G Anthony and J Morison, ‘Here, There and (Maybe) Here Again: The Story of Law Making for Post-1998 Northern Ireland’ in R Hazell and R Rawlings (eds), Devolution, Law Making and the Constitution (Exeter, Imprint Academic, 2005). 35 The NI government departments are: Agriculture and Rural Development; Culture, Arts and Leisure; Education, Employment and Learning; Enterprise, Trade, and Investment; Environment; Finance and Personnel; Health; Social Services and Public Safety; Regional Development; and Social Development. 36 NIA 1998, s 5(2). 37 NIA 1998, s 5(6). 34 See

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empowered to pass legislation but unlike its Scottish counterpart it has no independent tax-raising powers. Between 1999 and 2007 devolution was repeatedly suspended in Northern Ireland because of political difficulties. On each occasion the Northern Ireland office resumed executive responsibility for administration of policy. The viability of the entire process was threatened by issues that had not been fully resolved at the time of the Good Friday agreement in 1998. In particular, notwithstanding the acceptance of the institutional framework outlined above, the clash was over the decommissioning of weapons held by paramilitary organisations, a key demand for Unionists, and the devolution of criminal justice and policing which was crucial for nationalists. The situation became more favourable for reaching a settlement in 2005 as the IRA had demonstrated its commitment to peace by putting its arms beyond use. The electoral gains and consolidation of support for the more extreme Sinn Fein (SF) and Democratic Unionist Parties (DUP) in the elections of 2003, 2007 and 2011 at the expense of Social Democratic and Labour Party and Ulster Unionists changed the political dynamics by prompting direct negotiations between the more extreme parties. This made it more likely that any agreement would be fully implemented. A final attempt to resolve the conflict was jointly initiated by the Prime M inisters of the United Kingdom and the Irish Republic in 2006 which culminated in the St Andrews Agreement. The Northern Ireland (St Andrews Agreement) Act 2006 which put the agreement on a statutory footing combined a timetable for the transfer of criminal justice and policing with a timetable for the resumption of devolved government. Following elections to the Assembly, devolution resumed in May 2007 with Ian Paisley (DUP) elected by the Assembly as First Minister and Martin McGuiness (SF) as Deputy First Minister and, after prolonged negotiations, police and justice powers were devolved to a Northern Ireland Department of Justice on 12 April 2010. This department is overseen by a Justice Committee of the Northern Ireland Assembly. The fact that devolution has been uninterrupted for well over five years suggests that power sharing can work38 but some dissident Republican groups in Northern Ireland refuse to accept devolution and are still prepared to resort to violence.

38 R Wilford, ‘Northern Ireland: The Politics of Constraint’ (2010) 63 Parliamentary Affairs 134.

262 Devolution and Local Governance FUNDING DEVOLUTION

Devolution has been underpinned by a secure financial base. In essence, until the major changes in Scotland discussed above are fully implemented the methods for financial allocation of funds from central government that preceded devolution have been retained without significant modification (apart from the extra tax-raising power given to the Scottish Parliament). The funding parameters for Scotland, Wales, and Northern Ireland are determined by a ‘block and formula’ system named after Lord Barnett, who was the Chief Secretary to the Treasury responsible for its introduction. The Barnett formula has operated by setting out a ratio by which the total spending is fixed in relation to England. An overall budget is made available annually by the Westminster Parliament in each departmental field and the Barnett formula has determined the allocations for the increase or decrease in expenditure according to a ratio calculated on relative population size. In its original form for every £85 spent on English services, Scotland received £10, Wales £5, and Northern Ireland £2.75. In effect, it guarantees an amount reflecting a proportion of the spending allocated to England. For example, at the time when devolution was introduced in 1998 for every £100 of spending per head in England, £132 was spent in Scotland.39 In 1997 the government introduced an annual revision of the Barnett population weighting based on the latest population estimates for England, Scotland, Wales, and Northern Ireland. The formula relates the levels of spending by the Westminster Parliament to the amounts made available to Scotland, Wales, and Northern Ireland. Each nation has been able to count upon a consistent overall level of funding. The devolved executives are under an obligation to ensure that sufficient funds are allocated to meet statutory requirements in the main policy areas. However, that apart, there is a wide discretion in the allocation of resources, which can be diverted from one policy area to another. Scotland introduced care for the elderly and government support for students; neither of these benefits has been made available to the equivalent groups in England. Two further points should be noted. First, a general decline in population and variations in patterns of public expenditure determined by 39 N Kay, ‘The Scottish Parliament and the Barnett Formula’ (1998) 24(1) Fraser of Allander Institute Quarterly Economic Commentary 22–48.

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central government could prove detrimental to Scotland, Wales, and Northern Ireland. In view of such trends and other criticisms there have been repeated calls to review the Barnett formula, and it will almost certainly require some modification. Any comprehensive change is bound to be controversial because a review of funding introduces complex economic arguments concerning the extent to which Scotland and Wales are net contributors to the UK economy. How can the revenue from oil be offset against the expenditures for health, education, and employment? Devolution was able to function for several years without having to confront such issues directly. Second, an obvious shortcoming of devolution has been the failure to activate a link between revenue-raising, in the form of local taxation, and the political process, in the form of the provision of public services on offer. In its original form voters in the devolved parts of the UK have not seen a clear relationship between spending and the taxes they pay at a devolved level. INTERGOVERNMENTAL RELATIONS

The co-ordination of administration between central and devolved government has been managed to a large extent without resort to litigation between Westminster and devolved government but rather it has been achieved by means of a series of informal agreements, termed concordats.40 At an administrative level intergovernmental relations have required a distinct approach and devolution has been incorporated into the existing uncodified constitutional arrangements in an unsystematic and informal fashion. The process has been managed by mechanisms that exist and operate outside the legislative framework. As well as the more familiar device in the United Kingdom of conventions, concordats were drawn up at an advanced stage and amount to a form of bureaucratic law. First, there is a general Memorandum of Understanding (MOU) containing a set of principles. These include: good communication and information sharing, early warning of policy proposals, co-operation on matters of mutual interest, and rules of confi40 See House of Lords, Select Committee on the Constitution, ‘Intergovernmentalrelations in the United Kingdom’, 11th Report of Session 2014–15, HL Paper 146.

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dentiality to be applied within the workings of the post-devolutionary system of government. The MOU is supported by a (still) increasing number of bilateral and multilateral agreements (eg 20 with the Scottish executive) between the devolved executives and Whitehall departments, which have been drawn up behind the scenes by senior departmental officials. The concordats have been introduced in a way that has contributed to a lack of openness and transparency, and this in turn raises issues of political accountability. There is evidence to suggest that these agreements have been formulated in a spirit that reinforces an unequal partnership that tends to allow domination from the centre. Another dimension to intergovernmental co-operation relates to the Sewel Convention explained above. This convention was deliberately formed to recognise the respective legislative competencies of the Scottish Parliament and the Westminster Parliament. It introduced an expectation that legislation in devolved areas would be routinely enacted by the Scottish Parliament. Since devolution a great deal of Westminster legislation continues to apply in Scotland, but before Westminster legislates in these devolved areas, consent is given by the devolved administration in Scotland after a Sewel motion has been placed before the Scottish Parliament.41 THE POLITICS OF DEVOLVED GOVERNMENT

Elections are held at four-year intervals and are not triggered by a defeat on a Bill introduced by the Scottish executive. There is more freedom for individual members dissatisfied with proposals to vote against them. Such opposition might threaten the majority of a ruling coalition through the withdrawal of support over the issue under consideration, but a defeat on a policy matter does not trigger an election for the Scottish Parliament as would be the case with the loss of a vote of confidence in the House of Commons. The introduction of a proportional element to the electoral system made it difficult for any single party to obtain an overall majority in the Scottish Parliament or Welsh Assembly. After the first round of elections a coalition was required to secure the majority needed to form an administration in Scotland. The Scottish 41 A Page and A Batey, ‘Scotland’s Other Parliament: Westminster Legislation about Devolved Matters in Scotland since Devolution’ [2002] PL 501.

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Labour Party and the Liberal Democrats formed an alliance in 1999. The turnout in 2003 was disappointing compared to 1999 with only 38 per cent voting in Wales and 50 per cent in Scotland. Nationalist parties, which have lacked a clear post-devolution strategy, did badly and lost seats in both Scotland and Wales. In Scotland support for Labour and for the SNP declined in May 2003. The election was followed by protracted negotiations between Labour and the Liberal Democrats over the formation of a new Scottish government. In order to reach a deal, the Liberal Democrats secured a commitment to introduce proportional representation for local government elections in Scotland and the finance portfolio in Scotland. The coalition had a majority of only two in the Scottish Parliament, and this meant that other parties had a greater impact than previously. The Scottish Socialist Party with seven seats and the Green Party with seven seats had more potential to cause disruption to the legislative process. On the other hand, in Wales, Labour ruled as the largest minority party after the 1999 election and improved their performance in 2003 at the expense of Plaid Cymru. In 2007 it was the SNP who emerged as the largest party, forming a minority government with 46 seats and 31 per cent of the popular vote against the 44 seats from 29 per cent of the popular vote obtained by Labour. Since then the surge in support from SNP has continued. As mentioned, earlier in 2011 they obtained an overall majority in the Scottish Parliament with 69 seats and 45 per cent of the popular vote. At the devolved level there have been further trends towards greater democratisation in Scotland. For example, the Scottish Parliament passed the Local Governance (Scotland) Act 2004, which changed the method of election for local government elections in Scotland from 2007 to the single transferable vote system. After a re-drawing of local boundaries, Scottish electors return three or four local councillors per ward (local constituency). The change also means that there is a distinct method of voting in Scotland for each form of election (European: party list PR; Westminster Parliament: first past the post; Scottish Parliament: additional member system; Scottish local government: single transferable vote). Another welcome feature of devolution has been the very high ratio of women elected to the Welsh Assembly and to the Scottish Parliament. After the 2003 elections 30 women members were elected to the 60-strong Welsh Assembly, and there were 48 women out of a total of 129 MSPs.

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The Scottish Parliament and the Assemblies in Wales and Northern Ireland began work with a strong commitment to more open government, in line with a wider trend towards greater openness. The public has access to the deliberations of committees and more information is placed in the public domain, including minutes of Cabinet meetings, which are published within six weeks of a meeting. The Scottish Parliament has passed a Freedom of Information Act which goes further than its English counterpart.42 Since the introduction of devolution, Labour’s national party machine based at Westminster attempted to maintain its control in Wales, in Scotland, and in London, but without much success. For example, after the Secretary of State for Wales, Ron Davies, who was also due to become leader of the Labour Party in the Welsh Assembly, unexpectedly resigned in 1998 to avoid a scandal, Alun Michael was appointed Welsh Secretary. His subsequent selection as Labour leader in the Welsh Assembly relied heavily on strong pressure exerted from the Westminster Labour Party leadership. After losing support in the Assembly as a result of a perceived failure to stand up for Welsh interests, Michael was forced to resign as leader of the Labour group within a year, in 2000. In the 2003 elections Labour obtained a bare majority in the Welsh Assembly, which allowed the party to govern in Wales without entering into coalition deals with other parties. Under the leadership of First Minister Rhodri Morgan, the Welsh Assembly government has managed to pursue ‘Old Labour’ policies in the sphere of education and health with a marked emphasis on social justice and it has carried out a manifesto commitment to abolish Welsh quangos, including the Welsh Development Agency and Education and Learning Wales. To take another example, the student fees issue in Scotland is interesting because it has illustrated that changes in policy in Scotland have a wider impact in the United Kingdom. In defiance of Labour Party policy in England, the Scottish Parliament decided in 2001 that tuition fees for Scottish university students would be paid for by the Scottish Executive. The disparity of treatment between English and Scottish students has prompted a continuing debate about this issue south of the border. As we have observed, with the acceptance of devolution it

42 For example, s 30 of the Freedom of Information (Scotland) Act 2002 introduces a ‘substantial prejudice’ test to determine whether information will be exempted from disclosure.

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is increasingly difficult for the party machine to impose discipline on all parts of the United Kingdom from the centre. During the Thatcher/ Major era (1979–97) local government had been rigidly controlled to reduce the cost of government. Although Prime Minister Tony Blair retained the centralising instincts of his predecessors, the devolution initiative was designed to move power away from Westminster. If the impression had been conveyed that devolving power made no difference because of the intervention of central government this would have had the effect of undermining the entire initiative. Finally, the introduction of devolved government did not lead to wider calls for independence initially or to any significant advance at the ballot box for the nationalist parties in Scotland and Wales but recent opinion poll evidence suggests that support for Nationalist Parties is now increasing. RELATIONS WITH EUROPE

In an era of multi-layered governance, UK devolution has to address the issue of the implementation of EU law and relations with Europe. Europe is an important issue post-devolution. First, this is because Brussels legislates in the same fields over in which power has been devolved, for example, economic development, agriculture and fisheries, the environment, training and enterprise. Second, it is because Europe is a significant source of regional funding. Turning to the implementation of EU law, there are concurrent powers in existence post-devolution. In Scotland, Wales, and Northern Ireland, the application of EU law within the jurisdiction is made a matter for the devolved executives. The legislation further provides that where Scottish/Northern Irish ministers are empowered to use section 2(2) of the European Communities Act 1972 to implement obligations under Community law, a minister of the Crown also retains power to use section 2(2) for the same purpose. This concurrence introduces an element of ambiguity concerning compliance with EU law. It is meant to be resolved by reference to the Concordat on Co-ordination of E uropean Union Policy Issues, and European policy provides an excellent illustration of the practical application of concordats. The legislation and the concordat both emphasise that financial penalties will apply to a devolved administration for failing to meet deadlines. The UK government is ultimately responsible, in EU law, for ensuring that EU measures (eg Directives) are implemented on time.

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The EU is of great importance because it offers a potential source of funding within defined limits on a regional basis, and approximately a third of the EU’s budget is devoted to its regional policies. A basic criterion for ‘objective 1 funding’ is to promote the development and structural adjustment of the less well-off regions. It is increasingly apparent that in making such allocations the Commission favours decentralisation and subsidiarity. Decision-making is encouraged at a level as close as possible to the population that will be affected. Proposals for Scotland were approved in December 1999, and over £1 billion have been allocated for the 2000–06 period. A comparable bid for structural funding in Wales was approved by the Commission in 2000. Such funding is not only conditional on shared responsibility between the different layers of government but brings together the public and private sectors. A drawback with this EU funding is that any allocation requires matching contributions to be provided by the Treasury. The funds have to be found from existing allocations designated for Scotland and Wales (£885 million of matched funding). Further, it is the national UK government which is still ultimately responsible for negotiations with Brussels. Any such negotiations are conducted by UK rather than Scottish ministers. However, the importance of the EU to regional governance has been recognised in a number of ways. The Scottish Parliament and Welsh Assembly have moulded their institutions to respond to Europe with a European Committee in Scotland and a European and External Affairs Directorate in Wales. A Welsh European Funding Office is dedicated to the task of bidding for and overseeing the spending of European structural funding. Moreover, the case has been accepted for the Scottish Parliament and the Welsh Assembly having a representative office in Brussels. Scotland and Wales are represented as roughly equivalent European regions to the German Länder. Scotland has a representative on the EU’s Committee of the Regions. In addition, Scottish and Welsh ministers regularly attend meetings of the Council of Ministers. DEVOLUTION AND THE COURTS

The courts are required to oversee the limits of the powers conferred as part of the devolution arrangements. Although from a UK standpoint Acts of the Scottish Parliament might be regarded as a type of

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s ubordinate legislation, the SA 1998 gives the Scottish Parliament the right to pass a form of primary legislation over the areas falling under its competence. (Similar powers have been given to the Northern Ireland Assembly and the Welsh Assembly following a referendum held in 2011. See above under law-making powers of the Welsh Assembly.) Ultimately the job of policing the boundaries of the devolution legislation is given to the courts. The introduction of new procedures involves handing over a new kind of constitutional jurisdiction to judges which, in turn, has important political, as well as legal implications. Any person or body with locus standi can apply to the court for judicial review to determine ‘a devolution issue’ and this may involve the court declaring an Act of the Scottish Parliament to be invalid. The court performs this statutory role with the assistance of new interpretative rules which place judges under an obligation to read Scottish legislation and subordinate legislation so as to render any measure under consideration within the legislative competence of the Scottish Parliament. In Scotland ‘devolution issues’ concern the legislative competence of the Scottish Parliament and the extent of the competence of the devolved Scottish executive. There is a similar provision for the judicial resolution of devolution issues under the GWA 1998 and the NIA 1998. In Wales the Attorney-General can institute proceedings, for example, to determine whether a function is exercisable by the Assembly and comes within its powers, or whether the Assembly has failed to comply with a duty imposed on it. Certain safeguards are in place to prevent unlawful legislation and delegated legislation from reaching the statute book under devolution. In the first place, the SA 1998 sets express limits on the extent of the Scottish Parliament’s power to legislate. Prior to bringing legislation before the Scottish Parliament, the Presiding Officer is under a duty to ensure that legislative proposals fall within the powers conferred on the Parliament, and following Parliamentary approval, but before the royal assent is given, there is a four-week delay to allow the Scottish law officers, if they consider it necessary, to send a Bill to the Privy Council to determine whether the proposal is intra vires. It should be noted that the law officers (that is, the Advocate General, the Lord Advocate and the Attorney-General) have an important role in making sure that this function is properly discharged. Challenges to Acts of the Scottish executive or legislation passed by the Scottish Parliament can be mounted on the basis of incompatibility

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with the European Convention on Human Rights (ECHR) (as well as that of being beyond the executive’s competence). We observed earlier that in respect of English legislation the Human Rights Act 1998 recognises the sovereignty of the Westminster Parliament and only gives the courts the right to issue a declaration of incompatibility if a provision is not Convention-compliant, but any action of the Scottish Executive or legislation from the Scottish Parliament in breach of the ECHR may be invalidated. For example, not long after the SA 1998 came into force the independence of Scottish sheriffs43 was successfully challenged in Scotland as a ‘devolution issue’ in Starrs and Chalmers v Procurator Fiscal, Linlithgow 44 because it was successfully argued that as a Law Officer appointed to the Scottish Executive under section 44 of the SA the Lord Advocate’s role as prosecutor and in the appointment process of temporary sheriffs (junior judges) was in breach of Article 6 of the ECHR. Most legal proceedings in Scotland concerning devolution issues are by way of judicial review in the Court of Session. But in certain circumstances the SA 1998 allowed devolution cases to be resolved by direct reference to the Judicial Committee of the Privy Council. This jurisdiction was taken over by the UK Supreme Court in 2009.45 The Privy Council was called upon to consider the validity of Scottish legislation in a few cases. For example, in Anderson, Reid and Doherty v Scottish Ministers 46 patients at a mental hospital challenged section 1 of the Mental Health (Public Safety and Appeals) (Scotland) Act 1999 on the grounds that the legislation passed by the Scottish Parliament was incompatible with Article 5 of the ECHR. Any such Conventionincompatible legislation would have fallen outside the Parliament’s legislative competence and could therefore be declared invalid. After considering the relevant Convention jurisprudence the Judicial Committee of the Privy Council concluded that section 1 of the Scottish legislation did not infringe the claimant’s rights under Article 5 of the ECHR, and the Act remained in force.47 43 Sheriffs perform a judicial function in the lower courts in Scotland, roughly equivalent to that of magistrates in England. 44 [2000] HRLR 191. 45 See Constitutional Reform Act 2005, s 40. 46 [2001] UKPC D5, [2002] HRLR 6. 47 The distinction between reserved and devolved powers was considered by the UK Supreme Court in Martin v HM Advocate [2010] UKSC 10.

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Despite the high threshold recognised by the Supreme Court in Scottish cases (eg Axa discussed above) the legislative competence of the Welsh Assembly has been contested successfully in the courts.48 In Recovery of Medical Costs for Asbestos Diseases (Wales) Bill: Reference by the Counsel General For Wales 49 the UK Supreme Court held that provisions in a Welsh Assembly Bill which would have made insurers liable for charges payable to the Welsh Government was not ‘concerned with the organisation and funding’ of the national health service. The argument that it enjoyed a wide area of appreciation and discretionary judgment as a matter of economic and social policy was rejected. It was held that in the absence of the necessary special justification the provisions fell outside the devolved competence of the Welsh Assembly under section 108(4), (5) of the Government of Wales Act 2006. A further example of the courts determining the limits of a devolved competence under the GWA 1998 was in R (on the application of South Wales Sea Fisheries) v National Assembly for Wales.50 On this occasion the devolution issue was in regard to subordinate legislation. It was held that the South Wales Sea Fisheries (Variation) Order 200151 was unlawful, because it not only set the precise amounts of contributions by South Wales Sea Fisheries, but also imposed restrictions on this body’s discretionary powers. In essence, by adopting this Order the Assembly had been misdirected in law concerning both the membership and the funding of sea fisheries committees, and, accordingly, the Order was quashed so that the Assembly could reconsider its position. Under the GWA 2006, proposed Orders in Council can be referred by the Attorney-General for scrutiny by the UK Supreme Court.52 One of the most significant cases to date in terms of its constitutional and political implications for devolution (although not concerning a devolution issue) was Robinson v Secretary of State for Northern Ireland.53 The case arose from the failure of the Northern Ireland Assembly to 48 See in particular Lord Hope’s judgments in Axa General Insurance Limited v Lord Advocate [2011] UKSC 46 discussed above and in Imperial Tobacco v Lord Advocate [2012] UKSC 61. 49 [2015] UKSC 3. 50 [2001] EWHC Admin 1162, [2002] RVR 134. 51 SI 2001/1338. 52 See GWA 2006, s 95. 53 [2002] UKHL 32. See also B Hadfield, ‘Does Northern Ireland Need an Independent Judicial System Arbiter?’ in N Bamford and P Leyland (eds), Public Law in a Multi-layered Constitution (Oxford, Hart Publishing, 2003) 184ff.

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elect a First Minister and a Deputy First Minister within a six-week period, as required by section 16(8) of the NIA 1998. If the challenge to the election of leader and deputy leader had succeeded, it would have resulted in an immediate dissolution of the Northern Ireland Assembly followed by elections, with adverse consequences for the peace process. Lord Bingham, speaking for the majority who rejected the challenge to the validity of the election, considered that: [T]he provisions should, consistently with the language used, be interpreted generously and purposively, bearing in mind the values which the constitutional provisions are intended to embody … It is difficult to see why Parliament, given the purposes it was seeking to promote, should have wished to constrain local politicians and the Secretary of State within such a tight straitjacket.

On the other hand, the dissenting view is based upon a literal interpretation of the NIA 1998 as a statute with a high constitutional status and without regard to the wider political implications. Lord Hobhouse argued: ‘The Act does say what is to happen if the six-week period is allowed to expire. The Assembly is to be dissolved and an extraordinary Assembly election is to be held.’ The Robinson decision has drawn attention to the exposed political role of the courts under transformed constitutional arrangements. In having to finally determine the application of the NIA 1998 the House of Lords was making a decision which inevitably would have a direct bearing on the political process. The decision reached offered the possibility of keeping the Assembly and executive operating, while a finding for the other side would have prompted immediate elections at a time that appeared unfavourable for the peace process. The scope for challenge by way of judicial review of Acts of the Scottish Parliament was considered by the Inner House of the Scottish Court of Session in AXA General Insurance, Petitioners.54 After the House of Lords had ruled in English appeals that damages would not be recoverable for asbestos-related conditions the Scottish Parliament passed The Damages (Asbestos-related Conditions) (Scotland) Act 2009 to allow damages to be claimed in Scotland. In this case the validity of this legislation was called into question. The Inner House accepted that section 29 of the SA should not be interpreted as setting 54

[2011] CSIH 31.

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out an exhaustive list of the grounds of review. In delivering the leading judgment in the Supreme Court Lord Hope concurred with the view of the Inner House holding that: ‘… Acts of the Scottish Parliament are not subject to review at common law on the grounds of irrationality, unreasonableness or arbitrariness…’. He further held that … it would also be quite wrong for the judges to substitute their views on these issues for the considered judgment of a democratically elected legislature unless authorised to do so, as in the case of Convention rights, by the constitutional framework laid down by the United Kingdom Parliament.55

In consequence it can be concluded that nothing less than a ‘deliberate misuse of power’ would be sufficient to satisfy the threshold of intervention given the democratic legitimacy of the Scottish Parliament. PART II: DEVOLUTION AND ENGLAND

Devolution has changed the nature of domestic politics, but it has also reshaped the constitution by a substantial re-distribution of powers away from Westminster and by the introduction of new political and administrative institutions. In considering how much power has been given away, it will be evident that Scotland comes closest to having the powers which are often conferred under federal constitutions. The Scottish Parliament apart from presiding over an increasing number of policy areas can pass a form of primary legislation and it will soon have a significant proportion of its funding supplied by taxes raised locally. The Welsh Assembly and Northern Ireland Assembly now enjoy similar law-making powers but over slightly different policy areas. At this point we will consider how devolution brings in its wake a number of implications for England, which is not as well served by current arrangements as Scotland, Wales, and Northern Ireland. Its citizens lack a comparable level of political representation, England receives less generous funding for as long as the Barnett formula continues to apply, and devolution has an impact on pre-existing governmental and administrative organisation. In 2015 the all-party House of Lords Constitution committee put on record their astonishment: that the UK Government do not appear to have considered the wider implications for the United Kingdom of the proposals set out in Scotland in 55

AXA General Insurance Ltd v The Lord Advocate [2011] UKSC 46 at para 52.

274 Devolution and Local Governance the United Kingdom. We do not consider that it is appropriate or sustainable, to address the issue of additional powers for Scotland alone without also considering the knock-on consequences for the wider UK constitution.56

ADDRESSING THE WEST LOTHIAN QUESTION

From a constitutional standpoint, devolution has produced an inequality of political representation at Westminster, an issue sometimes referred to as the ‘West Lothian question’.57 This is because it raises serious questions about the role of MPs as members of the UK parliament. The point being that the union was traditionally built on equality whereby all members were able to vote on all matters, regardless of the territorial extent of their application, as members of a single parliamentary body.58 The introduction of a Scottish Parliament and Executive with considerable power together with equivalent bodies in Wales and Northern Ireland undermines the previously accepted notion of representative government in the United Kingdom. MPs representing English, Welsh, and Northern Irish constituencies are no longer able to vote on devolved matters in Scotland, but Scottish, Welsh and Northern Irish MPs at Westminster retain the right to vote on domestic policy for the rest of the United Kingdom. Furthermore, by the transfer of many domestic functions to the Scottish Parliament, Scottish Westminster MPs have a greatly reduced role to play in relation to their constituents. The obvious line of accountability for the devolved areas of domestic policy in Scotland is through their Scottish representatives (MSPs). Devolution has a similar effect in respect of Westminster MPs representing Welsh and Northern Irish constituencies.

56 House of Lords, Select Committee on the Constitution, ‘Proposals for the devolution of further powers to Scotland’, 10th Report of Session 2014–15, 24 March 2015, para 22. 57 Tam Dalyell, the Westminster MP representing the Scottish constituency of West Lothian, raised this issue as a question in a debate in the House of Commons on 14 November 1977, and it has since been referred to as the ‘West Lothian question’. See O Gay, H Holden and P Bowers, ‘The West Lothian Question’ SN/ PC/02586, 23 March 2011. 58 See M Russell and G Lodge, ‘The Government of England by Westminster’ in R Hazell (ed), The English Question (Manchester, Manchester University Press, 2006) 87.

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An obvious response which might appear to correct this anomaly would be to opt for a fully federal system. The case has been presented for the introduction of an English Parliament.59 Proposals for an equivalent body to the Scottish Parliament might appear to have some justification, since setting up a Parliament for England could provide the basis for addressing the glaring asymmetries relating to representation, accountability, and administration which have been raised by devolution. The proposal to create a federation would not be a good fit in constitutional terms and has manifest shortcomings. The Parliament for England would represent more than 80 per cent of the UK population. Assuming that it had equivalent powers to the Scottish Parliament, it would be dominant in relation to its Scottish, Welsh, and Northern Irish counterparts, and it would be a strong competitor to the Westminster Parliament, which would no longer have a pivotal role in relation to domestic issues. Also, an English Parliament as an additional elected political body would be expensive to introduce. A fresh cohort of politicians would be required at a time when there is already evidence of voter fatigue with existing elected political institutions. Further, the additional funding needed for an English Parliament would prompt a debate about the financial provisions on which devolution is based. In so doing, this would be likely to open up fresh controversy over the allocation of resources within the United Kingdom. In turn, such controversy might provide further impetus to the devolution process by prompting increased pressure for Scottish independence. In the foreseeable future an English Parliament is unlikely to be introduced,60 as there is a lack of the necessary support within any of the mainstream political parties, or more widely among the English electorate. A form of elected English regional government between central and local government was proposed as another distinct alternative for England by the Labour government 2001–05 as a belated response to devolution. There was some discontent with the lack of regional representation in the Northern counties of the United Kingdom, in the very parts of the nation where the benefits of devolution across the border in Scotland were being felt most strongly. In the absence of 59 www.thecep.org.uk/.

60 The issue of an English Parliament is discussed in B Dickson, ‘Devolution’ in J Jowell, D Oliver, C O’Cinneide The Changing Constitution 8th edn (Oxford, Oxford University Press, 2015) 270ff.

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any tradition of regional government the scheme envisaged by Labour would have been built upon the existing Regional Development Agencies. These bodies would have been transformed into a layer of directly elected regional government but the blueprint that emerged was for an extremely weak system not directly comparable to devolution, with no law-making powers and few functions.61 It was clear to the then government that there was hardly any nationwide political support for the initiative and, as a result, the idea was to go ahead on a region-byregion basis. To obtain approval referendums were initially planned in the North-East, Yorkshire, and the North-West, where support for regional government was believed to be at its strongest, but only one referendum was held, in the North-East region in November 2004. The regional government proposals were emphatically rejected. On a 46 per cent turnout, only 22 per cent of the local electorate voted for the government plans. The entire scheme was subsequently dropped from the political agenda and there has been no attempt to propose a nationwide system of regional government since.62 DEVOLUTION AND PARLIAMENTARY REFORM

The response to the West Lothian problem which was supported politically by the Conservative Party related to modifying the procedure for the passing of legislation concerning England. Under the EVEL procedure (explained in Chapter 5) which introduces a new committee stage for English only MPs, the right to amend and vote on Bills is restricted according to the part of the United Kingdom an MP represents. In essence, to address the apparent anomaly these new rules within Parliament limit the capacity of Scottish, Welsh and Northern Irish Westminster MPs to have an input on legislation not applying in Scotland, Wales and Northern Ireland.63 As has already been pointed out, there are obvious political difficulties with introducing such a resolution at Westminster. It undermines the role of Westminster as a national parliament for the United 61

Your Region, Your Choice: Revitalising the English Regions, Cm 5511 (2002). P Leyland, ‘Post Devolution: Crystallising the Future for Regional Government in England’ (2005) 56 Northern Ireland Legal Quarterly 435. 63 See M Keating, ‘The UK as a Post-sovereign Polity’ in M O’Neill (ed), Devolution and British Politics (Harlow, Longman, 2004) 323. 62 See

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Kingdom and it impacts on the dynamics of oppositional national politics. For example, the Labour government (1997–2010) was heavily dependent on the support of Scottish and Welsh Labour MPs to get its legislation through Parliament. A change in the rules so as to altogether prevent MPs outside England from voting on English Bills would have meant that Labour, which then had a clear majority of MPs in Scotland and Wales, would have lacked a majority in the House of Commons for votes on legislation which concerned England, and it would have had the effect of disabling the party’s political power.64 With the collapse of support for Labour in Scotland and the emergence of the SNP (victorious in 56 out of 59 seats) in the 2015 election the effect of such a modification of voting rights in the House of Commons would be somewhat different. Obviously, English Votes for English laws suits the Conservative Party with its usual majority in England,65 but any such limitation marginalises the SNP MPs, by preventing them from contributing to aspects of national law-making. The potential effect is that excepting policy areas such as the national economy, foreign affairs and defence by default Westminster increasingly becomes a Parliament for England. The case for independence is indirectly strengthened. Why should the Scottish electorate bother to send MPs to Westminster when it has been turned into a de facto English parliament? At the same time such a change consolidates the power base of the Conservative Party in England where its support is normally concentrated. The party dominance in MPs allows them to dominate the political process in the House of Commons. From a technical standpoint introducing such a change is challenging to parliamentary draftsmen in precisely delineating how policy areas overlap, for example, where there are mixed clauses, some of which apply only to particular parts of the United Kingdom. Moreover, the Barnett formula (discussed above) to allocate funding to Scotland, Wales and Northern Ireland is calculated according to the total expenditure for England, which means that any legislation passed by the Westminster Parliament concerning England requiring public expenditure indirectly affects the devolved parts of the United Kingdom.

64

Russell and Lodge, above n 58. Hague, Michael Howard and David Cameron as Conservative Party leaders supported this idea. 65 William

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A less controversial method of at least partially overcoming this problem would have been to modify the procedure for English legislation at the committee stage, partially along the lines of the Scottish and Welsh Grand Committees, the public bill committee considering the Bill would be composed exclusively of English MPs. Such a change would make sure that this committee could take the initiative for amending such Bills, but the committee would not have a veto (as is now the case) and all MPs would be entitled to vote on the amended Bill after the third reading in the House of Commons. The advantage of such a procedural adjustment is that Westminster would continue to be regarded as a national Parliament. The anachronistic composition of the House of Lords has already been mentioned in preceding chapters. In its current form it has been strongly criticised, in particular for both being unrepresentative and for having far too many members.66 In recent years there have been calls for its reform or replacement with a regional second chamber. As we noted in Chapter 5 Labour entered the 2015 elections planning to scrap the House of Lords and replace it with an elected Senate of the Nations and the Regions. The idea was to have a national convention before embarking on reform and no exact model emerged, but the essence of any such proposal is that the election to the replacement, as with the US Senate or the German Bundesrat, would be skewed in favour of territorial representation (weighted towards the regions and extremities of the nation) rather than where population is concentrated (the South East, Midlands and North West of England).67 The transformation of the House of Lords as a chamber elected on a regional basis would add to its democratic legitimacy and give politicians from the nations and regions a relatively greater say in policy-making and thus move some way towards rebalancing the national parliament to take account of the asymmetry of devolution. Labour failed to win the election and there is little prospect of such proposals being implemented in the foreseeable future.

66 M Russell, The Contemporary House of Lords: Westminster Bicameralism Revived (Oxford, Oxford University Press, 2013) 228ff. 67 See Britain can be better, Labour Party Manifesto 2015, 63ff.

Local Government 279 PART III: LOCAL GOVERNMENT INTRODUCTION TO LOCAL GOVERNMENT IN THE UNITED KINGDOM

The Westminster Parliament has introduced a succession of statutes which set the parameters for the structure and operation of local government since the Municipal Corporation Act 1835 established the modern principle of introducing democratic government at a local level (see, for example, the Local Government Acts 1888, 1894, 1933, and 1972). The effect has been to introduce locally elected bodies responsible for a range of different functions. In constitutional theory, Parliament has the power to abolish local government. Such a drastic step, of course, would be most unlikely to occur, although Parliament has, on a number of occasions, re-organised local government. For example, a layer of local government comprising the Metropolitan Councils, and including the Greater London Council, was dispensed with by the Local Government Act 1985. It is also important to remember that central government through the passage of legislation has frequently imposed important statutory duties and limitations on local authorities. For example, the Education Act 1944 required the appropriate authority to ensure that there are sufficient schools in its locality; the Housing Act 1985 imposed a duty on local authorities to maintain council housing in their areas, while the Housing Act 1985, Part III imposed a duty to accommodate certain limited categories of homeless persons. Local authorities are the elected bodies which perform the majority of essential everyday governmental functions, and in a number of policy areas local government has become the means for the implementation of policy by central government at local level. After it was formed in May 2010 the Conservative–Liberal Democrat coalition government introduced deep cuts to public expenditure which were in many cases directed at local authorities. These cuts have impacted on the front-line services provided by government at a local level. At the same time the Localism Act 2011 was aimed at reinvigorating local democracy by extending some of the powers of local authorities while encouraging wider citizen involvement in the formation and implementation of policy by local authorities.

280 Devolution and Local Governance FROM LONDON TO MANCHESTER: THE CONSOLIDATION OF CITYWIDE GOVERNMENT?

The form of London-wide government first introduced in 2000 seeks to provide a more accountable method for governing the largest urban conurbation in Western Europe. After the abolition of the Greater London Council in the mid-1980s, it was recognised that London lacked a crucial layer of government which was necessary both to provide democratic accountability and to co-ordinate strategic aspects of administration that cut across the remit of the inner and outer L ondon boroughs. The Greater London Authority Act 1999 introduced a Mayor and Assembly for London. The first elections by an additional member system were held in 2000 after a referendum in 1999 approving the principle. The Mayor and Assembly were responsible for spending approximately £4.7 billion in 2002–03, but with the assumption of full responsibility for Transport for London, the figure for 2015/16 had risen to an estimated £11.5 billion.68 Following the cuts announced by the Conservative–Liberal Democrat coalition government in 2010 the Mayor has been required to find substantial savings to make up for the loss of central government funding. The Greater London Authority Act 1999 restored democracy and accountability for many services and bodies by putting the police, fire service, and a number of non-departmental bodies under democratic control. The main areas coming under the Mayor and Greater London Authority (GLA) are: transport—that is, integrated strategy for London, traffic management, and regulation; economic development— responsibility for London Development Agency; police—creating a new Metropolitan Police Authority, and Fire and Emergency Services; planning—required to develop a land use strategy for London; environment—for example, air quality and waste; culture, for example, museums, library services, and the arts. The Mayor is placed at the head of the executive and is directly responsible for the strategies the GLA adopts to achieve its objectives and for the quality and effectiveness of the services which it delivers. The Mayor’s functions can be summarised as: devising strategies and action plans on London-wide issues; proposing a budget and s ubmitting 68 The Greater London Authority Consolidated Budget and Component Budgets for 2015–16, Greater London Authority, March 2015.

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it to the Assembly for agreement; co-ordinating action to implement the agreed strategic plans for transport, economic development bodies, police and crime; environmental problems, fire and emergency planning authority; acting as a voice for London; and making appointments to the bodies under the Mayor’s control.69 A separation of powers is built into the system. The Assembly comprised of full-time salaried politicians is responsible for holding the Mayor to account for these strategies and proposals by public scrutiny and criticism. The Assembly is able to question the Mayor and the Mayor’s staff, to hold public hearings on issues of importance, and to have access to relevant people, papers, and technical expertise. It also has powers to secure amendments to the Mayor’s budget proposals. A new type of personality politics has developed around the character and style of the candidates seeking mayoral office. The office is professionalised along North American lines with a properly remunerated Mayor and a trimmed-down executive. The Mayor is given a mandate by the London electorate and is placed under an obligation to deliver manifesto commitments. Since the introduction of the Mayor and Assembly, it was suggested that insufficient powers and functions were vested in the office. The Labour government responded to these calls. For example, in 2004 the Mayor was granted a £5 billion package of capital funding for investment in London Transport. After further consultation, additional powers were granted in 2006 in respect to aspects of policy in the following fields: housing, learning and skills, planning, waste, health, climate change and energy, water, and European structural funds.70 In addition, a new Metropolitan Police Authority was established in 2007 and through this authority the Metropolitan Police Force is placed indirectly under the Mayor and Assembly. Although these arrangements do not allow political interference in day-to-day police operations they introduce local accountability for policing the capital.71

69

White Paper, A Major and Assembly for London, Cm 3897 (1998) para 3.16. See Greater London Authority Act 2007 and ‘The Greater London Authority: the Government’s Final Proposals for Additional Powers and Responsibilities for the Mayor and Assembly’, a Policy Statement published by the Department of Communities and Local Government on 13 July 2006. 71 Greater London Authority Act 2007, Part VI. 70

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Transport not only takes up by far the highest proportion of the Mayor’s budget but it is obviously of enormous strategic importance for London and for the nation. Transport for London (TfL) is a body corporate established under the Greater London Authority Act which implements the Mayor’s transport strategy, including the setting of fares on London Transport. TfL is headed by a Transport Commissioner appointed by the Mayor.72 In this area conflicts have arisen between the Mayor and central government. For example, the government decided to hand over the day-to-day running of the underground network to the Mayor, but, at the same time, decided to introduce a partial privatisation by separating upgrade and maintenance of the infrastructure, and hiving this off to private-sector companies under a Private Finance Initiative scheme. However, in July 2007, Metronet—the company under the scheme responsible for upgrading the underground—went into administration, exposing a catalogue of management failings which resulted in a considerable loss to the taxpayer.73 Another developing area of transport policy relates to controlling the amount of traffic in central London. The congestion charging scheme first introduced in 2003 to reduce the amount of traffic entering central London not only offered environmental benefits by achieving reductions in congestion and pollution but it was introduced as a mechanism to raise extra revenue for the Mayor.74 The controversial westward extension of the scheme brought in by Mayor Livingstone in 2007 was abolished in 2010 by his successor Mayor Johnson (elected 2008) with the loss of an estimated £50 million per year in revenue. Transport, policing and security have been of particular concern for the Mayor and Assembly with the approach of the 2012 London Olympic games. Although there was little evidence of much support outside London for the presidential-style personality politics centred upon directly elected mayors, the Localism Act 2011 persisted with the idea of directly elected mayors accountable to an elected assembly for the 12 major English cities. It required a referendum in each city to

72

Greater London Authority Act 1999, ss 154 and 155. C Harlow and R Rawlings, Law and Administration, 3rd edn (Cambridge, Cambridge University Press, 2009) 425ff. 74 Transport Act 2000, ss 163–177. Schedule 23 of the Greater London Authority Act 1999. 73 See

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a scertain whether there is support for the change to an elected mayor.75 By way of contrast, the latest initiatives in local democracy from central government announced in 2014 might also be regarded as an indirect response at local government level to devolution. In an attempt to devolve power and build on the success of the London Mayor the government has embarked on the process of reviving a strategic level of local governance with the launch of a directly elected mayor of Greater Manchester.76 An elected Manchester Mayor representing Manchester and all the associated towns will be responsible for a devolved consolidated transport budget, with a multi-year settlement. The office holder will also have powers over strategic planning and control of a new £300 million investment fund. Additional powers will include responsibility for devolved support budgets and control of apprenticeship grants.77 The Manchester Mayor and authority will have a multibillion budget. It is envisaged that the Manchester conurbation-wide scheme might be followed by other cities of comparable size, such as Birmingham, Liverpool, Leeds, Nottingham, Newcastle and Bristol. THE FRAMEWORK OF LOCAL GOVERNMENT

Local authorities share with Parliament the characteristic of being elected, and in this sense they are representative bodies of the communities on behalf of which they administer services. Councillors represent territorial units called wards, and they normally face re-election every four years, which means that the composition of the authority changes with elections, but the Local Government Act 1972 lays down that each authority is a body corporate that exists in perpetuity. This provision means that authorities are distinct legal entities able to acquire property, enter contracts, and be party to private legal proceedings. Local councillors do not generally receive a salary, but they are entitled to claim expenses incurred while performing council business.

75 I Leigh, ‘The Changing Nature of Local and Regional Democracy’ in J Jowell and D Oliver (eds), The Changing Constitution, 7th edn (Oxford, Oxford University Press, 2011) 246ff. 76 The towns and cities of Greater Manchester consist of: Bolton, Bury, Manchester, Oldham, Rochdale, Salford, Tameside, Trafford and Wigan. 77 Cities and Local Government Devolution Bill.

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The main form of the current arrangements was established in utline by the Local Government Act 1972, which came into force o in April 1974. This framework has been subject to ongoing review since 1997. In rural areas the 1972 Act provides a two-tier division of the main powers between county councils as the upper layer and district councils as the lower layer. In addition, parish councils have responsibility for a very limited number of minor matters. The Act originally created 39 county councils, responsible for education, strategic planning, personal social services, major highways, public transport, consumer protection, and fire and police services (although fire and police services may spread over more than one authority). The county areas were subdivided into 296 non-metropolitan district councils, with responsibility for housing, environmental health, public health and sanitation, and refuse collection. Responsibility for town and country planning is shared with district councils. The Local Government Act 1992, section 13(1) empowered the Local Government Commission to recommend boundary, structural, or electoral changes ‘having regard to the need: (a) to reflect the identities and interests of local communities, and (b) to secure effective and convenient local government.’ This re-organisation was essentially completed by 1997 and it resulted in many two-tier authorities becoming single tier ‘unitary’ authorities. In much the same way, the Local Government (Wales) Act 1994 provided a new unitary structure for local government in Wales. The previously existing counties and districts were abolished and replaced by 22 unitary authorities, known as ‘principal councils’. In Scotland the Local Government (Scotland) Act 1994 provided for the creation of 32 single-tier authorities. In Northern Ireland local government comprises 26 district councils and 9 area boards. Responsibility for local government comes under the devolved governments established in 1999. The situation in the main cities has always been different. The position was modified significantly by the Local Government Act 1985 which (as mentioned above) abolished the Greater London Council and the six metropolitan area councils. This reform left the 32 London boroughs and 36 metropolitan district councils as a single tier of local government in urban areas. These councils are now typically responsible for providing education (with the exception of those schools opting out), personal social services, highways and transportation, refuse

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disposal, town and country planning, consumer protection, parks and recreations, and libraries. It has already been stated that the main powers of local authorities are defined by legislation, and section 101 of the Local Government Act 1972 provides that many decision-making powers can be delegated by an authority to council committees, sub-committees, or officers of the authority. However, delegation to individual council members, including committee chairpersons, is unlawful. The title of these committees will correspond to the nature of the functions for which each is responsible. These committees used to draw up and discuss the more detailed questions of policy formation, and their recommendations were usually presented to the main body of the council for ratification, but since the Local Government Act 2000 decision making is in the hands of the leader/mayor and a cabinet. Once policy is formed, the power to implement it at a local level is by officers of the council. The power under which the officers act is not usually by direct means, but rather through specific forms of statutory provision, by-laws, and compulsory purchase orders. THE FINANCING OF LOCAL GOVERNMENT

Another reason why local government has limited autonomy is because of its financial dependency on Westminster. (In Scotland and Wales it is the devolved executive which allocates funding to local government. This funding has been made available to the executives under calculations made according to the Barnett formula discussed earlier.) The main slice of local government revenue comes from central government grants (about 60 per cent of total revenue) with a proportion of this revenue targeted for particular services, for example, the fire brigade and police. In addition, central government makes a general contribution to local government funding, which can be allocated by an authority between budget heads. Local authorities make up the remainder of their budget requirements by raising revenue locally. The major component of their income comes from council tax, which is a tax paid on all properties in an area.78 It is a banded tax calculated according to the market value of the property concerned. As well as taxation, local 78

See the Local Government Finance Act 1992.

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authorities are allowed to charge for the provision of certain services ranging from rents and repairs, the sale of council houses, recreational facilities, pest control, etc. Finally, local authorities can borrow money by issuing bonds, but this is subject to strict conditions imposed by the Treasury. Since the early 1980s there have been repeated attempts by central government to impose strict cash limits by ‘capping’ local government spending. The Treasury used to supplement the budgets of councils by making up a fixed proportion of the requirements of the authority. In order to control public expenditure during the 1980s the government introduced financial penalties for councils that failed to operate within the limits set by central government; in its latest form this amount is referred to as Standard Spending Assessment (under Part II of the Local Government Act 1999). If the authority exceeded the amount spent, the contribution from central government would diminish. These capping measures were the product of bitter political controversy between central government and the local authorities (often in different political hands) during the 1980s, and the legality of the schemes was challenged in the courts (mainly unsuccessfully). The imposition of such rigid financial constraints has reduced direct accountability to the local electorate, since many councils have found it necessary to cut their services to meet government financial targets without regard to electoral commitments to continue with them or expand them. A revision of fiscal arrangements for local government in England is very much on the political agenda after the 2015 general election.79 The Communities and Local Government Select Committee in the previous Parliament backed the principle of fiscal devolution for England on the grounds that it would promote economic growth, and called upon the government to devise a framework for fiscal devolution to local authorities. This approach is viewed by many MPs of all parties as the best method of devolving power downwards, given that regional government for England or an English Parliament are unlikely to be introduced in the foreseeable future.80 79 For further discussion of recent changes to local government in the United Kingdom including referendums for city mayors see: P Leyland, ‘The Localism Act 2011: Local Government Encounters the “Big” Society’ Istituzioni del Federalismo, 2012, 4 Anno XXXIII, ottobre/dicembre, 767–89. 80 Communities and Local Government Committee, ‘Devolution in England: the case for local government’, First Report of Session 2014–15, HC 503, 3.

Local Government 287 FROM COMPULSORY COMPETITIVE TENDERING TO BEST VALUE

Central government has been equally concerned, particularly since the 1980s, to achieve value for money and greater efficiency at all levels of government including local government. Market-orientated policies were adopted in pursuit of this objective. Under the local government legislation introduced by the Conservative governments between 1979 and 1997 (see, for example, section 2 of the Local Government Act 1988, which introduced compulsory competitive tendering (CCT)), authorities were required to privatise many services ranging from refuse collection and street cleaning, to maintenance of housing stock if private sector companies could undercut provision by the local authority’s in-house services. The authority was required by statute to offer contracts for local government services, either to the lowest tender, or to the one that was the most economically advantageous. This meant that local authorities were heavily constrained in the way in which they were allowed to exercise their contracting powers. The Labour government (1997–2010) strongly supported marketdriven policies in the public sector and in local government, but it has abolished CCT in favour of a new system. The Local Government Act 1999 requires local authorities to make arrangements for ‘best value’ in the performance of their functions. Best Value is defined in section 3 of the 1999 Act as ‘securing continuous improvement in the exercise of all functions undertaken by the authority, whether statutory or not, having regard to a combination of economy, efficiency and effectiveness.’ A number of performance indicators are applied to measure progress, and the relevant standards can be set by the Secretary of State having regard to any recommendations made to him or her by the Audit Commission. Local authorities are further required to provide ‘best value’ performance plans for each financial year under section 6. This legislation seeks to allow improved efficiency and effectiveness in the use of resources, but also to achieve significant improvements in service quality. The new emphasis on quality means that for contracted services a local authority is able to consider the appropriateness of contracting for that service, and it also provides greater flexibility in the negotiation of different forms of contract and contractual relationship. Certain statutes provide wide powers for local authorities to use contracts in furtherance of policy. For example, this applies in the

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area of planning under the Town and Country Planning Act 1971. Local authorities may reach agreements under their planning powers to restrict development. It is not uncommon for local authorities to attach conditions in regard to the development and use of land. These may be inserted as a quid pro quo for the grant of planning permission. Moreover, it should be stressed that if any local authority steps beyond the scope of these powers, judicial review may be available as a method of control. An example is Hazell v Hammersmith and Fulham London Borough Council,81 where a series of interest rate swapping transactions by local authorities was held to be unlawful.82 In October 2006 the government published a White Paper which promised to reduce the level of control from central government, provide greater citizen involvement and give local authorities increased flexibility in policy delivery.83 LOCAL GOVERNMENT, CITIZEN PARTICIPATION AND THE BIG SOCIETY

There have been many initiatives in recent years to revive the fortunes of local government. Part I of the Local Government Act 2000 (LGA 2000) introduced additional scope for authorities to develop participation with the community taking up the themes of partnership and ‘joined-up’ government84 so that it moves from merely being service provider to community leader. This initiative involves: A multi-organisational, community-based process, initiated by the council, for creating a shared vision of community identified priorities leading to a programme of actions which demonstrate the commitment and support of the groups involved.85

Sections 2 and 3 of the LGA 2000 granted local authorities powers to take any steps that they consider are likely to promote the well-being of 81

[1992] 2 AC 1. Credit Suisse v Allerdale Borough Council [1997] QB 306. 83 See ‘Strong & prosperous communities—The Local Government White Paper’, October 2006, Cm 6939-1. 84 See Modernising Government, Cm 4310 (1999), and Modern Local Government: In Touch with the People, Cm 4014 (1998). 85 V Jenkins, ‘Learning from the Past: Achieving Sustainable Development in the Reform of Local Government’ [2002] PL 130, at 138. 82 See

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their area or their inhabitants. Under section 4 they are placed under a duty to develop community strategies, together with other local bodies, for this purpose. These provisions are intended to give local authorities increased opportunities to improve the quality of life of their local communities. Although they were previously able to incur expenditure in the interests of their area under section 137 of the Local Government Act 1972, this was subject to many restrictions which are now relaxed by section 8 of the LGA 2000. Against a background of voter apathy with turnouts in many parts of the country falling well below 30 per cent in recent years, the Labour government proposed that local government should be radically overhauled.86 Part II of the LGA 2000 sought to transform the operation of local democracy, to provide greater efficiency, transparency, and accountability for local authorities. It did this by setting out new political management structures. These included local authority executives and executive arrangements that replace the present committee systems. The effect was to create a new decision-making framework in which there is a separation of decision-making and scrutiny of decisions by new committees.87 The Act set out three initial forms of executive88 which might be adopted and on which all local authorities must consult by means of a referendum.89 These models are based on two variants of a cabinet system with a leader elected by the council, or an elected executive mayor and separately elected authority (similar to the current arrangements for London). The current stage in deepening democracy arguably requires the redistribution of power from the politicians to the people. The main political parties have suffered declining membership and have ceased to be the site for real debates about the issues that confront local communities. Parties emerged when there was a clear ideological divide between right and left. The problem is that younger voters and marginalised groups are not well represented through the established parties. The degree of participation and engagement needs to extend beyond elections every four or five years. There has been a wider commitment 86 See, eg, White Paper, Modern Local Government: In Touch with the People, Cm 4014 (1998). 87 LGA 2000, s 21. 88 LGA 2000, ss 11 and 12. 89 LGA 2000, ss 34–36.

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to referendums as an acknowledgement of the need to consult the electorate more frequently on policy matters but further initiatives are required. In place of high-profile government the ‘big society’ has been widely disseminated as offering a revised agenda for the Conservative Party.90 Many aspects of this idea bear a striking resemblance to Blair’s ‘third way’ which was heavily reliant for its delivery on ‘stakeholders’ from the voluntary and private sector. Nevertheless, the ‘big society’ has been presented as a reaction to the claimed statist centralising policies of the previous Labour government.91 It appears that the guiding philosophy is to create a society where the leading force for progress is a concept of social responsibility which is expected to replace state control. The initiative will be returned to grass-roots level by promoting people power. The objective is to break state monopolies and, in their place, allow charities, social enterprises and companies to provide public services— for example, by allowing free schools to be set up outside of local government by parents, communities, faith groups, charities, businesses and universities. The intention is to further reduce the size of the state at the central and local government levels. This agenda is ambitious since it depends on legions of volunteers coming forward just when the voluntary and charity sectors are faced with massive cuts in the income they receive from central and local government. At the same time, the financial demise of Southern Cross as a care home operator for many thousands of elderly persons is a reminder that government may find it difficult to extricate itself from responsibility for the provision of core services should private- and independent-sector organisations prove incapable of performing the role designated to them. As mentioned above local government reforms under Labour between 1997 and 2010 were presented as an attempt to bring power closer to the citizen. Once again, the Localism Act 2011 claims to shift power decisively from central government to local communities, but follows a different path by exploring novel forms of populism as part of the government’s ‘big society’ agenda. Apart from the increased use of referendums discussed below, one innovatory approach is the community right to challenge, which is designed to facilitate a transfer

90

D Cameron, ‘Our Big Society Plan’ (2010). C Pattie and R Johnston, ‘How Big Is the Big Society?’ (2011) 64 Parliamentary Affairs 403. 91

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in the running of services from local authorities to voluntary groups and other social enterprises. A bidding exercise would be prompted to allow these groups to compete with the local council. The Act confers on local councils a general power of competence which would grant them the right to do anything apart from that which is specifically prohibited.92 For example, the Act is meant to facilitate the sale of buildings belonging to local councils to community groups. ACCOUNTABILITY MECHANISMS

In order to improve the public perception of local government and local councillors Part III of the Local Government Act 2000 established a new ethical framework, which included the introduction of statutory codes of conduct, with a requirement for every council to adopt a code covering the behaviour of elected members and of officers, and the creation of a standards committee for each authority. This approach has many characteristics in common with the Westminster regime for parliamentary standards. However, the standards board introduced in 2004 to root out corruption in local government has been abolished by the Localism Act 2011 while the same legislation seeks to increase transparency by introducing a requirement to publish the salaries of senior staff. The Local Government Act 1972, section 151 provides that councils must ensure the proper administration of their financial affairs, and the Local Government Finance Act 1982 set in place the mechanism for external audits by an Audit Commission for local authorities in England and Wales. This introduced commercial accounting methods to the local government sector. (For the auditors’ current powers, see the Audit Commission Act 1998.) The district auditor has the duty to see that public money is spent according to the law. If it is found that there has been unlawful expenditure by the authority in the discharge of its public duties, the auditor has the power to enforce financial penalties against named councillors or officials.93 Further, the Local Government Act 1974, Part III allows a local government ombudsman to investigate complaints concerning questions of local maladministration. These matters are referred to the local government ombudsman directly or through a local councillor. 92

Localism Act 2011, s 1. Porter v Magill [2001] UKHL 67, [2002] 1 All ER 465.

93 See

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The Localism Act 2011 might be regarded as an experiment in direct democracy because it seeks to use referendums to introduce a new form of accountability to the ordinary voters. For example, it allows referendums to be triggered by a petition from five per cent or more of a local electorate to consult on local issues. On the other hand, it is also envisaged that in place of the direct capping of budgets by ministers referendums will be employed as a way of blocking proposed increases in council tax by local authorities which are above the figure proposed by the Secretary of State and approved by Parliament each year. Such a vote would be used to help control spending because council tax payers would be asked to consent to any increase. However, by fixing the budget allocation for local authorities, it is the government and not the local electorate who will trigger such a referendum. The Act is exploring unchartered and possibly hazardous territory. Not only are referendums expensive to organise but leaving such decisions up to voters in each locality could lead to much greater discrepancies in levels of council tax and in service provision between different localities. The Localism Act fails to tackle the question at the heart of the problem: all forms of local government continue to be largely financially dependent on central government.94 THE PROSPECTS FOR LOCAL GOVERNMENT

The primary legal objective of setting up modern forms of local government was to vest elected authorities with broad enabling powers, permitting them to respond flexibly to new challenges without being unduly constrained by the fear of legal intervention. As a result, local government in its original form was afforded considerable discretion in its ability to respond to local needs. However, the predominant concern of central government in recent years has been to strictly control public expenditure. The Conservatives while in power (1979–97) were set on a course of reducing the role of local government by privatising services, establishing housing trusts and introducing private sector funding. But while it was clear that the Labour government (1997–2010) was also 94 P Leyland, ‘The Scottish Referendum, the funding of territorial governance in the United Kingdom and the legislative role of the Westminster Parliament’ Istituzioni del Federalismo, 2014, Anno XXXV, ottobre/dicembre, 857 at 877ff.

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intent on controlling public expenditure by imposing tight restrictions on the spending of local authorities, it was less ideologically driven than its Conservative predecessor, and while it retained a commitment to public–private partnerships and privatisation in general, it also relaxed controls and extended certain additional powers of local government. Under the Conservative/Liberal government the Localism Act 2011 outlined a number of initiatives to give local people more involvement in local affairs by making provision for referendums to be held and for groups other than local authorities to be responsible for the delivery of local services. The project has had little impact and has not generated a concern to serve the community comparable to that which prevailed in the latter part of the nineteenth century. By way of contrast the Cities and Local Government Devolution Act 2015 signifies a change towards city-wide directly elected mayors for major cities and the surrounding area that would bring local government in England more in line with the system in London and in European nations such as France, Italy and Germany. In order for there to be a genuine extension of local democracy based on a renewal of interest in local government, new models of decision-making will not suffice on their own. Financial control needs to be devolved downward with the introduction of appropriate methods of tax-and-spend provision at a local level. Whether the impact of these initiatives will be effective in terms of delivery is uncertain, as gazing forward, the services provided by local government will be drastically curtailed in the face of the deep cuts that have been proposed by central government. CONCLUSION

More than 15 years after the introduction of devolution ultimate control still formally resides with the Westminster Parliament, but with the conferral of law-making powers on the Scottish Parliament and Assemblies in Wales and Northern Ireland, in practice, the sovereignty of the Westminster Parliament has been heavily diluted. On narrow issues of strict legality, devolved bodies must operate within their devolved powers, but it is now difficult for the government acting through the Westminster Parliament to challenge actions of the devolved bodies, particularly where there is a democratic mandate for any policy that has been adopted at devolved level.

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In addition, we have observed in this chapter that devolution is a dynamic process which is generating further constitutional change in response to the prevailing political conditions. The referendum for Scottish independence in 2014, despite recording a pro-union ‘No’ vote, provided a vivid demonstration of the political forces which have been unleashed. More powers have been granted to Scotland to satisfy the demands of the electorate north of the border and independence still remains very much on the agenda of the Scottish Nationalist Party, which is now the overwhelming political force in Scotland. Perhaps the difficulty with devolution stems from the fact that the framework of devolved government was never conceived as part of a grand constitutional design. Rather, the arrangements set in place have each evolved as a pragmatic response to the conditions in Scotland, Wales and Northern Ireland. In order to address the gross asymmetry in territorial representation and rebalance the constitution there needs to be a credible initiative for English devolution which goes beyond introducing marginally greater autonomy at local government level. Finally, devolution is consistent with a European trend encouraged by the concept of subsidiarity which aims to combat a perceived democratic deficit. The assumption is that this objective can be achieved by re-allocating centralised authority and power to more local levels of territorial governance. The UK experience can therefore be usefully compared with recent provisions for regional government in Italy, Spain, and other European nations. FURTHER READING Bailey S and Elliott M, ‘Taking Local Government Seriously: Democracy, Autonomy and the Constitution’ (2009) 68 Cambridge Law Journal 436. Bogdanor V, Devolution in the United Kingdom (Oxford, Oxford University Press, 1999). Bogdanor V, ‘The West Lothian Question’ (2010) 63 Parliamentary Affairs 156. Bradbury J and Mitchell J, ‘Devolution: Between Governance and Territorial Politics’ (2005) 58 Parliamentary Affairs 287. Burrows M, Devolution (London, Sweet & Maxwell, 2000). Dickson B, ‘Devolution’ in J Jowell, D Oliver and C O’Cinneide (eds), The Changing Constitution, 8th edn (Oxford, Oxford University Press, 2015).

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Hadfield B, ‘Devolution Westminster and the English Question’ [2005] PL 286. Hazell R (ed), The English Question (Manchester, Manchester University Press, 2006). Hazell R (ed), Constitutional Futures Revisited: Britain’s Constitution to 2020 (Basingstoke, Macmillan, 2008). Himsworth C and O’Neill M, Scotland’s Constitution: Law and Practice (Edinburgh, Lexis Nexis, 2003). Hopkins J, Devolution in Context: Regional Federal and Devolved Government in the European Union (London, Cavendish, 2002). Leigh I, Law, Politics and Local Democracy (Oxford, Oxford University Press, 2000). Leigh I, ‘The Changing Nature of Local and Regional Democracy’ in J Jowell, D Oliver, C O’Cinneide, The Changing Constitution, 8th edn (Oxford, Oxford University Press, 2015). Leyland P, ‘Referendums, Popular Sovereignty and the Territorial Constitution’ in R Rawlings, P Leyland and AL Young (eds), Sovereignty and the Law (Oxford, Oxford University Press, 2013). Leyland P, ‘The Multifaceted Constitutional Dynamics of UK Devolution’ (2011) 9 I-CON 251–73. Loughlin M, ‘The Demise of Local Government’ in V Bogdanor, The British Constitution in the Twentieth Century (Oxford, Oxford University Press, 2003). McCrudden C, ‘Northern Ireland, The Belfast Agreement, and the British Constitution’ in J Jowell and D Oliver, The Changing Constitution, 6th edn (Oxford, Oxford University Press, 2007). McMillan J and Massey A, ‘Central Government and Devolution’ in M O’Neill (ed), Devolution and British Politics (Harlow, Longman, 2004). Rawlings R, Delineating Wales: Constitutional, Legal and Administrative Aspects of National Devolution (Cardiff, University of Wales Press, 2003). Tierney S, ‘Direct Democracy in the United Kingdom: Reflections from the Scottish Independence Referendum’ (2015) Public Law 633 Websites www.regional-assembly.org.uk www.emmecidue.net/devolutionclub www.devolution.ac.uk/home.htm www.scottish.parliament.uk www.scotland.gov.uk/Home www.scotland.gov.uk/concordats

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www.wales.gov.uk/index.htm www.wda.co.uk/index.cfm/wda_home/index/en2 www.cclondon.com/index.shtml www.london.gov.uk www.ni-assembly.gov.uk www.nics.gov.uk

9 Conclusion: The UK Constitution Facing the Future

T



HIS BOOK HAS been written as a concise contextual introduction to the constitution of the United Kingdom. Since the first edition was published in 2007 there have been many changes to the wider context, with the country arguably facing its greatest challenges since the end of World War II. In the decade up to 2008 a programme of radical constitutional reform which included devolution, the Human Rights Act 1998, freedom of information and a new Supreme Court for the United Kingdom were introduced against a background of steady economic growth, falling unemployment, increases in real incomes and relatively low levels of inflation. However, the agenda for government has since been dominated by global and domestic economic problems. These were triggered by the world banking crisis. The massive government intervention in the UK to underwrite a large part of the domestic banking sector imposed a huge strain on the exchequer. In order to rectify the nation’s financial position the radical programme of cuts in public expenditure are having the effect of redefining the role of the state at both central and local level. Moreover, the contemporary debate over the future of the constitution takes place against what appears to be a profound transformation in domestic politics. Political allegiances and opinions appear to be shifting away from established parties and previous policies.1 In particular, in 2015 (as noted in Chapter 5) 3.9 million voters in England turned 1 V Bogdanor, The Crisis of the Constitution: The General Election and the Future of the United Kingdom (The Constitution Society, 2015) 29.

298 Conclusion: The UK Constitution

to the UK Independence Party (UKIP) while in Scotland in the wake of 2014 referendum on independence there has been a surge in support for the Scottish Nationalists. Equally, there has been spectacular decline in support for the Liberal Democrats and a surprise result in the 2015 Labour Party leadership contest where the radical agenda of the outsider, Jeremy Corbyn, triumphed over more seasoned contenders associated with previous Labour governments. Political commentators have identified accumulating evidence of a failure by existing parties to reflect the extent of changes in popular views about the daunting issues facing the nation.2 This concluding chapter, before examining the case for a codified constitution, draws attention to three issues likely to feature over the next few years, each in different ways. The primary questions from the standpoint of the current multi-layered constitution concern first the UK’s place in Europe and the world, secondly the integrity of the UK as a single nation state, and thirdly, the future protection of human rights in the UK. UK MEMBERSHIP OF THE EU

The first question, namely, whether the United Kingdom should remain a member of the European Union, will be answered in a referendum due to be held in 2016/173 after negotiations by the British government on revised terms of membership.4 Of course, the subsequent implementation of a decision to withdraw would have far-reaching consequences for the law and for the constitution. For example, if there turns out to be a majority in Scotland in favour of remaining in Europe but a majority in England in favour of EU withdrawal, such an outcome could reignite the campaign for Scottish independence. An obvious problem has been that the negotiation of the treaties (eg Amsterdam, Maastricht, Nice and Lisbon) and the drafting of the 2 P Whitely, Political Participation in Britain: The Decline and Revival of Civic Culture (Basingstoke, Palgrave Macmillan, 2012). 3 The question will be: ‘Should the United Kingdom remain a member of the European Union or leave the European Union?’ See the European Referendum Act 2015. 4 See House of Lords, European Union Committee, ‘The referendum on UK membership of the EU: assessing the reform process’, 3rd Report of Session 2015–16, HL Paper 30.

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European constitution were mainly undertaken as a top-down exercise carried out by officials and by politicians representing member states. Moreover, formidable obstacles had to be cleared in order to reach agreement. In formulating a constitution and thereby setting an agenda for Europe the most influential nations were committed to very different objectives. For example, political leaders in France, Germany, Italy, Belgium, and Holland were keen to strengthen the EU as a political entity (European Super State) committed to public services and social support, while the United Kingdom, with its growing Euro-scepticism, was content with a mainly economic union comprising a large marketplace. It wished to see a more limited state sector challenged by liberalisation and the introduction of market forces. The European constitution held out the prospect of protecting UK economic interests without the United Kingdom forming one of the core groups of integrating states towards greater union. There has been an emerging legitimacy problem relating to the EU and its institutions. The European Parliament (EP) consists of members elected in member states. Its authority has been enhanced by the Treaty of Lisbon, but still only marginally. The EP has limited powers and often only operates on the fringes of the law-making process.5 Crucially, government at EU level is unelected. There is no transnational party system capable of rising above national politics, and none of the EU treaties fully address the issue of the role of national Parliaments and other accountability mechanisms. The relative absence of democratic political accountability at EU level helps to explain the general apathy and indifference that pervades European political space. In fact, it is argued that this immunity from accountability has resulted in a gap opening up between national governments and the prevailing public opinion within many of the member states.6 This problem was graphically illustrated in referendums on the draft European Constitution held in France and Holland in 2005 where the local electorates voted decisively against, despite strong endorsement from the ruling political elite.7 5 ‘The Role of National Parliaments in the EU’, House of Lords, European Union Committee, 9th Report of Session 2013–14, HL Paper 151. 6 Ibid, paras 161–63. 7 R Bellamy and S Kröger, ‘Domesticating the Democratic Deficit? The Role of National Parliaments and Parties in the EU’s System of Governance’ (2014) 67 Parliamentary Affairs 437–57.

300 Conclusion: The UK Constitution

A phase of deep uncertainty is apparent on the European front. In terms of the general picture, the European debt crisis reaching beyond Greece to include Portugal, Spain, Ireland, Italy and even France has shaken the EU and the euro to its very foundations. At home, the European Union Act 2011 set in place a barrier to any further ceding of power to the EU by providing that the electorate will be consulted in a national referendum before European measures that qualify sovereignty are incorporated into UK domestic law. Now this technical provision has been totally overshadowed by the imminent referendum on the UK’s continued EU membership. THE DYNAMICS OF DEVOLUTION

The second question—whether the United Kingdom can continue in its present form, comprising the four home nations of England, Scotland, Wales and Northern Ireland—has, in a formal sense, already been answered. There was a decisive ‘no’ vote to Scottish independence in the 2014 referendum, but the reaction since then suggests that the referendum and the subsequent increase in devolved powers will not necessarily stem the tide towards independence. The SNP has consolidated its support at Westminster, as well as enjoying a majority in the Scottish Parliament. In consequence, the cause of independence is still being promoted and therefore uncertainty remains over the future of the United Kingdom. As the discussion in the previous chapter revealed, the asymmetrical form of devolution in the United Kingdom was devised not as part of a broader constitutional settlement but has been a pragmatic response to the prevailing situation in Scotland, Wales and Northern Ireland. Each devolved system since 1999 has been evolving in response to changing conditions. Moreover, the evolution has continued with the legislation to enact the post-referendum Smith Commission recommendations in Scotland granting the Scottish Parliament more competences and substantial revenue-raising powers. Likewise, following the 2011 regional referendum, the Welsh Assembly, in line with its counter parts in Edinburgh and Belfast, gained law-making powers set out in the Government of Wales Act 2006. Further, in 2015 the St David’s Day devolution package promises to give the Welsh Assembly protected funding and additional powers over energy, transport, the environment and

Constitutional Protection of Citizen Rights 301

e lections. The Northern Ireland Assembly was successfully relaunched in 2007 and responsibility for justice and policing has been given to a Northern Ireland Justice Department. This means that in respect of domestic policy areas by default the Westminster Parliament has evolved into a Parliament predominantly for England,8 a transformation underlined by the introduction of English Votes for English laws (EVEL) procedure in 2015 giving an English Grand committee of MPs representing English constituencies at Westminster a veto over English legislation. In sum, there has been a very significant on-going trend towards greater devolution.9 It is too early to judge whether the cumulative effect of these changes will introduce a sustained period of greater stability or merely act as a trigger for disaggregation of the Union. CONSTITUTIONAL PROTECTION OF CITIZEN RIGHTS

The answer to the third question also remains uncertain at the time of writing. The Conservative government elected in 2015 (which happened to be the 800th anniversary of Magna Carta) promised to repeal the Human Rights Act and replace it with a British Bill of Rights.10 Engineering such a change is not straightforward. The prospect of reaching a consensus on an alternative is unlikely. No detailed proposals have yet been published by the government. As part of the post-devolution constitution consultation is required before the government legislates. The problem is reconciling the position of the Conservative government at Westminster, wider opinion from other parties represented in Parliament, outside opinion, including the legal profession and interest groups with a human rights focus, and, above all, the devolved governments in Edinburgh, Cardiff and Belfast. As Professor Harvey explains: In Northern Ireland, the Belfast/Good Friday Agreement 1998 is rightly applauded for its transparent commitment to human rights; with its strong 8 In practice, the proliferation of Sewel (legislative consent) motions means that Westminster continues to legislate for the devolved parts of the United Kingdom. For example, in the 2007–11 session the Scottish Parliament approved 30 such motions. 9 P Leyland, ‘The multifaceted constitutional dynamics of UK devolution’ (2011) 9 ICON 251–73. 10 S Dimelow and A Young, ‘“Common Sense” or Confusion? The Human Rights Act and the Conservative Party’ (The Constitution Society, 2015).

302 Conclusion: The UK Constitution endorsement of the European Convention and the expectation that a Bill of Rights might follow. The Human Rights Act (in combination with other constitutional and international legal measures) is one mechanism for carrying these pledges into a dualist legal system. The Act matters so much precisely because it is one of the main formal instruments (the Northern Ireland Act 1998 being one of the others) that realises the normative rights-based guarantees contained within a political/peace agreement.11

Notwithstanding the difficulty of drafting an acceptable British Bill of Rights any proposal by the Conservative government for a British Bill of Rights requiring the drastic step of withdrawal from the ECHR faces vigorous opposition from inside as well as outside the Conservative Party. THE CASE FOR A CODIFIED CONSTITUTION?

The shortcomings in constitutional accountability mechanisms have featured as a recurring theme in this discussion.12 For instance, it can be questioned whether Parliament in its present guise as the core representative institution is equipped to provide effective representation, legislative scrutiny and executive oversight. Clearly, there appears to be a serious disjuncture between voters and the politicians that represent them under present constitutional conditions. The blame could be attributed, in part, to the failure to replace the simple majority electoral system with a method of election with a proportional element; in part, it could be because the adversarial procedures in the House of Commons favour a simple division between government and opposition rather than encouraging a more nuanced reflection of opinion; in part, it might be attributed to the failure to tackle reform of the House of Lords as a second chamber to provide an elected body with wider territorial representation and with greater legitimacy. The radical constitutional reforms embarked upon by the Blair government elected in 1997 changed the complexion of the UK constitution.13 In many respects 11 C Harvey, ‘HRA Watch: Reform, Repeal, Replace? Rights in a Fractured Union’ UK Const L Blog (1 June 2015). 12 See N Bamforth and P Leyland (eds), Accountability in the Contemporary Consti tution (Oxford, Oxford University Press, 2013), ch 1. 13 Eg, devolution, Human Rights Act, freedom of information, Supreme Court and judicial appointments.

The Case for a Codified Constitution? 303

the UK constitution has come to look much more like a codified constitution. To address the above issues, and correct other manifest shortcomings in current UK constitutional arrangements, the answer for some is to introduce a written constitution. As one commentator explains, this would: animate society with a sense of what is right and instil into government an understanding of the proper limits to the exercise of power; above all it can inform the conversation of politics with a sense of dispersed responsibility.14

In common with most other nations, the United Kingdom would adopt a codified constitutional text setting in place all aspects of the institutional framework (Parliament; civil service; courts; devolved, regional, and local government) and this would also be allied to a liberal democratic creed of citizen rights and a statement of government obligations. Codification might bring with it the advantage of ‘attaining greater clarity, wider and deeper dispersal of power, and a firmer more enforceable set of principles and rules’.15 Richard Gordon has gone to the trouble of setting out in impressive detail a written constitution founded on principles of representative democracy and based on popular sovereignty.16 If such a constitution were to be accepted by referendum it would have a claim to legitimacy by deriving its authority from the people. Equally, it would offer the advantages of entrenching the rights contained therein. However, this constitution goes well beyond repeating the rights incorporated by the Human Rights Act 1998. It contains a redrafted domestic bill of rights, which is extended to social and economic rights. These include: an adequate standard of living; access to sufficient food, water, clothing and housing; social security; appropriate health and social care services free at the point of delivery and the right to education. International experience of constitution-making has demonstrated that the elaboration of such rights is not, in itself, a guarantee that all citizens will be entitled to at least the minimum standards of life, particularly, in tight economic times. The problem is that either such rights come to be regarded as no more than non-justiciable directives of state policy, or alternatively, 14

F Mount, The British Constitution Now (London, Mandarin, 1993) 266. A Blick, Beyond Magna Carta: A Constitution for the United Kingdom (Oxford, Hart Publishing, 2015). 16 R Gordon, Repairing British Politics: A Blueprint for Constitutional Change (Oxford, Hart Publishing, 2010) 27. 15

304 Conclusion: The UK Constitution

the Supreme Court, or any other court having responsibility for the interpretation of the constitution, is called upon as the mechanism for achieving delivery. As well as recognising that this raises questions of institutional competence, former South African Supreme Court Justice Albie Sachs explains the dilemma with admirable clarity: ‘[S]hould the Constitution be read as handing over to each judge in each court the right and duty to decide who should have priority access to social goods in short supply?’ It is inherently unfair if the granting of a constitutional right to a home/water, etc, is related to the capacity of any individual citizen to litigate. The South African court held that the guiding principle with any provision on access to adequate resources was not for the court to come to the assistance of an individual but the recognition of the obligation on the state (given the provisions in the constitution) to take reasonable legislative steps and other measures’ progressively to realise the right. This acknowledges the special expertise of government rather than judges in developing ways to ration the allocation of scarce resources.17 By way of the contrast Professor Adam Tomkins, on the basis of a wide historical analysis, sets out what he calls ‘Our Republican Constitution’. In order to achieve popular sovereignty, it is crucial to start at the bottom with the people and not with the monarchy. The objective is to encourage self-government through processes of informed, publicspirited deliberation. There is an underlying assumption that material inequality has to be addressed so that the poor are not dominated by the wealthy. The conception of freedom based on non-domination requires that political decisions are taken in the public interest. Moreover, this approach eschews the idea that the common law courtroom should be preferred over Parliament to resolve highly sensitive questions where personal opinion is deeply divided. The challenge in terms of institutional design is to develop a structure that delivers appropriate forms of accountability to the wider citizenry.18 In practice, any attempt at constitutional codification is unlikely to bear fruit, because it presupposes a consensus can be reached between disparate political groups on institutional design and other

17 A Sachs, The Strange Alchemy of Life and Law (Oxford, Oxford University Press, 2009) 177. 18 A Tomkins, Our Republican Constitution (Oxford, Hart Publishing, 2005) 5, 31, 61.

The Case for a Codified Constitution? 305

rights and values to incorporate in a new constitution. The controversy surrounding the reform of the Human Rights Act 1998 bears witness to the scope for disagreement over rights issues. Indeed, Professor King cautions against the idea of adopting a written constitution as a panacea in the absence of any popular demand for one. In approaching the task, even if a convention were to be established to make recommendations, there would be a practical hurdle of reaching anything like a consensus on a new constitution.19 Of course, a major disadvantage of a new entrenched constitution would be the difficulty in amending it to meet any political challenges that might arise. Nevertheless, the trend towards progressively codifying key aspects of the constitution has redefined the relationship between Parliament, the executive, and the courts in a wide range of different contexts. Perhaps most significantly, the greater visibility of judicial review has meant that the modern judiciary has already assumed a new role amounting to a silent shift in the balance of the constitution. Over the last 40 years or so the courts have reacted to the increase in the powers of government, referred to in our discussion as ‘elective dictatorship’, and the failings in accountability before Parliament, with a new era of judicial assertiveness.20 Certain advocates of codification (or partial codification) would seek to recalibrate the distribution of constitutional power in favour of the judges as part of a written constitution.21 This approach rests on the assumption that political questions can be, and should be, separated from legal questions. State powers and individual rights would be limited by principles of legality laid down by judges as higher order law.22 As part of the revised arrangements in a legal constitution (as opposed to a political constitution), the Human Rights Act 1998 would be amended to give the courts power to override legislation which contravened Convention rights (rather than issuing declarations of incompatibility), and a constitutional court would have the task of ultimately deciding political questions which would be considered as matters of constitutional legality. 19

A King, The British Constitution (Oxford, Oxford University Press, 2007) 362ff. Stevens, ‘Government and the Judiciary’ in V Bogdanor (ed), The British Constitution in the Twentieth Century (Oxford, Oxford University Press, 2003) 350ff. 21 J Jowell, ‘The Rule of Law and its Underlying Values’ in J Jowell, D Oliver, C O’Cinneide (eds), The Changing Constitution, 8th edn (Oxford, Oxford University Press, 2015) 34ff. 22 See, eg, J Laws, ‘Law and Democracy’ [1995] PL 72, at 84ff. 20 R

306 Conclusion: The UK Constitution

Opponents of this view maintain that, ‘[t]he judicial constraint of democracy weakens its constitutional attributes, putting inferior mechanisms in their place’.23 At the same time, they reject the idea that the courts can be relied upon as impartial guardians of the law and do not accept that unelected and unaccountable judges are qualified to take political decisions.24 For example, in resolving the disputed Presidential election in 2000, the US Supreme Court lined up according to the declared political affiliation of its judges. Lord Denning, whose interventions when Master of the Rolls were often controversial, nevertheless recognised that: if judges were given power to overthrow sections of Acts of Parliament, they would become political, their appointments would be based on political grounds and the reputation of our Judiciary would suffer accordingly.25

One of our most distinguished judges, Lord Bingham, put it rather differently observing that: The British people have not repelled the extraneous power of the papacy in spiritual matters and the pretensions of royal power in temporal [matters] in order to subject themselves to the unchallenged rulings of unelected judges. A constitution should reflect the will of a clear majority of the people, and constitutional change of the kind here contemplated should be made in accordance with that will or not at all.26

Professor Loughlin questions the enclosure of politics within the straitjacket of the law. He concludes that: The project of establishing law as an objective framework of rational principles… has not been successful. With the ascendancy of law as right we do not therefore reach the end of history, or an escape from politics. Instead, this legalization of politics has led primarily to a politicization of law.27

In sum, shortcomings in accountability and effectiveness will not be cured simply by adopting a written constitution, or by vesting the courts with the ultimate power over constitutional matters. In the 23 R Bellamy, Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy (Cambridge, Cambridge University Press, 2007) 260. 24 J Griffith, ‘The Political Constitution’ (1979) 42 MLR 1. 25 369 HL Deb, 25 March 1976, cols 797–98. 26 T Bingham, The Rule of Law (London, Allen Lane, 2010) 168. 27 M Loughlin, Sword and Scales: An Examination of the Relationship between Law and Politics (Oxford, Hart Publishing, 2000) 232.

The Case for a Codified Constitution? 307

future constitutional codification might be imposed by a cataclysmic constitutional event such as the break up of the United Kingdom. In the meantime the priority in reforming the system is to reinvigorate the political process and restore confidence in politicians and political institutions. In regard to Parliament, this calls for the introduction of a reconstituted second chamber. Further improvements to the parliamentary committee system are needed to enable enhanced legislative scrutiny and to achieve improved scrutiny of delegated legislation. The parliamentary expenses of scandal of 2009 (see Chapters 1 and 5) reminds us of the importance of transparency in exposing wrongdoing and that the credibility of the political class depends on the rigorous enforcement of existing rules. FURTHER READING Bamforth N and Leyland P (eds), Accountability in the Contemporary Constitution (Oxford, Oxford University Press, 2013). Bingham T, The Rule of Law (London, Allen Lane, 2010). Blick A, Beyond Magna Carta: A Constitution for the United Kingdom (Oxford, Hart Publishing, 2015). Bogdanor V, The New British Constitution (Oxford, Hart Publishing, 2009). Bogdanor V, The Coalition and the Constitution (Oxford, Hart Publishing, 2011). Hazell R (ed), Constitutional Futures Revisited: Britain’s Constitution to 2020 (Basingstoke, Palgrave Macmillan, 2008). King A, The British Constitution (Oxford, Oxford University Press, 2007). McClean I, What’s Wrong with the British Constitution (Oxford, Oxford University Press, 2010). Tomkins A, Our Republican Constitution (Oxford, Hart Publishing, 2005).

308

Index abdication crisis 1936, 86–7 abuse of power: grant aid to Malaysia (case law), 220 home for life, breach of promise (case law), 221–2 accountability, 12–13 absolute power and, 12–13 ‘Chain of Accountability ’, 171 Civil Service, of, 176–7, 179 constitutions, of, 302–3 contractual agreement, through, 131 conventions and, 43 EU political, 299 executive accountability see executive accountability government responsibility in departments, 169 Greater London Authority Act 1999, under, 280 ‘green light’ theory and, 208–9 independence of, 150 mechanisms, 291–2, 302 Members of Parliament and, 121, 242 ministers’, 43, 173, 174, 176 New Public Management and executive accountability, 178–82 Parliament, accountability of, 181–2 political and individual ministerial responsibility and, 171 Prime Minister and, 114 public bodies, for, 186 public expenditure and, 149–50 Scottish devolution and, 274 transparency and, 12–13 Act of Settlement 1701, 26–7, 46, 74, 77 judges’ tenure, security of, 17, 41, 146 judicial independence, 201 additional member system (Scotland), 249 administrative law: France, in, 66, 204 implementation of, 204–5 introduction, 203–5 judicial review and, 204 Lord Speaker elected by House of Lords, 198 ‘red light’ theory, 205–7 referendum on, 112

ultra vires doctrine, 204 adversarial system and political parties, 116–17 agencies: ‘green light theory’ and, 208 Next Step Agencies, 178–9 public bodies and see public bodies and agencies Regional Development Agencies (England), 276 alternative vote system, 112 methodology, 112 appointments and honours, Monarch’s role in, 93 arms to Iraq scandal, 173–4 Assembly of London, 280 London Mayor’s budget proposals, 281 asylum claims and judicial review case law, 79–80 Audit Commission, 287, 291 Backbench Business Committee, 147 Balfour Declaration (1926), 21 Barnett formula, 108, 262–3 criticism of, 262–3 England, funding for under, 273–4 local taxation and public services, 263 Belmarsh case (2004), 233–6 best value, 287–7 definition, 287 local authorities and, 287 performance plans, 287 ‘Big Society’, 290–1 objectives of, 290 Bill of Rights 1689: parliamentary privilege, 119 Parliament’s supremacy, 45, 73, 106 sovereignty, 17, 26 Blair, Tony, Prime Minister: appointment and dismissal of ministers, 159 Cabinet, under, 39 constitution reform, 302 devolution, on, 267 government departments, re-shaping, 169–70 Hutton Inquiry, establishment of, 71

310 Index Murdoch Press and, 8–9 policy arrangements, 168 presidential style of leadership, 158 public sector and, 166 special advisers, 182 ‘third way’, 290 vote of confidence and, 116 ‘block and formula’ system see Barnett formula British Bill of Rights (UK): BBC producers, guidelines for, 230 Conservative Party proposal for, 237–8 consultations for, 301–2 domestic, 303 European Commission opinion on, 238 governors, appointment of, 7 impartiality of, 7 Scottish Nationalists, opposition to, 239 British Broadcasting Corporation, independence of, 7 British Commonwealth, 21–2 British Empire, 21, 22 British-Irish Council (Northern Ireland), 260 Brown, Gordon, Prime Minister, 92, 159 Murdoch Press and, 8 resignation of, 114 special advisers, 165 broadcasting and print media, 4–7 Italy, independence of, 5–6 UK, independence of, 5–6 BskyB takeover, 8–9 budget proposals, London Mayor’s and Assembly of London, 281 Cabinet Committees and Prime Minister, 160–1 Cabinet Office, 164–5 role of, 164 twentieth century, importance of during, 164–5 Cabinet Secretary, 164 Cabinet, The: collective responsibility, 161–2 prime ministers and, 39, 160–3 role of, 160 Callaghan, James, Prime Minister: resignation of, 49 vote of confidence, loses, 115 Calman Commission (2007), 251 Cameron, David, Prime Minister, 92, 114 Andy Coulson, appointment of, 8, 183 fixed term parliaments, 159–60

Liberal Democrat ministers, dismissal of, 161 Murdoch Press and, 8 Scottish Independence Referendum and, 253 special advisers, 166 Campbell, Alistair (Press Secretary and Director of Communications), 167, 182 cash for questions, 121 Catholicism and parliamentary power (17th century), 16–17 centralisation of power: devolution of power, 244 ‘green light’ theory, and, 208 local government and, 245–6 Localism Act 2011 and, 61–2 Centre for Management and Policy Studies (CMPS), 166 certiorari see quashing orders charter marks, 166 citizens: ‘citizen involvement’, 288 participation and local government, 288–90 rights, constitutional protection of, 301–2 well-being of, 288–9 Citizen’s Charter, 166 John Major initiated, 166 civil liberties, 3, 222 civil servants: conduct of (regulation), 176–7 Development Select Committee, appearance before, 144–5 impartiality of, 174, 182 ministers’ contractual relationship with, 174 policy formulation and, 179–80 vetting sidestepped, 183 Civil Service, 176–8 accountability and, 176–7, 179 code of conduct for, 182–3 France, in, 177 government policy, role of, 177–8 history and development of, 177 impartiality, 177 management of, 182–3 market solutions and privatisation, 181 Prime Ministers and, 39–40 reduction of, 178, 179 re-organisation of, 178–9 structure and organisation of, 178 Civil War (1642–9), 16 closure rule (passage of legislation), 138

Index 311 coalitions: in Scotland, 264–5 2010 general election, after, 112 codes of practice, 173–4 principles for, 121 codification, constitutional, 304–5 codified constitution (UK), 2, 302–7 courts and, 195 collective responsibility, Cabinet’s, 93–4 collective rights in rule of law, 69–70 Commander in Chief of the Armed Services, Monarch is, 94 Committee on Standards in Public Life, 121 committee stage (House of Commons), 135–6 House of Lords’ amendments to bills considered, 137 committee stage (House of Lords), 136–7 advantages of, 137 common law, 27–8 case law for, 27–8 judges’ role in, 192 Parliamentary sovereignty and, 48–9 private law, and, 27–8 remedies, 212 statutory interpretation and, 192–6 Commonwealth: history of, 16, 21–2 monarch as figurehead, 22, 94–5 community strategies, 289 compensation: right to under prerogative (case law), 88–9 schemes for victims of crime (case law), 221 competence, local council’s power of, 291 Comptroller and Auditor General (CAG), 150 Compulsory Competitive Tendering (CCT), 287–8 Concordat on Co-ordination of European Union Policy Issues, 267 concordats, 245 management of, 263–4 congestion charging scheme, 282 Congressional Committees (US), Department Select Committees, comparison with, 142 Conservative Party (UK): EVEL and, 276–7 2010 general election results, 110 2015 general election results, 111 UK Bill of Rights proposal, 237–8 constituencies, size of, 109

Constitutional Reform Act 2005, 46, 76, 81, 129, 191–2, 197, 200, 202–3 constitutional role of courts, 191–242 introduction, 191–2 constitutional statutes (UK), 26–7 constitutions: accountability of, 302–3 codified see codified constitution Crown and, 85–103 definition and purpose of, 1–2 development of, 11–13 principles of, 45–84 safeguards, 13 South Africa, in, 303–4 UK Constitution, development of, 11–13 consultation period (legislation): Departmental Select Committees, by, 134 pressure groups by, 134 contract, Crown’s liability in, 98–9 agreement and accountability, 13 contract state, 213–14 contracted services, local authorities’, 287–8 conventions, 32–43 accountability and, 43 aim of, 33 Cabinet’s collective responsibility, 161–2 characteristics of, 34 constitutional, 25–6 Crown and, 37–8 definitions, 33–6 Dicey’s definition, 33–4 discretion and, 37, 95 disregarding, 36 executive power and, 43 individual ministerial responsibility, 171 Jenning’s definition, 34–5 judges’ roles and, 41–2 Parliament and, 40–1 Prime Minister, and, 38–40 practices as, 35–6 reason for, 35 ‘Salisbury Convention’, 41 Sovereign advised by Prime Minisiter, 38 validity of, 34–5 co-ordination and control and local government policy, 170 Coulson, Andy (Director of Communications for Prime Minister), 8, 183 Council of the European Union, 52 council committees’ powers, 285 council tax, 285–6 increases, council tax payers’ consent for, 292

312 Index county councils’ responsibilities, 284 courts (UK): accountability to Parliament (case law), 77–80 balance of power (Parliament’s), 218–19 challenge of statutes, 49 codified constitution (UK), 195 constitutional change and, 305 constitutional role of see constitutional role of courts devolution and, 268–73 flat rate court fee (case law), 220 immigration service and (case law), 235–6 impartiality of, 306 Parliament and, 50, 218–19 powers and proportionality test, 227 powers of under Human Rights Act, 223–5 public bodies, are, 226 Scottish and legislation for devolution, 268–9 Strasbourg case law, application of, 238–9 Crown: appointment of Prime Minister, 37–8 approval of, Parliamentary legislation and, 37 concept of, 96 constitution and, 85–103 contract, liability in, 98–9 conventions and, 37–8 damages awards against, 99 definition, 96 immunity of, 96 privilege, 97 tort, liability in, 98–9 Culture, Media and Sport Committee (UK), 10 damages, awards against the Crown, 99 decentralisation: EU funding and, 268 subsidiary in Europe and, 244–5 decision-making and citizen’s participation in, 209 declaration (remedy), 212 declaration of incompatibility, 224–5 decolonisation, British, 21–3 decommissioning of weapons (Northern Ireland), 261 delegated legislation, 80, 139–40 Parliamentary scrutiny and, 139–40 Welsh Assembly measures, 257 democracy: electronic, 186

liberal see liberal democracy local, 289 representative, constitution based on, 303–4 democracy model (Sustein’s), 2–3 Democratic Unionist Parties (DUP) (Northern Ireland), 261 democratisation in Scotland, 265 Department for Work and Pensions, Public Accounts Committee’s scrutiny of, 151 Department of Economic Affairs (1960s), 169 Department of Transport, Local Government and the Regions (DTLR), 169 Departmental Select Committees (est. 1979), 141–5 Cabinet Office guidance for appearing before, 145 chairs of, 146–7 composition of, 141 Congressional Committees (US), comparison with elections, 142–6 executive, check on by, 142 function of, 142 independence of, 146 inter-party co-operation, effect on, 147–8 introduction, 32 July 2015, as at, 143–4 (table) members, election of, 146–7 membership of and Whips, 146 ministers’ and civil servants’ appearances before, 144–5 public bill committees, comparison with, 144 public reports of, 144 purpose of, 141 reconstitution of, 144 revision of (1970s), 142 roles of, 147 transparency and, 147 Deputy First Minister (Northern Ireland), election of, 271–2 Deputy Prime Minister, office of, 169–70 devolution, 246–73 background, 246–7 courts and, 268–73 England and, 273–6 funding, 262–3 Human Rights Act, replacement of and, 239–40 intergovernmental relations and, 263–4 legislation for, 243–4, 246–7 local governance and, 243–96

Index 313 Parliament after, 106–7 Parliamentary reform and, 276–8 proportional representation, 247 public expenditure changes, 262–3 referendums for, 60 royal assent, 258, 269 Scottish see Scottish devolution UK and, 300–1 Wales, in, 255–8, 269, 271 West Lothian question, 106–7, 274 Director of Communication, 168 disarmament process (Northern Ireland), 259 discretionary powers and rule of law, 66 district councils’ responsibilities, 283 divine right of kings, 16 doctrine of implied repeal, 47–8, 57–8 doctrine of primacy, 52–3, 54 due process and rule of law, 70 e-government, 166, 186–7 e-petitions and popular democracy, 148–9 ‘economy, efficiency and effectiveness’, measurement of, 180 ‘elected monarch’ style of leadership, 158 elected second chamber, 129–30 drawbacks of, 130 House of Commons, comparison with, 131–2 elections: calling, Monarch’s role, 92 government formation after, 91–2 House of Commons and, 108–15 Scotland, in, 264–5 Wales, in, 264–5 ‘elective dictatorship’, 59, 75, 157, 188, 305 electoral reform, House of Lords response, 126 electronic democracy, 186 electronic voting, 113 Elizabeth I, Queen, 15, 19, 106 Elizabeth II, Queen, national identity of, 87 England: Barnett formula, funding under, 273–4 devolution and, 273–6 union with Scotland, 19–20 English Bills: House of Commons Speaker designates, 107 passage of, 136 voting on, 276–7 English Grand Committee of Members of Parliament, 107, 301

English legislation: definition, 107–8 House of Commons Speaker’s determination of, 108 English parliament, proposal for, 275 English Regional Government, proposal for, 275–6 English Votes for English Laws (EVEL), 107–8, 276–7, 301 committee stage introduced, 276 English Bill, treatment of, 136 equality and rule of law, 66–7 Equality Commission for Northern Ireland, 259 Europe: subsidiarity in and decentralisation, 244–5 UK involvement with, 22–3 European Commission, 52 Treaty of Lisbon 2007 and, 29 UK Bill of Rights, opinion on, 238 European Committee in Scotland, 268 European Constitution, 29, 298–9 draft, referendums for, 299 European Convention rights, court’s interpretation of, 58 European Convention on Human Rights: convention rights, 227 freedom of expression and, 30, 231, 229 Scottish legislation, incompatibility with, 269–70 summary, 30–1 European External Affairs Directorate, 268 European Parliament, 29, 52, 299 European Union: French approach to, 299–300 funding from, 268 law making process, 30 member states, implications for, 28 political accountability, 299 treaties, 298–9 UK membership of, 22–3, 54–5, 298–300 European Union Act 2011, 29–30, 55–7 European Union law and, 57 objective of, 56 UK constitution, implications for, 29–30 European Union law, 28–30 European Union Act 2011 and, 57 implementation of in UK, 267 member state in, 52–3 Parliamentary sovereignty and, 52–5 protection of rights (case law), 53 referendums (UK) on, 57 rights and obligations enforceable in UK, 28–9

314 Index EVEL see English Votes for English Laws Exchange Rate Mechanism (ERM), 119, 175 UK withdrawal from, 119 exclusivity principle defined, 213 executive: Departmental Select Committee, check on, 142 government and, 157–90 parliament, accountability to, 181–2 executive accountability: law and, 77, 249 New Public Management, and, 178–82 executive dominance, 188 model, 58–9 executive power (Parliamentary): concluding remarks, 153–4 conventions and, 43 executives: local authorities’, 289 local government, 289 expenses scandal, 122–4 express repeal, 50–1 external audits for local authorities, 291 fairness rule and judicial review, 217 false accounting, 124 finance, parliamentary scrutiny of, 151–2 First Minister (Northern Ireland), election of, 271–2 first past the post electoral system, 108–11 consequences of, 109 history of, 108–9 objections to, 112 operation and method of, 109 strengths of, 111–12 first reading (passage of legislation), 134 First Secretary (Wales), powers of, 256 foreign nationals, detention of (case law), 233 Forward Strategy Unit (FSU), 166 France: administrative law, 66, 204 Civil Service, 177 debt crisis in Europe, 300 European union, approach to, 299–300 First and Fifth Republics, 14 Germany, relationship with, 22 head of state, 101 mayors, 293 referendums, 29 revolution, 18 school dress codes, multiculturalism in, 232 freedom, defence of, 67–8

freedom of expression, 4–7 ECHR and, 30, 213, 229 media and see media Freedom of Information Act 2000, 183–6, 188 ‘absolute exemption’, 184–5 aim of, 184 exempt categories, 184–5 qualified exemptions, 185 freedom of information requests test case, 185–6 freedom of speech, 120 national security considerations (case law), 229 political (case law), 229–31 proportionality and, 229 feudal system, 14–15 funding from European Union, 268 fusion of powers (UK constitution), 74–5 general elections: date set by Prime Minister, 159–60 dissolution of parliament after, 38 postponement of, 93 2001 see 2001 general election 2010 see 2010 general election 2015 see 2015 general election vote of confidence, loss of after, 39, 40–1, 49 Germany, 22, 69, 71 administrative law, 205 France, relationship with, 22 civil service, 177 mayors, 293 subsidiarity, 244 ‘Glorious Revolution’ 1688, 86, 119 ‘Good Friday’ Peace Agreement 1998, 246, 259, 260, 261, 301–2 governance in UK, 11–13, 82 government: executive and, 157–90 formation of and House of Commons, 113–15 formation of by Prime Minister, 159 formation of, Monarch’s role, 91–2 Internet and, 166–7 openness, 183–6 opposition’s co-operation with, 119 selection of by Prime Minister, 114 Tony Blair and, 169–70 government departments: accountability, 169 local government, responsibility for, 169–70

Index 315 Prime Minister’s control of, 168–70 transport, responsibility for, 169–70 government ministers’ judicial decisions criticised, 79–80 Government of Wales Act 1998 (GWA), 246, 255–6, 257, 269, 271 Government of Wales Act 2006 (GWA), 258, 271 government policy, co-ordination and control, 170 Grand Committee for English Votes for English Laws, 107 Greater London Authority areas, 280 Greater London Council: abolition of, 284–5 legality of policy decision (case law), 219–20 Green Book financial allowances, 123 ‘green light theory’, 207–11 accountability and, 208–9 centralisation of power and, 208 citizens’ participation in decision-making, 209 development of, 207–8 public bodies and agencies, 208 red light theory, compared with, 210–11 statute law and, 208 tribunals and, 209–10 Green Papers, 134 Green Party, 265 ‘guillotine rule’ (passage of legislation), 138 ‘Hackgate scandal’, 8–10 Head of State, Monarch is, 94 Head of the Commonwealth, Monarch is, 94–5 healthcare: Herceptin, supply of (case law), 233 individual claims and, 233 ‘Henry VIII clause’, 80, 139 Parliamentary sovereignty and, 194–5 Henry VIII, King, 15, 19, 29, 106 Herceptin, supply of (case law), 233 hereditary peers, 128 hierarchy: civil service, 177 government, in, 157 history, importance of, 14 Home Affairs Committee (UK), 10 Home Office, 80 Executive and courts, friction between, 78 High Court order ignored, 27, 220–1 Home, Sir Alec Douglas, Prime Minister, 114

House of Commons, 115–25 composition of, 115 elected second chamber, comparison with, 131–2 elections and, 108–15 formation of government and, 113–15 Members of Parliament and, 115–17 powers of, increased, 63–4 reform of, 146 House of Commons Speaker, 115, 117–18 devolution and, 108 election of, 41 emergency debates and, 117 English Bill, designates, 107 English legislation and, 108 expenses scandal and, 122 historically, 16, 119 impartiality of, 41, 108 judicial scrutiny, 108 reform of (2009), 146 warrant, 120 Wright Committee Report (2009), 146 House of Lords, 125–32 composition of, 127–9 delaying legislation, right to, 137–8 electoral reform, response to, 126 functions of, 125 history of, 125–7 introduction, 125–7 Jackson case and, 65 Parliament Act 1911 and, 126–7 passage of legislation through, 126–8 political representation in, 129 powers of, 18–19 reduction of size, reform for, 131 reform of, 121–2, 125–7, 129–32, 278, 302 regulation of powers, 63 secondary legislation, powers of veto (2015), 127, 132 Senate for the Regions, replaced by, 132 territorial governance and reform of, 132 House of Lords Reform Bill 2012, 131–2 House of Lords Speaker: Lord Chancellor is, 75, 146 Lord Speaker, 198 Human Rights Act 1998: aim of, 57 case law, 228–36 criticism of, 236–7 effect of, 58 horizontal effect, 226 Parliamentary sovereignty and, 195–6 proportionality test, application to, 227–8

316 Index Section 2, amendment of, 238–40 sovereignty and, 57–8 UK, effect on, 223 UK legislation, compatibility with, 223–5 vertical effect of (case law), 225–6 hung parliament, change of government under, 114 Hunting Act 2004 and parliamentary sovereignty, 63 Hutton Inquiry (2004), Tony Blair establishes, 71 ICT and government, 186–7 immigration: foreign nationals, treatment of (case law), 234 government powers, limits on (case law), 220–1 immigration cases and judicial review, 212 Immigration Service and courts (case law), 235–6 impartiality: BBC, of, 7 Cabinet Secretary, of, 164 civil servants, of, 174, 182 courts,of, 306 House of Commons Speaker, of, 41, 108 Monarch, of, 95 implied repeal, 51 case law, 51 income tax in Scotland, 251–2 incompatibility, court’s declaration and Parliamentary sovereignty, 58 independence: accountability and, 174, 182 BBC, of, 7 EVEL, and, 276–7 judicial see judicial independence parliament, of, 119, 120 Scottish see Scottish independence SNP and, 253 Zimbabwe, of, 22 Independence Referendum (Scotland) (2014), 60, 244, 252–4, 257, 294, 300 results, 254 SNP and, 252–4 Independent Monitor of the Press (IMPRESS), 67 Independent Parliamentary Standards Authority (IPSO), 6, 10–11, 123 individual ministerial responsibility and political accountability, 171 individual rights and rule of law, 69 inequality and rule of law, 67

Information Commissioner, 185 information, public access to, 186–7 injunctions, 212 Intelligence and Security Committee, 163 intelligence services and Prime Minister, 163 intergovernmental co-operation and Sewel Convention, 264 intergovernmental relations and devolution, 263–4 Internet: access and e-government, 187 government and, 166–7 public engagement and, 187 inter-party co-operation, Departmental Select Committees, effect on, 147–8 Iraq: legality of second war against, 185–6 UK involvement in, 71 Ireland, union with England, 20–1 Irish Republic and Northern Ireland Assembly, 260 Italy, independence of broadcasting and print media, 5–6 Jackson case: House of Lords and, 65 sovereignty and, 62–5 ‘joined-up’ government, 170, 288 ‘judge over your shoulder’ (circular), 212 judges: common law role, 192 constitutional power of, 305 politics and, 78–9 powers under Human Rights Act, 223–5 retirement of, 201 role of and conventions, 41–2 security of tenure, 17 Supreme Court, appointment to, 202 tribunals and, 81 judicial appointments, 41–2, 198–201 equality and diversity considerations, 200 politicisation of, 198–9 social class, on basis of, 199–200 US, in, 199 Judicial Appointments Commission (JAC), 200–1 composition of, 200 ratification of appointments, 200–1 judicial decisions, government ministers’ criticism of, 79–80 judicial independence, 41–2, 197 Act of Settlement 1701 and, 201 judicial appointments, of, 191

Index 317 Lord Chancellor maintains, 197 separation of powers and, 46, 79 judicial review: administration law and, 204 applications, increase of, 211–12 asylum claims (case law), 79–80 asylum seeker from Zaire, 77–8 basic principle, 215–16 case law, 219–22 courts and parliament, balance of power, 218–19 fairness rule and, 217 fettering principle, 217 granting of, 211 grounds of, 215–18 immigration cases, for, 212 impact of, 211–15 jurisdictional error, 217–18 natural justice and, 217 parliamentary sovereignty limits, 194–5 public bodies’ decisions, 212 public law and, 213 royal prerogative (case law) and, 88–90 Scottish acts of parliament, for, 272–3 Scottish devolution issues for, 270 separation of powers and, 46 statutory ouster clauses, 217–18 sub-grounds and categories, 217 terminology of, 216 judiciary: Parliament and, 62–5 ‘red light theory’ and, 206–7 justice powers (Northern Ireland), devolution of, 261 ‘kangaroo’ rule (passage of legislation), 138 Labour Party: old Labour policies, influence of, 266 2010 general election results, 110 Law Lords (Lords of Appeal in Ordinary), 75–6, 129 UK Supreme Court and, 202 law, politicisation of, 306–7 legal aid budgets, government cuts for, 222–3 legal equality, 46 legal sovereignty, 205 definition, 64 legal treaties for UK constitution, 31–2 legislation: assent for, Monarch’s role, 93 English see English legislation passage of see passage of legislation

Legislative and Regulatory Reform Bill, 139 Leveson Inquiry (2011), 9–11 liberal democracy: definition of, 2–3 minority interests, 3 Parliament and, 3 Liberal Democrats: minorities and, 3 2001 general election results, 110 2010 general election results, 110 2015 general election results, 111 Life Peerage Act 1958, 128 life peers, 128–9 local authorities: “best value” performance plans, 287 contracted services, 287 definition, 283 external audits for, 291 planning services, 287–8 powers of, 285 spending powers, 245 spending restricted, 293 local communities, power shift to, 290–1 local councils, power of competence, 291 local councillors’ wards, 283 local governance and devolution, 243–96 local government, 279–96 boundaries, reorganisation of, 284 citizen participation and, 288–90 England, fiscal arrangements and 2015 election, 286 executives, 289 financing of see local government funding framework of, 283–5 government departments responsible for, 169–70 introduction, 279 legislation for, 279 London boroughs, (1985), reform of, 284–5 market-driven policies, 287 metropolitan district councils (1985), reform of, 284–5 privatisation of services, 292 public involvement with, 245 referendums and, 61 responsibility for, 169–70 review of local authority executives, 289 rural councils, 284 trends in, 292–3 local government funding, 285–6 central government grants, through, 285 council tax, through, 285–6

318 Index financial dependency on Westminster, 285–6 fiscal arrangements, revision of (2015), 286 raising local revenue, 285 local government ombudsman, 291 local government spending, capping, 286 local services, referendums for, 293 local taxation and public services, 263 Localism Act 2011 and referendums, 61–2 London, local government restructuring, 284–5 London Mayor, 280 capital funding package, 281 functions of, 280–1 London Transport and, 281, 282 separation of powers, 281 London Transport and London Mayor, 281, 282 London-wide government, 280–3 Lord Chancellor: appointment of Supreme Court judges, 202 Constitution Reform Act 2005, role changes after, 202–3 current responsibilities, 197–8 Department, 75 judicial independence, maintenance of, 197 legal background and experience of, 196–7 Ministry of Justice, head of, 197 ratification of judicial appointments, 200–1 reforming office, 196–8 role of, 75–6 separation of powers, 196 2003 reforms, 196–7 Lords Spiritual, 128 Magna Carta (1215), 14–15 Major, John, Prime Minister, 71, 119 Citizen’s Charter, initiated by, 166 collegiate leadership style, 158 courts and, 211 disunity in government, 168 special advisers, 165 Manchester Mayor, 283 mandating orders, 212 Matrix Churchill affair 1992, 98, 184 directors, prosecution of, 174 Mayor of London see London Mayor mayors, direct elections for, 293

media: freedom of expression and, 4–7 influence and phone hacking, 8–11 political function, 4 public watchdog, as, 4–5 statutory regulation, 6–7 member states and European Union law, 52–3 Members of Parliament: accountability and, 121, 142 business interests, 121 conduct of, 120–1 expenses scandal, 4–5 geographical and local aspects of role, 116 outside interests, 134 role of in House of Commons, 115–17 voting with the opposition, 116 Memorandum of Understanding (MOU), 263–4 metropolitan area councils abolished, 284–5 ministerial accountability: arms to Iraq scandal, 174 failure, 174 ministerial advice and Monarch’s role, 93–4 ministerial appointments and Monarch’s role, 92–3 ministerial incompetence, 175–6 minister’s survival after, 175 ministerial resignation and policy failures (examples), 175 ministerial responsibility, 188 accountability to Parliament, 181–2 answerability to Parliament, 172–3 definition, 175–6 Press and, 175–6 resignations, 172–3 ministers: accountability, 43, 173, 176 appointment and dismissal of by Prime Minister, 161 civil servants’ contractual relationship with, 174 Development Select Committee, appearance before, 144–5 Members of Parliament, as, 171 policy formulation and, 179–80 resignation of, 172–3 Ministers of the Crown Act 1975, 169 Ministry of Justice, Lord Chancellor heads, 197 minorities and Liberal Democrat interests, 3 Modernisation Committee of the House of Commons, 147

Index 319 monarch and monarchy: absolute, 14–17 appointments and honours, role in, 93 assent to legislation, 93 calling elections, role in, 92 Commander in Chief of the Armed Forces is, 94 constitutional in Spain, 101–2 constitutional role of, 90–5 evolution of, 85–7 formation of government and, 91–2 future of discussed, 99–101 Head of State is, 94 Head of the Commonwealth is, 94–5 history of royal prerogative, 85–6 impartiality of, 95 ministerial advice and collective responsibility, 93–4 ministerial appointments, role in, 92–3 powers of discussed, 95–6 Prime Minister, appointment of and, 39 Murdoch, James, 10 Murdoch, Rupert, 8–9, 10 National Assembly of Wales, 256–7 National Audit Office: Public Accounts Committee, and, 150–1 role of, 150 natural justice and judicial review, 217 negative liberty, 67 New Public Management (NPM): executive accountability and, 178–82 initiative, 178–82 role of, 180 News International, 9–10 News of the World hacking scandal, 8, 148 Next Step Agencies, 178–9 Nolan, Lord, 119–20 non-nationals’ preferential treatment in detention (case law), 234–5 North-South Ministerial Council (Northern Ireland), 260 Northcote-Trevelyan Report (1854), 177 Northern Ireland: ‘Good Friday’ Peace Agreement 1998, 246, 259, 260, 261, 301–2 devolution case law, 271–2 power-sharing, 258–61 Unionists and Republicans (Northern Ireland), reconciliation of, 259 Northern Ireland Act 1998: devolved government, restoration of order, 259

Northern Ireland Assembly, 260, 301 Irish Republic, links with, 260 open government, 266 Northern Ireland Human Rights Commission, 259 Northern Ireland Justice Department, 301 Office of Communications (OFCOM), 7 open government: Northern Ireland Assembly in, 266 Scottish Parliament, in, 266 Welsh Assembly, in, 266 opposition party, 118–19 choice of debates, 118–19 co-operation with government, 119 role of, 118 Panel on Takeovers and Mergers, 214 Parliament, 105–55 accountability to courts (case law), 77–80 balance of power (courts), 218–19 conventions and, 40–1 courts and, 50 definition, 105 Departmental Select Committees see Departmental Select Committees devolution, after, 106–7 dissolution of, 159 emergency debates and House of Commons Speaker, 117 executives, accountability to, 35 general elections see general elections history of, 105–6 hung, change of government under, 91, 114 independence, 119, 120 introduction, 105–7 judiciary and, 62–5 law maker, as, 47 legislative and executive functions, 46–7 legislator, as, 133–40 liberal democracy and, 3 ministerial answerability to, 172–3 powers of, 40–1 Prime Minister and parliamentary support, 158 privileges, 17 representative, 18 supremacy of, 74–5 Tudor period, in, 15–16 UK constitution, in, 74–5 watchdog, as, 140–55 Westminster Model and, 22, 142

320 Index Parliament Act 1911, House of Lords and, 126–7 Parliament Act 1949, effect of, 63–4 Parliamentary Commissioner for Standards, 121, 122 Parliamentary Committee on Standards in Public Life, 182 parliamentary democracy, 17–19 development of, 17–18 parliamentary legislation, approval of and the Crown, 37 Parliamentary Ombudsman, 152–3 access to, 152 function of, 152 investigations, examples of, 152–3 investigatory powers, 152–3 Parliamentary practice, rules and procedure for, 32 Parliamentary privilege, 119–20 case law, 120 granting of, 119 Parliamentary Questions, 117, 140–1 balloting procedures, 141 limitations of, 141 time available for, 141 Parliamentary reform (England) and devolution, 276–8 Parliamentary sovereignty, 47–65, 193–5 common law and, 48–9 Court’s challenge of Statutes, 49 definition, 47 Dicey’s views on, 64 erosion of, 55–7 European Union law, 52–5 Henry VIII clauses and, 194–5 Human Rights Act 1998 and, 195–6 Hunting Act 2004, and, 63 incompatibility, Court’s declaration of, 58 judicial review and, 194–5 limits to, 194–5 qualifications of, implications of, 55 rule of law and, 65–6 Treaty of Rome 1957, and, 52 UK membership of EU and, 54–5 US, in, 194 partnership, local government and the community, 288 party election broadcasts by Prolife Alliance (case law), 229–31 passage of legislation: closure rule, 138 first reading, 134 ‘guillotine’ rule, 138 House of Lords Committee Stage, 136–7

House of Lords, through, 136–8 ‘kangaroo’ rule, 138 royal assent, 36, 37, 93, 95, 139 second reading, 134–5 US, in, 138 Passport Agency (1999) delays, 150–1 Performance and Innovation Unit (PIU), 166 Permanent Secretary, Government Communications, 168 Petition of Right 1628, 15, 16, 26 phone hacking: Leveson Inquiry, 9–11 media influence and, 8–11 planning permission, 287–8 planning services, local authorities’, 287–8 police powers (Northern Ireland), devolution of, 261 policy co-ordination and Prime Minister, 163–7 policy formulation, 179–80 Policy Unit and Margaret Thatcher, 164–5 political accountability, individual ministerial responsibility and, 171 political free speech, protection of the public and (case law), 229–31 political liberty, rule of law and, 71 political power: development of, 12 exercise of, 13 political sovereignty, 58–62 definition, 58 politics and judges, 78–9 popular democracy, and e-petitions, 148–9 power: absolute, 12–13 political see political power power-sharing (Northern Ireland), 258–61 background, 258–9 precedent, binding, 192–3 prejudice and Freedom of Information Act 2000, 185 Press: ministerial responsibility and, 175–6 self-regulation, 6 Press Complaints Commission, 6, 10 Press Office, Prime Minister’s, 167 policy announcements approved by, 168 public perception of government, 167 press ownership, 8–9 primacy doctrine, 52, 54 Prime Minister: appointment of, 37–8, 39 Cabinet and, 39, 160–3

Index 321 Cabinet Committees and, 160–1 civil service and, 39–40 formation of government by, 159 general election date set by, 159–60 intelligence services and, 163 invitation to become, 113–14 ministers appointed by, 161 office of during 20th century, 164–5 office origins, 158 parliamentary support of, 158 peers, appointment of, 127 policy co-ordination and, 163–7 political authority of, 162–3 powers, 39, 158, 159, 161 Press Office see Press Office, Prime Minister’s represents nation, 160 styles of leadership, 158 Prime Minister’s Office, 165 advisers in, 165 primus inter pares (collegiate leadership style), 158 print media see broadcasting and print media prisoner’s rights and privileged correspondence, (case law), 27–8 privacy, invasion of, 9–11 private Bills, 139 private law: common law and, 27–8 public law, distinguished from, 213–14 private Members’ Bills, 139 private right to be treated, and supply of Herceptin (case law), 233 privatisation, market solutions and civil service, 181 privatisation of services and local government, 292 prohibiting orders, 212 proportional representation, 112–13 devolution and, 247 proportional voting system, 264–5 proportionality, 218 balancing exercise, is, 228 freedom of speech and (case law), 229 religious beliefs, school dress codes (case law), 231–2 proportionality review, 226–36 proportionality test, 227–8 Court’s powers and, 227 Human Rights Act, application to, 227–8 Public Accounts Committee (PAC), 149–51 National Audit Office and, 150–1 operation of, 149–50

origin of, 149 remit of, 149–50 Public Bill Committees, 135–6 composition of, 135 consideration of bills by, 138 deficiencies of, 136 Departmental Select Committees, comparison with, 144 effectiveness of, 136 influence over parliamentary bills, 135 reform of, 278 public bills, consultation period, 134 public bodies and agencies: accountability, 186 Courts are, 226 Court’s determination of, 225–6 green light theory and, 208 judicial review and, 212 quashing order and, 216 public engagement, Internet and, 187 public expenditure: accountability and, 149–50 Barrett formula and, 262–3 public functions, Court’s determination of, 225 public interest, immunity (PII), 97–8 case law, 97–8 public law: judicial review and, 213 private law, distinguished from, 213–14 public law issue, definition, 213 public-private partnerships, 293 public sector: market-driven policies, 287 Tony Blair and, 166 public services: local taxation and, 263 provision and green light theory, 207–8 quashing order, 212, 216 rape trials, conduct of (case law), 224 Rechstaat, 11–12 ‘red light’ theory, 205–7 ‘green light’ theory compared with, 210–11 judiciary and, 206–7 referendums, 292 alternative vote system and, 112 devolution and, 60 EU law on, 57 EU treaties and law on, 56 examples of, 59–60 France, in, 29

322 Index generally, 59 local government and, 61 local services, delivery of, 293 Localism Act 2011 and, 61–2 need for, 289–90 ‘no’ vote, effect of, 57 regional, 60–1 regional and local government, for, 61 regional and local government, referendums and, 61 Regional Development Agencies (England), 276 Register of Members’ Interests, 121, 134 religious freedom, Muslim dress in schools (case law), 231–2 report stage (legislation), 136 representation in Parliament, 117 republican constitutions, 100 Richards Commission (2002), 257 right of discovery, 97 right to a fair trial, 222–3 right to free expression, 4 royal assent, 37, 93 95, 139 devolution, 258, 269 Royal Commission on the Reform of the House of Lords (2000) recommendations, 130–1 Royal prerogative, 87–90 definition, 88 function of, 87–8 government process and, 32 judicial review (case law), 88–90 personal element, 88 political element, 88 qualifying powers of, 90 statutory powers and (case law), 88–90 rule of law, 11–12, 46, 65–71, 171, 206, collective rights overlooked, 69–70 definition, 66–7 Dicey’s ideas adapted, 70–1 Dicey’s views criticised, 68–71 discretionary powers and, 66 due process and, 70 equality and, 66–7 examples of, 222 individual rights and, 69 inequality and, 67 Parliamentary sovereignty and, 65–6 political liberty and, 71 St Andrews Agreement (Northern Ireland), 261 Salisbury convention, 41, 125, 138

same-sex partners, tenancy rights (case law), 224 school dress codes, Muslim dress in schools (case law), 231–2 Scotland: coalitions in, 264–5 democratisation, 265 devolution, 60, 247–54 elections in, 264–5 finance provision, 251–2 income tax in, 251–2 judicial review for devolution issues, 270 local government boundaries, restrictions of, 284 nationalism, elements of, 247–8 student fees in, 266 tax-raising powers, 251–2 union with England, 19–20 Scotland Act 1998: powers of, 248 Scottish Parliament’s power under, 248–9 Scott Inquiry (1996), 71, 76, 145 Scott Report (1995–6), 145, 173–4, 184 Scottish Budget (2015–16), 251 Scottish devolution, 247–54 accountability, 274 legislation for, 268–9 Scottish First Minister, nomination of, 249 Scottish independence, 275, 277 UK membership of the EU and, 298 Scottish legislation passage of, 250 UK Parliament’s involvement in, 250 Scottish National Party, 265, 298 independence referendum and, 252–4 2015 general election results, 50, 111 UK Bill of Rights, opposition to, 239 Scottish parliament: challenges to legislation, 269–70 judicial review of Acts, 272–3 legislation for devolution, 268–9 open government, 266 powers under Scotland Act 1998, 248–9 safeguards for legislation, 269 second reading, 134–5 secondary legislation: House of Lords’ powers of veto for, 127, 132 Welsh Assembly and, 255 secondary picketing, 78–9 Select Committee chairs, election of, 146 Select Committee on Standards and Privileges, 121–2 role of, 122

Index 323 Select Committee on the Reform of the House of Commons (Wright 2009) see Wright Committee (2009) ‘self-correcting democracy’, 206 Senate of the Nations and the Regions replaces House of Lords, 132, 278 separation of powers, 46–7, 71–81 concept of, 46–7 concluding remarks, 81–3 historical development, 71–3 judicial independence, 46, 79 judicial review and, 46 Lord Chancellor and, 196 Mayor of London and, 281 overlapping powers, 80–1 UK, and, 72–3 US, and, 199, 71–2 Sewel Convention, 250 inter-government co-operation and, 264 simple majority election system see first past the post single transferable vote (STV), 131, 257, 260, 265 Sinn Fein political party (SF) (Northern Ireland), 110, 261 Smith Commission (2014), 254, 300 South Africa, 21 apartheid, 2 constitution, 2, 304 South Wales Sea Fisheries, 271 Sovereign in UK constitution, 74 sovereignty: doctrine of, 42, 195 Human Rights Act 1998 and, 57–8 Jackson case and, 62–5 popular, 59 special advisers, 39, 166, 168, 178, 182 spending, control of: council tax payers’ influence, 292 ‘spin doctor’ in Press Office, 167 Standard Spending Assessment, 286 Standards Commissioner, 121 standing, 214–15 definition, 214–15 group, 215 ‘victim test’, 215 state institutions (UK) and business, 81 statute law (UK), 26–7 green light theory and, 208 interpretation of, 193 statutes: constitutional, 55 Courts’ challenge of, 49 ordinary, 55

statutory codes of conduct, 291 statutory interpretation and common law, 192–6 statutory powers and Royal prerogative, 88–90 Strasbourg case law, application in UK Courts, 238–9 Strategy Unit (2002), 166–7 Strathclyde Review (2015), 127 student fees in Scotland, 266 subsidiarity, 244–5 decentralisation in Europe and, 244–5 EU funding and, 268 ‘substantial harm test’, 146 Supreme Court (UK), 76, 201–3 appointment of judges to, 202 jurisdiction of, 201–2 Thatcher, Margaret: Policy Unit, 164–5 resignation, 162–3 ‘third way’, Blair’s, 290 threshold test of reliance, case law, 234 tort in Crown’s liability, 98–9 transparency, 307 accountability and, 12–13 Departmental Select Committees and, 147 finance and, 152 inter-governmental relations, 264 judicial appointments, 198 local government and, 289 Transport for London (TfL), 282 transport, government departments responsible for, 169–70 Treaty of Lisbon 2007, 29–30, 52, 298 supremacy clause, 57 UK constitution, implications for, 29–30 Treaty of Rome 1957: anti-discrimination provisions, 53 Churchill and, 22 Denning on, 28–9 European Community Act and, 27, 28 parliamentary sovereignty and, 52 Treaty of the European Union (TEU): Article 3B, 244 Article 5.3, 244 Article 5.4, 244 tribunals, 81–2 administrative, 204, 209, 216 “green light” theory and, 209–10 “green light” view, 207–11 information tribunal, 5, 185 judges and, 81

324 Index 2001 general election: change of government in a hung parliament, 114 results, 110 (table) 2010 general election: coalition agreement, after, 112 results, 110 (table) 2015 general election: English local government fiscal arrangements, 286 results, 111 (table) Scottish National Party, success of, 50, 111 two-party system, 116 United Kingdom (UK): devolution and, 300–1 Europe, involvement with, 22–3 European Union law, implementation of in, 267 European Union, membership of, 298–300 European Union rights and obligations enforceable in, 28–9 evolution of, 19–21 Exchange Rate Mechanism, withdrawal from, 119 governance in, 11–13, 82 Human Rights Act’s effect on, 223 independence of broadcasting and print media, 6 Iraq War, involvement in, 71 Ireland and, 20–1 judicial impartiality, 76–7 Parliament involvement in Scottish involvement, 250 Scotland and, 19–20 subsidiarity and, 244 Wales and, 19 United Kingdom (UK) constitution: development of, 11–13 fusion of power, 74–5 judicial role, 76–80 Parliament’s role, 74–5 sources, 26–32 Sovereign’s role, 74 United Kingdom Independence Party (UKIP), 297–8 2015 general election results, 111 ultra vires doctrine, administration law, in, 204

United States (US): Federal Supreme Court function, 194 judicial appointments in, 199 parliamentary sovereignty in, 194 passage of legislation, 138 separation of powers, 199 Upper Tribunal, 210 Value for Money (VFM): audits, 171 reports, 150 veto: European Union members’ powers of, 30 Grand Committee’s powers of, 107, 301 House of Lords money bills and, 36, 126–7, 132, 153 national veto removed, 29 Public Bill Committees’ powers, 278 Scotland’s power of, 247 Wales’ power of, 257–8 ‘victim test’, 215 vote of confidence, 114–15, 116 ‘failure of bill at second reading’, 135 general election, following, 39, 40–1, 49 Tony Blair and, 116 voting: electronic, 113 rights, 18 ‘Vow, The’ (Scotland), 254 Wales: Assembly see Welsh Assembly coalition in, 264–5 competence of measures contested, 271 conquest by England, 19 devolution for see devolution, Wales, in elections in, 264–5 electoral system, 255 local government boundaries restructuring, 284 watchdog see Parliament Wednesbury: grounds, 218–19 unreasonableness or irrationality, 218–19 Welsh Assembly: composition of, 255 legislative powers, 258 open government, 266 powers of, 255, 256–8 women members, 265

Index 325 Welsh Executive, devolved matters, 256 Welsh legislation, veto powers at Westminster, 257–8 ‘West Lothian question’, 106–7 definition, 274 Westminster Model, 22, 142 Whips, 116, 118 Departmental Select Committees, membership and, 140, 146 government and, 74, 127, 135 House of Lords, in, 137

opposition to, 178 pairing arrangements, 41 Public Bill Committee members, decisions about, 135 White Papers, 134 Whitehall model (executive dominance), 58–9 Wright Committee (2009), 146–7 Wright reforms, 145–8 Zimbabwe, 22

326