Tag Archives: House of Lords Constitution Committee

How might Keir Starmer codify his Prevention of Military Intervention Act?

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Recent events have led to renewed discussion about the convention that parliament should have a formal role in authorising military action, which Keir Starmer at one point proposed to codify in legislation. Robert Hazell argues that placing the existing convention on a statutory footing is unwise, and calls on parliament and the government to work together in creating a ‘shared vision’ of how the convention should operate.

Tony Blair’s decision to support the US invasion of Iraq in 2003 has cast a long shadow over every subsequent leader of the Labour party. Keir Starmer opposed the Iraq war, and one of ten pledges he promised as part of his 2020 leadership campaign was to introduce a Prevention of Military Intervention Act. He subsequently specified on The Andrew Marr Show: ‘I would pass legislation that said military action could be taken if first the lawful case for it was made, secondly there was a viable objective and thirdly you got the consent of the Commons’.

Starmer was reminded of this pledge when he was interviewed about the UK airstrikes against the Houthi rebels in Yemen. He told Laura Kuenssberg on 14 January that his proposal for military action to require the support of the Commons only meant sustained military action involving troops on the ground, rather than targeted airstrikes like those in the Red Sea:

If we are going to deploy our troops on the ground, then parliament should be informed: there should be a debate, the case should be made, and there should be a vote… What I wanted to do was to codify the convention: the Cabinet Manual has a convention… it could be in a law or it could be by some other means.

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Rebuilding and renewing the constitution: the territorial constitution

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A Constitution Unit report by Meg Russell, Hannah White and Lisa James, published jointly with the Institute for Government, provides a menu of constitutional reform options ahead of political parties’ manifesto preparation. Its chapters will be published in summary form on this blog throughout August, with this third excerpt identifying potential changes relating to the territorial constitution.  

Recent years have been unsettled ones in UK territorial politics, with structural pressures following the Brexit vote, and other tensions between the centre and the devolved institutions. Meanwhile, the devolution arrangements for England remain an incomplete patchwork.  

While wholesale reform may be complex and contentious, much can be done to mitigate the tensions that exist within the existing framework. There is widespread recognition that cooperation between the UK government and devolved institutions could be improved, and some positive steps in this direction have already been taken. With the fiercest battles about the implementation of Brexit now over, opportunities exist for strengthening interparliamentary arrangements. The governance arrangements for England could also be made more transparent and coherent.  

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The civil service: what is its role?

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Recent years have seen significant tensions between ministers and civil servants, with allegations of bullying by ministers and leaking by civil servants, and a number of permanent secretaries forced out. This has prompted debate about reform. Lisa James, Meg Russell, and Alan Renwick argue that any changes to the form and functions of the civil service should have at their heart the core civil service principles of integrity, honesty, objectivity and impartiality.

Background

The civil service is a vital part of the UK’s constitutional system, and is central to helping the government of the day to develop and implement policy. Nonetheless, there are perennial tensions and questions about its role, which have heightened in recent years. The volume and tenor of recent attacks by some politicians on the civil service have provoked particular concern.

This briefing explains the role of the UK civil service, and how it works with ministers. Some civil servants have frontline delivery roles – for example, jobcentre workers, border officials and prison officers. But the briefing focuses on those civil servants who work in central government departments, particularly those working with and around ministers on policy.

What is the role of the civil service?

The UK civil service is permanent and politically impartial. Civil servants continue in post when governments change, and are forbidden from offering political advice to ministers – a role performed instead by special advisers. They must also maintain individual impartiality (which precludes, for example, senior civil servants engaging in party political activities even outside their work).

However, the civil service is not independent. Its fundamental role is to serve actively the government of the day in policy development and delivery. This does not simply mean following ministers’ instructions: good governance requires ministers to draw on a range of objective, evidence-based advice and balanced perspectives before making decisions. Hence civil servants provide such advice on the pros and cons of policy options – even if that sometimes contains unwelcome messages. Civil servants also translate policy decisions into action, implementing the policy direction set by ministers.

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The UK’s defiance of the European Court of Human Rights

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Veronika Fikfak argues that by amending the Illegal Migration Bill to require UK courts to ignore a potential interim measure from the European Court of Human Rights, the UK government has reached for the most drastic option, exposing its carefully fostered image of a ‘good complier’ as merely a myth. She warns against passage of the amendment, and criticises the government for taking the same path as Russia by choosing defiance over dialogue.

In late April, the government tabled a number of amendments to the Illegal Migration Bill, including an order to domestic courts to ignore a potential interim measure from the European Court of Human Rights (‘the ECtHR’) to stop someone being removed from the UK if they bring forward a legal challenge. British judges have been told that if the bill is enacted with the new amendments, it will mean that they ‘cannot apply any interim measure, aside from in the narrow route available under the bill where [the applicants] are at risk of serious and irreversible harm.’ The House of Lords Constitution Committee has raised serious concerns about the potential impact of the bill on the rule of law and human rights. In this blog, I argue that this order puts the UK on par with Russia and Poland, which have used domestic law to prevent compliance with their international obligations under the European Convention on Human Rights (ECHR). I show how both countries have sought out a direct conflict with the Strasbourg Court and how the UK – for the first time since joining the ECHR – is taking the same route. I also outline how far its behaviour goes from the usual ‘good complier’ image that the UK has carefully fostered.

Poland and Russia choose defiance over compliance

In international law, courts are notoriously dependent on states, and especially their executive branches, to enforce their judgments. Since the international community has no enforcement mechanism to compel states to comply with a decision of an international court, if a state were to refuse to do so voluntarily, the judgment would remain merely words on paper. Yet generally states have been reluctant to openly defy the ECtHR by refusing to enforce its judgments. Instead, negotiations, lobbying and delays are the standard techniques to avoid or minimise compliance. Even when countries adopt domestic laws that clearly contradict the ECHR (such as in the case of immigration legislation in Denmark or the UK’s recent bill), this is usually done under the cover that the state ‘seeks to clarify the content of obligations under the Convention’ or more boldly that it wishes to ‘test the limits’ of the ECHR. Once a judgment is delivered, the state promptly puts in place a process to comply with the judgment (such as in the case of Savran v Denmark). The intent to voluntarily comply with the ECHR is present for the majority of countries.

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How should the Lord Chancellor and law officers safeguard the rule of law within government?

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The government has now published its response to the Constitution Committee’s report on the role of the Lord Chancellor and government law officers, making clear it will take no action based on the committee’s recommendations. Will Knatchbull discusses the key findings of the report and argues that in some cases the committee has expressed clear policy preferences but then declined to recommend mechanisms to implement them.

The House of Lords Constitution Committee published its report on the role of the Lord Chancellor and the law officers (legal ministers as a collective) on 18 January. Since the changes made by the Constitutional Reform Act 2005, further reforms have been considered in reports from the Lords Constitution Committee and the Commons Public Administration and Constitutional Affairs Committee, a government consultation and a white paper. Ultimately, very little reform or reversal has occurred since the 2005 Act, and the government’s response to the report (published on 17 March), made clear that it will not review the existing arrangements.

The overall message of this latest report makes three important and related points: the value of the rule of law, the centrality of the legal ministers in being seen to uphold it within government, and the required character of the legal ministers to be able to do so. It is well summarised in this paragraph:

The thread running through this report is that the rule of law is vitally important to the health of our democracy. Whatever formal reforms might be contemplated, appointing those with the correct character, authority, intellect and independence is the best way to ensure that the Lord Chancellor and the Law Officers are able to defend it. [emphasis added]

This is an important statement and one that cannot easily be disputed. This blogpost will briefly examine three elements of the report: the engagement with the international rule of law, the nature of the role of Lord Chancellor and possibilities for reform of the role of the law officers. I will suggest the report is a step in the right direction. However, it may be too trusting of the political system and the politicians operating in it to produce and appoint individuals of the correct experience and calibre that would enable them to be the fierce guardians of the rule of law that the report envisages.

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