Principle and pragmatism in human rights reform

Talk of human rights reform – in the form of the replacement of the Human Rights Act 1998 with a new British Bill of Rights –  has gone quiet in recent weeks, though the process continues to rumble on in the background and at some point concrete proposals will need to be presented. There has been a good amount of comment from various legal bloggers and guest bloggers on particular issues related to the topic, such as the application of the Salisbury convention to the process and, in particular, the interaction of rights reform and devolution. Similarly, there have been interesting interventions on the politics of rights reform: Graham Gee and Grégoire Webber have noted the limited horizons of much the debate as it unfolds among academics, and this morning the UKCLA blog has published Adam Tucker talking about the ‘anti-democratic’ consequences of those arguments which suggest human rights reform might in some sense ‘fail’ as a result of the way in which the common law has developed up until now and will develop further in the event of the HRA’s repeal. In adding to the mass of material on the topic, I want to draw attention to one of the few concrete elements of the proposals as we currently understand them which I consider to be of particular interest. To do so requires a consideration of the way in which the law relating to the protection of human rights in the United Kingdom has developed over time.

The UK ratified the ECHR in 1951 and has recognised the right of individual petition since 1966. It was not until 1998 that it transposed the Convention rights into domestic law with the enactment of the Human Rights Act (or ‘Labour’s Human Rights Act’ as our increasingly moronic political discourse now has it). For a long time, therefore, it was not possible to enforce your rights under the Convention before domestic courts but was possible to go to Strasbourg and argue that you were, as a matter of international law, a victim of a violation of those same rights. The problems with this situation were widely recognised – you were first require to ‘exhaust your remedies’ under domestic law and making an application to the Strasbourg court involved a significant expenditure of time and money, which acted as a very obvious disincentive to the pursuit of justice. From the late 1970s, therefore, through to the eventual enactment of the HRA, there was a diverse body of public opinion making the case for incorporating the Convention into domestic law – notable proponents included such odd ideological bedfellows Ronald Dworkin, who wrote a short book arguing for a ‘Bill of Rights for Britain’ (a phrase which takes on an ironic tint given recent debates) in the early 90s, and Lord Hailsham who, in 1978 had published ‘The Dilemma of Democracy’ which makes the case for incorporation in a quite low-key conservative fashion. All of this is well-known to public lawyers. Similarly well-known is one sceptical strand of the response to these and other proposals – a series of objections to the idea of incorporation, many of them articulated originally and most famously by JAG Griffith of the LSE which, suitably generalised, coalesced into a loose position known as ‘political constitutionalism’.

Political constitutionalism, for all that it has become disparate and unhelpfully self-reflective, has always – or, at least, so it seems to me – been an uneasy conglomeration of principled and pragmatic objections to the notion of constitutional rights (understood here to mean specifically higher-order moral rights which limit the competence of the legislature and executive and are enforced by the judiciary but the objections are often taken to apply, with lesser, and perhaps much lesser, force to the ‘weak’ review made possible by the HRA). In this, political constitutionalism is hardly unique, but in fact quite closely reflects the argument marshaled in favour of constitutional rights, which can similarly be broken down into those categories. By principled arguments, I simply mean those which are of general application, without reference or adaption to the particular set of circumstance in which they are made – an example on the side of the sceptics would be the frequently-made claim that political figures are always and everywhere (usually by reason of their democratic credentials) better placed to make difficult and controversial decisions about the balancing of competing rights or the proportionality of the relationship between a given interference with a protected interest and the benefit which it provides in terms of some legitimate aim.

Pragmatic arguments, however, have always played a major part in the debate, even if specific individuals can and do articulate a vision of the political constitution which does not depend upon them. Most obviously, at least some of the modern resistance to the creation of constitutional rights reflects the sense that in Britain, over the course of the twentieth century, judges have (generally) been found somewhere to the right of the political spectrum – a claim which is heavily associated with Griffith’s own work on the politics of the judiciary. As a result, there was a (justifiable) concern that constitutional rights would provide a mechanism by which conservative judges could block the policy objectives of left-wing governments – an argument, that is, which was reflective of the political and social context within which it was made. And arguments might be essentially pragmatic even where they were couched in terms of principle – a superb example is the haste with which Hailsham reconciled himself to unlimited legislative competence once the sun rose on Thatcherism in 1979 and one no longer needed to concern oneself with all the terrible things which the Labour party might do if in control of a Parliament unfettered by the need to respect an individual’s right to, say, property.

As the Hailsham example suggests, pragmatic arguments, being a function of facts about the world, are liable to vary as the relevant facts change. And indeed, there has been a very significant shift in the making of such arguments over the last 15 years as it has become clear that the judiciary is not so hostile to (certain types of) progressive cause as was once assumed and, perhaps more pertinently, the stark left-right divisions which characterised the UK in the 1970s have faded somewhat as a result of the withering away of old fashioned socialism in mainstream British politics. The result has been two-fold. The left is not nearly so suspicious of judges as it once was, and many of the political constitutionalists of the 1990s are significantly more welcoming of judicial intervention in social and political disputes than they once were. Secondly and conversely, political constitutionalism is now often a broadly right-wing phenomenon: politicians of that stripe see judges as, for example, undermining control of borders or creating obstacles to the effective prosecution of the war on terrorism and wonder why it is that judges should get to speak to these questions at all. This is not to say, of course, that judges are suddenly radically left-wing, but in enforcing a Human Rights Act which implements a international instrument implementing a classic set of liberal individualist values, they end up making decisions which are in many ways more progressive than is the contemporary centre of gravity in British politics. The result in the last decade and a half has been that the courts have irritated the right at least as much as, and perhaps more than, they have the left.

Against this background of shifting facts and unexpected pragmatic responses to them, one feature of the current government’s reform proposals (to the extent they have been made public) stands out: the belief that enforceable rights are not per se undesirable, and the consequent intention (stated in the Conservative party’s 2015 manifesto) to retain in law certain ‘basic’ rights. Those which are included under this heading are not exhaustively identified, but seem to include, at least, the rights to a fair trial, to life, and (predictably) to property. That is, for all its rhetoric the government is not opposed to judges deciding controversial moral questions but in fact intends to allow them to continue to adjudicate upon some of those rights which raise the most difficult and controversial moral issues. The effect of this position is to break the link which haa often been seen in these debates between a pragmatic consideration of who one trusts to decide questions of social or political policy and the question of whether or not one supports the presence of constitutional rights, or the lesser sort of rights protection exemplified by the HRA. In the absence of an explanation of the relevant distinction between these ‘basic’ rights and the other rights currently protected by the HRA, the two questions no longer seem to have anything to do with each other.

This has significant implications for the sort of arguments which can plausibly be offered against the prospect of a British Bill of Rights – we are, or should be, forced onto the terrain of substance: rather than arguing whether we should have enforceable rights at all, taking or leaving the ECHR more or less in its entirety, we are forced to ask exactly which of the rights we should enjoy in law, and which we shouldn’t. As a matter of substance, rather than of form, which questions should be answered by politicians and which by judges? This is difficult terrain, which might, for those who oppose HRA reform, mean admitting that the judicial protextion of some of the rights currently protected in domestic law is less important than is that of others. It might also, however, just about open up a space for arguing for the introduction of new rights, not currently available in law. If, as seems likely, the broader question of reform or no reform ia settled against them, proponents of human rights should be ready to move quickly to this new ground.

Judicial Review of Freedom of Information vetoes

The decision of the Supreme Court in R (Evans) v Attorney General appears to bring to a close the decade-long saga relating to the release of letters (the so-called ‘black-spider memos’) sent by the Prince of Wales to various government Ministers. More than that, it demonstrates the strength of the Supreme Court’s recent commitment to common law constitutional values, given effect via a strong (and strengthening) application of the principle of legality, and calls into question the future of the Ministerial veto power contained in the Freedom of Information Act 2000, at least in its present form. Finally, it confirms that the UK’s freedom of information regime is, where environmental information is concerned, significantly undetermined in its operation by EU law.

Background

The first phase of the dispute began in April 2005 when Rob Evans of the Guardian Newspaper made a series of freedom of information requests seeking details of correspondence between Prince Charles and various Ministers. It closed when the Upper Tribunal in September 2012 allowed an appeal against the decision of the Information Commissioner and held that the correspondence in question should be disclosed insofar as it fell into the category of what was described as ‘advocacy correspondence’: that is, correspondence which involves the identification and addressing of charitable need and “promoting views of various kinds”.

The dispute’s second phase was opened by the Attorney General’s decision, in response, to exercise the veto power granted to him (and others) by s.53 of the Freedom of Information Act 2000 (FOIA), certifying (as required by that Act) that he had “on reasonable grounds formed the opinion that… there was no failure to comply with” the provisions of the Act. In the accompanying statement of reasons, the Attorney General indicated a disagreement with the Upper Tribunal’s exclusion of advocacy correspondence from the ‘education convention’ which permits the Prince of Wales to be educated in the functioning of government in the business of government with a view to later performing his constitutional duties, amongst which number the ‘tripartite’ convention’ – Bagehot’s statement of the Monarch’s right “to be consulted, the right to encourage and the right to warn”. Most strikingly, the release of the letters was stated to put at risk the Prince’s political neutrality, relevant here because “if he forfeits his position of political neutrality as heir to the Throne, he cannot easily recover it when he is King”. This is somewhat paradoxical – if there is difficulty in convincing the public of the Prince’s political neutrality, perhaps it is because he is not in fact politically neutral – and, with hindsight, it might be said that the generally half-hearted tone of the statement of reasons (of which this specific point is the most obvious example) encouraged the belief that the veto might be successfully challenged.

A claim for judicial review of the veto failed in the High Court. There, the view was taken that (notwithstanding the extraordinary, and constitutionally anomalous, nature of the veto power) all that was required by s.53 was that the reasons for which a veto was exercised address the decision of the body which was being overruled ‘head on’ and be ‘cogent’. That this (low) hurdle had been met by the Attorney General was demonstrated by the (strong) resemblance of his statement of reasons to those originally given by the Information Commissioner when holding that the letters need not be disclosed. A separate ground of challenge, based on the alleged incompatibility of section 53 with the Directive on public access to environmental information (Directive 2003/4/EC, giving effect to the Aarhus Convention and relevant here due to the environmental content of some of the letters) also failed: the possibility of judicial review of the FOIA veto fulfilled, the court held, the requirements of Article 6.2 of that Directive: “if there were substantive or procedural illegality or irregularity in the original decision such a review by the court, under section 53, should reveal it.”

In the Court of Appeal, by contrast, both grounds succeeded and the certificate was quashed.  The Attorney General’s decision to veto the release of the letters could not be reasonable if he simply disagreed with the UT’s conclusion, which was (it was noted pointedly) arrived at after a six day hearing, explained over several hundred paragraphs, and not appealed. For the statutory requirements to be fulfilled something over and above mere disagreement was required, such as that “the decision of the tribunal was demonstrably flawed in fact or in law.” The Court of Appeal, that is, was more demanding than the Divisional Court, on whose approach, the former noted noted, the veto power was not only have been constitutionally questionable, but would have seriously undermined the right of appeal provided for in the FOIA. No additional factor of the sort contemplated by the Court of Appeal was identified by the Attorney General and so he did not have the ‘reasonable grounds’ required by s.53(2). Moreover, insofar as the certificate blocked the disclosure of environmental information, it was incompatible with EU law and therefore unlawful on that basis also.

In the Supreme Court

In the Supreme Court, both of these conclusions were challenged. On both counts the Attorney General’s appeal was dismissed. Two different approaches to the general veto issue are evidenced by the majority. The first, that of Lord Neuberger (with whom Lord Kerr and Lord Reed agreed), emphasised that if the veto power was capable of being exercised so as to overrule a judicial decision on the simple basis that the a member of the executive disagreed with it, two fundamental constitutional principles would be harmed: that according to which a decision of a court binds the parties to that decision, and that which requires that actions and decisions of the executive be reviewable by the courts.  Though that this second consequence was in fact the result of the government’s preferred reading of the FOIA must be doubted – after all, the exercise of the veto power was here being judicially reviewed – its identification allowed Lord Neuberger to connect the present case to that line of authority demonstrating how zealously the courts guard the availability of judicial review – most prominently Anisminic. Section 53 FOIA thereby came be interpreted subject to the principle of legality: it could allow the Attorney General to make the certificate on the basis that he did only if it was formulated in the most unambiguous of terms. Because it was not so formulated, the certificate was unlawful. This approach, though appealing insofar as clothed in grand constitutional principle, would seem to significantly curtail the veto power and perhaps undermine it altogether. Like Lord Dyson in the Court of Appeal, however, Lord Neuberger furnished certain hypotheticals in order to demonstrate that the power would remain available notwithstanding the limited reading of the statutory provision which prevailed here; these are unconvincing, and given that the use of the veto will usually turn, as here, on a disagreement as to where the public interest lies, Lord Neuberger’s approach deprives the executive of a tool Parliament almost certainly intended it to have. The invocation of Anisminic is for that reason somewhat ironic: the same studied disingenuity which characterised Lord Reid’s approach there is evident also here.

Joining Lord Neuberger on this side of the argument was Lord Mance (with whom Lady Hale agreed) who accepted that if the making of a veto is predicated upon a disagreement as to what is required by law, it should be possible only in the limited circumstances Lord Neuberger identified. If, however, it resulted from a disagreement as to the balance of the competing interests at issue in a decision to release (or not) certain information, then all that is required is that the certificate address that balance “by properly explained and solid reasons.” But even this lower threshold was not met by the Attorney General’s certificate, which instead “proceeded on the basis of findings which differed, radically, from those made by the Upper Tribunal” without, however, providing “any real or adequate explanation for doing so.” Being in direct contradiction of the Upper Tribunal’s detailed and careful findings, without providing any explanation for the disagreement, the certificate could not meet even this lower threshold of reasonableness. The divergence between the difference components of the majority, however, leaves uncertain the circumstances in which an FOIA veto can lawfully be exercised and the appropriate standard of review when it comes to be challenged in judicial review proceedings. If section 53 of the FOIA remains as it is, it will be a brave Minister who exercises the power, and we can expect that the statement of reasons accompanying any veto will be far more robust than that provided by the Attorney General in relation to Prince Charles’ letters – perhaps by identifying some change in the factual background which justifies its exercise.

Dissenting on the reasonableness point, Lord Hughes accepted the thrust of Lord Neuberger’s defence of constitutional propriety – that is, he accepted that sufficiently clear words are required to found a statutory power permitting the executive to override the decision of a court – but held that the words of s.53 were in fact sufficiently clear. The rule of law, he noted, implied also that the courts give effect to parliamentary intention, and Parliament’s intention here was obvious. This override power being such as to include circumstances in which the relevant member of the executive located the balance of public interest in a different place than did the Upper Tribunal, the veto was lawful. Lord Wilson took a similar view, suggesting that not only was the veto here lawful, but that “the circumstances of the case constituted a paradigm example of the section’s lawful use.”

The EU law point

On the more limited question of whether the certificate was unlawful by reason of (and to the extent of) its incompatibility with the 2003 Directive, the court was less divided. Article 6.2 of that Directive requires that, in relation to material falling within it, an applicant whose request to have the material released is refused have “access to a review procedure before a court of law” in which that refusal can be reviewed, and the decision of which are final. Quite plainly, the existence of a statutory veto power means that decisions such as that of the Upper Tribunal’s in this case are not final. As such, the certificate would have been invalid insofar as it related to environmental information, even if it had not otherwise been so. Such was the view of all five judges in the majority on the first issue, and Lord Hughes in addition to them. Unlike the Court of Appeal, however, these six were of the opinion that this more limited invalidity would not, in a hypothetical situation in which the certificate’s general validity was not already impugned, have been sufficient to invalidate the whole: it was entirely clear that the Attorney General would have granted the certificate regardless. On this point only Lord Wilson dissented: just as the Upper Tribunal’s decision might not have become final because it was successfully appealed to the Court of Appeal, so here it did not become final because subject to a certificate under s.53 FOIA, itself ‘attended by a judicial review’. The requirements of the Directive were met all the same.

The consequences of Evans

The decision in Evans represents the most recent example of the courts’ emphasis on the strength of the common law’s constitutional commitments. In having arrived at it, however, not only has the Supreme Court created a considerable uncertainty as to the scope of the veto power, but – on the approach evidenced by Lord Neuberger’s judgment – it would seem to make its lawful exercise very difficult, perhaps impossible. Not only: the invocation of the principle legality has meant that the probable Parliamentary intention in including a veto power in the FOIA scheme has been sidelined. In order to return to the executive ultimate control over the disclosure of information under FOIA, the section 53 veto power will need to be reformulated, this time in terms capable of withstanding an interpretation which gives effect to a judicial resistance, found in (or written into) the common law, to the executive ever being allowed to override the decision of judicial actors. It would not, however, be surprising if even statutory language displaying the requisite degree of clarity was to be treated with great suspicion by the courts and potentially interpreted, on the authority of this case, down to nothing. Executive overrides of judicial decisions are, in that sense, so constitutionally obnoxious as to receive the treatment the courts normally reserve for ouster clauses.

As regards its immediate response to the decision in Evans, the government’s options are necessarily limited. The possibility of retrospective legislation in the event of the certificate’s quashing had been trailed in the media before the Supreme Court gave judgment, but to the extent any retrospective legislation encompassed letters relating to environmental matters, it would seem to be to contrary to EU law and therefore subject to disapplication. If the aim is to avoid embarrassment, releasing the letters would seem to be inherently less embarrassing than trying and failing to prevent their release. Retrospective legislation would also be susceptible to challenge on Article 6 grounds (the HRA and the ECHR having been curiously absent in much of the litigation described herein). The EU law point also precludes the remaking of the same veto but now in terms indicating something more than mere disagreement with the decision of the Upper Tribunal. As such, it seems likely that the letters will soon (a decade on from the original FOI request) be released, albeit in redacted form. We will know, finally, just how much of a threat to the perception of Prince Charles’ political neutrality they are.

Dissolution and the revival of the prerogative

The Fixed-term Parliaments Act 2011 is a lovely example of the sort of constitutional opportunism for which the doctrine of Parliamentary sovereignty leaves room. Enacted at least in part in order to increase the prospects of the coalition government surviving for the maximum five year period (and, in particular, to ensure that the Liberal Democrats did not walk out of it at a moment calculated to increase their own electoral prospects at the cost of those of their Conservative brethren), the Act makes major changes to the rules relating to the term of parliaments at Westminster. The prospect of the Act being repealed after the forthcoming general election raises a series of important questions about what should replace it and, more pointedly, if and how the prerogative power it abolished can be revived.

The Septennial Act 1716 increased the maximum length of a parliament – and so the period between general elections – to seven years, it having been set at three years by the Triennial Act 1694. There the limit remained until 1911, when the first of the Parliament Acts reduced it to five years and made its increase the one exception to the general ability of the Commons to legislate without the consent of the Lords. That rule, in turn, was in place for a little over a century. The point, however, is that each of these figures represents a maximum – there was no requirement that parliaments last the full term and in practice few did. Instead, a parliament would be brought to an end at some point short of its full term, by the Prime Minister of the day requesting that the Monarch exercise his or her (personal) prerogative power of dissolution (carried out, by convention aimed at minimising the period in which no parliament was in existence, simultaneously to the summoning of a new Parliament). Much ink was spilt in the course of the twentieth century on the question of whether the Monarch was entitled to refuse such a request and, if so, in what circumstances. In a move which neatly encapsulates some of the absurdity and anachrony of the constitution, the private secretary to George VI, writing – of course – under a Latinate pseudonym, informed the Times in 1950 that the Sovereign was entitled to refuse the Prime Minister a dissolution at his or her discretion. Other commentary suggested a refusal would be constitutionally appropriate only in extreme or exceptional circumstances. In practice, however, the Prime Minister of the day enjoyed significant latitude to time general elections acording to political convenience.

All of this is consigned now to the past. The FTPA fixes the dates of general elections at five year intervals and, in doing so, fixes the length of the parliamentary term at five years. What was previously a maximum is now a norm. And dissolution is no longer at the mercy of the PM, but takes place automatically “at the beginning of the 17th working day before the polling day for the next parliamentary general election”. That election can only take place short of the five year period if one of two things happens: a vote of no confidence (in a prescribed format) not followed by a vote of confidence (similarly) within 14 days or a two-thirds vote in Parliament in favour of an early election. Presumably for the avoidance of doubt, the Act confirms that Parliament “cannot otherwise be dissolved”. The Monarch’s power of dissolution has, like so many prerogative powers before it, been abolished by the sovereign Parliament – the implications of a civil war and constitutional revolution given effect more than 300 years on.

Much talk about the FTPA in the run up to the general election considers the possibility of an early dissolution leading to a second general election this year, in relation to which there is much misinformation in circulation and on which Lord Norton of Louth is typically good. And it is not disputed that, assuming some party or coalition can scrape together the necessary votes, the FTPA can be amended or repealed, with whatever set of rules replaces it possibly restoring to the Prime Minister some or all of the discretion which he or she enjoyed under the old arrangements. We are not, that is, necessarily to be bound by the FTPA for very long. More interesting and more contestable, however, is the question of whether that Prime Ministerial discretion could be reintroduced via a direct return to the system – the mix of prerogative and convention – which existed before the FTPA’s enactment, rather than by attempting to replicate its effects within a statutory framework.

In a submission to the Public Administration Select Committee a decade ago, the Treasury Solicitor’s department made, on the question of what would be the effect of repealing a statute which itself had abolished a prerogative power, the following rather hesitant observation:

It is not altogether clear what happens when a prerogative power has been superseded by a statute and the statutory provision is later repealed but it is likely to be the case that the prerogative will not revive unless the repealing enactment makes specific provision to that effect.

In saying so, it was likely influenced by the Interpretation Act 1978, section 15 of which provides that:

… where an Act repeals an enactment, the repeal does not, unless the contrary intention appears, (a) revive anything not in force or existing at the time at which the repeal takes effect

It seems very probable, therefore, that if the FTPA were simply repealed, with no reference made in the repealing statue to the matter of dissolution, the old power would not revive. This is constitutionally proper, but pratically problematic, for it suggests the possibility that we might find ourselves without any method whatsoever for dissolving parliament, whether subsisting in statute or the prerogative: Richard Kelly and Alexander Horne have made reference to this scenario, noting that it would take a brave court to “rule that Parliament could not be dissolved in order to hold a general election.” This is correct, and it is therefore to be hoped that no court is put in the position of having to make that decision – any repeal of the FTPA should be accompanied by the putting in place of a clear power to dissolve Parliament.

The question then becomes that of whether or not Parliament could legislate explicitly to do what its silence would not do; to revive the prerogative by express words making clear that such is its intention. Here, we are in largely (I think) uncharted territory, and it seems difficult to predict with any certainty the response by the courts to any attempt to do so (assuming, of course, that the courts are invited and willing to rule on the matter: though the decision in the GCHQ case suggested that the power of dissolution was non-reviewable, the courts are undisputed arbiters of what prerogative powers exist, including those whose exercise they will then decline to review.) My own instinct is this: if legislation repealing the FPTA was to attempt to revive the power of dissolution in terms which defined its substance to any significant degree (saying, for example, “the power of the monarch to dissolve Parliament as and when she sees fit is hereby restored” or words to that effect) then the courts might be tempted to hold that there had been a discontinuity; that though a functionally equivalent power had been put in place, the power was now a statutory rather than prerogative one. Such a decision would be in keeping with the broad thrust of the twentieth century prerogative decisions, which (with one infamous exception) show a suspicion of broad prerogative claims, a resistance to novel prerogatives, and a general but telling preference for statutory powers. It seems to me, that is, that Parliament will struggle to find a form of words which makes suitably clear its desire to have the previous law revived yet which is not so substantive as to prompt the courts to treat it as a new (and now statutory) power. It could nevertheless seek to do so, probably by enacting a bare phrase along the lines of “the previous law relating to the dissolution of Parliament is hereby revived” – one, that is, which is unambiguous in its intention but refrains from making reference to the relevant legal substance. To do so, however, requires a high degree of confidence as to what the previous law in fact was and what, if it is not the same thing, the courts will hold it to have been; without it, a draftsman might be tempted to add a few words of clarification and slip into matters of substance.

On one hand this discussion is perhaps not of major practical significance – the courts are not likely keen to involve themselves in the review of the power to dissolve, regardless of its status. On the other, however, it raises an important point of principle upon which democrats would do well to insist: if Parliament could revive the power of dissolution without using terms so explicit as to effectively replace it with a statutory power, what other – (even) more anachronistic, more objectionable – powers might it be similarly capable of reviving without being explicit as to its substantive intention? And without therefore paying the ‘political cost’ of doing so? Better to say that, once abolished, a prerogative power is gone forever.

The man who would be King

This week sees the long-awaited arrival in the Supreme Court of R (Evans) v Attorney General, in which the Attorney General will seek to have that court reverse the Court of Appeal’s finding that the Attorney General acted unreasonably in vetoing the release of Prince Charles’ ‘black spider memos’.

The road to the Supreme Court has been a long one. Some years ago, Rob Evans of the Guardian sought disclosure under the Freedom of Information Act of a series of letters sent by the Prince to various ministers. The letters were sent around a decade ago (and the law has now changed such that they would now be entirely exempt from disclosure). Disclosure was refused, and the refusal was upheld by the Information Commissioner, though only after an extremely protracted consideration of the matter. When this refusal was challenged in the Information Tribunal, it was held that the Prince’s ‘advocacy correspondence’ (that in which, amongst other things, he sought to make his views known to Ministers) should be disclosed. It did so following a very important consideration of what are known to public lawyers as ‘constitutional conventions’ – constitutional rules which bind actors within the constitution but which the courts, though they will acknowledge their existence, will not enforce. Constitutional conventions are enforced politically; by political actors and political institutions. By convention, the Monarch (except in a very limited field) acts on the advice of her Ministers (and where she does not, as in the appointment of the Prime Minister, she may be bound by some other conventional rule). Similarly, the Monarch has the right, notwithstanding her political neutrality “to be consulted… to encourage, and… to warn.” Here, the government departments resisting disclosure argued for the existence of an ‘education convention’ whereby the heir was and is entitled to be instructed in the business of government. Though the Information Tribunal accepted its existence, the advocacy correspondence was considered to be excluded from its scope. The various factors identified by the court as weighing in favour of non-disclosure were outweighed by those favouring disclosure (“the balance is likely to be not only clearly but also strongly, and sometimes very strongly, in favour of disclosure” [214]) and so disclosure was ordered. A victory, one might think, for constitutional openness and constitutional monarchy: what better way to demonstrate the subjection of the Monarch to law than to allow the freedom of information regime to run its course and open up the Prince’s interference in the democratic process to the harsh glare of public scrutiny?

The memos were not disclosed. Instead, the then-Attorney General Dominic Grieve (since binned for being insufficiently reactionary, particularly as regards the Human Rights Act) vetoed their disclosure under s.53 of the Freedom of Information Act: effectively a backstop to the FOIA regime which permits a decision that disclosure is required to be overridden, on rather poorly-defined grounds. The terms in which he did so were a masterpiece of doublethink –

“…my decision is based on my view that the correspondence was undertaken as part of the Prince of Wales’s preparation for becoming king. The Prince of Wales engaged in this correspondence with ministers with the expectation that it would be confidential. Disclosure of the correspondence could damage the Prince of Wales’s ability to perform his duties when he becomes king.

It is a matter of the highest importance within our constitutional framework that the monarch is a politically neutral figure able to engage in confidence with the government of the day, whatever its political colour.”

If the public knew that Prince Charles was not neutral, they would not be convinced by his pretence of neutrality. The logic is impeccable.

A judicial review of this veto was sought, with its legality upheld at first instance, the Lord Chief Justice suggesting that, far from being subject to review only on very narrow Wednesbury grounds, here “the principle of constitutionality requires the minister to address the decision of the Upper Tribunal (or whichever court it may be) head on, and explain in clear and unequivocal terms the reasons why, notwithstanding the decision of the court, the executive override has been exercised on public interest grounds.” In the present case, that requirement was met and the veto was therefore lawful.

This was reversed in the Court of Appeal, it being held that reasonableness in this sensitive context required that the person vetoing disclosure “gives sensible and rational reasons for disagreeing with the tribunal’s conclusion.” [39] In relation to the Prince’s letters, the Attorney General had done no such thing: he “simply disagreed with the evaluation made by the UT.” [40] There had been no appeal of the Upper Tribunal’s decision, which (as those who have read it will testify) was careful and detailed, having behind it a hearing lasting several days; there was no suggestion that it contained error of either fact or law – instead, the Attorney General felt that the balance it struck was wrong and effectively nullified it. This, the Court of Appeal said, was insufficient and the letters were to be disclosed. Subject, that is, to the Supreme Court having its say.

The time for that say has now come and the decision, when it comes, will be of much wider interest than would normally be one which clarified the subtleties of public law requirements of reasonableness in a very specific statutory context. There is strength on each side. On one hand, so little effort was made by the Attorney General to justify his exercise of the veto power that it is hardly surprising that the Courts have felt affronted by it. One is almost tempted to conclude that he was not particularly enthusiastic about exercising it in the first place – or, at least, was not willing to dissemble too openly. On the other hand, the veto power has often been understood to be essentially an absolute backstop, providing a discretion which is limited only to the extent of the irreducible minimum of public law standards; limited, that is, so minimally, that those exercising it should be able to do so without being required to provide anything at all by way of justification beyond that, as the statute has it, they have “on reasonable grounds formed the opinion that, in respect of the request or requests concerned, there was no failure” to meet the freedom of information scheme’s demands. Whether the Supreme Court will stand behind the Court of Appeal must be doubted (though there is in the case a narrower issue, relating to EU law, on which the Court of Appeal similarly found against the Attorney General and in relation to which it might be more palatable for the Supreme Court to take a stand). If the result is that the letters are disclosed, we will have the good fortune to enjoy a small (but timely) insight into the mind of the man who will be King.

More on devolution, and the HRA

The process of constitutional reform of which the Scottish independence referendum was the immediate catalyst continues apace. The various Scottish parties have made their submissions to the Smith Commission and the public has until the end of the month to lend its voice to the process. Of the submissions two are particularly notable – that of the SNP, which takes a maximalist approach to the question of further devolution, perhaps reflecting the (false) notion that what was promised in the now-legendary ‘vow’ was the equally-fabled ‘devo max’; and that of the Scottish Labour party, which compounds the party’s earlier error on the topic of further devolution by comprising those exact proposals and a new cover letter, which must have taken all of 15 minutes to write. The mulligan offered has been rejected (though it is not clear that those doing the rejecting are aware of that fact), and the party shows every sign of having walked into the constitutional traps laid for it north of the border, as it has that of Mr Cameron south of it: Gordon Brown has noticed that, applied to the budget, English votes for English laws leads (perhaps inexorably) to the end of the union, and so argues that it must be resisted – a diagnosis which, even if correct, will be electorally costly once acted upon. The question of course remains as to why Mr Cameron, having fought to save the union, would so happily sign its death warrant – perhaps he has no intention of devolving income tax; perhaps he does not intend to implement EVEL in the absolutist fashion which some of his backbenchers would like; or perhaps Mr Farage has cause him to take his eye off the (longer-term) political ball.

This process has had to fight for attention with a second proposal as to the reform of the constitutional order – that of the Conservative Party (not, importantly,the government) as to the future of the Human Rights Act. These proposals have been much commented on – mostly, it must be said, critically. Some of that criticism has been a touch aggressive (some days, it feels as though the HRA exists largely so as to permit academics an opportunity to demonstrate their ethical bona fides on twitter), but it is true that in its generality and in its details, the proposals are unedifying. Firstly, they would seem to mis-state the current constitutional position, as well as the effect of certain decisions of the Court of Human Rights in Strasbourg. Secondly, they appear to be, at bottom, an attempt to have Britain withdraw from the Convention system by the back door – they imply a renegotiation of the Convention system which, it must be assumed, will be entirely unacceptable to the other parties to that Convention and to the Council of Europe itself; if that does not come to fruition (it will not), the drafters of these proposals will want the United Kingdom to flounce out of the system, no doubt attempting, unconvincingly, to blame the outcome on the intransigence of the amorphous European other. The strategy strongly resembles that currently being attempted in the even more rigid confines of the other ‘legal Europe’, though each may of course be the work of a different faction within the Conservative party.

All of this is a shame. There is a principled case to be made against both the HRA and the ECHR, and not merely the obvious ones –  that (a) the former is too weak to do its job, with any meaningful system of human rights protection requiring the abandonment of the legislative sovereignty of the Parliament, or (b) that the HRA gives too much power to (unelected!) judges as compared to political actors. A more interesting principled case might encompass at least two strands – first, human rights have a tendency to get in the way of progressive ends as often as to promote them; that we do not notice this more often is simply a function of the resolutely non-progressive nature of contemporary Anglo-Saxon politics. Second, human rights laws are always and everywhere contingent upon the political will – in the production and maintenance of such laws, and in the implementation of judgments arising out of them. We should seek to cultivate that political will rather than focus so exclusively upon what goes on in courts, and if we can not – if we reach the stage, as we almost have, where significant political capital can be made from an assault on human rights law – the laws themselves might cease to matter, for they shall not remain in place long. Having treated human rights (and progressive politics more generally) as a legal battle, it now turns out that those who support them may be on the verge of losing the political war. If the HRA is repealed, it might be that one benefit is that the left does not expend so much of its energy on fighting a rearguard action in support of it. I will write another day on how the courts can be expected to respond to such an eventuality.

The West Lothian Question

Ten days on from the referendum, the outlines of the forthcoming constitutional upheaval are becoming clearer. On one hand, the Smith Commission (charged with determining the contours of further devolution to the Scottish Parliament) has been populated, albeit largely with a mix of current and former political grandees (and, helpfully, one constitutional lawyer). More importantly, a report in today’s Scotland on Sunday suggests that the Scottish Labour party has seen the light and will cooperate with a new devolution settlement which include a level of control over taxation far beyond that proposed in the deeply unimpressive report of its Devolution Commission. This, along with the stated intention of the SNP’s leader-in-waiting, Nicola Sturgeon, to engage with the Commission in good faith, should significantly facilitate its work, and makes much more likely the fulfillment of the famous ‘vow’ made in the run-up to the independence referendum. There will not be devo max, but there may well be a devolution settlement which both further empowers the Scottish Parliament, and which creates a closer link between its spending plans and the burden of taxation imposed upon persons resident in Scotland and companies carrying out business in Scotland. The devolved institutions will not, of course, have full control over the levers of economic policy, but it should not be forgotten that the vision of independence offered to Scottish voters on the 18th of September was also lacking in this regard.

On the other hand, however, this spirit of cooperation seems absent from the tussle over the resolution of the West Lothian Question. That issue has been (rather cynically) co-opted by David Cameron, who has made ‘English votes for English laws’ (EVEL) a central plank of his vision of constitutional reform. Though the West Lothian Question is not new, it is reasonable to suggest that it takes on a new urgency in the context of enhanced devolution. Mr Cameron’s concern, however, might be thought to be based not on deeply felt sense of constitutional (in)justice but instead on two political factors. First, answering the West Lothian Question is presumed to appeal to the English nationalist sentiment which may or may not be driving the UKIP surge and which has cost the Conservative party its second MP in recent days. Second, the answer suggested will put in place conditions which will make it difficult (if not impossible) for any Labour government elected in 2015 (and beyond) to enact its policy agenda, at least insofar as that agenda relates to, say, health and education in England (these being key areas are devolved to Scotland, Wales and Northern Ireland, and so on which one would expect any implementation of an EVEL rule to prohibit Scottish, Welsh and Northern Irish MPs from voting).

The appeal of EVEL is that it represents a solution short of the creation of an English Parliament or full-on Federalism, neither of which are either particularly popular nor politically feasible, at least in the short term. Its own problems are well-known, however – not least the creation of two ‘classes’ of MP, one of which can vote on all matters and the other of which can vote only on those matters which are not devolved to the regions and nations. As such, the most subtle ‘solution’ to the West Lothian Question is perhaps that offered by the McKay Commission on the Consequences of Devolution for the House of Commons, which stopped  short of endorsing EVEL. Instead, it suggested that the House of Commons resolve that ‘decisions at the United Kingdom level with a separate and distinct effect for England should normally be taken only with the consent of a majority of MPs for constituencies in England (or England-and-Wales)’ and recommended a variety of methods by which this could be put into practice – the most important of which would require an English Grand Committee to consent to the bill before its second reading, the Commission treating this as equivalent to the legislative consent motions by which the devolved institutions consent to Westminster legislating on matters which are devolved. This is a less drastic solution, bearing all the hallmarks of traditional British ‘muddling through’, but may prove insufficient now that the supposed unfairness of the current practice has become so prominent in the contemporary constitutional discourse..

Two thoughts occur at this juncture. The first is that it seems at least possible that, despite the rush to reform, the West Lothian Question could be ‘addressed’ without any change in the current rules governing House of Commons procedure, never mind English devolution. Now that the Scottish referendum has taken place and the WLQ is so high on the agenda, it would (I would have thought) be politically  foolish (and perhaps suicidal) for any government to employ the votes of MPs whose constituents are not (directly) affected by an issue to force it through against the will of the majority of those whose constituents are so affected. That is, the situation need not be regulated against, for political reality means it will not occur. It may therefore be that ordinary mechanisms (both formal and informal) of political accountability suffice to rule out the abstract possibility of such injustice being transmuted into an actual concrete example thereof. Even this is correct, however, it is unlikely to placate those who most need to be placated.

Second, it is to be regretted that the issue of electoral reform has mostly slipped off the constitutional agenda since the failed referendum on AV in 2011. Many of these issues would look very different if the electoral system employed for elections to the Westminster Parliament was not such as to result in a significant disproportionality between votes cast and seats won, and it may be that part of a lasting constitutional settlement is a more proportionate system. Now that a precedent has been set, however, whereby any change to the electoral system need acquire the support of a majority in a referendum, it seems unlikely that any such system will be implemented at any point in the near future. It may be that those who seek a long-lasting constitutional settlement will come to regret this failure.

The morning after

On a turnout of 84.6%, the Scottish electorate has answered the question ‘Should Scotland be an independent country?’ with a ‘no’. In one sense, the result avoids the significant constitutional reconfiguration which would have resulted from the destruction of the United Kingdom in its present form – Scotland will not now move towards independence, and the questions of what would be the appropriate constitutional arrangements of that new state and of the rump United Kingdom do not fall to be answered. It is better, however, to think of the referendum result not as halting the process of constitutional reform, but instead as giving impetus to an ongoing such process, one which can be traced back to at least 1998, when the original devolution settlement for Scotland was put in place, and probably further again. We have seen this demonstrated already this morning in the comments of the Prime Minister, who affirmed both that the last minute offer of further devolution of power to Scotland (beyond that contained in the Scotland Act 2012) will go ahead, and that it will be supplemented by an attempted resolution of the age-old West Lothian Question, in the form of ‘English votes for English laws’ (rather than, say, an English Parliament to rival that at Holyrood). Crucially, the Prime Minister has stated that this latter change “must take place in tandem with, and at the same pace as, the settlement for Scotland,” leaving room for the possibility that further devolution will be blocked or delayed if the West Lothian Question cannot be answered satisfactorily (meaning, among other things, in a way which keeps Conservative backbenchers happy).

There will be, then, further constitutional change; that much seems certain. There is little reason to believe, however, that it will be particularly coherent or stable – the reason that the West Lothian Question has not been answered before now is not that it has not been understood, but that each possible solution raises in turn new problems of its own. This is not to suggest that no adequate and long-lasting solution can be found, but bodes poorly for the prospects of doing so by January, as the official proposals seem to demand. And, though the explicit linking of these matters is useful to the extent that it shows a greater willingness than is sometimes evident to consider constitutional issues in the round rather than as discrete topics, it may be that only a much fuller re-consideration of the constitutional order of the United Kingdom is capable of putting in place a settlement which lasts. Such a re-consideration would probably involve a constitutional convention, calls for which have been heard with increasing frequency in recent times. And any convention would in turn be liable to result in a capital-c Constitution (written, codified, entrenched) and so end the constitutional exceptionalism characteristic of  the contemporary United Kingdom, which lacks such a document, and which maintains (in formal terms at least) a doctrine of absolute Parliamentary supremacy.

This is not necessarily a bad thing. One of the notable features of the Scottish debate has been the way in which a written Constitution has at times been treated as something approaching an unqualified good, almost regardless of its specific content, and to adopt a written constitution would pacify those who feel that in a state without such a thing, governmental power is inherently illegitimate. It would also provide an opportunity to remove the most obvious of the lingering anachronisms of the current order – not least those members of the House of Lords who sit there partly by virtue of inherited right – and hopefully more than just those. It does, however, come with costs: chief among what would be lost is the ability of Parliament to enact significant legislation on important (often progressive) topics without fear that it may be struck down as unconstitutional by a judiciary enforcing a set of constitutional norms which become, if entrenched, increasingly outdated over time. It does not seem, though, that we shall have this conversation; that we shall talk about what is the appropriate relationship between the centre and the nations (and possibly regions) of the United Kingdom, and whether a written Constitution is the best means of implementing that solution and any other associated changes that need to be made in order to make it not merely function in the short term but last in the long term. Instead, we risk implementing a hurried solution which pleases none of the many relevant constituencies and which persists only until the next constitutional crisis causes it to be revisited and revised once more. For those who profess to value the United Kingdom, this is dangerous – though yesterday’s referendum closes off the possibility of Scottish independence in the short term, only a careful and coherent constitutional settlement – if such a thing exists – can do so in the long term.