MAKING TIME TO REFORM PARLIAMENTARY TIME

May 14, 2013 by 2 Comments

All this talk of draft bills and Loyal Address amendments about an EU referendum raises several vital democratic issues of parliamentary process, not least that of the ways in which MPs, individually or collectively, can initiate debate or legislation on important topics of the moment.  At its heart, as always, lurks the core problem of Government control of House of Commons business and time.

Supporters of the ‘conventional wisdom’ parliamentary reform agenda over the last half century have justified the pace and route of reform as being incremental, evolutionary and practical, being the only way to achieve change in the face of the Government’s dominant position in the House of Commons.  Those more sceptical may choose to describe it more negatively, as being ad hoc, piecemeal, reactive, incoherent and devoid of any consistent guiding principle.

Some changes come not directly from demands from MPs or even the public, but from the initiative of the Government itself, and these, though dressed up as parliamentary reform to strengthen Parliament, often result in making life easier for Ministers.  Richard Crossman in the 1960s said there was a difference between parliamentary reform and modernisation, when he was distinguishing practical updating in infrastructure and facilities from procedural changes.  In the modern context, too often ‘modernisation’ has been the catchword for changes which assist the Government, or which can be absorbed by Ministers without serious inconvenience, whereas genuine ‘reform’, to make Parliament itself more powerful and effective, especially in relation to the Executive, has to take a back seat, awaiting Government permission and, worse, facilitation.

So it is with ‘parliamentary time’ and the control and order of business.  There have been some changes, especially to the scope for debate not initiated by Ministers, such as Westminster Hall.  There has been the innovation of the Backbench Business Committee, but that has been hobbled by the albatross of the Government’s e-petition wheeze around its shoulders.  Some ever-optimistic souls are still waiting in hope for the emergence of Government proposals for a ‘House Business Committee’ of some sort, originally promised for this year.

But we also wait in vain for fundamental change to issues like the current antiquated arrangements for backbench legislative initiative.  How different would the current ‘discussions’ of EU referendum legislation opportunities be if we didn’t have to rely on the various existing ‘private members bill’ processes, with its random ballot and limited scope for genuine progress of controversial bills, but if there were clear and efficient arrangements for the allocation of time for all types of parliamentary business, including scope for debates and legislative initiative by non-Governmental sources, such as backbenchers – getting rid of the unhelpful term ‘private member’ would be a small but symbolic reform – and committees.

The current confused mess – which may, in many ways, be helpful to Ministers – further undermines the Commons’ reputation with the public as an effective, responsive and accountable representative assembly, able to address coherently important issues of public interest.  Time for real, principled and all-embracing reform!

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TIME TO RECALL A SHELVED PARLIAMENTARY REFORM

April 11, 2013 by 1 Comment

The UK Parliament was recalled on 10 April to mark the death of the former Prime Minister, Margaret Thatcher. This post does not discuss whether recall was an appropriate response – personally, I do think it was – but considers how Parliament, especially the House of Commons, was recalled, as it is a good example of the wider, and fundamentally important, issue of the autonomy of Parliament, and its relationship with the Executive.

Parliament’s website announced the recall of both Houses. In respect of the Commons, it stated that “Standing Order 13 gives the Speaker the authority to recall the House of Commons when it stands adjourned, if he is satisfied it is within the public interest.” That sounds fair enough, in keeping with this core democratic body’s standing as the main representative forum of the people. But wait, what it didn’t say was that such a recall by the Speaker can only be done if triggered by the initiative of the Government. What the Standing Order actually says is:

“Whenever the House stands adjourned and it is represented to the Speaker by Her Majesty’s Ministers that the public interest requires that the House should meet at a time earlier than that to which the House stands adjourned, the Speaker, if he is satisfied that the public interest does so require, may give notice that, being so satisfied, he appoints a time for the House to meet, and the House shall accordingly meet at the time stated in such notice.” [S.O.no 13(1), emphasis added].

So, at least as regards initiating recall of the Commons, the Daily Telegraph headline “Margaret Thatcher: David Cameron recalls Parliament for ‘remarkable’ former British leader” was probably a more accurate statement. A report in the Guardian suggested that the recall “was the idea of the prime minister and involved him in a lengthy wrangle with the Speaker’s Office. John Bercow felt there was no need to recall parliament, and was taken aback by the request. His office thought the tributes could be paid next Monday in line with precedent for previous deaths of party leaders. At one point, Cameron had to enlist the support of Miliband to overcome the opposition, and Labour sources said they felt faced with a fait accompli and did not want to risk being seen as failing to show Thatcher due respect.”

A useful Parliamentary briefing paper issued on 9 April, discusses the procedural and practical aspects of the Commons recall process; looks at how it is handled (generally differently) in the Lords and in the devolved parliament/assemblies, and proposals for its reform, within and outwith Parliament, especially to make it a procedure in the hands of the House and its Speaker rather than subject to the instigation of Ministers.

In particular, it records such a proposal by the previous Labour Government, in its 2007 green paper, The governance of Britain, and the announcement of an inquiry into this and related issues by the then Modernisation Committee. Despite much trumpeting at the time that the Modernisation Committee was an effective way to get Parliamentary reform – especially because it was chaired by a Government minister, the Leader of the House (!!!) – the Committee never completed its inquiry or took oral evidence, though some of its written evidence was published.

It should also be noted that the 2009-2010 ‘Wright Committee’ on the reform of the Commons – whose work is currently the subject of an inquiry by the Political and Constitutional Reform Committee – did not address various  “contentious issues” on the House’s sitting patterns, and had “no collective view” on recall, but it did make a more general point very strongly (para 101): ”But we do recommend that the House should at least decide for itself when it sits and does not sit.” [bold in original].

What a refreshingly democratic notion! How about doing something about it, dear representatives of the people?

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McKay Commission Report: Parliament on the Sidelines … Again

April 3, 2013 by 1 Comment

28th March 2013

In a couple of earlier posts (here and here), I looked at the creation and operation of the McKay Commission on the West Lothian Question, criticising the fact that it was set up unilaterally by the Government, despite dealing with a core issue of parliamentary procedure.

Sadly, its newly-published report confirms this executive-centred approach to parliamentary reform.  The key section entitled ‘next steps’ (paras 248-9) contains phrases like “We envisage that the Government would first make an assessment of our proposals and put before the House..” and “When the House has expressed its views, we suggest that the Government should move for a select committee to advise the House on the details..”

Announcing publication of the report on 25 March, ministers said: “We will consider seriously and constructively this report and provide a substantive response to it in due course.”

The initial response from parliamentary officers and committees was ….. [fill in the blank].

Presumably Parliament is expected, as usual, to sit back quietly and wait for its executive masters to work out how it should operate.  The idea that one of the Commons’ select committees dealing with House matters (given the current Political & Constitutional Reform Committee’s inquiry into the ‘Wright Committee reforms’, we currently have 2 of them, ie it and Procedure Committee) should do a brisk inquiry into the subject of WLQ and the McKay Report, independently of Government’s own deliberations, is presumably far too revolutionary for the current House.  Ditto for some sort of initiative of this sort by the Speaker.

Or perhaps they will surprise us all?

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Lords Defeat Poses Challenge to Cameron on Peerage Appointments

March 1, 2013 by Leave a comment

1st March 2013

BY MEG RUSSELL

Yesterday (28 February) the coalition suffered a massive defeat in the House of Lords over the question of David Cameron’s right to appoint new peers. This reflected widespread concern among existing members that new appointments could lead to increasingly bloated numbers, and also weaken the chamber’s ability to hold the government to account. The ill-tempered debate took place amid rumours that new government appointees are on the way.

The defeat was on a motion proposed by senior Liberal Democrat (and former party leader) David Steel, as amended by Labour frontbencher Philip Hunt. Steel’s original motion called for a complete halt to the introduction of any new peers until arrangements had been made to allow members to permanently retire. This was a novel proposal, because the Prime Minister (and nominally the monarch) controls appointments, but the Lords controls its own procedures, and could in theory refuse new members an introduction ceremony. But this was considered too incendiary by many peers, encroaching on the powers of the monarchy; so Hunt’s amendment merely called for “restraint” in creation of new peers, and for immediate introduction of retirement procedures, and barring peers who do not attend or are convicted of criminal offences. This more cautious approach did the trick, and attracted overwhelming support from peers.

Despite the government whipping against the proposal, only 45 peers opposed it (31 Conservative, 11 Liberal Democrat, 2 Crossbench and 1 other) while 217 supported Steel and Hunt (35 Conservative, 16 Liberal Democrat, 94 Labour, 57 Crossbench and 15 others). For full details of those voting see here. This defeat – by 172 votes – was the coalition’s largest to date, and certainly the first in which the number of rebels in both coalition parties exceeded the number of loyal voters. In fact, it was the third largest defeat in the Lords since its reform in 1999, being exceeded only by resistance to Labour’s Prevention of Terrorism Bill introducing control orders (in 2005) and Counter-Terrorism Bill over holding terror suspects for 42 days without charge (in 2008).

The vote therefore demonstrates real alarm and anger inside the Lords about the threat of ‘swamping’ by new government peers, and significant tensions inside the coalition. The coalition agreement suggested that appointments would be used to bring the Lords into line with general election vote shares, but as a Constitution Unit report in 2011 pointed out that this would require appointment of 269 new peers (or 349 if Crossbenchers were to maintain their current share of seats), bringing its size to 1062 (or 1142). This research was cited in the debate by Lord Hunt. Notably UKIP (see column 1651) have begun to demand the 24 peers that they would be due under strict proportionality, and other parties such as the BNP could do the same. Since the furore caused by our report, appointments have been very limited. But the government has not officially renounced its earlier rather foolish pledge.

Of course, the wider context is the bitter issue of Lords reform within the coalition. Resistance from Conservative MPs meant Nick Clegg’s reform bill to introduce elections to the chamber had to be dropped. Lord Steel opposes elections, and has several times promoted a bill to facilitate small ‘tidying up’ changes, including retirement for peers. This is due for debate in the Commons today, sponsored by Conservative MP Eleanor Laing, but is likely to be blocked by the whips. Nick Clegg had previously argued that it was important to “not make the best the enemy of the good” when it came to Lords reform, but having been angered by the blocking of his bill he has clearly changed his mind. Lord Steel read from a recent parliamentary written answer, which stated that “In the absence of full reform, it is the Government’s view that there is no easy set of smaller reforms to the House of Lords… So reform measures must include introducing elected Members to the House of Lords”.

Yet as former Lord Speaker Baroness Hayman said in yesterday’s debate, “it is not responsible to continue to do nothing”. Statistics were traded, and Leader of the House Lord Hill suggested that the number of peers eligible to attend is barely larger than it was in 2007 (761 to 738). But this carefully excluded 50 members on temporary leave of absence and the like, who can potentially return. The total eligible membership, at 811, is significantly higher than at any time since 1999. Additionally, as some members pointed out, the rise in active members is far higher. Immediately post-reform in 1999 the average daily attendance was 352; in 2010-12 it was 475.

But this issue is also now highly politicised. Labour fears that the coalition – which is already numerically stronger than it ever was when in government 1997-2010 – will use new peerage creations to smother Lords’ resistance, and end defeats (this being its 62nd since taking office). The coalition claims that numerous Labour peers were appointed by Blair and Brown – which is true, and added to the chamber’s size, but never gave government anything close to a political majority.

The fundamental problem is that there is no agreement about how seats should be shared between the parties, and no constraints – aside from political embarrassment – on prime ministerial patronage power. What is urgently needed is some formula, agreed between the parties, under which any future appointments will be made. Linking this in some way to general election vote shares is reasonable, but not in the way that the coalition agreement laid down. Earlier proposals, such as those from the Wakeham Royal Commission, suggested that each new set of appointments should be in line with votes – which is a far more sustainable formula. For example, if 10 new peers were appointed in line with the 2010 result these would be shared 4 Conservative, 3 Labour, 2 Lib Dem, 1 other. Such proportions would vary only slightly over time (the 1997 equivalent would be 4 Labour, 3 Conservative, 2 Lib Dem, 1 other). But the trouble is that the baseline membership of the chamber matters too, and the coalition considers itself underrepresented (insofar as that claim is justified, it essentially just applies to the Lib Dems). If we are to engage in grown-up politics, the three parties should sit down and urgently and agree a future appointment formula, alongside some trimming of the existing membership so that the starting point is fair. But this would require maturity, and also the kind of retirement provision sought by Lord Steel. There would also need to be a strict cap agreed on the overall size of the chamber.

The Commons Political and Constitutional Reform Committee has recently announced an inquiry into what immediate reforms are needed to the Lords following the failure of Clegg’s bill. If it can agree a cross-party report on such matters, this could be a first step to ending the present bitterness in the Lords, and ensuring that public confidence in parliament doesn’t dip further by the chamber being made to look absurd.

Meg Russell is Deputy Director of the Constitution Unit, and leads its research on parliament.
Her new book ‘The Contemporary House of Lords: Westminster Bicameralism Revived’ will be published by OUP this summer. See here: http://ukcatalogue.oup.com/product/9780199671564.do
For the Unit’s research on the Lords see: http://www.ucl.ac.uk/constitution-unit/research/parliament/house-of-lords

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Lords vote on constituency boundaries: when is a defeat a defeat?

January 15, 2013 by 1 Comment

BY DR MEG RUSSELL

Last night in the Lords, the government’s Electoral Registration and Administration Bill was amended, to delay the planned boundary review of Commons constituencies (which was previously agreed in the Parliamentary Voting System and Constituencies Act 2011). In short, this was the Liberal Democrats wreaking their revenge on the Conservatives for the collapse of Lords reform. 72 Lib Dem peers voted in favour of the amendment, and it passed by 300 votes to 231.

This is undoubtedly a major blow for David Cameron and his Conservative colleagues. But was it a government defeat? The Independent reports it as a ‘bruising defeat on the Government’, but the Guardian more cautiously avoids using the D word in this way, only suggesting that should Cameron try to reverse the decision in the Commons he ‘would be defeated’, while the BBC makes no mention of the word at all.

For those of us who monitor parliamentary voting, this episode presents a dilemma. While commentators can skirt around the word, we need to decide whether this was a government defeat or not. The Constitution Unit’s website has long provided a breakdown of government defeats in the House of Lords as they happen, but this doesn’t quite fit the category. While the Conservatives whipped in favour of keeping the legislation as it was, the Liberal Democrats whipped against. Those voting for the amendment included Lib Dem ministers. Party leader Nick Clegg had made clear his intention to scupper the proposals when Lords reform was dropped, and defended his peers’ decision today, as the BBC story reports. This was clearly not a government win, and nor was it a free vote, but when the Deputy Prime Minister himself is applauding the decision, it can hardly be described as a defeat either.

Like us, the House of Lords authorities keep a running total of government defeats. Their own website chooses to describe this as a government defeat, on the basis that the government Chief Whip acted as a ‘teller’ for those wanting the bill to stay as it was. But the Liberal Democrat Chief Whip (who is also the government Deputy Chief Whip) was among those voting for it to change. I do not criticise the decision of the House of Lords’ authorities: they had to decide very quickly which way to jump. The support of the government Chief Whip is normally a pretty definitive indicator of the government’s position. But we are now in new territory, where the government – at least on certain matters – has no unified position. It seems that we need a new category for such parliamentary decisions. We have chosen for now to call this a ‘coalition split vote’. Comments and alternative suggestions are welcome below. It would be particularly interesting to know how such episodes are viewed in other jurisdictions more familiar with coalition government. The British are novices at this stuff.

This peculiar episode illustrates two more interesting things: the first is how little attention the media pays to the House of Lords. Had Liberal Democrat ministers gone through the division lobbies against their Conservative colleagues in the Commons this would have been huge political news. But because it occurred in the Lords, it didn’t even make last night’s BBC headlines. The second interesting factor is why this didn’t happen in the Commons. Cameron does not have the numbers in the Commons to overturn the decision, so it is not just a numbers issue, and he is unlikely to overturn the decision. But the second chamber’s culture of ‘self-regulation’ was crucial to this vote. The clerks’ official advice had been that the amendment was ‘inadmissible’ because it was ‘not relevant to the bill’. But peers decided to vote for it anyway. In the Commons such an amendment would have been ruled out of order by the Speaker and MPs would have been denied a chance to vote on it. In the Lords, all poor Leader of the House Lord Hill of Oareford (who has only been in post for a week, following Lord Strathclyde’s resignation) could do was plead with peers to follow convention (see here, column 490).

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VIDEO: Baroness D’Souza – The Role of the House of Lords in the Parliamentary Process

December 14, 2012 by Leave a comment

Looking above and beyond current debates about the House of Lords’ composition, Baroness D’Souza will discuss the Lords in terms of its place in the parliamentary process. Having now been in post for over a year, Baroness D’Souza will present her vision for the Lords’ future, its contribution to the political system, changes to its working practices and the role of the Lord Speaker. She will also cover public perceptions of the Upper House and the importance of outreach.

Baroness D’Souza was elected Speaker of the House of Lords in July 2011. In 2007 she was elected convener of the Crossbenchers, having been a peer since 2004.

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2. Judges and the European Convention; or we need to talk Abu Qatada!

December 4, 2012 by Leave a comment

This post is part two of a dialogue with Brian Walker on the Human Rights Act and the European Court of Human Rights (ECtHR). Brian raises three points that deserve close attention. Firstly, what is the status of the relationship between the ECtHR and Britain? Secondly, why do cases take so very long to get to Strasbourg? Thirdly, what can be done when British political and moral norms conflict substantially with the decisions made by the ECtHR – can Britain ignore Strasbourg? I will look at this problem through the prism of the Abu Qatada case in particular.

1. What is the status of the European Court of Human Rights in Britain?

The European Convention on Human Rights is an international treaty signed in 1950 which contains a bill of rights (such as the right to life and the right to a fair trial) that each Government that ratifies the Convention promises to protect and to respect. The role of the ECtHR is to enforce the Convention. Individuals who feel that their Convention rights have been violated by a signatory state may take a case to the ECtHR. None of this has anything to do with the EU, although the two are very often confused which leads to the Convention system suffering by association with the desperately bad press the EU gets in Britain.

Decisions by international courts such as the ECtHR bind Britain in international law but not in domestic law and it is possible for the two systems to conflict. If there is a conflict, international law requires that Britain change its domestic law but it is for individual countries to choose how they resolve these conflicts. Because of the way our system of government works, it is for the Government and Parliament to solve the problem – generally through legislation. The role of the courts in our system is simply to obey whatever legislation is passed by Parliament. As a result British courts are not obliged to follow the decisions of the ECtHR directly.

There is of course a ‘but’. The Human Rights Act (HRA) 1998 changed this situation somewhat by incorporating the European Convention into British law. Parliament enacted the HRA to allow people in Britain to make rights-based arguments in Britain. For the first time British domestic courts were empowered to take account of the human rights in the Convention in their decisions. I said above that it is for individual countries to choose how to apply international law in their own legal systems; the HRA was the means chosen by Britain to do so, an independent decision made by Parliament. Prior to the HRA, British cases with human rights elements tended to go to the Court in much larger volumes than from other countries because Britain had no domestic human rights legislation and so the courts could not protect rights as such directly. With the HRA human rights became domesticated: the bill of rights contained in the Convention is now also a bill of rights in domestic British law. We can truthfully, if a bit mischievously in light of current debate, call it a British Bill of Rights (one deserving of capitalisation).

The HRA states (in section 2(1)) that British courts are obliged to ‘take into account’ decisions made by the ECtHR. What does this mean and how can two of our most senior judges disagree about it? This goes back in part to the fact that we are dealing with two independent systems of law – international law and British law – that we are trying to fit together. From the perspective of international law decisions of the ECtHR bear directly upon the country to which they are addressed. So if the court decides that Italy must allow prisoners to vote the judgment of the court is addressed to Italy and no one else. Further, and unlike most British domestic courts, the ECtHR is not obliged to follow its own precedent. It can and occasionally does reverse itself. So a judgment that is made against Italy in one case might not necessarily be made against Britain in similar circumstances. An interesting feature of the ECtHR’s approach is that it applies what it calls a ‘margin of appreciation’ and a doctrine of proportionality in its decisions. It acknowledges that culture and moral norms are not quite the same in all the countries that are party to the Convention and that the way in which human rights are applied and realised may reasonably vary from country to country.

Against these facts we can set the practical reality that the ECtHR generally does follow its own precedents and so previous decisions of the ECtHR are strongly persuasive for all signatories to the Convention. Put simply if the Court decides in a case against Italy that prisoners should have the vote, it is probably going to decide the same in a case involving Britain. So there are good practical reasons to comply with judgments of the ECtHR even if they are not specifically addressed to Britain.

Here we return to British domestic law and the HRA and we can, I hope, begin to see an answer – or at least why the question does not admit of a straightforward answer. When Brian refers to Lord Phillips and Lord Judge disagreeing in front of the House of Lords Constitution Committee about whether British courts must follow the ECtHR they are really taking slightly different views about what is important. When Lord Phillips points out that, in the end Strasbourg ‘will win’ I take him to be making the practical and prudential point that the British courts should follow the case law of the ECtHR because if they don’t there will ultimately be an appeal by a disappointed litigant to Strasbourg which Britain is likely to lose, leading to Britain being obliged (in international law) to fix the problem (no doubt after a wasteful and rather expensive delay of several years). He is not saying that the HRA obliges British courts to follow the ECtHR as a matter of law, merely that it is better all-round if they generally do so. When Lord Judge says that once the British courts have taken account of the decisions of the ECtHR they are not actually obliged to follow them he is stating the legal position: section 2(1) of the HRA obliges British courts simply to take account of these decisions. Neither British law nor international law requires the courts to go any further (remember that a decision that is not directly addressed to the UK does not directly bind the UK).

So what this boils down to is that following the ECtHR is not simply a legal question. It is also a policy question and one that does not admit of easy resolution. What is not a matter of doubt is that the United Kingdom has a duty in international law to comply with the European Convention and decisions of the ECtHR that are addressed directly to it. To say, as the Lord Chancellor did on 22 November before the Constitutional Committee, that parliamentary sovereignty supersedes the rulings of the ECtHR is incorrect. We are dealing with two separate legal systems. The fact that Parliament may choose to disobey the international legal obligation created by an ECtHR ruling does not extinguish that obligation.

2. Why do cases take so long to get to Strasbourg?

The answer to the first question was complex. This question is mercifully straightforward. Strasbourg takes appeals from 47 different countries and has a backlog of 150,000 applications (half from just four countries: Russia, Turkey, Italy and Romania). The ECtHR has become very popular. Between 1955 and 1998 it received just 45,000 applications but it received 64,500 in 2011 alone. The result is that it can take years to get a decision from the ECtHR. Delay does not just upset politicians – judges are often just as critical of the way the Court processes its caseload.

This problem could be resolved by dealing with the way the Court processes its cases. In April the Council of Europe Conference agreed the Brighton Declaration (partly as a result of significant lobbying from the UK) in which members of the Council agreed to amend the Convention to ensure that the ECtHR deals only with serious violations of human rights rather than trivial ones and to recognise the principles of subsidiarity and margin of appreciation within the text of the Convention.

The agreement made in Brighton, assuming it is implemented, will still not completely eliminate delay. Delay also arises because of the way cases get to the ECtHR in the first place. Applicants must exhaust all remedies in their home country before they can file an appeal to Strasbourg. In Britain this will generally mean that a litigant will have to go all the way the Supreme Court – and lose – before he or she can go to the ECtHR. (Although not always: if the litigant can show that because of settled law they have no prospect of success at home this may not be required.) The legal process in Britain can take a long time, although there are procedures for fast-tracking urgent cases, so this can add to the delay taken to get to a final resolution from Strasbourg.

Finally, delay can be caused by changes in circumstances. In January in the Abu Qatada case (formally Othman v. UK, as Abu Qatada’s real name is Omar Othman), the ECtHR decided that the UK Government could not deport Qatada to Jordan for trial because there was a risk that evidence to be used in his trial was obtained by torture, which would violate his right to a fair trial. Following Othman the Home Secretary obtained assurances from Jordan regarding the trial process and then ordered that Qatada be deported. Qatada’s lawyers then launched an appeal against this last decision to extradite him, which was granted on the basis that the assurances from Jordan were not good enough. Put simply, the facts changed. While it is possible to limit the length of legal proceedings and the number of appeals that may be made on the basis of the same set of facts, where there is a significant change of circumstances it is hard to see how the right to appeal could be curtailed without fundamentally affecting the right to a legal hearing.

3. Can Britain ignore Strasbourg? And would a British Bill of Rights Make any Difference?

No and no. Or at least, not without breaking the law.

Staying with Abu Qatada, the most recent decision affecting his case was made by the British Special Immigration Appeals Commission (SIAC). SIAC was following the Othman decision, but it was doing so in respect of a principle that is so central to modern human rights law that no plausible bill of rights could fail to enshrine it: the prohibition on torture. Othman followed from an older ECtHR decision called Chahal, in which the Court held that Britain couldn’t deport Mr. Chahal to India because there was a real risk that he would be subjected to torture if they did so.

The right not to be subjected to torture is one of the few absolute human rights (perhaps the only absolute right) and it follows from a generally accepted belief that there can be no legitimate reason for torturing anyone. If there can be no legitimate justification for torture it follows that evidence obtained by torture must be obtained illegitimately and so any evidence obtained through torture must be excluded. If the Human Rights Act were replaced with a British Bill of Rights it would also have to respect this principle. Any bill of rights that did not would – and should – be a laughing stock.

If the new bill of rights did not respect these principles, British judges could no longer order British ministers to comply with human rights but the United Kingdom would still be obliged in international law to comply with decisions made against it by the ECtHR. It is true that it might not be easy to force the UK to comply with its obligations if the Government set its face against doing so. But this is not the same as saying that the legal obligation would cease to exist. The Government would find itself under domestic and international political pressure to comply and the Government did indeed comply with the original Chahal case and all the other judgments made against it by the ECtHR prior to the enactment of the HRA.

4. What happens now?

The Qatada case has dragged on for a very long time and there are two ways of looking at the problem. The first is that the courts, including the ECtHR, are repeatedly frustrating the will of the UK Government to remove a dangerous terrorist from Britain. The other way of looking at it is that the Government has quixotically pursued extradition to Jordan as a solution again and again in the face of objections that the trial process in Jordan is simply unsafe because of the use of torture. Previously it pursued internment until the House of Lords ruled that that was also unacceptable. There is another option: try him in Britain. The things of which Abu Qatada are accused by the Government (involvement in and direction of international terrorism) are certainly crimes in Britain. Allegations in the public domain suggest that there is the possibility that he could be charged with conspiracy to commit some fairly serious crimes, if nothing else. If he were convicted of them there would be no human rights obstacle to his being imprisoned for a very long time, perhaps for life. The difficulty appears to be that some of the evidence is secret and either too weak to secure a conviction or too sensitive to be made public (or both). Without being privy to the information it is impossible to know whether the Government’s claim is legitimate: we cannot know whether the judgment that prosecution is impossible is reasonable, although a succession of Home Secretaries and others seem to have been convinced that it is. But the security services have not historically had these kinds of difficulties in prosecuting Northern Irish terrorism. Indeed as the layers of secrecy have gradually been peeled away from the awful decades of conflict in Northern Ireland one thing that has become apparent is just how thoroughly the various terrorist groups were riddled with informers and spies seeking intelligence and evidence for prosecution. This appears to have continued with the dissident remnants of those organisations. Why can he not be prosecuted for terrorism in Britain?

But we need not go even that far. Has Qatada never been caught speeding, or jaywalking, or even stealing a library book? Famously, the US authorities eventually caught up with Al Capone by laying charges of tax evasion against him. Why has Britain not tried something similar against such an allegedly dangerous man? Put another way, are the ECtHR and – to a lesser extent – the British legal system taking the blame for the failure by the Government to deal sensibly with the problem posed by Qatada and a small group of dangerous men in a similar position?

In the last few days the Home Secretary has lodged an appeal against SIAC’s decision to stop Qatada’s extradition. Rightly or wrongly the ball is now back with the courts and, as Brian suggests, they will need to tread very carefully.

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1.The judges need to respond to Chris Grayling’s challenge to the authority of the European Court of Human Rights

December 4, 2012 by 1 Comment

This is Part One of a personal dialogue between a former political journalist and a lawyer over the increasingly politicised question of how the UK upholds human rights law. In particular it focuses on the role of the European Court of Human Rights which is being blamed for delay and perverse decisions. While in this post I do not support the simplistic case against the ECtHR   I argue that the independent judiciary ignores it at its peril, even while the political parties are in deadlock over what to do. If you haven’t already guessed, I’m the ex political journalist. Part 2 of the dialogue is by my legally qualified colleague, Patrick O’Brien.    

There is a real problem about the roles of the European Court of Human Rights and Convention which judges and lawyers who live with it should not dismiss as mere ignorance and political bigotry. By itself the usual retort that such questioning  only encourages dictators and damages Britain’s human rights reputation no longer carries the day. In high profile cases, appeals to the Court have lengthened the process of obtaining decisions and  have delivered results which distance justice from current political and public opinion. More significantly, the Court’s very status in our system is being questioned.  The new Justice Secretary and Lord Chancellor Chris Grayling, the first non- lawyer to hold the office, wishes  to tilt the traditional balance between the legal and political parts of the constitution in favour of asserting parliamentary sovereignty above the authority of the Convention and the Court and to some extent, British judges.

Is there a sense in which the ECtHR is the “real” Supreme Court of the United Kingdom, as many people seem to believe?  If it is not, why do we pay so much attention to it and why does it attract so much political ire? Why does it seem to be so difficult to correct misunderstandings about the Court and the Convention upon which its rulings are based? Can we clear up once for all, when we comply with its rulings and when not?  Could we even ignore it altogether? Surely the Human Rights Act was intended to deliver rights based justice more quickly and more sensitively to British public opinion?

This is a problem which Parliament will not solve any time soon. With an all-party Commission on a  Bill of Rights unlikely to heal a coalition split over the future of human rights law when it reports shortly, could the judiciary solve at least part of the problem themselves?

The ECtHR’s distance from British political opinion was evident over prisoners’ voting rights, when the court handed down a decision which was compatible with much practice on the continent but furiously opposed by the Conservatives with tacit support across the floor. This ruling has led to Grayling  presenting for consideration  the option of Parliament defying the Court and substituting new legislation which could create a constitutional impasse.  To be fair, it is hard to see what British judges could do to prevent it. Of this more later.

Judges however may be able to do something about the number of appeals in controversial cases. In September the outgoing Lord Chief Justice Lord Judge expressed “real fury” that it had taken eight years to extradite the Muslim cleric Abu Hamza to the US. and gave a broad hint that  the ECtHR  was partly to  blame.

“ I do not think, if you go through the processes, you will discover that the delays in that particular case, or in many like it, are actually to be levelled at the doors of the courts here. I cannot remember when — I was one of the judges who decided that case in the extradition proceedings. Was it 2007? So far as we were concerned, that was the end of it. That is really all I can say.”

But was it all he could say? Answering a different question, on whether in certain important cases the “real” Supreme Court was in Strasbourg, he replied :

“Well, I do not agree with the premise. The Human Rights Act is absolutely unequivocal in its language .  It requires our courts to “take account” of decisions of the European Court in Strasbourg, and, properly applied, that means that the decisions of the European Court are not necessarily binding on our courts. It is inevitable that cases which involve the interpretation of the Convention will end up — go to the European Court for decision. But, as I said, the Human Rights Act itself is quite unequivocal in its language — and, if I may say so, that is as it should be.” 

Another cause célèbre is Abu Qatada. A succession of Home Secretaries have been made to look like fools. In this area, ministers have become critics of the system more than its guardians. This may not be the fault of the courts alone but the timeline of the Abu Qatada case is surely unacceptable. Not only is the Court’s efficiency but its very role is questioned and not only by Conservatives.

Consider a couple of prominent responses to the Abu Qatada case.  The reaction from the voluble Conservative backbencher Peter Bone is not untypical. Here, as clearly as it could possibly be put, is a bundle of misunderstandings and prejudices about the European Court of Human Rights and its relationship to British Courts.  Even so, does Mr Bone have a point?

Enough is enough – put this terrorist on a plane and send him home and worry about the European Court afterwards.

.The highest court in this land, our Supreme Court, has said he can go back. Now, if the highest court in this land says he can go back, then he can go back.

We should not be kow-towing to this ‘Mickey Mouse’ European court.

More worrying because rather more sophisticated is the reaction to the prisoners’ voting rights decision from the former solicitor general Edward Garnier QC, to Joshua Rozenberg on BBC Radio 4’s Law In Action:

“If this were a decision of the Supreme Court in this country, or the high court or the court of appeal, I would feel a lot more uncomfortable, both as a politician and as a lawyer. Because it is this interesting, and strange, and somewhat small ‘p’, political body known as the European Court of Human Rights are from all sorts of different backgrounds, political and legal, the imperative to bend the knee is less.

 Adhering to judgments of a court to which we are signed up by treaty is an aspect of the rule of law, which we must obey. And we can’t pick and choose the laws we want to obey. But, the prime minister has a choice to make and I suspect that the choice he will make is: ‘Thank you, Mr Attorney, for your very careful advice, but I can’t quite hear you.’”

From a former law officer, this seems like breathtaking casuistry and cynicism to this ordinary citizen. No wonder that public opinion is becoming exasperated with the criminal justice system when ECtHR decisions can be received on a take- it- or leave- it basis one day and a matter of painful compliance the next. Just as depressing is that the point doesn’t seem to have clocked with the legal establishment who seem to accept such arbitrariness as a matter of course.

What sounds like more nudge- nudge, wink- winking was apparent on 22 November when the new Lord Chancellor and Justice Secretary Chris Grayling announced a joint committee of MPs and peers to consider three options, two  a choice between  limited prisoners’ voting rights and the third, retaining an outright voting ban. On the advice of the Attorney General he personally forbore from recommending his ideal last option of defving the ECtCR, because this could mean he was breaking the law, unthinkable for a Lord Chancellor as a leading guardian of respect for the law and  judicial independence. Later he speculated that others ministers might be similarly bound by the ministerial code but the rest of  Parliament  he claimed, could act differently. The episode may still turn out to be  no more than a  melodramatic demonstration against an ECtHR ruling loathed by the Conservatives and which indeed makes the Prime Minister “physically sick.”  But the world has been put on notice that a majority Conservative government would wish significantly to curtail the role of the ECtHR in the British system.

The widening gap between the “legal” and “political” understandings of the status of the ECtHR could not have been more clearly expressed than in following exchanges between Grayling and prominent lawyers at his appearance before the Lords Constitution Committee the previous day.

Lord Pannick :… This country signed up to the convention and it might be thought therefore we have a legal obligation as a matter of international law to comply with the judgments of the European Court of Human Rights—not just those that we agree with, but all of them, and not to do so, to defy the European Court, is simply a breach of the rule of law.

 Chris Grayling: It is certainly the case that we have an obligation to comply with the rulings of the European Court but, as we also know, parliamentary sovereignty supersedes those rulings…. Ultimately, Parliament can say, “We are not prepared to accept that.”…

 Lord Goldsmith: Can I follow that up please, Lord Chancellor, because I am a little taken aback by the way you have expressed that? The point that Lord Pannick was putting to you, with which I agree, is that the obligations that we assumed as a country when we signed up to the European convention are not political obligations, they are legal obligations, and we are therefore obliged to follow them

 Chris Grayling: You would be aware that any legislative change that results from a court decision has to pass through Parliament. You talk about the legal position: the legal position as set out by Lord Hoffmann, as acknowledged and set out by the Attorney General two weeks ago, is that Parliament has the right to exercise sovereignty and to decide not to follow the instructions of the European Court of Human Rights. That is the legal position. That is a matter for Parliament to decide whether it wants to follow that route.

 Lord Goldsmith: I do not agree with that as a statement of the legal position, but that may be the difference between us.

How will the judiciary respond to Grayling? Are they in any position to present a united front?  They must be worried. Interpretations of Strasbourg decisions vary. British courts are obliged to “take account” of the Court’s rulings; but what does “take account” mean?  In his paper “Smoke and Mirrors: the Human Rights Act and the impact of the Strasbourg case law”, Richard Clayton QC observed:

When Lord Phillips and Lord Judge gave evidence to the Select Committee on the Constitution in October 2011, Lord Phillips expressed the view that in the end, Strasbourg was always going to win because we have the HRA. Lord Judge on the other hand stressed that it is at least arguable that having taken account of the decisions of the ECtHR  our courts are not bound to follow them. Lord Judge’s views were given strong support by Lord Irvine the former Lord Chancellor who presided over the enactment of the HRA, in his recent lecture, A British Interpretation of Convention Rights; and in February 2012 ,the Supreme Court appeared to welcome the possibility of going beyond the Strasbourg case law.

In his Kingsland lecture a year ago, the former Conservative leader Michael Howard said he didn’t think it would be “enough” even if British efforts succeeded to extend the “margin of discretion” for national governments to interpret the Convention. Howard called for  “something more comprehensive”, such as that hinted at by the Attorney General Dominic Grieve for a British Bill of Rights to carry out a “rebalancing” of the Human Rights Act. Howard went on to observe:

Little wonder that we have already heard demands for parliamentary input into the selection of the next British judge to be nominated to the European Court of Human Rights. If present trends continue it can only be a matter of time that similar demands are made in the context of the appointment of judges to our domestic courts. After all, this is what happens in countries like the United States where the judges exercise similar power.

What effect would such a development have on judicial independence? Is it not time that the judges got their act together on the ECtHR? The prospects for Parliament acting soon are not good.  In its report due out by the end of year, the Commission on a British Bill of Rights is unlikely to reconcile conflicting views on the scope of human rights.  A  Conservative majority government would probably try to enact a British Bill but it could be a long haul to reach the sort of consensus needed for a constitutional measure of this kind.

In the meantime with a new President of the Supreme Court in post and a new Lord Chief Justice of England and Wales imminent, is it too much to hope for, that the judges might steal a march on the politicians and reach greater clarity among themselves?

Over to you, Patrick.  

   

Filed under Coalition Government, Judicial Independence, Parliament

SCOTS DEGREES OF SEPARATION

October 24, 2012 by 1 Comment

Earlier this year I wrote on this Blog about various aspects of ‘Scotland and the UK’ here, here and here.  Now, the crucial question over the next two years is a superficially simple one: “What does ‘Scotland as an independent country’ mean”?

It should be a truism that voters at an election or referendum should know as much as possible what/who they are being asked to vote for.  This is essential for democratic and legitimacy reasons. Yet, so far, this doesn’t seem to be the case in the 2014 Scottish independence referendum.  It seems that qualifying Scottish voters will be asked simply to agree or disagree with a general, almost abstract, ‘in principle’ proposition, rather than to support or not support a particular constitutional ‘settlement’, as in earlier such referendums in 1975 and 1997.

What would independence mean?

The main – for most potential referendum voters, the only – ‘independence’ on offer is that of the SNP.  Some argue that this form of independence is in reality a strong variant of ‘devo-max’ (‘devo-extramax’? ‘independence-lite’?), because of all the proposed continuing links to UK institutions and policies etc..  Does this matter?

In some sense, all independence in the modern world is relative, especially in practical political, economic and military terms.  The present UK’s sovereignty, practical as well as legal, is less than pure and total, because of membership of bodies such as the EU, NATO and UN, for example.

Again, it can be argued that the SNP’s evolving version of Scottish independence is driven by the realpolitik of winning over voters to the YES camp in 2014, rather than by some theoretical or romantic ideal of independence.  It fits in with the SNP policy of gradualism, presenting post-2014 independence as simply the final, painless step in the devolution journey, completing the process begun in the late 1990s of the creation and development of a Scottish Parliament (and accompanying Government).  In this scenario, many voters may not even realise the political and constitutional significance of the referendum.

Yet, notwithstanding any camouflaging words and policies, at some point there must be a Rubicon to be crossed when Scotland becomes, and is recognised as such, an independent state.  I’m not an international lawyer, but there are at least two relevant aspects of independence here, where Scotland’s status becomes definitively more than devolution, federalism or the like, still ultimately part of a wider independent state, ie the UK:

  • International recognition of independent statehood: it is not just a question of whether Scotland should itself belong to bodies such as the EU, UN or NATO, but whether it can be, is qualified to be, a member of such bodies;
  • Legislative supremacy: the post-independence Scottish Parliament, not the Westminster Parliament, would be the repository of ultimate legislative power, whether or not limited by any ‘higher’ written constitution or by external supranational bodies like the EU.

Pathways to independence

In theory there are various ways in which Scots can have the opportunity of giving ‘informed consent’ to independence.  Whether or not some of these are politically practical or realistic is a different question.

While SNP gradualism implies a degree of ‘independence-by-stealth’ in winning a referendum, there would presumably also need to be some parallel narrative or ‘creation myth’ which is more heroic, resonant and visible, recognising and glorifying that crossing of the independence Rubicon.  This may require, however symbolically if not (in terms of the various relevant jurisdictions) legally, some form of ‘Treaty of Disunion’ as the constitutional bookend to the 1707 Treaty/Acts of Union. 

From the UK point of view, Scottish independence would presumably be achieved legally by an Act of the UK Parliament, whether or not accompanied by, or incorporating, any separate ‘treaties’ or other written agreements.  In Scottish domestic symbolic, as well as international law, terms, such a Treaty of Disunion would be made between ‘independent’ states, rather than between a sovereign state and one of its component parts, and it would be this, and any accompanying ‘declaration of independence’ and Constitution, which would be regarded within Scotland as the crossing of the independence Rubicon.

What role, if any, would or should the Scottish people have in any such process?  If there is no pre-referendum detailed elaboration of what ‘independence’ actually means, other than what is said by the various parties and any official umbrella YES/NO groupings, there is a democratic case for a further recourse to the people, by way of a second referendum or otherwise, once a detailed independence deal is finally negotiated, . 

If that is not feasible, then there is an argument for some form of ‘constitutional convention’ where the people’s representatives can discuss and ‘decide’ on the terms of Scottish independence.  This would be in tune both with recent Scottish constitutional practice, and with more general modern trends towards participative democracy.  This could be held after a YES vote, and any such ‘settlement’ can then form the basis of whatever constitutional mechanisms (treaties, legislation etc) are used to achieve independence.  It could even be held before the 2014 referendum, so that voters can then see, in detail, the independence package they are voting about.  Scotland has some, albeit unofficial, experience of constitutional conventions; the Commons Political & Constitutional Reform Committee under Graham Allen is currently holding an inquiry on this very subject, and the McKay Commission on the West Lothian Question can more usefully spend its valuable time and expert resources in examining how inter-parliamentary relations with the UK can positively contribute to any such convention and independence-pathway process.

The role of general elections?

There is also the fact of upcoming elections, not just the Holyrood elections in May 2016, but the Westminster elections in May 2015.  If there is a YES vote in late 2014, what would be the purpose, even the point, of the UK general election in Scotland mere months later?  Never mind the parliamentary and governmental impact of the departure of all Scottish MPs at some future date during that 2015 Parliament, would these MPs be, and be seen to be, mere lame ducks, or will they be regarded (if only by themselves) as the UK-level supervisors of the independence process? 

And what of the 2016 Holyrood election?  Is the idea that it will be somehow transformed into the first elections to a sovereign Parliament of an independent Scotland, or will they be the last elections to a devolved Parliament within the UK, a Parliament largely devoted to negotiating and finalising a independence settlement?

Arguably, either or both these elections could be utilised to contribute to some form of constitutional convention, albeit a post-referendum one.  Either formally or otherwise, the Scots MPs elected in 2015 could form part of such a convention, perhaps with the existing MSPs and, if thought desirable or necessary, other representatives of Scottish civil society.

Time is short

The late 2014 referendum may seem a long way in the future, but, in constitutional terms, time is actually very short, especially when considering such novel, complex and highly sensitive, even incendiary issues such as those discussed in this blogpost.  The Scottish referendum electorate – as well as ‘expatriate’ Scots, and everyone else in the rest of the UK – do not just deserve to hear the views of all interested parties, but should also start making known their own views on their constitutional future NOW.

Filed under Devolution, Parliament Tagged with , , , , , , , ,

The chamber has become too big, and the patronage enjoyed by the Prime Minister is indefensible

August 10, 2012 by 3 Comments

Meg Russell’s letter in The Times

Sir, Lord Steel of Aikwood (“Clegg will look petulant if he walks away”, Aug 8) has suggested that the Constitution Unit might assist in finding the long-term way forward on Lords reform. We would of course be happy to do so. But he is also right that Clegg and Cameron should now be pressed to put through lesser but essential reforms, having abandoned their more ambitious Bill. The chamber has become too big, and the patronage enjoyed by the Prime Minister is indefensible. He still decides how many peers are appointed, when, and from which party. Also indefensible is the absurd system of “by-elections” to replace the remaining hereditary peers when they die.

As David Steel has emphasised, all agree that reforms to end these anomalies are necessary and would strengthen Parliament. The only disagreement is over whether they are sufficient. Nick Clegg told the Commons on May 17 last year that “the key thing is not to make the best the enemy of the good. That approach has stymied Lords reform for far too long”. He was right, and he should remain true to that principle now.

Filed under Coalition Government, Parliament Tagged with ,

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