What’s been happening to the British constitution: an overdue update

It is too long since I have posted updates on this blog. In preparation for the new teaching year, which is about to start, what follows is a summary of the leading developments in British constitutional law and practice in 2012-13. They are presented here in the order in which they would appear in Turpin and Tomkins (hereafter, T&T).

1. Ongoing debate and confusion about Bill of Rights reform

Labour’s great constitutional reforms of the 1997-2001 Parliament are coming under increasing pressure. The imbalanced way in which devolution was delivered for Scotland (see #3 below) and ongoing rows about the Freedom of Information Act (see #2 below) are part of this, but top of the bill comes the ever more bitter wrangling about the Human Rights Act. Does this legislation over-privilege liberty at the expense of tradition, authority or security? Does it give too much power to the judges? Are ministers and Parliament unreasonably constrained? These questions are being raised particularly loudly on the Conservative benches in the House of Commons, as well as in the press. The questions are not going to go away, not least because of the spectacular (and widely predicted) failure of the Bill of Rights Commission to address them properly. The report is so woeful that I won’t post a link to it here (Google it if you must); there is a brilliant commentary on the report by Dr Mark Elliott (University of Cambridge) at [2013] European Human Rights Law Review 137 — you really don’t need to read anything else on this sorry little episode.

Two of the highest profile disputes about human rights in recent years have been the saga of prisoners’ right to vote (see T&T p 283) and the deportation of Abu Qatada (see here). The former continues to rumble on — an important judgment is expected on this matter from the UK Supreme Court in about October — and meanwhile a parliamentary committee continues to examine the matter in detail. The latter was solved, after a Treaty was agreed between the UK and Jordan, enabling the Secretary of State in July 2013 to deport Abu Qatada to Jordan without breaching human rights law.

2. Evans v Information Commissioner [2012] UKUT 313

This is my favourite case from 2012, and not just because I was in it. This was the case brought under the Freedom of Information Act 2000 by the Guardian newspaper against seven Government departments, seeking access to correspondence between ministers and HRH The Prince of Wales. The Guardian wanted to see the extent of the Prince’s notorious “lobbying” of politicians. Access was denied and the newspaper took the matter to the Information Rights Tribunal. Because of the complexity and sensitivity of the matter, the case was heard  by the Upper Tribunal, chaired by a High Court judge (Walker J). The constitutional conventions pertaining to the Heir to the Throne became central to the legal argument in the case. Expert witnesses were brought in to assist the Tribunal on these matters: Professor Rodney Brazier (University of Manchester) for the Government departments, and me for the Guardian. The Guardian won the case.

In its judgment the Tribunal examined in detail the various public interest factors which mitigated either in favour of or against disclosure, the analysis being presented in the framework of what the Tribunal understood the constitutional / conventional position to be. The judgment repays careful reading, both for its treatment of constitutional conventions and for its analysis of the public interest.

What happened next also matters, however, for the Attorney General exercised his power under FOIA s.53 to veto the Tribunal’s decision. This is a “safety valve” in the freedom of information legislation which allows ministers exceptionally to have the last word in determining what is in the public interest. The Attorney General’s exercise of the veto was unsuccessfully judicially reviewed. As well as the decision of the Tribunal, the AG’s statement of reasons as to why he was using the veto power and the Divisional Court’s judgment upholding the Attorney’s decision also repay careful reading. They will tell you much about: the relationship of law to constitutional convention; the constitutional position and powers of the Monarchy; the reasons why Prince Charles is a constitutionally controversial figure; the curious relationship of judicial to ministerial decision-making authority under the Freedom of Information Act; the meaning of that difficult phrase “the public interest”; and much else besides. You could teach an awful lot of most universities’ constitutional law courses from these sources alone! (And, for a bit of fun, look up David Aaronovitch’s account of the Brazier v Tomkins arguments in the Times, 18 October 2012, p 27).

3. Scotland etc

Where to start? On 18 September 2014 a specially extended electorate in Scotland will vote in a referendum on the question of whether Scotland should be an independent country (“specially extended” because the franchise will extend to minors: 16- and 17-year olds will be permitted to vote; prisoners will not be permitted to vote). Polls consistently show that the answer will be No, but the polls have been wrong before and informed opinion in Scotland is that it will be closer, perhaps a great deal closer, than the polls currently suggest. If there is a Yes vote, Scotland will become an independent State, leaving the United Kingdom and ending the Union with England that dates back to 1707. Were this to happen it would be the most traumatic constitutional event to afflict Britain in more than a century. I am not neutral on this — how could you be? — and should you wish to do so you can read some of my many musings on why the Unionist position should prevail on a separate blog, here.

From a UK constitutional point of view, perhaps the most interesting question is what should happen next (if the polls are to be believed), after a No vote in the referendum. Two fault-lines have emerged in the devolution “settlement” of 1997-99: first as regards the imbalances of the Scottish Parliament’s powers and secondly as regards the centre and the consequences of Scottish devolution for England. Briefly, on the first, while the Scottish Parliament has very considerable powers to spend money (and to make law), it has rather limited powers to raise money. We have extensive legislative devolution in the UK (not only in Scotland, of course) but little fiscal devolution. One of the main arguments following any No vote in the referendum will be over the extent to which the Scottish Parliament’s responsibilities for the raising of money should match its legislative and spending powers. On the second, while the basic devolutionary principle of home rule has now been accepted by all the UK’s main parties, the consequences for England and for the UK as a whole have not been. In part this is about money (the Barnett formula, and all that) — and this aspect could be made to go away if fiscal devolution takes off — but in part it’s also about the famous West Lothian Question, also known as “English votes for English laws”. On this, the March 2013 report of McKay Commission was excellent: you can read more about this here.

4. Britain and the European Union

The Conservative party’s agony over Britain’s EU membership continues. In January 2013 the Prime Minister undertook that if his party won the forthcoming 2015 general election he would seek to renegotiate the terms of the UK’s membership of the EU and then to put the result of such renegotiation to an in/out referendum. Under the leadership and direction of the Foreign Office the Government has commenced the publication of a long series of analysis papers, reviewing the current distribution of competences between the UK and the EU: you can read the first papers in the series here. No-one seems very sure what the Labour party’s position is on this matter at the moment; the Liberal Democrats are committed to the UK’s continuing membership of the EU; and the SNP wants an independent Scotland to become a Member State of the EU. Meanwhile, argument continues over the extent to which the UK should opt into or out of the EU’s various measures in the area of justice and home affairs (the most controversial of these is the European Arrest Warrant): for an overview of the issues, see here.

5. Individual ministerial responsibility

In October 2012 the Secretary of State for Transport announced that the competition to award the franchise for the West Coast mainline had been cancelled because of “significant” flaws in the procurement and tendering process. The cancellation of the process cost the public purse in excess of £50 million. A number of officials were suspended and subjected to disciplinary proceedings and the Government’s position was that the lessons to be learned were principally for civil servants rather than ministers. Yet the Transport Select Committee found that the flaws in the process were due to “failures of governance, assurance, and policy and resourcing” (para 8). These matters fall squarely within the scope of ministerial responsibility (see T&T pp 573-91), yet no minister resigned over the matter.

By contrast, the Chief Whip, Andrew Mitchell, was forced to resign from the Government in October 2012 over remarks allegedly made the previous month when he was reported to have lost his temper with a police officer guarding the gates of Downing Street. The Public Administration Select Committee was highly critical of the way this affair was investigated.

Neither episode fills one with confidence that the conventions of individual ministerial responsibility are operating effectively: that sense is only compounded when the two episodes are examined alongside one another. What is really more important: swearing at a police officer (if this is indeed what occurred) or overseeing the waste of more than £50 million of public money?

6. Collective ministerial responsibility

The extent to which coalition government is putting a strain on the constitutional rules pertaining to the collective responsibility of Government to Parliament has arisen in a number of contexts since 2010. This will be the subject of the House of Lords Constitution Committee’s major policy inquiry in 2013-14: the Committee’s call for evidence sets out the issues in summary form.

7. The civil service

For how long will the well-established values of the British civil service remain? Since the mid-nineteenth century the civil service has been permanent, politically neutral, objective and appointed on merit on the basis of open competition (see T&T pp 439-49). Ministers come and go; and are partisan. Civil servants remain to serve whichever minister is appointed to the Department; and must serve with equal loyalty ministers from all political parties. The structure of accountability that we have built on the basis of these foundations is that civil servants are responsible to their ministers; and ministers are responsible to Parliament. But this does not always work. If a civil servant (rather than a minister) wastes public money (see #5 above), for example, should Parliament not be able to question that civil servant directly? Increasingly, the House of Commons Public Accounts Committee does just that, including when it rather aggressively questioned officials from Her Majesty’s Revenue and Customs (HMRC) over certain matters pertaining to tax deals apparently struck with large corporations. When this occurs, it places strain on the traditional constitutional position that it is ministers, and not officials, who are responsible to Parliament. (HMRC may be an unusual case, however, in that there is no responsible minister: we want our tax affairs administered objectively, and so ministers are kept out of it.) The House of Lords Constitution Committee published a detailed report on the accountablity of civil servants in November 2012.

At the same time the Government launched its Civil Service Reform Plan. The Reform Plan contains proposals to extend ministers’ influence over the appointment of the most senior civil servants. Will this politicise the civil service, reducing its ability to serve governments of all colours? Or is this a necessary step towards achieving greater harmony, and therefore greater efficiency, in the co-operation which is needed between ministers and their most senior officials? For the expert verdict of the Institute for Government, which has followed this matter closely, see here.

8. National security law

One of the case-studies of liberty and the British constitution presented in T&T ch 11 is national security law. There have been significant developments in national security law in 2012-13, the most important being the passage and coming into force of the Justice and Security Act 2013. This legislation does three things. First, it makes modest reforms to the Intelligence and Security Committee, the committee which scrutinises the work of the UK’s security and secret intelligence services. Secondly, it extends the availability of closed material procedure and special advocates. And thirdly, it provides that the courts’ Norwich Pharmacal jurisdiction, famously deployed in the Binyam Mohamed case as a means of seeking access to sensitive national security information (pertaining to Mr Mohamed’s torture) can no longer be used in “sensitive” cases (as defined in the Act). (On Binyam Mohamed, see T&T pp 105-7.) This last reform may not be as controversial as might first have been thought, however, owing to the fact that in Omar the courts had in any case ruled that the approach taken in Binyam Mohamed was erroneous.

The extension of closed material procedure and special advocates is hugely controversial. On the one hand, it may enable more sensitive national security cases to be tried than would otherwise have been possible. On the other hand, however, the use of closed material procedure marks a significant inroad into what the UK Supreme Court has held is the fundamental common law principle of open justice. This is a complex subject, on which the leading judicial sources are Al Rawi v Security Service [2011] UKSC 34 and Bank Mellat v HM Treasury (No 1) [2013] UKSC 38. For an extended analysis, see my article on the Justice and Security Act posted on SSRN here.

9. Freedom of expression

Another of the case-studies of liberty and the British constitution presented in T&T ch 11 is freedom of expression. In the book we note that in 2008 the House of Lords upheld the restrictions imposed in the United Kingdom on political broadcasting (party political broadcasts and the like) — see the Animal Defenders International case. In April 2013, by a wafer thin nine-votes-to-eight majority, the Grand Chamber of the European Court of Human Rights agreed that the UK legislation was not in breach of Article 10 of the Convention. The opposite conclusion had been expected in a number of quarters but would have caused a row between London and Strasbourg that would make the fuss about prisoners’ right to vote look like a ripple in a teacup.

Finally, some things to look out for in the coming months:

  • More fun and games with prisoners’ right to vote, as the UK Supreme Court hands down what could become a leading judgment on the matter
  • A big fight on the Lord Chancellor’s plans to reform legal aid; a lesser fight also on his plans to reform judicial review in English law
  • The Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Bill, which is set to have a stormy passage through Parliament
  • Provisions in the planned Immigration Bill designed to qualify the way courts and tribunals have been ruling on aspects of the human rights of persons subject to immigration control (e.g. in the context of the deportation, post-sentence, of what the media like to call “foreign criminals”)

Finally finally, you can now follow me on Twitter @ProfTomkins. Not everything I tweet concerns constitutional law, but quite a lot of it does. 

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What’s been happening to the British constitution: an overdue update