Constitutional Reform in the United Kingdom: Practice and Principles 9781472558763, 9781901362848

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INTRODUCTION

This volume contains the papers presented at the inaugural conference of the Cambridge Centre for Public Law on 17 and 18 January 1998. It is clear that the United Kingdom's constitution is about to experience what the Lord Chancellor, when opening the Centre and the Conference, described (p. 7) as 'arguably the most radical programme of constitutional change since the Great Reform Bill of 1832'. Given this, we thought that the searchlight of expert scrutiny by judges, civil servants, political scientists, politicians, and constitutional lawyers - both academic and practising - should be brought to bear on the proposals at the Conference. We were fortunate in attracting a very distinguished group of chairmen, speakers, panellists, and over 200 delegates, including many actively involved in the formulation, implementation and scrutiny of the current proposals. The result was a lively, focused and expert discussion. As well as general commentary and analysis, speakers and delegates, taking up an invitation by the Lord Chancellor (p. 5) made a number of reasoned suggestions as to how the Bills currently before Parliament and the proposals in the Freedom of Information White Paper might be improved. Accordingly, with the support of the partners of Clifford Chance, we decided to publish the papers as quickly as possible and while the Devolution and the Human Rights Bills are still before Parliament. One consequence of this is that the papers below are in substantially the same form as the conference presentations. They represent 'work in progress' and their authors have had no opportunity to amend them. We originally intended to include the Devolution and Human Rights Bills as Appendices but they have been amended since the Conference and no doubt will be amended again, so we decided not to. The most up to date version of these Bills will be found at the Parliamentary website http*7/parliament.the-stationeryoffice.co.uk. We summarise the main points made in the individual chapters and in discussion at the Conference as well as the specific suggestions for improvements (in bold type) at p. v below. But the summary does not and cannot do justice to the reasoned arguments. We hope those who will be examining the Devolution and Human Rights Bills through the remainder of their Parliamentary progress, those who will be taking the Freedom of Information proposals from White Paper to Bill and those who will be formulating proposals for the reform of the House of Lords will find this a useful collection. In discussing devolution for Scotland and Wales it was clearly right for the Conference to consider what might be learnt from the experience of devolved government in Northern Ireland, Vernon Bogdanor's and Brigid Hadfield's papers (chapters 4 and 5) did this. But the current peace process in Northern Ireland has yet to bear fruit in concrete constitutional proposals, so we did not include discussion of such matters. The conference was also an occasion for the celebration of the 80th birthday of Sir William Wade. His massive contribution to our constitutional and administrative law was recognised by the presentation to him of a volume of essays, The Golden Metwand and the Crooked Cord: Essays on Public Law in Honour of Sir William Wade edited by two of us (C.F.F. and I.C.H.) and published by Oxford University Press. We are most grateful to OUP for their generous hospitality to delegates at a reception before the conference dinner. We are also grateful to many others. Our contributors met the very tight deadlines we set, and our chairmen, Lord Bingham of Cornhill, Lord Woolf of Barnes, Lord Browne-Wilkinson, Mr Justice Laws and Mr Justice

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INTRODUCTION

Sedley kept a firm but gentle control over the conference ensuring we kept to our tight schedule (commented on with continental awe by a delegate from Germany). Our panellists Sydney Kentridge Q.C., Sir Thomas Legg Q.C., Permanent Secretary of the Lord Chancellor's Department, Alan Russbridger, editor of The Guardian, and Michael Smyth of Clifford Chance provided the setting for a stimulating discussion that brought together a number of issues that had arisen in the earlier sessions. It was here that the difficult questions of how to balance the public interest in freedom of expression with that in individual privacy, the effect of the reforms on the role of and method of appointment of judges, and the implications for training were considered. Philip Brown and Michael Dean of the University of Cambridge's Board of Continuing Education provided efficient and cheerful administration and our publisher Richard Hart his usual 'author-friendly' service which included publishing this book within eight weeks of the conference. We thank the partners of Clifford Chance for their generous support which made the Conference possible, and particularly Michael Smyth and Richard Thomas for being so receptive to our idea when we approached them. We are also grateful for financial support from the Managers of the Faculty of Law's Yorke Fund and Trinity College's Hollond Fund.

16 February 1998

Jack Beatson Christopher Forsyth Ivan Hare

CONFERENCE CHAIRMEN, SPEAKERS AND PANELLISTS Professor Jack Beatson The Rt. Hon. Lord Bingham of Comhill Professor Vernon Bogdanor Professor Anthony Bradley The Rt. Hon. Lord Browne-Wilkinson Dr. Ross Cranston M.P. Peter Duffy Q.C. Professor Brigid Hadfield Mr. Robert Hazell The Rt. Hon. Lord Irvine of Lairg Sydney Kentridge Q.C. Mr. Bernard Jenkin M.P. The Hon Mr Justice Laws Sir Thomas Legg Q.C. The Hon. Lord Lester of Herne Hill Q.C. The Rt. Hon. Robert Maclennan M.P. Dr. Geoffrey Marshall Dr. Stephanie Palmer Robert Reed Q.C. Sir Robert Rhodes James Mr. Alan Russbridger The Hon. Mr Justice Sedley Mr. Michael Smyth Professor Michael Taggart Mr. Richard Thomas Professor Sir William Wade Q.C. Professor Sir David Williams Q.C. The Rt. Hon. Lord Woolf of Barnes

Rouse Ball Professor of English Law, Director of the Centre for Public Law University of Cambridge Lord Chief Justice Professor of Government, University of Oxford Barrister, Emeritus Professor of Constitutional Law, University of Edinburgh Lord of Appeal in Ordinary House of Commons Essex Court Chambers Professor of Public Law, Queens University, Belfast Constitution Unit, University College, London Lord Chancellor Brick Court Chambers House of Commons Royal Courts of Justice Lord Chancellor's Department 2, Hare Court House of Commons Provost, The Queen's College, Oxford Girton College, Cambridge Faculty of Advocates M.P.for Cambridge 1976-92 Editor, The Guardian Royal Courts of Justice Clifford Chance Faculty of Law, University of Auckland Clifford Chance Formerly Master of Gonville & Caius College, Cambridge and Rouse Ball Professor of English Law University of Cambridge; Emeritus Vice-Chancellor Master of the Rolls

THE CAMBRIDGE CENTRE FOR PUBLIC LAW The aim of the Centre is to promote research in the area of public law and regulation, and to develop into a research centre of national and international reputation. Its interests include constitutional and administrative law and theory, institutions, civil liberties, human rights, judicial control and regulation and regulatory systems. Financial resources permitting, the Centre intends to do this by providing: • A focal point for the exchange of ideas between academics, practitioners and others (including members of public and regulatory bodies, representatives of regulated industries and utilities, the Law Commission) through a conference, seminar and lecture programme. • Support for scholars, practitioners and students through Visiting and Research Fellowships and Studentships. • Dissemination of research output through publication. An individual or corporate body may become a 'Friend of the Centre' and receive: • The Centre's Annual Bulletin and selected publications • The Centre's conference, seminar and lecture programme • Priority booking and discount for the Centre's conference, seminar and lecture programme

Our website is at http://www.law.cam.ac.uk/ccpr/home.htm For further information, please contact Jack Beatson (Director), Christopher Forsyth or Ivan Hare (Assistant Directors) at the Centre. Centre for Public Law, University of Cambridge, Faculty of Law, lO.Westkoad, Cambridge CB3 9DZ Telephone ++44(0)1223 330033/330065 Facsimile ++44(0)1223 330055/330079 Email [email protected]

SUMMARY OF MAIN POINTS AND RECOMMENDATIONS1 MADE BY SPEAKERS AND DELEGATES • The Human Rights Act, the Devolution Acts, and the Freedom of Information Act will, once enacted, be practically impossible to repeal. DEVOLUTION: THE STRUCTURE OF THE U.K. (1) Scotland • The introduction of a judicial element in the definition of what powers are transferred implies a constitution for Scotland (Chapters 1-3, 5) • There was wide support for the structure by which in essence all power to legislate is devolved save for the reserved powers enumerated in the Bill • But concern about the meaning of the reserved power in Schedule 5, paragraph I of "the constitution" • The West Lothian question: incapable of logical answer: • Not so much a problem if the first past the post voting system for Westminster abolished (Chapter 1) • Other European countries with asymetrical devolution (e.g. Spain, Italy, Denmark, France re Corsica) are little exercised by this issue (Chapter 1): • May be no more than distraction by opponents of any devolution from the real issue: on what terms can we maintain the union by agreement (Keynote address but cf Chapter 4) • Effect on the higher judiciary in Scotland (Chapters 2-3): • The new constitutional role, with the power to strike down the legislation of the Scottish Parliament, may lead to greater support for different procedures for the appointment of judges, for example the establishment of a Judicial Appointments Commission. This is not a reserved matter under the Scotland Bill so that it will be for the Scottish Parliament to decide what changes, if any, should be made to the present system • The tenure of Court of Session judges, including the Lord President and the Lord Justice Clerk is not (as is that in respect of the higher judiciary in England) to be "during good behaviour". The power to remove them in clause 89(4) should be amended:1

Recommendations are in bold type.

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SUMMARY OF MAIN POINTS AND RECOMMENDATIONS MADE BY SPEAKERS AND DELEGATES

• By limiting it to cases to cases of "misconduct", or otherwise stating the grounds for removal, • By requiring some sort of inquiry and report before a vote is taken in the unicameral Scottish Parliament, and • By making it clear that the tenure of judges appointed under the pre devolution procedure should not be affected by the Scotland Bill. (Chapter 3) • The relationship between Whitehall departments and the Secretary of State for Scotland and the Scottish executive needs to be addressed in the Scotland Bill and not left to non-statutory understandings (Chapters 3 & 5) • Particularly in view of the broad powers (e.g. in clauses 92, 95 & 96) enabling the U.K. government to react in subordinate legislation to Scottish provisions, including a legislative power to "remedy ultra vires" acts (Chapter 3): • Rejection of arguments that the Scottish Parliament should be able, as the Westminster Parliament will be under the Human Rights Bill, to legislate in breach of the European Convention on Human Rights (Chapters 2-3) • Concern was expressed about the fact that a divided court of last resort will be created on constitutional issues, with some issues necessarily going to the Judicial Committee of the Privy Council and others only to the House of Lords, unless the House refers the matter to the Privy Council. Apart from the significant overlap of membership and the possibility of O'Reilly v. Mackman procedural nightmares of the sort the English courts have encountered, there was a belief that whatever the short term advantages of this solution, it is not likely to be a satisfactory in the long term (cf Chapter 2).

(2) Wales

• No rationale is given for the division of powers; the fact that Westminster is ultimately responsible for the government of Wales will create difficulties; sharing is more difficult than transfer; it will be more difficult for the Welsh Assembly to adopt an integrated approach to policy-making (Chapters 1, 4). • The distinction between legislative devolution and executive devolution will be blurred if primary legislation is broadly drafted (Chapter 1). This is likely to happen because the 1990s are the third great period of delegated legislation (Chapter 4). • The very broad discretion given to the Secretary of State for Wales in clause 32 of the Government of Wales Bill to engage in such pre-legislative consultation 'as appears to him appropriate', should be replaced by a duty to consult (Chapter 1). • The relationship between Whitehall departments and the Secretary of State for Wales and the Welsh assembly needs to be addressed in the legislation and not left to non-statutory understandings (Chapter 4 and see chapter 5).

SUMMARY OF MAIN POINTS AND RECOMMENDATIONS MADE BY SPEAKERS AND DELEGATES

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THE U.K.'s BILL OF RIGHTS • There was a general welcome for the Bill and the application of the European Convention on Human Rights to U.K. domestic law {Chapters 7, 9-11), tempered by unease on the part of some about whether the way the Bill seeks to do this whilst preserving the sovereignty of Parliament means that the Convention will not in fact be fully incorporated into domestic law (Chapters 6, 8). • Declarations of incompatibility between primary legislation and the Convention are likely to be rare because Parliament and governments will strive to avoid incompatibility and because the individual litigant ('the victim') is likely to get little direct benefit from such a declaration (Chapters 7 and 11). • But where such declarations are used, concern was expressed about the 'fast-track' procedure for amending incompatible statutes by subordinate legislation, albeit normally subject to the affirmative resolution procedure. Some felt that placing such far-reaching legislative powers into executive hands was itself offensive to the rule of law (Chapters 6 &8, cf. Chapter 11). • Practical problems are more likely to arise in the case of subordinate legislation and it will be necessary for provision to be made to limit the retrospective effect of any invalidity either by amending the Bill or by the common law, perhaps by a 'prospective declaration' of the type used in cases of judicial review.2 (Chapter 7) • While the breadth and flexibility of the definition of public authority were generally welcomed, different views were expressed about the scope of the Bill. The majority view was that its direct application is limited to public authorities (Keynote address & chapters 7 & 12) but Sir William Wade argues that, as a result of the duty imposed on the courts by clause 6(1) of the Bill to act in accordance with the Convention, it will (albeit . in a rather convoluted manner) be directly effective against private individuals and bodies (Chapter 6). • One of the consequences of the view that the Bill only applies to 'public authorities' is that different parts of the media might be treated differently. ITV and Channel 4 would apparently not be 'public authorities', whereas the BBC would be. This is unsatisfactory, as is the idea that the print media, not being public authorities, should be exempt from the Human Rights Act. • The deliberate exclusion of Article 13 of the Convention - the right to an effective remedy for breach of one's rights - was regretted (Chapters 6, 8, 11). • The provision in clause 7 of the Bill, that only 'victims' of an unlawful act have standing to sue was criticised as unnecessarily restrictive and potentially unfair in public law cases. The fact that it is a narrower test than the existing 'sufficient interest' test in cases of judicial review is likely to lead to procedural complexity of the sort that used to exist before 1977 when the standing tests for prerogative relief and declarations differed. (Chapters 6, 11) • There was concern about the issue of access to justice . In the absence of legal aid, support was expressed for the creation of a public body, a Human Rights Commission, to provide advice and guidance to those who wish to assert their Convention rights and to monitor developments (Chapter 11)

2

See e.g. R. v. Panel on Takeovers and Mergers, ex p. Guinness Pic [1990] 1 QB 146 and Law Commission No. 226 (1994) Judicial Review and Statutory Appeals, para. 8.22.

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SUMMARY OF MAIN POINTS AND RECOMMENDATIONS MADE BY SPEAKERS AND DELEGATES

THE REFORM OF PARLIAMENT • A smaller Parliament with a maximum of 500 members in each House {Chapter 12).

The legislative process • Fuller pre-legislative consultation {Chapter 13). • Evidence from witnesses on Bills before the standing committee stage {Chapter 12) and increased use of special standing committees {Chapter 13). • Increased opportunities for back-benchers to initiate and secure debate on private members' bills {Chapter 13). • More flexibility in allowing committees to sit during the Recess and Bills to 'roll-over' from one session to the next {Chapter 13). • Greater use of Committees for the second readings of non-controversial Bills {Chapter 14).

The relationship between the executive and the legislature • Systematic and monitored consultation on important secondary legislation {Chapter 13). • Transfer of certain powers now exercised under the Royal Prerogative to the House of Commons {Chapter 13). • Greater regulation of dissolution of Parliament for a general election {Chapter 13).

Reform of the House of Lords • Difficulty of starting a process of reform without a definite idea of what sort of chamber you want to create {Chapters 12 & 14; see also chapter IS). • The method of ending the voting and sitting rights of the hereditary peers {Chapters 13 & 15; cf chapters 12 &14) • A special body to advise on the appointment of peers to ensure that people of merit and achievement with no party affiliation were included {Chapter 12) and to develop new conventions for appointing peers {Chapter 15). • Movement from 'stage 1' (abolition of hereditary principle) to later stages of reviewing the role of the second chamber, its functions and its powers by a Joint committee {Chapters 13 & 15; cf chapters 12 & 14). • Possible timescale for Lords reform (page 138).

SUMMARY OF MAIN POINTS AND RECOMMENDATIONS MADE BY SPEAKERS AND DELEGATES

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• The practical implications of the government's manifesto commitment to review the appointment system to ensure that over time appointees reflect the proportion of votes cast at the previous general election (pages 140-143). FREEDOM OF INFORMATION • The White Paper was generally welcomed as avoiding many of the pitfalls of FOI legislation elsewhere, and recognising, for instance, that FOI was a consumer issue, and providing for an appeal to an Information Commissioner (Chapter 16). • There was concern that the Bill will be narrower than the White Paper and that the welcome and important decision to base the exclusions from the FOI principle upon a 'substantial harm' and (simple) 'harm' tests, i.e. upon the 'contents' of a document rather than on its 'class', was vulnerable. • There was anxiety about the 'retrospective' element, that the right of access will extend to information whenever supplied to a public body (Chapter 17). • The precise parameters of the policy advice exemption may need further elaboration. It was suggested that after a policy decision has been made, more policy and decision-making material may be made available (Chapters 16 & 17). • Although it was clear that national security should be excluded, since the security services have moved into more traditional policing areas and the investigation of fraud and computer security in Whitehall, the exclusion of all aspects of the security and intelligence services was open to question (Chapter 16). • FOI legislation will have a major impact on commercial bodies. Such bodies supply a vast amount of commercially sensitive information to public bodies voluntarily and pursuant to compulsory powers. They are likely to be important users of any FOI rights but also to have concerns about disclosure of information they have provided. (Chapter 17). • In order that those making the decision to disclose information should be aware of the confidential status or commercial sensitivity of information that has been provided to a public body and which may be the subject of a later FOI request, there should be a mechanism enabling organisations and individuals to signal their assertion from the outset that information is commercially confidential (Chapter 17). • Third parties should be notified of requests for information supplied by them to a public authority and should be given a right of appeal against a decision to accede to a request for the supply of such information (Chapter 17). • Concern was expressed about the fact that the cost regime could undermine the effectiveness of FOI legislation. A two-tier system of charges which differentiated business and individual requests was suggested' (Chapter 16) but it was also said that it would be unfair to levy different charges when the cost to the Department of providing the information is the same (Chapter 17). • It is important to ensure a good 'fit' between the FOI legislation, which will apply only to specified public bodies, and legislation implementing EU Directives on Data Protection, which will be of general application.

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SUMMARY OF MAIN POINTS AND RECOMMENDATIONS MADE BY SPEAKERS AND DELEGATES

THE JUDICIAL ROLE • The constitutional changes implied significant changes in the judicial role. Judges sitting on the Judicial Committee of the Privy Council will have power to strike down legislation of the Scottish Parliament that is outside its powers and judges in other courts will have important new powers in ruling on sensitive cases and applying the rights contained in the Human Rights Bill. • Questions might arise about whether more explicit rules were needed on the composition of the highest court of appeal in dealing with constitutional and other issues and about how judges were appointed. • The removal of political influence on the appointment of judges was relatively recent (since 1945). If the role of the judges changed because of the new constitutional legislation, there could be calls for their political opinions and personal views to be scrutinized before their appointment. Although it was suggested that vthere might be a need in the future to look for somewhat different qualifications in the highest judiciary, perhaps a sensitivity to social change, there was widespread agreement that it had to be ensured that even the suspicion of political appointment could not exist.

KEYNOTE ADDRESS THE LORD CHANCELLOR, LORD IRVINE OF LAIRG

Mr Chairman, Professor Beatson, I suppose, if I were to be formal, I should continue before this distinguished audience, my Lords, fellow Judges, Ladies and Gentlemen, but I think I prefer to say fellow toilers in the same vineyard. Thank you for inviting me to make the Keynote Address at this Conference, the inaugural event of the Centre for Public Law. I congratulate you on the programme you have assembled and the distinguished panellists whom you have gathered to debate the issues. The Deputy Director - Christopher Forsyth, who kindly met me yesterday evening at Cambridge Station, gave me a complete set of Conference materials which I thought I had better read more or less in full. It may be that this is a larger claim than the great majority of you at this Conference can make. The materials made me conscious that, in my short opening remarks, I could not hope to match up to the high quality of the detailed individual papers. I confess I went first to Sir William Wade's paper (Chapter 6) to see what he had made of our Human Rights Bill. I am responsible for its Report Stage on Monday. I know that I would be ill advised to compare myself, even in jest, with Lord Chancellors of the past, but at least Sir William could distinguish me from Lord Jowitt, who denounced the Convention as "some half baked scheme to be administered by some unknown court" and as "so vague and woolly that it may mean almost anything." Sir William is at the pinnacle in the firmament of constitutional lawyers in this country. Sadly I have commitments which prevent me from joining you at dinner this evening. That is a pity because I shall miss the presentation of a volume of essays to him on his eightieth birthday. For Sir William retirement is a change of occupation, as his presence as one of your panellists today proves. I confine myself now to wishing him many happy returns for yesterday. Your programme is brilliantly timed. It focuses on the

new Government's programme of constitutional change. Your Conference will be able to make a significant contribution to the vital contemporary debate about the structure and control of government in the United Kingdom. This Government came to power in May last year committed to the most ambitious and extensive programme of constitutional reform and modernisation undertaken by any Government this century - arguably the most radical programme of constitutional change since the Great Reform Bill of 1832. Our objective in the course of this Parliament is to put in place a detailed, coherent programme of measures to decentralise power; to modernise Parliament; and to maintain freedom under the law, but to make a decisive shift to a legally enforceable rights based system for the protection of fundamental human rights. Before the Election the former Prime Minister declared that we have no need of a Bill of Rights because we have freedom. It is true that we have the freedom to do what the law does not prohibit. It is also true that the law may violate fundamental human rights. The Human Rights Bill therefore represents Britain's recognition that freedom in the Diceyan sense is not cotenninous with the protection of fundamental human rights. There were many who doubted our commitment to the reform programme before the Election. Could anyone be a doubter today? When, in the early days of this Government, we declined to legislate on freedom of information by the easy expedient of putting our predecessors' Code of Practice, unchanged, on a statutory basis, there were no shortage of early fingers on the betrayal button. What we did was to take a few months to do a proper, home-grown, job which has been widely welcomed as a freedom of information regime as strong as any - and fulsomely praised by the Campaign for Freedom of Information. This Government is the enemy

THE LORD CHANCELLOR, LORD IRVINE OF LAIRG QC of the culture of secrecy that flourished under our predecessors. Our constitutional reform programme is wideranging. Legislative proposals to create a Scottish Parliament and a Welsh Assembly, which have been endorsed in referendums in both countries, are already before the House of Commons. A Bill to give greater effect to the European Convention on Human Rights in British law is approaching its Report and Third Reading stages in the House of Lords. For the first time, our citizens will be able to enforce their human rights effectively in British courts, instead of having to go to the Court in Strasbourg. This is both a listening and an inclusive Government. For evidence I need only cite the establishment of an independent Commission under the chairmanship of Lord Jenkins, to consider options for revising the system for electing the House of Commons. We have shaken up our electoral system by introducing legislation to use proportional representation to elect members of the European Parliament, as well as the Scottish Parliament and Welsh Assembly. We have begun the modernisation of the procedures of the House of Commons. And, on Tuesday, we started work in a new Cabinet Committee on the reform of the House of Lords. I add, but certainly not in parentheses, that the Government has also published proposals for an elected Mayor and Assembly for London, to be put to a referendum in the capital next May; published a White Paper and introduced a Bill to create regional development agencies throughout England; given the Bank of England independent authority over setting interest rates; made proposals to regulate the funding of political parties; and, last, but not least, taken steps to ensure that government statistics are produced independently and can command public confidence. So complex a programme of constitutional reform requires us to think through the detailed implications of each of our reforms, not only in themselves, but also ensure that the interconnections and linkages between each part are right. We may not, in every case, come up with the same answer to ostensibly similar questions - for example, we have a definition of "public authority" in the Human Rights Bill, to be worked through by the judges, but we have gone for a list in Freedom of Information - yet it is crucial that we are able to explain properly why a different solution is justified in each case; and we can. Let me concentrate on three of the four topics on which you are focusing at this Conference - devolution; the incorporation of the European Convention on Human Rights; and freedom of information. This is not

to diminish the importance of Parliament; but our reforms of the House of Commons and House of Lords are in their early stages and there is much less that I would be free to say about them today. First, devolution. It was recognised as a major achievement to produce comprehensive and fully informative White Papers on Scotland and Wales, both published in July last year, leading to referendums on 1 lth and 18th September respectively. In thirty hours of Committee work compressed into 11 weeks, preceded by, I can assure you, very much more work outside Committee, we covered ground that took several years last time the issues were considered in the 1970s but did not fructify. The group of officials, under Kenneth Mackenzie who is here today - who were presented to me by Sir Robin Butler from the Cabinet Secretariat to service the Devolution Committee, and subsequently the other Committees, were absolutely first class, in the literal sense that an audience such as this - Jack - would recognise. There has, however, been a deep involvement by officials in very many Departments: in relation to devolution; literally every Department; in relation to Freedom of Information, again literally every Department, but especially the Duchy of Lancaster; in relation to the Human Rights Bill the Home Office and, to a lesser extent, my own Department. All officials worked hard in short time scales to serious high standards. The devil of course is in the detail. It is, therefore, perhaps a major achievement that both the Scotland Bill and the Government of Wales Bill were published before the end of the year. Both have now received their Second Reading. In the next session, you will be discussing "the structure of the United Kingdom following the devolution referenda". I do not think Professor Bogdanor - we correspond a good deal on these subjects - overstates it at the outset of his paper when he writes: "Devolution is the most radical constitutional reform this country has seen since in the Great Reform Act of 1832. This is because it seeks to reconcile two seemingly conflicting principles, the sovereignty or supremacy of Parliament and the grant of self Government in domestic affairs to Scotland and Wales." I agree. Similarly our Human Rights Bill reconciles the supremacy of Parliament with the incorporation of the Convention. One thing I want to emphasise about the Government's proposals is that devolution is not a form either of federalism or independence for Scotland and Wales. The Union will be strengthened, not weakened, by devolution. Our proposals will enable the Union to evolve in a way which decentralises power,

KEYNOTE ADDRESS recognises a strong sense of identity where this exists, and extends political accountability. Vemon Bogdanor's section on asymmetrical devolution (post, pp. 13-16) made interesting reading. It suggests that the West Lothian Question is not so much a question as a challenge that the Question is incapable of logical answer. The paper invites consideration whether the West Lothian Question may be no more than a distraction by opponents of any devolution from the real issue: on what new terms can we maintain the union by agreement? I imagine this Conference will wish to debate these issues. The Government is determined to maintain both the integrity of the United Kingdom and the continuing sovereignty of the Westminster Parliament. The latter, no doubt unnecessarily, is emphasised on the face of the Bill. At the same time, we are determined that devolution be a reality: genuine, wide-ranging and lasting, not something to be set aside whenever that might happen to suit Ministers or civil servants in London. Two examples will illustrate how we have approached these twin objectives. First, the question of how to define the powers of the Scottish Parliament. In deciding the answer on this we looked at precedents. We considered more recent academic research. We examined the likelihood of legal challenges arising out of whatever mode of devolution was applied. We judged the clarity and the practicality of what was proposed. In the end, we concluded that, for Scotland, with its tradition of separate legislation, where the Parliament would have primary legislative powers, the approach more in the spirit of devolution was to specify those powers which were to be reserved to Westminster and the UK Government. Anything which was not reserved would be devolved. For Wales, on the other hand, where there is not and will not be any separate primary legislative power, it made more sense to devolve specific functions, that is, executive devolution. A second issue we had to address in relation to Scotland was any override powers which the UK Government could invoke under the new Act. It could be argued that override powers, by their very existence, provide an incentive to co-operation and resolution. It can equally be argued that their existence alone is a source of friction and a belittling of devolution. We decided, unlike our predecessors in the 1970s, that the balance of argument came down in favour of consultation and co-operation between the devolved administrations and the UK Government and against a general statutory power of override. It is true that the Scotland Bill contains a limited power of override for the UK Secretary of State, but this should only be needed if either the Scottish administra-

tion takes some action which cuts across the UK's international obligations; or a Scottish Parliament uses its power to legislate on Scots private law in a way which intrudes adversely on an area which is reserved to Westminster. We recognise that there may be disagreements about whether legislation by the Scottish Parliament or the Welsh Assembly or actions by the devolved administrations are within their powers. Most disagreements should be resolved by discussion. Where significant disputes cannot be resolved in this way, it should be possible to refer them, through a fast-track procedure, to the Judicial Committee of the Privy Council. This will enable important issues to be settled both swiftly and authoritatively. The paper, "Devolution and the Judiciary", by Robert Reed QC from Scotland, is a distinguished one. His analysis (see post, pp. 24-25) why the Privy Council, not the House of Lords, should adjudicate on vires issues fascinated me as I look back on the discussions in the Cabinet Committee. In addition to the possible reasons he suggests, he will recall that since the Act of Union there could be appeals in civil, but not criminal, matters to the House of Lords. But many, probably most, Convention issues will arise in criminal cases. He could tell you whether the Scots might be more comfortable with the Privy Council for that reason, as well as because, unlike the House of Lords, it is not part of Parliament and has its constitutional role as adviser to Her Majesty. I now turn to human rights. The Human Rights Bill has completed its Committee stage in the House of Lords. Next week is the Report stage. So it has nearly cleared the Lords where it began. These are particularly formidable hurdles for this Bill to clear, given how many distinguished lawyers and human rights experts sit in that House, not least Lord Lester of Herne Hill who is in his place today. His lifetime's dedication to human rights and incorporation of the Convention has been remarkable. The Bill is the Government's, but he and I should mention Lord Scarman too - has been the most eloquent and sustained advocate of what has now almost come to pass. As in Scotland, the key question we had to address in settling the Human Rights Bill was how to give real effect to our policy whilst preserving the sovereignty of Parliament. We reconciled the two by determining that the courts should be required to interpret legislation, so far as possible, in conformity with the Convention. Before the Second Reading of any Bill, the responsible Minister will be obliged to make a statement about a Bill's compatibility with the terms of the Convention. By requiring this statement, we are underlining our commitment to undertaking further pre-legislative

THE LORD CHANCELLOR, LORD IRVINE OF LAIRG QC scrutiny of all new legislative measures. Where a Minister states that he is unable to make a positive statement, that will be a very early signal to Parliament that the human rights implications of the Bill will need to receive the closest consideration. Clause 3 of the Bill provides that legislation, whenever enacted, must as far as possible be read in a way which is compatible with the Convention rights. This will ensure that, if it is possible for the judge to interpret a stature in two ways - one compatible with the Convention and one not - the courts will always choose the interpretation which is compatible. In practice, this will prove a strong form of incorporation. In the very rare cases where the higher courts will find it impossible to read and give effect to any statute in a way compatible with Convention rights, they will be able to make a declaration of incompatibility. This is a unique legislative concept. When I read Sir William Wade's paper last night I understood that he regarded the "weak part" of the Bill as its failure to incorporate the Convention rights themselves. I became happier when he continued: 'The "strong" part, and the Bill's unique feature, which has no analogy in New Zealand, or, as far as I know, elsewhere, lies in its provisions about declarations of incompatibility." It is quite different to striking down an Act of Parliament. The judges would, I believe, have been unhappy with a power to negate or disapply Acts of Parliament. In any event, the Government was determined to uphold the ultimate sovereignty of Parliament. Sir William was troubled that in our House of Lords Debates "there was no mention of the rule of law." He continued: "Yet to allow questions of personal legal right to be decided by executive discretion offends against the rule of law in its most basic sense, the rule of law as opposed to the law of discretionary power." But what the Bill will do is not incorporate the Convention rights themselves, but legislate for an interpretative principle. I do not believe the rule of law is offended. With the greatest respect I believe Sir William's point is a reflection of his conviction that the Convention rights as such should have been incorporated, but that we chose not to do because it could lead to judges striking down or disapplying Acts of Parliament. Constitutional change, like politics, is the art of the possible. If a declaration of incompatibility is made, it will be for Parliament to decide whether there should be remedial legislation. Parliament may - not must, but in practice, we believe, usually will - legislate. If a Minister's prior assessment of compatibility is subsequently found, by a declaration of incompatibility by the courts, to have been mistaken, it is hard to see how the Minister could withhold remedial action. There is a fasttrack route for Ministers to take the necessary remedial

action by Order. But the remedial action will not retrospectively make a lawful act - lawful because sanctioned by Statute - unlawful. This is the logic of the design of the Bill. It maximises the protection of human rights without trespassing on Parliamentary Sovereignty. The other distinctive feature of our human rights scheme is the definition of the bodies covered by the Act. In this country, a complex patchwork of bodies now carry out what are still recognisably 'public functions'. We therefore decided that any attempt to define or limit the list of bodies which would be subject to the Act would risk leaving out bodies to whose activities Strasbourg would rule that the Convention should apply. So we decided that the Act should apply to any organisation charged with functions of a public nature. This means that, as well as the obvious public bodies civil service, local authorities, the police - which will be covered because all their functions are of a public nature, others will be covered because some of their functions are of a public nature and then their incompatible acts will be caught unless their nature is private. A prime example is Railtrack, whose act would be covered in respect of its management of the national rail network where it is responsible for safety, but not in its commercial property dealings. Before I close, I also want to say a little about Freedom of Information. The White Paper setting out the Government's position was published just before Christmas. Our proposals start from the premise that open government is good government. The Freedom of Information Act will apply right across the public sector. It will provide access to documents, not just information in a form settled by Government Departments or Government bodies. The right of access will be broadly based and apply to official records and information held by the bodies covered by the Act. There will be very few exemptions. The system for protecting interests will be based on seven "specified interests"set out in the White Paper. Significantly, however, in most cases information will only be withheld if its disclosure would cause "substantial" harm, as distinct from a "mere harm" or a "simple harm" test. This change of emphasis has been widely welcomed as a key concept in creating one of the most liberal Freedom of Information regimes in the world. At long last, the British people will have a genuine and effective right to know what is being said and done in their name. Not only this Conference, but the whole concept of a Centre for Public Law, is timely. The proposals the Government has made - on devolution; on human rights; on freedom of information; on reform of the institutions of Parliament itself - will transform our political landscape. It is essential that the practical work

KEYNOTE ADDRESS of Government is supported and underpinned by research in academic institutions of this kind. This Conference, however, raises expectations in Government. They are that the product of the Conference may, in part, be reasoned suggestions to Government how any of the pieces of legislation which I have been outlining might be improved. Government would welcome that. The devolution legislation is only now getting underway in the House of Commons. The Human Rights Bill reaches Report stage in the House of Lords on Monday1 but Third Reading2 and all the House of Commons3 stages lie ahead. So far, the Freedom of Information proposals are at White Paper stage only, although there will soon be a Bill. There is more than adequate time for a listening Government, which this is, to make improvements of which it is persuaded. In the past, constitutional change has been incremental - and extremely slow. Thus academic research has tended to concentrate on its courts-based aspects, 1 [Eds. See 584 H.L. Deb. Cols. 1252-1311. 1317-1368, 585 H.L. Deb. Cols. 379-422, 19-20 January 1998.) 2 [Eds. See 585 H.L. Deb. Cols. 747-842,5 February 1998.] 3 [Eds. The Second Reading debate took place on 16 February 1998.]

and especially the impact of judicial review in recent years. In future, however, I think that there will be as much, if not more, interest in the dynamics of institutional inter-relationships. Our proposals have been designed to preserve the Union, the sovereignty of Parliament and the separation of powers. I am confident that they will do so. Very important aspects of our constitution will be specifically contained in statute: not entrenched, in the sense that they cannot be overturned without special arrangements but,, nonetheless, embodied in statute in a way rarely seen in the past. As the changes come into effect and then become established, there will be many new issues to consider. Are the reforms becoming bedded down culturally? Should we have a Joint Human Rights Committee of both Houses? Do we need a special Human Rights Commission, or should the existing Commissions be drawn into a single Human Rights Commission? Were we right to go for a Freedom of Information Commissioner who is an independent office holder, not on the Ombudsman model? You will have many other questions. Professor Beatson, I have run out of time, perhaps trespassed on some of the time of others. Thank you for having invited me to open this Conference.

1 DEVOLUTION: THE CONSTITUTIONAL ASPECTS VERNON BOGDANOR**

I Devolution is the most radical constitutional reform this country has seen since the Great Reform Act of 1832. This is because it seeks to reconcile two seemingly conflicting principles, the sovereignty or supremacy of Parliament and the grant of self-government in domestic affairs to Scotland and Wales. The supremacy of Parliament is of course primarily a legal principle, but its influence resonates throughout our political system, influencing the thought even of . those who wou'd seek to escape from it. If the principle has, as some believe, become a fiction, it is, nevertheless, a fiction which remains highly potent. The principle implies that power is centralised in one supreme and omnicompetent Parliament. Westminster, therefore, remains under the British Constitution the sun around which the planets revolve. Our conception of parliamentary supremacy makes it difficult for us fully to comprehend structures of government, such as the European Community whose raison d'etre is that of power-sharing, not sovereignty. For us, power must either be centralised in Brussels, in a super-state, and that would mean the end of the United Kingdom as a self-governing country: the end, as the Labour leader, Hugh Gaitskell once put it, of a thousand years of history; or, alternatively, power must remain with national parliaments so that the European Union can never become anything more than a Gaullist Europe des patries. The third possibility, that of a genuine sharing of power between Westminster and Brussels, is one which is not easy for us to understand. • I am grateful to Lord Lester of Herne Hill and Dr Richard Tur for their comments on an earlier draft of this paper. They are not however responsible for any mistakes which remain. •* Professor of Government, Oxford University

In the same way, a Unionist may come to believe, as Dicey notoriously did with regard to Ireland, that the only viable alternatives are either to retain power at Westminster or, alternatively, to concede independence, federalism being inappropriate for the United Kingdom. Devolution, or Home Rule, especially when it is asymmetrical, being applied to just one or two parts of an otherwise unitary state, was seen by him as inherently unstable.1 Rather than destabilising the whole country through devolution, therefore, it would be preferable to accept the claims of the Nationalists and cede a part of it entirely. Thus the alternative of seeking a solution which, by accommodating centrifugal claims, offers the chance of containing them, is dismissed as unrealistic. The White Paper on Scottish devolution, Scotland's Parliament, Cm. 3658, 1997, seeks to bring this alternative to life, but it does so while retaining the traditional constitutional vocabulary. It proclaims in para. 4.2 in stern Diceyan tones, that 'The United Kingdom Parliament is and will remain sovereign in all matters'. So also the 1978 Scotland Bill contained as its first clause an assertion that it did not affect Parliament's 'supreme authority to make laws for the United Kingdom or any part of it'. The clause was, however, thrown out by the House of Commons. It is not of course a legal necessity for Parliament to preserve its supremacy in this way; but perhaps it has some political significance. Did Members of Parliament display a better grasp of the political realities than the then government? For what is the practical meaning of 1

See, for example, A.V. Dicey, England's Case Against Home Rule, first published in 1886, but available in a modern edition, published by the Richmond Publishing Co. Ltd. in 1973. Dicey wrote no less than three further books attacking Home Rule, Unionist Delusions, in 1887, A Leap in the Dark in 1893 and A Fool's Paradise in 1912. All of them very much bear re-reading.

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asserting the continuance of Westminster's sovereignty when such wide legislative powers are being devolved to another directly elected body? The Government of Ireland Act of 1920 provided for the establishment of parliaments in the two parts of Ireland. In the event, only the Parliament of Northern Ireland was to come into existence. Section 75 of the 1920 Act declared that: 'Notwithstanding the establishment of the Parliament of Northern Ireland - or of anything contained in this Act, the supreme authority of the Parliament of the United Kingdom shall remain unaffected and undiminished over all persons, matters and things in Northern Ireland and every part thereof. The experience of devolution in the province was, however, to show that in practice supreme authority over Northern Ireland's domestic affairs rested with her own Parliament rather than with Westminster. Indeed, it proved impossible for Westminster to assert its sovereignty until the civil rights struggle of the late 1960s led to a breakdown of law and order in the province.2 In 1922, the Northern Ireland government proposed to abolish proportional representation in local government elections, a measure which lay within its legislative competence. The Lord Lieutenant, however, reserved this measure for two months under s 12 of the Government of Ireland Act, which allowed him to withhold assent to legislation of the Northern Ireland Parliament when so instructed by the King, acting of course on the advice of the British government. The Prime Minister of the Irish Free State, W. T. Cosgrave, told the British government that the measure was a breach of the spirit of the Anglo-Irish Treaty of 1921. However, the Prime Minister of Northern Ireland, Sir James Craig, argued that 'The Bill was clearly within the powers of the Northern Ireland Parliament, and either they must make some patched-up arrangement or his Government must resign'. 3 Faced with this threat of resignation by the government of Northern Ireland and with no chance of any alternative majority government being established, the British government was forced to give way. Winston Churchill, the Colonial Secretary, told Cosgrave, 'I have come, though most unwillingly, to the conclusion that the Local Government (N.I.) Bill could not be vetoed - I have never concealed from Sir

James Craig my opinion that the measure was inopportune'. 4 Section 12 was never again invoked by the British government and Craig proceeded, without hindrance, to abolish proportional representation for elections to the Northern Ireland Parliament itself in 1929. Moreover, despite the theoretical sovereignty which Westminster retained over 'all persons, matters and things in Northern Ireland', the Westminster Speaker, in a curious ruling in 1923, declared that 'With regard to those subjects which have been delegated to the Government of Northern Ireland, questions must be asked of Ministers in Northern Ireland and not in this house'. 5 The reason for the Speaker's ruling was that ministerial responsibility for Northern Ireland's domestic affairs lay with Northern Ireland ministers and not with ministers at Westminster. Thus the only way in which a question could be asked at Westminster would be to ask the minister responsible for Northern Ireland matters, first the Colonial Secretary and then the Home Secretary, - 'Why have you not used your powers under the Government of Ireland Act to intervene to prevent e.g. the abolition of proportional representation in elections to the Northern Ireland House of Commons?' The practical consequence of the Speaker's ruling, however, was that questions concerning domestic affairs in Northern Ireland were not asked at Westminster until a determined group of Labour backbenchers in the late 1960s, led by Paul Rose, broke down the parliamentary convention which had been established in 1923. 6 As late as 1964, however, the Home Secretary, Henry Brooke, told the Commons that religious discrimination in Northern Ireland could not be raised at Westminster since 'the reserve powers in the Government of Ireland Act do not enable the United Kingdom Government to intervene in matters which under section 4 are the sole responsibility of the Northern Ireland Parliament and Government'.7 The implication of s 75 of the 1920 Act, however, was surely that, Parliament being sovereign, there were no matters for which the Northern Ireland Parliament and Government were solely responsible. In 1965, a Labour MP raised the issue of the property vote in local government elections in Northern Ireland, but was ruled out of order by the Deputy Speaker who declared, 'We are now going into the details of local government in Northern Ireland, which is a matter for Northern Ireland - he must show what the House of Commons can do about it and what some responsible

2

The best book on the working of devolution in Northern Ireland remains Harry Calvert, Constitutional Law in Northern Ireland, Stevens 1968, while R. J. Lawrence, The Government of Northern Ireland, Clarendon Press, 1965, describes the working of public services in the province. 3 Meeting of the British co-signatories of the Irish Treaty, 8 September 1922, PRO CAB 43/1, cited in Vernon Bogdanor, Devolution, Oxford University Press 1979, p. 51.

4

Cited in Paul Arthur, 'Devolution as Administrative Convenience: A Case study of Northern Ireland', Parliamentary Affairs, Vol. XXX, No. 1, Winter 1977, p. 98. 3 House of Commons Debates, vol. 163, cols. 1624 5. 6 See Paul Rose, Backbencher's Dilemma, Frederick Muller, 1981. 7 House of Commons Debates, vol. 698, col. 1151.

DEVOLUTION: THE CONSTITUTIONAL ASPECTS Minister can do about it'.8 Later in the debate, the Deputy Speaker seemed to imply that it was out of order for the House to discuss allegations of religious discrimination in Northern Ireland. \ . . discrimination in housing in Northern Ireland is not a matter for the United Kingdom Government; it is a matter for the Northern Ireland Government... Any question of religious discrimination in Northern Ireland is not a matter for the United Kingdom Government. Boundaries for local government and Parliament in Ireland are matters for Stormont'.9 This sort of reasoning came to be accepted even by constitutional experts. For example, in his book, The Law and the Constitution, Sir Ivor Jennings declared that it would be 'unconstitutional', by which he probably meant contrary to convention, for Westminster to legislate against the wishes of the government of Northern Ireland on matters for which responsibility had been transferred.10 The outcome was, in the words of Paul Rose, that 'Members who knew about Saigon or Salisbury seemed to know nothing of Stormont . . . there was a Parliamentary convention, erected into holy writ by Speaker after Speaker, that prevented us raising matters of real substance on the floor of the House without being ruled out of order'.11 When, after 1968, the troubles began in Northern Ireland, the British government was finally able to use s 75 of the 1920 Act. As James Callaghan, Home Secretary between 1967 and 1970, declares in his memoirs, 'Our view was that in the last resort this section gives the Parliament at Westminster supreme authority to withdraw such power as it had delegated'.12 The Prime Minister of Northern Ireland at the time, Terence O'Neill, declared that Harold Wilson had 'made it absolutely clear to us that if we did not face up to our problems the Westminster Parliament might well decide to act over our heads'.13 In the end, however, the British government found itself compelled to prorogue Stormont, which it did in 1972. That, however, occurred only under pathological political circumstances. It was very much a last resort. Only in such conditions could Westminster in practice vindicate its supremacy, and even then with some difficulty. In practice, then, the Government of Ireland Act created at the very least a quasi-federal relationship between Stormont and Westminster. Indeed, the canons of constitutional interpretation adopted by the courts, when dealing with the legislative competence of the 8

House of Commons Debates, vol. 707, cols. 79-80. House of Commons Debates, vol. 718, cols. 4 5 - 6 , 5 8 . 10 Ivor Jennings, The Law and the Constitution, 4 th edition. University of London Press, p. 158. " Rose, Backbencher's Dilemma, p. 179. 12 James Callaghan, A House Divided, Collins 1973, p. 23. 13 The Autobiography of Terence O'Neill, Faber 1972, p. 147. 9

11

Parliament of Northern Ireland, were on occasion similar to those applied in federal systems. For example, Lord Atkin in the leading case Gallagher v Lynn, argued (my italics): 'These questions affecting limitation on the legislative powers of subordinate parliaments or the distribution of powers between parliaments in a federal system are now familiar, and I do not propose to cite the whole range of authority which has largely arisen in discussion of the powers of Canadian Parliaments'.14 The term 'quasi-federal' is, admittedly, used above in a slightly different sense from that adopted by K.C. Wheare in his classic work, Federal Government.^ Wheare there described the Canadian constitution, by contrast with the American, as 'quasi-federal', since the Dominion Parliament can prevent a provincial legislature from legislating upon provincial subjects through the unrestricted powers of disallowance and veto in the Canadian constitution. The Dominion Parliament cannot, however, itself legislate on provincial subjects. In Britain, by contrast, Westminster was still able, in theory, to legislate for Northern Ireland's domestic affairs just as it will in theory be able to do so for Scotland's domestic affairs. In practice, however, it will hardly be possible to exercise this right under normal conditions. Perhaps, then, the Stormont system is best described as a quasi-federal system of government rather than a quasi-federal constitution. But it may be that even the assertion that Northern Ireland lay in practice in a quasi-federal relationship to Westminster puts the point too weakly. For Northern Ireland was unlike a province in a federation in that it proved difficult to apply common United Kingdom measures of human rights to her. This was despite the existence of 'an embryonic form of a legally enforceable Bill of Rights' in sections 5(1) and 8(6) of the Government of Ireland Act, prohibiting laws or executive acts interfering with religious equality.16 Northern Ireland's position was perhaps more like that of the American states before passage of the 14th Amendment which applied the Bill of Rights to the states; or like that of a self-governing colony, one in which Westminster, although having the theoretical right to intervene, in practice hardly ever exercised that right. 14 (1937) A. C. 863. See also Sir Arthur Quekett, The Constitution of Northern Ireland, part 3, 'Validity of Laws'. HMSO 1946, pp. 3 5 7. 13 Oxford University Press, 3 rd edition, 1953, p. 20. Wheare denies that the relationship between the Parliament of Northern Ireland and Westminster contained any federal element See pp. 3 0 - 1 . 16 Standing Advisory Committee on Human Rights, The Protection of Human Rights by Law in Northern Ireland, Cmnd. 7709,1977, para. 2:11.

12

VERNON BOGDANOR

II Devolution can in theory be distinguished from federalism in that the former is a delegation of powers while the latter divides powers. Yet, devolution to a selfconscious part of the United Kingdom is a very different thing from devolution, for example, to a local authority. It did not prove difficult for Margaret Thatcher to persuade Parliament to exercise its supremacy over recalcitrant local authorities in the 1980s, a period which saw a considerable transfer of power from local authorities, including intervention in the problems of individual schools which were thought to fall below acceptable standards. By the Local Government Act of 1985, moreover, under circumstances which were by no stretch of the imagination pathological, Margaret Thatcher was able simply to abolish the Greater London Council and the metropolitan county councils. It is difficult to imagine similar action being taken against the Northern Ireland Parliament before 1968 or against the proposed Scottish Parliament in the future. The Scotland Bill provides for the retention of full sovereignty by Westminster and thus the preservation of the unitary state. But that is mere constitutional theory. For a Scottish Parliament will create a new locus of political power in Scotland, making it extraordinarily difficult for Westminster to continue to exercise its supremacy. In practice, therefore, sovereignty is being transferred, and Westminster will not be able to recover it, except under pathological circumstances. At the present time, the supremacy of Parliament over Scotland is a real supremacy which is exercised regularly and continuously. After devolution, that supremacy will become merely a nebulous right to supervise the Scottish Parliament, together with the right under pathological circumstances, to abolish it, as Stormont was abolished in 1972. Political authority, however, depends upon its regular exercise. It is not the mere incursion of legislative authority under extreme and unusual circumstances. Thus, Westminster's authority over Scotland, at present a real power to make laws affecting Scotland's domestic affairs, becomes merely the power to supervise another legislative body, with its own legitimacy, gained through democratic election, and representative, so it will be argued, of the Scottish nation. Because of its claim to represent the Scottish nation, the Scottish Parliament is likely to be in a far stronger position vis-a-vis Westminster than Stormont ever was. For, while the motivation for devolution in Scotland is centrifugal, a desire for greater autonomy, in Northern Ireland, it was, paradoxically, centripetal, a desire to ensure that Northern Ireland's position within the

United Kingdom could not be eroded. Integration, which seemed superficially more attractive, was rather, in the words of the Ulster Unionist Council in 1936: 'a subtle move fraught with great danger. Had we refused to accept a Parliament for Northern Ireland and remained at Westminster [sicl] there can be little doubt but that now we would be either inside the Free State or fighting desperately against incorporation. Northern Ireland without a Parliament of her own would be a standing temptation to certain British politicians to make another bid for a final settlement with Irish Republicans.'17 Following the declaration of the Irish Republic in 1949, Westminster passed the Ireland Act, section 1(2) of which provided that Northern Ireland would not cease to be part of the United Kingdom without the consent of her Parliament. This constitutional provision served to underline the political point that, by accepting a separate Parliament, Northern Ireland had given herself the right to determine her own future, even in the face of a hostile majority at Westminster. Although it proved so difficult for Westminster to exercise its supremacy over Northern Ireland, the government of the province nevertheless had an incentive to reach agreement with British governments, precisely because the Northern Ireland government was a Unionist government. Once Westminster began to threaten to use its supremacy, after 1968, Northern Ireland had little option but to give way. For the majority in Northern Ireland saw itself not as representative of a nation, which could, in the last resort, seek independence, but as representing the United Kingdom, to which she was desperate to belong. Northern Ireland had sought devolution to ensure that she remained inside the United Kingdom, not to distance herself from it. The case of Scotland is, of course, quite different. For many Scots, and not only those who vote for the SNP, do regard Scotland as a nation with an inherent right to determine her own future. That indeed was the position taken in the Scottish Claim of Right, the foundation document of the Scottish Constitutional Convention, in 1989. That Claim of Right was, as Neil MacCormick has noticed, as categorical as the White Paper, 'but in an apparently opposite sense'.18 It declared that 'We, gathered as the Scottish Constitutional Convention, do hereby acknowledge the sovereign right of the Scottish people to determine the form of Government suited to 17

N. Mansergh, The Government of Northern Ireland: A Study in Devolution, Allen and Unwin, 1936, pp. 236 7. 18 Neil MacCormick, The English Constitution, the British State and the Scottish Anomaly, The British Academy Lecture, 1997, pp. 18-19.1 am grateful to Professor MacCormick for sending me a copy of his lecture.

13

DEVOLUTION: THE CONSTITUTIONAL ASPECTS their needs . . . " In other words, sovereignty in Scotland lay with the Scottish people and not with Westminster, a claim perhaps implicitly accepted by the government elected in May 1997 when it restricted the vote in the devolution referendum to electors registered in Scotland. Because Scots, unlike those in Northern Ireland, conceive of themselves as a sovereign nation, it will be even more difficult for Westminster to assert its supremacy over Edinburgh than it was for it to assert its supremacy over Stormont. Any such assertion would immediately bring into play the argument that Westminster, the 'English' Parliament, was seeking to deprive 'Scotland' of her rights. Moreover, the very concept of the sovereignty of Parliament remains on shakier ground now than it was during the period of the Northern Ireland Parliament. That is because Britain is now a member of the European Union and in consequence Westminster has, arguably, limited its sovereignty. The Factortame cases established that judges would disapply legislation which contravened European Community law. Although the case of Scotland is quite different from that of the Community, for Community law has direct effect in the United Kingdom, nevertheless it is not impossible to imagine a future phase of judicial activism whereby judges would refuse to allow provisions of the Scotland Act, which they might regard as fundamental constitutional legislation, to be impliedly repealed by Westminster. In relation to the Scottish Parliament, the supremacy of Parliament, then, is likely to bear a highly attenuated meaning. It will probably mean no more than: a

b

The more or less theoretical right to legislate on Scotland's domestic affairs against the wishes of the Scottish Parliament, something never done in Northern Ireland. The right to abolish the Scottish Parliament. It is, however, by contrast with the experience of Northern Ireland, difficult to see this happening against the wishes of the Scottish Parliament and people, especially as the Scottish Parliament, by contrast to Stormont, has been validated by a referendum. It would be difficult to abolish it without another referendum in Scotland.

The supremacy of Parliament with respect to Scotland will no longer entail a continuous exercise of authority over Scottish domestic affairs. Nor will it be easy for Westminster unilaterally to alter the devolution settlement to Scotland's disadvantage. There is much talk at present of revising the formula regulating the level of grant to Scotland which, so it is alleged, is unduly favourable to Scotland. It will, however, be much more

difficult to do this once a Scottish Parliament is in existence than at the present time when there is no body specifically representing the Scottish people and the Scottish political will. In practice, therefore, the Scotland Bill will establish, if not a federal constitution for the United Kingdom, a quasi-federal relationship between Westminster and Edinburgh. The government of Scotland will come in practice to resemble the government of a province in a federal state. Power devolved will become power transferred. This quasi-federal relationship will, moreover, be buttressed by the Judicial Committee of the Privy Council, the ultimate court of appeal on matters of vires which arise out of the Scotland Act. The Judicial Committee will come to assume the role of a constitutional court on devolution matters. Thus the Scotland Bill will not only in effect transfer the power of Parliament to legislate on Scottish domestic affairs. It will also introduce a judicial element into the definition of precisely what is transferred. The Scotland Bill, then, proposes what amounts to a codified constitution for Scotland, where it establishes a quasi-federal system of government and in effect a constitutional court to arbitrate upon the division of powers. It would be difficult to imagine a greater constitutional revolution in the government of the United Kingdom.

in The first constitutional conundrum, then, which devolution raises is whether it makes sense to combine so wide a delegation of power to a body which will conceive of itself as representing a nation, while claiming at the same time to preserve the sovereignty of Parliament. The second conundrum, symbolised by the West Lothian question, is whether it is possible to have domestic self-government within just two parts Scotland and Wales - of an otherwise unitary state. After devolution, each component part of the United Kingdom will have a different relationship to Westminster. Scotland will have legislative devolution, with a power to vary income tax by up to 3p in the pound. Wales will have executive devolution without tax-raising powers. Northern Ireland will continue to be governed directly from London, unless and until there is agreement on devolution between the various parties representing the two communities. The form of devolution, however, in Northern Ireland will be very different from that proposed in Scotland, since the British government will only validate a form of devolution based on the principle of partnership or power-sharing. This means that the administration of Northern Ireland would have to find places for the Nationalist minority as

14

VERNON BOGDANOR

well as the Unionist majority. Moreover, although it is proposed that the Northern Ireland Parliament be given legislative powers, it will not have revenue-raising powers. Finally, England is not to have a parliament at all, nor is one being proposed, even by those such as the Liberal Democrats, who favour devolution all-round. For they favour not an English parliament, but the creation of regional assemblies within England, a recreation of the Heptarchy. England indeed has lacked a parliament since 1536. Nor is there at present any demand for one. Perhaps that is because the English, just as they often lazily equate England with Britain, continue to perceive Westminster as an English parliament. Between 1975 and 1978, however, there was, in anticipation of devolution, a Standing Committee on Regional Affairs in the House of Commons, to which only English MPs belonged. It may be that devolution to Scotland and Wales leads to analogous arrangements in the future, perhaps an English Grand Committee, to consider English legislation. The danger with such an arrangement, however, is that it could tend to an 'in-and-out' arrangement bifurcating the government of the United Kingdom - see further p. 15. Politicians and opinion-formers first came to believe that it would be possible to combine self-government to Scotland and Wales with the retention of the unitary state following the publication of the report of the Royal Commission on the Constitution - the Kilbrandon Commission - in 1973. For all of the commissioners the thirteen who signed the majority report and the two who signed the dissenting memorandum — recommended elected assemblies for both Scotland and Wales within the United Kingdom. The majority declared, in para. 1100, that 'In both Scotland and Wales we have found that, while only small minorities favour complete independence, there are larger numbers of people who wish their distinctive national identities to be recognised in the system of government in some way falling short of political separation'. The reason for this was that 'In these two countries the centralisation of politics and government is resented more than it is in England'. The Commission therefore endorsed what it called, perhaps oddly, 'the case against uniformity'. The majority, however, ignored the impact of devolution in Scotland and Wales upon England. Yet England remains the key to a satisfactory devolution settlement. For any settlement will have to secure the allegiance of English MPs, who hold 529 of the 659 seats in the House of Commons. Devolution, therefore, will have to be accepted by English voters, whom these MPs represent, as fair. Because the Royal Commission on the Constitution ignored the impact of devolution to Scotland and Wales

on England, it failed to come to grips with the fact that devolution to Scotland and Wales alone would accentuate an already existing constitutional imbalance. The Labour government of the 1970s followed the Royal Commission in this regard. In its White Paper, Devolution, The English Dimension, published in 1976, it declared that fears 'expressed that devolution will lead to an accretion of powers and influence to the devolved administrations of a kind likely to prejudice the interests of England and, more particularly, the less prosperous regions of England', were 'in fact, groundless'.19 Yet, Scotland and Wales have their own Secretaries of State, pressing their case at Cabinet level, and these posts are to be retained after devolution. Scotland and Wales are also over-represented in the House of Commons by comparison with England, and it is generally agreed that they benefit more per head from public spending than English regions whose needs may be as great but who lack territorial representation in the Cabinet. After devolution, Scotland and Wales will have their own elected bodies, but England will not. The political weight which this will give Scotland and Wales might well enable them to attract an even greater share of public resources than they enjoy at the present time. The most immediate form in which the political and constitutional imbalance presents itself is through the West Lothian Question. This Question asks whether it is justifiable for Scottish MPs after devolution to continue to be able to vote for English domestic affairs while English MPs will no longer be able to vote on Scottish domestic affairs. Would it, under such circumstances, be appropriate for a Scottish MP to become a minister in a British government exercising functions which, in Scotland, were the responsibility of the Scottish Parliament? In 1992, Robin Cook, the then Shadow Secretary of State for Health, declared that it would not. In a BBC TV programme, 'On the Record', on 16 February 1992, he declared that 'Once we have a Scottish parliament handling health affairs it is not possible for me to continue as Minister of Health, administering health in England'. He was, admittedly, immediately disowned by the then Labour leader, Neil Kinnock. Nevertheless, during the period when Northern Ireland enjoyed devolution, no Northern Ireland MP occupied a Cabinet post involving responsibility for matters devolved to the Northern Ireland parliament. With devolution, Northern Ireland returned 13 MPs between 1922 and 1950, and 12 after 1950, when the university seat of Queen's, Belfast, was abolished. During the Stormont period, there was no occasion on •» Para. 22.

DEVOLUTION: THE CONSTITUTIONAL ASPECTS which a Conservative government was elected with a majority of less than 13. In May 1965, however, Harold Wilson found himself leading a Labour government with a majority of only two. In a debate on steel nationalisation, he warned the MPs from Northern Ireland, all 12 of whom sat on the Conservative benches. 'I am sure the House will agree that there is an apparent lack of logic, for example, about steel, when Northern Ireland members can, and presumably will, swell the Tory ranks tonight, when we have no power to vote on questions about steel in Northern Ireland because of the fact that the Stormont Parliament has concurrent jurisdiction in these matters.' Wilson asked the House of Commons 'to look at the question of why he [the leader of the Conservative Party] gets the support of his honourable Friends beside him - for example, on matters affecting housing discrimination in London - when we English, Scottish and Welsh Members cannot express our views about housing conditions in Belfast', 'I would hope that Northern Ireland Members, who are here, and who are welcomed here, for the duties they have to perform on behalf of the United Kingdom in many matters affecting Northern Ireland, would consider their position in matters where we have no equivalent right in Northern Ireland. . . . It is certainly the case that Northern Ireland Members have great duties to perform here in the sense of foreign affairs, defence, and matters affecting Northern Ireland, involving taxation and expenditure. What was not envisaged, I am sure in 1920, was that those who came here, with that responsibility for representing Northern Ireland interests, should just become hacks supporting the English Tory Party'.20 The likelihood of MPs from a devolved part of the country making a difference to the political colour of the government will of course be much greater in the case of Scotland with its 72 MPs than it was in Northern Ireland, returning only 12. Indeed in 1950, 1964, February and October 1974, Labour would not have enjoyed an overall majority without the support of its Scottish MPs. No complaints were raised in England at this outcome. It is possible that they might be, however, should a similar situation recur after devolution. Scotland's over-representation has been defended by Neil MacCormick on the basis of 'reasonable assurance for minority countries'. 'Since a whole country [in 1707] was being incorporated into a larger, there was special reason to secure that its interests could not be ignored or belittled. There was also concern about unfair discrimination against the interests of a minority 20

House of Commons Debates, vol. 711, cols. 1560-2.

15

with a long prior history of conflict with the new majority'.21 It is, however, reasonable to suppose that the Scottish Parliament will be at least as good a 'reasonable assurance' for Scotland and that the overrepresentation will no longer be justifiable. The government proposes to deal with this situation by reviewing the distribution of seats in the House of Commons and removing the statutory requirement stipulating a minimum number of Scottish seats.22 This, however, while it might meet the problem of over-representation, would not answer the West Lothian Question. Even if Scotland returned only, say 59 MPs, rather than, as at present, 72, the issue would remain. In 1978, during the passage of the abortive Scotland Act, the House of Lords passed an amendment, which the Commons failed to overturn, proposed by Lord Ferrers, a Conservative front-bench spokesman. This amendment provided that if any Commons vote on a matter devolved to Scotland were passed through the votes of Scottish MPs, an Order could be laid before the Commons requiring a second vote to be taken two weeks after the first. This became s 66 of the Scotland Act. The purpose of the Ferrers amendment was, presumably, to allow pressure to be exerted upon Scottish MPs not to participate in the second vote, just as Harold Wilson in 1965 had put pressure on Northern Ireland MPs not to vote on matters which were devolved to Northern Ireland. The Ferrers amendment may thus, as Brigid Hadfield has noticed, 'be regarded as a specific type of "in-and-out" clause'.23 The trouble with a solution of this type, however, is that it might have bifurcated the executive. The government might have one political colour when Scottish MPs were present and voting and a quite different political colour when they were absent and not voting. Thus there might be a Labour government for foreign affairs and defence, but a Conservative government, with the Scottish MPs absent, for health and education. It is not easy to see how effective government could continue under such circumstances. For this reason, the "in-andout" solution is almost certainly unacceptable. The West Lothian Question would of course be less likely to come into play were the electoral system for the House of Commons to be changed into one of proportional representation. For Labour's strength in Scotland is in part the product of the first past the post electoral system. The 1997 general election result in Scotland was as follows: 21

MacCormick, op. cit. P. 4. Scotland's Parliament, para. 4:5. 23 Brigid Hadfield, Scotland's Parliament: A Northern Ireland Perspective on the White Paper, [1997] PL, p. 668 fn. 22

16

Labour Conservative Liberal Democrats SNP Others

VERNON BOGDANOR Seats 56 0 10 6 0

% of vote 45.6 17.5 13.0 22.1 1.9

Under a strictly proportional system, by contrast, the seats would have been distributed as follows: Labour Conservative Liberal Democrats SNP

33 13 10 16

Thus the chances of Scottish Labour MPs making the difference between a Conservative and a Labour government at Westminster would be much reduced, although of course not eliminated. It is perhaps worth inquiring why it is that other countries in Western Europe, with asymmetrical devolution, are so little exercised by the equivalent of the West Lothian Question. In Denmark, the Faeroes Islands and Greenland do not belong to the European Union. Yet, there is no pressure on representatives from those areas not to vote in the Folketing on European matters. In France, Corsica enjoys a special status, while in Italy, five regions - Valle d'Aosta, TrentinoAlto Adige, Fruili - Venezia Guilia, Sardinia and Sicily - enjoy special status and have greater powers than the other regions. In Spain, the so-called Article 151 regions - Andalusia, the Canaries, Catalonia, Euskadi (the Basque country), Galicia and Valencia - have powers much greater than those held by the other regions. In Portugal, the two island areas - Madeira and the Azores - enjoy devolution, while mainland Portugal remains a unitary state. Yet, little is heard of a West Sardinian Question, a West Catalonian Question or a West Madeira Question. In the last resort, the answer to the question of whether devolution to Scotland and Wales is compatible with the retention of a unitary state elsewhere, rests on a political judgement. Is it better to accept the risk of asymmetry or the alternative risk of fuelling support for Scottish independence by denying the claim to devolution? It is perhaps worth remembering that the Unionists of the period 1886-1921 did not succeed in preserving the Union between Britain and Ireland. It might then be held that both Britain's experience with Ireland, and experience on the Continent, yield the following answer to the West Lothian Question - where the will to conciliate is present, special treatment may help to contain centrifugal impulses thereby helping to preserve the unity of a country rather than destroying it. That, at

least, is the premiss upon which the policy of devolution is based.

rv The Government of Wales Bill, by contrast with the Scotland Bill, proposes a new and quite untried model of devolution. For the Welsh Assembly will have powers over secondary but not primary legislation. The rationale for this is not wholly clear. The majority of the Kilbrandon Royal Commission, as we have seen, believed that in both Scotland and Wales, there were large numbers 'who wish their distinctive national identities to be recognised in the system of government in some way falling short of separation'. Moreover, 'In these two countries the centralisation of politics and government in London is resented more than it is in England' (para. 1100). From this, it would seem to follow that Scotland and Wales should receive common treatment on the ground that they both aspired to nationhood. This reasoning was rejected by only two members of the majority on the Royal Commission, one a Professor of Law and the other a Queen's Counsel, both impressed, perhaps over-impressed, by the case for special treatment for Scotland with its separate legal system. A similar view was taken by the Labour government in the 1970s and the Labour government today. Thus, while the White Paper Scotland's Parliament begins with a declaration by the Prime Minister that 'Scotland is a proud historic nation in the United Kingdom', the White Paper, A Voice for Wales, contains no such Prime Ministerial statement. The foreword by the Secretary of State for Wales, Ron Davies, declares, however, that 'The referendum offers the people of Wales a new beginning, alongside other successful economic regions of Europe' (my italics). Scotland is perceived as a nation, Wales as a region. Indeed, the model of devolution proposed for Wales is much easier to adapt to the English regions than is the model proposed for Scotland. Legislative devolution, as with Scotland, transfers the power to make laws from one legislature to another. Executive devolution, by contrast, divides the lawmaking power between two bodies. The trouble is that, in Britain, by contrast with Germany, there is no clear rationale for dividing powers. There is no general principle or rule by which it is possible to determine whether a particular matter falls under primary legislation in which case it is to be retained, or under secondary legislation in which case it is to be devolved. In Britain, legislative and executive powers have, in the past, been so closely fused that, in the words of the Kilbrandon Commission, the line between them 'is not a

DEVOLUTION: THE CONSTITUTIONAL ASPECTS precise one, and under the present arrangements they are not clearly separated' (para. 828). This judgement was confirmed by the Permanent Secretary at the Welsh Office, Rachel Lomax, who, in a speech to the Institute of Welsh Affairs on 7 November, 1997, declared that The Secretary of State's present powers have been accumulated piecemeal over a long period of time, and the distinction between matters that are dealt with in primary and secondary legislation has reflected pragmatic considerations as much as principle'. This is because the distinction between primary and secondary legislation was never intended to provide the basis for a division of powers between different elected bodies. Thus, with regard to existing legislation, the Welsh Assembly is in danger of finding that its powers are of uneven scope and depth since there is no reason why the division between primary and secondary legislation in one policy area, e.g. health, should match that in another, e.g. education. Thus, there is a danger that the powers of the Assembly will have no clear rationale and it would then be difficult for the Assembly to adopt an integrated approach to policy-making. This problem is to be met by codifying existing statutes before Transfer Orders are enacted defining the precise powers of the Welsh Assembly. Even so, the end result cannot but reflect a political judgement. The division of powers would, as the Royal Commission noted, 'be an arbitrary one in that the range of powers conferred on the assemblies would depend on a political judgement of the extent of the control it was necessary to retain at the centre' (para 829, my italics). But perhaps some basis of principle may emerge from consideration of the transfer of powers, a basis of principle that could be used to regulate future legislation for Wales. For, while legislative devolution involves a decision as to whether or not responsibility for a particular function, e.g. education, should be transferred, executive devolution, by contrast, involves the additional decision as to how much responsibility should be transferred. This requires an answer to the prior question of how primary legislation should be drafted. For, if future primary legislation is drafted loosely, there will be more scope for devolution than if it is drafted more tightly. Thus the powers of the Welsh Assembly will depend upon how primary legislation for Wales is drafted and the degree of discretion which the government deems appropriate for the Assembly. It is only if some basis of principle, perhaps hardening into a convention, can be found that a future government, unfriendly to Wales, can be prevented from drawing up primary legislation so tightly that the Assembly lacks room for manoeuvre. There is, however, a further problem, since, by contrast with Scotland, there are few specifically Welsh bills. It seems, therefore, as if in future, statutes may

17

have to be drawn up differently for England and for Wales. For, if they were to be framed similarly, then either they would be drawn up too loosely for England, in which case ministers would enjoy too wide a discretion and wider delegated powers than Parliament would think it wise to confer; or, alternatively, legislation would be drawn up too tightly for the purposes of the Welsh Assembly. The Welsh Assembly, moreover, unlike the Scottish Parliament, will not be the final authority on the policies for which it is responsible. Westminster remains statutorily responsible for the government of Wales. It will, therefore, be vital for the Welsh Assembly to make its influence felt on the government's legislative programme insofar as it affects Wales. In Germany, the influence of the Laender is constitutionally guaranteed through the representation of the Land governments in the upper house, the Bundesrat. Matters affecting the rights of the Laender require the consent of the Bundesrat as well as the lower house, the Bundestag. The Government of Wales Bill proposes - clause 32 that there should be pre-legislative consultation, but only 'as appears to him [the Secretary of State] appropriate.' A clause giving so much discretion to the Welsh Secretary seems likely to cause trouble especially when the political colour of the government in London is different from that of the majority in the Welsh Assembly. It would be better, surely, to make consultation mandatory. It will also of course be possible for the Assembly to debate bills once they have been published by Parliament, i.e. following First Reading. It could then send the official report of its proceedings to the bill's sponsor, and no doubt also to the Secretary of State for Wales. Of course, this procedure gives the Assembly no greater role than is possessed by any other body or individual since these too can make their views known to ministers and so seek to influence legislation. But the view of the Assembly is likely to carry more weight than that of other bodies, since it will represent the people of Wales and it will therefore enjoy considerable political authority. Moreover, as the Assembly will be responsible for the implementation of legislation on devolved matters in Wales, its suggestions are likely to be based on concrete knowledge. Many, if not most, of the functions of the Welsh Assembly will involve the supervision of services administered by local authorities in Wales. The Assembly is likely to have its own geographical and functional interests to press and, in doing so, it could easily be tempted into making unwanted incursions into the sphere of local government. Clause 110 of the Government of Wales Bill requires the Assembly to establish a Partnership Council for Wales with members

18

VERNON BOGDANOR

of local authorities in Wales. This Council would perform a useful function if it were able to draw up conventions regulating the respective spheres of the Assembly and local authorities in the government of Wales. A further difficulty is that matters affecting local government services in Wales will have to go through three layers of government - local authorities, the Welsh Assembly and then the Secretary of State. This gives rise to three dangers. The first is that the Secretary of State loses contact with the needs of Welsh local authorities whose main focus becomes the Assembly. The Secretary of State, however, must retain this contact if he is to be sufficiently informed to draw up effective primary legislation for Wales. The second danger is that the Assembly, which will enjoy close contact with local authorities, will lack sufficient influence upon central government to press its case. The third danger is that the need to secure consent from three layers of government leads to a system in which it is difficult to get anything done, a confused structure of government without a clear demarcation of responsibilities between different layers so that the voter finds it difficult to apportion credit and blame for the delivery of public services. Devolution, if it is to be effective, will require, in the words of the Royal Commission on the Constitution, para. 282, 'a new style of thinking, positively favourable to devolution and based on co-operation rather than the exercise of central authority'. Devolution will require a considerable alteration in British constitutional practice, for it will require governments to accept principles which limit their power. It will require both central government and the Welsh Assembly to be willing to share power, to develop a politics of co-operation in place of adversarial relationships. It will require, in short, a change in our whole political culture.

The central constitutional principle of a unitary state is that there should be equality of rights between those living in different parts of the country. To this one might add a central principle of the Welfare State that the benefits which each citizen receives and the burdens which each citizen is called upon to bear, should depend primarily upon need and not upon geography. These two principles have given rise to two different forms of Unionism. The first principle gives rise to what might be called a Unionism of the Right, a Unionism which declares, as Dicey did, that there is no viable alternative between the unitary state and separation, federalism being inappropriate for the United Kingdom. Yet if, as conservatives

believe, national unity depends less on structures than on sentiments, and if, moreover, the sentiment of belonging is deeply felt in the United Kingdom, then it is unlikely that the kingdom is of such fragility that devolution will destroy it. Britain is, one suspects, a sturdier enterprise than fearful Unionists would allow. Was it not, after all, Edmund Burke who declared that there was much ruin in a nation? The second principle gives rise to what might be called a Unionism of the Left, the Unionism of Joseph Chamberlain in the 1880s and of Eric Heffer and Neil Kinnock in the 1970s - Kinnock of course was to change his mind subsequently. They took the view that the problems of Ireland in the 19th century and of Scotland in the 20th were, at bottom, economic and social problems, which could be remedied by a strong government of the Left at Westminster. This view chronically under-estimated the strength of nationalism, perhaps the most powerful political force in the modern world. Moreover, the basic principle of the Welfare State has itself come under question in Britain in recent years as the defects of central provision have become apparent. But perhaps Britain has never been a classical unitary state whose principles are applied with rigid logic. Instead, Britain has been characterised as a union state. The distinction between a unitary state and a union state has been drawn as follows. "The unitary state [is] built around one unambiguous political centre which enjoys economic dominance and pursues a more or less undeviating policy of administrative standardisation. All areas of the state are treated alike, and all institutions are directly under the control of the centre. The union state [is] not the result of straightforward dynastic conquest. Incorporation of at least parts of its territory . . . [is] through personal dynastic union, for example by treaty, marriage or inheritance. Integration is less than perfect. While administrative standardisation prevails over most of the territory, the consequences of personal union entail survival of pre-union rights and institutional infrastructures which preserve some degree of regional autonomy and serve as agencies of indigenous elite recruitment'.24 It would be difficult to find a better description of the relationship between England and Scotland since the Union of 1707. Devolution to Scotland, it may be argued, merely modernises the form of the union state. Although it revolutionises the British Constitution, it does not introduce a new political principle into the 24 Stein Rokkan and Derek Urwin, 'Introduction: Centres and Peripheries in Western Europe', in Rokkan and Urwin (eds.), The Politics of Territorial Identity: Studies in European Regionalism,

Sage 1982, p. 11.

DEVOLUTION: THE CONSTITUTIONAL ASPECTS relationship. Admittedly, Union may appear incompatible with special treatment for one part of the country, and, to the extent that devolution to Scotland is a response to nationalism, it constitutes a recognition of particularity which conflicts with a basic principle of Union. Nevertheless, it may be that Scotland seeks autonomy less to acquire the substantive powers of a nation but as a form of symbolism, a mark of recognition. If that is so, Scottish devolution will prove compatible with the retention of the unitary state in England. The basic principle behind Welsh devolution, by contrast with the Scottish model, is that of regionalism rather than the recognition of nationhood, and this is a principle which can, without difficulty, be extended to the English regions if and when they display a demand for devolution. In the last resort, the questions raised by devolution cannot be fully answered either by the constitutional lawyer or the political scientist For the answers to them depend, not primarily upon legal or institutional factors, but upon emotional attitudes. Traditionally, British

19

identity has been flexible enough to accommodate subordinate national identities, such as those of the Scots or Welsh - Ireland of course remains the great exception. Britain has never been, like France, a state 'one and indivisible'. For, in Britain, it has not been so much the institutions of the state which have been the guardian of the nation, but the force of popular sentiment. That popular sentiment, the sense of belonging, might well be strengthened not weakened by devolution. Over a hundred years ago, W. E. Gladstone suggested that a society might be held together, not through concentrating responsibility and political authority in one undivided central Parliament, but through a 'recognition of the distinctive qualities of the separate parts of great countries'.25 If that answer is correct, then devolution will strengthen the cohesion of the United Kingdom, not weaken it. 25

Speech at Swansea, 4 June 1887, in A. W. Hutton and H. J.

Cohen (eds): The Speeches and Public Addresses of the Right Hon. W. E. Gladstone M.P. Methuen 1894, Vol. IX, 1886-1888, p.226.

DEVOLUTION AND THE JUDICIARY ROBERT REED Q.C.*

INTRODUCTION This is a timely moment to inaugurate a Centre for Public Law, as the United Kingdom stands on the threshold of constitutional changes which will inevitably bring public law into greater prominence. The effect of these changes will be felt most, initially at least, in Scotland. It will experience not only the incorporation of the European Convention on Human Rights and the introduction of Freedom of Information legislation; it will also be the part of the United Kingdom where the devolution of legislative and executive power is likely to have its greatest impact. Devolution raises a variety of issues of constitutional law. Some of these are peculiar to Scotland and unlikely to be of general interest. Others may arise in the context of any devolution of power within the United Kingdom, depending on how thoroughgoing the exercise may be. Examples include:

The present paper will attempt to focus on certain implications of devolution for the judiciary, so far as these can be assessed from an initial reading of the recently published Scotland Bill. These can be examined under two principal aspects: (1) The role of the judiciary in the resolution of vires disputes. (2) The effect of devolution upon the appointment and tenure of the judiciary. In considering these matters, the Scotland Bill and its antecedent White Paper1 will not be treated in isolation: there are significant connections to be made, and contrasts to be drawn, with the Human Rights Bill.

1. VIRES DISPUTES 1. Limitations on Vires

(1) The legal status of the devolved institutions, and in particular their relationship with the Crown. (2) The mechanisms for resolving disputes as to the respective competences of the devolved institutions vis-a-vis Westminster and Whitehall. (3) The mechanisms for ensuring that the devolved institutions comply with European law (both EU and ECHR). (4) The position of the law officers, especially in the event that the devolved institutions have competence in respect of the prosecution of crime. (5) The position of the judiciary, especially in the event that the devolved institutions have competence in respect of the administration of justice. As these issues are to a considerable degree interrelated, the devising of an appropriate scheme is an especially complex task.

The legislation establishing the Scottish Parliament will define its legislative competence, and will also establish procedures whereby the validity of legislation enacted by the Parliament can be challenged in the Courts as being ultra vires. The restrictions upon its vires can all be regarded as distinguishing its competence from the omni-competence of the UK Parliament. It appears to the present writer however that distinctions can be drawn between different categories of restriction on vires, and in particular between, on the one hand, restrictions which have the character of demarcation lines between the Scottish Parliament and the UK Parliament (and which are liable to be modified from time to time2), and on the other * Faculty of Advocates, Edinburgh 1 Scotland's Parliament, Cm. 3658,1997. 2 Scotland Bill, clause 29(2).

22

ROBERT REED

hand restrictions laying down more fundamental principles of a constitutional character. The Scotland Bill proposes (by clause 28(2)) that a provision will be outside the legislative competence of the Scottish Parliament if any of the following apply: (a) it would form part of the law of a country or territory other than Scotland; (b) its effect would be to modify any provision of the Scotland Act itself; (c) it relates to "reserved matters", i.e. matters which are reserved to the UK Parliament; (d) it is incompatible with any of "the Convention rights" or with Community law; or (e) it would remove the Lord Advocate from his position as head of the system of criminal prosecution and investigation of deaths in Scotland.

Clause 28(2)(a) to (c) Considering these various restrictions in turn, clause 28(2)(a) imposes a territorial limit on jurisdiction of a kind which is obviously necessary. Clause 28(2)(b) entrenches the Scotland Act (subject to exceptions3), and can be viewed, at least from a Scottish perspective, as conferring upon it the character of a constitutional document. Clause 28(2)(c), read together with the provisions defining reserved matters4 and the provisions permitting the Scottish Parliament to legislate on reserved matters in particular circumstances5, lays down a complex code defining the subject matter reserved to the UK Parliament (and therefore, by implication, the subjects devolved to the Scottish Parliament). Demarcation disputes in relation to such matters will inevitably come before the courts from time to time, but they should not be a frequent occurrence if both the Scottish Executive and the UK Government behave responsibly and constructively. The White Paper envisages administrative procedures and a variety of prelegislative checks6 which should keep to a minimum the occasions on which such matters require to be resolved by the courts. Clause 28(2)(a) to (c) thus lay down jurisdictional boundaries between the Scottish Parliament and the UK Parliament, in terms of territory and subject-matter, and protect the boundaries against change at the hands of the Scottish Parliament. The remaining provisions of Clause 28(2) impose restrictions on vires which are of greater interest to the constitutional lawyer and, in the case of 3

Clause 38(3) and Schedule 4. Clause 29 and Schedule 5. s Clause 28(4)), (5) and (6). 6 Paras. 4.1S and 4.16. These are reflected in clauses 30 and 31 of the Bill. 4

Clause 28(2)(d), are likely to result in more frequent litigation. Under Clause 28(2)(d), compatibility with Community law will be treated as a question of vires, rather than the Factortame7 approach being applied (i.e. the courts not giving effect to legislation insofar as to do so would be incompatible with directly applicable or directly effective Community provisions, without categorising the UK legislation as ultra vires or quashing it). Legislation of the Scottish Parliament which, is incompatible with "any of the Convention rights" will similarly be ultra vires and open to challenge before the courts. The expression "the Convention rights" is defined8 as having the same meaning as in the Human Rights Act 1998, i.e. Articles 2 to 12 and 14 of the ECHR, and Articles 1 to 3 of the First Protocol, as read with Articles 16 to 18 of the ECHR.9 Accordingly, within those subjects areas which fall within the ambit of the Scottish Parliament - and they encompass most areas of government other than external affairs, defence, taxation and social security legislation of the Scottish Parliament must comply with those provisions of the ECHR and the First Protocol. This general approach to ECHR issues is in striking contrast to the approach proposed in the Human Rights Bill in respect of legislation enacted at Westminster. In the latter context, incompatibility with the Convention rights will not give rise to any question as to vires, but will result in the possibility of the courts' making a declaration of incompatibility and the possibility thereafter of remedial action by way of an Order in Council made with Parliamentary approval.10 The Government's approach to Convention issues in relation to the Scottish Parliament was first announced in the White Paper dealing with ECHR incorporation, Rights Brought Home: The Human Rights Bill": "The Government has decided that the Scottish Parliament will have no power to legislate in a way which is incompatible with the Convention; and similarly that the Scottish Executive will have no power to make subordinate legislation or to take executive action which is incompatible with the Convention. It will accordingly be possible to challenge such legislation and actions in the Scottish courts on the ground that the Scottish Parliament or Executive has incorrectly applied its powers. If the challenge is successful then the legislation or action would be held to be unlawful."12 7 R. v. Secretary of State for Transport, ex pane Factortame Ltd. (No.2) [1991] 1A.C.603. 8 Clause 111(1). 9 Human Rights Bill, clause 1(1). 10 Clause 4. 11 Cm. 3782,1997. IZ Para. 2.21.

DEVOLUTION AND THE JUDICIARY The resulting situation can be analysed in a way which is compatible with the traditional Diceyan approach to the constitution.13 On that analysis, the sovereign Parliament at Westminster is establishing a subordinate body with law-making powers and is requiring that body to exercise its powers in compliance with the ECHR and the other requirements mentioned. Viewed in that way, there is nothing surprising in finding that the Scottish Parliament is not sovereign in the sense that the Westminster Parliament is, or in finding that it is subject to a considerable degree of judicial control. It is however interesting to note that the reasons given in the same White Paper for adopting a different approach in relation to the UK Parliament from that adopted in relation to the Scottish Parliament went beyond constitutional theory, and in particular the issue of sovereignty, to include practical and political realities: "The Government has reached the conclusion that courts should not have the power to set aside primary legislation, past or future, on the ground of incompatibility with the Convention. This conclusion arises from the importance which the Government attaches to Parliamentary sovereignty. In this context, Parliamentary sovereignty means that Parliament is competent to make any law on any matter of its choosing and no court may question the validity of any Act that it passes. In enacting legislation, Parliament is making decisions about important matters of public policy. The authority to make those decisions derives from a democratic mandate. Members of Parliament in the House of Commons possess such a mandate because they are elected, accountable and representative. To make provision in the Bill for the courts to set aside Acts of Parliament would confer on the judiciary a general power over the decisions of Parliament which under our present constitutional arrangements they do not possess, and would be likely on occasions to draw the judiciary into serious conflict with Parliament There is no evidence to suggest that they desire this power, nor that the public wish them to have it Certainly, this Government has no mandate for any such change."14

A Scottish politician might claim that, apart from the opening reference to a Diceyan concept of Parliamentary sovereignty, all the reasons given apply also to the Scottish Parliament It will be making decisions about important matters of public policy. Its authority to make those decisions will derive from a democratic mandate. Members of the Scottish Parliament will possess such a mandate because they 13

See e.g. the observations of the Lord Chancellor, Lord Irvine of Laing, during the Committee stage of the Human Rights Bill, H.L. Deb., 18 November 1997, col.539. 14 Para. 2.13.

23

will be elected, accountable and representative. To make provision in the Scotland Bill for the courts to set aside Acts of the Scottish Parliament will confer on the judiciary a general power over the decisions of the Scottish Parliament which under our present constitutional arrangements they do not possess, and will be likely on occasions to draw the judiciary into serious conflict with the Scottish Parliament. There is no evidence to suggest that they desire this power, nor that the public wish them to have it. Certainly, this Government has no mandate for any such change (the giving of this power to the courts not having been mentioned in the White Paper on devolution which preceded the referendum). That is not a line of argument which will command universal support in Scotland. On an alternative approach the situation brought about by the Scotland Act, so far as devolved matters are concerned, may be regarded as the establishment of a Scottish constitution analogous to that of most European nations (and of many Commonwealth countries), whereby the Scotland Act, Community law and the ECHR have the status of a written constitution, and the court at the apex of judicial control (as will be seen, the Judicial Committee of the Privy Council) has the status of a constitutional court: this analysis has been eloquently presented by Lord Hope of Craighead.15 Others within Scotland may however not welcome this form of constitutionalism, and may regard it as ironical, to say the least, that the Scots having voted for self-government by a Scottish Parliament are now to be governed, in a sense, by judges. They may obtain a sympathetic hearing from sections of the Scottish press which are critical of the Scottish senior judiciary for its social composition and the methods of its appointment. What all sides of the debate will be able to agree upon is that the treatment of vires issues in the Scotland Bill, particularly in relation to the ECHR, will place the courts in a role which is not familiar in our political culture, and which is liable to increase political interest in the appointment and tenure of the senior judiciary. Clause 28(2)(e) Clause 28(2)(e) prevents the Scottish Parliament from removing the Lord Advocate from his position as head of the systems of criminal prosecution and investigation of deaths in Scotland. This is one of a number of provisions designed to secure the continued independence from political influence of the senior Law Officer of the Crown in Scotland: related provisions are clause 26(3) (which entitles the law officers, in any proceedings of 15

In his 1997 Hume Lecture, "Judicial Aspects of Devolution", delivered at the University of Edinburgh on 5 December 1997.

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the Parliament, to decline to answer any question or produce any document relating to the operation of the system of criminal prosecution in any particular case); clause 45(1) (under which the law officers can be removed from office only by Her Majesty, and the First Minister cannot recommend their removal without the agreement of the Scottish Parliament: whereas other Ministers can be removed from office by the First Minister without Parliamentary approval); clause 45(2) (which requires that any decision of the Lord Advocate in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland must continue to be taken by him independently of any other person); clauses 48(6) and 49(2) (which prevent other Ministers from exercising the functions of the Lord Advocate, whereas other Ministerial functions are exercisable by any member of the Scottish Executive in much the same way as those of a Secretary of State at UK level); and clause 86(2) (which prevents the investigation of complaints of maladministration concerning the Crown Office or the commencement or conduct of criminal proceedings).16 These provisions give legislative form to principles which, under the current constitution, rest largely upon conventions, recognised in a small number of judicial decisions.17 They implement the undertaking given in the White Paper that "the traditional independence of the Lord Advocate as public prosecutor will be maintained."18 They implicitly acknowledge the 16

cf. the Parliamentary Commissioner Act 1967, sections 4 and 5 and schedules 2 and 3. 17 The rule that in exercising his prosecution functions the Lord Advocate should not be subject to pressure or influence from outside sources was authoritatively expressed in the MacMillan statement in 1959 (HC Deb., Vol. 600, col.31, February 16, 1959; see also The Public Inquiry into the Shootings at Dunblane Primary School on 13 March 1996 (the Cullen Report), Cm. 3386 (1996), p. 161). It is one of a number of considerations (the other most significant ones being confidentiality and fairness to potential accused, victims and witnesses) which limit scrutiny by or on behalf of Parliament (see Cullen Report, ibid.; Lord Mackay of Drumadoon's statement to the Dunblane Inquiry, ibid., p. 157; and his statement to the Scottish Grand Committee, reported 1996 SLT (News) 51). Those limitations are reflected in the practice observed by Lords Advocate in responding to questions in Parliament, in the Standing Order governing the remit of the House of Commons Select Committee on Scottish Affairs (House of Commons Standing Order No. 130, HC 100, 1995-96), in the remit of the Parliamentary Commissioner for Administration (see n 16. ante) and in the practice observed in the establishment and operation of inquiries (see e.g. the Macmillan statement, ante, which concerned the remit of the Waters Tribunal of Inquiry; the "Meehan" Inquiry (HC 444, 1982); (the "Fettesgate" Inquiry (HC 377, 1993); and the Dunblane Inquiry. Confidence in the Lord Advocate's independence has been reflected in the refusal of the Scottish courts to review his exercise of his discretionary powers as public prosecutor: McBain v. Crichton, 1951 J.C. 25; Hester v. MacDonald, 1961 SC 370. 18

Scotland's Parliament, para.4.8

requirement, in a context of profound constitutional change, that there should be recognition (in a form of which the courts can take cognisance) that the independence of the Lord Advocate is unaffected. This is because it cannot be assumed that the conventions and practices of the UK Parliament and Government will necessarily be adopted by the Scottish Parliament and Executive; yet it is essential that the constitutional position of the Lord Advocate should be preserved. His office is in a different position from those of other Ministers in this regard, principally because of the quasi-judicial nature of his responsibilities in respect of prosecution. It also differs in that he will be responsible for the prosecution of offences enacted by both Parliaments: the UK Government will thus have a continuing interest in prosecution policy relating to reserved criminal matters such as drugs, road traffic, firearms and customs and excise matters. These proposals in respect of the Lord Advocate, designed to devolve his office while ensuring his continued independence in a new constitutional context, have implications for the position of the judiciary (particularly because of the Lord Advocate's central role in judicial appointments), as discussed below. 2. The machinery for resolving vires disputes (i) Pre-Assent The White Paper envisages pre-legislative checks within the Scottish Executive and the Scottish Parliament, and liaison between the Scottish Executive and the UK Government, to ensure that legislation is intra vires19. Liaison between the Lord Advocate and the Advocate General for Scotland (the newly-created Scottish Law Officer in the UK Government)20 will be especially important in this regard. These administrative procedures are proposed to be supplemented by specific legal requirements placed on the Scottish Executive and the Presiding Officer of the Scottish Parliament before a Bill can be introduced in the Parliament.21 Before a Scottish Bill receives Royal Assent, it will be possible for the question of whether it is within the legislative competence of the Parliament to be referred by the Advocate General, the Lord Advocate or the Attorney General to the Judicial Committee of the Privy Council.22 For this purpose the Judicial Committee is to consist of the Lords of Appeal in Ordinary and any other member of the Committee who has held high judicial office23. The Bill is in this respect more flexible than the 19 20 21 22 23

Paras. 4.15 and 4.16. Clause 82. Clauses 30 and 31. Clause 32. Clause 94(2).

DEVOLUTION AND THE JUDICIARY White Paper, which would have restricted membership of the Committee for this purpose to the Law Lords.24 The White Paper had also envisaged particular procedures being followed by the Judicial Committee: "At least five Law Lords will sit in any case. The size and composition of the Committee will be decided by the Senior Law Lord (or, in his absence, by the next senior Law Lord who is available) who will also decide where the Committee is to sit in any particular case. As appropriate, this might be in Edinburgh."25 These proposals are not directly reflected in the Bill, which merely provides for procedural rules to be made by Order in Council.26 The decision to give jurisdiction over such matters to the Judicial Committee of the Privy Council, rather than to the Appellate Committee of the House of Lords, is readily understandable. Although the House of Lords hears appeals in Scottish civil cases, it has no jurisdiction over Scottish criminal matters. The Privy Council does not form part of the UK Parliament, and is therefore formally independent of disputes between the Scottish Parliament and the UK Parliament in a way in which the House of Lords would not be. Constitutionally, its role as adviser to Her Majesty is an appropriate means of resolving disputes as to whether an Act of the Scottish Parliament should receive Royal Assent. It has already developed experience of constitutional issues referred to it from the courts of several Commonwealth countries. It is sufficiently flexible to be able to sit in Scotland if that is appropriate and practical. There is no inhibition on its sitting during Parliamentary recess, whereas the House of Lords can sit only if Parliament is recalled. The proposal to extend the membership of the Judicial Committee beyond the Lords of Appeal in Ordinary will be welcomed by many in Scotland who had hoped that the membership could include other members of the Privy Council with experience of high judicial office, including Scottish judges who were not members of the House of Lords, and Commonwealth judges. Insofar as this hope may have reflected a belief that the inclusion of such judges would enable the Committee to attain a more balanced or neutral composition it appears to the present writer to be misconceived: vires issues affect the whole of the United Kingdom, not only Scotland, and should not be regarded as disputes between Scotland and the rest of the United Kingdom: the geographical origins, or places of residence, of the judges are of no relevance. At the same time the fact that such attitudes exist indicates the political sensitivity of adjudication in this 24 23 26

Para. 4.17. ibid. Clause 94(3).

25

area and the consequent advantage of a "balanced" composition from a presentational point of view; and it is undoubtedly sensible to widen the number of judges who can sit beyond the Law Lords, if only because of the likely demands on their time. In particular, a wide membership will make it easier to ensure that there are Scottish judges on the Committee. This is important not merely for presentational reasons: the demarcation between reserved and devolved matters, in particular, will often require a proper understanding of Scots law. The use of the Privy Council does however have certain consequences which may be regarded as disadvantages, although they are not so severe as to outweigh the reasons for giving it this adjudicatory function. First, its reasons have to be expressed in a single judgment, which will be likely to represent the highest common factor in the reasoning of the judges involved. This may be regarded as a disadvantage, to the extent that separate judgments can have an important influence on the development of the law.27 Secondly, decisions of the Privy Council are not formally binding in domestic courts, and in particular are not treated by the House of Lords as having the same authority as earlier House of Lords decisions.28 As will be seen below, this problem has been addressed in the Bill, but it is not clear that it has been entirely resolved. (ii) Post-Assent The Bill contains elaborate provisions for the determination of "devolution issues",29 i.e. vires disputes arising after Royal Assent. These may arise in any proceedings before courts or tribunals anywhere in the United Kingdom. They may, for example, arise in proceedings for judicial review instituted for the purpose of challenging legislation of the Scottish Parliament, or collaterally (e.g. by way of defence in criminal procedings). They can thus arise in proceedings at any level in the judicial hierarchy. Although most devolution issues are likely to arise in proceedings in Scotland, it is coneivable that they may also arise in proceedings in England and Wales or in Northern Ireland. The Bill accordingly contains separate provisions in respect of each jurisdiction. They are however broadly similar; The present discussion will focus on the Scottish provisions. The provisions cover both proceedings for the determination of a devolution issue30 and other proceedings 27 See Broome v. Cassell & Co., (19721 AC 1027.1084 per Lord Reid. Separate concurring opinions are a useful feature of the judgments of the European Court of Human Rights. 28 London Joint Stock Bank v.Macmillan and Arthur [1918] A C 777,807. 29 Section 91 and Schedule 6. 30 Schedule 6 para.4.

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in which a devolution issue arises.31 In each case, provision is made for the involvement in the proceedings of the Advocate General and the Lord Advocate. When a devolution issue arises in proceedings before what could broadly be described as the lower courts,32 those courts have a discretion to refer the devolution issue to the Inner House of the Court of Session (in civil proceedings)33 or to the High Court of Justiciary sitting as an appellate court in (criminal proceedings). Alternatively, they can decide the issue themselves and it can thereafter come before those higher courts by way of appeal. Similarly, tribunals must make a reference if there is no appeal from their decision, but otherwise have a discretion.34 The court to which the issue is referred must then decide it: it cannot refer the issue to a yet higher court.35 When the Inner House decides a devolution issue on a reference by a lower court, an appeal lies to the Judicial Committee of the Privy Council.36 Similarly, when the High Court of Justiciary decides a devolution issue on a reference by a lower court, an appeal again lies to the Judicial Committee, but in this instance it is necessary to obtain the leave of the High Court or, failing such leave, special leave of the Judicial Committee.37 The reason why leave is required in this instance, but not from a decision of the Inner House, may be that an appeal ordinarily lies from any final decision of the Inner House to the House of Lords without leave, whereas there has hitherto been no right of appeal beyond the High Court of Justiciary.38 On the other hand, if a devolution issue arises in proceedings before the superior courts39 (typically, but not necessarily, on appeal from a lower court or tribunal), then they can either refer the issue to the Privy Council40 or determine the issue themselves. If they determine the issue themselves, an appeal will normally lie in civil proceedings to the House of Lords; but where in civil proceedings there is no right of appeal to the 31

Schedule 6 para.5. i.e. in civil proceedings, a court other than the House of Lords or any court consisting of three or more judges of the Court of Session; and in criminal proceedings, a court other than any court consisting of two or more judges of the High Court of Justiciary: Schedule 6, paras. 7 and 9. 33 Ibid. 34 This is implicit in Schedule 6, paras. 10 and 11. 35 Schedule 6, para.8. 36 Schedule 6. para. 12. 37 Schedule 6, para. 13. 38 Criminal Procedure (Scotland) Act 1995, section 124(2); Mackintosh v. Lord Advocate (1876) 3 R. (H.L.) 34. 39 i.e. a court consisting of three or more judges of the Court of Session, or two or more judges of the High Court of Justiciary: Schedule 6, paras. 10 and 11. 40 Schedule 6, paras. 10 and 11. 32

House of Lords,41 and in all criminal proceedings, an appeal will lie to the Privy Council with leave of the court concerned or, failing such leave, with special leave of the Judicial Committee.42 Where a devolution issue arises in the House of Lords, it must be referred to the Privy Council "unless the House considers it more appropriate, having regard to all the circumstances, that it should determine the issue."43 Finally, power is given to each of the law officers to require any court or tribunal to refer to the Privy Council any devolution issue which has arisen in proceedings before it to which he is a party;44 and the law officers are also empowered to refer to the Privy Council any devolution issue which is not the subject of proceedings.45 These procedures are complex but have a number of attractive features. The possibility of referring a devolution issue provides a means of achieving a rapid determination by a superior court of any serious question as to the validity of legislation or executive action. At the same time, the fact that referral by the inferior courts is discretionary (unless there is no possibility of an appeal) protects the superior courts from being overloaded by issues whose determination may be straightforward or may not be necessary on the facts of the particular case. The fact that the superior courts must determine an issue which has been referred to them and cannot transmit the reference upwards to the Privy Council has the desirable consequence that the final court of appeal will not be the first court in which the issue is fully argued and determined: before an issue comes before the Privy Council the issues will have been explored and refined so that it should be clear that there is a genuine issue meriting consideration by the Judicial Committee. Another welcome aspect of the procedure is that a means is provided of filtering out putative issues which are frivolous or vexatious:46 this is welcome in the light of the Scottish courts' experience of the use made of the Act of Union to raise unmeritorious objections to unpopular legislation; and it is also interesting, given that devolution issues will often relate to the ECHR, in view of the Government's rejection of a similar "filter" in the Human Rights Bill.47 41

e.g. from a decision of die Lands Valuation Appeal Court, or from a decision in a special case under section 27 of the Court of Session Act 1988 where the parties have excluded appeal to the House of Lords. 42 Schedule 6, para. 13. 43 Schedule 6, para.32 44 Schedule 6, para.33. This may be intended to enable an issue to be referred directly from a lower court to the Privy Council in a case where a final decision is urgently required. 45 Schedule 6, para. 34. 46 Schedule 6, para.2 47 H.L. Deb., Vol. 583, cols. 1094-1099,27 November 1997.

DEVOLUTION AND THE JUDICIARY One noteworthy aspect of the procedure is that there are two bodies which may make the final determination of a devolution issue, namely the Judicial Committee of the Privy Council and the Appellate Committee of the House of Lords. In Scottish civil proceedings (and also in civil proceedings in England and Wales48 and in Northern Ireland),49 whenever there is a reference (either by an inferior court or tribunal, or by an appellate court, or by the House of Lords) the ultimate power of determination will rest with the Privy Council; but, if no court decides to refer the issue, then the normal appellate procedures will apply, with the ultimate power of determination resting with the House of Lords. The same is true of criminal proceedings in England and Waless0 and in Northern Ireland51, although in Scottish criminal proceedings the ultimate power of determination will always rest with the Privy Council (subject to leave being granted), due to the absence of any appeal to the House of Lords. This double-headed structure is probably inevitable, if it is accepted (for the reasons discussed earlier) that the Privy Council is in principle the appropriate forum to determine devolution disputes. In many cases it will be possible and desirable to isolate a devolution issue and to refer it for determination in advance of the remainder of the case. In such cases, the issue can ultimately be determined by the Privy Council before the case returns to the court which made the reference. In other cases, however, a reference may not be appropriate; and, in such cases, the case will be dealt with as a whole, and on a final appeal will be sent as a whole to the House of Lords. The presumption at that stage will be in favour of the House of Lords' referring the devolution issue to the Privy Council.52 The consequence of this approach is that the Privy Council will, in general, be the final court of appeal in respect of devolution issues, including questions as to the compatibility of the Acts of the Scottish Parliament with the ECHR. In theory, this double-headed structure might result in the possibility of conflicting decisions of the House of Lords and the Privy Council on devolution issues, although that possibility could be avoided through the House of Lords' exercising its power to refer. The matter appears however to be addressed by clause 94 (1) of the Bill, which provides: "Any decisions of the Judicial Committee in proceedings under this Act shall be stated in open court and shall be binding in all legal proceedings (other than proceedings before the Committee)." 48 49 30 51 32

Schedule 6 paras. 22 and 23. Schedule 6 paras. 30 and 31. Schedule 6 paras.22 and 23. Schedule 6 paras. 30 and 31. Schedule 6, para. 32.

27

The effect of that clause appears to go beyond giving the decision of the Judicial Committee binding effect in the proceedings in which it is made (otherwise the words in parentheses would be unnecessary) so as to give it the status of a binding precedent, apparently altering the normal rule that the House of Lords is not bound by decisions of the Privy Council.53 3. Comparison with the machinery under the Human Rights BUI Human rights issues which arise in the form of devolution issues will be dealt with in the way discussed in the preceding section. Very similar issues will also arise under the Human Rights Act: for example, if the UK Government and the Scottish Executive agree on a common approach to the supervision of offenders following their release, and identical legislation is enacted at Westminster and in Edinburgh, the compatibility of the UK legislation with the ECHR will fall to be determined in accordance with the Human Rights Act, whereas the compatibility of the Scottish legislation with the ECHR will fall to be determined as a devolution issue. There are a number of common features between the two approaches: in particular, a similar technique of statutory interpretation will be deployed,54 and the same range of Convention rights will fall to be considered.55 There are also a number of differences. Three have already been mentioned. First and most importantly, the issue of compatibility with the ECHR is a question of vires in relation to Scottish legislation, whereas under the Human Rights Bill the courts can merely make a declaration of incompatibility. x This affects not only the remedy granted, but also the position of private bodies or individuals: the Human Rights Bill is designed to give remedies only against "public authorities" which contravene the Convention, whereas the Scotland Bill is capable of affecting private individuals who have acted on the basis of legislation which contravenes the Convention.57 It may also give rise to difficult questions as to which approach should be followed, in situations where an existing Act of the UK Parliament is amended by an Act of the Scottish 53

n.28, ante Compare clause 28(9) o f the Scotland Bill with clause 3(1) of the Human Rights Bill. 55 See clauses 28(2)(d) and 111(1) of the Scotland Bill. 36 Clause 4. 37 e.g. a doctor who sterilises a mentally handicapped woman against her will, in reliance on authority conferred by legislation contravening the Convention, and is thereafter sued for assault The courts can however remove or limit any retrospective effect of their decision, under clause 9 3 of the Scotland Bill. 34

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Parliament. Secondly, the Human Rights Bill contains no provision enabling ECHR issues to be referred to a higher court before proceedings in the lower court have been concluded. Thirdly, under the Scotland Bill the courts can filter out frivolous or vexatious challenges, whereas no such power is proposed under the Human Rights Bill. Another notable distinction is that the final court of appeal under the Human Rights Bill is the House of Lords (other than in respect of Scottish criminal proceedings). The possibility thus exists of conflicting decisions of the House of Lords (under the Human Rights Act) and of the Privy Council (under the Scotland Act) on substantially the same point. The categorisation of ECHR issues as vires issues, so far as Scottish legislation alone is concerned, and the consequent power of the courts to strike down Scottish legislation, may be politically attractive from the point of view of the UK Government, since it avoids the need for the Government to use "override" powers to avoid a conflict between Acts of the Scottish Parliament and the UK's international obligations under the ECHR : such powers are conferred by the Bill to avoid conflict with the UK's other international obligations,58 and their exercise may well be politically controversial. The avoidance of conflict between the UK Government and the Scottish Executive is an important and legitimate consideration. The. treatment of compatibility as a vires issue, so far as Acts of the Scottish Parliament are concerned, is also consistent with the treatment under the Human Rights Bill of other public authorities whose powers are derived from the UK Parliament: there is nothing surprising about it in terms of legal principle. Nevertheless, it places the courts - particularly the Court of Session and the High Court of Justiciary - in a position which is novel and potentially uncomfortable. The practical differences between the power to strike down, under the Scotland Bill, and the power to make a declaration of incompatibility, under the Human Rights Bill, are admittedly not as great as might at first sight appear, because in either event there is likely to be amending legislation and there is scope for avoiding or minimising retrospective effects.59 There are nevertheless important differences, especially from constitutional and political perspectives, as the Government acknowledged in the passage from the Human Rights White paper quoted earlier.60 There is no doubt that the judges can be trusted, in Scottish cases as in those elsewhere in the United Kingdom, to secure Convention rights. But there are 38

Clause 33. See clauses 10 and 11 of the Human Rights Bill, and clauses 92 and 93 of the Scotland Bill. 60 Para. 2.13. 59

potential difficulties involved in allowing courts to hold invalid statutes which have been passed by a Scottish Parliament; and those difficulties are particularly clear in ECHR cases. Our constitution traditionally is understood to be based on the separation of powers, and in particular on the principle that Parliament enacts statutes and the judiciary interprets and applies them. Devolution is not intended to depart from that principle: on the contrary, the vires provisions illustrate the concomitant rule that, when Parliament confers powers on other bodies, the courts must ensure that those powers are exercised lawfully. Nevertheless, ordinary people in Scotland, and some of their elected representatives, may find it difficult to accept the idea of judges striking down Acts passed by an elected Parliament. The rationale of the Scottish Parliament is that Scottish affairs should be under the democratic control of the elected representatives of the Scottish people. The public will have to understand why the elected and representative Parliament should be subject to supervision by unelected and unrepresentative judges, if that supervision is to be regarded as legitimate. As yet there has been little public debate on these matters. There is thus a danger that public confidence in Scotland in the political impartiality of the judiciary may be undermined, especially if disenchanted politicians (possibly unable to execute their mandate) seek to undermine it. It will consequently be important for both the judges, and senior politicians in Scotland, to endeavour to dispel any misunderstanding as to the role and responsibilities of the judiciary under the devolution settlement. Put more abstractly, the judiciary when dealing with devolution issues will have to define the relationship between democratic authority and the rule of law in a manner which clearly pays proper respect to the democratic authority of the elected representatives of the people of Scotland, but equally clearly explains that their authority is limited in particular by the values expressed in the ECHR and given legal force by the Scotland Act, which elected bodies may sometimes overlook or find inconvenient, but which it is the proper function of the unelected judges to interpret and apply.

2. THE APPOINTMENT AND TENURE OF THE JUDICIARY There is, and will remain after devolution, a UK interest in the calibre and independence of the Scottish judiciary. The judiciary are one of the critical elements in the constitution of the United Kingdom. The Scottish judiciary will continue to be responsible for adjudicating on reserved matters as well as devolved matters, and in disputes between UK institutions and Scottish

DEVOLUTION AND THE JUDICIARY institutions. The Supreme Court judges north and south of the Border also form a common pool from which appointments are made to the House of Lords and the Privy Council. In the White Paper Scotland's Parliament the Government announced its intention to devolve to the Scottish Parliament legislative responsibility for judicial appointments (apart from the appointments of the Lord President of the Court of Session and the Lord Justice Clerk, i.e. the chairs of the two divisions of the civil and criminal appeal courts), and for the administration of the courts.61 In the subsequent discussion of the White Paper in the House of Lords, the present Lord President, Lord Rodger of Earlsferry, drew attention to the fact that the Scottish Parliament would not be bound by the many unwritten arrangements and conventions which operate at present, particularly in relation to the independence of the judiciary and the related matter of the independence of the office of Lord Advocate. In relation to the independence of the judiciary, he said: "At present it depends on a combination of factors relating to such matters as the appointment of members of the judiciary, their salaries and the security of tenure of the judges. These matters work in a subtle way. It appears to me that no government of the United Kingdom can be indifferent to the maintenance of the proper standard of independence of the judiciary in Scotland after devolution because, as has been stressed, we shall remain very much a part of the United Kingdom. These arrangements are matters which depend, in large measure, on arrangements and conventions which are not written down. They should be addressed as regards any devolution legislation which is brought before Parliament"62 In the event, the Scotland Bill says relatively little about the judiciary, although the specific matters referred to by Lord Rodger (appointment, salaries and security of tenure) are all addressed. The judiciary are not listed among the matters reserved to the UK Parliament (although one such matter, "the constitution",63 might, if it were considered in isolation, have been capable of including them), and are therefore by implication a devolved responsibility. That is reflected in clause 89, which deals with the appointment and removal of judges. In relation to appointments, clause 89 provides in the first place that, as at present, the Lord President and Lord Justice Clerk will be appointed by Her Majesty on the advice of the Prime Minister; but the Prime Minister will be unable to recommend the appointment of any 61 62 63

Para.2.4 H.L. Deb., Vol.582, col. 197, 30 July 1997. Schedule 5, para. 1.

29

person who has not been nominated by the First Minister in the Scottish Executive. This to some extent reflects the present position whereby the Secretary of State for Scotland offers the Prime Minister a choice of nominations. Other appointments to the Court of Session or the Sheriff Court are to be made by Her Majesty on the recommendation of the First Minister. This again reflects the present practice whereby the Secretary of State recommends a candidate. Accordingly, in relation to all judicial appointments in Scotland, the successful candidate will require to be nominated or recommended by the First Minister. It will be for the Scottish Parliament and the Scottish Executive to determine the procedures by which candidates are to be selected. Hitherto, the Secretary of State has been guided by the Lord Advocate: the procedure has involved informal consultation with senior legal figures, but has depended primarily on the Lord Advocate's personal knowledge of potential candidates. These processes have until now been considered by Government to work well in practice, within a small jurisdiction, without the need for the establishment of a Judicial Appointments Commission. They have however been criticised by sections of the Scottish press, by certain of the political parties and by other bodies such as the Scottish Council for Civil Liberties. The arguments in favour of a more open system are likely to receive greater support given the new constitutional role which the Scottish judiciary are being given; and the judiciary's success in maintaining public confidence, while carrying out their new and potentially controversial responsibilities, can only be facilitated if their "image problem"64 is seriously addressed. Under the provisions of the Bill, it will be for the Scottish Parliament to decide what changes, if any, should be made in the current practice. It is impossible to predict what procedures a Scottish Parliament might consider appropriate. Some possible procedures,such as the creation of an advisory Judicial Appointments Commission, might work well. It is however conceivable that mechanisms might be adopted, with the best of intentions, which would nevertheless have an adverse impact on the judiciary and the respect in which it is held.6S In short, it is essential that the judiciary should continue to be appointed in a way which preserves their 64 Succinctly encapsulated by Sir Stephen Sedley as "colonels in horsehair": "Parliament, Ministers and Judges", The Inner Temple Yearbook 1997/98 63 For example, one suggestion which has been made is that appointments should be approved by the Scottish Parliament (as the Bill proposes in relation to the Lord Advocate: clause 45(1)). It would be unfortunate if the Parliament were to divide on party lines or were to institute the type of investigation into candidates familiar in Senate confirmation hearings in the United States.

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political neutrality and does not deter candidates of appropriate calibre. Appointments to the Appellate Committee of the House of Lords and to the Judicial Committee of the Privy Council remain a UK responsibility: this can be inferred from the reservation of "the constitution, including the Crown . . . and the Parliament of the United Kingdom"66 and from the absence of any reference to those bodies in other provisions dealing with devolved matters.67 The only likely change would be the substitution of the First Minister for the Secretary of State amongst those consulted by the Lord Chancellor before making his recommendation to the Prime Minister.68 In relation to judicial salaries, the Bill proposes that the level of salaries should be a reserved matter.69 They should therefore continue to be fixed on the basis of the recommendations of an independent body, the Senior Salaries Review Board, and to that extent distanced from the political arena. In relation to the removal of judges, there is no existing statutory procedure for the removal of a judge of the Court of Session: it is generally considered that it requires an Act of Parliament.70 There is a statutory procedure for the removal of a judge of the lower courts who is unfit for office: this involves a report to the Secretary of State by the Lord President of the Court of Session and the Lord Justice Clerk, followed by the making of a Statutory Instrument by the Secretary of State, subject to annulment in pursuance of a resolution of either House of Parliament.71 These procedures have not been criticised to the same extent as the procedures for judicial appointments, but there has been criticism 66

Schedules,para. 1. Clause 89; Schedule 4, para.5(2); Schedule 5, Head 11, Section 1. 68 It is however arguable that the Scottish Parliament could abolish the right of appeal to the House of Lords (from the Scottish courts) entirely. The argument assumes that the right of appeal is an aspect of civil procedure, which is not a reserved matter. On the other hand, the right of appeal to a judicial body in the UK Parliament might be regarded as a constitutional fundamental falling within the reservation of "the constitution, including... the Parliament of the United Kingdom" (Schedule 5, Part 1, para.l). A s the jurisdiction of the House of Lords in Scottish cases is an aspect of Parliament, which replaced the former right of appeal to the Scots Parliament (Lord Fraser of Tullybelton, Stair Encyclopaedia of the Laws of Scotland, Vol.5, para. 638), the stronger argument may be that it would be beyond the scope of the Scottish Parliament to abolish it. The right of appeal to the Privy Council in respect of devolution issues is entrenched in the Scotland Bill. 47

69 Schedule 5, Head 11, Section 1. Pensions are also reserved: Schedule 5, Head 6, Section 3. 70 Lord Fraser of Tullybelton, op.cit, para. 664. 71 Sheriff Courts (Scotland) Act 1971, section 12; District Courts (Scotland) Act 1975, section 5(8). This procedure was recently used to remove a sheriff from office: Stewart v. Secretary of State for Scotland, House of Lords, 22 January 1998 (as yet unreported).

by some of the political parties of the absence of an "independent" body with formal procedures for dealing with complaints and with the power to discipline or remove judges who are regarded as unsatisfactory. Under the Scotland Bill, the removal of judges of the lower courts will be a matter, falling entirely within the legislative competence of the Scottish Parliament. If no new legislation is enacted, their removal will require a report by the senior judges as at present, followed by the making of subordinate legislation by a Scottish Minister, subject to annulment by the Scottish Parliament. The removal of judges of the Court of Session is dealt with in clause 89 of the Bill, in so far as it provides that they can be removed by Her Majesty on the recommendation of the First Minister, and that such a recommendation can only be made if the Scottish Parliament resolves (by the vote of two-thirds of its membership) that the judge should be removed from office. The Bill is silent as to the grounds of removal. It would not be surprising if the Scottish judiciary were concerned by the proposal to devolve responsibility for their appointment and, perhaps especially, their removal. Security of tenure is a particularly important safeguard of judicial independence. In a context where judges will have to adjudicate on disputes involving the Scottish Parliament (or the Executive which dominates it), there are risks involved in giving that institution control of judicial tenure: as a unicameral body, it is liable to offer less protection to judicial independence than the bicameral Parliament at Westminster; and as a new and untested institution it inevitably lacks Westminster's tradition of respect for judicial independence, and will not necessarily inherit that tradition. The risks are increased where no grounds for removal are specified. Nevertheless, it is understandable why the Government should favour the devolution of responsibility for the judiciary. Scottish devolution is intended to address a political problem which became increasingly acute during the period from 1979 to 1997: to "strengthen democratic control and make government more accountable to the people of Scotland."72 The devolution settlement must be one which is politically acceptable and sustainable. The legal system is central to Scottish public life and is a focal point of Scottish cultural identity. The Government may judge that there is no reason which is politically compelling why, unlike the prosecution service, the police and the legal professions, the judiciary should be a matter reserved to Westminster:73 they may judge, on the contrary, that it 72

Scotland's Parliament Foreword by the Secretary of State for Scotland. 73 But the civil service is to be reserved: Schedule 5, Part 1, para.7.

DEVOLUTION AND THE JUDICIARY would be politically unacceptable, and potentially destabilising to the success of devolution, if the judiciary were to be regarded as tied to the UK Government. The central point is that the risks to the calibre and independence of the judiciary arising from the Bill proposals are based on scepticism as to the basic assumption underlying devolution, namely that the Scottish Parliament and Executive will behave as responsible and mature institutions. In relation to each of the three specific matters mentioned by Lord Rodger - appointments, salaries and tenure - the Bill does however propose measures to reduce any risk to the judiciary. The involvement of the Prime Minister in the two senior appointments - which are in practice pivotal to the functioning of the Scottish courts - should ensure that their quality is undiminished. The reservation of judicial salaries and pensions should ensure that, in terms of remuneration, the judiciary in Scotland remain in line with their colleagues elsewhere in the United Kingdom. Most importantly, the proposal to require a specific majority before a Court of Session judge can be removed from office should provide a significant degree of protection against the risk of those judges being attacked for controversial decisions in a heated political atmosphere.74 Nevertheless, in a statute with a constitutional status, it would not be out of place to specify in addition the grounds of removal, as in the Supreme Court Act 1981.

3. CONCLUSIONS The Government's proposals for devolution in Scotland will bring about profound constitutional change. They will not only alter the way in which Scotland is 74 The position of judges of the lower courts is less well protected, insofar as the Bill does not propose any entrenched protection of their position, and the current arrangements (which require an adverse report on their fitness for office by the two senior judges) could be modified by the Scottish Parliament.

31

governed, and the relationship between Scotland and the rest of the United Kingdom, but they will also require the judiciary in Scotland, and in the House of Lords and the Privy Council, to take on new roles and responsibilities of a constitutional nature. Their new role in adjudicating on devolution issues makes new demands of the judges. In determining the legality of Acts of the Scottish Parliament, they will be dealing with matters of particular sensitivity and controversy. In ECHR cases in particular they will have to determine matters which may raise profound questions of social policy, morality or religion. These new roles plainly increase the scope for conflict between the courts and the executive, and introduce the prospect of conflict between the courts and the Scottish Parliament. In those circumstances, it is essential that the greatest care be taken to secure the authority and independence of the judiciary. At the same time, these proposals transfer responsibility for the appointment and tenure of the judiciary in Scotland to the newly-created Scottish Parliament and Executive. In this context, it is reasonable to look for assurances as to the continued independence of the judiciary, and to expect suitable and robust arrangements to be made as part of the new constitutional settlement. Nevertheless, it is not realistic to expect the devolution legislation to define precisely the relationship between the judiciary, the legislature and the executive: to do so would, by entrenching the defined relationship, restrict the competence of the Scottish Parliament to an extent which would contradict the fundamental intention to devolve responsibility. It would also raise difficult and controversial issues as to what exactly those relationships should be (especially to the extent that the current arrangements rest on unwritten, and sometimes controversial, conventions and practices). The Scotland Bill proposes limited but important measures to protect the independence of the judiciary. Beyond those protections, and those implicit in Article 6 of the ECHR, however, the position of the judiciary will depend on the maturity and responsibility displayed by the Scottish Parliament and Executive, and by the judiciary themselves, in the new constitutional structure.

CONSTITUTIONAL REFORM, THE SOVEREIGNTY OF PARLIAMENT AND DEVOLUTION ANTHONY BRADLEY*

I As can be seen from the papers by Professor Bogdanor, Professor Sir David Williams, Professor Hadfield and Robert Reed QC, the subject of devolution within the United Kingdom raises an extraordinary range of issues relating to the practice and principles of constitutional reform. As a step towards the particular aspect which I wish to discuss, I must first express my broad agreement with Vernon Bogdanor's discussion of the questions about parliamentary sovereignty which arise from present plans for devolution. Thus in the Scotland Bill, the conferment of power on the Scottish Parliament to make laws for Scotland (clause 27(1)) is followed by the assertion: "This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland" (clause 27(7)).2 As Bogdanor states, the existence of the new Parliament with legislative power will leave Westminster only with "a more or less theoretical right" to legislate on the devolved subjects against the wishes of the Scottish Parliament and with the right, which is likely to be no less theoretical, to abolish that Parliament In response to the "constitutional conundrum" posed by Bogdanor, asking whether it makes sense * Of the Inner Temple, banister, Emeritus Professor of Constitutional Law, University of Edinburgh. I must thank Professor Hector MacQueen and Dr Geoffrey Marshall for valuable discussion which I have had with them about certain points discussed in this paper. 2 All references are to the Scotland Bill [Bill 104. 1997/98] as ordered to be printed on 17 December 1997. The equivalent to clause 27(7) in the Bill which became the Scotland Act 1978 stated that the Act did "not affect the unity of the United Kingdom or the supreme authority of Parliament to make laws for the United Kingdom or any part of it". The clause was removed on a vote during committee stage in the House of Commons and it was not reinstated.

"to combine so wide a delegation of power to a body which will conceive of itself as representing a nation, while claiming at the same time to preserve the sovereignty of Parliament",3 my answer must be that, whether or not it makes sense, there is no realistic alternative to departing from the United Kingdom's traditional constitutional logic in view of the result of the general election on 1 May 1997 and the referendum in Scotland on 11 September 1997.

n Nonetheless, the government's programme of constitutional reform, including the proposals for devolution, requires us to examine some serious questions about the sovereignty of Parliament. As all readers of Dicey know, until the direct impact of Community law was experienced in the Factortame litigation,4 the Queen in Parliament had "the right to make or unmake any law whatever" and no person or body outside Parliament was "recognised by the law of England as having a right to override or set aside the legislation of Parliament".5 Many, including the present government, hold that still to be the position, apart from the effects of Community law. Certainly, the supreme authority at Westminster includes power to make constitutional changes and, except for the nature of the committee stage in the House of Commons, no special procedure is needed for such legislation. The sovereignty of Parliament is thus a splendidly versatile and flexible instrument available for use by a 3

Page 13 above. R v Secretary of State for Transport, ex pane Factortame Ltd [1990] 2 AC 85 and (No 2) [1991] 1 AC 603. 5 A V Dicey, Law of the Constitution, 9th edn (by ECS Wade), 1959, p 40. 4

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government committed to a programme of extensive constitutional reform. This is particularly the case when the governing party has a commanding majority of votes in the House of Commons and is supported in its programme of reform by 46 Liberal Democrat MPs. Yet that same supremacy of the legislature is capable of being abused and may be an impediment to some forms of reform. First, it is abused as an instrument of constitutional reform when the ends being pursued are over-ingenious, attempt to achieve incompatible goals, seek to enact unworkable compromises, or to create devices which are unsatisfactory in terms of constitutional principle. In my view, the Scotland Act 1978 was inherently unsatisfactory since, while it purported to create an elected Assembly with legislative powers, the contorted and complex manner by which those powers were conferred 6 would have made it impossible for that body to act as a legislature. Secondly, the very flexibility and instrumental nature of supreme legislation may have an abusive impact upon the fragile equilibrium of state powers within the United Kingdom. Contributing to this equilibrium, the judge-made aspects of the rule of law provide a counterbalance to uncontrolled executive power.7 I have in mind the proposition advanced by Stephen Sedley QC, and approved by Nolan LJ, (as they then were) in M v Home Office: 'The proper constitutional relationship of the executive with the courts is that the courts will respect all acts of the executive within its lawful province, and that the executive will respect all decisions of the courts as to what its lawful province is".8 I mention below some matters in the Scotland Bill which give rise to fears that the Bill is at risk of re-defining the limits of executive power in an abusive way.9 6 See Scotland Act 1978, s 18, Pan IV and Schedules 10/12 (annotated in A W Bradley and D J Christie, The Scotland Act 1978 (1979)). 7 See Lord Nolan and Sir Stephen Sedley in The Making & Remaking of the British Constitution (1997), esp. the latter's chapter 2, "The Common Law and the Constitution**. 8 [1992] QB 270, 314. The soundness of the proposition was tested by subsequent decisions such as R v Secretary of State for the Home Department, ex pane Fire Brigades Union [1995] 2 AC 513 (esp Lord Mustill at 567-8) and R v Secretary of State for Foreign Affairs, exparte World Development Movement [1995] 1 WLR 386. 9 Such fear is also justified in respect of the Human Rights Bill. Central to the scheme of enforcement proposed by that Bill is a distinction between 'primary legislation' and 'subordinate legislation', a distinction which in general is justified by reference to the sovereignty of Parliament However, the Bill's definition of 'primary legislation' in clause 21(1) includes both prerogative Orders in Council and also delegated legislation which amends any primary legislation

Thirdly, there may arise a threat to principle from procedural abuse of the supreme authority of Parliament. It might appear at first sight that the present proposals for constitutional reform ought not to cause any alarm from a democratic standpoint. They were signalled in the joint statement of the Labour and Liberal Democrat parties in March 1997, were included within the general election manifestos of both parties, have been the subject of white papers since the election and (in the case of the devolution proposals) have been supported by referendums in Scotland and Wales, and are now embodied within Bills before Parliament. Valuable preparatory work in the case of Scotland was done by the Scottish Constitutional Convention.10 However, both the Scotland Bill and the Human Rights Bill are necessarily different documents from the white papers to which they seek to give effect.11 How efficiently and loyally they give effect to the white papers is a matter which must be vigilantly scrutinised in Parliament. Further, if as constitutional measures they are taken in committee in the whole House of Commons, a process regarded as more suitable for such measures than a standing committee, then it is unlikely that a majority of MPs will be persuaded to vote for any amendments which are opposed by the government. The Lord Chancellor is right to remind us that the devil may lie in the detail, yet the detail in these Bills became known outside Whitehall only on publication of the Bills. Nor is all the detail known even now, since both the Scottish and Welsh Bills confer extensive new powers of delegated legislation. Significant choices with a constitutional impact will have been made by ministers on official advice in the process that occurs between white paper and publication of the Bill. Discovering what choices have been made, and why, ought to be at the essence of parliamentary scrutiny. Yet the legislative process in Parliament seems often ill-designed to ensure critical yet constructive scrutiny. Where a government intends to introduce a programme of substantial constitutional reform, there is a strong case for re-examining the ordinary legislative process and for considering whether, for instance, the drafting process should be (and thus made under a Henry VIII clause). Under no stretch of a constitutional imagination could such measures be regarded as the acts of a sovereign legislature. 10

See Scottish Constitutional Convention, Scotland's Parliament: Scotland's Right (1995). " See respectively Scotland's Parliament, Cm 3658, 1997 and Rights Brought Home: the Human Rights Bill, Cm 3782, 1997. Despite what is said in Rights Brought Home, the Lord Chancellor has since stated that it was not the government's intention in the Human Rights Bill that the Convention rights would become part of the United Kingdom's substantive domestic law: HL Deb, 18 November 1997, cols 508/511.

CONSTITUTIONAL REFORM, THE SOVEREIGNTY OF PARLIAMENT AND DEVOLUTION opened up to scrutiny and overseen by or entrusted to a constitutional commission.12 Fourthly, the sovereignty of Parliament is a handicap to principled reform (and may serve as a glass ceiling to reform) if ministers and other parliamentarians unite in agreeing that parliamentary sovereignty is sacrosanct, an agreement which assumes that the doctrine is the best constitutional basis that could be designed for these islands and that it should be preserved for all time to come.13 It is these assumptions which give a hollow sound to the formal declaration in the Scotland Bill that Westminster remains fully able to legislate for Scotland. These assumptions may also affect perceptions of the reforms from outside Westminster and Whitehall. Robert Reed QC (Chapter 2 above) brings into focus the discrepancy that will exist when both the Scotland Bill and the Human Rights Bill have come into force, between Acts of the Westminster Parliament (which will have effect even if they are in breach of the Convention rights, but may be subject to a declaration of incompatibility), and Acts of the Scottish Parliament (which may be held to be invalid by the courts if they infringe Convention rights). Doubtless some in Scotland may claim that the discrepancy should be removed by conferring on the Scottish Parliament the same power to legislate in breach of Convention rights as the Westminster Parliament. For several reasons, any such claim should be rejected. (1) The United Kingdom is a party to the European Convention on Human Rights and the new Scottish Executive will not be. (2) It is in 1998 remarkable that anyone should wish to see a regional parliament created in a European democracy with power to legislate in breach of Convention rights. (3) If the discrepancy between the powers of Westminster and Edinburgh is too great to be tolerated, we should give our attention to disabling Westminster from having authority to legislate in breach of the Convention (in other words, it is the 'unlimited' Parliament at Westminster which creates the problem, not the existence of legal limits on the Scottish Parliament). (4) More generally, even if Westminster were being asked to confer independence on Scotland, which is not the case, the Scottish people themselves would hardly wish to inherit a sovereign Parliament. I am not aware that a sovereign Parliament in the Westminster sense has ever been created on the numerous occasions in which independence has been conferred on British dependent

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territories since 1945. To attempt to do so for Scotland would be particularly inappropriate since, if we are to accept the opinion of the late Lord President Cooper, the sovereignty of Parliament is an English doctrine which has never been part of Scots law.14

in Despite criticisms which I have to make of the Scotland Bill, I am certain that the Bill has benefited from the abortive attempts to achieve devolution in the 1970s and from the work of the Scottish Constitutional Convention. Amongst the important improvements which have been made in the present scheme compared with the Scotland Act 1978 are the following: (a) the provision for the Scottish Parliament to be elected by a form of proportional representation (the additional member system); (b) the simpler method for devolving legislative power on the Scottish Parliament, by which in essence power to legislate on all matters within Scotland is devolved except for reserved powers which are enumerated in the Bill; (c) the broader devolution of functions (for instance, to include the universities and the courts); (d) the tax-varying power; (e) the proposed reduction in Scottish representation at Westminster; and (0 the apparent down-grading (compared with 1978) of the position of the Secretary of State for Scotland. There can be no doubt that this legislation, which within its limits will be a veritable written constitution for Scotland, will give rise to new political practices, new patterns of governmental conduct (both in Edinburgh and in Whitehall) and indeed to new conventions - for instance, as to the relations between the new Scottish Executive and the Scottish Parliament. These future conventions are not spelled out in the white paper, Scotland's Parliament, although this makes the surprising prediction: "The relationship between the Scottish Executive and the Scottish Parliament will be similar to the relationship between the UK Government and the UK Parliament."13 It is difficult, given the arrangements which will determine the composition and life of the Scottish

12

Cf Delivering Constitutional Reform, The Constitution Unit, 1996. 13 Cf. A. W. Bradley, "The Sovereignty of Parliament - in Perpetuity?" in J Jowell and D Oliver (ed), The Changing Constitution, 3rd ed, 1994,79.

14

MacCormick v Lord Advocate 1953 SC 396. And see The Laws of Scotland: Stair Memorial Encyclopedia, vol 5, pp 137/162. 15 Cm 3658,1997, para. 2.6.

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Parliament, to see how this can be so. Nor is this a matter for regret, given the penetrating criticism which the Scott report made of the relationship between Westminster and Whitehall.16Indeed, it was only on the eve of the dissolution of Parliament in March 1997, as a delayed sequel to the Scott report, that both Houses at Westminster declared the fundamental principles which should govern the conduct of ministers in relation to Parliament.17 Despite that advance, many questions remain unanswered regarding ministerial and legal responsibility for departmental administration, not least for the conduct of the 'executive agencies' (created under the 'Next Steps' programme) which have become a prominent feature of government during the 1990s. The Scottish Parliament should be encouraged to find its own answers to such questions.

IV Devolution to Scotland will also generate new kinds of justiciable disputes, in that the courts will have to interpret and apply the devolution legislation. Broadly these disputes will concern (a) the limits of the devolved powers, both legislative and executive, (b) the protection of civil rights and liberties in the light of the changed constitutional background and (c) the judicial review of the decisions and conduct of public authorities, which will include the new Scottish Ministers. In practice these three broad functions will not be exercised in separate water-tight compartments: thus the same dispute between an individual and government may raise devolution issues as well as the traditional grounds of judicial review; and if a question of inconsistency with the European Convention on Human Rights arises, this is itself a devolution issue.18 So far as devolution issues in the narrow sense are concerned, while the Scotland Bill confers power to legislate on all matters for Scotland except for those which are reserved to Westminster, Schedule 5 sets out the reserved matters in 19 pages, compared with two pages in the white paper.19 Some matters listed are properly stated in broad terms, such as the defence of the realm and the armed forces of the Crown; coinage, legal tender and bank notes; betting, gaming and lotteries; emergency powers; and extradition. Some are phrased with reference to existing legislation, for 16 Report of the Inquiry into the Export of Defence Equipment and Dual-Use Goods to Iraq, HC 115 (1995/96). 17 HC Deb, 19 March 1997, col 1046; HL Deb, 20 March 1997, col 1055. 18 Scotland Bill, clause 28(2). 19 The 5th Schedule itself is subject to modification by subordinate legislation made under a very broad power contained in clause 29(2).

example, "The subject-matter of the Firearms Acts 1968 to 1997", or, with a qualification, 'The subject-matter of the Money Laundering Regulations 1993, but in relation to any type of business". There is detailed provision to enable matters of Scots private law and Scots criminal law to be within the competence of the Scottish Parliament even if they relate to reserved matters.20 Schedule 5 begins with this statement: 'The constitution, including the Crown, the succession to the Crown and a regency and the Parliament of the United Kingdom are reserved matters". While this general statement is amplified thereafter, "the constitution" is not a term of art. In 1689, subversion of "the fundamental constitution" was relied upon as the foundation of the Scottish Parliament's charges against James VII, 21 and assumptions about the constitutional status quo have been at the heart of leading judgments.22 In the absence of a written constitution for the United Kingdom, "the constitution" may refer to the entire structure and system of government of the United Kingdom, including Scotland. Thus if this reserved matter were broadly interpreted, the reservation would impose a host of unwritten and uncertain limits upon the competence of the Edinburgh Parliament. The courts then will have a new and possibly difficult task of interpretation. The assistance which the Bill gives them in this task includes the following direction: "Any provision of an Act of the Scottish Parliament is to be read, so far as is possible, so as to be within the legislative competence of the Parliament and is to have effect accordingly".23 20

Scotland Bill, clause 28 (4),(6); clause 111 (3).(4). The Claim of Right 1689 declared that the King had "by the advice of evil and wicked counsellors, invaded the fundamental constitution of the Kingdom, and altered it from a legal limited Monarchy, to an arbitrary despotic Power". By contrast, the English Bill of Rights charged James II with having endeavoured to subvert "the Protestant Religion, and the laws and liberties of the Kingdom". 22 See e g Nairn v University of Si Andrews [1909] AC 147. In denying women graduates the right to vote, Lord Loreburn LC said: "It would require a convincing demonstration to satisfy me that Parliament intended to effect a constitutional change so momentous and far-reaching by so furtive a process" (p 161). Lord Robertson based his concurring judgment on broad grounds: "I think that a judgment is wholesome and of good example which puts forward subject-matter and fundamental constitutional law as guides of construction never to be neglected in favour of verbal possibilities" (pp 165/6). 23 Scotland Bill, clause 28(9). See also clause 50(5): "Any provision of subordinate legislation made or purporting to be made by a member of the Scottish Executive is to be read, so far as possible, so as to be within the powers conferred by virtue of this Act and is to have effect accordingly". It must be emphasised that these interpretative duties do not apply to provisions in what will be the Scotland Act itself. Thus they will not govern interpretation of the extent of the reserved matters. 21

CONSTITUTIONAL REFORM, THE SOVEREIGNTY OF PARLIAMENT AND DEVOLUTION This duty applies not only to measures which may be 'ultra vires' for trespassing upon reserved matters, but also to other grounds on which the competence of the Scottish Parliament is limited (including extra-territoriality, modification of the Scotland Act itself, and incompatibility with Convention rights or with Community law).24 The duty to read Scottish measures so as to be within the competence of the Scottish legislature arises "so far as is possible". Under the Human Rights Bill, clause 3(1), the duty on all United Kingdom courts and tribunals will be to read primary and subordinate legislation in a way which is compatible with the Convention rights, "so far as it is possible to do so". That new interpretative duty, it would seem, is intended in respect of human rights to be a strong duty that may in difficult cases require the courts to adopt a novel approach to the disputed legislation. Is the interpretative duty created by the Scotland Bill intended to have the same strength? Presumably it is, since the duties are formulated in such similar terms. However, on that basis is there any risk that the two strong duties might sometimes steer the court in opposite directions? The best answer to this question would appear to be that there is no such risk. The reason for this is that both duties will always and necessarily take the court in the same direction - since a Scottish Act will be within the competence of the Scottish Parliament only if it can be read consistently with Convention rights.25 However, the exclusion from the competence of the Scottish Parliament of "the constitution" might be relevant were facts similar to those in R v Lord Chancellor, ex parte Witham26 to arise in Scotland after devolution. Leaving aside arguments based on Convention rights, if the Scottish courts were to accept the reasoning of Laws J. that "constitutional rights" are those rights which must be referred to expressly in primary legislation before they can be taken away, and if to take away such rights is a matter relating to "the constitution", then the Scottish Parliament would have no power to legislate so as to remove those rights. Equally, by analogy with the reasoning in Nairn v University of St Andrews, it might be argued that the 24

Scotland Bill, clause 28(2). The Human Rights Bill does not make it immediately clear whether the interpretative duty created by the Human Rights Bill (clause 3(1)) is intended to apply to Acts of the Scottish Parliament Such Acts are not included expressly in either the definition of "primary legislation" or that of "subordinate legislation" in clause 21(1) of the Human Rights Bill. Indeed, the Scotland Bill was not published until after the Human Rights Bill. However, in the scheme of the latter Bill, Acts of the Scottish Parliament must rank as subordinate legislation and would appear to be "other instruments made under primary legislation", within paragraph (d) of the definition of "subordinate legislation". 26 [1997] 2 All ER 779. 25

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Scottish Parliament would be unable to legislate in a manner which sought to reverse "a settled and uniform constitutional practice and principle".27

It is premature to seek to give definite answers to such questions, but it is certain that, although devolution issues may arise anywhere in the United Kingdom, the Scottish courts are likely to have to decide upon the validity of Scottish Acts of Parliament. This task may involve the courts in deciding issues of acute political sensitivity in Scotland. This new role of the Scottish courts makes it necessary to examine what the Scotland Bill proposes as to the appointment and removal of judges in Scotland. In respect of appointment, the provision for the involvement of the Prime Minister in the appointment of the two most senior judicial offices (the Lord President and the Lord Justice Clerk) and for the involvement of the First Minister in Scotland in the appointment of other Court of Session judges, sheriffs principal and sheriffs, was foreshadowed in the white paper and is unexceptional. However, what was not foreshadowed in the white paper is the proposed power in the Bill for the removal of Court of Session judges, including the two most senior offices: "Clause 89 (4) A judge of the Court of Session may be removed from office by Her Majesty on the recommendation of the First Minister. (5) The first Minister shall make such a recommendation if (and only if) the Parliament resolves that the judge in question should be removed from office and the number of members voting in favour of the resolution is not less than two-thirds of the total number of seats for members of the Parliament". I need not refer to the 17th century disputes relating to the tenure of English judges, except to say that the Act of Settlement provision in 1700, requiring judges' commissions to be "Quamdiu se bene gesserint" (during good behaviour) but providing that it may be lawful to remove them "upon the address of both Houses" did not apply to the Scottish judiciary. Nor does its successor, section 11(3) of the Supreme Court Act 1981.28 The reason for this is that the tenure of Court of Session judges is governed by the common law and by Article 13 of the Claim of Right, 1689, whereby it was declared as one of the charges against James VII "That the sending letters to the Courts of Justice, ordaining 27

[1909] A C at 163/4 (Lord Ashbourne). By which High Court judges "shall hold office during good behaviour, subject to a power of removal by Her Majesty on an address presented to her by both Houses of Parliament". 28

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the Judges to stop or desist from determining causes, or ordaining them how to proceed in causes depending before them, and changing the nature of the Judges* Gifts 'ad vitam aut culpam' into Commissions 'durante bene placito', are contrary to law." The Claim of Right thus restored to the judges the tenure of 'ad vitam aut culpam' (for life or until misconduct), but modified today by the existence of a retiring age.29 Since appointment to this office is in law made by the Crown, in law the Crown may remove a judge for misconduct, a power which has not had to be exercised. Plainly it is a power which the Queen would be able to exercise only on the advice of her Ministers. It may be that there should be a statutory provision for the removal from office of a Court of Session judge. In recent years Scotland has experienced media discussion about the conduct of judges. There is indeed in Scotland an elaborate procedure for the removal of a sheriff or sheriff principal who is unfit for office by reason of inability, neglect of duty or misbehaviour, and the procedure involves an inquiry by the two most senior judges in Scotland, an order for removal by the Secretary of State, and the possibility of parliamentary debate.30 That procedure has been exercised in 1977 and again in 1992. But four comments may be made on what is now proposed in the Scotland Bill. First, there was before publication of the Bill no public discussion whatever of the power and the procedure that would be appropriate. Secondly, the proposal seems intended to allow removal of a judge for any reason whatsoever. This in itself is unsatisfactory, and the Bill should be amended to indicate the grounds on which removal could occur and this should make clear that removal would occur only where misconduct ('culpa') had occurred. On what other grounds would removal be justified? Thirdly, if the new procedure for removal is intended to match the new procedure for appointment of judges, why should it be applied to all those who were appointed to the Court of Session by a different procedure and on a different legal basis? When a judicial retiring age was introduced in 1959, this was not applied to existing judges without their consent.31 Compelling reasons ought to be shown before the legislature should 29 See also W I R Fraser, Constitutional Law, 2nd edn, 1948, pp 206, 209; J D B Mitchell, Constitutional Law, 2nd edn, 1968, pp 260261. 30 Sheriff Courts (Scotland) Act 1971, s 12. Two sheriffs have been removed under this procedure. On the meaning of inability, see Stewart v Secretary of State for Scotland (HL) Times Law Report, 28 January 1998. 31 Enabling the late Lord Cameron to make a remarkable contribution to Scottish justice, long after any statutory retiring age.

exercise its sovereign powers to alter the tenure of the existing judiciary. Fourthly, the only procedural safeguard is that there should be a vote in favour of removal supported by twothirds of the entire membership of the Scottish Parliament. This seems inadequate, primarily because in a disputed case (presumably the judge is refusing to resign, or the power would not need to be exercised) there ought to be a prior inquiry into the matter before it reaches the stage of a vote in the unicameral Parliament. 32 Who should conduct the inquiry, and how should that inquiry be initiated? Once such an inquiry has been held, and grounds for removal have been shown, then it may be commented that the requirement of a two-thirds vote of the entire Parliament might even give the defaulting judge too great a measure of protection. Comparison may be made with the United States Constitution, which on several matters, including the necessary approval for the treaty-making power of the President as well as impeachment, requires that twothirds of the senators present concur. To justify this rule in respect to treaties, in preference to the more stringent requirement of two-thirds of the whole Senate, Hamilton writing in The Federalist pointed out that all provisions requiring more than a simple majority had "a direct tendency to embarrass the operations of the government, and an indirect one to subject the sense of the majority to that of the minority". He continued, "If two-thirds of the whole number of members had been required, it would, in many cases, from the non-attendance of a part, amount in practice to a necessity of unanimity. And the history of every political establishment in which this principle has prevailed, is a history of impotence, perplexity, and disorder".33 Elsewhere in The Federalist, in justifying the requirement that judges appointed by the United States should hold their office during good behaviour, Hamilton said: "The complete independence o f the courts o f justice is peculiarly essential in a limited constitution. B y a limited constitution, I understand one which contains certain specified exceptions t o the legislative authority; such, for instance, as that it shall pass no bills o f attainder, n o ex post facto laws, and the like. Limitations of this kind can be preserved in practice n o other way than through the medium of the courts of justice; whose duty it must be to declare all acts contrary to the manifest tenor o f the constitution void". 3 4 32

Rees v Crane [1994] 2 AC 173 makes clear the importance of due process if the removal of a judge is under consideration. 33 The Federalist, ed M Beloff, 1948, no. 75, p 385. This passage is cited in the informative article by J Jaconelli, "Majority Rule and Special Majorities" [1989] P L 587,600-601. 34 The Federalist, no 78, p 397.

CONSTITUTIONAL REFORM, THE SOVEREIGNTY OF PARLIAMENT AND DEVOLUTION On the rule of good behaviour as the basis for judicial tenure, Hamilton also said: "The experience of Great Britain affords an illustrious comment on the excellence of the institution".35 As will already be apparent, Scotland in Hamilton's sense will have a "limited constitution" and it seems all the more necessary that the independence of the Scottish judiciary should not be called into any doubt by provisions relating to their removal from office.

VI Another way in which a supreme Parliament can endanger the equilibrium of powers is by conferring on the executive powers that more properly belong to the legislature. Both the Scotland Bill and the Government of Wales Bill contain innumerable new provisions empowering the making of delegated legislation. The Scotland Bill contains no less than 13 powers in the form of Henry VTH clauses, i e clauses enabling delegated legislation to amend primary legislation,36 and the Wales Bill contains even more.37 One of these powers is to be found in clause 95 of the Scotland Bill (Power to make provision consequential on Acts of the Scottish Parliament): "Subordinate legislation may make such provision as the person making the legislation considers necessary or expedient in consequence of any provision made by or under any Act of the Scottish Parliament". The width of this power is breath-taking, even by comparison with other modern Henry VIII clauses. The power to use it is entrusted by clause 102(1) to the Queen in Council or a Minister of the Crown, and clause 102(3) imposes a requirement of either the negative procedure or the positive procedure in Parliament. The effect is to enable the government in London, at any time in the future, to react to any provision made by a Scottish Act or any delegated legislation made under a Scottish Act by making such provision as the government considers "necessary or appropriate". Possibly the need to exercise what the Bill describes as an "open power" will be kept under review from time to 33

Op.ciL,p402. B K Winetrobe, The Scotland Bill: Some Operational Aspects of Scottish Devolution. House of Commons Library Research Paper 98/2, pp 32-36. 37 B K Winetrobe, Government of Wales Bill: Operational Aspects of the National Assembly, House of Commons Library Research Paper 97/132, pp 33-37. 36

39

time by the Secretary of State for Scotland, who with much diminished functions is to continue as a member of the British Cabinet. Another very broad power, which like the power in clause 95 is unlimited in duration, is to be found in clause 96 (Power to make provision consequential on this Act): "Subordinate legislation may make such modifications in any pre-commencement enactment as appear to the person making the legislation necessary or expedient in consequence of this Act". An even broader power with a novel impact is in clause 92, whose marginal note is "Legislative power to remedy ultra vires acts". The clause provides: "Subordinate legislation may make such provision as the person making the legislation considers necessary or expedient in consequence of (a) any provision which purports to be made by or under any Act of the Scottish Parliament but is not, or may not be so made, or (b) any purported exercise by a member of the Scottish Executive of his functions which is not, or may not be, an exercise or a proper exercise of those functions." If the aim of this power, as the marginal note indicates, is to enable legislative measures to be taken by the executive "to remedy ultra vires acts", the aim undoubtedly competes with the judicial power to remedy ultra vires acts. By the process of judicial review, a judge may declare that a certain measure is ultra vires and may give an appropriate remedy to those adversely affected. Presumably legislative measures to remedy ultra vires acts would be taken under clause 92 in the interests of the public authority which has acted ultra vires, validating measures which were in law invalid and possibly depriving individuals affected of their right to seek a remedy by way of judicial review. Although Acts of the Scottish Parliament and subordinate measures taken by the Scottish Executive will be ultra vires if they go outside the legislative competence of the Scottish Parliament, there is nothing in the proposed clause to limit the power to remedying such measures. Indeed the power could be used when a Scottish Minister has simply gone wrong in administrative law, by acting for improper motives, by improper procedure, in breach of natural justice and so on. Since this power is, like the powers already mentioned, to be exercisable by the Queen in Council or by a Minister of the Crown, it would appear that when the new Scottish Executive has taken steps which may give rise to an application for judicial review, whether on a devolution issue or in relation to general principles

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ANTHONY BRADLEY

of administrative law, and whether review is actual or merely threatened, the Secretary of State for Scotland could be asked to intervene to prevent the ordinary process of judicial review taking effect. The power is one that should never be entrusted to a holder of office in the executive. Its effect in the wrong hands would undermine the integrity of judicial review. Was it included in the Scotland Bill out of a fear that judicial review would prove to be too much of a good thing in the future? Such a clause may send us back to read again Lord Hewart's strictures in The Age of Despotism upon what he identified as the 'administrative law' of the late 1920s38 or to consider the question asked by Lord Seaman within the present decade: 'The judges are doing their best: but will Parliament really permit the growth of a coherent and comprehensive administrative law?"39 Clause 93 (Power of courts or tribunals to vary retrospective decisions) contains a power which, like the foregoing power, is not confined to devolution issues but can apply generally when a member of the Scottish Executive has acted ultra vires in making, confirming or approving subordinate legislation. This power will enable a court or tribunal, when either a Scottish Act has been held to be outside the competence of the Scottish Parliament, or a Scottish minister has been held to have acted ultra vires in respect of subordinate legislation, to make an order "(a) removing or limiting any retrospective effect of the decision, or (b) suspending the effect of the decision for any period and on any conditions to allow the defect to be corrected". Before making such an order, the court must among other things "have regard to the extent to which persons who are not parties to the proceedings would otherwise be adversely affected". Judicial decisions of the court respecting Scottish Acts and delegated legislation may 38 "Administrative law in this country is not really a system at all, but is simply an exercise of arbitrary power in relation to certain matters which are specified or indicated by statute, not on any definite principle, but haphazard, on the theory, presumably, that such matters are better kept outside the control of the Courts, and left to the uncontrolled discretion of the Executive and its servants". Hewart, The New Despotism (1929), p 46. 39 Scarman, "The Development of Administrative Law: Obstacles and Opportunities" [1990] PL 490,491-2.

of course create difficulties for the Scottish administration. The court is not required to exercise this power, and often might not wish to do so. But it is in the nature of ex post facto judicial review that the court's decision will bite upon earlier acts and thus (in one sense) be "retrospective", except where for good reason relief in respect of past events is no more than declaratory.40!! is difficult to relate the proposed power to the limited conclusions reached by the English Law Commission in 1994 concerning prospective declarations.41 The proposed power would be best considered within the framework of an expert evaluation of the need for the court to have additional remedial functions when dealing with secondary legislation. Outside that framework, the proposal might give rise to an unworthy suspicion that the executive is wishing to provide for a means of prospective damage-limitation where individuals have succeeded on judicial review.

VII Unheralded proposals such as these raise difficult questions about the future role of the courts by way of judicial review, and the ability of the Scottish and United Kingdom executives by means of delegated legislation, to intervene when public law difficulties arise from Scotland's new constitution. I welcome the main features in the government's programme of constitutional reform and wish to see it carried through successfully. However, Westminster should seek to carry it through without creating a swathe of novel Henry VIII clauses or other constitutional solecisms. As the Scotland Bill stands, it reveals a tension between the administrative state and the 'rule of law', at a time when the Human Rights Bill is seeking to take a further important step in promoting the "common heritage of political traditions, ideals, freedom and the rule of law" enjoyed by members of the Council of Europe. If the devil is in the detail of the Scotland Bill, then as public lawyers we should be using our efforts to remove the devil from the Bill - and thereby to strengthen the practice and principles of constitutional reform in the United Kingdom. 40

Cf R v Dairy Produce Quota Tribunal, ex pane Caswell [1990] 2 AC 738 and R v Panel on Take-overs and Mergers, ex pane Guinness pic [1990] 1 QB 146. 41 Administrative Law: Judicial Review and Statutory Appeals, Law Com No 226,1994, pp 78-79.

DEVOLUTION: THE WELSH PERSPECTIVE PROFESSOR SIR DAVID WILLIAMS Q.C., D.L.*

In a matter of months after the General Election there appeared a White Paper on Welsh devolution1, a referendum,2 and a surprisingly lengthy and detailed Bill providing for "executive devolution" for Wales and for the reform of some Welsh public bodies.3 The Bill consisted of 149 clauses and 14 schedules. There had previously been private members' bills concerned with Welsh government from 1892 to 1973,4 there had been the abandoned Scotland and Wales Bill 1976 and the discarded Wales Act 1978,5 and there had been extensive investigation of the structure of the United Kingdom in the proceedings of the Royal Commission on the Constitution 1969-1973.6 A more recent study of the Welsh dimension was produced by the Constitution Unit in 1996.7 The various Parts of the Bill currently before Parliament could perhaps be summarised as follows: 1. Part I provides for a National Assembly for Wales consisting of constituency members together with additional members drawn from five Assembly electoral regions (the five European Parliamentary * Professor of Law and Emeritus Vice Chancellor, University of Cambridge 1 The White Paper (Cm 3718 of 1997) is entitled A Voice for Wales (Uais dros Gymru) (July 1997). See Parl. Deb.. HC, Vol. 298, cc 753 ff, 22 July 1997 id, cc 1119 ff, 25 July 1997. 2 The Welsh referendum was held, in accordance with legislation, in September 1997. The Scottish referendum was held one week earlier. 3 The Government of Wales Bill appeared in November 1997. 4 See D.G.T. Williams, "Wales and Legislative Devolution" (1975) Cambrian LR 80, 81. This article also appears in Harry Calvert (ed.). Devolution (London, Professional Books Ltd) (1975) at 63-88. J See Vemon Bogdanor, Devolution (Oxford: OUP) (1979), ch.6. 6 The Report (Cmnd. 5460 of 1973) appeared in October 1973. 7 An Assembly for Wales, Senedd i Gymru. The Constitution Unit, set up in 1995, is based at the Faculty of Laws, University College, London. See also The Constitution of the United Kingdom (London: Institute for Public Policy Research, 1991).

constituencies in Wales). Elections would be held every four years; each elector would have two votes; the constituency members would be elected on a "first past the post" basis and the additional members would be elected through a form of proportional representation.8 2. Part II provides for the transfer to the Assembly of functions of Ministers of the Crown in relation to Wales, not least in relation to the budget. Transfer would be made by Order in Council approved by a resolution of each House of Parliament. Particular clauses provide for powers to reform health authorities in Wales and to reform other public bodies (a long list is set out in Schedule 3). The Secretary of State would have to consult the Assembly about the Government's legislative programme for each Parliamentary session. Subordinate legislation made by the Assembly would not be subject to Parliamentary procedures save where it is made jointly with a Minister or where it relates to a crossborder matter. 3. Part III is concerned with Assembly procedure, with due allowance for equal treatment of the English and Welsh languages. The Assembly would be required to establish an Executive Committee to provide overall direction and to create a number of committees with special responsibilities specified in Standing Orders. Several clauses relate to subordinate legislation with provision, for instance, for a "regulatory appraisal" to look at likely costs and benefits and also for the establishment of a subordinate legislation scrutiny committee. There are also clauses about openness, accountability and integrity, each one reflecting aspirations expressed in the White Paper.9 8 See also Schedule 1 to the Bill; and see the White Paper, 4.2 - 4.8 and Annex C. 9 See 4 . 2 8 - 4 . 3 9 of the White Paper.

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SIR DAVID WILLIAMS

4. Part IV is concerned with Assembly finance, with provision inter alia for the appointment of an Auditor General for Wales, closely linked to the Controller and Auditor General, and for the appointment of an auditor of the accounts of the Auditor General for Wales. 5. Part V includes other provisions about the Assembly - such as those relating to observing Community law and Convention rights, to compliance with international obligations, to relations with local government (there is to be a Partnership Council for Wales) and voluntary organisations, and to the principle of equality of opportunity. Perhaps one of the most significant set of provisions in the entire Bill concerns legal proceedings on "devolution issues" relating to the range of the Assembly's powers (including compatibility with Community law and Convention rights), and to this we shall return in the main body of this paper. 6. Part VI is concerned with the reform of Welsh public bodies provided for in over twenty clauses. 7. Part VII contains various supplementary and financial provisions, including a predictable Henry VIII clause allowing the Secretary of State to amend or repeal previous Parliamentary legislation where it "appears to him to be appropriate in consequence of this Act". There is an interpretation clause which incidentally defines "the Convention rights" as having the same meaning as in the Human Rights Act 1998, a reminder of the package of constitutional proposals now before Parliament on an interlocking basis. The scheme for Wales can be described as executive devolution, the essence of which, as seen by the Royal Commission (the Kilbrandon Commission), "is that Parliament and the central government would be responsible for the framework of legislation and major policy on all matters but would, wherever possible, transfer to directly elected regional assemblies the responsibility within that framework for devising specific policies for the regions, for the execution of those policies and for general administration".10 Executive devolution is quite different from the schemes for legislative devolution which applied to Northern Ireland up to 1972 and which is proposed for Scotland: where "powers would be transferred to the regions to determine policy on a selected range of subjects, to enact legislation to give effect to that policy and to provide the administrative machinery for its execution, while reserving to Parliament the ultimate power to legislate for the regions on all matters".11 The system of 10

Cmnd. 5460, para 827. " Id, para 734.

government in Norhem Ireland and the proposed system for Scotland are closer in reality to federal or quasifederal systems,12 whereas the proposed scheme for Wales lends itself - perhaps unfairly - to the suggestion that "the Welsh seem to be getting a weak-kneed affair"13 or even a variant of Jeremy Thorpe's claim in 1976 that the proposed Welsh Assembly (as then envisaged) would be "a sort of Glamorgan County Council on stilts"14 Some immediate observations are in order. First, as a matter of record, of the eleven Commissioners who signed the main Kilbrandon Report in 1973, only two favoured executive devolution for Wales; and the two signatories of the minority Report were also unsympathetic, given their preference for more evenly-spread regional government. Yet six of the eleven favoured legislative devolution for Wales and eight favoured that solution for Scotland. 15 What happened, then, to the proposal for Wales? The Labour Government did undertake consultations in July and August 1974 and then committed itself to legislative devolution for Scotland, executive devolution for Wales.16 Harold Wilson, the Prime Minister, spoke of "very full consultations" extending "over a period of very many weeks"17 and John Morris, the Secretary of State for Wales, spoke of consultations "with bodies and individuals representing between them a wide spectrum of Welsh life and opinion"18 Whatever the precise nature of the consultations, it is permissible to ask whether mid-summer is an appropriate time for seeking views on major constitutional matters, a question which might be repeated with regard to the pre-referendum consideration of the White Paper of 1997. In 1974-75 the onus of proof shifted radically without an adequate public explanation; in 1997 the Scots were presented with proposals which had been extensively rehearsed by the Scottish Constitutional Convention19 whereas, by comparison, 12

See A G Donaldson, "The Constitution of Northern Ireland" (1955) 11 University of Toronto L J 1; Report of Kilbrandon Commission, Cmnd. 5460, para. 1282. In Modern Federalism. (London: C.A. Watts & Co. Ltd. 1969), Geoffrey Sawer commented that the United Kingdom had, in Northern Ireland, "quietly developed an odd sort of federal situation within its own borders - in spite of the strong distaste for federalism manifested in a good deal of English political writing." 13 The Economist, Sept 6-12 1997, at 30. 14 Parl. Deb., HC, Vol. 903, c.254,13 January 1976. 13 See Williams, supra note 4, at (1975) Cambrian LR 80, 83-84. See also, Democrancy and Devolution. Proposals for Scotland and Wales, Cmnd. 3732 of 1974. 16 Our Changing Democrancy, Devolution to Scotland and Wales, Cmnd 6348 of 1975. 17 Parl. Deb., HC Vol 903.C.221,13 January 1976. 18 Id., Vol 903, c.605,15 January 1976 See also irfc.613. 19 See Scotland's Parliament Cm 3658 of 1997, at 1.5.

DEVOLUTION: THE WELSH PERSPECTIVE the Welsh were presented with something of a hasty pudding. Secondly, an unfortunate legacy of the Kilbrandum Report - which understandably linked Scotland and Wales in its proposals for legislation devolution - is that the linking survived the volte face of 1974-75 and continues in the debates of 1997-98. In the immediate aftermath of the change of policy (or effective rejection of Kilbrandon) in 1974-75, MPs complained of Wales being "dragged along behind the skirts - or kilts I think I hear someone say - of Scottish constitutional advance" or claimed that Wales does not wish "to be dragged along on the hem of a tartan kilt"20 When the Scotland and Wales Bill 1976 was before Parliament, Mrs Thatcher spoke of "the unwisdom of putting Wales in the same Bill as Scotland . . . There are two basically different Assembles, two basically different structures.. . 21 The confusion, however, was not ended by separating Scotland and Wales in the legislation of 1977-78 - or in the legislation of 1997-98. Public perception is especially important in constitutional matters, throughout the United Kingdom; and the public perception is that devolution as such is being accorded to Scotland and Wales, perhaps giving rise without any distinction being drawn to what Sir Harold Wilson described in late 1976 as "genuine fears and anxieties in the English regions south of the border and east of Offa's Dyke."22 Had the Royal Commission's principal proposals - legislative devolution for both Scotland and Wales - been adopted, a coupling of the two would have been understandable; but the dominant political proposals since 1975 show clearly that the two proposed systems of government are totally different in substance and in style. The background to devolution in Scotland is plainly different from that in Wales, even if some initial confusion arose because of nationalist by-election victories in Wales in 1966 and in Scotland in 1967. Scotland had a long independent existence prior to the seventeenth and eighteenth centuries; there had been a Scottish Parliament prior to the Union; there was a separate legal system, which still survives in most respects (the Royal Commission noted that the Scottish system and the system of England and Wales "remain separate, and - a unique constitutional phenomenon within a unitary state - stand to this day in the same juridical relationship to one another as they do individually to the system of any 20

Parl. Deb., H.C., Vol. 885, c.1037, 3 Febniary 1975 (Ian Grist, MP for Cardiff, North); HC Vol. 903, c.1789. 16 December 1976 (Leo Abse, MP for Pontypool). 21 Id.. Vol. 922, c.996,13 December 1976. 22 Id.. c.101,13 December 1976.

43

foreign country"23); special provision was made in the Union settlement for the Church of Scotland, a product of the Reformation distinct in various ways from the Church of England; there has been a capital city of long standing; the process of decentralisation has been actively developed, especially in this century (the office of Secretary of State dates from 1926), while the office of Lord Advocate has long been important as a reflection of the separate legal system; separate provision for Scotland has necessarily been made in a host of Parliamentary initiatives (there are, for instance, Law Commissions for England and Scotland, while the latest Annual Report of the Council on Tribunals reports that the existing Scottish Committee, though wishing to retain existing arrangements, felt "that the perception of the Scottish Committee's status" would be enhanced by a change of name to 'The Scottish Council on Tribunals" making its own Annual Report to the Scottish Parliament24); and there are significant difference at all levels in the Scottish educational system, with four ancient universities in particular as evidence of the long history of commitment north of the border, and there are well-established learned bodies such as the Royal Society of Edinburgh. In short, as the Faculty of Advocates stated in 1969 in its written evidence to the Royal Commission, Scotland - despite the Union "continues to display many of the attributes of a sovereign state. She has many distinctive institutions, state, public, and private, covering the whole field of social life in Scotland."2S Wales, by contrast, offers a very different historical, constitutional and cultural pattern. Just as many historians nowadays are breaking away from an Englishdominated, Anglocentric view of history, so the historians of Ireland, Scotland and Wales recognize the need to drop the "often claustrophobically proprietorial attitude" they themselves have adopted in the past.26 The publication in 1993 of a comprehensive History of Wales by John Davies provides remarkable and scholarly evidence of a change of attitude.27 This work takes us through a number of episodes in Welsh history which perhaps qualify the statement that, down to the second 23

Cmnd. 5460 of 1973, para. 76. The Annual Report of the Council on Tribunals for 1996/97. HC 376 (16 December 1997). at 2.3. 25 Commission on the Constitution. Written Evidence 5. Scotland (London. HMSO, 1972), at p.7. The Memorandum by the Faculty of Advocates is dated November 1969. 26 See Rees Davies, The Matter of Britain and the Matter of England (Oxford, Clarendon Press. 1996) (Inaugural Lecture at Oxford University, 29 February 1996). 27 A History of Wales (London: Allen Lane, The Penguin Press, 1993). This work was first published in Welsh as Hanes Cymru in 1990 (also Allen Lane). 24

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SIR DAVID WILLIAMS

half of the eighteenth century, "Wales was, economically speaking, a static and poor country with a primarily pastoral fanning economy. . . The coming of the Industrial Revolution during the last decades of the nineteenth century led to a rapid transformation of the social and economic scene in the nineteenth century." 28 True enough, Wales had been subdued by Edward I, but still to come before the nineteenth century were the rising led by Owain Glyn Dwr in the early fifteenth century,29 fortunately spared any depiction by Hollywood; the rapid progress of Welshmen in public life after the accession to the throne of Henry Tudor in 1485;30 the so-called Acts of Union 1536 - 43, formally incorporating Wales into England (with Welsh MPs for the first time)31 so effectively that it was not until the Welsh Language Act 1967 that it was formally provided that in Acts of Parliament "England" no longer includes Wales; the translation of the Bible into Welsh in 1588, ensuring "the continuance of the Welsh language as something more than a spoken language;"32 a slowly developing political consciousness in Wales, seen in greater participation at Westminster from the later sixteenth century. Then came increasing political activity, demonstrated especially in Welsh support for the colonists during the American War of Independence.33 Radical political views were expressed by Welshmen such as Richard Price and David Williams in the 1770s and 1780s.34 Long before the Industrial 28 Legal Status of the Welsh Language (Report of the Hughes Parry Committee, Cmnd. 2785 of October 1965), para. 39. 29 See R.R. Davies, The Revolt of Owain Glyndwr (Oxford: OUP, 1995). This revolt was, as John Davies points out (supra, note 27, at 196-97) "a national revolt. That was certainly the way it was interpreted by the House of Commons, and the anti-Welsh prejudice of the parliamentarians was fed by the xenophobia of the members from the English border counties." The revolt lasted from 1400 to 1409. 30 See John Davies, supra note 27, at 220-21. 31 See Peter Roberts, "Wales and England after the Tudor 'union': Crown, principality and parliament, 1543-1624" in Law and Government under the Tudors (ed. Claire Cross, David Loades and JJ. Scarisbrick) (Cambridge: CUP, 1988), at 111-138. This book consisted of essays presented to Sir Geoffrey Elton on his retirement. 32 John Davies, supra note 27, at 244. Irish and Gaelic lacked a Bible until 1690 and 1801 respectively. 33 Id., 336. See especially, Linda Colley, Britons. Forging the Nation 1707-1837 (New Haven: Yale UP, 1992) where the author (see the Pimlico edition 1994) points out (at 139) that East Anglia and Wales were distinctly lukewarm about the war, whereas there was apparently much greater support in Scotland - perhaps because, at the end of a somewhat fraught century (the memory of 1745 was still fresh), the War "presented a splendid opportunity for impressing the authorities with their country's loyalty." 34 See Roland Thomas, Richard Price. Philosopher and Apostle of Liberty (OUP; London: Humphrey Milford, 1924): Whitney R.D. Jones. David Williams. The Anvil and the Hammer (Cardiff: University of Wales Press, 1986). Price wrote Observations on the Nature of Civil Liberty (1776) and Williams wrote Letters on Political Liberty (1782).

Revolution in full bloom during the nineteenth century and long before the days of Tom Ellis, Lloyd George and Aneurin Bevan, there was an individual twist to Welsh history, and the moves for enhanced autonomy did not arise in a vacuum. Nevertheless, the contrast with Scotland has to be recognised. The term "England and Wales" -familiar in legislation for over a hundred years - suggests a considerable measure of constitutional integration. There has never been an independent Welsh Parliament on an established basis and hence no overall executive government. Welsh law - at least in this millennium and leaving aside the laws of Hywel Dda3S has been English law; and, despite the Courts of Great Sessions (finally abolished in 1830)36 there has been no separate system of courts for Wales. The "trappings" of legislative devolution are not, as they are to some extent in Scotland, in place, and the process of administrative decentralisation has been more recent and less extensive. For many Scots legislative devolution might appear, especially in the light of three decades of deliberations, to be a small step in constitutional terms; for many Welsh it might appear to be a giant leap. Yet six of the Commissioners reporting in 1973, as we have seen, recommended legislative devolution for Wales. Moreover the system of government in Northern Ireland, which operated under the Government of Ireland Act 1920 up to 1972, was set up without any historical basis akin to that in Scotland save insofar as Northern Ireland was a part-inheritor of the constitutional ebb and flow in Ireland as a whole over the centuries. As the Royal Commission recognised, "Northern Ireland, by one of history's choicest ironies, is the one place where Liberal home rule ideas were ever put into practice - and by a solidly Unionist government. It can truly be said to have been given a constitution that it did not want and that was designed for another place."37 The Commission concluded, however, that constitutional change in Northern Ireland "should take the form of the modification of the home rule provisions and not their abrogation."38 What could not be foreseen in 1973 was the prospect of decades of varied efforts to secure such modification, and the current "peace process" is the latest in a hitherto melancholy series of negotiations. Nevertheless the Stormont model of government up to 1972 remains important as a model of legislative devolution, a solution accorded to Scotland and denied to Wales. 35 See John Davies, supra note 27, at 87-89. See also, Dafydd Jenkins, The Law of Hywel Dda. Law Texts from Medieval Wales Translated and Edited (Llandysul: Comer Press. 1986). 36 See John Davies, supra note 27, at 364. 37 Cmnd 5460, para. 1249. . 38 Id., para. 1265.

DEVOLUTION: THE WELSH PERSPECTIVE An explanation of the denial to Wales may lie in the unease felt about the proposals for Scotland, and this unease in itself is not unlike the feelings engendered by proposals for Home Rule for Ireland in 1886, 1893 and 1912-14. There were hesitations based on the desirability of maintaining the union or integrity of the country, on the threat to the doctrine of Parliamentary sovereignty, on a number of "consequential" issues such as continued representation in Parliament in London, and on the vagueness of the constitutional solutions offered. For Scotland these hesitations have apparently been overcome, no doubt for historical and political reasons as well as in recognition of the wider issues of distributing power. For Wales, lacking the same historical and political impetus, the hesitations are enough to have switched the proposals to those of executive devolution; and the Government of Wales Bill reflects the impact of the hesitations. As for the integrity of the United Kingdom, the Bill leaves no room for what were called the "destructive centrifugal forces" in the context of Home Rule;39 and the earlier White Paper of 1997 speaks of a directlyelected Welsh Assembly "firmly embedded in the United Kingdom"40 The Secretary of State, in a foreword to the Scottish White Paper, claimed that Scotland "will remain firmly part of the United Kingdom,"41 but there are inevitable concerns about legislative devolution leading to independence.42 In a debate in the House of Commons in July 1997, Tom Dalyell M.P. quoted ("at some risk") Sir Edward Carson's assertion in 1912 "that there can be no permanent resting place between complete union and total separation."43 The proposals for Wales do not, by contrast, on their face endanger complete union, particularly as a scheme for executive devolution could be interpreted simply as a regional tier of local government; and clause after clause ensures the continued direct authority and extensive residual authority of the Secretary of State for Wales as a member of the Cabinet. There is no prospect of an erosion of his authority, which will in any event be underpinned by other controls - not least in finance - exercised from Whitehall. The White Paper makes it clear that the Secretary of State "will represent Wales - with the benefit of having heard the democratic voice of the Assembly - in policy formulation and resource decisions;"44 and - under the terms of clause 75 - it is duly provided in the Bill that the Secretary of State shall 39

Parl. Deb; HC. 3 r d series. Vol. CCCV. c.641,10 May 1886. Cm 3718 of 1997,1.27. 41 Cm 3658 of 1997, at vii. 42 See e.g., a leading article {"United no more") in the Sunday Times, 14 September 1997, 5.4. 43 Parl. Deb, Vol. 299, c.485, 31 July 1997. 40

45

be entitled to attend and participate (but not vote) in any proceedings of the Assembly. The White Paper also indicates that the Government "expects" that the Secretary of State will meet the Assembly's Executive Committee (the "Cabinet") on a regular basis and that he will retain "a small team" of civil servants to support his work.45 Parliamentary sovereignty featured prominently in the Home Rule Debates. It was perhaps unfortunate that the 1886 Bill emerged so soon after the publication of the first edition of Dicey's Law of the Constitution a year earlier, and Dicey himself contributed eloquently to the national debates on Home Rule for many years. He consistently asserted that the essential positive characteristic of the constitution "is the absolute and effective authority of the Imperial Parliament throughout the length and breadth of the United Kingdom"46 The Scottish White Paper 1997 has tackled the issue with great delicacy by stating that the "UK Parliament is and will remain sovereign in all matters: but as part of the Government's resolve to modernise the British constitution Westminster will be choosing to exercise that sovereignty by devolving legislative responsibilities to a Scottish Parliament without in any way diminishing its own powers" (author's italics)47 The political climate of 1997 is very different, of course, from that of 1886 or 1893, and Scotland has benefited from growing recognition that British membership of the European Union has "blown a hole through the middle of Dicey's doctrine of parliamentary sovereignty."48 Moreover it is unlikely that other features of the Government's constitutional programme - not least the provision for Henry VIII clauses in the Human Rights Bill - will bolster any Dicey-style pronouncements. For Wales the issue is irrelevant. The proposed Assembly will have novel powers with regard to subordinate legislation - novel in the sense that it is envisaged that the Assembly, albeit guided by its Executive Committee and by its subordinate legislation scrutiny committee, will give more democratic or "elected member" consideration to subordinate legislation than has been possible in Westminster. 44

Cm 3718 of 1997.1.17. id. 1.18 and 1.19. 46 A.V. Dicey, A Leap in the Dark. A Criticism of the Principles of Home Rule as Illustrated by the Bill of 1893 (London: John Murray, 2 nd ed. 1911, originally published 1893). at 2. 47 Cm 3658 of 1997,4.2. In the Home Rule Debates of 1886, T.P. O'Connor MP said: "The supremacy of Parliament is said to be destroyed, but a power is not destroyed which is suspended; a power does not cease to exist because it is not exercised" (Parl. Deb.. HC, 3 r t ser.. Vol. CCCVI, c. 850.3 June 1886). 48 The Economist, October 21 1995, at 65 (quoted in Bernard Schwartz, "English Administrative Law: an American Perspective" (1995) 44 Admin. Review 7.5). See H.W.R. Wade and C.F. Forsyth, Administrative Law (Oxford: Clarendon Press, 7 th ed. 1994), at 15-16. 45

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SIR DAVID WILLIAMS

Given the scale and importance of subordinate legislation, this is no mean power; but it is no direct threat to parliamentary sovereignty. Executive as opposed to legislative devolution comes closer to the suggestion in 1913 that the term "devolution" encompasses "a delegation which postulates that the authority making the delegation shall retain effective control over the exercise of the powers delegated, and shall have an effective right to resume them."49 The "consequential" issues arose frequently in the Home Rule Debates. The Irish version of the "West Lothian" question, for instance, caused much confusion. Dicey poured scorn on the fact that the Liberal government in 1886 saw it as "desirable, politic, and just" to exclude Irish members from Westminster upon the implementation of Home Rule, whereas the Liberal government of 1893 saw it as "desirable, politic, and just" to retain Irish members at Westminster.50 The Scottish White Paper of 1997 states that the present statutory minimum number of Scottish seats will no longer apply at the next review by the Parliamentary Boundary Commissions,51 but concern about undue delay in implementing this undertaking was evident immediately the referendum result was declared.52 Other consequential issues, some relevant both to Scotland and Wales, include the method and conduct of elections, the procedure of Scotland's Parliament and the Welsh Assembly, and how to adapt to European Community obligations. Many of these issues are directly faced in the relevant Bills, and it is significant that - in accordance with the White Paper53 - there is no provision in the Government of Wales Bill for any reduction in Welsh representation at Westminster. In the absence of powers of quasi-primary legislation, a Welsh version of the "West Lothian" question does not arise. In the Home Rule and allied debates and in the Scottish and Welsh contexts there has been a great deal of constitutional ambiguity, some of it inevitable. The Home Rule Bill 1886 was condemned by one MP on the ground that it "sweats difficulties at every paragraph, every provision breeds a dilemma, every clause ends in a cul de sac, dangers lurk in every line, mischief abounds in every sentence, and an air of evil hangs over it all", 54 and similar, if less menacing, sentiments were expressed in 1893, 1912-14 and 1920-22. When Dominion Status was raised as an appropriate designation for the Irish Free State, the Prime Minister (David Lloyd George) said in 1921 that it would be "difficult

and dangerous" to attempt a definition of the term;55 and, in a later debate on the Irish Free State (Agreement) Bill of 1922, Lord Sumner condemned the terminological and other ambiguities in the measure.56 A pragmatic approach prevailed, however, and this has been markedly so in the Scottish and Welsh proceedings as well. "Legislative devolution" and "executive devolution" are, in spite of the efforts of the Royal Commission, elusive constitutional terms, and it is difficult to conceive of legislative devolution, once established, as significantly different from federal government (itself open to many interpretations) save for the formal absence of an entrenched constitution and the theoretical possibility of a resumption of power by Westminster. Yet federalism has inspired as jittery a response in this country as has the concept of judicial review of primary or quasi-primary legislation; and ideas of both federalism and judicial review have attracted much ambiguity, uncertainty and even evasion. Federalism has had a bad press for over a hundred years. Dicey was an implacable foe. In A Leap in the Dark in 1893, he saw federalism as a step towards independence and Home Rule as the first stage to federalism - adding that the politicians "who are content with a light heart to destroy the work of Pitt may, for ought I know, with equal levity, annul the Union with Scotland and undo the work of Somers, or by severing Wales from the rest of England render futile the achievements of the greatest of the Plantagenets."57 The proponents of Home Rule All Round and even of Imperial Federation, before the First World War, found themselves in a pronounced minority, and in the 1960s - in the wake of much constitution-making by this country - Stanley de Smith spoke of "a characteristic British bias in favour of federalism - a bias which, however, corrects itself north of the English Channel."58 The Royal Commission surprisingly gave more space to separation than to federalism, claiming that "the United Kingdom is not an appropriate place for federalism and now is not an appropriate time."59 The Prime Minister (Harold Wilson) said in early 1976 that the federal solution "would have to be artificial, arbitrary, and highly legalistic",60 and similar views - additionally fuelled by Eurosceptic opinion - would doubtless be expressed today. Yet - as we have seen - the system of devolution under the Government of Ireland Act 1920, "in terms of the statutory provisions and the various constitutional 55

49

Part. Deb., HC. 5 th ser.. Vol. Lin, c. 1322,9 June 1913.

50

A Leap in the Dark, op.cit, note 46, at 33. Cm. 3658 of 1997,4.5. See e.g.. The Times (leading article), 13 September 1997, at 23. Cm 3718 of 1997,3.37. Parl. Deb., HC, 3 r d ser.. Vol. CCCVI, c. 362.28 May 1886.

51 52 53 54

Parl. Deb., HC, 51" ser, Vol. 49, c. 27,14 December 1921. Parl. Deb.. HL., Vol. 49, cc. 524 ff., 15 March 1922. 57 op. tit., note 46, at 129-30. 58 S.A. de Smith, The New Commonwealth and its Constitutions (London: Stevens & Sons, 1964), at 254. 39 Cmnd. 5460, para. 539. 60 Parl. Deb., HC. Vol. 903. c. 216,13 January 1976. 56

DEVOLUTION: THE WELSH PERSPECTIVE conventions which had evolved, had given rise to analogies - imperfect but containing real insights - of Dominion status for Northern Ireland or of quasi-federalism,"61 and in the more sophisticated constitutional debates of today it was surely feasible to consider whether or not it would have been preferable to recognise federal or quasi-federal status for Scotland - even through the adoption of a written constitution62 - as perhaps a surer way of avoiding the proposed scheme being regarded as a stepping-stone to independence. For Wales the question does not arise for the present, but the Royal Commission's suggestion of legislative devolution would have raised similar considerations. Where Scotland and Wales do raise similar considerations is in the area of judicial review. The role of the courts in the context of Home Rule had been raised (and never satisfactorily resolved) from 1886 onwards. It was argued in 1886 that a power to decide the limits of power of an Irish Parliament would imply a power to determine the limits of power of the Imperial Parliament,63 and doubts and misgivings continued to be expressed: but the Government of Ireland Act 1920 allowed - through sections 50 and 51 - an appeal through ordinary processes to the Court of Appeal in Northern Ireland and thence to the House of Lords on "any question as to the validity of any law made by or having the effect of an Act of the Parliament ... of Northern Ireland" or, alternatively, speedy recourse directly to the Judicial Committee of the Privy Council on a question of validity. To their credit the courts, in the relatively few cases which arose, fully recognised that they were exercising a power of constitutional judicial review. 'Viscount Simonds commented in one decision relating to the validity of Stormont legislation that it was right "that, in the interpretation of constitutional instruments, guidance should be sought from those courts whose constant duty it has been to construe similar instruments, if only because . . . a flexibility of construction is admissible in regard to such instruments which might be rejected in construing ordinary statutes or inter partes documents."64 Judicial review with regard to Stormont was not, however, entirely accepted or acceptable. In its White Paper of 1973 on Northern Ireland Constitutional Proposals the Government recalled that up to 1972 difficult questions arose about the constitutional competence of Stormont, questions 61

Brigid Hadfield, "Scotland's Parliament: A Northern Ireland Perspective on the White Paper" [1997] PL 660, 662. See also, supra note 12. 62 See the written evidence of Professor D.M. Walker in Commission on the Constitution. Written Evidence S Scotland (HMSO, 1972) 55-70 (1969), at para. 33. 63 Parl. Deb., HC, 3 r d ser., Vol. CCCV, c. 6 1 5 , 1 0 May 1886. 64 Belfast Corporation v O.D. Cars Ltd. [1960] AC 490,518,46.

47

which - it seemed to add with distaste - "had to be determined by the courts;" 65 and a Government Minister spoke in 1976 of Parliament having to legislate in less than 24 hours to rectify the consequences of one particular decision.66 The result was that judicial review was largely excluded, save as to issues of anti-discrimination, under the Northern Ireland Constitution Act 1973.67 The apparent distaste for judicial review was carried over to the Labour Government's initial plans for Scotland: in a White Paper in 1975 it was suggested that exclusion of such review "would have the merits of simplicity and finality,"68 but the matter was left open and finally the Government concluded in 1976 that "the courts should be able to consider, at the instance of any litigant, whether it [the proposed Scottish Assembly] is within the devolved powers." 69 Hence express provision (principally in Schedule 12) was made for judicial review in the Scotland Act 1978. No such elaboration was needed for the more modest provisions of the Wales Act 1978, though section 70 gave the Attorney General discretion to institute proceedings against the proposed Assembly as to the ambit of its powers. Legal challenge in the course of ordinary litigation - for instance, in challenging subordinate legislation - was not excluded by the Act. After a lapse of some 18 years, the two White Papers of 1997 accepted the principle of judicial review. For Scotland, where the issues of vires would clearly belong to the area of constitutional law, the White Paper urged "an open and constructive relationship" between London and Edinburgh to resolve in advance different views (at governmental level) as to the Scottish Parliament's legislative powers. The Scottish Executive would also put in place a number of pre-legislative checks to identify potential difficulties; and there would be a final assessment immediately before Royal Assent to any legislation. An unresolved dispute between London and Edinburgh could be referred to the Judicial Committee of the Privy Council, and the Judicial Committee would also be able to hear any subsequent disputes about devolution issues in relation both to secondary legislation and Acts of the Scottish Parliament.70 For Wales, the Judicial Committee is also called into service. The White Paper indicates that the Law Officers in London would have a central role with « Cmnd. 5259 of 1973, para. 55. 66 Parl. Deb., HC, Vol. 903, cc. 540-41, 14 January 1976 (Gerry Fowler MP, Minister of State, Privy Council Office). 67 See Brigid Hadfield, supra note 61, at 663. 68 Our Changing Democracy. Devolution to Scotland and Wales, Cmnd. 6348 of 1975, para. 64. 69 Devolution to Scotland and Wales. Supplementary Statement Cmnd. 6585 of 1976, para 14. 70 Cm 3658 of 1997,4.15^1.17.

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regard to the Assembly's use of its powers, and this is reflected in the Government of Wales Bill in Schedule 6. The essence of the scheme for judicial review of devolution issues in Wales is as follows: (a) A "devolution issue" means a question whether a purported or proposed exercise of any function by the Assembly is or would be within its powers. Compatibility with Community law or any of the Convention rights would be included. A "devolution issue" would also mean a question whether the Assembly has failed to comply with a relevant Community obligation. (b) In England and Wales (separate provision is made for proceedings in Scotland and Northern Ireland) proceedings for the determination of a Welsh devolution issue may be instituted by the Attorney General, without prejudice to the undertaking of proceedings by any person. A court or tribunal must give the Attorney General and the Assembly notice of any devolution issue which arises before it; and the Attorney General or the Assembly could join as a party in the proceedings. (c) In civil proceedings a magistrates' court may refer any devolution issue to the High Court for determination (with an appeal - subject to leave - to the Judicial Committee); other courts (save for obvious exceptions) may refer any devolution issue to the Court of Appeal (with an appeal to the Judicial Committee); a tribunal from which there is no appeal shall refer any devolution issue to the Court of Appeal and any other tribunal may do so (with an appeal to the Judicial Committee). (d) In criminal proceedings similar reference may be made to the High Court or the Court of Appeal for summary proceedings and proceedings on indictment respectively (with an appeal to the Judicial Committee). (e) The Court of Appeal may refer any devolution issue which arises in proceedings before it to the Judicial Committee. This does not apply to references made to the Court of Appeal. (f) The House of Lords shall refer to the Judicial Committee any devolution issue which arises in judicial proceedings "unless the House considers it more appropriate, having regard to all the circumstances, that they should determine the issue." (g) The Attorney General or the Assembly may require any court or tribunal to refer to the Judicial Committee any devolution issue which has arisen in proceedings before it to which he or it is a party; and they are empowered to refer to the Judicial Committee any devolution issue which is not the subject of proceedings. (h) Any decision of the Judicial Committee shall be binding in all legal proceedings (other than proceedings before the Judicial Committee itself).

Bearing in mind the nature of the powers accorded to the Assembly this is a remarkable control mechanism with all signposts directed to the Judicial Committee. In the first place, it is not clear what happens when devolution issues arise which are not referred to a higher court and where the Attorney General and the Assembly are not involved. Presumably the normal legal processes apply, including applications for judicial review, at least until the matter reaches the House of Lords (if at all). By default, it seems, we have a more complex version of the dualism allowed for in the Government of Ireland Act 1920. Secondly, it is presumably the case that proceedings, say, in a magistrates' court will have to be suspended pending determination of a hived-off devolution issue in the High Court and possibly the Judicial Committee, which could result in excessive delay in many circumstances. Thirdly, the choice of the Judicial Committee - the ultimate arbiter on what might be relatively trivial (though not vexatious) devolution issues - could mean that it will be obliged to shift from the sublime to the ridiculous too frequently for comfort. The number of legal challenges is, of course, unpredictable, but it is realistic to assume that political disagreements between Whitehall and Cardiff (or Swansea) would result in legal proceedings over devolution issues; and the litigiousness of private individuals is even more unpredictable. Granted that the Judicial Committee would have an acceptable constitutional role when Scottish legislation is questioned, do the same considerations merit its involvement in the activities of the Welsh Assembly? The status accorded to the Welsh Assembly could reasonably be compared to that of an elevated local or regional authority - and, if that is roughly correct, why should the exercise of its administrative powers (particularly in the expenditure of money) not be subject to both effective audit procedure and the normal supervision allowed for under the principles of administrative law, and why should the exercise of its powers of subordinate legislation likewise not be subject to longstanding and evolving controls, both institutional and through the courts, in the same manner as subordinate legislation is controlled in Westminster, Whitehall and the courts of law? All forms of subordinate legislation, including departmental regulations made in London (with or without affirmative or negative resolution procedures in Parliament) and local authority by-laws (such as those which will continue to be made by Welsh local authorities even after the advent of devolution), are subject to judicial scrutiny in one form or another through the ordinary courts71 but the Government of 7

' See Wade and Forsyth, op.ciL note ch.22

DEVOLUTION: THE WELSH PERSPECTIVE Wales Bill injects the complex procedures involving the Judicial Committee for subordinate legislation in the form of Assembly Orders. Subordinate legislation made in Whitehall, applicable to Wales but in fields where there has been no transfer of functions to the Assembly, would not raise devolution issues and hence would be exempt from the new procedures. Another consideration relevant to the new procedures is that of judicial restraint: would the courts and the Judicial Committee in particular be tempted from the outset to adopt an overtly benevolent approach - drawn loosely from the dictum of Lord Russell of Killowen CJ in Kruse v Johnson12 - because of the more active involvement of elected members in the process of making and approving subordinate legislation? Once again the proposals for Wales seem to have been swept in, in the slipstream of the very different proposals for quasi-primary as well as subordinate legislation in Scotland. The elaboration of judicial procedures built around the Judicial Committee seems expensively inappropriate for Wales. If litigation on devolution issues were to be frequent, there is the further question of the composition of the Judicial Committee - will it vary or will there be a settled core of Law Lords, ex-Law Lords and those who hold or have held "high judicial office" to provide consistency and continuity? In addition, if devolution issues are deemed to be that important, should the Welsh interest be recognised at least to the extent of arranging some local sittings of the Judicial Committee? If litigation on devolution issues were to be infrequent, there is a further question as to the desirabiity of new procedures for what may be only the occasional, isolated case - a sledgehammer to crack a nut. A striking feature of the last thirty years, as far as Wales is concerned, is that there has been relatively little public debate on the principle of devolution, on the types of devolution, and on the detail and mechanisms of devolution. The role of the courts is but an example of the inadequacy of debate and consultation. In 1976 Sir Harold Wilson spoke of "devolution" as a "cold, inelegant, inharmonious" word and even John Morris MP (now the Attorney General) saw it as an "abstract term"73 The cold or abstract nature of the term might have been modified considerably had there been more extended consideration of what was at stake. In this respect, the Constitutional Unit offered a careful analysis of Welsh Devolution in 1996, noting incidentally the "Scottish dominance" in the debates on devolution74 and 72

[1898] 2 QB 91, DC See respectively ParLDeb. HC, Vol.922, c.1008, 13 December 1976 and id.. Vol. 903, c.610,14 January 1976. 74 An Assembly for Wales (London: The Constitution Unit, 1976) 73

49

a number of academic authors have written generally on devolution or even federalism in discussions of past and present proposals;75 but the identification of clear-cut issues for public debate has been lacking. Outside the rhetoric of devolution, the proposals for Wales raise a number of issues: what are the options and why was the model of executive devolution adopted, why should Wales be linked to Scotland in the constitutional programme and not to the regions of England, why was such an elaborate system of judicial scrutiny provided for in the Bill, what is to be the realistic role of the Secretary of State for Wales, and - perhaps most important of all - what mechanisms allow for regular review of the scheme under the Bill. The answers to some of these questions, if properly developed, could have brought out the desirability or otherwise of a Constitutional Court fashioned to deal with devolution, regionalism, perhaps Northern Ireland, perhaps aspects of the European Convention and the European Union76 To maintain regular oversight and to avoid leaving Wales stranded with a scheme of devolution which some might regard as neither fish nor fowl, should there not in addition be a permanent Constitutional Commission (with terms of reference extending well beyond Wales) on the lines of the standing Royal Commission on Environmental Pollution or as a public law equivalent of the Law Commissions?77 The Government of Wales Bill breaks new ground altogether, and the misgivings and hesitations should surely be recognised.

73

See J.P. Mackintosh, The Devolution of Power (Harmondsworth: Penguin Books Ltd., 1968); J.C. Banks, Federal Britain? The Case for Regionalism (London: George G. Harrap & Co. Ltd., 1971); Harry Calvert (ed.). Devolution (London: Professional Books Ltd., 1975); Vernon Bogdanor, Devolution (Oxford: OUP, 1979); Vernon Bogdanor, Power and the People. A Guide to Constitutional Reform (London: Victor Gollancz, 1997); M.A. Fazal, A Federal Constitution for the United Kingdom. An Alternative to Devolution (Aldershot: Dartmouth, 1997); John Kendle, Federal Britain, A History (London and New York: Routledge, 1997). 76 See Memorandum of Dissent, Royal Commission on die Constitution 1969-1973, Cmnd. 5460-1, para. 308, where Lord Crowther-Hunt and Professor A.T. Peacock suggested that there may be a case for setting up a Constitutional Court; Institute for Public Policy Research, The Constitution of the United Kingdom (London, 1991), at 18 where the Report accepts the need for a Supreme or Constitutional Court for an entrenched constitution; and The Hon. Justice Arthur Chaskalson. "The Judicial Role in the Development of Human Rights: Judges under the new South African Constitution" (in Paul Rishworth (ed). The Struggle for Simplicity in the Law. Essays for Lord Cooke of Thomdon (Wellington: Butterworths, 1997) at 257-71), where the author deals with one part of work of the new Constitutional Court in South Africa. 77 See Delivering Constitutional Reform (London: The Constitution Unit, 1996) at 61-62.

DEVOLUTION: SOME KEY ISSUES AND A NORTHERN IRELAND SEARCHLIGHT BRIGID HADFIELD*

1. NORTHERN IRELAND'S TWO PREVIOUS DEVOLVED SYSTEMS There have been two quite distinct systems of devolution in Northern Ireland: that operating until 1972 under the provisions of the Government of Ireland Act 1920 (GOIA) and the pertinent constitutional conventions, and the second operating for the first 5 months of 1974 under the provisions of the N.I. Constitution Act 1973 (NICA). The salient features of each scheme are as follows. GOIA 1920 It established (as far as N.I. was concerned) a bi-cameral Parliament, to which was transferred by s.4 the power to make laws for the "peace, order and good government" of N.L. This grant of power, conferring what became known as the transferred powers, (which were residual, ie unenumerated) was subject to two specified limitation categories. First, s. 4(1)-(13) listed excepted matters (matters of imperial and national concern upon which regional variation was deemed undesirable). Secondly, various other provisions specified the reserved matters eg postal services, savings banks, certain major taxes and the Supreme Court (ss. 9(1), 21, 22, 47). S. 4(1)(14) provided that any matter which by the Act was declared to be a reserved matter was, for as long as it remained reserved, an excepted matter and so belonged to Westminster's exclusive competence. (The reserved matters were largely intended for transfer to an allIreland body had one come into existence. Some matters were reserved for certain limited periods only, eg, the R.I.C.. It was disbanded by an Act of Westminster and an Act of the N.I. Parliament then provided for the establishment etc of the R.U.C.). • Professor of Public Law, The Queen's University of Belfast

The N.I. Parliament was also prohibited by the 1920 Act from legislating to achieve certain effects (see, eg, s. 5 concerning religious equality and, until 1962, the taking of property without compensation. See also ss 64, 65 and 68). In 1950, Professor Francis Newark wrote: "I always tell students that the proper way to use the (GOIA 1920) is not to read it to see what the Stormont Parliament can do, but to assume it can do everything and then read the Act to see what it cannot do."

(See also Dicey's comments on the earlier 1886 Home Rule Bill although there were differences between the two schemes. "The powers of the Irish Parliament are, it should be noted, indefinite. The Parliament, that is to say, may pass any law which it is not under the Constitution forbidden to pass . . . The difference between a legislature of definite and a legislature of indefinite powers is important... The Irish Parliament is a body whose authority will, from the necessity of things, tend constantly to increase.") The ceremonial functions of the Crown were located in a Governor (an office which replaced that of the Lord Lieutenant in 1922). The Executive took the form of a single-party cabinet (see s. 8; Ministers were, by the Act, required to be members of the Privy Council of N.I. and to be (or within 6 months to become) a member of the Parliament of N.L). The office of P.M. of N.I. was not referred to in GOIA. In practice, he was the leader of the largest party in the N.I.H.C. and was, therefore, invariably unionist. (Note: the fragmentation of the N.I. political parties essentially began in the late 1960s; until then unionism was largely monolithic). The electoral system used for N.I. General Elections was, until 1929, a system of proportional representation (p.r.) S. 14(5) of GIOA had allowed the N.I. Parliament

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within 3 years from the day of its first meeting (ie 7 June 1921) to alter the electoral system used. This the N.I. Parliament did in 1929 by the House of Commons (Method of Voting and Redistribution of Seats) Act (NI) 1929. Note: the Local Government Act (NI) 1922 provided for the abolition of p.r. in N.I. local government elections. The intention to do this led the Governor to use his s.l 2(2) GOIA power to reserve a Bill of the N.I.Parliament. The Bill was reserved from July to September 1922. The (then Provisional) Government of the Irish Free State pressed the British Government to advise the Governor not to give the Royal Assent (on the grounds that it would cause injustice to the minority in NI and pre-empt the work of the Boundary Commission). The counter-arguments included reference to the "principle" that the Westminster Government should not intervene in the exercise of a power clearly within the devolved legislature's competence and to the idea that to "veto" the Bill would create a precedent re the powers of the Dominion Parliaments (although the analogy was not an exact one). The N.I. Government stated that if the Bill did not become law, it would resign. The P.M. of N.I. told the Colonial Office: "No government could carry on in N.I. if it knew that the powers of the (N.I.) Parliament were to be abrogated". The Royal Assent was given in September 1922. The 1920 Act had provided for no minimum duration of the life of a N.I. Parliament. After devolution, N.I. was represented at Westminster by 13, and after 1948 by 12 (on the abolition of University representation) seats. The 4th Article of the Acts of Union provided that Ireland should be represented at Westminster by 100 seats; later this had increased to 105. The 1920 Act led to the reduction for Ireland as a whole to 46 seats (33 Southern Irish; 13 N.I.). The 13/12 seats constituted a fixed level of representation. (The debates over Irish representation during the 1886 and 1893 Home Rule Bills had, largely, led to a feeling of enervation on the question of representation in the Westminster Parliament of a part of the UK with its own devolved Parliament. Reduced representation (but fully participatory) constituted the most generally acceptable "compromise" and by 1920 few wanted to reopen the issue. The HC (Redistribution of Seats) Act 1979 (enacted during Direct Rule for N.I.) increased N.I. representation to 16-18 seats. It became 17 for the 1983 General Election and was increased to 18 for the 1997 General Election. (Note: The value of dual mandate which was not prohibited under GOI, NICA and is not prohibited by the

Scotland Bill.) The legislative grant of powers was identical to that employed by Westminster with regard to its overseas colonies many of which by the time of GOIA (or very shortly after) were (by at least constitutional convention/Resolution of the Imperial Conferences) autonomous communities within the Empire, equal in status and in no way subordinate one to another. As can be seen in the above reference to the 1922 Bill/Act, the Dominion analogy affected the way the Colonial Office (later the Home Office) regarded the "internal affairs" of N.I. Note: • There was no Westminster Secretary of State during these 50 years. • the 'language' of the 1920 Act encouraged the 'miniState' imagery - eg Parliament, PM, Cabinet, Acts, PC, Speaker, Governor. • analogies developed with regard to the relationship between Westminster and the N.I. Parliament neither of which was fully accurate, but both of which contained useful insights - namely Dominion status and (quasi) federalism. (See further below). • as the last point indicates, the strict legal structure (which was clearly one of devolution from Westminster to a devolved, ie subordinate, legislature) cannot be considered in isolation from the developing case-law, constitutional conventions and the political underpinnings. (See further below). • two dominant elements here: desire for parity (largely) on devolved Parliament's part and desire (largely) for non-involvement by Westminster for much of this time. • very limited links between N.I. and G.B. political parties (although the Cons, and Unionist parties had a general understanding). NICA 1973 The N.I. (Temporary Provisions) Act 1972, enacted by the Westminster Parliament, prorogued the N.I. Parliament (abolished by the 1973 Act) and placed its legislative powers in the Queen in Council (ie Order in Council) and the powers of the N.I. Cabinet into the hands of the (newly-created) Secretary of State for Northern Ireland. The 1973 Act (and related legislation) provided for a new system of devolution for N.I.. There was to be a unicameral Assembly, with a power-sharing Executive, led by a Chief Executive, and tied in to scrutiny/control by the Secretary of State (through whom was all access to the Crown) and, in certain limited circumstances, the Westminster Parliament. No further appointments were to be made to the PC. (N.I.)

DEVOLUTION: SOME KEY ISSUES AND A NORTHERN IRELAND SEARCHLIGHT and the office of Governor of N.I. ceased to exist. (That is, the trappings of the 'mini-State' disappeared.) The 1973 Act, like the 1920 Act, effectively contained three categories of power, although their content and sometimes rationale were different. The excepted matters (listed in Schedule 2) were matters of national importance and also matters which, when previously devolved, had proved, in their exercise, to be divisive - eg special powers, judicial appointments to the lower courts (the Supreme Court itself had been a reserved matter) and all electoral matters pertaining to the devolved Assembly. The excepted matters were substantively the exclusive concern of the Westminster Parliament although s. 5(7) enabled the devolved Assembly to legislate on an excepted matter where to do so was ancillary to a matter within its competence or was necessary or expedient for making such a matter effective. (See further below.) Minimum Reserved matters (listed in Schedule 3) were those matters (eg law and order) which would be devolved only when a stable and durable Assembly had existed for some time. The 1973 Act, however, did envisage that exceptionally the Assembly could legislate on a reserved matter with the consent of the Secretary of State. (See ss. 5 and 6.) Sections 2 and 3 provided that all matters, other than those listed in Schedules 2 and 3, could be contained in a devolution Order made at Westminster. (Transferred matters.) There was no specific grant of power as such. (See s. 2(2).) As it happened, all matters other than minimum reserved and excepted matters were transferred to the N.I. Assembly by devolution Order, but other matters might have been withheld (ie reserved, although not in the minimum reserved "list"). S. 3 of the Act provided for alterations in devolved responsibilities - a reserved matter could be transferred; a transferred matter could cease to be transferred (by way of Westminster Order in Council). This did not apply to excepted matters, other than, of course, by amendment of the 1973 Act itself. The consent of the Assembly to the reclassification of a transferred matter was only required with regard to any matter not specified in schedule 3. (See s. 3(2) which refers to the Assembly passing a resolution praying that the matter should cease to be a transferred matter.) The Assembly, which lasted for the first 5 months of 1974, was empowered to legislate on transferred matters subject only to the anti-discrimination provisions of Part in of the 1973 Act (and like any EC legislature subject to EC law). Subject to that limitation, s. 4(3) of the 1973 Act gave Assembly 'Measures' (ie their "Acts") the same form and effect as a Westminster Act of Parliament. It is of importance to note that judicial control of the vires of the Assembly's laws was confined to the pre- and post-enactment provisions which

53

(arguably) offended Part III (s. 17). The control of the devolved legislative powers under the 1973 Act otherwise lay in the political domain. (See the discussion regarding GOI of Gallagher and Hume below.) See s. 4(5): "It is hereby declared for the avoidance of doubt that a Measure is not invalid by reason of any failure to comply with the provisions of ss. 5, 6, 14 or 18(2)(5) or ( 6 ) . . . and no act or omission under any of those provisions shall be called in question in any legal proceedings". Basically, s. 5 relates to the Secretary of State's consent for proposed Measures which dealt with excepted matters (precluded from giving his consent unless the Measure fell within s. 5(7) - see above) or reserved matters (see above as to when it was likely such assent would be given - ie exceptional unless (later) devolved). Note: the Clerk to the Assembly (not the Presiding Officer also known as the Speaker) had a crucial "filtering" role to play here. S. 6 provided for Westminster control/scrutiny re any Measure dealing substantively with a reserved matter. (S. 14 related to the consent needed re proceedings in Assembly dealing with the Consolidated Fund etc.) The relevant parts of s. 18 enabled the Secretary of State for N.I., if s/he considered a proposed Measure to be contrary (in whole or part) to s. 17 to ask the Assembly to reconsider/modify it and, (whether or not this was done) if still thought to be discriminatory, to refer it to the JCPC. (and s. 18(5) deals with the consequences of such a referral). Further elements of these systems are now best considered (or matters adverted to above are now best elaborated) by considering them under the specific headings below. Matters to note in brief • no formal wording re legislative grant of power • The role of Secretary of State for Nl - of crucial importance. • The language of 1973 Act - no encouragement of Dominion/quasi-federalist analogies - Assembly, Chief Executive, Measures etc • The powers were also given to the Clerk to the Assembly, not to the Presiding Officer (also known as the Speaker, who was Nat Minford, a Unionist Assembly member). • The 1920 Act provided for no minimum duration of the life of a Parliament after an election. S. 27 of the 1973 Act provided for a 4 year life span of an Assembly (the 1920 Act maximum was 5 years); it also provided for early dissolution (in specified circumstances essentially in relation to non-compliance with power-sharing) and for powers of prorogation and further prorogation (s. 27 as amended by the NI Act 1987) as vested in the Secretary of State for Nl/Westminster O in C.

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• Regarding the role of the Secretary of State - note the non-elective relationship (cf Scotland) between the Secretary of State and N.I. (re the party to which s/he belongs and the parties for which the N.I. electorate can vote).

2. WESTMINSTER'S SOVEREIGNTY AND CENTRAL (POLITICAL) CONTROL GENERALLY

is clearly a central element in terms of central political control. The NI (Temporary Provisions) Act 1972 (and later the relevant provisions of the 1973 Constitution Act) which suspended/prorogued/abolished the- GOIA 1920 system of devolution was passed without the consent of the N.I. Parliament (in clearly very serious circumstances). More ordinary situations had previously been dealt with by Westminster seeking and being given (in varying degrees of enthusiasm) the requisite consent of the N.I. Government.

1920 Act Legalform Ss. 6 and 75. S. 6(1) located the power to amend the 1920 Act itself in Westminster (subject to any exceptions in the Act itself, including s. 14(5), see above.) S. 6(2) provided that where there was a conflict between a provision of an Act of the N.I.Parliament and any Act of the Westminster Parliament passed after the appointed day (3 May 1921), the latter was to prevail. (This provision was frequently circumvented by the UK statute containing a provision deeming it to have been passed before the appointed day and was thus not controlled by s. 6(2).) S. 75 (currently the subject of some discussion in the NI talks) saves the supreme authority of the Parliament of the UK (its "supreme authority" remains "unaffected and undiminished"). For a general understanding of the political importance of s. 75, note (i) the 1886 Home Rule Bill contained no clause preserving the supremacy of UK statute law in Ireland, nor a clause preserving undiminished Westminster's sovereignty, thus leaving Westminster's sovereignty to rest solely on the argument that it, being sovereign, could not (thus) divest itself of its sovereignty. The omission, however, proved controversial in some quarters and the 1893 Bill and the GOIA 1914 (which never came into effect) did contain provisions equivalent to ss. 6 and 75 of the 1920 Act. There are political considerations to be taken into account in deciding whether to include or omit such a clause; and its inclusion/omission may prove to be legally significant in subsequent case-law in vires questions. The arguments regarding Westminster's sovereignty must also be considered in terms of whether it can divest itself thus of its sovereignty (in which area arguments on the Act and Treaty of Union 1707 must also be considered). As the 1973 Act below shows however the more recent tendency is for Parliament to address the issue in a more mundane fashion. Note: The power to amend the devolved Act without the consent of Parliament/people in significant/key aspects

1973 Act S. 4(4) stated that 'this section (ie relating to the lawmaking power of the NI Assembly) does not affect the power of the Parliament of the UK to make laws for NI (see cl. 27(7) of the ScBill) but (subject to the antidiscrimination section, s. 17), a Measure may amend or repeal any provision made by or under any Act of Parliament in so far as it is part of the law of NI. (Note that unlike s. 6(2) of the 1920 Act above, this provision is not limited by any time references). S. 4(4) is also in effect the equivalent of s. 75. Arguably the inclusion of the first line was not legally necessary, but its omission may have been perceived as (politically) significant. Amendment of the 1973 Act itself was an excepted matter (s. 2, para 15). Had the Assembly attempted to legislate on an excepted matter, the political ((/judicial) control factors specified above would have come into play. Note: s. 1 of the 1973 Act (which relates to the status of NI and the requisite consent, regarding any change, of the NI people) is sometimes invoked in arguments concerning the extent to which Westminster should seek the consent of the Scottish Parliament and/or people (significantly) to amend/repeal their devolution Act. There is no space to rehearse the arguments here, but s. 1 of the 1973 Act cannot be read in isolation from Art 1 of the Anglo-Irish Act of Union and therefore brings into play certain sui generis arguments too which may not be of general application. See my article in 1983 PL pp 351-365. (Note also the fascinating provision of Sched 5, Part I para I, of the Scotland Bill reserving "the constitution . . . . " ) The Scotland Bill Overall political control can also be considered regarding • pre-enactment scrutiny at Westminster of the vires of proposed Scottish legislation. • controlling (by the devolution Act itself) the power of

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the devolved Government to call an (early) election in the presence of conflict between the two Parliaments/Governments, (see els. 2, 3 and 43 of the Scotland Bill). • Control over the vires of devolved legislation - Is it judicial or political? Query whether the Secretary of State or a Law Officer should have power to make references to the Judicial Committee of the Privy Council (JCPC).

invalidated if incidentally it affects matters which are outside the authorised field. The legislation must not under the guidance of dealing with one matter in fact encroach upon the forbidden field. Nor are you to look only at the object of the legislator. An Act may have a perfectly lawful object... but may seek to achieve that object by invalid methods (NB The appellant himself disclaimed the suggestion that the Act was an indirect attack upon trade.)

3.POLITICAL OR JUDICIAL CONTROL OVER VIRES?

The House of Lords held that the 1934 Act - its true nature and character, its pith and substance - was lawful as protecting the health of the NI inhabitants, and although it might have incidentally affected trade with Co Donegal, it was not passed 'in respect of trade.

(a) 1920 Act The 1920 Act, by s. 51, made special provision for the resolution, by the JCPC, of what the side-note called "constitutional questions", ie the validity of an Act of the NI Parliament. This procedure was used only once. "Vires questions, in terms of whether or not a matter fell within its transferred competence, could and did arise in the course of other proceedings. See Gallagher v Lynn [1937] AC 863 HL and R (Hume) v Londonderry JJ [1972] NI 91. Briefly, in Gallagher, the House of Lords was called upon to determine the validity of the Milk and Milk Products Act (NI) 1934. The appellant was a Co Donegal milk farmer who had previously been wont to sell his milk in NI. The 1934 Act provided that only milk of specified grades could be sold in NI and acquisition of the relevant licence was dependent upon a satisfactory inspection of the premises by the Agricultural Ministry (NI). S. 4(1) of the 1920 Act prevented the NI Parliament from legislating in respect of matters outside NI. Consequently, an NI Court had, earlier, held that the Ministry could only grant a licence to any person who produced his milk in NI. Gallagher applied for and was consequently refused a producer's licence but continued to sell his milk in NI and was convicted under the 1934 Act It was argued on his behalf that the 1934 Act was ultra vires the 1920 Act s. 4(1 )(7), which made an excepted matter, any matter in respect of 'trade with any place' outside NI. Lord Atkin, for the House of Lords, held that the Milk Act was not an Act 'in respect of trade but an Act in respect of the health of the inhabitants of NI (re good quality milk). Of more significance is Lord Atkin's reliance on Canadian (ie federal) analogies, specifically the case of Russell v The Queen (1882), which employed the pith and substance test: "if on the view of the statute as a whole, you find that the substance of the legislation is within the express powers, then it is not

Note: the 'pith and substance' doctrine was designed to cope with a double enumeration (federal/provincial) of powers and the hiatus difficulties which might arise. The 1920 Act had no such double enumeration and Westminster retained its overall sovereignty vis-a-vis N.I. - cf the Canadian federal Parliament and the provinces. For further reading: see Hadfield, The Constitution ofNf (1989) Chap 3; Calvert, Constitutional Law in NI (1968) and Calvert, [1972]. Note: during the course of the various proceedings under the 1934 Act, "applications were made by a milk vendor to have the question of the Act's validity referred to the JCPC under s. 51 of the 1920 Act, but the applications were not acceded to". (Quekett) In R (Hume) v Londonderry JJ the court (NIQBD) had to consider the decision of a Magistrates Court to convict 5 people who had been charged under an NI statutory rule conferring power on any commissioned officer in HM Forces to require, in certain circumstances, a group of 3 or more persons to disperse. S. 4(1)(3) of the 1920 Act made the armed forces of the Crown an excepted matter. Consequently certiorari was sought to question the conviction on the ground, inter alia, that the regulation was ultra vires s. 4. The LCJ (Lord Lowry) observed that he had found no case where the doctrine of incidental effect had been called in aid of a provision expressly directed to the forbidden topic. He considered the pith and substance test and concluded: "both object and method must be valid, and there is force in the argument that the method employed in the regulation . . . is invalid because, and so far as, it makes use of members of the forces to achieve the lawful object of preserving peace and maintaining order". The SR was held to be invalid.

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For a fuller consideration of this case and its consequences, see Hadfield, (1990) NILQ 41/54. Note: as a consequence of these cases, (and possibly for other reasons) the 1973 Act removed the resolution of such questions from the judicial domain. See 1973 Act, s. 4(5) quoted above, (s. 5(1) (4) and (7) of the 1973 Act provide the definition of incidental effects). The 1973 Act left only anti-discrimination provisions in the Courts' hands. I have considered all the relevant cases here in a chapter in a forthcoming book on Minority Rights in the 'new' Europe eds. S Wheatley and I Cumper. (b) The 1920 Act vires and S.5 The courts also had to consider under the 1920 Act the question of the validity of legislation in the fields covered by the 'precluded effects' sections (see above, eg s. 5 and the taking of property without compensation). For a full consideration of these and the principles employed, see Calvert, The Constitutional Law of N.I. (1968), Chap 14. Clearly the courts when resolving all vires questions are likely to equate devolved Acts to Acts of the Westminster Parliament rather than to delegated legislation.

4. THE DEVOLVED PARLIAMENT AND NATIONAL AFFAIRS 1920 The legal form of the 1920 Act must be considered not only with judicial reasoning (and the decision in Gallagher was clearly expansive of the NI Parliament's powers) but also with constitutional conventions/ Speakers' rulings. As stated above, a convention 'developed' with regard to the NI Parliament and transferred matters, that Westminster would only legislate with the former Parliament's consent, thus (effectively) giving it de facto exclusive powers over transferred matters. (The Dominion analogy again.) The Westminster Speaker ruled in 1923 that no questions could be asked at Westminster on matters transferred to the NI Parliament because there was no Minister responsible for such matters at Westminster. (NB No Secretary of State for NI. Query: what responsibility to Westminster will the

Scottish Secretary of State have for devolved Scottish matters?) A similar ruling, re reserved and excepted matters, was made by the NI Speaker. Professor Newark argued that these rulings belied the original intention of 'Home Rule' - "A Parliament... is a place to talk and, probably, by and large, less harm is done by talk than by legislation. Furthermore, if you give your politician a restricted field he may well lose a sense of proportion." Professor Calvert produced 5 reasons against this 'conventional' relationship (1) NI was not a self-governing territory; (2) NI was a part of the UK; (3) it was represented in the UK Parliament and thus had a say there; (4) there was financial integration between GB and NI; (5) s 75 of the Gol Act had no parallel in the Dominions. Although the Dominion analogy now has no application, serious consideration must be given to the extent to which the Westminster and Scottish Parliaments can discuss/call Ministers to account on etc each others' responsibilities. See, eg, the power of the Scottish Parliament to debate reserved matters, but not examine/conduct investigations into them - cl.23. Note: one of the matters currently being discussed in the NI talks may give the Scottish Parliament a wider role. The creation of a body for 'IONA' has been recommended:- ie a body for the Islands of the North Atlantic (or a British - Irish Council), with representatives on it from Westminster, Wales, Scotland, Northern Ireland and the Republic of Ireland, to deal with the totality of relationships on a twice yearly summit basis, (see Propositions on Heads of Agreement, January 1998.)

5. OTHER MATTERS (a) The role of public bodies in NI during direct rule. Although clearly not of relevance as such to legislative devolution, there is a lot to be learned generally from the contribution these bodies can make, if only in terms of functional (cf geographic) devolution. See also their partial relevance to the type of devolution intended for Wales, and see also the value of the N.I. Assembly's scrutiny committees over legislative proposals from 1982 to 1985/6. (The 1982 Assembly had scrutiny powers under the NI Act 1982.).

DEVOLUTION: SOME KEY ISSUES AND A NORTHERN IRELAND SEARCHLIGHT (b) NICA Part III, anti-discrimination provisions - how the courts have resolved anti-discrimination provisions - the benefits, the pitfalls, the lessons. (c) I have deliberately omitted to deal with the European dimension. The vast part of N.I.'s experience of devolution was prior to the UK's membership of the EC. Nevertheless, especially given the legislation incorporating the Treaty of Amsterdam, concepts such as EU Constitutional Law etc clearly affect the level of control to be exercised over the Scottish devolved bodies by institutions other than Westminster. This is also relevant re Convention Rights and the Human Rights Bill. Indeed it is important to note that for most of NI's experience of devolution there were few alternative power bases re the (monolithic) Unionist government — limited Opposition, no likelihood of alternative Government, limited Westminster "links", no EC, ECHR and individual petition from only 1966 and very limited judicial review. NB Some of the issues discussed here are also covered in my article in Winter 1997, Public Law, pp660-671.

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Note: Other matters for consideration (a) the silence of the Scotland Bill on the relationship between Edinburgh and London. Expected to be conducted on basis of "formal non-statutory understandings/agreements" etc. (See Scottish Office Guidance to Bill, para 23 and the Secretary of State for Scotland in the Debate on the Second Reading on 12 January 1998). (b) key role of the Secretary of State for Scotland how much here has been left out of the Bill - re, eg, responsibility to Westminster for 'reserved' matters; representation of Scottish interests in Cabinet etc. (see also cls.33 and 54). (c) A Consultative Steering Group for the Scottish Parliament: its membership, terms of reference have been announced. Should there not be also one for Westminster regarding, for example, the liaison machinery and its scrutiny, power of the House of Commons to debate transferred matters?, need for another "s. 66" (of 1978 Act)? If devolution is "an irreversible watershed", should these issues not be considered now as part of the overall deliberations?

THE UNITED KINGDOM'S BILL OF RIGHTS SIR WILLIAM WADE QC*

1. BACKGROUND One of the curiosities of the British attitude to the European Convention on Human Rights and Fundamental Freedoms of 1950 is the "passionate intensity" with which it was originally opposed by the Lord Chancellor, Lord Jowett. He denounced it as "some half-baked scheme to be administered by some unknown court" and as "so vague and woolly that it may mean almost anything"; and he poured scom on the draftsman, apparently unaware that he was an eminent official in the Home Office. Lord Lester, among his many great services to the cause of human rights, has given a fascinating account of the shaky start which we made with the Convention, although we were the first country to accede to it.1 But there was one comment in Lord Chancellor Jowett's cabinet paper which was more percipient than his anathemas. "We shall have to bring in legislation", he said, "applying the conditions of the Convention to our domestic law". And so at last it proves. It has taken 47 years for that legislation to come before Parliament with any chance of success. The House of Lords had three times passed Bills brought in by my cousin Lord Wade, which had no such chance. But now, with the government's Bill, the signals have turned to green and there is every prospect of "bringing human rights home", as the White Paper puts it. To many people, lawyers especially, it has seemed extraordinary that it has taken nearly half a century for this necessary measure to come forward. Citizens claiming the benefit of the Convention have had to undertake slow and expensive proceedings in Strasbourg where their rights are determined by judges coming from many countries, large and small, who, whatever their * GonviUe & Caius College, Cambridge 1 See [1984] PL 46.

merits, do not command the same confidence in British eyes as do the judges of our own courts. British violations, and there have been many, are publicly exhibited on the European stage, when a decision by our own courts would have given satisfaction without international notoriety, as well as much more speedily and cheaply. Almost all the other countries in the Convention had incorporated it into their law. Unconvincing reasons for not following suit were put forward by successive governments, arguing that the judges would be drawn into politics, would come into conflict with Parliament and would acquire too much power. But why we should distrust our own judges when so many of the other countries willingly trusted theirs was a mystery; and as for politics, as Lord Hailsham said in the House of Lords 20 years ago, "They [the ministers] are under the curious illusion that the judges are not already in politics", and he instanced some of their exploits in judicial review.2 Since then the judges' exploits have become still more numerous and striking, and the prospect of their having to set aside Acts of Parliament, which so horrified the critics when Lord Hailsham was in office, has become a reality under the law of the European Union. The conflict with Parliament has caused no constitutional crisis and there has been no sign so far that it has politicised - or further politicised - the judiciary. The judges may well come to play a more prominent part in public life, as they are now doing, without the dire consequences which used to be predicted. One sign of this more prominent role was that a number of members of the senior judiciary, following the lead famously given by Lord Scarman in his Hamlyn Lectures of 1974, and including the former Lord Chief Justice Lord Taylor, the present Lord Chief Justice Lord Bingham and the present Master of the 2

396 HL Deb. 1382 (29 November 1978).

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Rolls Lord Woolf, publicly advocated incorporation of the European Convention. This was before the government itself had declared its hand. Judicial impatience with the failure to incorporate was also, one may surmise, what prompted some eminent judges to suggest that the common law, that is to say the judges themselves, might spontaneously find the resources for introducing and protecting at least some fundamental rights of the kind contained in the Convention. It has long been possible to say that our law recognised one fundamental right which successfully resisted Parliament's attempts to abolish it, namely the right of access to the courts. Lord Woolf has said that the same should be true of judicial review generally.3 Lord Browne-Wilkinson has suggested two lines of argument, one that the Convention rights will infiltrate our law since they are recognised and applied by the European Court in Luxembourg, and the rulings of that court have overriding effect; and the other that powers conferred in purely general terms (such as a power to make rules for "the regulation and management of prisons") should be held to be intended not to violate treaty obligations.4 There have been plenty of judicial dicta, from the House of Lords downward, tending in the same direction, notably from Lord Goff and Lord Bridge.5 Sir John Laws makes it part of his philosophy of the state to claim fundamental rights as an imperative of higherorder law, which should be binding on Parliament.6 Before he became Lord Chancellor, Lord Irvine opposed these ambitious theories, saying that they smacked of "judicial supremacism" prompted by "extra-judicial romanticism".7 He declared his allegiance to the established constitutional order and to reform by Parliamentary legislation. And that is what we are now to have under the Human Rights Bill. One would like to regard the incorporation of the Convention as opening a new era in our law, in which fundamental rights have a special and secure place, from which in time they might progress to something akin to higher law. They have, after all, already achieved this status in many constitutions of the British Commonwealth, and of course in North America. Neither reverence for Parliamentary sovereignty nor fears of increasing judicial power should be allowed to impede progress. In this perspective the present Bill is a minimalist measure, but it is a welcome step in the right direction. 3

See [1995] PL 57 at 68. See [1992J PL 397. 1 Lord Goff in AC v. Guardian Newspapers Ltd. (No. 2) [1990] 1 AC 109 at 283; Lord Bridge in R. v. Home Secretary ex pane Blind [1991)1 AC 696 at 748. 6 See [1995] PL at 84. 7 See [1996] PL at 77. 4

As a prelude to the Bill itself I add two important articles of the Convention which find no place in it. Article 1

The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention. Article 13 Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.

2. THE HUMAN RIGHTS BILL (a) Scope In framing the Bill the government had many options as to its scope and effectiveness. It might have included only certain of the Convention rights and it might have restricted the authorities or persons against whom they could be asserted. But in the background there is still the European Court in Strasbourg, so that any litigant who might be excluded by the terms of the Bill would be able to take his case direct to Strasbourg in the same way as at present. Even in a case covered by the Bill and decided by a U.K. court, a dissatisfied claimant will be able to challenge the decision in Strasbourg if the U.K. court's decision can be shown to infringe his Convention rights. Nothing in the Bill exempts, or can exempt, the U.K. from its Convention obligations. The White Paper (Cm 3782) does not mention the residual Strasbourg jurisdiction, but it is important to remember it. The scope of the Bill, as debated in the House of Lords on second reading (3 November) and in committee (20-26 November) is the first important question. Is the incorporation complete or only partial? On the face of the Bill its whole thrust is against public authorities. But public authorities are not the only ones who may offend against Convention rights. The right to respect for private and family life, the right to freedom of expression, the right to freedom of association (including trade union membership), the prohibition of discrimination and the right to education under the First Protocol are all capable of being violated by nongovernmental bodies. Will such misdeeds be protected in the same way as the misdeeds of public authorities? In European Union terms, is the Bill to have horizontal as well as vertical operation? In the second reading debate the answer appeared to be in the negative. The Lord Chancellor, introducing the Bill, explained its purpose clearly in relation to clause 6,

THE UNITED KINGDOM'S BILL OF RIGHTS the central provision for incorporation which makes it unlawful for a public authority to act in a way which is incompatible with Convention rights. He said: 8 "We decided, first of all, that a provision of this kind should apply only to public authorities, however defined, and not to private individuals. That reflects the arrangements for taking cases to the Convention institutions in Strasbourg. The Convention had its origins in a desire to protect people from the misuse of power by the state rather than from the actions of private individuals. Someone who takes a case to Strasbourg is proceeding against the United Kingdom government, rather than against a private individual." At the committee stage, however, the government resisted an amendment designed to exclude cases where neither party was a public authority. The context was the only political issue which the Bill has so far evoked. Lord Wakeham, as chairman of the Press Complaints Commission, pointed out that the definition of public authorities in clause 6(3) included the courts, who were therefore required by clause 6(1) to act in accordance with the Convention; and that this would compel them to enforce the right of privacy against private as well as public bodies under Article 8 of the Convention. 9 This right of privacy, strong in Strasbourg but weak in Britain, was feared by the media as likely to conflict to their disadvantage with the less formal self-regulation administered by the Press Complaints Commission. The Bill would introduce a "back-door privacy law" and put "an end to investigative journalism". In reply the Lord Chancellor accepted Lord Wakeham's reading of the Bill, while rejecting his fears about freedom of the press. As to the former he said: 10 "We also believe that it is right as a matter of principle for the courts to have the duty of acting compatibly with the Convention, not only in cases involving other public authorities but also in developing the common law in deciding cases between individuals. Why should they not? In preparing this Bill we have taken the view that it is the other course, that of excluding convention considerations altogether from cases between individuals, which would have to be justified. We do not think that that would be justifiable; nor, indeed, do we think it would be practicable." Contrasting though it is with the Lord Chancellor's second reading statement, this later statement is evidently as it should be. It would be a poor sort of 8

3 November, col. 1231. On 24 November, col. 781, Lord Wilberforce said that ministerial statements had made it "perfectly c l e a r . . . that the Bill is aimed entirely at public authorities and not at private individuals". 9 24 November, col. 771. 10 24 November, col. 783.

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"incorporation" which exempted private individuals and bodies from respecting the fundamental rights of their fellow-citizens and drove them back to Strasbourg with all its cost in time and money - the very evil which "incorporation" is supposed to remedy. It must surely be correct to read the Bill as requiring courts and tribunals to recognise and enforce the convention rights, taking account of the ECHR materials catalogued in clause 2, and subject only to contrary primary legislation (discussed below). This will be a statutory duty in all proceedings, whether the defendant is a public authority or a private person. But then there is the following problem. If both public authorities and private persons are to be subject to the Convention rights, with enforcement through the courts, why is the Bill drafted exclusively in terms of public authorities? Why, for example, are the remedies provided in clauses 7 and 8 made available only against public authorities? Was the Bill intended originally to apply to public authorities only and have private parties come in by the back door? It may be best to develop this point by examples. The Bill provides that dual-purpose authorities, i.e. those with both public and private functions, count as public authorities, but only in respect of their public acts (there is no need at this point to probe the definition further). In committee the Lord Chancellor gave two examples: doctors with both NHS patients and private patients, who would be public authorities in respect of the former but not of the latter; and Railtrack, who would have public functions in relation to railway safety but private functions as a property developer.11 Let us take the case of the doctor, and assume that he publishes intimate details about the illnesses and private life of two of his patients, one NHS and one private. The NHS patient falls squarely within the main provisions of the Bill, and can sue under clause 7 and claim judicial remedies under clause 8. The private patient cannot claim the benefit of those provisions, since they apply only in proceedings against public authorities. He must base his claim on clause 6(1), the duty of the court to act compatibly with the Convention rights. But will he be any the worse or that? Clause 6(1) must mean that the court, as a specified public authority, must give judgment in accordance with any relevant Convention rights. Although the Bill contains nothing to give effect to Article 13 of the Convention, requiring that he "shall have an effective remedy before a national authority", the court will surely take its statutory duty under clause 6(1) (not to act incompatibly with the Convention rights) as sufficient warrant to award remedies in accordance with Strasbourg practice. Clause 2 will be fully 11

24 November, col. 811.

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applicable, so that the court will have to take account of any relevant Strasbourg decision about remedies and compensation, in accordance with rules yet to be made. It is hard to see that the private patient will in the end fare any worse than the NHS patient of our imaginary doctor. So the question remains: if both public authorities and private parties are to share the same human rights responsibilities, why distinguish between them? Why not eliminate all special provision for public authorities from the Bill and provide simply, as the main incorporating clause, that courts and tribunals shall recognise the Convention rights? The only path to enforcement is through the courts, and all that is needed is to give suitable instructions to the judges. That is how the incorporation of European Union law was effected by s. 2 of the European Communities Act 1972, in very short and simple terms. Whether the above analysis is right or wrong, there is a need for a clear statement in the Bill as to what its scope is to be. If it should be right, there will at least be one great advantage. There will be no need for a definition of "public authority" - or, to be more realistic, the definition will not matter. This happy state may be attainable under the Bill as it stands, if claimants suing private parties find that they can obtain satisfactory remedies without the aid of clauses 7 and 8. There is a clear analogy with the general law on breach of statutory duty. A better course would be to extend the scope of those clauses by amendment of the Bill. Since the repeal in 1974 of the Public Authorities Protection Act 1893 the law has been free of the problems of defining them, and our law of human rights will be much the better if it does not demand a definition. Perhaps the intention of the Bill is that the meaning of "public authority" shall coincide with the vague definition which limits the scope of judicial review to cases where there is a "public element", or possibly with the definition in EU law which governs the "vertical" effect of directives.12 In both cases there is abundant room for doubt. The best scenario will be one where there is no need for definition at all and the endless difficulties of case by case elucidation are eliminated. (b) Press freedom versus personal privacy What then of the supposedly dire consequences for the freedom of the press and Lord Wakeham's prediction of "an end to investigative journalism"? The Lord

Chancellor replied to him in the second reading debate: 13 "I understand your concerns, but let me assure you that press freedom will be in safe hands with our British judges and with the judges of the European Court. I add this, you know that, regardless of incorporation, the judges are very likely to develop a common law right of privacy themselves. What I say is that any law of privacy will be a better law after incorporation, because the judges will have to balance Article 10 [free speech] with Article 8 [privacy], giving Article 10 its due high value." And in Committee he also said: 14 "as I have often said, the judges are pen-poised regardless of the incorporation of the convention to develop a right to privacy to be protected by the common law. This is not me saying so, they have said so. It must be emphasised that the judges are free to develop the common law in their own independent judicial sphere. What I say positively is that it will be a better law if the judges develop it after incorporation because they will have regard to articles 8 and 10, giving Article 10 its due high value . . . " And he added that - 1 5 "the right to privacy is a basic human right. That right can be infringed by a neighbour, an intrusive commercial agency, private investigators, the police and all manner of other people. The little man needs protection against these bodies." In the same debate, when Lord Wakeham explained his anxieties in more detail, the Lord Chancellor reiterated his belief that effective self-regulation was the way forward for the press, and that the courts would look to the Press Complaints Commission "as the pre-eminently appropriate public authority to deliver effective selfregulation fairly balancing Articles 8 and 10". 16 In other words, the judges would endeavour to leave the field clear for the Commission. The judges, however, will be obliged by clause 6(1) to decide in a manner compatible with Convention rights. That obligation has more the appearance of statutory duty than of independent development of the common law. The Lord Chancellor's view was that the courts would look to the Press Complaints Commission as the pre-eminently appropriate public authority to deliver effective self-regulation, fairly balancing Articles 8 and 10; and that the courts therefore would have to intervene only if selfregulation did not adequately secure compliance with the Convention. 13

12

As in R. v. Panel on Take-overs and Mergers ex pane Datafin Pic [1987] QB 815 and Foster v. British Gas [1991] 1 QB 405 respectively.

14 15 16

3 November, col. 1230. 24 November, col. 784. 24 November, col. 786. 24 November, col. 785.

THE UNITED KINGDOM'S BILL OF RIGHTS It it easy to see that the "little man" may prefer to complain to the PCC and so save the expense of going to law. But what of the bigger man, perhaps with the bigger reputation, who may wish to go to the court for the sake of its more powerful remedies? An answer to this problem was suggested by David Pannick QC in an excellent article in The Times}1 "The courts should, and I think will, recognise that, other than in the most extreme circumstances, it is consistent with the Convention to leave these difficult questions of judgment to the relevant specialist body. . . . In dismissing in 1996 an application for judicial review against the PCC brought by the Moors murderer Ian Brady, who was aggrieved by a picture of him published in The Sun, the Court of Appeal emphasised that it would recognise a very broad discretion for the PCC. Such an approach is entirely consistent with the Convention. When dismissing claims against the United Kingdom in planning cases, the European Court has stated that questions of judgment may properly be left to qualified independent experts, so long as judicial review exists to correct perversity or errors of law." Yet the PCC can neither issue injunctions nor award compensation. Nor can a number of other bodies to which similar arguments apply, such as the Broadcasting Standards Commission and the Advertising Standards Authority. If a newspaper should commit an outrageous invasion of privacy, would the European Court accept a complaint to the PCC as the "effective remedy before a national authority" which is required by Article 13 of the Convention, an obligation which has no place in the Bill? If the victim went to the court in England and asserted his Article 8 right to "respect for his private and family life" he could be awarded damages for the outrage and perhaps an injunction to prohibit its repetition. The court's armament is so manifestly superior to the PCC's that the victim may naturally prefer to turn to the court for legal remedies. Only if the PCC can itself offer equally effective remedies by bringing pressure to bear on the offending newspaper is it likely to satisfy the European Court. But this seems far from being the case at present. Lord Lester said in the debates that the PCC's enforcement and remedial powers needed to be enhanced by the media in accordance with a new and enlightened code of practice; and the government's position, in resisting Lord Wakeham's appeal that the PCC should be exempted from the Bill, is that a strengthened system of self-regulation is the answer. But even with a "beefedup PCC" 18 there will still be a real problem. To grant exemption to the PCC (and the other analogous bodies) 17 18

The Times, 18 November 1997. So described by the Lord Chancellor, 24 November, col. 785.

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would simply drive complainants to Strasbourg. The press cannot escape the fact that incorporation of the Convention must inevitably include the right of privacy under Article 8, and that the PCC will need to find ways and means to live with it - just as it does now with the recourse to Strasbourg. (c) Effect on primary legislation The Bill proposes a unique solution to the problem of conflict with legislation, following none of the numerous models which might have served as guides. The most stringent of these models are the bills of rights, generally similar to those of the European Convention, which are incorporated in the constitutions of many British Commonwealth countries. These are entrenched with full constitutional protection, they prevail over all legislation, past or future, and they can be changed only by constitutional amendment. Next in stringency comes our own European Communities Act 1972, which gives overriding effect to directly applicable European Union law, making it paramount over all the legislation of Parliament, irrespective of date. Next after that comes the Canadian Charter of Rights and Freedoms embodied in the Constitution Act 1982, which likewise gives constitutional protection but which allows the federal or a provincial legislature to exempt any particular enactment by a "notwithstanding" clause, so that an enactment which is held void for conflict with the Charter may be re-enacted "notwithstanding the Charter", and so prevail. Least stringent of all are bills of rights which have no effect on legislation, but which merely allow the courts to give effect to them in case of doubt or ambiguity. Such are the earlier Canadian Bill of Rights of 1960 and the New Zealand Bill of Rights of 1990. These last specimens rely upon judicial powers of interpretation only. An intermediate possibility, as the White Paper mentions, is to make no specific provision about effect, so that inconsistent past legislation is automatically repealed but future legislation is not. This was the solution favoured by the Hong Kong Bill of Rights of 1991 and, if I understood it correctly, by Lord Lester's Bill of a year ago. If without excessive presumption I may give my own preference, I would have voted for the Canadian model. Human rights are fundamental, and fundamental rights ought to be as secure as the law can make them. I do not see why we should suppose that our own judges should not do what is routinely done by the judges of many Commonwealth countries, and often, where the right of appeal still exists, by our own judges in the Privy Council. But the Canadian system of allowing opting out by a "notwithstanding" clause for irreconcilable conflicts is to my mind a good one. Of course, also,

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there is the analogy with European Union law, which itself acknowledges fundamental rights similar to those of the European Convention, as Lord BrowneWilkinson has pointed out.19 In cases under EU law, therefore, the judges may have to disapply Acts of Parliament as they did in Factortame,20 while in purely domestic cases, as notefl below, they will have no such powers. This makes a very stark contrast between cases which ought, in principle, to be judged similarly. Before coming to the novel procedure proposed by the Bill, we should notice the provision about interpretation in clause 3. This enacts that legislation, both primary and subordinate and whenever enacted, must be "read and given effect" in a way which is compatible with the Convention rights "so far as it is possible to do so". It has a close similarity to the central provision of the New Zealand Bill of Rights Act 1990, which enacts that "whenever an enactment can be given a meaning which is consistent with" the specified rights and freedoms, "that meaning shall be preferred to any other meaning". In both cases the judges are given a new task, to interpret uncertain or ambiguous provisions not according to what they think is the true meaning, but according to the meaning which best accords with the Convention rights. Lord Cooke of Thorndon, with his unrivalled knowledge of the New Zealand law, said in the debate that the formula of the Bill was if anything slightly stronger than the New Zealand formula, and that it would require a very different approach to interpretation from that customary in this country.21 That, however, is only the "weak" part of the Bill. The "strong" part, and the Bill's unique feature, which has no analogy in New Zealand or, so far as I know, elsewhere, lies in its provisions about declarations of incompatibility. Under clause 4 a declaration of incompatibility may be made by the court if it is satisfied that there is an unavoidable conflict between Convention rights and primary legislation; and the same is to apply in the case of subordinate legislation if it cannot be made compatible because of primary legislation. The declaration is not to affect the validity, continuing operation or enforcement of the offending provision, nor is it to be binding on the parties. But it may lead to a "remedial order" amending the offending legislation which may be made by a minister of the Crown and must be approved in draft by positive resolution of each House of Parliament. There are, however, certain escape clauses. In case of urgency the Parliamentary resolu19 20

See note 4. R. v. Secretary of State for Transport ex pane Factortame Ltd.

(No. 2) [1991] 1 AC 604. 21 3 November, col. 1272.

tions may be dispensed with for up to 40 days. Furthermore, a minister may make a remedial order without a declaration by the court if it appears to him that a finding of the European Court of Human Rights produces an incompatibility with the U.K.'s Convention obligations - a provision comparable to that of the European Communities Act 1972 under which ministers may amend legislation by Order in Council or regulations for the purpose of reconciling it with EU law. A remedial order, like the provision of the European Communities Act, is an exceptionally drastic form of Henry VIII clause, of the kind that has recently worried the House of Lords' Delegated Powers Scrutiny Committee. It may well be the most drastic example yet seen, since it is expressly made capable of operating retrospectively, subject only to a ban on retrospective criminal liability. There is wide power to include "such incidental, supplemental, consequential and transitional provisions" as may be thought appropriate by the minister and it may amend or repeal legislation, whether primary or subordinate, other than that containing the incompatibility. These extraordinary powers were the subject of protests in the House of Lords, Lord Simon of Glaisdale saying "we cannot have Henry VIII trampling through the statute book in this way".22 But, inevitably, such powers have to be accepted, however grudgingly, as part of the mechanism for adopting an external system of law, and in default of new and speedy Parliamentary procedures. Reverence for the sovereignty of Parliament was the motive behind this remarkable amalgam of judicial and executive powers. But the sovereignty of Parliament is not what it was, having suffered severe diminution by its subjection to EU law. Lord Lester's earlier private member's bill had provided for the Convention rights to prevail over inconsistent legislation without intervention by the executive, but now he declared a change of mind and accepted the government's plain as "an ingenious and successful reconciliation of principles of Parliamentary sovereignty and the need for effective domestic remedies"23 - though only, he added, "after a good deal of arm-twisting by some members of this place rather more noble and learned than myself. It is not surprising if the government resorted to some degree of intellectual harassment in order to secure the support of Lord Lester, with his immense experience and authority in this field. If, then, a declaration of incompatibility is granted in some case, what is the likely result? A litigant has established that he ought to win his case because of the infringement of his human rights, but yet he loses it 22 23

27 November, col. 141. 18 November, col. 521.

THE UNITED KINGDOM'S BILL OF RIGHTS since the declaration does not affect the validity of the offending statute or regulation, or its enforceability. The appropriate minister must then consider whether to make a remedial order. It would seem inevitable that the court would grant a stay of execution while the minister considers whether to make an order, and whether it should be retrospective. If he makes a retrospective order, he deprives the victorious party of the fruits of his judgment If he does not, he leaves the other party to suffer a violation of his human rights; and it is the same if the minister makes no order at all. The minister's position between these two fires is far from enviable. There may be a lot of money at stake and the government itself may be a party, so that the minister is compelled to be judge in his own cause. In such cases there is certain to be trouble in Parliament and a risk that the positive resolution will be opposed. There may be very difficult questions about the effect on third parties, even though clause 11 allows different provision to be made for different cases. It is hard to think of a more invidious position for a minister. And what, finally, about Article 6 of the Convention, which entitles everyone to a far and public hearing by an independent and impartial tribunal in the determination of his civil rights and obligations? Will the Strasbourg court allow civil rights, and especially human rights, to be decided by discretionary executive order in this way? It seems highly unlikely. In the House of Lords' second reading and committee debates there was no mention, I think, of the rule of law. Yet to allow questions of personal legal right to be decided by executive discretion offends against the rule of law in its most basic sense: the rule of law as opposed to the rule of discretionary power. Remedial orders will, indeed, be subject to judicial review and the Bill makes no attempt to exempt them. But the taking of human rights cases so far out of the course of ordinary law does not seem to be an adequately constitutional solution. (c) Effect on subordinate legislation Subordinate legislation, in so far as incompatible with Convention rights, is to be brought into line by judicial decision or by ministerial order. There is to be no declaration of incompatibility, save in the case of subordinate legislation which cannot be amended because of primary legislation. Therefore a court or tribunal, faced with an incompatible regulation, and in accordance with its duty under clause 6(1) to decide in accordance with Convention rights, must disapply the offending regulation. There may of course be cases where the incompatibility cannot be removed by a clean cut, and then a ministerial order may be necessary.

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A ministerial order is a remedial order with wide powers under clause 11, including retrospective operation and power to make supplemental or consequential provision. But, by a curious clause, this power arises only where the incompatibility appears that, "having regard to a finding of the European Court of Human Rights, a provision of legislation is incompatible" with a U.K. Convention obligation. This looks as if it were intended for occasions when some new decision emanates from the Court at Strasbourg and requires adjustment of British legislation. It applies equally, as already mentioned, to primary legislation. But there does not seem to be any more general power to amend incompatible subordinate legislation by order.

(e) Other features of the Bill Crown intervention Where the court is considering whether to make a declaration of incompatibility the Crown is entitled by clause 5 to be given notice in accordance with rules of court. A minister or his nominee is then entitled to be joined as a party. In a criminal case a person so joined may appeal to the House of Lords against any declaration of incompatibility. Compatibility statements A minister in charge of a Bill in either House of Parliament must, under clause 19, make a written statement, to be published as he thinks best, before Second Reading, saying either that in his view the Bill is compatible with Convention rights or else that, thought he cannot make such a statement, the government wishes to proceed with the Bill. Locus standi - "victims" Claims based on breach of Convention rights by a public authority may be brought, under clause 7, only by a "victim" of the unlawful act. Thus claims by conservation groups, amenity societies and other public interest groups are evidently excluded. No Human Rights Commission The Lord Chancellor explained at Second Reading that the government viewed proposals for a Human Rights Commission as premature.24 Those proposals were not ruled out, but would need investigation in relation to other bodies such as the Equal Opportunities Commission and the Commission for Racial Equality. Lord Lester has given notice of an amendment to be 24

3 November, col. 1233.

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moved at the Report stage for the appointment of a Human Rights Commissioner. Protocols A Secretary of State has wide power under clause 1(4) to amend the scheduled Convention rights as may be required to give effect to any protocol signed or ratified by the United Kingdom. Derogations and reservations The existing derogations and reservations, relating to terrorism in Northern Ireland and to the right to educa-

tion, are reproduced in Schedule 2, and a Secretary of State has powers to amend both the Act and the Schedule where necessary. Judges of the Strasbourg court Judges of the Court of Appeal and the High Court and Circuit judges (and equivalents in Scotland and Northern Ireland) may by clause 18 be appointed to the Court of Human Rights at Strasbourg, retaining their offices but not their duties. The Lord Chancellor or a Secretary of State may make orders concerning pensions and terms of service.

7 THE INCORPORATION OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS SYDNEY KENTRIDGE Q.C.*

The European Convention on Human Rights is a midcentury bill of rights, designed to accommodate a number of member countries with a variety of legal systems and political histories. There can be no doubt that a new, home-grown, British Bill of Rights would have looked rather different. The list of fundamental rights would have been longer. It would surely have referred to peculiarly British institutions, in particular trial by jury. It might have said more about "duties and responsibilities", than is to be found in the elliptical reference in Article 10.2 of the Convention. And it would most certainly, in the style of modem Commonwealth constitutions have defined the circumstances in which legislative infringement of rights may be justified - whether in the general terms of clause 1 of the Canadian Charter of Rights or the more detailed terms of Section 36 of the South African Constitution. Nonetheless, when the European Convention becomes part of the law of the United Kingdom we must welcome it, with all its omissions and ambiguities. The Human Rights Bill is the best bill we have or are likely to have. The criticisms of the Bill made by other speakers in the session have undoubted cogency. For all that, I believe that the Bill represents a workable scheme. I, for my part, am not particularly worried by the criticisms. The Bill and the Convention itself must be approached with a due sense of proportion. Unlike the Bills of Rights in the German or the South African Constitutions it does not represent a break with an abhorrent past nor is its object to address great social problems such as those which have faced the United States Supreme Court in the second half of this century. Most of the rights stated in the Convention are to be found in our * Brick Court Chambers, London

common law; indeed, most of them may be said to have been derived from the common law of this country. The manner in which the Convention will in practice affect English or Scottish law is, at this stage, a matter of speculation. I propose to speculate. Some speakers regard the provision in the Bill for declarations of incompatibility as an inadequate remedy against legislative infringements of fundamental rights. I regard it as a subtle compromise between the concepts of parliamentary sovereignty and fundamental rights. I believe, moreover, that declarations of incompatibility with primary legislation are likely to be rare, at least in relation to future legislation. There are two main reasons for this. The first, a very practical one, is that the individual litigant "the victim" is likely to get little direct benefit from such a declaration. It is difficult to visualise a situation in which a lawyer will advise his client to go to court to seek a declaration of incompatibility. The second reason, a politico-legal one, is that Parliament, the executive and the courts will all strive to avoid the necessity for such declarations. The executive in introducing legislation, and Parliament in passing it, will do their utmost to ensure that there is no incompatibility with the Convention. The courts in compliance with clause 3 will, so far as it is possible to do so, read and give effect to legislation in a way which is compatible with the Convention rights. The executive, as litigant, will also in most instances prefer a "reading down" of contested legislation to a declaration of incompatibility. It is in dealing with subordinate legislation and administrative or executive action that practical problems will arise. A court may, for example, find that a regulation, consistently acted on for a period after the Bill becomes law is unlawful for incompatibility with Convention rights in terms of clause 6. Traditional English jurisprudence tells us that this means that it has

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been unlawful since the commencement of the statute. English judges do not make decisions with solely prospective effect. (See e.g. Birmingham Corporation v West Midland Baptist (Trust) Association [1970] AC. 874 at 898 to 899 per Lord Reid). The South African Constitution expressly empowers courts which hold legislation to be invalid to make any just and equitable order including an order limiting the retrospective effect of the invalidity. The United States Supreme Court, especially in criminal cases, has adopted such a procedure without statutory underpinning. I trust that English Courts will find themselves able to devise a similar doctrine - and do so in a manner which also takes account of the need to ensure that the successful litigant is not sent away empty-handed. There is a more profound problem which arises from the omission from the Convention of any general clause governing the limitation of rights such as that in Section 1 of the Canadian Charter, which allows a statutory limitation of a Charter right provided that it is "reasonable and justifiable in a free and democratic society". In the Convention one finds a number of specific provisions for the weighing of certain rights against other rights and interests - see for example Article 6 (court proceedings behind closed doors), Article 8 (privacy), Article 9 (religion) and Article 10 (freedom of expression). But many rights are stated in absolute terms. No doubt some of the rights in the Convention are indeed absolute, such as the right not to be tortured or held in slavery. The right to a fair trial may or may not be an absolute right. But in a modern democratic society most rights must be weighed against other competing individual rights and also against competing and pressing social or governmental interests. The European Court of Human Rights has qualified fundamental rights in some cases by allowing a national government a "margin of appreciation". This is an appropriate device for an international court which rightly perceives that in different nations a right expressed in general terms may have differing connotations. But it is hard to see how that doctrine could be invoked by a domestic court. An act of a public authority, in the eyes of a domestic court, either is or is not lawful. Yet some doctrine of proportionality must be developed if the Convention is to retain credibility. I foresee that the most difficult and important problem facing British Courts will be to develop (or, rather, invent) a coherent and defensible jurisprudence of proportionality and in so doing to identify those rights which are absolute and not subject to limitation. This question is likely to give rise to seriously-made challenges in relation to the right to a fair trial. For example, if in a criminal appeal it is established that at trial there was a breach of the appellant's "minimum

rights" as defined in Article 6 of the Convention, will it remain open to the Court of Appeal to dismiss the appeal on the basis that it considers the conviction not to have been unsafe? Again, at some time in the future some litigant will be likely to contend that what seem to me the reasonable reforms to civil procedure proposed by Lord Woolf are incompatible with his right to a fair trial. The courts will have to show some creativity in dealing with these conundrums. Another question for the courts will be whether the Convention applies as between individual litigants, for example the plaintiff and the defendant in a defamation case. For what my opinion is worth, I believe that it does not. Like most, if not all, bills of rights the Convention is designed as a protection against the powers of government in its many manifestations. The inclusion of courts in the definition of "public authority", has been found puzzling. Some see it as implying that the Convention has "horizontal" application. In my view it means only that the courts in their own sphere must give effect to such fundamental rights as the right to a fair trial; and to more particular rights such as a right to an interpreter. The courts must also in their own sphere observe general prohibitions, such as the prohibition of discrimination to be found in Article 14. Needless to say, the incorporation of the Convention will nonetheless influence the common law. But I believe that it will do so only indirectly - in the manner which the German lawyers call mittelbare drittwerkung. The Convention does not mandate the adoption of any specific rule of common law. The common law has not been developed by declarations of unlawfulness. The final point which I would make is that the Convention as part of British law must win public support. It must be understood as a protection against power and not as a Rogues' Charter. This will not be self-evident. The Convention will often be invoked by unappealing litigants, in particular in the criminal courts. And by others too. In Canada, for instance, tobacco companies have succeeded in striking down a law restricting tobacco advertising as an infringement of free speech. In South Africa recently certain liquor interests sought to persuade the Constitutional Court to strike down a law prohibiting Sunday trading by liquor stores on the ground that this law infringed the religious freedom of their would-be customers. (They did not quite succeed.) The Courts must not and will not bow to popular pressure. Nonetheless the cause of individual rights will ultimately be served by heeding the words of Lord Woolf on the Hong Kong Bill of Rights: "The issues involving the Hong Kong Bill should be approached with realism and good sense and kept in propor-

THE INCORPORATION OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS tion. If this is not done the Bill will become a source of injustice, rather than justice and will be debased in the eyes of the public." If I may attempt to put a similar thought into my own words, a viable culture of rights does not mean that the

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"victim" must always win. As the topics in this conference demonstrate, we are entering a remarkable new era of constitutionalism. For public lawyers, bliss it is in this age to be alive, and to be young must be very heaven,

8 PATRIATING RIGHTS WITH RESERVATIONS THE HUMAN RIGHTS BILL 1998 GEOFFREY MARSHALL* "Let judges be lions, but yet lions under the throne, being circumspect that they do not check or oppose any points of sovereignty." Francis Bacon, Of Judicature

Since at least the 1930s there has been something approaching an official British article of constitutional faith that Bills of Rights contain abstract or (in the Benthamite sense) stilted nonsense, fit, perhaps, for the paper constitutions of foreigners and colonials but not suited to the habits and usages of Westminster. That theory was expressed in the Report of the Joint Parliamentary Committee on Indian Constitutional Reform in 1934: "Either the declaration of rights is of so abstract a nature that it has no legal effect of any kind, or its legal effect will be to impose an embarrassing restriction on the powers of the legislature and to create a grave risk that a large number of laws may be declared invalid by the courts because inconsistent with one or other of the rights so declared."1 In either event the judges might become more powerful. There could be a danger of judicial usurpation if specifics were left out of the Bill and a grave risk of it if they were left in. Political parties and the judiciary themselves have wavered on the issue. By and large, conservative politicians have toed the official line except for times when the Labour Party has been in office. For example, Lord Hailsham notoriously felt the need for a Bill of Rights in opposition in order to quell the dictatorial power of the modem Parliament controlled by a party majority; but when faced, as Lord Chancellor, with a Bill of Rights introduced into the House of Lords, his mind changed

and caution prevailed. Lord Denning, also, at one time, favoured the cause of fundamental rights but by 1985 had come to think that the perils of the Bill of Rights came less from the judges than from the potential litigants. "My objection is fundamental" he said. "It is that you are going to have a myriad of cases by a lot of crackpots and they will have to be turned out sooner or later."2 On the left and centre, the protection of rights and civil liberties has in theory been held in high esteem up to a point. But the conservative tendencies or presumed anti-trade union leanings of the Oxbridge educated judiciary have been a sticking point. Equally, the Labour government that ratified the European Convention was not, as Labour's Lord Chancellor Jowitt put it, eager to embrace "a half-baked scheme to be administered by some unknown court".3 However, almost all have now repented. Labour and Liberal Democrats have come to believe (or at least halfbelieve) that constitutional reform should include a Bill of Rights that takes the form of introducing the European Convention on Human Rights into the law of the United Kingdom. Extra-judicially, a number of senior judges - including Lords Woolf, Scarman and Bingham - have also supported the proposal. In an essay written in 1996, entitled "Time to Incorporate", 2

* Provost, The Queen's College, Oxford 1 H.L.6; H.C.5. Vol.1 (Part 1) 1934 at p.216.

469 H.L.Deb. col.172 (10 December 1985) Quoted by Lord Lester in "Fundamental Rights: The United Kingdom isolated" [1984] Public Law 46 at p.52. 3

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Lord Bingham declared that "in the European convention an instrument lies ready to hand". That instrument "would enable the judges more effectively to honour their ancient and sacred undertaking to do right to all manner of people".4 The Genesis of the Human Rights Bill The immediate ancestor of the present legislation is the Bill introduced by Lord Lester into the House of Lords in 1995. This was the latest of a long sequence of Bills to which First Readings had been given in the Lords or Commons. A uniform feature of almost all of them was that they proposed to allow the Convention to be applied in British courts and to prevail over existing law. The Bill considered by the House of Lords Select Committee on a Bill of Rights in 1978 provided, for example, that the Convention should have the force of law and be enforceable by action in the courts of the United Kingdom and that "In case of conflict between any enactment prior to the passing of this Act and the provisions of the said Convention and Protocols, the said Convention and Protocols shall prevail".5 In the case of enactments subsequent to the passage of the incorporating legislation it was provided that the Convention should prevail unless subsequent enactment should explicitly state otherwise. The model here adopted was that of the 1960 Canadian Federal Bill of Rights. Given the prevailing doctrine of parliamentary supremacy the provision for express legislative override was a possibly ineffective constitutional innovation. But the supremacy of Parliament was not thought to provide any obstacle to the overriding of existing law, since the Bill of Rights as subsequent legislation would simply be applied by the courts rather than any earlier legislation with which it was inconsistent. Such implicit repeal does not of course imply that the earlier legislation was invalid. When Lord Lester introduced his Human Rights Bill in the House of Lords in 1995 it, too, provided that the European Convention should prevail over inconsistent United Kingdom legislation in a similar manner to that provided by Sections 2(1) and 2(4) of the 1972 European Communities Act in relation to European Community Law. The Bill, in Lord Lester's words, was designed to authorise British courts "to provide speedy and effective remedies to the victims of breaches of Convention rights by the public authorities of the United Kingdom".6 However, at the committee stage, the Bill 4

In Human Rights in the United Kingdom (OUP, 1996, eds. R. Gordon and R. Wilmot-Smith p.l) 3 H.L. 176 (1978) p.41 6 See T h e Mouse that Roared" [1995] Public Law 195.

was amended in a significant way. Lord Lester moved an amendment to substitute for the courts' power to override inconsistent legislation a rule of statutory construction that would require enactments whenever passed or made to be interpreted consistently with Convention rights and freedoms "so far as the context permits". This stipulation was taken from a similar provision in the New Zealand Bill of Rights. The New Zealand Bill introduced in 1990 is, in effect, an interpretative measure which specifically forbids the New Zealand courts to hold any legislative provision to be invalid by reason of inconsistency with the Bill of Rights. Lord Lester has said that as the result of these changes the Bill "became more of a mouse than a lion".7 However, the modification of its character was intended to commend it to a majority of the Commons on a free vote and to broaden its appeal to members of Parliament perhaps restive at the effects of membership of the European Union upon parliamentary sovereignty. It seems unlikely that the Bill could have progressed through the House of Commons at that time in the face of the Conservative government's hostility. So a high price was exacted for the support of the House of Lords. There has been some suggestion that the Bill's dilution was necessary to secure the support of the Law Lords, but those of the Law Lords who had at one time or another publicly supported the incorporation of the Convention do not seem to have envisaged a Bill that denied the judges power to enforce its provisions. For example, Lord Woolf writing in 1995 said "I consider that it is unacceptable that our citizens should be able to obtain a remedy which the government will honour in the European Court of Human Rights which they cannot obtain from the courts in this country."8 A similar conclusion can be drawn from Lord Bingham's Denning Lecture in which he rejected the argument that allowing British judges to enforce Convention rights would draw them into political controversy and damage their neutrality or standing. That view, he said, "could not withstand examination".9 Be that as it may, the New Zealand legislation appears to have provided an ideal opportunity to those in both parties who wish to compromise on the rights issue. For one reason or another, many of the Labour party's policy makers have always been supportive of the idea of human rights but distrustful of their enforcement by judges. Hence the ingenious framework 7

Ibid. Pp.119, 201. At the Committee stage of the Bill in the House of Lords, Lord Lester referred to "a good deal of arm-twisting by some members of this place". See 583 H.L. Deb. col.521 (18 November 1997) 8 "Droit Public - English Style" [1995] Public taw 57 at p.70 9 See footnote 4 above. (Time to incorporate" at p.8)

PATRIATING RIGHTS - WITH RESERVATIONS

discerned by its supporters in the Human Rights Bill of 1997 and its accompanying manifesto Bringing Rights Home. Bringing Rights Home: Is the Convention Incorporated? The government's proposals for incorporating the European Human Rights Convention were explained in a White Paper entitled "Bringing Rights Home" published simultaneously with the Human Rights Bill. The White Paper opens with a preface by, and a likeness of, the Prime Minister (wearing a look of thoughtful concern). He says in his preface to the White Paper that the Human Rights Bill will give people in the United Kingdom opportunities to enforce their rights under the European Convention in the British courts, rather than having to incur the cost and delay of taking a case to Strasbourg. The White Paper goes on to say that the government "has a Manifesto commitment to introduce legislation to incorporate the European Convention on Human Rights into United Kingdom law" and that "This will make it possible for people to invoke their rights in any proceedings - civil or criminal - brought against them by a public authority". Courts will be able to award whatever remedy within their normal powers is appropriate in the circumstances. However, further reading of the White Paper and the crucial sections of the Bill reveal the substantial fly in the ointment, represented by the adoption of the New Zealand minimal model. If the purpose of adopting the Convention had been to prevent the law of the United Kingdom from infringing the rights set out in it, the normal remedy stemming from a court proceeding in which a citizen alleges rightly that the law invoked against him is incompatible with the Convention would be to decide the case in his favour. But, the White Paper says, courts will not be able so to decide if such a decision involves setting aside an Act of Parliament. The courts, as far as possible, must interpret Acts of Parliament and secondary legislation so as to be compatible with the Convention. But if they cannot do so and the legislation clearly contravenes the Convention they must treat it as valid. Clause 3 of the Bill provides that the power to interpret legislation compatibly with the Convention is not to affect "the validity, continuing operation or enforcement" of any primary legislation that is incompatible with it. In such circumstances, however, the Bill authorises a formal judicial declaration that the law and the Convention are incompatible. It will be, the White Paper says, an important statement to make and the power to make it will be reserved to the higher courts. An important statement, it certainly will be. But what does such a statement mean?

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If a law is not compatible with a Convention right it must be the case that it infringes the right set out in the Convention. If the Convention were truly incorporated into UK law, the Convention and the rules with which it is incompatible could not both be equally valid. On the present rules of interpretation, inconsistencies between at least existing United Kingdom law and the Convention would be resolved in favour of the later legislation by the principles of implied repeal. So, is the Convention a part of UK law or is it not? The answer must be no. Despite the government's express commitment in the White Paper to incorporate the Convention into the law of the United Kingdom, the Bill as drafted does not carry out that undertaking. In the Lords' debate the Lord Chancellor said clearly and repeatedly that the Convention rights "will not become part of our domestic law".10 His explanation was that if they were to do so they would supersede and impliedly repeal earlier provisions of United Kingdom law inconsistent with the Convention - a result that Clauses 3 and 4 of the Bill are designed to prevent by preserving the validity of all legislation that is inconsistent with Convention rights. Implied repeal by later legislation of earlier inconsistent law would, of course, be the simplest way to carry out the government's professed intention of bringing United Kingdom law into harmony with the Convention and would be fully consistent with the sovereignty of Parliament which the government desires to protect. All of this places a question mark against the White Paper's statement that citizens will be able to enforce their Convention rights in domestic legal proceedings. If the citizen has argued successfully that the UK law offends against the Convention, the continuing operation or enforcement of the relevant Act of Parliament implies that the court must say, "You should win your case. The Act is incompatible with the Convention and the public authority invoking its terms against you is infringing your rights. But, unfortunately, we cannot give you a remedy. You must put up with this improper disregard of your right until someone in government has set in motion the so-called fast track procedure by laying a remedial order before Parliament for the purpose of bringing the law into conformity with the Convention." A remedial order is one authorised by Clause 10 of the Bill and by means of it a minister may make such amendments as he considers appropriate. Indeed the White Paper notes that such a judicial declaration "will almost certainly prompt the government and Parliament to change the law". Almost certainly? Will there be some doubt about it? It appears that there may be. The fast-track timetable may be unpredictable. It cannot be certain how many 10

583 H.L. Deb. col. 522

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fast-track procedures will be in competition and how many litigants will be queueing to get relief and how long it will take and whether the appropriate minister will correct the offending law in quite the right way, or whether he will have many other things to do and many other incompatibilities to correct. Will revealed incompatibilities be dealt with in the order in which they appear, or will some be given priority on some view of their importance? Will frustrated litigants have to realise that it is a full-time job setting up fast-track procedures for every case that comes out of the courts calling for parliamentary action? Members of Parliament may themselves have views about how the amendment of the law should be carried out or on what will make it compatible with the Convention, but since the fast-track remedial orders will not be subject to amendment they will not have much chance of expressing them. The subject matter of some orders may involve fairly fiercely contested differences of political opinion. Not every litigant's cause will be as popular with ministers or with the government's backbenchers as other litigants' causes are. Moreover, when the fast-track procedure eventually produces a statutory instrument that allegedly removes the objectionable feature of the law under which the original grievance occurred (if the litigant can remember that far back) it may tum out that it is not quite the remedy that is ideally needed and it might conceivably be necessary to start fresh legal proceedings to decide whether that is so or not. If the fast-track instrument is not drafted in quite the right way it is possible that the litigant could lose his case the second time around. All of this is intended to achieve the government's stated objective of bringing the law into accordance with the Convention and to get rid of law that is inconsistent with it. But it looks to have numerous awkwardnesses and disadvantages compared with the simplest and most obvious fast-track procedure designed to achieve that end, namely allowing courts to do their normal job of applying the law to the case in question and giving the deserving litigant his remedy. The Case for the Minimal Model On this central issue therefore the White Paper is unconvincing. It relates that "the government has considered very carefully whether it would be right for the Bill to give courts in the United Kingdom the power to set aside an Act of Parliament which they believe is incompatible with the Convention rights". There follows a palpable non sequitur. There is, the White Paper says, an essential difference between the European Community Law and the European Convention because it is a requirement (underlined) of membership of the

European Union that member states give priority to directly effective EC law in their own legal systems, but there is no such requirement in the Convention. But what has that difference to say to the matter? It is precisely because the European Convention does not require there to be directly enforceable remedies in the UK that the issue of incorporating it has arisen and has been hitherto presented as offering a remedy for that precise disadvantage. The present issue is not whether it is necessary but whether it would be best, or right, or advantageous to allow British judges to give priority to the Convention. But it is hard to see how the fact that the Convention itself does not make it obligatory to do so can be adduced as a conclusive reason, or any sort of reason, for not doing it. It is then remarked that this conclusion arises from the importance which the government attaches to parliamentary sovereignty. "Parliamentary sovereignty means that parliament is competent to make any law on any matter of its choosing and no court may question the validity of any Act that it passes." However, to give parliamentary sovereignty this overriding priority is in effect to reject the very idea of constitutional rights whose purpose is necessarily to deny the entitlement of a legislature to enact by simple majority any law of its choosing. In any event, parliamentary supremacy has been substantially modified under the European Communities Act so that it is somewhat late in the day to regard it as an immoveable feature of the British constitutional system that cannot yield to human rights but can bend to Community interests. Indeed it is hard to see that any violence can be done to the principle of parliamentary sovereignty by a Bill of Rights that merely supersedes earlier legislation. The authority of Parliament, it is claimed, derives from a democratic mandate which MPs possess because they are elected as accountable representatives. To allow courts to set aside Acts of Parliament "would confer on the judiciary a general power over the decisions of Parliament which, under our present constitutional arrangements, they do not possess and would be likely on occasions to draw the judiciary into serious conflict with Parliament." These are familiar thoughts. They have turned up in much the same form on many occasions, though usually as an argument against having a Bill of Rights at all. They occur in the Report of the 1973 Royal Commission on the Constitution. Judicial review of legislation "imposes on the judiciary a burden in a field of decision which is not strictly its own".11 "Not strictly its own" is an ambiguous and question-begging expression confusing prescription with statement of the 11

Cmnd. 5460 Report Vol.1 at p.230

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existing facts and implying that judges cannot be given powers that they do not now exercise. If it is the case that there is a general will or democratic mandate for a Bill of Rights, the electorate to whom the representatives are accountable is opting to have a legislature that is not free to make such laws as it pleases. If a legislative majority ignores that limitation, the conflict that follows is not between the judges and Parliament but between members of the legislative majority and the law which has defined and circumscribed their activities. In what way the law is capable of doing that under our constitution raises important issues that are not adverted to in the White Paper. About judicial review of laws already enacted there is no inherent difficulty, since a Bill of Rights is later legislation that can be treated as repealing earlier legislation that is inconsistent with its provisions. As to subsequent legislation, the government is willing neither to employ the Canadian Charter's technique of express overruling nor to contemplate the possibility of entrenching the Bill of Rights. This, they say, cannot be reconciled with our constitutional traditions which allow every Act of Parliament to be repealed or amended by a subsequent Act of Parliament. This ignores the distinction between substantive limitations and procedural requirements for repeal or amendment. A provision to the effect that subsequent amending or repealing Acts should require a special majority would not necessarily be inconsistent with parliamentary sovereignty, but it seems too much for the government to argue or even think about. The White Paper's view is that the government has no mandate for judicial review of any kind of primary legislation. Nevertheless, they take themselves to have a mandate for introducing a Bill of Rights and bringing rights home. In the light of the history of Bills of Rights that would most naturally be interpreted as a mandate to bring home a Bill of Rights properly supported by judicial remedies. The government alleges that neither the electorate nor the judges are in favour of such a Bill of Rights. But neither the electorate nor the judges have been polled on this particular issue. So we cannot be sure that they prefer half a Bill to a whole one. Article 13 of the Convention requires everyone whose rights and freedoms as set forth in the Convention are violated to have an effective remedy. It is a potentially wide-sweeping provision that might have consequences for a number of institutional and administrative arrangements that do not embody effective rights of appeal.12 It might be argued that the failure to provide effective judicial enforcement of the Human 12 Examples that might spring to mind are unreviewable decisions taken under prerogative powers, parliamentary privilege and the administration of immigration law.

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Rights Act is itself an infringement of Article 13. Perhaps to make sure that no one uses this argument, the government has carefully omitted Article 13 from the list of Convention Articles to be incorporated. The Bill proposes to incorporate Articles 2 to 12 and Article 14. So, the White Paper does not quite tell the whole story. It perhaps needs a sub-title - "Rights Brought Home: All Bar One; And That The Most Important". The matter of the non-incorporation of the missing Convention Article 13 has not been convincingly explained. Or rather it has been explained in two different ways. In listing the rights incorporated by Article 1 when the Bill was debated on Second Reading in the House of Lords13 in November 1997, the Lord Chancellor remarked that they were all fundamental rights. But the right to an effective remedy for breach of one's rights guaranteed by Article 13 is also a fundamental right. So why are citizens of the United Kingdom not to have it amongst their incorporated rights? Several peers who spoke in the Lords debate wished to know the answer to that question. But the only answer attempted by Lord Williams of Mostyn, replying to the debate, was that Article 13 was met by the passage of the Bill. Possibly, possibly not. But if it is, where is the harm in including rather than omitting it? The suspicion must remain that the reason for omitting Article 13 is to insure against the possibility of a court reading into Article 13 implications that might expand the scope of judicial review. That seemed to be in the mind of the Lord Chancellor in resisting demands at the Lords' Committee stage (including the powerful and persuasive voice of Lord Lester) to have Article 13 included in the Schedule. "If Article 13 were included," he said, "the courts would be bound to ask themselves what was intended beyond the existing scheme of remedies set out in the Bill. It might lead them to fashion remedies other than the Clause 8 remedies."14 Parliamentary Statements It has been claimed by the government that the Bill would bring about a "new culture of awareness of human rights"15 partly because ministers will make statements in Parliament, before all legislation, about its human rights implications. Under Clause 19 of the Bill it is provided that before the Second Reading of any measure the responsible minister will make a statement that in his view the provisions of the Bill are compatible with the Convention rights; or else he will make a statement that he is unable to make a statement of compatibility but 13 14 13

582 H.L. Deb. cols. 1227-1312 (3 November 1997) 583 H.L. Deb. col. 521 582 H.L. Deb. col. 1228

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nevertheless wishes the Bill to proceed. It is not clear what form these statements will take. Clause 19 says that the Minister's statement must be "to the effect that" the Bill is compatible and not that the Minister must give reasons for his belief that the Bill is compatible (though an amendment to require reasons was moved and resisted by the Lord Chancellor in the House of Lords on the ground that the reasons would emerge in debate). Some Bills (say, a Rnance Act) contain large numbers of provisions of a disparate character. How can the minister know, or be reasonably sure ahead of time and in advance of litigation, that nothing in the Bill could be held to be an infringement of some article of the Convention? In other cases his assertions may be controversial or contested in the House and probably will be. So what implications (if any) can the courts draw from these proceedings? They are not Pepper v. Hart ministerial announcements as to the intended meaning of the legislation but disputed expressions of opinion about its constitutional standing. So, it is hard to see that any great significance can be attached to them. The implication of a statement that the minister is unable to make a statement of compatibility is consistent either with his not knowing whether it is compatible or knowing that it is not compatible. The comparable provision in the New Zealand Bill of Rights is that the Attorney-General is given the duty of drawing to the attention of the House of Representatives any provision in a Bill that appears to be inconsistent with the Bill of Rights. This seems in principle a better procedure from the point of view of pre-legislative scrutiny, since it involves the participation of a minister not directly involved in the Bill's promotion, though presumably any such advice by the Law Officers would be likely in any event to have been heeded at an earlier stage in the drafting of government legislation and before its publication. If during the course of litigation a legislative provision appears to be obscure or ambiguous, a ministerial statement that the Bill was intended not to take away rights granted by the Convention might perhaps assist in persuading a court to give the statute a meaning conformable to the Convention. Paradoxically, that might lead to giving it a meaning that ministers and Parliament did not in fact intend. The New Requirement on Public Authorities Clause 6 (1) of the Bill provides that "It is unlawful for a public authority to act in a way which is incompatible with one or more of the Convention rights". However, perusal of Clause 6 (2) of the Bill shows that this statement is subject to serious qualification. It will not be unlawful for a public authority to act incompatibly with

Convention rights if the public authority is acting so as to give effect to primary legislation which is clearly incompatible with the Convention. The White Paper claims that the courts will be able at least to strike down secondary legislation which is incompatible with the Convention. But Clause 3 (2) (c) reveals this also not to be unequivocally true. The validity or enforcement of secondary legislation is not to be affected if the relevant primary legislation "prevents removal of the incompatibility between it and the Convention". When does primary legislation have this effect? When will it not have this effect? If inconsistent primary legislation authorises the making of secondary legislation and the secondary legislation is properly made in terms of the primary legislation, it would seem that the continuing validity of the incompatible primary legislation would protect and prevent removal of the incompatibility between the secondary legislation and the Convention. If so, all secondary legislation would be protected, unless what is envisaged is some special ousting formula to be inserted in legislation so as to permit secondary legislation to infringe Convention rights. In such cases the court (as in the case of primary legislation) merely makes a declaration of incompatibility. It cannot hold the public authority to be acting unlawfully if it is acting in pursuance of such regulations. It follows that in such cases it will not be unlawful for public authorities to act incompatibly with Convention rights. So the supposed new requirement on public authorities is not quite as pictured in the White Paper. There are a great many cases also in which public authorities (including local authorities) are acting under powers conferred by regulations made to give effect to European Community Directives or regulations. Since the Bill of Rights is a United Kingdom statute and United Kingdom legislation must yield to the law of the European Union, public authorities enforcing regulations that give effect to European law presumably cannot be held to be acting unlawfully. Perhaps a declaration of incompatibility could be made, but since the object of such a declaration is to trigger the parliamentary remedial procedure and since Parliament would be incapable of remedial action against provisions implementing Community law, there would seem little point in such a declaration. Where a declaration is made in relation to United Kingdom primary or secondary legislation, it may well be asked what the position of litigants will be in the interval between a declaration of incompatibility and the securing of a fast-track remedy? What will be the position of a public authority? If the House of Lords has declared that a public authority is acting incompatibly with the Convention, can one expect a political convention to develop that the relevant public authority will

PATRIATING RIGHTS - WITH RESERVATIONS respect the Convention rights which the court has declared them to have infringed? Would it in these circumstances be an unreasonable use of its discretion to insist upon the exercise of its legal entitlement to ignore Convention rights as declared by the courts? Meaning and Scope of "Public Authority" Clause 6 makes it unlawful for any public authority to act in a way which is incompatible with Convention rights (unless of course it is authorised to do so). But what is a public authority? The Bill names some bodies which are included in the public category, but it does not define the term "public authority" except by saying that it includes bodies whose functions are of a public nature and that such bodies will not be treated as public if the nature of their acts is private. This is carrying vagueness to extreme lengths. Several peers were exercised over this point, particularly as it effects the impact of the privacy guarantee in the Convention. If only bodies that were public were subject to the restrictions of the Convention would they include the BBC or Independent Television or the press? Lord Donaldson said "If we consider the press it is obvious that one could not find a function which is of a more public nature . . . it is clearly dealing with the public in general and not particular members of the public". This, he added, put him in mind of Safeway which also seemed to be conducting a business of a public nature. Here we have a venerable confusion of ideas that has had a lamentable history, between two senses of "public" - one meaning governmental or official, as against non-governmental or private; the other simply contrasting the general public or private persons considered collectively with particular individuals. A body like the BBC is not a public organ because it serves the public in this sense as do public libraries, public lavatories or public houses, or Lord Donaldson's Safeway superstore. The confusion was confounded in an amendment proposed by Lord Simon of Glaisdale to define "public authority" as "any person concerned with the provision to the public (whether for payment or otherwise) of any goods, facilities or services".16 This amendment, which would have made every windowcleaner, newsagent and striptease artiste a public authority, was happily withdrawn. The draftsmen of the Bill, who were much praised in the debate, have, stopped well short of clarifying the matter on the ground that it is better to allow the courts to work out criteria for what is to count as a public authority in this sphere as they have in others. Nevertheless, it might have been useful to insert some statement of principle about the 16

583 H.L. Deb. col. 789 (24 November 1997)

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intended scope of the Human Rights legislation as is common in other Commonwealth Bills of Rights. In some constitutions the framing of particular articles makes it clear that they are designed to create protection only against state action. The American First and Fourteenth Amendments indicate on their face that at least in principle the free speech and equal protection guarantees are against state action. Admittedly in many Bills of Rights the wording is unclear. For example, Articles 8 and 10 of the European Convention say merely that everyone has the right to respect for his private life and to freedom of expression. The Canadian Charter and the New Zealand Bill of Rights by contrast assert that they extend to protect citizens only against acts done by state or public authority. In New Zealand, the Bill of Rights applies only to acts done by the legislative, executive or judicial branches of the government of New Zealand or by any person or body in the performance of a public function. In Canada, the Charter is somewhat less clear in saying that it applies to the Parliament and Government of Canada and to the provincial governments in respect of all matters within their respective legislative authorities. Nonetheless, the Canadian Supreme Court has declined to extend the free speech guarantee to employer/employee relations17 or the equality right (in respect of mandatory retirement) to private institutions.18 The United Kingdom Human Rights Bill is silent on the general issue. Since it imports the phraseology of the Convention, it also imports its ambiguities. Clause 6 though stating that it is unlawful for a public authority to act in a way which is incompatible with one or more of the Convention rights, does not in terms touch the question whether it is unlawful for any non-public person or body to act in a way that is inconsistent with the Convention. This may have implications for the reach of privacy rights and will pose some delicate questions for future adjudication. In delineating the boundaries of public or state action the courts may conceivably adopt criteria drawn either from EC law as to the scope of European directives that are directly applicable to the State and its emanations, or from judicial application of the public/private law distinction in administrative remedies. In these lines of decision, the criteria for the exercise of public functions have been expanded and are, to a degree, vacuous and circular, turning upon the empty notion of exercising a "public function" so it is not obvious whether this expansive and expandable criterion is appropriate in a human rights context. In the older English cases the 17

See e.g. Dolphin Delivery Ltd. v. Retail, Wholesale and Department Store Union Local 58 [1986] 2 S.C.R. 573 18 McKinney v. University ofCuelph (1991) 76 D.L.R. (4) of the Human Rights Bill. 4 For a quick summary of the Strasbourg jurisprudence on this point, see DJ. Harris, M. O'Boyle and C. Warbrick, Law of the European Convention on Human Rights (London: Butterworths, 2

1995) at 19-22.

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ordinary legislation, notably anti-discrimination statutes with express provisions extending the protection against private authorities. So I do not agree with Professor Sir William Wade QC that the new measure should be directly effective against private individuals and bodies where they are not performing public functions.

remedies. I would expect compensation to be recoverable for some new public law torts, for example, breach of legitimate expectations in a manner unreasonably interfering with the enjoyment of one's property in breach of Article 1 of the First Protocol. Statutory Interpretation

Public Law Torts By making it unlawful for public authorities to act incompatibly with the Convention, the Act creates a new "public law tort." Clause 6 of the Act creates a statutory duty to abide by the Convention. Its breach will enable a judicial review court to award damages or compensation in appropriate cases.5 The courts will have to decide, case by case, as to the nature of the breach and degree of wrongdoing required to justify damages in compensation. They will take account of the Strasbourg case law on compensation, without being bound to follow it. Remedies On the issue of remedies generally, I regret the deliberate exclusion of Article 13 of the European Convention from the list of Convention rights incorporated into UK law by the Human Rights Act or to which courts and tribunals may have regard.6 Article 13 is a substantive right under the Convention, providing a right "to an effective remedy before a national court." Its omission is anomalous. Even in the absence of incorporation, the courts have considered Article 13 in cases such as Ex parte Khan,7 BrincP and Esther Rantzen;9 and we have the Lord Chancellor's assurance in Hansard10 that the courts may still have regard to this important Convention provision. I therefore hope that the omission of Article 13 will not be legally significant in persuading the courts to adopt a restrictive approach to remedies. That would be contrary to the assurances given by the Lord Chancellor in the Lords' debates. Clause 8(1) is broadly worded and enables a court to grant such relief or remedy "as it considers just and appropriate." This language should be wide enough to ensure that the courts are able to grant effective 3

See Clause 8 of the Human Rights Bill. See Clause 1 (1 K») of the Human Rights Bill which refers to "Articles 2 to 12 and 14 of the Convention". 7 R. v. Secretary of State for the Home Department, ex p. Khan [1985]1AHER4O(CA). 8 R. v. Secretary of State for the Home Department, ex p. Brind [1991] 1 AC 696 (HL). 9 Rantzen v. Mirror Group Newspapers (1986) Ltd. [1994] QB 670 (CA). 10 See House of Lords Debates, 18 November 1997, col. 477. 6

The Human Rights Act 1998 will profoundly affect statutory interpretation. The Act provides the courts with the authority and duty to interpret and apply legislation in a way that meets our European Convention human rights obligations. While the Act falls short of empowering our courts to strike down legislation which is incompatible with the Convention, Clause 3 requires the courts to read the legislation in a way that "so far as it is possible" gives effect to the Convention rights. This is very strong wording, particularly since the focus of the test is on what is "possible" rather than what is "reasonable". Using this rigorous interpretative test, courts and tribunals will seek wherever possible to interpret legislation compatibly with the Convention rights by reading in the necessary safeguards to ensure fairness, proportionality and legal certainty, as required by the Convention; and by narrowly construing powers conferred in wide terms. The courts will not use the doctrine of implied repeal, but will interpret pre-Human Rights Act legislation wherever possible to accord with Convention rights to ensure that judicial declarations of incompatibility are a rare occurrence. If so, the exclusion of the implied repeal doctrine will not much matter in practice. The case law of the Privy Council in construing ordinary legislation in the light of constitutional charters of human rights will provide useful guidance to the new principles of interpretation. As regards Acts of Parliament enacted after the Human Rights Act is in force, the Government will be obliged under Clause 19 to provide statements that in the Minister's view, the measure is compatible with Convention rights. This will encourage the courts to require nothing less than an express statement in a future Act of an intention to amend or repeal the Human Rights Act (i.e. something akin to the Canadian "notwithstanding" clause). Where legislation cannot be saved from bring declared incompatible with Convention rights, the proposed Act provides for a special fast-track parliamentary procedure to be invoked to remedy the situation speedily. Parliamentary scrutiny will be enhanced by the creation of a new Select Committee on Human Rights. I do not share the criticism made by some of the fasttrack procedure as involving an undemocratic "Henry VIII clause." It is designed to give effect to judicial declarations of incompatibility, and to give Parliament

THE IMPACT OF THE HUMAN RIGHTS ACT ON PUBLIC LAW reasoned information about what is proposed by way of amending legislation. It is subject to affirmative procedure. It affirms the rule of law, promotes respect for human rights, and ensures parliamentary accountability. Delegated Legislation The courts will be able to strike down inconsistent delegated legislation except where primary legislation prevents the removal of the incompatibility.11 However, the rigorous "so far as it is possible" test in Clause 3 means that most inconsistent delegated legislation will not survive judicial scrutiny. There may be problems about the choice of forum to perform this task. Impact on the Nature of Judicial Review The coming into force of the Human Rights Act will bring with it an important shift in the nature of judicial review proceedings where claims of right are made against public attitudes for acting and breach of Convention rights. In some cases there will need to be merits-based review, involving disputed issues of fact, wider discovery and cross-examination, and evidence of social policy to enable the courts to strike and maintain balances between conflicting rights or interests. Some procedural rules and practices may have to be reconsidered in light of the fair trial provisions in Article 6 of the Convention. The European doctrine of the margin of appreciation will not be apposite. However, the level of judicial scrutiny will vary according to the circumstances of the alleged breach of Convention rights. The European principle of proportionality (like its Commonwealth constitutional analogies) is sufficiently flexible to prevent the courts from usurping the role of the decision-maker, while ensuring that public powers are not used excessively. Standing to Sue On the issue of standing to sue, the Act, as presently drafted, adopts a European "victim" test12 which, while appropriate in a private law context, is unnecessarily 1

' See Cause 3(2Xc) of the Human Rights BUI. See Clause 7 of the Human Rights Bill.

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restrictive, procedurally complex and potentially unfair in public law cases. The "sufficient interest" test under section 31(3) of the Supreme Court Act 1981 and Order 53, Rule 3 of the Rules of the Supreme Court, coupled with the requirement to obtain leave to apply for judicial review, provide sufficient safeguards against any abuse of judicial review by interfering busybodies: and I hope the standing provisions of the Act will be amended in this respect. Access to Justice My other area of concern is on the issue of access to justice. If the right of access to the courts, as guaranteed by Article 6 of the Convention, is to be real and effective, litigants with meritorious cases must not be unnecessarily deterred by the absence of legal aid and advice or by the risks of having to pay the legal costs of the other side. Provision needs to be made to enable litigants to know at the outset whether they will risk having to meet an order for costs. I also believe that it is essential create a public body to provide advice and guidance to those who wish to assert their Convention rights. I am disappointed that the Government has not given effect to the agreement made in opposition between Labour and the Liberal Democrats to establish a Human Rights Commission or Commissioner to give advice and assistance, to bring test cases in the public interest, and to conduct research and education promoting the objects of the legislation. This will also enable the enforcement of existing anti-discrimination statutes to be harmonised and made more effective. Conclusion The impact of the Human Rights Act on public law and its practice will be profound and far reaching. It is part of the creation of a new constitutional settlement bringing our system of government under law into line with modern Commonwealth constitution. If the Human Rights Act is to succeed, we must equip ourselves for the new challenges. Test cases must be well chosen and skilfully argued, before a well-trained judiciary, capable of providing effective domestic human rights protection. That is a challenge to judges, practising lawyers and teachers of law.

12 SOME THOUGHTS ON PARLIAMENTARY REFORM SIR ROBERT RHODES JAMES*

I approach this topic with a certain caution, and some degree of scepticism. I have been closely involved with Parliament, and especially the House of Commons, for over 30 years, as a Clerk of the House of Commons, a Member of Parliament, a Chairman of the House of Commons, and Chairman and Trustee of the History of Parliament. I have, accordingly, seen it from several angles. I first sat, enthralled, in the public gallery of the House in 1952 to see Churchill's second Premiership, and entered the service of the House soon after the 1955 General Election. While I do not go quite as far as a very elderly member of the Parliamentary Bar who told me in 1955 that "this place has never been the same since Mr Gladstone died", my first House of Commons in 1955 included Churchill, Attlee, Eden, Butler, Macmillan, Morrison, Gaitskell, Bevan and Wilson. And it also included rising stars of the future, including Macleod, Heath, and Callaghan. I do not consider that the quality of Membership or debate has risen notably since then. It is, of course, absurd to have nostalgic fictions of Parliamentary Golden Ages - no doubt the older Members of Gladstone's later career harked back to the brilliance of Palmerston, Peel, and the young Disraeli but the changes since 1955 have indeed been considerable. In those days the Commons Chamber was not only the best theatre in Britain, but the most important. Debates were reported properly and at length. National reputations could be made - or lost, as in the case of Herbert Morrison - by a single speech in the Chamber. The Chamberlain and Callaghan Governments fell by crucial votes in the Commons, and the second Attlee one very nearly did. • Formerly MP for Cambridge 1976-92, sometime Clerk to the House of Commons.

At a particularly desperate moment in 1942 Churchill had to face a Vote of Censure, and in 1944 the Coalition Government was actually defeated on an issue it had, unwisely, decided to contest, namely equal pay for women. Even in wartime, the Commons maintained its independence of the Executive and its right to criticise it. Dick Stokes, who knew what he was talking about, consistently denounced the poor quality of British tanks; the Narvik debate of Mary 7th-8th 1940 was an excoriating assault on the conduct of the war; from the Labour benches Aneurin Bevan and from the Conservative ones Lord Winterton - the duo dubbed "Arsenic And Old Lace" - harried Ministers; the Yalta debate of March 1945 gave the Coalition Government one of its worst experiences. And none of these were in Secret Session. The flame of Democracy was kept blazing, even in our nation's darkest hours. These achievements should not be forgotten. Since I first entered the service of the House of Commons in 1955 it has been greatly plagued by "reformers". The worst offenders were Richard Crossman and Norman St John Stevas. Perhaps the fact that they were intense admirers of Bagehot may be the explanation for their reforming ardour. The balance of historical judgement must be in favour of Crossman, because he eventually failed. The introduction of morning meetings of the House was a fiasco, and his proposals for Lords Reform were destroyed by speeches of withering contempt from the improbable but immensely effective combination of Enoch Powell and Michael Foot. But he did, unhappily, hugely increase the number of Committees. It must be said in mitigation that this was then the current fashionable approach, to which even the normally sensible Hansard Society succumbed. There

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was excessive admiration for the American Congressional Committee system that was not fortified by any understanding of its deficiencies and the wholly different nature of the Congressional relationship with the Executive. This development was also a reflection of the swiftly changing nature of the membership of the Commons. In 1955 no MP who was not a Minister or a very senior Member with important responsibilities - such as the Chairman of the Public Accounts Committee - had an office in the Palace of Westminster. Very few had a full-time secretary, or needed one. My own Dorset MP replied to his constituents' letters by hand, and one very experienced Member told that if he received six letters in a week he knew that serious trouble was brewing. By modem standards, the number of Parliamentary Questions was minute. The Prime Minister came on at Question 45, and was quite often reached. The legislative programme was relatively modest, and as a result far better drafted, debated, and considered in Committee. A Three Line Whip was so rare that it denoted a major crisis. The Recesses were long, although the old Labour war-horse Chuter Ede still publicly lamented that the House did not rise for Ascot Week, as in the good old days! This should not be interpreted as demonstrating that Members in those days were idle. They were not, and attendance in the Chamber was far better than now. That was the place that mattered. The few Committees there were worked hard and thoughtfully, the Public Accounts and Estimates Committees being the best, most respected, and reported, although the legislative Standing Committees - such as that on the pioneering Clean Air Bill - were equally formidable. (The great exception was The Scottish Grand Committee, the best argument yet devised for Devolution.) But the number of MPs who could be described as career politicians was small, and they could be easily identified. The concept of rather ill-paid public service (although £1,500 a year in the 1950s was a very reasonable income) was still strong in all Parties. Overt personal ambition was a sure road to unpopularity and suspicion. Within 10 years much had changed, and was to change further. The advent of the professional politician in ever-increasing numbers transformed the character of the Commons dramatically. They had to be kept busy: hence the huge increase in Committees, official foreign travel - virtually forbidden in my day - and back-bench all-party groups. They agitated for better pay and allowances - and offices. Another phenomenon had been the enormous

increase in constituency correspondence and work. Attlee, who hardly ever went near his constituency, any more than Churchill did, was shocked to discover that many Labour MPs not only went to their constituencies regularly but actually held things called "surgeries". (One of the intriguing things about Crossman's Diaries is how seldom he went to his Coventry constituency, even in General Elections, but he was one of the last of those who could get away with it. Lloyd George never even opened, let alone replied to constituents' letters; characteristically, he did so "on principle".) When I was elected in December 1976, having been out of the House for 11 years, I seriously wondered if I needed a full-time secretary, or even an office. I very quickly found that I needed both, although my "office" consisted of a tiny room shared by five other colleagues; in this bedlam of ringing telephones and loud voices I tried to cope with my unexpectedly large constituency mail, which amounted to several hundred letters a week. It so happened that I enjoyed constituency work, but for the next 16 years I often wondered whether the inordinate time involved in this aspect of the job was not disproportionate, especially at times of national or international crisis, and particularly as so many problems were the responsibilities of the local Council and its officials, marriage guidance counsellors, or even psychiatric experts. This development, so essential to any hopes of reelection, occupies time and energy that should be devoted to the real job of the back bench MP, which is to examine legislation properly and to hold the Executive to account for its actions and decisions. The "good constituency MP" is the one who commands respect at Westminster and in Whitehall, and not in appearing constantly in the local media visiting old people's homes and opening bazaars, but this is not the new perception. Other things had changed, also. I found myself surrounded with highly ambitious blatant careerists, anxious for preferment, and eager not to cause any offence by any example of independence of mind or action. This caused few problems in Opposition, but many in Government. The obsequious got on; the critics, however justified their case, definitely did not. It struck me how delighted the Whips would be at this situation, and how it diminished the role of the MP. Since May 1st it has got noticeably worse in the Labour Party, with the catch-all "bringing the Party into disrepute" clause, but it can be regarded as a logical process with a predominantly careerist Parliamentary Party, most of whom are dependent upon their Parliamentary salaries. To my great regret this contagion seems to have spread to the Conservatives. When I was elected the Parliamentary salary was

SOME THOUGHTS ON PARLIAMENTARY REFORM £6,000 a year, with a quite inadequate secretarial allowance. With a young family to feed, clothe, house and educate this was impossible, and it was essential to have outside interests and income. I was fortunate in that I had a job already, as a consultant to MasseyFerguson, and was to obtain another, with Allied Breweries. These were openly stated, and no one considered it at all reprehensible. Indeed, I considered that my experience in business made me a much betterinformed MP than I would have been, both in the Commons and in my constituency. I should perhaps add that I never made a speech, or tabled a Parliamentary Question, on behalf of these companies, and was never asked to. I did from time to time take up particular issues of concern to them with ministers - Labour as well as Conservative - making my position clear as a consultant, and was invariably treated sympathetically. Unhappily this relationship was subsequently grossly abused by certain MPs - not confined to one Party, it might be added. Although the Parliamentary salary and allowances are now far more realistic than they were, this has the disadvantage of making MPs even more cautious about operating as public servants. Any sign of independence is denounced as disloyalty to The Leader, and the penalties can be dire. When one recalls how narrowly Churchill avoided losing the Whip and being deselected for Epping early in 1939 the perils of this course can be appreciated. Labour is, naturally enough, haunted by its own past divisions and turmoil, and was a fascinated onlooker of the Conservative ones in the 1992-7 Parliament, but in my view has seriously over-reacted. A cowed and docile Party is not necessarily a successful one. And Party loyalty to deeply unpopular policies is by no means a guarantee of re-election. Indeed, the Conservative rebellion against the much-hated Poll Tax was based upon the realisation by many MPs that this could electorally doom them, and was the ultimate reason for the downfall of Margaret Thatcher. My other initial impression of my fellow-MPs, strongly confirmed by later experience, was that there were too many of them. I did not add to my stock of popularity by introducing a Bill limiting their number to S00, and raising the average constituency electorate from 65,000 to 100,000. On this I was on strong ground, as until the Boundary changes of 1983 I had represented 100,000 electors; when it was cut to 65,000 I found no difference whatever in the constituency work. Francis Pym had exactly the same experience. But 150 of my colleagues did not relish being abolished, and my simple Bill never got beyond First Reading. The Parliamentary Press

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considered that I was courting political suicide - but I still think that I was right. Another inhibiting factor is the Parliamentary Pension. Unlike in other legislatures, including Canada and Australia, this is based on years of service, and is contributory. Other Parliamentary pension schemes are non-contributory, are infinitely more generous - some would say lavish - and do not take into account length of service. A one-term MP receives the same full pension -tantamount to full pay for life, with allowances - as a long-serving one. The result here is that too many MPs go on much too long for their own and everyone else's good simply to collect a better pension. It is very human, but gives the Party authorities, locally as well as nationally, even greater power over the Member and his or her family, especially as the Widow's pension is even more contemptibly meagre. Also, it is now very difficult for most ex-MPs to return to their previous occupations or professions, or even to get a serious job of any kind. The fact that this is now well known has already acted as a major disincentive to younger and middle-aged people with successful careers and families to support going into politics at all. What has always been a hazardous occupation has been made even more so by introducing the prospect of financial ruin - which has happened to many of my former colleagues of all Parties, and their families. There was a time when outside interests and incomes, properly recorded, were not only necessary in many cases, but were positively encouraged. That climate has completely changed, and the situation has been made infinitely worse by the somewhat panicky establishment of the Nolan (now Neill) Committee on Standards in Public Life and the Commons Committee that is effectively run by Sir Gordon Downey. There is a certain irony that the Labour assault on alleged Conservative "sleaze" is now giving it serious problems, but the fact is that these initiatives were wrong in conception in the first place, and were then compounded by the appointment of the wrong people. To be fair to Downey and Nolanl, both very distinguished men, they were given invidious, and perhaps hopeless, tasks. The new arrangements were a hasty and wholly ill-considered response to Press and Opposition clamour for extra-Parliamentary adjudicators. The result has been chaos, confusion, and in one case at least - that of Neil Hamilton - possible injustice, and this throws into serious question the whole system of invigilation. It can be argued that these draconian methods of supervising - indeed policing - MPs by distinguished

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outsiders were necessary in view of the failure of the self-regulatory mechanisms in several instances. My own view is that they were not necessary, that the number of cases of bad conduct was very small, and that they have created a climate of fear among MPs that is thoroughly bad for the House of Commons. The Register of Members' Interests has become a farce, and the entire process has acted as further disincentive to able people without independent means to contemplate standing for Parliament. The cure, in short, has done nothing seriously to inhibit the dishonest politician and those who, on excellent legal advice, sail very close to the wind, and have done much to add to the worries of the honest ones. The other element that has totally changed is the relationship between MPs and the Media. This has always contained adversarial elements, and quite rightly, but the balance of power and wealth has now moved so strongly in favour of the Media that this is a serious cause of concern. If the character, nature, and backgrounds of MPs have changed, those of the political journalists have done so beyond recognition. It may be that many of the old Lobby Correspondents were too deferential, too much members of the same club, but they respected confidences, and they and their editors commented on politicians' public lives, not on their private ones. Today the emphasis is quite the reverse. There are some outstanding exceptions to this dismal rule, but they are becoming significantly fewer. The recent brouhahah about the activities of a son of the Home Secretary would have astounded, and appalled, the previous generations of Lobby and political correspondents. The conduct of his Office, for good or ill, would have been their concern, not his family problems. The "right of the public to know" about the private lives of people in public life is a new concept. It was well known that Lloyd George's private life was fairly lurid, as were those of the young Disraeli, Palmerston, Driberg, James Stuart, Bob Boothby, Duff Cooper and even supposed figures of probity such as Herbert Morrison, Emest Bevin, Aneurin Bevan and Philip Noel-Baker. Many of them also drank rather more than they should have, and Asquith was not known as "Squiffy" for nothing, while RE. Smith's consumption was legendary. But, like President Roosevelt's polio, and the voracious sexual appetites of Presidents Kennedy and Johnson, these matters were given no publicity whatever. Today, few erring politicians in this country could escape the blaring headlines, the posse of photographers and shouting journalists on the doorstep, and the howls

for resignation. As always, the minnows fare far worse than the big fish, and especially the rich big fish, Robert Maxwell being a good example of the latter. In retrospect, I was right to be very doubtful about the proceedings of the Commons being broadcast on radio, with no control over editorial decision about extracts, and was wrong to vote for televising them. The apprehensions that these would totally change the character of the House and drastically lower the quality of debate have proved fully justified. Except on very rare occasions debates are not reported, either on television, radio, or in the Press, at all. We only have brief "soundbites", carefully prepared and orchestrated. Politics have become part of the entertainment industry. It is now far more important for ambitious politicians and Ministers to become celebrities than competent administrators or diligent and conscientious Members of Parliament. We have absorbed in this, as in campaign financing, the very worst aspects of American politics, where the medium is the message and money is everything. The vast sums now spent by the principal Parties nationally in the run-up to General Elections, and in the Elections themselves, are another highly unpleasant novelty that I deplore. Much of it - private jets, helicopters, expensive poster campaigns, ludicrously costly PR so-called experts, the latest computer and other technology - is probably unnecessary in any event, but it is the cost that is so staggering. And that money has to be raised. Thus Party fundraising, at the national level, is not an amateur sport. It is a ludicrous situation when the candidates' expenses are strictly limited and those of the main parties are not. This seems now to be generally recognised, and action may be forthcoming. But this is a very murky area, and as the American experience demonstrates even strong legislation can be quite easily evaded. I am not convinced that Lord Neill and his colleagues are fully equipped to provide the answer. One neglected area has been that of Members' allowances. These can be, have been, and are used for Party political purposes and for augmenting the family income by employing spouses as secretaries and other devices. One notable area for abuse is the fuel mileage allowance, it being virtually impossible to detect whether the fuel has been consumed on constituency or private driving. Not so long ago there was an MP whose mileage claims were so phenomenal that the Fees Office made some enquiries, which revealed that the Member not only did not own a car but did not even have a driving licence! I suggested to the Nolan Committee that this is a subject ripe for examination and careful monitoring. In

SOME THOUGHTS ON PARLIAMENTARY REFORM particular, the use of public funds for financing constituency party offices and staff, which is now a quite regular practice, should be banned. Another entirely modern feature of the Commons has been the extraordinary proliferation of research assistants for Members - again, paid for out of public funds. They clutter the place up, and their value to a serious back-bencher is negligible. I never had one, nor needed one, the Library's superb Research Department being prompt and highly efficient. The only discernible impact of these undesirables has been in the vast proliferation of Written Questions - another totally unnecessary burden upon Whitehall and the taxpayer. An exception can be made for the official Opposition Parties, but the answer here is for the "Short money" to be significantly increased. Public financing for research assistants to other MPs should be terminated.

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believe are overwhelming, apply less strongly to regional and European Parliament elections because of the sheer size of the electorates. Indeed, I voted for PR for the European elections in 1978. But the perils of the Party List system remain, and this is something that I hope the Jenkins Commission will take seriously. I am certainly not claiming perfection for the present arrangements. Many years ago I described the selection of Parliamentary candidates by local Associations as "the weakest link in the democratic chain", and so it remains. It was because of the recognition of this fact that the Labour Party now has the power to reject and even impose candidates, and not only for by-elections. The Conservatives have always had these powers, but the fierce independence of their Associations to choose their own candidates has resulted in them falling into disuse. They are now re-examining their procedures, but I suspect - and hope - that they will hesitate to introduce centralised selection.

Method of Election It is highly unfashionable to stand up for the "first past the post" electoral system for Westminster elections, but I do so, and not least because advocates of Proportional Representation and the Single Transferable Vote have yet to explain why the former has been a disaster in Israel and New Zealand, and the latter was a rather splendid farce in the case of the former University seats, as devotees of A.P. Herbert's "The Ayes Have It" will recall. PR enthusiasts claim that it has been very successful in post-war West Germany - conveniently forgetting that it was something less than a democratic triumph in the final spasms of the Weimar Republic and the rise of the Nazi Party in 1931-33. The German model of partconstituency elected, part "list" elected, produces two types of representative - one with a constituency and constituents, the other without either. This is at least better than the Israeli system, in which no Member of the Knesset has a constituency or constituents, and the Party machines nominate, and dominate, the list of candidates. The recent alteration, whereby the Prime Minister is directly elected, has resulted in an even more lamentable situation. PR has several massive disadvantages and dangers. It can give unpleasant minorities - and here the Israeli and Weimar Republic examples should be recalled - quite disproportionate influence. It ends the personal link between the MP and his or her constituents. The list system gives too much power to the Party leadership, and greatly increases the already formidable control of the Party over the individual who wishes to be a candidate. And it seldom delivers a clear-cut result. These objections to Westminster elections, which I

Procedural Reform Here again, caution should be exercised. At the beginning of every new Parliament new MPs are baffled, frustrated, and bewildered by the unwritten rules and conventions of the House and its procedures and call noisily for change, but it is remarkable how quickly they not only grasp them but appreciate their importance. One experiment that has definitely proved a success is that of having a Select Committee-type preliminary hearing on a Bill, taking evidence from witnesses, before the Standing Committee stage. This can only be used on a selective basis, but it worked very well on the Matrimonial Causes Bill on which I served (as did Tony Blair) and I regret that it was not used in the case of the Licensing, Copyright, Television and Children and Young Persons Bills, all of which I chaired. The lastnamed in particular might well have avoided some grievous mistakes if Members had been more vividly aware of the implications of some of the clauses. It is better that special interest groups, especially on major social legislation, should have their opportunity to put their own cases openly and publicly before Committees rather than briefing members of the Committee to put them on their behalf. This procedure also greatly reduces the private pressures and lengthy correspondence and paper-work imposed upon Members of Committees by these groups. As this procedure can prolong the examination of a Bill Ministers tend to be unenthusiastic about it, but in my experience it does not greatly extend the amount of time in Committee, and is of real benefit to its members. It could not, obviously, be used for highly contentious party political legislation, with all the opportunities for

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filibustering and delays, but there is always legislation that - as in the cases mentioned above - transcend party politics, and often have a far greater impact on the lives of the people than more dramatic and heavily partisan Bills. In view of my earlier strictures on the proliferation of Committees this recommendation might seem inconsistent, but my criticism of the Crossman and Stevas "reforms" - for which I did not vote - was that they diminished the value and effectiveness of the fewer previous ones. And Stevas's abolition of the old Estimates Committee was a grievous thing to have done. The "Departmental" approach essentially fails because few subjects are the sole responsibility of one Department. The fact is that close and careful examination of legislation and regulations is one of the key roles of Parliament. It is unglamorous, carries with it little or no publicity or media attention, but remains the most powerful and influential curb upon the Executive. It is a rather sad commentary on the present condition of the Commons that this vital function falls increasingly upon the House of Lords. The House of Lords It is salutary to reflect that in 1907 Lord Newton, a Conservative, proposed the reduction of the number of hereditary Peers and the introduction of Life Peerages. The latter proposal appealed greatly to King Edward VII, but, as was to happen often afterwards, it appealed neither to the conservatives nor the radicals. It took 50 years before Life Peerages were introduced, and Newton's proposal - supported nearly 70 years later by Lord Home - still hangs in the air. The Newton proposal was that there should be a limited number of hereditary Peers elected by themselves, thereby preserving the best of the hereditary tradition and value of the ablest and most conscientious hereditary Peers. It made sense then, and still does now. A House of Lords entirely nominated by the Party leaders is not only an infinitely depressing prospect the "super-Quango scenario" - but would make it a somewhat elderly one. One of the strongest cases for the hereditary Peers is that many of them are young. Another is that many of them are people of experience and knowledge with no political affiliations. It is not the case that they are all "backwoodsmen" Tories. One of the most interesting developments in the recent history of the Lords has been the importance of the Cross Bench Peers. The fact that the Whips of the main Parties dislike this development emphasises its value to Parliament With Independent Members virtually an extinct species in the Commons, for reasons I

have already given, the value of this influential grouping is all the greater. The idea that the Lords should be either wholly or partially elected has clearly not been thought through. An elected Upper House would not be content with its present limited powers. It would also want to be paid. If it were dominated by a party hostile to that elected to the Commons we would be presented with a political and perhaps Constitutional crisis. An unelected House of Lords is perforce cautious in its dealings with an elected Government with a Commons majority. An elected one would be unlikely to entertain such inhibitions. Above all, it would become a political Assembly, and thereby destroy the real importance of the Lords' nonpartisan and objective quality. There would be no room for eminent academics, lawyers, businesspeople, scientists and industrialists - let alone for people like Yehudi Menuhin or Sue Ryder - who have much to offer but who are not remotely "political". That is their strength. What is certainly needed is an entirely new system for the recommendation of Peerages. The Honours Scrutiny Committee is virtually - although not totally - impotent. It receives recommendations from the principal parties, and its task is simply to accept or, on rare occasions, to reject them. It has no power of initiative. Simon Jenkins has recently suggested in 'The Times" that there should be a special body to advise on all Honours. This would be a Gargantuan task, and a ludicrous one. How could such a body effectively check up upon whether Mrs Snooks, schoolmistress and charity worker, is, or is not, worthy of an MBE, or Major Snodgrass of the Royal Engineers deserves to receive the Military Cross? It would require an FBI kind of check-out, which are notoriously ill-judged and incompetent. But the proposal makes considerable sense in the case of recommendations for the Lords, because major Honours involve The Queen, and it is here that the Peerage issue becomes important. Such a body should be essentially non-political, although it could of course receive recommendations from the political parties. Its purpose would be to ensure that other people of merit and achievement, with no party affiliation, could be included. What has struck me during my researches in the papers and diaries of King George VI was his intense interest in Honours, and his questioning of his Prime Ministers on the really important ones. They were, after all, to be given in his name. When the New Zealander, Captain Charles Upham, was recommended for a bar to his Victoria Cross the King summoned his commanding officer to justify this quite exceptional award. He became convinced that it was.

SOME THOUGHTS ON PARLIAMENTARY REFORM Both Churchill and Attlee took the King's opinions very seriously, and discussed names and qualifications in some detail. Thus, when Churchill, rather casually, offered a Peerage to his old friend and adversary Josiah Wedgwood on Attlee's suggestion, neither had realised, or had forgotten, that Wedgwood had been divorced and that this fact would loom rather large in the King's reactions to this recommendation. Eventually the King withdrew his objection, but only after the full Cabinet had considered the matter and had agreed that it must not be a precedent. It was Attlee who willingly agreed that appointments to the Knighthoods of The Garter, Thistle, and St Patrick should be, as in the cases of the Order of Merit, the Royal Victorian Order and Lords and Deputy Lieutenants, in the Royal gift, and not on the advice of the Prime Minister of the day. These appointments are considered with immense care by The Queen and her advisers. It may explain why they are the most valued. But on Peerages, many modern Prime Ministers, including the sainted Gladstone, have used them for selfish and often tawdry reasons. Some of the results have been splendidly comical but others have been demonstrably lamentable. The exposure of the Lloyd George Honours scandal in 1923 has not had quite the salutary effect that had been expected. Something more positive than the Honours Scrutiny Committee is required. My principal conclusion is that we require a smaller Parliament, with a maximum of 500 Members in each House. In the case of the Lords I consider it quite unreasonable to expect people to undertake important public service without payment, and I propose that the daily attendance allowance should be substantially increased and converted into a salary. The self-elected hereditary Peers should not exceed 150. A new body should be established for receiving, and making, recommendations to The Queen for Life Peerages. The present arrangements for the Law Lords and Bishops should be maintained. The maximum membership of 500 is specifically designed to prevent any Government changing its composition to its advantage by a mass creation.

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The present powers, procedures and rights of the House of Lords should not be changed - nor its traditions and methods of debate, although perhaps consideration could be given to changing the somewhat strange Introduction rites of new Life Peers, which only date from 1958. The Commons should consist of 500 Members, directly elected from constituencies of approximately 100,000 electors, the Boundary Commissioners still having discretion for those that cover large areas but with small populations. They should also consider the serious overrepresentation of Scotland in the Westminster Parliament, especially in the light of the new Scottish Assembly. In view of the new Nolan proposals, endorsed virtually unanimously by the last House of Commons, the salaries of MPs should be significantly increased, and the system of allowances reviewed. Pensions should not be based upon years of service and final salary but available to all ex-MPs for life (unless they are re-elected) and should be substantially higher, as should those for widows and spouses of deceased Members. Thought should be given to the reduction of the number of Select Committees, but also to their greater use for legislation. The "Departmental" Select Committees should be replaced by the former Estimates Committee. There should be no significant changes in the procedures, customs, and traditions of the House of Commons. Most important of all, the political independence of the Office of Speaker should be rigorously maintained and respected (with the awful example of the Australian Parliament as a warning and a lesson of what happens when it is not). A smaller and more efficient and much better rewarded Parliament would not necessarily attract a higher quality of candidate, but it would certainly remove many of the present deterrents to men and women of ability. The Lobby should not hesitate to use its powers of exclusion - nor the Serjeant at Arms on the instruction either of the Speaker or the House itself - in cases of blatant abuse of the privileges of the Lobby. The maxim should be Reform, not Revolution.

13 THE TAYLOR REFORMS TO COMMONS BUSINESS AND REFORM OF THE HOUSE OF LORDS RT. HON. ROBERT MACLENNAN MP*

INTRODUCTION In 1996 the Liberal Democrats published "A Parliament for the People", a policy paper outlining proposals to reform the House of Commons. In it we summed up the mood of the time concerning Parliament and its effectiveness: "Dissatisfaction with the working of the House of Commons is widespread. To many people the Commons is an anachronistic, inept and unresponsive institution. Members of Parliament are generally held in low esteem, while commentators draw attention to the 'overload' of responsibilities heaped on to MPs. There is a substantial and unacceptable gender imbalance in the Membership of the House. In other ways it is not fully representative of the community. Legislation is often defective and too often the citizen is not consulted and left dissatisfied. The House of Commons is perceived to lack independence of the executive and is, therefore, inadequate as a forum of the nation."1 Since the General Election of 1 May there has been some improvement in the public perception of Members of Parliament. But many of the problems identified in our 1996 analysis are still prevalent. The absence of a written constitution of the United Kingdom, setting out the principles and allocating the functions for the exercise of public power, causes those charged with maintaining the utility of Parliament to focus on its most obvious weaknesses rather than to ask themselves if what is needed is a new model. In the future the functioning of Parliament may come to be defined by the powers which it has not * Member of Parliament for Caithness and Sutherland since 1966. Liberal Democrat Spokesman on Constitutional Affairs. 1 A Parliament for the People: Proposals to Reform the House of Commons, Liberal Democrat Brighton Conference September 1996, Policy paper 20.

given away to subordinate legislatures or to European institutions. Two generations ago Lord Hemingford, a former deputy speaker of the House of Commons, wrote a useful little book entitled "What Parliament Is and Does". If Parliament becomes the place which only does those things which no one else can do better, it will do a lot less than it does today. It is hard to see how such a parliament, in a world in which subsidiarity rules, could continue to be the sole fons et origo of executive power in the United Kingdom. Perhaps the prospect of the gradual dispersal of legitimate power will concentrate parliamentary minds wonderfully. Perhaps before the Scots, the Welsh and the Ulstermen begin seriously to question the necessity for Westminster, Members of Parliament will look for a coherent federal model for the UK Parliament. The mood of Parliament and of those political parties which are embarked together on the course of reform, is ambivalent about the process. Some MPs recognise that change is inevitable but justify their minimalism as evolutionary. The proponents of wholesale reform fear that the moment may pass, that the "Great Departments of State" will subsequently have decided what they want to do with the legislative time which is theirs to claim and may in consequence monopolise that time to the detriment of reform. It should be noticed, however, how widely the responsibility for reform has been spread across the departments. There is not just one constitutional supremo who might irritate or bore the rest of the cabinet into calling a halt. The Prime Minister has charged at least a third of the cabinet, and senior members at that, with departmental responsibility for a lead role. The complicity of colleagues has been assured by direct and collective involvement in the reform process.

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THE TAYLOR REFORMS TO COMMONS BUSINESS Before the election Liberal Democrats and members of the Labour party realised that they shared a desire to reform the constitution in general and Parliament in particular. The Joint Consultative Committee on Constitutional Reform (JCCCR), chaired by Robin Cook and myself, issued a declaration in which we affirmed that "renewing Parliament is key to the wider modernisation of our country's system of government... it is right to consider whether it does its job well and to suggest improvements that can be made which will enable it to become a more effective legislature".2 We agreed that Parliament was failing to do its job both as an effective law making body and as a check on the executive. Labour and the Liberal Democrats therefore agreed to set up a special select committee on modernisation of the House of Commons. In a speech in the House on 22 May 1997 the Rt. Hon. Ann Taylor, the Leader of the House, identified the four themes in her plans to modernise the House of Commons. These were: first, the legislative process; secondly, parliamentary accountability; thirdly, members' work patterns, and fourthly, the style and forms of parliamentary proceedings. The current wave of changes to Parliament is not so much reform - that might require a new model - as a cleansing of the Palace of Westminster, an examination and piecemeal replacement of the parts that are seen to be unfit for their purpose. The "reform of Parliament" has to be seen as a modest, discreet but worthy item in the substantial current agenda of constitutional reform. There is little attempt to reconsider the role of Parliament and how that role will be changed by, on the one hand, the devolution of power to Scotland, Wales and the English Regions, and, on the other, the status of the United Kingdom within a "deeper" European Union. An upshot of this constitutional myopia is the absence of any consideration of the greatest constitutional dogma of them all, the doctrine of the sovereignty of Parliament. As we are looking at the reform of Parliament and not just the Taylor Reforms to Commons Business, this paper is divided into three broad categories: • the reform of the legislative process • the reform of the relationship between the executive and the legislature, including reform of the House of Lords • the reform of Parliament as a working environment and the oversight of its members. 2

Report of the Joint Consultative Committee on Constitutional Reform, paragraph 64.

Part 1 The Reform of the Legislative Process The House of Commons must scrutinise legislation on behalf of all the people, including minorities, and hold Ministers fully to account for the secondary legislative powers Parliament has given them. The Joint Consultative Committee on Constitutional Reform recommended a series of proposals to modernise the legislative process in the House of Commons: 66. The parties' priorities for modernising the House of Commons are: 67. • to programme parliamentary business to ensure fuller consultation . . . 68. • to improve the quality of legislation by better pre-legislative consultation and the use of mechanisms such as the special standing committee procedure where evidence is taken before legislation is passed. The Modernisation Committee published its first two reports in July 1997. The subject of the First Report is the legislative process. The Committee recommended a number of procedural experiments. Its report covered many aspects of the legislative process from the prelegislative phase, through the various Parliamentary stages, to post legislative scrutiny. In particular it examined the programming of legislation (see paragraphs 57-66, and the recommendation in paragraph 89), the sessional bills, and particular types of legislation, such as the Finance Bill, constitutional bills, consolidation bills, Law Commission bills, tax simplification bills, private Members' bills, and European and delegated legislation.3 "The report on the legislative process lays down the principles which should govern how the House scrutinises legislation and recommends changes to make the process more effective. The progress report published proposals for changes to the Order Paper, and refers to short-term changes in voting procedures already introduced."4 The key recommendations of the Committee's report were that: • the political parties co-operate to programme the passage of legislation through the House to provide an alternative to the present choice of voluntary agreement or the guillotine. • the opportunities for pre-legislative consultation and scrutiny should be increased. • the explanatory material published with bills should be written in plain English. 3 Parliamentary Reform: the Commons "Modernisation" Programme, House of Commons Research Paper 97/107,28 October 1997. * Committee's press notice, no. 3,1997-98,27.7.97.

THE TAYLOR REFORMS TO COMMONS BUSINESS AND REFORM OF THE HOUSE OF LORDS • better use should be made of the Committee stage of a bill, including allowing Standing Committees to debate the principle of a clause before amendments to it are considered, rather that the other way round which is the current practice. • all Committees of the House should be able to sit during the Recess. • there should be more flexibility in the Parliamentary cycle so as to allow some bills to "roll-over" from one session to the next.5 The report was published unanimously and welcomed by the Liberal Democrats as a constructive piece of work. It incorporated much of what we have been advocating for a number of years. There are, however, issues within the sphere of the legislative process that the Modernisation Committee has not yet addressed. The government's decision to publish seven bills in draft will facilitate consultation with those affected. But consultation needs to be introduced on a more systematic basis, so that it can be monitored, with all bodies likely to be affected or who show concern, on all proposed bills. The Committee has shown willingness to involve committees of the House more deeply in the scrutiny of legislation. Members of Parliament will need to make the most of these powers and ensure that they examine some bills in special committees before the second reading, spend more time after the second reading of a bill taking evidence before debating and deciding on amendments and give constitutional bills particularly careful scrutiny with prior examination in many cases by a pre-legislative committee. The Modernisation Committee's report is vague on the subject of constitutional bills, being content to describe the status quo. The main issues of principle should continue to be debated by a committee of the whole House, but the more detailed provisions could be sent to standing committees and select committees with powers to consider evidence. The Private Member's Bill is another subject which the Modernisation Committee has shifted to the back burner. Liberal Democrats have criticised the present procedures for Private Members' Bills in which important bills, supported by a majority of MPs, can be blocked by Ministers or by organised minorities to deny adequate debate or a vote. We would: • Review back-benchers' rights and opportunities to initiate and secure debate of private members' bills. Time-tabling should be used to ensure that, provided there had been adequate discussion, votes are allowed on all private members' bills debated in the House. 3

Parliamentary Reform, p. 18.

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• Provide opportunities for the House to debate and vote on bills prepared by select committees. • Provide opportunities for back-benchers to introduce bills initiated by citizens' petitions presented to the House. It may be countered that were the Modernisation Committee to take on board all the suggestions that Liberal Democrats and others have made about not only UK primary legislation but also European Union and secondary legislation, the amount of time the government would have to push its legislation through the House would be severely limited. However, given proper time-tabling and committee sessions during the Recess much more could be done with the amount of time available. Nor should it be thought that pushing bills through is the best way to make effective laws. The high-handed techniques used by the Conservative party to drive legislation through the House ultimately wasted time as shoddy statutes needed to be amended. The Modernisation Committee has rightly chosen to concentrate on the quality and not merely the quantity of legislation produced by Parliament. Part 2 Reforming the Relationship between the Executive and the Legislature (a) The House of Commons and the Government The Scott Report on Arms to Iraq re-emphasised the central role that the House of Commons has in holding Ministers to account. Since the beginning of its administration, Mr. Blair's government has worked with the Liberal Democrats on issues related to the Legislature's relationship to the Executive, these include Freedom of Information legislation and Parliamentary oversight of Non-Departmental Public Bodies (QUANGOs). The government changed Prime Minister's Question Time following recommendations of previous Procedure Committees. Liberal Democrats welcomed that change from two 15 minute sessions per week to half an hour on Wednesday as allowing more questions to be heard. However, the element of media circus that disfigured the old Prime Minister's Question Time has not disappeared. The Modernisation Committee have, so far, only touched lightly the area of parliamentary accountability. The Modernisation Committee admits that the House's financial procedures, including the treatment of the Finance Bill, require major study.6 It has thus left out the consideration of the Finance Bill to a later stage in the Committee's life. Liberal Democrats have made a 6 The Legislative Process, First Report of the Select Committee on modernisation of the House of Commons, 23.7.97, paragraph 73.

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study of the House's financial procedures and we have proposed a number of reforms. Among other reforms, we would: • Change the arrangement of business to avoid concentrating too much financial business, debated under the unified Budget, at one time of the year (this would be helped by abolishing annual sessions), with these debates being shortened to allow more financial debates on later occasions. • Introduce an annual Tax Management Bill to deal with the more technical and less political or revenueraising provisions at present contained in the Finance Bill. This would shorten the Finance Bill and enable MPs to give thorough scrutiny to the more complex aspects of fiscal legislation. • Make Budget debates cover the balance between expenditure and taxation and conclude with votes on the optimum level of Government borrowing and taxation for the forthcoming year. There would also be votes on the planned totals of Government expenditure for each year of the expenditure programme. • Introduce short debates and votes on the planned totals for all the services, taken as a whole, following reviews by the departmental select committees. Amendments to increase the totals for some services would be allowed providing the same members proposed compensating reductions on other services. This would enable the House to consider expenditure options and opposition parties to propose alternative expenditure programmes. The Modernisation Committee has indicated that it will consider the matter of European legislation and UK delegated legislation (secondary legislation) following the government's response to the reports of the European Legislation and Procedure Committees. This is welcomed as the present arrangements for the debate and scrutiny of secondary legislation are inadequate, allowing changes in the law affecting many people to go through either without any debate or without attention to the details of the law. Liberal Democrats have long wanted to reform the way with which secondary legislation is dealt. We would: • Require systematic and monitored consultation on major items of secondary legislation (as is now adopted for deregulation orders under the Deregulation and Contracting Out Act of 1994). • Make more systematic arrangements to ensure debate, in committees, of secondary legislation which the Opposition parties or back-benchers wish to consider. • Ensure that evidence from affected people is heard on important instruments of secondary legislation and

that more time is allowed for debates leading to votes on their merits. (Procedures for parliamentary scrutiny of deregulation orders could be extended to all major delegated legislation.) There is still a great deal to do to make sure that Parliament can hold Ministers to account. It is hard for the Commons to force the executive to adopt a particular policy or change a decision. This is reasonable given that it is the role of the government to govern. However, Parliament represents all the people - not just the views of a sizeable minority, the governing party of the day - and therefore it should be easier for backbenchers or Opposition parties to bring a matter of government policy or action to a debate or a vote in the House. It is essential that, even if there cannot be a vote, Ministers are required to explain their actions and decisions and defend their policies, either in the House or before one of its committees. The Departmental Select Committees have achieved much but further reforms are needed to strengthen this accountability and the parliamentary scrutiny of the executive. We Liberal Democrats have framed our attempts to strengthen parliamentary accountability in a draft constitution for the United Kingdom.7 We would: • Reduce the proportion of Ministers in the Commons, and aim for a limit of 10% of Members being paid as Ministers who are therefore not free to vote against the government. • Aim to transfer certain powers, at present exercised under the Royal Prerogative, to the House of Commons itself, including, in accordance with the procedures to be devised by the House, the appointment of a Prime Minister. • Provide that Parliament would only be dissolved, and a general election called, either at the end of the four year fixed term of the life of the Parliament or following the passage by the House of Commons of a constructive vote of no-confidence (i.e. that a government would not fall unless a majority of the House vote in favour of an alternative). This would mean that the House of Commons could impose its will on the government defeating it on legislation and other business without risking a general election. (b) Reform of the House of Lords The reform of the House of Lords has been a long 7 The Reform Bill 1997: A Bill to Reform Parliament and the voting system, to provide home rule for Scotland, Wales and the Regions of England and to secure human rights and fundamental freedoms; and for connected purposes. 19.9.1997.

THE TAYLOR REFORMS TO COMMONS BUSINESS AND REFORM OF THE HOUSE OF LORDS standing goal of both the Liberal Democrats and the Labour Party. Liberal Democrats have considered reform of the Lords as part of a coherent programme which would create a written constitution for the United Kingdom. In the report of the JCCCR it was agreed "that there must be legislation to remove the rights of hereditary peers to sit and vote in the House of Lords". It was also agreed to maintain the percentage of crossbenchers, and to create opportunities for those hereditary peers who are active in politics, such as Earl Russell, to continue to serve in the new upper chamber. As to the future of the Lords, we also recommended that, following the removal of the hereditary peers' right to vote, a "joint committee of both houses should be established to bring forward detailed proposals on structure and functions for the later stages of reform within a limited time period. This body should produce recommendations for a democratic and representative second chamber." The government has set up a Cabinet committee, chaired by the Lord Chancellor, to draw up plans to reform the Lords. It is my view that it is not sensible to change the structure of the House of Lords without reconsidering its functions. The work that the House of Lords does in revising legislation is important. But there is no reason why a legitimate upper chamber could not also acquire new powers including some of those currently exercised by the executive under the prerogative powers of the Crown. These might include the power to make public appointments, to ratify treaties and to develop its work on overseeing European Union legislation. The legitimised upper chamber would be a suitable forum in which the interests of the nations and regions of the United Kingdom could be directly represented. The Liberal Democrats concurred in the JCCCR with the two stage phasing of the reform of the House of Lords then proposed by Labour. This was not least because of our recognition of the unacceptable domination of the Lords by the Conservative party secured by the hereditary presence. We would however prefer that the initial legislation be accompanied by statements of intent indicating the proposed ultimate shape and functions of the reformed upper house. Part 3 Parliament: the Place and its People Parliament is not simply the abstract core of British constitutional relationships. It is the people who inhabit it at any given time; it is also a place. The Modernisation Committee has signalled its willingness to tackle such issues as parliamentary ritual, the hours of work and the conduct of debates. There is much dead wood. There are many traditions which no longer serve a purpose other than to make the House seem vaguely

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comical. The tradition of wearing a top hat to make a point of order during a division could be abolished without great loss of dignity to Parliament. Other traditions, though at first sight curious, are still important. The necessity of addressing all remarks through the Speaker and referring to members by the names of their constituencies helps to defuse tension and produce more rational debate. The question of the funding of political parties, not taken up by the Nolan Committee during the run up to the General Election, will at last be tackled. Salaries, allowances and the funding of MPs staff all require further consideration to prevent abuse. The task of amending the criminal law to encompass directly the bribery, or attempted bribery, of Members of Parliament may remain. But the admission by MPs that they themselves needed an outside policeman in the person of the Commissioner for Standards was a significant step in the demythologising of the doctrine of parliamentary sovereignty. The appointment of the Commissioner also triggered off a process whereby Members of Parliament will have to keep under review the rules governing their pecuniary relationships with outside bodies. Lessons will have to be drawn from time to time from the findings of the Parliamentary Commissioner. The findings of the Commissioner, the result of a long inquisitorial process in the case of Neil Hamilton, unleashed a debate, as yet unresolved, as to the appropriateness and suitability of a parliamentary committee (the Select Committee on Standards and Privileges) sitting as a court of appeal from the Commissioner's findings.

CONCLUSION Much of what is currently passing as institutional reform, such as the reforms to the legislative process, is in fact reform of parliamentary culture. This culture has its roots in the unfair first-past-the-post electoral system which has strengthened the executive at the expense of the legislature and fostered crude adversarial behaviour. The introduction of a House of Commons elected by a system of proportional representation, would help the legislature to pry itself loose from the executive. If the government could no longer rely on numerical majorities which distort the aspirations of the citizens the ability of the Commons to hold Ministers to account would be greatly strengthened. A multi-party House of Commons, reflecting the multiplicity of opinions in the country, would inevitably have to change its timetabling procedures, voting procedures and perhaps the shape of the chamber. The current steps to modernise Parliament are incre-

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mental improvements to Commons Business which flow directly from events in the last Parliament, particularly from the work of the Nolan Committee and the criticism in the Hansard Society report on the reform of the legislative process. The true reform of Parliament would be the determination of the boundaries of Parliament's responsibilities and the burial of the doctrine of parliamentary sovereignty. We are still not looking at the big

questions which arise from introducing subsidiarity into our constitution. The current constitutional reforms do not imply a conversion to the separation of powers or a coherent framework for the dispersal of executive authority between different tiers of government. They do, however, mark a small step on the road to a justiciable written constitution.

14 THE REFORM OF PARLIAMENT: SOVEREIGNTY AND ACCOUNTABILITY BERNARD JENKIN*

Introduction The Conservative Party has always held a pragmatic view of parliamentary reform. On this issue we have always been guided by the conviction that Parliament the House of Commons and the Lords - is the principal and foremost institution of the British constitution. Our constitution is rooted in the notion that Parliament is sovereign. Reform of such an institution can never be taken lightly. The procedures and practices of Parliament have been built over centuries. It is important not to disregard the experience of previous generations.

The sovereignty of Parliament The idea of the Sovereignty of Parliament has become regarded as rather out of date in recent years, reserved for stuffy backbenchers and the inside pages of the Daily Telegraph. People assert, in a democracy, that sovereignty in the UK constitution resides in all sorts of individuals and institutions. But this is to misunderstand that, ultimately, the sovereignty of Parliament is also a political doctrine: as a society, we have decided Parliament shall be soveriegn. You do not need to deny the sovereignty of the people to support the principle of the sovereignty of Parliament. The sovereignty of the people is vested in Parliament. In any constitution, sovereignty is vested in the ultimate authority of that constitution. In the UK, even the judiciary is subject to that ultimate authority. Some judges may opine on where sovereignty resides, as did Lord Cooper in the First Division in the Court of Session in 1953, but ultimately, sovereignty resides where sovereignty has the means to sustain itself. * MP for Colchester North since 1992; a Conservative spokesman on Constitutional Affairs.

Legally, Charles I was undoubtedly sovereign in both senses, but he did not have enough soldiers. Until such time as Parliament loses the means to give effect to its sovereignty — European monetary union may lead to such circumstances - then Parliament remains sovereign. The reason it should remain so was obvious to previous generations. Without a written constitution, Parliamentary sovereignty was the only guarantee of liberty for ordinary citizens. In an age when we take democracy for granted, we should not forget that it remains our only guarantee of life, liberty and the pursuit of happiness - the foundation of our nation's stability and prosperity. In the US, the oath of office is to uphold the Constitution. We swear allegiance to the Queen in Parliament. The only argument for modernising this procedure is to ensure that everyone understands it better. Adversarial politics Moreover, we should not apologise for adversarial politics. PR and consensus, coalition and a horseshoe chamber seem attractive to some, but probably only because we don't have them. There is no evidence that coalition provides better government than a single party. Italy, and more recently, New Zealand rather suggest the reverse. The yah-boo of the House of Commons may be unedifying, but so are secret deals cooked up behind the scenes. Adversarial politics tests the strength of arguments and the logic of policies. There will always be politicians who prefer to sit on the fence, but there is a brutal honesty about it. Either you support something or you don't. Our system makes the hard choices that other systems duck. But most important, adversarial politics is natural to

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our anglo-saxon culture (not a point that will be wasted on lawyers), because it is open and accountable. Real democracy is about exploring opposing views and choosing from coherent alternatives, and not about consensus for its own sake. Accountability To the general public, the procedures of the House of Commons may appear arcane and archaic - in keeping with the eccentric, high Victorian, gothic style of our unique Parliament building, but rational explanations can be given for everything. It is no wonder that our Parliamentary system has become the model for many legislatures across the world. Ministers of few other governments have to spend so much of their time worrying about what they might have to say, or might say wrong to their national parliament, at cost to the credibility of their government and themselves. Few civil services bum so much midnight oil to prepare their ministers. Few systems of government are, in fact, as transparent and accountable as our own. Ultimately, government will be held as accountable as parliament wants it to be. Backbenchers of the new party of government are, for the most part, content to be just that. The luxury of power for a party deprived of power for so long must provide them ample satisfaction. A fair economic climate and favourable opinion polls are not spurs to rebellion, but times will change. We have already witnessed the tensions in the Labour party that can spill over onto the floor of the House on such issues as Welfare Reform. If ministers slight the House when it is their own back benchers who seeking explanations or concessions, they will pay the price. Despite the huge increase in the discretionary powers of the executive over recent decades, and even during the Thatcher years when the Conservatives had large majorities, the mightiest ministers, who seemed always able to shrug off press criticism and extricate their departments from the worst of scrapes, remained vulnerable to their colleagues in Parliament. Labour's overwhelming numbers in the House of Commons constitute little protection for the government in a real, galloping crisis. Few of the large number of new MPs, with the damaging exploits of Tory rebels still fresh in their minds, can want to rebel, but in different circumstances and on different issues, every one of them has a breaking point. For all the indignity of party politics, the House of Commons has its saving grace. The Library researchers and the Clerks are there to serve you as an individual member. The whole culture of the institution is to enable MPs to furnish themselves with the information and to

provide the opportunity to subject ministers to the most rigorous scrutiny. A Parliamentary Under Secretary preparing to present a Statutory Instrument to a Committee has no idea of the line of questioning he will be faced with. It might be highly technical. He needs to know his brief backwards or his embarrassed backbenchers will have to watch him as he is left trying to decipher scribbled messages from his civil servants to answer the points being raised. The questions may never be asked, but the simple necessity of such preparation for all eventualities is what ensures that legislation is better drafted and more defensible than it would have been. Ministers who underestimate the House of Commons usually pay the price. If the President of the European Commission had to explain each of his directives and answer questions on them, in the same way as our hapless ministers have to, there would be fewer straight bananas and square strawberries for EuroSceptics to ridicule. To summarise, if the sovereignty of parliament is the foundation of our constitution, then accountability is the cement that binds the structure which stands upon it. Without it, there would be no stability. Government is accountable to the people through a sovereign Parliament. These are beliefs that shape our approach to the reform of Parliament. House of Commons Reform During the years of Conservative government, the system of departmental select committees was established and many of the recommendations of the Jopling Committee were accepted. The televising of Parliament was introduced and this allowed many more people to see the work of Parliament. These changes were all achieved through inter-party discussion and a free vote. We are always ready to consider sensible reforms that have been properly debated and scrutinised. Indeed, Conservative MPs, in the Modernisation Committee set up by the Government to study reform of Commons procedure, helped to forge a consensus around the principle that any proposed reforms should serve to enhance both the quality of legislation and the ability of the legislature to scrutinise the executive. We are willing to support the Government in many cases. In other cases we studied the proposals and suggested changes that we thought necessary. Above all we emphasised that it is for the House to decide how it runs its own business. The Committee has made several recommendations including the publishing of draft bills, the auditing of legislation and the clarifying of Parliamentary Papers. A wide variety of alternatives exist to the normal method of scrutinising bills. For example, second readings of non-controversial bills could be held in the

SOVEREIGNTY AND ACCOUNTABILITY can be divided between a Standing Committee and a Committee of the Whole House. All bills are not of the same ilk. A greater use of imagination when planning the passage of legislation would result in a substantial improvement in the process, without having to resort to substantial reform of Parliament. The ability of Parliament to improve legislation and provide an adequate forum for government accountability depends greatly on the respect accorded to it by the executive. The proceedings of the Modernisation Committee are a marked contrast to some of Labour's more hasty reforms. Lack of deference toward Parliament may seem to weaken Parliament's legitimacy with the electorate but a strong Parliament is the only source of Government's authority. Maybe it is because Labour have been in a minority in the Commons for so long that they have yet to demonstrate this respect. They announced a change to Prime Minister's Question Time within days of taking office. There was no consultation with other parties or reference to any Select Committee. It had in fact been rejected by the Select Committee on Procedure in 1995. While it is a matter for the House that there is a need for oral questions on four days of the week, the government is essentially within its rights to decide who answers for what, and when. It is clearly easier on the Prime Minister to have to prepare only once a week for his ordeal instead of twice. It also reduces the opportunities for exposure of the Leader of the Opposition and Paddy Ashdown in the media, but the new Prime minister's Question Time is no less political than its twice weekly predecessor. To that extent it has failed the government's stated objective. The Government had also proposed to abandon the practice of taking the Committee stage of constitutional bills on the floor of the House, again without reference to the Modernisation Committee. A bill taken in committee can be protected from MPs with known views on the question in hand. If the Scotland Bill were to have been sent to Committee upstairs it is unlikely that the Labour whips would have let Tam Dalyell be a member. It is clearly wrong for Parliamentary scrutiny to be tailored to suit the weaknesses of the government's case; least of all on issues such as devolution. We have no special procedural check on changes to the constitution. An act of Parliament is an act of Parliament. The convention to take constitutional bills on the floor of the House is the only protection that there is. The Government should respect the 50 year old "Attlee" convention which allows all members to debate all aspects of these constitutional proposals. It is extraordinary that the Lib Dems were willing to support the Government on this matter. I pay tribute to Scottish Secretary Donald Dewer for

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relenting on this issue. It has been agreed that the Scotland Bill will be taken on the floor, and a timetable has been agreed of eight days in committee and three on report stage. It is something of a victory for Parliament that the Welsh Secretary has subsequently had to climb down too, thereby safeguarding this valuable precedent. The House of Lords The Conservative position on the House of Lords reflects the same basic beliefs in sovereignty and accountability. We do not oppose reform of the upper House. Indeed, we would welcome reform, if it meant an increase in power of the upper chamber at the expense of the Commons. However, it would be foolish to tamper with the workings of the House of Lords without a definite idea of what sort of chamber you wish to create. The Lords Select Committees are unique in the breadth and experience of their members and the quality of their work, and cannot be jeopardised in the name of reform for its own sake. Whenever previous Labour Governments have attempted to reform the upper House, they have sought to achieve a broad consensus on the issue. This was the case in 1948 and 1968. No mention has been made by the Lord Chancellor of consultation with any other parties. The Labour Government's rhetoric of new consensus politics has suddenly been dumped. The Government is open to the charge that it is merely trying to gerrymander the constitution for its own benefit. An entirely appointed upper chamber would reduce the richness of talent in the upper House. It would diminish the independence and diversity of its membership. It would also mean that nearly two-thirds of the independent cross-benchers would be thrown out of Parliament at a stroke, and with them would go a vital, independent check on the power of the executive. And who should appoint these new peers; the Prime Minister? No proper democracy should put so much power of patronage - the right to nominate a majority in half of Parliament in fact - in the hands of one man. Noone since Cromwell has exerted such executive power. Alternatively, an elected upper House could proclaim its own democratic mandate and challenge the Government majority in the Commons. Also, if the upper chamber were to be elected, what system would be used? Would it run for fixed terms? Would it be wholly or partly elected? Before embarking on reform, there should be a consensus on the eventual direction it will take. The Conservative leader of the Opposition in the House of Lords recently set out six key principles for reform of the House of Lords. These serve as a test for measuring the effectiveness and viability of any proposed changes.

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The first principle is that any change to the structure of the Lords should not increase the Prime Minister's powers of patronage. Second, the composition of the House must be different from that of the Commons. The Commons has a total democratic mandate and therefore must remain as supreme authority. Third, there must remain a substantial independent element in the House. Conservatives believe that an Upper Chamber should never be the "handmaiden" of the executive. Only total independence from Prime Ministerial patronage will ensure that an Upper House continues to enjoy legitimacy as an effective balance on the power of the Government. Fourth, the Lords must maintain membership from the whole of the United Kingdom. Fifth, any reform plan must demonstrably show that the new House will operate better as a scrutinising and revising chamber than the present. At the moment most commentators would agree that the House of Lords fulfils its functions well. Finally, any reform of Parliament must embrace the effects of change on both Chambers. This danger is inherent in the piecemeal approach of the government's whole constitutional programme. Until Labour's plans for the future are clear and until all the above principles are adhered to in a reform package no-one should expect the existing House of Lords to agree to its own emasculation. Let the Government publish detailed proposals on the reform they plan to make and set up a Select Committee or similar forum in which all parties and cross-bench inter-

ests can debate and scrutinise the Governments proposals. Until then their half baked plans to wreck the House of Lords should not be dignified by the term "reform". Conclusion The Government appears to have adopted a somewhat schizophrenic approach to the reform of Parliament. The setting up of the Select Committee on the Modernisation of the House of Commons was the right way, but the dictatorial policy on the Lords and self-interested impositions in the Commons have been very different. Important decisions were taken without consultation. Consensus has been shelved as the Government use their massive majority to steamroller second rate proposals through Parliament. Major changes such as the introduction of departmental Select Committees and the Jopling report have always been backed up by a cross-party consensus, and have usually been instigated under backbench pressure. Failure to follow this precedent can only lead to suspicions over the motives of a Government that has already shown a certain lack of concern for Parliament and its procedures. If Labour are really concerned with improving our Parliamentary system then we will lend them every support. If, however, they are intent on manipulating the Constitution for their own selfish benefit it is not just the opposition parties they are slighting, it is the whole of Parliament including their supporters. It is their trust that they will forfeit at some most inopportune moment.

15 REFORMING THE HOUSE OF LORDS A STEP BY STEP GUIDE ROBERT HAZELL*

INTRODUCTION The Labour party was elected to government on the following manifesto promise to reform the House of Lords: "As an initial self-contained reform, not dependent on further reform in the future, the right of hereditary peers to sit and vote in the House of Lords will be ended by statute. This will be the first stage in a process of reform to make the House of Lords more democratic and representative. The legislative powers of the House of Lords will remain unaltered. The system of appointment of life peers to the House of Lords will be reviewed. Our objective will be to ensure that over time party appointees as life peers more accurately reflect the proportion of votes cast at the previous general election. We are committed to maintaining an independent cross-bench presence of life peers. No one party should seek a majority in the House of Lords. A committee of both Houses of Parliament will be appointed to undertake a wide-ranging review of possible further change and then to bring forward proposals for reform." Reform of the Lords will therefore involve at least three stages: Stage One Legislation to end the voting and sitting rights of the hereditary peers. Stage Two Consolidation of stage one: rebalancing the party composition of the life peers; the development of new conventions for appointing peers. Stage Three Wider review of the House of Lords, involving a review of its role, functions and powers, as part of a new constitutional settlement.

* Constitution Unit, University College, London

Each of the three stages will involve major changes to the second chamber, and throw up a range of difficult issues. This paper considers these issues, and looks at the decision making procedures that will be required to address them. Particular attention will be paid to the role of a joint parliamentary committee, as a means of securing agreement between the parties in both Houses, in carrying forward stages two and three. Stage One: Removing the hereditary peers (a) The Bill The initial Bill to reform the composition of the Lords could be a short one. It would prevent hereditary peers from voting or sitting in the Lords, and enable them to stand or vote in elections to the House of Commons. (See the draft Bill in Appendix A to the Constitution Unit's 1996 report on Reform of the House of Lords). The Bill would be drafted to take effect from the following session, and would override the writ of summons issued to hereditary peers for the whole parliament. The narrow issues raised by the Bill would include: • the number of hereditary peers to be offered life peerages: each of the parties and the cross-benchers will want some of their hereditary peers to remain in a reconstituted Lords • hereditary peers of first creation (such as Viscount Whitelaw), who could also be allowed to remain • whether all peers, including life peers, should be allowed to vote in elections to the House of Commons (as proposed by the Labour government in the Parliament [No 2] Bill 1968).

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The government will need to consult the other parties and the cross-benchers on how many hereditary peers should be offered life peerages. These might be limited to hereditary peers who are front bench spokespeople, but they could also be extended to a limited number of hereditary peers who are deemed to make a particularly valuable contribution to the Lords (e.g. chairmen of committees). The opposition parties could be invited to nominate their candidates, but it would be harder with the cross-benchers, whose convenor does not have the same authority as a party leader. (b) Timescale No timescale for Lords reform has yet been made public, but it is likely that the Bill to end hereditary peers' rights will be introduced in the 1998/9 parliamentary session. The Conservative Leader in the Lords, Lord Cranbome, has indicated that his party will not oppose the Bill at second reading, observing the convention established by his grandfather, Lord Salisbury, that the Opposition in the Lords should not block a measure contained in the winning party's election manifesto. Nonetheless, the Conservatives cannot control all the hereditary peers and there can be no guarantee that the Bill will pass the Lords at the first attempt. It is possible that the government will be forced into invoking the Parliament Acts, which would enable the government to reintroduce the Bill in the following session, and then bypass the blockage in the Lords; the effect would be to delay the Bill by one year from its second reading. Annex A shows the likely timetable for the legislation, and the effect on the timetable if the Parliament Acts have to be invoked. In terms of implementation, the effect would be that the hereditary peers would be removed from parliament in the autumn of 2000 instead of the autumn of 1999. (c) The Cabinet Committee The Cabinet Committee CRP(HL) began meeting in January, to oversee the government's programme for reforming the Lords. The main issues for the Committee will be: • developing the policy, and preparation of the legislation, to end hereditary peers' rights • assessing what issues then arise for stage two • deciding what role might be played by a joint committee in exploring solutions to these issues • establishing the government's agenda for stage three of the process and the machinery required to develop options for more radical reform of the Lords.

The policy on Lords reform will be developed by the Leader of the Lords, Lord Richard, with the Cabinet committee chaired by the Lord Chancellor, Lord Irvine. Responsibility for developing the policy and preparing the instructions for the legislation will fall to the Constitution Secretariat in the Cabinet Office. (d) Broader issues The initial Bill to end hereditary rights will probably be short and simple. But it will be difficult to avoid the consequential issues that arise when parliamentarians contemplate a second chamber composed solely of life peers, and consider the government's wish to move to a more democratic and representative second chamber. These issues include: • the party composition of the second chamber: how far and how fast to adjust the present imbalance • whether rebalancing can be achieved by consensus, which might develop into a convention between the parties, or will simply be imposed • changes to the appointments system, to give it greater legitimacy • the wish of the Liberal Democrats, and some reformers in the Labour Party, to move on to an elected second chamber (the Liberal Democrats called for a "predominantly elected second chamber" in their 1997 election manifesto). Labour's election manifesto referred to stage one as "an initial, self-contained reform, not dependent on further reform in the future"; but it will in fact raise a number of issues, which will require further attention. Stage one leads on to stage two, but not necessarily to stage three. Stage Two: Consolidating an appointed second chamber Stage two represents a 'tidying up' exercise, designed to buttress and consolidate the move to a second chamber based wholly on appointment. (a) Rebalancing the Lords A key question for stage two is the form that a more 'representative' second chamber should take, along with the timescale involved. Labour's election manifesto commits the government to a rebalanced second chamber based on the parties' share of the vote at the previous general election. The principal options by which this could be achieved, and the numbers involved, are explored in a companion Constitution Unit paper (Reforming the Lords: the Numbers) and summarised in Exhibit 1.

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Exhibit 1 Reforming the Lords: the numbers Ending hereditary peers' rights will reduce the Lords from 1,274 to 526 members, with the Conservative life peers as the largest single group. There are then three key decisions to be made in deciding how to achieve greater proportionality between the parties: • the nature of proportionality: should the government aim for full proportionality between the parties, or simply rebalance numbers so that the Conservatives are no longer the largest single party? • timescale: how soon should proportionality be achieved - over the course of one or two parliaments? • redistribution: should deaths among peers be used to rebalance party numbers (ie where one party does not necessarily replenish its peers who die each year, but may 'lose' those places to the other parties)? If it is decided to achieve full proportionality within the current parliament, and without using natural wastage rates to rebalance party numbers, an additional 55 Labour, Liberal Democrat and minor party peers will need to be created each year, with the total size of the Lords increasing from 526 to 749 peers by the year 2002. Using natural wastage rates, 25 new peers will need to be created each year, increasing the total size of the Lords to 626 peers by 2002. Thereafter, the size of the Lords is likely to increase by on average about 100 peers in each parliament, depending on the outcome of future elections. After each election, the number of new peers that will need to be created to rebalance the parties will depend on: • the size of the swing between the parties at the election • whether natural wastage is used to redistribute numbers between the parties. Depending on these two variables, a fully proportional second chamber in twenty years' time (2017) could vary in size between 668 and 1,146 peers. The Government will need to take note of these projections and choose a method for rebalancing numbers in the current parliament that can be adopted by successive governments so that the total size of the Lords does not increase to unsustainable levels.

In deciding how the Lords should be made more representative, the government will need to seek the views of the other parties. Ending hereditary peers' rights will significantly change the nature of the Lords, and this initial step must be followed by measures that guarantee consistency and stability. A system in which one party in government sought to rebalance party numbers in the Lords according to one formula, and another party by a different formula, would quickly denude the Lords of its legitimacy. The method of rebalancing the Lords in this parliament should be agreed by the parties (not only by the two largest parties, but also by the Liberal Democrats, the minor parties and the cross-benchers) as the basis for any further rebalancing in succeeding Parliaments. The government should thus aim to establish its stage two reforms not as unilateral actions, but as agreed changes to the Lords that can attain the status of parliamentary conventions. (b) 'Knock on' issues The move to an all-appointed second chamber will

expose the composition of the Lords to a far closer and more critical scrutiny than currently. Unless the government intends to move immediately to a more fundamental review of the Lords (stage three), it must aim to secure the legitimacy of the second chamber and address the major issues arising from stage one: The appointments system There are two major - and linked - issues that need to be dealt with. The first is whether the base from which members of the Lords are drawn is sufficiently broad, in terms of geographical, social and ethnic groups. The second is the need to reduce the element of patronage, and 'open up* the appointments system. This applies as much to the appointment of party nominees as to the cross-benchers. If the Lords is to become more representative of the overall population, the government needs to encourage greater individual and corporate participation in the nominations procedure (especially in the nomination of people to sit on the cross-benches). Our 1996 report on Reform of the House of Lords

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proposed a new parliamentary Appointments Commission to lessen the element of patronage in the appointment of nominees.

effectively, the government will need to prepare the ground well. Exhibit 2 sets out the main issues that will need to be addressed.

The position of the minor parties The Labour manifesto's proposal to rebalance the second chamber according to parties' share of the election vote raises the issue of whether the minor parties should be formally represented in the Lords (the only parties currently operating a whip in the Lords are the Conservatives, Labour and the Liberal Democrats). The Constitution Unit companion paper, Reform of the Lords: the Numbers, shows that the number of peers needed to ensure such representation would be small; nonetheless, a decision needs to be taken on whether the minor parties should be formally represented in the Lords, according to their electoral share.

(d) Powers While the Labour election manifesto ruled out any explicit changes in the Lords' powers as part of stages one and two, the initial reforms may well impact on the second chamber's willingness to use its powers. The Lords currently exercises a self-restraint on account of its large hereditary element, which will almost certainly disappear with the move to a more 'representative' second chamber. The Lords may start to vote down secondary legislation that has passed the Commons, and the Salisbury Convention (whereby the Lords will not deny a second reading to a bill heralded in the government's manifesto) may no longer be observed. This is an issue that the parties should be aware of, although it is not suggested that their discussions on stages ones and two should formally address the powers of the second chamber.

Attendance The removal of the hereditary peers will halve the size of the Lords, from almost 1,300 peers to just over 500. This will affect the capacity of the second chamber to undertake its range of functions (e.g. committee work). An assessment will be needed of how far a smaller House of Lords, based on voluntary attendance, can continue to perform these functions or whether minimum attendance requirements are needed. This in turn raises the issue of whether the award of a peerage is intended to confer an honour or represents a job of work; and if it is a job, whether it should be properly paid. (c) A Joint Committee of both Houses It is highly desirable that any stage two reforms in these areas should command the support of all the parties. One option would be for the government to draw up proposals on its own, which it could then use as the basis for informal consultations with the other parties and the cross-benchers. Informal inter-party consultations would, however, be largely hidden from public attention, potentially hindering the chances of popular support for whatever reforms are agreed. This is where a Joint Committee of both Houses might play a useful role: to look into the issues arising from stage one of Lords reform, and consider how they should be dealt with. A Joint Committee could probably not be established until stage one is completed, although it should sit as soon as possible after this point to minimise the delay between the start of an all-appointed second chamber and any reforms needed to underpin its composition. Assuming that it would take six months to report, a Joint Committee with this purpose could be established at the beginning of the 1999/2000 session (assuming that the hereditary peers Bill is enacted in the previous session). For the Joint Committee to work

Stage three: Wider reform of the Lords (a) Catalyst and timetable Although the Labour election manifesto refers to "a wide ranging review of possible further change" to the Lords, following stages one and two, no timescale has been set for this, and it is not clear what will prompt it. Two scenarios may act as the catalyst. The first is that the move to an all-appointed second chamber, in spite of any consequential reforms made as part of stage two, undermines its legitimacy. The government might then decide that more fundamental reforms to the Lords' composition are needed, in order to put it on a more secure footing. The second scenario is that the stage two reforms succeed in shoring up the legitimacy of the Lords; a move to stage three would then be a proactive decision by the government to reform the Lords as part of its wider programme of constitutional change. Devolution, electoral reform for the House of Commons, or other elements in the constitutional programme could themselves provide the trigger for further reform of the Lords. The timescale for stage three of Lords reform is thus wide open (see Annex A). If the government decides to move quickly from stage one (ending hereditary peers' rights), to stage three (broader reforms), it could do so by conflating stages two and three and initiate a review of the Lords as early as the beginning of the 1999/2000 session. However the government may well want to take matters more slowly, to let its own ideas develop and to

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Exhibit 2 Preparing for a joint committee Size A balance will need to be achieved between ensuring that an adequate range of interests are represented on the committee and avoiding too large a membership. Discussions with parliamentary clerks suggest that the optimum size for the joint committee would be between 12 and 16. Composition • the balance between the two Houses: while there is a parliamentary presumption of equal membership of the two Houses on a joint committee, there is no bar on unequal representation, and this may allow a greater presence on the committee from the Commons, to strengthen the links between the committee's work and MPs; • the party balance on the joint committee: this will broadly match the parties' share of seats - in line with Commons' convention - although exact numbers will be decided by the parties. The government will want to have an overall majority on the committee, to ensure it maintains control; • it would also be desirable for at least one cross-bencher to sit on the committee, to provide an independent perspective. Chairmanship An issue for the government to resolve will be who should chair the committee, and whether ministers should sit on it. The main advantage of ministerial involvement on the committee would be the extra clout given to its work, and the opportunity it would offer for the government to steer the committee. Ann Taylor, as chair of the Select Committee on Modernisation of the Commons, has guided this committee's work and developed a sense of how far and fast the government could go. Steer A formal parliamentary committee places the government under greater pressure to accept its recommendations than would a less formal conference between the parties (which has a lower stature and can operate wholly in private). The government will need to give the committee a clear steer. This can come from the committee's chair, but the government will also need to submit an initial memorandum, as it did for the Committee on Modernising the Commons. Terms of reference Suggested terms of reference for the joint committee are: To consider the party balance and other issues which arise following the removal of the hereditary peers from the House of Lords, and to make recommendations, particularly in relation to: • achieving a more proportionate party balance; • the position in the Lords of the minor parties; • the system of nominations and appointments; • the number of peers necessary for the House of Lords to undertake its functions, and whether measures are needed to ensure minimum attendance levels.

allow other elements of the new constitutional arrangements to settle down, before deciding what role a fully reformed Lords might best play in the new constitutional architecture. In particular, it might want to await the outcome of the referendum on the electoral system for the Commons, see how the devolution settlement beds down, and assess what position the Lords might take in helping to underpin devolution and the rest of the new constitutional settlement. If these arguments

carry weight, the inquiry into stage three might be left until the next parliament, or initiated in this parliament, but allowed to carry through to the next. (b) Substance of stage three Whether the trigger for stage three is the need to make the Lords' composition more legitimate (scenario one), or a desire to effect more fundamental reform of the second chamber (scenario two), it is likely to entail a

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wide ranging review of the Lords' role, powers and composition. Even if stage three is initiated because an appointed second chamber is felt to lack legitimacy, the review will be unlikely to focus solely on compositional issues. This is because it is impossible to decide a satisfactory system for Lords' membership without first deciding what interests peers are there to represent. Thus, stage three cannot avoid addressing the question of what the role of the Lords should be in our political system, its relationship with the Commons and other levels of government and the functions and powers it needs to carry out that role. Only then is it possible to determine the composition required to carry out those functions, exercise those powers and fulfill that role. The agenda for stage three is therefore a broad one, probably comprising the following key elements:

federal systems: it binds the federation together, by giving the states and provinces a strong stake in the institutions at the centre. But the method of representation can vary: • direct election. In the USA and Australia, directly elected senators represent the people of the different states, not the state government. This model does little to cement federal/state relations. • indirect election, as with the German Bundesrat. In Germany it is the state governments which are represented in the Bundesrat; an alternative would be to elect representatives of the state parliaments. • appointment, as with the Canadian Senate. The UK's rolling programme of devolution might require that representatives be appointed from those regions which do not initially have devolved assemblies.

The role of the second chamber This is the biggest and most difficult question for stage three to address. As we said in our first report on Reform of the House of Lords: "It is clear that many, although not all, of the reasons given for needing a second chamber are derived from the de facto pursuits of the House of Lords, rather than resulting from any more fundamental analysis of the necessary functions of parliamentary government". It will be difficult for stage three to avoid this fundamental analysis, particularly given the demands arising from other items in the government's constitutional reform programme. The whole of the UK's constitutional architecture is changing, and the role of the Lords is likely to change with it. In particular, any consideration of the role of the Lords must take account of: • devolution, with the emergence of national and regional assemblies within the UK • the growing influence of the EU, and the increasing demands on national parliaments to scrutinise European legislation • ECHR incorporation, and possible roles for the Lords as a human rights and constitutional watchdog • the growth of constitutional litigation, and the future of the Lords as the UK's highest court • possible changes to the electoral system for the Commons. Each of these points will be briefly considered in turn. Devolution The function most often proposed for a fully reformed Lords would be to represent the nations and regions of the UK. It is the classic function of second chambers in

European Union The Lords has a Select Committee on the European communities which does most of its work through five sub committees. It conducts in-depth inquiries, reporting on 15 to 20 documents per session, while the equivalent Commons' committees issue reports on 300 to 400 documents. If desired, the Lords could take more of this burden from the Commons. European Convention on Human Rights Parliament will need to develop an enhanced capacity to scrutinise legislation to ensure compliance with the ECHR. The Lords have considerable expertise here, and could contribute to the scrutiny exercise. The Human Rights White Paper (Cm 3782) suggested that parliament establishes a Joint Committee of both Houses, or separate committees for each House, partly for this purpose. The Law Lards ECHR, devolution and other constitutional changes will bring more political issues before the courts and may lead to increasing questioning of the presence of the law lords in the legislature. Stage three reform will need to examine the case for a constitutional or supreme court separate from the Appellate Committee of the Lords. Electoral Reform The role of the Lords must be complementary to that of the Commons, and if both chambers are elected, it must be on a different basis. It makes no sense to decide on the franchise for an elected Lords until it has been decided whether the electoral system for the Commons is to change.

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Improving existing functions

The composition of the second chamber

In addition to such major changes in the Lords' constitutional role, stage three might examine whether the Lords could improve some of its existing functions:

Stage three of Lords reform would be the appropriate time to consider the size of the Lords. International comparisons suggest the Lords is unnecessarily large: 65% of other second chambers comprise between 11 and 200 members, and only 21% of second chambers comprise over 300 members2. Attendance in the Lords on a typical day in the 1993-94 session was 3783. Second chambers are generally smaller than first chambers, often about half the size. A stage three inquiry will almost certainly involve an examination of elected models for the Lords. If the poststage one - appointed - second chamber is deemed to lack legitimacy, electoral models will be explored as a way of providing that support. If the appointed second chamber already commands a reasonable level of support, the immediate goal of stage three will be transforming the Lords' role; yet elected models will also need to be considered as a means of underpinning this role.

• its legislative function: various schemes have been proposed to help the Lords to scrutinise legislation more effectively: two options are pre-legislative scrutiny of bills and special standing committees to consider bills off the floor of the chamber; • its select committee role: the success of its two existing select committees - on European legislation and science and technology - have prompted proposals for the scope of the Lords' committee work to be extended, to include areas not covered by the Commons' select committees (e.g. relations between central and local government and justice); • scrutiny of the executive: the Lords has a less important function here than the Commons. Stage three might examine in what ways the Lords could better complement the scrutiny carried out by the Commons; a likely area for consideration will be whether its role in scrutinising secondary legislation and powers should be strengthened. Powers of the second chamber Many of these changes in function might be introduced without any increase in the Lords' formal powers. The Commons is unlikely to agree to any significant increase in the Lords' powers, but it will also need to take account of any indirect effects caused by changes to the Lords' composition. Reforms that boost the democratic legitimacy of peers may reduce their inhibition in using existing powers to revise primary legislation and veto secondary legislation. In the light of this, stage three should consider whether: • the period of legislative delay should be altered: the Liberal Democrats, for example, have proposed that the period of delay be increased to two years; • the power over secondary legislation should become one of delay rather than veto - only used once, in 1968. Any increase in the legitimacy and strength of the second chamber increases the risk of deadlock between the two Houses. Stage three will need to consider how to resolve such conflict. Research could profitably be carried out on arrangements in other legislatures (why, for example, is dispute resolution in India's bicameral system relatively successful compared to that in Australia?1).

Indirectly elected membership This option is favoured for second chambers in France and Germany as a way of representing local and regional government in the national parliament. It might prove more difficult in the UK because devolution will be non-uniform, and implemented in a rolling programme. But representatives could initially be indirectly elected from Scotland, Wales and any other parts of the country which have elected assemblies, and appointed from the remainder. Directly elected membership The issues that would need to be decided here are: • the electoral system: the analysis carried out by the Plant Committee in 1993 can be drawn on here. The two main considerations - both discussed by Plant — are the underpinning each electoral system gives to the role of the second chamber, and their relationship to wider political factors, such as the position of the political parties. These considerations might conflict. For example, if the second chamber is to act as a representative body for the regions/nations, a regional list system of voting might be chosen. Yet this would potentially give greater power to the national arm of the political parties, and might thereby undermine the purpose of the second chamber as a territorially repre1

See The Role of Second Chambers, the report of a Commonwealth Parliamentary Association study group, 1982 2 Derbyshire and Derbyshire: Political systems of the world, 1989 3 Nicholas Baldwin: The House of Lords - sessional statistics, paper given to colloquium on the House of Lords, University of Ulster, May 1995

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sentative body, unless the parties develop regionally specific policies, or new regional parties emerge. • he timing of elections: it is likely that the second chamber will incorporate fixed terms, since it would be undesirable for elections to take place at the same time as those for the Commons. An issue will be whether to hold elections to the second chamber at the same time as local, regional or European elections; the confusion for voters of using potentially two different voting systems will be an important factor in any decision. • other topics: the number of representatives per region and the regional boundaries; the length of members' tenure of office and their terms, including remuneration. Appointed element This option will need to be addressed alongside an examination of elected models, especially if it is thought desirable to retain the cross-benchers, who will only survive as a result of appointment, not election. If the system of appointment has not been reviewed as part of stage two, the case for an Appointments Commission could be explored. (c) Taking forward stage three Mechanisms The government will need to give thought to what mechanism would be most appropriate to explore the agenda for stage three. The main options are: • a Cabinet committee: stage one of Lords reform will be overseen by a Cabinet committee, and this could be retained to draw up proposals for stages two and three. But this would fail to involve the opposition parties and therefore to achieve consensus on stage three reforms. The government's decision to convene a cross-party committee to explore modernisation of the Commons shows the value of consensus when it comes to reform of parliament. Although on its own not a suitable body to take forward stage three, a Cabinet committee will need to be convened when stage three is reached, to enable the government to draw up a clear set of objectives for further reform of the Lords. • a joint committee of both Houses: as suggested in Labour's election manifesto. This would offer the benefits of cross-party agreement on a course of action, and of drawing systematically on the views of both Houses. But exploring stage three reform of the Lords would be a huge task, and a much wider enquiry than party committees are usually asked to undertake.

• inter-party consultations: talks between the government and the other parties could be held, with a view to an agreed solution emerging. Consultations would not be governed by parliamentary procedure, and would thus be less formal than a joint committee. They would lack the status of a joint committee, which might be a drawback when recommendations are produced. The more public nature of a joint committee (at least through its witness sessions) may help avoid the suspicion among MPs and peers that arose from the secrecy of the inter-party conference in 1968. However, if the government is not committed to stage three of Lords reform, an informal conference, whose recommendations could more easily be rejected than those of a joint committee, might be preferred. • a non-parliamentary commission: an independent commission would bring in a wider expert constituency to facilitate a broad enquiry into the role of the Lords. Unless MPs and peers had opportunities to comment on the commission's findings, however, it would risk failing to gain support within parliament. Stage three of Lords reform will probably need to be divided into a two part process. The first part would involve investigating the role, powers and composition of the second chamber in the broad perspective of the UK's constitutional and parliamentary system. The second part would focus on implementation. Annex B sets out some of the ways in which the mechanisms identified above could be combined to reach a conclusion on Lords reform under this two part process. The process for stage three In deciding what mechanism to use to explore stage three of Lords reform, three factors should be borne in mind: • the need to involve MPs and peers closely in decision taking. Treating Lords reform as a primarily constitutional exercise overlooks the important political agenda: the 1968 proposals to reform the Lords aroused the hostility of MPs precisely because they saw the changes as upsetting the balance between the two Houses. There is no evidence that the same concerns will not re-surface this time • the need for the process to be 'open' to public input and scrutiny. On an issue that has such wide political and constitutional implications, efforts should be made to involve a range of interests - both sectoral and geographical - in decision making. It would be undesirable for the process to be wholly determined by MPs and peers • the need for the process to be time limited. The 1968

REFORMING THE HOUSE OF LORDS: A STEP BY STEP GUIDE attempt to reform the Lords was preceded by only seven months of deliberations, although even this was longer than initially envisaged. With discussions both inside and outside parliament, timetables must be are set and momentum maintained. Apathy and drift, as much as outright opposition to change, could hinder stage three's chances of success. Suggested mechanism One route for the government would be to draw up its own proposals for stage three, and to hold inter-party talks to see if agreement can be reached. If consensus is reached on the principles underlying reform, a more formal joint committee might then be convened to draw up more detailed proposals for introducing these reforms. A preferable route would be for the investigatory stage to be opened up to a wider input, through an independent commission, drawing on public submissions. Models for such a body include the Plant Commission and the recently established Commission on Voting Systems. The danger with non-parliamentary bodies is that they 'drift' from the government's views, leading to recommendations that the government finds difficult to accept. For an external commission on Lords reform to work, an imperative will be to balance its independence and ability to range widely with a clear steer from the government so that its conclusions are broadly in line with government thinking. One option would be for the three main parties and the crossbenches to each nominate a candidate (probably a senior backbench MP) to sit on the commission, to ensure a direct parliamentary input into its deliberations, as occurred with the Nolan Commission. While a non-parliamentary body might be the best means of exploring possible broad changes to the role, powers and composition of the Lords, it will be important that MPs and peers have an input into the decision making process. A joint committee following on from an independent commission could be given the task of reviewing its conclusions and putting forward detailed proposals for the government to act on. In this model, the commission would act as a broad research exercise, leaving the specifics to a parliamentary body. (d) Terms of reference and Hmescale An independent commission, set up to conduct a broad review of the Lords, might be given the following terms of reference: To determine: • the role and functions appropriate to the second chamber, including its relations to local, regional, national and supra-national tiers of government;

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• the powers appropriate to the second chamber, including its relation to the Commons; • the composition of the second chamber, including the system of appointing peers, and the desirability, and operation, of an elected system of membership. The timetable for a commission, and for a joint committee to examine in more detail the commission's proposals, depends largely on how far and how fast the government wishes to go. If stage two is an interim stage, and the government wants to move quickly to a more radically reformed second chamber, then stage three could start almost immediately hereditary peers cease to sit in the Lords, possibly in autumn 1999 (see Annex A). To maintain the momentum, the government might well want to press ahead in this way. But it would not necessarily be wise to establish a commission so early, or to press it to deliver an early report. For the commission will need to consider the options for a fully reformed second chamber against the other constitutional changes that are in train. No decisions about an elected second chamber can sensibly be made until we know the outcome of the referendum on the voting system for the House of Commons, which may be in 1999, but may not be until 2001/02 (see timetable at Annex A). It may also be wise to wait and see how devolution settles down, and what changes might be required at Westminster to reflect the changed arrangements. All this means that while stage three might be initiated in this parliament, it is unlikely to be concluded until the next.

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ANNEX A: Timescale for Lords reform Stage One of Lords reform

Stage Two of Lords reform

introduction of Bill to remove hereditary peers

inter-party talks on rebalancing numbers

Stage Three of Lords reform

Devolution

Electoral system

1998

1999

referendum on NI settlement

RDAs start

Bill a) accepted or b) rejected by HoL a) hereditary peers cease to sit joint committee established

first date for independent commission

PR elections for Scottish, Welsh assemblies and Euro Part + referendum on elec system for House of Commons?

Scottish, Welsh assemblies start

2000 joint committee reports consultation period b) hereditary peers cease to sit

government announces new 'conventions'

commission review ends; jt committee sits

2001 joint committee reports

Greater London Authority starts

2002 GENERAL ELECTION first date for legislation

+ referendum on elec systems White Paper on English regional government

2003 broad stage 3 review following stage 2 reforms Note: As no official timetable for Lords reform has yet been made public, much of this Annex is based on the Constitution Unit's own projections. Where the government has indicated a timetable, items appear in italics.

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REFORMING THE HOUSE OF LORDS: A STEP BY STEP GUIDE

ANNEX B: Carrying out stage three reforms

Decision by the Government to look at broader reform of the Lords

(intention to set up independent commission)

I limited inter-party consultation on commission's remit; steer to commission on parties' views

(intention to proceed through parliamentary consultations) ^ — -» — •_ — • • - _ _ _ — _» - > • - > _- — - » - » • - -

— — - - — •*

detailed inter-party talks

I independent commission established; maybe including MPs, peers

joint committee or inter-party talks, to explore and develop commission's proposals

agreement on principles between the parties

no agreement on principles between the parties

joint committee to explore and develop proposals

government draws up its own proposals

government considers committee's conclusions

government considers committee's conclusions

Legislation

Legislation

Legislation

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APPENDIX

REFORMING THE LORDS: THE NUMBERS

As the first stage of Lords reform, the Labour government will bring forward legislation to end the voting and sitting rights of hereditary peers. Stage two involves reviewing the system of appointing life peers, with the aim of ensuring that "over time party appointees as life peers more accurately reflect the proportion of votes cast at the previous general election" (Labour's election manifesto). The report of the Joint Consultative Committee with the Liberal Democrats (March 1997) suggested that this adjustment should be achieved "over the course of the next parliament". Labour has also committed itself to retaining the cross-bench peers. This note considers the arithmetic involved in fulfilling these policy pledges, in the form of various 'options'. The options assume rebalancing of peers to achieve full proportionality between the parties, although the government has not yet made clear whether it intends to make the Lords fully proportional, or just more proportional. The current membership of the Lords is set out in Table 1. The size of the Lords, once hereditary peers cease to sit, is set out in Table 2. It assumes that only hereditary peers of first creation would be given life peerages. In practice, the numbers will be higher, since each party will wish to offer life peerages to a number of their hereditary peers deemed to make a particularly valuable contribution to the Lords (eg front bench spokesmen, chairmen of committees etc).

Table 1 Composition of the House of Lords in December 1997 750

Hereditary peers Life peers Law Lords Archbishops, bishops Hereditary peers of first creation Total

465 26 26 9 1,274

Source: House of Lords Information Office, as of 9 December 1997. (All the figures used in the paper are the Constitution Unit's calculations, based on this initial data)

Table 2 Minimum composition of the House of Lords after stage one

Life peers

Hereditary peers of first creation

Total

Conservative Labour Liberal Democrat Non-party Cross bench/ Law Lords

175 142

4

179

1

44 11

0 0

143 44 11

93 26

4

123

Total Bishops Total

491

9

500 26

26 517

526

Option 1 Straight increase in peers, by 2002 To achieve the proportionate adjustment, the number of Conservative peers would need to remain constant while the number of Labour, Liberal Democrat and cross bench peers increased. Peerages might also have to be created for those minor parties currently virtually unrepTable 3

resented in the Lords, notably the Scottish Nationalists, Plaid Cymru and the Ulster Unionists. Including the minor parties, the number of peerages that would need to be created to achieve full proportionality is as shown in Table 3.

Straight increase in peers required to achieve proportionality during this parliament Starting total required

1997 election %

Conservative Labour Liberal Democrats Minor parties Cross-bench

179 143 44 1*

123

31.4% 44.4% 17.2% 7.0% 20.0%**

Total

490

100%

Adjusted total

Additional peers

179

0 110 54

253 98 143

39 20

713

223

40

* Lord Fitt, ex SDLP. The other 10 'non-party' peers are not included in the tables; nor are the 26 bishops. Thus the totals in each table should be increased by 36 to arrive at the total size of the Lords. * • The cross-benchers currently comprise 25% of the total number of life peers, but this percentage is assumed to fall to 20%

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REFORMING THE HOUSE OF LORDS: A STEP BY STEP GUIDE

Table 4 Redistribution by natural wastage by 2002, with no increase in total size Conservative (-6/7 per year) Labour (+2 per year) Lib Democrats (+1/2 per year) Minor parties (+2/3 per year) Cross-bench (constant) Total

1997

1998

1999

2000

2001

2002

179 143 44 1 123 490

172 145

166 147

48 6 123

154 151 51 11 123 490

148

46

160 149 50 8 123 490

4 123 490

490

153 53 13 123 490

Note: All the parties will, of course, lose peers each year through natural wastage. In the interest of adjusting the balance between the parties, however, the table assumes that only for the party whose members are being redistributed (in this case, the Conservatives), is natural wastage not replenished.

Table 5 Redistribution by natural wastage by 2002, with increase in total size

Conservative Labour Lib Democrat Minor parties Cross-bench Total

Redistribution by natural wastage alone in 2002, by: seats percentage (Table 4)

Complete proportionality

Additional peers required by 2002

148 153 53 13 123 490

148 210 81 33 118 590

0 57 28 20 -5 100

30.2% 31.2% 10.8% 2.7% 25.1% 100%

If representativeness is to be achieved by the latest date for the next general election - 2002 - this would require the annual creation of about 55 peers: 27 Labour, 13 Liberal Democrat, 10 for the minor parties and 5 for the cross-benches. Option 2 Redistribution of peers by natural wastage, by 2002 The natural wastage rate among peers means, however, that a more representative balance could be achieved without the creation of as many as 223 new peers. The average annual number of deaths among life peers is 18. If death occurs proportionately among the parties,1 the government could redistribute Conservative losses between itself, the Liberal Democrats and the other parties as shown in Table 4. Redistribution of natural wastage rates alone would not achieve a proportionate result. There would still need to be an increase in the total number of peers (from 490 to 590) to achieve complete proportionality (Table 5).

1 A reasonable assumption, since there is virtually no difference in the current average age of Conservative life peers (69 years) and Labour life peers (67 years).

Option 3 Partial redistribution of peers by natural wastage, by 2007 A scheme whereby the Conservatives do not replenish the natural wastage rate among their life peers is unlikely to command political and public support. It would also leave the Conservatives with an ageing group of life peers. An option for the government would be to allow the Conservatives to replace each year about one half of their peers (ie 3-4 peers) lost through natural wastage - redistributing the rest to the other parties and look to achieve a representative second chamber over a longer time period (say by the latest date for the next election, 2007). Even over a longer timescale, however, Table 6 shows that 104 additional peers (11 per year) would still need to be created to achieve complete proportionality by 2007 (the figures do not take account of any end of parliament dissolution honours). The targets to achieve complete proportionality would have to be adjusted post-2002, since the objective would be to reflect the proportion of votes cast at the most recent election. Table 7 gives the results from a model that assumes that Labour wins the 2002 election, but with a reduced majority.

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Table 6

ROBERT HAZELL

Partial redistribution by natural wastage by 2007, based on 1997 election results

Conservative Labour Lib Democrat Minor parties Cross-bench Total

Table 7

Partial redistribution by natural wastage in 2007, by: seats percentage

Complete proportionality

Additional peers required by 2007

149 153 54 11 123 490

149 211 82 33 119 594

0 58 28 22 -4 104

30.4% 31.2% 11.0% 2.2% 25.2% 100%

Partial redistribution by natural wastage by 2007 (adjustedfor 2002 election)

Conservative Labour Lib Democrat Minor parties Cross-bench Total

Partial redistribution by natural wastage in 2007, by: seats percentage

Share of vote at 2002 election

Complete proportionality

149 153 54 11 123 490

35% 40% 17% 8% 20% 100%

149 170 72 34 106

30.4% 31.2% 11.0% 2.2% 25.2% 100%

Conclusion: attendance rates and the size of the second chamber (a) Attendance rates The figures used in this paper are all nominal ones, as they do not take into account peers' rates of attendance in the Lords. Yet these vary widely between the parties, with the result that the figures fail to capture the real numbers available to any of the parties or the crossbenches on any particular day. Table 8 shows, over the last three parliamentary sessions, the number of life peers who have attended for at least one third of the days in which the Lords has sat (a rough definition of a 'working peer'). If future attendance rates continue broadly in line with these figures, then rebalancing the party strengths in the Lords by relying on nominal figures would give a clear advantage to Labour and the Liberal Democrats. But it would be difficult to rebalance the number of life Table 8 Attendance rates of life peers, by party % of life peers attending one third of days in which the Lords has sat, 1994-97 Conservative Labour Liberal Democrat Cross-bench

65% 84% 85% 37%

531

Additional peers required by 2007

0 17 18 23 -17 41

peers using real, rather than nominal, figures. An alternative would be to impose minimum attendance requirements; the threshold would need to be set at a low level, however, so as not to penalise those peers who attend the Chamber infrequently, but who still make a significant contribution to its work. Also, it is not clear that any minimum threshold could be applied to existing peers, who would not have accepted their peerage on this condition. The problem will continue until the issue is resolved of whether peerages are awarded as an honour, or as a job of work. (b) Size of the second chamber As shown in Table 2, the ending of hereditary rights will reduce the Lords to a minimum of 490 party-affiliated and cross bench members (526 with the non-party peers and bishops). With a wholly nominated second chamber, this number is likely steadily to increase. We have developed a computer model to calculate the impact of different election results over the next twenty years2. Two scenarios have been used: one for election results with relatively minor fluctuations between the parties, and the other (based on the actual election results between October 1974 and 1987, showing the effect of more significant fluctuations. The first scenario - with minor fluctuations - involves 2

These calculations are available from the Constitution Unit.

REFORMING THE HOUSE OF LORDS: A STEP BY STEP GUIDE the creation of fewer new peers than the second scenario. But if natural wastage is not used it would still see the second chamber increase from 490 peers in 1997 to 713 peers in 2002 and 901 peers in 2017. If natural wastage is used to redistribute numbers between the parties, the total size of the second chamber would still need to increase sharply at first, from 490 peers in 1997 to 649 peers in 2002, but thereafter might remain almost steady, with 668 peers in 2017. Under the second scenario, and without using natural wastage, the size of the second chamber would increase from 490 peers in 1997, to 713 peers in 2002, to 887 peers in 2012 and 1,146 peers in 2017. If natural wastage is used, the size increases by about 100 peers in each parliament; from 490 peers in 1997, to 649 peers in 2002, to 676 peers in 2012 and 791 peers in 2017.

143

Thus, over the next twenty years, the House of Lords might easily increase from around 500 life peers to around 700-800 peers, if rebalancing took place after each election. The nature of the increase would depend on the swing between the parties at each election. If it is regarded as unacceptable that the size of the Lords should continue to rise in this way, then there are three options which the government might wish to explore: • to cap the size of the Lords at, say, 500 or 600 peers, and achieve only such rebalancing as was possible within this limit • to end peerages for life and make them term appointments for, say, two parliaments or ten years • to introduce a retirement age of, say, 75.

16 FREEDOM OF INFORMATION PRINCIPLES AND PROBLEMS: A COMPARATIVE ANALYSIS OF THE AUSTRALIAN AND PROPOSED UK SYSTEMS STEPHANIE PALMER*

The UK government's decision to introduce freedom of information legislation in 1998 has the potential to effect a major philosophical and cultural shift in the relationship between the citizen and the state.1 It reverses the traditional position in the UK that information held by government is secret unless governments choose to disclose information about its own actions and operations. Power is at the heart of secrecy in government and power and information are inextricably linked.2 Under the government's new proposals, government-held information is available unless there are strong reasons to the contrary. The White Paper suggests a recognition that both openness and secrecy are relative, rather than absolute values, and the new legislation will attempt to strike a balance between these competing public interests. The unfettered discretion accorded to governments in the dissemination of information will be subordinated to wider "considerations" of public interest reflecting the growing democratic theme in public law. This trend builds upon the commitment to democratic ideals * Girton College, Cambridge. 1 Your Right to Know. The Government's proposals for a Freedom of Information Act, Cm.3818, 1997. (Hereafter referred to as the White Paper.) 2 See Thomas, "Secrecy and Open Government" in Essays on Law and Government Volume 1, pps. 182-227, at p. 184 (The Law Book Company, Sydney 1995) and Report of a Commission of Inquiry Pursuant to Orders in Council (the Fitzgerald Report) July, 1989, Queensland, para. 3.22.

already established in freedom of expression decisions such as Derbyshire C.C. v. Times Newspapers Ltd.,3 which stressed the importance of uninhibited criticism of government bodies as an important part of the democratic process; and in Spycatcher (No 2)? where Lord Keith cited with approval from the Australian High Court: "It is unacceptable, in our democratic society that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticise government action."5 The needs of a democratic society have also been reflected in judgments of the European Court of Human Rights, for example, Goodwin v UK . 6

The Growing Demand for Openness in Government Britain has been described as an excessively secret state.7 Stringent secrecy laws and no general statutory right of access to government-held legislation have 3

[1993] 2 WLR 449. Attorney-General v Guardian Newspapers Ltd (No 2) [1990J 1 AC 109. 3 Ibid,, citing from Commonwealth of Australia v John Fairfax and Sons Ltd (1980) 147 CLR 39. at p.52 per Mason J. « [1996] 22 EHRR 123. 7 R. Austin, "Freedom of Information: the Constitutional Impact" in (eds.) J. Jowell and D. Oliver, The Changing Constitution (3rd ed.) (Clarendon Press, 1994) p 393. 4

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permitted governments the freedom to regulate the public dissemination of information. The government controls the form in which information is released as well the timing of any release. Such an authoritarian position aroused suspicions that governments could, and indeed would, elevate their interests over all others. These suspicions seemed confirmed by the inquiry into the collapse of the Matrix Churchill trial. Sir Richard Scott's Report commented upon the "consistent undervaluing by government of the public interest that full information should be available to Parliament"8 which had contributed to a lack of governmental accountability. In the past, governments of the United Kingdom have assumed that the priority should be to protect official information, whereas other Western democracies have favoured more openness, with a limited number of exceptions. Initially, reluctance to introduce more openness focused on constitutional objections. For example, after reviewing the practice of other countries in 1979,9 the government concluded in a Green Paper that a right of access could threaten Parliamentary accountability and ministerial responsibility.10 The introduction, after 1982, of freedom of information legislation in Australia, Canada and New Zealand made it impossible to sustain the argument that the administrative and constitutional arrangements of the United Kingdom were not suitable for such legislation: these countries possessed legal, political and social cultures similar to those of the United Kingdom, and in them, a guarantee of public access to official information was seen as an indispensable means of achieving greater governmental accountability. There is no express guarantee for the right of access to information in the European Convention on Human Rights. Article 10 ECHR provides for a right to "receive information" which has been held to be limited to receiving information "that others wish or may be willing to impart".11 More recently, the European Court of Human Rights has developed a limited right of access to information by way of a positive obligation under Article 8 (respect for private and family life). In the case of Gaskin v UK, I2 the Court found that in some circumstances an obligation on the government to impart information may arise. The UK was found to have violated the principle of proportionality in Article 8 because it

failed to provide for an independent authority to decide on the issue of disclosure. The UK procedures have been challenged again in McGinley and E.E. v UK.13 and the decision of the European Court is pending. This case concerns two servicemen who claim that they were exposed to nuclear bomb tests in the Pacific forty years ago. They have been denied access to their medical records. The previous Conservative government introduced a White Paper in 1993, Open Government,™ and in 1994, a Code of Practice on Access to Government Information. It also increased expectations of greater openness in the public sector. These modest changes did not make the disclosure of official information obligatory. They contained wide class-based exemptions. Overall they did not reverse the established ethos of secrecy in government. It became clear that far more radical methods would be required to achieve an open system of government. The present Labour government has acknowledged in the White Paper: "Unnecessary secrecy in government leads to arrogance in governance and defective decision-making. The perception of excessive secrecy has become a corrosive influence in the decline of public confidence in government. Moreover, the climate of public opinion has changed: people expect much greater openness and accountability from government than they used to." I5 FOI legislation contains a novel element: a shift in the balance of power from government to citizens. Open government is a fundamental component of the democratic ideal: accountability cannot be realised if the electorate is not fully informed. Flowing from the democratic ideal at least three specific justifications can be identified.16 The first has already been touched upon. A government open to scrutiny will become more accountable. There is a greater pressure for public authorities to be efficient, effective and responsive if their actions are open to scrutiny. Secondly, if citizens are adequately informed, they are more likely to participate in policy-making and government itself. Information on consumer and environmental issues provides citizens with the opportunity to make informed 13

Nos. 21825/93 & 23414/94. Cm. 2290 (1993). See Birkinshaw, "I only ask for Information" - The White Paper on open government", [1993] Public Law 557. There have been other changes over the last ten years see e.g. Access to Personal Files Act 1987; Access to Information (Local Government) Act 1985 and Environmental Information Regulations 1992 (SI 1992/3240). 15 White Paper, para. 1.1. 16 See Re Cleary and Depu of the Treasury (1993) 18 AAR 83. 87. 14

8 Report of the Inquiry into the Export of Defence Equipment and Dual-Use Goods to Iraq and Related prosecutions HC 115 (1995-6) Vols. 1- Vat para. D 1.165. 9 Disclosure of Official Information: A Report on Overseas Practice (HMSO, 1979) 10 Open Government, Cmnd. 7520 (1979), see para. 58. 1 ' Leander v Sweden Series A No. 116, p.29, para. 74 (1987). 12 Series A No.160, (1990).

FREEDOM OF INFORMATION - PRINCIPLES AND PROBLEMS choices and to contribute to the public debate.17 Finally, every citizen should have a right to know what information is held about themselves in government records. A vast amount of information is stored by government. The Franks Committee in 1972 observed that: 'The government possesses some information, at least, about every citizen and every firm in the land, in some cases it possesses a very considerable amount of such information."18 There is a natural and healthy desire by citizens to know what information the government holds about individuals and, if necessary, to check and correct inaccurate data. In this sense issues of privacy and FOI should not be viewed as totally separate developments.

A Comparative Approach The purpose of this paper is to analyse the key elements in the government's proposals by way of comparison with the operation of the Australian FOI law. Australia was the first country with a Westminster style of responsible government to introduce such legislation.19 The well developed Australian system provides a useful yardstick for analysing the proposals for freedom of information in the UK. Although it was anticipated that the Australian FOI would lead to more open government, accountability and greater citizen participation, the operation of FOI has been a disappointment. Competing interests have detracted from achieving the stated objectives. The ethos of secrecy remains largely intact and many public authorities have resisted the principle that all official information is to be made available unless it falls within a specified exemption.20 Some commentators have suggested that FOI legislation has impeded or even undermined efforts towards greater openness by diverting attention away from other methods that could achieve it.21 In 1995, the Australian Law Reform Commission and the Administrative Review Council jointly published a major review of the FOI Act 22 The Review considered that there were a number of deficiencies with the opera11 The White Paper makes no mention of this aspect of open government. 18 Report of the Departmental Committee on s.2 of the Official Secrets Act 1911, under the Chairmanship of Lord Franks, Cmnd. 5104 para. 192(1972). 19 Freedom of Information Act, 1982. (Hereafter referred to as FOIA). 20 Thomas, ibid., p.190. 21 See e.g. Thomas, ifrtrf., at p.191. 22 Australian Law Reform Commission, Report No. 77, Administrative Review Council, Report No. 40, Open Government: a review of the federal Freedom of Information Act 1982. Hereafter referred to as the ALRC.

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tion of the Act. In particular, there was concern about the number and breadth of the exemptions, the high cost of obtaining information and the quality of the current review procedures. Moreover, it was concluded that "the conflict between the old 'secrecy regime' and the new culture of openness represented by the FOI Act has not been resolved".23 The UK government has clearly examined the experience of freedom of information in other countries. The White Paper states that it contains some proposals which reflect overseas experience; but it also rejects ideas commonly encountered abroad.24 This paper will suggest that the government's proposals may succeed in avoiding many of the pitfalls of the Australian legislation. It will then assess the likelihood of a UK FOI Act transforming the culture of secrecy. (a) Objectives of Freedom of Information Legislation The fundamental principle of Freedom of Information legislation is that the public should be given a statutory right to know, rather than having to rely on authorisation, or leaks, to obtain information. Administrative law reforms in Australia during the 1970s signified a shift in ministerial and public service attitudes away from traditional government secrecy - a UK legacy - towards greater openness.25 The Freedom of Information Bill was introduced into the Senate in June 1978 by the Attorney-General at that time. Senator P. D. Durack. He emphasised the need for the administrative accountability of Ministers and their Departments, and a system of improved judicial and public scrutiny within a "Westminster based" system of government.26 The substantially amended bill27 was enacted in 1982.28 The object of the legislation is stated in section 3 of the federal Freedom of * Information Act, as being "to extend as far as possible the right of the Australian community to access information in the possession of the Government of the Commonwealth". This is to be achieved by making available information about the operations of departments and public authorities, 23

Ibid. para. 2.12. The Australian government has not yet responded to this report. 24 White Paper, para. 1.3. 23 These reforms included the Administrative Appeals Tribunal Act 197S, Ombudsman Act 1976 and the Administrative Decisions (Judicial Review) Act 1977. This shift was also evident in judicial decisions, for example see Sankey v. Whitlam (1978) 142 C.L.R. 1. 26 Australia Parit Senate, Hansard, 9 June 1978, pp.2693-2693. 27 See the Senate Standing Committee on Constitutional and Legal Affairs on the Freedom of Information Bill 1978. 28 Australia passed a Privacy Act in 1988. All the Australian states have passed freedom of information legislation.

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especially the rules and practices affecting members of the public,29 and by "creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities" limited only by a few exceptions and necessary exemptions.30 Clearly, the Australian Parliament intended the Act to be interpreted in a way that will promote disclosure.31 Information under the Australian system has to be released, unless the document is exempt.32 Experience from Australia suggests that it is essential that the object of the legislation should include the underlying principle of the Act, namely to ensure open and accountable government. The Australian Law Reform Commission considered that the objects of the Australian Act had led to some interpretative difficulties: it was possible to conclude that the right of access provided by the Act was an end in itself, whereas an object clause which explained the broader public interest to be served by enabling access to government documents would encourage an interpretation favourable to disclosure.33 According to the White Paper, the "presumption of openness" will be adopted in the UK legislation34: public authorities will be required to assess the harmful effects of disclosure and the need to safeguard the public interest, rather than the effects of withholding information.35 It is hoped that the UK government will include the underlying purpose of freedom of information in the Act itself, in order to encourage an interpretation of the Act which is consistent with its democratic purpose. Importantly, the UK government has recognised that the release of information under a FOIA is not an end in itself. Public authorities are to be encouraged to release as much information as possible voluntarily and some information, (e.g. internal manuals and performance indicators), are to be published as a matter of course.36 It may be possible for commonly requested categories of information to be routinely released.37 An "active" disclosure policy is an essential step in making government more open. Otherwise, the temptation will be to withhold information unless formal access is requested under the FOIA. The government acknowledges that it is in the best position to champion the^ cause of open government and to challenge the entrenched secrecy culture that has been an established 29 30 31 32 33 34 35 36 37

s. 3(1) (a) FOIA. s.3(l) (b) and s.l 1 FOIA. Sees.3(2). S. 18(2). ALRC paras. 4 . 4 4 . 6 . White Paper para. 3.1. Ibid, paras. 3.1 and 3.4. White Paper para. 7.4. See ALRC para. 4.19.

feature of the administration of the UK government. 38 This is undoubtedly the case, but it may also suggests the political vulnerability of steps taken to guarantee openness. Even with FOI legislation in place, the positive attitude of succeeding governments is pivotal if openness is to become part of the official culture of the UK. The Commission further recommended that the object clause should acknowledge that government-held information is a national resource. 39 The Queensland Information Commissioner elegantly summarised the position: The information which public officials, both elected and appointed, acquire or generate in office is not acquired or generated for their own benefit, but for purposes related to the legitimate discharge of their duties of office, and ultimately for the service of the public for whose benefit the institutions of government exist, and who ultimately (through one kind of impost or another) fund the institutions of government and the salaries of officials.40 This approach accords with the doctrine stated in The

Commonwealth v Fairfax, and approved in Spycatcher No 2, which held that the need of the government to keep its information secret from the public should yield to the needs of a democratic society.41 Such a commitment in the proposed legislation would strengthen the premise "that government-held legislation should be maintained carefully and should be generally accessible to the public."42 (b) Scope of the Legislation The UK government proposes that the scope of the new FOIA would have an impressively wide application. Freedom of Information will apply "across the public sector as a whole, national, regional and local level."43 This is a remarkable aspect of the White Paper because it goes much further than most overseas FOI provisions. Such application is vital if the legislation is to achieve its objectives. The proposed legislation will cover not 38

White Paper para. 7.6. ALRC para. 4.9. 40 Re Eccleston and Dept. of Family Services and Aboriginal and Islander Affairs (1993) 1 QAR 6 0 . 7 3 . Cited in ALRC para. 4.9. Note also the influence of the High Court "free speech" cases and the value placed on ensuring the proper working of representative democracy. See Australian Capital Television Pty Ltd. v Commonwealth (1992) 177 CLR 106 and Nationwide News Pty Ltd v Wills (1992) 177 CLR 1. 41 This approach is also consistent with the approach of the Australian High Court which considers government as the trustee for the people of Australia. 42 ALRC para. 4.9. 43 White Paper, para. 2.1. Note special arrangements for Scotland. 39

FREEDOM OF INFORMATION - PRINCIPLES AND PROBLEMS only government departments but, amongst others, privatised utilities, quangos, local bodies, Universities and Public Service broadcasters. Services performed for public authorities under contract will also be subject to the FOI.44 In contrast to the UK proposals, the Australian FOI Act has a more limited scope. For example, the Act does not include documents relating to organisations acting on behalf of a government department. Given the trend towards contracting public services to private sector bodies, this has had the effect of reducing FOI rights and has led to widespread criticism. The Australian Law Reform Commission took the position that it should not be possible for governments to avoid accountability and openness by contracting services to the private sector . 45 This view has been reiterated more recently by the Commonwealth Ombudsman, who considered that "the tenet and public interest of disclosure needs to be reaffirmed not only in traditional government activities, but also in the contractual arrangements being established with third parties supplying services on behalf of government."46 The wide scope of the UK government's proposals is consistent with the idea of freedom of information as a consumer issue.47 Governments regulate a great deal of economic and social activity in order to protect the public interest. Consumers are not in an advantageous position to make intelligent choices if the information upon which these decisions are made is never available. Governments acquire information, relating to consumer affairs, on such diverse issues as product testing, education, the environment, energy issues, transport, housing and planning. If, for example , a risk is associated with a certain product, then the consumer should be aware of it in order to be able to make an informed decision. Failure to provide access to such information fails to serve the public interest since it limits individual choice and prevents intelligent assessment of the performance of the government or privatised body carrying out the public service.48 The government's decision to include governmental activities that have been removed to the private sphere is to be especially welcomed. 44 Ibid., para. 2.2. The FOI Act will provide a further statutory example of public law values infiltrating the private sphere. See D. Oliver, "Common Values in Public and Private Law and the Public/Private Divide" [1997] Public Law 630. 43 ALRC, recommendations 99 and 100. 46 Report of the Commonwealth Ombudsman 1997, p.80. See also Senate Finance and Public Administration References Committee, "Contracting Out of Government Services" November, 1997. 47 R. Delbridge & M. Smith (eds.) Consuming Secrets (Burnett. London 1982). See also D. O&va,Government in the United Kingdom (1991) p. 169. 48 See Thomas, supra,, pp. 196-7.

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Although the scope of the FOI Act will be very broad, the exclusion of all aspects of the operation of the security and intelligence services is a cause of concern. MIS has moved into more traditional policing areas and undertakes tasks such as the investigation of fraud and computer security in Whitehall, which have no national security implications.49 It is widely accepted that national security matters should be excluded from the ambit of freedom of information, but access should be permitted to information which does not touch upon sensitive aspects of their intelligence operations.50 Such access would not conflict with the Official Secrets Act 1989 because these releases could be authorised.51 The right of access under the UK government's proposals will apply to all existing records and information, regardless of whether they were created before or after the Act comes into force.52 Anybody will be able to apply for information regardless of their intentions. The thirty year rule set under the Public Records Act will remain but more records will be released voluntarily before thirty years. Again the UK government's proposals are more generous than the equivalent Australian provisions. The Australian FOI Act only provides access to documents created after 1977.S3 This restriction was imposed because of concern that additional resources would have to be found if freedom of information was to be applied to older documents.54 The Archives Act provides access to documents that are more than thirty years old. As a consequence there is an "access gap": documents created fewer than thirty years ago but before 1977 are not generally accessible. Wisely, the UK government decided to avoid this unsatisfactory situation. Indeed, the Australian law Reform Commission has recommended that the FOI Act should be amended to apply to all documents less than thirty years old.55 (c) Material excluded from freedom of information A common feature of overseas freedom of information legislation is that the right of access extends to all official information other than that specified as exempt The purpose of the exemption provisions is to balance the objective of providing access to government information against legitimate claims for protection.56 49 The proposed legislation would only apply to the "administrative functions" o f the police. White Paper, para. 2.2. 30 Campaign for Freedom of Information, Checklist, (1997). 31 See s.7 Official Secrets Act 1989. 32 White Paper, paras. 2.13 and 6.2. 53 There are limited exceptions such as documents containing personal information. 34 See Senate Standing Committee 1979 Report, chapter 14. 33 ALRC para. 5.7. 36 ALRC para. 8.1.

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Inevitably, a tension exists between the principle of a right to know and any claim a government is permitted to make to resist disclosure of a document or information. The scope of exemptions in Freedom of Information legislation and the degree of independent judicial supervision are crucial. If the exemptions are too extensive, they make a mockery of such legislation. Under the Australian Freedom of Information Act documents are exempt when their "disclosure . . . would be contrary to the public interest". Apart from the exclusion of entire agencies, there are sixteen mandatory exemptions from disclosure, including requests which "could reasonably be expected to cause damage to": the security, defence or international relations of the confidential inter-govemmental Commonwealth;57 communications;58 and Commonwealth-State relations.59 Discretionary exemptions include; Cabinet and Executive Council documents;60 "internal working documents" which would disclose opinions or recommendations in the course "of the deliberate processes involved in the functions of an agency or Minister or of the Govemment of the Commonwealth",61 and would be against the public interest.62 The other exemptions are similar to those in the USA and Canada: law enforcement, especially the confidentiality of informants (s.37); trade secrets (with notice to third parties) (s.53); legal professional privilege; information that could adversely affect the economy of Australia (s.44); and contempt of Parliament and the courts, (s.46). Factual data and records of decision-making are not included in the exemption.63 Several sections require decisionmakers to decide that disclosure will have a "substantial adverse effect" before the exemption can be claimed.64 Personal privacy is also exempt.65 A privacy Act was passed in 1988 which gives an individual the right to know whether an agency holds any personal information.66 57

S. 33 FOIA. S. 11 FOIA. s » S.33 FOIA. 60 SS. 34 & 33 FOIA. See also Commonwealth v Northern Territory Land Council (1993) 176 CLR 604. 61 S.36(l) (a) FOIA. As a result of the 1983 amendments, documents concerning the processes and decisions of govemment are exempt See S.40FOIA. 62 S.36 (1) (b) FOIA. Disclosures concerned with the development of policy are well protected in the Australian Act. See P. Bayne, "Freedom of Information: Democracy and the Protection of the Processes and Decisions of Government", 62 The Aust. L.J. 538, (1988). 63 S. 36(5) & (6) FOIA. 64 Ss.39,40(1) ( c ) , ( d ) & ( e ) ; 44(1 )(a). 65 S. 41 FOIA. 66 See G. Greenleaf, "The Privacy Act 1988: Half a Loaf and Other Matters", 63 The Aust. L J. pp.116-118 (1989) and "The Privacy Act 1988: Enforcement and Exemptions", 63 The Aust LJ. 285-87(1989). 38

In relation to these exemptions, the responsible Minister may grant a certificate which establishes that the information to which the document relates is exempt material.67 This means, in effect, that the responsible Minister makes the decision whether or not to give access to sensitive documents.68 Apparently, it is not uncommon for a conclusive certificate to be issued after an applicant has lodged an appeal with the Administrative Appeals Tribunal.69 The breadth and "class-based" nature of some of the exemptions, the granting of conclusive certificates, and the amorphous nature of the public interest test, with agencies making general claims for exemption of documents without specifying the exemptions being claimed against each document affected, all these are some of the primary criticisms of this aspect of the operation of the Australian FOI Act.70 Again, the proposed UK scheme attempts to avoid many of the unsatisfactory aspects of the Australian system. The UK government's proposals are radical and consistent with the stated purpose of the proposed legislation. Of particular significance is the total rejection of the conclusive certificates or ministerial veto which have contributed to the loss of public confidence in open government in Australia. The government proposes a two-fold test. Firstly, "the test for disclosure under FOI should be based on an assessment of the harm that disclosure might cause, and the need to safeguard the public interest."71 In order to guarantee that decisions on disclosure will be based on a presumption of openness, the appropriate test for most categories of information will be a substantial harm test.72 This sets a high hurdle for the public authority to establish. This formulation suggests that it would be necessary to demonstrate that substantial harm would flow from the release rather than merely could do so. The government has identified seven specified interests, rejecting the 15 exemptions set out in the 1994 Code of Practice. This proposal departs significantly from the Australian system in that only a limited number of interests are to be protected by die harm test and disclosure will be assessed on a "contents basis" rather than a class basis.73 In theory, this should permit partial access to 67

s.36FOIA. There are some limits to conclusive certificates. See P. Bayne, supra , p.542. See Re Aldred and Dept. of the Treasury (1994) 35 ALD 685 on the general principles which restrict review when a conclusive certificate has been issued. 69 ALRC para. 8.20. 70 See generally, ALRC pp. 91-123.and Ombudsman Annual Report, 1996-7 p.76. S.34 FOIA is a class exemption. 71 White Paper, para. 3.4. 72 White Paper, para. 3.7. 73 This approach is consistent with the changes in PH. See R v 68

FREEDOM OF INFORMATION - PRINCIPLES AND PROBLEMS certain records considered sensitive.74 The specified interests are: national security, defence and international relations, law enforcement, personal privacy, commercial confidentiality, the safety of the individual, the public and the environment, information supplied in confidence and decision-making and policy advice. A controversial issue in most overseas FOI legislation is whether decision-making and policy advice should be disclosed. Such information will be of great interest to the media, opposition MP's and pressure groups, as well as individuals. Achieving greater transparency in government requires more of this type of information to be released but this is precisely the sort of material that most governments seek to keep confidential. The government proposes that a modified harm test, rather than the substantial harm test, will apply to applications for access to decision-making and policy advice. The government argues that it needs space, time and privacy in the decision-making process: premature disclosures of policy decision deliberations could be damaging. According to the government, freedom of information legislation should not challenge the convention of collective responsibility.75 The harm test, therefore, is likely to apply to high-level government records (Cabinet and Cabinet Committee papers, Ministerial correspondence and policy advice intended for Ministers) because release could risk undermining or fundamentally altering our present system of government. The White Paper lists the following factors which should be taken into account in determining the harm test in this area: the maintenance of collective responsibility; the political impartiality of public officials; the free and frank basis of advice and material relating to decisions still under consideration.76 Clearly, much policy advice and internal discussion may need to remain confidential since disclosure could genuinely interfere with the government's ability to develop policy. Nevertheless, some internal discussion could be disclosed without harm and would be consistent with the open government principle. As the government stresses, the harm test will be based on the contents and not the class of information requested. Hence it should be possible to obtain any innocuous material. Overall, these proposals pave the way for a more discriminating approach: in the past all policy Chief Constable of the West Midlands Police Force, ex p. Wiley [1995)1 AC 274. See also HC Deb, 18 December 1996, cols 949-50. And M. Suppcrstone, "A New Approach to Public Interest Immunity?" [1997] Public Law 211. S.34 FOIA exempts Cabinet documents and is a class exemption. 74

White Paper para. 3.8. White Paper para. 3.12. 7 « Ibid. 73

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advice was regarded as confidential, whereas the present proposals are prepared potentially to expose government information at all levels to FOI legislation.77 It is hoped that more policy and decision-making material may be made available after a policy decision is no longer under consideration. (The government is drawing a distinction between material still under consideration and other kinds of internal discussion material.) Considered assessments of a publicly announced policy are highly unlikely to be harmful to policy development. The decision of the last government to release the minutes of the monthly meetings between the Chancellor of the Exchequer and the Governor of the Bank of England, six weeks after the meeting had taken place, has not been detrimental to the decision-making process.78 Such transparency in decision-making may be beneficial for governments. For example, background material could show a policy decision was made for objective reasons and not for short-term political advantage. Knowledge that analysis may be exposed to outside scrutiny could even improve the quality of advice. A positive feature of the government's proposals is the distinction drawn between decision-making and policy advice on the one hand, and factual and background material on the other. The government plans to ensure that the latter is made publicly available.79 Such material is unlikely to be influenced by the prospect of release in the future. This is an improvement on the Australian system where reports of scientific or technical experts are excluded from the scope of the internal documents exemption.80 All decisions under the proposed FOI Act are also to be subject to a second criteria: a public interest test. Such a test permits all relevant considerations relevant to a particular request to be balanced. It is an important and positive feature of such legislation even though it can be difficult to perform such a balancing exercise. In Australia, the public interest is also a pivotal expression of the FOI Act However, as the Australian cases illustrate, the public interest has proved to be an "amorphous concept".81 At least three competing interests have been identified as having a claim to the label: "the public 77 Ibid. Some changes have already been introduced by the previous government See the Open Government, Code of Practice. (1994). 78 Campaign for Freedom of Information, Key Issues, p. 6 (1997). Compare the decision of Burmah Oil Co v Bank of England [1980] AC 1090. 79 White Paper, para. 3.13. 80 FOI Act 1982, s.36(6) (a). 81 Re Chapman and Minister for Aboriginal and Torres Strait Islander Affairs (1996) 23 AAR 142 at p. 157. The public interest is not defined in the FOI A c t

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interest in having access to government information; the public interest in the proper working of government and its agencies, which may favour confidentiality; and the public interest in protecting from exposure information which third parties would prefer to be kept private."82 Judicial interpretations of the public interest have changed over time in Australia. Early decisions were cautious in their interpretation of the public interest and deferential to government claims such as the need to keep confidential information exchanged between those in the higher level of government; the requirement to foster candour and frankness of exchanges between officials and Ministers ; and the need to prevent disclosure of sensitive government policies as always warranting denial of access to information.83 A lack of definition has made it difficult for agencies, applicants and even the AAT to apply the public interest test. The ALRC Report, which gives primacy to the democratic values underlying the Act, has rejected the blanket candour and frankness argument, that high political or bureaucratic office alone can warrant denial of access to information or that political embarrassment to a government could ever justify non-disclosure in the public interest.84 The UK proposals endeavour to avoid the equivocal nature of the public interest concept, although the competing interests still remain a feature. The White Paper states that "an attempt will be made in the Bill to increase the clarity and certainty of individual decisions by defining what constitutes the public interest."85 Such an approach could go some way towards ensuring the primacy of the democratic objectives of the Act. Australian experience suggests that it is inappropriate to rely on PII decisions in FOI determinations since the law is seeking to achieve different objects in these two separate contexts. Generally, the only aspect of the public interest favouring disclosure of government information in PII cases is the public interest in the due administration of justice. Moreover, the only purpose for which such disclosure is contemplated is for use in court proceedings. FOI decisions must take account of the core democratic values which lie at the heart of FOI. As a consequence, the public interest may be stronger in cases where, for example, the integrity of actions of the administration is being questioned.86 The "candour and frankness" argument, derived from PII cases, is widely 82

Finn, Introduction, 24 FIM, 231 (1996). These principles were listed in Re Howard and the Treasurer of the Commonwealth of Australia (1985) 2 AAR 503. See P. Bayne, "Recurring Themes in the Interpretation of the Commonwealth Freedom of Information Act, 24 FLR 287 (1996). 84 ALRC para. 8.15. 83 White Paper, para. 3.19. 86 Eccleston, supra, 41. 83

relied upon by Australian agencies. 87 (The importance of the free and frank basis of internal discussion is included by the UK government as a factor to be taken into account under the harm principle.) The Queensland Information Commissioner has sensibly commented: Even if some diminution in candour and frankness caused by the prospect of disclosure is conceded, the real issue is whether the efficiency and quality of a deliberative process is thereby likely to suffer to an extent which is contrary to the public interest. . . . In the absence of clear, specific and credible evidence, I would not be prepared to accept that the substance or quality of advice prepared by professional public servants could be materially altered for the worse, by the threat of disclosure under the FOI Act.88 The Commissioner went on to provide an example of where it may be necessary to preserve confidentiality on this basis: a public servant advising a Minister may need to be acceptable to a number of parties who have competing interests. The "preservation of confidentiality may be the only way of preserving the relationship of frankness between the official and all the parties." 89 In any event, it is hoped that any general "future effects" arguments by public authorities will be carefully scrutinised. Guidance on what constitutes the public interest could be especially useful for those who have to decide whether or not the public interest requires disclosure. The ALRC has also recommended that the FOI Commissioner issue guidelines to provide assistance for agencies on how to apply a public interest test. 90 Relevant factors would included whether disclosure contributed to a debate on a matter of public interest or enhanced scrutiny of government decision-making processes. Should such guidance be administrative or legislative? The Australian Report favoured the former on the grounds that what constitutes the public interest may change over time: it should remain a dynamic concept. Whatever the choice, it is important that such factors to be considered remain flexible. One public interest factor which would prohibit access of government-held information is the existence of other legislation which prevents disclosure. There are approximately 250 statutory prohibitions which prevent a public body from releasing information.91 In a welcome decision the government plans to repeal or 87 There is no evidence to show that civil servants have changed their advice due to FOI legislation. See R. Hazell, "Freedom of Information in Australia, Canada and New Zealand" 57 Public Administration 189, 204 (1991). 88 Eccleston, supra,, para. 134. 89 Ibid. 90 ALRC para. 8.14. 91 See Open Government, Cm 2290, (1993), Annex B.

FREEDOM OF INFORMATION - PRINCIPLES AND PROBLEMS amend many of the existing statutory bars to disclosure.92 The "effectiveness" of the Official Secrets Act 1989, however, will be preserved.93 As a consequence, the public interest test in the FOI Act will not result in a disclosure that would be prohibited by the harm test under the Official Secrets Act. There is of course no public interest test in the Official Secrets Act. This is a disappointing aspect of the new proposals. The proposed FOI Act will not cover the Security and Intelligence Services and the harm test in the Official Secrets Act is illusory - disclosure of security and intelligence matters per se is considered harmful.94 National security must be protected but as the security and intelligence services increasing undertake work not involving national security, this blanket exclusion is unsatisfactory. (d) Privacy and Freedom of Information It is inevitable that tensions will arise between the right of access under FOI legislation and the protection of personal privacy.95 The right of an individual to personal privacy will be one of the seven key specified interests governing disclosure under the proposed UK FOI Act. Yet, it would be inconsistent with the purpose of the proposed Act to exclude automatically all personal information from the ambit of FOI. As the government suggests, on occasions the disclosure of personal information may be in the public interest.96 The White Paper seems to have adopted the same approach as the ALRC. The tension between freedom of information and privacy is also evident in the Australian system. S.41 of the FOI Act states that: "a document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person)." The Privacy Act also provides protection for third parties. Information Privacy Principle 11 (IPP 11) prohibits the disclosure of personal information to another person except in a number of limited circumstances, such as where the individual consents to the disclosure or it is necessary for the enforcement of the criminal law.97 The ALRC recommended that the uneasy relationship between FOI and privacy should be clarified, especially as s.41 is one of the most frequently claimed exemp92

White Paper, para. 3.20. Ibid. 94 See S. Palmer, Tightening Secrecy Law: The Official Secrets Act 1989" [1990] Public Law 243. 93 Incorporation of the ECHR will provide a constitutional guarantee of the right to privacy in the UK. 96 White Paper, para. 3.11. 97 IPP11, l(b),(e).

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tions. The Report suggested that a document sought under FOI is exempt if it contains personal information that would constitute a breach of IPP 11. But an agency must also consider the additional factor of whether disclosure would not, on balance, be in the public interest, notwithstanding a breach of IPP II. 9 8 In addition, the Report recommended that guidelines should be issued to assist agencies in this difficult balancing exercise. The government has left open the issue of whether "a mechanism should be established to allow third parties to appeal against decisions to release information which they believe would cause "substantial harm" to their interests".99 In Australia, the requirement under the Act to consult with a third party has proved to be time consuming and delays the processing of the FOI request.100 Nevertheless, consultation and an appeal mechanism are essential if privacy is to be protected. The ALRC suggest two simple steps to reduce unnecessary consultation. First, if possible, the applicant should obtain the consent of the third party. Second, agencies should ascertain whether or not the applicant is interested in obtaining that third party personal information before starting to consult.101 The government proposes to enact new Data Protection legislation which will complement the FOI Act. Individuals will have the right to correct inaccurate personal information and rights of compensation. Inevitably, there will be an overlap between the jurisdiction of the Information Commissioner and the Data Protection Registrar and they will need to work closely together. (e) Provisions for Appeal Against Denial of Access to Information An effective and independent system of review and appeal is essential if a freedom of information system is to operate effectively. The White Paper states that the UK government favours "a mechanism which is readily available, freely accessible and quick to use, capable of resolving complaints in weeks not months."102 The government proposes a two-stage system of appeal. The first step will be an internal review. Experience from Australia suggests that such a review has the advantage of being quick and also acts as a "useful quality control mechanism, particularly as it gives [agencies] an early opportunity to identify and correct systemic problems

93

98

ALRC para. 10.7. White Paper, para. 5.19. 100 S.27A FOI Act .(Australia). 101 ALRC para. 10.16. 102 White Paper, para. 5.4.

99

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with their own decision-making processes."103 Problems, however, have been identified where the review is undertaken by officers of the same agency: it has led to delays and extra costs "without delivering a truly impartial and objective reconsideration of their case."104 The White Paper states that "the review should be carried out by an official who was not involved in the initial decision."105 The idea is that such a review should be an entirely fresh decision. However, overseas experience suggests that these internal reviews should be carefully monitored to ensure their effectiveness: many agencies did not respond within the thirty day time limit. 106 The second stage of appeal will be to an Information Commissioner. The new Commissioner will be an independent office holder who will be given a key role in promoting, interpreting and enforcing the new legislation.107 The success of freedom of information in the UK may lie with the Commissioner. He or she will be required "to investigate complaints that a public authority has failed to comply with the requirements of the Act either by refusing to disclose information, or by taking an unreasonable time to respond to requests, or by imposing excessive charges for information." 108 The wide-ranging powers of the Commissioner, in particular the power to order disclosure of records and information, is of great significance to the efficacy of the system. There will be no right of appeal to the courts but decisions of the Commissioner would be subject to judicial review.109 The Australian review mechanism has a complex structure, since use has been made of existing institutions. The Commonwealth Ombudsman has the authority to investigate complaints about administrative action and to report on her investigations, but this power is limited. She cannot substitute her views for that of an agency; nor can she investigate the actions and decisions of ministers. The Ombudsman can, however, initiate proceedings in the Administrative Appeals

Tribunal.110 During 1996-97, the Ombudsman dealt with 301 complaints about freedom of information.111 Apart from cases where the decision to refuse access has been made by the responsible Minister or the principal officer of an agency, there is an appeal to the Administrative Appeals Tribunal, but only after an internal review has taken place.112 An appeal can be made directly to the Tribunal if statutory time-limits are not complied with, or if the Ombudsman certifies that there has been an unreasonable delay in responding to a request.113 The unique feature of this Tribunal is the power to form its own view of the merits of a decision. It can set aside the decision under appeal and substitute its own conclusions.114 However, the power of the Tribunal is limited in two circumstances. First, the Tribunal cannot grant access to an exempt document.115 Second, in cases where a Minister has issued a conclusive certificate, the Tribunal can only determine whether there were reasonable grounds for the certificate.116 Even if the Tribunal concludes that there were not, the Minister need not accept the Tribunal's decision; but the Minister must give reasons and place a copy of these before both Houses of Parliament.117 An appeal on a point of law can be made to the Federal Court either directly or through the Administrative Appeals Tribunal. The elegant simplicity of the proposed UK system is potentially more effective than the Australian system. Importantly, the UK government has rejected the ministerial certificate or government veto as inconsistent with the objectives of freedom of information. The UK system has the advantage of making decisions informally, quickly and without great expense. Of course to achieve this aim, the Commissioner must be adequately funded. In contrast, the AAT proceedings in Australia have been criticised for the length of time taken to finalise reviews, the formality and cost of the proceedings and the quality of its decisions. Strong submissions were made to the Australian Law Reform Commission 110 111

103 A R C Report N o 39, Better Decisions: review of the Commonwealth Merits Review Tribunals A G P S Canberra 1995, para. 6.49. 104 Better Decisions, para. 6.50. 105 White Paper, para. 5.8. 106 During 1996-97, applicants in Australia challenged by way o f internal review just 5.9% o f adverse agency decisions. Agencies made 297 decisions on internal review, with 62.3% of those decisions affirming the original decision and 37.7% o f the decisions resulted in some concessions by the agency to the applicant - usually a decision to grant access with deletions. Annual Report 1996-97, Freedom o f Information 1982, (Attorney- General's Department, Canberra, 1997) p.14. 107 Ibid., para. 5.10. 108 Ibid. 109 Ibid. para. 5.16.

See S.52F FOIA. See Commonwealth Ombudsman's Annual Report, 1996-7 ,

p.75. IIZ

S. 54 FOIA There is a AS500 fee for an application to the Tribunal. During 1996-7, 117 application were lodged with the Tribunal. 11J See s.56 FOIA. 114 S.43 Administrative Appeals Tribunal Act, 1975. " J S. 58(2) FOIA. 116 S. 58(4) FOIA. See Re Waterford and the Treasurer of the Commonwealth (1985) 8 ALN 37, at 44, but compare with Re Association of Mouth and Foot Painting Artists Pty. Ltd. and Commissioner of Taxation (Cth) (1987) 12 ALD 781. Even if an applicant could demonstrate that none of the grounds in a conclusive certificate have a reasonable basis, the Tribunal may determine that some other reasonable ground exists. See Re Fewster and Department of Prime Minister and Cabinet (1986) 11 ALN 266. 117 S.58A(3)(b)FOIA.

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that the more flexible style of review offered by the Information Commissioner model (to be adopted by the UK) was preferable.118 The government has rejected an appeal to the courts on the basis that a public authority may use the appeal process as a delaying tactic. Moreover the threat of an appeal to the courts, with its accompanying prohibitive costs, can be an effective deterrent to an applicant. Some states in Australia have overcome this problem by only allowing the applicant to appeal to the courts.119 On balance, the proposed UK system seems very good. The Information Commissioner will be an expert in the field and will be able to establish authoritative precedents and practice guidelines which should reduce uncertainty and, it is hoped over time, the need for many appeals. (f) The Cost of Seeking Access to Information One of the most controversial aspects of a right to obtain freedom of information is the issue of fees. High costs could become an obstacle to access and undermine the purpose of the Act. It is a contradiction for governments to encourage individuals to use freedom of information but then effectively deny them this right by imposing prohibitive charges. Any decision concerning charges must reflect primarily the idea that the process is furthering democratic accountability rather than recovering costs. The Information Commissioner of Canada stated that: "[$20 million is] a bargain for such an essential tool of public accountability. The law pays for itself in more professional, ethical and careful behaviour on the part of public officials who must now conduct public business in the open."120 In the past, opponents of greater openness have rejected freedom of information legislation on the grounds of cost. 121 During 1996-97 in Australia, costs amounted to A$15.9 million, an increase of 9.67% on the previous year. Only 2.30% of this amount was recovered by way of fees and charges.122 The charges regime in Australia continues to be a controversial issue. The current system is that an FOI applicant must pay a A$30 application fee. It is widely acknowledged that even this nominal amount may deter people from 118 S e e ALRC p.171. The Commission did not recommend any changes to the system of review. 119 Freedom of Information Act (South Australia) 1991, s.40. 120 Quoted in ALRC para. 14.2. 121 Senate Standing Committee on Legal and Constitutional Affairs: Freedom of Information Act 1982: Report on the Operation and Administration of the Freedom of Information Legislation (AGPS 1987) at pp.29-33. 122 Annual Report 1996-97, Freedom of Information Act 1982, (Attorney- General's Department, Canberra, 1997)

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utilising the Act, especially given that this fee must be paid at the time the application is made.123 An agency may then impose charges "to meet the cost of processing the request and for various services such as photocopying and transcribing."124 Before processing the claim, the agency must give the applicant an estimate of the charges. Agencies have been criticised for either failing to provide applicants with an estimate or making exaggerated estimates in order to deter applicants.125 In the United Kingdom, the government proposes to introduce an application fee of up to £10, plus additional charges for requests which "involve significant additional work." Many of the same criticisms concerning charges in Australia are likely to arise in the UK. Clearly, imposing a strict user-pay principle would effectively undermine the objective of the Act. Nevertheless, a totally free system would impose a high and unsatisfactory financial and administrative burden on public authorities. The guiding principle should be that the Act is about empowering people by providing access to information held by public authorities. This cannot be achieved by a charges regime that is primarily concerned with cost recovery. Should applicants seeking personal information be charged any fee? The government is unlikely to favour such a position since an application fee is already charged for access to computerised personal files under the Data Protection Act. A powerful argument can be made that citizens should be able to obtain information held by about them by the government without a financial penalty.126 If trends in the UK follow the Australian pattern, the vast majority of requests will be from citizens seeking access to documents containing their own personal information.

Conclusions The democratic ideal underpinning FOI will not prevail unless the established ethos of secrecy in government is altered. The UK government's proposals in their progressive White Paper contain all the ingredients to be a catalyst for change. The new legislation will be accompanied by a policy of "active" disclosure. New duties will be imposed on public authorities to make information publicly available, as a matter of course.127 123

ALRC para. 14.10. The fee may b e remitted but not waived. ALRC para. 14.3. A waiver or reduction of these charges can besought 125 S e e Ombudsman Report 1 996-7 p.76. and ALRC para. 14.5. 126 This is the recommendation o f the Australian L a w Reform Commission. See para. 14.8. 127 White Paper, para. 2.18. 124

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User-friendly guides on FOI will be provided to the public, education and encouragement will be given to officials, and the operation of the Act will be carefully monitored by the FOI commissioner. As in Australia, these new changes are likely to have a marked influence on the decision-making process. The knowledge that decisions are open to scrutiny imposes a constant discipline on decision-makers. Tension between greater openness and the political pressures inherent in the parliamentary system will always exist, but the political commitment of the government to the success of FOI augers well for the immediate future. The wide scope of the Act and the proposal to appoint an independent Information Commissioner with legal

enforcement powers suggest that many of the practical difficulties encountered in the Australian system may be avoided. The provision for access to some civil service advice and discussion is also to be welcomed. The exclusion of all the activities of the security and intelligence services, as well as the possibility of application fees, which would act as a deterrent to individuals, are disappointing aspects of the proposals. But, on the whole, there is cause for optimism. The introduction of statutory rights of access with independent supervision should provide positive benefits in terms of increased accountability, efficiency and effectiveness of public authorities.

17 FREEDOM OF INFORMATION INITIAL PERSPECTIVES RICHARD THOMAS* "The Government is pledged to modernise British politics. We are committed to a comprehensive programme of constitutional reform . . . The traditional culture of secrecy will only be broken down by giving people in the United Kingdom the legal right to know. This [is a] fundamental and vital change in the relationship between government and governed . . . " The Prime Minister Preface to Freedom of Information White Paper1

Modern management theory calls for 360 degree appraisal - assessing people and proposals from all angles of perception. I certainly do not intend to attempt a full circular evaluation of the government's Freedom of Information plans. But the rather unusual career path which I have pursued over the last twenty-five years does perhaps enable me to attempt an initial review of these proposals from a number of quite different perspectives. I have in effect pursued a circuitous route - from articles at a City firm, to the Citizens Advice Bureau service, to the National Consumer Council, to the Office of Fair Trading, and now back to the City at Clifford Chance. Citizens' Adviser For five years in the 1970s, after qualifying in the City, I was one of the first two full-time solicitors for the Citizens Advice Bureau service - mainly providing legal advice and assistance to those whose lack of resources was matched only by the complexity of their problems. A lasting memory of this experience was the "Other Planet Syndrome". Quite frankly, a gulf of ignorance, mystery and mis-conception existed between two parties who can be crudely characterised as the "Little Man" and the "Monolithic State". For most of • Director, Public Policy, Clifford Chance 1 Freedom of Information - Your Right to Know, Cm 3818, December 1997. ("White Paper")

our clients the experience of dealing with the various arms of central and local government was nasty, brutish - but rarely short. Few understood how the public sector was organised; few cared. They rarely dealt with officialdom by choice. They "enjoyed" regular contact with the Housing Department, Social Services, Social Security, the Police, Immigration, National Insurance, the Tax Man and so on. If these bodies operated from another planet, then DTI, MAFF, the Foreign Office and many other more specialised parts of the machinery of government were regarded as exotic, and entirely unvisited, separate constellations. Public officials were largely regarded as remote, patronising and bewildering. The idea that those providing public services were ultimately accountable to the citizens at the CAB would be widely treated as a delicious joke. The audacious thought that such citizens would be entitled to officially held information about themselves and their lives would merit equal derision. Things have improved since the 1970s - not least under the influence of the Citizens Charter. But -if only in the cause of De-mystification - I wholeheartedly welcome the basic premise of the Freedom of Information proposals. I welcome the prospect of improved access to personal files and to information about decisions affecting peoples' daily lives. It must be right that there should be legally enforceable rights of access to personal information and a wide range of official records. I also welcome the pressure on public authorities to volunteer and publish more information

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about themselves and their activities. Above all, I welcome the change of culture which - alongside other public sector reforms - everyone agrees should be the lasting impact of freedom of information. The reversal of any lingering attitude that too much information is bad for the general public and the presumption in favour of disclosing, rather than withholding, information will both improve the democratic process and promote concepts of informed citizenship. Even discounting a little for ministerial hyberbole, I therefore believe that the Government is right to claim that:"Openness is fundamental to the political health of a modem state. This White Paper marks a watershed in the relationship between the Government and people of the United Kingdom. [A legal right to information] is central to a mature democracy."2 Consumer Advocate As Legal Officer and Head of Public Affairs at the National Consumer Council, I was involved in developing and propagating a more principled approach to Freedom of Information. The task of the NCC - a government-funded quango - was to identify and represent the interests of consumers. The fundamental principles used to develop policy were those of Choice, Information, Safety and Redress. Access to information was regarded as the lynch-pin. The NCC's particular contribution was a book published in 1982 entitled Consuming Secrets - How Official Secrecy Affects Everyday Life in Britain.3 It opened by quoting Sir William Wade's damning of section 2 of the Official Secrets Act 1911 as "Bad Law": "The law . . . shows a complete failure to understand that accessibility of information about the government of the country is of vital importance in a democracy. It is so crude, and so excessively severe, that it is rendered tolerable in practice only by the Attorney General's tight control of prosecutions. It also has the insidious effect of conditioning ministers and civil servants to believe that unauthorised disclosure of any official information ought to be a crime . . . It lowers the reputation of the public service. It has aggravated the secretiveness for which British administration has a bad name with its best informed critics.... It is a classic example of bad law creating bad practice."4

Consuming Secrets went on to document, in considerable detail, how important information about a wide range of services and concerns affecting the ordinary citizen was withheld from the public. Separate chapters addressed housing, education, the environment, planning, transport, product testing, social security and energy. The book recorded many examples such as factual information about schools, traffic census figures relating to a proposed by-pass, details of car faults collected through MOT tests and the notorious A Code which set out detailed internal guidance on supplementary benefit (income support) claims. The NCC position was summed up succinctly: 'The consumer case is a simple one: within government there is a great deal of information which would be valuable to consumers if it was publicly available and whose collection has been paid for by consumers through taxation and rating. Consumers should have a right to such information unless there are good reasons (such as national security, trade secrets, and personal privacy) against its release."s Since 1982 much has, of course, changed. The government publishes much more information. Section 2 of the Official Secrets Act has been repealed, 6 legislation has been introduced allowing more access to personal files in particular sectors7 and the Code of Open Government8 has been introduced. But it has taken some 16 years for that right to information to take real shape. From the perspective of the consumer advocate, the legislation will be welcomed for the benefits which it will bring for ordinary people in the conduct of their ordinary lives. Civil Servant/Regulator My own status was subsequently converted into that of a civil servant for the 6 years that I held office as Director of Consumer Affairs at the Office of Fair Trading. This admitted me to membership of the Whitehall Village, giving me each day fresh insight into its culture, its procedures and its attitudes. I think that Peter Hennessey exaggerated somewhat when he concluded that: "Secrecy is the bonding material which holds the rambling structure of central government together. Secrecy is built into the calcium of a British policy maker's bones."9 s

2

White Paper, Foreword by Chancellor of the Duchy of Lancaster. 3 Consuming Secrets, National Consumer Council, 1982, Burnett Books. 4 Written Evidence submitted to the (Franks) Departmental Committee on Section 2 of the Official Secrets Act 1911, Cmnd 5104,

1972,VoI2.pp411-12.

ConsumingSecrets,p\. Official Secrets Act 1989. Access to Personal Files Act 1987, Access to Medical Records Act 1989, Access to Health Records Act 1990. 8 Code of Practice on Access to Government Information, 2nd Edition, 1997. 9 Whitehall, Peter Hennessey, 1989, p 346. 6 7

FREEDOM OF INFORMATION - INITIAL PERSPECTIVES

There is, of course, more than a grain of truth here, reflecting traditional bureaucratic instincts. But the Whitehall reforms of the last 10 years have gone a long way to chip away at those instincts and consciously promote a more open and accountable environment. At the OFT our responsibilities pulled in various directions. As a non-ministerial department, we liked to think that we enjoyed a little more independence of spirit and scope for innovation, but in truth I do not think that we differed much from the rest of Whitehall. We found consultation exercises to be invaluable in drawing up policy proposals. We published a wide range of survey and other research materials. We were under a statutory duty to provide information and advice to members of the public.10 Here we built up a strong reputation for our publications, won international prizes for our videos and had no problems in working in conjunction with the Eastenders programme and BBC Radio 1 in order to hit our intended target. Equally we had no difficulty with the duty to publish a very full annual report, supplemented by a quarterly digest of activities. However, my time at the OFT also convinced me of the importance - and the difficulty - of striking the right balance between the public interest in disclosure and the public interest in confidentiality. As well as the more general restrictions, my staff and I had to be mindful of specific statutory prohibitions, such as Section 133 of the Fair Trading Act 1973 and Section 174 of the Consumer Credit Act 1974. As civil servants, we would be guilty of a criminal offence if we disclosed information with respect to any particular business which had been obtained under, or by virtue of, the legislation unless it could be shown to facilitate the performance of statutory functions. We found ways to relax the rigours of these provisions. For example, the Director General and I were convinced that it was essential - in terms of public protection - to publish the identity of companies on whom, after considerable sifting of evidence, we had served a formal Notice that we were Minded To Revoke their consumer credit licence. We found a way to do this, reversing previous practice.11 But it would be wholly unacceptable - and potentially very damaging to legitimate commercial activity - if any official had disclosed that preliminary and untested complaints about a particular company were being reviewed to see whether the company remained fit to hold a credit licence. Many allegations relevant to OFT functions for example, dealing with misleading advertisements, 10

Section 124, Fair Trading Act, 1973. ' General Notice No 33, issued by OFT under Consumer Credit Act 1974, June 1989, paras 3-6. 1

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unfair contract terms and cartels - are also received from competitors or insiders who would not volunteer valuable information if their contribution were to become public knowledge. Equally, there were occasions when policy advice to Ministers had to remain confidential, unless the entire framework of trust between Ministers and advisers were to be jeopardised. I am not sure that all civil servants and regulators will welcome the White Paper. Some will fear that the balance has been tipped too far in favour of disclosure. They, will - with arguments that should not be entirely dismissed - worry that their activities will be made uncomfortably transparent and that excessive daylight may in fact undermine the efficiency and effectiveness of both policy and executive functions. I believe, however, that the more enlightened officials have already sensed that climate change is already well under way and will have no great difficulty with proposals which strengthen both their accountability and their credibility. From the perspective of good public administration, I therefore welcome various features of the White Paper, in particular: • the coverage of virtually all public sector bodies, as well as government departments; • encouragement of proactive release of information; • emphasis on explanatory material on dealings with the public; • giving of reasons for administrative decisions; • repeal or amendment of the existing statutory bars to disclosure (some 200 Acts of Parliament) to bring them into line with the new harm and public interest tests; • a generally coherent exclusion and exemption regime, with appropriate provision for such specified interests as national security, personal privacy and public safety; • exclusion of law enforcement activities from the scope of the legislation (assuming that this covers regulatory work as well as the conduct of criminal and civil proceedings) and exemption for other information which could substantially harm the effectiveness of law enforcement; • a ("simple") harm test for exemption of policy advice, though the precise parameters and time of application of this test may need to be elaborated. It will be essential to strike the right balance between (i) an automatic assumption that all disclosures of policyrelated matters would be harmful and (ii) such wholesale and premature openness that democratic decision-making and other governmental processes would become impossible.

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Corporate Adviser When I review the Freedom of Information proposals from my current perspective - responsible for public policy at Clifford Chance - I start again with a positive welcome for the basic principle. The White Paper makes it clear that the right to access official records and information will be available to any individual, company or other body. There will be no need to demonstrate or state a purpose in applying for information. All requests will be considered equally on their content, not on the stated or presumed intentions of the applicant. Nor should there be scope for any doctoring of the material - the right, when it applies, will provide access to actual records and documents, including electronic records, tape and film. This should be widely welcomed by the business community. Many companies are unaware of how much helpful information is held by government departments and other public authorities. Sadly, many companies also seem to think that public officials inhabit another planet. Within government, however, there is a treasure trove of material which can be used to commercial advantage. This includes official statistics, survey results, the costs of public services, the factual analyses which underpin government policy and data about particular companies and their competitors. Information will be available which has previously only been available - if at all — after a protracted discovery process or because denial amounted to breach of natural justice.12 The tradition of secrecy has run deep and even the most dynamic companies have not taken full advantage of their rights under the existing Code of Practice on access to government information. There is no doubt that one major effect of the new proposals will be to alert businesses to the range of useful information which is held and the means by which it might be obtained. One aspect which will need to be examined closely will be the charging regime. The White Paper anticipates the possibility of a two-tier charging approach to impose higher charges on commercial and other corporate users of the Act. One can perhaps understand the concern that a uniform fee or charge may penalise the individual applicant. But there seems to be little logic, and considerable unfairness, in imposing higher charges - possibly substantially higher charges - on "commercial users" (assuming they can be readily identified) for seeking precisely the same information as the personal applicant It will be difficult to justify such discrimination when the cost to the Department will be the same in 12

See for example, R. v Secretary of State, ex. p. UST1I (1992) 1 All ER 212.

each case. It may even be in breach of EU competition law as an abuse of a dominant position.13 Although the USA experience has been that corporate users have been the primary beneficiaries of FOI legislation, I suspect that most UK businesses will, at least initially, see the proposals more as a threat than as an opportunity. Companies supply public authorities with vast amounts of sensitive information, some under compulsion, some voluntarily. Concerns will multiply as awareness spreads that the legislation will effectively be retrospective - applying to information whenever it was supplied to government. If sensitive information has been supplied to the public sector will the media, pressure groups and - above all - competitors be able to get hold of it? What damage might be caused to the company's activities and plans? What skeletons may rattle in government filing cabinets? Privatised utilities, private companies carrying out statutory functions and government contractors - including those supplying services under the Private Finance Initiative - may be particularly surprised to leam that the White Paper treats them in the same way as public authorities. In other words, they will have to respond to demands to supply information, documents and records. The exemption for commercially confidential information will of course be crucial in these areas. In principle, it will be wholly welcomed. The White Paper makes it clear that commercial confidentiality will be one of the specified interests justifying non-disclosure. This is non-controversial and is to be found in FOI regimes around the world. However, there may be concerns at the further need (even where commercial confidentiality has been established) to show that disclosure would cause "substantial harm". The same approach will apply to the separate ground for nondisclosure - where information was supplied in confidence. This latter ground appears to be confined to circumstances where "an obligation of confidentiality exists", and may possibly be even narrower in scope given that the White Paper goes on to refer somewhat vaguely to: "... protection for people or organisations whose communications with the public authorities were covered by explicit undertakings of confidentiality, or at least a reasonable expectation that the law of confidentiality applied to them."14 The draft Bill will doubtless supply many of the answers, but numerous questions of detail need to be addressed about these exemptions. In particular:

13 14

Treaty of Rome, Article 86. White Paper, paragraph 3.11.

FREEDOM OF INFORMATION - INITIAL PERSPECTIVES • What exactly is meant by "commercial confidentiality"? The Guidance on Interpretation on the Open Government Code15 provides a starting point, but it is not clear whether this will form part of the legislation. Even "trade secrets" have given rise to problems of judicial interpretation.16 At the moment, government departments also seem to have sharply differing approaches. For example, some departments refuse to give any information about payments made to outside contractors on the ground of commercial confidentiality; others give only a global figure; others give full details of individual contracts. In another example, the Ministry of Agriculture and Fisheries refused to identify incinerators disposing BSE infected cattle until it was realised that the names were already in the public domain.17 • How will the substantial harm test work? On whom, or on what interests, must the harm be inflicted before non-disclosure of admittedly confidential material can be justified? How will the substantial harm and public interest tests inter-act in practice? What if there would be substantial public benefit (eg. disclosure of environmental risk assessments) but substantial harm to the company (eg. plunging share price). • How will those making decisions about disclosure be aware of the confidential status of the information, or the nature of the harm which disclosure would cause? The White Paper leaves open whether a mechanism should be established to allow third parties to appeal against decisions to release information.18 Commercial interests are likely to argue strongly that such a mechanism will be absolutely essential, and indeed that there should be a duty to notify any third party of any relevant request and invite representations before decisions are made. • Will a framework be put in place for businesses to signal their assertion from the outset that information - even its existence - is commercially confidential? • What will be the position where information - particularly that provided in the past - was not explicitly covered by a confidentiality undertaking, or which otherwise falls outside the complex provisions of the law of confidentiality? There may have been every expectation that the information would remain inside government, and considerable detriment may be caused by disclosure. Will such material now be freely available? Do we really want detailed analyses ls Open Government Code of Practice - Guidance on Interpretation, Cabinet Office, January 1997. 16 Restraint of Trade and Business Secrets, Mehigan and Griffiths, 1996. Misuse of Trade Secrets, Law Commission, 1997. 17 Press Release, 29 October 1997, Campaign for Freedom of Information. 18 Wute Paper, paragraph 5.18.

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of the law of confidentiality to decide the outcome? • Will there be any remedies for wrongful disclosure? Lawyer My final perspective - picking up a thread that has run through all the activities in which I have been involved - is simply that of a lawyer with a particular interest in effective dispute resolution mechanisms. My experience here draws upon my membership of the Lord Chancellor's Civil Justice Review19 and involvement with the creation of the various private Ombudsman schemes. The Freedom of Information White Paper devotes a chapter - Review and Appeals - to dispute resolution and enforcement. It recognises that independent machinery is needed, both to reach judgements on competing public interest requirements and to ensuring that the new rights are actually enforced. The great constitutional issue is whether the proposed Information Commissioner should ultimately be answerable to Parliament or to the courts. The government has rejected direct Parliamentary accountability in favour of an independent officer answerable to the courts, without any form of political override. On a more mundane level, the proposed arrangements attempt to address the criteria by which dispute resolution/enforcement systems are increasingly assessed accessible? fair? cheap? speedy? Internal review by an official who was not involved in the initial decision to withhold information is a sensible pre-condition for complaining to the Commissioner, especially if carried out within a specified and acceptable timescale. This mirrors exhaustion of domestic remedies in the legal arena and the "deadlock" requirement in most Ombudsman schemes. The Commissioner's role will obviously be pivotal to the entire legislation, particularly as there will be power to order disclosure, with recourse to the courts as a contempt issue. The Parliamentary Commissioner only received 44 complaints in 1996 under the Open Government Code, but the new legislation is likely to produce a heavier workload for the Commissioner, particularly given that the media and politicians have scarcely used the existing appeal arrangements at all.20 The powers available to the Commissioner, including the interesting right to resolve disputes via mediation, are wide-ranging. The political sensitivity of the role is perhaps understated, particularly as there will explicitly be no provision for any sort of Ministerial Certificate or 19

Civil Justice Review, 1988, Cm 394. Access to Official Information, September 1997, W J Tate, Deputy Parliamentary Commissioner. 20

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Veto, whether on public interest or other grounds. It is not necessary to read every chapter of the Scott Report to appreciate that the Commissioner will be making decisions on some very hot political potatoes which many politicians and officials would prefer to keep away from the public domain. The exemption where ("simple") harm would be caused to the integrity of decision-making and policy advice processes in government may well prevent disclosure of most controversial material, though I have suggested above that this test may need to be elaborated. Even then, there may be occasions when the Commissioner will conclude that disclosure of embarrassing or controversial material would nevertheless be harmless. It is certainly possible to predict that the Commissioner will require more than the ability to make "fine judgements"21 when holding the ring between the machinery of government in the one hand and, on the other, an array of aggressive media, interest group, commercial and political interests. The courts, too, will quickly play a key role in the inevitable disputes, many of which will generate considerably more political controversy than much of the human rights litigation. The Commissioner will be subject to Judicial Review by a disappointed applicant if it can be suggested that he has acted improperly in denying access. Equally, the government department or public authority - and apparently a third party - which is unhappy with a disclosure order may well be able to seek Review of that order. Interesting times ahead for the courts, though they are not without experience of ruling on questions of disclosure of government information. 21

Conclusions Most commentators will welcome legislation which will promote a culture of governmental openness. It is good for people to be informed about matters which affect them; it should improve democratic processes; and it should improve the quality of decision-making. It will not be easy for politicians or officials, nor for many commercial interests, but no doubt suitable adjustments will be made. In general the White Paper strikes a balance in favour of greater openness than many had expected. We must await the draft Bill, the legislation as enacted, and the first few years' experience to see how it will all work in practice. My prediction is that the most important or sensitive issues are likely to be: - the precise parameters of the policy advice exemption; - anxieties about the "retrospective" element; - the elaboration of the commercial confidentiality and "supplied in confidence" exemptions; - the need for an effective Third Party appeal system; - the precise powers of the Commissioner; - the implications of judicial involvement in political processes. One thing is certain. From every perspective, the constitutional landscape will be changed.

White Paper, paragraph 5.1.

This paper has drawn particularly from the contributions of Charles Ramsden, John Tate, Maurice Frankel, Michael Smyth, James Goudie QC and Prof Patrick Birkinshaw at the conference on Freedom of Information - Implications for Companies and Government, London, 29 October 1997.