House of Lords: Welfare Reform and the Financial Privilege

This post, by Jeff King of UCL Laws, originally appeared on the Constitutional Law Group blog

On 1 February 2012, a committee of the House of Commons resolved that the Welfare Reform Bill, which proposes to cap benefits for most families at £26,000 a year, engages the financial privilege of the Commons.  Under such a privilege, the Commons is entitled to ‘disagree’ with any Lords amendment and ultimately reject it without feeling obliged to provide any reasons other than the existence of the privilege.  By convention, the Lords will accept this determination (though increasingly with protest). I argue below that it would be a mistake to read the financial privilege so broadly, and also that the Lords have both the constitutional power, and good cause, to assert themselves in reply.

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Further Information

From Constitutional Scrutiny to Constitutional Review: 10 Years of the House of Lords Select Committee on the Constitution

United Kingdom Constitutional Law Group Event “From Constitutional Scrutiny to Constitutional Review: Ten Years of the House of Lords Select Committee on the Constitution” 25 January 2012, 18:00 – 19:30 in the House of Lords Committee Room 3A Speakers:

  • Baroness Jay of Paddington, Chairman of the House of Lords Select Committee on the Constitution: “Scrutinising the Coalition’s Legislative Programme”
  • Lord Norton of Louth, Former Chairman and Current Member of the House of Lords Select Committee on the Constitution: “Ten years of the Constitution Committee: Landmarks and Successes”
  • Professor Dawn Oliver, Emeritus Professor of Constitutional Law, University College London: “The Place of the Constitution Committee in the British Constitution”

Chair:

  • Sebastian Payne, Co-convener of the UK CLG and Lecturer, University of Kent at Canterbury

If you would like to attend this event could you please email: j.a.simsoncaird@qmul.ac.uk

Sir Stephen Sedley at Constitutional Law Group

The next UK Constitutional Law Group event will be on Wednesday  2nd November 2011 at 6pm in the Keeton Room, Bentham House, UCL Faculty of Laws, Endsleigh Gardens,  London WC1H 0EG.

Sir Stephen Sedley , President of the UK CLG, will speak on, “Monsieur Jourdain’s epiphany: doing theory without knowing it”. The talk is to mark the publication of his new book  Ashes and Sparks (CUP 2011).  There will be a drinks reception after the discussion.

Further information and booking:

Judicial Independence and the Irish Referendum on Judicial Pay

[This post originally appeared on the UK Constitutional Law Group Blog]

If all goes to plan, this week the wording of a new amendment to the Irish Constitution will be finalised. The amendment is designed to permit reductions to the pay of judges and will be voted on in a referendum on 27th October. The reason for the amendment is well known: the Irish government has no money. In the midst of a general financial crisis, the pay of other state employees has been significantly reduced through levies. Thus far judges have been exempt because of Article 35.5 of the Constitution, which is unambiguous: ‘The remuneration of a judge shall not be reduced during his continuance in office.’ The exemption of judges from a general pay cut was never going to be politically palatable and so a halfway house solution was arrived at two years ago. A scheme was set up whereby judges could voluntarily forego a portion of their salary in line with the cuts to salaries of other public servants. Uptake of this scheme was, not surprisingly, quite slow although by January of this year a significant majority (125 out of 147 judges http://www.rte.ie/news/2011/0106/judges.html) had signed up to the scheme. When it came into office earlier this year, the new government promised to proceed with a referendum to facilitate formal reductions to judges’ pay. This pledge was popular and the amendment is virtually certain to be approved in the referendum.

The core of the new provision (assuming no further amendments) will be Article 35.5.3:

“Where, before or after the enactment into law of this section, reductions have been or are made by law to the remuneration of persons belonging to classes of persons whose remuneration is paid out of public money and such law states that those reductions are in the public interest, provision may also be made by law to make reductions to the remuneration of judges.”

If passed, the government proposes to reduce the salary of senior judges by 31%. The judiciary are, by all accounts, unhappy about this proposal and let this be known by a memorandum released in July (much to the annoyance of the Minister for Justice, who insisted that it be removed from the Court Service website – an interesting incident for what it suggests about relations between politicians and judges). The judges’ document, available here: http://www.irishtimes.com/focus/2011/judicialpay/index.pdf, was at pains to point out that the judges did not oppose a pay cut as such, but pointed (amongst other things) to the threat to judicial independence created by the possibility of a reduction to judicial pay.

From the way the new Article 35.5.3 is constructed we can surmise that the drafters are trying to manage a difficult juggling act. They want on the one hand to achieve a legitimate mechanism by which reductions in judicial remuneration may be achieved. On the other hand, they want to avoid the challenge to judicial independence that arises if judges’ remuneration can be used as a means of influencing their decision-making. This is a sensible way to approach the problem. If judicial independence is about anything at its core, it is about protecting judges from the kind of very personal worries – around personal pay and conditions, threats to the person and to family, etc – that might create a risk that they would be afraid to make unpopular decisions.

The drafters’ chosen solution is that a reduction in judicial pay must be coupled to a reduction in public sector pay more generally done ‘in the public interest’. Unfortunately because the wording of Article 35.5.3 is rather loose it is not clear that this is what it actually does. The phrase ‘persons belonging to classes of persons whose remuneration is paid out of public money’ seems unnecessarily vague and obtuse. It could mean almost anything. The putative ‘public interest’ test is also too vague. One would hope that most actions taken by the state should be done in the public interest, but the ‘public interest’ concerns that apply to reducing the pay of a civil servant, for example, are not likely to be the same kind of public interest concerns that apply to a judge. Yet as the wording stands it seems that it is the former standard that must be engaged when reducing the pay of judges.

What else could have been done? Three suggestions:

  1. Nothing. In the O’Byrne case ([1959] IR 1) the Supreme Court applied a purposive interpretation to the meaning of Article 35.5, concluding that a requirement that judges pay income tax was not an attack on judicial independence. It might have been something of a stretch for a court that has become more literalist in recent decades, but it could reasonably be argued that a general reduction in the pay of everyone (not just judges) in emergency conditions is not a reduction to the pay of a judge for the purposes of Article 35.5.
  2. A ‘One-Shot’ amendment. The amendment could simply provide for a once-off reduction to judicial pay, leaving the existing Article 35.5 in place.
  3. Just Word it Better. Why not simply state that judges are not exempt from general pay cuts affecting all public servants but nor may they be specially selected for pay cuts, either individidually or as a group? Why not create an independent means for determining what judicial pay should be?

As it stands, the amendment is a classic example of hard cases making bad law. The new Article 35.5 closely addresses a very specific situation but has uncertain application outside of it. It is a shame that a threat to judicial independence in Ireland, even a minor one, should be created just because of bad drafting.

Graham Gee: Are Executive-Judicial Relations Strained?

[Posted on behalf of Graham Gee. This post originally appeared on the UK Constitutional Law Group Blog.]

At one level, it seems reasonable to characterise executive-judicial relations as strained. In recent weeks, after all, concerns have been raised by senior judges, or on their behalf, on a range of matters—including (the now withdrawn) Schedule 7 of the Public Bodies Bill that would have given ministers the power to modify, merge or abolish a large number of public bodies, including the Judicial Appointments Commission (see here and here); Part 4 of the Pensions Bill, which provides that ministers may require judges to contribute to the costs of their pensions, whereas at the moment judges only contribute to the costs of benefits for their spouses and dependents (see here); as well as aspects of the finance and administration of the UKSC (see here). At the same time, the PM and Home Secretary have spoken of being ‘appalled’ by the UKSC’s 2010 decision in R(F) on the notification requirements for sexual offenders, with the PM also outspoken on the ECtHR’s 2005 ruling in Hirst v UK (No. 2) on prisoners’ votes. But, at another level, the characterisation of executive-judicial relations as strained risks concealing more than it reveals, and for three main reasons.

First, public lawyers often use shorthand when discussing institutional relationships. For example, we refer to ‘executive-legislative relations’ when discussing Parliament’s powers or the ability of Parliament to hold the Government to account. Often the implication, as Anthony King noted in an article in 1976, is that there is one body called Parliament and another called the Government, with our aim to study the relationship between the two. Yet, as King explained, if we really want to understand the various phenomena subsumed under such a broad heading as ‘executive-legislative relations’, we need to study a number of distinct political relationships (including those between and within different chambers, between Government and Opposition and between and within different political parties). King’s basic point—and, in one sense, it is a very basic point and yet, at the same time, marvellously subtle—is that shorthand such as ‘executive-legislative relations’ conceals multiple, complex relationships, each with its own dynamic. So what then do we mean by ‘executive-judicial relations’? Following King, we can take this as shorthand for distinct but sometimes overlapping relationships. For a start, there is not simply one ‘judiciary’ or one ‘executive’ relevant to UK public lawyers; rather, there are multiple judiciaries and executives in our multi-layered polity. We might speculate that relations appear strained between UK Ministers and the UKSC, and those ministers and the ECtHR. Or similarly we might have speculated that, following Cadder, relations between Scottish Ministers and the UKSC were strained. But, in each case, we ought to offer our speculative assessments whilst reserving judgment about other relationships. The point, here, is that we have to specify which executive and judiciary we have in mind when talking of strained relations.

Second, even then, we would likely have in mind relations between only some part of the executive and some part of the judiciary and only on certain issues. Are relations between the Lord Chancellor and the UKSC strained? On the one hand, the Lord Chancellor gave short shrift to the concerns raised by Lord Phillips about the funding of the UKSC and the position of its Chief Executive (see here). As Joshua Rozenberg put it, Lord Phillips ‘learned the hard way’ that a judge ‘who takes on the government in the court of public opinion is bound to end up second best’. On the other hand, reports a week later suggested that the Lord Chancellor had sent a ‘furious letter’ to the Home Secretary, copied to the PM, rebuking her (and, indirectly, the PM) for intemperate comments on the UKSC’s decision in R(F). Leave to one side the question of whether Theresa May’s comments were in fact intemperate, or whether this was simply the sort of ‘no-holds-barred constitutional politics’ that Danny Nicol suggests that we should expect under the HRA. Leave also to one side the question of how ministers ought to react, particularly on the floor of the House, where they are genuinely appalled by some judicial decision. The point, here, is that different parts of the executive have different relations with different parts of the judiciary, with clashes between ministers and judges only ever one part of the story. What is more, the same minister can have differing relations with the same part of the judiciary on different issues.

Third, strained relationships between ministers and judges are sometimes as much about some aspect of ‘executive-legislative relations’ as ‘executive-judicial relations’. Consider, for example, the timing of Theresa May’s ministerial statement on R(F) in mid-February. This statement was made 10 months after the original decision, but less than a week after the House of Commons’ debated the blanket ban on voting by prisoners, where MPs backed a motion stating inter alia that ‘legislative decisions of this nature should be a matter for democratically-elected lawmakers’. Had the Home Office long been planning to respond to the s4 declaration in R(F) in mid-February? Was someone in government pushing for the statement to be made sooner than planned in order to intensify debates about the HRA, the ECHR and a British Bill of Rights? Was the timing of the statement a sop to Conservative backbenchers riled by other aspects of the Coalition Government’s constitutional agenda, coming as it did on the same day that the Parliamentary Voting System and Constituencies Act 2011 received Royal Assent? None of this should be read as to dismiss the importance of ministerial criticism of this or that judicial decision or political debate about issues such as prisoners’ voters or the post-sentence monitoring of sexual offenders. As King noted in his article, the views of Government backbenchers matter because they are seldom speaking for themselves. Their views on knotty question such as the proper role of courts are likely to be held by some, and perhaps many, inside the Government, as well as parts of the public at large. The point is simply that, at times, it may not be best to construe apparent clashes between ministers and judges solely in terms of ‘executive-judicial relations’, but to see them as related to those larger, complex relationships that we conflate under the shorthand of ‘executive-legislative relations’.