Parliament and the Law 9781472561473, 9781849462952

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Foreword Parliament regularly takes knocks. The expenses scandal, and the consequent imprisonment of several of its Members, has been the most severe in recent times. It has compounded the denigration of politics and politicians which is the staple diet of important parts of the media. Scandals typically beget law as a solvent. In the past Parliament has usually been able to stave off legal responses with tightened self-regulation in line with the principle that it has exclusive cognisance over its own affairs. Not so this time. The House of Commons Committee on Standards now has outsiders sitting with Members and under the Parliamentary Standards Act 2009 there is the regulation by a statutory body of Members’ expenses, salaries and pensions. Law born of scandals can be hasty law and an over-compensation for the lack of preventive action in the past. That has been the perception of some MPs of the operation of the Independent Parliamentary Standards Authority, established under the 2009 Act. Parliament weakened creates space for intrusion by other institutions of the state. That has been the experience following the expenses scandal. Members in the United Kingdom have never enjoyed the immunity from legal process of legislators elsewhere. Nor should they. But in the course of the prosecution of Members for expenses abuses the Supreme Court reduced the historic scope of parliamentary privilege. That comes on top of the worrying opinion of some senior judges that the courts have power to strike down an Act of Parliament if it violates fundamental constitutional principles (defined, as would be the case, by the judges). This is a profoundly anti-democratic doctrine, not least because it does not incorporate the parliamentary override (perhaps with special procedures) or a reversal by popular referendum, which are a feature of jurisdictions with constitutional courts. Fortunately free speech in Parliament, guaranteed by article 9 of the Bill of Rights 1689, remains unscathed. It was never under serious threat by the interim injunctions which the courts issue against publication by the media because of arguable breaches of confidence or privacy. More law means more legal advice. Internal legal advice to Parliament has expanded since the days when it could rely on the law officers and Speaker’s counsel. The position with lawyer-Members is more uncertain. The days are long past when full-time legal practice was readily combined with membership of the Commons. The Lords are not short of practicing lawyers, although there is the intriguing issue of whether the supply of former judges will dry up since an appointment to the Supreme Court does not carry with it a life peerage. What Parliament lacks in persons it makes up for in committees. The House of Lords Constitution Committee has played an important role in examining constitutional norms. Other select committees, such as the Justice Committee

vi Foreword in the Commons, have performed an essential role in rendering accountable the activities of the state. No longer can judicial independence be invoked as the lazy excuse for shielding the administration of the justice system from parliamentary scrutiny. In spite of these challenges, the wheel may have turned and Parliament may be on the up. Parliamentary fire was trained on the media over the phone hacking scandal. The Parliamentary Committee on Banking Standards has focused on a colossal scandal in what, before the effective nationalisation of important banks, was private sector activity. For those who value Parliament as the key institution of the state, its recovery is not a moment too soon. But there is an important point here. Our system does not have the institutional checks and balances of other jurisdictions. A degree of tension is inevitable. For the system to operate successfully much depends on conventions, on pragmatic compromises and on mutual restraint and respect. Respect only comes with ethical behaviour and high standards. This book, published under the auspices of the Study of Parliament Group, is very much to be welcomed. The editors are to be applauded for their initiative. The essays in the collection cover some of the issues touched on above, but more, such as devolution and freedom of information. The various authors have a profound knowledge of Parliament’s operation. The essays are a mine of information. For that reason the chapters will prove a springboard for further analysis. But the book is more than that because it raises some profound issues about Parliament’s future and its relationship with other institutions of the state. Those in Parliament, whether as Members or officials, and those interested in Parliament, such as academics, public officials (including, dare I say judges), and many others besides, will all learn from it. Sir Ross Cranston FBA

Preface This book is the result of a project which was first suggested at the Study of Parliament Group’s Annual Oxford Weekend Conference at Worcester College in January 2011. For those who are unfamiliar with the work of the SPG, it was originally founded in 1964 by the distinguished political scientist, Bernard Crick, and the senior House of Commons Clerk, Michael Ryle, as a forum in which parliamentary scholars and officers of the two Houses of Parliament could meet to discuss (under the Chatham House rule of confidentiality) matters of mutual interest to do with parliamentary practice and reform. The Group, which will celebrate its 50th anniversary in 2014, is still going strong, with approximately 200 members (its website is www.studyofparliament.org.uk/). In addition to political scientists and parliamentary officials, the SPG also includes a number of prominent constitutional lawyers. Contributors to this volume include members from each of these categories. In 1998, the SPG commissioned the publication of a collection of essays, entitled The Law and Parliament which formed part of Butterworth’s Law in Context series. Edited by two of the current editors, Dawn Oliver and Gavin Drewry, that important work considered many of the most interesting issues of the day, including devolution, the incorporation of the European Convention on Human Rights and wider issues around accountability and modernisation, some of which were inspired by the policies of the (then) recently elected Labour Government. Much has changed since 1998 and rather than producing a second edition, the editors decided to commission an entirely new book with many new contributors— mainly members of the SPG, but also others (for example legal practitioners, such as Hugh Tomlinson QC). Some issues that were considered in the earlier volume, such as the Parliamentary Ombudsman and ‘Hansard and the interpretation of statutes’ have not been addressed here, since they have been overtaken by other matters of contemporary concern. At the outset, it is important to note that this is neither a textbook, nor a comprehensive guide to Parliament, nor a treatise on the law-making process. Readers looking for such works would find Erskine May on Parliamentary Practice, Griffith and Ryle on Parliament: Functions, Practice and Procedures, Michael Zander’s The Law Making Process and Rogers’ and Walters’ How Parliament Works—all mentioned at appropriate points in the chapters that follow—useful starting points. This book, like its predecessor, is a collection of essays, examining issues that are at the heart of current concerns and debates about parliamentary and constitutional reform. It is divided into three thematically distinct sections. Although the chapters are self-standing essays, they have been cross-referenced where the editors thought that this would be of assistance to readers.

viii Preface The first part: ‘Privilege and Conduct’ introduces the concepts of parliamentary privilege and ‘exclusive cognisance’ and engages with a number of practical questions, including: the operation of parliamentary privilege (chapter one) and its interaction with the civil and criminal law (chapters two and three). These chapters also touch on matters raised in the Government’s Green Paper on parliamentary privilege, published in April 2012, which was under consideration by a Joint Committee of Parliament at the time of writing. Many of the issues considered in this part of the book have been particularly contentious following the Members’ expenses scandal that emerged in the months that preceded the 2010 general election. This resulted (amongst other things) in the establishment of the Independent Parliamentary Standards Authority (IPSA), which is addressed, along with the subject of Members’ conduct, in chapter four. Other issues have formed part of a broader debate: for example the question of ‘super-injunctions’ in privacy cases. Their impact on Parliament (and those interacting with Parliament) is considered in chapter two. The second part of the book is entitled ‘Parliament: Internal Arrangements’. It considers the legal and procedural advice available to Parliament and parliamentarians (chapter five). It also examines the effect of the Freedom of Information Act 2000 on Parliament (chapter six) and the powers and functions of parliamentary select committees (chapter seven). It concludes (in chapter eight) by looking at the impact of devolution on the UK Parliament. The final part of the book, ‘Rights, the Constitution and the Legal System’ provides two case studies, examining the work of two of Parliament’s ‘watchdog committees’: the Joint Committee on Human Rights (chapter nine) and the House of Lords Constitution Committee (chapter eleven). Between these two contributions is a chapter on the effect on Parliament of the Human Rights Act 1998. This reflects on the vexed and, at the time of writing, unresolved issue of whether we should have a new Bill of Rights (and Parliament’s potential role in delivering one). Part III of the book also contains some more theoretical reflections, considering the significant questions that have arisen over the issue of parliamentary sovereignty (chapter twelve). The final chapter (chapter thirteen) examines Parliament’s relations with the courts and the administration of justice following the introduction of the Constitutional Reform Act 2005, which removed the Law Lords to a new Supreme Court and dramatically changed the constitutional role of the Lord Chancellor. A truly collaborative multi-disciplinary work, this volume contains perspectives on the workings of the UK Parliament from insiders (House of Commons Clerks and researchers of the House of Commons Research Service in the Commons Library, and past and present Legal Advisers to select committees) who are at the heart of the system, critical academic perspectives, and insights from practitioners. The editors have benefited from the kind and invaluable assistance of many members of the SPG—both contributors and non-contributors—when editing

Preface ix the chapters. We offer our thanks to the anonymous colleagues who helped with this task. The editors’ good fortune in having been able to draw upon such a rich and wide-ranging fund of wisdom and experience has made our task both interesting and congenial—and will, we are confident, ensure that the book becomes an invaluable and unique resource for constitutional lawyers, political scientists and practitioners. Finally, we would like to thank Richard Hart, Rachel Turner, Mel Hamill and Robert Crossley at Hart Publishing for their assistance and support throughout this project. Alexander Horne Gavin Drewry Dawn Oliver February 2013

Detailed Contents Foreword—Sir Ross Cranston .....................................................................................v Preface—Alexander Horne, Gavin Drewry and Dawn Oliver ................................ vii Contributors .............................................................................................................xxi Table of Cases ........................................................................................................ xxiii Table of Legislation............................................................................................... xxvii Part I: Privilege and Conduct ................................................................................1 1. Privilege, Exclusive Cognisance and the Law ................................................3 Liam Laurence Smyth I. Introduction .................................................................................................3 A. The Claiming and Granting of Privileges of the House of Commons ...........................................................................................5 II. The Privileges, and Contempt of Parliament..............................................7 A. Freedom of Speech .................................................................................7 B. Freedom from Arrest ..............................................................................8 C. Right of Access to the Monarch ...........................................................11 D. Favourable Construction ......................................................................11 E. Punishment for Contempt of Parliament............................................12 III. Exclusive Cognisance: Powers in Relation to Membership of the House ...............................................................................................13 A. The Power to Expel Members ..............................................................13 B. Resignations, the Chiltern Hundreds and Statutory Disqualification .....................................................................................14 C. Recall of MPs? .......................................................................................17 D. Lay Members of the Commons’ Committee on Standards ................18 IV. Parliament and the Courts.........................................................................20 A. The Application of Statutes to Parliament ..........................................21 B. Privilege and Judicial Proceedings .......................................................21 V. Attempts to Reform Parliamentary Privilege ............................................24 A. The Background: Some History ...........................................................24 B. The Joint Committee on Parliamentary Privilege 1997 to 1999, and after .........................................................................26 C. Members’ Expenses ...............................................................................28 D. The Green Paper on Parliamentary Privilege 2012 .............................30 E. A New Joint Committee on Parliamentary Privilege ..........................32 VI. Postscript ....................................................................................................32

xiv Detailed Contents 2. Privilege and Freedom of Speech .................................................................35 Oonagh Gay and Hugh Tomlinson QC I. The Elements of Article 9 of the Bill of Rights 1689 Protection ..............35 A. Freedom of Speech ...............................................................................37 B. What are ‘Proceedings in Parliament’? ................................................39 C. What Constitutes ‘Impeaching or Questioning’? ................................41 D. What is a Place out of Parliament?.......................................................43 E. What Does Article 9 Protect? ...............................................................44 F. Article 9 and the European Convention on Human Rights ...............45 G. Limitations on Article 9 ........................................................................46 H. Enforcement of Article 9 ......................................................................48 II. The Sub Judice Convention, Injunctions and Contempt of Court ..........50 A. Injunctions and Super-injunctions ......................................................52 B. The Neuberger Report ..........................................................................54 C. ‘Active Proceedings’...............................................................................55 D. The Joint Committee Report on Privacy and Injunctions and the Green Paper .............................................................................56 E. Right of Reply .......................................................................................57 F. Citation of Select Committee Evidence ...............................................59 III. The Courts and Reference to Hansard ......................................................59 IV. Protections for Communications with Constituents ...............................62 V. Conclusion..................................................................................................64 3. Parliamentary Privilege and Criminal Law .................................................67 Sally Lipscombe and Alexander Horne I. Introduction ...............................................................................................67 II. Privilege Claims Based on Article 9 of the Bill of Rights and Exclusive Cognisance ..........................................................................68 A. Criminal Acts Committed within the Precincts of Westminster ........70 B. Corporate Dispensations: The Graham-Campbell Doctrine and its Erosion ......................................................................................72 C. Issues over Bribery and Corruption ....................................................73 III. Two Case Studies ........................................................................................74 A. The Case of Damian Green and Searches of the Parliamentary Estate ..................................................................74 B. The Case of Members’ Expenses ..........................................................81 IV. Reflections ..................................................................................................86 4. The Law and the Conduct of Members of Parliament .................................89 Richard Kelly and Matthew Hamlyn I. Introduction ...............................................................................................89 II. Electoral Matters ........................................................................................92 A. The Background: Determination of Election Disputes by the House of Commons ..................................................................92 B. Transfer of Jurisdiction over Election Disputes to the Courts ...........92

Detailed Contents xv III. The Declaration and Register of Members’ Interests ............................95 IV. The Committee on Standards in Public Life and a Code of Conduct for Members of Parliament .....................................................97 A. The Parliamentary Commissioner for Standards.............................98 V. Party Funding and Donations and Loans to Members .......................101 A. Dual Reporting of Interests .............................................................102 VI. Members’ Expenses and IPSA ...............................................................103 A. Arrangements in the House of Commons in Relation to Members’ Allowances ......................................................................104 B. The MPs’ Expenses Scandal 2009 ....................................................106 C. The Passage of the Parliamentary Standards Act 2009 ..................108 D. Compliance ......................................................................................110 VII. Investigation of Members’ Expenses—Questions of Jurisdiction ............................................................................................111 A. Convictions for Expenses Fraud: the Aftermath ............................113 VIII. The House of Lords ...............................................................................114 A. Appointment of the House of Lords Commissioner for Standards ....................................................................................114 B. Disciplinary Powers of the House of Lords ....................................115 IX. Reflections..............................................................................................116 Part II: Parliament: Internal Arrangements .....................................................119 5. Legal Advice to Parliament .........................................................................121 Andrew Kennon I. Introduction ..........................................................................................121 II. Internal Sources of Advice ....................................................................122 A. Speaker’s Counsel and the Legal Services Office (Commons) and Counsel to the Chairman of Committees (Lords) ..................123 B. Select Committee Legal Specialists ................................................124 C. The Scrutiny Unit (Commons) .......................................................125 D. Commons Library Department for Information Services .............................................................................................125 E. Members of Parliament ...................................................................125 III. External Sources of Advice....................................................................126 A. The Role of the Law Officers ...........................................................126 B. Parliamentary Counsel ....................................................................127 C. Ministers and Government Departments.......................................128 D. The Judiciary ....................................................................................129 E. Non-judicial Evidence to Committees ............................................133 IV. Putting the Advice to Work...................................................................133 A. The Member of Parliament and his Constituency Function: A Hypothetical Case Study ..............................................................136 V. Conclusion .............................................................................................137

xvi Detailed Contents 6. Freedom of Information and Parliament ..................................................139 Ben Worthy I. Introduction: The Freedom of Information Act 2000 ...........................139 A. Application of the FOI Act to the Two Houses of Parliament..........140 B. What Does FOI Cover and How Does it Work? ...............................142 C. FOI Requests to Parliament................................................................144 II. Parliamentary Privilege and FOI .............................................................146 III. The Impact of FOI on Parliament ..........................................................147 A. Transparency .......................................................................................147 B. Accountability .....................................................................................149 C. Trust .....................................................................................................150 IV. The MPs’ Expenses Scandal .....................................................................152 A. FOI Requests and Appeals ..................................................................153 B. Why Did the Scandal Happen? ..........................................................155 C. The Aftermath .....................................................................................156 V. Other Changes resulting from FOI .........................................................157 A. Tax Status of Peers ..............................................................................157 B. Lobbying Access ..................................................................................158 VI. Closing Comments...................................................................................158 7. Select Committees: Powers and Functions ................................................161 Richard Kelly I. Introduction .............................................................................................161 II. Role of Select Committees .......................................................................165 A. Scrutiny of Legislation by Select Committees ...................................168 B. Post-legislative Scrutiny ......................................................................172 C. Pre-appointment Hearings.................................................................174 D. Parliamentary Commission on Banking Standards ..........................178 E. Evidence on Oath ................................................................................179 F. Lay Members of the Committee on Standards..................................180 G. Statutory Committees.........................................................................182 III. Select Committee Powers.........................................................................184 A. Sub Judice ............................................................................................185 B. The Power to Send for Persons, Papers and Records ........................186 C. Sanctions .............................................................................................190 IV. Reflections ................................................................................................195 8. The Impact of Devolution on the UK Parliament .....................................197 John McEldowney I. Introduction .............................................................................................197 II. Devolution in Context .............................................................................198 A. Scotland ...............................................................................................199 B. Wales ....................................................................................................204 C. Northern Ireland .................................................................................208 D. England ...............................................................................................210

Detailed Contents xvii III. Issues for the UK Parliament ................................................................212 A. The West Lothian and English Questions.......................................212 B. Legislative Consent Motions ...........................................................215 C. Parliamentary Procedures and Select and Grand Committees .......216 D. Elections and Referendums .............................................................218 IV. Summary and Conclusions ...................................................................219 Part III: Rights, the Constitution and the Legal System ..................................221 9. The Joint Committee on Human Rights ....................................................223 Murray Hunt I. Parliament and the Rule of Law ...........................................................223 II. The JCHR and Legislative Scrutiny ......................................................227 A. Focus on Significant Human Rights Issues.....................................227 B. Information Provided to the Committee: Explanatory Notes.......229 C. Towards Human Rights Memoranda..............................................230 D. Pre-legislative Scrutiny ....................................................................233 E. Post-legislative Scrutiny ...................................................................236 III. Responses to Courts’ Judgments Concerning Human Rights ............237 A. Scrutiny of Remedial Orders ...........................................................237 IV. Human Rights Treaty Monitoring ........................................................238 V. Thematic Inquiries ................................................................................240 A. Standards ..........................................................................................240 B. Selection of Inquiry Subjects...........................................................241 VI. Sources of Human Rights Standards ....................................................242 VII. Diversity of Views about Human Rights ..............................................243 VIII. Effectiveness of the JCHR .....................................................................244 A. Guidance and Legislative Standards................................................245 IX. Reflections..............................................................................................247 A. Mainstreaming Human Rights and the Rule of Law in Parliament ....................................................................................247 B. Law’s Place in Parliament ................................................................248 10. From the Human Rights Act to a Bill of Rights?.........................................251 Alexander Horne and Lucinda Maer I. The Story of the Human Rights Act 1998 ...............................................251 A. No Love Lost? Human Rights, Politicians and the Public..............255 B. The Human Rights Act and the Role of the Judges ........................258 II. The Interactions between the Strasbourg Court, Domestic Courts and Politicians in the UK..........................................................260 A. The Prisoner Voting Issue ................................................................260 B. Strasbourg and Sovereignty .............................................................261 III. Towards a ‘British’ Bill of Rights?..........................................................263 A. Rights and Responsibilities..............................................................264 B. ‘Britishness’ ......................................................................................265

xviii Detailed Contents C. Rights and Devolution........................................................................265 D. Economic and Social Rights ...............................................................267 E. Ownership of a Bill of Rights .............................................................267 F. Will the Coalition Deliver a Bill of Rights?........................................269 IV. Relations with the European Court of Human Rights ...........................276 V. Conclusion................................................................................................278 11. The House of Lords Select Committee on the Constitution .....................281 Andrew Le Sueur and Jack Simson Caird I. Introduction .............................................................................................281 II. Origins, Personnel, Operation .................................................................283 A. Origins .................................................................................................283 B. Membership ........................................................................................284 C. The Influence of the Chairman ..........................................................287 D. Committee Staff and Advisers ............................................................287 E. Other Committees ..............................................................................288 III. Legislative Scrutiny...................................................................................289 A. Scope....................................................................................................289 B. Process of Bill Scrutiny .......................................................................290 C. Standards .............................................................................................292 D. Case Study on the Legislative and Regulatory Reform Bill 2006 ......293 E. Case Study on the Health and Social Care Bill 2011 .........................297 IV. Policy Inquiries .........................................................................................300 A. The Inquiry Process ............................................................................301 B. Assessing the Impact of Inquiries ......................................................302 C. Case Study on Deployment of British Armed Forces Abroad ..........302 V. Dialogue with the Judiciary .....................................................................304 VI. Conclusions ..............................................................................................307 12. Parliament and the Courts: A Pragmatic (or Principled) Defence of the Sovereignty of Parliament .................................................309 Dawn Oliver I. The Doctrine of the Sovereignty of Parliament......................................309 A. Sovereignty vs Privilege ......................................................................311 B. The Special Position of European law ...............................................313 C. A Democratic Principle?.....................................................................313 II. A Choice for the UK: Constitutional Supremacy or Parliamentary Sovereignty and Pragmatism? .........................................315 A. Towards Judicial Striking Down of Statutory Provisions? ................316 B. Parliamentary Sovereignty—a Doctrine, not a Democratic Constitutional Principle .....................................................................317 C. A Hypothetical ....................................................................................318 III. Conflict, Comity and Culture in Relations between the Courts, Parliament and the Executive ..................................................................321 IV. Deterrents against Abuse of Parliamentary Sovereignty ........................323

Detailed Contents xix A. Political Cultural Capital ....................................................................323 B. International and European Standards..............................................324 C. The Houses of Parliament: Select Committees .................................327 D. Some Reflections .................................................................................329 V. What More Is To Be Done about Parliamentary Sovereignty? ..............330 A. A Written Constitution? .....................................................................331 B. Stronger Parliamentary Committees .................................................332 C. A Greater Role for the Courts? ...........................................................333 D. Towards an Independent Scrutiny Commission?..............................334 VI. Summary and Conclusions......................................................................335 13. Parliamentary Accountability for the Administration of Justice .............339 Gavin Drewry I. The Constitutional Territory of Accountability......................................339 II. A Negative Tradition of Accountability—the View from the Lord Chancellor’s Window ...............................................................................342 A. Non-accountability in the 1980s ........................................................344 B. Enter Lord Mackay—the Green Paper Furore ..................................345 III. New Public Management and the Administration of Justice.................347 IV. The Constitutional Reform Act 2005—Redrawing the Boundaries ......350 A. Some Implications for Parliamentary Accountability.......................352 V. The Ministry of Justice and Parliament ..................................................355 A. The Role of Select Committees ..........................................................356 VI. Conclusion................................................................................................359 Index .......................................................................................................................363

Contributors Sir Ross Cranston is a judge of the High Court, Queens Bench Division. He is also a Visiting Professor of Law at the London School of Economics and Political Science. He was a member of the House of Commons in the United Kingdom from 1997–2005. He was Solicitor General from 1998–2001. Previously he was Centennial Professor and Cassel Professor of Commercial Law at the London School of Economics. Before that he was Lubbock Professor of Banking Law, Director of the Centre for Commercial Law Studies and Dean of Laws at Queen Mary & Westfield College. He was called to the Bar by Gray’s Inn. He is a Fellow of the British Academy. Gavin Drewry is Emeritus Professor of Public Administration at Royal Holloway, University of London and an honorary professor in the Faculty of Laws at University College London. He is a former Chair of the Study of Parliament Group. Oonagh Gay is Head of the Parliament and Constitution Centre at the House of Commons Library. She is the Deputy Chair of the Study of Parliament Group. Matthew Hamlyn has worked in the House of Commons since 1987 in a wide variety of procedural and administrative roles. From 2001 to 2004 he worked on secondment in the Foreign and Commonwealth Office as head of the Parliamentary Relations and Devolution Department. In 2009–10 he worked on the project to transfer responsibility for MPs’ expenses from the House of Commons to the newly-created Independent Parliamentary Standards Authority (IPSA). Since 2010 he has been Head of the Office of the Chief Executive and secretary of the Management Board of the House of Commons. Alexander Horne was called to the Bar in 1999 (Lincoln’s Inn). Having previously been the Legal Adviser to the Constitutional Affairs Committee, he is now Senior Researcher for Human Rights, Public Law and Terrorism at the Research Service of the Commons Library. He is a consultant for the Centre for Defence Studies, King’s College London and is the Official Secretary to the Study of Parliament Group. Murray Hunt has been Legal Adviser to the Joint Committee on Human Rights since 2004. He was called to the Bar in 1992 and as a practising barrister he was a founder member of Matrix, where he specialised in public law and human rights. He is a Visiting Professor in Human Rights Law at the University of Oxford. Richard Kelly is a Senior Researcher at the Parliament and Constitution Centre in the House of Commons Library.

xxii Contributors Andrew Kennon has been an official of the House of Commons since 1977 and is now Clerk of Committees. He was called to the Bar in 1979 (Gray’s Inn). He is the co-author (with Professor Robert Blackburn) of the second edition of Griffith and Ryle on Parliament: Functions, Practice and Procedures (Thomson Sweet & Maxwell, 2003) and has written on parliamentary procedure and reform in various publications. Liam Laurence Smyth is the Clerk of the Journals in the House of Commons and Commons Clerk of the Joint Committee on Parliamentary Privilege. Sally Lipscombe is the Senior Researcher on Criminal Law at the Research Service of the Commons Library. Previously, she worked as a solicitor at the international law firm, Freshfields Bruckhaus Deringer. Lucinda Maer is Head of the Research and Library Central Team in the House of Commons Library. Previously a Senior Researcher in the Parliament and Constitution Centre in the House of Commons, she is also member of the Executive Committee of the Study of Parliament Group. John McEldowney is Professor of Law at the School of Law, University of Warwick. His research interests include constitutional law, and legal history. He has published widely in this field. Dawn Oliver is Emeritus Professor of Constitutional Law, University College London. She is President of the Study of Parliament Group. Jack Simson Caird is a PhD student at Queen Mary University of London and is the Academic Secretary to the Study of Parliament Group. Andrew Le Sueur is Professor of Constitutional Justice at the University of Essex. He has acted as a specialist adviser to House of Commons and House of Lords Committees and was Legal Adviser to the House of Lords Constitution Committee 2006–09. Hugh Tomlinson QC is a member of Matrix Chambers and of the Inforrm Committee. He is also a founding editor of the UKSC blog. Ben Worthy is lecturer in Politics at Birkbeck College, University of London. He was the Research Associate in Freedom of Information and Data Protection at the Constitution Unit at University College London. He led a two-year research project examining the impact of FOI on Westminster.

Table of Cases United Kingdom A-G v De Keyser’s Royal Hotel Ltd [1920] AC 508 ............................................................... 4 Anisminic v Foreign Compensation Commission [1969] 2 AC 147 .............................................................................................. 310, 316, 330 Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 ........................................................................................ 315 Attorney General v Leveller Magazine Ltd [1978] 3 All ER 731; [1979] AC 440; [1979] 2 WLR 247 (DC) ........................................................... 51 AXA General Insurance and others v The Lord Advocate [2011] UKSC 46; [2011] CSIH 31 .................................... 202, 266, 310, 314, 316–17, 330 Aylesbury Election case 1704-05 ............................................................................................ 3 Beach v Freeson [1972] 1 QB 14 .......................................................................................... 62 Bell (John) case (1827) ......................................................................................................... 23 Bowles v Bank of England [1913] 1 Ch 57 ........................................................................ 314 Bradlaugh v Gossett (1884) 12 QBD 271 ....................................................................... 69, 80 Bribery Commissioners v Ranasinghe [1965] AC 172 (PC) ....................................... 311–13 British Railways Board v Pickin [1973] QB 219 .................................................................. 20 Buchanan v Jennings [2005] 1 AC 115 ................................................................................. 40 Cadder (Peter) v HM Advocate [2010] UKSC 43 (SC) ..................................................... 203 Chamber (Henry) (1866) CJ 239 ......................................................................................... 70 Cheney v Conn [1968] 1 All ER 779 .......................................................................... 309, 317 Church of Scientology of California v Johnson-Smith [1972] 1 QB 522 ................................................................................................................ 43 Corporate Officer of the House of Commons v Information Commissioner and others [2008] EWHC 1084 (Admin); [2009] 3 All ER 403 (HC) ........................................ 121, 142, 155 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 ............................................................................................ 315, 318 Edinburgh and Dalkeith Railway v Wauchope (1842) 8 Cl 7 F 710 .................................................................................................. 309, 311 Ellen Street Estates v Minister of Health [1934] 1 KB 590 ........................................ 309, 313 Floyd’s Case (1621) ............................................................................................................... 70 Fraser (Nat Gordon) v HM Advocate [2011] UKSC 24 .................................................... 203 Ghaidan v Godin-Mendoza [2004] UKHL 30 ................................................................... 253 Hamilton v Al Fayed [2000] UKHL 18 ............................................................................ 85–6 Harmon CFEM Facades (UK) Ltd v Corporate Officer of the House of Commons [1999] 67 Con LR 1 (TCC) ................................................. 73 HM Advocate v McLean [2009] HCJAC 97; 2010 SLT 73 ................................................. 203 M v Home Office [1994] 1 AC 377 (HL) ........................................................................... 319 McInnes v HM Advocate [2010] UKSC 7 .......................................................................... 204

xxiv Table of Cases Office of Government Commerce v Information Commissioner [2010] QB 98; [2008] EWHC (Admin) 737 .............................................................. 59–60 Padfield v Minister of Agriculture [1968] AC 997 (HL) ................................................... 315 Parliamentary Privilege Act 1770, Re [1958] AC 331 (PC) ................................................. 37 Pepper v Hart [1993] AC 593 .......................................................... 33, 43, 46, 48, 59, 61, 127 Pickin v British Railways Board [1974] AC 965 ........................................................ 309, 311 Prebble v Television New Zealand [1995] 1 AC 321 ........................................................ 42–3 R v Chaytor and others [2010] UKSC 52 .................................................. 19, 28–9, 36, 38–9, 61–2, 67–71, 73, 78, 82, 84, 86–7, 113, 121, 147, 312 R v Criminal Injuries Compensation Commission, ex p Lain [1967] 2 QB 364 (DC) .................................................................................... 318 R v DPP, ex p Kebilene [2000] 2 AC 326 ............................................................................ 252 R v Eliot, Holles and Valentine (1629) 3 State Tr 293–336 ........................................... 35, 68 R v Graham-Campbell, ex p Herbert [1935] 1 KB 594 ............................................. 21, 72–3 R v Home Secretary, ex p Brind [1991] 1 AC 696 ................................................................ 47 R v Horncastle [2009] UKSC 14 ......................................................................................... 262 R v Lord Chancellor, ex p Witham [1998] QB 575 ............................................................ 316 R v McCann (1990) 92 Cr App Rep 239 .............................................................................. 53 R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213 ............................................................................................... 297 R v Rule [1937] 2 KB 375 ...................................................................................................... 62 R v Secretary of State for the Home Department, ex p Leach (No 2) [1994] QB 198 ................................................................................... 316 R v Secretary of State for the Home Department, ex p Pierson [1998] AC 539 .................................................................................... 310, 316 R v Secretary of State for the Home Department, ex p Simms [2000] 2 AC 115 .......................................................................................... 310, 316 R v Secretary of State for Transport, ex p Factortame (No 2) [1991] 1 AC 603 .......................................................................................... 311, 313 R v Special Adjudicator, ex p Ullah [2004] UKHL 26 ....................................................... 262 R (Age UK) v Secretary of State for Business, Innovation & Skills & Ors [2009] EWHC 2336 (Admin); [2010] ICR 260 ..................................................................... 59–60 R (Animal Defenders’ International) v Culture, Media and Sport Secretary [2008] UKHL 15 ............................................................................ 324 R (Bailey and Others) v Brent London Borough Council & Others [2011] EWCA Civ 1586 .................................................................... 273 R (Bradley) v Secretary of State for Work and Pensions [2007] EWHC 242 (Admin) ............................................................................................. 59 R (F) v Secretary of State for the Home Department [2010] UKSC 17 .......................................................................................................................... 238 R (Fawcett Society) v Chancellor of the Exchequer [2010] EWHC 3522 ........................................................................................................ 273 R (Federation of Tour Operators) v HM Treasury [2007] EWHC 2062 (Admin) ........................................................................................... 59 R (Jackson) v Attorney General [2005] UKHL 56; [2006] 1 AC 262 ...................................................................................... 121, 317, 319, 321

Table of Cases xxv R (Pelling) v SSHD [2011] EWHC 3291 (Admin) ............................................................ 296 R (Wheeler) v Office of the Prime Minister and Secretary of State for Foreign and Commonwealth Affairs [2008] EWHC 1409 .............................................................................................. 60 R (Woolas) v The Parliamentary Election Court and others [2010] EWHC 3169 (Admin) ....................................................................... 95 Ridge v Baldwin [1964] AC 40 (HL) .................................................................................. 315 Roberts v Parole Board [2005] UKHL 45 ............................................................................ 61 Rost v Edwards [1990] QB 460 ............................................................................................. 43 Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28 ................................................................................................. 262 Sheriff of Middlesex case (1840) 11 Ad & El 273 ........................................................ 48, 312 Somerville v Scottish Ministers [2000] UKHL 44 ............................................................. 204 Stockdale v Hansard (1839) 9 Ad & El 1; (1839) 112 ER 1112 ................................................................................. 21, 48, 54, 69–70, 72, 312 Thoburn v Sunderland City Council [2002] EWHC 195 (Admin); [2003] QB 151 ..................................................................... 4, 253, 310, 313 Watkins v Woolas [2010] EWHC 2702 (QB) ...................................................................... 94 Weleminsky case .................................................................................................................... 64 Welsh (James) (1860) CJ 258 ................................................................................................ 70 Whaley v Lord Watson of Invergowrie 2000 SC 340 (Ct of Session, Inner House) .......................................................................................... 201 Wilson v Secretary of State for Trade and Industry (Appellant) [2003] UKHL 40 ........................................................................................... 46

Australia R v Murphy (1986) 5 NSWLR 18 ..................................................................................... 42–3

Canada R v Bunting (1885) 7 OR 524 (Ontario SC) ........................................................................ 38

European Court of Human Rights A v United Kingdom (2003) 36 EHRR 51 ..................................................... 12, 45, 121, 252 A and Others v United Kingdom [2009] ECHR 301 ......................................................... 278 Animal Defenders International v UK, (Application no 48876/08) Grand Chamber, 22 April 2013 ...................................................................................... 324 Chahal v UK (1997) 23 EHRR 413 ..................................................................................... 261 Demicoli v Malta (1992) 14 EHRR 47 ................................................................................. 45 Friend v United Kingdom (2010) 50 EHRR SE6 ............................................................... 232 Gillan and Quinton v United Kingdom [2009] ECHR 28 ................................................ 278 Goodwin v United Kingdom (2002) 35 EHRR 447 .......................................................... 234 Greens and MT v United Kingdom (2011) 53 EHRR 21 .................................................. 234 Hatton v United Kingdom (2003) 37 EHRR 611 .............................................................. 262

xxvi Table of Cases Hirst v United Kingdom (No 2) [2005] ECHR 681; (2006) 42 EHRR 41 (GC) ..................................................... 61, 129, 234, 260–1, 323, 325 S and Marper v United Kingdom [2008] ECHR 1581; (2009) 48 EHRR 50 (GC) ....................................................................................... 233, 278 Salduz v Turkey (2008) 49 EHRR 421 (GC) ...................................................................... 203 Scoppola v Italy (No 3) [2012] ECHR 868 ........................................................................ 260 SH v Austria (20011) 52 EHRR 6 ....................................................................................... 232 Tyrer v United Kingdom (1979–80) 2 EHRR 1 ................................................................. 277

Ireland, Republic of Dillon v Balfour (1887) 20 LR Ir 600 ................................................................................... 41 Egan v Macready [1921] 1 IR 265 ...................................................................................... 320

New Zealand Leigh v Gow [2011] NZSC 106 ............................................................................................ 47 Moonen v Board of Film and Literature Review [2000] NZLR 9 (NZCA) ................................................................................................. 333 R v Hansen [2007] 3 NZLR 1 (NZSC) ............................................................................... 333

United States of America Brown v Board of Education, 347 US 483 (1954) ............................................................. 323

Table of Legislation United Kingdom Act of Union with Scotland 1707 ......................................................................................... 37 Apprenticeships, Skills, Children and Learning Act 2009, s 36 ........................................... 21 Bank of England Act 1998 .................................................................................................. 284 Bill of Rights 1689 ....................................................................................... 26, 37, 64, 68, 266 Art 9 ................................................................................... v, 4, 7, 26, 28, 35–48, 50, 55, 59, 61–2, 64–5, 68–70, 73–4, 80–3, 85, 108, 127, 180, 311 Bribery Act 2010 .................................................................................................................... 74 Business Rate Supplements Act 2010 ................................................................................. 211 Church of England Assembly (Powers) Act 1919 .............................................................. 182 Communications Act 2003 ................................................................................................. 324 Compensation Act 2006 ..................................................................................................... 307 s 1 ..................................................................................................................................... 307 Constitutional Reform Act 2005 ............................................ viii, 130–1, 188, 298, 304, 323, 341, 347, 350–2, 356–7, 359–60 s 1 ..................................................................................................................... 225, 323, 326 s 5 ..................................................................................................................................... 354 s 5(1) ................................................................................................................ 130, 306, 354 s 5(2)–(5) ......................................................................................................................... 354 s 137 ................................................................................................................................. 188 Constitutional Reform and Governance Act 2010 .................................................... 109, 182 s 5 ..................................................................................................................................... 325 s 26 ................................................................................................................................... 110 s 40 ................................................................................................................................... 109 ss 268–275 ....................................................................................................................... 158 Sch 3 ................................................................................................................................. 110 Sch 6 ................................................................................................................................. 109 Contempt of Court Act 1981 ................................................................................................ 51 Convention Rights Proceedings (Amendment) (Scotland) Act 2009 .............................. 204 Courts Act 1971 ........................................................................................................... 342, 344 Courts and Legal Services Act 1990 ................................................................................... 347 s 110 ................................................................................................................................. 345 Criminal Justice Act 2003 s 321 ................................................................................................................................... 22 Sch 33 ................................................................................................................................. 22 Criminal Justice and Court Services Act 2000 ..................................................................... 44 Criminal Law Act 1967, s 1 ................................................................................................... 14 Criminal Procedure (Insanity) Act 1964 .............................................................................. 84 s 4A .................................................................................................................................... 84 Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 ........................................................................................................ 203

xxviii Table of Legislation Criminal Procedure (Scotland) Act 1995 ........................................................................... 203 Damages (Asbestos-related Conditions) (Scotland) Act 2009 ......................................... 202 Data Protection Act 1998 ...................................................................................... 63, 118, 122 s 40 ................................................................................................................................... 140 Defamation Act 1996 .................................................................................................. 38–9, 82 s 12 ..................................................................................................................................... 39 s 13 ......................................................................................................................... 26, 31, 33 Defamation Act 2013 ...................................................................................................... 57, 64 Department of Justice Act (Northern Ireland) 2010 ......................................................... 198 Deregulation and Contracting Out Act 1994 .................................................................... 169 Devolution Acts see Government of Wales Act 1998; Northern Ireland Act 1998; Scotland Act 1998 Digital Economy Act 2010 .................................................................................................. 170 Disability Discrimination Act 1995, s 65 ............................................................................. 21 Electoral Administration Act 2006 ..................................................................................... 103 s 59 ................................................................................................................................... 103 Employment Rights Act 1996 ....................................................................................... 73, 122 Equality Act 2010 s 29 ..................................................................................................................................... 21 s 149 ........................................................................................................................... 21, 273 Sch 3, para 1 ...................................................................................................................... 21 European Communities Act 1972 ...................................................................................... 313 s 2 ............................................................................................................................. 248, 314 s 2(4) ................................................................................................................................ 313 European Union Act 2011 .................................................................................................. 313 s 18 ................................................................................................................................... 313 Financial Services and Markets Act 2000, s 397 ................................................................... 73 Fixed Term Parliaments Act 2011 ............................................................................... 122, 311 Food Safety Act 1990 ............................................................................................................. 73 Foreign Compensation Act 1950 ........................................................................................ 316 Forfeiture Act 1870 ............................................................................................................ 9, 14 s 2 ......................................................................................................................................... 9 Freedom of Information Act 2000 ..................................................... viii, 103–4, 118, 121–2, 139–45, 148, 154, 173, 284 Pt 1 ................................................................................................................................... 141 Pt 2 ............................................................................................................................... 140–1 Pts 4–5 ............................................................................................................................. 141 ss 19–20 ........................................................................................................................... 141 s 21 ........................................................................................................................... 140, 146 ss 22–33 ........................................................................................................................... 140 s 34 ................................................................................................................... 140–1, 146–7 s 34(1) .............................................................................................................................. 154 s 34(3) .............................................................................................................................. 154 s 35 ................................................................................................................................... 140 s 36 ............................................................................................................................... 140–1 ss 37–39 ........................................................................................................................... 140 s 40 ........................................................................................................................... 140, 145 ss 41–44 ........................................................................................................................... 140

Table of Legislation xxix s 50 ................................................................................................................................... 154 Sch 1 ................................................................................................................................. 140 Sch 3 ................................................................................................................................. 140 Government of Ireland Act 1920 ........................................................................................ 208 Government of Wales Act 1998 ...................................................................... 205–7, 212, 284 s 22 ................................................................................................................................... 205 Government of Wales Act 2006 ...................................................................... 197, 199, 205–7 Pt 4 ........................................................................................................................... 206, 290 ss 37–39 ........................................................................................................................... 192 s 93 ................................................................................................................................... 198 s 103 ................................................................................................................................. 218 Sch 5 ................................................................................................................................. 205 Greater London Authority Act 1999 .................................................................................. 211 Greater London Authority Act 2007 .................................................................................. 211 Greater London Authority (Referendum) Act 1998 .......................................................... 211 Health Act 2006 ................................................................................................................... 122 Health and Safety at Work Act 1974 ................................................................................... 122 Health and Social Care Act 2012, s 1(3) ............................................................................. 299 House of Commons (Administration) Act 1978, s 1(2)(d) ................................................ 83 House of Commons (Disqualification) Act 1975 ................................................................ 16 s 4 ....................................................................................................................................... 16 s 6 ....................................................................................................................................... 16 s 8 ....................................................................................................................................... 16 Sch 1 ................................................................................................................................... 16 House of Lords Act 1999 ...................................................................................... 91, 284, 292 s 2(2) .................................................................................................................................. 91 s 2(4) .................................................................................................................................. 91 Human Rights Act 1998 ................................................ viii, 45–7, 135, 168, 203, 230–1, 234, 237, 251–79, 284, 324, 343, 350, 360 s 2 ..................................................................................................................................... 263 s 2(1) ................................................................................................................................ 263 s 3 ................................................................................................................. 248, 252–3, 309 s 4 ............................................................................................................. 129, 259, 314, 333 s 4(2) ................................................................................................................................ 253 s 4(6) ................................................................................................................................ 253 s 6(3) ................................................................................................................................ 252 s 10 ........................................................................................................................... 129, 333 s 19 .............................................................................. 122, 129, 134, 229–30, 252, 324, 327 Hunting Act 2004 ................................................................................................................ 121 Intelligence Services Act 1994 ............................................................................................. 183 Juries Act 1974 s 9(1) .................................................................................................................................. 22 Sch 1, Pt III ........................................................................................................................ 22 Legal Aid, Sentencing and Punishment of Offenders Act 2012 ........................................ 361 Legislative and Regulatory Reform Act 2006, s 3(2)(f) ..................................................... 296 Local Government Act 1972, s 236 ..................................................................................... 207 Localism Act 2011 ....................................................................................................... 170, 211 Magna Carta 1215 ............................................................................................................... 266

xxx Table of Legislation Mental Capacity Act 2005 ................................................................................................... 174 Mental Health Act 1983 ........................................................................................................ 10 s 141 ................................................................................................................................... 10 Mental Health (Discrimination) Act 2013, s 1 .................................................................... 10 National Health Service Act 2006 s 1 ..................................................................................................................................... 297 s 3 ..................................................................................................................................... 297 Northern Ireland Act 1998 ............................................................. 208–9, 212, 218, 266, 284 Pt IV ................................................................................................................................. 199 s 4(1) ................................................................................................................................ 354 s 5(6) ................................................................................................................................ 198 Sch 4A Pt 1A ............................................................................................................................ 209 s 3C .......................................................................................................................... 209 Northern Ireland Act 2009 ................................................................................................. 209 s 4(3) ................................................................................................................................ 209 Sch 1 ................................................................................................................................. 209 Official Secrets Act ................................................................................................................ 51 Official Secrets Act 1989 ................................................................................................. 24, 73 Parliament Acts ................................................................................................................... 329 Parliament Act 1911 .................................................................................................... 309, 311 Parliament Act 1949 .................................................................................................... 309, 311 Parliament (Joint Departments) Act 2007 ......................................................................... 122 Parliamentary Commissioner Act 1967 ............................................................................. 344 Parliamentary Elections Act 1868 .............................................................................. 90, 92–3 Parliamentary Oaths Act 1866 .............................................................................................. 82 Parliamentary Papers Act 1840 ......................................................... 21–2, 33, 54, 57, 64, 144 s 1 ....................................................................................................................................... 54 Parliamentary Privilege Act 1770 ..................................................................................... 3, 37 s 1 ....................................................................................................................................... 37 Parliamentary Privileges Act 1987 ........................................................................................ 65 Parliamentary Standards Act 2009 .................................... v, 90, 109, 113, 117, 122, 180, 182 s 2(1) .................................................................................................................................. 91 s 3A .................................................................................................................................. 109 s 3A(1)–(2) ...................................................................................................................... 109 s 10 ..................................................................................................................................... 90 Sch 2 ................................................................................................................................. 110 Parliamentary Witnesses Oaths Act 1871, s 1 .................................................................... 179 Perjury Act 1911 ............................................................................................................ 82, 180 s 1 ..................................................................................................................................... 180 Planning Act 2008 ............................................................................................................... 170 s 9(2) ................................................................................................................................ 170 Police and Criminal Evidence Act 1984 ......................................................................... 76, 78 s 8 ................................................................................................................................. 75, 80 s 8(3) .................................................................................................................................. 75 s 10 ..................................................................................................................................... 80 Police Reform and Social Responsibility Act 2011 ............................................................ 211 Political Parties, Elections and Referendums Act 2000 ....................................... 93, 102, 182 Sch 7 ................................................................................................................................. 102

Table of Legislation xxxi Public Bodies Act 2011 ............................................................................... 135, 167, 170, 211 Public Order Act 1986 ........................................................................................................... 73 Racial and Religious Hatred Act 2006 .................................................................................. 73 Representation of the People Act 1981 .......................................................................... 14–15 s 1 ......................................................................................................................................... 8 s 2(1)–(2) ............................................................................................................................. 9 Representation of the People Act 1983 ...................................................................... 90, 93–4 s 3 ..................................................................................................................................... 260 s 123 ............................................................................................................................. 92, 94 s 159 ................................................................................................................................... 94 s 160(4) .............................................................................................................................. 94 Representation of the People Act 1985 .............................................................................. 260 Scotland Act 1998 ............................................... 37, 199–201, 203–5, 212, 215, 266, 284, 330 Pt 1 ................................................................................................................................... 199 ss 23–26 ........................................................................................................................... 192 s 28 ................................................................................................................................... 200 s 28(5) .............................................................................................................................. 201 s 28(7) .............................................................................................................................. 215 s 29 ................................................................................................................................... 198 s 29(2)(d) ......................................................................................................................... 266 s 30 ........................................................................................................................... 204, 218 s 30(2) .............................................................................................................................. 200 s 33 ................................................................................................................................... 207 s 98 ................................................................................................................................... 203 Schs 4–5 ........................................................................................................................... 200 Sch 6, Pt II ....................................................................................................................... 203 Sch 7 ................................................................................................................................. 219 Scotland Act 2006 ................................................................................................................ 201 Scotland Act 2012 ............................................................................................ 200–1, 204, 207 s 14 ................................................................................................................................... 204 ss 34–37 ........................................................................................................................... 204 Sex Discrimination Act 1975, s 76A ................................................................................... 273 Sexual Offences Act 2003, s 82 ............................................................................................ 238 Short Titles Act 1896 ............................................................................................................... 4 Supreme Court (Offices) Act 1997 ..................................................................................... 349 Terrorism Prevention and Investigation Measures Act 2011 ............................................ 236 Theft Act 1968 ................................................................................................................. 81, 91 s 17(1)(b) ........................................................................................................................... 28 Trade Descriptions Act .......................................................................................................... 72 Tribunals, Courts and Enforcement Act 2007 ................................................................... 349 UK Parliamentary Voting Systems and Constituencies Act 2011 ..................................... 218 Vehicles (Excise) Act (Northern Ireland) 1972 ...................................................................... 9 Wales Act 1978 .................................................................................................................... 205

Bills Bill on the Recall of MPs (draft) ..................................................................................... 17–18 Bribery Bill 2008–09 (draft) ....................................................................................... 8, 27, 74 cl 15 .................................................................................................................................... 74

xxxii Table of Legislation Children and Families Bill .......................................................................................... 132, 234 Citizens Convention Bill 2006–07 ...................................................................................... 269 Citizens Convention (Ethics and Accountability) Bill 2007–08 ....................................... 269 Civil Contingencies Bill (draft) .......................................................................................... 171 Communications Bill 2002 ................................................................................................. 324 Constitutional Reform Bill ............................................................................. 304, 350–3, 361 Constitutional Reform and Governance Bill 2010 s 41 ................................................................................................................................... 157 s 42 ................................................................................................................................... 157 Coroners and Justice Bill, Explanatory Notes .................................................................... 231 Corruption Bill 2002–03 (draft) ................................................................................. 8, 27, 74 Cross-Channel Tunnel Bill ................................................................................................. 134 Crossrail Bill ........................................................................................................................ 134 Defamation Bill 2010–12 (draft) .......................................................................................... 26 Defamation Bill 2011 (draft) ...................................................................................... 133, 234 Defamation Bill 2012–13 (draft) .................................................................................... 26, 39 Defamation Bill (draft) ............................................................................................... 57, 63–5 Disability Discrimination Bill (draft) ................................................................................ 171 Domestic Violence, Crime and Victims (Amendment) Bill ............................................. 128 European Union (Amendment) Bill .................................................................................. 291 Financial Services (Banking Reform) Bill (draft) .............................................................. 179 Fixed-term Parliaments Bill 2011 ................................................................................... 290–1 Freedom of Information (Amendment) Bill 2006–07 ...................................................... 103 Gender Recognition Bill 2002–03 (draft) .......................................................................... 234 George Grenville Bill ............................................................................................................. 92 Government of Wales Bill 2006 ...................................................................................... 290–1 Health and Social Care Bill 2011 ........................................................................ 290–1, 297–9 Explanatory Notes ........................................................................................................... 297 cl 4 ................................................................................................................................ 299 cl 10 .............................................................................................................................. 299 cl 20 .............................................................................................................................. 299 High Speed 2 Bill ................................................................................................................. 134 House of Lords Reform Bill 2011–12 ......................................................... 129, 218, 285, 325 cl 6 .................................................................................................................................... 129 Explanatory Notes ........................................................................................................... 324 House of Lords Reform Bill 2011–12 (draft) ..................................................................... 328 Human Rights Bill ............................................................................................................... 258 Identity Cards Bill 2004, Explanatory Notes ...................................................................... 229 Identity Documents Bill 2010 ............................................................................................. 327 Immigration and Asylum (Treatment of Claimants) Bill 2003 ................................ 322, 330 Justice and Security Bill 2012–13 ............................................................................... 184, 235 Legislative and Regulatory Reform Bill 2006 ......................................................... 290, 293–6 Pt 1 ................................................................................................................................... 293 Local Government Byelaws (Wales) Bill ............................................................................ 207 s 6 ..................................................................................................................................... 207 s 9 ..................................................................................................................................... 207 Orphans Bill ............................................................................................................................ 8

Table of Legislation xxxiii Parliamentary Standards Bill 2008–09 ............................................. 27, 43, 91, 108, 117, 131 cl 5(10) ............................................................................................................................... 27 cl 6 .................................................................................................................................... 108 cl 9 ...................................................................................................................................... 27 cl 10 ............................................................................................................................ 27, 108 Political Parties, Elections and Referendums Bill 1999 ..................................................... 101 Explanatory Notes ........................................................................................................... 101 Explanatory Notes 28–29 ................................................................................................ 102 Sch 6 ............................................................................................................................... 1012 Prisoner Voting (Eligibility) Bill 2012 (draft) .................................................... 234, 325, 330 Protection of Freedoms Bill ................................................................................................ 233 Explanatory Notes ........................................................................................................... 232 Public Bodies Bill ................................................................................................................ 296 Public Services (Social Value) Bill ...................................................................................... 128 Reform Bill 1866 ................................................................................................................... 93 Scotland Bill ......................................................................................................................... 217

Statutory Instruments Data Protection (Processing of Sensitive Personal Data) (Elected Representatives) Order 2002 (SI 2002/2905) ................................................................... 63 Electoral Administration Act 2006 (Commencement No 8 and Transitional Provision) Order 2009 (SI 2009/1509) ..................................................... 103 Employment Equality (Age) Regulations 2006 (SI 2006/2408) .......................................... 60 Family Procedure Rules ........................................................................................................ 63 Freedom of Information (Parliament and National Assembly for Wales) Order 2008 (SI 2008/1967), Art 2(3)–(4) ...................................................................... 142 House of Commons Disqualification Order 2010 (SI 2010/762) ....................................... 16 International Organisations (Immunities and Privileges) (Scotland) Amendment Order 2010 (SSI 2010) .......................................................................... 198–9 National Assembly for Wales (Transfer of Functions) Order 1999 (SI 1999/672) ................................................................................................................... 205 Public Order (Northern Ireland) Order 1987 (No. 463 (N.I. 7)) ................................... 9–10

Australia Parliamentary Privileges Act 1987 ............................................................................ 13, 38, 50 s 16(3) ................................................................................................................................ 42

Canada Charter of Rights ................................................................................................................. 259

Ceylon, now Sri Lanka Constitution ........................................................................................................................ 312

xxxiv Table of Legislation European Union Treaty of Lisbon .................................................................................................................. 290 Working Time Directive ..................................................................................................... 122

Germany Basic Law, Art 47 ................................................................................................................... 62

New Zealand Constitution ........................................................................................................................ 322 Constitution Act 1986 ......................................................................................................... 332

Scotland Claim of Right Act 1689 ................................................................................................... 4, 37

United States of America Constitution, Art I, s 6, cl 1 ................................................................................................... 38

International Charter of the United Nations ............................................................................................ 226 Convention on the Elimination of Racial Discrimination ............................................... 239 European Convention on Human Rights ................................... vii, 7, 12, 45–6, 49, 61, 121, 129, 134–5, 168, 200, 202, 204, 209, 226–7, 229–32, 251–6, 258–9, 263, 266, 270–1, 276–8, 307, 309, 318–19, 324–5 Art 5 ................................................................................................................................. 192 Art 6 ................................................................................................... 70, 192, 203, 288, 330 Art 8 ................................................................................................................... 229–30, 255 Art 10 ............................................................................................................................... 324 Art 14 ............................................................................................................................... 230 Art 46 ............................................................................................................................... 261 Protocol 1 Art 1 ............................................................................................................................. 202 Art 3 ..................................................................................................................... 260, 325 International Covenant on Economic, Social and Cultural Rights .......................... 239, 324 UN Convention Against Torture ........................................................................................ 239 UN Convention on the Rights of the Child ....................................................... 232, 239, 241 UN Convention on the Rights of Disabled People ............................................................ 240 Art 19 ............................................................................................................................... 241

1 Privilege, Exclusive Cognisance and the Law LIAM LAURENCE SMYTH*

I. INTRODUCTION

T

HIS CHAPTER DEALS with the privileges of the House of Commons and related issues.1 Parliamentary privilege, as authoritatively set out in Erskine May’s Parliamentary Practice,

is the sum of certain rights enjoyed by each House collectively as constituent parts of the High Court of Parliament; and by Members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals. Some privileges rest solely on the law and custom of Parliament, while others have been defined by statute.2

In the course of ill-tempered exchanges over the Aylesbury election case in 1704/05, the two Houses of Parliament agreed ‘that neither House of Parliament have power, by any vote or declaration, to create for themselves new privileges, not warranted by the known laws and customs of Parliament’.3 Some of the broader claims for parliamentary privilege were reined in by the Parliamentary Privilege Act 1770, which restricted the freedom from arrest to Members of the House of Commons, removing the privilege from their employees (‘menial or other servants’). The 1770 Act also allowed courts to hear cases brought against Members of Parliament without being ‘impeached, stayed, or delayed by or under colour or pretence of any privilege of Parliament’. So while Parliament may pass

*

Liam Laurence Smyth is Clerk of the Journals in the House of Commons. The right of peers to be tried before a jury of other peers was abolished by statute in 1948. For the history of this privilege, see R Furneaux, Tried by Their Peers (London, Cassell, 1959). Other privilege issues relating specifically to the House of Lords are addressed in Joint Committee on Parliamentary Privilege, Report (1998–99, HL 43-I, HC 214-I) paras 329 and 336 and in HM Government, Parliamentary Privilege (Green Paper, Cm 8318, 2012) paras 328–42. 2 Erskine May’s Parliamentary Practice, 24th edn (London, Butterworths, 2011) 203. 3 CJ vol 14 (1702–04) 555, 559, 569, 570 and 572. The Conferences between the Houses were held in February 1704 (1705 New Style). 1

4 Liam Laurence Smyth legislation to abridge its traditional privileges, it may not create new privileges, except by legislation. There are no examples of a traditional parliamentary privilege having been revived once it had been overtaken by statute, even after the repeal of the statutory provision. In the comparable domain of royal prerogative, it is settled law that while a statute is in force, the thing it empowers the Crown to do can thenceforth only be done under the statute.4 It is not altogether clear what happens when a prerogative power has been superseded by statute and the statutory provision is later repealed but it is likely to be the case that the prerogative will not revive unless the repealing enactment makes specific provision to that effect.5 In the case of jury service (discussed in this chapter below), a long-standing parliamentary privilege of exemption was first incorporated in statute and then later repealed. The questions of whether and how to codify the parliamentary privileges which have survived into the twenty-first century are currently under examination in Parliament. Article 9 of the Bill of Rights is a landmark in the legal expression of parliamentary privilege. It declares ‘That the Freedom of Speech and Debates or Proceedings in Parliament ought not to be impeached or questioned in any Court or Place out of Parliament’. The Bill of Rights itself has a special constitutional character, as it enacted the terms of the joint Declaration by both Houses of Parliament which had formed the basis for settling the Crown on William and Mary in 1688.6 The Bill of Rights belongs to the class of ‘constitutional’ statutes which cannot be repealed or amended except by new legislation expressed in clear and unambiguous terms.7 Article 9 of the Bill of Rights was echoed in similar language in the Claim of Right Act of the old Scottish Parliament.8 Article 9 of the Bill of Rights was not a new departure, but rather a recapitulation of the traditional parliamentary privilege of freedom of speech: In 1563, the Speaker’s claim for freedom of speech in debate was already justified as ‘according to the old antient order’.9

4 Lord Atkinson in A-G v De Keyser’s Royal Hotel Ltd [1920] AC 508, 540, cited in D Greenberg (ed), Craies on Legislation, 8th edn (London, Sweet and Maxwell, 2004). 5 This statement was made in a government submission to the House of Commons Select Committee on Public Administration in 2003, quoted in Greenberg (ed), Craies on Legislation (n 4). 6 Both Houses adopted the wording of Art 9 in their Declaration of 12 February 1688/89, which was presented to, and accepted by, Prince William and Princess Mary at the Banqueting House on 13 February 1688/89 before the reading of their Proclamation as King and Queen. The Act declaring the rights and liberties of the subject, and settling the succession of the Crown, received the Royal Assent on 16 December 1689, in the second Session of the first Parliament of King William and Queen Mary. Under the Short Titles Act 1896, that Act’s short title is The Bill of Rights. 7 The notion of constitutional statutes as expounded by Laws LJ in Thoburn v Sunderland City Council [2003] QB 151, is described in Craies on Legislation (n 4) at 14.4.6. 8 ‘That for redress of all grievances and for the amending strengthening and preserving of the laws Parliaments ought to be frequently called and allowed to sit and the freedom of speech and debate secured to the members’. 9 D’Ewes 66, cited in Erskine May (n 2) 207.

Privilege, Exclusive Cognisance and Law 5 A. The Claiming and Granting of Privileges of the House of Commons The claiming and granting of privileges of the House of Commons still form part of the ritual surrounding the appointment of its Speaker at the outset of each Parliament. The ceremonial drama begins on the day named by Royal Proclamation for Parliament to meet after a general election. The House of Commons assembles in its Chamber to await a summons by Black Rod to attend Her Majesty’s Commissioners in the House of Peers. By long tradition, the monarch never enters the lower House. The upper House provides the setting in which the Commission is read for opening and holding the Parliament. The Lords Commissioners acting as the monarch’s spokesmen direct the House of Commons to proceed to the election of a Speaker, and to present the Speaker Elect in the House of Lords, for the Royal Approbation. On their return to their own Chamber, with the Father of the House presiding, the Commons get on with choosing a Speaker.10 If there is an incumbent returned at the general election as ‘the Speaker seeking re-election’, the House decides whether the Speaker should be re-elected unopposed.11 If that motion is defeated, or if there is no incumbent Speaker, candidates for the chair are nominated. If there is more than one candidate, the House holds an election by secret ballot. The bottom candidate must, and other candidates may, drop out between each of a series of ballots held until one Member has received an absolute majority of valid votes cast in the final ballot. With the traditional show of reluctance, the successful Member is ‘dragged’ to the chair as Speaker Elect. Once the House of Commons has decided on its Speaker Elect, the House is again summoned to the House of Peers to hear the Commissioners declare Her Majesty’s Approbation of the choice of the Commons. At the beginning of the Parliament elected in 2010, John Bercow (Buckingham) was re-elected as Speaker, having been the first Speaker elected by secret ballot in June 2009, following

10 The Father of the House, at present Sir Peter Tapsell (Conservative, Louth and Horncastle), is the current Member of the House with the longest continuous service since signing the Roll as a Member of the House. 11 At the time of writing the House of Commons had not considered a proposal by its Procedure Committee that the House be invited to decide whether on the first day of a new Parliament, where the Presiding Member’s decision on the question that a former Speaker take the chair was challenged, that preliminary question should be decided by secret ballot or by open division. At present an open division would be held only if, after collecting the voices for ‘Aye’ and ‘No’, the Father of the House’s decision on the outcome (‘The Ayes have it’) was challenged (by further and persistent cries of ‘No’). In an ordinary (open) division, Members have their names taken as they leave the Aye or No Lobby respectively. See Procedure Committee, 2010 Elections for Positions in the House (Fifth Report) (HC 2010–12, 1573); Procedure Committee, 2010 Elections for Positions in the House: Government Response to the Committee’s Fifth Report of Session 2010–12 (Ninth Report) (HC 2010–12, 1824) and the Leader of the House’s letter of 6 March 2012 in response to the Committee’s Ninth Report of Session 2010–12, published on the Committee’s website, www.parliament.uk/business/committees/committees-a-z/ commons-select/procedure-committee/Publications/previous-sessions/Session-2010-12/.

6 Liam Laurence Smyth the retirement of Speaker Michael Martin (Glasgow, North East).12 The formal exchanges in 2010 were as follows: Speaker Elect: My Lords, I have to acquaint your Lordships that, in obedience to the Royal Command, Her Majesty’s faithful Commons have, in the exercise of their undoubted rights and privileges, proceeded to the election of a Speaker, and that their choice has fallen upon myself. I therefore present myself to your Lordships’ Bar and submit myself with all humility to Her Majesty’s gracious Approbation. Lord Strathclyde (one of Her Majesty’s Commissioners): Mr John Bercow, we are commanded to assure you that Her Majesty is so fully sensible of your zeal in the public service, and of your ample sufficiency to execute the arduous duties which her faithful Commons have selected you to discharge, that Her Majesty does most readily approve and confirm you as their Speaker. Mr Speaker: My Lords, I submit myself with all humility and gratitude to Her Majesty’s gracious Commands. It is now my duty, in the name of and on behalf of the Commons of the United Kingdom, to lay claim, by humble petition to Her Majesty, to all their ancient and undoubted rights and privileges, especially to freedom of speech in debate, to freedom from arrest, and to free access to Her Majesty whenever occasion shall arise, and that the most favourable construction shall be put upon all their proceedings. With regard to myself, I pray that, if in the discharge of my duties I shall inadvertently fall into any error, it may be imputed to myself alone, and not to Her Majesty’s most faithful Commons. Lord Strathclyde: Mr Speaker, we have it further in Command to inform you that Her Majesty does most readily confirm all the rights and privileges which have ever been granted to or conferred upon the Commons by Her Majesty or any of her Royal predecessors. With respect to yourself, Sir, though Her Majesty is sensible that you stand in no need of such assurance, Her Majesty will ever place the most favourable construction upon your words and actions.13

The royal ‘confirmation’ of ‘ancient and undoubted’ rights and privileges is a notably paradoxical expression of the perennially provisional nature of the British constitutional settlement. The Speaker then makes the customary report to the House of Commons on resuming the chair in that House: Mr Speaker: I have to report that this House has been in the House of Lords where Her Majesty, by Her Royal Commissioners, has been pleased to approve the choice made of myself for the Office of Speaker. I have, in your name and on your behalf, made claim by humble petition to Her Majesty to all your ancient and undoubted rights and privileges, particularly to freedom of speech in debate, freedom from arrest, and freedom of access 12 The election of a Speaker during a Parliament follows the same sequence, but begins with an announcement in the Commons by the Prime Minister that the monarch gives leave to the House to proceed forthwith to the election of a new Speaker (instead of a summons from Black Rod to receive, in the setting of the House of Lords, the monarch’s direction to choose a Speaker) and ending with the Speaker’s report to the Commons of his or her receipt of the royal approbation: see HC Deb 22 June 2009, col 617. The request and granting of privileges, however, are made only at the beginning of a Parliament and not when a new Speaker is elected in the course of a Parliament—Erskine May (n 2) 152–53. 13 HL Deb 19 May 2010, cols 3 and 4.

Privilege, Exclusive Cognisance and Law 7 to Her Majesty whenever occasion shall require, and that the most favourable construction shall be put upon all proceedings. All these Her Majesty, by Her Commissioners, has been pleased to confirm in as ample a manner as they have ever been granted or confirmed by Herself or by any of Her Royal Predecessors.14 II. THE PRIVILEGES, AND CONTEMPT OF PARLIAMENT

A. Freedom of Speech Of the four privileges claimed by the Speaker, the freedom of speech in debate is the ‘most valuable and most essential’.15 Since 2004 it has been the custom of the House of Commons for the Speaker to make some general remarks on the opening day of a Session, prior to the opening of the debate on the Queen’s Speech. This practice has supplanted the former practice of several motions for sessional resolutions on a variety of more or less technical issues being moved without notice on the day of State Opening as potentially debateable items of business immediately before the opening of the important debate on the Queen’s Speech.16 In 2012, for example, Mr Speaker Bercow’s address to the House included this passage: Our ancient privileges allow us to conduct our debate without fear of outside interference. Parliamentary privilege underpins proper democratic debate and scrutiny. It will be under renewed scrutiny over the next few months, with the Government’s consultation on the subject. In particular, we enjoy freedom of speech in Committee proceedings and in debate. Freedom of speech in debate is at the very heart of what we do here for our constituents, and it allows us to conduct our business without fear of outside interference. But it is a freedom that we need to exercise responsibly in the public interest and taking into account the interests of others outside this House.17

The House of Commons committees which have considered this matter have urged responsibility and moderation in the use of the privilege of freedom of speech.18 Freedom of speech is limited to a certain extent by self-regulation within 14

Votes and Proceedings, 19 May 2010 and HC Deb 19 May 2010, col 9. Hatsell, Precedents of Proceedings in the House of Commons 4th edn (London, Luke Hansard and Sons, 1818) vol 1, 85. Chapter 2 on privilege and freedom of speech analyses the several questions posed by Art 9 of the Bill of Rights, including what are ‘proceedings in Parliament’, what constitutes ‘impeaching or questioning’ and what is a ‘place out of Parliament’. It goes on to discuss what Art 9 protects, Art 9 and the European Convention of Human Rights, the enforcement of Art 9, limitations on Art 9, the sub judice rule, rights of reply, the citation of committee evidence and protection for Members’ communications with constituents. 16 Procedure Committee, Sessional Orders and Resolutions (Third Report) (HC 2002–03, 855) and the Government Response in the Third Special Report from the Procedure Committee (HC 2003–04, 613). The sessional resolutions covered motions relating to elections, witnesses, Commissioner of Police of the Metropolis, Votes and Proceedings and the Journal of the House of Commons. 17 HC Deb 9 May 2012, col 1. 18 Eg, Committee of Privileges, Second Report (HC 222, 1978–79); Select Committee on Procedure, Conduct of Members in the Chamber and the Alleged Abuse of Parliamentary Privilege (First Report) (HC 1998–99, 290); Joint Committee on Parliamentary Privilege, Report (n 1) paras 224–25; Joint Committee on Privacy and Injunctions, Report (2010–12, HL 273, HC 1443) para 221. 15

8 Liam Laurence Smyth Parliament. Rules limiting freedom of speech are imposed on their Members by the two Houses themselves, either by convention or by specific rules, such as the sub judice rule. There are also limitations placed by the Code of Conduct on the extent to which Members may raise issues where they have a direct pecuniary interest. For example, ‘No Member shall act as a paid advocate in any proceeding of the House’ and The acceptance by a Member of a bribe to influence his or her conduct as a Member, including any fee, compensation or reward in connection with the promotion of, or opposition to, any Bill, Motion, or other matter submitted, or intended to be submitted to the House, or to any Committee of the House, is contrary to the law of Parliament.19

The question of whether bribery should be a criminal offence has been considered by successive Joint Committees, on Parliamentary Privilege in 1998–99,20 the draft Corruption Bill in 2002–0321 and on the draft Bribery Bill in 2008–09.22

B. Freedom from Arrest Freedom from arrest does not apply in criminal cases.23 It is customary for the Speaker to be informed when a Member is arrested, particularly if his or her detention precludes attendance in the Chamber on a sitting day. If a Member is arrested but not detained for long enough to prevent attendance in the House, Mr Speaker might not inform the House at all. When the Speaker does inform the House, he may do so by making an oral statement or by simply arranging for the notification he has received to be recorded in the Votes and Proceedings among the papers formally laid that day before the House. Similarly the Speaker is informed if a Member is imprisoned. A lengthy sentence of imprisonment could entail the Member’s disqualification. The Representation of the People Act 1981 (section 1) provides that: A person found guilty of one or more offences (whether before or after the passing of this Act and whether in the United Kingdom or elsewhere), and sentenced or ordered to be imprisoned or detained indefinitely or for more than one year, shall be disqualified

19 Code of Conduct 2012 (HC 1885) paras 11 and 12 based on resolutions of the House of 6 November 1995 and of 2 May 1695, 22 June 1858, and 14 July 1947 (as amended on 6 November 1995) and 14 May 2002 respectively. Early editions of Erskine May included the following examples of Members being punished for accepting bribes: John Ashburnham expelled in 1677 for accepting 500 pounds from French merchants for business done in the House; Speaker John Trevor expelled in 1694 for accepting a gratuity of 1000 guineas from the City of London after passing the Orphans Bill; and Mr Hungerford expelled in 1695 for receiving 20 guineas for his pains and services as chairman of the committee on the same Bill. 20 Joint Committee on Parliamentary Privilege, Report (n 1). 21 Joint Committee on the draft Corruption Bill, Report (2002–03, HL 157, HC 705). 22 Joint Committee on the draft Bribery Bill, Report (2008–09, HL 115-I, HC 430-I). 23 For more on Parliament and the criminal law see ch 3.

Privilege, Exclusive Cognisance and Law 9 for membership of the House of Commons while detained anywhere in the British Islands or the Republic of Ireland in pursuance of the sentence or order or while unlawfully at large at a time when he would otherwise be so detained.

Section 2 of the 1981 Act says: (1) If a person disqualified by this Act for membership of the House of Commons is elected to that House his election shall be void; and if such a person is nominated for election as a member of that House his nomination shall be void. (2) If a member of the House of Commons becomes disqualified by this Act for membership of that House his seat shall be vacated.

i. Treason The Forfeiture Act 1870, part of which is still in force, provides that a conviction for treason is a disqualification whatever the sentence: if any person hereafter convicted of treason … such person shall become, and (until he shall have suffered the punishment to which he had been sentenced, or such other punishment as by competent authority may be substituted for the same, or shall receive a free pardon from Her Majesty), shall continue thenceforth incapable of … being elected, or sitting, or voting as a member of either House of Parliament.24

ii. Imprisonment Most recent cases of Members’ imprisonment for criminal offences have been linked to civil disobedience, where imprisonment has been deliberately sought in order to make a political point. On 20 April 1972 the Speaker informed the House that Bernadette Devlin (Independent Unity, Mid Ulster) and Frank McManus (Unity, Fermanagh and South Tyrone) had been imprisoned for offences of organising and taking part in processions contrary to law in Northern Ireland, for which they were later pardoned on 9 May 1972. Between January 1987 and October 1988, Harold McCusker (Official Unionist, Upper Bann) was imprisoned for failing to pay a fine imposed for driving a vehicle without a licence under the Vehicles (Excise) Act (Northern Ireland) 1972; Ken Maginnis (Official Unionist, Fermanagh and South Tyrone) and Peter Robinson (Democratic Unionist, Belfast East) were imprisoned for the same offence; and Cecil Walker (Official Unionist, Belfast North), William McCrea (Democratic Unionist, Mid Ulster), Ian Paisley (Democratic Unionist, Antrim North), Roy Beggs (Official Unionist, Antrim East), Clifford Forsythe (Official Unionist, Antrim South), Harold McCusker, William Ross (Official Unionist, Londonderry East), Martin Smyth (Official Unionist, Belfast South) and Peter Robinson were imprisoned for failing to pay fines imposed for attending an illegal procession contrary to the Public Order

24

Forfeiture Act 1870, s 2.

10 Liam Laurence Smyth (Northern Ireland) Order 1987. Peter Robinson was imprisoned for similar offences on several occasions.25 In July 1991 Terry Fields (Labour, Liverpool Broadgreen) was sentenced to 60 days’ imprisonment for refusing to pay a poll tax bill of £373. Mr Fields remained a Member of the House but he was expelled from the Labour Party. He did not keep his seat in the 1992 election, in which he ran as an Independent (Labour-Socialist). iii. Detention under the Mental Health Act The special provisions applying to Members of Parliament under section 141 of the Mental Health Act 1983 were repealed on 28 April 2013 with the commencement of section 1 of Mr Gavin Barwell’s Mental Health (Discrimination) Act 2013. Under the 1983 Act, which consolidated earlier legislation, Members of Parliament could lose their seats if they were detained under the Act for more than six months. Mr Barwell’s Act also abolishes any common law which disqualifies a person from membership of the House of Commons on grounds of mental illness. The Speaker’s Conference on Parliamentary Representation had perceived a danger that section 141 might deter Members from admitting mental health problems and seeking suitable treatment, and that, from a purely medical point of view, the section might not operate in the best interests of Members.26 The Government agreed with the Speaker’s Conference that section 141 should be repealed as soon as practicable. iv. Search Warrants In the wake of the furore over the arrest on 27 November 2008 of Damian Green (Conservative, Ashford), an Opposition home affairs spokesperson, in his constituency and particularly over the associated search of his offices on the Parliamentary Estate without a search warrant, the Speaker of the House unilaterally issued a Protocol on 8 December 2008 requiring that in future a warrant would always be required for a search of a Member’s office or access to a Member’s parliamentary papers including electronic records and that the execution of any such warrant would be referred to the Speaker for his or her personal decision. The Metropolitan Police Service accepted that a search warrant ought not to be executed over premises in Parliament on a parliamentary sitting day without the express concurrence 25 The Official and Democratic Unionist Members were among those who had resigned their seats in protest at the Anglo-Irish Agreement and who had been successfully returned in the by-elections held on 23 January 1986. In those by-elections, one Official Unionist, Jim Nicholson, lost his Newry and Armagh seat to Seamus Mallon (Social Democratic and Labour Party). Four Unionists successfully returned at the by-elections were not among those later arrested for criminal offences: James Kilfedder (UPUP, Down North), James Molyneaux (Official Unionist, Lagan Valley), Enoch Powell (Official Unionist, Down South) and John D Taylor (Official Unionist, Strangford). 26 Report from the Speaker’s Conference on Parliamentary Representation (HC 2009–10, 239).

Privilege, Exclusive Cognisance and Law 11 of the Speaker (or a Deputy Speaker if the Speaker was not in Parliament). The Metropolitan Police Service respectfully contested other parts of the Protocol, on the grounds that it was not a proper function of the Speaker to decide matters relating to the execution of a properly granted and valid search warrant which would have been judicially determined upon the grant of the warrant.27

C. Right of Access to the Monarch The privilege of the House of Commons as a whole to have the right of access to the monarch is exercised only on formal occasions, such as the presentation in Westminster Hall on 20 March 2012 of the Address congratulating the Queen on her Diamond Jubilee.28 Other Addresses from the House are presented to the Queen by Members of the House who have access to her as Privy Councillors or as members of her Majesty’s Household. Among the Members of the House of Commons who are also members of her Majesty’s Household is the ViceChamberlain of the Household, a title held by the Government Deputy Chief Whip, whose duties include reporting to the House the Queen’s formal replies to Addresses such as the one the House of Commons passes early in each Session thanking Her Majesty for the Gracious Speech addressed to both Houses at the State Opening of Parliament.29

D. Favourable Construction It is more a matter of courtesy than of privilege that the most favourable construction be placed upon the proceedings of the House. As Erskine May observes, ‘by the law and custom of Parliament the Queen cannot take notice of anything said or done in the House but by the report of the House itself ’.30 The Speaker’s request for this privilege harks back to an era when Parliament met in private, and when there could even be a serious risk to the Speaker personally if offence were taken by the monarch at possibly distorted accounts of what had transpired in the Chamber. The notion of favourable construction has perhaps something in common with the characterisation of the largest party opposing the Government as Her Majesty’s loyal Opposition.

27 Select Committee on Issue of Privilege, Police Searches on the Parliamentary Estate (Report) (HC 2009–10, HC 62) paras 145–49. More detail on the Damian Green case and the Speaker’s Protocol is given in ch 3. 28 Votes and Proceedings, 20 March 2012 and HC Deb 20 March 2012, cols 625–27. 29 Votes and Proceedings, 17 September 2012 and HC Deb 17 September 2012, col 619. 30 Erskine May (n 2) 236.

12 Liam Laurence Smyth E. Punishment for Contempt of Parliament Erskine May sets out the history of the ‘conflict’ between Parliament and the courts over limits of the claim of ‘the High Court of Parliament’.31 Significant judicial decisions, tempered by relatively few statutory provisions, have tended to push back the boundaries of parliamentary privilege. The lack of enforceable sanctions has reduced Parliament’s power to punish contempts effectively. Although contempts are not confined to the examples cited in Erskine May, it has become the practice of the House to pursue alleged contempts only rarely: recent examples of references of alleged contempts to the Committee of Standards and Privileges include the treatment of a witness, a firm of solicitors attempting to dissuade a Member from making allegations by threatening action against third parties, the hacking of Members’ mobile phones, and witnesses misleading a select committee.32 The importance of respecting the principles enshrined in the European Convention of Human Rights looms over Parliament, though its exemption from being treated as a public authority under the Human Rights Act 1988 and the ‘wide margin of appreciation’ afforded by the European Court of Human Rights still preserve the legislature from excessive judicial intervention.33 i. Select Committee Effectiveness and Powers Early in the 2012–13 Session, the House of Commons referred to its Committee on Standards and Privileges the conclusions of the Culture, Media and Sport Select Committee in its report on News International and the Hacking of Mobile Phones, that certain witnesses had misled the select committee.34 The debate on 22 May 2012 on referring the matter traversed some of the territory covered in chapter seven of the Green Paper on Parliamentary Privilege, in connection with the powers of select committees and the penal jurisdiction of the House.35 Within a few weeks of the referral, the Standards and Privileges Committee announced how it would conduct its inquiry.36 The Committee noted that the House of Commons had decided that: its penal jurisdiction should be exercised (a) as sparingly as possible and (b) only when the House is satisfied that to exercise it is essential in order to provide reasonable 31

Erskine May (n 2) ch 17. Committee on Standards and Privileges, Privilege: Protection of a Witness (Fifth Report) (HC 2003–04, 447) (the Weleminsky case); Committee on Standards and Privileges, Privilege: John Hemming and Withers LLP (Report) (HC 2009–10, 373). See references below for the cases relating to the hacking of mobile phones. There have been several other reports by the Committee on Standards and Privileges about leaks of committee proceedings, which could constitute contempts. 33 Erskine May (n 2) 301, deals with the case of A v the United Kingdom (Application 35373/97) [2003] EHRR 917. See also the article by Malcolm Jack on the case in (2003) 73 The Table 31–36. 34 Culture, Media and Sport Select Committee, News International and the Hacking of Mobile Phones (Eleventh Report) (HC 2010–12, 903-I) para 275. 35 HC Deb 22 May 2012, cols 990–1014. 36 House of Commons Standards and Privileges Committee, Formal Minutes, 3 July 2012. 32

Privilege, Exclusive Cognisance and Law 13 protection for the House, its Members or its officers, from such improper obstruction or attempt at or threat of obstruction as is causing, or is likely to cause, substantial interference with the performance of their respective functions.37

Bearing this in mind, the Committee had decided that it would not recommend that the House should exercise any power of committal to prison in the matter referred to it, and that if it found any of the allegations to be proved, the maximum penalty it would recommend the House to impose would be admonishment. The Committee set out the procedure for its inquiry, to include taking oral evidence on oath, and affording any subjects of its inquiry whom the Committee intended to criticise opportunity to receive and comment on warning letters before the Committee made its report to the House. At the time of writing, the outcome of the inquiry by the Committee on Standards and Privileges was not known.38 In July 2012, the Liaison Committee, comprising the chairs of the principal select committees in the House of Commons, published on its website a memorandum by the Clerk of the House of Commons on the Powers of Select Committees.39 In its later report on Select Committee Effectiveness, Resources and Powers, the Liaison Committee concluded ‘we are persuaded that the disadvantages of enshrining parliamentary privilege in statute would outweigh the benefits’.40

III. EXCLUSIVE COGNISANCE: POWERS IN RELATION TO MEMBERSHIP OF THE HOUSE

A. The Power to Expel Members One of the most significant powers which the House of Commons continues to exercise over itself is its power to expel its own Members. When the Australian Parliament came to clarify parliamentary privilege in its Parliamentary Privileges Act 1987, it removed the right of either House to expel its own Members. The House of Commons has seldom resorted to expulsion.

37 Erskine May (n 2) 218; Committee of Privileges, Recommendations of the Select Committee on Parliamentary Privilege (Third Report) (HC 1976–77, 417); and the resolution of the House of 6 February 1978. 38 The arrest on 30 August 2012 of one of the witnesses whose conduct had been referred to the Committee on Standards and Privileges led to a pause in its investigation. With the appointment of lay members to the Committee on Standards on 13 December 2012, the former Committee on Standards and Privileges was replaced by two separate committees, on Standards and of Privileges respectively, the latter with no lay members on it. The inquiry into the conduct of the witnesses was inherited by the Committee of Privileges. 39 www.publications.parliament.uk/pa/cm201213/cmselect/cmliaisn/697/697we36.htm or http:// www.publications.parliament.uk/pa/cm201213/cmselect/cmliaisn/697/697we01.htm. 40 House of Commons Liaison Committee, Select Committee Effectiveness, Resources and Powers (Second Report) (HC 2012–13, 697) para 133 (published 5 November 2012). See further discussion of reform of parliamentary privilege in section V of this chapter.

14 Liam Laurence Smyth Three Members of the House of Commons were expelled by resolution in the last century. In August 1922, Horatio Bottomley (Independent, South Hackney) was expelled following his conviction for fraud which resulted in a sentence of seven years’ imprisonment. In October 1947, Garry Allighan (Labour, Gravesend) was expelled for gross contempt of the House after lying to a committee following the publication of an article accusing MPs of insobriety and of taking bribes for the supply of information. In December 1954, Peter Baker (Conservative, South Norfolk) was expelled after receiving a custodial sentence of seven years following a conviction for forgery. The length of the sentences of imprisonment given to Mr Bottomley and Mr Baker would now, under the Representation of the People Act 1981, result in automatic disqualification from the House of Commons. Horatio Bottomley’s offences were not felonies, so at the time he would not have been automatically disqualified. In the case of Mr Baker, the motion for expulsion need not have been moved: under the provisions of the Forfeiture Act 1870 then still in force, he would have been automatically disqualified by reason of his conviction for a felony.41 While the House has the right to expel any of its Members, it cannot simply by resolution prevent the return of a Member at any election, although the person elected may be subject to a statutory disqualification from membership of the House of Commons.42

B. Resignations, the Chiltern Hundreds and Statutory Disqualification The convenient fiction that certain sinecures, including the office of steward or bailiff of Her Majesty’s three Chiltern Hundreds of Stoke, Desborough and Burnham, or of the Manor of Northstead, were ‘offices of profit under the Crown’ grew up in order to facilitate de facto resignation from the House of Commons. The roll-call of holders of these offices covers a wide variety of cases. One has only to scan the list of those appointed to the Chiltern Hundreds to get an impression of the diversity of frequently honourable motives which have led Members voluntarily to relinquish their seats: recent holders of the disqualifying sinecures include Sir Peter Soulsby (Labour, Leicester South) who became the first directly-elected 41 All distinctions between felony and misdemeanour were abolished by s 1 of the Criminal Law Act 1967. An apparently inadvertent consequence of treating almost all offences as misdemeanours was the lack of an automatic disqualification from membership of the House of Commons following a criminal conviction for a serious offence. This was not restored until the Representation of People Act 1981, passed in the wake of the death of Bobby Sands (Anti-H Block, Fermanagh and South Tyrone) on hunger strike in the Maze prison in Northern Ireland. 42 Tony Benn (Labour) was returned for Bristol South East at a by-election on 4 May 1961, after he had been disqualified from membership of the House of Commons on inheriting his late father’s peerage, but an Election Court found that he had not been duly returned because as a peer he was ineligible and that Malcolm St Clair (Conservative), the candidate who came second at the poll, was duly elected. The House accordingly voted, by 235 to 145, that the return from the by-election should be amended and Mr St Clair took his seat in the House.

Privilege, Exclusive Cognisance and Law 15 Mayor of Leicester, former Prime Minister Tony Blair (Labour, Sedgefield), Boris Johnson (Conservative, Henley) who became the directly-elected Mayor of London, and Terry Davis (Labour, Birmingham Hodge Hill), who had been elected Secretary-General of the Council of Europe.43 It may be that, in a few other cases, Members took the Chiltern Hundreds (or the Manor of Northstead) in order to jump, rather than wait to be pushed, out of the House. Denis MacShane (Labour, Rotherham) announced his intention to apply for the Chiltern Hundreds within hours of the publication of a report from the Committee on Standards and Privileges on 2 November 2012 recommending that he be suspended from the service of the House for 12 months.44 Eric Illsley (Labour, Barnsley Central) was appointed to the Chiltern Hundreds on 8 February 2011, following his conviction for criminal offences relating to his expenses but before sentence was passed.45 John Stonehouse, the former Labour Co-operative Member for Walsall North who latterly sat for the English National Party, was appointed to the Chiltern Hundreds on 27 August 1976 prior to his conviction on 21 charges of fraud, theft, forgery, conspiracy to defraud, causing a false police investigation and wasting police time, for which he was sentenced to a term of seven years’ imprisonment. In the most recent case of this kind, Chris Huhne (Liberal Democrat, Eastleigh) was appointed on 5 February 2013 to the Chiltern Hundreds after pleading guilty the previous day to perverting the course of justice over a traffic offence. He was sentenced on 11 March 2013 to 8 months’ imprisonment.

43 There are some examples of seats being voluntarily relinquished so that Members can immediately stand again in order to make a point. The March 1978 by-elections in Northern Ireland forced by the resignation of 15 Unionist Members have already been mentioned above. David Davis (Conservative, Howden and Haltemprice) resigned his seat on 18 June 2008 in protest at the erosion of civil liberties in the United Kingdom in order to fight a by-election on 10 July 2008, which he won comfortably. Dick Taverne (Labour, Lincoln) resigned his seat on 16 October 1972 after falling out with his local party over his pro-EEC position. He was returned at the rather delayed by-election on 1 March 1973 as an Independent Democratic Labour candidate. Although he retained the seat at the February 1974 general election, he lost it to the Labour candidate Margaret Jackson (later Beckett) at the October 1974 general election. Bruce Douglas-Mann (Mitcham and Morden) was unsuccessful in his bid to be returned to the House on 3 June 1982 when he gave his constituents the opportunity to return him to the House after he had defected from the Labour Party to join the nascent Social Democratic Party. Angela Rumbold (Conservative) won the seat. 44 Committee on Standards and Privileges, Mr Denis MacShane (Second Report), (HC 2012–13, 635) para 62. An amendment was unsuccessfully moved in the Committee that its recommendation should be for Mr MacShane’s expulsion from the House. The Committee made clear that its recommendation sprang principally from Mr MacShane’s having knowingly submitted 19 false invoices over a period of four years which were plainly intended to deceive the parliamentary expenses authorities. On 6 November 2012 the House of Commons endorsed the Committee’s recommendation, noting that Mr MacShane had already left the House. 45 The sentence Mr Illsley actually received, of 12 months’ imprisonment, would not have triggered the automatic disqualification under the Representation of the People Act 1981. It cannot be known whether, or to what extent, his prior resignation weighed in the balance as a mitigating factor in the judge’s sentencing decision: Mr Illsley’s resignation was not mentioned in Saunders J’s sentencing remarks on 10 February 2011 in Southwark Crown Court.

16 Liam Laurence Smyth Under section 4 of the House of Commons (Disqualification) Act 1975, the offices of steward or bailiff of Her Majesty’s three Chiltern Hundreds of Stoke, Desborough and Burnham, or of the Manor of Northstead, are treated as included among the list of disqualifying offices in Schedule 1 to that Act. The Schedule is updated from time to time by Order in Council.46 A significant acknowledgment of the House’s interest in determining its own membership is that the statute may be amended in this way only after the House of Commons has itself approved a resolution on which the Order in Council must be based. More importantly, the Act also provides for the House itself to direct that a disqualification for membership of the House of Commons on any of the grounds set out in the Act be disregarded if it appears to the House that the grounds of disqualification which applied at the material time have been removed, and that it is otherwise proper so to do so.47 As a further safeguard, no Member may be required to accept any appointment to which the Act applies.48 When Gerry Adams, the Sinn Féin Member for West Belfast, wished to resign his seat in order to stand in the 2011 Irish general election, he wrote to the Speaker on 20 January 2011 to announce his desire to resign. Mr Adams was appointed by the Chancellor of the Exchequer to the office of steward or bailiff of the Manor of Northstead on 26 January 2011. In a statement released to the media, Mr Adams said he had no truck whatsoever with these antiquated and quite bizarre aspects of the British parliamentary system. I am proud to have represented the people of West Belfast for almost three decades and to have done so without pledging allegiance to the English queen or accepting British parliamentary claims to jurisdiction in my country.

Sir George Young (Conservative, North West Hampshire), the Leader of the House, told the House of Commons that: Gerry Adams wrote on 20 January making it absolutely clear that he wanted to relinquish his seat and stand in the Irish general election. As Gerry Adams should have known, a Member of Parliament may not resign; there are no means by which a Member may vacate his or her seat during the lifetime of a Parliament, other than by death, disqualification or expulsion. The Chancellor of the Exchequer, therefore, in line with long-standing precedent granted Mr Adams the office of profit under the Crown of steward and bailiff of the Manor of Northstead, so we delivered Mr Gerry Adams to the required destination, although he may have used a vehicle and a route that was not of his choosing.49

46 47 48 49

Most recently the House of Commons Disqualification Order 2010, SI 2010/762. House of Commons (Disqualification) Act 1975, s 6. House of Commons (Disqualification) Act 1975, s 8. HC Deb 27 January 2011, col 449.

Privilege, Exclusive Cognisance and Law 17 The West Belfast by-election held on 9 June 2011 resulted in the return of Paul Maskey, another member of Sinn Féin, joining the four other Sinn Féin Members who have also not taken their seats at Westminster. Martin McGuinness, the Sinn Féin Member for Mid Ulster, followed the same route in order to give up his dual Stormont/Westminster mandate, leaving the House of Commons on 2 January 2013 by way of appointment as steward and bailiff of Her Majesty’s Manor of Northstead in the county of York.

C. Recall of MPs? The House’s power of expulsion was not deployed at any point throughout the expenses scandal. The scandal resulted in a handful of criminal prosecutions and it contributed to several political careers coming to an end at the 2010 general election, either as a result of Members standing down, being de-selected or being defeated.50 One strand in the parties’ response to public dismay over the expenses scandal was to hold out the possibility of voter-led dismissal of MPs between general elections.51 In December 2011, the Government published a White Paper including a draft Bill on the Recall of MPs, which was then subjected to pre-legislative scrutiny by the Political and Constitutional Reform Select Committee.52 The Government’s draft Bill set out how a petition from constituents might result in a by-election where a Member had been sentenced to a custodial sentence of 12 months or less (the ‘first recall condition’). The draft Bill also left it open to the House itself to decide how, when and why to trigger a recall petition (the ‘second recall condition’), as in effect an extension of the House’s existing disciplinary powers. The White Paper, and the memorandum submitted by the Clerk of the House to the Select Committee, set out how the new power might be exercised, after a reasonable and fair process involving the Committee on Standards and Privileges, in relation to serious wrongdoing by a Member. The absence of explicit safeguards in the text of the Bill on the use of the second recall condition was intended to avoid making any part of the House’s self-disciplinary machinery subject to legal challenge in the courts. The Political and Constitutional Reform Committee agreed that it would be

50 Dr Ian Gibson (Labour, Norwich North) left Parliament by taking the Chiltern Hundreds in June 2009 after being de-selected in the wake of the expenses scandal. By doing so, he precipitated a by-election, which was won by Chloe Smith (Conservative). 51 Conservative Party manifesto, Invitation to join the Government of Britain (2010) 65–66; Liberal Democrat Party manifesto (2010) 89; Labour Party manifesto, A Fair Future for All (2010) 9; HM Government, The Coalition Agreement: Our Programme for Government (May 2010) 27. 52 The Recall of MPs White Paper was published as Cm 8241.

18 Liam Laurence Smyth undesirable to define ‘serious wrongdoing’ in the Bill.53 In its response to the Committee’s report, the Government said it was grateful for the Committee’s understanding that it would be undesirable to include in the Bill a definition of ‘serious wrongdoing’ and noted that it was a view shared by the Clerk of the House.54 The Political and Constitutional Reform Committee was not persuaded there was a gap in the House’s disciplinary procedures which needed to be filled by the introduction of a statutory power of recall, as the House already had the power to expel Members who were guilty of serious wrongdoing. Noting that expulsion would not prevent the person concerned standing in the resulting byelection, the Committee recommended that the Government should abandon its plans to introduce a power of recall and that it should use the parliamentary time this would free up to better effect.55 The Government responded that it remained committed to introducing a mechanism for the recall of MPs and that it would consider further the Committee’s recommendations alongside detailed and careful consultation with its stakeholders in determining its policy on recall.56 The Coalition Mid-term Review reaffirmed the Government’s intention to bring forward legislation in this Parliament on this matter,57 a commitment which was reiterated in oral questions by the Deputy Prime Minister in January 2013.58

D. Lay Members of the Commons’ Committee on Standards In its response to the expenses scandal, the non-statutory Committee on Standards in Public Life returned to a suggestion it had previously touched upon in 2002, that the House of Commons self-regulatory machinery would be strengthened by the inclusion of external members.59 At that time, the Committee on Standards in Public Life had found that there were significant hesitations in the House about the acceptance of lay members in even an advisory capacity on the Committee on Standards and Privileges. The Committee on Standards in Public Life in 2002

53 Political and Constitutional Reform Select Committee, Recall of MPs (First Report) (HC 2012–13, 373) para 30. 54 Political and Constitutional Reform Committee, Recall of MPs: Government Response to the Committee’s First Report of Session 2012–13 (Second Special Report) (HC 2012–13, 646) para 22. 55 Political and Constitutional Reform Select Committee, Recall of MPs (First Report) (n 53) para 89. 56 Political and Constitutional Reform Committee, Recall of MPs: Government Response to the Committee’s First Report of Session 2012–13 (Second Special report) (HC 2012–13 646) para 71. 57 The Coalition: Together in the National Interest (7 January 2013) 39. 58 HC Deb 8 January 2013, col 140. 59 Committee on Standards in Public Life, Standards of Conduct in the House of Commons (Eighth Report) (Cm 5663, 2002).

Privilege, Exclusive Cognisance and Law 19 had not thought it necessary to recommend the inclusion of external members at that stage.60 In its November 2009 report on MPs’ expenses, the Committee on Standards in Public Life now recommended that there should be at least two lay members who had never been parliamentarians on the Standards and Privileges Committee of the House of Commons.61 The Committee on Standards in Public Life’s proposals were swiftly endorsed by the Committee on Standards and Privileges, then under the chairmanship of David Curry (Conservative, Skipton and Ripon).62 On 2 December 2010, the House of Commons resolved to agree with the principle that lay members should sit on the Committee on Standards and Privileges, as set out in the twelfth report from the Committee on Standards in Public Life, and invited the Procedure Committee to bring forward proposals for its implementation.63 Kevin Barron (Labour, Rother Valley), the new chair of the Committee on Standards and Privileges, told the Procedure Committee that he was ‘very much in favour’ of the addition of lay members.64 In its report, the Procedure Committee drew attention to the risk that the addition of lay members with full voting rights to a committee might call into question whether the activities of such a committee would still be ‘proceedings in Parliament’ and so covered by parliamentary privilege.65 In his evidence to the Procedure Committee, Professor Anthony Bradley had taken the view that the courts would be likely to refuse judicial review and that the 2010 UK Supreme Court judgment in R v Chaytor had shown that the courts would not interfere with the right of each House to control its own proceedings.66 The Clerk of the House suggested to the Procedure Committee that lay members could be added to the Committee on Standards67 with less than full voting rights but with substantial powers to ensure that the Committee could neither meet nor report without their participation.68 The Procedure Committee made several practical proposals, for the process of appointing lay members and for splitting of the Committee on Standards and Privileges into separate Committees, on Standards and of Privileges, but it remained neutral on voting 60

Committee on Standards in Public Life, Eighth Report (n 59) para 7.13. Committee on Standards in Public Life, MPs’ Expenses and Allowances (Twelfth Report) (Cm 7724, 2009). 62 Committee on Standards and Privileges, Implementing the Twelfth Report from the Committee on Standards in Public Life (Second Report) (HC 2009–10, 67). 63 HC Deb 2 December 2010, cols 995–1017. 64 Procedure Committee, Lay Membership of the Committee on Standards and Privileges (Sixth Report) (HC 2010–12, 1606) para 44. A previous chair of the Standards and Privileges Committee, Sir George Young (Conservative, North West Hampshire), who was Leader of the House from May 2010 to September 2012, had also supported the idea of having outside members sitting on the Standards and Privileges Committee: Committee on Standards in Public Life, Twelfth Report (n 61) para 13.67. 65 Procedure Committee, Sixth Report (n 64). 66 Ibid, Ev 25. 67 See discussion in chs 4 and 7. 68 Procedure Committee, Sixth Report (n 64) Ev 1–5. 61

20 Liam Laurence Smyth rights for lay members, inviting the House to study with care the arguments either way and to decide whether the Committee on Standards’ lay members should be appointed with full voting rights or with more limited rights, protected by rules on quorum and publication of their opinion or advice.69 In its response to the Procedure Committee, the Government’s view was that the approach most likely to command the support of the House would be to appoint lay members to the Committee on Standards in the first instance on the basis proposed by the then Clerk of the House in his evidence to the Procedure Committee. Under these proposals, the lay members would take a full part in evidence-taking, including asking questions. Their position in the deliberative work of the Committee would be protected by a provision in Standing Orders requiring that the written opinion of each lay member present at the relevant meeting on a report agreed by the Committee must be published as part of any report by the Committee. The Government suggested that there should be a further requirement in Standing Orders that the Committee could not meet unless at least one lay member was present.70 The House of Commons amended its Standing Orders on 12 March 2012 and, after a fair selection process, the three lay members nominated by the House of Commons Commission were approved by the House of Commons on 13 December 2012.71 The Government’s undertaking to consider the case for legislating to place beyond doubt the position of a Committee on Standards with lay members who did have full voting rights was fulfilled in its Parliamentary Privilege Green Paper.72

IV. PARLIAMENT AND THE COURTS

Exclusive cognisance, or exclusive jurisdiction, is not included among the rights and privileges granted to or conferred upon the Commons at the Speaker’s request. It is a constitutional principle that the conduct of the House’s own business is not amenable to judicial review. In the case of British Railways Board v Pickin, the House of Lords (acting in its judicial capacity) decided that it was not lawful to impugn the validity of a statute by seeking to establish that Parliament, in passing it, had been misled.73 How far this exclusive cognisance may extend has never been precisely defined; it is probable that nowadays the courts would take a 69 Procedure Committee, Sixth Report (n 64) para 53. The Procedure Committee noted that it would of course be open to the House to reject both options. For more on lay members see ch 4. 70 Procedure Committee, Government Response to the Sixth Report from the Procedure Committee, Lay Membership of the Committee on Standards and Privileges (Third Special Report) (HC 2010–12, 1869). 71 See House of Commons Commission, Lay Members of the New Standards Committee: Nomination of Candidates (Report) (HC 2012–13, 709). 72 HM Government, Parliamentary Privilege (n 1) paras 232–44, with a draft clause on p 59. 73 Erskine May (n 2) 295; [1974] All ER 609. For a contrary view, expressed by Lord Denning MR, see [1973] QB 219, 230.

Privilege, Exclusive Cognisance and Law 21 stricter view over a matter such as the applicability of the ordinary law of the land on licensing hours to the Palace of Westminster.74

A. The Application of Statutes to Parliament Following the approach confirmed in R v Graham Campbell, ex p Herbert75 the courts presume that, in the absence of express provision or necessary implication, an Act does not apply to the internal workings of the Houses of Parliament. Increasingly often, however, the authorities in both Houses pledge themselves to comply fully with relevant legislation in fields such as employment law or health and safety as if it were binding on them. This policy of voluntary application has been gradually supplanted by provisions expressly applying statutes to Parliament and parliament staff.76 The sovereignty of Parliament and its relationship with the courts are the subject of other chapters in this book.77 Express provision in statute may include a reference to ‘proceedings in Parliament’. In the absence of a generally applicable statutory definition of ‘proceedings’, it would presumably fall to a court to determine what actually constitutes ‘proceedings’ if the point required decision in a litigated case. For example, the requirements placed by section 29 of the Equality Act 2010 on service providers not to discriminate, harass or victimise persons requiring the service do not apply, under paragraph 1 of Schedule 3 to the Act, to a function of Parliament or a function exercisable in connection with proceedings in Parliament, provided that what is done is in pursuance of a resolution or other deliberation of either House or a committee of either House. The public sector equality duty under section 149 of the Act does not apply to the House of Commons or the House of Lords, or to the exercise of functions in connection with proceedings in either House.

B. Privilege and Judicial Proceedings i. Parliamentary Papers Act 1840 The claim that privilege extended to Parliament’s publications outside the House was rejected by the courts in the first half of the nineteenth century.78 Statutory 74 The influence of R v Graham Campbell, ex p Herbert [1935] KB 594 is discussed by G Lock, ‘Statute Law and Case Law Applicable to Parliament’ in D Oliver and G Drewry (eds), The Law and Parliament (London, Butterworths, 1998). 75 [1935] KB 594. 76 This paragraph follows D Greenberg (ed), Craies on Legislation, 8th edn (London, Sweet and Maxwell, 2004) para 11.6.1. Examples of express application include s 65 of the Disability Discrimination Act 1995 and s 36 of the Apprenticeships, Skills, Children and Learning Act 2009. 77 Ch 12. 78 The case of Stockdale v Hansard (1839) 9 Ad & El 1; (1839) 112 ER 1112 and its ramifications are discussed in Erskine May (n 2) 288–90.

22 Liam Laurence Smyth immunity was given to such publications by the Parliamentary Papers Act 1840. It is that Act which protects a report of a speech in Hansard, and all other proceedings published on the authority of the House. As discussed in chapter two the former prohibitions on quoting Hansard in court have been very substantially relaxed, notably for certain contexts in relation to speeches by ministers. The protection afforded by the Parliamentary Papers Act is the reason why certain reports of inquiries, which might otherwise attract libel proceedings, are published as unopposed returns to orders of the House: for example, the Saville Report of the Bloody Sunday Inquiry and the Hutton Report on the circumstances surrounding the death of Dr David Kelly.79 ii. Attendance as a Witness The privilege of exemption of a Member from attending court as a witness, in criminal as well as civil proceedings, has been asserted because Parliament has the paramount right to the attendance and service of its Members.80 A Member may, however, choose to attend court in response to a subpoena even on a day on which the House sits. On 23 May 2005, Mrs Sylvia Heal, one of the Deputy Speakers, voluntarily gave evidence at the Bow Street magistrates’ court about the incursion of pro-hunting demonstrators into the Chamber during a sitting of the House on 15 September 2004. iii. Jury Service Section 321 of Criminal Justice Act 2003 provides for Schedule 33 to the Act to have effect. Among the effects of that Schedule was the repeal of section 9(1) of and Part III of Schedule 1 to the Juries Act 1974, which had restated in statutory form the ancient parliamentary privilege of exemption from jury service, applicable to Members and officers of either House of Parliament.81 MPs and parliamentary staff are now just as liable to be summoned to perform jury service as other citizens. The risk of jury service disrupting the work of Parliament is mitigated by administrative practice: Members of Parliament who seek excusal of jury service on the grounds of parliamentary duties are to be offered deferral in the first instance. If a Member feels that it would be inappropriate to do jury service in the Member’s own constituency, then the Member should be allowed to do jury service elsewhere. The Speaker of the House of Commons and his 79 Report of the Bloody Sunday Inquiry (HC 2009–10, 29 -I to –IX and HC 30); Lord Hutton, Report of the Inquiry into the Circumstances Surrounding the Death of Dr David Kelly CMG (HC 2003–04, 247). 80 Erskine May (n 2) 248. 81 Although the term ‘officers’ of either House was not defined in statute, in the context of exemption from jury service the term ‘officer’ had come to embrace all employees of the House of Commons Commission. A comparably broad definition covered all House of Lords staff.

Privilege, Exclusive Cognisance and Law 23 deputies should in the first instance be deferred to a time when Parliament is not sitting, because of the difficulties their absence from the House would cause. Both of these concessions are subject to the normal expectation that everyone summoned for jury service will serve at the time for which they are summoned. Ministry of Justice guidelines stipulate that excusal from jury service should be reserved only for those cases where the jury summoning officer is satisfied that it would be unreasonable to require the person to serve at any time within the following 12 months. iv. Service of Court Papers The serving or executing civil or criminal process within the precincts of either House while the House is sitting without obtaining the leave of the House is a contempt.82 The Joint Committee on Parliamentary Privilege’s view was that the main purpose of this rule was to protect Members and others who attended either House from service within the House being used for publicity-seeking purposes, concluding that ‘Such activity would be an abuse of the precincts of Parliament’.83 In 1973 a possible contempt was referred to the Committee of Privileges. The Committee decided that a contempt had been committed by the solicitors’ clerk who delivered a copy of a writ to Ray Carter (Labour, Birmingham, Northfield), but it accepted that in the circumstances no contempt had been intended. The Committee warned that intrusion into the precincts for the purpose of delivering such documents was an affront to the House and a serious abuse of the facilities available to visitors.84 The Clerk of the House’s comprehensive memorandum to the Committee had recalled a number of cases, ancient and modern, including an attempt by a member of the public to sue a Lords doorkeeper over the loss of an umbrella.85 An earlier Committee of Privileges had found that a Westminster police inspector had committed a breach of privilege in serving papers on the Speaker’s Secretary relating to motoring offences he had allegedly committed in Shropshire.86 The Joint Committee on Parliamentary Privilege considered that the rule against the formal service of court papers on the precincts did not impede the administration of justice, arguing that if personal service elsewhere was difficult, other alternatives, such as postal service or substituted service, were readily available. The Joint Committee recommended not only that the rule against service in person should be retained but also that it ought to be extended to apply at 82

Erskine May (n 2) 261. Joint Committee on Parliamentary Privilege, Report (n 1) para 334. 84 Committee of Privileges, Complaint of the Serving of a Writ upon a Member within the Precincts of the House (First Report) (HC 1972–73, 144) para 4. 85 Case of John Bell (1827) in the Committee of Privileges, Complaint of the Serving of a Writ upon a Member within the Precincts of the House (First Report) (n 84) 12. 86 Committee of Privileges, Report (HC 1945–46, 31). 83

24 Liam Laurence Smyth all times, irrespective of whether Parliament was sitting. On the other hand, the Joint Committee doubted whether service by post on a sitting day could ever be regarded as a contempt. The Joint Committee further recommended it should be made clear that service by post was not a contempt.87 As no cases of complaints about service of court documents by post have surfaced since the Joint Committee reported in 1999, its view remains persuasive.

V. ATTEMPTS TO REFORM PARLIAMENTARY PRIVILEGE

A. The Background: Some History i. Duncan Sandys and Official Secrets On 27 June 1938, Mr Duncan Sandys (Conservative, Norwood) raised a complaint on the floor of the House, as a matter of privilege, that the Attorney-General had asked Mr Sandys about the ‘highly secret’ sources of information Mr Sandys had evidently used in a draft of a parliamentary question (about shortages of antiaircraft guns) which Mr Sandys had enclosed in a letter to the Secretary of State for War. On 30 June 1938 the House referred the detail of Mr Sandys’s allegations and the general question of the applicability of the Official Secrets Acts to Members to a select committee on the Official Secrets Act.88 The House of Commons agreed with the 1938–39 Select Committee on the Official Secrets Act that the working definition of ‘proceedings’ should be extended to communications between one Member and another or between a Member and a minister so closely related to some matter pending in or expected to be brought before the House that they form part of the business of the House.89 ii. The Strauss Case In 1958 the House of Commons Committee of Privileges concluded that a letter written by George Strauss (Labour, Vauxhall) to the Paymaster General about the London Electricity Board was a ‘proceeding in Parliament’ and that accordingly the Member could not be prosecuted for allegedly defamatory comments in the letter. The Committee also found that, in threatening a libel action against the Member, both the Board and its solicitors had committed a breach of privilege. By a narrow margin of 218 to 213, the House of Commons rejected a motion agreeing with the Committee’s report. An amendment declaring that Mr Strauss’ letter was not a proceeding in Parliament and that no breach of privilege had been

87

Joint Committee on Parliamentary Privilege, Report (n 1) para 335. Reports from the Select Committee on the Official Secrets Act, HC 146 and HC 173 of Session 1937–38, and HC 101 of 1938–39. 89 HC Deb 21 November 1939, cols 1071–84. 88

Privilege, Exclusive Cognisance and Law 25 committed was carried.90 With hindsight, it might be argued that the Strauss case marked a turning point, away from the advanced claims for parliament privilege made in the Duncan Sandys case.91 iii. The Recommendations of the Select Committee on Parliamentary Privilege 1966–67 A Select Committee on Parliamentary Privilege was appointed in July 1966 to carry out a comprehensive review of parliamentary privilege. It recommended that the decision of the House in the Strauss case should be reversed by legislation, but that call for legislation went unheeded and its other recommendations languished for a decade. In 1976 two matters were referred to the Committee of Privileges concerning press releases issued by Iain Sproat (Conservative, Aberdeen South) and the Social Democratic Alliance respectively alleging that some Labour members held Communist or Trotskyite views. In its report, the Committee of Privileges declared that it was not its function to determine the truth or falsehood of the two press releases. The Committee, having found that neither press release amounted to a contempt, took the opportunity to express its opinion that that the recommendations of the 1966–67 Committee should be referred to the Committee of Privileges for review.92 The House having taken the hint in January 1977, the Committee of Privileges reported in June 1977 on its review of the earlier Committee’s recommendations. The Committee recommended that complaints of contempt should be made initially privately in writing to the Speaker, so that only where a prima facie case had been made out would a complaint of contempt reach the floor of the House. Among its other recommendations, the Committee of Privileges followed the Joint Committee on Publication of Proceedings in Parliament93 in recommending legislation to define ‘proceedings in Parliament’. The Committee of Privileges recommended that the power to fine should be revived by statute, and the power to imprison should be abolished.94 On 6 February 1978, the House approved the Committee of Privileges’ recommendations, other than those which required legislation, including the new ‘Speaker’s filter’ arrangement for raising complaints of contempt.95 Among the principal recommendations of the 1966–67 Select Committee which secured the approval of the House in 1978 was that the

90

HC Deb 8 July 1958, cols 208–345. For a discussion of the impact of the Strauss case, see D Yardley, The House for Commons and its Privileges since the Strauss Affair (1962) 15 (4) Parliamentary Affairs 500–10. 92 The Committee of Privileges could consider only specific matters referred to it by the House. 93 Joint Committee on the Publication of Proceedings in Parliament, Second Report (HC 1969–70, 251) paras 25–28. 94 Committee on Privileges, Recommendations of the Select Committee on Parliamentary Privilege (HC 1976–77, 417) para 18. 95 CJ (1977–78) 170. 91

26 Liam Laurence Smyth penal jurisdiction of the House ought to be exercised in any event as sparingly as possible and only where it was essential to do so.96 The combined effect of this principle of restraint and the Speaker’s filter has greatly reduced the number of privilege cases coming forward for formal consideration.

B. The Joint Committee on Parliamentary Privilege 1997 to 1999, and after The decision to appoint a Joint Committee on Parliamentary Privilege in July 1997 followed a degree of dissatisfaction with section 13 of the Defamation Act 1996, which allows in certain circumstances a limited waiver of the freedom of speech guaranteed by the Bill of Rights. When it reported in March 1999, the Joint Committee on Parliamentary Privilege took the view that the mischief addressed by section 13 of the Defamation Act 1996 ought to be cured in a different way. The Joint Committee suggested that section 13 of the 1996 Act should be replaced by a short statutory provision empowering each House to waive Article 9 for the purpose of any court proceedings, whether relating to defamation or to any other matter, where the words spoken or the acts done in proceedings in Parliament would not expose the speaker of the words or the doer of the acts to any legal liability.97 The recommendations of the Joint Committee on Parliamentary Privilege covered a much broader canvas than the specific point on defamation. The Joint Committee recommended legislation on a number of topics, including the definition of ‘proceedings in Parliament’ and contempt of Parliament, ensuring that both Houses had the power to levy fines but not to imprison, and a concurrent jurisdiction with the courts to punish non-Members for contempts such as failing to attend proceedings or to answer questions. Each House debated the recommendations of the Joint Committee on Parliamentary Privilege, but its proposals for legislation never attained sufficient priority to be included in the Government’s legislative programme. Despite this lack of statutory implementation, the comprehensiveness of the Joint Committee’s recommendations remained influential over the next dozen or so years in persuading other committees not to endorse proposals for tinkering with particular aspects of privilege.

96 Select Committee on Parliamentary Privilege, Report (HC 1967–68, 34) para 15; Committee on Privileges, Recommendations of the Select Committee on Parliamentary Privilege, (n 94) para 5. 97 The Defamation Bill as introduced in the 2012–13 Session left untouched s 13 of the 1996 Act. The Joint Committee on the draft Defamation Bill in Session 2010–12 had made no comment on s 13 of the 1996 Act, which was not raised in evidence to the Joint Committee; see the Joint Committee on the draft Defamation Bill, Report (2010–12, HL 203, HC 930-I) and Parliamentary Privilege (n 1) para 191.

Privilege, Exclusive Cognisance and Law 27 i. Views of other Committees: Corruption, Justice and Bribery For example, in 2003 the Joint Committee on the draft Corruption Bill considered ‘it would be better if the Joint Committee [on Parliamentary Privilege] recommendations were followed and a Parliamentary Privilege Bill dealing with all these matters [affecting parliamentary privilege] were brought forward’.98 In July 2009 the House of Commons Justice Select Committee suggested in its report on the Parliamentary Standards Bill, which was prompted by the expenses scandal, that it was an appropriate time for considering whether to have a Parliamentary Privilege Act.99 The report of the Joint Committee on the draft Bribery Bill, also published in July 2009, concluded that: The issue of parliamentary privilege has arisen in relation to several pieces of legislation and draft legislation in recent years. Legislating in a piecemeal fashion risks undermining the important constitutional principles of parliamentary privilege without consciousness of the overall impact of doing so. This issue was examined in considerable detail by the 1999 Joint Committee on Parliamentary Privilege, which concluded that a Parliamentary Privileges Act was required. We believe that, should the Government deem it necessary, such an act would be the most appropriate place to address the potential evidential problems in relation to bribery offences.100

Clause 10 (Proceedings in Parliament) of the Parliamentary Standards Bill as introduced in the Commons would have provided that no enactment or rule of law which prevents proceedings in Parliament being impeached or questioned in any court or place out of Parliament was to prevent: (a) IPSA from carrying out any of its functions; (b) the Commissioner from carrying out any of the Commissioner’s functions; or (c) any evidence from being admissible in proceedings against a member of the House of Commons for an offence under clause 9 (Offences) of the Bill, which included an offence of contravening a prohibition included in the MPs’ financial interests rules by virtue of the prohibition on paid advocacy in the Bill’s clause 5(10). The then Clerk of the House (Malcolm Jack) described the clause in evidence to the Justice Committee as possibly having a chilling effect on the freedom of speech of Members.101 Clause 10 was narrowly defeated in Committee of the whole House in the Commons in July 2009, and removed from the Bill.102

98

Joint Committee on the draft Corruption Bill, Report (n 21) para 114. Justice Committee, Constitutional Reform and Renewal: Parliamentary Standards Bill (Seventh Report) (HC 2008–09, 791) para 6. 100 Joint Committee on the draft Bribery Bill, First Report (2008–09, HL n 22) para 228. 101 Justice Committee, Constitutional Reform and Renewal: Parliamentary Standards Bill (Seventh Report) (n 99) Ev 11–13. 102 HC Deb 1 July 2009, cols 382–87; in the Division on cl 10 stand part, the Ayes were 247 and the Noes were 250. 99

28 Liam Laurence Smyth ii. The Campbell Committee 2010 In 2010, shortly before the general election in that year, a Select Committee on an Issue of Privilege, chaired by Sir Menzies Campbell (Liberal Democrat, North East Fife) reported on Police Searches on the Parliamentary Estate in the wake of the Damian Green case. The Campbell Committee recalled that the traditional view had been to resist entombing parliamentary privilege in statute law: The dignity and independence of the two Houses are in great measure preserved by keeping their privileges indefinite. If all the privileges of Parliament were set down and ascertained, and no privilege to be allowed but what was so defined and determined, it were easy for the executive power to devise some new case, not within the line of privilege, and under pretence thereof to harrass any refractory Member and violate the freedom of Parliament.103

The Campbell Committee made no secret of the fact that it was divided over the need for legislation, but came down in favour of a further review: While we have no unanimous conclusion on the wisdom or necessity of legislating on parliamentary privilege, we agree in recommending that before any Government Bill on the subject was introduced it would be highly desirable for the whole question to be addressed in the round by a special joint committee drawn from both Houses. Before setting out to define and limit parliamentary privilege in statute, there needs to be a comprehensive review of how that privilege affects the work and responsibilities of an MP in the twenty-first century.104

C. Members’ Expenses105 By the time the Campbell Committee reported in March 2010, criminal charges were pending against three Members of Parliament in the wake of the expenses scandal which had erupted in May 2009. Eventually the UK Supreme Court decision in Chaytor confirmed that neither Article 9 of the Bill of Rights nor the exclusive cognisance of the House of Commons posed any bar to the jurisdiction of the Crown Court to try Members of Parliament on charges of false accounting contrary to section 17(1)(b) of the Theft Act 1968. Long before that decision, parliamentary privilege was raised in the media as a potential obstacle to the pursuit of justice. The Sunday Times of 3 January 2010 speculated that Article 9 of the Bill of Rights 1688 might protect Members of Parliament from prosecution for

103 William Blackstone’s Commentaries on the Laws of England (1765–69) quoted by the Prime Minister (Rt Hon Neville Chamberlain) in the final debate on the Sandys affair (HC Deb 21 November 1939, col 1071) cited by the Campbell Committee (the Select Committee on an Issue of Privilege) in its report, Police Searches on the Parliamentary Estate (HC 2009–10, 62) para 168. 104 Report from the Select Committee on Issue of Privilege, Police Searches on the Parliamentary Estate (HC 2009–10, 62) para 169. 105 See also the discussion in chs 3 and 4.

Privilege, Exclusive Cognisance and Law 29 expenses fraud. The newspaper reported a source close to Speaker John Bercow as saying: ‘We do not believe that privilege applies here. The Commons has effectively waived privilege by exempting the MPs under police investigation from the Legg audit process’.106 In a leader on 6 February 2010, The Times described as ‘explosive’ the words of the Director of Public Prosecutions Keir Starmer, in saying that the Crown Prosecution Service had ‘concluded that the applicability and extent of any parliamentary privilege claimed should be tested in court’. According to The Times, ‘the arcane rules of Parliament, which have thwarted a string of police inquiries into politicians in recent years, are now set to be put before a jury in what could become a case with major constitutional significance’. Once the preliminary issue concerning parliamentary privilege in R v Chaytor and others had been considered by Saunders J at Southwark Crown Court and on appeal by the Appeal Court, and finally disposed of by the UK Supreme Court, the criminal charges were proceeded with before Saunders J at Southwark Crown Court. The former Members David Chaytor and Elliot Morley pleaded guilty, as did Eric Illsley (Labour, Barnsley Central) MP on later charges brought after the 2012 general election. The only former Member of Parliament to face a jury was Jim Devine, who was found guilty on two of the three charges he faced. In two similar cases involving peers’ expenses, Lord Hanningfield and Lord Taylor of Warwick appeared before a jury, and both were found guilty. Because other former Member, Margaret Moran, had been found not fit to plead, the charges against her were the subject of a trial of issue before a jury in November 2012.107 The jury found on 13 November 2012 that Ms Moran had committed 15 counts of false accounting and six counts of using a false instrument over her claims for parliamentary expenses.108 On 14 December 2012 Saunders J disposed of the case by imposing a two-year treatment and supervision order on Ms Moran.

106 The Legg audit process began on 19 May 2009, in the wake of a stream of unauthorised disclosures of Members’ expense claims by The Daily Telegraph, when it was agreed at a meeting of the party leaders and the members of the Members Estimate Committee (comprising the Speaker, the Leader of the House, the Shadow Leader and one backbencher from each of the three largest parties in the House) that there should be a review of past payments of Additional Costs Allowance (the ‘second home allowance’). The Speaker announced the review that same evening. Sir Thomas Legg agreed to conduct the review, which cost approximately £1.16 million. Members who disputed Sir Thomas Legg’s findings could have their cases reviewed by Sir Paul Kennedy. The amount repayable after the Legg Review, taking into account the Kennedy appeals, was around £1.12 million. Sir Thomas Legg’s terms of reference expressly excluded him from dealing with ACA payments where the Member concerned was under investigation at any stage by the police. See Members Estimate Committee, Review of Past ACA Payments (First Report), (HC 2009–10, 348) paras 43 and 44. 107 Since the UK Supreme Court had already pronounced on the privilege point, the expectations of The Times’ leader writer on 6 February 2010 that the matter of parliamentary privilege would be ‘put before a jury’ were never fulfilled. 108 Where a trial of issue takes place on charges against a defendant who is unfit to plead, there are only three sentences available to the court if the case is found to be proved, namely a supervision order, a hospital order or an absolute discharge.

30 Liam Laurence Smyth On 8 February 2010, the Leader of the Opposition announced that, if elected, the Conservatives would legislate to implement the recommendations of the Nicholls Committee,109 in order to remove the ‘grey area’ of whether parliamentary privilege precluded criminal prosecution of Members accused of false accounting over parliamentary expenses.110 The Shadow Leader’s pledge was repeated in the Conservative Party manifesto for the 2010 general election: ‘we will introduce a Parliamentary Privilege Act to make clear that privilege cannot be abused by MPs to evade justice’.111 The Coalition Programme for Government of 20 May 2010 incorporated a similar commitment: ‘we will prevent the possible misuse of Parliamentary privilege by MPs accused of serious wrongdoing’.112 The Queen’s Speech of 25 May 2010 announced ‘a draft Bill will be published on reforming parliamentary privilege’. The Cabinet Office committed itself to ‘bring forward proposals for the reform of parliamentary privilege’.113 In its March 2011 report on the hacking of Members’ mobile phones, the Committee on Standards and Privileges noted with some understatement that ‘no-one can accuse successive Governments or Parliaments of rushing to implement the recommendations made by the Joint Committee in 1999’, but it went on to urge caution: Yet now is not the time to act in haste. We recommend that sufficient time be made available for full and careful scrutiny of the draft Privileges Bill, in order that the resultant Act may be as clear and robust as possible.114

D. The Green Paper on Parliamentary Privilege 2012 The Government published its Green Paper on Parliamentary Privilege on 26 April 2012, shortly before the exceptionally long 2010–12 Session came to an end. The Green Paper acknowledged that ‘parliamentary privilege is an essential part of our parliamentary democracy’ but recognised the concerns which had arisen following the Members’ expenses scandal that parliamentary privilege could be used by Members of Parliament to avoid prosecution for expenses fraud: While the courts concluded that Members expenses were not protected by privilege, the Government felt that in the light of the question the case raised the time was right for a comprehensive review of the privileges of Parliament.115

109 Lord Nicholls of Birkenhead, a Law Lord, chaired the Joint Committee on Parliamentary Privilege, which had reported in March 1999. 110 Speech by David Cameron, ‘Rebuilding Trust in Politics’ (8 February 2010); speech by Sir George Young to the Conservative spring Forum in Brighton, ‘New Politics’ (28 February 2010). 111 Conservative Party manifesto for the 2010 general election. 112 HM Government, The Coalition Agreement: Our Programme for Government (May 2010). 113 Cabinet Office, Business Plan for 2011–2015 (November 2010). 114 Committee on Standards and Privileges, Privilege: Hacking of Members’ Mobile Phones (Fourteenth Report) (HC 2010–12, 628) para 72. 115 Parliamentary Privilege (n 1) Executive Summary, para 1.

Privilege, Exclusive Cognisance and Law 31 The Government requested responses by the end of September 2012 to questions on a range of matters, including the draft clauses on some of the topics covered in the Green Paper. Selected questions from the Green Paper are set out in the text box below. Green Paper on Parliamentary Privilege Cm 8318, April 2012: Selected Questions Chapter 1—Overview and general approach Q1: Do you agree that the case has not been made for a comprehensive codification of parliamentary privilege?

Part One: Freedom of speech Chapter 2—Freedom of speech: General issues Q2: Do you think that “proceedings in Parliament” should be defined in legislation? Q3: Do you agree with the recommendation of the Joint Committee on Parliamentary Privilege that the current protection of qualified privilege for Members’ correspondence is sufficient? Chapter 3—Freedom of speech and criminality Q6: Do you believe that the protection of privilege should be disapplied in cases of alleged criminality, to enable the use of proceedings in Parliament as evidence?

Chapter 4—Freedom of speech and civil law Q16: The Government does not think that any legislative change to restrict freedom of speech in proceedings in Parliament in respect of court injunctions is desirable or necessary. Do you agree? Q17: Do you think that section 13 of the Defamation Act 1996 should be repealed?

Part Two: Exclusive Cognisance Chapter 5—Application of legislation to Parliament Q20: In light of the Chaytor judgment, do you believe there is a need for legislation to clarify the extent of Parliament’s privilege to organise its internal affairs? Chapter 6—Regulation of Members Q21: Would you support legislation that clarified that the privileged status of proceedings of the Committee on Standards in the House of Commons would not be affected by the granting of full voting rights to lay members?

32 Liam Laurence Smyth Q22: Do you agree that, other than for lay members of the Committee on Standards in the House of Commons, there is no reason to legislate in any legislation on privilege regarding the regulation of Members of either House?

Chapter 7—Select Committee powers Q23: Is there a need to address select committees’ power to summon witnesses, documents and records? Q25: Should a statutory definition of contempt of Parliament be introduced that would be enforceable by the courts? If so, should it be defined by reference to general principles or to specific acts?

E. A New Joint Committee on Parliamentary Privilege In the half-century since the House narrowly overturned the Committee of Privileges’ recommendation in the Strauss case, there has been an intermittent series of efforts to review and reform parliamentary privilege. The conclusions of the 1966–67 Select Committee were revisited by the Committee of Privileges in 1976–77. The Joint Committee on Parliamentary Privilege, having carried out its work from July 1997 to March 1999, remains influential as the source for many of the propositions advanced for consultation in the 2012 Green Paper. From time to time other select committees have called for reform, or at least resisted piecemeal erosion, of parliamentary privilege. The political and legal environment has altered very substantially over the past 50 years, with the rise of judicial review, and the fall in public esteem of parliamentarians. The decline in the public standing of Parliament in the wake of the expenses scandal is doubtless temporary and reversible. A proper appreciation of the role of parliamentary privilege, not to confer special status or immunity upon MPs, but rather to protect the vital engine of democracy, could contribute to restoring the reputation of the political process. The House of Lords agreed on 28 May 2012 to establish a Joint Committee on Parliamentary Privilege, to report by 31 January 2013, with the Commons not agreeing a parallel motion until 3 December 2012, with a revised ‘out date’ of 25 April 2013, later extended to 28 June 2013. The Lords and Commons nominated the members of the Joint Committee and it first met on 14 January 2013 and chose Lord Brabazon of Tara as its chair.

VI. POSTSCRIPT

The Joint Committee held several oral evidence hearings, with several witnesses appearing by video-link: the former Parliamentarian of the US House of Representatives Charles W Johnson III, the former Clerk of the of the House Sir Malcolm Jack, and the Clerks of the New Zealand House of Representatives, the

Privilege, Exclusive Cognisance and Law 33 Australian House of Representatives and the Australian Senate. Lord Judge, the Lord Chief Justice of England and Wales, and the current Clerks of both Houses were among the witnesses who appeared in person at Westminster. The Joint Committee’s Report was published on 3 July 2013, having been completed on 18 June, a little ahead of its final deadline of 28 June 2013.116 Among its wide-ranging conclusions and recommendations, the Joint Committee— —

—

—

—

— — — —

came to the view (by majority) that reliance by the courts upon Select Committee reports was not only constitutionally inappropriate, but risked having a chilling effect upon parliamentary debate; suggested that Parliament should be prepared to legislate if it became necessary to do so in order to protect freedom of speech in Parliament from judicial questioning; welcomed the clarification by the Lord Chief Justice as to the extent of the Pepper v Hart principle, namely, that those cases in which proceedings, including Committee reports, are questioned, were best ‘treated as ... mistakes’; opposed the Green Paper’s draft clauses dis-applying Article 9 in respect of criminal prosecutions as unnecessary and disproportionately damaging in their effect upon free speech in Parliament; rejected legislation on the position of the lay members of the House of Commons Committee on Standards; recommended the restoration of a right of excusal from jury service for Members of either House in England and Wales; recommended the repeal of section 13 of the Defamation Act 1996; endorsed the recommendation of the 1999 Joint Committee that the Parliamentary Papers Act 1840 should be replaced by modern statutory provisions.

The Joint Committee came down against comprehensive codification, concluding that legislation should only be used when absolutely necessary, to resolve uncertainty or in the unlikely event of Parliament’s exclusive cognisance being materially diminished by the courts. The Joint Committee considered that the disadvantages of legislating to confirm Parliament’s penal powers outweighed the advantages. Instead the Committee asserted the continuing existence of such powers and put forward proposals for new Resolutions and Standing Orders for the House of Commons to regulate the powers and responsibilities of its select committees, including procedural safeguards to ensure that witnesses were treated fairly.

116

Report from the Joint Committee on Parliamentary Privilege (2013–14, HL30, HC 100).

2 Privilege and Freedom of Speech OONAGH GAY* AND HUGH TOMLINSON QC**

I. THE ELEMENTS OF ARTICLE 9 OF THE BILL OF RIGHTS 1689 PROTECTION

P

ARLIAMENTARY PRIVILEGE HAS two components. The first is the exercise by Parliament of control over its own affairs, known technically as ‘exclusive cognisance’, which is discussed in chapter one. The second is freedom of speech guaranteed by Article 9 of the Bill of Rights 1689, which reasserted the law and custom of Parliament as a discrete part of the common law in this sphere as part of the Glorious Revolution.1 The second component is the subject of this chapter. Freedom of speech for Members in Parliament is a cornerstone of our uncodified constitution. It protects elected representatives from challenge in the courts for any comments that they make in the legislature. The right is rarely part of the common political discourse, but there are occasional moments when it becomes a flashpoint, particularly when MPs appear to abuse the right, by challenging court proceedings, or making unfounded accusations against non-Members. The question of statutory codification of privilege is also the subject of serious debate from time to time, often at these moments of crisis when the existing law and custom are not well understood; but without senior support within Parliament and real government interest few see much prospect or indeed much need for a modern statute. This chapter addresses a number of areas where pressure for change has become stronger in recent years. Other Commonwealth jurisdictions, notably Australia, have enacted legislation to clarify the powers and extent of * Oonagh Gay is Head of the Parliament and Constitution Centre in the House of Commons Library. ** Hugh Tomlinson is Queen’s Counsel at Matrix Chambers. 1 As the evidence from the Clerk of the House of Commons and the Clerk of Parliaments to the Joint Committee on Parliamentary Privilege noted in 1998 despite the antiquity of the Bill of Rights, it was only in the 20th century that Art 9 has been subjected to close judicial scrutiny. Previously, the Commons relied on a shared assumption of constitutional supremacy and an assertion of historic principles. Erskine May’s Parliamentary Practice, 24th edn (London, Butterworths, 2011) traces the development of free speech, noting the importance of R v Eliot, Holles and Valentine (1629) 3 State Tr 293–336, 206–09.

36 Oonagh Gay and Hugh Tomlinson QC parliamentary privilege, but in the UK the tradition of comity between the courts and Parliament has so far avoided statutory regulation. However, the willingness of successive governments to introduce legislation to amend the operation of privilege in response to specific events, such as the Commons expenses scandal, may require a more comprehensive response from Parliament in the future. The Joint Committee into Parliamentary Privilege2 recommended statutory codification of parliamentary privilege in 1999, but nothing resulted as the issue subsided into relative neglect, once accusations about misconduct of Members in the ‘cash for questions’ scandal had been dealt with by internal Commons machinery without need for legislative action (see chapter four). Further reform was not mooted until the Cabinet Office produced a Green Paper on parliamentary privilege in April 2012.3 It discussed a limited number of current issues in free speech, including the possible removal of the protection of Article 9 for evidence required in criminal proceedings, breaching super-injunctions in Parliament, qualified privilege for constituency correspondence and the reporting of parliamentary debate. These issues are discussed in this chapter. The Green Paper was prompted by a commitment in the Coalition Programme for Government to prevent the misuse of privileges by MPs accused of serious wrongdoing.4 But the decision in Chaytor5 discussed in chapter three appeared to calm fears about misuse and the Green Paper made no attempt to argue the case for comprehensive statute law on privilege. The 2011 edition of Erskine May, the authoritative guide to parliamentary procedure, noted recent recommendations from select committees for codification, discussed later in this chapter, under the heading ‘A new Privileges Act?’.6 However, the evidence of the current Clerk of the House, Sir Robert Rogers, to the Liaison Committee of the Commons (composed of chairs of select committees) in July 2012 warned of the danger that statutory codification might lead to the second-guessing of committee decisions by the courts.7 The Liaison Committee duly agreed and it did not recommend the statutory route in its report on the powers and effectiveness of select committees.8 However, the changing role of MPs, and the 24-hour news culture are sustaining pressures for codification, which means that questions about the privilege of freedom of speech will remain prominent in discussions of parliamentary privilege for some time to come. 2

Joint Committee on Parliamentary Privilege, First Report (1998–99, HL 43-I, HC 214-I). HM Government, Parliamentary Privilege (Green Paper, Cm 8318, 2012). 4 R v Chaytor and others [2010] UKSC 52. 5 The case of R v Chaytor and others (ibid) determined that an MP was not protected by privilege in relation to the criminal offence of dishonestly claiming expenses. 6 Erskine May (n 1) 303. See also M Jack, ‘Parliamentary Privilege: a Dignified or Efficient Part of the Constitution?’ (2012) The Table (Journal of the Society of Clerks at the Table). 7 R Rogers, ‘Powers of Select Committees’ paper by the Clerk of the House (July 2012), published in Commons Liaison Committee, Select Committee: Effectiveness, Resources and Powers (Second Report) (HC 697, 2012–13). 8 Commons Liaison Committee, Select Committee: Effectiveness, Resources and Powers (Second Report) (HC 697, 2012–13). 3

Privilege and Freedom of Speech 37 A. Freedom of Speech The privilege of freedom of speech protects what is said in debate in either House. Article 9 states: That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.

Article 9 reaffirms for members of each House the right to say what they will (freedom of speech) and discuss what they will (freedom of debate). The Bill was passed before the Act of Union with Scotland, and Scotland has its own corresponding legislation—the Claim of Right Act 1689.9 As regards Northern Ireland, there are doubts about whether, or to what extent, the Bill of Rights applies there. However, as Members of a UK Parliament, it would appear that NI MPs are offered the same protection as members from any other territory within the Union.10 Section 1 of the Parliamentary Privilege Act 1770 asserts that the legislation does not abridge or affect the ancient and essential privilege of freedom of speech in Parliament. The Act allowed MPs and peers to be sued. The Members of both Houses had long notoriously abused their privileges in respect of immunity from civil actions and arrest, which by ancient usage extended during the sitting of Parliament and for 40 days after every prorogation and 40 days before the next appointed meeting. In 1958 the Privy Council was asked to decide whether the issue of a writ against a member of the Commons in respect of a speech or proceeding in Parliament could be treated as a breach of privilege. The Privy Council concluded that the Commons could so treat it, but the writ could be served, since the Act did not abridge or affect the ancient and essential privilege of freedom of speech in Parliament. The Bill of Rights inhibited the impeachment or questioning or proceedings in a court of law.11 The circumstances under which the Bill of Rights was passed are very different from those which apply today. Article 9 was designed to protect Members from being brought before the courts by the Crown and accused and convicted of seditious libel. Its application has changed considerably in the context of modern parliamentary democracy. The principle of separation of powers and an

9 The Scotland Act 1998 did not confer on the Scottish Parliament any claim to parliamentary privilege, in contrast to the practice relating to dominion parliaments in Australia, Canada and South Africa. Instead freedom of speech is protected by the 1998 Act, and the Parliament is given statutory powers to control its own affairs. 10 G Lock, ‘The 1689 Bill of Rights’ [1989] Political Studies 541 submits that the application of the Bill of Rights in the territory of Northern Ireland has not been tested. 11 See Re Parliamentary Privilege Act 1770 [1958] AC 331 (PC)—the issue as to the effect of s 1 having been referred to the Judicial Committee of the Privy Council by the Committee of Privileges. Note, Lord Denning did not agree with the decision but did not dissent as this was not permitted at that time in the Privy Council, see Lord Denning, ‘Re Parliamentary Privilege Act 1770’ [1985] Public Law 80–92 and Erskine May (n 1) 212.

38 Oonagh Gay and Hugh Tomlinson QC independent judiciary is well understood, even if imperfectly rendered in the British Constitution. It nevertheless remains crucial to a parliamentary democracy that elected representatives can speak freely without fear of action in the courts or any place outside of Parliament. Defamation actions brought by those referred to in parliamentary debates or reports are the most common threat. The right of MPs to be unfettered by outside interests is upheld in the Commons by its resolutions, following recommendations from the various committees on privilege. One of the more famous cases was that of WJ Brown in 1947 who complained that the Civil Service Clerical Association, with whom he had a contractual arrangement, was pressurising him to act in a certain way in Parliament. The resulting resolution prohibited contractual agreements with outside bodies limiting the independence of Members.12 The issue of sponsorship of Members leads into questions of parliamentary ethics, considered further in chapter 4. The principle embodied in Article 9 has had a very substantial impact on the development of free speech protection. The principle crossed to the United States with the colonists and is found in the speech and debate clause in the US Constitution.13 It also found its way into the law of a number of Commonwealth states. As a result, developments abroad may have a direct bearing on the interpretation of Article 9. For example, Australian and New Zealand case law is cited in courts in England and Wales.14 The Australian Commonwealth Parliament legislated to codify its understanding of privilege in the Parliamentary Privileges Act 1987, following a court judgment described below. Article 9 protects Parliament and its members. But it is different in substance from the Napoleonic concept of immunity for parliamentarians, which has been adopted by continental legislatures. For example, the Commons cannot vote to remove the immunity of an individual MP, whereas such votes are permissible in France and other countries where the Napoleonic approach prevails. One anomaly should be noted. An individual Member can waive this protection in defamation proceedings. The Defamation Act 1996 allows an MP to waive Article 9 in an action for defamation when he wishes to rely on Commons proceedings as evidence. This legislation was enacted to assist the then MP Neil Hamilton in his defamation case against Mohammed Al Fayed and has not been used subsequently.15 The Joint Committee on Parliamentary Privilege recommended

12 House of Commons Privileges Committee Report on Actions by the Executive Committee of the Civil Service Clerical Association (HC 1947, 118). See O Gay and P Leopold (eds), Conduct Unbecoming: The Regulation of Parliamentary Behaviour (London, Study of Parliament Group/Politico’s Publishing, 2004) 93. 13 The Constitution of the United States of America, Art I, s 6, cl 1. 14 See, eg, R v Chaytor and others (n 4), which referred to the Supreme Court of Ontario in R v Bunting (1885) 7 OR 524, a case concerning attempted bribery of members of the Ontario legislature. 15 Mr Hamilton had been accused of tabling parliamentary questions for financial gain. For details see G Lock, ‘The Hamilton Affair’ in Gay and Leopold, Conduct Unbecoming (n 12).

Privilege and Freedom of Speech 39 its repeal in favour of a right of waiver held by both Houses16 but no action has been taken, despite the opportunity given by a Defamation Bill in the 2012–13 Session. Government interest is minimal in such an arcane area of the law which has not been much used in practice. Few Members take an interest in the development of parliamentary privilege and permanent staff of the House of Commons are required to be politically impartial. This tends to inhibit active lobbying for or against legislative change. In a crowded legislative programme, senior political support would be necessary (from the Leader of the House) for a Bill to be included and none has been forthcoming. The Defamation Act 1996 is illustrative of the argument made by Geoffrey Marshall that the relatively clear protective principle embodied in Article 9, protecting Members of Parliament against the risk of seditious libel or victimisation by the Crown, has over the years become conflated with various wider claims, made by the Commons and conceded by the courts, as to admissibility of evidence about proceedings in the House in actions of other kinds in which members or non-members may be involved.17

In the 2010 judgment, R v Chaytor,18 the President of the Supreme Court, Lord Phillips, said that: There are good reasons of policy for giving Article 9 a narrow ambit that restricts it to the important purpose for which it was enacted—freedom for Parliament to conduct its legislative and deliberative business without interference from the Crown or the Crown’s judges.19

This judgment may have an important impact on the current debate about the proper limits of Article 9 in terms of freedom of speech which is discussed below. Two aspects of Article 9 require clarification: the precise nature of ‘proceedings in Parliament’ and the types of activity that Article 9 prohibits.

B. What are ‘Proceedings in Parliament’? Article 9 clearly protects speeches made by Members of either House in the course of parliamentary proceedings. It protects, for example, speeches on the floor of either House or in committee and oral or written questions. Actions by an MP outside of formal parliamentary proceedings do not attract the protection of Article 9. The issue arose in the 1958 case concerning Mr George Strauss MP. He had written a letter to a minister criticising the 16 Ibid, paras 69, 72–74, 89. See also A Sharland and I Loveland, ‘The Defamation Act 1996 and Political Libels’ [1997] Public Law 113 for a critique of s 12 of the Defamation Act 1996. 17 G Marshall, ‘Impugning Parliamentary Impunity’ [1994] Public Law 509. 18 [2010] UKSC 52; see ch 4. 19 R v Chaytor and others (n 4) [61].

40 Oonagh Gay and Hugh Tomlinson QC purchasing policies of the London Electricity Board. The Board wrote to him threatening proceedings for libel and the matter was referred to the Committee of Privileges which took the view that the letters from the Board to the MPs were a breach of privilege and should be categorised as such. However, this recommendation was rejected by the House by a narrow majority which resolved that the letter was not a proceeding in Parliament as it did not relate to anything then before the House.20 The 1967 House of Commons Committee on Parliamentary Privilege and its 1977 Committee of Privileges, as well as the 1970 Joint Committee on Publication of Proceedings in Parliament, considered the House’s decision was right in law. The ways in which MPs deal with constituency correspondence, for instance by forwarding constituents’ complaints to the relevant government departments or other public body, attract only qualified privilege. Yet this work has become an integral part of the work of an MP. This point is often misunderstood by individual Members. It is also worth noting Buchanan v Jennings,21 which found that an MP may be found guilty of defamation if he reaffirms a statement made as part of parliamentary proceedings in a forum not protected by Article 9. The common law principle of qualified privilege in defamation offers protection on certain occasions to a person acting in good faith and without any improper motive who makes a statement about another person which is in fact untrue and defamatory. There is no such protection if there is malice on the part of a person who communicated the information. The Joint Committee on Parliamentary Privilege did not support the extension of parliamentary privilege to constituency work, considering that the current protection given by qualified privilege provided enough protection.22 Similarly constituents providing information to Members are not protected by parliamentary privilege. In fact, they may only enjoy qualified privilege when providing information to MPs for parliamentary proceedings. The Joint Committee recommended23 a statutory definition of ‘proceedings in Parliament’ which followed established practice: (1) For the purposes of article 9 of the Bill of Rights 1689 `proceedings in Parliament’ means all words spoken and acts done in the course of, or for the purposes of, or necessarily incidental to, transacting the business of either House of Parliament or of a committee.

20 Resolution of the House of Commons, 8 July 1958: ‘That this House does not consider that Mr. Strauss’s letter of the 8th day of February 1957 was a proceeding in Parliament and is of opinion therefore that the letters from the Chairman of the London Electricity Board and the Board’s Solicitors constituted no breach of Privilege’ CJ vol 213 (1957–58) 260; HC Deb 8 July 1958, cols 207–346. 21 [2005] 1 AC 115. 22 Joint Committee on Parliamentary Privilege, First Report (n 2). 23 Ibid, para 129.

Privilege and Freedom of Speech 41 (2) Without limiting (1), this includes: (a) the giving of evidence before a House or a committee or an officer appointed by a House to receive such evidence (b) the presentation or submission of a document to a House or a committee or an officer appointed by a House to receive it, once the document is accepted (c) the preparation of a document for the purposes of transacting the business of a House or a committee, provided any drafts, notes, advice or the like are not circulated more widely than is reasonable for the purposes of preparation (d) the formulation, making or publication of a document by a House or a committee (e) the maintenance of any register of the interests of the members of a House and any other register of interests prescribed by resolution of a House.

It is likely that any statutory codification of parliamentary privilege would follow the reasoning of the Joint Committee.

C. What Constitutes ‘Impeaching or Questioning’? Article 9 says that the freedom of speech and debates or proceedings in Parliament ought not to be ‘impeached or questioned’ in any court or place outside of Parliament. It is, however, not entirely clear what activity is prohibited. The Joint Committee on Parliamentary Privilege suggested that possible meanings include ‘hinder, challenge and censure’.24 It is, nevertheless, unclear how far the prohibition goes. The central protection of Article 9 is against criminal or civil action in respect of statements made in the course of parliamentary proceedings. An action for defamation is not maintainable in respect of any speech which is protected by Article 9. Thus in Dillon v Balfour25 an action against a minister in respect of statements made in course of speeches made in the House was struck out.26 Another aspect of the privilege is that no outside body can sanction a Member for what is said in Parliament. Any abuses must be dealt with by parliamentary self-regulation. Furthermore, by means of the sub judice rule Parliament seeks to ensure that current court proceedings are not prejudiced by discussion in Parliament. As Erskine May notes, subject to the discretion of the Chair and to the right of the House to legislate on any matter, or to discuss any matters of delegated legislation, matters awaiting the adjudication of a court of law should be not brought forward in debate.27

24

Joint Committee on Parliamentary Privilege, First Report (n 2) para 36. (1887) 20 LR Ir 600. 26 The precise basis of the judgment is not clear, see I Loveland, Constitutional Law, Administrative Law and Human Rights: a Critical Introduction (Oxford, Oxford University Press, 2012) 240. 27 Erskine May (n 1) 441. 25

42 Oonagh Gay and Hugh Tomlinson QC But ‘impeach’ does not just have negative connotations, it also applies when parliamentary proceedings are scrutinised in order to build evidence in the context of court proceedings. The leading modern case is Prebble v Television New Zealand in the Judicial Committee of the Privy Council.28 This took a broad view of the prohibition contained in Article 9. It held that there is no objection to the use of Hansard to prove what was done and said in Parliament as a matter of historical fact; what is not permissible is for the courts to rely on matters said and done in the House for the purpose of calling those matters into question. The Privy Council held that the court could not examine the truth or propriety of statements made in Parliament even where this would not expose the statement-maker to any criminal or civil penalty. It disapproved of the course taken in earlier Australian and New Zealand cases (see below). Lord Browne-Wilkinson held that section 16(3)29 of the Parliamentary Privileges Act 1987 (Australia) was a correct statement of the effect of Article 9. This had been enacted in response to case law in New South Wales in the 1980s in which the cross-examination of defendants in criminal cases on evidence they had given to Senate committees was permitted.30 In the New South Wales case of R v Murphy31 Hunt J had ruled, in advance of the trial, that witnesses could be cross-examined in relation to the evidence which they had given before a Senate select committee and that this evidence could be the subject of comment or used to draw inferences or conclusions. Hunt J held that the only protection given by Article 9 was to prevent court or similar proceedings having legal consequences against a Member of Parliament or a witness before a parliamentary committee where those legal consequences have the effect of preventing that Member (or committee witness) exercising his or her freedom of speech in Parliament (or before a committee) or of punishing him or her for having done so. This interpretation was overturned by the Australian Commonwealth Parliament which enacted section 16(3) of the Parliamentary Privileges Act 1987. This provides: In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of: (a) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament; (b) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or

28 Prebble v Television New Zealand [1995] 1 AC 321. For a critique of Prebble, see Loveland, ‘The Defamation Act 1996 and Political Libels’ (n 16). 29 See below. 30 R v Murphy, discussed below. See Loveland, Constitutional Law, Administrative Law and Human Rights: a Critical Introduction (n 26). 31 (1986) 5 NSWLR 18.

Privilege and Freedom of Speech 43 (c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of these proceedings in Parliament.

The Joint Committee in 1999 approved of the approach in Prebble and proposed similar legislation in the United Kingdom. Although the Clerk of the Commons and the Clerk of the Parliaments argued in favour of clarification of Article 9 in their evidence to the Joint Committee, the lack of political interest after 1999, combined with few signs of the Murphy interpretation gaining ground in this jurisdiction, appeared to inhibit any moves towards legislation. It was not until 2009 that the then Clerks of both Houses began to argue in favour of codification, in the face of proposals in the Parliamentary Standards Bill which appeared to threaten the principles of Article 9.32 In the event that Bill was modified without any need to encroach on parliamentary privilege. As Geoffrey Marshall noted in 1994, the plaintiffs in Church of Scientology of California v Johnson-Smith33 were refused leave to introduce evidence of statements made in Parliament, to back up their case of libel concerning words spoken in a television programme. In Rost v Edwards34 an MP wanted to establish the fact that he had not been appointed to a committee of the House as a result of a newspaper article. But he was not able to put forward evidence of the relevant decision of the Committee of Selection. Marshall preferred the Murphy interpretation of Article 9 as a more rational attitude to parliamentary privilege as well as to the interests of justice and free speech. He concluded: The freedom of debate is sufficiently protected if Members enjoy absolute privilege from criminal and civil actions directed at what they say in the course of debate or proceedings in the House.

D. What is a Place out of Parliament? The meaning of ‘place out of Parliament’ appears to be extremely general, encompassing, for example, media comment. However, Parliament long ago abandoned censuring the press—as being ‘out of Parliament’—for casting aspersions on its Members. Lord Browne-Wilkinson noted in Pepper v Hart that Article 9 could not have the effect of stifling the freedom of all to comment on what is said in Parliament, ‘even though such comments may influence Members in what they say’.35 But should judicial inquiries be caught by Article 9? They do have some of the attributes of a court. This issue arose with the Scott Inquiry into Arms for Iraq in the 1990s which referred to parliamentary proceedings extensively but

32 33 34 35

See Erskine May (n 1) 304 for details. [1972] 1 QB 522. See also Marshall, ‘Impugning Parliamentary Immunity’ (n 17). [1990] QB 460. [1991] AC 593, 638.

44 Oonagh Gay and Hugh Tomlinson QC was not challenged by Parliament. Sir Richard Scott severely criticised various aspects of parliamentary proceedings, including the veracity of answers to parliamentary questions, and evidence given to a select committee by a minister and a civil servant. As he was holding a judicial inquiry rather than sitting as a judge, this was apparently regarded as permissible. There appears to have been a tacit understanding that a non-statutory inquiry would not be defined as a place out of Parliament. The Scott Report was issued as a return to the House, attracting parliamentary privilege and so inhibiting any legal action on its conclusions as a result.36 One response, adopted in the Australian legislation, is to say that inquiries where evidence is taken on oath by tribunals should be considered as being within the scope of the protection afforded by Article 9. This met with the approval of the Joint Committee on Parliamentary Privilege in 1999, which also recommended a formal waiver by Parliament to allow reference to and reliance on proceedings by specific named inquiries. No action has been taken to implement this recommendation and the Green Paper of April 2012 did not support a waiver system, again citing the chilling effect that would be created if Members could not be assured that they could not face prosecution.

E. What Does Article 9 Protect? In addition to Members, Article 9 applies to officers of Parliament and nonmembers who participate in proceedings in Parliament, such as witnesses giving evidence to a committee of one of the Houses. The justification for this extension is the protection of testimony to committees. One recent example was the CAFCASS case.37 A member of the CAFCASS board, Judy Weleminsky, had criticised the organisation in evidence to the Constitutional Affairs Committee. She was reprimanded by the Lord Chancellor for failure to behave in a corporate manner. The organisation suffered the embarrassment of criticism by the Constitutional Affairs Select Committee and a referral to the Select Committee on Standards and Privileges in 2004.38 The Standards and Privileges Committee found that the officials who had investigated Ms Weleminsky’s conduct in the evidence she gave to the Constitutional Affairs Committee had committed a contempt of Parliament, as had the Lord Chancellor, who then apologised to Parliament. The case indicated widespread ignorance of the principles of Article 9 (even on the part of the legally qualified

36 Report into the Inquiry into the Export of Defence Equipment and Dual-use Goods to Iraq and related Prosecutions (HC 1995–96, 115). See the Joint Committee on Parliamentary Privilege, First Report (n 2) para 93. 37 Children and Family Courts Advisory and Support Service, a non-departmental public body established under the Criminal Justice and Court Services Act 2000. 38 Standards and Privileges Select Committee, Fifth Report (HC 2003–04, 447).

Privilege and Freedom of Speech 45 Lord Chancellor) and its implications for witnesses across the public sector. The Commons subsequently issued guidance for witnesses to select committees.39

F. Article 9 and the European Convention on Human Rights The Lords and Commons are not counted as a public body for the purposes of the Human Rights Act 1998.40 But, the Joint Committee on Parliamentary Privilege acknowledged that it was subject to the European Convention on Human Rights (ECHR).41 The point was tested in the European Court of Human Rights in the case of A v United Kingdom.42 The background to the case was that A’s Member of Parliament named her, gave her precise address and made derogatory remarks about the behaviour of both her and her children. He called the family the ‘neighbours from hell’, a phrase which was subsequently quoted in local and national newspapers. There was no independent evidence to back up his remarks which had been made in the chamber. The human rights pressure group Liberty took up the case. The European Court of Human Rights found by a majority of 6 to 1 that the inability of a member of the public to sue a Member for defamatory words spoken in Parliament was justified as a proportionate way of promoting the legitimate aim of protecting free debate in Parliament in the public interest and regulating the relationship between the legislature and the judiciary.43 The majority judgment referred to the control over debates exercised by the Speaker and to the disciplinary powers of the House, and quoted the view of the Select Committee on Procedure (in its report in 1988–89) that: there already exists a wide range of remedies which can be pursued by an aggrieved person who wishes to correct or rebut remarks made about him in the House.

The French judge, Jean Paul Costa, while agreeing with the overall decision, but not the reasoning, argued that the concern of parliaments should now be to affirm the complete freedom of their members ‘but also, perhaps, to reconcile that freedom with other rights and freedoms that are worthy of respect’. In his view, despite the very serious allegations made against the constituent and her children, the evidence presented in relation to the treatment of the case in Parliament did not indicate that efforts were being made to bring about such a reconciliation.

39 House of Commons, Guidance to Giving Oral or Written Evidence to a House of Commons Select Committee, updated June 2011 www.parliament.uk/documents/commons-committees/ witnessguide.pdf. 40 Section 6(3). 41 Joint Committee on Parliamentary Privilege, First Report (n 2) para 29 (relying on Demicoli v Malta (1992) 14 EHRR 47). 42 A v United Kingdom (2003) 36 EHRR 51. 43 Ibid.

46 Oonagh Gay and Hugh Tomlinson QC In a dissenting judgment the Cypriot judge, Judge Loucaides, commented that the absolute privilege of parliamentarians had been established at a time ‘when the legal protection of the personality of the individual was in its infancy and therefore extremely limited’. The process of balancing the conflicting interests involved required that neither of the two interests should be allowed to prevail absolutely over the other. This is a harbinger of future concerns about balancing the rights of the individual against the institution.44 It is possible that in a future, more serious case, the ‘absolute’ immunity in Article 9 will be found to be disproportionate and in violation of the Convention. Although the Speaker may reprimand an offending Member for comments in the chamber, this does not assist those who consider themselves defamed.45 We return below to the question as to whether a ‘right of reply’ would mitigate the position.

G. Limitations on Article 9 In spite of the examples listed above, Article 9 protection is not absolute. Some aspects have been eroded by modern judicial practice. From 1818 to 1981, it was the practice for the Commons to grant leave for the reference to proceedings in judicial decisions. Applications for this leave were invariably granted and, as a result, in 1981 the requirement to apply for leave was discontinued by the Commons.46 The case of Pepper v Hart47 established the principle that clear statements made in Parliament concerning the purpose of legislation in course of enactment may be referred to in court as an aid to the construction of legislation which is ambiguous or obscure or the literal meaning of which leads to an absurdity. It was held that this did not amount to the ‘questioning’ of proceedings. The scope of Pepper v Hart was restated by the House of Lords in Wilson v Secretary of State for Trade and Industry (Appellant).48 This has helped clarify the distinction between the treatment of ministerial statements in Hansard and other parliamentary debates. In this case the House of Lords held that reliance on ministerial or other statements in Hansard was legitimate on two grounds, first that it created a kind of quasi-estoppel preventing the executive from subsequently placing on words a meaning different from that used by ministers in Parliament and, secondly, where policy background on legislation was sought to establish compatibility with the ECHR under the Human Rights Act 1988. It was otherwise when

44 See written evidence by Professor Bradley to Joint Committee on Privacy and Injunctions, First Report (2010–12, HL 273, HC 1443) para 12. 45 On 23 May 2011, the Speaker reprimanded John Hemming for naming Ryan Giggs despite an injunction then in force prohibiting the revealing of his identity. HC Deb 23 May 2011, col 638. 46 Joint Committee on Parliamentary Privilege, First Report (n 2) para 42. 47 Pepper (Inspector of Taxes) v Hart [1993] AC 593. 48 [2003] UKHL 40.

Privilege and Freedom of Speech 47 the purpose was to control the meaning of the Act or to ascribe to Parliament as a whole views expressed by ministers.49 A more substantial inroad into Article 9 has been the reference to Hansard in judicial review proceedings relating to a ministerial decision announced, or subsequently explained, in the House. The claimant typically quotes an extract from the official report and then sets out his grounds for challenging the lawfulness of the decision in the light of the reasons given by the minister.50 The Joint Committee on Privilege supported this development, noting that challenges to the legality of executive decisions could be hampered by ring-fencing what ministers said in Parliament and excluding such statements from the purview of the courts.51

Since the committee reported in 1999, the practice of reference to Hansard for such purposes has become commonplace in the courts, and not opposed by Parliament. The Joint Committee argued for an extension of the principle, stating that the judicial review proceedings exception from the scope of Article 9 should also apply to other proceedings in which a government decision is material. It gave the example of employment cases where a civil servant might wish to use a ministerial statement in the Commons in proceedings before an industrial tribunal.52 This remains a live consideration. There was controversy over comments in Parliament in November 2011 by the Home Secretary, Theresa May, on the conduct of Brodie Clark, a senior official in the UK Borders Agency. Mrs May asserted that the decision to relax certain border controls had been made by Mr Clark without reference to ministers. Mr Clark denied this in his oral evidence to the Home Affairs Select Committee.53 Mr Clark reached an out of court settlement with the Home Office over his suspension from the Border Agency so there was no need to scrutinise Mrs May’s statement or Mr Clark’s evidence in a tribunal. The issue was considered in the recent New Zealand case of Leigh v Gow.54 The defendant, Mr Gow, was a civil servant who had drafted an oral answer for a minister in parliament criticising the actions of the claimant, Ms Leigh. Ms Leigh sued for libel and the defendant contended that his communications with the minister, with a view to answering a parliamentary question, were ‘proceedings in parliament’ and so protected by absolute privilege. This argument was rejected by the Court of Appeal and the Supreme Court who held that the communications were

49

[2003] UKHL 40. See Erskine May (n 1) 232 for further commentary. See R v Home Secretary, ex p Brind [1991] 1 AC 696 where a ministerial statement in Parliament was used as evidence that the minister had exercised his powers properly in respect of broadcasting restrictions on terrorists. 51 Joint Committee on Parliamentary Privilege, First Report (n 2) para 51. 52 Joint Committee on Parliamentary Privilege, First Report (n 2). 53 HC Deb 7 November 2011, col 46; Evidence from Brodie Clark to the Home Affairs Select Committee, UK Border Checks During Summer (HC 2010–12, 1647). 54 [2011] NZSC 106. 50

48 Oonagh Gay and Hugh Tomlinson QC protected only by qualified privilege and not by parliamentary privilege. The test was one of necessity and it was not necessary to afford communications between civil servants and ministers the protection of absolute privilege.

H. Enforcement of Article 9 The Attorney-General is the traditional protector of the rights of the Commons and will intervene in cases when advised by the Commons authorities. This may involve the office in a conflict of interest between the demands of the Commons and of the government. In Pepper v Hart, for instance, the Attorney-General argued against allowing reference to Hansard in elucidating the meaning of tax law. Allowing access to Hansard would, however, assist the Inland Revenue and therefore result in clearer tax liability. Since 1999, a new Legal Services Office has been established in the House, and these officials may also intervene.55 There is little transparency as to decisions about intervening in forthcoming cases where what parliamentarians said on the floor of the House or in select committee may be at issue.56 A more substantial issue in this area is the inability of Parliament to punish offenders against Article 9, given that the courts cannot refer to parliamentary proceedings to establish any wrongdoing. The House can declare that a contempt has been committed. It is important to be clear about the meaning of the term ‘contempt’ in this context. A contempt of parliament will be committed by an act or omission which obstructs or impedes (or tends to obstruct or impede) the business of the House or any of its Members in carrying out their parliamentary functions. The House can declare that there has been a contempt but the limits of its power to enforce this judgment against anyone other than a Member have been apparent since the nineteenth century.57 The House has not levied a fine since 1666, or imprisoned anyone since 1880.58 These issues were brought into sharp focus by the phone hacking allegations against News International which were the subject of criminal prosecutions in 2006 and resurfaced in 2010 and 2011. Among the victims of phone hacking were MPs, and the issue arose as to whether hacking was an obstruction of the business of the House, for the purposes of Article 9. The Standards and Privileges 55

See ch 5. The number of cases where there is intervention is not currently available; see ch 5. 57 See The Sheriff of Middlesex ((1840) 11 Ad & El 273), which found that the Commons could not imprison court officials seeking to enforce an order of the courts. This was a sequel to the case of Stockdale v Hansard ((1839) 9 Ad & El 1) in which the court held that the House of Commons by its own resolution could not authorise material to be published that at common law was defamatory. Erskine May (n 1) 225 provides commentary. 58 For a discussion of the issues see Sir Robert Rogers, Clerk of the House, Evidence to Liaison Committee, Powers of Select Committees in Liaison Committee, Select Committees: Effectiveness, Resources and Powers (Second Report) (HC 2012–13, 697). See also R Gordon and A Street, Select Committees and Coercive Powers: Clarity or Confusion? (London, The Constitution Society, 2012). 56

Privilege and Freedom of Speech 49 Committee of the Commons conducted a general inquiry in 2010, concluding that a specific act of hacking could potentially be a contempt if it can be shown to have interfered with the work of the House or to have impeded or obstructed an MP from taking part in such work. A series of acts of hacking could potentially be a contempt if it can be shown that the hacking interfered with the work of the House by creating a climate of insecurity for one or more MPs.59 Lord Pannick argued that if the effect of hacking was to make it more difficult for a Member to perform parliamentary duties, it was immaterial whether the message hacked into related directly to a proceeding in Parliament; however, a number of other witnesses doubted that hacking related to constituency work of Members would constitute a contempt.60 The Standards and Privileges Committee proposed that any Members who had been hacked should pursue remedies in the courts in civil proceedings, rather than take action through parliamentary means to establish that a contempt had been committed. Criminal prosecutions could also be brought. It concluded that it would be possible for the House to find a perpetrator guilty of contempt following a criminal conviction, but accepted warnings by witnesses that exercising powers to ‘try’ people who had been found not guilty by the courts would be treading on very dangerous grounds in terms of the European Convention on Human Rights and was best avoided. The Committee’s report was unanimous, a tribute to careful drafting, and an appreciation by Members of the realities of the limited powers of the Commons. The Committee appeared to reaffirm its position when asked by the House to consider the findings of the Culture, Media and Sport Committee that News International employees had misled that committee when giving evidence about phone hacking.61 Its formal minutes of 3 July 2012 stated that should any allegations be proved in respect of obstruction of Members, the punishment would be admonishment and not imprisonment.62 The limits on Parliament’s punitive powers are not generally appreciated.63 As noted above, the House of Commons has not used powers to fine or imprison for some considerable time. It has, therefore, been suggested that it is no longer clear whether the House retains the power to do either.64 In 1999, the Joint Committee 59

Standards and Privileges Committee, Fourteenth Report (HC 2010–12, 628). Written evidence submitted by Lord Pannick of Radlett QC, 8 November 2010 to Standards and Privileges Select Committee Privilege: Hacking of Members’ Mobile Phones (Fourteenth Report) (HC 2010–12, 628). See also evidence published from Lord Nicholls of Birkenhead who argued that hacking of members’ mobile phones was capable of comprising contempt, but much would depend on the individual circumstances of each case. Lord Lester of Herne Hill argued in his evidence that parliamentary privilege should be confined to the core activities of Parliament and that the criminal law provided sufficient protection for Members, who should not be afforded special treatment before the law. 61 Culture, Media and Sport Committee, News International and Phone-hacking (Eleventh Report) (HC 2010–12, 903). 62 Standards and Privileges Select Committee, Extract from Formal Minutes, 3 July 2012. 63 See ch 7 of this volume. 64 Rogers, Evidence to Liaison Committee (n 58); Gordon and Street, ‘Select Committees and Coercive Powers; Clarity or Confusion?’ (n 58). 60

50 Oonagh Gay and Hugh Tomlinson QC on Privilege recommended a statutory power to fine non-Members, transferred to the High Court.65 Without fines or committal to custody, Parliament’s only weapon when a person is found in contempt is public and political opprobrium. A related problem is securing attendance of witnesses at select committee hearings. The Green Paper of April 2012 took a cautious approach, claiming that there had not been any recent case of failure to comply with a summons to give evidence. It also warned that any attempt to enforce a penalty would first need a referral to the Committee of Standards and Privileges, which would have to meet the standards of natural justice. This formalisation might require legislation.66 Likewise, the Green Paper was unenthusiastic about either resorting to the courts to enforce Parliament’s privileges, or creating a new criminal offence of contempt of Parliament. Both options would involve the courts in defining a contempt, and were likely to involve a trespass into areas protected by Article 9. The former Clerk of the House, Sir Malcolm Jack, expressed a contrary view earlier in 2012, arguing that it was time that the House had some statutory weapons to use, citing the new criminal offence of wilful obstruction of business in devolved parliaments and assemblies, which had been set out in the devolution legislation.67 The Green Paper acknowledged that the Australian Parliamentary Privileges Act 1987 had created a threshold style definition of contempt, and that the Joint Committee on Privilege had recommended such legislation in 1999, together with a non-exhaustive list of possible contempts.68 But the tone of the Green Paper was distinctly conservative. There was no appetite in government or among the senior clerks for offering the Commons a power to sanction. The paper by the Clerk of the House, Robert Rogers, to the Liaison Committee in July 2012 set out options for chairs of select committees while making clear the difficulties in establishing more certain powers for select committees.69

II. THE SUB JUDICE CONVENTION, INJUNCTIONS AND CONTEMPT OF COURT

The ‘sub-judice’ convention, often referred to as a ‘rule’ though it is not strictly enforceable on Members, has been a feature of both the Commons and the Lords for many decades. It was confirmed by two resolutions of the House of Commons, of 23 July 1963 and 28 June 1972.70 The 1963 resolution stated that matters awaiting adjudication in a court of law should not be brought forward in motions, debates, questions or supplementary questions. There were two important qualifications. One was that the rule was subject to the discretion of the chair 65 66 67 68 69 70

Joint Committee on Parliamentary Privilege, First Report (n 2) paras 309 and 324. HM Government, Parliamentary Privilege (n 3) paras 260–62. Jack, ‘Parliamentary Privilege’ (n 6). See Joint Committee on Parliamentary Privilege, First Report (n 2) para 315. Rogers, Evidence to Liaison Committee (n 58). See ch 7 of this volume. HC Deb 23 July 1963, col 1417 and 28 June 1972, col 1589.

Privilege and Freedom of Speech 51 (the Speaker in the Commons, the Lord Speaker in the House in the Lords). The other was that it was subject to the right of the House to legislate on any matter. The 1972 resolution was a relaxation of the original resolution. It allowed that in civil proceedings and subject to the discretion of the chair, reference might be made to matters relating to ministerial decisions ‘which cannot be challenged in court except on grounds of misdirection or bad faith’. Its current formulation dates mainly from 2001 following recommendations from the Joint Committee on Parliamentary Privilege in 1999. The Joint Committee recommended that the two Houses should have an identical sub judice rule, which clearly applied to committees and that the new formulation should make clear that the rule did not apply where there was an application for judicial review against a ministerial decision. For criminal proceedings the rule applies when a charge has been made or a summons to appear has been issued, and lasts until the sentence has been passed. This differs from the Contempt of Court Act 1981 where criminal proceedings are ‘active’ from the time a person is arrested. For civil cases, the rule becomes operative when arrangements for the hearing have been made, until the proceedings are ended by judgment or discontinuance. The rule may also be relaxed where, in the opinion of the chair, a case concerns issues of national importance, such as the economy, public order or the essential services. Here references to the issues or the case may be made in motions, debates or questions.71 The application of the rule is subject to the discretion of the Speaker or the chair of the relevant committee and does not apply when legislation is being debated even as cases are before the courts. Changes recommended by the Procedure Committee in 2005 and 2006 now give the Speaker explicit power to ask a Member to resume their seat on the grounds of a breach of sub judice.72 Following some concern that the operation of the rule was not always clear, guidance is now given to Members by the Table Office of the House of Commons, which advises Members on the tabling of questions and early day motions. Two select committee have considered individual court cases—the Committee of Privileges in 1978 (the Colonel B case) and the Select Committee on Procedure in 1996 (Child Z). In the first case, there were committal proceedings for an Official Secrets Act offence. A witness in the proceedings was allowed to be referred to in court as ‘Colonel B’. As a result of evidence given in the proceedings his identity was established and was published in the Leveller Magazine and others. Contempt of Court proceedings were brought against the Leveller Magazine. During the currency of the contempt proceedings ‘Colonel B’ was named by Members of Parliament in Parliamentary Question Time. The Divisional Court found the magazine guilty of contempt.73 However, the Appellate Committee of 71 Ibid, para 201; see Commons Library Standard Note 1141, The Sub Judice Rule, 31 July 2007. Erskine May (n 1) 441–42 provides commentary. 72 HC Deb 1 November 2006, col 343. 73 Attorney General v Leveller Magazine Ltd [1978] 3 All ER 731; [1979] AC 440; [1979] 2 WLR 247.

52 Oonagh Gay and Hugh Tomlinson QC the House of Lords overturned this finding. The Members’ actions were referred to the Select Committee on Privileges on a government motion. The Committee ruled that in naming ‘Colonel B’ they had breached the sub judice convention. The Committee stated that members of the House should exercise self-discipline and the House must, if necessary, exercise discipline over its Members.74

A. Injunctions and Super-injunctions In the Child Z case of 1996, a Member breached an anonymity order that had been granted by a court in favour of a child (known publicly as ‘Child Z’). The 1996 Commons Procedure Committee report into the ‘Child Z’ incident concluded: the fundamental problem is that Parliament—or more accurately a single member of Parliament—without requiring any debate or decision in the House can set at naught the judgment of the court, arrived at with great care, and thereby render ineffective the remedy afforded. If there were strong evidence to suggest that breaches of court orders as a result of proceedings of the House represented a serious challenge to the due process of law, we would not hesitate to recommend a further limitation on the rights of free speech enjoyed by members, whatever the practical difficulties. We consider there is much judicial weight behind the suggestion of the Master of the Rolls that, where an order has been made restraining publication of a name or other information, Parliament would want to support the High Court.

However, the House was reluctant to take action for what seemed to be a very rare breach: We do not, however, consider it necessary to take action as a result of one specific case, given the importance the House rightly attaches to protecting the right of Parliament to freedom of speech. We urge members to exercise the greatest care in avoiding breaches of court orders.

The Committee accepted the dangers of breaching of injunctions as a threat to the rule of law, but concluded that this had been an isolated case and took no action against the Member.75 The problem had been identified, but the solutions were unpalatable. In the Zircon case in 1986, the Government successfully obtained an injunction preventing the disclosure of any information about this defence project.76 This caused uproar in the House at the apparent attempt by the executive to decide

74

Committee of Privileges, Second Report (HC 1977–78, 667). Procedure Committee Reference to Matters Subject to Injunction (HC 1995–96, 252). 76 The terms of the interim injunction were published in the Committee of Privileges’ report in para 3 of p 1 of the evidence: Committee of Privileges Speaker’s Order of 22 January 1987 on a Matter of National Security (First Report) (HC 1986–87, 365). 75

Privilege and Freedom of Speech 53 what went on within the parameters of Parliament. An MP then decided to show a film about the project in a room within the precincts of the House. The power to show the film and the granting of the injunction was referred by the Commons to the Committee on Privileges, which was persuaded that private arrangements by an MP to show a film about the project in a room within the precincts of the House did not fall within the definition of proceedings in Parliament.77 The injunction had been lifted shortly after the attempted showing of the film, so the MP did not face contempt of court proceedings. Professor Bradley noted, in his evidence to the Joint Committee on Privacy and Injunctions, an unusual instance of prejudice to the criminal justice system occurring outside the sub judice rule. This took place in 1990 towards the end of the trial of three Irishmen suspected of conspiring to murder the Secretary of State for Northern Ireland (Tom King MP), at which the accused had all remained silent. The Home Secretary announced in the House that the Government intended to change the law on the right to silence. This was followed at once by prominent statements in the media from the Northern Ireland Secretary and (in his retirement) Lord Denning, declaring that far too many guilty men were acquitted because of the right to silence. The jury convicted the three accused, but these convictions were later set aside because of the comments on the proposed change in the law.78 There have been a number of controversies in recent years concerning the impact of injunctions on Parliament. In particular, issues have arisen over the use of so-called ‘super-injunctions’. A super-injunction is a court order which requires that, when an injunction is in place, its very existence may not be disclosed or published. Super-injunctions began to attract concern in the Commons from 2009. An additional factor is the rapid growth in social media in the last few years, which means that news stories grow much more quickly and become available in different formats, uncontrolled by traditional regulators. On 12 October 2009, Paul Farrelly MP tabled a number of parliamentary questions, one of which concerned an injunction obtained by Trafigura, a company trading in oil, base metals and other items, preventing the publication of a report on the alleged dumping of toxic waste in the Ivory Coast. The Guardian promptly published, initially online and then on the front page of its 13 October 2009 issue, that it was unable to report a tabled parliamentary question. The internal report which Trafigura wanted to suppress was already widely available on the internet. Following the publicity, the injunction was withdrawn. In a letter to the Speaker on 14 October 2009, Carter-Ruck, the solicitors in the case, stated that there had never been any question of Trafigura applying for an injunction that had as its

77 Committee of Privileges, Speaker’s Order of 22 January 1987 on a Matter of National Security (First Report) (n 76). 78 Written evidence from Professor Anthony Bradley to Joint Committee on Privacy and Injunctions, para 3 printed in Joint Committee First Report (n 44); R v McCann (1990) 92 Cr App Rep 239.

54 Oonagh Gay and Hugh Tomlinson QC purpose the prevention of publication of any matter arising in Parliament. The letter went on: Nevertheless, as formulated (and as The Guardian apparently accepts) the Order would indeed have prevented The Guardian from reporting on the Parliamentary Question which had been tabled for later this week.79

MPs were alarmed that the principles of free speech were under attack from super-injunctions in such cases. However, the position as to the publication of statements in Parliament made in breach of injunctions is not straightforward. The publication of fair extracts of reports of proceedings in Parliament made without malice is protected by the Parliamentary Papers Act 1840. This Act was introduced as a result of the case of Stockdale v Hansard, which had decided that papers published under the authority of the House were not privileged. The effect of the Act was, if the Speaker duly issues a certificate, to accord absolute privilege to the publication of any such report, paper, votes, or proceedings by or under the authority of either House of Parliament.80 The making of extracts or abstracts is also covered if the extract or abstract was published bona fide and without malice. It is worth noting that several resolutions have been passed by the House since 1762 to prohibit publication of debates and proceedings, particularly when considered false or misleading. On 16 July 1971, the Commons resolved not to treat any such publication as a contempt, bringing its procedures into line with long-standing practice on publication.81 However, where media reporting of parliamentary proceedings does not simply reprint copies of Hansard or amount to summaries of Hansard or parliamentary proceedings it may well not attract qualified privilege. It is unclear whether it would be protected at common law from contempt proceedings if it breached a court order.82 Following concerns over the use of super-injunctions, notably in privacy cases, the Master of the Rolls (Lord Neuberger) set up a committee which reported on 20 May 2011. Three days later, the Attorney-General (Dominic Grieve) announced that a joint committee of both Houses would be established to investigate further. The Committee reported in March 2012 and its conclusions are examined below.

B. The Neuberger Report The 2011 Neuberger Report83 found that super-injunctions were only being granted for very short periods, and only where this level of secrecy was necessary 79 Letter from Carter-Ruck to the Speaker (14 October 2009), House of Commons Library Deposited Paper 2009/2523. 80 Parliamentary Papers Act 1840, s 1. 81 See Joint Committee on Parliamentary Privilege, First Report (n 2) para 355. 82 See Joint Committee on Parliamentary Privilege, First Report (n 2) 342 and Parliamentary Privilege (n 3) s 8. 83 Master of the Rolls, Report of the Committee on Super-Injunctions: Super-Injunctions, Anonymised Injunctions and Open Justice (20 May 2011) www.judiciary.gov.uk/Resources/JCO/Documents/ Reports/super-injunction-report-20052011.pdf.

Privilege and Freedom of Speech 55 to ensure that the whole point of the order is not destroyed. But there had been an increase in the number of anonymised injunctions. Lord Neuberger upheld the constitutional importance of Article 9: No super-injunction, or any other court order, could conceivably restrict or prohibit Parliamentary debate or proceedings.84

He found no evidence that any order had purported to oust parliamentary privilege, or that any injunction had been granted or sought with the intention of preventing press reporting of parliamentary proceedings. However, the report found, court orders could legitimately be used against MPs undertaking their constituency roles. There was a role for injunctions preventing reporting of family court decisions, for example. The report has not led to the ending of difficulties over injunctions. In another case, emails from Withers LLP to John Hemming asking him not to repeat in the House allegations about one of their clients were referred to the Commons Standards and Privileges Committee in 2009. Withers had noted that if no undertaking was forthcoming from Hemming, no alternative but to issue proceedings was open to them. After considerable pressure from House authorities, Withers subsequently offered an unreserved apology, having taken advice from counsel. The Committee found that a contempt had been committed, but recommended no action, given the apology from Withers.85 If Withers had not backed down, it was not clear what the immediate sanctions could be. Again, in early 2012, The Daily Telegraph reported that the solicitors, Archerfield Partners, had written to the members of the Joint Committee on Privacy and Injunctions, requiring the removal from the parliamentary website of evidence from a Mr Mark Burby relating to allegations on the conduct of an Asian head of state which appeared to breach a long-standing super-injunction from 2009. The Committee refused to comply and the evidence from Mark Burby appeared in its final report.86

C. ‘Active Proceedings’ The Trafigura case demonstrated that where a super-injunction or an anonymised injunction exists, there was no adequate mechanism to enable the relevant House authorities to ascertain whether there are active proceedings in place. When Paul Farrelly’s parliamentary question was tabled, the Commons authorities had not been able to ascertain whether a super-injunction was in place, even after checking with the Courts Service. The Speaker responded to a point of order on 13 October

84

Ibid vii. House of Commons Standards and Privileges Select Committee, Ninth Report (HC 2009–10, 373). 86 Daily Telegraph, ‘Exclusive: Lawyers Order Parliament to Stop Publishing Super-injunctions’ (London, 28 February 2012); Joint Committee on Privacy and Injunctions, Mark Burby Supplementary written evidence published in Joint Committee, First Report (n 44). 85

56 Oonagh Gay and Hugh Tomlinson QC 2009 by stating that the sub judice rule was not in play.87 This was on the basis that by then the injunction had been withdrawn. Thus, under the Commons resolution, if the matter is over, the sub judice rule does not apply.88 Lord Neuberger recommended consideration of establishing a secure database to enhance sharing of information between the Courts Service, the Ministry of Justice and the House of Commons Table Office.89 This has not yet been developed, as the political pressure for an interchange of information has waned in the face of a number of practical difficulties about sharing information subject to a court order banning disclosure.

D. The Joint Committee Report on Privacy and Injunctions and the Green Paper The Joint Committee report of March 2012 on privacy and injunctions took a cautious line.90 It noted how John Hemming MP had revealed information about the footballer Ryan Giggs, which had been protected by anonymised injunctions, during parliamentary proceedings. The MP was not subject to any formal punishment by the Commons, or by the courts since contempt of court cannot apply in the context of parliamentary proceedings. As things stand, it is a matter for each parliamentarian to decide, if they come across information that is subject to an injunction, whether to reveal that information in parliamentary proceedings. (Mr Hemming MP also disclosed information concerning family proceedings which had been protected by injunctions.) The Joint Committee was concerned about the impact on Parliament and the principle of comity with the courts, should this free speech privilege be abused. It reassured itself that instances of its irresponsible use were rare and that no special procedures were yet necessary. In so doing, it did not accept the recommendation of the former Clerk of the House, Sir William McKay, that a new resolution should be adopted to give the Speaker power to impose suspension on a Member who was considered to have acted irresponsibly. The Green Paper that followed from the Cabinet Office confirmed that the Government had no plans to promote legislation in this difficult area, citing the statement made by the Deputy Leader of the House on 19 December 2011.91 This noted that Government would not be proposing to constrain by legislation the ability of Members to name in proceedings in Parliament individuals who were the subject of anonymity injunctions made by the courts.92

87 88 89 90 91 92

HC Deb 13 October 2009, col 163. Sub judice resolution 15 November 2001. See Erskine May (n 1) 441. Ibid, para 5.15. Joint Committee on Privacy and Injunctions, First Report (n 44). Parliamentary Privilege (n 3). HC Deb 19 December 2011, col 145WS.

Privilege and Freedom of Speech 57 The Joint Committee’s main concern about the implications of super- and anonymised injunctions for Parliament was the need to update the 1840 Act to apply to media reports of parliamentary proceedings in the same way as to abstracts and extracts from Hansard. This would enable to balance to move towards protecting broadcasters and the media, who were simply reporting debates in Parliament. The April 2012 Green Paper provided two draft clauses. The first would provide that the burden of proving malice under the 1840 Act would lie with the claimant, bringing the legislation in line with the common law, and following the recommendations in the 1999 Joint Committee report. The second draft clause would provide broadly analogous protection for broadcasts as for printed reports. The first part would protect broadcasts on Parliament’s website absolutely, since these are produced under the authority of the House; a second part would provide qualified privilege for any other broadcast, such as by the terrestrial or internet channels. The Green Paper rejected arguments for absolute privilege for fair and accurate reporting, in contrast to the recommendation from the Joint Committee on the draft Defamation Bill in October 2011. The Defamation Act 2013 does not amend the law in this area, although privilege is being extended to accurate reporting of a large number of other examples, such as international courts.93 The Green Paper instead was concerned about the possibility that had been raised by the Joint Committee on Privacy and Injunctions that the media might pass information to a Member to be raised on the floor of the House, and then report on the point made by the Member which would otherwise be protected by injunctions. The Green Paper stated: it is right that the person who took out that injunction should have the right at least to ask the courts to consider whether the newspaper had acted in bad faith and so was in contempt of court.94

Therefore, there remains a risk that broadcasters and newspapers might find themselves in contempt of court, as a result of their commentaries and summaries of parliamentary proceedings.

E. Right of Reply In the course of 2011, the disclosure by Members of information covered by injunctions had an impact on the work of the courts and on a number of individuals and this gave rise to discussion of possible rights of reply. The Clerk of

93 Background in House of Commons Library Research Paper 12/30, Defamation Bill [Bill 5 of 2012-13] www.parliament.uk/briefing-papers/RP12-30. 94 Parliamentary Privilege (n 3) para 311.

58 Oonagh Gay and Hugh Tomlinson QC the House, Sir Robert Rogers, noted in his evidence to the Joint Committee on Privacy and Injunctions: There is the potential for conflict between the undoubted freedom of speech of a Member in proceedings and the maintenance of the rule of law. If a Member were deliberately to breach the terms of a court injunction, Parliament—or, more accurately, a single Member of Parliament—without requiring any debate or decision in the House could set at naught the judgment of the court, and thereby deprive an individual of the rights conferred on him by the judicial process.95

The 1999 Joint Committee had briefly considered giving those who had suffered as a result of comments in Parliament a right to reply to MPs in the chamber, but concluded that the need for such redress would be rare. It might also be ineffective, as rebuttals rarely achieved the same amount of publicity as the original allegations. The Australian Senate in 1988 was the first Westminster legislature to adopt a right of reply as part of a package of resolutions relating to parliamentary privilege. It is common in other Australian state legislatures. As in the UK, speeches in the legislatures are recorded in Hansard and thus can come to the notice of the courts. For example in New South Wales, Justice Sheahan took the opportunity to respond to allegations by a member of the Legislative Council about a paedophile ring alleged to be in operation, denying the allegations and the publicity thus given to them.96 The April 2012 Green Paper was clear that if either House wished to establish a right of reply scheme, this could be undertaken without legislation. But the paper was unenthusiastic, taking its usual cautious line. It did not explore some of the complexities which a right of reply scheme would create, such as its extension to evidence given before a parliamentary committee which reflects adversely on another witness, or even a person who is not a witness. The House of Lords has, however, developed new procedures since 2010 to allow individuals (apart from ministers) who are the subject of criticism in a select committee report to see the report in draft and have the opportunity to make representations.97 The Commons have yet to take up this innovation, but the assertive behaviour and questioning of its select committees in the 2010 Parliament may yet create difficulties in terms of fairness to witnesses and third parties caught up in the crossfire of conflicting evidence.

95 Sir Robert Rogers, written evidence to Joint Committee on Privacy and Injunctions, First Report (n 44). 96 G Griffiths, Parliamentary Privilege: Major Developments and Current Issues (New South Wales Parliamentary Library, 2007) www.parliament.nsw.gov.au/prod/parlment/publications.nsf/0/ 18dbe18c7d65cdf0ca2572d100091751/$FILE/ParliamentaryPrivelige07.pdf. See also E Campbell and M Groves, ‘Attacks on Judge under Parliamentary Privilege: a Sorry Australian Episode’ [2002] Public Law 626–39 on allegations made by a senator in the chamber against a distinguished Australian judge, which were later found to be based on forgeries. 97 The recommendation in the Fourth Report of 2009–10 of the Committee for Privileges and Conduct was agreed by the House of Lords on 27 July 2010.

Privilege and Freedom of Speech 59 F. Citation of Select Committee Evidence Geoffrey Marshall’s arguments in favour of a narrower interpretation of Article 9 have been resurrected in respect of select committees. In the past decade, the courts have begun to take notice of recommendations and findings in select committee reports, even if this does not extend to directly questioning or criticising their conclusions.98 In response, the House authorities are taking active steps to prevent the inadvertent use of select committee evidence and reports by courts and tribunals, through the Commons’ Legal Services Office.99 Thus the approach to this issue has changed. While there have in the past been a series of direct interventions on behalf of the House in court cases to try to stop parliamentary select committee material being adduced, the House authorities are now also trying to ‘educate’ the Government Legal Service (departmental lawyers) not to do so.100 They then approach parties to the litigation to see whether evidence might be adduced in a different way, without directly referring to the parliamentary material. But this approach can only work where the Government Legal Service is involved in litigation.

III. THE COURTS AND REFERENCE TO HANSARD

The view that any regard to parliamentary debates by courts (with the limited exception of Pepper v Hart) is a breach of parliamentary privilege and therefore constitutionally improper has enjoyed a degree of success in a number of cases in which the Speaker has intervened. For instance, in Office of Government Commerce v Information Commissioner101 Stanley Burnton J concluded that it would be wrong for a party to litigation, or a court or tribunal, to rely on an opinion of a parliamentary committee, because this would involve it passing judgment on the opinion of the committee which would be a breach of parliamentary privilege. In addition a party to litigation should not seek to rely on the opinion of the parliamentary committee since it would put the other party at an unfair advantage, and if the other party did dispute the correctness of the opinion of the committee, it would put a tribunal or court in the position of committing a breach of parliamentary privilege if it were to accept that the opinion of the committee was incorrect. 98 Eg, the then Information Tribunal considered answers to parliamentary questions in Information Tribunal Appeals EA/2006/0068 and 0080. The decision was appealed to the High Court in Office of Government Commerce v Information Commissioner, discussed below; in Wheeler, the AttorneyGeneral intervened. 99 See R (Bradley) v Secretary of State for Work and Pensions [2007] EWHC 242 (Admin) and R (Federation of Tour Operators v HM Treasury [2007] EWHC 2062 (Admin). See also ch 5. 100 See, eg, comments by Blake J that it had only been at a later stage that the Attorney-General sought to intervene in R (Age UK) v Secretary of State for Business, Innovation & Skills & Ors [2009] EWHC 2336 (Admin); [2010] ICR 260 [43]. 101 [2010] QB 98; [2008] EWHC (Admin) 737.

60 Oonagh Gay and Hugh Tomlinson QC However, where the evidence given to a parliamentary committee is uncontentious, Stanley Burnton J saw no objection to it being taken into account. In evidence submitted to the court, the chairman of the tribunal which had considered the case at a lower level had argued that it should be possible to make reference to select committee reports without questioning or challenging statements made in Parliament. Such reports were of very great utility in helping the tribunal reach its decisions as to whether information should be released under the Freedom of Information Act 2000.102 A more nuanced approach is illustrated in the Age UK case,103 which concerned a challenge to the compatibility of the Employment Equality (Age) Regulations 2006 with the underlying directive. Here, Blake J held that there was no constitutional impediment to the court receiving evidence as to parliamentary proceedings: it is a matter of the court informing itself on matters which it has a constitutional duty to determine. In so doing it is not adjudicating on whether anyone else who has expressed a view is right or wrong as a matter of law. He stated: In receiving and informing itself from Parliamentary materials, the court is not adjudicating upon whether anyone else who has expressed a view, (whether a Parliamentary Committee, a Minister or a witness to a Committee) is right or wrong as a matter of law or fact. Nor, in my judgment, will receipt of such material have a chilling effect on the willingness of witnesses to give evidence to such Committees. What is said to Parliament is said in public, recorded and reported on in public for all interested to read.104

There are a range of arguments against allowing the citation of select committee proceedings in court. If committee reports were allowed in evidence, this could result in committee staff being called upon to give evidence to the courts, and conclusions reached by committees might be subject to judicial analysis, which would amount to questioning or challenging parliamentary proceedings. As Richards, LJ stated in the Wheeler case: reliance by one party on the opinion expressed by a Parliamentary committee creates the risk that the other party will contend that the opinion was wrong and will therefore give rise to, or risk giving rise to, the questioning of proceedings in Parliament, in breach of Parliamentary privilege105

Judicial interest might inhibit Members from agreeing controversial elements of reports, or cause them to be less inclined to compromise on discrete areas. The argument is that there would be a ‘chilling effect’ on Members. These arguments are rehearsed in the April 2012 Green Paper. However, the Paper made no reference to the experience of the Joint Committee on Human

102

Office of Government Commerce v Information Commissioner [2008] EWHC 737 (Admin) [28]. R (Age UK) v Secretary of State for Business, Innovation & Skills & Ors (n 100). 104 Ibid [50]. 105 R (Wheeler) v Office of the Prime Minister and Secretary of State for Foreign and Commonwealth Affairs [2008] EWHC 1409. 103

Privilege and Freedom of Speech 61 Rights. Murray Hunt, Legal Adviser to the JCHR, found that since the inception of the JCHR in 2000 through to March 2012 a total of 72 cases had occurred in which the JCHR itself had been mentioned (in the domestic and both European courts), or a JCHR report had been referred to, or the work of the JCHR had been mentioned. Hunt points out that the European Court of Human Rights has frequently considered both parliamentary debate and the reports of the Joint Committee on Human Rights when it reaches its conclusions. In cases such as Hirst v United Kingdom106 it was the absence of parliamentary debate about the proportionality of the blanket ban on prisoner voting that the Strasbourg Court took into account in deciding that the blanket ban was disproportionate. In other cases, by contrast, the fact that there has been such a parliamentary debate, and the quality of it, has been taken into account by the Strasbourg Court in deciding that there are no grounds for finding the law to be incompatible with the Convention. Hunt concludes that the scale of the reference to JCHR reports by courts, including the highest courts: suggests that judges do not regard such reference to parliamentary material to be constitutionally problematic. It would also be odd were litigants able to raise these issues only once proceedings had reached this ‘supervisory’ stage, but not before the domestic courts. At the same time, however, there is very little evidence of clear or rigorous judicial thinking about the different purposes for which reference can legitimately be made to such reports and there is clearly very considerable scope for developing a more rigorous approach by courts to their use of such reports.107

Three broad types of reference are identified by Hunt: reference to JCHR reports as ‘background information’; reference to the JCHR’s views as being potentially persuasive on a substantive human rights question; and reference to reports as evidence of parliamentary consideration (or lack of consideration) of human rights compatibility issues, as a reason for deferring (or not deferring) to Parliament’s view of compatibility. The Joint Committee on Human Rights may be a special case. But generally, as select committees continue to increase their public profile, it will become more difficult to avoid examining their reports as part of the judicial process, and the arguments against this development will come under greater scrutiny. If Article 9 has survived Pepper v Hart, allowing the courts to refer to select committee reports under clear guidelines may assist with the general understanding of the work of Parliament and enhance judicial decision-making.108 The use made of the report by the Joint Committee on Parliamentary Privilege in Chaytor (discussed

106

(2006) 42 EHRR 41. M Hunt, H Hooper, and P Yowell Parliaments and Human Rights: Redressing the Democratic Deficit in Human Rights (Arts and Humanities Research Council, AHRC Public Policy Series no 5 London 2012) 51. 108 See, eg, Roberts v Parole Board [2005] UKHL 45 where the House of Lords made reference to a report of the Constitutional Affairs Select Committee in an uncontroversial way. 107

62 Oonagh Gay and Hugh Tomlinson QC above) to elucidate the extent of exclusive cognisance in relation to parliamentary expenses should surely indicate the value of this approach.109

IV. PROTECTIONS FOR COMMUNICATIONS WITH CONSTITUENTS

As already noted, communications between MPs and their constituents are not normally ‘proceedings in Parliament’ for the purposes of Article 9. As the importance of constituency work increases, the question of extending Article 9 to such work has become more pressing. An example of this can be seen in Germany, where Article 47 of the German Basic Law makes clear the authority of the President of the Bundestag and gives protection to Members regarding information and documents given in confidence to them in their capacity as members of the Bundestag. There is no equivalent power for MPs in the UK Parliament. Instead both they and their constituents enjoy qualified privilege. This was established in 1937 in the case of R v Rule,110 where the Court of Appeal quashed a conviction for criminal libel arising out of allegations made by a constituent in letters to his MP. The broad scope of this privilege was recognised in the 1969 case of Beach v Freeson.111 Reg Freeson MP communicated certain complaints about a firm of solicitors, which he knew were defamatory, to the Law Society and to the Lord Chancellor. It was held by the Court that an MP had both an interest and a duty to communicate to the appropriate body at the request of a constituent any substantial complaint from the constituent concerning a professional man in practice at the service of the public.112

In other words, Members have protection from defamation actions for their constituency correspondence, always provided the channel of communication was a proper one for the transmission of a complaint or other defamatory comment, to a responsible authority, and that no malice was involved. The 1999 Joint Committee on Privilege considered that there was insufficient evidence of the need for the extension of privilege and that a wholesale inclusion of constituency work was unjustified. Since 1999 there has been increasing pressure on Members in relation to their constituency work.113 An insurance scheme to cover civil claims for defamation

109 R v Chaytor and others [2010] UKSC 52; see [89] where Lord Phillips concludes that the Joint Committee’s interpretation of the extent of exclusive cognisance was correct. 110 [1937] 2 KB 375. 111 [1972] 1 QB 14. 112 Ibid 22. 113 For background, see House of Commons Select Committee on Modernisation, Revitalising the Chamber: The Role of a Backbench Member (First Report) (HC 2006–07, 330) and M Rush and P Giddings, Parliamentary Socialisation: Learning the Ropes or Determining Behaviour? (London, Palgrave Macmillan, 2011).

Privilege and Freedom of Speech 63 was introduced in 2000 for them, with legal costs met by the Commons authorities, after Jack Straw was sued for legal costs in an action brought against him.114 The advent of the Data Protection Act 1998 brought new problems for Members. Their ability to contact public authorities on behalf of their constituents was affected by the need to seek specific consent from them. A statutory instrument was made to enable the Member (or someone acting with their authority) to process sensitive personal information about the constituent in the course of the Member’s ‘functions as a representative’ (that is, constituency casework) without having to establish ‘explicit consent’. The order also gives others (eg agencies or organisations) who are contacted by Members authority to disclose sensitive personal information to them where this is necessary to help with their functions, without having to obtain the explicit consent of the individual concerned.115 The era of super-injunctions and other anonymity orders has brought new complexity. What is the position when constituents wish to discuss court proceedings with their MP but this has been restricted by a court order? At present this would appear to be protected by parliamentary privilege only when directly related to a proceeding in Parliament. The Family Procedure Rules now make provision explicitly entitling a party to proceedings to communicate information to an elected representative or peer without the permission of the court where this is for the purpose of enabling the elected representatives to give advice, to investigate or to raise a question of policy or procedure.116 The 2011 Joint Committee on the Draft Defamation Bill recommended that the right to qualified privilege for Members and their staff be set out in statute, so that uncertainty about individual actions would be ended.117 This did not appear in the Bill that came before Parliament in 2012. The April 2012 Green Paper concluded that extending qualified privilege to all forms of correspondence between constituents and Members would run the risk of encouraging MPs to circumvent court orders, and that continuing with the case by case basis is sufficient. If this position creates uncertainty for Members, they may wish to seek legal advice from the Commons Legal Services Office. However, the Legal Services Office does not routinely provide legal advice to individual members.118 The former Member, David Howarth, made a plea for Parliament to provide clarity for the Member and the constituent who believes that his

114 HC Deb 5 July 2001, col 477. The issue is discussed in Library Standard Note, Members’ Constituency Role: Parliamentary Privilege and Insurance, 18 December 2001 SN/PC 1010. 115 Data Protection (Processing of Sensitive Personal Data) (Elected Representatives) Order 2002, SI 2002/2905. This is discussed in Library Standard Note, 5 June 2006 Data Protection: Constituency Casework, SN/HA/1936. 116 HM Courts and Tribunals Service, Practice Direction 14E, Communication of Information Relating to Proceedings. 117 Joint Committee on Draft Defamation Bill, First Report (2010–12, HL 203, HC 930). 118 See ch 5 for further details.

64 Oonagh Gay and Hugh Tomlinson QC confidences to his elected representatives will be respected.119 In these cases, the Member may be required to hand over such correspondence when legal action is taken. Qualified privilege is not the same as the legal professional privilege which protects solicitors and barristers. Yet this difference is not generally recognised by the public. David Howarth has also argued that there is an increasing likelihood that MPs will be drawn by the media into breaching court orders by disclosing information. In his evidence to the Joint Committee on Privacy and Injunctions, he pointed out: The media has an enormous interest in beating down this sort of injunction and will orchestrate public opinion and might even orchestrate parliamentary action to make sure the media lawyers are in a position where they can go back to the court and say, ‘Look, this thing is now out in public; there is no reason for the order to continue’.120

V. CONCLUSION

The Bill of Rights 1689 marked a decisive point in the development of the English (later British) Parliament, and Article 9 protection of free speech remains a vital part of our uncodified constitution. There is general acceptance of the principle that Members and witnesses must have the right to comment on matters of public importance without the fear of legal action for their words. The right to report those words was established through the Parliamentary Papers Act 1840. But Article 9 is little understood outside—as well as inside—Parliament. This is evident both in the Weleminsky case where the Lord Chancellor’s staff appeared unaware of the constitutional improprieties of disciplining a witness to a select committee, and in the actions of solicitors such as Archerfield Partners attempting to require the Joint Committee on Privacy and Injunctions to remove from its website evidence from a witness subject to a super-injunction. At present there is little government or parliamentary appetite for reforms to Article 9, or for any general review of the scope of parliamentary privilege. The Green Paper of April 2012 made some modest proposals for reform in areas where there is most uncertainty. The deficiencies of the Parliamentary Papers Act 1840 have been evident for some time especially since the development of digital broadcasting and social media. But there is no guarantee of early legislative action. No opportunity was taken to use the Defamation Act 2013 as a vehicle to provide some more legislative clarity on the extent to which qualified privilege protects various forms of reporting of parliamentary proceedings. But developments in the role of Parliament and of individual Members are putting strains on the decision to leave the scope of Article 9 undefined in modern

119 120

Oral evidence to Joint Committee on Privacy and Injunctions, First Report (n 44) Q 1141. Oral evidence to Joint Committee on Privacy and Injunctions, First Report (n 44) Q 1121.

Privilege and Freedom of Speech 65 statutory terms. There is a dynamic of change at work. The increasing role of select committees, discussed in chapter seven, has made their reports more prominent and influential, and this is likely to result in greater judicial scrutiny. Murray Hunt’s analysis of the use of reports from the Joint Committee on Human Rights found that at present there was very little evidence of clear or rigorous judicial thinking about the purposes for which references to select committee reports should be made. More critical analysis is likely at some point in the next decade or so. This will present Parliament with a challenge, since it is the courts which establish the parameters of Article 9. The only riposte to a court judgment which does not win support among parliamentarians is legislation, as the Australians found in the 1980s. Their Parliamentary Privileges Act 1987 enabled the legislators to re-establish a broader scope for Article 9. A similar scenario may present itself in the UK in the not too distant future. But the parliamentary draftsmen may work to an agenda set by the executive rather than the legislature. The changing role of individual Members is even more evident. Twenty years or so ago, the work for individual constituents was a minor element of the formal role of an MP. Now most backbenchers would see it as the major focus of the job.121 In return, constituents are increasingly assertive and expect the support of Members in dealing with complex problems which may involve legal action. Where issues are particularly newsworthy, the media may well have an interest in the outcome and operate to circumvent injunctions. This interest is not new. There was considerable publicity given to the identity of Child Z in the 1990s. But the digital and social media age has led to much more rapid dissemination of information and more pressure to draw Members into breaching injunctions as part of formal parliamentary proceedings, while protected by Article 9. Yet the constituency role of Members remains unprotected, a fact that MPs themselves may not fully realise until it becomes the subject of legal action. A full debate is also likely in the next decade on the extent to which qualified privilege is sufficient to enable Members to discharge their responsibilities. The Green Paper and the report of the Joint Committee on the Draft Defamation Bill set out the arguments for and against legislative action. Another incident on the lines of the Trafigura injunction is likely to provoke more intensive analysis of the position. All in all, this area of law is unlikely to remain unchanged in the longer term.

121

Rush and Giddings, Parliamentary Socialisation (n 113).

3 Parliamentary Privilege and the Criminal Law SALLY LIPSCOMBE* AND ALEXANDER HORNE**

I. INTRODUCTION1

T

HIS CHAPTER WILL examine the effect of parliamentary privilege on the criminal law, considering any immunities granted to Members of Parliament (and others); exploring the history and development of these privileges, and assessing a number of recent cases. Chapter one of the book set out the general rules relating to parliamentary privilege and these will not be rehearsed again extensively in this chapter.2 The chapter will focus on the particular problems that arise when individuals are accused of attempts to bribe or otherwise suborn Members of Parliament and will briefly analyse some of the corporate immunities of the House. In two case studies this chapter will pay specific attention to issues raised in the case of Damian Green MP and searches of the Parliamentary Estate; and the legal action in 2010 around parliamentary expenses in the case of R v Chaytor and others.3 At the outset, it is important to reiterate that, unlike the position in some jurisdictions, in the United Kingdom individual Members of Parliament do not have a specific immunity from criminal or civil law. A number of Members have been arrested and subsequently charged with and convicted of offences (and various examples of this are discussed below).

* Sally Lipscombe is the Senior Researcher on Criminal Law at the Research Service of the Commons Library. ** Alexander Horne is an employed barrister and the Senior Researcher for Human Rights, Public Law and Terrorism at the Research Service of the Commons Library. 1 The authors would like to thank Liam Laurence Smyth, Clerk of the Journals of the House of Commons, for his comments on a draft of this chapter. Any errors or omissions remain our own. 2 For more general information about Members’ conduct, see ch 4. 3 R v Chaytor and others [2010] UKSC 52.

68 Sally Lipscombe and Alexander Horne The issue of immunity from criminal proceedings was considered by the Joint Committee on Parliamentary Privilege in 1999. The Committee concluded, inter alia, that Article 9 of the Bill of Rights aside: Members can be prosecuted for criminal conduct, such as a breach of the official secrets legislation, or pursued in the civil courts for slander or other wrongs, even when the conduct complained of occurred within the Palace of Westminster. If a member is charged with a criminal offence, no waiver of immunity is required. If one of their members is imprisoned and cannot attend the House, the two Houses expect only to be informed of the fact. The same principle applies to the premises in which Parliament meets. A criminal offence committed in the precincts is triable in the courts. A member may be arrested within the precincts.4

Hence, Members of Parliament facing criminal charges are generally in the same position as any other citizen who is arrested and charged with a crime,5 subject to the significant Article 9 exception noted above. As stated in the preceding chapters, Article 9 of the Bill of Rights 1689 provides that the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament. Issues which commonly arise in these types of cases are the effect of the privilege of exclusive cognisance and the application of Article 9 of the Bill of Rights.

II. PRIVILEGE CLAIMS BASED ON ARTICLE 9 OF THE BILL OF RIGHTS AND EXCLUSIVE COGNISANCE

In the case of R v Chaytor and others6 (which related to claims of false accounting arising out of the MPs’ expenses scandal of 2009, and whether claims for expenses were covered by privilege) the Supreme Court considered the history and jurisprudence relating to claims of privilege based on Article 9 of the Bill of Rights and the separate issue of the exclusive cognisance of Parliament. In relation to the former, Lord Phillips observed that the Bill of Rights 1689 reflected: the attitude of Parliament, after the Restoration, to events in the reign of Charles I, and in particular, the acceptance by the Court of King’s Bench that parliamentary privilege did not protect against seditious comments in the Chamber—R v Eliot, Holles and Valentine (1629) 3 St Tr 293-336.7

4

Joint Committee on Parliamentary Privileges, Report (1998–99, HL 43-I, HC 214-I) para 242. Although if detained for any significant time (eg, if remanded in custody) the police or court concerned must notify the Speaker. See: R Blackburn and A Kennon, Griffiths and Ryle’s Parliament: Functions, Practice and Procedures, 2nd edn (London, Sweet and Maxwell, 2002) para 3-006. 6 R v Chaytor and others (n 3). The case of Chaytor is explored in more detail in the case study (section I.B. below) and hence this introductory section only considers the issues of broader significance raised in that case. 7 Ibid [28]. 5

Parliamentary Privilege 69 Lord Phillips noted that one of the main difficulties when considering the scope of privilege under Article 9 is that case law on the issue frequently made no reference to the Bill of Rights, and that it is therefore hard to distinguish between the ‘narrow privilege under article 9 and the broader exclusive cognisance of Parliament.’8 Following the decision in the case of Chaytor, the breadth of the privileges claimed in some of the nineteenth century authorities, such as Stockdale v Hansard 9 (in which Lord Denman CJ said ‘whatever be done within the walls of either assembly must pass without question in any other place’)10 and Bradlaugh v Gossett11 is in doubt. To gain an idea of the changing application of these privileges it is worth revisiting some of the earlier cases. In the case of Bradlaugh, which involved an atheist, Charles Bradlaugh, who had been elected to Parliament but who was excluded from the House, after he had initially been unwilling to take the oath, Lord Coleridge CJ held, inter alia, that: What is said or done within the walls of Parliament cannot be inquired into in a court of law ... The jurisdiction of the Houses over their own members, their right to impose discipline within their walls, is absolute and exclusive.12

However, even in that case, Stephens J was rather less categorical, observing that: ‘I think the House of Commons is not subject to the control of Her Majesty’s Court in its administration of that part of the statute law which has relation to its own internal proceedings’.13 In the same case Stephens J made the more helpful (and oft cited) observation that: I know of no authority for the proposition that an ordinary crime committed in the House of Commons would be withdrawn from the ordinary course of criminal justice.14

In Chaytor Lord Phillips appeared to accept this proposition, noting that there were good reasons of policy for giving Article 9 ‘a narrow ambit’. In particular, he suggested that this was because the protection of Article 9 was absolute and ‘its effect where it applies is to [...] prevent the prosecution of Members for conduct which is criminal’. Moreover, he also focused on the fact that Parliament has no criminal jurisdiction, having only limited powers to treat criminal conduct as contempt.15

8 9 10 11 12 13 14 15

For more on the issue of exclusive cognisance, see ch 1. (1839) 9 Ad & E 1. For a description of this case, see ch 2. Ibid 114. (1884) 12 QBD 271. Ibid 275. Ibid 278. Ibid 283. R v Chaytor and others (n 3) [61].

70 Sally Lipscombe and Alexander Horne Previously, it had been plain from the judgment in Stockdale v Hansard16 that Parliament had the power to imprison individuals (albeit for a limited period) for contempt. In that case, Lord Denman CJ observed that: The privilege of committing for contempt is inherent in every deliberative body invested with authority by the Constitution. But however flagrant the contempt, the House of Commons can only commit till the close of the existing session.17

Imprisonment has not been imposed in recent times,18 and it is likely that the power has fallen into disuse. In any event, in Chaytor, Lord Phillips questioned whether Parliament was in a position to satisfy all the requirements of Article 6 of the European Convention on Human Rights (which relates to the right to a fair trial), including the right of access to an independent and impartial tribunal, which apply when imposing penal sanctions.19 As to the extent of the privilege under Article 9, Lord Phillips concluded that the principal matter to which Article 9 was directed was ‘freedom of speech and debate in the Houses of Parliament’ and that that when considering whether acts which took place outside the Houses (or their committees) fell within the meaning of ‘proceedings in Parliament’, it was necessary to consider whether, if the actions complained of did not enjoy such privilege, that was likely to impact adversely ‘on the core or essential business of Parliament’.20 A. Criminal Acts Committed within the Precincts of Westminster In Chaytor Lord Rodger stated that ‘since 1667, the House has never claimed a privilege of exclusive cognizance in a case where a Member has committed an ordinary crime in the House or its precincts’.21 Considering the nineteenthcentury authorities, he argued that ‘these generalised statements’, which appeared to offer protection, ‘have, however, to be seen in the context of the actual practice of the House’. He recorded that it was the practice of the House to direct the Attorney-General to prosecute someone who was alleged to have committed perjury when giving evidence to a committee of the House: James Welsh (1860) CJ 258; Henry Chamber (1866) CJ 239’. He went on to note the fact that: More particularly, however, for centuries the House of Commons has not claimed the privilege of exclusive cognizance of conduct which constitute an “ordinary crime”— even when committed by a Member of Parliament within the precincts of the House.22 16

(1839) 9 Ad & E 1. Ibid 114. 18 In Chaytor, Lord Rodger observed that since about the time of Floyd’s Case (1621) the Commons have accepted that they have no power to punish except for a contempt of their House. Hence the House has no power to try anyone for an offence under the English criminal law. R v Chaytor and others (n 3) [105]. 19 R v Chaytor and others (n 3) [61]. 20 Ibid [47]. 21 Ibid [117]. 22 Ibid [112]. 17

Parliamentary Privilege 71 In spite of the lack of immunity, described above, historically there were examples of criminal acts within the precincts of Westminster (particularly involving violent behaviour or criminal damage) which were dealt with internally. Examples include an affray between a Member and a lobby correspondent in 1947 and an incident where Ron Brown MP damaged the mace in the course of a heated debate (where a private prosecution for criminal damage was halted by the Director of Public Prosecutions).23 More recently, however, Eric Joyce MP was subjected to criminal sanctions by a court after committing an assault in the Strangers’ Bar in the House of Commons. He was given a 12-month community order and a £3000 fine after a guilty plea at the Westminster Magistrates’ Court.24 At that time, there was no suggestion that the matter would be handled internally either by the House authorities or the Standards and Privileges Committee. In 2011, Jonathan May-Bowles (known by the ‘stage name’ Jonnie Marbles), pleaded guilty to assaulting Rupert Murdoch in Portcullis House, on the Parliamentary Estate. Mr Murdoch had been giving evidence to the Culture, Media and Sport Committee at a hearing relating to phone hacking, when MayBowles threw a plate of shaving foam at him. He was imprisoned for six weeks after the judge determined that he had sought to disrupt parliamentary proceedings of huge importance.25 His sentence was subsequently cut to four weeks’ imprisonment by the Crown Court, which ruled that the trial judge had not given sufficient credit for his guilty plea. In Chaytor, Lord Phillips sought to rationalise the position also considering the question of whether the House generally sought to assert an exclusive jurisdiction to deal with criminal conduct ‘where this relates to or interferes with proceedings in committee or in the House’. He stated that Parliament has never challenged, in general, the application of criminal law within the precincts of Parliament and has accepted that the mere fact that a crime has been committed within the precincts is no bar to the jurisdiction of the criminal courts: In May 1812 John Bellingham was indicted, tried and convicted of the murder of the Prime Minister, Spencer Percival, at the entrance of the lobby of the House of Commons. Bellingham was not a Member of Parliament, but it would have made no difference had he been … When a crime is committed within the House of Commons, this may well also constitute a contempt of Parliament. The courts and Parliament have different overlapping jurisdictions. The House can take disciplinary proceedings for contempt and a court can try the offender for the crime. Where a prosecution is brought Parliament will suspend any disciplinary proceedings. Conversely, if a Member of Parliament were

23 For more on these historic episodes see P Leopold, ‘The Application of the Civil and Criminal Law to MPs and Parliamentary Proceedings’ in D Oliver and G Drewry (eds), The Law and Parliament (London, Butterworths, 1998). 24 The Guardian, ‘Eric Joyce Admits Assault after House of Commons Bar Brawl’ (London, 9 March 2012). 25 Daily Telegraph, ‘Jonnie Marbles Jailed for Throwing Pie at Rupert Murdoch’ (London, 2 August 2011).

72 Sally Lipscombe and Alexander Horne disciplined by the House, consideration would be given by the Crown Prosecution Service as to whether prosecution would be in the public interest.

B. Corporate Dispensations: The Graham-Campbell Doctrine and its Erosion An odd distinction appears to have arisen between criminal conduct committed by individuals (whether or not they are Members of Parliament) and the corporate dispensations granted to the House (which appeared to protect the House authorities from some civil and criminal sanctions). Perhaps the most notable example in the twentieth century, which led Geoffrey Lock in The Law and Parliament to question whether Parliament was a ‘statute free zone’,26 was the case of R v Graham-Campbell, ex p Herbert27 which related to the supply of liquor to the House of Commons. In that case, Lord Hewart CJ determined that the House was not bound by the law on the permitted hours for the serving of alcoholic drinks, basing his ruling on a quotation from Lord Denman’s judgment in Stockdale v Hansard. In the relevant passage, Lord Hewart said: The words of Lord Denman CJ in Stockdale v Hansard are sufficient for the present purpose. He said: ‘The Commons of England are not invested with more power and dignity by their legislative character than by that which they bear as the grand inquest of the nation. All the privileges that can be required for the energetic discharge of the duties inherent in that high trust are conceded without a murmur or a doubt.’ Here, as it seems to me, the magistrate was entitled to say, on the materials before him, that in the matters complained of the House of Commons was acting collectively in a manner which fell within the area of the internal affairs of the House and, that being so, any tribunal might well feel, on the authorities, an invincible reluctance to interfere.

Lock argued that initially Lord Hewart’s judgment was ‘interpreted as giving the House carte blanche to do what it likes’. In particular, he quoted Sir Alan Herbert’s cynical view of its consequences: If they can sell liquor without regard to Licensing Acts, they can sell milk or cream without regard to the Sale of Food and Drugs Acts; they can sell bad meat and adulterated bread; they can sell morphine without a certificate and opium without a licence. All of these matters might equally be held to ‘fall within the scope of the internal affairs of the House’.28

Lock went on to suggest that the reality was not ‘far distant from the satire’, citing a series of examples such as the sale of bogus ‘fine old claret’ without regard to the Trade Descriptions Act, the diffusion of blue asbestos fibres by the air

26 G Lock, ‘Statute and Case Law Applicable to Parliament’ in Oliver and Drewry (eds), The Law and Parliament (n 23). 27 [1935] 1 KB 594. 28 Lock, ‘Statute and Case Law Applicable to Parliament’ (n 26) 57.

Parliamentary Privilege 73 conditioning and an outbreak of salmonella in the kitchens (with inspectors admitted on a voluntary basis, rather than under the Food Safety Act).29 However, the Graham-Campbell doctrine has been subject to significant erosion in recent years.30 There are a number of reasons for this change, including the fact that the House has implemented statutes in respect of its own activities and the House authorities have voluntarily applied rules (such as employment laws31) to staff. The impact of EU law should not be underestimated.32 In Chaytor the Supreme Court explicitly indicated that while, following the case of R v Graham-Campbell, ex p Herbert, there appears to have been a presumption in Parliament that statutes do not apply to activities within the Palace of Westminster unless they expressly provide to the contrary, that presumption was ‘open to question’.33

C. Issues over Bribery and Corruption The Government’s most recent consultation on the issue of parliamentary privilege34 has identified a number of areas in which Article 9 could feasibly shield a Member of Parliament from criminal proceedings, including claims of bribery and corruption (where the bribe was paid to change a vote, or to ask a question); blackmail; making false statements contrary to section 397 of the Financial Services and Markets Act 2000; and conspiracy to defraud contrary to the common law.35 Issues could also arise over new hate speech offences (such as use of threatening words or behaviour intended to stir up racial or religious hatred, under the Public Order Act 1986 as amended by the Racial and Religious Hatred Act 2006); the encouragement or ‘glorification’ of terrorism; criminal contempt of court; and breaches of the Official Secrets Act 1989. A variety of draft clauses were published to deal with these issues; however, as noted in the previous chapter, there appears to be little impetus to attract attention by bringing such changes into law as the hostile reaction to the Members’ expenses saga

29

Ibid. See HM Government, Parliamentary Privilege (Green Paper, Cm 8318, 2012) paras 206–17 in which the Government argued that the case of Chaytor had made clear that while courts ‘remain respectful of parliamentary privilege and exclusive cognisance [...] statute law and the courts’ jurisdiction will only be excluded if the activities in question are core to Parliament’s functions as a legislative and deliberative body’. 31 Since the 1990s, this has also been dealt with through express provisions in, for example, the Employment Rights Act 1996. 32 See Harmon CFEM Facades (UK) Ltd v Corporate Officer of the House of Commons, [1999] 67 Con LR 1, where the Technology and Construction Court held that the House had treated tenderers unequally, and was liable for breaches of European law and the tort of malfeasance in public office. 33 R v Chaytor and others (n 3). For a discussion of the impact of these changes and the legal advice available to Parliament, see ch 5. 34 HM Government, Parliamentary Privilege (n 30). 35 Ibid, paras 112–13. 30

74 Sally Lipscombe and Alexander Horne slowly recedes. It is likely that the successful prosecution of Members (discussed below) has reduced the pressure for any immediate change. There has been previous deliberation on the issue of bribery. There was some debate during the scrutiny of the draft Corruption Bill (published in the 2002–03 Session).36 Subsequently, the issue was revisited during the consideration of the draft Bribery Bill37 (in the 2008–09 Session). This draft Bill contained provisions which would have clarified the law relating to parliamentary privilege when investigating allegations against Members. In particular, clause 15 of the draft Bill would have made words or conduct of an MP or peer admissible in proceedings for a bribery offence under the Bill, where the MP or peer was a defendant or co-defendant, notwithstanding any enactment or rule of law, including Article 9 of the Bill of Rights 1689. The suggestion provoked some comment in the Joint Committee. The Committee recommended that the clause should be omitted and that the issue should only be addressed in future as part of a comprehensive Bill specifically on parliamentary privilege.38 The clause was not included in the Bill that became the Bribery Act 2010.

III. TWO CASE STUDIES

A. The Case of Damian Green and Searches of the Parliamentary Estate On 19 November 2008 the Metropolitan Police arrested Christopher Galley, a Home Office official, on suspicion of misconduct in public office. The following week, while the House of Commons was prorogued, Damian Green, the Member of Parliament for Ashford, was arrested on suspicion of aiding, abetting, counselling or procuring misconduct in public office. Mr Galley was suspected of leaking Home Office information to Mr Green, and Mr Green of soliciting that information and passing it to the press. Although no charges were ultimately brought (as the Crown Prosecution Service decided that there was insufficient evidence of harm to the public interest), the matter raised a number of questions relating to parliamentary privilege, particularly in relation to the authorisation of police searches of Members’ parliamentary offices during criminal investigations and the status of any material seized during those searches.

36

Joint Committee on the draft Corruption Bill (2002–03, HL 157, HC 705). Cm 7570, March 2009. (http://webarchive.nationalarchives.gov.uk/20090503211924/http://www. justice.gov.uk/publications/docs/draft-bribery-bill-tagged.pdf) 38 Joint Committee on the draft Bribery Bill (2008–09, HL 115-I, HC 430-I). It is worth noting that the Committee was clear to indicate that ‘Members of both Houses of Parliament can be convicted of bribery. This is entirely proper: bribery is a very serious offence and Members should be subject to the same criminal laws as everyone else’ (para 206). The Committee appeared to take the view that privilege was not likely to be a serious impediment to the investigation and prosecution of a Member. 37

Parliamentary Privilege 75 A number of police searches took place as part of the investigation into Mr Galley and Mr Green. Some of these searches, including those of Mr Green’s homes and his constituency office, took place on the basis of search warrants properly issued by a District Judge under section 8 of the Police and Criminal Evidence Act 1984 (PACE). The search of Mr Green’s office on the Parliamentary Estate, however, was carried out without a search warrant. The police had instead sought and obtained consent for the search from Jill Pay, the then Serjeant at Arms. The search of Mr Green’s parliamentary office on the basis of consent from the parliamentary authorities rather than a search warrant proved enormously controversial, particularly as it emerged that there had been a number of serious deficiencies in how Ms Pay’s consent had been sought and granted. A Commons committee chaired by Sir Menzies Campbell—‘the Campbell Committee’—was established to look into the circumstances in which the search of Mr Green’s office was authorised, and at the implications the search had for parliamentary privilege. Giving evidence to the Campbell Committee, the police justified their decision to proceed by seeking consent rather than a search warrant by reference to section 8(3) of PACE, under which the court will issue a warrant only where it is satisfied that any one or more of the following conditions is met: a) that it is not practicable to communicate with any person entitled to grant entry to the premises; b) that it is practicable to communicate with a person entitled to grant entry to the premises but it is not practicable to communicate with any person entitled to grant access to the evidence; c) that entry to the premises will not be granted unless a warrant is produced; d) that the purpose of a search may be frustrated or seriously prejudiced unless a constable arriving at the premises can secure immediate entry to them. Chief Superintendent Ed Bateman (Head of Parliamentary Security, Metropolitan Police Service) said that it was his understanding that Ms Pay was ‘very clear that a warrant was unlikely to be granted by a magistrate unless it could be shown that a person on the premises with the authority was either unavailable or refused to do so’.39 His recollection was that she was aware that the police were prepared to seek a search warrant from a magistrate if necessary, but could not do so until the House had considered its position and decided against giving consent to the search.40

39 House of Commons Committee on Issue of Privilege, Police Searches on the Parliamentary Estate (HC 2008–09, 62) (‘the Campbell Report’) Ev 46–47. 40 Ibid.

76 Sally Lipscombe and Alexander Horne Professor Anthony Bradley, Emeritus Professor of Constitutional Law, Edinburgh University, has commented that ‘however plausible this may be, the police must have anticipated that it would be difficult to persuade the judge that he/she had the authority to issue a warrant in respect of the Palace of Westminster’.41 The Campbell Committee highlighted some of the serious failings that had occurred in the seeking and giving of the Serjeant at Arms’ consent. For example, it appeared that the police had not explicitly informed Ms Pay of her right to withhold consent to the search, which constituted a failure to comply with the code of practice issued under PACE relating to police searches of premises and the seizure of property found there.42 Ms Pay, under instruction from the police to keep the matter ‘confidential’, had failed to fully inform the Speaker and the then Clerk of the House Malcolm Jack that the police were proposing to search a Member’s Westminster office without a warrant, or that she was planning to acquiesce in their request for consent on the Speaker’s behalf. Ms Pay and Speaker Martin were unaware of a memorandum issued in 2000 by the then Clerk of the House William McKay, in which he set out the procedure to be followed in the event of a request by the police to search a Member’s office. This acknowledged that there was ‘no real precedent for how such a request should be met’, but emphasised that the consent of the Speaker must be obtained before any action in the Palace and that the Speaker should see ‘the search warrant or a draft’ before consenting.43 In the immediate aftermath of the search, Speaker Martin announced that he would be developing a protocol under which a warrant would always be required when the police sought to search a Member’s office, and that every case would have to be referred to him for his personal decision.44 The protocol, issued on 8 December 2008, largely follows the procedure laid out by William McKay in his 2000 memorandum on searches of Members’ offices at Westminster. It was welcomed by the Campbell Committee, which said that it ‘makes clear the indispensability of a Judge’s search warrant, while reserving to the Speaker on behalf of the House the responsibility for ensuring that any such warrant is executed with proper respect for the functioning of Parliament’.45

41

A Bradley, ‘The Damian Green Affair—All’s Well that Ends Well?’ [2012] Public Law 396–407. The Campbell Report (n 39) paras 96–97. PACE Code B: Code of Practice for Searches of Premises by Police Officers and the Seizure of Property Found by Police Officers on Persons or Premises requires the police to ‘clearly inform’ the person from whom consent to the search is being sought that they are not obliged to consent. 43 The Campbell Report (n 39) para 83. 44 HC Deb 3 December 2008, col 3. 45 The Campbell Report (n 39) para 172. 42

Parliamentary Privilege 77 1.

Responsibility for controlling access to the precincts of the House has been vested by the House in me. It is no part of my duties as Speaker to impede the proper administration of justice, but it is of equal concern that the work of the House and of its Members is not necessarily hindered.

2.

The precincts of Parliament are not a haven from the law. A criminal offence committed within the precincts is no different from an offence committed outside and is a matter for the courts. It is long established that a Member may be arrested within the precincts.

3.

In cases where the police wish to search within Parliament, a warrant must be obtained and any decision relating to the execution of that warrant must be referred to me. In all cases where any Officer or other member of the staff of the House is made aware that a warrant is to be sought the Clerk of the House, Speaker’s Counsel, the Speaker’s Secretary and the Serjeant at Arms must be informed. No Officer or other member of the staff of the House may undertake any duty of confidentiality which has the purpose or effect of preventing or impeding communication with these Officers.

4.

I will consider any warrant and will take advice on it from senior officials. As well as satisfying myself as to the formal validity of the warrant, I will consider the precision with which it specifies the material being sought, its relevance to the charge brought and the possibility that the material might be found elsewhere. I reserve the right to seek the advice of the Attorney General and Solicitor General.

5.

I will require a record to be provided of what has been seized, and I may wish to attach conditions to the police handling of any parliamentary material discovered in a search until such time as any issue of privilege has been resolved.

6.

Any search of a Member’s office or belongings will only proceed in the presence of the Serjeant at Arms, Speaker’s Counsel or their deputies. The Speaker may attach conditions to such a search which require the police to describe to a senior parliamentary official the nature of any material being seized which may relate to a Member’s parliamentary work and may therefore be covered by parliamentary privilege. In the latter case, the police shall be required to sign an undertaking to maintain the confidentiality of that material removed, until such time as any issue of privilege has been resolved.

7.

If the police remove any document or equipment from a Member’s office, they will be required to treat any data relating to individual constituents with the same degree of care as would apply in similar circumstances to removal of information about a client from a lawyer’s office.

8.

The execution of a warrant shall not constitute a waiver of privilege with respect to any parliamentary material which may be removed by the police.

Source: Extract from Mr Speaker’s Protocol on the Execution of a Search Warrant in the Precincts of the House of Commons, 8 December 2008.

The search of Mr Green’s parliamentary office, the seizure of documents and electronic material from both that office and his homes and constituency office,

78 Sally Lipscombe and Alexander Horne and the publication of the Speaker’s Protocol raised a number of questions relating to parliamentary privilege. The first of these is the extent, if at all, to which PACE applies to searches of the Parliamentary Estate, in the absence of any express provision or necessary implication. Lord Phillips in Chaytor made a number of obiter comments regarding the application of PACE to Parliament. He said that the House of Commons did not assert an exclusive jurisdiction to deal with criminal conduct, and in appropriate cases it would invite the police to intervene with a view to prosecution in the criminal courts. The police would need to investigate the facts and obtain evidence before a prosecution could take place, using their statutory powers of investigation as set out in PACE. However, he considered that criminal proceedings were unlikely to be possible without the cooperation of Parliament: I am not aware that any court has had to consider the extent to which, if at all, the provisions of this Act apply within the Palace of Westminster. What occurs is that Parliament permits the police to carry out their investigations within the precincts.46

As Professor Bradley has commented, ‘This statement is certainly not a holding by the Supreme Court that PACE applies to Westminster in all respects and without qualification’.47 The interaction between PACE and the Speaker’s Protocol is clear only so long as the Speaker agrees to the execution of any search warrant presented to him by the police. What would the position be if he refused to agree, for example if he considered that the warrant was insufficiently precise as to the material being sought or that the material might be found elsewhere? The Campbell Committee considered this scenario: When we invited Speaker’s Counsel to speculate on what might happen if the Speaker declined to permit execution of the warrant, he replied “Then you might have an undignified scuffle at the door”; he thought that the police would either exercise reasonable force, or go away and consider bringing charges of obstruction against those who had refused the officers entry to the premises specified in the warrant.48

The Metropolitan Police Service (MPS) welcomed the introduction of the Speaker’s Protocol as a framework for the execution of search warrants in the precincts of the House of Commons. However, it commented that the Protocol was ‘unilateral … and therefore has no binding effect on the MPS or its operations’; it would prefer, where possible, to be party to a negotiated bilateral agreement. It considered that paragraph six of the Speaker’s Protocol sought to ‘take on powers that are normally reserved to the court granting the warrant such as whether information is relevant to a charge or offence and whether material might be found elsewhere’. It submitted that such decisions were not a ‘proper function’ of

46 47 48

R v Chaytor and others (n 3) 83. Bradley, ‘The Damian Green Affair’ (n 41). Campbell Report (n 39) para 147 (footnotes omitted).

Parliamentary Privilege 79 the Speaker as these matters would already have been judicially determined when the warrant was granted.49 The second question raised by the Green case is the interplay between Parliament and the courts when determining whether material sought as part of a police search is subject to parliamentary privilege. Shortly after Mr Green’s arrest, the Clerk of the House warned police that the material seized during their search of his Westminster office might include material subject to parliamentary privilege. A preliminary sift was conducted some weeks later by the Speaker’s Assistant Counsel and the Clerk of the Journals in the presence of Kingsley Napley, Mr Green’s solicitors. They identified some 20 documents closely related to parliamentary proceedings, including written answers, the texts of parliamentary questions and an extract from Hansard. Damian Green described the sift as ‘pretty unsatisfactory’ and objected to decisions on privilege being made by officers of the House without any express authority to do so from the House itself.50 He therefore wrote to the Speaker requesting that the matter be referred to the Standards and Privileges Committee so that the House (as opposed to House officials) could reach a definitive view on which items attracted privilege.51 This request was refused, principally on the grounds that any investigation by the Committee might prejudice the ongoing criminal investigation into Mr Green and Mr Galley.52 Providing a legal opinion to Mr Green’s solicitors, Professor Bradley took the view that this sequence of events failed to provide ‘an authoritative and appropriate manner of dealing with Mr Green’s request that the issues of principle be now referred to the Committee of Standards and Privileges’. He considered that the action taken by House officials could not be regarded as an adequate substitute for a decision made on the authority of the House, and that it was impossible to identify the test of ‘proceedings in Parliament’ that had been applied by officials when identifying which of the seized documents attracted parliamentary privilege: in particular, it appeared to take no account of material that originated outside Parliament but was then used in parliamentary proceedings or in connection with Mr Green’s parliamentary work.53 Officials explained the approach that they had taken to the issue of privilege to the Campbell Committee, indicating that they had considered whether material was ‘closely connected with proceedings in Parliament’ rather than simply something which was taken from the office of a

49 Campbell Report (n 39) Ev 159 (Observations on the Speaker’s Protocol made on behalf of the Metropolitan Police Service). 50 Campbell Report (n 39) para 130. 51 Campbell Report (n 39) Ev 138 (Letter from Damian Green MP to the Speaker of the House of Commons). 52 Campbell Report (n 39) Ev 138–39 (Letter from the Speaker of the House of Commons to Damian Green MP). 53 Campbell Report (n 39) Ev 134–38 (Advice in the matter of Mr Damian Green MP and the Metropolitan Police).

80 Sally Lipscombe and Alexander Horne Member. They added that they had provided advice, not a definitive decision on the issue of privilege.54 In her role as legal adviser to Parliament, the then Attorney-General Baroness Scotland QC set out her views on responsibility for determining issues of privilege in evidence to the Campbell Committee. She considered that if the House were to instruct the Committee on Standards and Privileges to examine the evidence in any particular case to determine what (if anything) was covered by privilege, any decision made by the Committee—or indeed any resolution of the House agreeing with the Committee’s determination—would not be binding on the courts. It was for the court alone to decide whether particular material was privileged under Article 9, as had been made clear by Bradlaugh v Gossett.55 To hold otherwise would amount to allowing one House of Parliament to effectively amend statute law.56 In the absence of criminal charges in Mr Green’s case, there was ultimately no opportunity for a legal decision as to whether material taken from his office was protected by parliamentary privilege. There have been calls from various quarters—including Members, the police and former House officials—for better developed conventions on police searches on the Parliamentary Estate that might involve material protected by parliamentary privilege. For example, in evidence to the Campbell Committee former Clerk of the House William McKay said that it ‘might not be a bad flag’ to amend section 8 of PACE to explicitly provide that search warrants should not be issued if the materials sought included items subject to parliamentary privilege.57 Roger Gale, Member for North Thanet, and John Hemming, Member for Birmingham Yardley, submitted that constituency correspondence ought to be afforded a form of professional privilege (akin to the professional privilege afforded to solicitors’ files and doctors’ notes) to protect such material from police search and seizure.58 The Campbell Committee, however, cautioned against legislating in haste: ‘Before setting out to define and limit parliamentary privilege in statute, there needs to be a comprehensive review of how that privilege affects the work and responsibilities of an MP in the twenty-first century’.59

54 Campbell Report (n 39) Ev 43 (Evidence from Dr Malcolm Jack, Ms Jacqy Sharpe, Mr Michael Carpenter and Ms Veronica Daly, 9 November 2009). 55 (1884) 12 QBD 271. 56 Campbell Report (n 39) Ev 131 (Memorandum submitted by the Attorney-General). 57 Campbell Report (n 39) Ev 69. Section 8 currently includes a provision that search warrants should not be issued in respect of material that ‘consists of or includes items subject to legal privilege’. Section 10 of PACE restricts the meaning of ‘items subject to legal privilege’ to items subject to what is commonly known as legal professional privilege: namely certain communications between a professional legal adviser and his client (or any person representing his client). Neither s 8 nor s 10 currently includes any specific reference to parliamentary privilege. 58 Campbell Report (n 39) paras 158–60. 59 Campbell Report (n 39) para 169.

Parliamentary Privilege 81 B. The Case of Members’ Expenses In May 2009, a major political scandal erupted after The Daily Telegraph began publishing extensive details of how Members of Parliament had used and—in some cases—abused the parliamentary expenses system that had been designed to support them in the exercise of their parliamentary duties. Stories of Members ‘flipping’ properties between constituency and second home status in order to maximise expense claims caused huge public anger, as did reports of claims for items ranging from moat-cleaning and helipad repairs to toilet seats and trouser presses.60 A number of Members announced their intention to stand down at the next general election. The police began criminal investigations into a number of Members implicated in the scandal to determine whether they might be subject to charges of fraud or theft. In February 2010, three Members of Parliament—David Chaytor, Elliot Morley and Jim Devine—and one Member of the House of Lords—Lord Hanningfield— were charged with false accounting contrary to the Theft Act 1968. The charges were based on allegations that the four had submitted fraudulent claims for parliamentary expenses that they had not in fact incurred. At a preparatory hearing in the Crown Court the four defendants argued that criminal proceedings could not be brought against them as this would infringe parliamentary privilege. Their argument had two main strands. First, that the submission of parliamentary expenses claims constituted ‘proceedings in Parliament’ for the purpose of Article 9 of the Bill of Rights and should not therefore be impeached or questioned by the Crown Court. Secondly, that the matter fell within the exclusive cognisance of Parliament and should therefore be resolved by each House without judicial interference. Their arguments were rejected by Saunders J in Southwark Crown Court and then by the Court of Appeal (Criminal Division), where Lord Judge CJ sat with Lord Neuberger MR and Sir Anthony May, President of the Queen’s Bench Division. Chaytor, Morley and Devine (by now ex-Members of Parliament, each having been barred by the Labour Party from standing as Labour candidates at the 2010 general election) sought and were granted permission to appeal to the Supreme Court. Lord Hanningfield sought and was granted permission to intervene. On 10 November 2010, the Supreme Court dismissed the appeals, unanimously rejecting the argument that parliamentary privilege prevented the men from being tried in the Crown Court. Lord Phillips, giving the lead judgment, addressed the Article 9 argument first. Having considered the previous case law, he held that ‘the principal matter to which article 9 is directed is freedom of speech and debate’ in Parliament

60 For further background, see chs 4 and 6 on Members’ Conduct and Freedom of Information respectively.

82 Sally Lipscombe and Alexander Horne and parliamentary committees, as this is where the ‘core or essential’ business of Parliament takes place.61 When deciding whether any particular action outside Parliament and its committees falls within parliamentary proceedings because of its connection to them, one must consider the nature of that connection and whether excluding such action from privilege is likely to have an adverse impact on the core or essential business of Parliament. He went on to undertake this exercise in respect of the submission of expenses claims: If this approach is adopted, the submission of claim forms for allowances and expenses does not qualify for the protection of privilege. Scrutiny of claims by the courts will have no adverse impact on the core or essential business of Parliament, it will not inhibit debate or freedom of speech. Indeed it will not inhibit any of the varied activities in which Members of Parliament indulge that bear in one way or another on their parliamentary duties. The only thing that it will inhibit is the making of dishonest claims.62

He also examined the views of Parliament on the ambit of Article 9, as expressed in committee reports, statements and communications by officials. He came to the conclusion that none of these views lent support to the suggestion that the submission of expenses claims constituted proceedings in Parliament for the purposes of Article 9: On the contrary, they all suggest, either expressly or by implication, that the submission of such claims falls outside the protection of that article. The recovery of allowances and expenses to defray the costs involved in attending Parliament, or travelling on Parliamentary business, has no closer nexus with proceedings in Parliament than incurring those expenses.63

Furthermore, there were ‘good reasons of policy’ for giving a narrow construction to Article 9, given the power of the privilege that it guaranteed and the fact it provided Members with absolute protection from civil or criminal proceedings.64 He was therefore satisfied that the lower courts had been right to reject the defendants’ arguments based on Article 9. Turning to the exclusive cognisance argument, Lord Phillips began by stressing that exclusive cognisance could be waived or relinquished by Parliament (unlike the ‘absolute’ statutory privilege granted by Article 9). For example, in 1980 Parliament had agreed to a resolution that permitted reference to be made in court to certain parliamentary papers which until then had been subject to a claim of exclusive cognisance. It was also open to Parliament to legislate to provide for the courts to assume jurisdiction over matters that previously fell within Parliament’s exclusive cognisance, as it had done with (for example) the Parliamentary Oaths Act 1866, the Perjury Act 1911 and the Defamation Act 1996.

61 62 63 64

R v Chaytor and others (n 3) [47]. Ibid [48]. Ibid [59]. Ibid [61].

Parliamentary Privilege 83 Extensive inroads had therefore been made into areas that previously fell within the exclusive cognisance of Parliament. He referred to the 1999 report by the Joint Committee on Parliamentary Privilege, which had considered the issue of where the dividing line should fall between matters falling within the scope of exclusive cognisance and those falling outside it. This had come to the conclusion that the implementation of the management or administrative functions of either House were ‘only exceptionally subject to privilege’. The Joint Committee considered that examples of management or administrative functions that might be subject to privilege included ‘the Speaker’s decision on which facilities within the precincts of the House should be available to members who refuse to take the oath or affirmation of allegiance’, or ‘steps taken by the library of either House to keep members informed upon matters of significant political interest’. Examples of management functions that might not be subject to privilege included ‘the activities of the House of Commons Commission’ and ‘the management and administration of the House departments’. However, it acknowledged that the boundary was unclear: Occasionally management in both Houses may deal with matters directly related to proceedings which come within the scope of article 9. For example, the members’ pension fund of the House of Commons is regulated partly by resolutions of the House. So too are members’ salaries and the appointment of additional members of the House of Commons Commission under section 1(2)(d) of the House of Commons (Administration) Act. These resolutions and orders are proceedings in Parliament, but their implementation is not.65

Lord Phillips considered this distinction—between decisions of parliamentary committees relating to administrative matters, which were within the scope of exclusive cognisance, and the implementation of these decisions, which were not—to be correct. Turning to the criminal law, Lord Phillips acknowledged that where a criminal offence was committed within the House of Commons this could potentially also constitute a contempt of Parliament. He considered, however, that the jurisdictions of the courts and Parliament were ‘overlapping’ rather than mutually exclusive: if a criminal prosecution was brought, Parliament would suspend any contempt proceedings, while if contempt proceedings were brought, the Crown Prosecution Service might decide it was not in the public interest to launch criminal proceedings as well. The House did not therefore assert exclusive jurisdiction over criminal conduct, even where it related to or interfered with proceedings in committee or in the House. In appropriate cases it would invite the police to intervene with a view to prosecution in the courts and would cooperate with the police during any investigation.

65

Joint Committee on Parliamentary Privilege, Report (1998–99, HL 43-I, HC 214) paras 247–48.

84 Sally Lipscombe and Alexander Horne In the case of the three defendants, Lord Phillips considered that the House could be deemed to have waived any exclusive jurisdiction it had over the matter by the fact it had referred the cases to the police: The House has asserted a disciplinary jurisdiction over claims that have been made for allowances and expenses and, to that end, the Members Estimate Committee set up a review of such claims under Sir Thomas Legg. The House has not, however, asserted exclusive cognisance, or jurisdiction, in respect of such claims. On the contrary, on 20 July 2009 the Committee excluded from the claims referred to Sir Thomas any that were under investigation by the police.66

However, given the administrative nature of the matter involved (ie the implementation of the expenses scheme), Lord Phillips considered that the court would not have been prevented from considering the defendants’ cases even if the House had declined to cooperate with the criminal investigation. This was because examination of the manner in which the expenses scheme had been implemented was not a matter within the exclusive cognisance of Parliament. There was therefore no bar in principle to the Crown Court considering whether claims made by Members under the scheme were fraudulent.67 The defendants’ argument based on exclusive cognisance was therefore also dismissed. Fallout from the expenses scandal continues, with two recent cases again demonstrating the relationship between the disciplinary powers of Parliament and the jurisdiction of the criminal courts. In November 2012 Margaret Moran, the former Member for Luton South who was barred by the Labour Party from standing at the 2010 general election, was found to have committed 15 counts of false accounting and six counts of using a false instrument over her claims for parliamentary expenses.68 At the time of writing it was reported that Mrs Moran had been sentenced to a two-year ‘supervision and treatment order’ after a judge had ruled that she was unfit to stand trial for mental health reasons (and so could not receive a criminal conviction).69 Her case had been under consideration by the Commons Committee on Standards and Privileges, but it had suspended its investigation in 2010 ‘to allow time for the question of possible criminal proceedings to be resolved’.70 On 2 November 2012, Denis MacShane announced that he would be standing down as Member for Rotherham. As had been the case with Ms Moran, Mr MacShane’s expenses submissions had been under consideration by the

66

R v Chaytor and others (n 3) [91]. R v Chaytor and others (n 3) [92]. 68 Mrs Moran had been found unfit to plead under the Criminal Procedure (Insanity) Act 1964, which prevented the jury at Southwark Crown Court from returning a guilty verdict. It had instead reached the alternative verdict available to it under s 4A of the 1964 Act by finding that Mrs Moran had ‘done the acts charged against her’. 69 BBC Online, ‘Fraud MP Moran Given Supervision Order’ (London, 14 December 2012) http:// www.bbc.co.uk/news/uk-england-beds-bucks-herts-20725315. 70 House of Commons Committee on Standards and Privileges, Mrs Margaret Moran: Second Special Report (HC 2010–2011, 579) para 2. 67

Parliamentary Privilege 85 Commons Committee on Standards and Privileges, which suspended its investigation in October 2010 in order to allow the Metropolitan Police to conduct a criminal investigation. In July 2012, the police confirmed that they would not be taking any further action against Mr MacShane, and the Committee resumed its investigation. It ultimately reached the conclusion that Mr MacShane had knowingly submitted ‘nineteen false invoices over a period of four financial years which were plainly intended to deceive the parliamentary expenses authorities’.71 The Committee described the matter as ‘the gravest case which has come to us for adjudication, rather than being dealt with under the criminal law’,72 and went on to recommend that Mr MacShane be suspended from the House for 12 months.73 At the time of writing, it appeared that the Metropolitan Police would reopen their criminal investigation into Mr MacShane’s expenses, partly on the basis of the content of the Committee’s report. This has led to renewed debate on the relationship between parliamentary privilege and the submission of expenses claims, in this case relating to the evidence that might be used to support a prosecution. During a debate on the Committee’s report into Mr MacShane, the Committee’s chair Kevin Barron said that the police would be able to use new material in the report to ‘guide their investigations’. However, he stressed that some of the material in the report—specifically letters from Mr MacShane to the Commissioner for Parliamentary Standards that had been reproduced in the Committee’s report— remained subject to privilege: Receipts, invoices and claims are not privileged, and do not become so simply because they are reproduced in a parliamentary report. It is true that the correspondence between the commissioner and those he investigates could not be used in court proceedings without impeaching and questioning proceedings in Parliament It is our view that that would be a breach of article 9 of the Bill of Rights.74

As the Parliamentary Standards Commissioner had suspended his inquiry to allow the Metropolitan Police to investigate possible criminal conduct, and had resumed his inquiry only after the police had decided not to pursue the matter, it could arguably be unfair and even an abuse of process for the police to adduce as evidence in court what Mr MacShane had admitted to the Parliamentary Commissioner. In Hamilton v Al Fayed, Lord Browne-Wikinson, in delivering the judgment of the House of Lords, stated that the Court of Appeal had clearly been correct to conclude that the proceedings before the Parliamentary Standards Commissioner, his report and its acceptance by the Committee on Standards and Privileges were all ‘parliamentary proceedings’ and therefore any attempt to

71 House of Commons Committee on Standards and Privileges, Mr Denis MacShane: Second Special Report (HC 2012–13, 635) para 62. 72 Ibid, para 57. 73 Mr MacShane’s subsequent resignation rendered this recommendation largely academic. 74 HC Deb 6 November 2012, col 756.

86 Sally Lipscombe and Alexander Horne investigate or challenge any of the procedures adopted constituted a breach of parliamentary privilege.75

IV. REFLECTIONS

As this chapter has made apparent, while the case of Chaytor has clarified the view that the courts take of parliamentary privilege, many questions remain unanswered. One issue that has arisen in the most recent cases is the extent to which Parliament will now defer to the courts in relation to the scope and degree that its historic immunities are still applicable in the modern age. While reference is sometimes still made to ‘the High Court of Parliament’, this terminology now seems rather quaint and antiquated, particularly given the potential restrictions placed on Parliament’s ability to self-regulate and punish contempt, described above (and the fact that the one context in which Parliament did sit routinely as a court has now been eliminated with the establishment of the Supreme Court). Other important issues remain unaddressed. These include: who is authorised to speak for the House when privilege is challenged (the Speaker, the Clerk, the Standards and Privileges Committee?); what immunities should Members of Parliament legitimately expect (eg protection of their correspondence or protection of information and documents given to them in confidence in their capacity as Members of Parliament, such as can be seen in the German Bundestag?).76 Former Member (and legal academic), David Howarth, has contended, in relation to the Chaytor case, that there had been an incursion by the Court into the scope of Parliament’s exclusive jurisdiction with its finding that pay and expenses were not within the exclusive cognisance of the House.77 In support of its view, the Supreme Court had made reference to the absence of a view from Parliament itself that the expenses system was within its exclusive jurisdiction.78 In Mr Howarth’s opinion, this exploited Parliament’s lack of political capital in the face of the widespread anger the case generated to make a grab for jurisdictional territory. He argued that: ‘a constitutionally literate Crown team79 would have referred the matter to the House for a decision’. This would not necessarily have got the Members off the hook, but Parliament could have (explicitly) formed the view that this was a matter that ought to have been dealt with through the criminal courts.80

75

Hamilton v Al Fayed [2000] UKHL 18. See, eg, the summary of observations made by David Howarth, Anthony Bradley QC and Nigel Plemming QC at a joint seminar held by the Study of Parliament Group and the UK Constitutional Law Group on 12 October 2011 www.studyofparliament.org.uk/privilege.htm. 77 Ibid. 78 See, eg, R v Chaytor and others (n 3) [58]–[59]. 79 By which he was presumably referring to the Crown Prosecution Service and Attorney-General. 80 See the abovementioned summary of observations made by David Howarth, Anthony Bradley QC and Nigel Plemming QC (n 76). 76

Parliamentary Privilege 87 In spite of these concerns, as the furore around the Members’ expenses case finally begins to die down, it seems unlikely at this stage that we will see any considered reform or attempts to resolve these difficult conundrums, notwithstanding the establishment of a new joint committee to consider the Government’s recently published Green Paper and draft clauses.81 The Green Paper is no doubt correct to say that the ‘connotation of the word “privilege” is unfortunate in its suggestion of special treatment for Members of Parliament’.82 That association was probably reinforced by the case of Chaytor. Nonetheless, there is a sense that of the two case studies described above, it was the case of Chaytor (which may have given the impression of miscreants seeking to avoid justice) that has been the catalyst for government action while the issues raised in the Damian Green case seem to have been relegated in comparison. The Green Paper itself admits that the Government does ‘not believe the case has yet been made for a comprehensive codification of privilege in a Parliamentary Privilege Act’.83 In that context, it will be important that the discussions that do occur are not completely dominated by the issue of the expenses scandal, and that any response does not become a knee-jerk reaction to it.

81 82 83

Parliamentary Privilege (n 30). Ibid, para 16. Ibid, para 37.

4 The Law and the Conduct of Members of Parliament RICHARD KELLY* AND MATTHEW HAMLYN**

The House of Commons lays claim to a number of ‘ancient and undoubted rights and privileges’, the most important of which is freedom of speech. Parliamentary privilege is a complex matter … but the rights and privileges of Parliament are acknowledged by the courts. Among the other privileges claimed is the ‘exclusive cognisance of proceedings’, that is the right to regulate its own proceedings or operation. This means that the House of Commons has the right to regulate the conduct of its Members, including the right to punish MPs who are found to have breached parliamentary privilege or been found in contempt of the House. Such punishment may range from an admonition, through suspension from service of the House (with or without pay), to expulsion in the most serious cases.1

I. INTRODUCTION

P

ARLIAMENT AND ITS Members have long cherished and protected their right to regulate their own conduct, in line with the principle of exclusive cognisance: ‘Parliament must have sole control over all aspects of its own affairs: to determine for itself what the procedures shall be, whether there has been a breach of its procedures and what then should happen’.2 The law therefore has played little part in the regulation of Members’ conduct. Criticism of self-regulation has seen it tempered on some occasions over the years, but those occasions have tended to show that recourse to statutory control of Members’ conduct has been an infrequent consequence of crises of confidence in self-regulation.

* Richard Kelly is a Senior Researcher at the Parliament and Constitution Centre in the House of Commons Library. ** Matthew Hamlyn is Head of the Office of the Chief Executive and secretary of the Management Board of the House of Commons. 1 M Rush, ‘The Law Relating to Members’ Conduct’ in D Oliver and G Drewry (eds), The Law and Parliament (London, Butterworths, 1998) 105. 2 Joint Committee on Parliamentary Privilege, Report (1998–99, HL 43–1, HC 214-I) para 37.

90 Richard Kelly and Matthew Hamlyn The passage of the Parliamentary Standards Act 2009 appeared to mark something of a watershed in the move from self-regulation to external regulation. Under the Act members of the House of Commons ceded the regulation of their expenses (and subsequently the determination of their salaries and pensions) to an independent statutory body, the Independent Parliamentary Standards Authority or IPSA, and a specific offence was created of ‘providing false or misleading information for allowance claims’.3 The circumstances leading to the establishment of IPSA are covered in more detail below. The establishment of IPSA was not, however, the first time that Members had relinquished or reduced the extent of self-regulation over their own affairs and put that regulation on a statutory footing. In 1868, the Parliamentary Elections Act replaced the existing parliamentary procedure for dealing with contested elections with a system in which judges tried such cases.4 But in common with other such occasions, this too was the result of a specific crisis and was the subject of criticism from a minority of Members that the Commons was abdicating its ancient rights. Previous responses to concerns in the 1990s (discussed below) about the inability of Members to regulate themselves had led to more formalised but still non-statutory procedures and the appointment of an independent (but nonstatutory) Parliamentary Commissioner for Standards in the House of Commons. The Commissioner is appointed by the House, investigates complaints about Members’ conduct and reports his or her findings to the Committee on Standards and Privileges (the Committee on Standards from 7 January 2013),5 but the Committee, not the Commissioner, makes recommendations to the House about punishments; and the House, not the courts, takes the final decision. The Committee on Standards in Public Life (CSPL) was established in 1994 under the chairmanship of a senior judge, Lord Nolan. It was established as an independent committee by the then Prime Minister, John Major, initially to deal with concerns about unethical conduct amongst MPs, including accepting financial incentives for tabling parliamentary questions (the ‘cash for questions’ affair), and issues over procedures for appointment to public bodies. In response to its first report of 1995,6 the House of Commons appointed a Select Committee on Standards in Public Life to consider the implications of the report for the House, which in turn published two reports. In July 1995 the House approved the creation of a Code of Conduct for Members and in November of the same year appointed an independent officer the Parliamentary Commissioner for Standards (PCS), to investigate allegations that Members have breached the Code of Conduct (see section IV below).

3

Parliamentary Standards Act 2009, s 10. Parliamentary Elections Act 1868. Similar provisions to those it introduced were used in 2010, when Phil Woolas was found guilty of an illegal election practice under the Representation of the People Act 1983 and his seat was declared vacant. See below for further consideration of this case. 5 See the section on lay members of the Committee on Standards in ch 7. 6 Committee on Standards in Public Life, Standards in Public Life (Cm 2850-I, 1995). 4

The Law and Conduct of MPs 91 Commons privileges extend to freedom from arrest in civil matters.7 Erskine May recites the history of the privilege,8 and later provides this brief summary: The principle upon which the privilege of freedom from arrest is based is the absolute priority of the attendance by Members of both Houses. However, it has never been allowed to interfere with the administration of criminal justice or emergency legislation.9

As discussed in the preceding chapter, this privilege has never been held to extend to criminal matters, as was clearly shown by the successful prosecution under the Theft Act 1968 of a number of Members (in both Houses) over fraudulent expense claims following the expenses scandal of 2009 (see section VII for further consideration of this case). Unlike MPs, members of the House of Lords have retained control over all of their House’s internal affairs. The House of Lords Act 1999 provides for 92 hereditary peers to sit in the House of Lords (90 elected by the House and two hereditary office-holders). In accordance with the Act, the Standing Orders of the House of Lords provide for by-elections to replace any hereditary peer who dies.10 Any person succeeding to or claiming a peerage must apply to the Lord Chancellor for inclusion in the Roll of the Peerage; if they also wish to appear in the register of hereditary peers wishing to stand in by-elections to the House of Lords, the application is formally made by petitioning the House of Lords, and it could be referred to its Committee for Privileges and Conduct.11 The House of Lords inserted a provision into the Parliamentary Standards Bill 2008–09 that ensured that ‘Nothing in this Act shall affect the House of Lords’.12 In 2009, after allegations were made that four members of the House of Lords had been prepared to accept fees to propose amendments to Bills, the Lords Privileges Committee resisted the advice of the then Attorney-General that the Lords had no power to suspend its members, in favour of advice from a former Lord Chancellor, Lord Mackay of Clashfern, that the House did possess such a power.13 The House of Lords agreed with the Committee’s conclusions on 20 May 2009, and subsequently used the powers to suspend members who had breached the code (see section VIII below).14 The Lords has followed the Commons in appointing a Commissioner for Standards, responsible for the independent and impartial investigation of alleged

7

See discussion in ch 1. Erskine May’s Parliamentary Practice, 24th edn (London, Butterworths, 2011) 209–15. 9 Ibid 243. 10 House of Lords Act 1999, s 2(2), (4); House of Lords, The Standing Orders of the House of Lords Relating to Public Business (HL 2012–13, 105) Standing Order No 10. 11 Erskine May (n 8) 182–83. 12 Parliamentary Standards Act 2009, s 2(1). The amendment was moved by the Leader of the House of Lords, Baroness Royall of Blaisdon, at report stage, HL Deb 20 July 2009, cols 1415–17; see also debate at Committee Stage, HL Deb 14 July 2009, cols 1046–61. 13 House of Lords Privileges Committee, The Powers of the House in Respect of its Members (HL 2008–09, 87). 14 HL Deb 20 May 2009, cols 1394–1418. 8

92 Richard Kelly and Matthew Hamlyn breaches of the House of Lords Code of Conduct. The first Commissioner, Paul Kernaghan, took up his appointment in 2010. The Parliamentary Commissioner for Standards (in the Commons) and the House of Lords Commissioner for Standards are both officers of their respective Houses. Both positions are non-statutory; they are appointed by resolution of the respective Houses of Parliament.

II. ELECTORAL MATTERS

A. The Background: Determination of Election Disputes by the House of Commons Until 1770, disputed elections were determined on the floor of the House of Commons, in accordance with party strengths.15 In 1770, a Bill was introduced by George Grenville to confine the determination of contested elections to a committee. He proposed that 25 Members’ names should be chosen by lot, with both petitioner and respondent able to strike off six names, leaving a committee of 13 to try the petition. His Bill passed and, in 1774, this arrangement was made permanent.16 Erskine May notes that: The enterprise was not wholly successful and in 1839 a further statute established a new system, on different principles, increasing the responsibility of individual Members, and leaving little to the workings of chance. These principles subsisted in general until 1868, when the jurisdiction of the House in controverted elections was passed by law to the courts.17

B. Transfer of Jurisdiction over Election Disputes to the Courts Now, by section 123 of the Representation of the People Act 1983 (RPA 1983), the trial of controverted elections is entrusted to judges (selected from the judiciary in the appropriate part of the United Kingdom). A recent review by the Electoral Commission noted that ‘The law dates from 1868, for its wording is almost an exact copy of the relevant provisions of the Parliamentary Elections Act 1868’.18 Erskine May states that ‘This in no way supersedes the jurisdiction of the House, in determining questions affecting the seats of its own Members, not arising out of controverted elections’.19 15

Erskine May (n 8) 29 fn. C O’Leary, The Elimination of Corrupt Practices in British Elections 1868–1911 (London, Oxford University Press, 1962) 12. 17 Erskine May (n 8) 29 fn. 18 Electoral Commission, Challenging Elections in the UK (2012) 2, citing Prof Bob Watt, UK Election Law: A Critical Examination (London, Glass House Press, 2006). 19 Erskine May (n 8) 30. 16

The Law and Conduct of MPs 93 Cornelius O’Leary has reviewed the background to the introduction of the legislation in 1868. He notes the extent of electoral fraud in the 1865 election: The Times reported that ‘The testimony is unanimous that in the General Election of 1865 there was more profuse and corrupt expenditure than was ever known before’. Fifty petitions were lodged, 35 came up for trial, 13 Members were unseated, and four of the successful cases led to Royal Commissions.20 The Committee on the 1866 Reform Bill was given an instruction that ‘they have power to make provision for the better prevention of bribery and corruption at Elections’.21 However, the Government fell in the same year and no progress was made on the Bill. Under the new Conservative Government a Bill was introduced in 1867 containing provisions for tribunals consisting of eminent lawyers to hear petitions relating to controverted elections. The Bill was referred to a select committee, which recommended judicial hearings. However, the Bill was withdrawn. In 1868, new legislation was introduced by Prime Minister Disraeli. During its passage some Members raised concerns about the loss of the House’s rights. O’Leary reports that Disraeli faced a backbench revolt of ‘modest proportions’, comprising ‘backbenchers who objected in principle to the Commons abdicating their rights and allowing an outside body to “brand with infamy” their members’.22 In the debate, Alexander Mitchell, Member for Berwick upon Tweed, argued that he ‘was convinced that the retention by the House of its own jurisdiction and the right of determining who were its Members was essential to its dignity and independence’.23 Despite this opposition the legislation was enacted as the Parliamentary Elections Act 1868. i. Criminal Offences in Election Campaigns In 1999, Fiona Jones was convicted in a criminal court of election expenses fraud during the 1997 General Election. Her conviction was overturned on appeal, and it was subsequently ruled that she could resume her seat, which had remained vacant. Following that case, the Political Parties, Elections and Referendums Act 2000 amended the RPA 1983 so that if an MP is found guilty of electoral offences through a criminal prosecution (ie not as a result of an electoral petition) there is a three-month suspension before the seat is vacated to allow for an appeal.24 ii. Election Court: The Phil Woolas case In a more recent case, Phil Woolas was returned as the Member for Oldham East and Saddleworth at the 2010 General Election. However, his Liberal Democrat

20

O’Leary, The Elimination of Corrupt Practices in British Elections 1868–1911 (n 16) 28. Ibid 31–32; HC Deb 28 May 1868, cols 1320–47. 22 Ibid 32–40; HC Deb 16 March 1868, cols 296–321. 23 HC Deb 16 March 1868, col 296. 24 For further background, see House of Commons Library Standard Note, Election Petition: Oldham East and Saddleworth, SN/PC/5751, December 2010. 21

94 Richard Kelly and Matthew Hamlyn opponent, Elwyn Watkins, presented an election petition alleging that Mr Woolas had made a number of false statements about him in election pamphlets. In accordance with section 123 of the RPA 1983, the case was held before an Election Court consisting of two judges, Mr Justice Teare and Mr Justice Griffith Williams. They handed down a joint judgment of the court and found Mr Woolas guilty of some of the allegations; their judgment was given on 5 November 2010.25 Amongst other things, they considered the burden and standard of proof to be applied. They held that the petitioner has the burden of proving the respondent is guilty of the alleged illegal practice and that, although these proceedings are civil in their nature, the standard of proof is not on the balance of probabilities but is the criminal law standard of proof beyond reasonable doubt.26

They concluded that Mr Woolas had made ‘statements of fact in relation to the personal character or conduct of the Petitioner which he had no reasonable grounds for believing were true and did not believe were true’. Accordingly, they ruled that his election was void pursuant to section 159 of the RPA 1983 because Mr Woolas was personally guilty of an illegal practice. On 8 November 2010, the Speaker informed the House of Commons of the court’s decision. The Speaker confirmed that ‘In accordance with section 160(4) of Act, Mr Phil Woolas has been reported personally guilty of an illegal practice and must vacate his seat from the date of the report, 5 November 2010’.27 The changes to the RPA 1983, following the Fiona Jones case, introduced a three-month suspension before the seat is vacated to allow for an appeal, following a criminal conviction. But it was not clear whether the decision of an Election Court hearing a parliamentary election petition could be subject to judicial review. Mr Woolas’s first application for a judicial review was rejected by a single judge at the High Court on 8 November 2010: Judge Mr Justice Silber said it was ‘not amenable to judicial review because it is a decision of High Court judges sitting in their capacity as High Court judges’. He said it was ‘settled law’ that the decisions of High Court judges sitting in their capacity as High Court judges ‘cannot be subject of applications for judicial review’. But he said Mr Woolas could apply to the Court of Appeal.28

The renewed application for permission for judicial review was held before the High Court on 16–17 November 2010. The Court concluded that it could hear a judicial review because the judges who heard the election petition, although High Court judges, were not sitting in that capacity; and also that ‘it would not be

25

Watkins v Woolas [2010] EWHC 2702 (QB). Ibid [48]. 27 HC Deb 8 November 2010, col 1. 28 BBC Online, ‘Woolas makes fresh effort to overturn ban from politics’ www.bbc.co.uk/news/ uk-politics-11708723 (London, 8 November 2010). 26

The Law and Conduct of MPs 95 right that an error of law could not be corrected by the High Court’.29 They also concluded that Woolas was entitled to have one of the findings made against him set aside but that this did not affect the other two matters which were deemed to be ‘not of a trivial nature’, since they amounted to ‘a serious personal attack on a candidate by saying he condoned violence by extremists and refused to condemn those who advocated violence’.30 Following this judgment and Mr Woolas’s decision not to appeal, the Speaker confirmed that the seat had been vacated since 5 November 2010.31 Although the responsibility for determining contested elections was transferred to the courts long ago, it is worth considering whether the House of Commons would have reached a different conclusion in the Woolas case. There was some sympathy for him among other MPs32 and among some commentators: The Times commented that ‘The suggestion that erroneous campaign statements should be open to juridical interpretation is a thorough danger to the process of free speech’.33 But, after the initial judgment, John Rentoul, chief political commentator of The Independent on Sunday, described the law as ‘a limited and specific law, designed as a fail-safe for extreme cases’.34 Following the judgment, it was suggested that the precedent that had been established meant that future candidates might be more wary about making inaccurate personal allegations against opponents in the knowledge that even if they won the election, their victory could be taken from them.35

III. THE DECLARATION AND REGISTER OF MEMBERS’ INTERESTS

The House of Commons’ formal requirement for Members to register their interests dates from 1974. However, there were conventions before then that Members of both Houses should declare pecuniary interests in debates.36 Later editions of Erskine May explain that ‘So far as voting in the House or a committee is 29 R (Woolas) v The Parliamentary Election Court and others [2010] EWHC 3169 (Admin) [55]–[56]. 30 [2010] EWHC 3169 (Admin) [125]–[126]. 31 HC Deb 6 December 2010, col 1. 32 See, eg, Financial Times, ‘Labour Allies Rally behind Woolas’ (London, 9 November 2010). 33 The Times, ‘The MP Phil Woolas made misleading claims about his political opponent during a general election campaign. That does not mean that this is a matter for the judges’ (London, 6 November 2010). 34 Independent, ‘Lies, Damned Lies and Phil Woolas’ (London, 11 November 2010). 35 BBC Online, ‘Phil Woolas Says Legal Fight has Hit “End of the Road”’ www.bbc.co.uk/news/ukpolitics-11904630 (London, 3 December 2010). 36 In the Commons, there was a rule that ‘no Member who has a direct pecuniary interest in a question shall be allowed to vote upon it: but in order to operate as a disqualification, this interest must be immediate and personal, and not merely of a remote or general character’. The 1971 edition of Erskine May stated that ‘In addition to the arrangements governing the votes of Members with a personal pecuniary interest, there is a convention in both Houses that peers and Members should declare such an interest in debate. This is a custom of comparatively recent origin, being more in the nature of courtesy, or prudent precaution, in case the peer or Member concerned should be suspected

96 Richard Kelly and Matthew Hamlyn concerned, and for this purpose only, the recording of an interest in the Register of Members’ Financial Interests is by itself regarded as sufficient disclosure’.37 In 1974, the House agreed: That, in any debate or proceeding of the House or its committees or transactions or communications which a Member may have with other Members or with Ministers or servants of the Crown, he shall disclose any relevant pecuniary interest or benefit of whatever nature, whether direct or indirect, that he may have had, may have or may be expecting to have.38

And: That every Member of the House of Commons shall furnish to a Registrar of Members’ Interests such particulars of his registrable interests as shall be required, and shall notify to the Registrar any alterations which may occur therein, and the Registrar shall cause these particulars to be entered in a Register of Members’ Interests which shall be available for inspection by the public.39

The House also agreed that a select committee should be appointed to consider arrangements to be made as a result of these decisions.40 The Select Committee on Members’ Interests (Declaration) was appointed on 7 November 1974 and reported to the House on 12 December 1974.41 The Committee identified ‘Nine specific classes of pecuniary interest or other benefit’. It published proposed guidelines for the Registrar and proposed terms of reference for a permanent Select Committee on Members’ Interests to rule on whether particular interests should be registered and for hearing complaints. The Committee also considered the way in which declarations of interests should be made. The report was debated and the House broadly accepted the conclusions and recommendations of the Committee.42 A minority of Members, notably Enoch Powell, never accepted the principle of a register and effective enforcement action was rarely taken.43 The Register of Members’ Interests has remained, although changes have been made to it over time. For instance, in 2009, it became the Register of Members’ Financial Interests, after the House agreed with government proposals to require Members to provide more details on directorships, remunerated employment

of unavowed motives’ (Erskine May, Parliamentary Practice, 18th edn (London, Butterworths, 1971) 398, 402–03). 37 Erskine May (n 8) 83. The Register of Members’ Interests was renamed the Register of Financial Interests from 1 July 2009. 38 HC Deb 22 May 1974, cols 537–38. 39 Ibid, cols 538–43. 40 Ibid, cols 543–44. 41 Select Committee on Members’ Interests (Declaration), Report (HC 1974–75, 102). 42 Erskine May (n 8) 421; HC Deb 12 June 1975, cols 735–804. 43 See O Gay and P Leopold (eds), Conduct Unbecoming (London, Study of Parliament Group/ Politicos, 2004).

The Law and Conduct of MPs 97 and clients.44 In 2008, the House agreed that Members should register details of family members employed through the Staffing Allowance that was at the time administered by the House.45

IV. THE COMMITTEE ON STANDARDS IN PUBLIC LIFE AND A CODE OF CONDUCT FOR MEMBERS OF PARLIAMENT

The questions of how Members’ conduct should be regulated, and by whom, became contentious in the 1990s. ‘Cash for questions’,46 allegations of impropriety, former ministers acquiring private sector jobs after leaving office and the ‘arms to Iraq affair’,47 all ‘contributed to a general atmosphere of what became known as “sleaze”—that corruption and questionable behaviour generally had become increasingly common in British political life’.48 Parliamentary self-regulation was seen to have failed, as the Committee on Members’ Interests could not enforce the parliamentary resolutions on interests. In October 1994, the then Prime Minister, John Major, responded by asking a senior judge, Lord Nolan, to chair the newly created, and independent of Parliament and Government, Committee on Standards in Public Life: To examine current concerns about standards of conduct of all holders of public office, including arrangements relating to financial and commercial activities, and make recommendations as to any changes in present arrangements which might be required to ensure the highest standards of propriety in public life.49

The Committee reported in May 1995 and, in the summary of its report, argued that ‘the general principles of conduct which underpin public life need to be restated’. So accordingly, the Committee identified seven principles of public life: selflessness, integrity, objectivity, accountability, openness, honesty and leadership. It also recommended that all public bodies should draw up codes of conduct incorporating these principles; and that internal systems for maintaining standards should be supported by independent scrutiny. It addressed specific recommendations to Members of Parliament on holding paid outside interests; it set out a draft Code of Conduct for Members; it recommended that the Commons should continue to be responsible for enforcing its own rules but that the House ‘should appoint as Parliamentary Commissioner for Standards, a person of independent standing who will take over responsibility for maintaining the Register of Members’ 44

HC Deb 30 April 2009, cols 1063–132. HC Deb 27 March 2008, cols 382–94. The requirement has continued following the transfer of responsibility for Members’ expenses, including staffing budgets, to IPSA. 46 Committee of Privileges, Complaint Concerning an Article in the ‘Sunday Times’ of 10 July 1994 relating to the Conduct of Members (HC 1994–95, 351). 47 Report of the Inquiry into the Export of Defence Equipment and Dual-Use Goods to Iraq and Related Prosecutions (HC 1995–96, 115). 48 Rush, ‘The Law Relating to Members’ Conduct’ (n 1) 106. 49 HC Deb 25 October 1994, col 757. 45

98 Richard Kelly and Matthew Hamlyn Interests; for advice and guidance to MPs on matters of conduct; for advising on the Code of Conduct and for investigating allegations of misconduct’.50 Erskine May recorded the House’s response to the Nolan Committee: In June 1995, the House appointed a Select Committee on Standards in Public Life ‘to consider the First Report of the Committee on Standards in Public Life so far as it relates to the rules and procedures of the House; to advise on how its recommendations relating thereto might be clarified and implemented; and to recommend specific resolutions for decision by the House. The Select Committee’s two Reports were debated on 19 July and 6 November 1995, respectively, and a number of resolutions were approved to implement recommendations of the Nolan report as subsequently endorsed by the committee.51

The House agreed, among other things, that a Parliamentary Commissioner for Standards should be appointed; to establish a Committee of Standards and Privileges in place of the Committee on Privileges and the Committee on Members’ Interests; and to the drawing up of a Code of Conduct for Members. The Code of Conduct and Guide to the Rules relating to the Conduct of Members were originally published as the third report of the Committee on Standards and Privileges and approved by the House in July 1996.52 The Code of Conduct and Guide to the Rules are regularly reviewed by the Parliamentary Commissioner for Standards. The PCS’s reviews are considered by the Committee on Standards and Privileges. If it then recommends that the Code or Rules should be revised, proposals are brought before the House. If the House agrees, the amended Code and Rules are republished.

A. The Parliamentary Commissioner for Standards The office of Parliamentary Commissioner for Standards was created following the first report of the (Nolan) CSPL in 1995. The first PCS, Sir Gordon Downey, was appointed by the House following an appointment procedure made under arrangements approved by the Speaker on the advice of the House of Commons Commission, as recommended by the Committee.53 His status as a former Comptroller and Auditor General (C&AG) and the designation of the PCS as an Officer of the House assisted the recognition of this new post as a prestigious office. However, unlike the C&AG, the Commissioner’s role is non-statutory. The main responsibilities of the Parliamentary Commissioner for Standards have changed over time. They are set out in Standing Order No 150 of the House of

50

Committee on Standards in Public Life, Standards in Public Life (n 6) ch 2 and Summary. Erskine May’s Parliamentary Practice, 22nd edn (London, Butterworths, 1997) 419. 52 Committee on Standards and Privileges, The Code of Conduct and the Guide to the Rules Relating to the Conduct of Members (HC 1995–96, 604); HC Deb 24 July 1996, cols 392–407. 53 HC Deb 6 November 1995, cols 683–99. 51

The Law and Conduct of MPs 99 Commons (since 7 January 2013, references in the Standing Order to Committee on Standards and Privileges should be read as being to the Committee on Standards): (a) to maintain the Register of Members’ Financial Interests and any other registers of interest established by the House, and to make such arrangements for the compilation, maintenance and accessibility of those registers as are approved by the Committee on Standards and Privileges or an appropriate sub-committee thereof; (b) to provide advice confidentially to Members and other persons or bodies subject to registration on matters relating to the registration of individual interests; (c) to advise the Committee on Standards and Privileges, its sub-committees and individual Members on the interpretation of any code of conduct to which the House has agreed and on questions of propriety; (d) to monitor the operation of such code and registers, and to make recommendations thereon to the Committee on Standards and Privileges or an appropriate sub-committee thereof; and (e) to investigate, if he thinks fit, specific matters which have come to his attention relating to the conduct of Members and to report to the Committee on Standards and Privileges or to an appropriate sub-committee thereof, unless the provisions of paragraph (4) apply.54

A list of the Parliamentary Commissioners for Standards appointed by the House of Commons is given in Table 1. Table 1: Parliamentary Commissioners for Standards House

Period of Office

Date of appointment by the House

Sir Gordon Downey Elizabeth Filkin Sir Philip Mawer John Lyon Kathryn Hudson

15 November 1995 for three years February 1999–14 February 2002 March 2002–31 December 2007 1 January 2008–31 December 2012 1 January 2013–31 December 2017

6 November 199555 17 November 199856 13 February 200257 15 November 200758 12 September 201259

The eighth report from the (Wicks) CSPL commented on the ambiguous nature of the office in terms of its operational independence.60 It recommended

54 House of Commons, Standing Orders of the House of Commons—Public Business 2012 (HC 2012–13, 614) Standing Order No 150(2). 55 HC Deb 6 November 1995, cols 683–99. 56 HC Deb 17 November 1998, cols 808–24. 57 Sir Philip Mawer was originally appointed for three years from March 2002 (HC Deb 13 February 2002, cols 224–69). His appointment was extended to 25 June 2008 (HC Deb 26 June 2003, col 1258). However, on 28 June 2007, the Speaker announced that Sir Philip wished to step down on 31 December 2007 (HC Deb 28 June 2007, col 473). 58 HC Deb 15 November 1998, cols 861–68. 59 HC Deb 9 September 2012, cols 382–87. Details of the appointment process for Kathryn Hudson are set out in House of Common Commission, Parliamentary Commissioner for Standards: Nomination of Candidate (HC 2012–13, 539). 60 Committee on Standards in Public Life, Standards of Conduct in the House of Commons (Cm 5663, 2002).

100 Richard Kelly and Matthew Hamlyn a longer fixed-term, non-renewable term of office for the Commissioner. These recommendations were considered by the Committee on Standards and Privileges and the House of Commons Commission. Their responses to Wicks, while promising greater transparency and clarity about the relationship between the PCS and the Committee, indicated some differences of opinion.61 The parliamentary authorities argued that statute would be necessary to ensure the model of an independent office-holder in the manner described by Wicks.62 The House accepted significant changes to the appointment and dismissal process for the PCS in amendments to Standing Order No 150 on 26 June 2003, at the end of the debate on the Wicks Report and the responses to it from the House of Commons Commission and the Committee on Standards and Privileges. The main changes were: — all future appointments of Commissioners would be for a term of five years, non-renewable; — the term of the current Commissioner would be extended for a five-year period until June 2008; — the Commissioner may only be dismissed following a motion before the House, where the Committee of Standards and Privileges has reported (with reasons) that he cannot carry out his functions or is unfit for the office. — the Standards and Privileges Committee would no longer have a government majority, but would consist of five government and five opposition members, chaired by an opposition spokesman (selection will remain with the whips); — no Parliamentary Private Secretary would be appointed to the Committee; and — the Commissioner would publish an annual report giving details of the budget for the office.63 The Commissioner’s independence is limited by his/her relationship with the Standards and Privileges Committee. He/she makes recommendations, but it is for the Committee to specify the penalty, which the House endorses. The model appears successful, as the disciplinary machinery is still ‘owned’ by the Commons, rather than being entirely external. However, the CSPL report into Members’ allowances in 2009 decided that for public credibility, there should be three lay (non-MPs) added to the parliamentary committee.64 These have now been added,

61 House of Commons Commission, Response to the Eighth Report of the Committee on Standards in Public Life: Standards of Conduct in the House of Commons (HC 2002–03, 422; Committee on Standards and Privileges, Eighth Report of the Committee on Standards in Public Life: ‘Standards of Conduct in the House of Commons’ (HC 2002–03, 403). 62 Committee on Standards and Privileges, Eighth Report of the Committee on Standards in Public Life: ‘Standards of Conduct in the House of Commons’ (n 61) paras 79–82. 63 The position of PPSs on the Committee is dealt with more fully later in this chapter. There were other changes to Standing Order No 149 relating to the investigation process, covered in ch 5. 64 See the section on lay members of the Committee on Standards in ch 7.

The Law and Conduct of MPs 101 following an open recruitment process. The lay members cannot vote, but if they disagree with the conclusions of the Standards Committee, they may add their own comments in the report of the Committee.65

V. PARTY FUNDING AND DONATIONS AND LOANS TO MEMBERS

As noted above, the terms of reference of the CSPL did not originally include party funding generally. In 1997, however, in the wake of the Labour Government’s decision to exempt Formula One from the tobacco sponsorship ban and the receipt of a donation from Formula One by the Labour Party, the new Prime Minister came under pressure to reform the rules on donating funds to political parties and to holders of elected office.66 In November 1997 Tony Blair wrote to the then chair of the CSPL, Lord Nolan, formally inviting the Committee to undertake such a study, adding to the Committee’s existing terms of reference the following: To review issues in relation to the funding of political parties, and to make recommendations as to changes in present arrangements.67

The subsequent CSPL report was published in October 1998. Among other things, the report called for clear rules on public disclosure of donations; a ban on foreign donations; a ban on anonymous donations; limits on campaign expenditure; and the creation of an Election Commission to police political donations.68 The House of Commons debated the report on 9 November 1998.69 The Government welcomed the report and issued a White Paper including a draft Bill in July 1999,70 incorporating most of the CSPL’s recommendations on donations and the creation of the Electoral Commission. The Political Parties, Elections and Referendums Bill was introduced on 21 December 1999. It included provisions that required political parties and certain individuals to register donations with the Electoral Commission that was also provided for in the legislation. The Explanatory Notes to the Bill highlighted the following relating to individual party members: 122. One effect of these provisions is to require that donations made to a holder of an elective office, which are disclosed in a register of members’ interests, will also be subject

65 See House of Commons Library Standard Note, The Code of Conduct for Members—Recent Changes, SN/PC/5127, 22 January 2013. 66 K Ewing, ‘The Disclosure of Political Donations in Britain’ in K Ewing and S Issacharoff (eds), Party Funding and Campaign Financing in International Perspective (Oxford, Hart, 2006) 58–59. 67 Letter from Prime Minister, 12 November 1997, and confirmed in HC Deb 12 November 1997, col 899. 68 Committee on Standards in Public Life, The Funding of Political Parties in the United Kingdom (Cm 4057, 1998). 69 HC Deb 9 November 1998, cols 47–116. 70 Home Office, The Funding of Political Parties in the United Kingdom: the Government’s Proposals for Legislation in Response to the Fifth Report of the Committee on Standards in Public Life (Cm 4413, 1999).

102 Richard Kelly and Matthew Hamlyn to the reporting requirements set out in Schedule 6 [this became Schedule 7 of the act]. This will mean some overlapping of registers of members’ interests and the Electoral Commission’s register of disclosable donations. But the controls on donations to MPs and others will not in any way circumscribe the ability of the House of Commons or the devolved legislatures to regulate the interests and conduct of their members.71

A. Dual Reporting of Interests Following the introduction of rules on the registration of donations they received, Members were initially alarmed at the extent to which benefits had now to be registered with the Electoral Commission, which used different criteria from the Registrar of Members’ Interests. Negotiations began to remedy the discrepancies and to ease the consequent administrative burden. In 2006, the Committee on Standards and Privileges set out the problems that dual reporting caused Members in a report on the Electoral Administration Bill: Simplification of Donation Reporting Requirements: Members of the House are required, in the interests of transparency and accountability, to make public details of certain financial support they (or in some circumstances their constituency associations) receive. The House requires details of sponsorship above certain thresholds to be reported to the Registrar of Members’ Interests for inclusion in the Register of Members’ Interests. Members are also one of the categories of holder of ‘relevant elective office’ for the purposes of the Political Parties, Elections and Referendums Act 2000 (PPERA), and are therefore subject to the separate requirements set out in Schedule 7 of that Act for reporting certain controlled donations (as defined in that Schedule) to the Electoral Commission. While the two sets of reporting requirements have substantial elements in common, there are significant differences of detail.72

The Committee reported that in an earlier report it had ‘expressed the view that a single system of notification, operating under the authority of the Parliamentary Commissioner for Standards, to enable Members to discharge both the House’s and PPERA’s requirements through a single declaration, would be better’.73 It also noted that both the Government and the Electoral Commission supported its proposals. Because there was not a complete overlap between the reporting requirements of the Electoral Commission and the House, the Committee noted that the amendments to the reporting requirements of the Electoral Commission would not be brought into force until the requirements of the Register of Members’ Interests had been changed.74

71

Explanatory Notes 28–29. Committee on Standards and Privileges, Electoral Administration Bill: Simplification of Donation Reporting Requirements (HC 2005–06, 807) para 1. 73 Ibid, para 2. 74 Ibid, para 9. 72

The Law and Conduct of MPs 103 Section 59 of the Electoral Administration Act 2006 removed the requirement for Members personally to report recordable donations to the Electoral Commission. It provided for the Electoral Commission to obtain the information it needs for its registers from information supplied by Members to the Registrar of Members’ Interests.75 In July 2008 and February 2009, the Committee on Standards and Privileges reported on the changes that would be required to the Register of Members’ Interests.76 The House approved the Committee’s proposals on 9 February 2009.77 Following the House’s decision, which meant that the requirements to register in the House matched those in the legislation, the relevant provisions of the Electoral Administration Act 2006 were then brought into force from 1 July 2009.78

VI. MEMBERS’ EXPENSES AND IPSA

On 8 May 2009, The Daily Telegraph began publishing a series of articles on Members’ expenses claims that continued for several weeks,79 and eventually led to the creation of an independent statutory body for the administration of Members’ expenses.80 This was the culmination of a series of events relating to Members’ expenses dating back several years, starting with a request under the Freedom of Information (FOI) Act 2000 for information relating to certain Members’ expenses claims and including a number of attempts to reform Members’ expenses which were only partially implemented. Following recommendations from the Public Administration Select Committee, the Freedom of Information Bill was amended during its passage to include the Commons and Lords on the list of public bodies subject to FOI in 2000. There were absolute exemptions for parliamentary privilege and for confidential advice. A certificate from the Speaker would ensure that the exemptions could not be challenged by the Information Commissioner or the courts. However the Commons authorities did not expect that the administration of expenses for MPs would fall within these exemptions and Members were advised from the early 2000s that further transparency on allowances would be required. The Freedom of Information (Amendment) Bill 2006–07 was introduced by David Maclean, a member of the House of Commons Commission. It sought to 75

Electoral Administration Act 2006, s 59. Committee on Standards and Privileges, Ending Dual Reporting of Donations: Interim Report (HC 2007–08, 989); Committee on Standards and Privileges, Dual Reporting and Revised Guide to the Rules (HC 2008–09, 208). 77 HC Deb 9 February 2009, cols 1114–32. 78 Electoral Administration Act 2006 (Commencement No 8 and Transitional Provision) Order 2009, SI 2009/1509. 79 The story of the Daily Telegraph’s obtaining the information and its publication is told in R Winnett and G Rayner, No Expenses Spared (London, Bantam Press, 2009). 80 The establishment of IPSA is discussed further below and in ch 6, section IV. 76

104 Richard Kelly and Matthew Hamlyn create a new exemption from FOI for communications between MPs and public authorities; and to exempt both Houses of Parliament from the FOI Act. It was controversial as the House of Commons authorities would no longer be required to disclose information about Members’ allowances. The Bill completed its passage through the Commons but made no progress in the House of Lords.

A. Arrangements in the House of Commons in Relation to Members’ Allowances Whilst the House of Commons was responsible for Members’ allowances, it appointed the Members Estimate Committee (MEC) to codify and keep under review the provisions of the resolutions of the House relating to expenditure charged to the Members Estimate.81 The MEC appointed the Members Estimate Audit Committee (MEAC) to support the House’s Accounting Officer in discharging his responsibilities under the Members Estimate, particularly in maintaining an effective system of internal control. The MEAC commented in its annual report of 2008–09 that it had ‘been concerned about the matter of auditing of Members expenses and allowances, and has discussed the need for appropriate governance, audit and assurance on a number of occasions’, since its creation in 2004.82 The MEAC report highlighted a paper prepared by its external members in December 2004, which had called for a review of the rules and had argued that ‘a proper system of audit, going behind Members’ signatures, should be introduced (taking the form of random checks) to verify the propriety of their use of the money so expended’. In February 2005, the Speaker told the MEAC that the MEC was ‘not minded’ to pursue such external verification.83 Recommendations on Members’ allowances from the Senior Salaries Review Body (SSRB) were published in January 2008.84 The House of Commons referred the SSRB’s recommendations to the MEC.85 But even before that committee could begin its work, the Committee on Standards and Privileges found that Derek

81 The MEC, which has the same membership as the House of Commons Commission, was established in 2004 under Standing Order No 152D to provide oversight of the House of Commons Members Estimate. The scope of the Members Estimate was significantly reduced following the 2010 general election when responsibility for the administration of Members’ salaries, expenses claims, travel and certain other costs were transferred to the Independent Parliamentary Standards Authority (IPSA). 82 House of Commons: Members, Annual Report, Resource Accounts and Audit Committee Annual Report 2008–09 (HC 2008–09, 955) 45–50, para 15. 83 Ibid, paras 16–17. 84 Review Body on Senior Salaries, Review of Parliamentary Pay, Pensions and Allowances 2007, Report No 64 (Cm 7270–1, 2008). 85 HC Deb 24 January 2008, col 1720.

The Law and Conduct of MPs 105 Conway, Member for Old Bexley and Sidcup, had ‘misused the Staffing Allowance’ in ‘paying his son over-generously’.86 It was in the context of growing interest in, and concern about, the system for reimbursing Members’ expenses that the MEC undertook its review. In a debate in January 2008 Members had expressed ‘deep concerns about Members’ allowances’.87 The MEC’s review of allowances, published in June 2008, referred to its ‘commitment to restoring the reputation of the House by providing better assurance for the taxpayer that money is properly spent’.88 The report set out detailed recommendations for change: on audit and assurance, including external audit of Members’ claims and a receipt threshold set at zero; claims for furniture and household were no longer to be accepted; a reduction in the maximum that could be claimed for overnight allowances; and reductions in the amount outer London MPs could claim for overnight expenses.89 However, its main recommendations were rejected by the House on division on 3 July 2008.90 On 16 July 2008, the House agreed to ask the Advisory Panel on Members’ Allowances (APMA) to rewrite the Green Book (the guide to and rules on Members’ allowances).91 However, the APMA only had the authority to advise the MEC. At its meeting on 21 July 2008, the MEC confirmed that ‘any changes to the Green Book brought forward by the Advisory Panel on Members Allowances would have to be considered by the MEC before implementation’.92 Whilst the APMA was considering revisions to the Green Book, the MEC asked the Members Estimate Audit Committee to ‘make proposals on the future role of the National Audit Office as the external auditor of the House of Commons and the House of Commons’ own Internal Audit service in providing audit and assurance of spending on the Members’ allowances’.93 The APMA completed its work and a revised Green Book and the MEC’s proposals for the auditing of Members’ expenses claims were published together in January 2009 by the MEC.94 The House approved the MEC’s report and the new rules came into force on 1 April 2009.95

86

Committee on Standards and Privileges, Conduct of Mr Derek Conway (HC 2007–08 280) para 31. HC Deb 4 February 2008, col 659. 88 Members Estimate Committee, Review of Members’ Allowances (HC 2007–08, 578). 89 Ibid, Conclusions and recommendations. 90 Votes and Proceedings, 3 July 2008, item 18; for a discussion of the MEC Review and the background to it, see House of Commons Library Research Paper, Members’ Allowances, RP 09/60, 25 June 2009. 91 HC Deb 16 July 2008, cols 314–15. 92 House of Commons Commission, Formal Minutes, 21 July 2008. 93 Members Estimate Committee, Revised Green Book and Audit of Members’ Allowances (HC 2008–09, 142) Annex 3, para 1. 94 Members Estimate Committee, Revised Green Book and Audit of Members’ Allowances (n 93). 95 HC Deb 22 January 2009, cols 969–70; House of Commons, The Green Book: A Guide to Members’ Allowances (March 2009). 87

106 Richard Kelly and Matthew Hamlyn B. The MPs’ Expenses Scandal 2009 In the early months of 2009, a number of stories about Members’ expenses claims were published in the press (prior to The Daily Telegraph’s more extensive publication of details of Members’ expenses). Two of these newspaper stories triggered investigations by the Parliamentary Commissioner for Standards, which were considered by the Committee on Standards and Privileges.96 The CSPL, which had considered investigating Members expenses in the past, exchanged letters with the Prime Minister in March 2009. On 23 March it announced that it would ‘be undertaking a wide-ranging review of MPs’ allowances’ later that year.97 The Prime Minister wrote to the Committee again on 30 March 2009, after it had announced its inquiry. He asked the CSPL to ‘look to both start and conclude the Review earlier than previously indicated to allow us to make progress on this issue as soon as practical’, stating again that he would ‘welcome your consideration of MPs’ allowances’.98 On 31 March 2009, the CSPL issued another press notice, stating that it would bring forward its inquiry.99 The CSPL’s report was published in November 2009,100 by which time further changes had been made to way in which Members’ expenses were reimbursed. First, in April 2009, the Government announced its intention to make changes to the allowances system that could ‘be enacted sooner’ than any recommendations made by the CSPL. It then tabled a series of motions in the House of Commons to give effect to the changes. In addition to a formal written ministerial statement, Gordon Brown, the Prime Minister, outlined the proposals in a video posted on the Downing Street website. The Government proposed among other things a flat-rate daily allowance to replace the Personal Additional Accommodation Expenditure (the ‘second home’ allowance); that MPs’ staff should become direct employees of the House of Commons; and that receipts would be required to support all expense claims. It also made proposals on Members’ financial interests— suggesting that Members report what they earned, who paid them, for what and how many hours were worked.101 When the motions were tabled on 27 April 2009, they did not include proposals for a flat-rate allowance, following the hostile reaction to the initial proposals.

96 Committee on Standards and Privileges, Jacqui Smith (HC 2008–09, 974); Mr Tony McNulty (HC 2008–09, 1070). 97 Committee on Standards in Public Life, ‘Committee on Standards in Public Life to Look at MPs’ Allowances’ (press notice, 23 March 2009). 98 The Prime Minister, ‘MPs’ Allowances’ (30 March 2009). 99 Committee on Standards in Public Life, ‘Committee on Standards in Public Life to Bring Forward Review of MPs’ Allowances’ (press notice, 31 March 2009). 100 Committee on Standards in Public Life, MPs’ Expenses and Allowances: Supporting Parliament, Safeguarding the Taxpayer (Twelfth Report) (Cm 7724, 2009). 101 HC Deb 21 April 2009, cols 10WS–11WS.

The Law and Conduct of MPs 107 During and before the debate, on 30 April, the Government was also criticised for pre-empting the CSPL’s inquiry. Although some of the Government motions were amended, the House agreed to increase the number of constituencies defined as London constituencies (and hence reduce the number of Members qualifying for second home allowances). The House also agreed to the proposed changes on the requirement to register financial interests.102 Then, following The Daily Telegraph’s reporting of expenses claims, immediate changes to the rules were made on 19 May 2009, following a meeting of political party leaders, convened by the Speaker. These immediate changes were described as follows: We have today agreed a robust set of interim measures which will take effect at once and do not pre-empt any more substantial changes to be put forward by the Kelly committee. Second homes: there will be no more claims for such items as furniture, household goods, capital improvements, gardening, cleaning and stamp duty. … Designation of second homes: no changes to be made to designation of second homes in the years 2009–10, with a transparent appeal procedure for exceptional cases. Capital gains tax: Members selling any property must be completely open with the tax authorities about whether they have claimed additional costs allowance on that property as a second home and are liable for capital gains tax. … Couples: Members who are married or living together as partners must nominate the same main home, and will be limited to claiming a maximum of one person’s accommodation allowance between them. Mortgages: all those Members claiming reimbursement must confirm that the mortgage continues, that the payments are for interest only, and the amount claimed is accurate. Mortgage interest claims will be capped at £1,250 per month. In the view of the meeting—and subject to the recommendations of the Kelly committee—this maximum figure should be reduced in the longer term. The same cap will apply to rent and hotel accommodation. Some of these measures I am announcing will require a resolution by the House in the near future; others will be put into effect by administrative action.103

A revised edition of the Green Book was issued in July 2009.104 On 19 May 2009, the Speaker also informed the House that: The meeting [of party leaders] also received a paper from the Prime Minister, which was endorsed by the other party leaders, calling for a fundamental reform of allowances— moving from self-regulation to regulation by an independent body.105

102 HC Deb 30 April 2009, cols 1063–142. A fuller description of the Government’s proposals and the House’s decision can be found in House of Commons Library Standard Note, Members’ Allowances— the Government’s Proposals for Reform, SN/PC/5046, 5 May 2009. 103 HC Deb 19 May 2009, cols 1421–22. 104 House of Commons, The Green Book: A Guide to Members’ Allowances, Revised edn (July 2009). 105 HC Deb 19 May 2009, col 1422.

108 Richard Kelly and Matthew Hamlyn C. The Passage of the Parliamentary Standards Act 2009 The Government introduced the Parliamentary Standards Bill on 23 June 2009.106 It passed quickly through both Houses—although it was considerably amended— and received Royal Assent before the Summer Recess on 21 July 2009.107 The Parliamentary Standards Bill, as introduced, provided for the establishment of IPSA and gave it responsibility for paying Members’ salaries, determining an allowances scheme and paying allowances. The Bill required IPSA to draw up ‘MPs’ financial interest rules’; and specified how the rules should be enforced. It provided for a Commissioner for Parliamentary Investigations to conduct investigations and stated that ‘No enactment or rule of law which prevents proceedings in Parliament being impeached or questioned in any court or place out of Parliament is to prevent’ IPSA or the Commissioner carrying out their functions nor to prevent parliamentary proceedings from being used in evidence (contrary to the usual understanding of Article 9 of the Bill of Rights). It also required the House of Commons to have a Code of Conduct.108 At second reading on 29 June 2009, Members expressed a number of concerns about the Bill. They drew attention to concerns the Clerk of the House had raised about the Code of Conduct becoming a statutory requirement and parliamentary proceedings becoming justiciable.109 During its passage through the Commons, the two clauses, clause 6 (MPs’ Code of Conduct) and clause 10 (Proceedings in Parliament), were removed from the Bill. The requirement on IPSA to prepare rules on financial interests was changed to require it to prepare a Code of Conduct relating to financial interests.110 Further changes were made in the House of Lords, including the addition of a provision stating that the Bill did not apply to the House of Lords, and a provision indicating that nothing in the legislation would affect Article 9 of the Bill of Rights 1689. Changes were made to investigation procedures. The Commissioner for Parliamentary Investigations was to investigate payments that were not allowed under the scheme and breaches of the statutory code relating to financial interests. An offence of ‘providing false or misleading information for allowance claims’ was retained but other offences were removed. A sunset clause was added: unless extended by order, provisions relating to the functions of the Commissioner for Parliamentary Investigations were to expire two years

106

HC Deb 23 June 2009, col 691. HC Deb 21 July 2009, col 801. 108 Parliamentary Standards Bill 2008–09 (Bill 121 of 2008–09). 109 See, eg, HC Deb 29 June 2009, cols 49, 53, 65–6. The Clerk had given evidence on the Bill to the Justice Committee: Justice Committee, Constitutional Reform and Renewal: Parliamentary Standards Bill (HC 2008–09, 791). 110 Parliamentary Standards Bill 2008–09 (Bill 121 of 2008–09), Parliamentary Standards Bill 2008–09 (HL Bill 60 of 2008–09). 107

The Law and Conduct of MPs 109 after IPSA assumed responsibility for the statutory code.111 Thus parliamentary self-regulation over the conduct of Members was preserved, but investigations of misuse of expenses were passed to an external compliance body. This made sense, as the expenses which might be misused were now to be administered—for the first time—by an external statutory body. Following the CSPL’s review of Members’ allowances, further changes were made in the Constitutional Reform and Governance Act 2010. Amendments to the Parliamentary Standards Act 2009 gave IPSA responsibility for determining Members’ pay. Changes were also made to the compliance regime. IPSA was removed from any involvement in the Commons Code of Conduct for Members, and the Commissioner for Parliamentary Investigations was replaced by a Compliance Officer who: — reviews decisions on the payment of expenses if requested to by Members; and — conducts investigations if he believes payments have been made that should not have been. The Constitutional Reform and Governance Act 2010 added the following provision on the general duties of IPSA: 3A General duties of the IPSA (1) (2)

In carrying out its functions the IPSA must have regard to the principle that it should act in a way which is efficient, cost-effective and transparent. In carrying out its functions the IPSA must have regard to the principle that members of the House of Commons should be supported in efficiently, cost-effectively and transparently carrying out their Parliamentary functions.112

And, the Constitutional Reform and Governance Act 2010 transferred the administration of the Parliamentary Contributory Pension Fund to IPSA.113 As with the Electoral Commission, Members were initially suspicious of a new external regulatory body. Relationships improved as the 2010 Parliament went on, but for many Members, IPSA remains an unwelcome innovation. The new body was considered to be out of touch with the realities of parliamentary life. New Board members were appointed to IPSA in January 2013, following the expiry of the term of office of the original board (although there was no change in chairmanship). In the debate on the appointments, some Members expressed the hope that the new Board would bring a different approach to its work.114

111 Parliamentary Standards Act 2009 as passed; see also House of Commons Library Standard Note, The Parliamentary Stages of the Parliamentary Standards Bill, SN/PC5121, 22 July 2009. 112 Parliamentary Standards Act 2009, as amended, s 3A. 113 Constitutional Reform and Governance Act 2010, s 40 and sch 6. 114 HC Deb 4 December 2012, cols 831–39.

110 Richard Kelly and Matthew Hamlyn D. Compliance IPSA appointed an interim Compliance Officer, Alan Lockwood, a former senior military officer, on 4 June 2010.115 A permanent Compliance Office, Luke March, was appointed on 31 March 2011 but stayed only a few weeks before resigning on 27 July 2011. Peter Davis, a retired police chief superintendent, was appointed as Compliance Officer on 19 December 2011. The Compliance Officer’s remit is defined in statute.116 It is set out on the Compliance Officer for IPSA’s website: —

to conduct an investigation if the Compliance Officer has reason to believe that an MP may have received from IPSA an amount that should not have been allowed under the MPs’ Expenses Scheme; and — to review, at the request of an MP, a determination by IPSA to refuse reimbursement for an expense claim, in whole or in part. Investigations may be triggered by a complaint from a member of the public about a payment to an MP that is suspected or alleged to be outside the rules of the MPs’ Expenses Scheme, or by a request from IPSA or an MP to investigate a payment. The Compliance Officer may also conduct an investigation on his own initiative, providing he has reason to believe that an MP may have received a payment that should not have been allowed. Reviews are only conducted after the MP has first asked IPSA to reconsider its decision. Once it is confirmed that a complaint falls with the Compliance Officer’s statutory remit, the investigation process begins. The investigation process comprises four stages: (i) Assessment; (ii) Investigation; (iii) Statement of provisional findings; and (iv) Statement of findings. If the complaint is within the Compliance Officer’s remit, an assessment is carried out to consider whether there are sufficient grounds to open an investigation. At the conclusion of the assessment, the Compliance Officer may decide that there is sufficient reason to believe that a claim may have been wrongfully paid to an MP and may open an investigation. If there are insufficient grounds to do so, the complaint is closed down. The Compliance Officer may decide not to open an investigation—even if there are grounds to do so—if it is judged that conducting an investigation would be a disproportionate course of action. At the conclusion of an assessment, the MP, IPSA and the complainant, if applicable, are informed of the Compliance Officer’s decision.117

115 IPSA, ‘IPSA has Appointed Alan Lockwood to the Post of Interim Compliance Officer’ (press release, 4 June 2010). 116 Parliamentary Standards Act 2009, sch 2, as inserted by the Constitutional Reform and Governance Act 2010, s 26 and sch 3. 117 Website of the Compliance Officer for IPSA, www.parliamentarycompliance.org.uk.

The Law and Conduct of MPs 111 As at January 2013, the workload has not been onerous, since, although the Compliance Officer has undertaken a number of investigations, he has yet to find against any Member for misuse of allowances. The shadow of the 2009 expenses scandal, and the new regulatory machinery and transparency, appear to have proved effective deterrents.

VII. INVESTIGATION OF MEMBERS’ EXPENSES— QUESTIONS OF JURISDICTION

At their meeting on 19 May 2009, following The Daily Telegraph’s publication of details of the expense claims of numerous Members, the party leaders agreed that All past claims under the former additional costs allowance over the past four years will be examined. This will be carried out by a team with external management; the external manager will be appointed after consultation with the Comptroller and Auditor General. All necessary resources will be made available. The team will look at claims in relation to the rules which existed at that time, and will take account of any issues which arise from that examination which cause them to question the original judgment.118

However, the Parliamentary Commissioner for Standards was already investigating some cases as a result of the press coverage on expenses before The Daily Telegraph began its campaign. In addition, the police and public prosecutors were also considering whether prosecutions were possible. On 5 June 2009, The Daily Telegraph reported a statement from a panel established by Sir Paul Stephenson, the Metropolitan Police Commissioner, and Keir Starmer, the Director of Public Prosecutions: A statement issued jointly by the Met and the CPS said: ‘Over the past two weeks the joint Metropolitan Police Service and Crown Prosecution Service assessment panel has met on a number of occasions and has considered a large number of allegations about the alleged abuse of expense claims in both the Lords and the Commons and whether any criminal investigations should be launched. The panel’s view is that, unless evidence is available which shows individuals deliberately misled the fees office, it is highly unlikely that there could be a successful prosecution. Many of those complained about appear to have provided accurate information and therefore the MPS will not pursue a criminal investigation into allegations against them. It is for the Commons and the Lords authorities to decide whether they wish to consider these cases under their internal processes and should information come to light that indicates that either Fees Office has been deliberately misled, then they will be able to make a referral back to the MPS for further consideration. 118

HC Deb 19 May 2009, col 1422.

112 Richard Kelly and Matthew Hamlyn However, there are a small number of allegations where questions remain about the probity of the claims which will require further information before any decisions regarding investigations could be made. We are therefore continuing to liaise with Parliamentary Authorities in the two Houses over the provision of this additional information so the assessment panel can make informed decisions on these remaining allegations.119

The review commissioned by the party leaders was undertaken by Sir Thomas Legg, a former Permanent Secretary, who had served as an independent member on the House of Commons Members Estimate Audit Committee (see above). His review reported to the Members Estimate Committee. His terms of reference were agreed on 1 July, and on 23 November 2009, the MEC agreed that any sums recommended for repayment by Sir Thomas should be recovered from Members, preferably voluntarily, but if necessary by deduction from pay and allowances on the authority of a resolution of the House. This was, however, subject to Members having the opportunity to show in an independent appeal process any special reasons why it would not be fair or equitable to require them to make the repayments. The Rt Hon Sir Paul Kennedy agreed to conduct the appeal process.120

In his review, Sir Thomas Legg set out his terms of reference: To conduct an independent review of all claims made by Members of Parliament (except those who have since died) for the Additional Costs Allowance during the financial years 2004–05 to 2007–08; To examine all payments made on such claims, against the rules and standards in force at the time, and identify any which should not have been made, and any claims which otherwise call for comment; To allow Members who received such payments or made such claims a fair opportunity to make representations about them; Subject to any such representations, to recommend where necessary any repayments which Members should make and otherwise to comment as seems appropriate; and To report as soon as possible to the Members Estimate Committee.

He also noted that, later in July 2009, the MEC extended the terms of reference to cover 2008–09 but also told him to exclude from his review ‘any payments under investigation by the Parliamentary Commissioner for Standards before 20 July 2009, or at any stage by the Police’.121 Following an inquiry in 2008, the Committee on Standards and Privileges asked its chairman and the PCS to meet with the Commissioner of the Metropolitan Police to ‘discuss matters relating to the handling of complaints against Members

119 Daily Telegraph, ‘MPs’ Expenses: Elliot Morley and David Chaytor Face Police Investigation’ (London, 5 June 2009). 120 Members Estimate Committee, Review of Past ACA Payments (HC 2009–10, 348) para 2. 121 Members Estimate Committee, Review of Past ACA Payments (n 120) app 1: Sir Thomas Legg, ACA Review 1 February 2010, paras 2 and 4.

The Law and Conduct of MPs 113 which might also raise questions of criminal liability’.122 It said it was ‘concerned to ensure that there should be no misunderstanding between the House and the police on their respective roles in these circumstances, and that any arrangements in place worked effectively in the public interest’.123 They met on 3 April 2008 and a statement agreed at the meeting was published by the Committee on 30 April 2008. It confirmed that other than in the limited context of participation in proceedings in Parliament, Members of Parliament are in no different position in respect of alleged criminal behaviour than any other person. The Chairman reiterated the Committee’s belief in the general principle that criminal proceedings against Members, where these are considered appropriate, should take precedence over the House’s own disciplinary proceedings. The meeting discussed how the respective parties might coordinate their activities to ensure the effective delivery of this principle.

The agreement also set out how the PCS and the Committee would liaise with the Police.124

A. Convictions for Expenses Fraud: the Aftermath Following the 2010 general election a number of former MPs, one then sitting MP and two members of the House of Lords were convicted on charges of false accounting in respect of the expenses scandal.125 Full details of the case of R v Chaytor and others and subsequent criminal proceedings can be found in chapter three. The Administration Committee further decided to amend the rules on the provision of passes to former Members, which allow them access to the Parliamentary Estate. Now former Members who have been convicted of a criminal offence and sentenced to a period of imprisonment of a year or more are no longer provided with former Members’ passes.126 It is of interest to note that the convictions all related to events before the passage of the Parliamentary Standards Act 2009; that the Supreme Court confirmed that ‘the extent of parliamentary privilege is ultimately a matter for the courts to determine’;127 and that those responsible for the disciplinary procedures of the

122 Committee on Standards and Privileges, The Complaints System and the Criminal Law (HC 2007–08, 523) para 1. 123 Ibid. 124 Committee on Standards and Privileges, The Complaints System and the Criminal Law (n 122) app. 125 David Chaytor, Jim Devine, Elliot Morley Eric Illsley, Lord Hanningfield and Lord Taylor of Warwick. 126 Committee on Standards and Privileges, Former Members Sentenced to Imprisonment (HC 2010–12, 1215) para 4. 127 [2010] UKSC 52 [16]; N Parpworth, Constitutional and Administrative Law, 7th edn (Oxford, Oxford University Press, 2012) 135.

114 Richard Kelly and Matthew Hamlyn House of Commons had already agreed with the police an approach for dealing with matters that involved alleged criminal behaviour.

VIII. THE HOUSE OF LORDS

The House of Lords was also affected by a number of scandals relating to expenses and also allegations that members of the House of Lords were prepared to accept fees to amend legislation on behalf of clients. Its response was quite different from that of the House of Commons. It has continued to emphasise its self-regulating nature, and did not have recourse to legislation. As already noted it ensured that, against the then Government’s original intentions,128 it was explicitly excluded from the ambit of IPSA. However, its approach to self-regulation, particularly in the area of Members’ conduct, has adapted, with the appointment of a House of Lords Commissioner for Standards. Members of the House of Lords were formerly able to claim a daily subsistence rate and, for those whose main home was outside London, overnight subsistence was available to cover the costs of overnight accommodation in London (or elsewhere, if on official parliamentary business). In 2009, a number of allegations were made that a small number of peers had designated as their main homes, homes outside London that they seldom used, in order to claim overnight subsistence. Reviews by the Senior Salaries Review Body and by a House of Lords Leader’s Group were followed by a report from the House Committee of the House of Lords.129 On 20 July 2010 the House of Lords debated resolutions to introduce the new single daily allowance from 1 October 2010, and to agree the report of the House Committee.130 The flat-rate attendance allowance is set at £150 or £300 for each sitting day they attend the House.

A. Appointment of the House of Lords Commissioner for Standards The background to appointment of the House of Lords Commissioner for Standards is described in his first annual report: In May 2009, the then Leader of the House, Baroness Royall of Blaisdon, announced the appointment of a Leader’s Group on the Code of Conduct. The Group was appointed ‘to 128 In a statement on constitutional renewal, on 10 June 2009, Gordon Brown, the Prime Minister, told the House of Commons that ‘we propose that the House of Commons—and subsequently the House of Lords—move from the old system of self-regulation to independent, statutory regulation’ (HC Deb 10 June 2009, col 796). 129 House of Lords House Committee, Financial Support for Members of the House of Lords (HL 2010–11, 18). 130 House of Commons Library Standard Note, Financial Support for Members of the House of Lords, SN/PC/5246, 23 August 2010.

The Law and Conduct of MPs 115 consider the Code of Conduct and the rules relating to Members’ interests, and to make recommendations’. The Group’s creation was directly linked to allegations in the media about the conduct of four peers. The allegations were referred to the Sub-Committee on Lords’ Interests for investigation, and resulted in the suspension from the service of the House of two of the four members for having breached the Code of Conduct. That episode, allied to other allegations against peers, and a series of allegations affecting members of the House of Commons, combined to significantly impact on public confidence in Parliament and Parliamentarians. The Leader’s Group on the Code of Conduct recommended that the post of Commissioner for Standards be created. The Commissioner would be appointed by the House but be functionally independent. That recommendation was accepted.131

The creation of the post of Commissioner for Standards was provided for by the new Code of Conduct, agreed by the House on 30 November 2009,132 and by the Guide to the Code of Conduct contained in the second report of the Committee for Privileges of 2009–10, which was agreed by the House on 30 March 2010.133 Both came into force on 18 May 2010, at the start of the 2010–12 Session of Parliament. The first Commissioner for Standards, Paul Kernaghan, was appointed for ‘an initial period of three years’ by the House of Lords on 2 June 2010.134

B. Disciplinary Powers of the House of Lords In 2009, the House of Lords Committee for Privileges reviewed the House’s disciplinary powers and the Sub-Committee on Lords’ Interests investigated after allegations were made that four members of the House of Lords had been prepared to accept fees to amend legislation.135 The Committee for Privileges set out its conclusions on the disciplinary powers of the Lords in a short report: 8. We have carefully considered the advice of the Attorney General and Lord Mackay of Clashfern. We are unanimously in agreement with the advice of Lord Mackay, and accordingly invite the House to agree the following conclusions: — The House possesses, and has possessed since before the 1705 resolution, an inherent power to discipline its Members; the means by which it chooses to exercise this power falls within the regulation by the House of its own procedures. — The duty imposed upon Members, by virtue of the writs of summons, to attend Parliament, is subject to various implied conditions, which are reflected in the many rules governing the conduct of Members which have been adopted over time by the House.

131

House of Lords, Annual Report 2010–2011 Commissioner for Standards, Foreword. HL Deb 30 November 2009, cols 590–48. 133 HL Deb 30 March 2010, col 1290. 134 HL Deb 2 June 2010, col 256. 135 Committee for Privileges, The Conduct of Lord Moonie, Lord Snape, Lord Truscott and Lord Taylor of Blackburn (HL 2008–09, 88-I) app 2, para 1. 132

116 Richard Kelly and Matthew Hamlyn — The House has no power, by resolution, to require that the writ of summons be withheld from a Member otherwise entitled to receive it; as a result, it is not within the power of the House by resolution to expel a Member permanently. — The House does possess the power to suspend its Members for a defined period not longer than the remainder of the current Parliament [emphasis in original].136

The House of Lords adopted the conclusions of the Committee for Privileges on 20 May 2009. It also considered the Committee for Privileges report on The Conduct of Lord Moonie, Lord Snape, Lord Truscott and Lord Taylor of Blackburn. The House agreed with the Committee that Lord Truscott and Lord Taylor of Blackburn had breached the Code of Conduct,137 and suspended the two Lords for the remainder of the 2008–09 Session.138 The powers to suspend were subsequently used again in 2010. On 21 October 2010, the House of Lords considered reports from the Committee for Privileges that concluded that three members of the House of Lords—Lord Paul, Lord Bhatia and Baroness Uddin—had incorrectly designated their main home when making claims for expenses made under the Members’ reimbursement scheme. The three members of the House of Lords were suspended.139

IX. REFLECTIONS

As we have noted in this chapter, changes in the way in which the conduct of Members of Parliament is regulated have occurred intermittently over the years, usually in response to particular events such as scandals or perceived scandals— such as ‘cash for questions’ in the 1990s and MPs’ expenses in 2009—rather than as part of a grand plan. In that respect, the history of regulating Members’ conduct is not that different from the history of constitutional changes in the UK, which have as often as not come about in a piecemeal fashion depending on the contingent political pressures of the day. Changes in the regulation of Members’ conduct mirror a wider shift in society away from self-regulation to external (in the City, the end of ‘my word is my bond’ and the establishment of bodies such as the Financial Services Authority and subsequently the Financial Conduct Authority, in the medical world the growth of lay members on the General Medical Council, etc). Parliament has not been slow in the past to react to scandals or malpractice in other professions by legislating for a greater degree of external regulation, so perhaps it was inevitable that similar issues would confront them as well. Changes in regulation have been challenged in different ways, and usually on the grounds that they represented an attack on the sovereignty of Parliament— but they tend not to have been prevented. In the 1860s concerns were expressed 136 137 138 139

Committee for Privileges, The Powers of the House of Lords in Respect of its Members (n 13) para 8. Ibid, para 72, para 89. HL Deb 20 May 2009, cols 1394–418. HL Deb 21 October 2010, cols 893–903. Erskine May (n 8) 201.

The Law and Conduct of MPs 117 that Parliament was abdicating its rights in allowing the courts to determine the outcome of contested parliamentary elections. In the 1990s, during the debate on the motion to appoint the first Parliamentary Commissioner for Standards, Sir Nicholas Winterton MP argued that the House was giving up some of its independence in making such an appointment: I believe that it is the first time in history that this High Court of Parliament will, to all intents and purposes, have an outsider deciding its behaviour—in short, the behaviour of Members of this House. I do not believe that we should agree to that. Tonight, the House of Commons has committed suicide. The independence of the House is now very much in doubt, as is its authority and influence.140

And in the twenty-first century, during the second reading debate on the Parliamentary Standards Bill, Sir Patrick Cormack asked, ‘Is it not one thing to have a body that regulates the conduct of elections and another thing entirely to have a body that regulates the conduct of the elected?’141 The phrases differ over the decades but the sense was the same: each House of Parliament should regulate itself. But on each occasion, the immediate political and public pressure (‘something must be done’) ended up taking precedence over the constitutional theory. The argument against external regulation has not always been made on constitutional grounds, though. On 22 May 1974, when the House of Commons agreed to establish the Register of Members’ Interests, some Members argued this was unnecessary. One commented that ‘The fact that we are all known to each other is the best safeguard of all against improper conduct. If anyone should unhappily fall by the wayside, the police, the Revenue or this House itself can take the necessary measures’. Another commented: ‘I believe that Parliament is too serious a place to be subjected to such treatment. Disclosure also lowers our dignity. Why should the Press try to look through a keyhole at our private interests?’142 These comments raise two issues which have affected developments in this field: the decline of deference and the increased expectation of transparency in public life, associated with a more intrusive media, subjects to which we return at the end of this chapter. Despite the overall trend recounted in this chapter, regulation of MPs’ conduct still remains something of a mixed economy. IPSA sets the budgets for their expenses and administers their reimbursement. Compliance with its rules is not a matter for the House—although it is, of course, a matter for individual Members—but for a statutory compliance officer and ultimately the courts, through a newly created criminal office introduced by the 2009 Act. IPSA now determines the pay and pensions of MPs, but this is hardly a matter of conduct. On the other hand, the Parliamentary Commissioner for Standards investigates 140 141 142

HC Deb 6 November 1995, col 683. HC Deb 29 June 2009, col 62. HC Deb 22 May 1974, col 441, col 484.

118 Richard Kelly and Matthew Hamlyn alleged breaches of the Code of Conduct, but she is appointed by the House and reports to the Committee on Standards, a committee of the House, which makes final recommendations to the House for decision. The position has changed slightly with the addition of lay members to the Committee, but they do not have a vote. So, ultimately Members still decide collectively how to deal with breaches of the Code of Conduct, in that the House as a whole can overturn recommendations from the Committee on Standards (which can itself decline to accept recommendations from the Commissioner). In the context of the wider shift in society away from self-regulation to external regulation, it is difficult to see how MPs could uniquely be left unaffected. In the same way, MPs can hardly be expected to be exempt from the long-term shift in society from a default position of secrecy in public life to one of greater transparency. (For instance, it is not that long ago that patients had no automatic right to see their own medical records, the expectation being that doctors would know best.) This has been matched by a move away from previous expectations among the public and politicians of deference towards ‘the Establishment’ to a position which is at best sceptical. We have perhaps moved from a society where trust was the guarantor of probity to one where transparency is regarded as a better guarantor. Greater transparency has been aided by the introduction of statutory access to information through the Data Protection Act and especially the Freedom of Information Act. The latter has been used extensively by the media and by campaigning groups. Indeed, in this context it is worth recalling that the initial trigger for the expenses scandal was an FOI request; the large amount of material that was eventually obtained by the Daily Telegraph would not have been available to the newspaper had it not been for the fact that the courts had ordered a redacted version of it to be prepared for release, following a series of attempts by the House authorities to prevent its disclosure. The ‘cash for questions’ case in the 1990s was triggered not by an actual case, but by a ‘sting’ operation by a newspaper against two MPs. So much for preventing the press looking ‘through the keyhole’. Finally, it is worth wondering what might happen next in this field. The new Committee on Standards, with its lay members, has only just started its work, and it will be interesting to see what difference the external element makes to its work and to public and media perceptions of its effectiveness. IPSA had a somewhat stormy start in 2010. A largely new Board took up office early in 2013 and it remains to be seen how this change might affect relations with Members and how the regulator is seen by the public. Given that the expenses scandal continues to have enormous resonance among the public and the media, it seems unlikely that there will be a serious appetite for bringing the regulation of Members’ expenses and salaries back in-house or even to make substantive changes, through amendments to the law, in the way IPSA operates. But Parliament did eventually change the statute governing the Electoral Commission to redress perceived problems in its operation and other regulators or quasi-regulators have been reformed or abolished, such as the Audit Commission and the Standards Board for England. The story is not over yet.

5 Legal Advice to Parliament ANDREW KENNON*

I. INTRODUCTION

P

ARLIAMENT, AS THE place that makes the law, may be assumed not to be much in need of legal advice. As a number of chapters in this book show, however, Parliament is frequently involved in legal issues in which its Members or officers may require such advice. Although many of these issues have been dealt with in some detail elsewhere in this volume, it is worth providing some brief examples to illustrate the scope of some of the recent challenges. These include: —

— — — — —

*

a claim that what an MP said in an adjournment debate about a constituent was in breach of her rights under the European Convention on Human Rights (ECHR);1 an application for judicial review of the procedure for passing the Hunting Act 2004;2 a judicial inquiry into the death of a scientist who had recently given evidence to a select committee;3 a series of cases under the Freedom of Information Act 2000 leading to disclosure of information about MPs’ expenses;4 the search by police of a Member’s office on the Parliamentary Estate;5 an (unsuccessful) legal action to prevent the prosecution under the criminal law of MPs accused of fraud in relation to expenses on the grounds that it would infringe parliamentary privilege;6 and

Andrew Kennon is Clerk of Committees in the House of Commons. A v the United Kingdom (2003) 36 EHHR 5. 2 R (Jackson) v Attorney General [2005] UKHL 56, [2006] 1 AC 262. 3 Hutton Inquiry, Report of the Inquiry into the Circumstances Surrounding the Death of Dr David Kelly (HC 2003–04, 247). 4 See, eg, Corporate Officer of the House of Commons v The Information Commissioner and others [2008] EWHC 1084 (Admin). 5 See ch 3. 6 R v Chaytor and others [2010] UKSC 52 (this case is addressed in detail at ch 3). 1

122 Andrew Kennon —

an MP was sued for negligence by a constituent for failing to pursue his case.7

Furthermore, the internal workings of Parliament have been brought more closely within the law on matters such as employment, contracts and health and safety, as well as Freedom of Information (FOI).8 A significant part of the House of Commons administration—Members’ expenses—has been transferred to an external body by statute.9 The creation of a joint department responsible for information technology for both Houses required the passage of legislation.10 Even the House of Commons’ own procedures for motions of no confidence in the government of the day are now encapsulated in the Fixed Term Parliaments Act 2011. This is reflective of the fact that there have been significant moves away from self-regulation in Parliament as elsewhere—statute law now impacts upon Parliament much more frequently than has historically been the case. Legislation that expressly applies to Parliament includes the Employment Rights Act 1996, Data Protection Act 1998, Freedom of Information Act 2000 and the implementation of EU measures in the form of directives or others having direct effect (eg Working Time Directive). The House has also agreed that other statutes, whilst perhaps not directly applicable in law, will apply by analogy.11 An example of legislation that applies to Parliament by necessary implication, rather than through express words, is the Health and Safety at Work Act 1974. In some cases, and for a variety of reasons, the Houses voluntarily implement statutory provisions even where there is no express application. The smoking ban brought in by the Health Act 2006 is one example. In this chapter the variety of sources of legal advice to Parliament will be described. They range from external evidence given to select committees, the legal expertise of members of both Houses, ministerial statements of the legal position (such as under section 19 of the Human Rights Act 1998) and staff working within Parliament. On any one issue, there may not be a single view.Then the different needs of Parliament for advice will be examined, and how those resources are applied to the needs will be set out in an illustrative example. II. INTERNAL SOURCES OF ADVICE

There can be confusion about what constitutes legal advice to Parliament. Advice about the application of statute and case law to particular circumstances would be widely recognised elsewhere as legal advice. Matters of parliamentary procedure, internal governance and relations between the legislature and the executive and 7

Daily Telegraph, ‘Labour MP First to be Sued for “Laziness” ’ (London, 4 February 2009). See chs 3 and 6. 9 Parliamentary Standards Act 2009. See ch 4. 10 Parliament (Joint Departments) Act 2007. 11 This means that the House follows the standards set out in the legislation without being subject to the enforcement machinery. 8

Legal Advice to Parliament 123 the judiciary—which might be regarded as analogous to company law outside the House—are not strictly matters of law. Advice to the House and its committees on such matters are the responsibility of the Clerk of the House and other clerks. Sometimes such advice emerges in the form of rulings by the Speaker;12 more often they form part of the contingency planning for proceedings in the House and committees and are not disclosed publicly. Inevitably some issues require a combination of clerkly and legal advice. The main internal sources of advice available to Parliament are: — — — — —

Speaker’s Counsel, who heads the Legal Services Office (Commons);13 Counsel to the Chairman of Committees (Lords); Select committee legal specialists (both Houses); The Scrutiny Unit (Commons); and The Library (Commons Department of Information Services).

It is worth noting that these services provide advice to Members collectively in committees and to the internal governance bodies of both Houses but not, generally, to individual Members. A. Speaker’s Counsel and the Legal Services Office (Commons) and Counsel to the Chairman of Committees (Lords) Until quite recently Speaker’s Counsel rarely had anything to do with the Speaker. The post was usually held by a retired lawyer from a government department whose main activity was advising the relevant select committees on the drafting of statutory instruments. Speaker’s Counsel was first appointed in 1838 ‘to assist the Speaker generally with any legal questions coming before him’ and to carry out functions in relation to private Bills. A principal activity was advising on the drafting of statutory instruments, but the role was extended to advice to the European Scrutiny Committee on European Community documents in 1973.14 That important work for the Legal Services Office (LSO) continues, with two Commons lawyers working full-time in support of the Joint Committee on Statutory Instruments and the Regulatory Reform Committee—with the same support from the Lords. A similar team works for the European Scrutiny Committee in the Commons and the EU Committee in the Lords. A further two lawyers now work full-time for the Joint Committee on Human Rights. In the Lords, the Delegated Powers and Regulatory Reform Committee is supported by Counsel to the Chairman of Committees. Counsel to the Chairman of 12 For instance the ruling by Speaker Boothroyd on 14 May 1997 that none of the facilities of the House should be made available to Members who had not taken their seats—which applied to the Sinn Fein MPs. 13 In 2013, the Legal Services Office was renamed the Office of Speaker’s Counsel. 14 See Sir Robert Speed’s article, ‘Speaker’s Counsel’ (1982) LXIII Parliamentarian 15 for the historic background of this office.

124 Andrew Kennon Committees work within the Lords Committee Office and are not a separate office like the LSO in the Commons. Thus the core permanent legislative scrutiny committees of both Houses are well-equipped to provide Parliament with the equivalent legal expertise to the government departments producing secondary, EU or primary legislation. In many cases these full-time positions are held by lawyers formerly employed in the Government Legal Service. Committees of both Houses also appoint part-time specialist advisers, usually from the ranks of senior academics or practitioners. Examples of this include the Treasury Committee and the Justice Committee in the Commons. The Lords’ Constitution Committee employs lawyers as part-time specialist advisers. Joint committees (such as the Joint Committee on the Draft Defamation Bill in 2011) have also appointed such legal advisers for specific inquiries. The type of advice offered to committees is considered further below. The prime role of Speaker’s Counsel and the Legal Services Office in the Commons is now very broad and encompasses both constitutional matters and internal advice on a wide range of issues including privilege, employment, contracts, information law, charities, land law, intellectual property and the criminal law. This advice is given to the Speaker, senior officials of the House, internal governance bodies (such as the House of Commons Commission), select committees and occasionally individual Members. Apart from Speaker’s Counsel, this work engages three other lawyers in the LSO. However, the Legal Services Office does not provide advice to the House on the drafting of primary legislation generally though it is called on to comment on legislative proposals which may affect the House. Nor does the Office provide a direct service of advice to Members, although occasionally Speaker’s Counsel may assist in individual cases. Members facing legal proceedings arising out of their work as Members have access to external legal advice through an insurance scheme run for the House by a law firm.

B. Select Committee Legal Specialists Certain select committees also employ full-time legal specialists in the same way as the Treasury Committee employs economists. Thus both the Justice Committee and the Home Affairs Committee have each employed one legal specialist, usually a solicitor or barrister with several years’ post-qualification experience. One of the two posts on the Joint Committee on Human Rights is filled in the same way. While these staff work primarily for a specific select committee, they give advice where needed to other committees. For instance, the phone-hacking inquiry by the Culture, Media and Sport Committee benefited from advice at different stages from Speaker’s Counsel and the Legal Services Office. This is typical of a culture in which lawyers are willing within a small organisation to help out wherever required.

Legal Advice to Parliament 125 C. The Scrutiny Unit (Commons) A further resource available for committees is the Scrutiny Unit in the Commons which employs two legal specialists on the same basis as the Justice Committee. Their main role is to work for temporary joint committees set up to examine draft Bills but they also work for other select committees when required. This work has grown significantly as more government Bills have been published in draft for pre-legislative scrutiny. Such evidence-based examination at an early stage is intended to improve the quality of the eventual Bills brought to Parliament for enactment under normal procedures.

D. Commons Library The Research Service within the Commons Library (now part of the Department for Information Services) has six lawyers working mainly on advice for individual MPs on specific areas such as employment and criminal law. Strictly speaking this is providing Members with legal information rather than advice on constituency cases: these lawyers will inform Members of Parliament what the law is in a particular area, but will not apply it to the facts of constituents’ individual cases. Lawyers in the Research Service also contribute to the Library briefing notes on all aspects of Bills brought before the House. These briefings are available to all Members (and are also published online on the Parliament website) but may be especially valuable to the opposition frontbenchers and backbenchers involved in the scrutiny of the Bill (who, unlike government ministers, may well not have access to other forms of independent legal advice). Papers are published prior to Second Reading in the House of Commons and then again after the committee stage. While such briefing documents cover policy and financial as well as legal aspects of Bills, the legal input is especially important for bills where the subject content is substantive or procedural law, whether criminal or civil.

E. Members of Parliament Members themselves are a source of legal advice to the House and each election brings in some Members who have come directly from practising as barristers or solicitors. The House of Commons elected in 2010 had a higher number of lawyers by profession (86) than in all previous Parliaments since 1987 (when there were 88). It is the first House in which those with a background as solicitors significantly outnumber those who are barristers (38 barristers and 48 solicitors).15

15 See House of Commons Library Standard Note, Social Background of Members of Parliament, SN/SG/1528, available at: www.parliament.uk/briefing-papers/SN01528.

126 Andrew Kennon III. EXTERNAL SOURCES OF ADVICE

A. The Role of the Law Officers The conventional image of the Attorney-General—and the deputy, the SolicitorGeneral—as an MP of the governing party with extensive legal experience, a little detached from the partisan fray, widely respected in the House and available to assist the House collectively and committees individually, may be a little rose-tinted.16 The decline in the number of MPs with well-established professional legal careers has reduced the pool from which such paragons could be drawn. Perhaps the last to fit this mould were Sir Patrick Mayhew QC MP for the Conservatives (Attorney-General 1987–92) and Sir John Morris QC MP for Labour (AttorneyGeneral 1997–99). Although both at other times also held office as Secretaries of State, after more junior ministerial experience, neither of them was regarded as particularly partisan.17 A change in the Attorney-General’s conventional role—attending the Privileges Committee and standing committees on Bills when required—may be attributed to the appointment, for most of the Labour Government of 1997–2010, of Attorneys-General with substantial recent legal experience but who were (or then became) members of the House of Lords and had never been MPs.18 However much admired for their legal prowess, they did not have the political experience to carry weight in the Commons. There are some signs that the appointment of Dominic Grieve QC MP as Attorney-General in the Coalition Government after the May 2010 election marks a reversion to past practice. Like their ministerial colleagues, the Attorney-General and Solicitor-General answer written and oral questions and respond to debates in whichever House they belong to, though they are naturally limited in what they can say about current litigation. A recent example of how the Attorney-General assists Parliament was his appearance at a private meeting of the Culture, Media and Sport Committee, considering phone hacking, in early 2012 to advise the Committee on the ways in which their report might affect current police investigations and pending trials.19 The Constitutional Affairs Committee of the House of Lords has said this about the Attorney-General’s constitutional role in relation to Parliament: The Attorney General has additional responsibilities in relation to Parliament covering the constitution and conduct of proceedings in Parliament, including: questions of parliamentary privilege; the conduct and discipline of Members; and the meaning and

16 For a full history of the office of Attorney-General see House of Commons Library Standard Note, The Law Officers, SN/HA/4485, available at http://www.parliament.uk/briefing-papers/SN04485. 17 Sir Patrick Mayhew was Secretary of State for Northern Ireland 1992–97 and Sir John Morris was Secretary of State for Wales from 1974 to 1979. 18 Lords Williams of Mostyn (1999–2001), Lord Goldsmith (2001–07) and Baroness Scotland of Asthal (2007–10). 19 The Guardian, ‘Phone Hacking: Attorney General to meet MPs over Report’ (London, 16 April 2012).

Legal Advice to Parliament 127 effect of proposed legislation. The Attorney General may intervene in court proceedings to assert the privileges of either House, either of his or her own motion or, more usually, at the request of the House authorities or indeed the trial judge. Such cases have usually arisen where parties seek to question proceedings in Parliament contrary to Article IX of the Bill of Rights. In that way, the Attorney performs the important function of representing the interests of Parliament in the courts.20

Perhaps the most prominent case in recent memory in which the AttorneyGeneral has intervened in court on behalf of Parliament was Pepper v Hart.21 In that case the Attorney-General was instructed by the Inland Revenue, in whose interests it was that the court should not look at Hansard. However, he argued on behalf of the Clerk of the House of Commons that it would be a breach of parliamentary privilege for the court to look at Hansard, whereas if they did look at Hansard they might find that the Commons intended the statutory provision to be interpreted in favour of the taxpayer, not the Revenue.22

B. Parliamentary Counsel Parliamentary Counsel operate under a title which confuses many.23 They are part of the civil service and work exclusively for the government on drafting legislation. Seen from a Whitehall perspective, their parliamentary connection may be apparent. Seen from Parliament, they are government drafting counsel. They are, nonetheless, a critical component of legal advice to Parliament. As the translators of ministerial policy into laws which will work in practice, they are essential contributors to the legislative process. Indeed it is often said that the first time ministerial policy comes under effective scrutiny is when the Parliamentary Counsel charged with drafting the relevant Bill begins to ask challenging questions about what the policy really means and how it will work in practice. Ultimately they are responsible for the technical quality of legislation which goes onto the statute book.24 The role of Parliamentary Counsel does not end when the Bill is introduced. Throughout its passage, they support ministers in dealing with amendments. They also have private discussions with the clerks in the Public Bill Offices of both Houses about the selection and grouping of amendments. Although actual

20 Constitutional Affairs Committee, Constitutional Role of the Attorney General (Fifth Report) (HC 2006–07, 306). 21 [1993] AC 593. For more background on this case see ch 2. 22 See D Oliver, ‘Pepper v. Hart: A Suitable Case for Reference to Hansard’ [1993] Public Law 5, 11. 23 See TC Daintith and A Page, The Executive in the Constitution (Oxford, Oxford University Press, 1999) 221 and ch 8; S Laws, ‘Drawing the Line’ in C Stefanou and H Xanthaki (eds), Drafting Legislation: A Modern Approach (Aldershot, Ashgate, 2008) 19–34; M Zander, The Law Making Process (Cambridge, Cambridge University Press, 2004) 14–18 and 24–25. 24 See ch 12.

128 Andrew Kennon decisions on these matters are for the chair in the Commons, the advice given to the chair will reflect points made by Parliamentary Counsel.25 Their responsibility for ensuring that legislation will work in practice means that Parliamentary Counsel will draft government amendments to improve the Bill, not least when a minister has decided to concede to an opposition or backbench amendment which makes the point but is not couched in legally-watertight language. In the case of a Private Member’s Bill, such government amendments may effectively replace the whole content of the Bill. This was the case for two Bills in the 2010–12 Session: the Domestic Violence, Crime and Victims (Amendment) Bill and the Public Services (Social Value) Bill.

C. Ministers and Government Departments It may seem odd to regard ministers (other than the Law Officers, who are a special case) as sources of external legal advice to Parliament. It is often the case that ministers, when being held to account in questions, statements or evidence to committees, explain the legal constraints under which they are operating. These may be that they have to take action in accordance with a recent court ruling or cannot comment on a matter awaiting adjudication in the courts (sub judice).26 Increasingly ministers have become involved in controversial decisions, especially concerning terrorism, asylum and immigration, where political will is limited (or indeed thwarted) by the decisions of a domestic or international court. This was recently the case when the Home Secretary had to explain to the House of Commons why she was not able to deport the Islamist cleric, Abu Qatada, to Jordan following a decision of the European Court of Human Rights.27 Parliament does not necessarily have to agree with what ministers say the law is on such matters, and it has to acknowledge the limitations ministers say they are working under. It is worth noting that on a high-profile case like this, it can be expected that Members will seek advice from the Research Service of the Library and this may sometimes differ from what ministers report to the House. To ensure that the Speaker and the House are as aware as possible of the background to these controversial issues, the Table Office in the Commons maintains channels of communication with government departments about current legal cases. This is to ensure that the House’s self-denying ordinance not to comment on matters currently before the courts is not breached inadvertently. So, if a possible question or motion may touch on sub judice matters, it is normal for the 25 This relationship is described in D Greenberg, Laying Down the Law: A Discussion of the Peoples, Processes and Problems that Shape Acts of Parliament (London, Sweet & Maxwell, 2011). 26 See ch 2 on the sub judice rule. 27 HC Deb 19 April 2012, col 507.

Legal Advice to Parliament 129 Table Office to contact the relevant department for information. That is not to say that the Table Office always takes the same view as the department about whether a matter is sub judice. Behind such ministerial statements are the decisions of the courts themselves. The courts do not give direct legal advice to Parliament but their decisions are sources of law providing the context within which the politics of legislation operates. A decision that an Act should be interpreted in a way differently from expected or that a new problem cannot be dealt with because of a lacuna in the law may provoke discussion in Parliament and this may cause the government to bring forward legislation quickly. A declaration of incompatibility with Convention Rights under section 4 of the Human Rights Act 1998 is advice to Parliament—and to the government—and it triggers the government’s power to lay remedial orders before Parliament under section 10 of the Act.28 A very public form of ministerial advice to Parliament is the statement under section 19 of the Human Rights Act 199829 that a government Bill is compatible with the ECHR. This is backed by detailed analysis of the ECHR considerations in the Explanatory Notes. These are closely examined by the Joint Committee on Human Rights (JCHR) when it considers every Bill and reports to both Houses.30 As with other types of legal opinion, the JCHR may take a different view from the government, and where there is a disagreement this can sometimes be predictive of future action in the courts. A rare example of a minister declining to make such a statement was the House of Lords Reform Bill presented on 27 June 2012. The Deputy Prime Minister, Nick Clegg, said that he was unable to make the statement of compatibility because clause 6 of the Bill provides for elections under rules which prevent prisoners from voting.31 He went on to say that the Government nevertheless wished the House to proceed with the Bill. The Bill was subsequently withdrawn for other reasons.

D. The Judiciary The core constitutional principle of separation of powers, which underpins the principle of judicial independence, on the one hand, and that of parliamentary sovereignty,32 on the other, is a crucial part of the background to any discussion of the flow of communication between judiciary and Parliament. As is explained in chapter thirteen, the principle of judicial independence was reaffirmed 28 D Pannick and I Steele, ‘Human Rights Act 1998’ in A Lester, D Pannick and J Herberg, Human Rights Law and Practice, 3rd edn (London, LexisNexis, 2009) esp 80–82. 29 A Lester and P Uccellari, ‘Parliamentary Scrutiny of Human Rights’ in Lester, Pannick and Herberg, Human Rights Law and Practice (n 27) 803–09. 30 See ch 9. 31 Hirst v United Kingdom (No 2) [2005] ECHR 681. 32 See ch 12.

130 Andrew Kennon in the Constitutional Reform Act 2005, in the context of several interrelated developments that bear upon the present discussion. In particular, the transfer of the former appellate jurisdiction of the House of Lords to the UK Supreme Court in 2009 deprived the House of Lords of its direct access to the expertise of the Law Lords, who had also served on some important select committees—such as sub-committee E of the EU Committee. Section 5(1) of the Act also provides for the possibility of the Lord Chief Justice making formal representations to Parliament about concerns to do with the judiciary or the administration of justice, though this provision—described by the then President of the Supreme Court, Lord Phillips of Worth Matravers as a ‘nuclear option’,—is hardly intended for everyday use.33 Judges contribute to the work of Parliament in direct ways as well as indirectly in their judgments and extra-judicial speeches. One direct method is via their evidence to select committees, discussed below. An example of indirect communication arose at the height of the debate about whether an injunction relating to the Trafigura case in 2009 could prevent reporting of parliamentary proceedings.34 The Lord Chief Justice, Lord Judge, outlined his views on super-injunctions in a press notice from the Judicial Communications Office.35 He said: I am speaking entirely personally but I should need some very powerful persuasion indeed—and that, I suppose, is close to saying I simply cannot envisage—that it would be constitutionally possible, or proper, for a court to make an order which might prevent or hinder or limit discussion of any topic in Parliament. Or that any judge would intentionally formulate an injunction which would purport to have that effect.

Understandably judges are unwilling to comment on individual cases, but their knowledge of legal policy and administration is often invaluable to a committee examining how a particular policy operates or will operate in practice. Judges bear substantial administrative responsibilities within the machinery of justice, so their appreciation of what works well (or less well) is unrivalled. In a rare example of a judge commenting on legislation currently before Parliament, the Lord Chief Justice said on 14 July 2009: We all understand the convention that Her Majesty’s judges do not comment on political issues, nor discuss legislation which we may have to interpret, nor appear to support the views of one political party against those of another. But where constitutional arrangements are engaged, these are of direct importance to the judiciary, not least because any changes which have constitutional implications may affect the relationship between the citizen and the state. Even if we have not been consulted, I believe that we are entitled to speak, and there are some who think we have a duty to speak. Some indeed would think that we have a duty to speak. 33

See ch 13. See ch 2. 35 Judicial Communications Office, ‘Lord Justice’s View on Super-injunctions’, press release (20 October 2009). 34

Legal Advice to Parliament 131 And even as I speak, the Parliamentary Standards Bill is currently being debated this very evening in the course of a rapid legislative process. I comment with due deference because, as it seems to me, and the law for many years has been that Parliament alone must decide how it should be governed, and how it should govern itself. The Bill has changed in numerous different ways during its passage through both Houses. The eventual Act will be significantly different from the original Bill. In other words the parliamentary process has been working. I am not commenting on what I have not seen. But I do suggest that in our constitutional arrangements it is imperative that ultimate responsibility for the governance of Parliament should remain with Parliament. Perhaps I may be allowed to reflect a very personal view that on these issues perhaps members of both Houses may be able to vote in accordance with their consciences and their personal judgment. I do remain concerned at the possibility of any kind of judicial review of any aspect of the governance of Parliament. Such a process would have the potential to bring the judiciary into conflict with Parliament, and in particular the House of Commons. This would be an unpalatable clash, and dangerous for our constitutional arrangements, and the understandings which enable them to work.36

It could be argued that both the interventions by the Lord Chief Justice cited above were helpful to Parliament in making clear timeously that the judiciary had no interest in becoming more closely involved in parliamentary matters. These occurred after the creation of the Supreme Court and the departure of Law Lords from the House of Lords. One issue which has not been fully examined is whether the departure of senior judges from the House of Lords has affected the quality of debate on legislation affecting justice. Although in the latter years before the creation of the Supreme Court, serving Law Lords did not take part in debate, their retired colleagues often contributed—and they may still do so. There is some judicial concern that commenting to parliamentary committees on such matters might affect the propriety of judges hearing a case involving that policy at a later stage. There is also a grey area about the extent to which a judge who has conducted a public inquiry should be called to give evidence on it to a parliamentary committee—perhaps a fine line needs to be drawn between appearing to hold a judge to account and giving a judge a further opportunity to promote and explain his or her report. Committees might well recognise a difference between those inquiries in which the majority of the work is of a fact-finding nature, and those in which, in effect, policy is being reviewed and commented upon. The issue of judges, particularly in the era since the passing of the Constitutional Reform Act 2005, giving evidence to select committees of both Houses is touched on in chapters seven and thirteen. For purposes of the present discussion, it is

36

Judge LCJ, speech to judges (Mansion House, 14 July 2009).

132 Andrew Kennon worth noting the number of occasions judges appeared before committees in just over a year between October 2010 and November 2012: Judicial appearances before select committees in 2010–12 Committee

Subject

Witnesses

Justice

Pre-legislative scrutiny of the Children and Families Bill

Mrs Justice Pauffley and 20 November Mr Justice Ryder, Family Division 2012

PCRC

Standards in legislation

Lord Justice Lloyd Jones37

18 October 2012

Education

Child protection system

District Judge Nicholas Crichton

22 May 2012

HASC

Extradition

Senior District Judge Howard Riddell

28 February 2012

JCHR

Human rights judgments

Lord Judge, Lord Chief Justice 15 November Lord Phillips of Worth Matravers, 2011 President of The Supreme Court

Justice

Revised sentencing Lord Justice Leveson, Chairman, guideline: assault Sentencing Council

14 December 2010

Justice

The Government’s Sir Nicholas Wall, President, proposed reform Family Division of legal aid Sir Anthony May, President, Queen’s Bench Division HHJ Robert Martin, President, Social Entitlement Chapter

7 Feb 2011

Justice

The operation of the family courts

Sir Nicholas Wall, President, Family Division Mrs Justice Pauffley Mr Justice Ryder

1 March 2011

Justice

Draft sentencing guidelines: drugs and burglary

Lord Justice Leveson, Chairman, Sentencing Council

23 June 2011

Justice

The Annual Lord Justice Leveson, Chairman, Report of the Sentencing Council Sentencing Council

13 December 2011

NIAC

Bloody Sunday inquiry

Lord Saville of Newdigate, Chair, Bloody Sunday Inquiry

14 October 2010

PAC

CAFCASS’s response to increased demand for its services

Sir Nicholas Wall, President, Family Division Sir Mark Hedley, High Court Judge, Family Division

12 October 2010

37

In his capacity as Chairman of the Law Commission.

Date

Legal Advice to Parliament 133 In addition: — the Joint Committee on the Draft Defamation Bill took evidence from Lord Neuberger of Abbotsbury, Master of the Rolls and Mr Justice Tugendhat, Head of the Queen’s Bench jury and non-jury lists on 6 July 2011; and — the Joint Committee on Privacy and Injunctions took evidence from Lord Neuberger of Abbotsbury, Master of the Rolls and Mr Justice Tugendhat Head of the Queen’s Bench jury and non-jury lists; and from Sir Nicholas Wall, President, Family Division and Mr Justice Baker on 21 November 2011.

E. Non-judicial Evidence to Committees This is part of the wider world in which everyday interest groups (the judges would certainly not wish to be labelled as such) are proffering advice with the aim of securing government action, funding or changes in the law. The most direct way in which this is delivered to Parliament is in the form of oral and written evidence to committees of each House. In the Commons this includes evidence to public Bill committees considering specific bills as well as select committees conducting scrutiny inquiries. The Justice Committee will regularly seek evidence from the Law Society and the Bar Council. The Political and Constitutional Reform Committee will invite academic constitutional lawyers to put different perspectives on key issues. The volume of evidence all committees receive on how the law is working in practice, how it ought to be changed or how a proposed change will affect people is immense and continuing. One way committees digest and appraise such evidence is by the appointment of specialist advisers with expertise in the particular subject. So the Joint Committee on Privacy and Injunctions appointed Professor Eric Barendt and Sir Charles Gray (a former High Court judge) as specialist advisers. They worked with the Committee’s own staff, suggesting questions to witnesses, lines to be pursued and possible recommendations for the report. It is already clear that there are myriad sources of legal advice to Parliament. Parliament’s need for such advice extends across the wide range of activities which take place in each House.

IV. PUTTING THE ADVICE TO WORK

When each House considers government Bills, the text under discussion has been drafted by Parliamentary Counsel. Even before second reading, outside bodies may have lobbied directly and through the media about the legal impact of the provisions in the Bill. When the Bill goes into committee in the Commons, the

134 Andrew Kennon Law Society, Bar Council and human rights orientated NGOs such as JUSTICE and Liberty may submit written evidence and be asked to give oral evidence to the Public Bill Committee. Members of each House with legal expertise may deploy their knowledge in debate in each House or in committee. Ministerial responses to amendments moved in committee may be informed by legal advice from their departmental lawyers. The Bill also contains a statement by the minister under section 19 of the Human Rights Act 1998 that in his or her opinion the provisions of the Bill are compatible with the ECHR. The Explanatory Notes published with the Bill set out in greater detail the way ECHR considerations have been addressed. Some of this will also apply when Private Members’ (ie backbenchers’) Bills are being considered. The main difference is that some of those Bills will not have been drafted by Parliamentary Counsel. The text of a Private Member’s Bill may originate with the interest group which has campaigned for a Bill on this matter; from the clerks in the Public Bill Office working to a Member’s instruction; or from a government department. In the latter case, the Bill will have been drafted by Parliamentary Counsel. Such ‘hand out’ Bills are usually on subjects where a department knows there is a need for legislation but where that department has not secured a place for it in the government’s legislative programme. A backbench MP who has won a high place in the sessional ballot for Bills may be sympathetic to the same cause and willing to take on a Bill already prepared by the department. There is a further small category of legislation in which private solicitors firms play a key role. Private Bills affect some interests but not the general public interest to which public Bills apply. The growth of private Bills in the nineteenth century is attributed to the need for legislation to build railways over private land.38 Recently, private Bills have been concerned with the powers of specific local authorities to, for instance, regulate trading in markets. Such Bills are drafted and guided through Parliament by ‘promoters’ who comprise a small number of specialist law firms. While an MP or peer is in charge of the Bill in each House, these promoters perform most of the functions of both Parliamentary Counsel and government departments in securing the passage through Parliament of their private Bill. This process can take several years, depending on the degree of opposition. Special procedures apply to such Bills to ensure that the interests affected have sufficient opportunities to put their case for accepting, amending or rejecting the Bill. In some cases of a major private Bill—such as on the Cross-Channel Tunnel, Crossrail or High Speed 2 Bills—the combination of public and private interests requires it to be treated as a hybrid Bill, with procedures which combine public and private Bill practice. For the promoters—as for each House—this is a major operation.

38 See O Cyprian Williams, The Historical Development of Private Bill Procedure and Standing Orders in the House of Commons (London, HMSO, 1948).

Legal Advice to Parliament 135 Legal advice to Parliament is perhaps more obvious in the consideration of delegated or secondary legislation, including remedial orders under the Human Rights Act 1998. These are statutory instruments made under the authority of a parent Act by a minister. They are drafted by departmental lawyers. They may be subject to a variety of parliamentary procedures but the text cannot be amended by either House. So both Houses have set in place procedures to ensure that such instruments are properly drafted. The Joint Committee on Statutory Instruments (JCSI) (and a separate Commons select committee) are advised by the Legal Services Office and their Lords counterparts. They advise whether the instrument is within the powers set out in the parent Act, whether they are properly drafted, whether they involve additional expenditure or make unusual use of powers. Each year the JCSI reports a number of statutory instruments for failing these tests. In preparing advice for the committees, their lawyers (from the LSO in the Commons and Counsel to the Chairman of Committees in the Lords) are engaged in constant discussion with departmental lawyers. It can be said that this form of legal advice to Parliament is the real quality control on delegated legislation. Some forms of delegated legislation have more elaborate procedures to reflect the greater scale of changes they may make to primary legislation. Thus Regulatory Reform Orders go through a special process, as do Orders under the Human Rights Act 1998 and the Public Bodies Act 2011.39 In all these cases internal legal advice is available to the committees considering these instruments. In a similar way, all EU documents subject to parliamentary scrutiny are examined by the staff of the European Scrutiny Committee in the Commons. Their compatibility with the various EU treaties, UK statute law and past EU legislation is assessed by the legal advisers to the Committee, whose advice forms the basis of the Committee’s report on that document. In the Lords, the EU Committee works though six sub-committees, taking a wider view of the policy considerations, and drawing on legal advice from its two legal staff. Given the complexity of EU law and the political controversy arising from EU matters, this role for legal advisers is particularly sensitive. As mentioned above, the Joint Committee on Human Rights40 also conducts systematic scrutiny of primary legislation. After each Queen’s Speech, the legal advisers to that committee prepare a paper on the ECHR issues likely to arise on the Bills which have been announced. As those Bills are brought to the House, the Committee then considers specific issues, including those mentioned in the Explanatory Notes as relevant to the minister’s statement of compatibility with the ECHR on the face of the Bill. The Committee’s report will then draw attention to continuing problems and will be drawn on in debate on the Bill in both Houses.

39 For the procedure for remedial orders under the Human Rights Act 1998 see Erskine May’s Parliamentary Practice, 24th edn (London, Butterworths, 2011) 691–2. 40 See ch 9.

136 Andrew Kennon When draft Bills are presented to the House, they are considered either by an existing select committee or by a joint committee appointed for that task. Such joint committees are usually staffed from the Lords Committee Office and the Commons Scrutiny Unit. The team assembled to work on the draft Bill will include a lawyer from the Unit as well as economists and others. Thus a draft Bill is subject to scrutiny from a broad legal perspective from the start. In this way all forms of legislation considered by Parliament receive varying degrees of legal examination. It is up to the committees and the Houses whether to pursue that advice. The existence of these resources for both Houses at least ensures that the government’s legal advice is tested and, if necessary, challenged sufficiently for ministers and officials to be required to reconsider.

A. The Member of Parliament and his Constituency Function: A Hypothetical Case Study So far, this chapter has dealt with how legal advice is applied in Parliament’s legislative role. To illustrate how legal advice is applied in the role of holding the government to account, we might follow how a Member pursues a particular constituency case through the various procedures open to him. The Member receives a letter from his constituent complaining that a relative’s case has been mishandled by the courts and the Home Office. The Member is puzzled by what has gone wrong and asks the Library’s criminal law specialist for advice. She recognises the problem from other cases she has dealt with and advises the Member that there is some dispute about how the law in question should be applied in certain cases. She suggests he table some parliamentary questions to ascertain how widespread the problem is and what resources are being put into dealing with it. The Member tables the questions and the answers show that the Home Office is facing a number of similar cases but is constrained by recent court decisions. Concerned that this matter should be tackled with greater urgency, the Member seeks a half-hour adjournment debate in which he can air the issue for 15 minutes and get a full ministerial response. The title for the debate he applies for includes a reference to a court decision. Clerks in the Table Office, having consulted the department about the state of play on that specific court case, advise the Member that the case is still before the courts and ought not to be referred to in debate until after the court proceedings are over—an application of the House’s self-denying ordinance (the sub judice rule) to respect the courts’ jurisdiction. A broader title for the debate is recommended, which will enable the minister to deal with the general issues without commenting on an individual case. The minister’s response in the debate only partly satisfies the Member and he approaches the chair of the Home Affairs Committee for advice on how to progress it. The chair says the Committee will ask questions about it at its next evidence session on these matters. The clerk of the Committee asks the Committee’s legal specialist to research the matter, in conjunction with his colleague in the

Legal Advice to Parliament 137 Library, and to prepare some detailed questions for the Committee’s oral evidence session. The evidence session reveals that the Home Office is aware of the need for a change in the criminal law but that it is not a priority for the current legislative programme. The Member decides to highlight this by presenting a short Private Member’s Bill to amend the law. Armed with the advice from the Library and the Committee’s legal specialist, he seeks advice from the clerks in the Public Bill Office on how to draft his Bill. Although the Bill makes no progress, the minister assures him he has made his point and the government will include an amendment in its next criminal justice Bill. This will not be in exactly the same wording as his Bill because Parliamentary Counsel have suggested a better way of expressing the legislative intent. This is an example of how one individual case might be pursued by a Member drawing on legal advice at various stages.

V. CONCLUSION

As can be seen from the extensive examples listed above, legal advice to Parliament comes from a wide variety of internal and external sources. Parliament’s needs are varied and are also growing. As greater emphasis is placed on parliamentary scrutiny, the legality of administrative measures taken by the executive, human rights compliance and other technical legal matters (which will increasingly impinge on Parliament itself, as self-regulation becomes less palatable), it is likely that Parliament’s needs for legal advice may grow further. Hence, there is a case for a larger and more integrated parliamentary legal service. It is notable that parliaments in other countries appear to have more lawyers on the parliamentary staff than does the UK Parliament. In addition to scrutiny of policy and legislation, it may also be desirable to increase the availability of legal advice to Members dealing with individual constituency cases or pursuing particular issues in Parliament. While backbench Members may be able to gain support from the Library when investigating policy-related issues, at present, Members may feel exposed when dealing with a constituency case (although it is perhaps debatable whether it is the proper function of legislators to act as an alternative to a law centre or Citizens Advice Bureau on behalf of their constituents). In any event, it is plain that future constitutional and legal challenges will ensure that Parliament is always in need of high quality, wide-ranging legal advice.

6 Freedom of Information and Parliament BEN WORTHY*

I. INTRODUCTION: THE FREEDOM OF INFORMATION ACT 20001

T

HE FREEDOM OF Information (FOI) Act 2000 came into force after a five-year implementation period in January 2005. The Act applies to over 100,000 public bodies. It covers information held by both Houses of Parliament for their administrative work. It does not cover individual MPs or peers.2 A number of the rules and structures that govern how Parliament functions make it a particularly problematic institution for FOI coverage. Parliament’s exclusive cognisance3 and its assumption of immunity from the law make access to privileged material and potential interaction with appeal body rulings difficult. Its governance arrangements also mean Parliament lacks a ‘corporate identity’ or single figure of accountability to deal with FOI in the way a central government department or local authority would. Instead each House has a ‘Corporate Officer’ who is an official and not a Member of either House. The Speaker of the House of Commons and the Clerk of the Parliaments in the House of Lords have responsibilities and powers under FOI, which will be noted below. FOI requests to Parliament played a key role in the exposure of MPs’ abuses of their expenses in May 2009. Although the facts were disclosed to The Daily Telegraph in an unauthorised leak, it was the preceding FOI requests that led, for the first time, to the collation of all MPs’ expenses, making the disclosure of extensive abuses possible. The scandal led to the creation of an outside agency, the Independent Parliamentary Standards Authority (IPSA), to regulate and administer payment of Members’ expenses.4 A number of MPs resigned. It caused political reverberations that continue to this day.

*

Ben Worthy is lecturer in Politics at Birkbeck College, University of London. This chapter is based upon research work, reports and articles co-written with Gabrielle Bourke. 2 See O Gay, MPs’ Allowances and FoI Requests, SN/PC/04732 (London, The Stationery Office, 22 June 2009) 3. 3 See ch 1 above. 4 See ch 4 above for further discussion of these matters. 1

140 Ben Worthy Much of the material in this chapter is drawn from a research project funded by the Leverhulme Foundation and the report on that research that was published by the Constitution Unit at University College London in 2011.5 The research used a combination of FOI requests, analysis of media stories, coding of parliamentary questions and interviews with officials and politicians.6 The chapter examines how and why Parliament was covered by FOI, what requests have been made to Parliament and how they have been dealt with. It then examines to what extent FOI has made Parliament more transparent, more accountable and more trusted. It ends by analysing the MPs’ expenses scandal as a case study. It offers the view that FOI has driven changes in Parliament and enhanced openness while concerns about FOI interfering with parliamentary privilege have proved unfounded. However Parliament’s governance arrangements and culture remain significant obstacles to the full operation of FOI.

A. Application of the FOI Act to the Two Houses of Parliament The UK FOI Act came into force on 1 January 2005. Schedule 3 of the Act defines a public authority and a separate list outlines the bodies to which the Act applies: the two Houses of Parliament are specifically listed.7 The FOI Act provides for a basic right of access to official information. A request can be made by any person for any information and a response must be received within 20 days.8 Not all requested information needs to be disclosed: requests are subject to a set of exemptions, some of which are ‘absolute’ and others which can be subjected to a ‘public interest test’ to weigh factors for and against disclosure.9 Commonly used grounds for refusal include that the request is for personal information (protected by the Data Protection Act via section 40) or for material that is intended for future publication (sections 21 and 22). Another important exemption is section 36, which allows refusal on the ground that release may prejudice the effective conduct of public affairs, which often involve ‘sensitive’ areas, particularly around policy-making.10

5 G Bourke and B Worthy, The Sword and the Shield: The Use of FOI by Parliamentarians and the Impact of FOI on Parliament (London, Constitution Unit, 2011). Interviews quoted are taken from this publication. 6 For more detail see Bourke and Worthy (ibid) and R Hazell, B Worthy and G Bourke (2012) 90(4) ‘Open House: Freedom of Information and its Impact on the UK Parliament’ Public Administration, 901–21. 7 See sch 3 of the Act. 8 See sch 1 of the Act. 9 See pt 2 of the Act, ss 21–44, which list the 23 exemptions and make provision as to whether or not they are subject to a public interest test. 10 For a detailed account of each exemption see Ministry of Justice (MOJ), Memorandum to the Justice Select Committee Post-Legislative Assessment of the Freedom of Information Act 2000 (London, The Stationery Office, 2011) Annex C, 70.

Freedom of Information and Parliament 141 If a requester is dissatisfied with the response to the request, they can appeal via an internal review, then to the Information Commissioner, to the Information Rights Tribunal (previously called the Information Tribunal) and then on to the High Court.11 The Act is not only about obtaining information through a request: sections 19 and 20 require bodies to publish information by creating publication schemes listing material that will be disclosed proactively.12 Both Houses of Parliament also have a special exclusion power. Under section 34 of the Act the Speaker of the House of Commons or the Clerk of the Parliaments in the House of Lords can issue an exemption if the request infringes parliamentary privilege. The exemption, in the form of a certificate, states the necessity of withholding the information to protect parliamentary privilege, or to avoid ‘prejudice to the effective conduct of public affairs’.13 Fewer than 20 section 34 certificates have been signed since the Act came into force in 2005, covering for the most part unpublished proceedings of select committees. The Information Commissioner has declined to challenge a section 34 certificate, recording simply that the certificate serves as conclusive evidence of the exemption.14 The potential complexities of applying FOI to legislatures means the UK Parliament is one of the few Westminster style legislatures that has been made subject to the Act (Canada’s, Australia’s and New Zealand’s are exempt). There has been little analysis of the impact of FOI on parliaments, as opposed to governments. Studies of FOI relating to legislatures have tended to focus on whether and how parliamentarians use FOI for government scrutiny.15 The UK Government did not originally intend FOI to include Parliament, partly owing to concerns that its application would lead to a focus on parliamentarians rather than government.16 However, the Public Administration Select Committee (PASC) suggested during the legislative process that: there are many administrative functions carried out within Parliament which, it seems to us, do not need to be protected, any more than do those of the police [and] the justification for the exclusion of Parliament has not been made out.17

11

See the FOI Act, pt 1 (ss 19–20) and pts 4 and 5. For more detail about how FOI works in the UK see P Birkinshaw, Freedom of Information: the Law, the Practice and the Ideal (Cambridge, Cambridge University Press, 2010). 13 See the FOI Act, pt 2, s 36. 14 Information Commissioner, Decision, Notice FS 50224829 (22 April 2009). 15 See, eg, N White, Free and Frank: Making the Official Information Act Work (Wellington, Institute of Policy Studies, 2007) and B Worthy, ‘The Sword: How MPs and Peers Have Used the Freedom of Information Act’ Parliamentary Affairs (published online: 21 December 2012). http:// pa.oxfordjournals.org/content/early/2012/12/20/pa.gss091.abstract. 16 Birmingham Post, ‘FOI Architect Says it was Right to Keep Secrets’ (Birmingham, 23 July 2008). See also Gay, MPs’ Allowances and FoI Requests (n 2) 3. 17 Public Administration Select Committee, Public Administration (Fourth Special Report HC 1020) July 1998. See www.publications.parliament.uk/pa/cm199798/cmselect/cmpubadm/1020/102002.htm. 12

142 Ben Worthy No other comment was made about Parliament’s inclusion or exclusion and it appears Parliament was simply added to the scheduled list at a later stage.18

B. What Does FOI Cover and How Does it Work? The FOI Act covers both Houses separately.19 It does not cover information held by Members or by political parties—which are not public authorities for the purposes of the FOI Act. It does, however, cover all information held by either House—subject, of course, to the usual exemptions (for example, personal data). In addition, a further exclusion was added in 2008 so that the Act covers only information other than (a) information relating to any residential address of a member of either House of Parliament, (b) information relating to travel arrangements of a member of either House of Parliament, where the arrangements relate to travel that has not yet been undertaken or is regular in nature, (c) information relating to the identity of any person who delivers or has delivered goods, or provides or has provided services, to a member of either House of Parliament at any residence of the member, (d) information relating to expenditure by a member of either House of Parliament on security arrangements. Paragraph (b) does not except information relating to the total amount of expenditure incurred on regular travel during any month.20

A wide range of material is, therefore, potentially covered including documents relating to the administration of the House and the expenses of Members, papers and briefings prepared by officers of either House or correspondence between Members or ministers and the staff of either House.21 Parliament presents particular difficulties for FOI, in terms of retaining ‘exclusive cognisance’ and the right of each House to govern its own affairs,22 as the FOI Act raises the possibility of independent bodies ruling on decisions made by the two Houses, potentially infringing this right. Moreover, Parliament’s governance structure, as seen below, may create an ‘accountability vacuum’ as to who is responsible for resolving FOI problems higher up in the organisation. In the course of the Constitution Unit research 18

See Bourke and Worthy, The Sword and the Shield (n 5). See O Gay, MPs and FoI, SN06452 (London, The Stationery Office, 2012). 20 See The Freedom of Information (Parliament and National Assembly for Wales) Order 2008 (SI 2008/1967), art 2(3) (House of Commons) and art 2(4) (House of Lords); this came two months after the decision of the High Court in Corporate Officer of the House of Commons v Information Commissioner [2009] 3 All ER 403 upholding the decision of the Information Tribunal ordering the disclosure of information concerning MPs’ expenses. 21 See P Coppel, Information Rights, 3rd edn (Oxford, Hart, 2010) para 21-002 for a fuller list. 22 See ch 1. 19

Freedom of Information and Parliament 143 project officials of both Houses noted the unique structural arrangements which make Parliament different from other public institutions.23 Like other public bodies, each House has a designated FOI officer responsible for dealing with requests, who often works with legal officers in the institution. However, it is not clear what happens to those few requests that require greater attention from more senior figures. In local and central government, ultimate FOI responsibility lies with the Chief Executive and Council Leader or senior officials and ministers, who will be involved with a very small number of requests that are difficult or sensitive.24 A number of interviewees for the Leverhulme project noted that the Speaker’s relationship with ‘the House’ is ‘not the same as that between a Minister and a ministry’. The Speaker has a more nuanced relationship with the House they serve, acting not only as a leader but also a conciliator and protector. Speaker John Bercow described the office as requiring the ‘role of umpire’ alongside very important, if largely unseen, managerial functions to ensure that Parliament as a building and an organisation operates smoothly [and]numerous areas where the Speaker can exercise informal influence.25

A Speaker thus faces political pressures that ministers would not and often a more diverse range of opinions from the Members whose interests they are expected to protect. Moreover, the House itself rarely speaks with one voice. As Tony Wright argues: ‘There is no Parliament in a collective sense at all… there is no voice of Parliament that can be collectively orchestrated’.26 This difference assumed significance in the MPs’ expenses scandal when the Speaker was caught between a pressure for openness and a ‘duty’ to protect Members, a balance the former Speaker got wrong (see below). The governance of both Houses, and the difficulties of ‘leading’ each House, is further complicated owing to the fact they are ultimately governed by committees led by Members who are themselves subject to a number of influences from parties and elsewhere. This means decision-making may prove more cumbersome than in other institutions that are subject to the FOI Act.27 As one official put it: ‘Parliament as an institution has a vacuum at the heart of it’. Thus any mechanisms designed to create accountability may face difficulties. Yet Parliament, like other public bodies such as local authorities, has a very long tradition of openness and public engagement. From the publication of Hansard

23 For more on the Speaker see P Evans, Dods Handbook of House of Commons Procedure 2011/12 (London, Dods, 2011) 21–22 and for a description of the governance structure see 221–225 of the same title. 24 B Worthy, J Amos, G Bourke and R Hazell, Town Hall Transparency: the Impact of Freedom of Information on Local Government in England (London, Constitution Unit, 2011) 27. 25 J Bercow, ‘Giving the Speaker a Voice: A Traditional Office in a Modern Political Age’ (16 August 2012) www.johnbercow.co.uk/16082012_south_africa. 26 T Wright, ‘Prospects for Parliamentary Reform’ (2004) 57(4) Parliamentary Affairs 867–76, 871. 27 For a discussion see T Wright, ‘What Are MPs For?’ (2010) 81(3) Political Quarterly 298–308.

144 Ben Worthy to the televising of debates, Parliament has sought to make itself increasingly open both physically and, increasingly, virtually.28 This sets it apart from bodies such as central government departments: one parliamentary official spoke of how ‘it would be hard to find an organisation, which provides more information’. Parliament is constantly being asked questions, offering responses and publishing a wide range of information: in parallel to FOI requests, the public submitted 40,000 questions to the Commons Information Office in 2009.29 In January 2012 the House of Commons also began publishing all spending over £500 in line with the Coalition Government’s transparency agenda which involves proactive publication of spending data.30

C. FOI Requests to Parliament Like other public bodies, officials in both Houses used the five-year period between the passing of the Act and its implementation to create systems, develop publication schemes, update records and management processes and consider the practicalities of the FOI system. In anticipation of interest, the Lords and Commons released expenses and allowances data in aggregated form in October 2004, before the Act came into force. The information was not as detailed as some hoped but it gave basic information on expenses. It may well have stimulated interest in the topic.31 Analysis of the full logs of requests between 2005 and 2009 reveals interesting patterns. As with FOI more generally, numbers of requests fell after the initial publicity and enthusiasm of 2005, with a drop in 2006.32 Again as with other bodies, this was followed by an increase in the number of requests between 2008 and 2009. Both Houses appeared to change their approach as time passed, perhaps as more was learnt about how the Act worked in practice. In terms of patterns, a number of points can be made. First, in terms of results of requests full or partial disclosure is the most common outcome (see Table 1).

28 See, eg, the Parliamentary Papers Act 1840 or T Wright, ‘Inside the Whale: the Media from Parliament’ (1998) 69(b) Political Quarterly 19–27. 29 House of Commons Information Office, ‘HCIO Statistics 2009’ www.parliament.uk/mps-lordsand-offices/offices/commons/hcio/. 30 See the House of Commons’ website at http://www.parliament.uk/business/publications/ commons/transparency-reporting/. For background on the Transparency Agenda see Cabinet Office, Open Data White Paper: Unleashing the Potential (London, The Stationery Office, 2012). 31 See H Brooke, The Silent State: Secrets, Surveillance and the Myth of British Democracy (London, Windmill Books, 2009) 229, who spoke of how ‘what came out in 2004 were bulk figures in various categories: travel, staff, second homes etc. I wanted the detail. I wanted actual receipts. That’s where you find the truth’. 32 For more on general patterns of FOI request over time see R Hazell, B Worthy and M Glover, The Impact of the Freedom of Information Act on Central Government in the UK: Does FOI Work? (Basingstoke, Palgrave Macmillan, 2010). The information on requests to Parliament and disclosures is taken from Bourke and Worthy (n 5).

Freedom of Information and Parliament 145 Table 1: Requests to both Houses of Parliament, by year and result, 2005–09 Year

Information released in full

Information released in part

Information withheld in full

‘Everything else’

Total requests

2005

97 (37%)

27 (10%)

71 (27%)

64 (25%)

259

2006

81 (42%)

19 (10%)

45 (24%)

46 (24%)

191

2007

92 (37%)

38 (15%)

59 (24%)

60 (24%)

249

2008

134 (32%)

72 (17%)

133 (32%)

82 (19%)

421

2009

311 (34%)

214 (24%)

191 (21%)

194 (21%)

910

Total

715 (35%)

370 (18%)

499 (25%)

446 (22%)

2030

Note: ‘Everything else’ category includes requests that are transferred or lapsed, where the information is not held, where clarification of the request is not provided by the requester, or where the requester is helped outside the formal FOI process. Table 2: Requests to House of Commons out of the totals to the two Houses, by year and topic 2005–09 Request topic

2005

2006

2007

2008

2009

Total

Parliamentarians

47%

51%

41%

54%

59%

55%

The House’s Administration

27%

28%

29%

30%

19%

24%

Select Committees

13%

11%

15%

5%

3%

6%

Official Parliamentary Business

8%

4%

10%

6%

12%

9%

Particular Issue

5%

6%

6%

5%

7%

6%

Secondly, in terms of focus requesters’ interest has been overwhelming on the House of Commons, which receives up to 80 per cent of all requests. As Table 2 shows, requests relating to MPs have been nearly double those about House administration. This interest rose in 2008–09 as the FOI cases went through the appeal system and parallel scandals emerged such as that of Derek Conway MP, who paid his sons for work that was not done through his allowance. Patterns of FOI requests to the Lords had a different focus. Initially they centred on proceedings and the work of the Law Lords. This shifted over time to focus, as in the Commons, on the work and activities of peers. In both Houses, select committees, despite concerns that FOI may be used to ‘open up’ protected proceedings, have not attracted much interest. To turn to refusals to disclose requested information, the Commons has relied on section 40 (non-disclosure of personal information). This is logical given that many requests focus on individuals and often raise difficult issues of the conflict

146 Ben Worthy between transparency and privacy. The Lords also relies on section 40 often and this is the second most used ground for refusal after section 21 (information available by other means). Interestingly, the outcomes of appeals to the Information Commissioner demonstrate a clear division: defence of refusals to disclose information on issues such as expenses or spending was rarely successful, while defence on grounds of procedure often succeeded.33 The Commons lost attempts to defend withholding information about MPs’ travel or communications expenses but defended most effectively the withholding of information about business or procedure, often by relying on the special section 34.

II. PARLIAMENTARY PRIVILEGE AND FOI

Many other FOI regimes in Westminster style democracies do not cover legislatures owing to fears that parliamentary privilege would be breached by independent bodies’ ruling’ on House actions, undermining their right to ‘govern themselves’. This right dates back to 1689 in England and Wales, when ‘the continued exclusion of interference in or by the courts in the proceedings of either House was succinctly and robustly asserted’.34 Although it has shifted over time, according to a 2012 report: In the present day, exclusive cognisance manifests itself most importantly in the recognition that conduct and procedure in parliamentary proceedings is for the relevant House to regulate (or deviate from). This means that the courts cannot strike down Parliament’s decisions by challenging the procedures used to reach the decisions, nor may they suspend someone as a member of either House.35

While some feared that FOI could be used to open up privileged areas, such as the select committees’ processes or MP-constituent communications, transparency advocates were concerned that the ‘catch-all’ nature of the exemption could be stretched and abused. Neither the worst fears of parliamentarians nor those of transparency supporters have come to pass. As one House of Commons official told us, FOI requests that relate to privilege are dealt with on a case-by-case basis, in part because the section 34 exemption is rarely relied on (see Table 3). It will be noted that the Lords only relied on section 34 11 times (2 per cent of all requests received up to 2009). Six of these requests were nevertheless released in part and other

33 See, eg, Information Commissioner’s Office, Freedom of Information Act 2000 Decision Notice Reference FS50071194 and FS50072319 (22 February 2006) for an unsuccessful defence over travel expenses. See for a successful defence relating to legal privilege Decision Notice Reference FS50440164 (13 August 2012). 34 Erskine May’s Parliamentary Practice, 24th edn (London, Butterworths, 2011) 227. 35 HM Government, Parliamentary Privilege (Green Paper, Cm 8318, 2012) 12.

Freedom of Information and Parliament 147 Table 3: Number of times that the s 34 exemption was relied on in response to FOI requests 2005–09 Year

Commons

Lords

2005

15

1

2006

14

2

2007

21

2

2008

16

4

2009

23

2

Total

89

11

exemptions were applied to the requests in tandem with section 34. The equivalent figure for the Commons is 89 requests (5 per cent). Despite the concerns raised, most officials and parliamentarians interviewed for the Leverhulme project did not mention privilege as an issue and found it difficult to raise any specific concerns or examples of problems. Officials traced an ‘evolution’ in attitudes from ‘defensive’ to proactive. Many MPs also criticised the attempt by three of the MPs charged with fraud to argue that their expenses were covered by privilege.36 Crucially, MPs’ expenses information was never made subject to the section 34 exemption.

III. THE IMPACT OF FOI ON PARLIAMENT

A. Transparency Freedom of information legislation aims to do many things. At its core is the intention to make government and public bodies more open and accountable. It also aims to make institutions more trusted and to encourage greater public participation.37 This section will examine the impact of FOI on transparency, accountability and public trust in Parliament. In terms of transparency, away from the high-profile expenses scandal, FOI has revealed a range of material. This is often low-level information or particular

36

See the ‘MPs’ expenses cases’: R v Chaytor and others (Appellants) [2010] UKSC 52. See Hazell et al, The Impact of the Freedom of Information Act on Central Government in the UK: Does FOI Work? (n 32); B Worthy, ‘More Open but Not More Trusted? The Effect of the Freedom of Information Act 2000 on the United Kingdom Central Government’ (2010) 23(4) Governance 561–82 for a detailed discussion of the objectives of FOI. 37

148 Ben Worthy statistics but it covers a broad area. Some has been corporate or operational information such as the CO2 emissions of Parliament’s buildings, policies relating to pest control in the Palace of Westminster, and the costs of construction of the Visitors Centre. Given the emphasis noted above on MPs and peers, much of the corporate and operational information disclosed has also been focused on Members: the restaurant tabs of MPs, peers with criminal convictions, and ‘golden parachute’ payments to former MPs.38 An examination by the Ministry of Justice of FOI concluded: Parliament has also become more transparent; whereas it has always published the proceedings of debates and committee hearings, it now makes available details of parliamentarians’ expenses and ‘inner workings’ of parliamentary facilities that were not previously released.39

The Act mandates proactive disclosure and both Houses have published material on decision-making. The House of Commons Commission and Management Board published background documents.40 The key question is whether this transparency has created a shift in culture. Openness supporters point out that any law can be passed but what is crucial is that internal cultures adapt to more transparent ways of ‘doing business’. There was some division on this question across the interviewees in the Leverhulme project. Some officials felt Members had to be ‘dragged’ towards transparency and there was a lack of real will to become transparent. One interviewee was concerned that the openness was mechanistic, with MPs ‘going through the motions’ rather than culturally changing their behaviour. Another observer felt Parliament still believed itself to be ‘above the law’ regarding FOI.41 The doubts and reluctance over FOI eventually caused a reaction in 2007, when David Maclean MP proposed a Private Member’s Bill designed to exempt both Houses from the FOI Act. The Bill was purportedly based on concerns over privacy and privilege, and sought to remove both Houses from the list in Schedule 5 of the Act. The attempt provoked an outcry from some MPs, which was taken up by the press.42 Despite this opposition, the Bill was passed by the Commons, leading to claims it had the tacit support of the Government and Opposition. It was dropped only when no peer sponsored it in the Lords. Officials and MPs

38 See The Guardian, ‘Public Buildings Pumping out CO ’ (London, 2 January 2009); The 2 Independent, ‘It’s Official: the Houses of Parliament Really are Full of Vermin’ (London, 19 November 2008); House of Commons, Freedom of Information Request Log 2008 (tables); Daily Telegraph, ‘Huge Food and Drink Tabs Run up by MPs’ (London, 20 May 2010); ePolitix.com, ‘220 MPs Receive Golden Goodbyes’ (London, 6 April 2011). 39 MOJ, Memorandum to the Justice Select Committee Post-Legislative Assessment of the Freedom of Information Act 2000 (n 10) 85. 40 House of Commons Management Board, Minutes of the Management Board Meeting, 22 September 2010 www.parliament.uk/documents/commons-commission/Commons_Management_Board/ MB2010/08-Sept10/MB2010.MIN.08-Management-Board-minutes-Sept-10.pdf. 41 See Bourke and Worthy (n 5). 42 For a full account see Gay (n 2) 22–23.

Freedom of Information and Parliament 149 felt the reasoning based on privacy was a ‘smokescreen’ for more personal motivations. Peers among our interviewees labelled it a ‘cynical’ move over a complete ‘non-issue,’ and noted that within the House ‘there was a very strong feeling that Parliament should be treated equally … not be privileged over other institutions’.

B. Accountability FOI brings accountability by allowing those wishing to ask questions to access the evidence needed upon which to base questions. In this way, supporters hope, it makes for a powerful accountability tool. FOI does not exist alone: it is necessary to consider the wider context within which public authorities operate and other ways in which they may be brought to account. In addition to more traditional means of accountability such as to Parliament or through judicial review, FOI was enacted at a time of wider reform of the public sector which altered the more traditional hierarchical means of accountability.43

MPs and, to a lesser extent peers, face an array of accountability pressures from the electorate to the media. There is also a wide set of rules and regulations such as Houses’ Codes of Conduct.44 An emerging new force for accountability may be the information revolution, gradually taking its place alongside the more established means: MPs and peers can and do email, blog and tweet.45 To the Lords FOI actually presented a chance to open itself up and become more accountable. Some peers expressed the hope that, as one put it, FOI could help dispel the idea that the Lords is a closed gentlemen’s club, and make peers more accountable and responsive. However, on this score the Lords will be disappointed. The Commons receives four in every five requests and the media, a key driver of FOI and the main conduit for FOI information to the public, very rarely uses or reports FOI information about the Lords. The main exception was a negative one, the 2007 lobbying scandal (see below). The central accountability that FOI produces is about MPs themselves, as requests focus on them rather than the administrative work of the Commons. In the Leverhulme research project interviews MPs felt the accountability FOI created was flawed in two ways: its focus on small matters and its ‘scattergun’ tendency. Many requests concerned what could be termed minutiae such as office costs or restaurant bills, and some MPs worried that their entire role would be ignored by those focusing on particular bills or items. This focus on smaller items

43

MOJ (n 10) 56. See House of Commons, The Guide to the Rules relating to the Conduct of Members (HC 2010–12, 735); House of Lords, Code of Conduct for Members of the House of Lords and Guide to the Code of Conduct www.publications.parliament.uk/pa/cm/cmcode.htm. 45 For an interesting discussion of how this electronic accountability worked in the expenses scandal see N Allington and G Peele, ‘Moats, Duckhouses and Bath Plugs: Members of Parliament, the Expenses Scandal and Use of Web Sites’ (2010) 63(3) Parliamentary Affairs 385–406. 44

150 Ben Worthy is a frequent complaint across FOI regimes, though it is in part due to the nature of the law and how it is used: a study of Australian, New Zealand and Canadian FOI regimes wrote of how they ‘led to greater accountability, but ... on a small scale: greater scrutiny of ministers’ expenses rather than of their management of economic policy’.46 Moreover, there was concern that FOI was driven by media interest or items on the political agenda, so that it tended to be shifting and, in some senses, random. Officials who were interviewed were not convinced that FOI had improved accountability. This was partly because the complex governance arrangements in Parliament made ‘pinning’ a decision or course of action on one person difficult. This was also because whether FOI led to accountability depended on what request was made and what use was then made of information. Accountability thus did not ‘automatically’ result from an FOI request.

C. Trust The link between transparency and trust appears simple but is in fact complex. There are two emerging and opposed schools of thought in this new area. Supporters hold that by reducing secrecy, promoting understanding and discouraging poor behaviour, transparency will increase public trust.47 By contrast sceptics, including Tony Blair, hold that the hostile media environment and the use of FOI to unearth ‘scandal’ mean that FOI actually undermines trust.48 Academic Baroness Onora O’Neill argues that FOI is not the appropriate tool to create the sort of in-depth communication that can shift attitudes.49 Parliament is a particularly difficult case. The expenses scandal, only partly a result of FOI, quickly translated into a ‘trust’ issue with a number of polls indicating a steep and sudden drop in public trust in politicians. The MOJ study concluded that ‘the MPs’ expenses controversy is an example of where information released under FOI has weakened rather than strengthened trust in public institutions’.50 Media analysis seems to support the critics of FOI. The Constitution Unit research looked at newspaper articles using FOI requests to Parliament and analysed whether they would be likely to make a reader ‘trust’ or ‘distrust Parliament more’. They found that a clear majority of 117 stories (from 154) would decrease

46 See Worthy, ‘More Open but Not More Trusted?’ (n 37) 561–82 and R Hazell, ‘Freedom of Information in Australia, Canada and New Zealand’ (1989) 67 Public Administration 189–210, 208. 47 See C Falconer, ‘Speech to the Campaign for Freedom of Information’ (London, 1 March 2004) or J Stiglitz, ‘Transparency of Government (Part 1)—Breakthrough for Reforming the Shape of a Nation’ (2003) Economics Review www.rieti.go.jp/en/special/economics-review/013.html. 48 Hazell et al (n 32); A Roberts, ‘Free to Distrust’ (2005) Prospect 107. 49 O O’Neill, ‘Transparency and the Ethics of Communication’ in C Hood and D Heald (eds), Transparency: The Key to Better Governance? (Oxford, Oxford University Press, 2006) 75–91. 50 MOJ (n 10) 86–87.

Freedom of Information and Parliament 151 the reader’s trust in Parliament. However, this sample was heavily skewed and biased by the focus at that time on MPs’ expenses. Interviewees’ attitudes to FOI and trust varied widely. A number of interviewees took a very pessimistic view. This contained two distinct perspectives. The first, often but not always from outsiders, was that MPs got their ‘just desserts’ after abusing the system. The second, from some politicians, was that the media had used a few politicians’ poor behaviour to undermine the entire political class. In either case interviewees felt that FOI was part of an already negative political situation and would not improve it: it was, as one put it, rooted in a deeply held perception that politicians are ‘venal’ or untrustworthy, an idea which has a ‘central place in the political discourse’. An FOI Act would be caught within this wider ‘negative behaviour’ or battle. Other interviewees had a more fatalistic perspective: politicians were not and would not be trusted; there was no solution: low trust was an inevitability of politics and no system of accountability would increase trust, especially if it led to negative exposure. Some interviewees were more optimistic about the long term: while acknowledging that FOI could lead to ‘scandal’ and ‘exposure’ in the short-to-medium term, it would act in the longer term to ‘purge’ the political system, ‘cleaning it up’ as the transparency served to encourage better behaviour and deter poor or corrupt activity. This could be termed the ‘short-term pain’ and ‘long-term gain’ idea or, as one interviewee put it, ‘bad comes before good’. A final nuanced view was that FOI was not the correct way to deal with the issue of trust: ‘Trust is very complex and is often discussed in a ‘context free’ way which is artificial and with rather grand statements’; yet it was a quality easily lost and very difficult to regain. It was not clear how an FOI Act would contribute to this long-term process; trust has to be earned through a variety of changes and ‘it is not automatic’. The critics also over-simplify the important nuances in the link between transparency and trust. The Justice Committee pointed out how any impact may depend on what FOI tells us: Whether the Act will contribute to an increase in public confidence in the Government, Parliament and other bodies is primarily dependent on the type of information which is published following a request.51

Trust is also affected by a whole range of other factors. The MOJ concluded that FOI has ‘no generalizable impact on trust’.52 In fact the link is far more complex, context dependent and subtle than critics claim. For example, trust may have fallen in Parliament owing to the expenses scandal but it fell from a relatively low point and, according to the Hansard Society, ‘scandal’ came as a confirmation

51 House of Commons Justice Committee, Post-legislative Scrutiny of the Freedom of Information Act 2000; Volumes 1 and 2 (HC 2010–12, 96-I) (London, The Stationery Office, 2012). 52 Justice Committee (2012) 78.

152 Ben Worthy of pre-existing distrust rather than a revelation.53 Moreover, trust has also fallen across other European Parliaments from 2007, possibly as a result of economic crisis.54 Making over-simplistic generalisations overlooks many important nuances. What can and cannot influence trust in different situations depends on wider contextual factors and subjective perceptions.55

IV. THE MPs’ EXPENSES SCANDAL56

The issue of MPs’ expenses has been by the far the biggest issue relating to FOI in the UK. It invited comparisons with major scandals elsewhere such as tangentopoli in Italy.57 The MOJ acknowledged its importance while pointing out that it was not FOI alone that caused it: The most commonly cited example of FOI use by the media to hold public authorities to account relates to the release of MPs expenses. Of course, it is noted that the release of this information ultimately came via a leak rather than in response to FOIA requests, however it was the existence of the FOIA requests and the subsequent appeals which precipitated the story.58

The scandal gave rise to a whole range of concerns from ‘allegations of serious dishonesty’ with the flipping of houses to some ‘creative abuses of the rules’.59 It led to the resignation of the Speaker of the House of Commons, a record number of MPs standing down and the imprisonment of four MPs for offences of dishonesty. It has also fed into debates about constitutional reform, driving changes and shaping the debate around both the Alternative Vote referendum of 2011 and legislation to facilitate a reduction in the number of seats in the House of

53 See the discussion in Hansard Society, Audit of Political Engagement 7: The 2010 Report with a Focus on MPs and Parliament (London, Hansard Society, 2010). 54 A look across Eurobarometer data on trust reveals a decline in trust across several European countries around this time: see European Commission, Eurobarometer Interactive Search System: Trust in Parliaments 2005–2011 available at http://ec.europa.eu/public_opinion/cf/index.cfm?lang=en. 55 See, eg, B Worthy, ‘Institutionalising Distrust? Reconsidering the Link between Transparency and Trust’ (forthcoming); S Grimmelikhuijsen, ‘Do Transparent Government Agencies Strengthen Trust?’ (2009) 14 Information Polity 173–86 and S Grimmelikhuijsen, ‘Linking Transparency, Knowledge and Citizen Trust in Government: an Experiment’ (2012) 78(1) International Review of Administrative Sciences 50–73. 56 See also ch 4. 57 The Tangentopoli (‘Bribesville’) scandal of the early 1990s, which led to the demise of the postwar Italian party system, uncovered a vast network of payments and kickbacks across all political parties. It led to the collapse of the traditional ruling parties and heralded the arrival of a new political force in the shape of Silvio Berlusconi and his Forza Italia movement (see T Jones, The Dark Heart of Italy, Revised edn (London, Faber and Faber 2006)). For a comparison see The Guardian ‘MPs’ Expenses: Could some of these Cases End up in Court?’ (London, 14 May 2009) and The Guardian, ‘This Expenses Scandal is a Toxic Boost for Anti-politics 13 May 2009). 58 MOJ (n 10) 57. 59 P Leyland, ‘Freedom of Information and the 2009 Parliamentary Expenses Scandal’ (2009) Public Law 2.

Freedom of Information and Parliament 153 Commons.60 The creation of the Independent Parliamentary Standards Authority to oversee expenses has put an end to Parliament’s right to govern its own affairs in this area.61 It indirectly stimulated the reforms to the select committees that had been recommended by Tony Wright MP’s committee before the general election in 2012.62

A. FOI Requests and Appeals As noted above at least some officials in the House of Commons had foreseen public interest with the publication of expenses information in October 2004. In January of 2005 a number of journalists and one MP submitted similar requests covering expenses information from travel to Additional Costs Allowance (ACA) payments. The now famous ‘FOI request’ was actually a cluster of requests sent by journalists who were experimenting with various questions in this area, some of which were refused.63 In 2006, journalist Heather Brooke asked for details of 14 MPs’ ACA payments while Ben Leapman and Jon Ungoed-Thomas of The Daily Telegraph asked for more.64 Following the initial refusals in response to FOI requests, they began to move through the appeal system. As they did so the central tension between transparency and privacy emerged: between the need, pleaded by the Commons authorities, for the House to regulate itself and protect MPs’ privacy, as against the right for the public to know how public money is spent. The appeals from the journalists were grouped together at the first stage of appeal by the Information Commissioner. To allay concerns raised by MPs that publication would release private details, the Commissioner offered a compromise. He allowed the deletion of details and the publication of some information

60 See A Kelso, ‘Parliament on its Knees: MPs’ Expenses and the Crisis of Transparency at Westminster’ (2009) 80(3) Political Quarterly 329–38; A Kelso, ‘New Parliamentary Landscapes’ in P Cowley, R Hefferman and C Hay (eds), Developments in British Politics 9 (Basingstoke, Palgrave MacMillan, 2011) 52–70; Leyland, ‘Freedom of Information and the 2009 Parliamentary Expenses Scandal’ (n 59) 3. 61 The MPs’ expenses scandal story has been mapped out in detail elsewhere and has been studied from a variety of angles: for an overview see Kelso, ‘New Parliamentary Landscapes (n 60); Kelso, ‘Parliament on its Knees’ (n 60) and M Rush and P Giddings, ‘Worlds Apart: Explaining the MPs’ Expenses Scandal’ at the ninth workshop of Parliamentary Scholars and Parliamentarians (Wroxton College Banbury, 24–25 July 2010). There are a number of insider accounts by the journalists involved in Brooke, The Silent State (n 31) and R Winnett and G Rayner, No Expenses Spared (London, Bantam Press, 2009). There are also studies of other aspects such as political communication in Allington and Peele, ‘Moats, Duckhouses and Bath Plugs’ (n 45) and A Daniel and T Flew, ‘The Guardian Reportage of the UK MP Expenses Scandal: a Case Study of Computational Journalism’ (2010) Communications Policy and Research Forum. B Worthy ‘Freedom of Information and MPs’ Expenses’ (forthcoming) examines the role that FOI requests played in driving the scandal. 62 See ch 7. 63 Leyland (n 59) 1. 64 Leyland (n 59) 1.

154 Ben Worthy under general headings, based on the House of Commons categories used in expenses.65 The Commons authorities, hoping for clearer protection and, possibly on the basis of legal advice, took the case to the next level of appeal, the Information Tribunal (now named the Information Rights Tribunal). The Tribunal gave much shorter shrift to concerns about privacy, ruling that the need to disclose such a dubious system overrode privacy concerns. The key Tribunal case took place in April 2008, when the Tribunal considered a number of the FOI appeals together and strongly criticised the ACA system of expenses: No definitive statement of the rules for ACA is available to the public, or even to MPs themselves. It is administered [according to] … a confidential list indicating acceptable costs for certain classes of item based on prices derived from the John Lewis website. The list is kept secret from Members lest the maximum allowable prices become the going rate. Members are not trusted to have access to it.66

In the view of the Tribunal the expenses system was ‘deeply flawed’. The Tribunal thus argued that ‘the shortfall in accountability is so substantial and the necessity of full disclosure so convincingly established’ that this need must outweigh the privacy concerns and ‘that only the most pressing privacy needs should in our view be permitted to prevail’.67 The Corporate Officer of the Commons then appealed to the High Court as provided for under the FOI Act. In his judgment, the President of the Queen’s Bench Division noted that the case raised an important issue since it was a ‘fundamental principle of our constitutional structures that Parliament should not normally be subject to judicial scrutiny or supervision’. Nonetheless, he went on to note that: Specific provision is made for information held by the House to be exempted from the provisions of the Act if any of its privileges may be infringed (s.34(1)). For this purpose the certificate of the Speaker of the House of Commons would provide conclusive evidence (s.34(3)). None has been signed. There is therefore no reason why the right to and extent of access to information relating to the administration of ACA should not be litigated under FOIA.

Although the Commons may have hoped for a reversal or a softening of the Tribunal’s very firm position, the Court endorsed the overriding need for transparency: We have no doubt that the public interest is at stake. We are not here dealing with idle gossip, or public curiosity about what in truth are trivialities. The expenditure of public money through the payment of MPs’ salaries and allowances is a matter of direct and reasonable interest to taxpayers … In the end they bear on public confidence in the

65 See Information Commissioner’s Office, Freedom of Information Act 2000 (Section 50) Decision Notice Reference: FS500704691 (13 June 2007). 66 Information Tribunal [2008] Information Tribunals Appeals EA/2007/0060 and others. 67 Ibid.

Freedom of Information and Parliament 155 operation of our democratic system at its very pinnacle, the House of Commons itself. The nature of the legitimate public interest engaged by these applications is obvious.68

The Court ordered the Commons authorities to publish the expenses details. Amid accusations of delay the authorities began to ‘redact’ (remove particular identifiers) and collate the information. However, before it was published a disc of the ‘raw’ information was leaked to The Daily Telegraph in May 2009.69 The Commons then published redacted versions a month later.

B. Why Did the Scandal Happen? The scandal was the result of a combination of four factors: the system, the response, the internal arrangements in the House of Commons and culture. The expenses system itself made MPs ‘architects of the system as well as the principal beneficiaries’.70 Based on a long-running tacit understanding, this opaque system was increasingly used by MPs as a ‘top up’ for their salary, a use encouraged by authorities anxious to avoid the controversy that would be caused by increasing MPs’ salaries. The lack of precision was reinforced by a failure to understand how ‘flexibility’ may look to the public, as seen with the ‘John Lewis list’. The Information Tribunal commented on how the ACA system was ‘redolent of a culture very different from that which exists in the commercial sphere or in most other public sector organisations today’.71 Secondly, the response of the Commons authorities exacerbated the impact of what was already a very damaging scandal. According to at least one interviewee for the Leverhulme project the four-year battle to resist disclosure itself attracted attention from the media. The secrecy and resistance in the Commons eroded any sympathetic view or ‘benefit of the doubt’ reaction when the information was eventually released. The third factor was the organisational arrangements in the Commons. A controversial request to central or local government would, eventually, be dealt with by a senior official and politician able to drive through a decision, even against the wishes of others. By contrast, the Speaker was caught between the need to force openness and to protect his MPs, a situation further complicated by the lack of a ‘collective’ guidance or consensual view from the House as to what to do. Given the divisions and lack of understanding across the House, a ‘sense of drift’ took hold as the FOI requests moved through the system. Members and others looked for someone to ‘do something’ as the requests moved through each appeal stage but the result, with those in charge subject to competing influences and pressures, 68 Corporate Officer of the House of Commons v The Information Commissioner and others [2008] EWHC 1084 (Admin). 69 See Winnett and Rayner, No Expenses Spared (n 61) for the story behind the leak. 70 Kelso, ‘Parliament on its Knees’ (n 60) 337. 71 Information Tribunal [2008] Information Tribunals Appeals EA/2007/0060 and others.

156 Ben Worthy was instead a ‘lack of leadership’ possibly exacerbated by an over-reliance on contradictory legal advice. Speaker Michael Martin’s perceived inability to deal with the scandal, and his eventual overzealous attempts to ‘protect’ MPs, led to his resignation.72 The Kelly Review that followed the scandal wrote of how ‘a number of those who ought to have shown leadership in maintaining high standards failed at key points to do so’.73 One final possibility is that Parliament’s internal culture created a blind spot. The Commons, open to public view physically and virtually, failed to foresee that FOI would open those few areas that were secret. Parliament’s very openness may have given it a false sense of security, compounded by the fact that so few people knew the extent of the abuse of the system. These four factors combined to create the expenses crisis that dominated the headlines for months, and the effects of which continue to be felt. That such revelations would always cause damage is certain. Yet certain cultural and structural factors, within the rather unique environment of Parliament, led to paralysis in the face of the oncoming political crisis.

C. The Aftermath The most concrete change as a result of FOI and the 2009 Commons’ expenses scandal is the creation of the Independent Parliamentary Standards Authority (IPSA), which now sets the rules on MPs allowances. IPSA represents a significant erosion of exclusive cognisance, and like other erosions, has not been universally welcomed in the Commons. The expenses scandal also prompted a new system of Lords’ allowances, which was devised and is administered in-house and remains in peers’ administration.74 MPs continue to criticise IPSA for excessive, heavy-handed regulation and bureaucracy. They have attempted to change the system through Private Members’ Bills and debates and there have been allegations of a ‘backlash’ from parliamentarians and attempts to ‘destabilise’ its work.75 In October 2012 John Bercow was criticised for asking IPSA to keep details of MPs’ landlords following a request from Channel 4 researchers. The Telegraph spoke of how ‘history appears to be repeating itself ’ and accused the new Speaker John Bercow of failing to learn the

72

Leyland (n 59) 2. Committee on Standards in Public Life, MPs’ Expenses and Allowances—Supporting Parliament, Safeguarding the Taxpayer (Twelfth Report) (Cm 7724, 2009) 2. 74 See House of Lords, Guide to Financial Support for Members (London, The Stationery Office, 2012). 75 HC Deb 20 July 2010, col 189; HC Deb 12 May 2011, cols 1386–404; Guardian, ‘Four Senior Officials Quit Commons Expenses Watchdog with Blast at Bercow’ (London, 13 November 2012). 73

Freedom of Information and Parliament 157 lessons of the expenses scandal.76 The list was eventually released and showed that a number of MPs did rent from other MPs or peers.77 The high-profile ‘exposures’ of individual MPs use of expenses has also continued. In May 2010, days after the Conservative-Liberal Coalition Government was formed, Chief Secretary to the Treasury David Laws MP was forced to resign over payments made to his partner. In October 2012 Chancellor of the Exchequer George Osborne was involved in controversy over his use of standard class ticket to sit in a first class seat on a train, a story that led to the disclosure that a number of MPs were using first class tickets despite IPSA’s guidance to use standard class. In November 2012 former minister Dennis MacShane was forced to step down over falsifying invoices and in December the Culture Secretary Maria Miller, involved in delicate negotiations around gay marriage and press regulation, was reported to the Parliamentary Commissioner for Standards over her second home payments.78

V. OTHER CHANGES RESULTING FROM FOI

The creation of IPSA has not been the only change resulting from FOI. FOI has driven other changes in administrative procedure. Some may be viewed as comparatively minor but some can be seen as important safeguards against corruption or abuse of position.

A. Tax Status of Peers The first change driven by an FOI request concerned the tax status of peers. Here an FOI request by MP Gordon Prentice highlighted irregularities in tax status, focusing on Conservative Party donor and then deputy chair Lord Ashcroft. Ashcroft committed himself to changing his tax status on receipt of his peerage, but FOI disclosures revealed that this promise had not been kept. The pressure from this situation, arguably combined with politics, led to the addition of a clause (sections 41 and 42) in the Constitutional Reform and Governance Bill 2010 requiring UK tax status for peers. This resulted in seven peers taking leave

76 Daily Telegraph ‘John Bercow Has not Kept his Word on MPs’ Expenses’ (London, 18 October 2012). 77 The Guardian, ‘Identities of MPs’ Landlords and Agents Disclosed Despite Security Concerns’ (London, 19 November 2012). 78 The Guardian, ‘David Laws’ Resignation over Expenses Scandal Leaves Coalition in Turmoil’ (London, 29 May 2010); House of Commons Standards and Privileges, Second Report—Denis MacShane (HC 2012–13, 635); Daily Telegraph, ‘MPs’ Expenses: Denis MacShane Resigns’ (London, 3 November 2012); The Guardian, ‘MPs Dodge Expenses Rules to Get First-class Rail Travel’ (London, 21 October 2012); Daily Telegraph, ‘MPs’ Expenses: Maria Miller Reported to MP Watchdog over £90,000 Expenses Claims’ (London, 11 December 2012).

158 Ben Worthy of absence from the Lords, while others, including Ashcroft, changed their tax arrangements in order to remain.79

B. Lobbying Access FOI requests also reopened an old type of scandal in July 2007, over lobbying access. The Times newspaper alleged that peers were abusing the system of parliamentary passes which had been created to give researchers access to the House and its library. The newspaper claimed that these were being given to lobbyists and that peers were ‘handing out exclusive access to the Houses of Parliament to lobbyists and pressure groups, who pay them thousands of pounds a year’.80 Following The Times’ allegations, Leader of the House of Lords, Baroness Ashton, promised to investigate and stamp out any abuse.81 One relatively minor issue concerned restaurant bills. After FOI requests revealed the names of MPs and peers whose restaurant bills were more than 90 days old the House of Commons Commission announced that from then on payment would be taken directly from MPs’ credit cards.82

VI. CLOSING COMMENTS

Supporters of Freedom of Information laws argue that FOI can make institutions more transparent and accountable, leading in turn to better public understanding, increased public participation and increased trust.83 FOI has made Parliament more transparent, though it may not have fostered a more ‘open’ culture. It has also brought greater accountability, though again not always of the sort parliamentarians and supporters hoped for. The issue of trust in politicians remains open: it may improve in time or it may be that FOI is not the correct tool for so complex an issue. The gap between what FOI has achieved and the discontent it has caused among some is indicative of the difficulties of fitting FOI onto public institutions. However, the status of Parliament, in terms of protecting parliamentary privilege, presented fewer problems than many expected. Parliament’s status appeared to present a serious obstacle and a special protection was written into the law 79 See Constitutional Reform and Governance Act 2010, ss 268–275 and The Guardian, ‘Lord Ashcroft Gives up Non-dom Status, Tories Confirm’ (London, 7 July 2010). 80 The Times, ‘Government Promises Action on Cash for Peers’ (London, 17 July 2007). 81 BBC, ‘Any Lords Pass Abuse Must End’ (London, 17 July 2007). http://news.bbc.co.uk/1/hi/ uk_politics/6902102.stm. 82 House of Commons Commission, ‘New System for Payment of Catering Bills in the House of Commons’ (press release, 20 May 2010) www.parliament.uk/documents/commons-commission/ press_release_catering_bills.pdf. 83 C Darch and P Underwood, Freedom of Information in the Developing World: Demand, Compliance and Democratic Behaviours (Oxford, Chandos, 2010).

Freedom of Information and Parliament 159 to protect privilege. However, this protection has worked well and the potential ‘clash’ between FOI and Parliament’s rights has never materialised. By contrast the internal culture of Parliament has prompted resistance and led to claims that transparency has not yet created a truly ‘open’ institution. Parliamentarians seem divided. To some, the claims over MPs’ privacy that drove the appeal cases in the expenses scandal were well-founded: to others they were a smokescreen to hide a dislike of openness. The position of the Speaker, subject to competing pressures, and the lack of a unified ‘voice’ from the Commons on what to do, created a paralysis or inertia during the MPs’ expenses crisis, arguably at the very time that action and leadership were needed. Parliament is likely to open up further with the advent of Open Data and the spill over from the Government’s transparency agenda. Yet it is likely that resistance to FOI will also remain. The continued resistance to IPSA is perhaps indicative of a discontent that will not yet go away.

7 Select Committees: Powers and Functions RICHARD KELLY*

I. INTRODUCTION

P

ARLIAMENTARY SELECT COMMITTEES take many different forms and perform a wide range of functions. But although the scrutiny and inquiry committees with which this chapter is principally (but not exclusively) concerned—such as the departmental committees of the House of Commons—are prominent features of the parliamentary landscape, they display characteristics that differ sharply from the character and culture of the legislature of which they are a part. Such committees are composed almost exclusively of backbenchers; they are (relatively) well-insulated from the attentions of the party whips; they usually strive to produce unanimous reports, underpinned by cross-party consensus; unlike the chambers of the two Houses (particularly the Commons) their procedures are largely inquisitorial—based upon the taking of evidence—rather than adversarial. Select committees have long been appointed by both Houses of Parliament to consider particular subject areas. They ‘were from Tudor times if not earlier a regular feature of the Commons’.1 In the eighteenth and nineteenth centuries, select committees were influential in parliamentary work. For example, inquiries into the slave trade provided evidence which, along with other campaigns, led to legislation abolishing slavery. In 1861, the Committee on Public Accounts was established ‘for the examination of the accounts showing the appropriation of the sums granted by Parliament to meet the public expenditure’ (still in Standing Order No 148).2

* Richard Kelly is a Senior Researcher at the Parliament and Constitution Centre in the House of Commons Library. 1 Select Committee on Reform of the House of Commons, Rebuilding the House (HC 2008–09, 1117) para 48. 2 House of Commons, Standing Orders of the House of Commons—Public Business 2012 (HC 2012–13, 614) Standing Order No 150(2). For an account of the origins and early history of the Public Accounts Committee see B Chubb, The Control of Public Expenditure (Oxford, Oxford University Press, 1952) esp ch VII.

162 Richard Kelly However, in the early twentieth century, select committees appeared to become more party-political and questions were increasingly referred to independent inquiries or royal commissions. In the 1960s and 1970s, pressure for parliamentary scrutiny of nationalised industries and government expenditure led to the establishment of, initially, committees for Nationalised Industries3 and Estimates;4 and a little later, sub-committees under the Expenditure Committee in the House of Commons.5 In 1976–78, the Procedure Committee reviewed these committees and recommended the establishment of departmental select committees, which were established in 1979.6 Select committees usually take evidence in public, deliberate in private and then make reports to the respective House containing their conclusions and recommendations (to the government or others), based on the evidence they have received. As noted below, select committees also have a part to play in legislative scrutiny, but they must not be confused with the public bill committees that undertake detailed scrutiny of Bills.7 Nor should they be confused with all-party groups that are not formally committees of Parliament (even though they operate in a parliamentary context). It is important to bear in mind that, at the end of the day, select committees can only make recommendations, they are not decision-making bodies. Select committees exercise influence rather than power, and the extent of that influence rests on the quality of the evidence that they gather and the use they make of it in constructing well-argued reports. Many committees produce excellent reports but still face an uphill struggle to overcome ministerial resistance. The government aims to provide ‘considered’ responses to select committee reports from both Houses within two months of their publication,8 but is not bound by them. In this respect, Westminster committees are quite different from the powerful committees of the US Congress, which operate in a system based on a constitutional separation of powers. A Congress that is a proactive law-making assembly, independent of the executive, simply could not function without its formidable array of well-resourced committees. Although their approaches are broadly similar, there are different emphases to the work of select committees in the two Houses. In the Commons, the

3 See D Coombes, The Member of Parliament and the Administration: the Case of the Select Committee on Nationalised Industries (London, Allen and Unwin, 1966). 4 See N Johnson, Parliament and Administration: The Estimates Committee 1945-65 (London, Allen and Unwin, 1966). 5 See A Robinson, Parliament and Public Spending: the Expenditure Committee of the House of Commons, 1970-76 (London, Heinemann, 1978). 6 Select Committee on Procedure, First Report (HC 1977–78, 588-I). An account of the background to the establishment of the departmental select committees and an assessment of the early years of their work can be found in G Drewry (ed), The New Select Committees, 2nd edn (Oxford, Clarendon Press, 1989). See also, House of Commons Library Research Paper, The Departmental Select Committee System, RP 09/55, 15 June 2009. 7 See J Levy, ‘Public Bill Committees: an Assessment—Scrutiny Sought, Scrutiny Gained’ (2009) 63 Parliamentary Affairs 534. See also House of Commons Library Standard Note, Modernisation: Public Bill Committees, SN/PC/4541, 12 December 2007. 8 Cabinet Office, Departmental Evidence and Response to Select Committees (July 2005) para 108.

Select Committees: Powers and Functions 163 departmental select committees and the cross-cutting committees with remits extending across government departments have the highest profiles; but there are also committees with legislative scrutiny roles; and internal committees concerned with the House’s own organisation and methods of work. In the Lords, committees do not shadow the work of government departments: the major Lords committees examine subject areas.9 Additionally, both Houses appoint ad hoc committees to consider specific issues and frequently draft legislation (often committees considering draft legislation are joint committees). In 2012, the two Houses agreed to appoint Members to the Banking Standards Commission, which has many of the features of a select committee. Unusually though it was given the power to allow its special advisers to examine witnesses. Additionally, statutory committees have been created to monitor independent bodies. They usually include only Members of Parliament and often behave in similar ways to select committees, although their remits are generally more tightly defined, in the legislation creating them, than the permanent select committees which often have the power to determine how they operate under their terms of reference. Some examples of statutory committees are given below. The way in which committees are appointed differs between the two Houses. Standing Orders in the House of Commons provide for a number of permanent select committees to be appointed for an entire Parliament, whereas in the House of Lords committees are appointed on a sessional basis.10 Usually there is continuity in the membership of Lords committees so inquiries can continue despite the end of a session. In the Commons, the chairs of most select committees are elected by the whole House and other members are chosen by their party groups, following recommendations from the Select Committee on Reform of the House of Commons (the Wright Committee) in 2009 and decisions of the House in 2010.11 In the past, and in the Lords, nominations to select committees were arranged by the political parties. In the Commons, the influence of the whips in the process had led to proposals for reform in 2002 that were not accepted by the House.12 The Wright Committee was proposed by Tony Wright, chairman of the Public Administration Select Committee. He went on to chair the Committee. Wright sought to address a number of issues that reformers had campaigned on for a number of years.13 9 There are currently five major Lords select committees: the European Union Committee; the Science and Technology Committee; the Communications Committee; the Constitution Committee; and the Economic Affairs Committee. 10 Erskine May’s Parliamentary Practice, 24th edn (London, Butterworths, 2011) 891–92. 11 HC Deb 22 February 2010, cols 37–132; 4 March 2010, cols 1062–100. 12 HC Deb 14 May 2002, cols 648–720. 13 Select Committee on Reform of the House of Commons, Rebuilding the House (n 1) para 4. The Committee was established against the backdrop of the expenses scandal—the call ‘something must be done about the House of Commons’ provided an opportunity for reformers to make their case for changes to the way procedures within the Commons operated, as well as an opportunity to review and reform the Members’ allowances scheme. The Committee asserted that ‘Without the shock of recent events, it is unlikely that this Committee would have been established’. For other developments following the expenses scandal, see ch 4.

164 Richard Kelly On 10 June 2009, the then Prime Minister Gordon Brown made a statement on constitutional renewal. He confirmed the Government’s intention to reform the Committee system: We must … take forward urgent modernisation of the House of Commons, so I am happy to give the Government’s support to a proposal from my hon. Friend the Chairman of the Public Administration Select Committee that we work with a special parliamentary commission comprising Members from all sides of this House, convened for a defined period to advise on necessary reforms, including making Select Committee processes more democratic, scheduling more and better time for non-Government business in the House, and enabling the public to initiate directly some issues for debate.14

The Committee was charged with considering, among other things, the appointment of members and chairs of select committees. It is just one a of a number of reviews of select committees that have taken place since the departmental select committees were permanently established in 1979. In 1990 the Procedure Committee (at the time a periodically appointed Commons select committee; it was made permanent in March 1997) held an inquiry into the operation of select committees.15 In 1999–2000, the Liaison Committee (a select comprising the chairs of all House of Commons select committees) reviewed the operation of select committees, 20 years after the creation of the departmental select committees.16 That review was quickly followed by the Modernisation Committee’s report on Select Committees in 2002.17 Both called for greater independence in the appointment of chairs and members; more resources for committees; and a greater focus on common objectives for select committees. The Liaison Committee suggested that additional salaries for select committee chairs should be considered and the Modernisation Committee recommended that additional salaries should be paid to the chairs of the ‘principal investigative committees’.18 More resources were made available in the 2001 Parliament: additional staff were appointed to select committees and the Scrutiny Unit was established to provide specialist expertise to select committees, particularly on financial and legal matters. On 14 May 2002, the House debated the Modernisation Committee’s report. It endorsed the principle of paying additional salaries to select committee chairs and invited the Senior Salaries Review Body to consider what an appropriate additional salary would be. On 30 October 2003, the House accepted the SSRB recommendations and an additional salary of £12,500 per annum was introduced from the beginning of the 2003–04 Session. From 1 April 2010, the 14

HC Deb 10 June 2009, col 797. Procedure Committee, The Working of the Select Committee System (HC 1989–90, 19). 16 Liaison Committee, Shifting the Balance: Select Committees and the Executive (HC 1999–2000, 300). 17 Modernisation Committee, Select Committees (HC 2001–02, 224-I). (The Modernisation Committee was proposed by the Labour Government in 1997 to consider how the practices and procedures of the House of Commons should be modernised. Unusually for a select committee, it was chaired by the Leader of the House—a Cabinet minister.) 18 Liaison Committee, Shifting the Balance: Select Committees and the Executive (n 16) paras 29–34; Modernisation Committee, Select Committees (n 17) para 41. 15

Select Committees: Powers and Functions 165 additional salary has been £14,582 (the Member’s salary is £65,738).19 However, the appointment procedures remained unchanged until the recommendations of the Wright Committee were implemented in 2010. The Wright Committee also recommended that the Liaison Committee should ‘re-examine the current role of select committees, their resources and their tasks, and in particular how to deal with the increasing demands of time made of Members as their role grows’.20 In November 2012, the Liaison Committee’s review, Select Committee Effectiveness, Resources and Powers, was published. The Committee’s inquiry went beyond role and resources as ‘Events during 2011, particularly the Culture, Media and Sport Committee’s inquiry into Phone Hacking, also brought into question the powers that are available to us: particularly our power to ensure the attendance of witnesses and the truth of evidence’.21

II. ROLE OF SELECT COMMITTEES

In 2002, the Liaison Committee had identified 10 core tasks for Commons select committees, following a Modernisation Committee recommendation. Before recommending that ‘there should be an agreed statement of the core tasks of departmental select committees’, the Modernisation Committee had noted that the Hansard Society had drawn its attention to ‘shortcomings’ of select committees. They provided ‘modest oversight’ of independent regulators, executive agencies and departmental boards and committees were ‘inconsistent’ in carrying out financial scrutiny. The Modernisation Committee also drew attention to the expanding work of committees, highlighting the ‘deepening international dimension to domestic policy’ and an increasing role in the scrutiny of public appointments. Although individual committees would continue to need to respond to developments in their departments, the Modernisation Committee considered that ‘it would be helpful if there was greater clarity about their objectives and greater consistency about how these are discharged’.22 In 2001, the Hansard Society Commission on Parliamentary Scrutiny had linked the introduction of core tasks to monitoring the performance and effectiveness of select committees: The select committees should be given a set of core duties and functions. To improve the coverage of issues, to utilise the work of the regulators and to give the committees a continuity to their work they should meet pre-agreed objectives over the course

19 House of Commons Library Standard Note, Modernisation: Select Committees—Pay for Chairs, SN/PC/2725, 14 October 2011. 20 Rebuilding the House (n 1) para 93. 21 Liaison Committee, Select Committee Effectiveness, Resources and Powers (HC 2012–13, 697) para 4. 22 Select Committees (n 17) paras 31–33.

166 Richard Kelly of a Parliament. Those objectives would provide a set of criteria against which their performance can be judged.23

The Liaison Committee grouped the core tasks under four broad objectives: Objective A: to examine and comment on the policy, policy proposals (including draft Bills), and decisions of the department; Objective B: to examine the expenditure of the department and its agencies and nondepartmental public bodies; Objective C: to examine the administration and work; major appointments; and implementation of legislation and policy of the department; and Object D: to assist the House in debate and decision.24

The Liaison Committee and individual committees have used the core tasks as a basis for assessing their work session by session. However, in its 2012 review of select committee effectiveness, the Liaison Committee commented that some of the core tasks previously identified were out of date. It reported that it had been told by the Better Government Initiative that it should encourage committees to focus on departments’ delivery of public services.25 The Liaison Committee confirmed the value of core tasks but commented that: The current core tasks envisage that the scrutiny of expenditure, administration and policy are separate activities. Arguably, this no longer makes sense. Given competition for scarce resources, it is increasingly important that committees assess policy decisions alongside their financial implications, and vice versa. And departmental financial management and performance in delivery are intertwined. Moreover, now that Chairs and members of committees have an elected mandate from the House, select committees are increasingly proactive in their efforts to influence the strategic direction of government and its departments.26

It then set out the following revised core tasks: Overall aim: To hold Ministers and Departments to account for their policy and decision-making and to support the House in its control of the supply of public money and scrutiny of legislation. STRATEGY Task 1 To examine the strategy of the department, how it has identified its key objectives and priorities and whether it has the means to achieve them, in terms of plans, resources, skills, capabilities and management information. POLICY Task 2 To examine policy proposals by the department, and areas of emerging policy, or where existing policy is deficient, and make proposals.

23 Hansard Society Commission on Parliamentary Scrutiny, The Challenge for Parliament: Making Government Accountable (London, Vacher Dod Publishing, 2001) para 3.25. 24 Liaison Committee, Annual Report 2002 (HC 2002–03, 558). 25 Liaison Committee, Select Committee Effectiveness, Resources and Powers (n 21) para 18. 26 Select Committee Effectiveness, Resources and Powers (n 21) para 19.

Select Committees: Powers and Functions 167 EXPENDITURE AND PERFORMANCE Task 3 To examine the expenditure plans, outturn and performance of the department and its arm’s length bodies, and the relationships between spending and delivery of outcomes. DRAFT BILLS Task 4 To conduct scrutiny of draft bills within the committee’s responsibilities. BILLS AND DELEGATED LEGISLATION Task 5 To assist the House in its consideration of bills and statutory instruments, including draft orders under the Public Bodies Act. POST-LEGISLATIVE SCRUTINY Task 6 To examine the implementation of legislation and scrutinise the department’s post-legislative assessments. EUROPEAN SCRUTINY Task 7 To scrutinise policy developments at the European level and EU legislative proposals. APPOINTMENTS Task 8 To scrutinise major appointments made by the department and to hold preappointment hearings where appropriate. SUPPORT FOR THE HOUSE Task 9 To produce timely reports to inform debate in the House, including Westminster Hall, or debating committees, and to examine petitions tabled. PUBLIC ENGAGEMENT Task 10 To assist the House of Commons in better engaging with the public by ensuring that the work of the committee is accessible to the public.27

Core tasks provide a framework for determining what select committees should consider—their work programme—but they do not address the question of the objectives of a select committee inquiry. In recent years, there has been far greater interest in the impact of select committees, and in particular, whether they have a positive influence in improving government policy and legislation.28 Indeed select committees themselves have now begun to publish self-assessments. An example of this is the Home Affairs Select Committee’s report, published in 2012, which looked at the Committee’s own effectiveness. It assessed this, in part, by producing a colour-coded grid of its recommendations and whether they had been accepted by the Government. The 27

Select Committee Effectiveness, Resources and Powers (n 21). See, eg, A Hindmoor, P Larkin and A Kennon, ‘Assessing the Influence of Select Committees in the UK: The Education and Skills Committee, 1997–2005’ (2009) 15 Journal of Legislative Studies 71; A Horne, ‘Parliamentary Scrutiny: An Assessment of the Work of the Constitutional Affairs Select Committee’ (2006) 3 JUSTICE Journal 62; and, more recently, M Benton and M Russell, ‘Assessing the Impact of Parliamentary Oversight Committees: The Select Committees in the British House of Commons’ (2012) Parliamentary Affairs http://pa.oxfordjournals.org/content/early/2012/05/15/ pa.gss009.full.pdf+html. 28

168 Richard Kelly Committee noted that this was not a ‘mere box ticking exercise’, as it would ‘use the grid to inform its choice of inquiries over the remainder of the Parliament, returning to recommendations where it appears that there may be merit in doing so’.29 In terms of impact, a recent report by the Constitution Unit reviewed 505 reports from seven separate committees. From a sample of 151, it concluded that ‘around 40% of select committee recommendations were either fully or partially accepted by government (i.e. in the government’s official response to the select committee report)’30 although it also indicated that on the material assessed, ‘two thirds of recommendations calling for a medium or large policy change ultimately failed’.31 Various types of committee activities are considered in more detail below.

A. Scrutiny of Legislation by Select Committees Both Houses have appointed select committees to scrutinise both primary and delegated legislation which has to be considered by Parliament. This chapter is not the place to analyse the scrutiny of primary legislation in any depth, although it is worth noting that the new ‘Public Bill Committee’ procedure (mentioned above), introduced in 2006, has been considered elsewhere and is thought to have improved the process of legislative scrutiny to some extent.32 Legislation is also checked by parliamentary committees, both for its ‘constitutionality’ and its compliance with the European Convention on Human Rights. In particular, after the major constitutional changes in the late 1990s under the Labour Government, the House of Lords appointed the Constitution Committee to examine all public Bills for constitutional implications and to investigate broad constitutional issues.33 Following the commencement of the Human Rights Act 1998, the two Houses also established the Joint Committee on Human Rights to consider matters relating to human rights and to consider and report on remedial orders,34 which were introduced by the 1998 Act. Its terms of reference are set out in House of Commons Standing Order No 152B: in practice, the Committee reviews legislation for its human rights implications and compatibility with the European Convention on Human Rights. It also monitors the Equality and Human Rights Commission, human rights judgments, and undertakes other scrutiny work.

29 See, eg, Home Affairs Select Committee, Effectiveness of the Committee in 2010–12 (First Report) (HC 2012–13, 144) para 3. 30 M Benton and M Russell, Selective Influence: The Policy Impact of House of Commons Select Committees (London, Constitution Unit, June 2011) 67. 31 Ibid 96. 32 J Levy, Strengthening Parliament’s Power of Scrutiny: An Assessment of the Introduction of Public Bill Committees (London, Constitution Unit, July 2009). 33 See ch 11. 34 Remedial orders are a form of delegated legislation amending primary legislation following a declaration by a UK court that it is incompatible with the ECHR or a Strasbourg judgment in a case concerning the UK which appears to a minister to show that a provision of legislation is incompatible.

Select Committees: Powers and Functions 169 While neither of these ‘watchdog committees’ has veto powers over legislation, their reports can be influential.35 These issues are considered in more detail in chapters nine and eleven. When primary legislation gives ministers powers to make secondary legislation, Parliament specifies the level of control it wishes to exercise over that power. Broadly speaking there are three levels of control: (1) negative resolution procedure—statutory instruments (SIs) are made (ie signed by the minister) and hence have effect but can be annulled by Parliament; (2) affirmative resolution procedure—SIs are laid before Parliament in draft and have to be approved by both Houses (usually) before they can be made; (3) super-affirmative procedure—proposals for SIs are laid, giving both Houses opportunity to propose amendments before a draft SI is laid for approval.36 In respect of secondary legislation not subject to the super-affirmative procedure, the Joint Committee on Statutory Instruments reviews SIs against a list of criteria (all of them to do with the technical form of the instruments in question, rather than their substantive merits) and reports defective drafting; financial implications for taxpayers and for the Exchequer; and the exceeding of vires to both Houses.37 Following the passage of the Deregulation and Contracting Out Act 1994, and the introduction of the super-affirmative procedure, both Houses have appointed committees to consider what are now Legislative Reform Orders: in the Commons, the Regulatory Reform Committee; and in the Lords, the Delegated Powers and Regulatory Reform Committee (DPRRC). The DPRRC also scrutinises the proposed use of delegated powers in all Bills before the Lords. The Committee has produced guidance for government departments on its role and requirements.38 The government provides a memorandum to the Committee on delegated powers in Bills. The Cabinet Office’s Guide to Making Legislation devotes a chapter to delegated powers and notes that that ‘It is usual for the government to accept most, if not all, of the DPRRC’s recommendations’.39 Variations on the super-affirmative procedure, which allows Parliament to ask government ministers to rethink legislation contained in statutory instruments (SIs laid under the affirmative and negative resolution procedures are not usually

35 See, eg, the significant amendments made to the Justice and Security Bill in the House of Lords in November 2012, inspired by a JCHR report (Joint Committee on Human Rights, Legislative Scrutiny: Justice and Security Bill, 2012–13 HL 59, HC 370). 36 For more detail, see Erskine May (n 10) 675–78. 37 Erskine May (n 10) 686–87. The impact of Parliament—including that of parliamentary committees—was assessed in E Page, Governing by Numbers: Delegated Legislation and Everyday PolicyMaking (Oxford, Hart Publishing, 2001). 38 Delegated Powers and Regulatory Reform Committee, Guidance for Departments on the Role and Requirements of the Committee (November 2009). 39 Cabinet Office, Guide to Making Legislation (June 2012) para 15.12.

170 Richard Kelly amendable), have subsequently been included in a number of Acts, for example the Localism Act 2011; the Digital Economy Act 2010; and the Public Bodies Act 2011 (the enhanced affirmative procedure). In the Commons, orders made under the Public Bodies Act 2011 are referred to departmental select committees;40 while, in the Lords, orders are considered by the Secondary Legislation Scrutiny Committee. Under the Planning Act 2008 decisions on nationally significant infrastructure projects are made by the independent Infrastructure Planning Commission. In taking decisions, the Commission is informed by national policy statements designated as such by the Secretary of State.41 Proposals for national policy statements are laid before the House under section 9(2) of the Planning Act 2008. Under Standing Orders, the Liaison Committee determines whether a proposal should be considered by a specified departmental select committee or whether to recommend the appointment a National Policy Statement Committee (NPSC) to consider it. An NPSC’s membership has to be drawn from members of the Communities and Local Government; Energy and Climate Change; Environment, Food and Rural Affairs; Transport and Welsh Affairs Committees, although an NSPC may invite other Members to participate in its proceedings.42 The Secretary of State for Energy and Climate Change has designated national policy statements in six areas, including for nuclear policy. Proposals have been considered by the Energy and Climate Change Committee.43 The Lords also established the Secondary Legislation Scrutiny Committee (formerly, until the 2010–12 Parliamentary Session, the Merits of Statutory Instruments Committee) to examine the policy merits of any statutory instruments or regulations laid before the House of Lords that are subject to parliamentary procedure. The European Scrutiny Committee (ESC) assesses the legal and/or political importance of each EU document,44 decides which EU documents are debated, monitors the activities of UK ministers in the Council, and keeps legal, procedural and institutional developments in the EU under review. By a resolution of the House—known as the scrutiny reserve resolution— ministers should not agree to European Council proposals for legislation, a common strategy or joint action, which are still under consideration by the House as

40

House of Commons, Standing Orders of the House of Commons—Public Business 2012 (n 2). The Planning Act 2008 defines a national policy statement as setting out national policy in relation to one or more descriptions of development. 42 Erskine May (n 10) 844–45. House of Commons, Standing Orders of the House of Commons— Public Business 2012 (n 2). 43 Energy and Climate Change Committee, The Proposals for National Policy Statements on Energy (HC 2009–10, 231-I); and The Revised Draft National Policy Statement on Energy (HC 2010–12, 648). 44 EU documents include legislative proposals; documents published for submission to the European Council, the Council, or the European Central Bank; Common Foreign and Security Policy proposals; police and judicial cooperation proposals; documents submitted by one EU institution to any other EU institution; and documents from UK ministers relating to EU matters (Standing Order No 143). See also Department of the Clerk of the House, The European Scrutiny System in the House of Commons (April 2010). 41

Select Committees: Powers and Functions 171 a result of an ESC recommendation.45 A similar resolution has been agreed in the House of Lords.46 From time to time, the government is asked about the number of times the scrutiny reserve is overridden and the reasons for this. Between January and June 2012, the scrutiny reserve was overridden on 57 occasions in either House (in the period, the Government had submitted 482 Explanatory Memoranda on proposals and other documents, all subject to the scrutiny reserve). The Government explained that 32 overrides involved ‘fast-moving sanctions and restrictive measures proposals’ and a further 18 overrides occurred because of parliamentary recesses.47 Of course, departmental select committees in the Commons can and do take an interest in the legislative programmes of the departments they monitor— often undertaking pre-legislative scrutiny or reporting on legislation as it goes the Commons. In the 2005 Parliament, the House of Lords Constitution Committee produced three annual reviews of pre-legislative scrutiny activity. The Committee reviewed the draft legislation that was published and examined general trends. It also identified general trends in the process of pre-legislative scrutiny. A number of themes emerged from its reports: it called on the government to allow committees enough time to scrutinise draft legislation; it called for publication of draft Bills to be spread through the year and better liaison with committees; and it suggested that when measures published in draft were not pursued, the government should explain why.48 Jennifer Smookler, a former Committee Specialist in the House of Lords Committee Office, used a case study approach to examine the effect of prelegislative scrutiny upon the government and Parliament in shaping legislation. She provided detailed analysis of whether the recommendations of joint committees examining the draft Civil Contingencies Bill and the draft Disability Discrimination Bill were accepted by the Government and, if they were, whether the Government accepted the recommendations in its responses to the joint committees or whether parliamentary pressure during the Bills’ passage through Parliament prompted amendment.49

45 HC Deb 17 November 1998, cols 803–04. Department of the Clerk of the House, The European Scrutiny System in the House of Commons (April 2010). 46 HL Deb 30 March 2010, cols 1292–93. 47 HL Deb 20 November 2012, col WA350. 48 Constitution Committee, Pre-Legislative Scrutiny in the 2006–07 Session (HL 2007–08, 43); Constitution Committee, Pre-Legislative Scrutiny in the 2007–08 Session (HL 2008–09, 66); and Constitution Committee, Pre-Legislative Scrutiny in the 2008–09 and 2009–10 Sessions (HL 2009–10, 78); see also House of Commons Library Standard Note, Pre-legislative scrutiny, SN/PC/2822, 9 April 2010. 49 J Smookler, ‘Making a Difference? The Effectiveness of Pre-legislative Scrutiny’ (2006) 59 Parliamentary Affairs 522.

172 Richard Kelly The table below indicates the number of established and ad hoc committees that have considered draft Bills since 1997. Table 1: Publication and Scrutiny of Draft Bills Draft Bills

Draft Bills

Type of committee undertaking scrutiny*

Session

Published

Scrutinised

DSC**

1997–98

3

2

2

1998–99

6

5

1999–2000

6

2000–01

HLSC

Joint Cttee

Other

2

3

2

2a

3

3

1

2

1

1

1

2001–02

7

6

4

4b

2002–03

9

9

6

4b

2003–04

12

10

6

4 1

2004–05

5

3

2c

2005–06

4

3

2

1

2006–07

4

3

2

2

2007–08

9

7

7

2

2008–09

4

2

1

1

2009–10

4

2

2

2010–12

11

9

5

4

*

On a number of occasions, more than one committee has scrutinised a draft Bill departmental select committee, includes Public Administration Select Committee; Deregulation Committee; a one ad hoc Commons Committee and one ad hoc Lords Committee; b including Joint Committee on Human Rights; c for one draft Bill, two Commons Committees appointed sub-committees which jointly scrutinised the draft Bill. **

Source: House of Commons Library Standard Note, Pre-legislative scrutiny, SN/PC/2822; House of Commons Library Standard Note, Pre-legislative scrutiny under the Coalition Government, SN/PC/5859.

B. Post-legislative Scrutiny In a review of the legislative process published in 2004, the Lords Constitution Committee found that ‘There is rarely an attempt, and certainly no practice, of Parliament regularly reviewing legislation to ensure that it has achieved what was

Select Committees: Powers and Functions 173 intended’.50 It recommended a role for both government and select committees in a more systematic approach to post-legislative scrutiny. It envisaged government departments reviewing legislation within three years of commencement and submitting a report to the appropriate select committee. Select committees could then undertake further work if they so wished.51 In its response, the Government noted that departments already engaged in post-legislative scrutiny but agreed that strengthening the process would be beneficial. The Government asked the Law Commission to study options for postlegislative scrutiny and to identify who should take on the role.52 The Law Commission’s review, Post-Legislative Scrutiny, was published in October 2006. It argued that any approach should build on what was already in place but observed that a more systematic approach could take many forms.53 A majority of respondents to its consultation considered that ‘If post-legislative scrutiny is to be effective … it should be owned by, and directed by Parliament’.54 The Commission found significant support for a ‘new Joint Committee on PostLegislative Scrutiny’ and it recommended that consideration should be given to setting one up.55 In March 2008, the Government published Post-legislative scrutiny—The Government’s Approach. It outlined its new approach: the basis for a new process for post-legislative scrutiny should be for the Commons committees themselves, on the basis of a Memorandum on appropriate Acts submitted by the relevant Government department, and published as a Command paper, to decide whether to conduct further post-legislative scrutiny of the act in question. … In this way, all Acts would receive a measure of post-legislative scrutiny within Government and would be specifically considered for scrutiny within Parliament. Some on a considered and targeted basis, would then go on to receive more in-depth scrutiny.56

In March 2012, the Government reported that 44 memoranda had been published since the system was introduced in 2008.57 As the Labour Government anticipated, select committees do not have the capacity to undertake reviews of every piece of legislation following the publication of a memorandum. However, the Justice Committee has undertaken a review of the Freedom of Information Act 2000, following the publication of the Government memorandum. The same

50

Constitution Committee, Parliament and the Legislative Process (HL 2003–04, 173-I) para 168. Ibid, paras 180, 189. 52 Constitution Committee, Parliament and the Legislative Process: The Government’s Response (HL 2004–05, 114) paras 31–32. 53 Law Commission, Post-Legislative Scrutiny (Law Com 302, 2006) para 3.19. 54 Law Commission, Post-Legislative Scrutiny (n 53) para 3.20. 55 Post-Legislative Scrutiny (n 53) paras 3.32 and 3.47. 56 Office of the Leader of the House of Commons, Post-legislative Scrutiny—The Government’s Approach (Cm 7320, 2008) para 9. 57 HC Deb 22 March, col 927. 51

174 Richard Kelly committee also took oral evidence following the publication of the Government’s review of the Mental Capacity Act 2005.58

C. Pre-appointment Hearings After the 1997 Labour Government granted independence to the Bank of England, the Treasury Committee started to hold ‘confirmation hearings’ with newly appointed members of the Monetary Policy Committee (of the Bank of England).59 It set out its rationale and drew the distinction between its approach and that of confirmation in the United States Congress in two earlier reports.60 In the second of these, Confirmation Hearings, it set out a resolution the Committee had agreed on the conduct of such hearings: That, when the Committee is taking evidence at a confirmation hearing to consider the appointment or re-appointment of the Governor or a Deputy Governor of the Bank of England or a member of the Monetary Policy Committee, questioning will be restricted to issues of the appointee’s personal independence and professional competence, including the possession of knowledge or experience likely to be relevant to the functions of the Monetary Policy Committee.61

In its 2000 review of select committees, the Liaison Committee stated that it would seek ‘statutory acknowledgement of the process’. The Government did not accept the Liaison Committee’s recommendations that select committees should be involved in the scrutiny of major appointments considering that: it would break the accountability of ministers for appointments; it would lead to ‘lame duck’ appointees—appointed by a minister but without select committee approval; and select committees were scrutiny bodies, not decision-making bodies. In spite of this, further recommendations for select committee involvement in public appointments came from the Modernisation Committee (chaired by the Leader of the House of Commons) in 2002, in its suggested core tasks for select committees, and the Public Administration Select Committee (PASC) in 2003. When it drew up core tasks for select committees, in 2002, the Liaison Committee included: ‘To scrutinise major public appointments made by the department’.62

58 Justice Committee, Post-legislative Scrutiny of the Mental Capacity Act 2005—Uncorrected Evidence—23 November 2010 (HC 2010–12, 636-i); Post-legislative Scrutiny of the Freedom of Information Act 2000 (HC 2012–13, 96-I). 59 Treasury Committee, The Monetary Policy Committee of the Bank of England: Confirmation Hearings (HC 1998–99, 476-I). 60 Treasury Committee, Accountability of the Bank of England (HC 1997–98, 282); and Confirmation Hearings (HC 1997–98, 571). 61 Treasury Committee, Confirmation Hearings (n 61), para 6. 62 Liaison Committee, Pre-appointment Hearings by Select Committees (HC 2007–08, 384) paras 1–2.

Select Committees: Powers and Functions 175 In their review of pre-appointment hearings, Hazell et al (2012) noted that the Government had rejected the PASC’s recommendation. However, ‘the first sign of a change of heart came when Gordon Brown became prime minister’.63 In the July 2007 Green Paper, The Governance of Britain, the Government suggested that select committees hold pre-appointment hearings for certain positions of interest to Parliament. Initially, the Government suggested 29 posts that should be subject to parliamentary scrutiny. After discussions with the Liaison Committee, it was agreed that a total of 60 posts should be subject to pre-appointment hearings.64 In its 2008 report, which followed Government proposals on which appointments could be scrutinised by select committees, the Liaison Committee also set out guidelines for select committees conducting hearings. In summary those guidelines were that: — committees should give at least a week’s notice of the session to witnesses; — ‘Questions must remain relevant to the professional competence and personal background of the candidate’; — the committee should agree its report on the suitability of the candidate immediately after the evidence session; and — reports should be embargoed to allow the candidate and minister to prepare a response to any negative comments.65 The Government, in its response to the Liaison Committee, said that it believed that ‘pre-appointment hearings should focus on posts in which Parliament and the public have a particularly strong interest’.66 In August 2009, the Cabinet Office published its own guidance—Preappointment Hearings by Select Committees: Guidance for Departments. In March 2010, the Liaison Committee published an evaluation of preappointments, which had been prepared for it and the Cabinet Office by the Constitution Unit, University College London. The UCL research found that preappointment hearings were good for transparency and democracy; did not deter good quality candidates—although they favoured candidates with experience of sector committees; and that negative reports would not act as a deterrent to candidates. The research suggested that further consideration be given to the posts subject to pre-appointment hearings. The researchers thought that a parliamentary veto was not compatible with appointments made by government.67

63 R Hazell, M Chalmers and M Russell, ‘Pre-Appointment Scrutiny Hearings in the British House of Commons: All Bark, or Some Bite?’ (2012) 18 Journal of Legislative Studies 222, 226. 64 Hazell, Chalmers and Russell, ‘Pre-Appointment Scrutiny Hearings in the British House of Commons’ (n 63) 223. 65 Liaison Committee, Pre-appointment Hearings by Select Committees (n 62) 9. 66 Liaison Committee, Pre-appointment Hearings by Select Committees: Government Response to the Committee’s First Report of Session 2007–08 (HC 2007–08, 594). 67 Liaison Committee, The Work of Committees 2008-09 (HC 2009–10, 426) Annex 3.

176 Richard Kelly Following that review both the Liaison Committee and the Government accepted the need to work together on guidance for hearings and on the posts subject to hearings.68 The Liaison Committee reiterated this in September 2011, after taking oral evidence on the Constitution Unit’s review. It recommended ‘a tri-partite list of posts’ that committees and Parliament would be involved in the appointment process: Category A posts—joint appointments between Parliament and the executive, subject to votes on the floor of the House of Commons. Over time the process should be put on a statutory footing; Category B posts—subject to an enhanced form of pre-appointment scrutiny, and to be subject to an effective veto by a select committee; Category C posts—committees could choose whether or not to require a preappointment hearing. The Committee annexed a full list of proposed posts to its report. By way of example, Category A posts included the chair of the UK Statistics Authority and the Information Commissioner; Category B posts included chairs of utility and public service regulators; and Category C posts included chairs of a number of departmental bodies and executive agencies.69 It also called for greater consultation with committees over the recruitment process; more information to committees about the field of candidates; opportunities for private discussions between the chair of a committee with reservations about an appointment and the minister making the appointment; and in certain cases, confirmation of appointments by the House of Commons.70 The Liaison Committee received the Government’s response in June 2012. The Committee considered that ‘overall, the response fails to engage with our recommendations, and is somewhat dismissive in tone, even where the Government declares itself in agreement with us’.71 The Government and the Liaison Committee differed in their approaches to explaining the purpose of pre-appointment hearings; to sharing information about process and candidates; and to drafting guidance—the Government wished ‘to move away from prescriptive guidance and to adopt a more principles-based approach’.72 The Committee commented that ‘the Government response rejects the three category approach we proposed for pre-appointment hearings’.73

68 Liaison Committee, The Work of Committees 2008-09 (n 67); Liaison Committee, The Work of Committees in Session 2008–09: Government Response to the Committee’s Second Report of Session 2009–10 (HC 2010–11, 415). 69 Liaison Committee, Select Committees and Public Appointments (HC 2010–12, 1230) Annex 3. 70 Liaison Committee, Select Committees and Public Appointments (n 69). 71 Liaison Committee, Select Committees and Public Appointments: the Government’s Response (HC 2012–13, 394) para 7. 72 Liaison Committee, Select Committees and Public Appointments: the Government’s Response (n 71) 18. 73 Ibid, para 11.

Select Committees: Powers and Functions 177 The Coalition Agreement included a commitment to ‘strengthen the powers of Select Committees to scrutinise major public appointments’.74 No overarching developments have occurred but the Government has given the Treasury Committee a statutory veto over the appointment of the chair and the two members of the Office of Budget Responsibility appointed by the Chancellor in consultation with the chair.75 In its report on pre-appointment hearings, Balancing Act, the Institute for Government described this as ‘a very rare example of a select committee power being given statutory form’.76 It went on to recommend that Parliament should be granted an effective veto over ‘an “A List” group of about 25 of the most important public appointments’ (economic regulators, constitutional watchdogs, chairs of public service and utility regulators, and chief inspectors of constabulary, prisons, probation and schools); and that the House of Commons should resolve the question when a committee and minister disagreed over an appointment.77 As the Institute for Government indicated, the outcomes of some hearings have been contentious. In June 2009, the Children Schools and Families Committee felt ‘unable to endorse’ the appointment of Dr Maggie Atkinson as the Government’s preferred candidate for the post of Children’s Commissioner.78 However, Ed Balls, the Secretary of State, wrote to the Select Committee and informed it that the appointment would be made. He confirmed this in the House of Commons.79 In July 2011, the Public Administration Select Committee held a pre-appointment hearing with Dame Janet Finch, the successful candidate in the recruitment process for the post of the chair of the UK Statistics Authority.80 Following the hearing, Dame Janet wrote to the Cabinet Secretary informing that she had ‘reluctantly taken the decision that my name should go no further in this process’. She noted that she and the Committee had ‘differing views about how the job should be undertaken, and in particular how the independence of the chair should be exercised’.81 In February 2012, the Business, Innovation and Skills Committee declined to endorse the appointment of Les Ebdon, the preferred candidate for the post of Director of the Office for Fair Access.82 However, the Secretary of State, Vince Cable, decided to proceed with the appointment.83 74

HM Government, The Coalition Agreement: Our Programme for Government (May 2010) 21. Budget Responsibility and National Audit Act 2011, sch 1, para 1. 76 A Paun and D Atkinson, Balancing Act: The Right Role for Parliament in Public Appointments (Institute for Government, 2011) 17. 77 Paun and Atkinson, Balancing Act (n 76) 27–28. 78 Children Schools and Families Committee, Appointment of the Children’s Commissioner for England (HC 2008–09, 998-1) para 6. 79 HC Deb 19 October 2009, col 639. 80 Public Administration Select Committee, Pre-appointment Hearing of the Post of Chair of the UK Statistics Authority (HC 2010–12, 1261-i). 81 Cabinet Office, Dame Janet Finch statement (6 July 2011) www.cabinetoffice.gov.uk/resourcelibrary/dame-janet-finch-statement. 82 Business, Innovation and Skills Committee, Pre-appointment Hearing: Appointment of Director of the Office for Fair Access (HC 2010–12, 1811). 83 HC Deb 20 February 2012, col 609. 75

178 Richard Kelly Clearly then the hearings are not confirmation hearings, in that appointees not endorsed by select committees have been confirmed in appointment. However, Hazell et al note that the experience of close questioning by a committee that will monitor the body to which the appointment is made has demonstrated that ‘legislative influence is much more subtle than the simple exercise of veto powers’.84

D. Parliamentary Commission on Banking Standards On 5 July 2012, the House of Commons debated motions from the Government and Opposition proposing an inquiry into banking standards, following most recently, the Libor reporting scandal in which it was alleged that banks manipulated the London InterBank Offered Rate in order to gain financial benefits.85 The Government favoured an inquiry by a joint parliamentary committee whilst the Opposition called for a judge-led inquiry. The Opposition motion was defeated by 320 votes to 239 and the Government motion was then agreed by 330 votes to 226.86 After considerable negotiation between the House, the Government, the Opposition and Andrew Tyrie MP, who it had already been determined would chair the joint committee, a motion to establish the Parliamentary Commission on Banking Standards (PCBS) was debated on 16 July 2012.87 In agreeing to establish the Commission, the House gave it powers and rights that have not usually been conferred on select committees. Although it was envisaged that the Commission would have members from both Houses, the PCBS was established as a committee of the House of Commons with ‘leave to join with any committee appointed by the Lords to consider said matters’. This was done so that the Commission could work over the summer recess whether or not Lords members were appointed. The Commission was to operate like a Commons select committee. It is customary for joint committees to follow the procedures of House of Lords select committees.88 In moving the motion to establish the Commission, Sir George Young, the Leader of the House of Commons, noted some of the divergences with usual select committee powers. He considered the Commission’s and its sub-committees’ power ‘to invite specialist advisers (including counsel appointed as specialist advisers) to examine witnesses’ was ‘novel’. However, he did not think it would 84 Hazell, Chalmers and Russell, ‘Pre-Appointment Scrutiny Hearings in the British House of Commons (n 63). 85 The background to the Commission’s establishment is described in its first report: Parliamentary Commission on Banking Standards, Banking Standards (First Report) (HC 2012–13, 848). There has been extensive press coverage of the Libor scandal: see, eg, The Financial Times, 9 January 2013. 86 HC Deb 5 July 2012, cols 1112–75. 87 HC Deb 16 July 2012, cols 795–810. 88 Erskine May (n 10) 914.

Select Committees: Powers and Functions 179 ‘become the modus operandi of other Select Committees’. He noted that the motion provided for sub-committees with a quorum of one. Explicit provision was given for both the Commission and its sub-committees to examine witnesses on oath. Unusually the motion allowed the chair to make reports to the House that had not been agreed at a meeting of the Commission, and similarly allowed a member of the Lords to report to that House with the approval of the chair. The Commission was also given the power to publish reports that had not been reported to the House.89 At this point in time, it is difficult to assess whether the Banking Commission is an approach that will be repeated. The Commission’s working model has enabled it to hold large numbers of oral evidence sessions, and to conduct pre-legislative scrutiny of the draft Financial Services (Banking Reform) Bill.90 Whether such a sustained heavy workload could be maintained over a Parliament is questionable. However, the approach may be helpful in addressing complex issues in a specified limited period of time.

E. Evidence on Oath Under the provisions of the Parliamentary Witnesses Oaths Act 1871, as amended, both the House and its committees can administer an oath.91 And House of Commons Standing Order No 132 provides that: Any oath taken or affirmation made by any witness before a select committee may be administered by the chair, or by the clerk attending such committee.

However, as Erskine May states, ‘it is not usual ... for select committees to examine witnesses upon oath, except upon inquiries of a judicial or other special nature’.92 Although it is infrequent, committees (other than private Bill committees) have taken evidence on oath on several occasions. The most recent example at the time of writing was on 7 November 2011, when the Public Accounts Committee administered the oath to Anthony Inglese, General Counsel and Solicitor, HMRC. Richard Bacon, a member of the Committee, explained the reason for asking the witness to take the oath: ‘we are doing so because we have not been able to get answers otherwise’.93 In a lecture on parliamentary privilege, Sir Malcolm Jack, the former Clerk of the House of Commons, commented that he did not think that the action taken by the Committee was reasonable. He argued that the Committee

89

HC Deb 16 July 2012, cols 809–10. Parliamentary Commission on Banking Standards, Banking Standards (First Report), 2012–13 HC 848, HL 98. The draft Bill was published with an accompanying policy paper HM Treasury, Sound Banking: Delivering Reform, Cm 8453, October 2012. 91 Parliamentary Witnesses Oaths Act 1871, s 1, as amended. 92 Erskine May (n 10) 824. 93 Public Accounts Committee (2011), HM Revenue and Customs Accounts 2010–11 (HC 2010–12, 1531) Q 294. 90

180 Richard Kelly should have challenged a minister or accounting officer, who are accountable to Parliament.94 Giving false evidence to a committee, whether or not an oath had been administered, would be a contempt of the House. Section 1 of the Perjury Act 1911 provides for those making false statements to be tried in the courts. If proceedings for perjury before a committee were brought, it would be for the courts to deal with the relationship between Article 9 of the Bill of Rights and the Perjury Act 1911.95 In 1999, the Joint Committee on Parliamentary Privilege commented that ‘parliamentary privilege was not intended to stand in the way of evidence relating to proceeding being given in court’, in the case of perjury. It favoured clarification in the context of legislation on privilege.96 The potential difficulties caused by the issue of parliamentary privilege and recent efforts at reform are discussed in more detail in the preceding chapters. Erskine May reports examples of select committees taking evidence on oath but does not record any witnesses being prosecuted for perjury.97

F. Lay Members of the Committee on Standards In its review of Members’ allowances, following the expenses scandal, the Committee on Standards in Public Life (CSPL) recommended that: There should be at least two lay members who have never been Parliamentarians on the Standards and Privileges Committee. Their appointment should be made in the same way as that of the lay members of the Speaker’s Committee of the independent regulator [ie IPSA]. The external members of both the Standards and Privileges Committee and the Speaker’s Committee of the independent regulator should have full voting rights. If the House authorities are of the opinion that clarifying the question of parliamentary privilege in that regard requires an amendment to the Parliamentary Standards Act, the Government should facilitate this.98

The Committee on Standards and Privileges issued a report on the recommendations of the CSPL that required action by the House of Commons. The Committee on Standards and Privileges noted that the appointment of lay members to it had been proposed by its former chairman, with the support of the Committee.

94 M Jack, ‘Parliamentary Privilege: a Dignified or Efficient part of the Constitution?’ (The Seventeenth Policy & Politics Annual Lecture, University of Bristol, 29 March 2012) www.policypress. co.uk/PDFs/General/Malcolm%20Jack%20Lecture%20NEW.pdf. 95 See ch 3. 96 Joint Committee on Parliamentary Privilege, Report (1998–99, HL 43-I, HC 214-I) paras 316–18. 97 Erskine May (n 10) 824. 98 Committee on Standards in Public Life, MPs’ Expenses and Allowances—Supporting Parliament, Safeguarding the Taxpayer, Twelfth Report (Cm 7724, 2009) Recommendations 51 and 52.

Select Committees: Powers and Functions 181 It welcomed the CSPL recommendation. The Committee on Standards and Privileges interpreted ‘full voting rights’ to mean that lay members would be able to vote on ‘any matter relating to a standards case’ that was before the Committee; on ‘any matter that relates to standards in general’; but not on a matter of privilege. It proposed that there should be two additional lay members on the Committee.99 The Committee also made proposals to ensure that, in the words of its recommendation, ‘privilege must remain a matter for the House and its Members’.100 The House debated the Committee on Standards and Privileges’ report on 2 December 2010 and agreed ‘with the principle … that lay members should sit on the Committee on Standards and Privileges’; the House then invited the Procedure Committee to bring forward proposals to implement it.101 The Procedure Committee’s report, Lay Membership of the Committee on Standards and Privileges, was published on 7 November 2011. The Committee pointed to precedents in which non-Members had been appointed to select committees or in which powers were granted to committees to invite non-Members to participate. It recommended that ‘it be a prerequisite of adding lay members that the Committee on Standards and Privileges be divided into two separate committees and that lay members be included only in the committee responsible for standards’. Although it identified a process for appointing lay members to the Committee on Standards and Privileges, the Procedure Committee recommended that the House should be asked to restate its acceptance of the principle behind the CSPL proposal that lay members be added to the Committee on Standards and Privileges. Initially it proposed that two lay members should be appointed.102 On 12 March 2012, the House agreed new Standing Orders that created separate committees—the Committee of Privileges and the Committee on Standards. The Committee on Standards would have at least two and no more than three lay members. The new committees were to begin to operate on ‘the first sitting day of the first month after the month in which the House agrees a resolution’ appointing two or three lay members of the Committee on Standards.103 In October 2012, the House of Commons Commission reported to the House the names of the three candidates it proposed should serve as lay members of the Committee on Standards: Mr Peter Jinman (former President of Royal College of Veterinary Surgeons), Mr Walter Rader (Independent Chair of the Youth Council for Northern Ireland Appeals Panel; Independent Chair of the Office of the First and Deputy First Minister EY 2012 small grants programme) and Ms Sharon Darcy (National Employment Savings Trust, trustee; Consumer Focus, national 99 Committee on Standards and Privileges, Implementing the Twelfth Report from the Committee on Standards in Public Life (HC 67 2009–10) paras 4–6. 100 Committee on Standards and Privileges, Implementing the Twelfth Report from the Committee on Standards in Public Life (n 98) para 10. 101 HC Deb 2 December 2010, col 1017. 102 Procedure Committee, Lay Membership of the Committee on Standards and Privileges (HC 1606 2010–12), paras 20–24, 13, 18 and 56. 103 HC Deb 12 March 2012, cols 69–84.

182 Richard Kelly board member; and a housing association board member).104 Standing Order No 149A provides that the lay members have to be appointed to the Committee by resolution of the House. On 13 December 2012, the House of Commons agreed that the three candidates proposed by the House of Commons Commission be appointed lay members of the Committee on Standards.105 Once the House had appointed the lay members of the Committee on Standards, the House agreed that the members of the Committee on Standards and Privileges should be appointed to the two separate committees, with effect from 7 January 2013.106

G. Statutory Committees We have noted that some select committees, in both Houses, have been delegated responsibility for undertaking statutory functions given to Parliament. In addition, a small number of committees of Members of Parliament have been established by statute to scrutinise or oversee particular independent bodies. The Ecclesiastical Committee was established by the Church of England Assembly (Powers) Act 1919. It comprises 30 members, 15 from each House. While its powers are those laid down by the Act, its procedures are those of a joint select committee. The Committee examines draft measures presented to it by the Legislative Committee of the General Synod of the Church of England. It reports to Parliament on whether or not it considers the measures to be expedient. The Speaker’s Committee on the Electoral Commission was established by the Political Parties, Elections and Referendums Act 2000. Its statutory functions include: overseeing the procedure for the selection of individuals to be put forward for appointment or re-appointment as Electoral Commissioners, and for appointment as the chair of the Local Government Boundary Commission for England; and the examination of the estimates and five-year plans of both bodies. The Speaker’s Committee on the Independent Parliamentary Standards Authority was established by the Parliamentary Standards Act 2009 to consider the candidates proposed by the Speaker, following fair and open competition, for the posts of chair and members of the IPSA; and to approve IPSA’s annual estimate of resources. The Committee includes lay members. Following the CSPL’s recommendation, the composition of the Committee, which under the Parliamentary Standards Act 2009 included only Members of Parliament, was amended by the Constitutional Reform and Governance Act 2010, which provides that the lay members are appointed to the Committee by resolution of the House. 104 House of Commons Commission, Lay members of the new Standards Committee: Nomination of Candidates (HC 709 2012–13). 105 HC Deb 13 December 2012, cols 472–78. 106 Ibid, col 535.

Select Committees: Powers and Functions 183 The Intelligence and Security Committee (ISC) was established by the Intelligence Services Act 1994 to examine the policy, administration and expenditure of the Security Service, Secret Intelligence Service (SIS) and the Government Communications Headquarters (GCHQ). The Committee reports directly to the Prime Minister, and through him to Parliament, by the publication of the Committee’s reports. The Prime Minister appoints the ISC members after considering nominations from Parliament and consulting with the Leader of the Opposition. The procedures followed have changed over time. In July 2007, in the Green Paper The Governance of Britain, the Labour Government proposed ‘to consult on how the statutory basis of the ISC should be amended to bring the way in which it is appointed, operates and reports as far as possible into line with that of other select committees’. The Government also indicated that interim changes could be made to bring the way the ISC operated more into line with the way in which a departmental select committee operated. In the Green Paper, it identified the following changes: — greater transparency over how Committee members are appointed, using similar processes of consultation between the major parties as those for select committee selection; — giving the Committee the option to meet in public (including, if Parliament agrees, in the Houses of Parliament); — House of Commons debates on the Committee’s reports, to be led by the chair of the Committee rather than by a government minister, with reports also debated in the House of Lords; and — strengthening the secretariat to the Committee, including through the appointment of an independent investigator, and making the secretariat clearly separate from the staff of the Cabinet Office. (The Committee takes evidence in, and has a secretariat based in, the Cabinet Office for security reasons.)107 In March 2008, in the Governance of Britain White Paper, the Government announced ‘significant changes immediately to improve the transparency and effectiveness of the Committee’s operation, in advance of any future legislation the Government brings forward’. It proposed that Parliament sent nominations for membership of the ISC to the Prime Minister. It proposed that ISC meetings should continue to be held in private but that the Government would ‘provide public briefings where this can be achieved’. The Government also proposed that debates on ISC reports should be opened by the chair of the Committee, rather than a government minister.108 On 17 July 2008, the House of Commons debated the ISC annual report and endorsed ‘the proposals for the reform of practice and operation’ of the ISC as set 107

Ministry of Justice, The Governance of Britain (Cm 7170, 2007) paras 92–93. Ministry of Justice, The Governance of Britain—Constitutional Renewal (Cm 7342-I, 2008) paras 236–38, 243. 108

184 Richard Kelly out in the Governance of Britain White Paper, ‘including provision for nomination of the members of the Committee drawn from the House of Commons to be based in future on proposals made by [the Commons]’.109 The Wright Committee (above) noted the Government’s proposals and the changes that had been made to the way in which members were appointed to the ISC. It believed that the ISC should be treated like other select committees and recommended that the procedures it had recommended for electing the chairs and members of select committees should be ‘applied so far as possible to the chair of the Intelligence and Security Committee’.110 However, its recommendations were not accepted in the 2010 Parliament. Pressure for reform did not abate. In part, this may have been due to concerns about the independence of the ISC, which were heightened when allegations about UK complicity in extraordinary rendition emerged.111 The Coalition Government conducted a consultation entitled Justice and Security in 2011 and subsequently included provisions in the Justice and Security Bill 2012–13 to make the ISC a statutory committee of Parliament. The Bill provided that ‘each member of the ISC is appointed by the House of Parliament of which he or she is a member’. However, the Bill also provided that ‘a person is not eligible to be a member of the ISC unless nominated for membership by the Prime Minister after consultation with the Leader of the Opposition’. The Explanatory Notes explained that ‘the purpose of this provision is to ensure that the Government retains some control over those eligible to access this material’.112

III. SELECT COMMITTEE POWERS

The Liaison Committee began its review of the role and resources of select committees, recommended by the Wright Committee, in December 2011. As noted above, it also included select committee powers within its terms of reference. The question of select committee powers was also discussed by the Constitution Society in a pamphlet published in May 2012.113 In the House of Commons, ‘select committees possess no authority except that which they derive by delegation from the House’.114 Erskine May also notes that

109

HC Deb 17 July 2008, cols 499–501. Select Committee on Reform of the House of Commons, Rebuilding the House (n 1) para 59. 111 For more on the pressures for reform of the ISC, see, eg, A Horne, ‘Security Services Under the Microscope’ (2010) 174 (49) Criminal Law and Justice Weekly 747-58 and I Leigh, ‘Rebalancing Rights and National Security: Reforming UK Intelligence Oversight a Decade After 9/11’ (2012) 27 Intelligence and National Security 721. 112 Justice and Security Bill 2012–13 [HL Bill 27], Explanatory Notes, paras 20–21. 113 R Gordon and A Street, Select Committees and Coercive Powers—Clarity or Confusion? (London, The Constitution Society, 2012). 114 Erskine May (n 10) 799. 110

Select Committees: Powers and Functions 185 select committees are regarded as extensions of the House, limited in their inquiries by the extent of the authority given them, but governed for the most part in their proceedings by the same rules as those which prevail in the House.115

The House gives authority to committees in the orders it makes to appoint them. For the permanent committees, these powers are set out in the Standing Orders. For ad hoc committees, the order of appointment specifies, among other things, the powers that the House has granted to the committee; a day by which the committee must report; and/or a time at which the committee will cease to exist. Erskine May notes that: Select committees are customarily given some or all of the following powers: — to send for persons, papers and records; — to appoint specialist advisers; — to report from time to time; — to meet on days when the House is adjourned; — to meet away from Westminster; — to appoint sub-committees; — to exchange papers and/or meet concurrently with other select committees (including committees of the House of Lords).116

A. Sub Judice On 15 November 2001, the House of Commons agreed a number of rules on matters sub judice, which explicitly apply to select committees.117 The rules state that 1. Cases in which proceedings are active in United Kingdom courts shall not be referred to in any motion, debate or question. … 2. Specific matters which the House has expressly referred to any judicial body for decision and report shall not be referred to in any motion, debate or question from the time when the Resolution of the House is passed until the report is laid before the House.118

The sub judice rule is discussed in more general terms in chapter two. Erskine May describes the application of the sub judice rule in both Houses and notes that while the House of Commons passed a resolution in the terms of the Joint

115

Ibid 808. Ibid, 799; see 892–93 for a review of the orders of reference of House of Lords select committees. 117 The rules had not previously applied to select committees, the Joint Committee on Parliamentary Privilege (1999) had recommended that they should (Joint Committee on Parliamentary Privilege, Report (n 95) para 202). 118 HC Deb 15 November 2011, col 1020. 116

186 Richard Kelly Committee on Parliamentary Privilege, the House of Lords agreed the Joint Committee’s report. Erskine May records that The House [of Lords] has agreed that the practice governing motions and questions relating to matters sub judice should be similar in both Houses of Parliament’. Because of the application of the rule to select committees, committees have ‘suspended enquiries in progress because a witness had been charged with criminal offences related to the subject matter of the inquiry.119

B. The Power to Send for Persons, Papers and Records When dealing with those who are not ministers or civil servants, committees generally issue an informal invitation to attend. If this is resisted without good reason, the committee can remind a reluctant witness of its power to summon. The process for formally summoning a witness is outlined by Erskine May: When a committee decides to summon a witness formally, the witness is summoned to attend the committee by an order signed by the chairman. Failure to attend a committee when formally summoned is a contempt and if a witness fails to appear, when summoned in this manner, his conduct is reported to the House … If he still neglects to appear, he will be dealt with as in other cases of disobedience.120

Erskine May comments in places that there is no restriction on the power of committees to require the production of papers by private bodies or individuals provided that such papers are relevant to the committee’s work as defined by its order of reference [and that] when a select committee has the power to send for papers that power is unqualified.121

However, a number of detailed qualifications apply to the power to send for persons, papers and records: — select committees cannot summon Members of Parliament (of either House); — select committees cannot summon ministers; — select committees cannot summon overseas nationals, unless they are within the jurisdiction of UK; — only the House, not committees, can compel a minister to produce a document.122 Although select committees do not have the power to summon ministers, they have rarely refused to attend a select committee hearing. There have been occasional initial refusals, such as when the Health Minister, Edwina Currie, at first

119

Erskine May (n 10) 441–43, 518 and 813. Ibid 820. Erskine May (n 10) 819 and 820. 122 Ibid 818–19; R Rogers, Powers of Select Committees Paper for the Liaison Committee’s inquiry into Select Committee Powers and Effectiveness (2012) para 15. 120 121

Select Committees: Powers and Functions 187 declined to give evidence to the Agriculture Committee’s inquiry into salmonella in eggs.123 The Liaison Committee has identified difficulties in obtaining papers from time to time.124 In July 2011, Rupert Murdoch and James Murdoch declined an invitation to give oral evidence to the Culture, Media and Sport Committee. They attended after the Committee had decided to summon them (see below). i. Civil Servants The Cabinet Office’s Departmental Evidence and Response to Select Committees (the ‘Osmotherly Rules’) give general guidance to civil servants on giving evidence to select committees.125 The House has never formally agreed the Rules. The Osmotherly Rules state that ‘Civil servants who give evidence to Select Committees do so on behalf of their Ministers and under their directions’, in accordance with the principle that ‘it is Ministers who are accountable to Parliament for the policies and actions of their Departments’.126 The Rules accept that select committees may wish to take evidence from particular officials.127 While committees could in principle summon a named civil servant, any such summons would have to be enforced by the House, where the Government would normally have a majority. Committees have criticised the Government for its reluctance to allow witnesses the Committee had invited to appear before it.128 ii. Special Advisers There have also been problems in seeking the appearance of government special advisers as witnesses. The Public Administration Select Committee (PASC) invited Jonathan Powell, Special Adviser to the Prime Minister, to give evidence in 2000 but Sir Richard Wilson, Cabinet Secretary and Head of the Home Civil Service, appeared before the Committee. Wilson told the Committee he had discussed the invitation with the Prime Minister and that ‘The view was taken that it would be better if I attempted to deal with your questions, which I am very happy to do’.129 The Transport, Local Government and the Regions (TLGR) Committee

123

Agriculture Committee, Salmonella in eggs (HC 1988–89, 108). Liaison Committee, The Work of Select Committees (HC 1996–97, 321-I) paras 14–16; Liaison Committee, Scrutiny of Government: Select Committees after Hutton—Note by the Clerks (8 January 2004) para 13, www.publications.parliament.uk/pa/cm200304/cmselect/cmliaisn/memo/memo.pdf. 125 The rules existed in the 1970s and were discussed by the Procedure Committee in its 1978 report that recommended the departmental select committees system. The rules were first formally issued in May 1980 by EBC Osmotherly, a civil servant in the Machinery of Government Division in the Cabinet Office. For further background, see House of Commons Library Standard Note, The Osmotherly Rules, SN/PC/2671, 4 August 2005. 126 Cabinet Office, Departmental Evidence and Response to Select Committees, July 2005, paras 40–41. 127 Cabinet Office, Departmental Evidence and Response to Select Committees, July 2005, para 44. 128 Foreign Affairs Committee, The Decision to go to War in Iraq (HC 2002–03, 813) para 6. 129 Public Administration Select Committee, Making Government Work—Minutes of Evidence for Wednesday 1 November 2000 (HC 1999–2000, 238-vi) Q 397. 124

188 Richard Kelly experienced similar problems in relation to Lord Birt, Tony’s Blair’s unpaid special adviser, in relation to an inquiry into transport policy.130 iii. Judges Following the creation of the UK Supreme Court in the 2005 Constitutional Reform Act (see chapter thirteen), the relationship between Parliament and the judiciary changed. The most senior judges had previously been members of the House of Lords but Supreme Court judges are disqualified from sitting in Parliament, under section 137 of the 2005 Act. In 2007, the Constitution Committee in the Lords examined Relations between the Executive, the Judiciary and Parliament. It examined the role of select committees in holding the judiciary to account, concluding: 126. We believe that select committees can play a central part in enabling the role and proper concerns of the judiciary to be better understood by the public at large, and in helping the judiciary to remain accountable to the people via their representatives in Parliament. Not only should senior judges be questioned on the administration of the justice system, they might also be encouraged to discuss their views on key legal issues in the cause of transparency and better understanding of such issues amongst both parliamentarians and the public. However, under no circumstances must committees ask judges to comment on the pros and cons of individual judgments.131

It also considered the case for a specific parliamentary committee on the judiciary but was not convinced of the need for one.132 The Constitution Committee has adopted the practice of inviting the Lord Chief Justice to appear before it on an annual basis.133 However, in a speech in 2007, the Lord Chief Justice questioned the Committee’s first conclusion. Before reaching its conclusion, the Committee suggested that select committees ‘can play an important role in holding the judiciary to account by questioning in public’. The Lord Chief Justice ‘did not find that phrase attractive’. He agreed that committees should not question judges on individual judgments but there was merit in committees being a forum in which judges could comment on the administration of the justice system. However, he stated that ‘I do not believe that it would be desirable for judges to appear to be at the beck and call of Parliament’.134

130 Transport, Local Government and the Regions Committee, The Attendance of Lord Birt at the Transport, Local Government and the Regions Committee (HC 2001–02, 655). 131 Constitution Committee, Relations between the Executive, the Judiciary and Parliament (HL 2006–07, 151) para 126. 132 Constitution Committee, Relations between the Executive, the Judiciary and Parliament (n 132) paras 127–29. 133 Constitution Committee, Relations between the Executive, the Judiciary and Parliament (n 132) para 124. 134 Lord Chief Justice of England and Wales, ‘Judicial Independence’, speech by Lord Phillips of Worth Matravers to the Commonwealth Law Conference 2007 (Nairobi, Kenya, 12 September 2007).

Select Committees: Powers and Functions 189 The Judicial Executive Board (JEB) has issued Guidance for Judges Appearing before or Providing Written Evidence to Parliamentary Committees. In July 2008, the JEB noted that: Select Committees … have power to ‘send for persons, papers and records’ relevant to their terms of reference. This includes members of the judiciary other than those who are members of the House of Lords. 4. An order to attend is, however, extremely unusual and very unlikely in the case of a judge. Ordinarily, judges should expect to attend voluntarily at the request of the committee.135

Guidance issued subsequently stated that: The expectation, following discussions between the senior judiciary and parliament, is that a request for a judge to attend to give written evidence to a parliamentary committee will be directed to the Private Office of the Lord Chief Justice, which is part of the Judicial Office. … In the unlikely event that agreement as to judicial attendance cannot be reached through informal channels and the select committee indicates it is unhappy with a proposed non-attendance or with a judge declining to answer particular questions, the Lord Chief Justice will be consulted.136

iv. Protection for Witnesses Witnesses before Committees enjoy parliamentary privilege, and it is a contempt of Parliament for others to penalise a witness for the evidence they give.137 The House of Commons Guide for Witnesses Giving Written or Oral Evidence to House of Commons Select Committees notes that ‘Witnesses to select committees enjoy absolute privilege in respect of the evidence they give, whether written or oral, provided that it is formally accepted as such by the Committee’ (emphasis in original).138 The practical effect of this is that Parliament can offer strong protection to witnesses to speak freely (since they will not be troubled by claims for defamation). However, although it is a contempt of Parliament to penalise an individual for giving evidence, given the limitations on Parliament’s ability to fine or imprison 135 Judicial Executive Board, Guidance for Judges Appearing before or Providing Written Evidence to Parliamentary Committees (July 2008) paras 3–4. 136 Judicial Executive Board, Guidance to Judges on Appearances before Select Committees (October 2012) paras 20 and 26. 137 In 2003–04, the Committee on Standards and Privileges concluded that a witness who had given evidence to the Constitutional Affairs Committee had been adversely treated as a result of evidence given but that no further action was necessary (Committee on Standards and Privileges, Privilege: Protection of a Witness [HC 447 2003–04]). 138 House of Commons, Guide for Witnesses Giving Written or Oral Evidence to House of Commons Select Committees (June 2011). Guidance has also been published for Members who serve on select committees: House of Commons, Guide for Select Committee Members (March 2011).

190 Richard Kelly individuals for such contempt (discussed in chapter two) it is arguable that Parliament can offer only limited protection in other circumstances.

C. Sanctions Despite the abovementioned limitations, select committees generally receive the documents they have requested and the cooperation of those they invite to give oral evidence.139 However, from time to time, questions relating to the authority of select committees to require attendance or to require documents have been raised. Erskine May is clear: select committees have the power to ask—ie ‘to send for’—but they do not have the power to enforce their requests. In all cases, it is the House which will ultimately decide how to deal with disobedience. Gordon and Street put it bluntly: ‘no select committee has any direct power to enforce any of its existing powers’.140 Powers of enforcement remain with the House as an action is only a contempt of the House if the House concludes it to be so. However, the House has not imposed any form of sanction against or admonished a non-Member since 1957. Since then, the inherent authority of the House has diminished; the human rights landscape and, in particular, expectations of rights to a fair hearing have changed. At the same time, the breadth of subjects inquired into and the witnesses examined by select committees has grown. So questions about the ability of either House of Parliament to sanction those who do not cooperate with select committees have grown. In early 2010, Irene Rosenfeld, the United States-based Chairman and Chief Executive Officer of Kraft, declined to accept an invitation from the Business Innovation and Skills Committee to appear in its inquiry into mergers, acquisitions and takeovers.141 In July 2011, the Culture, Media and Sport Committee invited Rupert Murdoch, Chair and CEO of News Corporation, James Murdoch, Chairman and Chief Executive (International) of News Corporation, and Rebekah Brooks, former Chief Executive of News Corporation to appear before the Committee. In a press notice, the Committee stated that because both Rupert Murdoch and James Murdoch had declined the invitation to appear on a specified date, the Committee had decided to summon them.142 Rupert Murdoch and James Murdoch appeared before the Committee on 19 July 2011, as per the summons.

139

Rogers, Powers of Select Committees (n 123) para 1. Gordon and Street, Select Committees and Coercive Powers (n 112) 33. 141 Business Innovation and Skills, Mergers, Acquisitions and Takeovers: the Takeover of Cadbury by Kraft (HC 2009–10, 234) paras 5–6. 142 Culture Media and Sport Committee, ‘Commons Summons News International Executives’ (press notice, 14 July 2011). 140

Select Committees: Powers and Functions 191 These questions about the powers of select committees grew louder after the Culture, Media and Sport Committee first summoned Rupert Murdoch and James Murdoch to give evidence, in connection with phone hacking; in response to other evidence sessions; and then, in May 2012, when it concluded that a number of former News International employees and both The News of the World and News International, corporately, misled the Committee.143 The Government promised in the 2010 Queen’s Speech to publish a draft Bill on parliamentary privilege, in the first session of the Parliament. Some draft clauses were included in a Green Paper published in April 2012,144 before the Culture, Media and Sport Committee reported. However, the chapter on select committee powers did not include any draft legislation. The Government noted that it was not aware of any case where an individual has failed to comply with a formal summons from a select committee or with an order to produce a document or record. Therefore, the evidence suggests that in practice there may not be an issue to address.145

Despite this, the Government reviewed two broad approaches, discussed by the 1999 Joint Committee on Parliamentary Privilege: (i) legislate to give the two Houses enforceable powers by codifying their existing powers, possibly including giving the House of Commons a clear power to fine non-Members; or (ii) create criminal offences of committing contempts of Parliament; this would allow Parliament’s powers to be enforced through the courts. The Government argued that before codifying their powers—to reprimand, fine or imprison—the two Houses would need to review their procedures for punishing non-Members to ensure that safeguards were in place so that individuals received a fair hearing. The Government noted that the Joint Committee had concluded that it was unlikely that Parliament would be able to provide the kind of safeguards associated with modern due process.146 If the second option of criminalising contempts was pursued it would ensure that ‘punishment was imposed only after a fair and transparent process’. However, Parliament would no longer be responsible for enforcing its privileges; and it would require Parliament to allow its proceedings to be questioned in the courts.147 This approach also prompted questions about defining contempts and initiating a prosecution. The Government noted that the legislation establishing the devolved legislatures made it a statutory requirement to comply with requests

143 Culture Media and Sport Committee, News International and Phone-hacking (HC 2010–12, 903-I) para 275. 144 HM Government, Parliamentary Privilege (Green Paper, Cm 8318, 2012). 145 Ibid, para 254. 146 Ibid, paras 257–63. 147 Ibid, paras 264–67.

192 Richard Kelly for information or attendance at committee meetings. Failure to comply is an offence and is punishable by a fine.148 In his paper to the Liaison Committee, the Clerk of the House reviewed the question of sanctions, highlighting the difficulties associated with admonishing, fining and imprisoning those found to be in contempt of the House. He thought that calling to the Bar of the House ‘must be regarded as having fallen … out of use’. He continued: In modern circumstances, as a televised proceeding, it would risk being a pantomime. Consider: the miscreant is brought to the Bar, accompanied by the Serjeant with the Mace, and is admonished by the Speaker in front of the House. Even assuming that the miscreant is prepared to come (and a refusal would be a further embarrassment) the proceedings are not controllable, and the House would risk looking like a lynch mob. The Speaker stands and delivers a rebuke, at a range of some thirty yards. Then what? The individual at the Bar, in prime TV time, may decide to have a go at the House and the treatment he or she has received. If the individual really does have a case, or perhaps produces some surprise piece of evidence which makes it clear that the House has got it wrong, the result could be a reputational disaster.149

The power of fining ‘as “a court of record” is doubtful’; in 1762 it was ‘held in terms no longer to exist’; and the Supreme Court has described it as ‘theoretical’.150 The Clerk identified a number of objections to the House using its power to imprison: — finding an acceptable procedure; — breaching Articles 5 and 6 of the European Convention on Human Rights; — the sentence, to the end of a session, would be indeterminate; and — there are questions about the Serjeant at Arms’ ability to enforce an order of the House.151 But how to proceed is far from certain: At present select committees possess no clear coercive powers at all. The present situation poses a threat to the legitimacy of select committees. However, it does not necessarily follow from this that coercive powers should be introduced. There is a need to consider whether and if so how giving increased powers to select committees would affect Parliament’s relationship with the courts more generally.152

The former Clerk of the House, Sir Malcolm Jack, noted that committees have to report breaches of privilege or contempts to the House but that it too is restricted in dealing with such cases: But what power of enforcement does the committee have: the answer is, I fear, little. What the Committee has to do is to report the matter to the House; the House has then 148 149 150 151 152

Scotland Act 1998, ss 23–26; Government of Wales Act 2006, ss 37–39. Rogers (n 123) para 20. Ibid, para 21. Ibid, paras 24–27. Gordon and Street (n 112) 21–22.

Select Committees: Powers and Functions 193 to decide whether a contempt has been committed and how to deal with it. … But what power does the House have to take more drastic action if all else fails? The answer is precious little.153

He continued by echoing the current Clerk’s objections to the House using its existing powers of sanction (described above). i. Committee on Standards and Privileges The Culture, Media and Sport Committee’s conclusions that it had been misled by former News of the World and News International staff and by The News of the World and by News International, corporately, were referred to the Committee on Standards and Privileges on 22 May 2012.154 In July 2012, the Committee on Standards and Privileges not only set out how it would undertake its inquiry but also commented on the ways in which it felt the House’s powers of sanction could be used. The Committee on Standards and Privileges resolved that it would first seek written evidence from those the Culture, Media and Sport Committee concluded had misled it and those the Committee relied on in reaching that conclusion, and that it ‘may explore issues raised by the subjects of the inquiry in writing with key witnesses or other relevant parties’ (Stage 1). Then the Committee would take oral evidence, ‘At evidence sessions, the subjects of the inquiry, witnesses and other relevant parties may be accompanied by a legal or other adviser, and may take advice from them, but shall answer in person’. The Committee on Standards and Privileges set out its final stage—determination— as follows: (9)

If the Committee intends to criticise a subject of the inquiry it will first send a warning letter, and such a letter will: (a) state what the criticism is; (b) contain a statement of the facts that the Committee considers substantiate the criticism; and (c) refer to any evidence which supports those facts. (10) The Committee will expect to receive responses to warning letters within 14 days. (11) The Committee will consider responses to warning letters before reporting to the House. (12) The Committee will report to the House.

The Committee also set out a number of general points, including: When considering the allegations against the subjects of the inquiry, the Committee will apply the same standard of proof as applied to allegations against Members, as set

153 154

M Jack, ‘Parliamentary Privilege: a Dignified or Efficient part of the Constitution?’ (n 93). HC Deb 22 May 2012, cols 990–1014.

194 Richard Kelly out in the Procedural Note of 24 April 2012 from the Parliamentary Commissioner for Standards. … Oral evidence will be taken on oath.

In exercising its powers of sanction, the Committee noted that the House has decided that its penal jurisdiction should be exercised (a) as sparingly as possible and (b) only when the House is satisfied that to exercise it is essential in order to provide reasonable protection for the House, its Members or its officers, from such improper obstruction or attempt at or threat of obstruction as is causing, or is likely to cause, substantial interference with the performance of their respective functions.

The Committee then stated that it would not recommend that the House exercises any power of committal to prison and that the maximum penalty it would recommend, were any of the allegations to be proved, would be for the House to impose admonishment.155 ii. The Liaison Committee In its 2012 review of select committees, discussed above, the Liaison Committee devoted a short chapter to select committee powers. It highlighted that ‘longstanding uncertainties about the extent and enforceability of select committees’ powers were brought to the fore by a series of unusual inquiries’. It mentioned a number of issues: refusal to attend; summoning witnesses; taking evidence on oath; the publication of the Green Paper on parliamentary privilege; and the Clerk’s paper on select committee powers.156 The Liaison Committee expected a joint committee to be established to consider the Green Paper. It nevertheless commented that: We expect to be represented on that joint committee, and do not wish to prejudge its conclusions, but it may be helpful if we give an indication here of our thinking. We are persuaded that the disadvantages of enshrining parliamentary privilege in statute would outweigh the benefits.157

The Liaison Committee also considered whether action was necessary: 134. There are two points of view on whether it is now necessary to take some action: either a) doing nothing is no longer an option: it is only a question of time before our powers are challenged; or

155 156 157

Committee on Standards and Privileges, Extract from Formal Minutes 2012–13, 3 July 2012. Liaison Committee, Select Committee Effectiveness, Resources and Powers (n 21) 129–32. Ibid, para 133.

Select Committees: Powers and Functions 195 b) recent problems have not been severe and either possible solution would bring more disadvantages than advantages. On balance, we conclude that, at the very least Parliament should set out a clear, and realistic, statement of its powers—and perhaps also its responsibilities—in a resolution of the House and set out in more detail in Standing Orders how those powers are to be exercised. We note the Clerk of the House’s view that this might not be fully effective, but this would at least show Parliament’s determination to retain the powers it has within the ‘exclusive cognizance’ of Parliamentary Privilege. Evidence of such determination is altogether lacking at present. We look forward to the Joint Committee’s conclusions.158

The Joint Committee on Parliamentary Privilege was appointed in 2013 and, at the time of writing, was due to issue a report by 25 April 2013. Both Houses nominated six members to serve on the Joint Committee, the Commons on 3 December 2012 and the Lords on 9 January 2013. The Commons nominated two select committee chairs—William Cash and Bernard Jenkin.159

IV. REFLECTIONS

It is plain from the academic studies that have taken place, that it is difficult to measure the impact and effectiveness of parliamentary select committees. Nonetheless, recent studies, such as those conducted by Benton and Russell, suggest that ‘select committees are taken increasingly seriously by government, and have become an established and respected part of the system’. 160 Moreover, it is apparent from their increased media profile and engagement with the public that members and particularly chairs of committees take their roles seriously. The introduction of pay for committee chairs, first agreed in 2003, may have had some impact, but it is also arguable that increased resources provided to committees (including committee specialists, and the ability to employ specialist advisers, discussed further in chapter five) have led to a more professional approach to scrutiny by Parliament. The election of select committee chairs by the House and of members by party colleagues is also likely to have increased select committees’ credibility and legitimacy. In a review of the Wright reforms, the BBC suggested that this was the case: ‘Committee members are now elected by MPs, rather than nominated by the whips. It gives them clout and independence’.161 Select committees are generally successful in obtaining evidence and papers from their witnesses on the basis of invitations and requests. However, recent cases

158

Ibid, para 134. HC Deb 3 December 2012, col 695; HL Deb 9 January 2013, cols 132–33. 160 Benton and Russell (n 30). 161 BBC News, ‘The New Breed of Select Committee Offers MPs an Alternative Career Structure’ (London, 11 January 2013) www.bbc.co.uk/news/uk-politics-20976452. 159

196 Richard Kelly have also highlighted that while committees may be able to shine a spotlight on particular problems, they do not have readily enforceable powers of compulsion themselves. Their powers are granted and enforced by the House. But the Liaison Committee did want to see ‘Parliament set out a clear, and realistic, statement of its powers’.162 Yet in spite of the potential pitfalls, the Committee has clearly set out its objection to formalising select committee powers in a statute. The effect of the absence of clearly enforceable powers has yet to be publicly tested, but may well prove problematic for Parliament in the coming years. Furthermore, if select committees continue to extend their remit beyond the oversight of government or if government continues to increase the role of the private sector in the management and delivery of public services, then the framework of select committee powers could come under increasing strain.

162

Liaison Committee, Select Committee Effectiveness, Resources and Powers, (n 21) para 134.

8 The Impact of Devolution on the UK Parliament JOHN MCELDOWNEY*

I. INTRODUCTION

T

HE DEVOLUTION SETTLEMENTS in Scotland, Wales and Northern Ireland are asymmetrical and evolving. So are their implications for the UK Parliament: these are the subject of this chapter. Outside London, with its elected Mayor and Assembly, there is no devolved regional government in England on a par with devolution in Wales, Scotland and Northern Ireland. There are significant differences between devolution arrangements in each of the three constituent parts of the UK to which powers have been devolved; the arrangements have been changed since devolution started in 1998 through primary legislation passed by the UK Parliament in response to pressures from the devolved bodies. There are signs of a growing momentum for stronger devolved powers in Scotland, or even ultimately independence: a referendum on the issue is to be held in 2014.1 The result of the March 2011 referendum in Wales was in favour of the enhancement of the law-making powers of the Assembly for Wales, and recent changes to the arrangements in Wales provide the Assembly for Wales with new legislative powers. This is likely to lead to further expansion of the powers granted by the Government of Wales Act 2006. The Silk Commission on Devolution in Wales2 published its report in November 2012. It recommended the introduction of a Wales Bill, with provision for a referendum in 2013. The Bill would contain borrowing and devolved income tax-varying powers together with a number of smaller taxes-raising powers. The Commission is expected to publish the second part of its report later in 2013. The impact of the Commission’s recommendations, if implemented, will significantly increase the responsibilities of the devolved bodies in Wales.

*

John McEldowney is Professor of Law at the School of Law, University of Warwick. See discussion below. 2 Commission on Devolution in Wales (Chair Paul Silk), Empowerment and Responsibility: Financial Powers to Strengthen Wales (November 2012). 1

198 John McEldowney Since 2007 the Northern Ireland Assembly’s powers have been expanded to include justice and policing.3 If the United Kingdom Parliament were to grant yet more powers to devolved legislatures and executives, the impact of devolution on the working of the UK Parliament would become even greater. Other devolution-related matters that affect the UK Parliament include: the so-called ‘West-Lothian Question’4 on whether MPs sitting for seats in Scotland, Wales and Northern Ireland should be able to vote on matters affecting only England; the use of Legislative Consent Motions by the devolved bodies;5 any changes the British Government may make to the roles of the Secretaries of State for Scotland, Wales and Northern Ireland and consequently the role of parliamentary select committees for each of the devolved countries; and the increasing use of referendums. The next section of this chapter outlines the devolution arrangements in each of the devolved countries and, briefly, the position in England, focusing on their relevance for the UK Parliament.

II. DEVOLUTION IN CONTEXT6

The devolution arrangements in Scotland, Wales and Northern Ireland all preserve the sovereignty or legislative supremacy of the UK Parliament.7 While the UK Parliament has ‘exclusive cognisance’ of its own proceedings and its Members enjoy various parliamentary privileges,8 the devolved bodies, being creatures of statute, do not enjoy such inherent privileges and immunities:9 their powers to

3

The Department of Justice Act (Northern Ireland) 2010 (a Northern Ireland Assembly Act). Generally see N Burrows, Devolution (London, Sweet and Maxwell, 2000); P Norton, The British Polity (London, Longman, 2011); T Dalyell, Devolution: the End of Britain? (London, Jonathan Cape, 1977); HC Deb 14 November 1977, col 87. Also see House of Commons Library Standard Note, The West Lothian Question, SN/PC/2586, 18 January 2012. 5 By convention, the UK Parliament does not legislate on devolved matters without the consent of the devolved legislature. This was originally provided for in relation to Scotland by the Sewel Convention, discussed below. 6 B Hadfield, ‘Devolution: A National Conversation?’ in J Jowell and D Oliver (eds), The Changing Constitution (Oxford, Oxford University Press, 2011) 212–36. B Hadfield, ‘Devolution, Westminster and the English Question’ [2005] Public Law 286; B Hadfield, ‘The United Kingdom as a Territorial State’ in V Bogdanor (ed), The British Constitution in the Twentieth Century (Oxford, Oxford University Press, 2003). 7 See Scotland Act 1998, s 29; Northern Ireland Act 1998, s 5(6); and the Government of Wales Act 2006, s 93. On sovereignty, see discussion in ch 12; see also HM Cabinet Office, Devolution: Memorandum of Understanding and Supplementary Agreements (Cm 7864, March, 2010); House of Commons Library Standard Note, The UK Devolved Legislatures: Some Comparisons between their Powers and Work, SN/PC/04505, 9 November 2007. 8 See chs 1, 2 and 3. 9 On immunities see the discussion in HL Select Committee on the Constitution, Devolution: InterInstitutional Relations in the United Kingdom (HL 2002–03, 28); see also Cabinet Office Devolution: Memorandum of Understanding and Supplementary Agreements (March 2010); Northern Ireland Assembly Library: Research Papers Parliamentary Privilege, NIAR 639-11 (28 January 2011). In relation to Scotland see, eg, The International Organisations (Immunities and Privileges) (Scotland) 4

The Impact of Devolution on the UK Parliament 199 regulate their proceedings are set out in the devolution Acts.10 And the allocation of public money to the devolved bodies is made by the UK Treasury on the basis of the non-statutory Barnett Formula of 197611 under which those sums are set by reference to public expenditure in England.12

A. Scotland There is a long history to debates about Scottish devolution, including in the recommendations of the majority in the Royal Commission on the Constitution in 1973,13 and those surrounding the Scotland Act 1978, which was never implemented because the required 40 per cent of the electorate did not vote in favour in a referendum (though a majority of those voting were in favour).14 In the 1980s the campaign for devolution to Scotland was led by the Scottish Constitutional Convention which was formed in 1988.15 The Scottish National Party was involved initially but withdrew early on as the constitutional options under consideration did not include independence. Membership of the Convention included 80 per cent of Scotland’s MPs and MEPs, members from the Regional and Island Councils and most District Councils, and representative from the churches, business, industry, the unions and from the Labour Party and the Social and Liberal Democrats. The Conservative Party did not participate. i. The Scotland Act 1998 The Scotland Act 1998 created a Scottish Parliament with 129 Members, the first Parliament in Scotland since 1707. Elections to the Parliament are by a mixture of first past the post for 73 constituency members and an Additional Member System for 56 regional list members. The Parliament chooses the First Minister, who then chooses the Cabinet. From the start it was clear that the electoral system might result in coalition or minority government. In 1999 and 2003 the elections in Scotland led to a Coalition executive between Labour and the Liberal Democrats. The election in 2007 led to the formation of a minority Scottish National Party Amendment Order 2010, SSI 2010; in relation to Wales see Welsh Assembly: The Privileges of the Assembly (October 2012). And generally see HM Government, Parliamentary Privilege (Green Paper, Cm 8318, 2012). 10 See Scotland Act 1998, pt I; Northern Ireland Act 1998, pt IV; Government of Wales Act 2006, throughout. 11 See House of Lords Select Committee on the Barnett Formula (HL 2008-09, 139). 12 See J McEldowney, ‘Public Expenditure and the Control of Public Finance’ in Jowell and Oliver, The Changing Constitution (n 6) 351–53. See also discussion in section III of this chapter. 13 Lord Crowther and later Lord Kilbrandon (Chair), Royal Commission on the Constitution (Cmnd 5460, 1973). 14 The Act was repealed in 1979. 15 See its publications Towards a Scottish Parliament (1989), Key Elements of Proposals for Scottish Parliament (1990) and Scotland’s Parliament, Scotland’s Right (1995).

200 John McEldowney (SNP) executive. The SNP won a majority in the 2011 election and has ruled since then as a single party majority government.16 The Scotland Act 1998 granted the Scottish Parliament ‘residual powers’17 entitling it to legislate on all matters except those listed as reserved powers in Schedules 4 and 5: these remained under the control of the UK. The list of reserved powers includes the Crown, foreign affairs, including the European Union, defence and macro-economic policy. Specific reservations were also made across a wide range of central government departments that included social security, immigration and nationality, misuse of drugs, energy and employment. The Scottish Parliament does not have power to legislate contrary to EU law or to the European Convention on Human Rights (ECHR). Section 30(2) of the Scotland Act 1998 provides for the possibility of expanding the devolved responsibilities and altering the allocation of responsibilities between the UK and Scotland: it is this section that devolved power to the Scottish Executive to hold a referendum on Scottish independence in 2014 (see below). The Scotland Act 1998, s 28, retains the sovereignty of the UK Parliament. However under the Sewel Convention—which is not part of the Act, but a Memorandum of Understanding between the UK Government and the Scottish Executive—the UK Government undertook not to seek or support legislation in the UK Parliament on matters within Scotland’s devolved competence without the prior consent of the Scottish Parliament, to be given by the passing of Legislative Consent Motions (which were also known as Sewel Motions). During the passage of the Scotland Act 2012 (see below) the UK Government reiterated the Sewel Convention and undertook not to legislate on devolved matters without the consent of the Scottish Parliament.18 The Scottish Government resembles the United Kingdom Cabinet in some respects, in particular its reliance on ministerial and cabinet responsibility. The Committees of the Scottish parliament differ from those at Westminster,19 for instance in that there is no division between legislative and scrutiny committees. Unlike Wales and Northern Ireland, Scotland was given the power to set the Scottish Variable Rate (SVR) by the Scotland Act 1998, and this allowed the Scottish Parliament to raise or cut the basic rate of income tax by up to 3 pence in the pound. The power has not been exercised and will be repealed once the new Scottish rate of income tax provided for in the Scotland Act 2012 comes into

16

The term ‘executive’ was altered to ‘government’ in the Scotland Act 2012. These include agriculture and fisheries, the arts, education, the environment, health, home affairs, housing, law and justice, local government, planning, the police service, social work, sport and most areas covered by transport within Scotland. 18 Revised procedural rules were introduced in December 2005 governing the legislative consent process. See House of Commons Library Standard Note, The Sewel Convention, SN/PC/2084, 25 November 2005. The working of the Sewel Convention was considered by the McKay Commission discussed below. For information about these motions see www.scotland.gov.uk/About/Government/ Sewel. 19 See ch 7. 17

The Impact of Devolution on the UK Parliament 201 effect: this is expected to be in April 2016, though the Act does not specify any date. ii. The Scotland Act 2012 Pressure from Scotland for increases in the powers of the Scottish Parliament led to the setting up of the Calman Commission20 in response to the SNP’s proposals for independence and its increasing electoral success in Scotland. The Commission reported in 2009. It recommended that some powers of taxation ought to be devolved to Scotland with a subsequent reduction in the block grant from the UK, and that extended borrowing powers be granted to the Scottish Parliament. The UK Coalition Government, formed in May 2010, decided to take forward many of the Calman recommendations. The Scotland Act 2012 made further adjustment to the list of reserved matters and those that have been devolved to Scotland.21 The Act grants new powers to the Scottish Parliament to allow it to raise taxes by replacing part of the UK income tax with a new Scottish income tax, devolving stamp duty, land tax and landfill tax, and giving the Scottish Parliament new borrowing powers. The 2012 Act also clarifies the law in relation to the jurisdiction of the Supreme Court of the UK over criminal appeals, discussed below. A significant difference between the Scottish Parliament and the UK Parliament is that the former, being a creature of statute, does not enjoy the inherent privileges of the two Houses of the UK Parliament but depends instead upon the provisions of the Scotland Acts of 1998 and 2006: in these respects the UK Parliament has greater autonomy because of parliamentary privilege.22 iii. The Role of the Courts Soon after the Scotland Act 1998 came into effect questions arose in litigation as to the nature and powers of the new Parliament. In Whaley v Lord Watson of Invergowrie23 it was held by the Inner House of the Court of Session that the Scottish Parliament, being a creature of statute, does not enjoy the privilege of the UK Parliament to regulate its own proceedings (though by section 28(5) of the Act the validity of an Act of the Scottish Parliament is not affected by any invalidity in proceedings leading to the enactment).24

20 The Calman Commission on Scottish Devolution, Final Report (June 2009); see: House of Commons Library Standard Note, Devolution of Tax Powers to the Scottish Parliament, SN05984, 27 January 2012. 21 House of Commons Standard Note, Responsibility for reserved powers in Scotland, SN/PC/06322, 10 May 2012. This note contains lists of reserved powers and the UK government departments responsible. 22 See the discussion of parliamentary privilege in chs 1, 2 and 3. 23 2000 SC 340. 24 See C Munro, ‘Privilege at Holyrood’ [2000] Public Law 347.

202 John McEldowney Issues to do with devolution have also been raised in the UK Supreme Court. A number of recent cases highlight the cultural distinctiveness of the Scottish legal system and the political sensitivities surrounding it. As we shall see, courts have generally upheld the powers of devolved bodies against challenge, except in relation to the primacy of EU law and interpretations of human rights, when the Supreme Court has on occasions overridden interpretations made by Scottish courts. In AXA General Insurance and others v The Lord Advocate,25 the lawfulness of an Act of the Scottish Parliament, the Damages (Asbestos-related Conditions) (Scotland) Act 2009, was challenged as to its compatibility with Article 1 of Protocol 1 of the ECHR and its reasonableness in terms of the general judicial review jurisdiction of the Supreme Court, in particular on grounds of irrationality and arbitrariness. The claimants were insurance companies and their claim arose from their undertaking to indemnify employers against liability for negligence. The point of the Scottish Parliament’s legislation was to include under Scots law liability for personal injury claims arising from various asbestos-related pleural plaques and related conditions. The UK Supreme Court held that the claimants were entitled to make such a claim and that the courts had an overarching power to ensure that the 2009 Act was legitimate in its aims and proportionate in its response. The court took into account the political context of the legislation, including social policy and the public interest. It found that the legislation had a legitimate purpose and that the means to achieve its aims were reasonable and proportionate. The Court rejected the claimants’ case and held that the legislation was compatible with the ECHR and did not offend any of the other grounds for judicial review on which the claimants relied. The significance of the AXA decision is that the UK Supreme Court indicated that it has a residual jurisdiction to consider the legality of Acts of the Scottish Parliament. Lord Hope held that the approach to the question of the Supreme Court’s review powers also applied to the other devolved institutions in Wales and Northern Ireland, but that it was significant that the Scottish Parliament is ‘a selfstanding’ democratically elected legislature. This sets an important benchmark for judicial review. Lord Hope cautioned that the courts ‘should intervene, if at all, only in the most exceptional circumstances’.26 His analysis is drawn not only from a comparative analysis of the sovereignty of the UK and Scottish Parliaments, but on the basis of the power of review itself: it constitutes an important oversight of the constitutional processes and checks and balances on the legislative programme of the Scottish Parliament and other devolved administrations exercising legislative powers.

25 26

[2011] UKSC 46 and [2011] CSIH 31. Ibid [49].

The Impact of Devolution on the UK Parliament 203 The Human Rights Act 1998 has also been relied on in cases raising devolution issues. In Cadder (Peter) v HM Advocate27 the Criminal Procedure (Scotland) Act 1995, passed by the UK Parliament before the Scotland Act 1998, was the subject of judicial review on a claim by a suspect who had made admissions under caution to the police but in the absence of legal representation. The admissibility of the admissions was contested after the accused was convicted, and formed the basis of his appeal. It was argued that the absence of legal representation at the time of the police interview was a violation of Article 6 of the ECHR. The High Court of Justiciary refused leave to appeal on the basis of an earlier leading Scottish authority, HM Advocate v McLean,28 in which the argument that legal representation was a legal right had been rejected. Cadder appealed to the Supreme Court of the UK. The Supreme Court followed the Grand Chamber of the European Court of Human Rights in Salduz v Turkey (2008)29 in holding that a person detained by the police had the right of access to a lawyer prior to being interviewed unless there were compelling reasons to restrict that right. The Scottish court’s decision in McLean was overruled and it was held that nothing in the Scotland Act 1998 protected the Criminal Procedure (Scotland) Act 1995 from review. The 1995 Act could not be read compatibly with Article 6 of the ECHR on access to justice. The day after the Supreme Court delivered its decision, the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010 was passed by the Scottish Parliament allowing a person under suspicion a right of access to legal assistance. The Supreme Court has also held that its jurisdiction over devolution issues under the Scotland Act 199830 includes the power to deal with Human Rights Act claims arising in criminal—and other—cases and to determine whether the Scottish courts have correctly interpreted Article 6 rights. In Fraser (Nat Gordon) v HM Advocate31 the High Court of Justiciary had refused an appeal against conviction in which the defendant sought to adduce new evidence in support of a claim that the original trial was a miscarriage of justice. The defendant claimed that the Crown’s failure to disclose information to him before the trial infringed his Article 6 rights and that this raised a devolution issue as to whether the conviction was outside the powers of the Scottish courts under the 1998 Act as being contrary to the Human Rights Act 1998. The Supreme Court held that this was indeed a devolution issue over which it had jurisdiction, and that the test applied by the Scottish Court was not consistent with the interpretation adopted by the Supreme 27

Cadder (Peter) v HM Advocate [2010] UKSC 43 (SC). HM Advocate v McLean [2009] HCJAC 97, 2010 SLT 73. See the discussion in [2011] Public Law 166. 29 Salduz v Turkey (2008) 49 EHRR 421. 30 See s 98 and sch 6, pts I and II as amended to substitute the Supreme Court for the Judicial Committee of the Privy Council. 31 Fraser (Nat Gordon) v HM Advocate [2011] UKSC 24. See the discussion in [2011] Public Law 805. 28

204 John McEldowney Court in the leading case of McInnes v HM Advocate.32 It therefore remitted the case to a differently constituted Appeal Court for consideration. The Scotland Act 2012 addresses a number of important constitutional issues. Section 14 of the 2012 Act sets a time limit for actions against the Scottish Ministers under the 1998 Act, where it is claimed that they acted incompatibly with Convention rights.33 The jurisdiction of the UK Supreme Court over Convention rights and EU law has been clarified under section 34 of the Scotland Act 2012. This gives the Advocate-General for Scotland the express power to refer a compatibility issue to the High Court of Justiciary. Under section 35 of the 2012 Act additional powers are granted to the Lord Advocate and the AdvocateGeneral for Scotland to require a lower court to refer a compatibility issue to the High Court of Justiciary or if necessary to the UK Supreme Court. Sections 36 and 37 provide the UK Supreme Court with power to hear criminal appeals from Scotland that may raise Convention rights or EU law issues. iv. The Scottish Independence Referendum The Scottish National Party minority Government 2007–11, had included acommitment in its 2007 manifesto to bring forward a referendum on independence but did not do so, presumably because it lacked a majority in the Parliament. The formation of a majority Scottish National Party Government in 2011 opened the way to discussions of Scottish independence. An agreement was reached with the UK Government to the holding of an advisory referendum on Scottish independence in 2014. A Memorandum of Agreement was concluded in November 2012 between the Scottish and UK Governments that the UK Government would promote secondary legislation under section 30 of the Scotland Act 1998 and that the Scottish Government will promote legislation for a referendum in the Scottish Parliament with details of the question to be posed and the extension of the franchise to 16- and 17-year-olds.34 The question will be ‘Should Scotland be an independent country?’ The answer will be ‘yes’ or ‘no’.35 The referendum will be held on 18 September 2014.

B. Wales While the Scottish Parliament has residual legislative powers with specific powers reserved to the UK Parliament, the opposite is the case for the Welsh Assembly—

32

McInnes v HM Advocate [2010] UKSC 7. Somerville v Scottish Ministers [2000] UKHL 44; and the Convention Rights Proceedings (Amendment) (Scotland) Act 2009 now replaced by s 14 of the Scotland Act 2012. 34 House of Commons Library Standard Note, Referendum on Independence for Scotland, SN/ PC/06478, 21 November 2012, and updated information, SN/PC/06478, 15 January 2013. 35 See further discussion of referendums in section III below. 33

The Impact of Devolution on the UK Parliament 205 devolved matters are defined by statute. The pressure for devolution in Wales has been weaker than in Scotland. There was a resounding ‘no’ to devolution in the 1979 referendum on the then Wales Act 1978 (which was subsequently repealed). The result in the 1997 referendum, held a week after the Scottish devolution referendum, was just sufficient to indicate support for devolution (a majority of 6721 votes), and the Government of Wales Act 1998 was passed thereafter. There had been significant administrative devolution in Wales since the 1960s, and in the 1980s and 1990s there was significant difference in legislation in Wales (even though it was made in Westminster), especially in the fields of education and the Welsh language. i. The Government of Wales Acts 1998 and 2006 The Government of Wales Act 1998 provided for a 60-Member National Assembly for Wales, elected under the same system as that used in Scotland—an Additional Member System. The National Assembly is the first bilingual legislative forum in the United Kingdom. It was granted delegated legislative powers, and the 1998 Act made no distinction between the Assembly and the government, which was formed from its Members: it was a form of corporate governance. Transfers of functions were effected by Orders in Council approved by the UK Parliament under section 22 of the 1998 Act. The National Assembly for Wales (Transfer of Functions) Order 1999 provided for the devolution of power previously exercised by the Secretary of State for Wales to the Welsh Assembly. The transfers were categorised into 18 specified fields and later raised to 20 specified fields by Schedule 5 of the Government of Wales Act 2006. None of them granted the Assembly primary legislative powers. Thus the National Assembly for Wales was confined to delegated legislative powers only within its specified fields of competences,36 as compared with the devolution of ‘residual’ powers to legislate on any matter except those reserved to the UK Parliament, to the Scottish Parliament under the Scotland Act 1998. There is lively discussion in Wales about whether the National Assembly for Wales, like the Scottish Parliament, should enjoy such residual powers. Significantly, financial autonomy through tax-raising powers was not included in the 1998 or 2006 Acts.37 Experience under the Government of Wales Act 1998 led to the separation of the legislature and the executive. The creation of the First Minister for Wales and

36 The specified fields of competences are agriculture, fisheries, forestry and rural development, ancient monuments and historic buildings, culture, economic development, education and training, environment, fire and rescue and fire safety, sport and recreation, food, health and health services, highways and transport, housing and local government, public administration, the National Assembly itself, town and country planning, water and flood defence, tourism and the Welsh language. 37 There was subsequent discussion of this following the recommendations of the Holtham Commission, and the issue was actively considered by the Silk Commission. Both are discussed below. See also the announcement made by Danny Alexander on 24 October 2012 re: borrowing powers for the National Assembly for Wales; Written Answers: Hansard, 24 October 2012, col 53WS.

206 John McEldowney various ministers (there had been secretaries until then) began in earnest in 2000. The Welsh Assembly Government set up a Commission to consider the details of the Assembly’s powers under Lord Ivor Richard. It reported in 2004.38 The UK Government responded in its White Paper Better Governance for Wales.39 The UK Parliament then passed the Government of Wales Act 2006 which reformed the National Assembly for Wales and formalised the arrangements for a Welsh Assembly Government40 consisting of a First Minister and up to 12 Welsh ministers, all Members of the Assembly. The Assembly of 1998 had been granted power to make Assembly measures within the 20 specified fields subject to approval by the Queen in Council. The effect of an Assembly Measure was the same as that of an Act of Parliament. This procedure was superseded when Part 4 of the 2006 Act came into force after a referendum in March 2011, and gave the Assembly primary legislative powers in its areas of competence. It is possible under the 2006 legislation, as it was under the 1998 Government of Wales Act, for the Assembly to be given additional legislative powers in any of the 20 specified fields. This enhanced legislative power requires a referendum and an Order in Council approved by both Houses of Parliament. As of 2013 there has been one referendum (provision for which was made in the 2006 Act), triggered by the Welsh Assembly on 3 March 2011, to consider whether the Assembly should have the power to legislate on all matters falling within the 20 specified fields. The result was approval, with 63 per cent in favour to 36 per cent against.41 The consequence of the referendum was to bring into effect a new primary legislative procedure for the passing of ‘Acts’ in the areas of Assembly competence.42 The Assembly has been active in developing its own approach to public policy and aspects of the law. Examples include the recommendation in October 2011 to reform the lawful defence of reasonable chastisement: legislation on this has not yet been forthcoming. There have been environmental protection measures such as the charging of 5p per customer for the use of plastic bags, similar to the position in the Irish Republic. Other new Welsh policies include a campaign against smoking in cars, options for the giving of consent to organ donation and a proactive health strategy, Together for Health. The First Minister supports a separate Welsh jurisdiction and this has generated a lively debate. Many of the issues raised

38 The Report of the Commission on the Powers and Electoral Arrangements of the National Assembly for Wales (Spring 2004). See House of Commons Library Standard Note SN/PC/3018, 22 April 2004. 39 HM Government, Better Governance for Wales (White Paper, Cm 6582, 2005). 40 By s 45. 41 House of Commons Library Standard Note, Referendum in Wales, SN/PC/05897, 7 March 2011. 42 See pt 4 of the 2006 Act and the explanation of legislative powers on the Assembly website www. assemblywales.org. For an update on recent developments see House of Commons Library Standard Note, Political Developments in Wales to December 2012, SN/PC/06542, 31 January 2013.

The Impact of Devolution on the UK Parliament 207 by the Government and the Assembly, though controversial, reflect a significant desire to create distinctive Welsh policies. In July 2012 the Attorney-General referred to the Supreme Court—before Royal Assent had been given—the question whether the first Bill passed by the Assembly since the 2011 referendum, the Local Government Byelaws (Wales) Bill, was within its vires. The Bill affected the function of the Secretary of State for Wales under section 236 of the Local Government Act 1972 in relation to by laws made without his consent, and this was not permitted by the Government of Wales Acts.43 This was the first time that the Attorney-General had used the power to refer any devolved Bill to the UK Supreme Court. The power of referral is also available in the devolution settlement Acts for Scotland and Northern Ireland and the case is significant for those devolved arrangements. The Supreme Court44 was unanimous in holding that the Welsh Assembly had legislative competence to enact both sections 6 and 9 of the Bill. The contentious issue was section 9 of the Bill, which the Secretary of State refused to approve because it had the potential to give Welsh Ministers powers to add to the schedule of byelaw enactments that would not require the Secretary of State’s consent. The Supreme Court’s interpretation does not broaden the Assembly’s powers but clarifies the need for confirmation by the Secretary of State in the approval of byelaws. The case is important particularly because there are similar provisions for Scotland under section 33 of the Scotland Act 1998, and also for Northern Ireland. ii. The Silk Commission Review: Finance The UK Coalition Government decided in 2011 to institute a Calman-like process (see discussion of Scotland, above) for Wales. This led it to set up a Commission on Devolution in Wales, chaired by Paul Silk (hence the Silk Commission), the first Clerk to the Welsh Assembly.45 The Commission’s report will be in two parts: part 1 was published in the Autumn of 2012 on fiscal powers (see below); and part 2 on devolved powers is due to be published in early 2014. The background to fiscal powers for Wales is that the Independent Commission on Funding and Finance for Wales (the Holtham Commission) was established by the Welsh Assembly Government in 2008 to review the Assembly’s funding and to consider the devolution to it of fiscal powers.46 The Holtham Commission47 was 43

See www.legislation.gov.ukpga2006. Re Local Government Byelaws (Wales) Bill 2012—Reference by the Attorney-General for England and Wales [2012] UKSC 53. 45 House of Lords Library Standard Note, Debate on 19 July: Silk Commission on Devolution in Wales, LLN 2012/050, 12 July 2012. Submissions to the Silk Commission have been made available online. 46 The Holtham Commission was similar to the Calman Commission set up for Scotland, which recommended that elements of taxing-powers ought to be devolved, with reductions in the block grant from the UK Treasury and extended borrowing powers granted to the Scottish Parliament: these were implemented in the Scotland Act 2012, discussed above. 47 House of Commons Standard note, Holtham Commission, SN/EP/6288, 28 March 2012. 44

208 John McEldowney very critical of the Barnett formula which the UK Treasury applies to adjust the amount of public expenditure allocated to the constituent parts of the UK, and noted that ‘it lacked any objective justification and had survived for 30 years solely for reasons of political and administrative convenience’.48 The Commission recommended that the formula should be replaced by a new, needs-based formula; and that limited powers over certain taxes and borrowing should be included in the new arrangements. This issue was further considered by the Silk Commission49 in its first report, published in November 2012. The Silk Commission accepted that the Barnett formula required replacing, and also accepted Holtham’s findings. The UK and Welsh Governments have agreed in principle that borrowing powers when agreed would mean an appropriate revenue stream being in place. The Silk report recommends that Welsh ministers should have powers and responsibilities for raising 25 per cent of their own budget. This would include borrowing and income tax raising powers. The introduction of additional powers is subject to new legislation following a referendum in Wales. A variety of smaller taxes would also be included in the new financial arrangements devolved to the Welsh Assembly.50

C. Northern Ireland Northern Ireland’s constitutional status and history are closely intertwined.51 This is reflected in the special circumstances of the need to provide arrangements for power sharing between Nationalists and Unionists. The form of devolution in Northern Ireland is a reflection of the past but also a commitment to a powersharing government for the future. The Government of Ireland Act 1920 was the first effort at a devolved government and parliament within the United Kingdom, and the arrangements endured until 1972. From March 1972 to January 1974 devolution was suspended and then abolished, leading to a long period of ‘direct rule’ from the United Kingdom which lasted until the implementation of the Northern Ireland Act 1998. During that period laws for Northern Ireland were made as UK Acts of Parliament passed at Westminster. The Belfast Agreement 1998 and the Northern Ireland Act 1998 were the results of agreements between the British and Irish Governments.

48 See Holtham Commission, Independent Commission on Funding and Finance in Wales, First Report: Funding Devolved Government in Wales, Barnett and beyond (June 2009). See the Commission’s Final Report, Fairness and Accountability: a new Funding Settlement for Wales (July 2010). 49 Silk Commission (n 2). 50 Silk Commission (n 2) recommendations 2–10. The smaller taxes are the aggregates levy, stamp duty, landfill tax and air passenger duty for long haul flights. See M Weller, ‘A Foregone Conclusion?’ (2012) New Law Journal 1389 and C Munro, ‘A Scottish Divorce?’ (2012) New Law Journal 1387. 51 House of Commons Library Standard Note, Political Developments in Northern Ireland since October 2008, SN/PC/05029, 23 March 2009.

The Impact of Devolution on the UK Parliament 209 i. The Northern Ireland Act 1998 The Northern Ireland Act 1998 established an elected Assembly of 108 Members, elected by Single Transferrable Vote (STV), and an executive. Northern Ireland, with a population of 1.8 million, has a disproportionately large Assembly when compared to the population sizes of Wales (3 million) and Scotland (5.1 million). This reflects the fact that the devolution arrangements are designed to address past sectarian problems there, as well as to provide a forum for passing and debating legislation. Sufficient representation from all parts of the community is required for its public legitimacy. The Assembly has an extensive list of devolved legislative powers,52 which, since 2010, include justice and policing. Arrangements for allocating a minister for justice and policing are to be reviewed, with legislation to make permanent the transfer. Northern Ireland has no autonomous taxraising powers. As in Scotland, Acts of the Northern Ireland Assembly must be compatible with EU law and the ECHR. The Northern Ireland Assembly’s legislative programme has been relatively modest. By the end of the 2010–11 Session 17 Bills had received Royal Assent, with a further eight Bills under scrutiny. In May 2011 the executive announced that it had introduced a further 11 Bills: four have become law. There remains frustration at the slow pace of legislation.53 The Northern Ireland Government is composed of First and Deputy First Ministers and other ministers: its composition must meet the need for ‘power sharing’ between Nationalists and Unionists. Under the Northern Ireland Act 1998, Cabinet members are elected according to the d’Hondt system in order to secure the proportionate allocation of posts, with the exception of the Department of Justice.54 There are also operational means to secure consensus within the Assembly: the 12 departmental ministries and statutory shadowing committees are all required to work on a strictly proportional basis. In effect this is a form of coalition ‘power-sharing’ government, between Nationalists and Unionists, with five different political parties representing different shades of opinion. The overarching framework prescribed by the Northern Ireland Act 1998 builds flexibility into the arrangements. However, overall the Assembly is weak as most parties are in the government and hence there is no equivalent to the Opposition in the UK Parliament.

52 These include: agriculture, sea fisheries, forestry and rural development, culture and arts including leisure, language and diversity, education, employment and learning including higher and further education, enterprise, trade and investment, the environment, planning, pollution and local government, health, social services and public safety, including child protection mental health and hospitals, regional development, transport and social issues including housing and urban development. 53 Editorial, The Belfast Telegraph (Belfast, 7 November 2012). 54 See Northern Ireland Act 2009, sch 1, s 4(3). The 2009 Act inserts a new pt 1A into sch 4A of the Northern Ireland Act 1998. Section 3C of pt 1A excludes the policing and justice ministry from the d’Hondt system.

210 John McEldowney In August 2012, the Secretary of State for Northern Ireland launched a consultation document on measures to improve the operation of the Northern Ireland Assembly.55 This includes the size of the Assembly; the length of Assembly terms; double jobbing by membership of different institutions; and the development of an Opposition. The closing date for submissions was 23 October 2012: the results had not been published by February 2013. In principle the UK procedures for committees and Cabinet decision-making have been adopted for Northern Ireland, including conventions of Cabinet collective responsibility. However, these have not always been possible to apply in Northern Ireland’s power-sharing executive. The provisions for election of Cabinet members do not require the parties to take up the places in the Cabinet they are entitled to, and yet the Northern Ireland Cabinet is required to be composed in proportion to the party strength in the Assembly. Almost all the main political parties are entitled to seats in the executive. In March 2011, three Cabinet ministers failed to vote for the Budget in the Assembly. They had also voted against it at the relevant Cabinet meeting.56 The Assembly could have passed a vote of censure on the Government, but chose not to do so, probably because elections in Northern Ireland were due on 5 May 2011. This leaves considerable doubts about the Assembly’s willingness to hold the executive to account.57 Unionist pressure to unpick the power-sharing arrangements and return to a more Westminster-style model is developing. This is strongly resisted by Sinn Fein.

D. England58 I have already noted that there is no devolved legislature or executive for England. There is no House of Commons Select Committee for England and—unlike the position in Wales—no English Grand Committee.59 There is no separate ‘voice’ for England and its interests at Westminster—or in Whitehall.60 And, as noted below, there is no tier of elected regional government in England except in London.

55 Northern Ireland Office, Consultation Paper on Measure to Improve the Operation of the Northern Ireland Assembly (August 2012). 56 Editorial, The Belfast Telegraph (Belfast, 10 March 2011). 57 House of Commons Library Standard Note, Political Developments in Northern Ireland January 2012–November 2012, SN/PC/06477, 12 November 2012. 58 See B Hadfield, ‘Devolution, Westminster and the English Question’ [2005] Public Law 286 and ‘Devolution: A National Conversation?’ in Jowell and Oliver (n 6). 59 See discussion of Grand Committees below. The Welsh Grand Committee has been active since devolution. The Scottish Grand Committee has not been convened since about 2002. 60 See Institute for Public Policy Research, The Dog that Finally Barked: England as an Emerging Political Community (Report) (London, 2012).

The Impact of Devolution on the UK Parliament 211 i. London The only form of devolution within England are the arrangements for London under the Greater London Authority Act 1999—and this does not involve the granting of any legislative power.61 After a referendum under the Greater London Authority (Referendum) Act 1998 produced a large vote in favour, an office of elected Mayor and a 25-Member London Assembly were created.62 The first elections were held on 4 May 2000. The Mayor is elected by the Supplementary Vote System and the London Assembly by the Additional Member System. In 2005 a review was undertaken and the Greater London Authority Act 2007 was passed. This gave additional powers to the Mayor, including powers of appointment to some public bodies in London: for instance, the appointment of chairs or members or trustees of the London Regional Council and Arts Council, England and the appointment of senior members to various bodies such as Transport for London, the Mayor’s Office for Policing and Crime and the London Fire and Emergency Planning Authority. The London Assembly was granted advisory confirmation powers over a small number of senior posts. Further legislative changes have followed under the Localism Act 2011,63 the Police Reform and Social Responsibility Act 2011, which created the Mayor’s Office for Policing and Crime, and the Public Bodies Act 2011. The powers of the Greater London Authority are very limited when compared with those of devolved bodies in Scotland, Wales and Northern Ireland. The Mayor holds almost all the executive powers64 and is accountable to the London Assembly which has powers to amend the Mayor’s annual budget. The Mayor has to produce a Spatial Development Strategy for London that covers many framework planning matters, though most planning is devolved to the London Borough level. The main executive agency, Transport for London, responsible for London Underground, is chaired by the Mayor. In addition, the Mayor is responsible for producing various strategic documents across a wide range of subject areas.65 The Localism Act 2011 permits the operation of Mayoral Development Corporations for regeneration purposes. Financial powers include the operation of a supplementary levy of up to 2p in the pound under the Business Rate Supplements Act 2010 on all businesses.

61

See HM Government, New Leadership for London (Green Paper, Cm 1997). For details see House of Commons Library Standard note, The Greater London Authority SN/ PC/05817, 24 January 2012; there are also two related documents: House of Commons Library Standard Note London Planning SN/SC/1416 ( 30 May 2012); House of Commons Standard Note London Underground after the PP, 2007 SN/ 1746 ( 18 January 2012). 63 See: A Layard, ‘The Localism Act 2011: What Is “Local” and How Do We (Legally) Construct it?’ (2012) Environmental Law Review 134. 64 See House of Commons Library Standard Note, Aviation: Mayor of London’s Proposals for a Thames Estuary Airport 2008, SN6144, 25 July 2012. 65 Economic development, transport, culture, waste, air quality, ambient noise and biodiversity, climate change mitigation and energy, housing and health inequalities are amongst the strategic responsibilities. 62

212 John McEldowney ii. English Regions There is no level of elected bodies with legislative or administrative power in England outside London apart from the local authorities. It was the policy of the Labour Government in 2002 to create elected regional assemblies. A referendum was held in the North East region of England on the introduction of such an assembly, but on a turnout of 48 per cent only 22 per cent voted in favour, and the policy was dropped. Referendums were held in 10 cities in May 2012 on the creation of new elected Mayors. Only one city, Bristol, voted in favour. There is evidently no appetite among the electorate in England for more elected bodies, despite the absence of a ‘voice’ for England and its regions except in London.

III. ISSUES FOR THE UK PARLIAMENT

Turning now to the implications of devolution for the UK Parliament. The devolution Acts preserve the legislative supremacy of the UK Parliament: it retains the power to legislate on matters that have been devolved, and thus to override laws made by the devolved legislatures. However, the political reality is that its freedom to exercise that power is politically constrained by the existence of the devolved bodies, as the conventions about Legislative Consent Motions (discussed below) confirm. And the asymmetry of the devolution arrangements raises major issues for the UK Parliament, particularly the fact that there is no separate legislature for England or its regions and that laws passed for England by the UK Parliament may be voted on by MPs sitting for constituencies in Scotland, Wales or Northern Ireland.

A. The West Lothian and English Questions The most challenging issue for the UK Parliament is the so-called West Lothian question. Its origins lie in the 1880s in the debates on Home Rule for Ireland. The question is whether it is right that MPs from areas where there is legislative devolution should be able to vote at Westminster on English domestic legislation. Tam Dalyell, MP for West Lothian, raised the question during discussions of devolution in the 1970s. Given the evolution of devolution today the question remains relevant. Some believe that it is largely unanswerable.66 The House of Commons Procedure Committee reports of 1998–99 discussed the introduction of some form of ‘in and out’ legislative procedure for English legislation and recommended

66 V Bogdanor, Evidence to the McKay Commission (June 2012). See also M Russell and G Lodge, ‘The Government of England by Westminster’ in R Hazell (ed), The English Question (Manchester, Manchester University Press) 2006; J Gallagher, England and the Union How and Why to Answer the West Lothian Question (London, Institute of Public Policy Research, April 2012).

The Impact of Devolution on the UK Parliament 213 procedural changes to allow joint committees with the Scottish Parliament or the Welsh Assembly.67 The Commons Justice Committee inquiry reported in May 2009, having taken evidence during sessions in 2007–08 and 2009–10.68 The Committee pointed out that four-fifths of the population live in England but that the implications of devolution in Wales and Scotland had not been considered in relation to the way in which England was governed. The Coalition Government’s Programme for Government of 2010 included a proposal to establish a commission to consider the West Lothian Question.69 The Commission was established under Sir William McKay, Clerk of the House in the Commons from 1998–2002: To consider how the House of Commons might deal with legislation which affects only part of the United Kingdom, following the devolution of certain legislative powers to the Scottish Parliament, the Northern Ireland Assembly and the National Assembly for Wales.

The Commission reported70 on 25 March 2013. It rejected a separate English legislature, on the grounds that this would likely require wholesale constitutional reform. It also rejected the proposal that only MPs representing English constituencies, or MPs representing English and Welsh constituencies, should be allowed to vote on laws likely to have ‘a separate and distinct effect’ upon England or England and Wales, since even Bills that appear only to affect England may have knock-on effects on other parts of the UK. For instance, Bills that affect public expenditure in England (on introduction of private provision in the NHS in England, for instance) may result in changes to the allocation of public money to the devolved bodies by the Treasury under the Barnett formula: spending for the three devolved nations is based on Barnett and Barnett is set in relation to England.71 English or English and Welsh only votes on English or English and Welsh laws would also result in different classes of MPs and potential deadlock. The Commission’s main findings were based around the underlying principle that ‘Decisions at the United Kingdom level with a separate and distinct effect for England (or England-and-Wales) should normally be taken only with consent of a majority of MPs for constituencies in England (or England-and-Wales)’ (italics added). Thus other MPs would not be prevented from taking part in the legislative process and voting. The Commission’s recommendation is that this principle should be adopted by a House of Commons resolution.

67 See Procedure Committee, First Report The Procedural Consequences of Devolution (Second Report) (HC 1998–99, 148), Second Report (HC 1998–99, 376), Fourth Report (HC 1998–99, 185) and First Special Report (HC 1998–99, 814). 68 Devolution: A Decade on (Fifth Report) (HC 2008–09) 529. 69 See V Bogdanor, ‘The West Lothian Question’ (2010) 63(1) Parliamentary Affairs 156–72. 70 The McKay Commission, Report of the Commission on the Consequences of Devolution for the House of Commons (March 2013). 71 See House of Commons Library Research Paper 07/91 (December 2007); Report of the House of Lords’ Select Committee on the Barnett Formula (HL 2008–09, 139). Also see HM Government’s response (Cm 7772, 2009).

214 John McEldowney The Commission envisaged a number of ways in which effect could be given to the principle. These include meeting five objectives, namely: availability of sufficient information to identify clearly ‘the English only’ dimension in proposed legislation; an opportunity for views from England to be expressed; such views to be heard and considered; the outcomes of such consideration to be apparent; and consequences should follow through political and democratic accountability for subsequent decisions. The Commission went into some detail in discussing how to ensure that the ‘voice from England’ (or England and Wales) is properly heard. Possibilities include: an equivalent to a Legislative Consent Motion (LCM—discussed in the next section) in Grand Committee of all MPs for England or England and Wales, or on the floor of the House before second reading, which the McKay Commission concluded would be ‘a useful procedure’; a specially-constituted public Bill committee with an English or English and Welsh party balance ‘would be the minimum needed as an effective way of allowing [these voices] to be heard’. Such arrangements would retain the opportunity at a Bill’s report stage for amendments to be made to implement compromises between the committee’s amendments and the government’s view—or even, exceptionally, to override in the House what was done in committee. The Commission advised that these and other ‘practical recommendations’ ‘should be regarded as a menu from which the Government might wish to make a selection for implementation’. The Commission also recommended the creation of a Devolution Committee of the House of Commons to consider the consequences of UK decisions on cross-border matters. The overall aim of such recommendations is to make it politically difficult through procedures and practice to enact a Bill in the absence of majority support on the part of MPs for England or England and Wales. If the McKay proposals were in place it could become politically impossible for laws to be passed specifically for England or England and Wales when the party or parties in government at Westminster relied for their majority in the House of Commons on MPs from the rest of the UK. Initiatives supported by the majority of MPs for England or England and Wales could not be taken or implemented if the government opposed them. If this were to happen on a regular basis, a question might then arise as to whether a separate English Parliament—and government—should be established. Such an idea was rejected by the McKay Commission: it would produce a quasi-federal system in the UK, leaving the UK Parliament and government responsible for matters such as defence and foreign policy, fiscal policy and taxation, social security etc. If changes to the position of England were taken yet further and the UK Parliament’s legislative powers were limited so that it could not legislate on matters within the legislative powers of devolved bodies in England, Scotland, Wales and Northern Ireland, the system would be truly federal. The McKay Commission holds that neither a quasi-federal nor a federal system would be workable. There would be a gross imbalance in power between England, which has some 90 per cent of the population of the UK,

The Impact of Devolution on the UK Parliament 215 and Scotland, Wales and Northern Ireland, with much smaller populations. There is indeed no easy answer to the West Lothian and English Questions, though if Scotland were independent many of these problems would disappear. In sum, the McKay Commission makes some practical recommendations but does not resolve the underlying issues confronting the post-devolution Westminster parliament.

B. Legislative Consent Motions The Sewel Convention72 was an important aspect of the devolution settlement between the UK and Scotland, and is reflected in the Memorandum of Understanding between the UK Government and the Scottish Government (formerly Scottish Executive) and in Devolution Guidance Note 10. Nothing in the Scotland Act prevented the UK Parliament from legislating on matters which are within devolved competence: section 28(7) made that clear. However during the passage of the Scotland Act, the UK Government announced that it ‘would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament’. If, with the consent of the Scottish Parliament, Scottish ministers agreed with the UK Government that a Westminster Bill should include provisions on devolved matters, Scottish ministers would consider promoting a LCM (formerly referred to as a ‘Sewel Motion’). To facilitate scrutiny of such proposals from the UK Government, the Scottish Executive advises the Parliament as early as possible of any Bill that is likely to be subject to a LCM and provides the relevant committee with a detailed memorandum explaining the purpose and effect of any devolved provisions as soon as possible after it is introduced. The committee will then be able to consider the proposal, taking evidence from interested parties if it considers that necessary, before making a recommendation to the full Parliament as to whether it should approve the LCM. The LCM procedure now extends to legislation affecting matters devolved to Northern Ireland (where they are not much used as the Northern Ireland Assembly has passed few measures) and to Wales.73 From 2006 to 2011 they were part of the process by which Westminster passed primary legislation for Wales. These motions normally relate only to certain specific provisions in Westminster Bills, not to whole or even substantial parts of these Bills. As noted in the previous section, the McKay Commission on the Consequences of Devolution for the House of Commons recommended adoption of an equivalent to a LCM in Grand Committee or on the floor before second reading.

72 See discussion in section II.A. of this chapter. See also www.scotland.gov.uk/About/Government/ Sewel/KeyFacts; House of Commons Library, The Sewel Convention, SN/PC/2084, 25 November 2005. 73 www.assemblywales.org/bus-home/research/bus-assembly-publications-monitoring-services/ bus-lcm_monitor.htm.

216 John McEldowney C. Parliamentary Procedures and Select and Grand Committees74 There have long been House of Commons select committees for Scottish, Welsh and Northern Ireland Affairs. The remits of these committees extend to matters for which the Secretaries of State for these constituent parts of the UK are responsible and include relations with the devolved legislatures in Scotland and Wales (but not in Northern Ireland).75 There are restrictions on the questions that can be asked in Parliament about devolved matters.76 The devolved bodies themselves are not accountable to the Westminster Parliament and its select committees have been cautious about even appearing to inquire into the policies of devolved bodies. These select committees have inquired into both general policy issues and the constitutional settlements themselves: the distinction is not always easy to maintain, especially in the Welsh context where many of the devolved areas ‘overlap’ with non-devolved areas. By way of examples, matters reported on by the Welsh Affairs Committee in the 2012–13 Session have included Broadband Services in Wales77 and Inward Investment in Wales.78 In the 2009–10 Session it published reports on Wales and Whitehall79 and proposed Legislative Competence Orders relating to transport,80 culture and other fields,81 local government and other subjects.82 The Committee’s Review of the LCO Process83 in 2009–10 is an example of a select committee looking into an aspect of the devolution settlement itself: the Committee was generally positive about the operation of the LCO process and the performance of the Committee in dealing with orders promptly and developing expertise; it considered its joint working with the National Assembly through informal meetings with Assembly Committee members to aid ‘joined up scrutiny’ in both Parliament and the Assembly; and it made recommendations for improvements, including greater openness and clarity. The Scottish Affairs Committee’s reports in the 2012–13 Session have included both matters of general policy—A Robust Grid for 21st Century Scotland,84 and those to do with the devolution settlement itself: The Referendum on Separation

74

See ch 7. See House of Commons Standing Order No 152. 76 HM Cabinet Office, Devolution Guidance Note 1 (November 2005) paras 26–27. Questions may be raised of fact but these will normally be answered by the relevant devolved administration. 77 First Report (HC 2012–13, 580). 78 Second Report (HC 2012–13, 125). 79 Eleventh Report (HC 2009–10, 246). 80 HC 2009–10, 273; the Government Response was at HC 436. 81 HC 2009–10, 420. 82 HC 2009–10, 36. 83 Fifth Report ( HC 2009–10, 155). 84 First Report (HC, 2010–12, 499). 75

The Impact of Devolution on the UK Parliament 217 for Scotland: Terminating Trident—Days or Decades?85 and The Referendum on Separation for Scotland: Making the Process Legal.86 The Northern Ireland Affairs Committee’s Third Report of the Session 2010–12 was on Fuel Laundering and Smuggling in Northern Ireland87 and its First Special Report of the 2012–13 Session was the Government Response to that report.88 In each of these committees a dialogue between Parliament and the government is conducted via the government’s response and the committees’ evidence sessions and correspondence with the government department. The general implications for the UK Parliament and the UK of devolution and of possible Scottish independence are clearly appropriate matters for inquiry and discussion in Parliament. The House of Lords has been particularly active in providing information and advice on these matters. For instance, the House of Lords Select Committee on Economic Affairs undertook an inquiry into the economic implications for the United Kingdom of Scottish independence in June 2012 as a prelude to the referendum expected in autumn 2014;89 the House of Lords Constitution Committee report on Referendum on Scottish Independence90 explored the issues raised by the proposal for a referendum; and in its report on the Scotland Bill91 that Committee commented that, while it did not consider that the Bill raised any issues of constitutional concern to which the attention of the House should be drawn, ‘we publish this report in order to assist the House in its deliberations on the Bill. We do so because of the clear constitutional importance of the Bill’. It did, however, invite the Government to be clearer about the meaning of ‘cross-party consensus’ when it indicated that it would wish to be satisfied that there was cross-party consensus if new amendments to the Bill were proposed.92 There are also Scottish, Welsh and Northern Ireland Grand Committees consisting of all MPs93 sitting for constituencies in those areas. They may meet away from Westminster: for instance, the Welsh Grand Committee met in Wrexham in October 2011. They inquire into and discuss matters of general interest: for instance, the Welsh Grand Committee debated the Legislative Programme and the Budget in June 2012. However, as of October 2012 the Northern Ireland Committee had not held a debate since the general election in May 2012. The Scottish Grand Committee has not been convened since about 2002. There is, of course, no Secretary of State for England, and no Select Committee for English Affairs—there being no Secretary of State for England for a select

85

Fourth Report, (HC 2010–12, 676). Third Report, (HC 542). See also the Committee’s report, The Referendum on Separation for Scotland: A Multi-option Question ( HC 2012–13 543). 87 HC 2010–12, 1504. 88 HC 2010–12, 272. 89 House of Lords Economic Affairs Committee, Call for Evidence (11 June 2012). 90 HL 2010–12, 263. 91 Seventh Report HL Paper 62 (2010–12). 92 Ibid, para 30. 93 See www.parliament.uk/Grand Committees. 86

218 John McEldowney committee to hold accountable—nor an English Grand Committee. Thirteen English regional select committees were established in the 2005 to 2010 Parliament. Some were more active than others, and several reports were published. However, opposition MPs would not serve on them, and the Standing Orders providing for them were not renewed after the 2010 election. There seems to be no appetite in the House of Commons for such committees. However, the McKay Commission referred to the possible usefulness of an English (or English and Welsh) Grand Committee to deal with an equivalent of LCMs.

D. Elections and Referendums The provisions for the reduction of the number of seats in the House of Commons and in the devolved legislatures in the UK Parliamentary Voting Systems and Constituencies Act 2011 would, if implemented, have long-term effects on the devolved bodies and at Westminster.94 (As of mid-2013 it seems unlikely that these provisions will be implemented.) These implications for the devolution settlement were not, however, debated during the passing of the 2011 Act. For instance, under the Act Northern Ireland representation at Westminster would be reduced from 18 to 15 Members at the 2015 general election. The Assembly would be reduced to 90 seats (15 constituencies, each with 6 seats). One important consequence would be the reduction of ministries within Northern Ireland from 12 to 8. There is debate over the size of the Assembly, as some Unionists would prefer a smaller chamber of only 75 Members and a move to a more traditional Cabinet model in place of the current power-sharing arrangements under the Northern Ireland Act 1998.95 Since devolution, referendums96 are much in vogue. It was noted earlier that one was held in Wales in 2011, as provided under section 103 of the Government of Wales Act 2006, itself a reaction to the report of the Richard Commission on The Powers and Electoral Arrangements of the National Assembly for Wales of 2004.97 The ‘yes’ result brought into force new legislative powers of the National Assembly for Wales. Power has been devolved by Order in Council under section 30 of the Scotland Act 1998 to the Scottish Government to hold a referendum in

94 Note that Nick Clegg, Deputy Prime Minister and leader of the Liberal Democrats in the Coalition at Westminster, indicated in October 2012 that Liberal Democrat MPs would not vote in favour of boundary changes, and would thus frustrate the reduction of seats and the redistribution under the 2011 Act, in response to the fact that Conservative backbenchers had refused to support the Government’s timetable for the House of Lords Reform Bill 2012. 95 House of Commons Library Standard Note, Political Developments in Northern Ireland June to October 2010, SN/PC/05713, 15 October 2010. 96 House of Commons Library Standard Note, Thresholds in Referendums, SN/PC/02809, 9 June 2011. 97 The Commission on the Powers and Electoral Arrangements of the National Assembly for Wales (Spring 2004).

The Impact of Devolution on the UK Parliament 219 Scotland on Scottish independence98 in 2014: by Schedule 7 of the 1998 Act the Order in Council was required to be laid before both Houses of the UK Parliament and before the Scottish Parliament for affirmative resolutions. The resort to referendums in relation to the evolving devolution settlement means that the United Kingdom Parliament is likely to find itself increasingly politically constrained by public opinion in Scotland, Wales and Northern Ireland in the exercise of its primary legislative powers and its powers under Orders in Council.

IV. SUMMARY AND CONCLUSIONS

The strengths of the evolving devolution settlements in the UK lie in the accommodation of different needs and requirements and thus the variety—the asymmetry—of the arrangements in place in Scotland, Wales and Northern Ireland. A potential weakness is the absence of arrangements in and for England. The legal sovereignty of the UK Parliament has not been diminished by devolution, but democratically and politically the devolved institutions have rival and strong claims to legitimacy within their areas and these affect the politics of UK parliamentary sovereignty. Both Houses of the UK Parliament have developed capacity in select committees to debate devolution issues and to hold ministers in the UK government to account for their functions in relation to the devolved territories. England however lacks its own voice in Parliament. The devolution settlement will inevitably continue to evolve.

98 For discussion of the issues see House of Commons Scottish Affairs Select Committee, The Referendum on Separation for Scotland: A Multi-option Question (Third Report) (HC 2012–13, 543).

9 The Joint Committee on Human Rights MURRAY HUNT*

I. PARLIAMENT AND THE RULE OF LAW

N

EARLY A DECADE ago, in 2004, Professor Robert Hazell posed the interesting question ‘Who is the guardian of legal values in the legislative process: Parliament or the executive?’1 The received wisdom at the end of the twentieth century was that it was the executive, not Parliament, which ensured that fundamental values were not overridden in legislation, specifically Parliamentary Counsel2 when working their drafting magic, turning executive policy into law.3 They acted as ‘internal guardians of values customarily regarded as integral to the legal order’.4 Hazell’s interesting insight was that, by the beginning of the twenty-first century, this feature of our constitutional arrangements had begun to change. Parliament was now becoming the guardian of legal and constitutional values, through the work, in particular, of three specialist parliamentary committees which systematically scrutinise legislation for its adherence to those values: the Delegated Powers and Regulatory Reform Committee of the House of Lords, the Joint Committee on Human Rights and the House of Lords Constitution Committee. These three committees now represented ‘three new pillars of the constitution’.5 As a result of their systematic scrutiny work, Parliament itself, rather than Parliamentary Counsel, was becoming the primary guardian of legal and

*

Murray Hunt is the Legal Adviser to the Joint Committee on Human Rights R Hazell, ‘Who is the Guardian of Legal Values in the Legislative Process: Parliament or the Executive?’ [2004] Public Law 495. 2 Despite the misleading label, the Office of the Parliamentary Counsel is a branch of the Government Legal Service and it provides legal services to the executive, not to Parliament. 3 See, eg, T Daintith and A Page, The Executive in the Constitution: Structure, Autonomy and Internal Control (Oxford, Oxford University Press, 1999) 254; D Greenberg, Laying Down the Law: A Discussion of the Peoples, Processes and Problems that Shape Acts of Parliament (London, Sweet & Maxwell, 2011). 4 Daintith and Page, The Executive in the Constitution (n 3) 254. 5 In fact Hazell’s view in 2004 was that the Constitution Committee had not yet earned a place as a ‘pillar of the constitution’, but that it clearly had the potential to do so (n 1 at 499). At the 2013 Annual Conference of the Study of Parliament Group he confirmed in discussions on this chapter that in his view it has now done so. For an account of the evolution of the House of Lords Constitution Committee, and its growing influence, see ch 11. 1

224 Murray Hunt constitutional values, and this was reflected in the executive’s own internal guidance about the legislative process, which now contained detailed guidance to government departments about how to prepare for scrutiny by two of these committees.6 The guardianship of fundamental values was gradually being taken on by Parliament, a process which in turn had strengthened the internalisation of those values in the executive, as demonstrated in the evolving guidance to departments about the legislative process. The fundamental values being referred to here are ‘values customarily regarded as integral to the legal order such as those of non-retrospection, proper use of delegation, and respect for the liberties of the subject’:7 in other words, ‘rule of law’ values. Talk of the rule of law, or of fundamental values, is sometimes disparaged as a vague aspiration, of little practical relevance to anyone engaged in the real-world business of policy-making, legislating, scrutinising government, adjudicating, or giving legal advice, and best left to unworldly legal theorists in their ivory towers concerned with impractical abstractions. In fact, talk of ‘fundamentals’ pervades the everyday discourse of both politics and law. Barely a day goes by in Parliament without parliamentarians making arguments which invoke notions of fundamental values, whether they be long-standing constitutional traditions, principles long recognised by the common law or norms contained in international human rights standards to which the UK has voluntarily subscribed. What is too often lacking, though, in practical politics is a shared language and set of institutional practices to mediate between the motherhood and apple pie level of discussing the rule of law, and the grubbier cut and thrust of everyday political argument. In recent years, however, there has been renewed interest in making the rule of law a meaningful, practical concept, by attempting to distil from it some practical guidance for those engaged in the front-line roles referred to above. The European Commission for Democracy through Law (‘the Venice Commission’), for example, has recently sought to develop a definition of the rule of law that both commands broad agreement and at the same time is capable of practical application.8 The UK Government made the rule of law one of its priorities for its recent chairmanship of the Council of Europe,9 and hosted a high-level conference on ‘The Rule of Law as a Practical Concept’, to explore the extent to which practical criteria can be derived from the rule of law to guide policy-making,

6 In 2004 this was the Cabinet Office’s Guide to Legislative Procedures, now the Cabinet Office Guide to Making Legislation (June 2012). 7 Daintith and Page (n 3) 254. 8 ‘Report on the Rule of Law’, adopted by the Venice Commission at its 86th Plenary Session (25–26 March 2011) CDL-AD(2011)003Rev. 9 See the United Kingdom Chairmanship of the Council of Europe: Priorities and Objectives (27 October 2011), submitted at the 112bis Meeting for the Transfer of Chairmanship between Ukraine and the United Kingdom (7 November 2011) CM/Notes/112bis.

The Joint Committee on Human Rights 225 law-making and adjudication.10 The General Assembly of the UN recently made a ‘Declaration on the Rule of Law at the National and International Levels’, in which states reaffirmed their commitment to the rule of law and agreed that it is the foundational principle that should guide their response to the challenges facing the world.11 The rule of law is statutorily recognised as an ‘existing constitutional principle’ in the UK in the Constitutional Reform Act 2005.12 Such initiatives attempting to give practical meaning to the rule of law are easily derided, and are never short of detractors. Indeed, it is always wise to view such efforts, particularly those driven by state governments, with a healthy scepticism, as they may sometimes be motivated by less idealistic aspirations than first appears. Viewed in the round, with an appropriately critical eye, however, such initiatives can contain signs of newly emerging agreements about fundamental questions of governance facing all societies. The recent and notable burst of activity aimed at operationalising the rule of law suggests an emerging consensus about two issues in particular which are of interest for all those concerned with the relationship between politics and law. First, it appears that today, amongst political actors if not legal theorists, there is a widespread consensus in favour of a substantive, as opposed to a formalist, conception of the rule of law: that is, that rule of law values include human rights, both those recognised and protected in national law (in the case of the UK, whether common law or statute) and those in respect of which the state has assumed international obligations by voluntarily entering into and ratifying international treaties.13 The UN Office of the High Commissioner for Human Rights, for example, regards the rule of law as ‘the backbone of legal protection of human rights’.14 The obligation on states to protect and promote the fundamental human rights and freedoms of all is recognised to be an integral part of states’ commitment to the rule of law.15 10 See Conference on ‘The Rule of Law as a Practical Concept’: Reports (London, Council of Europe, 2012). 11 ‘Declaration of the High-Level Meeting of the General Assembly on the Rule of Law at the National and International Levels’, UN General Assembly Resolution A/67/L.1 (19 September 2012) para 34. 12 Section 1 provides ‘This Act does not adversely affect ... the existing constitutional principle of the rule of law’. 13 In 2007 the Parliamentary Assembly of the Council of Europe, concerned by the prevalence of a formalistic conception of the rule of law in some of the emerging democracies in Eastern Europe, passed a resolution making clear that the rule of law is a substantive legal concept: PACE, ‘The Principle of the Rule of Law’ Resolution 1594 (2007). 14 ‘Statement by Ms Navanethem Pillay, High Commissioner for Human Rights at the High Level Meeting on the Rule of Law at the National and International Level’ (New York, 24 September 2012). 15 The preference for the substantive over the formal conception of the rule of law is well articulated in Lord Bingham’s book on the subject: see T Bingham, The Rule of Law (London, Allen Lane, 2010): ‘I would roundly reject [Raz’s view] in favour of a “thick” definition, embracing the protection of human rights within its scope. A state which savagely represses or persecutes sections of its people cannot in my view be regarded as observing the rule of law, even if the transport of the persecuted minority to the concentration camp or the compulsory exposure of female children on the mountainside is the subject of detailed laws duly enacted and scrupulously observed’, 67.

226 Murray Hunt Secondly, there appears to be an emerging consensus that responsibility for upholding and promoting the rule of law and human rights is not the exclusive preserve of the judicial branch but is shared between all the institutions of the state, and that parliaments therefore have an important role to play in upholding and promoting both. In the UN General Assembly’s Declaration on the Rule of Law, states recognised ‘the essential role of parliaments in the rule of law at the national level’,16 reflecting the growing awareness in international institutions that the development of more effective national institutions is the key to accelerating progress towards the achievement of the lofty ideals in the UN Charter and other regional equivalents. The same recognition is apparent at a regional level: the Council of Europe, for example, increasingly stresses the importance of the role of parliaments in giving effect to the European Convention on Human Rights, and this is reflected in the Brighton Declaration17 which marked the culmination of the UK’s presidency in 2012. The important role of parliaments in relation to the rule of law is also recognised by the Commonwealth. The Latimer House Principles, for example, state that ‘Judiciaries and parliaments should fulfil their respective but critical roles in the promotion of the rule of law in a complementary and constructive manner’.18 One of the most pressing practical questions which arises from this emerging consensus about the shared responsibility for the rule of law and human rights is what institutional arrangements need to be in place in parliament in order to give best effect to this consensus—to ‘operationalise’ the rule of law and human rights? In the growing number of international statements about the rule of law, the importance of ‘national ownership’ is recognised: the institutions for making the rule of law operational must be grown from within each state, rather than imposed from outside according to some preconceived model. How, precisely, is the UK Parliament to give meaningful, practical effect to this now universally acknowledged role in upholding the rule of law, including the promotion and protection of human rights? The Joint Committee on Human Rights (JCHR) is one of the important ways in which Parliament seeks to do so. This chapter considers how this parliamentary committee has sought to fulfil its role as the guardian of the particular but important sub-set of rule of law values, human rights, before returning to consider how effective it has been in doing so, and whether and, if so, how Parliament could become more effective in its fulfilment of this important function.

16 ‘Declaration of the High-Level Meeting of the General Assembly on the Rule of Law at the National and International Levels’ (n 11) para 34. 17 High Level Conference on the Future of the European Court of Human Rights, ‘Brighton Declaration’ (20 April 2012). 18 ‘Commonwealth (Latimer House) Principles on the Three Branches of Government’, agreed by the Law Ministers and endorsed by the Commonwealth Heads of Government Meeting (Abuja, Nigeria, 2003) 9.

The Joint Committee on Human Rights 227 II. THE JCHR AND LEGISLATIVE SCRUTINY

There already exist a number of detailed accounts of the work of the JCHR since its inception in 2000.19 This chapter therefore does not seek to provide a comprehensive account of the Committee’s work. Its modest aim is to supplement those existing accounts, focusing in particular on those aspects of its work of most relevance to Parliament’s role in upholding and promoting the rule of law, and where necessary bringing those accounts up to date where significant changes have taken place in the way in which the Committee performs its functions. One of the areas on which the UN Office of the High Commissioner for Human Rights has focused when trying to strengthen the rule of law in practice has been ensuring that national legislation is in conformity with international human rights standards. Establishing effective mechanisms at national level for scrutinising the compatibility of laws and draft laws with the European Convention on Human Rights has also become an increasingly important focus of the work of the Council of Europe.20 Although, perhaps surprisingly, this is not specified in the JCHR’s remit, such legislative scrutiny for human rights compatibility has become one of the most important functions of the Committee and one for which its work is best known.

A. Focus on Significant Human Rights Issues Since its inception in 2000 the Joint Committee has sought to increase the practical impact of its legislative scrutiny work. This has led it to move away from comprehensive scrutiny of the human rights compatibility of every single legislative proposal, including every Private Member’s Bill and private Bill. Instead it has sought to focus use of its limited resources by prioritising the most significant human rights issues and trying to ensure that the human rights implications of proposed government action or inaction are identified as early as possible in the political process and the justifications for them flushed out and tested in a public and transparent way. It has also sought to propose amendments to Bills in order to remove any human rights compatibility problems that it identifies in its reports.

19 See, eg, AP Lester and P Uccellari, ‘Parliamentary Scrutiny of Human Rights’ in AP Lester, D Pannick and JW Herberg (eds), Human Rights Law and Practice, 3rd edn (London, LexisNexis, 2009) 803–21; M Hunt, ‘The Impact of the Human Rights Act on the Legislature: A Diminution of Democracy or a New Voice for Parliament?’ (2010) European Human Rights Law Review 601; D Feldman, ‘Can and Should Parliament Protect Human Rights?’ (2004) 10(4) European Public Law 635. 20 See, eg, Committee of Ministers for the Council of Europe, ‘Guaranteeing the Authority and Effectiveness of the European Convention on Human Rights’, Parliamentary Assembly Recommendation 1991 (14 September 2012).

228 Murray Hunt At the beginning of every session of Parliament, immediately after the Queen’s Speech, the Committee is advised by its legal advisers21 as to which measures announced in the government’s legislative programme are likely to raise significant human rights issues. The Committee’s members consider this advice at their first meeting after the Queen’s Speech. They discuss whether they agree that the issues identified are likely to be sufficiently significant to warrant human rights scrutiny by the Committee, or if there are other significant issues not identified in their legal advisers’ advice. They then decide, in principle, which issues in which Bills the Committee intends to scrutinise. The Committee then issues a call for evidence in relation to those issues, announcing its likely legislative scrutiny priorities for the session, and inviting submissions in relation to those Bills or any other Bills in the government’s legislative programme. Typically, this process leads to the Committee scrutinising aspects of about one-third of the government Bills in the legislative programme in any one session.22 Unless a government Bill, or part of it, has been published in draft for prelegislative scrutiny, the Committee has no prior sight of it before its publication. As soon as possible after a government Bill is published, the Committee’s legal advisers scrutinise the Bill and advise the Committee as to whether the Bill raises any significant human rights issues that may require scrutiny. The Committee has published criteria by which it judges whether a human rights issue raised by a Bill is sufficiently ‘significant’ to warrant scrutiny by the Committee. They include considerations such as how important is the right affected, how serious is the interference, how strong is the justification and how vulnerable are the people likely to be affected by it.23 The Committee’s legal advisers aim to provide this preliminary advice to the Committee within two weeks of the Bill’s publication. Time is at a premium once the Bill has been published, because the Committee aims to report on Bills in time for report stage in the first House, so that any amendments to the Bill recommended by the Committee can be moved at report stage. The cycle of scrutiny therefore needs to start as soon as possible following the Bill’s publication, to enable all the stages of scrutiny to be completed in time for the Committee to be able to meet its reporting target. i. Meetings with Bill Teams During the period following publication of a Bill that has been identified by the Committee as being a priority for legislative scrutiny, there will also usually be 21 The Committee currently has a legal adviser and an assistant legal adviser. During the 2005–10 Parliament it had two assistant legal advisers as well as the legal adviser. For some periods of its existence it has only had the services of one legal adviser. 22 In Session 2010–12 the Committee reported on 15 Bills. In the current 2012–13 Session the Committee has 13 Bills under scrutiny so far. 23 See Joint Committee on Human Rights, Twenty-third Report (2005–06, HL 241, HC 1577) para 27; see also F Klug, ‘Report on the Working Practices of the JCHR’ in Annex 1 to the 23rd Report.

The Joint Committee on Human Rights 229 a meeting between the Bill team, including the lawyers working on the relevant clauses, and the Committee staff, including its legal advisers. These meetings provide an opportunity for the Committee’s legal advisers to identify for the Bill team the human rights issues that members of the Committee are likely to raise, to identify any additional information which has not so far been provided by the department but which might assist the Committee in its scrutiny of the Bill, and to point out any relevant legal standards or other human rights material that is relevant to the subject matter of the Bill but which does not appear so far to have featured in the department’s consideration of the human rights implications of the Bill. The meetings are intended both to facilitate scrutiny by the Committee and to help the department. They are informal and off the record, but are conducted on the explicit and mutual understanding that there will be formal, on the record correspondence between the chair of the Committee and the minister in due course, and that certain issues may be best left to that correspondence rather than being the subject of discussion or argument at official level.

B. Information Provided to the Committee: Explanatory Notes The single most important factor which determines the Committee’s effectiveness in performing the task of scrutinising legislation for human rights compatibility is the quality of the information that is provided by the government explaining the reasons for the government’s view that the provisions of the Bill are human rights compatible. In the early days of the Committee’s existence, the information provided on publication of the Bill was usually confined to the section of the Explanatory Notes accompanying the Bill that deal with ECHR compatibility. The Committee found that the information provided in those notes was often rather sparse and sometimes did not go much beyond a formulaic recitation of the relevant Convention test followed by an assertion that in the government’s view any interference with a Convention right was justified.24 In the Explanatory Notes accompanying the Identity Cards Bill 2004, for example, a legislative measure which had provoked long-standing controversy about the justification for its interference with personal privacy, the section dealing with the Bill’s compatibility with the ECHR made no mention of the right to respect for private life in Article 8 ECHR but merely recited the Secretary of State’s statement of compatibility under section 19 of the Human Rights Act 1998.25 24

See discussion in Feldman , ‘Can and Should Parliament Protect Human Rights?’ (n 19). Identity Cards Bill 2004, ‘Explanatory Notes’ Bill 8—EN, para 238. This was strongly criticised by the Committee in its Fifth Report of Session 2004–05, which observed that the Explanatory Notes did not contain any explanation of why the provisions of the Bill were compatible with human rights: ‘We consider the absence of such explanation to be deeply unsatisfactory in a Bill which is concerned throughout with issues of personal privacy, and with the delicate balances to be struck between individual rights to private life and the protection of the community’ (HL 35, HC 283) 5. The JCHR 25

230 Murray Hunt In those early days in the life of the Human Rights Act, the variable quality of the analysis contained in the Explanatory Notes accompanying a Bill was no doubt due in part to the novelty of the task of being required formally to ‘ECHRproof ’ legislation as a precondition of its introduction. There was another constraint, however. The Explanatory Notes to Bills are drafted by the government, but are published by the parliamentary authorities and must be approved by them before they are published. As Daniel Greenberg explains in his recent account of the legislative process, Laying Down the Law, the rules applied by the Public Bill Office prevent the inclusion of argumentative material, and those rules are quite strictly enforced by the parliamentary authorities.26 This is particularly problematic for human rights scrutiny. Often the human rights issue that requires scrutiny is whether a Bill’s interference with a Convention right is justified in the sense of being ‘necessary in a democratic society’, and proportionate to the social need which the measure is seeking to address. Justifications of that sort often require arguments to be put forward which might fall foul of the strictly applied rules about the contents of a Bill’s Explanatory Notes. The existing constraints on the form of the explanatory material that accompanies Bills were therefore unconducive to effective scrutiny for human rights compatibility.

C. Towards Human Rights Memoranda Other parliamentary committees that perform a technical scrutiny function are routinely provided by the government with a detailed memorandum prepared for the purposes of that committee’s particular scrutiny of the Bill. The Delegated Powers and Regulatory Reform Committee of the House of Lords, for example, receives a detailed memorandum which sets out clause by clause the government’s reasons for taking any delegated powers. The Joint Committee on Statutory Instruments also routinely receives such an explanatory memorandum, as do the European Scrutiny Committees. Since the introduction of the requirement in section 19 of the Human Rights Act, that the minister introducing a Bill must sign a statement of compatibility with Convention Rights, the department has had to produce an ECHR memorandum for the Cabinet sub-committee (now called the Parliamentary Business and Legislation Committee, or PBL Committee) which must approve all government Bills before their introduction. In view of the often inadequate explanations of the government’s views on compatibility contained in the Explanatory Notes to Bills, the Joint Committee on Human Rights asked the Government to provide a human rights memorandum for all government Bills. Not wishing to impose report went on to consider in-depth the issue of compatibility with the Art 8 ECHR right to respect for private and family life and the right to be free from discrimination in the enjoyment of Convention Rights in Art 14 ECHR: ibid 7–18. 26

Greenberg, Laying Down the Law (n 3) 97–103.

The Joint Committee on Human Rights 231 onerous new burdens on already overworked Bill teams, the Committee suggested that this memorandum could be based on the ECHR memorandum prepared for the PBL Committee. The Committee did not expect to be made privy to legally professionally privileged material and therefore made clear that any such material could be removed from the ECHR Memorandum when turning it into a human rights memorandum for the JCHR. Unfortunately this suggestion was resisted for a long time by the Government. The most candid explanation for this reticence was offered by Lord Falconer when he was Lord Chancellor. When pressed to explain why the Committee could not be provided with a version of the ECHR Memorandum prepared for the Cabinet sub-committee, he asked whether JCHR members had ever seen any of those ECHR memoranda. The implication was that they were of extremely variable quality. This was perhaps not surprising, given that the Human Rights Act was still relatively recent legislation and central government was still designing its systems for ensuring that ECHR rights were given proper consideration when a department was working a policy proposal up into a government Bill. The message was clear that the time had not yet come for the government to commit itself to providing a detailed human rights memorandum to accompany every Bill. The reality is, however, that there is a direct correlation between the amount of detail contained in the information provided by the government and the length of the letter sent by the Committee to the minister probing the assertion about human rights compatibility. Generally speaking, the more information that is offered by the department at the outset, the fewer the questions it is necessary for the Committee to ask in order to enable it to reach an informed view about the Bill’s compatibility. The Joint Committee was therefore confident that the Government would eventually be persuaded that it was in departments’ own interests to provide a detailed human rights memorandum at the same time as their Bill was published, because the provision of such information would in practice pre-empt questions to which the department already had answers. Eventually, during the 2009–10 Session, a highly experienced Bill team manager saw the potential advantages of acceding to the Joint Committee’s request, and included within the Explanatory Notes to his department’s Bill a section on the ECHR that was clearly based on the ECHR memorandum prepared for what is now the PBL Committee.27 A number of other Bill teams followed suit. The human rights unit within the Ministry of Justice agreed to take a more proactive role with Bill teams, standing ready to assist with the human rights information accompanying a Bill and advising on the expectations of the Joint Committee. A free-standing human rights memorandum is also capable of being a more wide-ranging document, dealing not just with the Bill’s compatibility with the ECHR, but also its compatibility with other relevant international human rights 27 See Explanatory Notes to the Coroners and Justice Bill, published separately at Bill 9-EN. History does not record how this change of approach was squared with the strictures of the Public Bill Office recorded by Greenberg (n 3).

232 Murray Hunt standards such as the UN Convention on the Rights of the Child (UNCRC). A single human rights memorandum could also be the repository for all the relevant information generated in the preparation of the Bill but dispersed across the wide range of documents brought into being in that process: as well as the ECHR memorandum, the impact assessments (formerly the regulatory impact assessment), equality impact assessments, any relevant risk assessments and, where done, privacy impact assessments and child impact assessments. The logical next step was taken by the same Bill team manager who had first included in the Explanatory Notes a detailed section on the ECHR based on the ECHR memorandum prepared for the PBL Committee: in place of that section in the Explanatory Notes to the Protection of Freedoms Bill was a link to a free-standing human rights memorandum published at the same time as the Bill on the Home Office website. Happily, this best practice is fast becoming standard practice. During the current Parliament, departments are routinely volunteering such a free-standing human rights memorandum and there is a steadily growing number of examples of best practice. The Department for Education, for example, has produced extremely full and detailed memoranda giving the Government’s assessment of the compatibility of legislation or draft clauses with the UNCRC.28 Progress has by no means been universal, however, and the Joint Committee has continued to have occasion to criticise departments for failing to have carried out the necessary impact assessments or to have provided Parliament with sufficient information to enable it to ascertain the extent to which such assessments have been conducted.29 This steady increase in the quality of the relevant information provided to Parliament has made possible more focused human rights scrutiny of legislation. These are the informal means and processes by which human rights in the UK’s unwritten constitutional arrangements become ‘entrenched’ in a practical rather than strictly legal sense: that is, embedded within the process of making policy and turning that policy into law. There remains, however, considerable scope for further improvement, and the desirability of some sort of guidance clarifying for departments the JCHR’s expectations in terms of the information to be provided is a question returned to below. Laws which have been preceded by such human rights scrutiny and informed deliberation are not only more likely to be proportionate but are also, for that reason, more likely to pass muster with the courts when their human rights compatibility is subsequently tested.30 The Government is increasingly aware of 28 See, eg, Joint Committee on Human Rights, Legislative Scrutiny: Child Poverty Bill (28th Report) (2008–09, HL 183, HC 1114); Joint Committee on Human Rights, Legislative Scrutiny: Education Bill; and other Bills, (13th Report) (2010–12, HL 154, HC1140); and the UNCRC memorandum sent to the JCHR in relation to the draft clauses on reform of the Office of Children’s Commissioner in 2012–13. 29 See, eg, Joint Committee on Human Rights, Legislative Scrutiny: Welfare Reform Bill (Twenty-first Report) (2010–12, HL 233, HC 1704). 30 See, eg, Friend v United Kingdom (2010) 50 EHRR SE6; SH v Austria (20011) 52 EHRR 6.

The Joint Committee on Human Rights 233 this psychological fact about adjudication and there are signs that this awareness is leading to a greater willingness on the part of the Government to encourage detailed debate in Parliament about the human rights implications of its legislative proposals. In the human rights memorandum accompanying the Protection of Freedoms Bill, for example, the Government expressly acknowledged that its proposed solution to the problem of retaining DNA following the judgment in S & Marper v UK31 would be more likely to withstand subsequent judicial scrutiny if Parliament had fully debated the detail of that solution, including its human rights implications.

D. Pre-legislative Scrutiny One of the purposes of the changes made to the Committee’s working practices in 2005–06 was to enable it to make a contribution to debate about laws and policies at a much earlier stage in their development. It is often observed in the literature about parliamentary human rights scrutiny that it is very difficult to influence the final shape of legislation once a government Bill has been published.32 This has certainly been borne out by the experience of the Joint Committee on Human Rights. Once a Bill is published, ministers are generally very reluctant to agree to amendments to the Bill unless there is an irresistible combination of pressures making it politically difficult for the minister to hold out against amendment.33 The scrutiny of government Bills for human rights compatibility is therefore very late in the process to influence the content of a Bill. Earlier opportunities to scrutinise policy proposals for human rights compatibility are therefore more likely to have an impact on the eventual shape of legislation. Pre-legislative scrutiny of draft Bills is the most obvious way in which the Committee can make such a contribution. Such pre-legislative scrutiny is not always possible of course because, while there has been a welcome increase in the number of draft Bills being published for pre-legislative scrutiny, it remains the case that most government Bills are still not published as draft Bills first. Even when a draft Bill is published, scrutiny of its human rights compatibility by the JCHR can prove difficult, because draft Bills are usually scrutinised by an ad hoc joint committee brought into existence for that sole purpose. The ad hoc joint committee will usually hold evidence hearings and appoint its own specialist advisers on aspects of the draft legislation which it considers to be particularly important. The process of pre-legislative scrutiny has provided something of 31

S and Marper v United Kingdom (2009) 48 EHRR 50 (GC). S Evans and C Evans, ‘Australian Parliaments and the Protection of Human Rights’ (Papers on Parliament No 47, July 2007). 33 See, eg, M Russell and M Benton, ‘Selective Influence: The Policy Impact of House of Commons Select Committees’ (London, The Constitution Unit, UCL, 2011). This paper was produced as part of a three-year Economic and Social Research Council Fellowship on the Policy Impact of Parliament, through University College London. 32

234 Murray Hunt a dilemma for the Joint Committee on Human Rights. Should the Committee scrutinise the draft clauses itself in the same way as it scrutinises actual government Bills? Should it feed in to the work of the dedicated pre-legislative scrutiny committee? Or should it await the outcome of the ad hoc joint committee’s prelegislative scrutiny before considering the draft clauses itself? In practice the Joint Committee has experimented with a variety of approaches. The Joint Committee on Human Rights itself conducted the pre-legislative scrutiny of the draft Gender Recognition Bill,34 but this was, unusually, a draft Bill the main purpose of which was to remedy a human rights incompatibility identified by the European Court of Human Rights in a case against the UK.35 The scrutiny exercise was therefore very similar to the scrutiny of remedial orders which is one of the Joint Committee’s principal tasks under its Standing Orders.36 The Joint Committee also took the lead in the pre-legislative scrutiny of the draft clauses on the reform of the Office of the Children’s Commissioner for England.37 These are the only two draft Bills, however, on which the Joint Committee on Human Rights has itself conducted pre-legislative scrutiny. On some draft Bills the Committee itself has considered the draft legislation and its chair has written a formal letter to the chair of the ad hoc joint committee conducting the pre-legislative scrutiny.38 On others, the contribution to the ad hoc Committee’s pre-legislative scrutiny has been at staff level: staff of the Joint Committee on Human Rights have met the staff of the ad hoc committee to help to identify the significant human rights issues raised by the draft Bill and in particular to identify the evidential questions which need to be addressed in any parliamentary scrutiny of the human rights compatibility of the measures (for example, what evidence is there of the need to legislate, what evidence of the likely impact of the proposal on human rights,

34 Joint Committee on Human Rights, Draft Gender Recognition Bill, (19th Report) (2002–03 HL 188-I, HC 1276-1). 35 Goodwin v United Kingdom (2002) 35 EHRR 447. 36 See section on remedial orders below. Although the Committee’s remit requires it to scrutinise draft remedial orders made under the Human Rights Act, the same is not true of draft bills which are designed to remedy an incompatibility found by the European Court of Human Rights or a UK court under the Human Rights Act. The draft Prisoner Voting (Eligibility) Bill, for example, which contains the Government’s proposed response to the judgments of the European Court of Human Rights in Hirst v United Kingdom (2006) 42 EHRR 41 (GC) and Greens and MT v United Kingdom (2011) 53 EHRR 21, will be scrutinised by an ad hoc joint committee, not the Joint Committee on Human Rights. 37 Joint Committee on Human Rights, Reform of the Office of Children’s Commissioner: Draft Legislation (Sixth Report) (2012–13, HL 83, HC 771) considering the draft clauses on the Children’s Commissioner intended to be included in the Children and Families Bill. In an interesting departure from the usual process of pre-legislative scrutiny, different committees are scrutinising different parts of the draft legislation, according to their expertise: as well as the Joint Committee on Human Rights scrutinising the draft clauses concerning the Children’s Commissioner, the Education Committee scrutinised the draft clauses concerning Special Educational Needs and the Justice Committee scrutinised the draft clauses concerning family justice. 38 This was the case, for example, with respect to the Draft Defamation Bill 2011. See Joint Committee on the Draft Defamation Bill, Draft Defamation Bill (2010–12, HL 203, HC 930-I).

The Joint Committee on Human Rights 235 what evidence of the consideration of other alternatives which would have less of an impact on human rights, etc). In relation to other draft Bills, the Joint Committee on Human Rights has waited until the ad hoc joint committee has reported, and only then engaged with the human rights issues raised by the draft legislation. More recently the Joint Committee has experimented with exercises in prelegislative scrutiny at an even earlier stage, inquiring into and reporting on policy proposals when they are still at a formative stage in an attempt to maximise the impact of the Joint Committee’s work. Probably the best example is the Committee’s inquiry into the Government’s Green Paper on Justice and Security in the 2010–12 Session.39 This was a subject particularly well-suited for prelegislative scrutiny by the Joint Committee. Not only did the proposals in the Green Paper, to extend the use of ‘closed material procedures’ in civil cases, have serious implications for human rights and the rule of law, but the Joint Committee had built up a particular expertise in the subject matter as a result of several years of scrutiny of the operation of similar provisions in other contexts such as control orders. The Committee conducted a wide-ranging inquiry into the proposals, taking evidence from a variety of witnesses, and published a report which clearly influenced the public debate about the forthcoming Bill and the shape of the Bill itself when it was introduced.40 Moreover, the Joint Committee’s pre-legislative scrutiny exercise in relation to the Green Paper meant it was well placed to conduct in-depth scrutiny of the Justice and Security Bill itself when it was introduced, and its scrutiny of the Bill became more like a continuation of its inquiry into the Green Paper. It took oral evidence quickly on the key human rights issues raised by the Bill, and produced a legislative scrutiny report in time for the Bill’s report stage in the first House, including a number of detailed recommended amendments to the Bill in order to address the significant human rights concerns about it as it stood.41 Because of the thoroughness of the Joint Committee’s pre-legislative scrutiny of the proposals preceding the Bill and the expertise which it had built up on the subject over the years, the Joint Committee’s report was influential on the debate in the Lords and a number of its recommended amendments were approved notwithstanding the Government’s opposition.42

39

HM Government, Justice and Security Green Paper (Cm 8194, 2011). See the report of the Joint Committee on Human Rights, Legislative Scrutiny: Justice and Security Green Paper (Twenty-fourth Report) (2010–12, HL 286, HC 1777) and the Government’s response to the report (Cm 8365, 2012). 41 Joint Committee on Human Rights, Legislative Scrutiny: Justice and Security Bill (Fourth Report) (2012–13, HL 59, HC 370). 42 HL Deb 21 Nov 2012, cols 1811–47. 40

236 Murray Hunt E. Post-legislative Scrutiny From December 2008 the Government began to publish post-legislative assessments of Acts in order to facilitate post-legislative scrutiny by Parliament. Although the Committee has not engaged in formal post-legislative scrutiny of any of these memoranda, it has been engaged in forms of post-legislative scrutiny for some time, mainly by following up human rights compatibility issues raised in its legislative scrutiny reports on Bills. The control orders legislation, for example, was the subject of legislative scrutiny reports by the Committee expressing significant concerns about the compatibility of the legislation with the rule of law and pointing out the risk that the legislation would give rise to human rights breaches in practice.43 The legislation was made subject to annual renewal and on each of the six occasions when the legislation was subsequently renewed the Committee inquired into its operation in practice and reported to Parliament its concerns about the human rights compatibility of what was being done under the legislation.44 The Committee took the same approach to the legislation that extended the period of pre-charge detention for terrorism suspects from 14 to 28 days. Having raised significant human rights compatibility concerns about the legislation which first extended the period,45 the Committee subsequently inquired into the way in which the legislation was being operated in practice and reported annually to Parliament in advance of the debates on the annual renewal of the power.46 The legislation replacing control orders with less restrictive Terrorism Prevention and Investigative Measures (TPIMs)47 is not subject to the same requirement of annual renewal, but the Independent Reviewer of Terrorism Legislation, David Anderson QC, in his last annual report on the control orders legislation, expressed the hope that the Committee would subject the new regime to the same annual post-legislative scrutiny as it had carried out on the control orders regime.48 Shortly before the first anniversary of the Act’s operation, the Committee announced that it would be doing just that.

43 Joint Committee on Human Rights, Prevention of Terrorism Bill Tenth Report (2004–05, HL 68, HC 334). 44 See, eg, most recently, Joint Committee on Human Rights, Renewal of the Control Orders Legislation 2011 (Eighth Report) (2010–11, HL 106, HC 838). 45 Joint Committee on Human Rights, Report on the Criminal Justice Bill (Second Report) (2002–03, HL 40, HC 374). 46 See, eg, Joint Committee on Human Rights, Counter-Terrorism Policy and Human Rights (Seventeenth Report): Bringing Human Rights Back In (Sixteenth Report) (2009–10, HL 86, HC 111). 47 The Terrorism Prevention and Investigation Measures Act 2011. 48 D Anderson, Control Orders in 2011: Final Report of the Independent Reviewer on the Prevention of Terrorism Act 2005 (London, The Stationery Office, 2012). This point was also explored in C Walker and A Horne, ‘The Terrorism Prevention and Investigation Measures Act 2011: One Thing but not Much the Other?’ [2012] Criminal Law Review 421.

The Joint Committee on Human Rights 237 III. RESPONSES TO COURTS’ JUDGMENTS CONCERNING HUMAN RIGHTS

As the Committee itself has pointed out, in jurisdictions where courts enjoy a monopoly of interpretive wisdom, there is little scope for parliamentary debate about the appropriate legislative response to court judgments concerning human rights: in those jurisdictions, courts have the power to strike down legislation and Parliament is expected simply to conform to the expression of supreme judicial will. Under the UK’s unique institutional arrangements for protecting human rights, however, Parliament still has an important role to play in scrutinising the government’s response to a court judgment that a law, policy or practice is in breach of human rights. Again, the Committee’s work in this respect has undergone something of an evolution over its lifetime. When the Committee first began corresponding with the Government about particular judgments of the European Court of Human Rights, there were no systems in place for ensuring that Parliament was kept regularly and fully informed about what the Government was proposing to do to change law, policy or practice in the light of a judgment. By the end of the 2005–10 Parliament, such progress had been made in the establishment of these arrangements that the Committee sought to embed the good practice which had developed by publishing Guidance to Departments on Responding to Court Judgments on Human Rights.49 The Government now routinely keeps Parliament, through the Committee, informed of relevant judgments and publishes an annual report to the Committee, in advance of the Human Rights Minister’s annual appearance before it, setting out the Government’s response to all judgments of the European Court of Human Rights against the UK and all declarations of incompatibility by UK courts in the preceding year.50

A. Scrutiny of Remedial Orders The Committee’s work on human rights judgments includes the detailed scrutiny of remedial orders under the Human Rights Act (orders remedying incompatibilities with Convention rights which have been found by courts), which its Standing Orders require it to perform. When the Committee was established it was envisaged that work on remedial orders might constitute a significant proportion of its work. In the event, final declarations of incompatibility under the Human Rights Act have been relatively few and far between in the first 12 years of the Act’s operation, and although remedial orders can also be used to remedy an incompatibility

49 Joint Committee on Human Rights, Enhancing Parliament’s Role in Relation to Human Rights Judgments (Fifteenth Report) (2009–10, HL 85, HC 455). 50 See most recently, Ministry of Justice, Responding to Human Rights Judgments: Report to the Joint Committee on Human Rights on the Government Response to Human Rights Judgments 2011–12 (Cm 8432, 2012).

238 Murray Hunt found by the Strasbourg Court they have not often been used for this purpose. In the current Parliament there have been three remedial orders, on each of which the Committee has reported twice, as it is required to do.51 On each occasion the Government has agreed to amend the remedial order in the light of recommendations from the Committee. The Committee’s dispassionate and expert scrutiny of a remedial order can sometimes take the heat out of a politically controversial court judgment. Following the Supreme Court’s judgment in F,52 for example, declaring section 82 of the Sexual Offences Act 2003 incompatible with the right to respect for private life to the extent that it provided for indefinite notification requirements without any opportunity for independent review, both the Home Secretary and the Prime Minister made their displeasure with the Supreme Court known in no uncertain terms. The Prime Minister said he would do ‘the minimum necessary’ to comply with the judgment.53 The remedial order which was first brought forward was so minimalist that in the view of the Committee it clearly failed to comply with the judgment: it provided for a review of indefinite notification requirements, but by the police, not a court. The Committee reported that in its view the remedial order was deficient because it failed to remedy the incompatibility by failing to provide for independent review. Notwithstanding the political hyperbole which had greeted the original judgment, the Government accepted the Committee’s recommendation without fuss and brought forward an amended remedial order which provided for access to an independent court to challenge the continued need for the notification requirements.

IV. HUMAN RIGHTS TREATY MONITORING

Before the existence of the JCHR, there was virtually no role for Parliament in relation to the UK’s international human rights obligations under the UN human rights treaties and other agreements entered into by the UK. While the theoretical possibility existed of a parliamentary debate on a treaty that the executive proposed to ratify, under the so-called Ponsonby Rule, in practice this never happened in relation to human rights treaties.54 The regular cycle of monitoring the UK’s compliance with its obligations by the UN treaty bodies passed Parliament by completely. Although legally binding on the state in international law, and

51 See the following reports of the Joint Committee on Human Rights: The Terrorism Act 2000 (Remedial) Order 2011: Stop and Search without Reasonable Suspicion; Draft Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (Remedial) Order 2010; and Draft Sexual Offences Act 2003 (Remedial) Order 2012. 52 R (F) v Secretary of State for the Home Department [2010] UKSC 17. 53 The Guardian, ‘David Cameron Condemns Supreme Court Ruling on Sex Offenders’ (London, 16 February 2011). 54 See A Thorp, Parliament’s New Statutory Role in Ratifying Treaties, House of Commons Library Standard Note, SN/IA/5855, 8 February 2011.

The Joint Committee on Human Rights 239 of growing relevance even in domestic law, these norms, and the treaty bodies’ recommendations about their implementation, were hardly ever discussed in Parliament. The Committee has sought to change this in a number of ways. In the first few years of the Committee’s existence, from 2001 to 2006, it sought to engage Parliament with the main UN international human rights treaties by conducting major inquiries into the UK’s record under each of those treaties. The UK’s compliance with the UN Convention on the Rights of the Child, the UN Convention Against Torture, the International Covenant on Economic, Social and Cultural Rights, and the Convention on the Elimination of Racial Discrimination were all the subject of such inquiries. These exercises shone a useful light onto the Government’s approach to preparing the UK’s compliance reports and for the first time brought about direct interaction between the executive and Parliament concerning the UK’s record of compliance with these international human rights obligations. Such inquiries were very resource-intensive, however, and, as was the case with its scrutiny of legislation, from about 2006 the Committee changed its approach, away from such systematic monitoring and scrutiny of compliance with the UN treaties, towards a more selective approach, seeking to incorporate references to relevant recommendations into its general work programme. As a result, although the Committee has continued to refer to recommendations of the treaty bodies when relevant to its scrutiny work, the Committee’s engagement with those recommendations has been much more sporadic and reactive in nature. The Universal Periodic Review (UPR), the process by which the UK’s human rights record is periodically reviewed by other states in the UN Human Rights Council, has also to date largely passed Parliament by. The UK’s recent review, however, resulting in 132 recommendations to the UK Government,55 provides an opportunity for the Committee to develop a more focused and strategic engagement with the UN human rights treaties and the recommendations of the UN treaty bodies. The Government has indicated that it intends to establish a framework for monitoring the UK’s implementation of both the UPR recommendations and the recommendations of the UN treaty bodies, and it would clearly be desirable for that framework to include a parliamentary dimension.56 The Committee is considering ways in which it can take a proactive but focused approach to monitoring the Government’s implementation of a selection of key recommendations from the UPR and the treaty bodies.57 The Government’s

55 Human Rights Council, Report of the Working Group on the Universal Periodic Review: United Kingdom of Great Britain and Northern Ireland, 6 July 2012, UN Doc A/HRC/21/9. 56 See, eg, Letter from H Francis, Chair of the Joint Committee on Human Rights, to UN Association of the UK ‘Follow-up to the UK’s Universal Periodic Review by the UN Human Rights Council in 2012’, 5 December 2012, available through the JCHR website: www.parliament.uk/business/ committees/committees-a-z/joint-select/human-rights-committee/. 57 See Note of the Conclusions of the Inter-Parliamentary Union/Commonwealth Secretariat conference, Strengthening the Role of Parliamentarians in the Implementation of Universal Periodic Review Recommendations, available through www.ipu.org.

240 Murray Hunt Report to the JCHR on the implementation of human rights judgments, referred to above, already makes mention of other significant human rights issues including upcoming reviews by the UN treaty bodies, and it may be that this proves to be the precursor of a much fuller human rights report to Parliament which will help facilitate parliamentary engagement with the government across the full range of its human rights obligations. The Committee has also pioneered the equivalent of a form of pre-and postlegislative scrutiny in relation to a major human rights treaty, the UN Convention on the Rights of Disabled People. For the first time it subjected such a treaty to rigorous parliamentary scrutiny before it was ratified by the Government, seeking to ensure that the process by which the Government proposed to enter reservations and interpretative declarations in respect of certain rights in the treaty was transparent, accountable and informed by the views of those disabled people who would be most directly affected.58 The Committee has continued to scrutinise the Government’s ongoing justification for maintaining the reservations it entered on ratification of the treaty, and in its subsequent inquiry into the implementation of the right to independent living, the Committee effectively carried out postratification scrutiny of a particularly important provision in that treaty.59 In view of its directly relevant report, there may be scope for the Committee to have a direct input into the UN Disability Committee’s review of the UK’s first compliance report when it takes place.

V. THEMATIC INQUIRIES

A. Standards Alongside its work on legislative scrutiny, human rights judgments and treaty monitoring, the Joint Committee conducts thematic inquiries into topical human rights issues of the day. On the face of it, these inquiries look more like the sorts of inquiries conducted by departmental select committees and House of Lords investigative select committees, and as a result they are often referred to in Parliament and in the literature as ‘policy inquiries’ and contrasted to the Joint Committee’s ‘legal’ work on legislative scrutiny, human rights judgments and treaty monitoring. In fact, such a distinction is apt to mislead. The Joint Committee’s inquiry work is always rooted in the relevant human rights standards and while the forms and methods of the inquiry generally follow those of any other parliamentary

58 Joint Committee on Human Rights, The UN Convention on the Rights of Persons with Disabilities (First Report) (2008–09, HL 9, HC 93); Joint Committee on Human Rights, The UN Convention on the Rights of Persons with Disabilities: Reservations and Interpretative Declaration (Twelfth Report) (2008–09, HL 70, HC 397). 59 Joint Committee on Human Rights, Implementation of the Right of Disabled People to Independent Living (Twenty-third Report) (2010–12, HL 257, HC 1074).

The Joint Committee on Human Rights 241 committee policy inquiry, including gathering evidence by hearing witnesses and undertaking visits, the scope and subject matter of the inquiry are defined by the relevant legal standards. So, for example, the Committee’s inquiry into the treatment of asylum seekers60 was in substance quite different from a Home Affairs Select Committee inquiry into the Government’s policy towards asylum seekers, because it was rooted in the various legal standards which impose certain minimum obligations on the state. Similarly, its inquiry into the implementation of the right of disabled people to independent living61 was quite different from the sort of policy inquiry that might be carried out by a departmental select committee, because its whole purpose was to ascertain the extent to which the UK had implemented the specific right contained in Article 19 of the UN Disabilities Convention. Likewise, the Committee’s inquiry into the rights of unaccompanied migrant children is scrutinising the UK’s legal and policy framework concerning unaccompanied migrant children through the lens of the UK’s international legal obligations under the UN Convention on the Rights of the Child.62 Such inquiries are therefore exercises in assessing the extent to which the UK is complying with its relevant human rights obligations in a particular policy area, and identifying what needs to be done in order to comply with the relevant minimum standards or better to fulfil any positive obligations the state is under. The Joint Committee’s inquiry work is also informed by its work on human rights judgments and treaty monitoring: its awareness of outstanding human rights issues identified in court judgments or the recommendations of treaty bodies helps to identify the relevant issues in any inquiry and to define the questions which need investigation. In turn, the Committee’s thematic inquiry work informs its legislative scrutiny work: when an opportunity arises to give effect to a Committee recommendation in its inquiry work in legislation before Parliament the Committee may ask the Government to justify why the opportunity is not being taken to give effect to that recommendation and may suggest amendments to the Bill in order to do so.

B. Selection of Inquiry Subjects A matter which is very properly of interest to the public is how the Joint Committee decides what thematic inquiries to conduct. The process of selecting an appropriate subject for a thematic inquiry has also been refined over the course of the Committee’s existence. The Committee’s staff maintain a rolling list of candidate

60 Joint Committee on Human Rights, The Treatment of Asylum Seekers (Tenth Report) (2006–07, HL 81-I, HC 60-I). 61 JCHR Report, Implementation of the Right of Disabled People to Independent Living (n 59). 62 Joint Committee on Human Rights, Inquiry: The Human Rights of Unaccompanied Migrant Children and Young People in the UK, commenced September 2012.

242 Murray Hunt topics for a thematic inquiry. Inclusion on the list is the product of a combination of factors: topicality, significance according to the Committee’s published criteria, member interest and representations from civil society. The Committee has the capacity to conduct two or maybe three thematic inquiries per parliamentary session. Members will once a year consider a long list of candidates for an inquiry and will draw up a shortlist of possible topics. An informal roundtable discussion is then organised, to which members of civil society and other interested groups are invited, to explore the potential for an inquiry into that theme. One of the most important considerations in the final decision is whether an inquiry and report by the Committee can add value to the work already done or being done by others in relation to the same subject, including other parliamentary committees, public inquiries, international bodies and NGOs, and whether there is likely to be an opportunity for any recommendations coming out of such an inquiry to be implemented. This requires the Committee to consider carefully the wider political environment and to anticipate likely developments in the relevant field. So, for example, an inquiry by the Committee is likely to be able to add value where an area of law or policy is already, or is likely soon to become, under review by the Government, or where pressure is building for such a review.63 Similarly, where the UK’s record on a particular issue is soon to be examined by a treaty body, an inquiry by the Committee might produce some findings and recommendations which can inform that review.64 The Committee also tries to maintain the ability to hold short and urgent inquiries into particularly topical human rights issues, perhaps involving a one-off evidence session, in order to ensure that it is contributing to important human rights debates as they emerge.65 The Joint Committee’s thematic inquiry work is also important for the opportunity it provides to members of the Committee to see human rights in action. One former member made no secret of his scepticism of the need for legal protections for human rights when he first became a member of the Joint Committee on Human Rights, but after witnessing what he regarded as affronts to human dignity in visits to some care homes for the elderly he became a passionate advocate of the need for legal guarantees to ensure that vulnerable people are treated with dignity and respect by their carers.

VI. SOURCES OF HUMAN RIGHTS STANDARDS

What are the sources of the human rights standards that the Committee uses in its scrutiny work in all of these areas? They include all of the UK’s international

63 See, eg, Joint Committee on Human Rights, The Human Rights Implications of UK Extradition Policy (Fifteenth Report) (2010–12, HL 156, HC 767). 64 See, eg, Implementation of the Right of Disabled People to Independent Living (n 59). 65 See, eg, Joint Committee on Human Rights, Demonstrating Respect for Rights? A Human Rights Approach to Policing Protest Seventh Report (2008–09, HL 47-I, HC 320-I).

The Joint Committee on Human Rights 243 human rights obligations, and authoritative interpretations of those obligations by the relevant bodies such as the European Court of Human Rights and the UN treaty-monitoring bodies. They also include what are commonly described as ‘soft law’ standards, which are not strictly speaking legally binding on the UK, such as declarations, principles, recommendations and minimum standards. The Committee has also from its inception had regard to the common law’s protection for human rights. Consideration of common law protections inevitably raises the possibility of overlap with the work of the House of Lords Constitution Committee, but any risk of duplication of effort is generally avoided by informal mechanisms for ensuring that the staff and members of both committees are aware of the work being done or being planned by the other.

VII. DIVERSITY OF VIEWS ABOUT HUMAN RIGHTS

Some of the literature questions the value of parliamentary human rights committees because conceptions of human rights can vary so widely amongst parliamentarians. Of course it is true that there is a very wide range of conceptions of human rights, but the experience of the JCHR does not suggest that this should be an obstacle to a parliamentary human rights committee performing a useful function. The composition of the Committee has meant that there has always been a wide range of views about human rights on the Committee at any one time. For some members, liberty from state interference is the most important of all human rights, while for others the right to have certain basic needs fulfilled is a necessary precondition to the meaningful exercise of such freedoms. Unsurprisingly on a cross-party parliamentary committee, at any one time the membership represents a broad range of views about human rights covering the whole of this broad spectrum, but this has been more of a strength than a weakness. The Committee deals with many issues that go to the heart of many ideological controversies between the main political parties, but the capacity for human rights discourse to transcend political partisanship never ceases to surprise. Like all parliamentary committees the Committee strives to operate on a consensual basis, and while this may occasionally mean that the Committee chooses not to inquire into a particular issue because it is clear that its members will not be able to agree, it is much more common for the Committee to embark on contentious subjects but succeed in forging from their underlying commitments enough of an overlapping consensus to be able to agree a unanimous report.66

66 Almost all of the Committee’s reports to date in the current Parliament have been adopted by consensus. Occasionally, but rarely, a member insists on a division on a particular point in a report in order to dissociate themselves from a part of a report with which they strongly disagree.

244 Murray Hunt VIII. EFFECTIVENESS OF THE JCHR

It is time to return to Robert Hazell’s intriguing suggestion that the new guardians of rule of law values are now to be found in Parliament, not the executive. Is it possible to say how effective the JCHR has been as a parliamentary guardian of the rule of law? Does it live up to Robert Hazell’s billing as a pillar of the Constitution? As every political scientist knows, there is no easy way of measuring the effectiveness of such a complex institution as Parliament, or even its component parts such as parliamentary committees.67 Methodologies for doing so are inevitably complicated and nuanced and any evaluation is bound to be contentious. Measures such as successful amendments to government Bills, or acceptance of committee recommendations, may enable some form of quantifiable assessment of impact, but will never capture the many and various ways in which Parliament can influence the government or affect the shape of laws that are brought before it for it to scrutinise.68 Measuring effectiveness is also made difficult by the wide range of functions that a parliamentary committee such as the JCHR serves, let alone the wide range of views about the relative importance of those functions. The JCHR’s functions undoubtedly include informing and advising Parliament about some of the most significant legal standards against which legislation will be judged for its human rights compatibility, and providing parliamentarians with the opportunity to consider and debate in an informed way what abstract human rights standards require in particular contexts. Whether these functions are being performed effectively is likely to defy useful scientific measurement. Recent research commissioned by the Arts and Humanities Research Council found that in the 2005–10 Parliament there were over 1000 substantive references to the work of the JCHR in parliamentary debates, compared to just 23 between the Committee’s creation in 2000 and the end of the 2001–05 Parliament.69 As well as finding this striking numerical increase in the use being made of JCHR reports in Parliament,70 the research also found that the quality of such debate about human rights had improved over the period in question.71 This suggests

67 See, eg, M Russell and M Benton, ‘Selective Influence (n 33); R Rogers and RH Walters, How Parliament Works, 6th edn (Harlow, Pearson Longman, 2006) 425–27. See also ch 7 of this volume. 68 See eg M Russell and M Benton, ‘Assessing the Policy Impact of Parliament: Methodological Challenges and Possible Future Approaches’ Paper for Political Studies Association Legislative Studies Specialist Group Conference (University College London, 24 June 2009) www.ucl.ac.uk/constitutionunit/research/parliament. 69 M Hunt, H Hooper and P Yowell, Parliaments and Human Rights: Redressing the Democratic Deficit Arts & Humanities Research Council Public Policy Series No 5 (2012). 70 A contributory factor to the increase may have been the increased efforts made to bring the work of Parliament’s committees directly into the chamber by having committee reports debated on the floor of each House, for example by administrative arrangements such as ‘tagging’ relevant committee reports on the Order Paper, drawing them to members’ attention before debates to which they are directly relevant. 71 Ibid 37–43.

The Joint Committee on Human Rights 245 that the reports of the JCHR are playing an increasingly important role in parliamentary debate about human rights, and that parliamentarians are becoming more literate in human rights as a result of the Committee’s work. The research does not, however, purport to provide any easy answers to the difficult question of how effective the Committee has been as a guardian of human rights in the legislative process.

A. Guidance and Legislative Standards As Robert Hazell intimated in 2004, the evolution of the executive’s internal guidance about the legislative process is good evidence of the extent to which Parliament is performing its scrutiny function effectively.72 While on the face of it an amendment to a Bill on the recommendation of a scrutiny committee is a sign of that committee’s effectiveness, a better measure of the effectiveness of its scrutiny is the extent to which its effects are felt ‘upstream’ in the policy-making process, influencing civil servants, advisers and policy-makers to engage properly with rule of law and human rights considerations at the earliest possible point in the long process which ends up with the introduction of a Bill to Parliament. As Dawn Oliver argues in this volume, in the UK there exist ‘elaborate organic systems of intra-governmental and intra-parliamentary constitutional preview’ resting on a set of arrangements which constitute political, as opposed to legal, constraints on government: the role of parliamentary select committees, particularly in the House of Lords, and internal arrangements in government and among government lawyers which promote respect for the rule of law and constitutionalism.73 She has long been an effective advocate of the formulation of legislative scrutiny standards and checklists against which legislation and draft legislation can be evaluated, believing that this will help to focus minds upstream in the policy-making process.74 There has been lively debate about whether there should be a new Legislative Standards Committee, an idea advocated by Lord Norton of Louth but not favoured by the House of Lords Liaison Committee. Acceptance of the idea of legislative standards, however, is growing. It is currently the subject of an inquiry by the House of Commons Political and Constitutional Reform Committee.75

72

Hazell, ‘Who is the Guardian of Legal Values in the Legislative Process’ (n 1). See ch 12. 74 See D Oliver, ‘Improving the Scrutiny of Bills: The Case for Standards and Checklists’ [2006] Public Law 219; and her oral evidence to the Political and Constitutional Reform Committee’s inquiry into Legislative Standards, 12 July 2012 www.parliament.uk/business/committees/committees-a-z/ commons-select/political-and-constitutional-reform-committee/inquiries/parliament-2010/betterlegislation/bl-oral-and-written-evidence/. 75 House of Commons Select Committee Inquiry, Ensuring Standards in the Quality of Legislation, commenced 20 January 2012. 73

246 Murray Hunt The story told above, of the slow but steady progress towards the routine provision to the JCHR of human rights memoranda by government departments to accompany their Bills, suggests that there may be scope to explore further the relationship between the role of parliamentary select committees and those internal arrangements in government. It is likely that both the Joint Committee on Human Rights and the House of Lords Constitution Committee have built up a sufficiently clear corpus of principles in their reports for it to be useful to attempt to distill from those reports some essential guidance for departments and government lawyers (including Parliamentary Counsel) about the expectations of those parliamentary committees when they scrutinise government Bills. To be truly useful, such guidance for departments would need to go beyond mere descriptions of the Committee’s working practices, and include substantive guidance on issues which repeatedly arise in the Committee’s scrutiny reports: giving guidance, for example, drawing on published reports, about the sorts of legislative contexts in which the Committee expects to see detailed safeguards against arbitrary interference with private life spelt out on the face of the Bill, or when a reverse onus provision is likely to be justified, or access to an independent court or tribunal required. It would also need to be developed in close consultation with government lawyers and Parliamentary Counsel to ensure its utility to departments. In the case of the JCHR, the obstacle to producing such guidance for departments has been resources, not political will. There may also be scope for more detailed international principles and guidelines about the role of parliaments in the protection and realisation of human rights. Some such guidelines already exist in relation to specific aspects of parliaments’ role, such as the Council of Europe’s guidance about the role of parliaments in the implementation of judgments of the European Court of Human Rights,76 and the Venice Commission for Democracy through Law intends to prepare ‘Guidelines on the Principles of Good Law-Making’.77 However, there is no internationally agreed guidance to assist parliaments to devise the appropriate, structures, mechanisms and practices which are required in order for parliaments to discharge their important obligations and responsibilities in relation to the rule of law and human rights.78

76 Council of Europe Parliamentary Assembly Resolution 1516 (2006), Implementation of Judgments of the European Court of Human Rights (2 October 2006). 77 See the Concluding Remarks of J Hegelson, First Vice-President of the Venice Commission, at the Conference on the Rule of Law as a Practical Concept (n 10) /www.venice.coe.int/webforms/documents/ CDL(2013)016-e.aspx#P1228_266407. 78 A draft set of such Principles and Guidelines was circulated for discussion at the Arts & Humanities Research Council conference, Parliaments and Human Rights: Redressing the Democratic Deficit (Westminster, 17–18 April 2012). Copies are available from the author.

The Joint Committee on Human Rights 247 IX. REFLECTIONS

A. Mainstreaming Human Rights and the Rule of Law in Parliament With the best will in the world, however, and even if resources were infinite, there is a natural limit to what can be achieved by a single committee of just 12 members. The members themselves are busy parliamentarians with many other demands on their time: even for the most conscientious and expert there are only so many hours in the week which they can devote to human rights scrutiny. Twelve members is a tiny proportion of the total number of parliamentarians. While a specialised human rights committee undoubtedly remains an essential part of the constitutional arrangements for human rights protection, the time may well be drawing near when there will be more general recognition that leaving the task of human rights scrutiny to a single specialised committee is not sufficient. While other committees are also responsible for rule of law issues, such as the Constitution Committee and the Delegated Powers and Regulatory Reform Committee in the House of Lords, the key challenge is how to integrate the rule of law and human rights into the work of Parliament across the board. Alongside the specialised work of a dedicated human rights committee, a concerted effort could be made by parliamentary staff—lawyers in Parliament working in close collaboration with both Clerks from the two Houses and research and information services—to anticipate and identify more proactively and effectively any rule of law and human rights dimensions of any work Parliament is carrying out. This should make it more likely that members are advised and informed about the rule of law considerations and human rights standards that are relevant to that work when they arise. A Home Affairs Select Committee inquiry into preventive detention, for example, should be advised about any relevant common law or international standards prohibiting administrative detention and requiring minimum judicial guarantees to be in place. An Education Committee inquiry into pupil discipline in schools should be advised about human rights standards and case law which is potentially relevant to that inquiry and which may help members of that Committee identify the important questions that require parliamentary investigation. Arrangements could relatively easily be made to ensure that relevant rule of law and human rights standards, including not just treaty obligations but relevant court judgments and recommendations by the UN treaty bodies, are drawn to the attention of both members and staff who are engaged in parliamentary work to which those standards are relevant. It is worth pausing to consider the legitimation advantage that this mainstreaming would also have. Too often ‘human rights’ are perceived by parliamentarians as standards articulated and imposed on Parliament and government by outside actors, judges and lawyers in particular, who lack democratic legitimacy. In fact, all human rights frameworks, international and national, recognise that parliamentarians have an important role to play in both the articulation of those standards and the interpretation of what they require in particular contexts, and

248 Murray Hunt the international human rights machinery is itself, if rather belatedly, waking up to the importance of the role of properly informed elected representatives.

B. Law’s Place in Parliament All this may require us to think more carefully about what we consider to be the place of law in Parliament. One of the legacies of the unresolved contradiction at the heart of the Diceyan account of our constitutional tradition is that, even now, there is no secure understanding of the role of law in Parliament. The idea that Parliament can make any law but is subject to none is a truly powerful one, which continues to shape a surprising amount of what goes on in Parliament. It pervades the language, the customs and, most importantly, it sub-consciously defines the ways in which some of the principal actors perceive their roles. If Parliament can make any law, and courts must give effect to that law come what may, why should parliamentarians or, for that matter, government lawyers, bother thinking about how a new statute fits with other laws? Legal advice to law-makers might be useful because it alerts them to how courts might see the laws being enacted, but at the end of the day it can be ignored if it is disagreeable because Parliament is sovereign and can do as it wishes.79 The new Act will supersede all previous laws to the extent of any inconsistency. Legal advice is therefore indistinguishable from advice about the political risks of a proposed course of action. This is antithetical to any meaningful idea of constitutionalism, even the interesting hybrid of political and legal constitutionalism which is so eloquently articulated by contributors to this volume.80 Indeed it is incompatible with anything other than the most formal conception of the rule of law. To this extent, the full significance of the courts’ giving effect to Parliament’s own attempts to modify the doctrine of implied repeal in section 2 of the European Communities Act 1972 and section 3 of the Human Rights Act 1998, has yet to be fully acknowledged. The embrace of a uniquely British form of constitutionalism has important implications for the way in which Parliament goes about its law-making function. If the laws that are the product of its deliberations must be interpreted and applied by others so as to be compatible with other legal standards, Parliament needs

79 See, eg, the declassified letter from then Foreign Secretary Jack Straw to Michael Wood, Legal Adviser to the Foreign and Commonwealth Officer, with respect to the legal basis for the use of force in Iraq (29 January 2003). The Foreign Secretary said ‘I note your advice [that the use of military action would be contrary to international law], but I do not accept it. Let me first make a general point: in the Home Office the many legal issues in which I was involved were principally matters of domestic law. This is by its nature much more detailed and more certain that almost any question of international law. We have courts sitting daily to determine outstanding questions. However, even on apparently open and shut issues the originators of the advice offered to me accepted that there could be a different view, honestly and reasonably held. And so it turned out to be time and again’. The letter is available at www.iraqinquiry.org.uk/transcripts/declassified-documents.aspx. 80 See chs 11 and 12 of this volume.

The Joint Committee on Human Rights 249 independent legal advice about the content of those other standards.81 The JCHR and the House of Lords Constitution Committee are integral parts of an attempt to give institutional expression to a more sophisticated form of modern constitutionalism which rejects the old dichotomy between political and legal constitutionalism. The point of departure for this more modern idea of constitutionalism is the acceptance that all branches of the state, the government, Parliament and the courts, have a shared responsibility to uphold the rule of law. Because the implications of this constitutional shift have yet to be fully acknowledged, we still sometimes hear it said that the law should not really be a primary concern of parliamentarians, who should be concerned more with politics and policy, and dire warnings are often heard about the danger of politics becoming ‘judicialised’ or taken over by lawyers. It is curious that this view about the marginal place of law in Parliament continues to survive. Amongst Parliament’s most significant constitutional functions are making law and holding the executive to account. Law should be central to the exercise of both functions. Consider Parliament’s law-making function. A large part of what parliamentarians do is make law. Those laws do not automatically supplant all existing law, nor are they to be read and given effect in a vacuum. Rather they are born into an existing legal universe which is multi-layered, comprising many other laws, including laws touching on matters that are fundamental to the way in which power is constituted and exercised. Those who make the laws should be properly informed and advised about how the law they are considering fits with those other pre-existing laws, and in particular with the laws which deal with that society’s fundamental values and the values regarded as fundamental in the other communities of states, regional and international, to which that society belongs. Law-makers need to know how the proposed law has an impact on those fundamental values and, if it would constitute a departure from them, what justifies such a departure. This should be integral to the conscientious legislator’s function, not regarded as a technical exercise which can be delegated to anonymous civil servant lawyers within government and Parliament and kept from public view. It is true that a lot of law can be technical, and parliamentarians cannot be expected to be anything other than dependent on expert legal advice in respect of such questions. But the fundamental commitments of the state, which command an established consensus, should be expressible in a form which is readily understood by all and capable of articulation at a level which is meaningful for political debate. Political debate about the legitimacy of a particular policy objective, or the appropriateness of a proposed means for achieving that objective, often touches upon our fundamental commitments to the rule of law and respect for human rights. Effective mechanisms need to be in place to ensure that these occasions are identified for parliamentarians, and that they are properly informed and advised about the implications of the law they are considering for the state’s continuing commitment to those fundamentals.

81

For general discussion, see ch 5 of this volume.

10 From the Human Rights Act to a Bill of Rights? ALEXANDER HORNE* AND LUCINDA MAER**

I. THE STORY OF THE HUMAN RIGHTS ACT 19981

T

HE HUMAN RIGHTS Act was introduced in 1998 following a commitment by the Labour Party to ‘bring rights home’. The Labour Party manifesto argued that the incorporation of the European Convention on Human Rights (ECHR) would ‘establish a floor, not a ceiling, for human rights’, and noted that Parliament would remain ‘free to enhance these rights’.2 Following the passage of the Act individuals were entitled to rely on provisions of the Convention in UK courts, often avoiding the need to travel the ‘long road to the Court of Human Rights in Strasbourg’.3 When the Bill was introduced in the House of Commons, it was made clear that the Act would preserve the legislative sovereignty of Parliament. It did not allow for legislation to be struck down by the courts, instead offering the carefully calibrated device of a ‘declaration of incompatibility’. It also allowed Parliament to pass laws that were incompatible with the Convention, though subject to certain, largely political, constraints. The 1998 Act, which did not take full effect until the year 2000, was extremely significant. It effectively incorporated into our judicial (and governmental and parliamentary) systems an express recognition of provisions contained within the European Convention on Human Rights. In addition to requiring any court or tribunal to ‘take into account’ the judgments of the European Court of Human Rights, the 1998 Act also provided that it would be unlawful for ‘public authorities’ to act in a way which is incompatible with a Convention right. Although the term * Alexander Horne is an employed barrister and the Senior Researcher for Human Rights, Public Law and Terrorism at the Research Service of the Commons Library. ** Lucinda Maer is Head of the Research and Library Central Team in the House of Commons Library. 1 The authors would like to thank Lord Faulks QC, Professor Kate Malleson, Alice Ripley and Hélène Tyrrell for comments on an earlier draft of this chapter. Any errors or omissions are our own. 2 Labour Party, Election Manifesto 1997: New Labour because Britain Deserves Better (1996). 3 Liberty, Common Sense: Reflections on the Human Rights Act (June 2010) www2.lse.ac.uk/ humanRights/articlesAndTranscripts/commonSense.pdf.

252 Alexander Horne and Lucinda Maer ‘public authority’ binds both the courts and the executive, section 6(3) of the Act provides that the term ‘does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament’. This is not to say, however, that Parliament itself does not have to comply with the European Convention on Human Rights: there have been examples where the Strasbourg Court has shown itself willing to consider certain ‘parliamentary immunities’.4 The Government also argued that ‘Parliament itself should play a leading role in protecting the rights which are at the heart of a parliamentary democracy’.5 In chapter nine, Murray Hunt has set out the ways in which Parliament has sought to engage with that task, including the role of ministerial statements of compatibility under section 19 of the Act and the work of the Joint Committee on Human Rights (JCHR) in assessing the human rights compatibility of legislation. Soon after the legislation entered into force, Lord Hope in the Kebilene case stated that: It is now plain that the incorporation of the European Convention on Human Rights into our domestic law will subject the entire legal system to a fundamental process of review and, where necessary, reform by the judiciary.6

Nonetheless, the 1998 Act was not designed to allow the courts to challenge directly the sovereignty of Parliament; as already mentioned it contains no power for judges to strike down primary legislation. Instead, section 3 of the Act provides that ‘so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights’. This section, sometimes referred to as a ‘read down’ provision was described as an ‘extraordinary interpretation provision’ by the late Lord Bingham, the former senior Law Lord.7 It is clear that the Government expected this section to be employed to rectify pre-Human Rights Act legislation so as to render it Convention compliant, as well as ‘uphold the Convention rights unless the legislation itself is so clearly incompatible with the Convention that it is impossible to do so’.8 This interpretive requirement in section 3 replaced the established notion that the courts are giving effect to Parliament’s intention when it passed the Act in question with a quite different ‘Convention compliant’ interpretive principle in cases raising human rights concerns. Hence where questions of interpretation arise it seems that the courts take the view that the intention of the Parliament that enacted the Human Rights Act in 1998 should generally prevail over the intention of a Parliament that enacted subsequent legislation (unless there are explicit words to the contrary and

4 5 6 7 8

See, eg, the commentary on A v UK (2003) 36 EHRR 51 in chs 1 and 2. Home Office, Rights Brought Home: The Human Rights Bill (Cm 3782, 1997). R v DPP, ex p Kebilene [2000] 2 AC 326, 375. T Bingham, ‘The Human Rights Act’ [2010] European Human Rights Law Review 568, 571. Home Office, Rights Brought Home (n 5) paras 2.7–2.8.

From the HRA 1998 to a Bill of Rights? 253 provided always that this does not destroy the overall objective of the legislation).9 This provision can be seen to underpin arguments that the 1998 Act is a ‘constitutional statute’.10 Where there is a clear conflict between primary legislation and the Convention, the 1998 Act provides at section 4(2) that ‘If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility’. Section 4(6) makes plain that such a declaration ‘does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given’; and ‘is not binding on the parties to the proceedings in which it is made’. At the time of writing, 27 such declarations had been made by the UK courts (some of which were overturned on appeal).11 Prior to the 1998 Act, there had been several attempts to incorporate the ECHR into UK law. Lord Lester of Herne Hill QC, a Liberal Democrat Peer, had introduced Bills in 1994 and 1996 and a Conservative, Sir Edward Gardner QC, introduced a Private Member’s Bill on incorporation into the House of Commons in 1987.12 Jack Straw, Labour Home Secretary when the Act was introduced, has suggested that in his ‘long experience of policy development in opposition’ he could think of ‘few measures to match the care invested in the proposals for incorporation’.13 He noted that human rights legislation had been ‘high on the agenda of the Cook/Maclennan talks between the Labour and Liberal Democrat parties’.14 These talks, chaired by Robin Cook and Robert Maclennan, had been established to consider common elements in their constitutional reform programmes. The Committee’s report could have led the way for more intensive joint working on the Constitution had Labour needed Liberal Democrat support in the Commons. In the event, Labour won an overall majority in the 1997 election and was able to legislate on such matters alone. In its White Paper, Rights Brought Home: The Human Rights Bill, the Labour Government took a fairly pragmatic view about incorporation, noting the practical benefits that it would bring. In particular, it argued that not only were the Convention rights not seen as British: enforcing them takes too long and costs too much. ... Bringing these rights home will mean that the British people will be able to argue for their rights in the British 9 See, eg, Ghaidan v Godin-Mendoza [2004] UKHL 30. See also, Lord Phillips of Worth Matravers, First Lord Alexander of Weedon Lecture, 19 April 2010, in which he argued that the courts have got away with this ‘creative interpretation’ of s 3 on the basis that ministers do not like declarations of incompatibility and as long as the main thrust of their legislation is not impared, they would rather that courts revise it than declare it incompatible with the Convention. 10 See, eg, Thoburn v Sunderland City Council [2002] EWHC 195 (Admin). 11 HC Deb 26 April 2011, col 2011; HC Deb 24 November 2011, col 573W. The first of these references contains a table of all the declarations made and the Government’s responses to them. 12 HC Deb 6 February 1987, cols 1223–31. 13 J Straw, ‘The Human Rights Act—Ten Years On’ [2010] European Human Rights Law Review 576, 578. 14 Ibid.

254 Alexander Horne and Lucinda Maer courts — without this inordinate delay and cost. It will also mean that the rights will be brought much more fully into the jurisprudence of the courts throughout the United Kingdom, and their interpretation will thus be far more subtly and powerfully woven into our law. And there will be another distinct benefit. British judges will be enabled to make a distinctively British contribution to the development of the jurisprudence of human rights in Europe.15

Then Prime Minister, Tony Blair, situated the initiative as part of Labour’s ‘comprehensive programme of constitutional reform’.16 Robert Blackburn has argued that while there may originally have been some idea of ‘a separate constitutional Bill of Rights’ the Government eventually decided to concentrate on what was ‘desirable and achievable in its first term of office’.17 The Act was well received by human rights advocates and non-governmental organisations (NGOs). Yet within 10 years, politicians were once again debating our rights culture and the Act was the subject of some intense criticism. It has been associated in the minds of many as a tool for protecting the rights of lawbreakers rather than the law-abiding. Politicians from both the left and the right have found themselves frustrated by decisions of the courts, most recently in the cases of the deportation of a terrorist suspect and the rights of prisoners in the UK to vote (the latter a decision of the Strasbourg Court). Such cases can be heard by the European Court of Human Rights with or without the domestic legislation. The Act makes such decisions more visible to the public, and in some cases less palatable to politicians who can appear powerless when under pressure to act. Looking back to the aims stated in the original White Paper, whilst the Convention rights could be said to have been ‘powerfully woven into our law’, the Human Rights Act 1998 has had much less success in terms of making the public, the media (or indeed many parliamentarians) feel that the rights are inherently our own. The Conservative-Liberal Democrat Coalition Government established an independent commission to consider whether there is a need for a Bill of Rights on top of, or perhaps instead of, the Human Rights Act. It has also taken the opportunity to propose reforms to the European Court of Human Rights (ECtHR) during its presidency of the Council of Europe. This chapter considers why the future of the Human Rights Act has been subject to such significant discussion, what a Bill of Rights could mean for the United Kingdom, and whether we are likely to see one emerge in the 2010 Parliament.

15

Home Office, Rights Brought Home (n 5). Ibid. 17 R Blackburn, ‘Parliament and Human Rights’ in D Oliver and G Drewry (eds), The Law and Parliament (London, Butterworths, 1998). 16

From the HRA 1998 to a Bill of Rights? 255 A. No Love Lost? Human Rights, Politicians and the Public The Human Rights Act has had a difficult infancy. Some in the press have branded it a “villains’ charter”, following suggestions that it had been abused by various litigants including prisoners, illegal immigrants and suspected terrorists.18 A few prominent politicians complained about high-profile decisions made by judges under the Act and distanced themselves from the legislation.19 Shami Chakrabarti, the Director of Liberty, has argued that ‘no modern Bill of Rights can have had such a testing infancy’.20 She has also said that: The two year preparation period (during which judges and lawyers were trained but the public not educated or informed about Convention rights) seemed to suggest some cooling feet on the part of government. This delayed and almost private implementation conspired with the War on Terror and attacks on legal aid (for all but the poorest and most desperate) to distort the emerging public human rights narrative as mediated by popular press. You seemed to have to be super-rich (protecting your privacy) or suspect (and seeking to avoid deportation or prison) to gain access to justice and actively invoke protection.21

The Society of Conservative Lawyers concisely summarised many of the publicly expressed objections when it contended that: The HRA itself is not working. A convention which was intended to protect ‘human rights and fundamental freedoms’ has become associated instead in the public mind, not without some justification, with dubious compensation claims, complaints about the trivial, the protection of lawbreakers rather than the law abiding majority, a transfer of decision making on economic and social policy to judges and the enrichment of lawyers. ‘Human rights’ claims feature significantly in compensation claims brought by prisoners, often for minor grievances.22

In 2006 Tony Blair complained that a judgment about a group of Afghans who had hijacked a plane was an ‘abuse of common sense’.23 The judgment was later upheld on appeal. There have been many other examples of politicians expressing 18 An example of this is the case notoriously cited by Theresa May at the Conservative Party conference in 2011 (where she alleged that a Bolivian student could not be deported because of human rights laws as he had a pet cat). See, eg, The Guardian, ‘Conservative Catflap: the Truth behind Maya and the Deportation Row’ (London, 4 October 2011). The story and subsequent public disagreement between the Home Secretary and the then Lord Chancellor overshadowed a serious debate, which emerged when the Daily Telegraph highlighted a large number of cases where (it claimed) illegal migrants and foreign criminals could not be deported as a result of the application of Art 8 of the ECHR (the right to family life). 19 See, eg, speech by Rt Hon Nick Herbert MP, ‘What Has Gone Wrong with Rights?’ (London, Policy Exchange, November 2012). 20 Liberty, Common Sense: Reflections on the Human Rights Act (n 3). 21 S Chakrabarti, ‘Human Rights or Citizen’s Privileges: The Great Bill of Rights Swindle’ (2012) 83(3) Political Quarterly 459. 22 Society of Conservative Lawyers, Response to Commission on Bill of Rights Discussion Paper (October 2011). 23 BBC Online, ‘Blair dismay over hijack Afghans’ (London, 10 May 2006) http://news.bbc.co.uk/1/ hi/uk/4757523.stm.

256 Alexander Horne and Lucinda Maer exasperation about the application of the Act by the courts. Such cases have fed concern that the courts are becoming more ‘activist’ and involved in dealing with ‘small p’ political questions that would previously have been settled by politicians and administrators. This creeping ‘juridification’ was not caused solely by the introduction of the 1998 Act (and indeed some would argue that it is a natural consequence of the increasing role of the state);24 but the Act (as well as subsequent equality legislation discussed below) seems to have acted as a catalyst for complaints. The Human Rights Act was supposed to ‘bring rights home’. Although the 1997 White Paper had explained that the ECHR rights had been ‘originally developed with major help from the United Kingdom Government’, they were ‘no longer actually seen as British rights’.25 However, the same criticism has been made of the Human Rights Act itself. As Jack Straw stated in an October 2007 speech: If you read certain newspapers you might be forgiven for thinking that human rights were an alien imposition foisted upon us by ‘the other’. It is a misconception that has regrettably taken root.26

The Human Rights Act is often associated in the public mind with bureaucracy and (incongruously) with Brussels.27 Some commentators have linked this lack of public understanding of human rights to the manner in which the legislation was introduced and implemented. Robert Hazell and Andrew McDonald wrote in 2009 that: Nine years on there is, inevitably, a new emphasis on implementation: it is one thing to establish new institutions and create new rights, but it is quite another to foster a new relationship between state and citizen. [Lord Chancellor between 1997 and 2003] Lord Irvine’s vision of empowered citizens living in an open, decentralised society cannot be realised by statutory draftsmen and policy makers in Whitehall. Citizens have to understand and learn to use their rights.28

There often appears to be significant tension between the principles of the supremacy of Parliament and the rule of law, exacerbated by commentary on the Act. This has resulted in friction between the judiciary on the one hand and the executive and Parliament on the other, in policy areas such as asylum, immigration and counter-terrorism (amongst others). Dawn Oliver addresses some of these concerns in chapter twelve on the sovereignty of Parliament. When he was still Shadow Attorney-General, Dominic Grieve QC noted that ‘an increasing

24 M Loughlin, Sword and Scales: An Examination of the Relationship between Law and Politics (Oxford, Hart, 2000) 108. 25 Rights Brought Home (n 5). 26 J Straw, Mackenzie Stuart Lecture (Cambridge University, 25 October 2007). 27 The European Court of Human Rights is not part of the machinery of the European Union, although it is often argued that withdrawal from the ECHR and the Council of Europe might be incompatible with continued membership of the EU. 28 A McDonald, Reinventing Britain: Constitutional Change Under New Labour (London, Politicos, 2007) 27.

From the HRA 1998 to a Bill of Rights? 257 trend toward judicial legislation, under the Human Rights Act, has created tension with elected lawmakers in Parliament’.29 In 2006, a government-sponsored review of the operation of the Act stated that it had been bedevilled by misconceptions and had sometimes been ‘misapplied’.30 The Conservatives have further argued that the current legislation has created a culture of ‘risk aversion’ among public authorities (raising similar concerns as have been raised about certain health and safety requirements).31 The Labour Government also acknowledged that a series of damaging myths about the Act had taken root in the popular imagination. In spite of this, then Lord Chancellor, Lord Falconer of Thoroton, concluded that: The impact of the Human Rights Act upon the development of UK law has been significantly less, and significantly less negative, than some predictions made for it from 1997 onwards.32

Statistics do not necessarily support the first part of this assertion. In 2009 (and after a detailed study of the petitions for leave to appeal heard by the then House of Lords) Shah and Poole observed that there had been a substantial increase in human rights claims before the courts. However, they noted that in spite of oft-heard complaints of ‘activism’, statistically the Appellate Committee of the House of Lords33 might be keen on hearing human rights cases, but it was ‘not particularly sympathetic in general to human rights claims’ as these cases had a low ‘win rate’34). The judiciary has also played a role in this political debate. Although the retention of the Human Rights Act and our relations with the European Court of Human Rights in Strasbourg have become a markedly contentious issue, some amongst the judiciary have not been slow to speak out in their favour. Following his retirement, Lord Bingham (in an article to mark the Act’s 10th anniversary in force), indicated that he did not ‘approach the Human Rights Act 1998 in an entirely neutral or objective spirit’. He stated that ‘I was in favour of the Act and remain so’.35 Serving judges have not felt constrained either—in a speech, ‘Is the Convention Ours?’, Lady Justice Arden said that ‘in my view human rights have made an important contribution to civil society in the United Kingdom’ and went on to argue (again in spite of the political controversy over the issue) that ‘in the

29 The Times, ‘Shadow Minister Calls for Power to be Given Back to the People’ (London, 9 July 2009). 30 Department for Constitutional Affairs, Review of the Implementation of the Human Rights Act (London, July 2006). 31 For an example of the way in which the name of the Act is ‘taken in vain by lazy officials’, see Straw, ‘The Human Rights Act—Ten Years On’ (n 13) 580. 32 Ibid. 33 The predecessor to the Supreme Court. 34 S Shah and T Poole, ‘The Impact of the Human Rights Act on the House of Lords’ [2009] Public Law 347, 371. They noted that only one in three of the human rights claims examined was won in the House of Lords. 35 Bingham, ‘The Human Rights Act’ (n 7).

258 Alexander Horne and Lucinda Maer great scheme of things, we all gain more than we lose by having the Strasbourg Court’.36 Nonetheless, even amongst the judiciary, these issues are clearly contested, as we shall see later in this chapter.

B. The Human Rights Act and the Role of the Judges Although there has certainly been a growing debate about the role of the judiciary and encroachment on the sovereignty of Parliament, this is not a new issue. When Sir Edward Gardner introduced his Private Member’s Bill to incorporate the ECHR into UK law in 1987 the Labour spokesman Nick Brown MP raised a concern as to whether the British judiciary, rather than ‘politically accountable representatives’ in the Commons, were best placed to arbitrate on matters of policy. ‘To allow the courts to question legislation’ would ‘throw the whole of the law into a state of uncertainty’.37 Such scepticism about the role of the judiciary (on the left) can also be traced back to the start of the welfare state when Bevan was said to have argued (after the election of the post-war Labour Government) that the discretionary powers increasingly conferred on ministers should not be troubled by judicial review since he wished to avoid ‘judicial sabotage’ of socialist legislation.38 While many on the left of the political spectrum have been more supportive of the 1998 Act, Conor Gearty has highlighted the fact that concerns over the role of the judges have not gone away, arguing that while many of our current judges are widely admired individuals: [T]hese men and women are judicial rather than political personalities. Their views as to what is an egregious human rights breach or as to what is right or wrong are just that— views. We might trust them, just as they trust themselves—but this does not make the jurisdiction they are claiming one that is right.39

Reflecting on the 1998 Act, Lord Bingham acknowledged the changing nature of judicial decision-making: The difference between judicial decision-making in human rights cases as compared with others lies in the nature of the decision to be made. It was recognised when the Human Rights Bill was going through Parliament that British judges would be called on under the Act to make judgments of a more ‘evaluative’ kind, and this has proved to be the case.40

36 M Arden, ‘Is the Convention Ours?’ (seminar to mark the official opening of the judicial year, 8 January 2010). 37 HC Deb 6 February 1987, col 1278. 38 John Griffith argues that Bevan himself thought this quote was exaggerated and that Lord Reid had ‘monstrously misconstrued’ what he said. J Griffith, Judicial Politics since the 1920s (Oxford, Blackwell, 1993) 80. 39 C Gearty ‘Are Judges Now Out of their Depth?’ (JUSTICE Tom Sargant memorial annual lecture, October 2007). 40 Bingham (n 7).

From the HRA 1998 to a Bill of Rights? 259 The response to this changing role has been mixed. In 2010, former Lord Chancellor, Jack Straw, referred to the safeguard of section 4 of the 1998 Act as a ‘highly satisfactory result’ which assuaged the ‘fundamental anxiety that the courts might trump the will of Parliament’.41 Others have been less sanguine. The judiciary itself has been somewhat conflicted about the extent that it is involved in law-making. This is hardly a new question and was famously explored by Lord Reid in the 1970s when he dismissed the myth that judges did not make the law, with the well known line: those with a taste for fairy tales seem to have thought that in some Aladdin’s cave there is hidden the Common Law in all its splendour and that on a judge’s appointment there descends upon him knowledge of the magic words Open Sesame.42

These issues have moved on significantly, since the judiciary is now far more active in the political sphere. Prior to his elevation to the Supreme Court, Jonathan Sumption QC (as he then was) gave a lecture in which he expressed some concern about how far judicial review could go before it trespassed on the proper function of government and the legislature in a democracy.43 Sumption’s conclusions were violently rejected by Sir Stephen Sedley, who argued, in an article published by the London Review of Books, that ‘the courts go to considerable lengths to respect the constitutional supremacy of Parliament’ and that when public law intervenes it is to shackle the executive: ‘because executive government exercises public powers which are created or recognised by law and have legal limits that it is the courts’ constitutional task to patrol’.44 Nonetheless, elsewhere, Sir Stephen has recognised that ‘the courts are one of many locations in which politics are conducted’. He has previously warned that there is every reason to suspect that the introduction of a Bill of Rights would ‘shift a further tranche of political power to the judiciary’, arguing that under such a model (and indeed under the European Convention on Human Rights and the Canadian Charter of Rights) the criterion of what is ‘justifiable in a democratic society’ illogically transfers to an unelected judiciary the final say as to whether what an elected legislature has done is consistent with democracy.45 In a thoughtful contribution on the issue, Lord Justice Etherton considered the impact of the Human Rights Act on judicial decision-making, suggesting that what has changed with the Act ‘are the size and importance of the gaps, left

41 42

Straw (n 13) 578. Lord Reid, ‘The Judge as Lawmaker’ (1972) 12 Journal of the Society of Public Teachers of Law

22. 43 J Sumption, ‘Judicial and Political Decision Making: The Uncertain Boundary’ (FA Mann Lecture, November 2011), also at [2011] Judicial Review 301. 44 S Sedley, ‘Judicial Politics’ (2012) 34(4) London Review of Books 15, http://www.lrb.co.uk/v34/ n04/stephen-sedley/judicial-politic. 45 S Sedley, Ashes and Sparks: Essays on Law and Justice (Cambridge, Cambridge University Press, 2011) 288.

260 Alexander Horne and Lucinda Maer unfilled by common law precedent, where the personal outlook of judges and their political role feature much more prominently’.46

II. THE INTERACTIONS BETWEEN THE STRASBOURG COURT, DOMESTIC COURTS AND POLITICIANS IN THE UK

The fact of the matter is that the European Court of Human Rights exercised jurisdiction in cases from the UK long before the Human Right Act was passed. However, critics of the Human Rights Act often conflate their disapproval of certain judgments from the European Court of Human Rights with their condemnation of the 1998 Act. An obvious example of this is the case of prisoner voting.

A. The Prisoner Voting Issue In the UK, prisoners serving a custodial sentence do not have the right to vote.47 Successive governments have held the view that prisoners convicted of serious crimes which have warranted imprisonment have lost the moral authority to vote. However, in October 2005 the Grand Chamber of the European Court of Human Rights found in the case of Hirst48 that the UK’s blanket ban on all serving prisoners from voting contravened Article 3 of Protocol No 1 of the European Convention on Human Rights. The UK has yet to fully address this judgment. The Prime Minister, David Cameron, has declared that it made him ‘physically ill even to contemplate having to give the vote to anyone who is in prison’.49 A debate in the House of Commons in February 2011, initiated by the former shadow Home Secretary David Davis on the Conservative benches, and Jack Straw on the Labour benches, resulted in the Commons passing a motion which supported the continuation of the current ban by 234 to 22.50 The issue was subsequently considered again by the European Court of Human Rights in a separate case (Scoppola v Italy (No 3)).51 The Court accepted the principle that member states should have a wide discretion in how they regulate the ban on prisoners voting; however, it also confirmed its view against a blanket ban on prisoners voting. On 22 November 2012, the Lord Chancellor, Chris Grayling, stated that the Government would lay a draft Bill on the issue for parliamentary scrutiny noting

46 T Etherton, ‘Liberty, the Archetype and Diversity: a Philosophy of Judging’ [2010] Public Law 727, 740. 47 They are disqualified under s 3 of the Representation of the People Act 1983 as amended by the Representation of the People Act 1985. 48 Hirst v the United Kingdom (No 2) [2005] ECHR 681. 49 HC Deb 9 November 2010, col 921. 50 HC Deb 10 February 2011, col 584. 51 Scoppola v Italy (No 3) [2012] ECHR 868.

From the HRA 1998 to a Bill of Rights? 261 that the Government ‘was under an international law obligation to implement the Court judgment’. Nonetheless, he also reiterated the fact that parliamentary sovereignty meant that Parliament could, if it chose to, legislate contrary to fundamental principles of human rights and that it was ultimately for Parliament to determine what it wanted to do. The draft Bill set out three options, including a restatement of the current law that had been found unacceptable in Strasbourg.52 At the time of writing, it was reported that the UK had been given time to come forward with legislative measures, and that the Committee of Ministers of the Council of Europe would not revisit the issue until September 2013.53

B. Strasbourg and Sovereignty The Strasbourg Court could have considered a case such as Hirst even if the Human Rights Act had not been passed: the existence of the Act is not responsible for the clash between the UK and the Court. Certain other difficult cases, such as Chahal v UK (which precludes the UK deporting terror suspects where there is a risk that they would be tortured) were decided prior to the passage of the 1998 Act and would still operate irrespective of the approach of the domestic courts or the passage of a UK Bill of Rights. Moreover, complainants could still go to Strasbourg (whose judgments the UK would be bound to implement under international law,54 unless the UK chose to remove itself from the jurisdiction of the European Court of Human Rights).55 Whilst the UK courts do not have the power to strike down primary legislation passed by the UK Parliament, and thus the legislative supremacy of the UK Parliament is theoretically preserved, the role of the European Court of Human Rights may be seen to interfere with sovereignty in the international law sense. If the UK courts were to find a violation and the Government failed to respond, a claimant could then take the case to Strasbourg. Assuming that the European Court of Human Rights found against the UK Government, then under international law, the UK Government would be bound to rectify the situation (perhaps by securing the passage of legislation by the UK Parliament). The recent cases involving prisoner voting and the proposed deportation of terror suspect Abu Qatada have demonstrated the controversy that this can cause.

52

HC Deb 22 November 2012, cols 745–47. The Guardian, ‘Votes for Prisoners: UK Told it Must Implement ECHR Decisions’ (London, 10 December 2012). 54 Art 46 of the ECHR provides that ‘the High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are a party’. 55 An option recently proposed by Rt Hon Nick Herbert MP, in a speech ‘What Has Gone Wrong with Rights?’ (London, Policy Exchange, November 2012). 53

262 Alexander Horne and Lucinda Maer This issue is exacerbated by the fact that the human rights jurisprudence is ever expanding. Former Law Lord, Lord Hoffmann, has contended that: As the case law shows, there is virtually no aspect of our legal system, from land law to social security to torts to consumer contracts, which is not arguably touched at some point by human rights. But we have not surrendered our sovereignty over all these matters.56

It is this potential growth of what are seen as fundamental rights that is so politically contentious.57 Effectively, what is being argued is that by expanding our notion of what amounts to a breach of human rights we are making almost all decisions open to challenge by the courts (and perhaps more worryingly, restricting politicians’ freedom of action in areas where the general public may not feel that fundamental rights are at stake). This has clear implications for the executive and for the UK Parliament. Dominic Raab has contended (in a book published prior to his election to Parliament as a Conservative Member) that the incorporation of Strasbourg case law directly into UK law was part of a wider strategy to promote ‘a vision of social justice through the spread of human rights’.58 There certainly seems to be a feeling amongst commentators on the right of the political spectrum that left-wing governments are not averse to elevating political ideology into ‘rights’ in order to entrench them and place them beyond political debate. Closely aligned with these arguments is the issue of whether the domestic courts ought to slavishly follow the decisions of the Strasbourg Court, or allow domestic circumstances to influence their approach. It appeared that the House of Lords had settled this question in the case of Ullah59 when Lord Bingham famously observed that: The duty of the national court is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.

Some subsequent judgments appeared to confirm the fact that the domestic courts would feel obliged to follow judgments of the Grand Chamber of the European Court of Human Rights60 so that their interpretation of Acts of Parliament might be said to become less influenced by the original intentions of Parliament and more by the requirements of the Strasbourg Court. Nonetheless, the situation is not entirely clear-cut. It certainly appears to be the case that: where Strasbourg has not yet spoken its final word and the domestic Court wishes to urge it to reconsider the issue or have regard to matters which have previously not been given sufficient attention, it may ask Strasbourg to revisit the question.61 56 Lord Hoffmann, ‘The Universality of Human Rights’ (Judicial Studies Board Annual Lecture, 19 March 2009). 57 One oft cited example of this is the decision of the Strasbourg Court in Hatton v United Kingdom (2003) 37 EHRR 611, a case about night flights (which was subsequently overturned by the Grand Chamber). 58 D Raab, The Assault on Liberty (London, 4th Estate, 2009) 123. 59 R v Special Adjudicator, ex p Ullah [2004] UKHL 26. 60 Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28. 61 Lord Irvine, ‘A British Interpretation of Convention Rights’ (Bingham Centre for the Rule of Law, 14 December 2011) and see, eg, R v Horncastle [2009] UKSC 14.

From the HRA 1998 to a Bill of Rights? 263 This debate over who has the final word on rights in the judicial context may not be directly comparable to the concerns about sovereignty expressed by politicians. No doubt proponents of the 1998 Act would argue that there is a distinction between the domestic courts having a ‘dialogue’ with the Strasbourg Court and politicians seeking to resist rulings that they do not like. That said, it is interesting to see that difficulties can arise over whose interpretation should prevail and what principles of interpretation apply.62 Irrespective of that question, there appears to be growing pressure for a different approach to be taken to section 2(1) of the Human Rights Act. Former Lord Chancellor, Derry Irvine, recently observed that: The meaning of the provision is clear. The Judges are not bound to follow the Strasbourg Court: they must decide the case for themselves. This interpretation is confirmed by the Parliamentary and legislative history.63

This approach to section 2 of the Act has been supported by Jack Straw, who has argued that the section ‘actually meant to “take account” of Convention jurisprudence, not necessarily to follow it in every particular case. If ministers had intended s.2 to use the verb “follow” we would have done so’.64 These arguments appear to be gaining some critical mass65 and also tie in neatly with discussions about the ‘margin of appreciation’ that ought to be allowed to Council of Europe states when interpreting and applying the Convention, which is discussed further below.

III. TOWARDS A ‘BRITISH’ BILL OF RIGHTS?

The Human Rights Act was intended to be a ‘floor not a ceiling for human rights’ and as such, there has been a lively debate over the last 15 years as to whether there is any requirement to bolster its provisions. Others have argued that instead the legislation needs to be superseded by an alternative Bill of Rights which might constrain the actions of the judiciary. Some papers on the subject have sought to grapple with the traditional arguments around positive and negative liberty. In his 1958 essay, ‘Two Concepts of Liberty’, Isaiah Berlin had characterised these two senses of freedom as follows: The first of these political senses of freedom or liberty ... I shall call the ‘negative’ sense, is involved in the answer to the question ‘What is the area within which the subject—a person or group of persons—is or should be left to do or be what he is able to be without interference from other persons?’ The second, which I shall call the positive sense,

62 See, eg, B Dickson, ‘The Record of the House of Lords in Strasbourg’ (2012) 128 Law Quarterly Review 354. 63 Lord Irvine, ‘A British Interpretation of Convention Rights’ (n 61) and Manchester City Council v Pinnock [2010] UKSC 45, [2011] AC 104, [48]. 64 Straw (n 13) 581. 65 See also Lord Kerr, ‘The UK Supreme Court: The Modest Underworker of Strasbourg’ (The Clifford Chance Lecture, 25 January 2012).

264 Alexander Horne and Lucinda Maer is involved in the answer to the question ‘What, or who, is the source of control or interference that can determine someone to do, or be, this rather than that’.66

These two concepts are sometimes characterised as being ‘freedom from’ and ‘freedom to’. Often, advocates for the 1998 Act posited the introduction of further economic, social and environmental rights and rights for children, or explored how rights could be ‘entrenched’ given Britain’s particular parliamentary system in which one Parliament is taken not to be able to bind its successor.

A. Rights and Responsibilities In July 2007, just days after Gordon Brown became Prime Minister, the Government published a Green Paper entitled The Governance of Britain. While it contained a wide range of proposals, one of the issues that it addressed was ‘the idea of developing a list of the rights and obligations that go with being a member of our society’. In particular, it went on to highlight the idea that: A British Bill of Rights and Duties could provide explicit recognition that human rights come with responsibilities and must be exercised in a way that respects the human rights of others. It would build on the basic principles of the Human Rights Act, but make explicit the way in which a democratic society’s rights have to be balance by obligations.67

The Conservative Party could also be seen to be formulating plans in this area. In a speech entitled ‘Balancing Freedom and Security: A Modern British Bill of Rights’ delivered in 2006, David Cameron argued that while ‘some of the direct consequences of the Human Rights Act have been positive ones [...] there are a wide range of areas in which the Human Rights Act has made the fight against crime harder’. He went on to propose a ‘modern British Bill of Rights that also balances rights with responsibilities’. This issue of balancing rights with responsibilities dominated the debate for much of the rest of the Parliament.68 The Commission on the Bill of Rights, established by the Coalition Government, summarised different possible approaches to the inclusion of responsibilities in a new rights instrument. For example, responsibilities could be declaratory (such as a general duty to society), or they could have legal effect (for example, as an obligation to vote, or to take part in community service). The enjoyment of certain rights could be made conditional upon their not being abused or made subject to exceptions such as the protection of rights and freedoms of others.69

66 See I Berlin, ‘Two Concepts of Liberty’ (1958) in I Berlin, Four Essays on Liberty (Oxford, Oxford University Press, 1969). 67 Ministry of Justice, The Governance of Britain (Cm 7170, 2007) para 209. 68 See, eg, E Metcalfe, ‘Rights and Responsibilities’ (2007) 4(2) JUSTICE Journal 41. 69 Commission on a Bill of Rights, A Second Consultation (July 2012) 17–18.

From the HRA 1998 to a Bill of Rights? 265 B. ‘Britishness’ As well as emphasising responsibilities, debate also focused on how rights culture could be used to bolster a positive image of ‘Britishness’ at a time of national change and uncertainty. Francesca Klug has written that: The strongest case for adopting a British Bill of Rights in this period of ongoing debate on our national identity is that we have no document with the equivalent symbolism of the American or South African Bills of Rights to turn to at times of national tension.70

Gordon Brown often addressed the themes of ‘Britishness’ and ‘British values’, both as Chancellor of the Exchequer and as Prime Minister. As well as mooting a British Bill of Rights, Governance of Britain had proposed that a British Statement of Values should be developed. The interest in ‘Britishness’ could be attributed to a number of factors which were particularly in the consciousness of both politicians and the public at the time. These included the impact of multiculturalism on British society and the headway gained by the far right, with the first election of British National Party members to the European Parliament in 2009. In addition, pressure for Scottish independence (and the success of nationalist parties in Scotland and Wales elections) and the continued salience of the West Lothian question71 may have played on the mind of a Scottish Prime Minister. Lastly, there was an idea that British Human Rights could be used to bring people together against the threat of so called ‘home-grown terrorism’ following the July 2005 London bombings. In his 2006 speech to the Labour Party conference, Gordon Brown argued that: We the British people must be far more explicit about the common ground on which we stand, the shared values which bring us together, the habits of citizenship around which we can and must unite. Expect all who are in our country to play by our rules. And while we do not today have a written constitution it comes back to being sure about and secure in the values that matter: freedom, democracy and fairness … And let us reaffirm the truth, that as individual citizens of Britain we must act upon the responsibilities we own each other as well as our rights.72

However, these statements raised obvious questions as to whether any rights could be considered as particularly British. Indeed the term ‘British’ is not itself a concept recognised by some of those residing in the different nations and regions of the UK.

C. Rights and Devolution The question of a British Bill of Rights also raises a series of questions about the devolution settlement. The Northern Ireland Human Rights Commission was 70

F Klug, ‘A Bill of Rights: Do We Need One or Do We Already Have One?’ [2007] Public Law

718. 71 72

See discussion in ch 8. Gordon Brown’s speech to the Labour Party conference (Manchester, 25 September 2006).

266 Alexander Horne and Lucinda Maer established in 1999 by the Northern Ireland Act 1998. Amongst its duties it is specifically charged with giving advice to the Secretary of State for Northern Ireland on what should be in a Bill of Rights for Northern Ireland. The Belfast (Good Friday) Agreement stated that the Bill of Rights should reflect on the particular circumstances of Northern Ireland, drawing on international instruments and experience. The Northern Ireland Human Rights Commission delivered advice on a Bill of Rights for Northern Ireland in December 2008. Although the Northern Ireland Office subsequently undertook a public consultation, little progress has been made towards the adoption of a new rights instrument.73 As referenced above, the notion of ‘Britishness’ involved in any repackaging of the Human Rights Act could also be difficult. Margaret Beirne has explained that: Devolution has built into the various constitutional arrangements explicit reference to the European Convention. In Northern Ireland, these constitutional arrangements are further copper-bottomed in an international treaty with the Irish Republic. Tampering with the Convention, or its outworkings in the form of the Human Rights Act, risks unravelling hard won political and constitutional battles in devolved territories. Indeed, I might even suggest that a fixation on a one-size fits all model adds further fuel to an unravelling of the UK itself. It is the English (rather than the Scots or Irish) who are ‘anti-European’; and the Tories speak warmly of both Magna Carta and the 1689 Bill of Rights, apparently forgetting that both are English rather than UK documents. Those eager to safeguard the union should surely show greater respect for the different cultural and political histories of these islands.74

The devolution settlement with Scotland raises further legal issues. Under section 29(2)(d) of the Scotland Act 1998, the Scottish Parliament does not have the power to pass legislation which is incompatible with the European Convention on Human Rights; if it were to do so the courts would have the power to strike it down.75 This differs from the situation where the courts can only find legislation of the Westminster Parliament to be incompatible with the Human Rights Act. It is not clear whether a Bill of Rights for the UK would operate in the courts in the same way as the Human Rights Act both for the UK and for Scotland. But consideration would need to be given to the need to amend the Scotland Act to refer to a new Bill of Rights. There are further questions about whether the inclusion of any social and economic rights would have any impact on the ability of Scotland to legislate in devolved policy areas such as health and education.

73 The Northern Ireland Human Rights Commission has published a discussion document, Is that Right? Fact and Fiction on a Bill of Rights, which provides details on the debate underway in Northern Ireland. 74 M Beirne, ‘Human Rights or Citizen’s Privileges: The Great Bill of Rights Swindle: a Response to the Lecture by Maggie Beirne’ (2012) 83(3) Political Quarterly 467. 75 See AXA General Insurance Ltd & ors v The Lord Advocate & ors [2011] UKSC 46.

From the HRA 1998 to a Bill of Rights? 267 D. Economic and Social Rights Although this is not the place for an extensive discussion of the subject of economic and social rights,76 discussions on what, if anything, should replace or be added to the Human Rights Act often consider whether such rights should be included. The Governance of Britain Green Paper noted that if additional rights were to be added to the Human Rights Act in a Bill of Rights: we would need to be certain that their addition would be of real benefit to the country as a whole and not restrict the ability of democratically elected Government to decide upon the way resources are to be deployed in the national interest.77

This is an issue that has been considered recently by Parliament. The JCHR tackled the question during its inquiry into whether there should be a new Bill of Rights (discussed further below). It was a particularly contentious area of debate. The Committee took the view that it was particularly controversial since: [T]he debate is an outcrop of often deeply submerged but sincerely held differences between reasonable people about the most fundamental questions of political philosophy, including the nature of liberty and the appropriate role of the State in preventing inequality.78

In addition to the profound issues about democratic legitimacy, opponents of the introduction of fully justiciable economic and social rights also argue that Parliament and the government must retain the primary responsibility for policy in this area, since courts lack substantial expertise and have limited institutional authority. Thus, even the generally sympathetic JCHR acknowledged the difficulty with justiciable economic and social rights, concluding, amongst other things, that: It would not be constitutionally appropriate, in our view, for example, for the courts to decide whether a particular standard of living was ‘adequate’, or whether a particular patient should be given priority over another to receive life-saving treatment.79

E. Ownership of a Bill of Rights Some commentators have linked the lack of public understanding of human rights to the manner in which the Human Rights Act 1998 was introduced into

76 See, eg, D Barak-Erez and AM Gross (eds), Exploring Social Rights: Between Theory and Practice (Oxford, Hart, 2007) and E Palmer, Judicial Review, Socio-Economic Rights and the Human Rights Act (Oxford, Hart, 2009). 77 Ministry of Justice, The Governance of Britain (n 67) para 209. 78 Joint Committee on Human Rights, A Bill of Rights for the UK (2007–08, HL 165-I, HC 150-I) para 147. 79 The Committee instead favoured a hybrid approach to such rights, which would recognise them in a way that was more than merely aspirational, but not render them strictly enforceable as ‘minimum standards’. See Joint Committee on Human Rights, A Bill of Rights for the UK (n 78) para 181.

268 Alexander Horne and Lucinda Maer Parliament and implemented. Francesca Klug has written that, ‘the reality is that the Act has never been sufficiently “owned” by British people as “their bill of rights”’. First amongst the reasons she gives for this was that the HRA 1998 appeared ‘like a bolt out of the blue to most people’ with little public consultation or discourse on the issue.80 In a February 2007 paper, JUSTICE argued that public education and consultation had to be a key part of any new Bill of Rights in order to ‘obtain public awareness and consensus over its content’, suggesting a Bill of Rights in its final form would need to be confirmed by a referendum.81 The JCHR set out what it considered to be the ‘minimum requirements’ of any process of drawing up a Bill of Rights for the UK. These requirements were: — —

—

— —

that children and other hard to reach groups should be included, potentially through a number of different processes run in tandem; that the consultation process should be deliberative—it would not be sufficient for people to be asked for their views once without any prior opportunity for thought and reflection; that the process should be independent of government in order to command public and political confidence. An existing specialist body or an ad hoc committee should be appointed to conduct the consultation process and make recommendations to government; that a time period of six months to one year should be allowed for consultation to take place; and that the process should be adequately resourced; and, that the Government should set out its position at the outset on a key range of issues in order to be clear about what is realistically achievable.82

In the Governance of Britain Green Paper, the Labour Government set out a process of consultation on a British Statement of Values and Bill of Rights which would include the release of a series of discussion documents and materials to inform the national debate; tapping into the knowledge of expert and representative groups; local, regional and national level events and opportunities for deliberation and debates; engagement methods which might include citizens’ juries, deliberative polling and electronic- and media-based outreach. A ‘citizens’ summit’ to ‘formulate the British Statement of Values’ was announced by the Prime Minister to be ‘composed of a representative sample of the British people’. A Green Paper, Rights and Responsibilities: Developing our Constitutional Framework, was published in March 2009 which again stated an intention: to involve all parts of our country and society in discussions both about the fundamental arguments for and against such a Bill of Rights and Responsibilities of any such Bill. Full

80 81 82

Klug, ‘A Bill of Rights’ (n 70) 713. JUSTICE, A Bill of Rights for Britain: A Discussion Paper (London, 2007) 4. Joint Committee on Human Rights, A Bill of Rights for the UK? (n 78) paras 327–54.

From the HRA 1998 to a Bill of Rights? 269 consultation and debate about such a constitutional development will inevitably take some time. It cannot be the property of one Parliament and one Government.83

The consultation process which followed seemed to stop short of achieving a national debate. A website was set up which hosted online discussion forums on elements of the consultation, and the Ministry of Justice used social media to attempt to engage a wider range of people than might usually respond to their consultations. A series of deliberative events were held. A young person’s guide to rights and responsibilities was published, as was an easy-read guide to the Green Paper. The summary of responses stated that the consultation process reached in the region of 2500 individuals through these methods, including 123 written submissions. However, the financial crisis which began in the summer of 2007 and the expenses crisis which engulfed the House of Commons in 2009 instead became the predominant political stories which demanded a response from the Government. There were calls for a citizens’ assembly by the Liberal Democrats and the pressure group Unlock Democracy, but they hoped such an assembly would consider a range of constitutional issues rather than simply a new Bill of Rights.84

F. Will the Coalition Deliver a Bill of Rights? The three main political parties all went into the election with promises on human rights, but with very different commitments. The Labour Party committed itself to establishing a Commission ‘to chart a course to a written constitution’. Rather than pledging to introduce a new Bill of Rights, the Labour Party argued that ‘We are proud to have brought in the Human Rights Act, enabling British citizens to take action in British courts rather than having to wait years to seek redress in Strasbourg. We will not repeal or resile from it’.85 It was the two parties which entered into Government which explicitly mentioned introducing a new Bill of Rights, and these two parties had proposals which seemed irreconcilable. The Conservative Party election manifesto stated that: To protect our freedoms from state encroachment and encourage greater social responsibility, we will replace the Human Rights Act with a UK Bill of Rights.86

83 Ministry of Justice, Rights and Responsibilities: Developing our Constitutional Framework (Cm 7577, 2009) para 5.3. 84 Eg, the Citizens Convention Bill 2006–07 was introduced as a Private Members Bill by the Liberal Democrat Member, Julia Goldsworthy. This was followed in the 2007–08 Session by the introduction of the Citizens Convention (Ethics and Accountability) Bill 2007–08 by the Labour Member Martin Caton. The then leader of the Liberal Democrats, Sir Menzies Campbell, called for a Citizens Convention in an article in the Guardian newspaper: The Guardian, ‘A Rescue Plan for Politics’ (London, 6 September 2007). 85 Labour Party, A Fair Future for All (2010). 86 Conservative Party, Invitation to Join the Government of Britain: The Conservative Manifesto 2010 (April 2010).

270 Alexander Horne and Lucinda Maer Prior to the election campaign, it was reported in a local newspaper that David Cameron had said: We’ve said we’ll scrap the Human Rights Act, which has put our police in the ridiculous position of trying to tackle the most serious crimes without putting the faces of the most wanted criminals on posters, and made it incredibly difficult for the government to deport people who they know to be threat. Instead, what we need is a modern British Bill of Rights which clearly sets out people’s rights and responsibilities, and strengthens our hand in the fight against terrorism and crime.87

By contrast, the Liberal Democrats took the view that it was necessary to ‘actively promote greater public understanding of the rights that people already enjoy’. The party’s election manifesto promised to ‘Ensure that everyone has the same protections under the law by protecting the Human Rights Act’.88 With the Conservative Party returning the largest number of Members to Parliament in 2010, but with no overall majority, a coalition between the Conservative and Liberal Democrats was formed. This means that neither party’s vision for the future of the Act is likely to be realised during this Parliament. After the formation of the Coalition, Lord McNally, the Liberal Democrat Minister of State at the Ministry of Justice, went as far as saying that: ‘if at the end of this Government’s term there was no Human Rights Act, there would be no Tom McNally’.89 The answer to this potential political impasse was the establishment, in March 2011, of a Commission on a Bill of Rights. The remit of the Commission was to: investigate the creation of a UK Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in UK law, and protects and extend our liberties.

The immediate response was a prediction of ‘deadlock’, given the Committee’s even split between supporters and sceptics of the Act.90 Perhaps unsurprisingly, the Commission was unable to agree on a central conclusion in its December 2012 report: a majority of the members of the Commission, including the Chair, believe that, on balance, there is a strong argument in favour of the UK Bill of Rights. Two members of the Commission … do not share this view.91

87 UK Supreme Court Blog, Rights, Responsibilities and the Repeal of the Human Rights Act (25 January 2010) http://ukscblog.com/rights-responsibilities-and-the-repeal-of-the-human-rights-actcontinued-updated. 88 Liberal Democrat manifesto 2010 (April 2010). 89 HL Deb 7 October 2010, col 217. 90 The Guardian, ‘Deadlock Likely on Commission Pondering a British Bill of Rights’ (London, 18 March 2011). 91 Commission on a Bill of Rights, A UK Bill of Rights? The Choice before us (December 2012) para 78.

From the HRA 1998 to a Bill of Rights? 271 The majority on the Commission, however, noted that it was the lack of ‘ownership’ of the UK’s rights framework by the public which produced the most powerful argument in favour of a UK Bill of Rights. However, some of the Commission’s members found themselves ‘surprised’ by the ‘strong degree of opposition’ they encountered to proposals to create a UK Bill of Rights ‘particularly in Scotland but also in Wales and from some in Northern Ireland’.92 They concluded that any future debate on a UK Bill of Rights would need to be ‘acutely sensitive’ to the issues of devolution, and that it would be ‘essential’ to wait for the outcome of the referendum on Scottish independence before moving towards any final decisions. The two commissioners who dissented from the central conclusion in favour of a UK Bill of Rights were Helena Kennedy QC and Philippe Sands QC. They argued that the majority on the Commission had not identified any shortcomings in the Human Rights Act or its application by the courts. Instead of recommending a Bill of Rights, they suggested that it would be preferable to leave open the possibility of a number of options which could be addressed by a future constitutional convention. They argued that any premature move towards a UK Bill of Rights might have unintended consequences for the devolution debate currently underway. They also noted that the responses to the Commission’s consultation had been overwhelmingly in support of the current Human Rights Act. Lastly, they expressed concern that some of those on the Commission had sought to move the UK towards decoupling from the European Convention on Human Rights. Commissioners, Lord Faulks QC and Jonathan Fisher QC, argued that ‘a key issue’ had not been adequately considered by the Commission, or reflected in its terms of reference, because the Commission had been required to proceed on the assumption that the UK was to remain a member of the Convention. They contended that this restricted the consideration of how the UK ‘should respond to the judicially activist approach taken by the European Court of Human Rights’.93 The Commission had lost one of its original members in March 2012. Michael Pinto-Duschinsky had explained his reasons for resigning from the Commission in an article in The Guardian newspaper where he criticised the Commission for failing to properly consider parliamentary sovereignty in sufficient detail. He wrote that: I believe there must be checks and balances when it comes to the powers of judges over matters relating to issues of public policy—issues which arise frequently when it comes to judicial interpretation of the broad terms contained in human rights conventions. Unlike Lord Lester, I do not believe that the Human Rights Act (HRA) leaves parliamentary sovereignty ‘unaffected’. And unlike some, I believe that majoritarian democracy provides the best overall guarantees of the rights of minorities.

92 An advisory panel to the Commission was established on issues arising in relation to Scotland, Wales and Northern Ireland. Members were nominated by the executives of Scotland and Wales, but not Northern Ireland. 93 Commission on a Bill of Rights, A UK Bill of Rights? The Choice before us (n 91) 182.

272 Alexander Horne and Lucinda Maer Though the independent exercise of the rule of law is essential, and though conflict between judges and legislators is inevitable, judicial policy making must be subject in exceptional cases to the consent of the people; in other words to democratic override.94

One interesting argument raised by Pinto-Duschinsky is that when reform of the Human Rights Act is considered, the vast majority of informed contributions come from lawyers (and academics and NGOs) who work in the field who, it is argued, are instinctively in favour of the Act and who ‘often dominate official discussions’.95 The Commission’s membership itself was dominated by Queen’s Counsel. Back in 2000, Costas Douzinas argued that ‘law making in the huge business of human rights has been taken over by government representatives, diplomats, policy advisors, international civil servants and human rights experts’ and that ‘this is a group with little legitimacy’.96 This of itself is a problem when extremely polarised views are expressed between, on the one hand, ‘experts’ who can cite complex legal precedent and international law, and on the other side, sceptics, who feel that something is going wrong, but cannot necessarily engage in the necessary technocratic terms. While there has been some movement in this area and serious constitutional questions around sovereignty have been raised by Lord Hoffmann and Pinto-Duschinsky, amongst others, it is unlikely that the debate will move forwards significantly when the press simplifies the issues (often erroneously) and conflates concerns about sovereignty and who should have the final word on human rights issues with more general anti-European/Eurosceptic commentary. Along with publishing two consultation papers which together elicited substantive responses from over a thousand organisations and individuals,97 the Commission held meetings with a number of groups and individuals across the UK and has held three seminar-style events. Of these seminars, two were largely with academics and legal practitioners and the third was with community representatives and practitioners. Nonetheless, it was apparent from the Commission’s official minutes that resource constraints, including the Commissioners’ time, secretariat support and budget impacted on its ability to consult with the public. The Commission’s final report addressed the matter of public consultation, arguing that ‘there is a key question of whether a final decision on a UK Bill of Rights should only be made as part of a wider constitutional debate and public consultation’.98

94 The Guardian, ‘Commission Must not Compromise by Recommending Bill Identical to HRA’ (London, 13 March 2012). 95 M Pinto-Duschinsky, ‘Bringing Rights Back Home: Making Human Rights Compatible with Parliamentary Democracy in the UK’ (London, Policy Exchange, 2011) 73. 96 C Douzinas, The End of Human Rights (Oxford, Hart, 2000) 119. 97 The first consultation paper was published in August 2011, the second in July 2012. 98 Commission on a Bill of Rights (n 91) para 64.

From the HRA 1998 to a Bill of Rights? 273 Whilst the public appear to identify the implementation of Human Rights Act itself as a problem, it is not clear that they believe the answer to this would be to introduce a Bill of Rights. The Hansard Society’s 2008 Audit of Political Engagement found that the most popular priority for constitutional change was ‘how the Human Rights Act works in practice’.99 However, this did not appear to transfer into a desire to see a British Bill of Rights with 63 per cent effectively neutral on whether or not they were satisfied with the status quo.100 Only 14 per cent made ‘not having a new Bill of Rights’ their priority issue. Research by the previous government ‘revealed levels of support, with particular reference to the awareness-raising opportunities, suggestive of a lack of understanding of what rights already exist’.101 In any case, the ranking of constitutional reform as an issue of importance is questionable, given the economic downturn (which has appeared to push the matter down the agenda). The Conservative Party has abandoned Lords reform arguing that the public do not want to see Parliament bogged down in an issue with minority interest at this time. The 2011 referendum on the electoral system achieved just a 42 per cent turnout, and the Government argued against holding a further referendum on elections to the House of Lords. The Bill of Rights Commission has unsuccessfully competed for attention in a crowded arena of commissions and inquiries which includes the Leveson Inquiry into the culture, practice and ethics of the press, and the Parliamentary Commission on Banking Standards. It is also likely that the current ‘age of austerity’ will impact on this debate in a number of ways. First, we have already seen a number of public law challenges to government cuts. Many of these have been based on the equality duty imposed under section 149 of the Equality Act 2010 (or on other related forms of alleged discrimination) rather than any particular human right under the Convention.102 An example of this is R (Fawcett Society) v Chancellor of the Exchequer103 where a challenge to the entire national budget (on the basis that the Government had not complied with the section 76A Sex Discrimination Act 1975 equality duty) was definitively dismissed (with Ouseley J refusing the claimant permission to judicially review the Coalition Government’s 2010 Emergency Budget). These attempted uses of public law as an extension of politics are precisely the types of challenge that will make opponents of economic and social rights nervous. The fear is that if the courts have jurisdiction to hear these types of cases, individuals and NGOs would have an incentive to try to get their way on an issue 99 Hansard Society, Audit of Political Engagement 5: The 2008 Report with a Special Focus on the Constitution (2008) 31. 100 Ibid 29. 101 C Harvey, ‘Taking the Next Step? Achieving another Bill of Rights’ [2011] European Human Rights Law Review 24. 102 See, eg, R (Bailey and Others) v Brent London Borough Council & Others [2011] EWCA Civ 1586. 103 R (Fawcett Society) v Chancellor of the Exchequer [2010] EWHC 3522.

274 Alexander Horne and Lucinda Maer ‘by employing a lawyer, rather than by in engaging in democratic politics’.104 For campaigners, one can see the attractiveness in this approach. As Conor Gearty has put it: Respect my human rights is ‘a slogan which empowers and ennobles at the same time’: We may be poor and on the outside but we are human like you and therefore we are not to be trifled with. Here is what you are now obliged to do so that our rights are realised, and we will struggle to make you do it.105

A second question that emerges from the perceived need for spending cuts and austerity is whether any government can commit to providing minimum standards of provision of healthcare, housing, social security and other economic rights. Scenes from Greece, Spain and Ireland are evidence that standards of living that were once taken for granted may no longer be achievable in the future. Direct calls for economic and social rights have been rather more restrained under the Coalition Government. The Commission declined to make any firm recommendations in this area.106 Within this context there appears to be an apparent new reticence by human rights advocates, particularly towards any new moves towards a Bill of Rights by the Coalition Government. This can probably be explained by their fears that the Conservatives would seek to water down existing rights, or subject them to caveats. Francesca Klug has warned that ‘A Bill of Rights which is based—not on the principles of universal human rights—but on chauvinism and nationalism, would be much less than we have now’.107 Shami Chakrabarti has made reference to what she calls the ‘grand contradiction—even swindle’ of ‘promoting the idea of a new ‘Bill of Rights’, not as a means of enhancing, extending or entrenching rights and freedoms in the UK, but to dilute or even dismantle their protection’.108 Chakrabarti points out that it would be possible to add to the Human Rights Act by entrenching it as a first step to a written constitution, or to add to judicial power, but both such possible futures are entirely improbable. She concludes even a cut and paste of the Human Rights Act, with ‘added patriotism’ would be bound to disappoint on both sides of the argument: it would feed the idea that fundamental rights are creatures of fad and fashion to be thrown out or ‘made over’ with each passing government—a kind of permanent constitutional revolution rather than a statement of basic law and values for all democrats and generations to unite around. Further, inevitably disappointed expectations next time a

104 M Bevir, ‘The Westminster Model, Governance and Reform’ (2008) 61(4) Parliamentary Affairs 559–77, 565. See also J Lewis, ‘Winning the Campaign or Winning the Case?’ [2007] Judicial Review 107; S De Smith, H Woolf and J Jowell, Judicial Review of Administrative Action (London, Sweet and Maxwell 1995) 23 and C Harlow and R Rawlings, Pressure through Law (London, Routledge, 1992). 105 C Gearty, ‘The Human Rights Act—an Academic Sceptic Changes his Mind but not his Heart’ [2010] European Human Rights Law Review 582. 106 Commission on a Bill of Rights (n 91) para 90. 107 Klug (n 70) 701. 108 Chakrabarti, ‘Human Rights or Citizen’s Privileges’ (n 21).

From the HRA 1998 to a Bill of Rights? 275 terror suspect cannot be send [sic] abroad to torture might not exactly reignite faith or engagement in democratic politics.

The Commission’s report recognised the difficulty of interpreting the views presented to it as: it is not always easy to disentangle in the opinions expressed to us what are tactical positions rather than fundamental beliefs. Thus some organisations that have in the past expressed considerable sympathy with the concept of a UK Bill of Rights are now more sceptical while others who now champion such a Bill appear to be motivated more by a desire to redraw the boundaries between our own courts and the European Court of Human Rights than by an attachment to extending human rights per se. Many of those putting forward their views self-evidently distrust the motives of others and have clearly tailored their own responses accordingly.109

Lastly, the task of the Commission was complicated by the continuing lack of political consensus on the way forward. The former Lord Chancellor, Kenneth Clarke, had always appeared dubious about attempts to resile from the Convention. Speaking in June 2006, Clarke was quoted as having said that the idea of a British Bill of Rights was ‘xenophobic and legal nonsense’ and that Cameron was ‘going out there to try to find some lawyers that agree with him, which I think will be a struggle’. When he was appointed Lord Chancellor in 2010, Mr Clarke stated that he was unsure ‘how high a priority’ the Bill of Rights would be given.110 At the time of writing, Kenneth Clarke had recently been replaced as Lord Chancellor (following a Cabinet reshuffle) by Chris Grayling, the first non-lawyer to hold the post since the seventeenth century. In September 2012, Damian Green, also newly appointed as a minister at the Ministry of Justice, told the House of Commons that the Government hoped: to move to a position in which human rights are once again completely accepted. In this country, ‘human rights’ has become almost a boo-phrase, which is ridiculous. They are the basic rights to which we and all democracies adhere, but in various actions inside the courts and outside, human rights have been abused and this Government will put an end to that.111

Even if Mr Grayling were to wish to take a firmer line over the Human Rights Act, it is likely that he would be constrained by his Coalition partners. The Commission itself argued that its conclusions could and should not be the final judgement on the matter ‘for the obvious reason that these are issues which, in the end, can only be decided by Government and Parliament’ (along with the need for public debate and consultation).112 The JCHR, which considered a Bill of Rights in the previous Parliament—and drafted its own suggested text—,

109

Commission on a Bill of Rights (n 91) para 66. Daily Telegraph, ‘Coalition Government: Conservatives Drop Plan to Scrap European Human Rights Act’ (London, 14 May 2010). 111 HC Deb 18 September 2012, col 774. 112 Commission on a Bill of Rights (n 91) para 64. 110

276 Alexander Horne and Lucinda Maer would almost certainly be the central parliamentary forum for detailed consideration of the Commission’s report. But it may also be joined by the Constitution Committee in the House of Lords, and the Political and Constitutional Reform Committee in the House of Commons. Backbench Members might want to bring forward discussion of the proposals on the floor of the House using the new mechanism of the Backbench Business Committee. The Government’s response was also forthcoming at the time of writing. It is possible, therefore, that a number of different stances are taken within Parliament to any recommendations on a Bill of Rights. Given the lack of an overall majority for any one political party in Westminster, and that some of the issues that are raised by rights-based discourse cut across party lines (as the debate on prisoner voting has shown), the willingness and ability to make any progress through Parliament with reform of the Bill of Rights of any kind would appear to be limited.

IV. RELATIONS WITH THE EUROPEAN COURT OF HUMAN RIGHTS

From around 2009, one could observe a new theoretical critique of our relations with the Strasbourg Court, a subject that was tied in strongly to the debate about a Bill of Rights. A speech by the former Law Lord, Lord Hoffmann entitled ‘The Universality of Human Rights’,113 which touched on the concepts of subsidiarity and the ‘margin of appreciation’ allowed to Council of Europe States when applying Convention rights, was influential. Hoffmann was extremely critical of the Strasbourg Court, suggesting that it ‘lacked constitutional legitimacy’. He also contended that: The fact that the 10 original Member States of the Council of Europe subscribed to a statement of human rights in the same terms did not mean that they had agreed to uniformity of the application of those abstract rights in each of their countries, still less in the 47 states which now belong.114

Lord Hoffmann’s intervention was not universally well received amongst his former colleagues.115 However, some of those who disagreed with his main proposition nonetheless engaged with the arguments around subsidiarity and the margin of appreciation. Lady Justice Arden, in a subsequent speech, suggested that ‘subsidiarity, including margin of appreciation, is a concept which the Strasbourg Court should develop in its jurisprudence’. Focusing on the large backlog of cases at the European Court of Human Rights, she stated that: The only solution as I see it is to share the load with the national courts: however distasteful it may be to a human rights court, the Strasbourg court should, at least until

113 Lord Hoffmann, ‘The Universality of Human Rights’ (Judicial Studies Board Annual Lecture, 19 March 2009). 114 Ibid. 115 See, eg, M Arden, ‘Human Rights and Civil Wrongs’ (Hailsham Lecture, 12 May 2009).

From the HRA 1998 to a Bill of Rights? 277 matters improve, seek to focus on the more important cases and leave the cases which are less important to be dealt with by the national courts without further recourse to the Strasbourg court even if the litigant is dissatisfied with the result.116

Another issue that was recognised was the growing criticism of the idea that the Convention should be seen as a ‘living instrument’ (a doctrine that goes back at least as far as 1978, and the case of Tyrer v United Kingdom).117 While these concerns have frequently been expressed by those who are generally sceptical of the application of the Human Rights Act, proponents have also expressed some doubts. In a speech in 2011, Baroness Hale observed that the ‘evolutive approach to interpreting the Convention tends to lead to a narrowing of the margin of appreciation’. She went on to argue that: As a supporter of the Convention and the work of the Strasbourg Court, my plea to them is to accept that there are some natural limits to the growth and development of the living tree. Otherwise I have a fear that their judgments, and those of the national courts which follow them, will increasingly be defied by our governments and Parliaments.118

Dominic Raab has argued the living instrument approach to the Convention marked a watershed, and one which led from ‘a core set of defined and circumscribed rights’ to a court in which the judges had bestowed upon themselves a ‘legislative function, fully aware that there are limited means for elected governments subject to their rulings, to exercise any democratic oversight over them’.119 These new critiques were quickly seized upon by politicians, who appeared to drop the rhetoric about ‘rights and responsibilities’ in favour of arguing for more localised decision-making. Dominic Grieve QC, the Attorney-General for the Government, gave a speech in 2011 in which he said that while the United Kingdom should still be subject to the judgments of the Strasbourg Court, ‘the Court should not normally need to intervene in cases that have already been properly considered by the national courts applying the Convention’.120 This approach went on to inform the Government’s approach to reform of the Strasbourg Court when it held the presidency of the Council of Europe and was reflected in the subsequent Brighton Declaration agreed in April 2012.121 Following the agreement of the latter, Kenneth Clarke then the Secretary of State for Justice and Lord Chancellor, stated that the European Court of Human Rights would hear fewer cases and would ‘not normally intervene where national courts have clearly

116 M Arden, ‘Peaceful or Problematic: The Relationship between National Supreme Courts and Supranational Courts in Europe’ (Thomas More Lecture, Lincoln’s Inn, 10 November 2009). 117 (1979–80) 2 EHRR 1. 118 Lady Hale, ‘Beanstalk or Living Instrument? How Tall Can the European Convention on Human Rights Grow?’ (Gresham College Lecture, 16 June 2011). 119 D Raab, The Assault on Liberty (n 58) 131. 120 D Grieve, ‘European Convention on Human Rights—Current Challenges’ (Lincoln’s Inn, 24 October 2011). 121 For more on this, see, eg, V Miller, The UK and Reform of the European Court of Human Rights, House of Commons Library Standard Note, SN/IA/6277, 27 April 2012.

278 Alexander Horne and Lucinda Maer applied the Convention properly’.122 The Brighton Declaration also agreed to amend the Convention to include the principles of subsidiarity and the margin of appreciation. In the longer term, even if critics of the Strasbourg Court get their way over the question of subsidiarity and the margin of appreciation given to Member States, this is not to say that Parliament will have the final word where cases are brought that raise human rights issues. Calls for some form of democratic override of decisions of the Strasbourg Court have so far received little attention. Instead, many critics of the European Court of Human Rights have suggested that decisions of the domestic courts should be given more weight by the Strasbourg Court, or simply that the UK should withdraw from its jurisdiction. A move in either direction would appear to leave the UK Supreme Court with significant weight where human rights issues were raised (assuming the UK remained within the Convention itself). Ironically, for libertarian critics of the Strasbourg Court, if such a system had been in place at the time of the last Labour Government, we might not have seen the well known decisions against the DNA database, the use of terrorism stop and search powers and secret trials.123 Moreover, were it perceived that the domestic courts had been granted additional responsibility, it is likely that there would be further interest taken in the people who became our most senior judges. The judiciary has previously been very successful in avoiding any new forms of political accountability (either preor post-appointment) citing the need for judicial independence. Nonetheless, in the future, that is not to say that calls for some form of additional accountability measures, such as pre-appointment hearings, will not increase.124

V. CONCLUSION

Although there is general agreement that we would like to live in a society government by the ‘rule of law’ where ‘fundamental rights and freedoms’ are respected, it is clear that there are profound differences of opinion about what these terms should mean, and who should arbitrate when conflicts arise. A range of views are represented within Parliament, and within the governing coalition. The Commission on the Bill of Rights’ report does not produce a clear way forward and many commentators appeared to find the entire process underwhelming. Nevertheless, it does present a substantial body of work which future

122 Ministry of Justice, ‘UK Delivers European Court Reform’ (press release, 20 April 2012) www. justice.gov.uk/news/press-releases/moj/uk-delivers-european-court-reform. 123 S and Marper v United Kingdom [2008] ECHR 1581; Gillan and Quinton v United Kingdom [2009] ECHR 28; A and Others v United Kingdom [2009] ECHR 301. 124 See, eg, A Horne, ‘The Changing Constitution: A Case for Judicial Confirmation Hearings?’ Study of Parliament Group Paper 1 (2010) www.studyofparliament.org.uk/spg-paper-1.pdf; A Paterson and P Paterson, ‘Guarding the Guardians’ (London, Centre Forum, 2012) and Pinto-Duschinsky, ‘Bringing Rights Back Home (n 95).

From the HRA 1998 to a Bill of Rights? 279 policy-makers will wish to consider. Those responsible for policy in this area can start by considering the experience of the Human Rights Act. The availability of bad news stories which played on fears of terrorism, crime and security created an easy theme for those who wished to lambast the 1998 Act. Proponents of the legislation were unable to engage with the tabloid media in order to identify the benefits that ordinary members of the public received under the Act at a sufficiently early stage. Defenders of the legislation were able to blame the media and critical ministers for the Act’s unpopularity with the public (but did not necessarily engage directly with their concerns). Often they seemed to be unwilling to accept that reasonable people can hold differing views on issues relating to ‘fundamental rights’. Politicians and judges have both found adapting to the constraints and freedoms they have under the current rights framework a challenge. A new Bill of Rights would require compromises to be sought, between those on the left and the right, and those with different understandings of rights and freedoms. If a new Bill of Rights is to succeed, there will have to be some accord between the politicians and the judiciary to ensure that there is a positive dialogue around the issue of rights. And greater thought needs to be given to issues relating to sovereignty and accountability. Parliament’s role in acting as a forum for discourse on competing views could be central, both through the JCHR and other select committees of both Houses. The ability of Members of Parliament to agree on such complex matters when there is not necessarily agreement between the governing parties would appear limited. The Commission established to put forward proposals was itself unable to reach overall agreement on whether or not there should be a Bill of Rights, let alone what should be in it or how it would operate. In any case, the public will have to be engaged in drawing up any new rights document and be well informed as part of an implementation strategy. In short, any new rights document for the UK will require a consensus on its contents and need to be promoted as a positive and permanent addition to our constitutional framework. If such a state of affairs seems unlikely as economic affairs and the recession take centre stage, so, it would seem, does any progress.

11 The House of Lords Select Committee on the Constitution ANDREW LE SUEUR* AND JACK SIMSON CAIRD**

I. INTRODUCTION ‘The constitution of the United Kingdom lives on, changing from day to day for the constitution is no more and no less than what happens. Everything that happens is constitutional. And if nothing happened that would be constitutional also.’ (1979)1 ‘There has been a transition from a largely political towards a largely principled constitution in the last 30 years.’ (2009)2

T

HE HOUSE OF Lords Constitution Committee is both a consequence and an agent of the profound changes to British constitutional style over the past generation. Since it started work in 2001 (see section II), the Committee has developed three main functions. First, through systematic scrutiny of the constitutional implications of every government Bill, it has become a well-respected part of the House of Lords’ arsenal against misguided and badly prepared legislation. As well as influencing particular Bills, the Committee’s reports on proposed legislation are growing into an authoritative body of literature on the Constitution that articulates, develops and applies constitutional norms (see section III). A second aspect of the Committee’s work is policy inquiries. Based on expert evidence, these have dealt with subjects as diverse as judicial appointments and the constitutional implications of surveillance, have won the Committee’s work extensive coverage in the news media and have put, or kept, issues on the political agenda (see section IV). They have focused on aspects of the practical operation of the constitutional *

Andrew Le Sueur is Professor of Constitutional Justice at the University of Essex. Jack Simson Caird is a PhD Candidate at Queen Mary, University of London and Academic Secretary to the Study of Parliament Group. 1 J Griffith, ‘The Political Constitution’ (1979) 42 Modern Law Review 1, 19. 2 D Oliver, ‘The United Kingdom Constitution in Transition: From Where to Where?’ in M Andenas and D Fairgrieve (eds), Tom Bingham and the Transformation of the Law: a Liber Amicorum (Oxford, Oxford University Press, 2009) 147–62, 153. **

282 Andrew Le Sueur and Jack Simson Caird system and how it might be improved; and on the processes of constitutional change.3 Bill scrutiny and policy inquiries are not hermetically sealed activities: the latter have included several investigations into broad problems with the legislative process4 and the Committee has been a persistent advocate of effective pre-legislative scrutiny.5 A third function of the Committee is to be a forum for dialogue between parliamentarians and the judiciary—an important development in a time of rapid and far-reaching reform of the role and constitutional status of the judiciary and a safety value in times of tension between ministers and judges (see section V). There are various activities that the Committee does not do, but which it has at different times been suggested that it might. These include: that it ‘should, once a year, report on the constitutional changes that have taken place in the previous year as a result of the activities of the government of the day’, which would be debated on the floor of the House;6 that it should have a devolution sub-committee, responsible for addressing complaints from the devolved bodies ‘if they felt that the executive was encroaching on them and their rights’ and be the ‘arbiter of problems arising from the working of the so-called “concordats” between the executives in London and Edinburgh’;7 and a role in advising whether a question should be put to a referendum.8 Dawn Oliver has suggested that the Committee should publish a codified set of scrutiny standards.9 In carrying out its various tasks, the Committee has come to occupy territory between the contested lines of political and legal constitutionalism (captured in the starkly contrasting statements, above, by Griffith and Oliver).10 Political constitutionalism claims that government power and law-making is and should be legitimised through Parliament. Legal constitutionalism sees courts, clearly articulated constitutional principles and legally enforceable rights as the keys to creating

3 Lord Norton, the Committee’s first chairman, lamented in 2002 that the House of Lords ‘spend too much time debating specific items of constitutional change and not enough debating the nature of the constitution itself ’ (HL Deb 18 December 2002, col 656). 4 See Table 1, below. 5 See Constitution Committee, The Process of Constitutional Change (HL 2010–12, 177) ch 3; Prelegislative Scrutiny in the 2008–09 and 2009-10 Sessions (HL 2009–10, 79); Government Response to a Report on Pre-legislative Scrutiny in 2007–08 (HL 2008–09, 160); Pre-legislative Scrutiny in the 2007–08 Session (HL 2008–09, 66); Pre-legislative Scrutiny in the 2006–07 Session: Follow-up (HL 2007–08, 129); Parliament and the Legislative Process (HL 2003–04, 173) ch 3. 6 Lord Patten, HL Deb 15 September 2004, col 1244. 7 Lord Henley, HL Deb 12 February 2001, col 97. 8 Lord Campbell of Alloway, HL Deb 27 November 2000, col 1146. 9 D Oliver, ‘Improving the Scrutiny of Bills: The Case for Standards and Checklists’ [2006] Public Law 245. 10 It should be noted that Oliver emphasises that many British constitutional principles are not legal in form (see n 2).

The Lords Constitution Committee 283 conditions under which public power is limited.11 As a parliamentary institution keen to articulate and apply constitutional principles, the Committee’s work can be understood as a third way between these two models of constitutionalism (see section VI). This third path represents a departure from a number of established understandings of the United Kingdom’s constitution. For example, it shows that parliamentary supremacy is not a barrier to constitutional norms being used as effective constraints on legislative power. As Oliver explains in chapter 12, the absence of ‘ex post facto constitutional review of statutes’ does not exclude ‘intra-parliamentary constitutional preview’.12 The reality, if not the theory, of the flexible unwritten constitution cannot prevent the construction of a ‘Thames Barrier’ or a ‘Teddington lock and weir’, as Oliver describes the Committee, which is designed to protect its core values.13

II. ORIGINS, PERSONNEL, OPERATION

A. Origins The idea of a parliamentary committee with broad responsibility for oversight of constitutional affairs emerged in 2000 from the Royal Commission on the future of the House of Lords. Lord Wakeham and his colleagues recommended that ‘the second chamber should establish an authoritative Constitutional Committee to act as a focus for its interest in and concern for constitutional matters’.14 This recommendation enjoyed wide support and the Constitution Committee was formed for the first time as a sessional committee in 2001. The Committee’s formal terms of reference were set by the House of Lords Liaison Committee and have not changed since then: ‘to examine the constitutional implications of all public Bills coming before the House; and to keep under review the operation of the constitution’.15 The Committee’s inaugural report, made in July 2001, considered ‘what we might do and how we may go about our work’.16 It adopted the following ‘working definition’ of the Constitution as: the set of laws, rules and practices that create the basic institutions of the state, and its component and related parts, and stipulate the powers of those institutions and the

11 See A Le Sueur, M Sunkin and JEK Murkens, Public Law: Text, Cases, and Materials, 2nd edn (Oxford, Oxford University Press, 2013) ch 2. 12 D Oliver, ‘The Sovereignty of Parliament and the Courts’ ch 12 below. 13 Ibid 329. 14 Royal Commission on the Reform of the House of Lords, A House for the Future (Cm 4534, 2000) para 5.22. 15 Constitution Committee, Reviewing the Constitution: Terms of Reference and Method of Working (HL 2001–02, 11) para 1. 16 Ibid.

284 Andrew Le Sueur and Jack Simson Caird relationship between the different institutions and between those institutions and the individual.17

The Committee announced that it would be ‘focusing on significant constitutional issues’ only and proposed a ‘two p’s’ test: In order to be significant, a constitutional issue needs to be one that is a principal part of the constitutional framework and one that raises an important question of principle.18

In its first parliamentary session, the Committee went on to conduct a policy inquiry into the process of constitutional change (a subject that would be a recurring theme in its later reports) and reported on constitutional issues arising in four Bills.19 This was a low-key start to Bill scrutiny: the Committee had missed the boat on a flurry of big-ticket constitutional legislation that was a feature of the first Blair administration (including the Bank of England Act 1998, the House of Lords Act 1999, the devolution Acts of 1998, the Human Rights Act 1998 and the Freedom of Information Act 2000).

B. Membership Membership of the Committee, as for most other Lords committees, is governed by the ‘rotation rule’.20 This ensures a turnover of the 12 places by prohibiting a member being reappointed to a committee after serving four sessions. After a gap of a session, a peer is again eligible to be appointed.21 The rule is modified to permit a current member to go on to serve for three years as chairman.22 Another influence on membership is the requirement for the Committee to broadly reflect the balance of political affiliation in the House as a whole, including cross-benchers (peers who are not affiliated to a political party). Snapshots of the Committee’s membership at three points during its first 10 years are set out in Table 1 below. One of the main justifications for the continued existence of an unelected House of Lords is that it is a chamber of experts. Measuring expertise in constitutional affairs is a somewhat impressionistic exercise but comparing membership at the start of the 2001–02 with 2010–12 reveals growing legal constitutional expertise over the first 10 years. The inaugural membership contained only one legally qualified peer (Lord Acton, Labour). This 17

Ibid, para 20. Ibid, para 52. 19 Constitution Committee, Changing the Constitution: the Process of Constitutional Change (HL 2001–02, 69). 20 House of Lords, Companion to the Standing Orders and Guide to the Proceedings of the House of Lords (2010) para 11.11. 21 Lord Norton, the Committee’s first chairman, returned to the Committee. 22 Lord Holme, the second chairman, benefited from this. 18

The Lords Constitution Committee 285 perhaps reflected a sentiment that lawyers should not dominate the Committee. Lord Peston (Labour, an academic economist, who would later become a member of the Committee) sounded a note of scepticism on the floor of the Lords in discussion about the plans for the Committee: ‘One or two of us might be puzzled as to why anyone would single [lawyers] out on a matter of constitutional importance’.23 Ten years on, the Committee included a former Lord Chancellor (Lord Irvine, Labour), a former Attorney-General (Lord Goldsmith, Labour), and two prominent members of the legal profession (Lord Hart of Chilton, Labour—a former partner of Herbert Smith—and Lord Pannick QC, a leading member of the English public law bar and cross-bencher). In between these points, other senior legal figures have served on the Committee including senior retired judges (Lord Woolf and Lord Jauncey of Tullichettle), former Law Officers (Lord Morris of Aberavon, Labour and Lord Lyell of Markyate, Conservative) and a practitioner (Viscount Bledisloe, otherwise known as Christopher Bathurst QC, cross-bencher). As well as legal expertise, the Committee’s membership over the first 10 years has included an array of senior or experienced figures from the world of politics stretching back five decades.24 The influence of the Committee stems in part from the high esteem in which other peers hold the Committee’s members. If further reform of the House of Lords leads to a wholly elected House, a constitution committee would clearly have a different and probably less experienced membership.25

23

HL Deb 14 November 2000, col 124. Lord Shaw of Northstead first entered the Commons in 1960; in the 1970s, Lord Windlesham (Conservative) and Lord Rowlands (Ted Rowlands MP, Labour) held ministerial office and Lord Rodgers of Quarry Bank (Bill Rodgers MP, then Labour, now Liberal Democrat) was Secretary of State for Transport. In the 1980s Lord Crickhowell (Nicholas Edwards MP, Conservative) was Secretary of State for Wales, Lord Lang of Monkton (Ian Lang MP, Conservative) was Secretary of State for Scotland, Lord MacGregor of Pulham Market (John MacGregor MP, Conservative) was Secretary of State for Transport, Leader of the House of Commons, and Secretary of State for Education and Science, Lord Renton of Mount Harry (Tim Renton MP, Conservative) was Minister for the Arts, and Lord Elton (Conservative) held several ministerial posts. More recently, Baroness Jay (Labour) was Leader of the House of Lords, Lord Privy Seal and Minister for Women; Baroness Quin (Joyce Quin MP, Labour) was Minister for Europe, Prisons minister, agriculture minister and also served as an MEP; Baroness Hayman (Labour) held several different ministerial posts. Lord Renton, Lord Goodlad (Alastair Goodlad MP, Conservative); and Lord Carter of Devizes (Labour) were formerly chief whips; Lord Goodlad also has diplomatic experience as a former High Commissioner to Australia. Lord Wallace of Tankerness (Liberal Democrat) was Minister for Justice and later Deputy First Minister of Scotland in the Scottish Government. 25 The Coalition Government withdrew its House of Lords Reform Bill in the summer of 2012. 24

286 Andrew Le Sueur and Jack Simson Caird Table 1: Membership of the Constitution Committee at three points during its first ten years Area of expertise

Start of 2001–02 Session

Start of 2005–06 Session

Start of 2010–12 Session

Lawyers

Lord Acton (Lab hereditary, barrister)

Viscount Bledisloe QC (Con hereditary)

Lord Goldsmith QC (Lab life, former Attorney-General); Lord Hart of Chilton (Lab life, solicitor); Lord Irvine of Lairg (Lab life, former Lord Chancellor); Lord Pannick QC (cross-bencher life)

Civil servants

Lord Fellowes (former private secretary to the Queen)

Parliamentarians and ministerial experience

Viscount Cranborne (Con hereditary); Baron Lang of Monkton (Con life, former minister); Lord Weatherill (Con life, former Commons Speaker)

Lord Elton (Con hereditary, former minister); Lord Monro of Langholm (Con life, former MP); Lord Rowlands (Lab life, former MP and minister)

Business

Lord Holme of Cheltenham (Lib Dem life, chair of the Hansard Society)

Lord Carter (Lab life, agriculture); CHAIRMAN: Lord Holme of Cheltenham; Baroness O’Cathain (Con life; company director)

Lord Powell of Bayswater [Charles Powell] (cross-bencher life, adviser to Margaret Thatcher) Lord Crickhowell [Nicholas Edwards], former Secretary of State for Wales); Lord Renton of Mount Harry [Tim Renton] (Con life, former MP and minister); Lord Rodgers of Quarry Bank (Lib Dem life, former MP and Secretary of State); Lord Shaw of Northstead (Con life, former MP and MEP)

(Continued)

The Lords Constitution Committee 287 Table 1: (Continued) Area of expertise

Start of 2001–02 Session

Start of 2005–06 Session

Start of 2010–12 Session

Third sector

Baroness Howells of St Davids (Lab life, race relations and equality); Earl of Mar and Kellie (Lib Dem hereditary, social work); Baroness Young (cross-bencher life)

CHAIRMAN: Baroness Baroness Hayman Jay of Paddington (Lab (Lab life, health life, TV and health) sector): Earl of Sandwich (crossbench hereditary, international development); Baroness Falkner of Margravine (Lib Dem life, party politics)

Academic

Lord Morgan (Lab life, Welsh historian); CHAIRMAN: Lord Norton of Louth (Con life, political scientist)

Lord Peston (Lab life, economist); Lord Smith of Clifton (Lib Dem life, political scientist)

Other

Lord Ponsonby of Shulbrede (Lab hereditary, industrial engineer)

Lord Windlesham (Con hereditary)

Lord Norton of Louth

C. The Influence of the Chairman The Committee has been led by four chairmen during its first 11 years: Professor Lord Norton of Louth (2001–04); Lord Holme of Cheltenham (2004–08); Lord Goodlad (2008–10); and Baroness Jay of Paddington (2010–date). Over the past 10 years, the Committee has operated on strongly consensual lines. All reports have been agreed unanimously. Nonetheless, each chairman has brought a somewhat different leadership style and approach to the Committee’s methods of work. Lord Goodlad’s term of office resulted in more emphasis being given to following up reports on Bills with amendments tabled in the names of Committee members, a practice that has continued under Baroness Jay’s chairmanship.

D. Committee Staff and Advisers A small team of permanent members of staff supports the work of the Committee. The clerk may also have responsibility for another committee and will typically serve in the role for three years. As the work of the Committee increased, a post of policy analyst was created to assist the Committee’s work on policy inquiries. A committee assistant provides secretarial services. House of Lords press

288 Andrew Le Sueur and Jack Simson Caird officers assist the Committee to publicise both its policy and its legislative scrutiny reports. The Committee’s first report in 2001 explained that it would not ‘seek to ask the House to appoint a free-standing Legal Adviser’ and would instead draw on advice from the legal advisers to three other Committees—the Joint Committee of Human Rights, the European Union Committee and the Delegated Powers and Regulatory Reform, all permanent salaried lawyers.26 It soon became clear, however, that scrutiny of Bills would not be possible without detailed and regular legal input. The Committee has therefore appointed a series of academics as parttime legal advisers, paid on a daily fee basis, to provide advice and draft reports on Bills. Since 2009, there have been two legal advisers, reflecting the growing workload.27 Specialist advisers, usually academics, are also appointed when necessary for policy inquiries.

E. Other Committees In its first report in 2001, the Committee considered how its work might intersect with that of other committees. It expressed the view that it would seek to avoid duplicating the work of other committees, though without being ‘too dogmatic about this’ and envisaged coordination between clerks and advisers to ensure that this was achieved.28 In practice, Bill scrutiny and policy inquiries have often overlapped with the work of other committees. In carrying out Bill scrutiny, the Committee generally avoids detailed analysis of Convention rights points, which is a matter for the Joint Committee on Human Rights (JCHR), but similar points may be presented in different ways. Thus, the JCHR and the Committee have from time to time both been concerned with the absence of appeal routes in Bills—an issue which may be presented as engaging with Article 6 (the right to a fair trial) of the European Convention on Human Rights (ECHR) and a common law constitutional right of access to the courts.29 In some Bills the main constitutional issue has been about the inclusion of Henry VIII powers (permitting a minister to amend primary legislation by making secondary legislation)—a matter for the Delegated Powers and Regulatory Reform Committee as well as for the Constitution Committee.30 In selecting the subject matter of policy inquiries, the Committee has sometimes found itself covering similar ground to other committees, though from a different 26

(n 15) para 63. Professor AW Bradley (2002–05); Professor Andrew Le Sueur (2006–09); Professor Adam Tomkins and Professor Richard Rawlings (2009 to 2013); Professor Adam Tomkins and Professor Maurice Sunkin (2013 to date). 28 (n 15) paras 39–49. 29 See Constitution Committee, Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Bill (HL 2010–12, 222). 30 See Constitution Committee, Legislative and Regulatory Reform Bill (HL 2005–06, 194). 27

The Lords Constitution Committee 289 perspective. In May 2008, the House of Commons Home Affairs Committee concluded an inquiry into surveillance while the Constitution Committee was engaged with the same subject.31 The Committee’s recommendations on reform of the constitutional framework for deployment of troops abroad were different from those of the House of Commons Public Administration Committee.32 Responsibility for parliamentary oversight of judiciary-related matters is shared with the House of Commons Justice Committee (see chapters seven and thirteen). In May 2010 the House of Commons Political and Constitutional Reform Select Committee was established to consider political and constitutional reform and to scrutinise the work of the Deputy Prime Minister in this area. Its subject area is very similar to that of the Constitution Committee, however, as one would expect from a Commons Select Committee, it takes a different approach to its work. In the 2010–12 Session it produced scrutiny reports on two Bills, and its other 19 reports were all related to its inquiries, and they covered a broad range of constitutional matters: from political party finance to the Cabinet Manual. In the current Session, 2012–13, it is conducting an inquiry into ‘Ensuring Standards in the Quality of Legislation’, which is a good example of the committees’ overlapping remits.33 It will be interesting to see how the Constitution Committee responds to the Commons Committee’s report on the issue, seeing as the former is in a better position to apply any legislative standards they recommend.

III. LEGISLATIVE SCRUTINY

A. Scope In carrying out its legislative scrutiny work, the Committee’s focus is on government Bills. Its first report said that the Committee would ‘aim to conduct scrutiny of the majority of Bills with a light touch’.34 The function of legislative scrutiny reports ‘is to ensure that informed debate on a Bill’s constitutional implications takes place during its legislative stages’.35 On occasion, the Committee has also considered draft Bills and Private Members’ Bills. Additionally, in the phase of Welsh devolution during which the National Assembly for Wales made ‘Assembly measures’, the Committee took on the task of examining Welsh Legislative Competence Orders, which were pieces of

31 House of Commons Home Affairs Committee, A Surveillance Society? (HC 2007–08, 58-I) and Constitution Committee, Surveillance: Citizens and the State (HL 2008–09, 18-I). 32 Constitution Committee, Waging War: Parliament’s Role and Responsibility (HL 2005–06, 236); Public Administration Select Committee, Taming the Prerogative: Strengthening Ministerial Accountability to Parliament (HC 2003–04, 422). 33 It is due to report at some point during the Parliamentary Session of 2012–13. 34 (n 15) para 30. 35 Constitution Committee, Sessional Report 2009–2010 (HL 2010–12, 26) app 1, 13.

290 Andrew Le Sueur and Jack Simson Caird UK legislation extending or modifying the Assembly’s legislative competence on a piecemeal basis.36

B. Processes of Bill Scrutiny The scrutiny process normally begins when a Bill is formally introduced to the House of Lords, though the Committee occasionally starts earlier on clearly significant constitutional Bills that are ‘Commons starters’.37 The working arrangements are that the legal adviser carries out a ‘sift’, which is then reviewed by the chairman.38 The most common outcome is that a Bill is ‘cleared’ and it is reported to the Committee that no consideration of the Bill is thought necessary. For a Bill to trigger a report to the House it must raise a constitutional issue under the abovementioned ‘two p’s’ test’. If the chair, based on the legal adviser’s guidance, decides that it does, the Committee has at its next meeting a number of options. (i) If further information is required from the department responsible for the Bill, or the Committee wishes to probe government thinking on an aspect of the Bill, a letter may be written to the relevant minister. Correspondence is published on the Committee website and in any subsequent report that may be made. (ii) Sporadically, scrutiny activities may take place off the parliamentary record. Legal advisers have on a small number of occasions attended meetings with a Bill team (the civil servants and departmental lawyer responsible for advising ministers on a Bill) to explore informally why the government wants to legislate in a particular way and whether there may be a more constitutionally satisfactory alternative. A minister may also be invited to attend a private meeting of the Committee to discuss in private intractable problems with a Bill.39 Meetings of these types are very rare. The Committee’s scrutiny of the Health and Social Care Bill benefited from a number of meetings between the Government and the Committee. The example is covered in more detail below.40 It is not yet clear whether these meetings will become a more regular occurrence. 36 Constitution Committee, Scrutiny of Welsh Legislative Competence Orders (HL 2007–08, 17). The measure-making process in force between 2006 and 2011 was superseded by greater devolved powers to make Acts of the Assembly under pt 4 of the Government of Wales Act 2006; the Committee has no role in relation to these. 37 Eg Government of Wales Bill 2006 (evidence taken from Secretary of State Peter Hain MP while Bill still in the Commons); Legislative and Regulatory Reform Bill 2006 (correspondence with Lord Chancellor while Bill still in the Commons–see below); Fixed-term Parliaments Bill 2011 (report made while Bill awaiting report and remaining stages in the Commons). 38 For an official account of the process, see Constitution Committee, Sessional Report 2009–2010 (HL 2010–12, 26) app 1. 39 Eg Earl Howe met the Committee in private with reference to its deliberations on the Health and Social Care Bill (discussed below). 40 See III E below.

The Lords Constitution Committee 291 (iii) A commonly used option is that the Committee agrees to publish a report immediately (based on a draft prepared by the legal adviser that will have been circulated to the Committee members a few days in advance). This happens if time is of the essence because the second reading of the Bill is looming (the Committee’s target is to report shortly before second reading in order to maximise the influence of the report); it also occurs where the government’s position on a point of constitutional controversy is clear and apparently unmoving. (iv) The Committee may decide to carry out ‘enhanced’ scrutiny by taking evidence, written or oral or both.41 Rather than a general call for evidence, the clerk of the Committee may write to specific experts asking them to contribute analysis and views on the Bill. This occurs if it is thought that the House would benefit from a range of expert opinion and there is time for the Committee to collect and comment on it. The Committee may invite a minister to give oral evidence, though it very rarely does so.42 Where the outcome is a report, this is available in print format to peers in the Printed Papers Office and is published online—usually the day after the Committee agrees the report. The whole scrutiny process places great responsibility on the legal adviser. It is rare for the chair to disagree with the legal adviser’s recommendation at the sift stage. Since 2006, the legal adviser also prepares any draft letter or report that may be required.43 The Committee usually agrees such drafts without prolonged debate or major amendment. Where a report makes specific criticisms and recommendations in relation to a Bill, various options are open to the Committee. The Committee may view its job as done by the mere fact of having made the point, leaving any amendments to be moved by peers not associated with the Committee (for example, the opposition front-bench). A more proactive approach is for the some members of the Committee to decide to pursue an amendment in their own names. Stronger still, is a decision that the chair with the express support of the whole Committee will pursue an amendment to ‘seek to improve clauses that threaten to breach one or more key constitutional principles’.44

41 Eg Fixed-term Parliaments Bill (HL 2010–12, 69) and European Union (Amendment) Bill and the Lisbon Treaty: Implications for the UK Constitution (HL 2007–08, 84). 42 Eg Peter Hain MP (responsible for the Bill in the Commons) gave evidence on the Government of Wales Bill in 2006. 43 Working practices were different in 2001–06: the legal adviser would normally prepare a memorandum analysing the Bill, leaving it to the clerk to draft any letter or report based on the memorandum and subsequent discussion by the Committee. 44 Constitution Committee, Annual Report 2006-07 (HL 2007–08, 44) para 7. See further the case study on the Health and Social Care Bill, below, where there the Committee played a leading role in framing an amendment, and debating alternatives, to ensure that the convention of ministerial responsibility for the National Health Service was not undermined.

292 Andrew Le Sueur and Jack Simson Caird The influence of the Committee’s reports on the scrutiny of a Bill is largely dependent on the reaction of peers during the legislative process. Over the course of the past decade of the Committee’s work, there has been a noticeable increase in the Committee’s influence within the chamber. One reason for this improvement is that the Committee has developed its techniques over this time, examples of which can be seen in the case studies below. Another is that the Committee has gradually built its reputation among peers, and especially amongst those who have a special interest in constitutional issues, for example Lord Lester of Herne Hill and Lord Mackay of Clashfern (Lord Chancellor in the Thatcher and Major Governments), and their endorsement of arguments contained in reports can be influential within the chamber and with the government. Further, there is a growing group of former members of the Committee, and those among this group regularly respond to the Committee’s reports. It should not be forgotten that the government is responsive to the influence of these constitutionally aware peers because defeat in votes on Bills is a very real prospect since the reforms to the composition of the House of Lords introduced by the House of Lords Act 1999, which has reinforced the legitimacy of Lords’ role in the scrutiny of legislation.45 In the long 2010–12 Parliamentary Session the Government was defeated in the House of Lords a total of 48 times.46 That the Committee’s development has occurred in the post-reform House has undoubtedly been key to its success as an agent of a new form of British constitutionalism.

C. Standards In the absence of a written constitution, how does the Committee assess the constitutional implications of legislation? The Committee has not, up to this point, decided to agree or publish a set of constitutional standards to guide its scrutiny (though it can be assumed that successive legal advisers may have developed informal checklists to assist their work). One opportunity to do this would have been in its first report; however, the Committee decided against doing so, and developed an ad hoc approach.47 There are a number of obvious advantages to this choice. First, compiling such a list is a difficult, controversial and potentially divisive task. Secondly, using a precedent-based approach is more in keeping with the nature of the British constitutional norms, which are not fixed and evolve over time. Thirdly, developing standards in reaction to government legislation and 45 M Russell, ‘A Stronger Second Chamber? Assessing the Impact of House of Lords Reform in 1999 and the Lessons for Bicameralism’ (2010) 58 Political Studies 866; M Russell and M Sciara, ‘The Policy Impact of Defeats in the House of Lords’ (2008) 10 British Journal of Politics and International Relations 571. 46 The Constitution Unit www.ucl.ac.uk/silva/constitution-unit/research/parliament/houseof-lords/lords-defeats. 47 Constitution Committee, Reviewing the Constitution: Terms of Reference and Method of Working (HL 2001–02, 11).

The Lords Constitution Committee 293 within the Committee’s policy reports has proved effective. Many of the norms the Committee has articulated are specific to a particular legislative context and may not have arisen in an abstract discussion. Despite these factors, the case for a codified set of standards, made by Oliver in 2006, remains strong.48 As a form of prescriptive scrutiny, it would enable constitutional standards to be incorporated into internal governmental and parliamentary guidance.49 This would increase the pressure on government to ensure that its legislation conformed to these standards before it was introduced to Parliament. Further, it would act as guide for other parliamentarians, who could make use of the standards to facilitate their own scrutiny. As a further example of the codification of constitutional standards in the United Kingdom, it would also represent a significant constitutional development in its own right. The Committee has the capacity to devise such a set of standards, and there is no real reason to suppose that it would hinder its current working practices. It boils down to a question of ambition. Sir Ivor Jennings was one of the first public lawyers to recognise that the committee system within Westminster suffers from a deficit in legislative expertise.50 Jennings argued, in 1936, that in order to strengthen the ‘standing committee’ system,51 permanent departmental legislative committees should be established.52 His argument is premised upon the idea that effective legislative scrutiny is facilitated by the existence of committees that combine expertise in a particular subject area with the ability to scrutinise legislation. The Constitution Committee is now one of a number of subject-specific legislative committees within Westminster, and the two case studies of its work given below show that the coincidence of the two features can be highly effective. Although the case studies are not representative of all of the reports published over the past decade, they are included to provide a contextual and fine-grained account of the Committee’s work.

D. Case Study on the Legislative and Regulatory Reform Bill 2006 The Legislative and Regulatory Reform Bill was introduced to the Commons in January 2006. It came to be referred to as the ‘Abolition of Parliament Bill’ because, in their original form, the provisions within Part 1 of the Bill would have empowered ‘any Minister by order to make provision amending, repealing

48 Oliver, ‘Improving the Scrutiny of Bills: The Case for Standards and Checklists’ (n 9) 245; see also ch 12 of this volume. 49 Ibid. 50 I Jennings, Parliamentary Reform (London, Victor Gollancz, 1934) 78–96. 51 Committees formed to consider a particular Bill in the House of Commons, now known as ‘Public Bill Committees’, were called standing committees before 2006. See ch 7 of this volume for a more general discussion of committees. 52 Jennings, Parliamentary Reform (n 50) 85.

294 Andrew Le Sueur and Jack Simson Caird or replacing any legislation, primary or secondary, for any purpose’.53 The Government initially resisted change in the Commons but in the face of severe criticism introduced a number of amendments during the report stage.54 The Bill left the Commons with powers limited to a particular purpose and subject to a number of other safeguards.55 Unusually, the Constitution Committee engaged in correspondence with the Government while the Bill was still in the Commons. The chairman wrote to the Lord Chancellor to register concerns that the powers within the Bill ‘have the potential to be so far reaching that especial consideration will need to be given by the Committee to the risk of inadvertent and ill-considered constitutional change’ and to express disappointment that the Bill had not been published in draft.56 Correspondence can be an important part of the Committee’s scrutiny process, as the response of the minister may, as in this case, contain important further elaboration of the Government’s position, which can help the Committee in its formulation of analysis for a report on the Bill. The Lord Chancellor explained that the Government did not intend to use the order-making powers within the Bill for ‘highly controversial purposes’ and conceded that the Government was prepared to accept further limitations on the powers in the Bill.57 Despite the improvements in the Bill, the Committee produced an unusually long scrutiny report. The report can be divided into a number of separate parts, each of which performs a different function. The first section of the report provided a descriptive analysis of the provisions of the Bill, and was intended to inform the debate in the chamber.58 The changes to the Bill had made much of the available parliamentary analysis largely redundant, and this made this first part of the report especially valuable. The second section sought to hold the Government to account over its ‘handling’ of the Bill.59 It pointed out that the Government had failed to consult adequately and that it had not understood the constitutional significance of the Bill until the report stage in the Commons.60 Perhaps the most piercing critique of the Government was of its attempt to offer ministerial verbal assurances that the powers would not be used for ‘highly controversial reforms’, as an alternative to legal safeguards.61 It showed the extent to which the Government did not appreciate the importance of legally restricting the powers in the Bill.

53 House of Commons Regulatory Reform Committee, Legislative and Regulatory Reform Bill (HC 2005–06, 878) para 23. 54 P Davis, ‘The Significance of Parliamentary Procedures in Control of the Executive: a Case Study: the Passage of Part 1 of the Legislative and Regulatory Reform Act 2006’ [2007] Public Law 67. 55 Constitution Committee, Legislative and Regulatory Reform Bill (HL 2005–06, 194) para 2. 56 Ibid, para 24. 57 Ibid. 58 Ibid, paras 6–17. 59 Ibid, paras 17–18. 60 Ibid, paras 22–23. 61 Ibid.

The Lords Constitution Committee 295 The third part of the report outlined the normative principles that regulate the use of Henry VIII clauses.62 It acknowledged that delegated legislation may be an established practice within the United Kingdom; however, it explained, Henry VIII powers potentially represent a departure from important constitutional principles. It claimed that these clauses ‘risk undermining the legislative supremacy of Parliament’ and specifically Dicey’s rule that only Parliament can overrule or set aside legislation.63 Further, it pointed out that these powers enable changes to primary legislation to receive a lesser degree of scrutiny than they would receive under the normal Bill procedure. Departures from the ordinary Bill procedure cannot be justified by simply citing problems of legislative capacity. Legislative capacity, it said, should be addressed directly rather than circumvented through delegated legislation. An additional problem with Henry VIII clauses cited by the report is that they render the statute book unclear and uncertain. The report then converted the cited norms into constitutional conditions for the use of Henry VIII powers: first, such powers should be clearly limited; secondly, they should be subject to adequate parliamentary oversight.64 These conditions are the link between the constitutional norms cited in the third part and the ten recommendations within the fourth and final part of the report.65 Two of these recommendations provide useful examples of the different ways in which the report influenced the scrutiny of the Bill within the Lords. The first example relates to the parliamentary procedure used to make orders under the Bill. The Bill prescribed a procedure which gave the committee considering the order a veto, which would enable it to stop the order being made. The procedure specified that the veto is expressly limited to three listed factors.66 The Constitution Committee’s report recommended that in order to strengthen the procedure the restriction on the use of the veto should be removed, so that it could be used for any reason.67 The Government announced that it accepted this recommendation during the second reading debate.68 However, the Constitution Committee cannot claim sole responsibility for the change, as the House of Lords Delegated Powers and Regulatory Reform Committee’s report on the Bill also argued that the restriction should be removed.69 Even the minister in charge of the Bill acknowledged the influence of both committees when accepting the recommendation.70 This example highlights the value of having two legislative

62

Ibid, paras 30–35. Ibid. 64 Ibid, para 35. 65 Ibid, paras 38–62. 66 For the details on the procedure see House of Lords Delegated Powers and Regulatory Reform Committee, Legislative and Regulatory Reform Bill (HL 2005–06, 192) paras 48–51. 67 Ibid, para 48. 68 Lord Bassam HL Deb 13 June 2006, col 124. 69 House of Lords Delegated Powers and Regulatory Reform Committee, Legislative and Regulatory Reform Bill (n 66) para 48–51. 70 Lord Bassam (n 68). 63

296 Andrew Le Sueur and Jack Simson Caird committees with overlapping constitutional remits, as when they both reach the same conclusion, it is harder for the government to ignore it. The second example is the Committee’s proposal that there should be a provision within the Bill which would prevent the powers being used to change the United Kingdom’s Constitution.71 It is an ambitious recommendation. In contrast to the previous example, it requires the drafting of a new legislative provision, and one which the Committee itself recognised would be difficult to draft: how can a single sub-clause protect the Constitution? In the Lords a number of peers took up the challenge and tried to give effect to the Committee’s recommendation. For example, Lord Goodhart (not a member of the Committee) moved an amendment listing the constitutional arrangements of the United Kingdom, which would have prevented orders from altering any of the matters listed.72 The minister responded to these amendments by claiming that ‘there is no need to make any protection against orders being used for that end’.73 He claimed that it was unnecessary because other measures within the Bill would prevent the powers being used for constitutional reform, and cited the Constitution Committee’s report as evidence that it would be difficult to achieve.74 At some point during the long 2006 summer recess the Government’s position on the constitution clause changed. During the report stage the minister in charge of the Bill put forward an amendment that inserted into the list of limitations ‘the provision is not of constitutional importance’.75 When moving the amendment he reiterated that the Government’s position remained that the powers could not be used to bring about fundamental constitutional change; however, they had been convinced of the case for an amendment because they wanted ‘to put the issue beyond any possible or reasonable doubt’.76 The Government’s amendment was passed and it became section 3(2)(f) of the Legislative and Regulatory Reform Act 2006.77 The influence of this report extended beyond the Legislative and Regulatory Reform Bill. The conditions it set for the use of Henry VIII powers formed a key part of the Committee’s analysis in its report on the Public Bodies Bill in 2011. The report applied the two conditions and stated that the Public Bodies Bill ‘failed both tests’.78 This highly critical conclusion was cited by many Lords during the debate on the Bill and contributed to the scrutiny which saw major parts of that Bill rewritten.79 71

(n 55) paras 52–57. HL Deb 19 July 2006, col 1347. 73 HL Deb 19 July 2006, col 1357. 74 HL Deb 19 July 2006, cols 1356–58. 75 HL Deb 26 October 2006, col 1303. 76 Ibid. 77 For an example of this restriction being applied in the courts see R (Pelling) v SSHD [2011] EWHC 3291 (Admin). 78 Constitution Committee, Public Bodies Bill (HL 2010–12, 52). 79 J Simson Caird, ‘Parliamentary Constitutional Review: Ten Years of the House of Lords Select Committee on the Constitution’ [2012] Public Law 7. 72

The Lords Constitution Committee 297 E. Case Study on the Health and Social Care Bill 2011 Introduced to the House of Commons in January 2011, the Health and Social Care Bill sought to redefine the Secretary of State for Health’s legal responsibility for the National Health Service. This proposed redefinition drew the attention of the Committee, and its scrutiny of the Bill resulted in key changes to the drafting of the relevant provisions within the legislation. This Bill has been chosen as the second case study because it highlights the distinct nature of the Committee’s work at this later stage of its development. The Committee’s work on this Bill is particularly noteworthy for its proactive approach: it published two reports on the Bill, both of which proved extremely influential within the chamber, and it used informal meetings with the Government to negotiate and draft amendments to the Bill. While it is normally right to be cautious over claims of causality within the legislative process, when the amendment is drafted through collaboration between the Government and the relevant committee, much of the doubt over causation can be assayed. The Committee’s first report on the Bill claimed that it ‘may risk diluting the Government’s constitutional responsibilities with regard to the NHS’.80 The Committee claimed the Bill would sever the existing ‘chain of constitutionality responsibility’ within the existing legislation.81 To illustrate the point the Committee cited the case of R v North and East Devon Health Authority, ex p Coughlan,82 in which Lord Woolf, who later would serve as a member of the Constitution Committee, ruled that the duty to promote a comprehensive health service, in section 1 of National Health Service Act 2006 and preserved by the Bill, should be read together with the specific duties listed in section 3 of the National Health Service Act 2006.83 The Health and Social Care Bill would sever this chain by relieving the Secretary of State of the specific duties in section 3. The Committee argued that this would change the Secretary of State’s legal accountability, through judicial review, for the NHS. In addition, the report highlighted the uncertainty caused by the apparent contradiction between the Explanatory Notes to the Bill, which made it clear that the relevant provisions are designed to reflect the fact that the minister will no longer be responsible for commissioning and providing services, and the Government’s claim that this would not change the Secretary of State’s existing accountability for the NHS. The report argued that the proposed changes would create uncertainty and pose an ‘undue risk’ to the existing accountability relationships which govern the NHS.84 The report concluded that as the Government had failed to explain why these changes were

80 81 82 83 84

Constitution Committee, Health and Social Care Bill (HL 2010–12, 197) para 4. Ibid, para 14. R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213. Constitution Committee, Health and Social Care Bill (n 80) para 13. Ibid, para 18.

298 Andrew Le Sueur and Jack Simson Caird ‘necessary components’ to the reforms, it should consider keeping the existing law to remove the uncertainty and the risk.85 As we noted above, the influence of the Committee’s analysis is dependent on the reaction of peers within the chamber, and in this case the reaction was both direct and decisive. During the second reading debate Lord Hennessy and Lord Owen (neither of whom were members of the Committee) introduced an amendment that aimed to commit the Bill to a special committee, following the precedent of the Constitutional Reform Act 2005 (see chapter thirteen) which would have the specific task of examining the issues raised by the Constitution Committee’s report.86 Lord Owen explained that the amendment was designed to allow constitutional and legal expert peers to work with Parliamentary Counsel to devise an amendment to address the concerns of the Constitution Committee.87 He stated that only the intervention ‘of an all-party and probably unanimous Select Committee will give the weight to make this change’.88 The House divided upon on the amendment and it was defeated by 330 to 262, and so while it did not succeed, it did send a message to the Government that there was considerable opposition to this element of the Bill.89 The committee stage of the Bill in the Lords showcased the chamber’s talents for both constitutional analysis and legislative drafting. The debate focused on the relative merits of two amendments which shared the same aim, to preserve the political accountability of the Secretary of State, but which were radically different in their form. Baroness Williams of Crosby, Baroness Jay of Paddington (the chairman of the Constitution Committee) and Lord Patel introduced an amendment which aimed to give effect to the Committee’s proposal that the Bill should retain the wording of the existing law relating to the constitutional responsibility of the Secretary of State.90 The Government remained firmly opposed to this solution, as they were determined to remove the duty ‘to provide’. Former Lord Chancellor Lord Mackay of Clashfern (not a member of the Committee) tabled an alternative amendment which stated ‘the Secretary of State (a) retains ultimate responsibility to Parliament for the provision of the health service in England’. This amendment did not reintroduce the duty ‘to provide’, and therefore better reflected the Government’s concerns.91 The debate on these amendments prompted Earl Howe, the minister in charge of the Bill, to suggest that neither peer move their amendments and that they use the time before the report stage to come to an agreement.

85 86 87 88 89 90 91

Ibid, para 19. HL Deb 12 October 2011, col 1716. Ibid. Ibid, col 1718. Ibid, col 1719. HL Deb 25 October 2011, col 727. Ibid, col 733.

The Lords Constitution Committee 299 Before the start of the report stage, the Committee published a second report on the Bill.92 The Committee’s ability to make follow-up reports can be an important feature of its approach to legislative scrutiny, as it ensures that it is able to keep up with developments during the Bill’s passage through the Lords.93 The second report was the Committee’s response to the Government’s invitation to offer further advice on the Bill’s regulation of the Secretary of State’s constitutional and legal responsibility for the NHS.94 The report explains that on 14 December 2012 the minister spoke to the Committee in private and that there were further discussions between the Committee’s officials and civil servants in the Department of Health.95 First Parliamentary Counsel also attended another meeting between the two sets of officials.96 The report essentially relays the outcome of these meetings. Most importantly, it set out its recommended amendments. The first is an adaptation of that proposed by Lord Mackay at Clashfern: Page 2, line 4, at end insert –‘( )The Secretary of State retains ministerial responsibility to Parliament for the provision of the health service in England’.97

The report also recommended further amendments to clauses 4, 20 and 10. The report concluded by noting that these amendments ‘will together address the concerns’ which were raised in the first report on the Bill.98 During the report stage Earl Howe introduced the Committee’s first proposed amendment.99 He confirmed that this amendment was the product of the meetings with the Constitution Committee and added that the scrutiny of this aspect of the Bill had ‘revealed the House of Lords at its best’.100 Baroness Jay of Paddington spoke after the minister and opened her speech by saying ‘this is not really a government amendment but an amendment by the Constitution Committee’.101 After Royal Assent the amendment became section (1)(3) of the Health and Social Care Act 2012. When Lord Hennessy and Lord Owen attempted to refer the Bill to a special committee, complete with the services of legislative draftsmen, to resolve the constitutional issues raised by the Constitution Committee, they would not have predicted that the Constitution Committee itself had the capacity to draft the necessary changes.

92

Constitution Committee, Health and Social Care Bill: Follow-up (HL 2010-12, 240). It is worth noting that the Committee stated in its first report that it ‘would not chase the tail of legislation by examining amendments proposed’: (n 15) para 35. 94 Constitution Committee, Health and Social Care Bill: Follow-up (n 92) para 3. 95 Ibid, para 4 and n 3. 96 Ibid. 97 Ibid, para 8. 98 Ibid, para 15. 99 HL Deb 8 February 2012, col 298. 100 Ibid. 101 Ibid, col 299. 93

300 Andrew Le Sueur and Jack Simson Caird IV. POLICY INQUIRIES

The Committee’s legislative scrutiny work is reactive: the government, through its legislative programme, sets the agenda and the pace of work. In contrast, policy inquiries provide the Committee with an opportunity to explore aspects of the Constitution of its own choosing. The majority of the Committee’s sitting time is spent taking evidence in relation to inquiries. Between 2001 and 2012, the Committee published 19 reports on aspects of the constitutional system and was taking evidence in an inquiry that had not yet reported (see Table 2 below). Table 2: Policy inquiries 2001–12 Subject matter

Report

Constitutional process

1. Changing the Constitution: the Process of Constitutional Change (Fourth Report) (2001–02, HL 69) 2. Referendums in the United Kingdom (Twelfth Report) (2009–10, HL 99) 3. The Process of Constitutional Change (Fifteenth Report) (2010–12, HL 177)

Devolution

4. Devolution: Inter-Institutional Relations in the United Kingdom (Second Report) (2002–03, HL 28) 5. Devolution: its effect on the practice of legislation at Westminster (Fifteenth Report) (2003–04, HL 192) 6. Referendum on Scottish Independence (Twenty-fourth Report) (2010–12, HL 263)*

Parliament

7. Parliament and the Legislative Process (Fourteenth Report) (2003–04, HL 173) 8. Waging War: Parliament’s Role and Responsibility (Fifteenth Report) (2005–06, HL 236) 9. Scrutiny of Welsh Legislative Competence Orders (2007–08, HL 17)* 10. Fast-track Legislation: Constitutional Implications and Safeguards (Fifteenth Report) (2008–09, HL 116)* 11. Money Bills and Commons Financial Privilege (Tenth Report) (2010–12, HL 97)* 12. Voting at the Close of Poll (Twenty-third Report) (2010–12, HL 245)*

Government

13. The Regulatory State: Ensuring its Accountability (Sixth Report) (2003–04, HL 68) 14. Reform of the Office of Attorney General (Seventh Report) (2007–08, HL 93) 15. The Cabinet Office and the Centre of Government (Fourth Report) (2009–10, HL 30) 16. Accountability of Civil Servants (incomplete at time of writing, in 2012–13 Session)

Judiciary

17. Relations between the Executive, the Judiciary and Parliament (Sixth Report) (2006–07, HL 151) 18. Relations between the Executive, the Judiciary and Parliament: Follow-up Report (Eleventh Report) (2007–08, HL 177)* 19. Judicial Appointments (Twenty-fifth Report) (2010–12, HL 272)

Other

20. Surveillance: Citizens and the State (Second Report) (2009–10, HL 18)

Those marked * were short inquiries, with few if any witnesses giving evidence.

The Lords Constitution Committee 301 A. The Inquiry Process At any given time, the Committee is usually engaged on one major inquiry. The process starts with members suggesting possible topics and the policy analyst prepares a discussion paper, which provides a basis for further debate until consensus is reached on the subject matter. A call for submissions of written evidence is then published and, if thought necessary, a specialist adviser is appointed.102 The clerk and specialist adviser are responsible for devising a programme of oral evidence in consultation with the chairman who will seek the Committee’s approval. The Committee may hold a ‘seminar’—a private meeting on the subject of the forthcoming inquiry, led by the specialist adviser, providing members with an opportunity to learn more about the current issues and express preliminary views. It is usual to start the programme of oral evidence by hearing from academic experts and to conclude with the relevant government minister; in between, a range of interested parties will come before the Committee. The clerk and specialist adviser draft lines of questioning; in contrast to House of Commons practice, these are sent to the witnesses approximately a week before the hearing. In private session, shortly before the witness enters the committee room, the chairman asks members to indicate which lines of questioning they would like to lead on. Hearings typically last for about 90 minutes and witnesses may appear either singly or in panels. Sessions may be video- or audio-recorded for webcast. Transcripts are produced two or three weeks after a hearing and are circulated to witnesses and members. Written evidence is circulated to members in batches; once the deadline has passed, the policy specialist produces a paper summarising the views received. Members rarely discuss emerging themes of an inquiry formally in committee until all witnesses have given evidence, though the chairman may lead a short stock-taking discussion from time to time if this is thought necessary (for example, to refine the scope of the inquiry). After all witnesses have been heard—which may take several months—the clerk, liaising with the specialist adviser, will produce what is sometimes called an ‘essay plan’—a chapter by chapter proposal for the structure of the report. The next step is for the clerk, working with the specialist adviser, to produce a first iteration of the report for the chairman’s consideration.103 Once the chairman is content with the working draft the Committee will discuss it, typically over two or three private sessions. The chairman’s draft will be revised by the clerk during this process and circulated to members. Committee staff format written evidence for publication alongside the report. Once all members are satisfied with a final draft of the report, it is agreed with no formality and a publication date fixed. The Committee will subsequently 102 The legal adviser may act as a specialist adviser if the inquiry is closely connected to law or the legislative process. 103 Lord Norton is said to have been a more hands-on chairman, more closely involved in the drafting process than his successors.

302 Andrew Le Sueur and Jack Simson Caird approve a press notice that will be published at the same time as the report. The chairman or another nominated member may be made available to speak to journalists (who receive an embargoed copy of the report ahead of publication) but the Committee has generally avoided holding press conferences. The government is expected to respond formally to Committee reports within two months of publication. The clerk will attempt to secure a good day and time for a short debate on the report on the floor of the House. Several of the Committee’s reports are based on ‘short inquiries’, which involve little or no oral evidence-taking (see Table 2). These reports may emerge from concerns that have arisen during Bill scrutiny104 but which go beyond the Bill in question, or constitutional developments on which the Committee wishes to express a view.105 Short reports may also seek to inform the House and broader public debate without the Committee making any recommendations.106

B. Assessing the Impact of Inquiries The caveats expressed above about assessing the impact of Bill scrutiny reports apply even more strongly to policy inquiry reports. Most policy inquiry reports contain an array of recommendations. To measure influence solely on how many are accepted by the government would be to take too narrow a view of the Committee’s role. The Committee aims to inform parliamentary and public debates on constitutional issues. It also aims to call ministers to account for their constitutional actions, omissions and thinking. Neither of these two aims is measurable in terms of ‘wins’ and ‘losses’. Moreover, whereas Bill scrutiny is played out in a time frame of months, the influence of policy inquiries may unfold over a much longer period, as the following case study illustrates.

C. Case Study on Deployment of British Armed Forces Abroad For several years, there was a continuing debate about reform of prerogative powers, including war powers. In March 2004, the House of Commons Public Administration Select Committee (PASC) called for the Government to bring forward ‘proposals for legislation to provide greater parliamentary control over all executive powers enjoyed by Ministers under the royal prerogative’ including 104 Eg Constitution Committee, Fast-track Legislation: Constitutional Implications and Safeguards (HL 2008–09, 116-1 and 116-2); and Constitution Committee, Money Bills and Commons Financial Privilege (HL 2010–12, 97). 105 Eg Constitution Committee, Voting at the Close of Poll (HL 2010–12, 245) following controversy when some returning officers refused would-be voters queuing at 10 pm their vote; and Constitution Committee, Referendum on Scottish Independence (HL 2010–12, 263) on a proposed referendum about Scottish independence. 106 Eg Constitution Committee, Reform of the Office of Attorney General (HL 2007–08, 93).

The Lords Constitution Committee 303 ‘decisions on armed conflict’.107 Eighteen months later, the Constitution Committee launched a major inquiry into war powers. The Committee’s July 2006 report Waging War: Parliament’s Role and Responsibility reached different conclusions from PASC.108 The Committee saw ‘no merit in legislative architecture which creates the possibility of judicial review of Government decisions over matters of democratic executive responsibility’. Instead, the Committee favoured ‘a parliamentary convention determining the role Parliament should play in making decisions’ about deployment of armed forces. ‘Without being prescriptive’, the report went on to list the characteristics which the convention should encompass. The Government’s formal response was late (it was published in November 2006) and brief (‘We are not presently persuaded of the case’ etc).109 In turn, the Committee described the Government’s response as ‘inadequate’, ‘cursory’, and said that it ‘fails genuinely to address the arguments or the recommendations which had been made’ or ‘to provide a comprehensive or stand-alone outline of the Government’s position in reply to our final carefully deliberated report’.110 The Government’s terse reaction masked internal debate between ministers. In May 2007, the House of Commons debated the question of reform and passed a resolution ‘taking note’ of the Committee and PASC’s reports, calling on the Government to consult and come back to Parliament with detailed proposals.111 With Gordon Brown by then in Number 10, the Ministry of Justice launched ‘The Governance of Britain’ reform programme one element of which was the acceptance of a convention on war powers formalised by parliamentary resolution (rather than PASC’s preferred option of legislation).112 In July 2008, the Joint Committee on the Draft Constitutional Renewal Bill endorsed this approach stating that it was a ‘well balanced and effective way of proceeding’.113 The May 2010 general election came and went with no resolution emerging from government. The Coalition Agreement was silent on the issue, which remained a matter of concern following the Government’s decision in March 2011 to carry out air strikes in Libya without prior parliamentary authorisation. The House of Commons Committee on Political and Constitutional Reform114 has continued to press the Government on the need for reform and has called for this

107 Public Administration Select Committee, Taming the Prerogative: Strengthening Ministerial Accountability to Parliament (n 32), para 60. For a fuller case study, see A Le Sueur, M Sunkin and JEK Murkens, Public Law: Text, Cases, and Materials, 2nd edn (Oxford, Oxford University Press, 2013) ch 9. 108 Constitution Committee, Waging War: Parliament’s Role and Responsibility (n 32). 109 Government Response to the House of Lords Constitution Committee’s Report Waging War: Parliament’s Role and Responsibility (Cm 6923, 2006). 110 Constitution Committee, Waging War: Parliament’s Role and Responsibility–Follow-up (HL 2006–07, 51). 111 HC Deb 15 May 2007, col 492. 112 Ministry of Justice, The Governance of Britain (Cm 7170, 2007); Ministry of Justice, Governance of Britain: War Powers and Treaties (Cm 7239, 2007). 113 Joint Committee on the Draft Constitutional Renewal Bill, Report (2008–09, HL 166, HC 551) paras 318, 473–78. 114 Established in June 2010 to scrutinise the work of the Deputy Prime Minister in this area.

304 Andrew Le Sueur and Jack Simson Caird to be achieved by the end of the current Parliament in 2015. The (then) minister responsible for constitutional reform, Mark Harper MP, responded by saying that ‘a number of important questions of detail’ need to be addressed and these must be considered properly and could not be ‘driven by an artificial deadline’.115

V. DIALOGUE WITH THE JUDICIARY116

In addition to the Committee’s Bill scrutiny and policy inquiry work, it has carved out a role as a forum for parliamentarians to meet and discuss issues with the senior judiciary. The Committee’s first report in 2001 did not refer to the Committee having any particular role in relation to the judiciary. This is hardly surprising as judiciary-related constitutional reform was at that time off the Government’s agenda. By April 2006, the scene had changed: under the Constitutional Reform Act 2005, the Lord Chancellor ceased to be head of the judiciary, this role being taken by the Lord Chief Justice of England and Wales;117 in addition, the legal framework of the UK Supreme Court was agreed (though it would be October 2009 before it started work); and new judicial appointments processes were put in place for England and Wales.118 With the disqualification of senior judges from active membership of the House of Lords by the 2005 Act, new ways have had to be found for the judiciary to explain its role and express its concerns where government proposals or other developments threaten the judiciary. The House of Lords ad hoc select committee that considered the Constitutional Reform Bill recommended that: it is desirable for a committee of Parliament to act as a bridge between Parliament and the judiciary, particularly in the event of the senior judges being excluded from the House. Such a committee should not seek to hold individual judges to account. The advantages of a statutory committee were not obvious to the Committee and a clear majority preferred the joint committee option. We recognise that Parliament itself will wish to consider this issue further. 119

With no momentum behind the idea of a joint committee on the judiciary, the Constitution Committee sought to fill the vacuum in the House of Lords. The Justice Committee has a similar role in the Commons. Since 2006, judges have 115 BBC News, ‘Parliament “War Powers” Must be Law by 2015, Say MPs’ (London, 6 December 2011) www.bbc.co.uk/news/uk-politics-16050574. 116 See also chs 7 and 13. 117 The Lord President is the head of the judiciary in Scotland and the Lord Chief Justice of Northern Ireland is the head of the judiciary in Northern Ireland. 118 Curiously, the Committee made no report to the House on the Constitutional Reform Bill—presumably because the Bill had been committed to a special select committee (see A Le Sueur, ‘From Appellate Committee to Supreme Court: a Narrative’, ch 5 in L Blom-Cooper, B Dickson and G Drewry (eds), The Judicial House of Lords 1876-2009 (Oxford, Oxford University Press, 2009). The Committee did, however, publish a short note by its legal adviser, Professor Bradley, after the Bill had received royal assent: Constitution Committee, Constitutional Reform Act 2005 (HL 2005–06, 83). 119 Select Committee on the Constitutional Reform Bill, Report (HL 2003–04, 125-I) para 420.

The Lords Constitution Committee 305 appeared before a wide range of Lords and Commons committees and have contributed written evidence on various topics.120 In May 2006, Lord Phillips (then the Lord Chief Justice) appeared in a televised hearing before the Constitution Committee. In a brief report accompanying the transcript of evidence, the Committee said ‘we felt it would be valuable to meet the Lord Chief Justice in the hope that a … fruitful dialogue would develop’.121 For his part, the Lord Chief Justice said ‘I personally am very happy to accept an invitation from time to time as long as it is not too frequent’. Periodic meetings with the Lord Chief Justice and the Lord Chancellor have been held since then and the Committee has conducted two policy inquiries into judiciary-related matters.122 The judiciary-related work of the Committee may be understood as seeking to achieve four main goals. First, the Committee is a facilitator. Reporting in July 2007, the Committee said: We agree that select committees offer a suitable arena for the Lord Chief Justice, or other senior judges, to air concerns about the administration of justice and the impact of legislation and other policy proposals upon the courts and the judiciary. The Lord Chief Justice already appears before this Committee annually, but we would always be open to additional appearances as necessary by him and other senior colleagues, and we trust that other committees of both Houses would take a similar approach.123

The facilitator role is illustrated in the debacle over the setting up of the Ministry of Justice in 2006, when the judiciary gave written and oral evidence to the Committee. This laid out a critique of the Government’s plans and the lack of consultation (which the Committee was equally scathing about). The judiciary also used the opportunity to lobby for an independent court administration (on which the Committee was a little sceptical).124 A second role is that the Committee seeks to hold ministers to account for their conduct of judiciary-related matters. The Lord Chancellor/Secretary of State for Justice has been the subject of scrutiny and criticism across a variety of areas, including the setting up of the Ministry of Justice (see above) and the limited progress in creating a more diverse judiciary. Thirdly, the Committee has (within boundaries) sought to call the senior judiciary to account. The Committee has been adamantly against routine pre- or

120 A Le Sueur, ‘Parliamentary Accountability and the Judicial System’ in N Bamforth and P Leyland (eds), Accountability in the Contemporary Constitution (Oxford, Oxford University Press, 2013). 121 Meeting with the Lord Chief Justice (HL 2005–06, 213). 122 Relations between the Executive, the Judiciary and Parliament (HL 2006–07, 151) and Relations between the Executive, the Judiciary and Parliament: Follow-up Report (HL 2007–08, 177)—looking, as the title of the reports suggest, at constitutional relationships; and Judicial Appointments (HL 2010–12, 272). 123 Constitution Committee, Relations between the Executive, the Judiciary and Parliament (n 122) para 20. 124 Ibid and Relations between the Executive, the Judiciary and Parliament: Follow-up Report (n 122).

306 Andrew Le Sueur and Jack Simson Caird post-appointment hearings for senior judicial posts125 and equally clearly against questioning judges on matters of substantive law that may come before the courts.126 On operational and leadership issues, however, the Committee has felt able to explore issues such as the way in which the judiciary handle relations with the news media (suggesting a more proactive approach might be beneficial).127 The Committee has also discussed the meaning of the rule of law and independence of the judiciary with senior judges.128 A fourth role is oversight of the new constitutional ‘architecture’ which has been built since 2005. Here the Committee has sought to explain, scrutinise and suggest ways of developing the arrangements. The Committee has met with only limited success, with several key recommendations either being rejected or apparently ignored. (i) Concerned about intemperate remarks by ministers about specific judges and judgments, the Committee called for the Ministerial Code to be amended to give ‘clear and unambiguous guidance to ministers about how they should or should not comment about judges in public’.129 Neither Gordon Brown nor David Cameron, as incoming Prime Ministers, has done this. (ii) The Committee has argued that the concordat agreed in January 2004 between Lord Falconer (the Lord Chancellor) and Lord Woolf (the Lord Chief Justice)130 should be recognised as ‘a document of fundamental importance’, which should be a living document, updated and formally laid before Parliament.131 This has not happened. (iii) An annual report by the Lord Chief Justice, the Committee suggested, ‘would be an effective way for the judiciary to remain accountable’132 and should be formally laid before Parliament under section 5(1) of the Constitutional Reform Act 2005.133 Lord Phillips presented the first Lord Chief Justice’s report to Parliament in March 2008. The report covers April 2006 to September 2007.134 Lord Judge has since published two

125

Constitution Committee, Judicial Appointments (n 122) paras 46–48. Relations between the Executive, the Judiciary and Parliament (n 122) para 126. 127 Ibid, paras 146, 177. 128 Ibid, paras 23–29. 129 Ibid, para 51; Relations between the Executive, the Judiciary and Parliament: Follow-up Report (n 122) para 8. 130 Department for Constitutional Affairs, The Lord Chancellor’s Judiciary-related Functions: Proposals (London, 2004) http://webarchive.nationalarchives.gov.uk/+/http://www.dca.gov.uk/consult/lcoffice/judiciary.htm. 131 Relations between the Executive, the Judiciary and Parliament: Follow-up Report (n 122) para 14. 132 Relations between the Executive, the Judiciary and Parliament (n 122) para 23. 133 Ibid, para 139. 134 Lord Chief Justice of England and Wales, The Lord Chief Justice’s Review of the Administration of Justice in the Courts (London, The Stationery Office, 2008). 126

The Lords Constitution Committee 307 reports; the first covers the legal year 2008–09, and the second covers January 2010 to June 2012.135 (iv) The Committee advocated advisory declarations as ‘a useful way for the courts to give guidance on key questions relating to Convention rights’.136 There is no evidence that this has been considered either by government or the judiciary. (v) ‘[P]ost-legislative scrutiny is highly desirable and should be undertaken far more generally. This would boost the level of constructive dialogue between Parliament and the courts’, the Committee recommended.137 There is some evidence of government resistance to including analysis of judicial interpretation of key statutory provisions in the process: in carrying out post-legislative scrutiny of the Compensation Act 2006 in 2012, the Ministry of Justice told the House of Commons Justice Committee it had not carried out any detailed examination to assess the impact of section 1 (a key provision). To do so would, the Ministry said, be ‘impractical in resource terms’ but also would not be appropriate ‘as it could be seen as undermining the independence of the judiciary and casting doubt on the way in which they have interpreted the law’.138 (vi) ‘In order to ensure more responsible reporting, we recommend that the Editors’ Code of Practice, which is enforced by the Press Complaints Commission, be regularly updated to reflect these principles’.139 The Code of Practice has not been updated in this way.

VI. CONCLUSIONS

Prior to the creation of the Constitution Committee one of the principal characteristics of British constitutionalism was the lack of a specific institutional mechanism dedicated to upholding and elaborating constitutional norms. There was no equivalent to the Conseil Constitutionel in France or the Finnish Parliament’s Perustuslakivaliokunta (Constitutional Law Committee), bodies which consider the constitutionality of proposed legislation during the legislative process. Heavy reliance on political accountability was seen as the key characteristic of British constitutionalism. The combination of an unwritten constitution 135 Lord Chief Justice of England and Wales, The Lord Chief Justice’s Review of the Administration of Justice in the Courts (London, The Stationery Office, 2010); Lord Chief Justice of England and Wales, The Lord Chief Justice’s Report 2010–12 (London, Judicial Office, 2012). 136 Relations between the Executive, the Judiciary and Parliament (n 122) para 28. 137 Relations between the Executive, the Judiciary and Parliament (n 122) para 188; on post-legislative scrutiny generally, see Office of the Leader of the House of Commons, Post-legislative Scrutiny: The Government’s Approach (Cm 7320, 2008). 138 Ministry of Justice, Memorandum to the Justice Select Committee: Post-Legislative Assessment of the Compensation Act 2006 (Cm 8267, 2012) paras 62–63. 139 Relations between the Executive, the Judiciary and Parliament (n 122) para 146; Relations between the Executive, the Judiciary and Parliament: Follow-up Report (n 122) para 33.

308 Andrew Le Sueur and Jack Simson Caird and parliamentary sovereignty appeared to be a barrier to the creation of a body that could assess the constitutionality of legislation. It seemed that there was no branch of state where effective constitutional review could be incorporated and the unwritten constitution contained little in the way of prescriptive normative content which could be applied to legislation. The Constitution Committee has shown that neither of these constitutional characteristics was quite as secure as they appeared. As we noted at the start, the genesis of the Constitution Committee is to be found in the Wakeham Royal Commission report in 2000 that ‘the second chamber should establish an authoritative Constitutional Committee to act as a focus for its interest in and concern for constitutional matters’.140 Even if the Committee’s status is merely that of a sessional parliamentary committee, it shares some important characteristics with other more entrenched and legally powerful constitutional councils and courts: it is independent of government; it conducts abstract constitutional review of legislation; it contains senior figures from the worlds of politics and law (with a sprinkling of academics); and, perhaps most importantly, it interprets and articulates the principles of the British Constitution. The Committee poses a problem for both political and legal constitutionalism, in that neither theoretical framework is able to offer a satisfactory account of the Committee’s role within the unwritten constitution. The Committee’s Bill scrutiny work takes place within the legislative process, the front line of the interface between law and politics in the Constitution. A political constitutionalist might want to play down the significance of the Committee’s work, by claiming that it is not distinguishable from any other forms of legislative politics. A legal constitutionalist might emphasise the Committee’s lack of formal powers, and its reliance on the good grace of the government for effectiveness. While both of these accounts are not strictly incorrect, they overlook the key to the Committee’s success: it mirrors the legislative process’s unique mixture of the worlds of law and politics. From its remit to its composition, from the content of its reports to its influence, the Committee encapsulates the co-dependent relationship between law and politics at the heart of the legislative process.

140

A House for the Future (n 14) para 5.22.

12 Parliament and the Courts: A Pragmatic (or Principled) Defence of the Sovereignty of Parliament1 DAWN OLIVER*

I. THE DOCTRINE OF THE SOVEREIGNTY OF PARLIAMENT

T

HE TRADITIONAL AND orthodox view is that it is a fundamental principle of the UK Constitution that the courts will treat Acts of Parliament— that is Acts passed by the two Houses of Parliament with the assent of the monarch (or under the Parliament Acts 1911 and 1949, by the House of Commons with royal assent) as the highest form of law.2 This is known as the ‘sovereignty’, or ‘legislative supremacy’ of Parliament. The doctrine entails that the courts will give effect to provisions in Acts of Parliament, and that provisions in later Acts that are inconsistent with provisions in earlier Acts impliedly repeal the earlier provision.3 The courts interpret Acts consistently with the UK’s treaty obligations, and with fundamental rights4 and, as the law develops, with principles of legality, constitutionalism *

Dawn Oliver is Emeritus Professor of Constitutional Law, University College London. The following friends and colleagues have given me comments and feedback on drafts of this chapter, for which I am very grateful: Andrew Blick, Carlo Fusaro, Conor Gearty, Alexander Horne, Murray Hunt, Jeff King, Stuart Lakin, Sir Stephen Laws, Colm O’Cinneide, Sir Stephen Sedley, Gijsbert ter Kuile. All weaknesses and errors are entirely my responsibility. 2 AV Dicey, Introduction to the Study of the Law of the Constitution, 10th edn (London, Macmillan, 1959); J Goldsworthy, The Sovereignty of Parliament (Oxford, Clarendon Press, 1999) and Parliamentary Sovereignty: Contemporary Debates (Cambridge, Cambridge University Press, 2010); AW Bradley ‘The Sovereignty of Parliament: Form or Substance?’ in J Jowell and D Oliver (eds), The Changing Constitution, 7th edn (Oxford, Oxford University Press, 2011). Edinburgh and Dalkeith Railway v Wauchope (1842) 8 Cl 7 F 710; Pickin v British Railways Board [1974] AC 965; Cheney v Conn [1968] 1 All ER 799. 3 Ellen Street Estates v Minister of Health [1934] 1 KB 590. For further discussion of the complex arguments around these issues see: Bradley, ‘The Sovereignty of Parliament’ (n 2); P Craig, ‘Britain in the European Union’ in Jowell and Oliver, The Changing Constitution (n 2); Goldsworthy, Parliamentary Sovereignty: Contemporary Debates (n 2) ch 10; A Tomkins, Public Law (Oxford, Oxford University Press, 2003) 117–19. 4 The Human Rights Act 1998, s 3 requires the courts so far as possible to interpret provisions compatibly with Convention rights. 1

310 Dawn Oliver and the rule of law; if Parliament intends to legislate in breach of these then it should use express and clear language, not general or ambiguous words.5 In this chapter I suggest that the doctrine of parliamentary sovereignty is based, in part at least, on a pragmatic recognition by politicians and the courts that the functioning of the British system imposes responsibility for the Constitution and the rule of law on every organ of state rather than placing that responsibility solely or primarily in the hands of a Supreme or Constitutional Court. While this approach leaves open the possibility that politicians or judges might make ‘unconstitutional’ laws, in practice the making of such laws is rare. A number of informal preventative procedures are in place to protect constitutionality and the rule of law. It may well be possible for these preventative mechanisms to be improved and this will be explored in section IV of the chapter. But overall it is preferable for the UK to retain the doctrine of parliamentary sovereignty and the pro-constitutional culture that goes with it rather than to move to a system of judicial review and quashing of laws for unconstitutionality, and thus to import negative and alien cultures into the system, such as political irresponsibility and a process of politicisation of the judiciary which countries where the courts do have such powers may experience. It is worth bearing in mind that the UK is not alone in subscribing to doctrines of parliamentary sovereignty and lacking US-style judicial review or judicial strikedown powers: other Northern European countries including the Netherlands,6 Sweden7 and Finland8 survive as well-functioning liberal democracies based on the rule of law without such arrangements, as does our close constitutional cousin New Zealand.9 In the rest of this section of the chapter I shall explore three aspects of the doctrine of sovereignty. First, the assumption that it is of the essence of sovereignty

5 See, eg, Anisminic v Foreign Compensation Commission [1969] 2 AC 147; R v Secretary of State for the Home Department, ex p Simms [2000] 2 AC 115, per Lord Hoffmann at 131; and R v Secretary of State for the Home Department, ex p Pierson [1998] AC 539, per Lord Browne-Wilkinson at 575, and per Lord Steyn at 591; AXA General Insurance Ltd and others v The Lord Advocate [2011] UKSC 46; Thoburn v Sunderland City Council [2002] EWCA 195 (Admin). 6 On the Netherlands see C Kortmann and P Bovend’Eert, The Kingdom of the Netherlands: An Introduction to Dutch Constitutional Law (Boston, Kluwer Law and Taxation Publishers, 1993); and W Voermans in X Contiades (ed), Engineering Constitutional Change: A Comparative Perspective on Europe, Canada and the USA (Abingdon, Routledge, 2012). 7 On Sweden see L-G Malmburg in Contiades, Engineering Constitutional Change (n 6); I Cameron, ‘Protection of Constitutional Rights in Sweden’ [1997] Public Law 488; T Bull, ‘Judges without a Court: Judicial Preview in Sweden’ in T Campbell, KD Ewing and A Tomkins, The Legal Protection of Human Rights Sceptical Essays (Oxford, Oxford University Press, 2011); U Bernitz, ‘Swedish Report’ in J Schwarze (ed), The Birth of a European Constitutional Order (Baden-Baden, Nomos Verlagsgesellschaft, 2000). 8 On Finland see J Husa, The Constitution of Finland (Oxford, Hart Publishing, 2011); M Suksi, ‘Finland’ in D Oliver and C Fusaro, How Constitutions Change (Oxford, Hart Publishing, 2011); K Tuori ‘Judicial Constitutional Review as a Last Resort’ in Campbell, Ewing and Tomkins, The Legal Protection of Human Rights (n 7); and T Ojanen in Contiades (n 6). 9 On New Zealand see PA Joseph, Constitutional and Administrative Law in New Zealand (Wellington, Thomson Brookers, 2007).

Parliament and the Courts 311 that Parliament may legislate on any matter on simple majorities of those present and voting:10 I suggest that this view is erroneous. Secondly, where European law applies the courts will accept its primacy:11 this may be regarded either as an exception to the doctrine of sovereignty, or as an example of its operation. And thirdly, nowadays the doctrine is commonly taken to be a democratic principle: but is it?

A. Sovereignty vs Privilege The British doctrine of parliamentary sovereignty is linked with the fact that each of the two Houses of Parliament legislates on any matter on simple majorities of those present and voting at the various stages of a Bill’s progress through Parliament.12 The basis of this majoritarian practice, I suggest, is not necessarily a ‘democratic principle’—a concept which will be explored below—since the constitutions of many countries prescribe absolute or special majorities or special procedures for constitutional amendment or changes to some ‘fundamental’ constitutional rules: it could not credibly be suggested that these countries are all, for that reason, not democracies. Democracy is not an all or nothing thing. The basis of the ‘bare majority of those present and voting’ doctrine is, I suggest, parliamentary privilege and the exclusive cognisance of its proceedings that each House enjoys;13 the basis is not parliamentary sovereignty. The existence of exclusive cognisance and parliamentary privilege as they operate in the UK immunises Parliament from challenge to its proceedings by the courts: to that extent parliamentary privilege reinforces legislative supremacy. But a parliament lacking such privilege in relation to its own legislative procedures could nevertheless be ‘sovereign’ in the sense that its laws on whatever matter, if duly passed, were valid laws.14 Parliamentary privilege is based in the common law15 and in Article 9 of the Bill of Rights 1689.16 The courts may not go behind the formal document that is the ‘Act’ to determine whether the prescribed intra-parliamentary legislative procedures were complied with. The rationale for this doctrine is acceptance of the need for comity between the courts and Parliament: in the nineteenth century, in

10 But note the argument that it would be possible and consistent with the system in the UK for special majorities to be required for certain kinds of legislation: R Heuston, Essays in Constitutional Law, 2nd edn (London, Stevens and Sons, 1964); Goldsworthy (n 2) chs 6 and 7. 11 R v Secretary of State for Transport, ex p Factortame (No 2) [1991] 1 AC 603. 12 But note the Parliament Acts 1911 and 1949 which permit royal assent to legislation without the consent of the House of Lords; and the Fixed Term Parliaments Act 1911 on super-majority votes— but not in the form of an Act of Parliament; for an early dissolution, see S Laws, ‘Giving Effect to Policy in Legislation: How to Avoid Missing the Point’ (2011) 32 Statute Law Review 1. 13 See ch 1. 14 See Ranasinghe case, discussed below. 15 Edinburgh and Dalkeith Railway v Wauchope and Pickin v BRB (n 2). 16 ‘The freedom of speech and debates and proceedings in Parliament shall not be called in question in any court or place outside of Parliament’. See discussion of privilege in chs 1 and 2 of this volume.

312 Dawn Oliver conflicts between the courts and Parliament over a wide range of issues including the validity of elections, publication of parliamentary papers and the swearing of the oath of allegiance to the monarch, it came to be recognised that, while the courts are entitled to determine whether a parliamentary privilege exists, it is for Parliament alone to deal with contempts and breaches of privilege. The lesson was sharply learned in the battles between the courts and Parliament in the Stockdale v Hansard17 and Case of the Sheriff of Middlesex18 saga which resulted in a stand-off in which the courts acknowledged the ‘exclusive cognisance’ and primacy of the Houses of Parliament in these matters.19 Legislation could of course be passed to abolish or transfer responsibility for aspects of parliamentary privilege—‘exclusive cognisance’—to a court, as has been done with contested elections which are now dealt with by an Election Court. If legislation were passed to enable a court to investigate whether the prescribed procedures for legislation had been followed during the legislative process in Parliament—including perhaps requirements for special majorities for the passage of certain laws—and to determine the validity of an Act or parts of an Act in the light of procedural defects, that would not of itself affect the sovereignty or legislative supremacy of the UK Parliament. The British practice according to which Parliament may legislate on any matter on simple majorities of those present and voting is not an essential element of sovereign parliaments. It would be surprising if the legislatures of, for instance, Germany, the United States and many other countries were considered by the UK not to be ‘sovereign’ because they are bound to follow special procedures for certain kinds of legislation: in Bribery Commissioners v Ranasinghe the Judicial Committee of the Privy Council found that the requirement in the Constitution of Ceylon, as it then was (now Sri Lanka), that two-thirds majorities in the Parliament and a Speaker’s certificate were required for certain laws to be passed and to be valid could be enforced by the courts by holding legislation that had not complied with the requirement to be invalid; such a position was not, the Privy Council held, incompatible with the sovereignty of the Parliament.20 Given that requirements as to special procedures to be followed in the enactment of Acts of Parliament would not of themselves undermine the legislative supremacy of Parliament, there must be one or more other reasons or 17

(1839) 9 Ad & El 1. (1840) 11 A & E 273. 19 See chs 1 and 2. And see AW Bradley and KD Ewing, Constitutional and Administrative Law, 15th edn (Harlow, Longmans, 2011) ch 11; Erskine May’s Parliamentary Practice, 24th edn (London, Butterworths, 2011) ch 12. See also R v Chaytor and others [2010] UKSC 52: the claiming of expenses by MPs is not protected by parliamentary privilege; MPs may therefore be prosecuted for criminal offences committed in relation to expenses. 20 [1965] AC 172, 198 (Privy Council). See G Marshall, Constitutional Theory (Oxford, Clarendon Press, 1971) 53–57. The decision was only possible because, unlike the position in the UK, the legislative procedures were laid down in the governing instrument (the Constitution). Hence parliamentary privilege Westminster style did not apply in Ceylon. See also Goldsworthy (n 2) 141–73 and 174–201 on manner/procedure and form. 18

Parliament and the Courts 313 justifications for exclusive cognisance. I suggest that the pragmatic reason why the British Parliament will not legislate to permit the courts to examine the intra-parliamentary legislative process must be that this might lead to the courts disapplying provisions in Acts that had not been duly passed when—unlike the position in Ranasinghe—there is no written constitution giving them the power to do so; this could result in major constitutional conflicts, and loss of trust and comity between institutions—notably between the courts on the one hand and the Houses of Parliament and the executive on the other; and ultimately it could lead to a loss of authority in the courts and thus a weakening of the rule of law itself: I consider these issues more fully below.

B. The Special Position of European Law The doctrine that the courts will give effect to European law even if it conflicts with provisions in Acts of the UK Parliament was first elaborated by Lord Bridge in Factortame (II)21 and it has been applied in many cases since then. It is based on a range of justifications—contractual in the sense that it was part of the terms of the UK’s membership of the European Communities, now Union, that the UK would accept the primacy and direct effect of European law, since the doctrine had already been established in rulings by the European Court of Justice when the UK joined; and functional because the EU could not operate unless the courts of the Member States give direct effect and primacy to EU law.22 Another way of looking at it—and one which the European Union Act 2011 seeks to emphasise by its declaratory section 1823—is that British courts accept the express instructions that were given to them in the European Communities Act 1972, s 2(4) to give direct effect and primacy to European law: the courts are giving effect to their duty in UK law to obey legislation of the UK Parliament;24 to that end these Acts have modified the doctrine of implied repeal.25

C. A Democratic Principle? Moving away from parliamentary privilege and the basis for the effect of European law in the UK, the most widely offered rationale for the doctrine of parliamentary sovereignty or supremacy in relation to Acts of Parliament is that

21

[1991] 1 AC 603. Lord Bridge in Factortame (n 11) and P Craig, ‘Britain in the European Union’ in Jowell and Oliver (n 2). 23 The European Union Act 2011, s 18 provides that EU law ‘falls to be recognised and available in law in the UK only by virtue of ’ the European Communities Act 1972 or any other Act. 24 Thoburn v Sunderland City Council (n 5). 25 Ellen Street Estates Ltd v Minister of Health (n 3). 22

314 Dawn Oliver it is ‘a democratic principle’:26 the courts should recognise and give effect to Acts as law and as the highest form of law because they are produced by a formal legislative procedure (and thus mere resolutions of Parliament are not law27) in which elected representatives determine the content of laws. (We should pause here to remind ourselves that the House of Lords is not elected.) It is the duty of elected representatives to exercise their powers in the interests of their constituents and the general public.28 It would be contrary to this—in my view foundational— public interest principle for the courts to refuse to give effect to such laws, as they would be substituting their own concepts of where on balance the public interest lies for those that have been put in place in primary legislation by the representative and electorally accountable legislature and government.29 They would also be changing an important constitutional principle unilaterally, informally and without following appropriate consultation and consent-giving procedures.30 And, if the court’s decision challenges the sovereignty of Parliament, it follows that it can only be reversed by a higher court or, if made in the Supreme Court, by that court in exercise of its power under the 1966 Practice Statement31 to depart from a previous decision when it appeared right to do so. The court’s decision could not be reversed by Act of Parliament. Thus the position after a judicial striking down of an Act in the UK would be even more rigid or entrenched than in many democracies with written constitutions in which political processes are commonly available to override judicial determinations by constitutional amendment, eg by referendum (as in Ireland) or by parliamentary super-majorities (as in the USA, India and many European countries). The ‘democratic principle’ basis for UK style parliamentary sovereignty raises a number of further issues. If we consider that democracy is a good thing, a positive value, then how do we deal with the possibility that a parliament that is ‘sovereign’ (in the sense that the courts will give effect to its laws as the highest form of law) may pass laws that deny access to justice or discriminate against certain categories of people (children, foreigners, homosexuals, men,32 Muslims, paedophiles, Roman Catholics and women,33 for example) or favour others (party funders, 26 The doctrine of parliamentary sovereignty began to develop in the seventeenth century, before democracy: the ‘democratic’ principle is therefore a post-rationalisation of parliamentary sovereignty. 27 Bowles v Bank of England [1913] 1 Ch 57. 28 E Burke, Speech to the Electors of Bristol, 1774. And see reports of the Committee of Privileges in the WJ Brown Affair 1948 (HC 1946–47, 118) and HC Deb 15 July 1947, col 284, and cases involving the National Union of Mineworkers and the National Union of Public Employees’ sponsorship of MPs: (HC 1971–72, 50), (HC 1974–75, 634) and (HC 1976–77, 512); and see Lord Hope in AXA General Insurance Ltd and others v The Lord Advocate (n 5) [49]. 29 If however the courts have been tasked by Act of Parliament to decide where the balance between public and private interest lies, as under s 2 of the European Communities Act 1972 and s 4 of the Human Rights Act 1998, then it is their duty to do so. 30 See House of Lords Constitution Committee, The Process of Constitutional Change (Fifteenth Report) (HL 2010–12, 177). 31 [1966] 3 All ER 77. 32 Let us not forget that men are a minority in most populations. 33 Women are a majority in most populations.

Parliament and the Courts 315 friends, relations and cronies, for example) over the general public, especially if that may be done by a simple majority of those present and voting when the law is passed? It may be that giving effect in law to the will of the majority in Parliament is considered by supporters of parliamentary sovereignty as a democratic principle to justify or legitimate all laws; that concept of democracy, if it operates in a country, does not in my view make a democratic system ‘good’ or result in good government or good governance.34 But ‘good’ or not, raw majoritarianism, if it results in long-term discrimination against sections of the population or favourable treatment for others, or the limitation of the franchise or indefinite postponement of elections, can lead to the alienation of large sections of the population, lack or loss of legitimacy of the system in the eyes of those who are discriminated against, and ultimately to disorder and even civil war: the Troubles in Northern Ireland provide an example of this, to the extent that they were caused by the majoritarian and discriminatory rule by Unionists at Stormont from 1921 to 1972 and which led to the imposition of direct rule from Westminster.35 So the ‘democratic principle’ rationale for the sovereignty of Parliament is weak, and the present position allows for the abuse of parliamentary sovereignty by passage of laws that are inconsistent with important constitutional principles, including the rule of law. II. A CHOICE FOR THE UK: CONSTITUTIONAL SUPREMACY OR PARLIAMENTARY SOVEREIGNTY AND PRAGMATISM?

As is well known, since the 1960s courts in the UK, including the House of Lords and the Supreme Court, have developed important administrative law principles in cases in which the discretionary decisions of public bodies have been called in question.36 A question is whether this line of cases opens up the possibility that the courts may decide that they have the power at common law to disapply or strike down a statutory provision on the ground of its unconstitutionality or breach of the rule of law.

34 See R Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Oxford, Oxford University Press, 1996) 15ff. 35 See C McCrudden, ‘Northern Ireland and the British Constitution’ in Jowell and Oliver (n 2) 6th edn (2007); P Dixon Northern Ireland: The Politics of War and Peace, 2nd edn (Basingstoke, Palgrave Macmillan, 2008); B O’Leary and J McGarry, The Politics of Antagonism: Understanding Northern Ireland (Atlantic Highlands, NJ, Athlone Press, 1992); J Whyte and G Fitzgerald, Interpreting Northern Ireland (Oxford, Clarendon Paperbacks, 1991); D Birrell and A Murie, Policy and Government in Northern Ireland: Lessons of Devolution (Dublin, Gill and Macmillan, 1980). 36 The landmark cases have included Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 (ultra vires rule); Ridge v Baldwin [1964] AC 40 (HL) (natural justice); Padfield v Minister of Agriculture [1968] AC 997 (HL) (relevant/irrelevant considerations); Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (grounds of review are procedural propriety, legality and irrationality; justiciability issues). For a brief summary see Bradley and Ewing, Constitutional and Administrative Law (n 19) chs 30 and 31.

316 Dawn Oliver Since the mid-1990s the rhetoric of the courts in judicial review cases has changed so as to identify some principles as ‘constitutional’ or ‘fundamental’37 and not merely administrative. Lord Hoffmann famously indicated in R v Secretary of State for the Home Department, ex p Simms: [The] courts of the United Kingdom, though acknowledging the sovereignty of Parliament [will] apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.38

A. Towards Judicial Striking Down of Statutory Provisions? The application of ‘constitutional’ or ‘fundamental’ principles of interpretation and decision-making to the discretions exercisable by public bodies is very different from the striking down of provisions in Acts of Parliament on grounds of unconstitutionality or breach of the rule of law: although there is a substantial academic literature to the effect that the courts may, even should, properly do so, the courts have not as yet gone so far as to refuse explicitly39 to give effect to a provision in an Act of Parliament. However, in recent years some judges, in extra-judicial lectures and articles,40 have suggested that the courts might be justified in refusing to give effect to a provision in an Act of Parliament which breaches what they consider to be fundamental principles to do with constitutionalism or the rule of law. These would be the kinds of provisions that could be struck down by Constitutional or Supreme Courts in countries such as the USA and Germany: in other words, they may not be regarded as ‘polycentric’ (and therefore unsuitable for judicial determination) but ‘justiciable’ in other systems.41 A similar pro-constitutionalism message

37 See, eg, R v Secretary of State for the Home Department, ex p Leach (No 2) [1994] QB 198 (prisoner’s constitutional right to communicate in confidence with his lawyers); R v Lord Chancellor, ex p Witham [1998] QB 575, per Laws J (imposition of court fees on impecunious litigants denied a fundamental constitutional right of access to the courts); R v Secretary of State for the Home Department, ex p Pierson [1998] AC 539 (retrospective alteration of the minimum term of imprisonment to be served before release on parole was possible a breach of the rule of law, a constitutional principle). Most recently in the AXA case (n 5) members of the Supreme Court referred to such principles as based in the common law, though taking care not to state that their existence gives rise to a power in the court to strike down provisions in Acts of the Westminster Parliament: see, eg, Lord Hope at [48] (but cf [50]–[51], Lord Reed at [141]). 38 [2000] 2 AC 115. 39 However in Anisminic v Foreign Compensation Commission (n 5), the House of Lords gave a very strained interpretation to the ouster clause in the Foreign Compensation Act 1950 and accepted jurisdiction to review a decision that appeared to be protected by it on the ground that it was invalid and therefore not a ‘decision’ within the meaning of the Act as it was ultra vires the Commission. 40 See Lord Woolf, ‘Droit Public—English style’ [1995] Public Law 57; Sir John Laws, ‘Law and Democracy’ [1995] Public Law 72; cp J Sumption QC (now Lord Sumption, a Justice of the Supreme Court) ‘Judicial and Political Decision-Making: The Uncertain Boundary’ (FA Mann lecture, 2011). 41 See L Fuller, ‘The Forms and Limits of Adjudication’ (1978) 92 Harvard Law Review 351.

Parliament and the Courts 317 was given, obiter, by Lord Hope in Jackson v Attorney General: ‘Parliamentary sovereignty is no longer absolute, if it ever was’, and ‘The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based. … The courts have a part to play in defining the limits of Parliament’s legislative sovereignty’.42 There is a growing academic literature to similar effect.43 And another literature in defence of parliamentary sovereignty, including articles by judges.44 It is not possible or necessary to summarise, analyse or critique either of those positions in the space available here. My thesis is that the present doctrine is in reality (and whether you like it or not) a pragmatic and not necessarily a principled arrangement between the courts, Parliament and the executive, an arrangement that is unlikely to be terminated by either side and that works relatively well. I discuss this in the next section.

B. Parliamentary Sovereignty—a Doctrine, not a Democratic Constitutional Principle I have tried to avoid until now referring to parliamentary sovereignty as a principle. Sovereignty is rather, I suggest, a tenet of the Constitution, a proposition that serves as the foundation for a system of belief or behaviour (Shorter OED). But it is not, or at least not unarguably, based on a principle in a normative sense of morally correct behaviour and attitudes. It accepts that Parliament may pass and expect the courts to give effect to immoral laws or laws that are incompatible with international obligations or not consistent with important constitutional principles, such as the rule of law or respect for human rights.45 I suggest that the doctrine of parliamentary sovereignty is—like parliamentary privilege which I discussed briefly above—instead of or, depending on one’s view, as well as—a constitutional principle, a pragmatic constitutional arrangement

42 [2006] 1 AC 262, [104]–[107]. See also comments in the AXA case (n 5) in which some of the judges discussed the question whether a common law jurisdiction existed to review the exercise of legislative powers by the Scottish Parliament. They were careful to distinguish the UK Parliament. 43 See, eg, T Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford, Oxford University Press, 2001); D Edlin, Judges and Unjust Laws: Common Law Constitutionalism and the Foundations of Judicial Review (Ann Arbor, University of Michigan Press, 2008); A Kavanagh Constitutional Review Under the UK Human Rights Act (Cambridge, Cambridge University Press, 2009); S Lakin, ‘Debunking the Idea of Parliamentary Sovereignty: The Controlling Factor of Legality in the British Constitution’ (2008) 28 Oxford Journal of Legal Studies 709. The various positions are discussed by Goldsworthy (n 2). 44 See, eg, J Griffith ‘The Political Constitution’ (1979) 42 Modern Law Review 1; J Waldron, Law and Disagreement (Oxford, Oxford University Press, 1999); and see Goldsworthy (n 2) for a review and discussion of this literature; extra-judicial writings by judges defending parliamentary sovereignty include T Bingham, The Rule of Law (London, Penguin, 2010) 167; Lord Neuberger, ‘Who Are the Masters Now? (Lord Alexander of Weedon lecture, 6 April 2011). 45 See Ungoed-Thomas J in Cheney v Conn [1968] 1 All ER 779.

318 Dawn Oliver making for an effective, cooperative working relationship between the executive, Parliament and the courts. Let us consider what the implications would be if a court were to refuse to give effect to an Act of Parliament on grounds advocated by the judges and commentators noted above—breach of the rule of law, for instance. If a court were to do so it would be changing an important, fundamental constitutional law—the sovereignty of Parliament—unilaterally, without formal process or prior consultation and without endorsement from the electorate.46 It would not be the first time that a constitutional rule has been changed unilaterally by the courts. The CCSU case is a strong example.47 The Appellate Committee of the House of Lords decided that, contrary to what had been understood to be the legal position, exercises of royal prerogative power could, if the nature of the power was justiciable, be subjected to judicial review. However, that was not a case about the validity of an Act or part of an Act, it was a change in a common law rule and it was open to Parliament—as it always is under the doctrine of parliamentary sovereignty—to reverse the rule. Even if the sovereignty of Parliament is a common law creation—and I do not propose to engage in the debates about that48—there is a qualitative difference between changing a common law rule which it would be open to Parliament to reinstate, and changing the doctrine of parliamentary sovereignty itself which, by definition, it would not be open to Parliament to reinstate—at least not by recognised legal processes as opposed to doing so in the political sphere, involving recriminations between the organs of state, the mobilisation of public opinion against the courts, the politicisation of judicial appointments and eventual undermining of the authority of the courts and thus the rule of law.

C. A Hypothetical Imagine that Parliament has recently passed a provision authorising the indefinite detention without trial of suspected terrorists. The measure was passed during a public panic about terrorism. Public opinion and the press and parliamentarians of the party in government which promoted the legislation were strongly in favour of using such powers. The Home Secretary orders the detention under that provision of suspect A. A applies to the court for habeas corpus, and release on the ground that the provision in the Act is contrary to fundamental common law principles and the European Convention on Human Rights (ECHR). The court 46

See Constitution Committee Report on The Process of Constitutional Change (n 30). Council of Civil Service Unions v Minister for the Civil Service (n 36). In the earlier case of R v Criminal Injuries Compensation Commission, ex p Lain [1967] 2 QB 364 the Divisional Court reviewed the exercise of power that had been granted under royal prerogative powers to make Orders in Council. 48 See, eg, A Kavanagh, Constitutional Review under the Human Rights Act (n 43); Lakin, ‘Debunking the Idea of Parliamentary Sovereignty’ (n 43). 47

Parliament and the Courts 319 finds that the Act is indeed defective in these ways, that the Home Secretary’s order for detention was therefore unlawful and of no effect, and that compliance by state bodies with fundamental common law principles and the ECHR is a requirement of the rule of law (as it is understood by the courts), a constitutional principle which binds all bodies including Parliament and the executive. The court releases A. What would happen if the minister ordered the rearrest of A and refused to produce him to the court on his next application for habeas corpus? It would be easy to reply: ‘The minister—and the prison governor—would be committed for contempt of court if he refused to release or order the release of the suspect, of course’, implying that this is an obvious answer to an obviously stupid question. But the implications of such a finding for the relationships between politicians and the courts need to be thought through before such an answer is accepted. Our system, particularly because we lack a written constitution which is considered by the institutions of government and by the public to legitimate such activities of the courts, depends for its working in part upon mutual respect and comity between institutions, particularly between the courts on the one hand and Parliament and executive bodies on the other. Lord Carswell had this in mind in his speech in Jackson v Attorney General: referring to the principles of the sovereignty of Parliament and the conclusiveness of the parliament roll or the Speaker’s certificate, he noted that they are [J]udicial products of that carefully observed mutual respect which has long existed between the legislature and the courts. As a judge I am very conscious of the proper reluctance of the courts to intervene in issues of the validity of Acts of Parliament. I should be most unwilling to decide this or any other case in a way which would endanger that tradition of mutual respect. I do not, and I have no doubt your Lordships do not, have any wish to expand the role of the judiciary at the expense of any other organ of the State or to seek to frustrate the properly expressed wish of Parliament as contained in legislation. The attribution in certain quarters of such a wish to the judiciary is misconceived and appears to be the product of lack of understanding of the judicial function and the sources of law which the courts are bound to apply.49

According to M v Home Office50 a court might, having made an order which a minister disobeyed, just declare the minister to be in contempt. A mere declaration would not do the court’s authority any good at all in this hypothetical situation. It is unlikely that the press or the members of the House of Commons would take the court’s side and press the government to respond positively to the declaration. If the declaration were ignored, the lesson that the executive learned would be that it can get away with such responses to the courts. Would we want that?

49 50

R (Jackson) v Attorney General [2005] UKHL 56, [168]. [1994] 1 AC 377, HL.

320 Dawn Oliver Alternatively the court could commit the Home Secretary to prison for contempt. The Minister of Justice (who is responsible for prisons) might then order the prison governor to release the Home Secretary on the basis that it was unconstitutional, anti-democratic and unlawful—a breach of the rule of law as understood by politicians—for the court to refuse to give effect to an Act of Parliament. The prison governor might obey the Minister of Justice and release the Home Secretary while continuing to detain A, and so himself be committed for contempt, along with the Minister of Justice.51 The battle would continue, with press and public opinion probably behind the ministers. So such a court order might turn out not to be practically enforceable if resisted by government on the ground that it was not legitimate for the courts to change the law unilaterally and (unless the Supreme Court were to change its mind) irreversibly—in such a way. Or, if it was enforced, the backlash might be that Parliament legislates to politicise the judicial appointment system, so that the courts could then be packed with judges sympathetic to the government and the Court Service could come under ministerial directions as to the deployment of judges and the listing of cases so as to ensure that ‘unreliable’ judges did not sit on certain kinds of case. Ouster clauses could become commonplace. And so on. I think the courts would be defeated, and in the end the Supreme Court would exercise its power under the Practice Statement of 1966 to reverse its position and reinstate the doctrine of parliamentary supremacy. But by then untold damage would have been done to the respect in which the courts are held in government, in Parliament and by the general public and to good relations between those institutions. The rule of law itself would have been weakened. The relationship between the executive and the courts in the UK, lacking as it does a written constitution which defines that relationship, depends upon reciprocity, trust and cooperation—the basic elements of human social interaction.52 Any system of government involves such interaction. If those collapse, then the very constitutional system itself might collapse into recurring conflicts between the courts and the executive, tit for tat battles, ostracism of the courts by ministers, and mistrust. It is by no means certain that the rule of law would win over politics and parliamentary supremacy in such a situation. But, you will be thinking, surely this hypothetical is fanciful: normally ministers do obey court orders. Yes—and that is part of the culture of the rule of law. But if the courts were to challenge parliamentary supremacy, ministers would be able to invoke a whole lot of arguments in support of their refusal to obey the court—democracy, separation of powers, etc. Indeed it is likely that there would 51 For an account of a damaging conflict between the courts and the executive resulting in contempt proceedings in Ireland in 1921 see KD Ewing and C Gearty, The Struggle for Civil Liberties (Oxford, Oxford University Press, 2001) 365–69, and the case out of which it arose, Egan v Macready [1921] 1 IR 265. 52 See, eg, S Blackburn, Ruling Passions: A Theory of Practical Reasoning (Oxford, Clarendon Press, 1998); H Gommer, A Biological Theory of Law: Natural Law Theory Revisited (Seattle, Create Space/ Amazon, 2011).

Parliament and the Courts 321 be a great hue and cry against the courts not only from the government, but from MPs, the press and the public. In my view therefore it could well be extremely unwise, damaging to the authority of the judiciary and the rule of law itself and to the stability of our constitutional arrangements, and counterproductive for the courts to strike down a provision in an Act, however much it is contrary to some of the elements of the rule of law and other constitutional doctrines and ‘principles’. Bear in mind that the duties of judges are not limited to upholding individuals’ rights. They include ensuring the practical working of constitutional arrangements, for instance relationships with the EU and between the UK and devolved bodies, which in turn facilitate the rule of law. There are, in other words, respectable consequentialist reasons for judges in the UK accepting parliamentary sovereignty and holding back from making judgments that might be impossible to enforce against the executive in such a nuclear option situation, especially when we take into account the important influence of the non-legal environment in which government and Parliament operate in the UK and which upholds constitutional principles—the subject of the next section of this chapter. So in my view a ‘principle’ that the rule of law is the controlling principle and might entitle courts to disapply statutory provisions—as Lord Hope indicated in Jackson— would come up against the typical, pragmatic and wise English response: the principle is all very well in theory, but what about the practice? The practice of striking down legislation in our unwritten constitution and constitutional culture would not work. Griffith was right in ‘The Political Constitution’53 that many parts of our constitution (not all) are the outcome of conflicts. The restoration of parliamentary sovereignty would be the outcome of a conflict between the courts and the executive, but the courts would have lost authority and face in the course of that conflict.

III. CONFLICT, COMITY AND CULTURE IN RELATIONS BETWEEN THE COURTS, PARLIAMENT AND THE EXECUTIVE

I suggest that an important rationale for the British courts’ recognition of Acts of Parliament as the highest form of law besides the ‘democratic principle’ and ‘parliamentary privilege’—neither of which is convincing when seen in a comparative perspective—is based in comity between institutions and workability: pragmatic principles established over centuries that the courts will refrain from questioning the legal validity of Acts passed by the UK Parliament, and that Members of the two Houses of Parliament will respect the courts and their decisions and will not seek to undermine them and the rule of law. I suspect therefore that the dominant though seldom articulated reason why courts in the UK accept parliamentary sovereignty is that it represents a way of avoiding a conflict between the courts and the executive which the courts could not win. It might be different if the UK had a

53

Griffith, ‘The Political Constitution’ (n 44).

322 Dawn Oliver written constitution which mandated the courts to refuse to give effect to ‘unconstitutional’ laws—a matter discussed below. But that is not the current position. This is not something that British judges, or others as far as I know, have discussed publicly. But Lord Justice Stephen Sedley had the following to say in his review of Vernon Bogdanor’s book, The New British Constitution: what would happen in real life if the higher courts treated … a withdrawal of their jurisdiction [by a provision in an Act which ousted judicial review of a tribunal’s decisions on asylum claims] as unconstitutional, ignored it and allowed an asylum seeker’s appeal? The home secretary, not recognising their jurisdiction, would proceed with deportation, and the court would arraign him for contempt. How would it end? We do not know, and most of us would prefer not to find out.54

Interestingly, since the position in the UK resembles that in New Zealand, Matthew Palmer has recently written that: Institutionally, over the long term and particularly in New Zealand, the independence of the judiciary depends on the forbearance of the political branches of government. Cabinet and Parliament have the formal tools available in New Zealand’s constitution to undermine the independence of the judiciary if they wished: through appointments, dismissals, under-resourcing or restructuring various benches.55

Palmer suggests that the approach of parliamentarians is based in part on the high standing of the judiciary in public opinion; that standing could be damaged by a series of negative public reactions to judicial decisions and whether consciously or unconsciously, the judiciary, especially at the level of Heads of Bench and the Supreme Court, understands and should understand the importance of public opinion, according to a medium and long-term perspective, for the sustenance of its branch of government.56

Elliott suggests that relations between politicians and the courts in the UK and New Zealand are part of the ‘the mystery of the unwritten constitution’ which entails ‘voluntary exhibition of mutual respect’.57 These phenomena may be difficult to explain rationally, but they work.

54 S Sedley, ‘On the Move’ London Review of Books (8 October 2009) at www.lrb.co.uk/v31/n19/ print/sed101_.html. See also S Sedley in Ashes and Sparks (Cambridge, Cambridge University Press, 2011) 130, commenting on what would have happened if the ouster clause in the Immigration and Asylum (Treatment of Claimants) Bill had been passed, if the courts had refused to give effect to it, and the Home Secretary is found to be in contempt for disobeying their order: ‘And then? There would be no winner, no famous victory even, in such a confrontation. Even so … it was not necessarily a bad thing that [the proposed ouster clause] had gone as far as it had: the government had realised that there were limits to what it could properly ask Parliament to do; constitutional lawyers had realised that the limits were less secure than they had thought, and the sky still seemed to be in place’. 55 M Palmer at 71, available at http://works.bepress.com/matthew_palmer/33. 56 Ibid. For further discussion of the importance of culture in the working of the New Zealand Constitution see M Palmer, ‘New Zealand Constitutional Culture’ at http://works.bepress.com/ matthew_palmer/26/. 57 M Elliott, ‘Interpretive Bills of Rights and the Mystery of the Unwritten Constitution’ [2011] New Zealand Law Review 591 and 622.

Parliament and the Courts 323 IV. DETERRENTS AGAINST ABUSE OF PARLIAMENTARY SOVEREIGNTY

Assuming that the doctrine of parliamentary sovereignty is here to stay, let us focus on the measures that are currently in place which operate to deter Parliament from passing ‘unconstitutional’ legislation, and to deter the government from promoting or proposing such legislation.58 I shall consider in section V whether any further arrangements need to be put in place to strengthen the protection of constitutionalism and constitutionality. A. Political Cultural Capital The UK possesses valuable cultural capital, including respect among politicians, civil servants and lawyers for the international59 and national rule of law. This is exemplified in section 1 of the Constitutional Reform Act 2005 which states that the Act does not affect the rule of law and retains the role of the Lord Chancellor in relation to it.60 The rule of law culture is coupled with strong attachment to the doctrine of parliamentary sovereignty. These might seem to be contradictory cultural tendencies, but the two are brought together by the existence of constitutional conventions and many soft law documents which regulate political processes (codes, manuals and others, discussed below); they articulate the importance of respect for constitutional principles and the rule of law in the context of continuing legal sovereignty, and of practical political realities; for instance, the fact that ministers proposing ‘unconstitutional’ legislation (or refusing to secure the enactment of legislation to comply with the international rule of law) know that they will be advised against them by the Treasury Solicitor, their departmental lawyers, Parliamentary Counsel and the Law Officers, and criticised by parliamentary committees charged with scrutiny of Bills against broadly constitutional criteria.61 The British system relies very heavily on its politicians to take responsibility for the international reputation of the country and for internal compliance with constitutional principles. This approach is shared by the Netherlands, Sweden, Finland and New Zealand. The United Kingdom is not unique. Generally these political responsibilities are taken seriously. If the courts were to assume responsibility for respecting and upholding the rule of law by the development of judicial review of Acts for constitutionality, the political culture might change. In American terms we would have moved from a system of parliamentary sovereignty to one of judicial supremacy.62 Politicians 58 I am particularly indebted to Sir Stephen Laws for information and advice on sections IV and V of this chapter. 59 But note discussion of Hirst v UK, below. 60 See ch 13. 61 These are discussed below in this section. 62 See Brown v Board of Education 347 US 483 (1954): ‘the federal judiciary is supreme in the exposition of the law of the Constitution’; M Tushnet, The Constitution of the United States of America (Oxford, Hart Publishing, 2009) 138–40.

324 Dawn Oliver may become less concerned about their responsibilities in these matters and content to leave them to the courts: the implications for the independence of the judiciary and its status and legitimacy and thus for the rule of law would be very negative if the courts found themselves driven to making controversial decisions because politicians had neglected their responsibilities as to the constitutionality of the laws they pass. This would be even more serious if it led to pressure for politicisation of judicial appointments.

B. International and European Standards The British Government and Parliament, like most others in democratic countries, operate under the shadow of international law—the ECHR, the International Covenant on Civil and Political Rights and many other instruments. As a member of the European Union the UK is both legally and politically obliged to respect many important EU individual rights and principles of good governance. Ultimately the European Commission may institute infringement procedures against a state that is in breach of European law. So the scope for abuse of parliamentary sovereignty in the UK is limited by European and international law and political constraints. The Human Rights Act 1998 provides a strong example not only of a statutory commitment to compliance with international obligations, including the section 4 power of higher courts to make declarations of incompatibility, but also of political commitment to compliance with the ECHR: the requirement under section 19 of the Human Rights Act that a minister in charge of a Bill must make a statement of its compatibility with Convention rights, or a statement that the government wishes to proceed with the Bill even if it is not compatible, places responsibility for compliance clearly on ministers and the government. Such ‘possible non-compliance’ statements had only been made on two Bills as of summer 2012.63 The Government was concerned that the Communications Bill 2002 (which became the Communications Act 2003) might breach Article 10 (freedom of speech) because of its provisions for restrictions on political advertising on television: in due course the House of Lords decided that the provision in the Act was not incompatible with Article 10: R (Animal Defenders’ International) v Culture, Media and Sport Secretary,64 and this conclusion was upheld by the Grand Chamber of the European Court of Human Rights.65 The Explanatory Notes to the House of Lords Reform Bill 201266 included a ‘possible non-compliance’ statement because no prisoners would be entitled to vote in elections to the second

63 64 65

See also discussion in chs 5 and 9. [2008] UKHL 15. Animal Defenders International v UK, (Application no) 48876/08 Grand Chamber, 22 April

2013. 66

See www.publications.parliament.uk/pa/bills/cbill/2012-2013/0052/en/13052en.htm.

Parliament and the Courts 325 chamber, contrary to the European Court of Human Rights decision in Hirst v UK (No 2)67 in which the Court found that the blanket denial of the right to vote in parliamentary elections to all prisoners in the UK was incompatible with Article 3 of Protocol 1 of the ECHR. That Bill was withdrawn in September 2012 after a vote against the proposed programme motion. The UK has, until recently, had a good record of compliance with decisions of the European Court of Justice, and with the decisions of the European Court of Human Rights, despite the fact that, unlike the Netherlands—another country with a sovereign Parliament—it is a dualist country. On 22 November 2012 the Government published a Voting Eligibility (Prisoners) Draft Bill68 in response the Hirst (No 2) v UK decision of the European Court of Human Rights that the denial of the right to vote to prisoners was incompatible with the Convention.69 A Joint Committee of both Houses is to be established for pre-legislative scrutiny of the Bill. It proposes three options: the grant of the right to vote to prisoners sentenced to less than four years, to prisoners sentenced to six months or less, or no change. Thus the Government attempted to discharge its duty under the ECHR to implement the decisions of the court, knowing however that its own backbenchers and those of the Labour Opposition did not support the extension of voting rights to prisoners. The culture of compliance with the UK’s international obligations among politicians is not watertight. Politicians may not have much idea what the rule of law is and what it requires and, as with the Government’s and the House of Commons response to the Hirst case on prisoners’ votes, may not realise how serious breaches of the rule of law can be for the UK’s reputation and for the rule of law itself. However, the rule of law cultures exists also, and strongly, among many public officials who are engaged in the legislative and general governmental processes.70 This culture is reflected in many of the informal codes and guidance documents which regulate governmental activity—for instance, the Guide to Making Legislation,71 the Ministerial Code,72 the Cabinet Manual,73 the Civil Service Code,74 Working with Parliamentary Counsel75 and others: they impose duties of good government, in

67

(2006) 42 EHRR 41. See below for further discussion of this case. See letter from the Rt Hon Chris Grayling MP, Lord Chancellor and Secretary of State for Justice to Dr H Francis, MP, chair of the Joint Committee of Human Rights, dated 22 November 2012 at www. parliament.uk/joint_committee_on_human_rights_letter_from_Mr_Grayling_on_prisoner_voting. pdf. 69 See HC Deb 22 November 2012, cols 745–46, and ch 3. 70 See T Daintith and A Page, The Executive in the Constitution: Structure, Autonomy and Internal Control (Oxford, Oxford University Press, 1999). 71 See Cabinet Office, Guide to Making Legislation. 72 Cabinet Office (May 2010). 73 Cabinet Office (2011). 74 Presented to Parliament in November 2010 in accordance with the Constitutional Reform and Governance Act 2010, s 5. 75 www.cabinetoffice.gov.uk/sites/default/files/resources/WWPC_6_Dec_2011.pdf. 68

326 Dawn Oliver accordance with law and with the Seven Principles of Public Life, of selflessness, integrity, objectivity, accountability, openness, honesty and leadership.76 All civil servants are bound by Civil Service Code which requires them to conduct themselves with honesty, integrity, impartiality and objectivity. The Treasury Solicitor, departmental lawyers and Parliamentary Counsel are bound in addition by their professional ethics to uphold the law. In the course of the discussion and development of proposals for legislation, the Treasury Solicitor and departmental lawyers, mindful perhaps of section 1 of the Constitutional Reform Act (‘This Act does not adversely affect … the existing constitutional principle of the rule of law’) and the importance of the rule of law, will recognise any constitutional and rule of law pitfalls that arise and may advise ministers to drop them or to find other, constitutionally unobjectionable ways of achieving their ends.77 Discussions may take place at staff level between Bill teams and the legal advisers to Parliament’s Joint Committee on Human Rights (discussed below). Parliamentary Counsel are in many ways constitutional watchdogs—guardians of legality, though they are not regulators of government—and they may raise issues with the minister when receiving instructions on the drafting of Bills.78 If, notwithstanding the concerns of government lawyers and Parliamentary Counsel, a minister is adamant that an ‘unconstitutional’ provision be included in a draft Bill, then Parliamentary Counsel may not refuse to do the drafting. They owe professional duties to do their best by their client, the Government. Ultimately all civil servants are accountable to their ministers and not to Parliament and they are not in a position to veto the inclusion of ‘unconstitutional’ provisions in Bills. However there may come a time when an issue has to be referred to the Attorney-General, who will be in a strong position to advise against pursuing legislative proposals that would be considered unconstitutional or in breach of the UK’s international obligations and would run into trouble in one or other or both Houses of Parliament.79 Parliamentary Counsel are expected to contribute to the brief for the Law Officers for the meetings of the Parliamentary Business and Legislation Committee of the Cabinet when it considers a Bill or amendments.80 (However the source or contents of the legal advice received by the Government

76 Formulated by the Committee on Standards in Public Life in its First Report (Cm 2850, 1995) and adopted and incorporated in the above documents and in the Standing Orders of both Houses of Parliament. 77 Daintith and Page, The Executive in the Constitution (n 68) 248. 78 Ibid 254–56. 79 Ibid 256–58, 297–315. See also Guide to Making Legislation (n 69) ch 13 on Legal Issues and ch 20 on Handling Strategies in the Lords and the Commons; Cabinet Manual (n 71) para 3.46 and ch 6 on ministers’ overarching duty to comply with the law and the seven principles of public life, and to consult the Law Officers if departmental lawyers advise that there are doubts of a legal nature about proposals in a Bill. For guidance on some of the categories of issues in which the Law Officers may be interested see Working with Parliamentary Counsel (n 73) paras 55–56, 230 and 281; these include the rule of law, retrospectivity, matters involving fundamental rights and freedoms, and delegated powers; and see D Oliver, ‘Constitutional Scrutiny of Executive Bills’ (2004) 4 Macquarie Law Journal 33–55. 80 See Working with Parliamentary Counsel (n 73) paras 275–84.

Parliament and the Courts 327 is not disclosed to Parliament, although Explanatory Notes to Bills dealing with section 19 statements of compatibility will outline any governmental doubts about compatibility.81) Thus concerns of a constitutional nature may be brought up in these discussions. And ministers do not welcome the uncertainty82 that goes with constitutionally controversial proposals for legislation. All of those involved in the later stages of preparation of the Bill for Parliament will also be in a position to predict whether proposals in a Bill or draft Bill are likely to attract criticism there. The Guide to Making Legislation requires83 the development of a strategy for handling Bills in Parliament, particularly in the House of Lords: the Government will normally not have a majority in this House; constitutional arguments will attract special attention from the Joint Committee on Human Rights,84 the House of Lords Constitution Committee85 and its Delegated Powers and Regulatory Reform Committee or the European Union Committee and its sub-committees. House of Commons committees,86 too, may decide to scrutinise Bills for constitutional issues and raise questions about them—in particular the Justice Committee, the Public Administration Committee and the Political and Constitutional Reform Committee. Ministers, the Bill team and Parliamentary Counsel will be concerned that the courts may choose to interpret provisions so as to be compatible with the rule of law or constitutional principles and that this may mean that such provisions will not have the desired practical effect, or that it may provoke the courts into a more interventionist interpretation, thus ‘debasing the coinage of communication between Parliament and the courts’.87

C. The Houses of Parliament: Select Committees I have already referred to the fact that a number of select committees88 in the two Houses have in their remit the scrutiny of Bills and draft Bills and of executive action and policy against broadly constitutional criteria. Many of these committees are assisted by officials of the two Houses with legal expertise and by independent legal advisers.89 They include the Joint Committee on Human Rights. The House of Commons’ Public Administration, Constitutional and Political Reform, Justice and Home Affairs Select Committees may also concern themselves with

81 For discussion of the rules about disclosure of legal advice, see debate on the Identity Documents Bill 2010 HL Deb 21 December 2010, cols 1030–33. 82 See discussion of uncertainty below. 83 ch 20. 84 See ch 9 of this volume. 85 See ch 11 of this volume. 86 See ch 7 of this volume. 87 I am grateful to Sir Stephen Laws for the information in this sentence, and for this phrase. 88 See also ch 7 of this volume. 89 See ch 5 of this volume.

328 Dawn Oliver constitutional matters including the scrutiny of Bills and draft Bills, although formal scrutiny of Bills is done by public Bill committees. The House of Lords Constitution Committee, Delegated Powers and Regulatory Reform Committee and European Union Committee and its six sub-committees have specifically constitution-related remits. And from time to time ad hoc select committees are established to scrutinise Bills and draft Bills—for instance the Joint Committee on the Draft House of Lords Reform Bill 2011–12.90 Many of these committees have produced highly critical and independent reports on Bills and draft Bills and on constitutional issues. The government is expected to respond to select committee reports within two months of publication. These responses and other correspondence between the committees and government are published. The prospect of these committees scrutinising and reporting on constitutional issues that arise in Bills and draft Bills in non-party political and non-partisan ways and the requirement for the government to respond have effects upstream in government departments when policies are developed and instructions to Parliamentary Counsel are drawn up. The House of Lords Committees are particularly significant when it comes to consideration of the constitutionality of Bills. These Committees, like those in the House of Commons, are separate from and independent of the government; however, the members of Lords committees, being for the most part appointed to the House rather than elected and subject to being re-elected, are less party-political than House of Commons MPs. They conduct preventative and abstract review of Bills and draft Bills against broadly constitutional criteria; they are served by expert or legal advisers; their membership includes crossbench, independent members; and they work in a non-partisan way. The House of Lords Constitution Committee is of particular importance: in its reports on Bills and in reports on inquiries—for instance into The Process of Constitutional Change91—the Committee articulates objective constitutional standards and criteria against which Bills and draft Bills may be evaluated.92 The Committee is a skilful interrogator of government on these issues. It makes recommendations as to how constitutional standards can be upheld, and it engages in dialogue and correspondence with relevant ministers about its concerns. It is highly regarded. It is the authoritative—because of its membership and its position in the Upper Chamber—articulator of widely accepted—but often previously unarticulated— constitutional standards.93

90 See Joint Committee on the Draft House of Lords Reform Bill, Report (2010–12, HL 284, HC 1313). 91 (n 30). 92 See D Oliver, ‘Improving the Scrutiny of Bills: The Case for Standards and Checklists’ [2006] Public Law 219 for a taxonomy of the principles elaborated by the Constitution Committee in the 2001–2005 Parliament. For a review of the work of the Constitution Committee see J Simson Caird, ‘Parliamentary Constitutional Review: Ten Years of the House of Lords Select Committee on the Constitution’ [2012] Public Law 4–11. 93 See chs 11 and 13.

Parliament and the Courts 329 In many respects the House of Lords Constitution Committee resembles its cousins in our Northern European neighbours with sovereign legislatures, Sweden and, particularly, Finland.94 The existence and work of the Constitution Committee help to fend off what could be incoming cultural tides of Americanstyle constitutional preferences for judicial review of Acts of Parliament, of constitutional irresponsibility on the part of politicians, of partisan constitutional politics, and of the politicisation of judicial appointments. In their modest way the House of Lords Committees form the Thames Barrier and the Teddington lock and weir of the British Constitution, holding back influences from abroad— non-native species—which would not ‘fit’ the current UK system. The fact that the UK Constitution Committee—and other constitutionally focused committees such as the Delegated Powers and Regulatory Reform Committee and the European Union Committee and its sub-committees—are in the House of Lords is of great significance, both as regards the importance of nonpartisan approaches to constitutional issues in the House of Lords and—perhaps counter-intuitively—because of its lack of electoral legitimacy, from which duties on its members to refrain from party politics in relation to the Constitution may be inferred.95 Whether this would remain true of these committees if the House of Lords were elected is an open question. Members of an elected second chamber would be more politically partisan, enjoying electoral legitimacy they would not experience inhibitions from politically motivated activity, and they would not include the range of expertise in law, politics and other constitution-related disciplines of the present House and its constitutional committees.

D. Some Reflections It would be mistaken to assume that, lacking ex post facto constitutional review of statutes, the UK has no protections against abuses of parliamentary sovereignty. There are in existence elaborate organic systems of intra-governmental and intraparliamentary constitutional preview. Many of the measures that protect constitutionality that have been discussed in this section of the chapter protect the selfish interests of politicians, and they are obeyed for that reason: we are not in the field of pure public-spirited political altruism here. Breaches of international standards bring international opprobrium, loss of reputation and uncertainty in government as to the international sanctions that will be used against them. Breaches of conventions and codes or confrontations with parliamentary select committees charged with constitutional protection

94 See S Hentila ‘From the Power of the Estates to the Power of the People’ in The Parliament of Finland (Helsinki, The Parliament of Finland, 2000) 35–45; J Husa, The Constitution of Finland (n 8). 95 The House of Lords’ delaying power and its veto under the Parliament Acts over the extension of the life of a parliament beyond five years also serve to deter the passing of such legislation for partypolitical purposes.

330 Dawn Oliver may—and again governments do not enjoy uncertainty—generate not only public and political criticism but also withdrawal of cooperation, tit for tat behaviour on the part of other political actors and governmental bodies and loss of trust from the electorate.96 These all reflect the cultures in which government operates and the realities of practical politics. The incentives to self-restraint and compromise on constitutional and rule of law issues by governments also include the avoidance of a conflict with the courts which the government fears that it might lose, and the risk of erosion of the effectiveness of its legislation over policy outcomes which narrow ‘constitutional’ interpretation by the courts could lead to.

V. WHAT MORE IS TO BE DONE ABOUT PARLIAMENTARY SOVEREIGNTY?

What more, if anything, needs to be done to prevent abuse by politicians of parliamentary sovereignty? The UK is definitely at risk of Parliament passing laws which would, in most civilised Western democracies, be considered ‘unconstitutional’ or incompatible with broadly accepted principles of constitutionalism and the rule of law,97 including the international rule of law. It is also at risk of attracting international calumny if legislation is not passed to implement judgments of the European Court of Human Rights, for instance in relation to prisoner votes.98 An example of a near miss was the ouster clause in the Immigration and Asylum (Treatment of Claimants) Bill 2003: while the Bill would establish an independent and impartial tribunal charged with dealing with asylum claims and related issues, and would thus not be in breach of Article 6 of the ECHR, it contained a drastic ouster clause which was designed to prevent that tribunal’s decisions being subjected to judicial review on any grounds, including illegality, excess of jurisdiction and breach of procedural propriety. It is unlikely that the courts would have been able to interpret the clause in such a way as to allow judicial review of the tribunal’s decisions.99 The Bill passed in the House of Commons, despite the criticisms of the ouster 96

See D Oliver, ‘Psychological Constitutionalism’ (2010) 69 Cambridge Law Journal 639. In AXA (n 5), Lord Hope specifically considered the possibility that the Scottish Parliament in which the Government enjoyed a large majority might seek to abolish judicial review and stated (obiter) that ‘The rule of law requires that the judges must retain the power to insist that legislation of that extreme kind is not law which the courts would recognise’ (at [51]). Scotland has a written constitution in the Scotland Act 1998 and that Act does not include the statutory power to do such things; Lord Brown in AXA indicated that if a devolved legislature enacted a completely arbitrary measure, eg discriminating against red-haired people, it would be capable of challenge as offending against fundamental rights or the rule of law, at the very core of which are principles of equality of treatment ([97]). 98 See discussion of the Prisoner Voting (Eligibility) Draft Bill in section IV.B. of this chapter. Thus a problem arises over parliamentary refusal to legislate to implement ‘constitutional’ obligations, as well as the passing of ‘unconstitutional’ legislation. 99 By contrast in Anisminic v Foreign Compensation Commission (n 5) the House of Lords interpreted an ouster clause in such a way as not to protect a ‘determination’, ie a decision which was outside the jurisdiction of the Commission and was thus not a legally valid determination; the House of Lords did not admit to refusing to give effect to the clause on the basis that it was contrary to the rule of law or constitutional principles. 97

Parliament and the Courts 331 clause from the House of Commons Constitutional Affairs Committee in which it cited the views of judges and leading counsel given to them in evidence to the effect that the clause would be contrary to important constitutional principles.100 The Government was ready to pursue it in the House of Lords. It was only stopped because it was known that the previous Lord Chancellor, Lord Irvine, was planning to make an excoriating attack on the clause in debate in the House; this led the then Lord Chancellor, Lord Falconer, to withdraw the clause.101

A. A Written Constitution? One answer to the question how can constitutionalism be protected against parliamentary sovereignty is that we should follow the examples of many Western democracies and adopt an entrenched written constitution which would limit Parliament’s power either absolutely in ‘eternity clauses’ or by imposing special procedures on its amendment and granting the courts, or the Supreme or Constitutional Court, the power to disapply or invalidate provisions in Acts and other laws which are incompatible with the Constitution. Such a provision in a written constitution—assuming that the Constitution enjoyed broad public support—could provide the courts with the legitimacy for overriding a statutory provision which they lack under current arrangements. It will have become clear from what has gone before that I would not favour this. I am confident that other techniques can provide reasonably good protection without bringing about the negative consequences for judicial appointments and working relationships between the courts, government and Parliament that would flow from such a move. But anyway my prediction is that this is quite simply not going to happen. There is a lack of consensus about what such a constitution should contain: president or monarch, established Church or not, federal state or not, second chamber elected, appointed or a mixture, regionally or nationally based—or no second chamber at all, proportional representation or first past the post, a British Bill of Rights? I see no chance of reaching broad consensus unless we reach a ‘constitutional moment’102—unless one is precipitated by Scottish independence, which I do not expect to happen for some time if at all.103

100 Constitutional Affairs Committee, Asylum and Immigration Appeals (Second Report) (HC 2003–04, 211) paras 50–71. 101 See S Sedley in Ashes and Sparks (n 54) 128–30; D Oliver, ‘Constitutional Scrutiny of Executive Bills’ (n 90). 102 See B Ackerman, ‘The Living Constitution’ (2007) 120(7) Harvard Law Review 1738–812; see also D Oliver ‘Politics, Law and Constitutional Moments in the UK’ in D Feldman (ed) Law in Politics, Politics in Law (Oxford, Hart Publishing, forthcoming). 103 For discussion of the written constitution issue see: the House of Commons Select Committee on Political and Constitutional Reform, ‘Mapping the Path to Codifying—or not Codifying—the UK’s Constitution’ www.parliament.uk/business/committees/committees-a-z/commons-select/politicaland-constitutional-reform-committee/inquiries; V Bogdanor, The New British Constitution (Oxford, Hart Publishing, 2009); R Gordon, Repairing British Politics: A Blueprint for Constitutional

332 Dawn Oliver The House of Commons Political and Constitutional Reform Select Committee is currently working on ‘mapping’ the British Constitution.104 Here too there would be difficulty in reaching consensus even about the existing arrangements, particularly as to the inclusion in a written ‘mapped’ constitution of codes, conventions, guidance documents and other ‘soft law’ material of the kind considered above. If a mapping document were produced the question might arise whether the UK should follow the New Zealand example and enact it as an ‘ordinary Act’ which describes but does not entrench constitutional arrangements (though some provisions in the New Zealand Constitution Act 1986 (which ‘patriated’ the country’s constitution and broke the umbilical cord linking it to the UK) are entrenched by requirements for special majorities for their amendment or repeal). If such an Act were to be passed in the UK it could include requirements modelled on the Human Rights Act 1998 for ministerial statements of compatibility with the Constitution Act and for judicial declarations of incompatibility, neither of which would end parliamentary sovereignty by the introduction of US style judicial review. The position on implied repeal could be clarified in such an Act, requiring express repeal of provisions in ‘constitutional statutes’—if such could be defined or identified.105 Again, I do not foresee this happening in the absence of a ‘moment’.

B. Stronger Parliamentary Committees I have already noted the role of parliamentary committees in the scrutiny of Bills and draft Bills and reporting on concerns about matters such as the process of constitutional change. These committees could develop their roles so as to increase the pressures upstream in government against ‘unconstitutional’ legislation. The House of Commons Political and Constitutional Reform Select Committee published its report Ensuring Standards in the Quality of Legislation in May 2013.106 If its recommendation for the adoption of legislative standards were

Change (Oxford, Hart Publishing, 2010); D Oliver, ‘Review of Repairing British Politics’ (2010) International Journal of Law in Context 399; N Barber, ‘Against a Written Constitution’ [2008] Public Law 11; V Bogdanor, ‘Enacting a British Constitution. Some Problems’ [2008] Public Law 38; R Brazier, Constitutional Reform (Oxford, Oxford University Press, 2008); D Oliver, ‘Written Constitutions. Principles and Problems’ (1992) 45 Parliamentary Affairs 135; IPPR, Written Constitution for the UK (London, Institute of Public Policy Research, 1991); D Oliver, ch 16 ‘Towards a Written Constitution?’ in C Bryant (ed), Towards a New Constitutional Settlement (Smith Institute, 2007); see also Bryant (ed), from 153, a formulation of the present UK Constitution as of 2007; KC Wheare, Modern Constitutions, 2nd edn (London, Oxford University Press, 1971). 104

See website of the Political and Constitutional Reform Committee (n 101). The Government’s Response to the House of Lords Constitution Committee’s fifteenth report The Process of Constitutional Reform (HL 2010–12, 177) stated that constitutional legislation was not qualitatively different from other legislation, so that it would not be possible to define ‘constitutional’ statutes as requiring special processes (Cm 8181, 2011). 106 HC 85, 2013–14. See Oliver, ‘Improving the Scrutiny of Bills’ (n 90). 105

Parliament and the Courts 333 accepted by the Commons, the constraints upstream against such measures would be strengthened. It is open to the House of Lords Constitution Committee to formalise its scrutiny standards, drawing them from its past reports, so that government lawyers and the Cabinet could take them on board when preparing legislation. Responses by government could lead to their incorporation in the Guide to Making Legislation. And the Cabinet Manual could also incorporate guidance on complying with such standards. Such steps would strengthen the culture in favour of constitutionality in government and in Parliament. On constitutional concerns raised by Bills, the Constitution Committee could press government to provide constitutional impact statements, just as it provides environmental and regulatory statements, when a Bill is lodged in the vote office. The knowledge in government that the Committee will press on this and examine those statements should, again, have effect upstream when Bills are being drafted. If such reforms were to take place and be effective the institutional arrangements in the two Houses for dealing with constitutional and human rights issues would need to be strengthened. More joint committees may need to be formed, committees would need more staffing, the Clerks and officials of committees would need to cooperate and avoid unnecessary duplication of effort or missing of issues, and a proactive well-staffed legal service might be required.107 There may need to be established lines of contact between Clerks and officials serving ‘constitutional’ committees and Parliamentary Counsel and departmental lawyers.

C. A Greater Role for the Courts? The courts could develop ways of signalling their concerns about the constitutionality or rule of law aspects of Acts, for instance by non-statutory, common law ‘indications of inconsistency’ with constitutional principles on the lines of section 4 of the Human Rights Act 1998, or by outlining what is wrong with a government decision and then indicating why they refuse a discretionary remedy. This technique has been adopted by the New Zealand Supreme Court.108 The making of declarations of, in effect, ‘unconstitutionality’ without statutory authority would no doubt generate hostile political, press and public opinion, with politicians attacking judges for interventionist and Ivory Tower approaches. Such declarations would not give rise to the Human Rights Act section 10 power to remove incompatibility in remedial orders or imply that the country was in breach of its international obligations. Declarations of unconstitutionality might thus well be ignored by the executive. These points underline the precarious position of judges 107

See ch 5. Moonen v Board of Film and Literature Review [2000] NZLR 9 (NZCA) and R v Hansen [2007] 3 NZLR 1 (NZSC), discussed by P Rishworth in Oliver and Fusaro, How Constitutions Change (n 8) 255; and see Palmer, n 55 above. 108

334 Dawn Oliver in the UK and may be taken to illustrate the virtues of the pragmatic justification for parliamentary sovereignty.

D. Towards an Independent Scrutiny Commission? Looking ahead, the roles of the Constitution Committee, and of other watchdog committees such as the JCHR, the Delegated Powers and Regulatory Reform Committee, the European Union Committee and its sub-committees, as guardians of the Constitution and the rule of law might be less effective if the Second Chamber comes to be entirely or substantially elected. If an elected second chamber were to be established I suggest that we should consider a different approach to securing the proper scrutiny of Bills on non-political constitutional related grounds: regulation of the executive’s role in the legislative process. This could be done, for instance, by a Scrutiny Commission,109 which would be a rough equivalent to the Swedish Law Council110 or the Netherlands Council of State.111 My proposal is that, if the Second Chamber became less effective in constitutional scrutiny, the executive should be required by statute to submit its Bills before and after each stage in the parliamentary process to scrutiny by an independent, appointed body—a Scrutiny Commission—consisting of experts on the range of government policies, and lawyers. This Commission would subject Bills and draft Bills to ‘technocratic’ scrutiny according to statutory standards112 or criteria, for instance: — — —

— — — —

Does the Bill comply with the UK’s international obligations and standards, for example as to human rights protection? Does the Bill comply with European Union law? Does the Bill affect recognised principles of a constitutional kind—for instance, legal certainty, non-retroactivity, respect for the independence of the judiciary? Is the drafting legally workable? What is the evidence base for the policy? Have appropriate constitutional, environmental, equality and regulatory impact assessments and risk assessments been made? What consultations took place before the Bill was presented to Parliament?

The Commission would be required to report to Parliament and to the government on these matters and on the constitutional, legal and workability aspects of 109 See D Oliver, ‘The Parliament Acts, the Constitution, the Rule of Law and the Second Chamber’ (2012) 33 Statute Law Review 1. 110 See sources in n 7, above. 111 On the Netherlands, see n 6 above. For a proposal for an independent Law Council with fewer powers than those outlined in this section, see W Dale, Legislative Drafting: A New Approach. A Comparative Study of Methods in France, Germany, Sweden and the United Kingdom (London, Butterworths, 1977) 336–37. 112 For discussion of scrutiny standards see Oliver (n 90).

Parliament and the Courts 335 each Bill within a given time of its publication. The Commission would be entitled to propose amendments. The government would be required to publish its response to the Commission’s report within a given time before it could take the Bill to the next stage in the parliamentary process. The Commission would report again each time the Bill is amended whether on the initiative of the government or of backbench MPs. This would happen as the Bill progresses through both Houses. It would be for consideration whether, in cases of grave concern about a Bill, the Scrutiny Commission could impose additional delay on the progress of the legislation through Parliament. There would obviously have to be special provisions for emergency legislation. The fact of the reporting and responding requirements placed on the government and the Scrutiny Commission at each stage in each House would introduce delay and, in particular, uncertainty as to the progress of the Bill, which the government would not welcome. This should mean that ‘upstream’ the Bill was carefully drafted in order to avoid objections from the Scrutiny Commission. If a government is in a hurry it must do its best to avoid breaching the statutory scrutiny standards. The opposition—and government—parties in each House would be expected to draw on the Scrutiny Commission reports and government responses in their debates during the legislative process. Such arrangements should secure that Bills and draft Bills are carefully considered in government before being introduced into Parliament, that they are efficiently scrutinised by the Commission against non-partisan, non-party political, constitutional standards, and that each House conducts its own scrutiny against a better information base. A Scrutiny Commission would ensure that the government is under pressure to respond positively to scrutiny because of the delay at its disposal. An alternative—and weaker—model for regulating the executive’s role in the legislative process would be less formal: the establishment of a New Zealand style non-statutory, advisory Legislation Advisory Committee.113 Since such a body would have no statutory delaying or amending power, its effectiveness in protecting constitutional principles and promoting good quality laws would depend upon the respect in which it was held, and this in turn would depend upon the quality of its appointees, their method of appointment and security of tenure and the state of the constitutional and rule of law culture in government and Parliament. A Legislation Advisory Committee, if highly regarded, could be influential but, lacking statutory delaying or amending powers, less so than a Scrutiny Commission. VI. SUMMARY AND CONCLUSIONS

I have explored the ways in which the British doctrine of parliamentary sovereignty affects relationships between the courts, Parliament and the executive, and the rationales for the doctrine. The rationale most commonly cited is the democratic 113

See Joseph, Constitutional and Administrative Law in New Zealand (n 9) 22.3.6.

336 Dawn Oliver principle. But this explanation is unconvincing for a range of reasons: it allows for the passing of legislation that undermines the representative principle on which democracy is built, and of discriminatory laws. It is often assumed or asserted that the UK Supreme Court should follow the American example and take upon itself to refuse to give effect to provisions in Acts of Parliament which in their view are incompatible with the rule of law or other constitutional principles. However, importing American style judicial review into the UK without the authority of a written constitution would bring with it severe disadvantages including conflict between the courts and Parliament, freeing politicians from their primary responsibilities in relation to constitutional matters, and the probable politicisation of the judiciary. And there are significant cultural differences between the UK and countries in which provisions in Acts of the legislature may be challenged in court. Other countries besides the UK, including New Zealand and some of our Northern European neighbours, have developed alternative processes to judicial disapplication or striking down of statutes, and these are effective to uphold constitutional principles and the rule of law in those countries. They include the participation of independent expert bodies with responsibility for constitutional scrutiny of Bills, as in the Netherlands and Sweden, and/or careful intra-parliamentary scrutiny of Bills as in Finland. Those countries and the UK share significant characteristics: long-term constitutional continuity without revolution, parliamentarianism, and a pro-constitutional and pro-rule of law culture among politicians and public officials which does not treat constitutional arrangements in a partisan manner as being assets to be exploited by the government of the day. They help to explain why the UK system works quite well without judicial review—if not perfectly. I have suggested that there is a pragmatic rationale for the doctrine of parliamentary sovereignty in the UK: given the absence of a formal written constitution which enjoys public support and legitimacy, the courts know that a challenge by them to the legal validity of a provision in an Act of Parliament may itself be challenged and disobeyed by government, that in such a conflict the courts could well find themselves unable to enforce their orders, and that this may result in damage to the effectiveness of the rule of law and thus to the very constitutional foundations of the system of government in the UK. This is a reason, both pragmatic and principled, for the courts to refrain from disapplying or striking down statutory provisions. In practice parliamentary sovereignty is seldom abused by the executive and Parliament in the UK. I have considered how temptations to do so are currently counteracted: by respect for international standards, the role of parliamentary select committees especially in the House of Lords, and internal arrangements in government and among government lawyers which promote respect for the rule of law and constitutionalism. Bearing in mind how our cousins in other jurisdictions without judicial review manage nevertheless to function relatively well as liberal democracies, there are lessons to be learned about the importance

Parliament and the Courts 337 of maintaining a pro-constitutional culture in government, including among civil servants and government lawyers, and of not undermining the functions of Parliament, especially the House of Lords and its range of watchdog committees in upholding constitutional principles. Given that the UK is unlikely to adopt a written constitution which grants the Supreme Court the right to review provisions in Acts for constitutionality, further development of the current system of constitutional preview along the lines of the arrangements in New Zealand and our northern European neighbours should take place in order to strengthen protections of constitutional principles and the rule of law. The relationship between Parliament and the courts in the light of the doctrine of parliamentary sovereignty works relatively well and broadly in the public interest because the doctrine is a typically British pragmatic way of avoiding damaging conflict between the courts and our political bodies. It works largely because other arrangements are in place to constrain government, but not by law: law is not everything. And law without a supporting culture that values the rule of law and constitutionalism is very little. The British system works for reasons of tradition and culture. We share many of these with other countries which lack judicial review of legislation. We in the UK may be tempted by siren calls from elsewhere to follow what looks like a global trend towards ex post, concrete, judicial ‘control’ of ‘unconstitutional’ laws. But unlike those other countries, the UK lacks an entrenched written constitution. In my view it is unlikely to acquire one in the foreseeable future. Meanwhile the UK is in a strong position to survive without court-invented ex post, concrete constitutional review, and to build on its own home-grown cultural capital in a continuous process of incremental reform. In summary, in the absence of an entrenched written constitution establishing a constitutional court with constitutional review powers, parliamentary sovereignty can be just as, if not more, effective in preserving good government and good governance, and can avoid the negative unintended consequences of judicial review that have been experienced in other countries, as long as the culture is right and includes non-legal mechanisms that uphold constitutionality.

13 Parliamentary Accountability for the Administration of Justice GAVIN DREWRY*

‘The courts exist for the benefit of the public and provide, and should be seen to provide, a public service, as much as, say, the National Health Service. We would like to see a wider recognition of this fact. The customer in the law courts may not always be right but it is he or she, and not the judges or lawyers, for whom the service is provided’.1 ‘As an agency of state power, the judiciary as a body are, or ought to be, accountable for the general manner in which the court system serves the public at large. But methods of ensuring this form of accountability must not be such as to prejudice judicial independence’.2

I. THE CONSTITUTIONAL TERRITORY OF ACCOUNTABILITY

W

E ARE ALL familiar with the vocabulary of ‘territory’ as it is normally used with reference to spatial entities like cities, regions, nation states and back gardens. By extension, the concept of territory—and the mindset of territoriality (protective or defensive feelings about bits of territory that we feel to be ours)—is sometimes used metaphorically in non-spatial senses to elucidate tricky ideas and concepts. Thus, in this chapter, which is concerned with the constitutionally important but sometimes contested frontier between a sovereign Parliament, with its (at least as far as the Commons is concerned) democratic mandate and its key role of holding policy-makers and the providers of public services to account for what they do and what they spend, and a judiciary that is fiercely protective of its independence from executive control and political interference, the concept of constitutional territory provides an apt starting point.

* Gavin Drewry is Emeritus Professor of Public Administration at Royal Holloway, University of London. 1 JUSTICE, The Administration of the Courts (London, JUSTICE, 1986) para 3.1. 2 A Bradley, ‘The New Constitutional Relationship Between the Judiciary, Government and Parliament’, app 4 of the House of Lords Select Committee on the Constitution, Relations between the Executive, the Judiciary and Parliament (Sixth Report) (HL 2006–07, 151) para 18.

340 Gavin Drewry Like spatial territories, constitutional territories have their boundaries— boundaries that are patrolled, defended and policed. Squabbles about the location of those boundaries can give rise to cross-border skirmishes and turf wars. Sometimes there may even be civil wars, within one of the institutional branches of the constitution—as with the intermittent disagreements that arise between Commons and Lords and between the Ministry of Justice and the Home Office, instances of which will be encountered later in this chapter. Constitutional territories may of course also have some spatial aspects that can be interesting and significant—for example, the respective physical configurations of the two chambers of Parliament and the relocation in 2009 of the final appellate jurisdiction from the Palace of Westminster to a UK Supreme Court located in the Guildhall, on the other side of Parliament Square (noted below). But this chapter is concerned mainly with territory in its abstract, metaphorical sense. We have traditionally tended to delineate the main areas of constitutional territory through the eighteenth-century language of ‘separation of powers’—with its triangulation of ‘executive’, ‘legislative’ and ‘judicial’ branches; but the tendency for legislative bodies and legislative agendas to be controlled in many countries, to varying degrees, by executive government has rendered this vocabulary seriously out of date, at least insofar as the relationship between the executive and legislative branches are concerned. This is particularly the case in the UK, where (unlike the United States) members of the political executive are also members of one or other of the two Houses of Parliament—a ‘fusion’ rather than a ‘separation’ of powers. But the aspect of separation of powers that signals the distinctive role of the judiciary and its claims in democratic polities to constitutional independence from both the executive and the legislature remains as robust and as relevant as ever, and is central to the theme of this chapter. Sensitivities surrounding judicial independence have long been an impediment to parliamentary scrutiny of the administration of justice though, as we shall see, there have been important changes in the last decade or so that have gone some way to rectifying this. Another item of territorial vocabulary deserves a mention in the present context—the word ‘arena’. In the 1970s the US political scientist, Nelson Polsby, distinguished between ‘arena’ legislatures which are the locus for public debate and legitimation of decisions taken elsewhere and ‘transformative’ legislatures that have a proactive role in law-making.3 All legislative bodies in the real world fall somewhere between these two extremes, and other scholars have refined Polsby’s typology to reflect this.4 The UK Parliament is generally depicted as being located somewhere near the ‘arena’ end of the spectrum, spending much of its time debating and scrutinising business—including legislative business—brought before it 3 N Polsby, ‘Legislatures’ in N Polsby and F Greenstein (eds), Handbook of Political Science (Reading, MA, Addison Wesley, 1975). 4 Eg P Norton, ‘Legislatures in Perspective’ in P Norton (ed), Parliaments in Western Europe (London, Frank Cass, 1990); P Norton, ‘The Legislative Powers of Parliament’ in C Flinterman, A W Heringa and L Waddington (eds) The Evolving Role of Parliaments in Europe (Antwerp, MAKLU Uitgevers NV, 1994); M Mezey, Comparative Legislatures (Durham NC, Duke University Press, 1979).

Parliamentary Accountability for Justice 341 by government ministers, and with backbenchers and opposition frontbenchers (and cross-benchers in the Lords) doing what they can, through parliamentary questions, correspondence with ministers, debates and select committee enquiries, to hold the government front-bench to account for its deeds and misdeeds. The following account of parliamentary accountability for the administration of justice will consider some of the ways in which this role is played out in that context, and how the relevant mechanisms and procedures have adapted to changes in the culture of public administration, to efforts to reform procedures and to shifts in constitutional boundaries. But it will look also at the part played by Parliament as an arena for debating matters pertaining to the constitutional relationship between itself, as the legislature, and the judiciary. In the latter context, particular attention will be given to the enactment of the transformative Constitutional Reform Act 2005. As we shall see, until quite recently the prevailing orthodoxy was that the judges and, by extension, the civil servants who administer the court system, were exempt from even the most routine and non-partisan forms of parliamentary scrutiny. This claim to immunity was founded upon a very literal interpretation of the principles of separation of powers and judicial independence. Lord Chancellors—themselves a living negation of separation of powers by virtue of their being members of the Cabinet and of the upper chamber of Parliament5 while also exercising judicial functions—regarded themselves as links or ‘buffers’ between the judiciary and government/Parliament, and fiercely resisted any hint of parliamentary intrusion into judicial territory. Lord Chancellors always sat in the House of Lords and there had long been strong resistance by them and by the legal establishment to any suggestion of establishing a continental-style (or indeed any other ‘style’) ministry of justice, headed by a minister in the Commons. That resistance has at last been overcome, with the establishment in 2007 of a Ministry of Justice, whose Secretary of State, sitting—as the most recent holders of the office have done—in the Commons, subsumes the office of Lord Chancellor. The responsibilities of the Ministry of Justice include those aspects of the administration of justice with which this chapter is principally concerned—the running of courts and tribunals, the working of the legal professions, legal education, law reform and the funding and delivery of legal services (including legal aid). However, it should be borne in mind (and this point will be discussed later) that the Ministry has other major responsibilities—in particular for prisons and the probation service—which account for much of its manpower and its budget. The House of Commons itself now has well-established machinery—including a departmentally-related Justice Committee—to oversee justice-related matters. However, it is with the historic role of Lord Chancellors that this account begins.

5

Indeed, until 2005, the Lord Chancellor was the presiding officer of the House of Lords.

342 Gavin Drewry II. A NEGATIVE TRADITION OF ACCOUNTABILITY—THE VIEW FROM THE LORD CHANCELLOR’S WINDOW

The office of Lord Chancellor can be traced back to Saxon times. In the nineteenth century, with the early development of cabinet government, it acquired some ministerial attributes, but they were of a peculiar and constitutionally incongruous kind, combined as they were with the speakership of the House of Lords and sitting regularly as presiding judge in the judicial House of Lords. A Lord Chancellor’s Office was not created until 1885 and then on a very small scale—‘an interesting little museum’, as it has aptly been described by one twentieth-century commentator6—its functions being almost wholly limited to judicial and ecclesiastical patronage. It was not until the early 1970s, when the Courts Act 1971 brought the County Courts Service under the wing of a greatly enlarged Lord Chancellor’s Department (LCD) that we saw the first move towards ‘normalising’ the bureaucratic infrastructure underpinning the administration of justice by embedding it in a major Whitehall spending department. Although it may not have appeared so at the time—and the very idea would probably have been viewed with horror by Lord Chancellors of this period—this prefigured a gradual, but ultimately irresistible, demand for greater public accountability for the administration and funding of the courts. But why did the Lord Chancellor’s ‘little museum’ last for so long? Why did it take until the 1970s for a small private ‘Office’ to metamorphose into a ‘Department’ and, eventually, in 2007, into the Ministry of Justice, with an annual budget of more than £8bn7 headed by a Secretary of State sitting in and accountable to the House of Commons? The debate, insofar as there was something coherent enough to merit the title of ‘a debate’, about whether the United Kingdom should bring itself, at least terminologically, into line with much of the rest of the world by establishing something called a Ministry of Justice dates back to a report by the Committee on the Machinery of Government, set up under the auspices of the Ministry of Reconstruction at the end of the First World War under the chairmanship of Viscount Haldane.8 The report recommended that the Home Office be redesignated as a Ministry of Justice, with the Lord Chancellor retaining his responsibility for judicial appointments and presiding over a new Imperial Court of Appeal. 6 RM Jackson, The Machinery of Justice in England, 7th edn (Cambridge, Cambridge University Press, 1977) 583. 7 Of which about £3.5bn relates to the National Offender Management System (ie prisons and probation services); £2bn to legal aid and £1.1bn to the Courts and Tribunals Service. The department’s business plan 2012–15 can be accessed via the MoJ website at www.justice.gov.uk/publications/ corporate-reports/moj/2012/ministry-of-justice-business-plan-2012-15. 8 Ministry of Reconstruction, Report of Machinery of Government Committee (Cd 9230, 1918) ch X. For an account of the chequered history of the debate about a Ministry of Justice see, G Drewry, ‘Lord Haldane’s Ministry of Justice—Stillborn or Strangled and Birth?’ (1983) 61 Public Administration 396–414; G Drewry, ‘The Debate about a Ministry of Justice—A Joad’s Eye View’ [1987] Public Law 502–09.

Parliamentary Accountability for Justice 343 However, in the result, these and other recommendations in the Haldane Report came to nothing. Other proposals for establishing a Ministry of Justice surfaced subsequently from time to time, but invariably foundered on fears that such a ministry, with its minister sitting in the party-political hothouse of the Commons, would pose some kind of threat to judicial independence. Lord Chancellor Birkenhead, writing in the aftermath of the Haldane Report, also thought that the distractions of political life in the Commons might be inimical to the effective performance of the Lord Chancellor’s functions: the very fact that the Lord Chancellor is not a member of the House of Commons, is neither subjected to the daily pressure of the personal and political intimacies formed in that House, nor swayed by the necessity of conciliating any one at the critical stages of a critical Bill, enables him to take a broader view. It may be questioned whether the Minister of Justice will have the same freedom. Seeing the life of the House of Commons from day to day, his brain must constantly be preoccupied with the political considerations of the moment.9

It is only quite recently that countervailing arguments in favour of subjecting the minister responsible for the administration of justice to accountability in the elected chamber have begun to gain significant traction. Meanwhile, the opposition to such proposals had often been characterised by serious conceptual and semantic confusion, giving rise to a lot of talk at cross-purposes about what form a Ministry of Justice might actually take in a UK context. Perhaps unsurprisingly, Lord Chancellors (and senior officials in the Lord Chancellor’s Department), sensing a need to protect their territory against such threats—real or imagined— were often at the forefront of opposition, much of which was of the knee-jerk variety, couched in emotive language with sometimes a hint of Eurosceptical xenophobia—redolent perhaps of AV Dicey’s notorious attacks on the French droit administratif. A faint echo of this kind of thinking resurfaced in a passing reference (uttered, no doubt, with tongue in cheek) by the Shadow Lord Chancellor, Lord Kingsland, on the day that the Ministry of Justice eventually came into existence, to the ‘continentalisation of our justice system’.10 Of course, the circumstances surrounding the debate had changed significantly over the years. From the 1940s, with the establishment of the Appellate Committee of the House of Lords at the end of the Second World War, the frequency with which Lord Chancellors were able to sit judicially sharply diminished—and became all but extinct in the decade or so before the Lords’ appellate jurisdiction was transferred to the Supreme Court in 2009.11 We have already noted the great

9

Viscount Birkenhead, Points of View, vol 1 (London, Hodder and Stoughton, 1922) 118–19. HL Deb 9 May 2007, col 1450. 11 However, Lord Irvine did sit on rare occasions, and it is arguable that it was only owing to the political sensitivities surrounding the Human Rights Act that he felt constrained from doing so thereafter: See BBC News, http://news.bbc.co.uk/1/hi/uk_politics/281047.stm (London, 17 February 1999). 10

344 Gavin Drewry expansion of the manpower of the Lord Chancellor’s Department following the Courts Act 1971. In 1981, Lord Hailsham—perhaps the last of the really ‘traditionalist’ Lord Chancellors in the fierceneness of his resistance to any parliamentary scrutiny of judicial business and a declared opponent of any moves to establish a Ministry of Justice12—told the Home Affairs Select Committee, without any apparent ironic intent, that he regarded himself as the Minister of Justice.13 But the biggest circumstantial changes were yet to come, when, in the late 1980s the ‘New Public Management’14 reforms of the Thatcher years gradually began to have a substantial impact on the hitherto inviolate territory of Lord Chancellors and the administration of justice. The nature and significance of these changes are outlined below. But let us pause, briefly, to reflect on the nature and intensity of an entrenched culture that treated all things to do with justice and the judiciary to be completely outside the scope of legitimate parliamentary scrutiny.

A. Non-accountability in the 1980s One could doubtless find plenty of illustrative examples of the deeply engrained presumption of judicial immunity from parliamentary accountability up to and during the Hailsham era, but let one instance suffice. In 1986, the well-regarded legal reform body, JUSTICE, set up a committee under the chairmanship of John Macdonald QC, to inquire into the machinery for dealing with public complaints about the administration of the courts. Its report (a forward-looking document in many respects—see epigraph to this chapter) discussed, among other things, the role of the Ombudsman (the Parliamentary Commissioner for Administration, PCA, an Officer of Parliament), who in 1984 had reached a ‘concordat’ with the Lord Chancellor’s Department about the location of the boundary line between ‘administrative’ matters (deemed to lie within the remit of the Ombudsman) and ‘judicial’ matters (definitely excluded from the Ombudsman’s jurisdiction). The 1984 agreement had subsequently broken down following the Lord Chancellor’s Department’s obtaining counsel’s opinion to the effect that court staff supplied by the LCD but working under the instructions of judges did not come within the purview of the Parliamentary Commissioner Act 1967: and the then Select 12 Subsequently, in a speech to the Bar Conference, Lord Hailsham said that a Ministry of Justice would be ‘a menace to the independence of the courts and the judiciary’ The Times (London, 28 May 1986). 13 Home Affairs Committee, Fourth Report (1980–81, HC 412-ii) Evidence and Appendices, Q 996. 14 ‘New Public Management’ was a much-discussed academic concept in the 1990s, and it generated a substantial UK and comparative literature, although the original inclusion of the adjective ‘new’ has inevitably faded with the passage of time. An essay by LE Lynn, Jr, ‘Public Management’ in BG Peters and J Pierre (eds), The Sage Handbook of Public Administration, 2nd edn (London, Sage, 2012) 17–31, includes an excellent comparative bibliography. For an introductory account of public management in the UK see N Flynn, Public Sector Management, 6th edn (London, Sage, 2012). See also O Hughes, Public Management and Administration, 3rd edn (Basingstoke, Palgrave Macmillan, 2003).

Parliamentary Accountability for Justice 345 Committee on the PCA took evidence on the subject from Lord Hailsham and later from Lord Mackay, who succeeded Hailsham as Lord Chancellor in October 1987.15 The Lord Chancellor subsequently agreed to bring his department within the remit of the PCA, a change that was effected by section 110 of the Courts and Legal Services Act 1990. The JUSTICE Report also noted the rather startling fact that, in dealing with complaints by disgruntled litigants, the Lord Chancellor’s Department’s refusal to accept responsibility for administrative actions carried out on the instructions of a judge had meant that only five per cent of complaints were being accepted for consideration—observing, with some understatement, that it was not surprising if such a low take-up rate gives rise to ‘some lack of confidence’ in the system.16 In fact the Committee became preoccupied with the issue of judicial independence, to a point where it virtually lost sight of any legitimate claims of public and parliamentary accountability. At one point it considered the objections that might be raised to extending the powers of the PCA to include investigations of judicial behaviour, a change apparently favoured by some members of the Committee. One objection, it said, ‘is that, as the Ombudsman reports to the House of Commons, this would encourage MPs to pry into the affairs of the judiciary’17 (italics supplied). But this objection was then promptly rejected on the grounds that the PCA is an independent officer who ‘would only investigate a complaint if he were satisfied that it was serious’, and, the report continues, ‘if a serious complaint is made, it would seem better that it should be investigated by an independent person of the standing of the Ombudsman than for it to become the subject of ill-informed speculation in Parliament’18 (italics supplied). While it is certainly true that the Ombudsman is an officer of Parliament, reporting to a Commons select committee, the use of this kind of language, by a committee representing a reformist organisation like JUSTICE, speaks volumes about the depth of the resistance, at least until the 1980s, to any notion of parliamentary accountability for the administration of justice.

B. Enter Lord Mackay—the Green Paper Furore The picture began to change with a change of Lord Chancellor in 1987 and when the new public management reforms that had transformed the landscape of UK public administration in the 1980s began for the first time to have a major impact on the administration of justice. The justice system began to be seen less as a constitutionally ring-fenced special case and more as a big, important and

15 Select Committee on the Parliamentary Commissioner for Administration, Evidence of Lord Hailsham (HC 1986–87, 284-II); Evidence of Lord Mackay (HC 1988–89, 159). 16 JUSTICE Report (n 1) para 3.7. 17 Ibid, para 4.14. 18 Ibid, para 4.14.

346 Gavin Drewry public service, much like health or education—with all that that entails in terms of public accountability. Judicial independence remained an important principle, but the efficiency and funding of the courts and legal aid were increasingly seen as legitimate areas of parliamentary concern. In June 1987 Lord Hailsham stood down as Lord Chancellor, and was succeeded in the office briefly by Lord Havers and then by Lord Mackay of Clashfern. Lord Mackay was a Scottish lawyer and so not a member of the close-knit English legal establishment. He had held office as Lord Advocate in the early Thatcher years (1979–84) and had then been appointed a Lord of Appeal in Ordinary. As well as being very much in the ‘Lord Chancellor as buffer’ mould, Lord Hailsham had been quintessentially a party politician (he had once, after all, been a candidate for leadership of the Conservative Party): Lord Mackay was neither of these things; his disposition was that of a judge. Two years into his tenure, Mackay published three Green Papers, suggesting some major changes in the legal system. These 1989 Green Papers generated an extraordinary furore both inside and outside Parliament. Much of the fuss was directed at the one entitled The Work and Organisation of the Legal Profession,19 which, among other things, proposed relaxing the barristers’ long-established monopoly in respect of advocacy in the higher courts, and introducing a new system for licencing advocates. A lay-dominated advisory committee would advise the Lord Chancellor, on the education, qualifications and training of advocates appropriate for each of the various courts. The Lord Chancellor should be required to consult the judiciary before reaching decisions as a result of advice tendered by the Advisory Committee, although the final decision would be for him.20

Many leading members of the Bar, and senior judges, promptly went on record as saying, often in rather colourful language, that this posed a gross threat to judicial independence and the rule of law. In the Lords’ debate on the Green Papers21 the then Lord Chief Justice, Lord Lane, attacked the new advisory committee procedure as a movement towards executive control over the judiciary, adding for good measure that: ‘Oppression does not stand on the doorstep with a toothbrush moustache and a swastika armband’.22 Lord Donaldson, Master of the Rolls, said that, if necessary, he would tell the Government to, ‘Get your tanks off my lawn’.23 Former Lord Chancellor, Lord Hailsham, said that he was ‘shocked’ by the prospective threat posed to judicial independence: It is proposed in the Green Paper that a member of the executive, advised by an advisory committee which is staffed secretarially by his own department and composed of a majority of persons unqualified in the law, shall be in command of the qualifications, 19 Lord Chancellor’s Department, The Work and Organisation of the Legal Profession (Green Paper, Cm 570, 1989). 20 Ibid, ch 5. 21 HL Deb 7 April 1989, cols 1307–480. 22 Ibid, col 1331. 23 Ibid, col 1369.

Parliamentary Accountability for Justice 347 the ethics and the statutory framework within which the right to practice is exercised. That same member of the executive is to be in command of the whole of that apparatus. Where are we going if that is to remain the case?24

In the event, when it came to the enactment of the Courts and Legal Services Act 1990, the Government managed to defuse this over-heated controversy by watering down various aspects of its scheme in response to some of the objections raised. But the episode serves to remind us what a powerful lobby the legal profession can be when faced by what it perceives to be threats to its traditional professional interests. It also reminds us that, until quite recently—in the days before the Constitutional Reform Act 2005 and the establishment of the UK Supreme Court—the profession had a powerful voice within Parliament itself, through the presence of the Law Lords in the Second Chamber, all of whom had been practising barristers before becoming judges.

III. NEW PUBLIC MANAGEMENT AND THE ADMINISTRATION OF JUSTICE

Any discussion of parliamentary accountability for the administration of justice must take due note of the nature of the administrative arrangements for which those responsible are being held to account—and those arrangements have undergone transformative changes in the last two decades or so. Parliament has had a hand in debating the legislative changes that have underpinned some important aspects of the transformation but—as an ‘arena’ legislature—it has played little part in initiating them. And many changes (for example, the creation of executive agencies or Next Steps agencies, discussed below) have been effected by executive fiat. The territory of justice is now subject to more parliamentary scrutiny than in the past, but Parliament has played only a peripheral part in redrawing the boundaries and setting the parameters of accountability. Margaret Thatcher’s term of office as Prime Minister from 1979 to 1990 marked the beginning of a revolution in the management and delivery of public services as ‘new right’ politicians began to embrace fashionable neo-liberal free market economic theories that condemned the inefficiency of traditional bureaucracies and lauded the virtues of management, markets and competition. Old-style public administration was displaced, at least in part, by a culture of ‘new public management’ (NPM),25 which rejected traditional process-driven and hierarchical bureaucratic methods and structures in favour of market-based and businesslike regimes of public service with a much stronger emphasis on target-setting and performance-measurement. Many state-owned public service providers were privatised, and functions and services were extensively contracted out. One of the most significant NPM reforms

24 25

Ibid, col 1333. See n 14.

348 Gavin Drewry of the Thatcher era was the ‘Next Steps’ programme, launched in February 1988, which transferred many of the executive functions of central government departments to semi-independent agencies, headed by chief executives employed on short-term contracts. The Prison Service, which became a Home Office agency in 1993, was one early example. It was subsequently combined, in 2004, with the Probation Service as the National Offender Management Service (NOMS), which is now an agency of the Ministry of Justice—and accounts for a very large proportion of the MoJ budget.26 Meanwhile, John Major’s Government continued where its predecessors had left off and the launch of the Citizen’s Charter in 1991 promised to shift the emphasis of service delivery from the interests of the provider to those of the citizen-customer—a move that was particularly pertinent to the provision of legal services, much criticised over the years for a perceived tendency to put the convenience of judges before the interests of litigants. Courts charters were introduced during the 1990s, marking a sharp cultural shift and adding a further dimension to public accountability. The election of Tony Blair’s Labour Government in 1997 did nothing to diminish the momentum of change. Taken together, all these reforms—and in particular the Next Steps initiative—had a huge impact on the machinery and the culture of public services in every sector and at every level. Or, at least, almost every sector: the Thatcher Government, like its predecessors, was generally deferential towards judicial independence, and—at least until 1987 while Lord Hailsham remained on the Woolsack—initially seemed disinclined to expose the judicial process to the full rigour of the public management reforms that were being imposed on every other part of the public sector. However, even in the Hailsham era some new public management themes, such as the Financial Management Initiative (introducing new disciplines of financial accountability across Whitehall) had begun to impinge upon the Lord Chancellor’s Department: in 1985 Hailsham himself instigated a major review of Civil Justice.27 As noted earlier, by the time Lord Mackay became Lord Chancellor in 1997, the winds of change were already beginning to blow. Lord Justice Nicolas (later Lord) Browne-Wilkinson, had already addressed some of the implications of public management reform in a public lecture delivered in 1987. In it he warned of threats to the continuing independence of the administration of justice that lay in the increasing application of strict value for money and financial management disciplines to the Lord Chancellor’s Department: The requirements of judicial independence make the Lord Chancellor’s Department wholly different from any other department of state. It is not for the executive alone to determine what should be the policy objectives of the courts. It is not for the 26

See n 7. For the announcement of the Review see http://hansard.millbanksystems.com/written_ answers/1985/feb/06/civil-justice-review. The Review Body, which was chaired by Sir Maurice Hodgson, former chairman of ICI and British Home Stores, reported in June 1988, (Cm 394, 1998). 27

Parliamentary Accountability for Justice 349 executive alone to determine whether or not a particular judicial procedure provides ‘value for money’. Justice is not capable of being measured out by an accountant’s computer ... [U]nder our constitution it is for the judge to determine what is just, and what is not just, subject always to legislation passed by Parliament. As a result of such policy being applied to the Lord Chancellor’s Department, that department is being required to formulate policy and to make determinations as to ‘value for money’ according to financial yardsticks and without, for the most part, even consulting the judges.28

Far from being recognised as ‘wholly different’ from other government departments, the LCD moved increasingly into the mainstream of public administration. From 1 April 1992, responsibility for the funding and organisation of the Magistrates’ Courts Service in England and Wales was transferred from the Home Office to the Lord Chancellor’s Department, thus removing a long-standing anomaly in the distribution of ministerial responsibilities for the administration of justice. Partly because of the additional burdens arising from this, a parliamentary junior minister to the Lord Chancellor was appointed to answer in the House of Commons for the administration of the courts; a second junior minister was appointed in the Commons in 1999, and another junior minister was appointed in the Lords in 2000 to take responsibility for commons and leasehold reforms.29 Prior to these appointments, the only available Commons spokesman for the Lord Chancellor had been the Attorney-General—who had no ministerial responsibility for the LCD. The former statutory requirement that the Permanent Secretary of the Department must have substantial legal qualifications and experience was repealed by the Supreme Court (Offices) Act 1997. In January 2003 the Department appointed its first Director General of Finance to oversee the Department’s multibillion pound annual budget. In 1995, much of the Department’s work and staffing was concentrated in a large (’next steps’) executive agency—the Courts Service, which in 2005 was converted into a unified Courts Agency, which absorbed the Magistrates’ Courts Service. A major overhaul of the tribunals system, effected by the Tribunals, Courts and Enforcement Act 2007, led to the creation of another large agency, the Tribunals Service, which, in 2011, was amalgamated with the Courts Service to form an integrated Courts and Tribunals Service. The proliferation of executive agencies posed interesting challenges for parliamentary accountability, given that agency chief executives—including the heads of the Courts Service Agency and its successors—rather than ministers are responsible for day-to-day operational matters:30 since the early 1990s, replies by chief executives to

28 N Browne-Wilkinson, ‘The Independence of the Judiciary in the 1980s’ [1988] Public Law 44, 50. 29 D Woodhouse, The Office of Lord Chancellor (Oxford, Hart Publishing, 2001) 169. 30 Ibid 181–83.

350 Gavin Drewry parliamentary questions referred to them by ministers have been printed in Hansard.31

IV. THE CONSTITUTIONAL REFORM ACT 2005—REDRAWING THE BOUNDARIES

Having embarked on the task of modernising various aspects of the UK Constitution, the Blair Government turned its attention to the judiciary (already exercising new functions under another recent constitutional innovation, the Human Rights Act 1998), to the appellate functions of the House of Lords and to the antique office of the Lord Chancellor. The Constitutional Reform Act 2005 (the CRA 2005) transferred the Lord Chancellor’s judicial functions as head of the UK judiciary32 to a President of the Courts of England and Wales—the Lord Chief Justice. It paved the way for the establishment of a new Supreme Court to take over the appellate functions of the House of Lords (the Supreme Court began work in October 2009) and set up an independent Judicial Appointments Commission, to limit the extent of the Lord Chancellor’s powers of patronage over judicial appointments. A significant aspect of the prehistory of this legislation, the statutory culmination of the continuing process of redefining the boundaries of judicial accountability as outlined above, was a bitter departmental turf war between the Home Secretary, David Blunkett, and the Lord Chancellor, Lord Irvine, an opponent of the reforms—culminating in a ministerial reshuffle in June 2003, in which Lord Irvine, was sacked and replaced by Lord Falconer.33 More unexpected—not least to the Prime Minister’s Cabinet colleagues and to the judiciary—and much more controversial was the announced intention of abolishing the office of Lord Chancellor altogether—though this intention was later abandoned in the face of a Government defeat on the Constitutional Reform Bill in the Lords in committee of the whole House.34 The office was retained and subsumed in the office of Secretary of State for Constitutional Affairs, the LCD having been rebadged as the Department for Constitutional Affairs in the 2003 reshuffle—a transitional arrangement that prefigured the establishment of the Ministry of Justice, four years later. The Prime Minister also announced the Government’s plans to create a new Supreme Court in place of the Appellate Committee of the House of Lords and to reform the judicial appointments process in England and Wales.

31

Erskine May’s Parliamentary Practice, 24th edn (London, Butterworths, 2011) 367. The Lord Chancellor’s entitlement to sit judicially in the Appellate Committee of the House of Lords and the Judicial Committee of the Privy Council were also removed by the CRA. 33 See A Le Sueur, ‘From Appellate Committee to Supreme Court: A Narrative’ in L Blom-Cooper, B Dickson and G Drewry (eds), The Judicial House of Lords 1876–2009 (Oxford, Oxford University Press, 2009) 64–94, 67–68. See also www.guardian.co.uk/politics/2009/nov/01/lord-irvine-sackingtony-blair. 34 HL Deb 13 July 2004, col 1194. 32

Parliamentary Accountability for Justice 351 Although the Prime Minister’s announcement was followed by a public consultation exercise,35 and was the subject of critical reports by the then Constitutional Affairs Select Committee,36 the judges complained in the meantime that they had not been consulted about or even given advance notice of these major changes, and the Government eventually agreed what became known as the ‘concordat’37 to meet their objections; a provision, embodying the basic principle of this agreement, was later added to the Constitutional Reform Bill, imposing a statutory duty on ministers to uphold the independence of the judiciary. The initial judicial protests were led by the then Lord Chief Justice, Lord Woolf, acting as spokesman for the judiciary, who was to become the new President of the Courts of England and Wales under the provisions of the CRA 2005. Meanwhile, the Constitutional Reform Bill had its second reading in the House of Lords on 8 March 2004, whereupon it was—very unusually—committed to a special select committee of the House38 and was also subject to a carry-over motion, to enable parliamentary consideration of it to continue in the following session. Although nowadays a lot of government legislation is subject to some degree of pre-legislative consultation, once it reaches Parliament the normal pattern of legislative scrutiny gives little or no opportunity in either House for canvassing the views of outside experts and critics. It is a measure both of the constitutional significance of this Bill and of the widespread unease about the exiguous extent of pre-legislative consultation that prompted the use of a more proactive and inquisitorial procedure in this case. The Select Committee’s report was published on 2 July 2004.39 The extent of evidence-gathering undertaken by the Committee was described by its chairman, Lord Richard, when the Bill came back to a Committee of the whole House in July 2004: [W]e met in public to take oral evidence from more than 32 witnesses. We received over 80 written submissions. We considered the views of 14 serving judges, seven retired judges, 14 academics, the lawyers’ professional bodies in England, Wales, Scotland and

35 Department for Constitutional Affairs (DCA) Consultation Paper CP 11/03, Constitutional Reform: a Supreme Court for the United Kingdom; Department for Constitutional Affairs (DCA) Consultation Paper CP 10/03, Constitutional Reform: a New Way of Appointing Judges. 36 www.publications.parliament.uk/pa/cm200304/cmselect/cmconst/48/48.pdf. The CASC also produced a report intended to ‘inform the second reading debate’ www.publications.parliament.uk/ pa/cm200304/cmselect/cmconst/48/48.pdf. It recommended that: The consultation process has been too short and the legislative timetable is too restrictive to deal with changes which are so far reaching in their effects. The reason for haste seems to be primarily political. The Committee recommends that the Government proceed with the Bill as draft legislation to enable proper scrutiny of these fundamental changes. 37 Announced by the Lord Chancellor in January 2004, see Le Sueur, ‘From Appellate Committee to Supreme Court: A Narrative’ (n 33) 74. 38 The background to the use of this unusual procedure is outlined in the report of the House of Lords Committee on the Constitutional Reform Bill (HL 2004–05, 125-I) paras 4–9 (see below). 39 First Report (HL 2004–05 125-I and II).

352 Gavin Drewry Northern Ireland, as well as campaign groups, individual lawyers and members of the public.40

The Committee proposed more than 400 amendments to the Bill, which were later considered on the floor of the House. It was more or less evenly divided on two of the most contentious issues—abolition of the office of Lord Chancellor and establishment of the Supreme Court—but, in the interests of consensus, it avoided putting disputed matters to a vote.41

A. Some Implications for Parliamentary Accountability Accounts of the unusual and politically contentious background to the June 2003 announcement and of the events leading up to the enactment of the 2005 Act have been written by others—notably by a contributor to this volume, Andrew Le Sueur,42 who has served as a specialist adviser and legal adviser to several parliamentary committees including the House of Commons Constitutional Affairs Committee, the Lords Constitution Committee and the Lords Select Committee on the Constitutional Reform Bill (see below)—and the following comments will deal only with those aspects that have a particular bearing upon the issue of parliamentary accountability. One such aspect concerns the respective functions of the two Houses relating to the administration of justice. The House of Lords has tended in the past—by virtue of its appellate functions and the presence in the House of many Law Lords and eminent legal practitioners—to be regarded as a repository of top quality legal expertise. Law reform Bills and measures dealing with matters of particularly complex legal technicality (sometimes characterised as ‘lawyers’ law’ Bills) have tended to begin their parliamentary passage in the Lords rather than in the Commons. And matters to do with reform of the legal system or touching upon the prerogatives of the judiciary are perhaps best considered, in the first instance, by the less party-political of the two Houses. The Constitutional Reform Bill was not particularly technical, but because its subject matter was of such constitutional importance and bore directly on the appellate functions of the Lords and the role of the Lord Chancellor (who was Speaker of the House) it was deemed appropriate to begin its passage in the Lords rather than the Commons. Even though participation in Lords debates by serving judges had greatly diminished in the years leading up to the passage of the CRA 2005 and the setting up of the Supreme Court, there was always a sense that the Lord Chancellor, as both

40

HL Debs 13 July 2004, cols 1138–39. A good account of the parliamentary proceedings surrounding the passage of the Constitutional Reform Bill and the amendments proposed and carried can be found in Le Sueur (n 33) 64–94. 42 A Le Sueur, ‘New Labour’s (Surprisingly) Quick Steps on the Road to Constitutional Reform’ [2003] Public Law 368–77; Le Sueur (n 33) 64–94. See also, R Stevens, The English Judges: Their Role in the Changing Constitution (Oxford, Hart, 2005). 41

Parliamentary Accountability for Justice 353 senior Cabinet minister and de facto head of the judiciary, was publicly engaged in a regular and expert dialogue with the top minds and voices of his profession in a forum that is and was for the most part non-party political. Moreover, the expertise of the judges could usefully be harnessed in appropriately non-partisan contexts to important aspects of parliamentary business: for instance, the Joint Committee on Delegated Legislation was always chaired by a Law Lord. In a Lords debate in March 2003 on the proposal to establish the Supreme Court, the former Lord of Appeal, Lord Brightman, pointed out that, in the preceding session, 12 places on Lords committees had been occupied by Law Lords.43 It is not unlikely that the departure of the Law Lords (though there are still a lot of distinguished lawyers among the active membership of the House) and the relocation of the Lord Chancellor from the Lords to the Commons will significantly challenge the claims of the House to a near monopoly of parliamentary legal expertise and to being at the sharp end of parliamentary accountability for the administration of justice. Giving evidence to the Constitutional Affairs Committee, soon to be re-badged as the Justice Committee, shortly after his appointment as Justice Secretary, Jack Straw said (responding to a question about his role in judicial appointments) that: I am very conscious of the fact that precisely because I am the first Lord Chancellor in the Commons and I am an elected politician, I have to be seen to be preserving the independence of the judiciary and ensuring an arm’s length relationship with them, to a degree that was not necessary with the previous Lord Chancellors because they were in the unelected House and everybody knew what their position was.44

Although, as noted above, the Bill was introduced into the Lords, in the run-up to its introduction, the Commons Constitutional Affairs Committee instituted an enquiry into the proposals, took evidence from the main protagonists (including Lord Bingham, then the Senior Law Lord, and Lord Woolf, the Lord Chief Justice of England and Wales) and produced a highly critical report.45 The Committee revisited the subject in the following session and produced a further report,46 by which time the original proposals had been significantly amended—in particular, by the adoption of the concordat—in ways that met many of the Committee’s original concerns. This exercise illustrates an important general point about the function and significance of select committees more generally, that whether or not their recommendations have little direct impact on the Government (and often they do not), their evidence sessions, conducted in public and on the record, bring into the public 43

HL Debs 8 September 2003, cols 119–20. Select Committee on Constitutional Affairs, Minutes of Evidence (24 July 2007) Q 24. 45 Constitutional Affairs Committee, Judicial Appointments and a Supreme Court (Court of Final Appeal) (First Report) (HC 2003–04, 41-I and II). 46 Constitutional Reform Committee, Constitutional Reform Bill [Lords]: the Government’s Proposals (Third Report) (HC 2004–05, 275-I and II). 44

354 Gavin Drewry domain a mass of valuable material that would otherwise remain unrevealed. The evidence volumes of the reports just cited are a mine of useful information on this topic, offering a substantial contribution to the information-base of public debate. The same general comment applies to the reports of the Commons Justice Committee (and to other select committees that have conducted inquiries in this subject area).47 Extracting and making public high quality information and expert critical comment goes to the very heart of what accountability is about. One potentially important reference to parliamentary accountability appears in section 5 of the CRA 2005, which reads as follows: 5 Representations to Parliament: (1) The chief justice of any part of the United Kingdom48 may lay before Parliament written representations on matters that appear to him to be matters of importance relating to the judiciary, or otherwise to the administration of justice, in that part of the United Kingdom. (2) In relation to Scotland those matters do not include matters within the legislative competence of the Scottish Parliament, unless they are matters to which a Bill for an Act of Parliament relates. (3) In relation to Northern Ireland those matters do not include transferred matters within the legislative competence of the Northern Ireland Assembly, unless they are matters to which a Bill for an Act of Parliament relates. (4) In subsection (3) the reference to transferred matters has the meaning given by section 4(1) of the Northern Ireland Act 1998 (c. 47). (5) In this section ‘chief justice’ means— (a) in relation to England and Wales or Northern Ireland, the Lord Chief Justice of that part of the United Kingdom; (b) in relation to Scotland, the Lord President of the Court of Session.

The implications of this provision were considered by the Lords Constitution Committee, in its 2007 report on Relations between the Executive, the Judiciary and Parliament.49 The Committee accepted the view given in evidence by the Lord Chief Justice (and echoed by The Lord Chancellor, Lord Falconer) that this power was ‘a nuclear option’ to be used only where legislative proposals were so contrary to the rule of law that the judges felt compelled to step in and make plain their objections. Recognising that the section 5 power will, in practice, rarely be used,50

47

The role of select committees is discussed in chs 7, 9 and 11 of this volume. On 17 January 2012, the Lord President of the Court of Session (the Chief Justice in Scotland for the purpose of the Act) used this power to lay before both Houses written representations relating to the Scotland Bill. In the House of Lords, the laying of the written representations was accompanied by a written statement from the Chairman of Committees. (This was restricted to a comment that the statement had been made and that copies of it were available in the Printed Paper Office; see HL Deb 17 January 2012, col WS37.) 49 Sixth Report (n 2) paras 113–19. 50 For a Scottish instance of the use of this provision, see n 48 The power had previously been used on 31 March 2008 by the Lord Chief Justice for England and Wales to lay a ‘Review of the Administration of Justice in the Courts’. 48

Parliamentary Accountability for Justice 355 the Committee went on to consider ‘whether there need to be other more routine ways in which lesser concerns can be conveyed to Parliament’.51 In his evidence to the Committee, the Lord Chief Justice of England and Wales had asked, might there not be a machinery, if there was a particular topic that I thought it desirable to ventilate, whereby I could let the appropriate [select] committee know that if they were interested in hearing about this I would be happy to discuss it?

The Committee agreed ‘that select committees offer a suitable arena for the Lord Chief Justice, or other senior judges, to air concerns about the administration of justice and the impact of legislation and other policy proposals upon the courts and the judiciary’. Considering more generally the issue of judicial accountability, the Committee went on to note that, ‘since the Lord Chancellor is no longer head of the judiciary, and therefore cannot answer to Parliament on its behalf, Parliament must hold the judiciary accountable in other ways’.52 It saw the select committees of both Houses as the key to achieving this—and this is something that we will return to in the next section of this chapter.

V. THE MINISTRY OF JUSTICE AND PARLIAMENT

The Department of Constitutional Affairs was in existence for nearly four years, until the establishment of the Ministry of Justice in May 2007. Meanwhile, the Lord Chancellor’s Department had acquired its own ‘departmentally-related’ Commons select committee, which met for the first time on 4 February 2003, under the chairmanship of Alan (later Sir Alan) Beith. It was succeeded by a Constitutional Affairs Committee,53 in January 2003 and then, in 2007, by the Justice Committee (both under the same chairman). For the first few weeks of the MoJ’s existence the office of Secretary of State and Lord Chancellor was held by Lord Falconer, formerly Secretary for Constitutional Affairs, but in July the position passed to a senior Member of the House of Commons, Jack Straw, formerly Leader of the House. The obvious constitutional significance of this relocation was noted by Mr Straw himself, in the passage quoted above. One important thing to bear in mind when discussing parliamentary accountability in this context is that ‘justice’ does not only mean what happens in and around the courts. Historically, the Lord Chancellor was responsible for a lot of things that had very little to do with judges and courts, such as ecclesiastical

51

Sixth Report (n 2) para 120. Sixth Report (n 2) para 123. 53 For an overview of the work of this Committee see A Horne, ‘Parliamentary Scrutiny: An Assessment of the Work of the Constitutional Affairs Select Committee’ (2006) 3 JUSTICE Journal 62–74. 52

356 Gavin Drewry patronage.54 In the aftermath of devolution, the Department of Constitutional Affairs acquired responsibilities for some matters pertaining to Scotland and Wales. The responsibilities of the Ministry of Justice for courts, tribunals, legal aid etc, sit alongside its responsibility for prisons—both functions administered by large executive agencies. Broadly defined, ‘justice’ also covers policing and prosecutions—which are the responsibility of the Home Office. The present distribution of functions resembles in many respects the classical Continental European dichotomy between Ministry of Justice and Ministry of the Interior—leaving plenty of scope for earnest debate (no doubt flavoured, as always, by Eurosceptical imaginings) about whether this disposition is the optimal one. It also offers scope for occasional cross-border skirmishes between these two big ministries—as illustrated by some bickering about human rights issues between Justice Secretary, Kenneth Clarke, and Home Secretary, Theresa May, in the early months of the Coalition Government that came to power in 2010.

A. The Role of Select Committees As noted above, the Lords Select Committee on the Constitution, in its 2007 report, saw select committees—in particular itself and the Commons Constitutional Affairs Committee (soon afterwards to become the Justice Committee)—as key instruments for holding the post-CRA judiciary accountable to Parliament for matters pertaining to the administration of justice, apart from issues to do with the rights and wrongs of decisions in particular cases: We believe that select committees can play a central part in enabling the role and proper concerns of the judiciary to be better understood by the public at large, and in helping the judiciary to remain accountable to the people via their representatives in Parliament. Not only should senior judges be questioned on the administration of the justice system, they might also be encouraged to discuss their views on key legal issues in the cause of transparency and better understanding of such issues amongst both parliamentarians and the public. However, under no circumstances must committees ask judges to comment on the pros and cons of individual judgments.55

An interesting memorandum of guidance (reminiscent of the ‘Osmotherly Rules’ for civil service witnesses)56 has been prepared by the Office of the Judiciary for England and Wales (headed by the Lord Chief Justice) for judges appearing before or providing written evidence to parliamentary committees.57

54 See: www.publications.parliament.uk/pa/cm200304/cmselect/cmconst/300/4012901.htm and www.publications.parliament.uk/pa/cm200304/cmselect/cmconst/300/300we01.htm. 55 Sixth Report (n 2), para 126. 56 See ch 7, Section III B iii. 57 It can be accessed via www.judiciary.gov.uk/about-the-judiciary/the-judiciary-in-detail/jud-accind/judges-and-parliament.

Parliamentary Accountability for Justice 357 This author of this chapter has, from the outset (see above), implicitly adopted a fairly narrow definition of ‘the administration of the justice system’, as having to do with the running of courts and tribunals and the delivery and funding of legal services; but, of course, the classical instruments of parliamentary accountability—questions addressed to the Justice Secretary and his departmental ministerial colleagues, and enquiries undertaken by the select committees like the House of Lords Constitution Committee and the House of Commons Constitutional Affairs Committee, which became the Justice Committee,—cover a lot of other things too, particularly in the case of the Constitutional Affairs Committee. The time and resources available for committee scrutiny of Ministry of Justice matters are limited—and they are diluted by the breadth of the ministerial portfolio. One must also acknowledge the reality that—as can clearly be seen in the subject distribution of parliamentary questions addressed to the Ministry of Justice—crime, punishment and prisons tend to engage the interest of parliamentarians appreciably more than the nuts and bolts of the courts system: then this dilution is further compounded. This becomes very apparent when we look at the subject matter of the recent reports published by the two select committees just mentioned. In the (unusually long) Parliamentary Session 2010–12, the House of Lords Constitution Committee published 25 reports58 of which only three concerned the administration of justice, narrowly defined (ie excluding issues like policing, constitutional change and prevention of terrorism). They were: Ninth Report, Meetings with the Lord Chief Justice and the Lord Chancellor.59 Twenty-first Report, Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Bill.60 Twenty-fifth Report, Judicial Appointments.61 The latter report was based on a particularly illuminating and wide-ranging inquiry into the working of the reformed judicial appointments system established by the CRA 2005—and took evidence from an array of senior judges, including the Lord Chief Justice of England and Wales Lord Judge, the Master of the Rolls Lord Neuberger, the President of the Supreme Court Lord Phillips and Supreme Court Justice Lady Hale as well as from the Justice Secretary Ken Clarke MP and his immediate predecessors as Lord Chancellor. Among its recommendations, it firmly rejected any suggestion that the accountability functions of parliamentary committees might be extended to include pre- and post-appointment

58 See www.parliament.uk/business/committees/committees-a-z/lords-select/constitution-committee/publications1/previous-sessions/Session-2010-12/. 59 Constitution Committee, Ninth Report (HL 2010–12, 89). 60 Constitution Committee, Twenty-first Report (HL 2010–12, 222). 61 Constitution Committee, Twenty-fifth Report (HL 2010–12, 272).

358 Gavin Drewry hearing of judges—seen as a step too far into the territory that is ring-fenced to protect judicial independence from any risk of political interference. As one might have predicted, given the departmental specificity of its remit, a much higher proportion of the 12 reports (excluding special reports) published by the Justice Committee in the same session62 dealt with administration of justice issues, as defined above. They included the following: First Report, Revised Sentencing Guidelines: Assault63 Second Report, Appointment of the Chair of the Judicial Appointments Commission64 Third Report, Government’s Proposed Reform of Legal Aid65 Sixth Report, Operation of the Family Courts66 Tenth Report, The Proposed Abolition of the Youth Justice Service.67 The Committee also held evidence sessions on various subjects including the following: The work of the Legal Services Commission68 The work of the Ministry of Justice and its Resources69 The committee reports listed above merely constitute a thumbnail snapshot of a much bigger picture. A different working definition of our subject matter and/or a choice of other parliamentary sessions would probably yield different pictures of the spread of accountability; but the ‘dilution’ point is an important one, and it applies in other subject areas too, given that select committees, however industrious and conscientious they may be, cannot—simply because of lack of time and manpower—match the span of responsibilities of a major department of state.70 The deeply engrained territoriality of Whitehall departments (the term ‘silo mentality’ is sometimes used, pejoratively, in this context) finds echoes in the select committee system. But committee scrutiny of the administration of justice is not confined to the two committees considered above. Other parliamentary committees have also looked from time to time at aspects of the administration of justice. To take a recent example: the Public Accounts Committee has reported on the procurement of legal aid by the Legal Services Commission71 and on the youth

62 See www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/ Publications/previous-sessions/Session-2010-12/. 63 First Report (HC 2010–12, 637). 64 Second Report (HC 2010–12, 770). 65 Third Report (HC 2010–12, 681) (three volumes). 66 Sixth Report (HC 2010–12, 518) (two volumes). 67 Tenth Report (HC 2010–12 1547) (two volumes). 68 HC 2010–12, 649-i. 69 HC 2010–12, 378-ii. 70 See ch 7. 71 Ninth Report (HC 2009–10, 322).

Parliamentary Accountability for Justice 359 justice system72—both subjects, as noted above, having also been considered by the Justice Committee. We have already noted that the 2007 Report of the Lords Constitution Committee favoured the use of select committees as a conduit of communication between the judges and Parliament—and judges have indeed appeared quite frequently as witnesses before committees in recent years, though some of them have expressed misgivings about the practice.73 The Lord Chief Justice, as Head of the Judiciary, appears regularly before the Constitution Committee, and oral and written judicial evidence is frequently presented to the Justice Committee. A lot of other committees have taken judicial evidence. To cite just two instances among many, in May 2009, Sir Anthony Clarke, MR and Lord Justice Rupert Jackson appeared before the Culture, Media and Sport Committee, in its enquiry into press standards, privacy and libel;74 and Sir Nicholas Wall and Mr Justice Baker and Lord Neuberger and Mr Justice Tugendhat appeared in separate witness hearings before the Joint Committee on Privacy and Injunctions in November 2011.75

VI. CONCLUSIONS

This account began with the metaphor of constitutional territory. Until the 1980s the judges, fiercely protective of their independence, were accountable to no one but themselves. As head of the judiciary, the Lord Chancellor exercised some supervisory and disciplinary functions, but did so completely behind closed doors; in practice, he saw his main function as shielding the judges from parliamentary scrutiny and sometimes from attacks by other ministers rather than as being an accountable minister himself. Parliament was, by and large, complicit in this arrangement. Judges got on with their task of judging; parliamentarians looked nervously at a frontier guard-house marked ‘judicial independence’, occupied by the formidable figure of the Lord Chancellor, and kept their distance. The picture began to change from the 1980s onwards as, gradually, the Lord Chancellor’s Department—caught up in the rising tide of public management reform and constitutional modernisation—began to look more and more like an ordinary department of state, providing an important and expensive public service. The Constitutional Reform Act 2005—incorporating the concordat on judicial independence, refashioning the historic role of the Lord Chancellor, transferring the appellate functions of the Lords to the new Supreme Court and putting the chief justices of England and Wales, Scotland and Northern Ireland 72

Twenty-first Report (HC 2010–11, 721). See, eg, Lord Phillips of Worth Matravers, ‘Judicial Independence’ (Commonwealth Law Conference 2007, Kenya, 12 September 2007); Sir Jack Beatson, ‘Judicial Independence and Accountability: Pressures and Opportunities’ (Nottingham Trent University, 16 April 2008). 74 HC 2008–09, 275. 75 Oral evidence (1 November 2011) QQ 445–85; QQ 486–535. 73

360 Gavin Drewry in overall charge of the judiciary—was a path-breaking measure but, in truth, it was really no more than the statutory culmination of a whole raft of cumulatively radical reforms that had been unfolding over the previous two decades or more. The exorcising, two years later, of the old taboo about creating a Ministry of Justice, headed by a Secretary of State in the House of Commons, was an almost inevitable sequel—one with major, obvious and positive implications for parliamentary accountability. And in September 2012 the taboo was challenged further by the appointment of Chris Grayling MP, as Justice Secretary and Lord Chancellor—the first non-lawyer to hold the latter office in the modern era. So a major part of the story told in this chapter has been to do with the accountability consequences of normalising the administration of justice, and bringing it administratively into line with other important public services, and of harnessing parliamentary procedures to accommodate the new arrangements. But it also needs to be recognised that the moves to make those responsible for running and delivering the administration of justice—the Justice Secretary and the judges—more accountable to Parliament is not just about management reform and modernisation, it also has to do with the increasing political salience of the judicial role through the growth of judicial review76 and, in particular, by the enactment of the Human Rights Act 1998.77 Some judicial decisions in these areas have had significant political consequences and triggered strong reactions—particularly from ministers and, even more particularly, from Home Secretaries. The media began to sit up and take notice (often fuelled by Home Office briefings). It is not without significance that the ousting of Lord Irvine as Lord Chancellor in 2003—the beginning of the saga leading up to the enactment of the CRA 2005 and the establishment of the Ministry of Justice—is rumoured to have been triggered by complaints from Home Secretary David Blunkett, one of the most vociferous ministerial critics of what he and some of his colleagues saw as unwarranted judicial interference with the legitimate prerogatives of the elected government.78 And once judicial decisions start attracting that kind of political and media attention the pressure begins irresistibly to grow for enhanced opportunities for parliamentary scrutiny. That scrutiny does not extend to allowing parliamentary criticism of the merits of judicial decisions but, short of that, the replacement of the old, closely guarded frontier by something much more permeable and transparent has changed the whole constitutional landscape. Moreover, since the enactment of the CRA 2005, the judges (headed in England and Wales by the Lord Chief Justice) have far more of a ‘management role’ that needs scrutinising 76 See V Bondy and M Sunkin, The Dynamics of Judicial Review Litigation (London, Public Law Project, 2009) 2–3. Detailed statistics relating to judicial review can be found in the annual volumes of Judicial Statistics, published on the website of the Ministry of Justice. 77 See ch 10. 78 See S Pollard, David Blunkett (London, Hodder and Stoughton, 2005) 268–71; A Le Sueur, ‘From Appellate Committee to Supreme Court: A Narrative’ in L Blom-Cooper, B Dickson and G Drewry (eds), The Judicial House of Lords 1876–2009 (Oxford, Oxford University Press, 2009) 70–71.

Parliamentary Accountability for Justice 361 independently from the administrative functions exercised by the Ministry of Justice. One wonders what old-style Lord Chancellors such as Lord Birkenhead and Lord Hailsham would have made of all this. It remains for us to make some kind of qualitative assessment of the transformation, but here we must be cautious. There can be little doubt that transparency has been improved; the Constitution Committee and the Justice Committee, in particular, have done invaluable work, not least (as noted earlier) by bringing a lot of high quality information and expert opinion into the public domain, to the benefit of informed debate on a lot of subjects that have, in the past, been shrouded in darkness. This has been very apparent in recent debates on justicerelated legislation, notably on the cutting of legal aid funding, and the contentious parliamentary passage of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which was preceded by intensive committee scrutiny.79 The debates on the Constitutional Reform Bill, drawing heavily on the work of committees in both Houses (see above), perhaps showed Parliament at its best—reminding us that even an ‘arena’ legislature can, when it puts its mind to it, play a crucial part in the fashioning of important public policies. The work of these committees and the routine array of questions to Justice Ministers makes one realise how deficient the old system was and how groundless were the claims that judicial independence would be an inevitable casualty of such scrutiny. But we do have to remember that, notwithstanding welcome procedural reforms in recent years (in particular, the establishment of the departmentally related Commons select committees in the early 1980s),80 Parliament is still essentially an arena legislature, dominated (with occasional interesting exceptions) by the executive. Most decisions happen inside government departments and Parliament is often given little chance to influence them while they are still at a malleable stage. Criticisms of Parliament’s weaknesses—the ritualistic nature of Question Time, the imbalance of resources between departments and Parliament, the uphill struggle faced by committees to get their recommendations taken seriously by government81—have been a frequent lament of commentators. Yes, accountability for the administration of justice has greatly improved—but from a very low baseline and only to the extent of being brought up to the same unsatisfactory level as applies to other areas of government.

79 House of Lords Select Committee on the Constitution, Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Bill (Twenty-first Report) (HL 2010–12, 222); Joint Committee on Human Rights, Legislative Scrutiny: Legal Aid, Sentencing and Punishment of Offenders Bill (Twenty-second Report) (2010–12, HL 237, HC 1717). See also, Justice Committee, Government’s Proposed Reform of Legal Aid (Third Report) (HC 2010–11, 681). 80 See G Drewry (ed), The New Select Committees, 2nd edn (Oxford, Clarendon Press, 1989). See also chs 7, 9 and 11 of the present volume. 81 Some interesting proposals for improving the effectiveness of select committees can be found in the report of the House of Commons Reform Committee (the Wright Committee), Rebuilding the House (First Report) (HC 2008–09, 1117). See ch 7 of this volume.

Index accountability see Freedom of Information (FOI) Act 2000; parliamentary accountability for justice Adams, Gerry 16–17 Advisory Panel on Members Allowances (APMA) 105 arena legislatures 340–1 arms to Iraq 97 arrest, freedom from see freedom from arrest Article 9 protection see Bill of Rights 1689, Article 9 protection Arts and Humanities Research Council 244 Ashcroft, Lord 157–8 Atkinson, Dr Maggie 177 Attorney-General 48, 70, 91 legal advice role 126–7, 326 Bacon, Richard 179 Balls, Ed 177 Banking Commission 178–9 Bar Council 134 Barnett Formula 199 Bateman, Ed 75 Beith, Sir Alan 355 Bellingham, John 71–2 Bercow, Mr Speaker 5–7, 156–7 Berlin, Isaiah 263–4 Bhatia, Lord 116 Bill of Rights 1689, Article 9 protection civil actions immunity 37–8 constituents, communications with 62–4, 65 criminal law see under criminal law defamation 38–9, 40, 62–3 elements 35–6 enforcement 48–50 European Convention on Human Rights 45–6 freedom of speech 37–9 freedom of speech see under freedom of speech future developments 64–5 impeaching or questioning, definition 41–3 judicial practice 46–7 a place out of parliament, definition 43–4 proceedings in parliament, definition 39–41 punitive powers 49–50 self-regulation 41 testimony to committees 44–5 within Union 37 Blackburn, Robert 254 blackmail 73 Blair, Tony 254, 255

Blunkett, David 350 Bogdanor, Vernon 322 Bradley, Prof Anthony 53, 76 bribery and corruption criminal law issues 73–4 draft legislation 8, 74 privileges, joint committees 8, 27 Brighton Declaration 226 British Bill of Rights, see Human Rights Act 1998, British Bill of Rights Brown, Gordon 164, 264 Brown, Nick 258 Brown, Ron 71 Business, Innovation and Skills Committee 177, 190 Cable, Vince 177 Calman Commission 201 Cameron, David 260, 264, 270 Campbell Committee 28, 75–80 cash for questions 90, 97 Cash, William 195 Chaytor, David 29, 81, 86–7 Children Schools and Families Committee 177 Chiltern Hundreds 14–15 civil actions immunity 37–8, 91 civil servants select committees’ power to summon 187, 356 sovereignty of Parliament 326–7 Clarke, Kenneth 275, 277–8 Code of Conduct Lords see under House of Lords MPs see conduct of MPs Commission on a Bill of Rights see under Human Rights Act 1998, British Bill of Rights Commissioner for Parliamentary Investigations 108–9 Committee on Public Accounts 161 Committee on Standards in Public life (CSPL) 90, 97–8, 101, 106–7, 109 lay members 180–2 Commons see House of Commons Commons Committee on Standards and Privileges 85–6, 104, 112–13, 182 sanctions 193–4 see also Parliamentary Commissioner for Standards (PCS) Commons Library, Research Service, legal advice 125

364

Index

Compliance Officer (IPSA) 109, 110–11 see also members’ expenses conduct of House of Lords’ members see House of Lords conduct of MPs arms to Iraq 97 cash for questions 90, 97 Code of Conduct and the Guide to the Rules Relating to the Conduct of Members 90, 97–8, 108, 109 election see election disputes expenses see members’ expenses financial interests declaration 95–6 dual reporting 102–3 Register of Members Financial Interests 96–7, 117 Parliamentary Commissioner see Parliamentary Commissioner for Standards (PCS) party funding, donations 101–2 self/external regulation 89–91, 92, 116–18 see also Committee on Standards in Public life (CSPL); Commons Committee on Standards and Privileges constituents, communications with 62–4, 65 Constitution Committee (House of Lords) 168, 172–3, 217, 327, 333, 334 basic role 281–3, 307–8 chairman’s influence 287 judiciary dialogue 304–7 legal advisers 288 legislative scrutiny Health and Social Care Bill 2011 (case study) 297–9 influence 292 Legislative and Regulatory Reform Bill 2006 (case study) 293–6 process 290–2 scope 289–90 standards 292–3 membership 284–7 origins 283–4 other committees 288–9 parliamentary accountability for justice 357–8, 359 policy inquiries British armed forces, deployment abroad (case study) 302–4 impact 302 list 300 process 301–2 political/legal constitutionalism 282–3, 308 staff members 287–8 suggested activities 282 Constitution Unit 124, 168, 175–6 Constitutional Reform Act 2005 see under parliamentary accountability for justice

contempt, punishment 12–13 Conway, Derek 104–5 Cook, Robin 253 Cormack, Sir Patrick 117 corruption see bribery and corruption courts legal advice 129 see also sovereignty of Parliament criminal law article 9 protection 68–74 basic issues 67–8, 86–7 bribery and corruption see under bribery and corruption corporate dispensations 72–3 exclusive cognisance 68–73 expenses see under members’ expenses precincts of Westminster, acts within 70–2 privilege issues 79–80, 91 searches of parliamentary estate 10–11, 74–80, 91 Cross-Channel Tunnel Bill 134 Crossrail Bill 134 Culture, Media and Sport Committee 191, 359 Daily Telegraph 106, 107, 111, 118, 156–7 Davis, David 260 defamation 38–9, 40, 62–3 Delegated Powers and Regulatory Reform Committee (House of Lords) 223 delegated/secondary legislation 135 Department of Constitutional Affairs 355, 356 Devine, Jim 29, 81 devolution background/development/summary 197–8, 219 select committees 216–18 see also England; Northern Ireland; Scotland; UK Parliament; Wales d’Hondt system 209 Dicey, AV 248, 295, 343 Director of Public Prosecutions 111–12 disability, UN Convention on the Rights of Disabled People 240 Disraeli, Benjamin 93 donations see under conduct of MPs Downey, Sir Gordon 98, 99 Ebdon, Les 177 Ecclesiastical Committee 182 economic/social rights 267 election disputes 92–7 background 92 campaign statements 94, 95 election court 93–5 jurisdiction of courts 92–3 offences in campaigns 93 Electoral Commission 101–3, 109 Energy and Climate Change Committee 170

Index England, devolution background 210 London, Mayor/Assembly/Authority 211 regional select committees 218 regions 212 UK Parliament, English question 213–14 see also Northern Ireland; Scotland; UK Parliament; Wales Erskine May’s Parliamentary Practice 3, 12, 41 conduct of MPs 91, 92, 98 select committees 179, 184–5, 186, 190 European Convention on Human Rights Bill of Rights 1689, Article 9 protection 45–6 legislation compatibility, see also Joint Committee on Human Rights legislation compatibility/compliance 129, 134, 135, 168–9, 252–3 Scottish devolution 202–4 see also Human Rights Act 1998; Joint Committee on Human Rights European Court of Human Rights see under Human Rights Act 1998 European Scrutiny Committee (ESC) 170–1 exclusive cognisance 13–20 constitutional principle 20–1 courts 20–4 criminal law 68–73 expulsion powers 13–14, 17 FOI issues 142 recall of MPs 17–20 resignations 14–17 sovereignty of Parliament 311–13 statutes’ application 21 statutory disqualification 16 see also privileges expenses see members’ expenses expulsion powers 13–14, 17 Falconer, Lord 231, 257, 331, 350, 355 financial interests see under conduct of MPs Finch, Dame Janet 177 FOI see Freedom of Information (FOI) Act 2000 fraud conspiracies 73 freedom from arrest 8–11 imprisonment 9–10 Mental Health Act detention 10 search warrants 10–11 Speaker’s role 8–9 treason 9 Freedom of Information (FOI) Act 2000 accountability 149–50 appeals 141 coverage 139–40, 142 designated officers 142–3 exemption certificates 141 exemptions 103–4, 118 Houses of Parliament, application 140, 141–2 impact 147–52

365

lobbying access 158 members’ expenses 103–4, 118, 150, 152–7, 153–5 openness/public debate tradition 143–4 privilege 146–7, 158–9 public bodies, definition 140 refusal grounds 140, 145–6 requests, analysis 144–6 Speaker see under Speaker tax status of peers 157–8 transparency 147–9, 158, 159 trust 150–2 Westminster-style legislatures, comparison 141, 146 freedom of speech Article 9 protection see Bill of Rights 1689, Article 9 protection Bill of Rights 1689, Article 9 protection 37–9 constituents, communications with 62–4, 65 courts’ reference to Hansard 59–62 injunction see injunctions as privilege 7–8, 35–6 sub judice see sub judice convention Freeson, Reg 62 Gale, Roger 80 Galley, Christopher 74–5 Gardner, Sir Edward 253, 258 Governance of Britain 264, 265, 267 government departments, legal advice 128–9 Government Legal Service 124 Graham-Campbell doctrine 72–3 Grayling, Chris 260–1, 275 Green Book 107 Green, Damian 28, 74–80, 87 Grenville, George 92 Grieve, Dominic 126, 256–7, 277 Hailsham, Lord 346–7 Haldane Report 342–3 Hanningfield, Lord 29, 81 Hansard Society Audit of Political Engagement (2008) 273 Commission on Parliamentary Scrutiny 165–6 hate speech offences 73 Hazell, Robert 175, 178, 223, 244, 256 Hemming, John 80 High Speed 2 Bill 134 Holtham Commission 207–8 House of Commons Commons Library, Research Service, legal advice 125 FOI see Freedom of Information (FOI) Act 2000 Legal Services Office (Commons) 123–4 sanctions 190

366

Index

Scrutiny Unit (legal advice) 125, 164 select committees role/appointment 162–3 see also select committees sub judice ordinance 128–9 transparency 144 see also conduct of MPs; members’ expenses; members’ pay; privileges; Speaker House of Lords 91–2, 114–16 Appellate Committee 343–4 Code of Conduct 92, 115 Commissioner for Standards 91–2, 114–15 Committee for Privileges and Conduct 91, 115–16 Constitutional Affairs Committee 126 Counsel to Chairman of Committees (Lords) 123–4 FOI see Freedom of Information (FOI) Act 2000 IPSA non-application 108 select committees on Constitution see Constitution Committee (House of Lords) on devolution 217 role/appointment 162–3 sovereignty of Parliament 327–9 see also select committees tax status of peers 157–8 Howarth, David 63–4, 86 Human Rights Act 1998 British Bill of Rights Britishness 265 Commission on a Bill of Rights 270–6, 278–9 consultation process 268–9 devolution issues 265–6 economic/social rights 267 issues 263–4 ownership 267–9 political commitment 269–70 rights/responsibilities 264 Convention compatibility/compliance 129, 134, 135, 168–9, 252–3 criticisms by politicians 254 European Court of Human Rights 260–3 prisoner voting issue 260–1 relations with 276–8 sovereignty issues 261–3 historical background 253–4 judges’ role 258–60 Parliament’s role 252 politicians and public, objections 254, 255–8 prisoner voting issue 260–1 provisions 251–2 public authorities 251–2 sovereignty issues 261–3 see also European Convention on Human Rights; Joint Committee on Human Rights

human rights memoranda see under Joint Committee on Human Rights Illsley, Eric 29 imprisonment 9–10 Independent Parliamentary Standards Authority (IPSA) see under members’ expenses Infrastructure Planning Commission 170 injunctions active proceedings 55–6 breaches of 52–3 Green Paper 2012 57 Joint Committee, 2012 report 56–7 Neuberger report 54–5 publication of statements 54 right of reply 57–8 select committee evidence, citation 59 super-injunctions 53–4 see also sub judice convention Intelligence and Security Committee (ISC) 183–4 Irvine, Lord 331, 350 Jack, Sir Malcolm 50, 179, 192–3 Jenkin, Bernard 195 Jennings, Sir Ivor 293 Joint Committee on Human Rights 135, 168, 327, 334 bill teams, meetings with 228–9 British Bill of Rights 275–6 constitutional change 248–9 courts’ judgments, responses 237–8 diversity of views 243 draft bill scrutiny 233–5 effectiveness 244–6 explanatory notes 229–30 fundamental values 223–4, 247–8 human rights memoranda 230–3 legislative scrutiny 227–36 standards/checklists/guidance 245–6 post-legislative scrutiny 236 pre-legislative scrutiny 233–5 remedial orders’ scrutiny 237–8 rule of law 224–6 significant issues focus 227–8 thematic inquiries basic approach 240–1 sources of standards 242–3 subject selection 241–2 UN human rights treaties, monitoring 238–40 guidelines 246 pre/post-legislative scrutiny 240 Universal Periodic Review (UPR) 239–40 Joint Committee on Parliamentary Privilege 191, 195 Joint Committee on Statutory Instruments (JCSI) 135, 169–70

Index joint committees draft bills 136 evidence, citation 61–2 privileges see under privileges Jones, Fiona 93 Joyce, Eric 71 jury service 22–3 Kennedy, Helena 271 Latimer House Principles 226 law officers, legal advice role 126–7 Law Society 134 Laws, David 157 legal advice committees of both houses 124 Commons Library, Research Service 125 Counsel to Chairman of Committees (Lords) 123–4 courts 129 delegated/secondary legislation 135 external sources 126–33 government departments 128–9 internal sources 122–5 judiciary 129–33 law officers’ role 126–7 legislation 133–6 lobbying groups 133–4 members of parliament 125, 136–7 ministers 128–9 nature of 122–3 Parliamentary Counsel 127–8 Private Bills 134–5 Private Members’ Bills 134 scope of legal issues 121–2 Scrutiny Unit (Commons) 125, 164 select committee legal specialists 124 Speaker’s Counsel 123–4 summary/conclusion 137 legal constitutionalism 282–3 Legal Services Office (Commons) 123–4 Legg, Sir Thomas 112 legislation, legal advice 133–6 legislative consent motions see under devolution, UK Parliament legislative scrutiny see under Constitution Committee (House of Lords) Lester, Lord 253 Leverhulme project 143, 147, 148, 155 Liaison Committee, select committees 165–7, 170, 174–6, 194–5, 196 lobbying access 133–4 and FOI 158 London see under England, devolution Lord Chancellor see under parliamentary accountability for justice Lords see House of Lords

367

McDonald, A 256 Macdonald, John 344 McGuinness, Martin 17 McKay Commission 213–15 Mackay, Lord 91, 345–7, 348 McKay, Sir William 56, 76, 80 Maclean, David 148 Maclennan, Robert 253 McNally, Lord 270 Major, John 90, 97, 348 Manor of Northstead 14–15, 17 Martin, Mr Speaker (later Lord) 76–9, 155–6 Mayhew, Sir Patrick 126 Members Estimate Audit Committee (MEAC) 104 Members Estimate Committee (MEC) 104–5, 112 members’ expenses criminal law 28–30, 81–6 FOI see under Freedom of Information (FOI) Act 2000 Independent Parliamentary Standards Authority (IPSA) 90, 103, 117–18, 156–7 Compliance Officer 109, 110–11 establishment 108–9 members’ pay 109 MEC review 104–5 Parliamentary Commissioner for Standards (PCS) 111, 157 privileges 28–30 prosecutions (2009) 103, 106–7 convictions/aftermath 113–14 jurisdictional issues 111–13 Speaker 107, 155–7, 159 see also conduct of MPs members’ pay 109 Mental Health Act detention 10 Miller, Maria 157 ministers, legal advice 128–9 Ministry of Justice see under parliamentary accountability for justice monarch, privileges see privileges Moonie, Lord 116 Moran, Margaret 29, 84 Morley, Elliot 29, 81 Morris, Sir John 126 Murdoch, James 190–1 Murdoch, Rupert 71, 190–1 National Policy Statement Committee (NPSC) 170 new public management see under parliamentary accountability for justice News International 12, 48–9, 191, 193 News of the World 191, 193

368

Index

Nicholls Committee 26, 30, 36 Nolan Committee see Committee on Standards in Public life (CSPL) Northern Ireland British Bill of Rights 265–6 devolution 208–10 Assembly 209–10 background 208 Cabinet collective responsibility 210 legislative programme 209 Northern Ireland Act 1998 209–10 Northern Ireland Affairs Committee/ Grand Committee 217 power-sharing government 209, 210 reduction in seats 218 see also England; Scotland; UK Parliament; Wales Northstead Manor 14–15, 17 O’Leary, C 93 O’Neill, Baroness Onora 150 Osborne, George 157 Osmotherly Rules 187, 356 ouster clauses 320, 330–1 parliamentary accountability for justice arena legislatures 340–1 Constitutional Reform Act 2005 accountability issues 352–5 enactment 350–2, 360–1 constitutional territory 339–41 Green Papers 345–7 Lord Chancellor Department 342–7, 359–60 participation in debates 352–3 Ministry of Justice 355–6 new public management 344, 347–50 non-accountability 344–5 qualitative assessment 361 representations to Parliament 354–5 select committees 355, 356–9 separation of powers 340, 341 Parliamentary Business and Legislation (PBL) Committee 230–2 Parliamentary Commission on Banking Standards 178–9 Parliamentary Commissioner for Standards (PCS) 85–6, 92, 98–101, 112–13, 117 appointment/dismissal process 100, 117–18 expenses see under members’ expenses holders of post 99 Table independence 99–100 responsibilities 98–9, 102 and Standards and Privileges Committee 100–1 Parliamentary Counsel as guardians of value 223, 326–7 legal advice 127–8 parliamentary papers 21–2

parliamentary privilege see under privileges parliamentary sovereignty see sovereignty of Parliament party funding, donations 101–2 Paul, Lord 116 Pay, Jill 75–6 phone hacking allegations 48–9 Pinto-Duschinsky, Michael 271–2 policy inquiries see under Constitution Committee (House of Lords) political/legal constitutionalism 282–3 Polsby, Nelson 340–1 Ponsonby Rule 238 Prentice, Gordon 157 prisoner voting issue 260–1 Private Bills 134–5 Private Members’ Bills 134, 137 privileges attendance as witness 22 civil actions immunity 37–8, 91 claiming and granting 5–7 codification 4 contempt, punishment 12–13 criminal law 79–80, 91 freedom from arrest see arrest, freedom from Green Paper (2012) 30–2, 36 joint committees corruption/justice/bribery see under bribery and corruption 1997–99 26, 30, 36 on Parliamentary Privilege 191, 195 2012–13 32–3 judicial proceedings 21–4 jury service 22–3 letter written by MP 24–5, 39–40 members’ expenses 28–30 members’ expenses charges 28–30 monarch favourable construction by 11 right of access to 11 official secrets 24 parliamentary papers 21–2 reform attempts 24–33 scope 3–4 searches/search warrants see under criminal law, searches of parliamentary estate select committees effectiveness and powers 12–13 lay members 180–2 recommendations (1966–77) 25–6 service of court papers 23–4 speech see freedom of speech see also Bill of Rights 1689, Article 9 protection; conduct of MPs; criminal law; exclusive cognisance; freedom of speech Procedure Committee 164 Public Accounts Committee 179–80

Index Public Administration Select Committee (PASC) 141–2, 174–5, 177 Public Bill Office 134 public bodies, FOI definition 140 Raab, Dominic 277 recall of MPs 17–20 Register of Members Financial Interests see conduct of MPs, financial interests Regulatory Reform Orders 135 resignations 14–17 Richard Commission 218 rights/responsibilities 264 Rogers, Sir Robert 36, 50 Rosenfeld, Irene 190 rule of law Joint Committee on Human Rights 224–6 sovereignty of Parliament 325–6 UN Declaration on the Rule of Law 226 Scotland, Baroness 80 Scotland, devolution 199–204 background 299 British Bill of Rights 266 committees 200 courts’ role 201–4 elections 199–200 human rights issues 203–4 income tax 200–1 independence referendum 204, 218–19 Parliament 199–201 residual powers 200 Scotland Act 1998 199–201 Scotland Act 2012 201 Scottish Affairs Committee 216–17 Scottish Grand Committee 217 sovereignty 200 UK Supreme Court 202–4 see also England; Northern Ireland; UK Parliament; Wales Scrutiny Unit (Commons) 125, 164 searches/search warrant see under criminal law secondary legislation 135 levels of control 169–70 Secondary Legislation Scrutiny Committee 170 Sedley, Sir Stephen 259, 322 select committees civil servants, power to summon 187, 356 core tasks 165–7 departmental 162 devolution 216–18 draft bills 136 evidence citation 59, 60–2 on oath 179–80 historical development 161–2 Houses of Parliament, differences 162–3 impacts 167–8

369

independent bodies, monitoring 163 inquisitorial nature 161 judiciary legal advice/appearances 131–3 non-judicial evidence 133 lay members see Committee on Standards in Public life (CSPL), lay members legal specialists 124 legislation post-legislative scrutiny 172–4 scrutiny 168–72, 172 Table Liaison Committee 165–7, 170, 174–6, 194–5, 196 Modernisation Committee 163–5 parliamentary accountability for justice 355, 356–9 Parliamentary Commission on Banking Standards 178–9 persons/papers/records, power to summon 186–90 powers 184–5 pre-appointment hearings 174–8 privileges see under privileges recommendations by 162 reforms 163–5 salaries of chairs 164–5 sanctions 190–5 sovereignty of Parliament 327–9, 332–3 special advisors, power to summon 187–8 statutory committees 182–4 sub judice rules 51–2, 185–6 summary 195–6 US Congress, comparison 162 witnesses attendance 50 protection 189–90 Senior Salaries Review Body (SSRB) 104–5, 114 separation of powers 340, 341 Serjeant at Arms 75–9 Sewel Convention 200, 215 Silk Commission on Devolution in Wales 197, 207–8 Snape, Lord 116 sovereignty of Parliament basic issues 309–11 civil servants 326–7 comity between institutions/workability 321–2, 336 as constitutional arrangement 317–18 constitutional supremacy 315–21 courts’ role, development 333–4, 336, 337 as democratic principle 313–15, 336 deterrents against abuse 323–30, 330–5, 336–7 European law and courts 313–14 exclusive cognisance 311–13 hypothetical case 318–21 independent scrutiny commission 334–5

370

Index

international/European law 324–7 judicial striking down 316–17 majoritarian practice 311, 312 meaning 309–10 other countries 310, 336 ouster clauses 320, 330–1 political culture 323–4 privilege and courts 311–13 rule of law 325–6 select committees 327–9, 332–3 summary/conclusions 335–7 written constitution 331–2, 337 Speaker arrest of members 8–9 Bercow, Mr Speaker 5–7, 156–7 election 5–7 election court 94, 95 FOI exemption exclusion power 141 role 143 members’ expenses 107, 155–7, 159 role 143 search warrant protocol 10–11, 76–9 sub judice convention 51, 136 Speaker’s Committee on the Electoral Commission 182 Speaker’s Counsel 123–4 special advisers, select committees’ power to summon 187–8 speech, freedom of see freedom of speech Starmer, Keir 29, 111–12 statutory committees 182–4 statutory instruments 135 super-affirmative procedure 169–70 Stephenson, Sir Paul 111–12 Strauss case 24–5 Straw, Jack 62, 256, 259, 353, 355 Street, A 184 sub judice convention application 51 current formulation 51 development of 50–1 injunctions/super-injunctions 52–4 publication of statements 54 select committees 51–2, 185–6 see also injunctions Sumption, Jonathan 259 super-injunctions see under injunctions Table Office (Commons) 128–9 Taylor, Lord 29, 116 terrorism offences 73 Thatcher, Margaret 344, 347–8 transparency see under Freedom of Information (FOI) Act 2000

treason 9 Truscott, Lord 116 trust see under Freedom of Information (FOI) Act 2000 Tyrie, Andrew 178 Uddin, Baroness 116 UK Parliament, devolution background 198–9, 212 English question 213–14 legislative consent motions 200, 215 public money allocation 199 quasi-federal/federal system 214–15 reduction in seats 218 referendums 218–19 select/grand committees 216–18 see also England; Northern Ireland; Scotland; Wales UN Convention on the Rights of Disabled People 240 UN Declaration on the Rule of Law 226 UN High Commissioner for Human Rights 225 Universal Periodic Review (UPR), human rights treaties 239–40 Wakeham, Lord 283, 308 Wales, devolution 204–8 Assembly 205–6 background 204–5 executive/legislature separation 205–6 fiscal powers 197, 207–8 functions transfer 205 Government of Wales Acts 1998 and 2006 205–7 legislative fields 206 public policy 206–7 referendum 204, 218 Secretary of State’s function 207 Welsh Affairs Committee 216 Welsh Grand Committee 217 see also England; Northern Ireland; Scotland; UK Parliament Watkins, Elwyn 94 West Lothian question 212–13 Westminster, precincts of, criminal acts within 70–2 Winterton, Sir Nicholas 117 witnesses MP’s attendance as 22 select committees see under select committees Woolas, Phil 93–5 Wright Committee 163–5, 184, 195 Young, Sir George 16, 178–9