Saturday, 13 December 2008

Devolution and the West Lothian Question - Part 4

Related articles:
Part 1
Part 2
Part 3

I have received a response from the Ministry of Justice to my letter of 18 November referred to in Part 3. The updated correspondence can be found here.

One interesting outcome is that the government appear to have abandoned hope of reinventing Prescott-style mini-devolution at regional level at any time in the forseeable future.

They also run the argument that devolution is indirectly good for people in England because it is good for people in Scotland, Wales and Northern Ireland - but they have little option given that devolution does not at present extend to England.

In justifying the current devolution status quo, under which members for constituencies where there are devolved governments and legislatures may decide matters in England which are devolved in their own constituencies, they have firmly planted their standard on the mound of the Barnett consequentials. The Barnett consequentials are shorthand for the operation of the Barnett formula, under which a percentage of any increase of expenditure in England will feed through automatically into the block grant paid to the devolved administrations. The argument in the letter is that since expenditure in England will affect the block grant for devolved institutions elsewhere, those representing members for constituencies in that elsewhere have a right to decide any and all matters in England which happen to be brought before the House of Commons.

Barnett consequentials

The Ministry seem to me to have planted their standard on a mound of sand. A few words of explanation about how public expenditure is financed are needed - for those whose eyes are inclined to glaze over by mentions of public finance, skip the following two paragraphs.

All money raised by taxation is paid into what is called the Consolidated Fund. This is the Exchequer account at the Bank of England, and sees eye-wateringly large amounts of money pass in and out each year. Leaving aside the operation of the National Loans Fund under the National Loans Fund Act 1968 (which affects the detailed mechanics but not the principles described below), specific statutory authority is required for the drawing of any money from the Consolidated Fund in order to pay for government programmes. This applies whether the particular government programme in question is one conducted in exercise of the natural powers of the Crown or the prerogative (about which I will write a separate commentary shortly), or under particular statutory service powers. Put shortly, the power to levy a tax does not of itself include the power to spend it.

This is linked in to the annual expenditure estimates laid by the Chief Secretary of the Treasury before the House of Commons each year, drawn up following the Treasury's spending review. Once approved by the House, authority to draw on the Consolidated Fund to meet the estimates in the first part of the following financial year (beginning on 1st April) is conferred by a Consolidated Fund Act. In the summer of the year, usually shortly before the summer recess at the end of July, these are incorporated into an annual Appropriation Act listing and authorising the appropriations for each head of service of each department for the year, usually followed by a further Appropriation Act towards the end of the financial year which sets out any excesses for the previous financial year and any supplementary supplies necessary since the estimates were drawn up for the current financial year. (To see how the heads of supply are set out for each department, see for example Schedule 2 to the Appropriation (No. 2) Act 2008, which is the July 2008 Act granting supply for the 2008/09 financial year.)

The essential point here is that the determination of the Barnett uplift (the percentage of the increase in expenditure in England which is to go in block grant to the other countries in the UK) follows directly from the spending review giving rise to the estimates and any supplementary votes for central government departments. There is nothing to stop members for, say, Scotland expressing a view and exercising their vote when the annual estimates are put forward in the Commons, and when the Appropriation Acts for supply are passed, if they feel - to adopt the Ministry's hypothesis - that the "knock-on" effects on Scotland under the Barnett formula are not to their liking. That is quite different from being able to force through what the money voted for any particular head of service must be used for at the detailed implementation level in England, or to decide everything else which happens to be going on in England, which is what the Ministry argue for.

It is also, as I said in Part 3, far fetched (and would represent very poor government) that members for, say, Scottish constituencies would actually want to take decisions on detailed education or health matters in England, not on the merits of the decisions for those subject to them, but on the ground that they may result indirectly in too much or too little expenditure in Scotland. My description of the Ministry's "Barnett formula" based justification of the current devolution status quo as a "make-weight" could I think reasonably described as being kind and generous to the Ministry.

The Ministry have not provided any other examples of matters which when decided for people in England only may affect their neighbours in the UK, but which when decided the other way round in Scotland, Wales or Northern Ireland by a devolved administration will not affect England. This is probably because there aren't any.

The Ministry's argument also pays no regard to the limited nature of what I was in fact proposing in Part 2 as the Very Simple Solution, which would not allow a Bill or separate part of a Bill to be passed without the approval of the majority of all members in the Commons at all stages (as well as a majority at third reading of those representing the area within the UK to which the Bill or part applies), and would allow the government to promote the legislation concerned again in the following session against the wishes of the majority for that area in a case where it really thought that important.

Regional Select Committees

Also interesting is the mention of the Regional Select Committees. These were approved by the House of Commons on 12 November under government whipping. The debate is worth a read and is here .

The origin of these committees is found in paragraphs 119 and 120 of the Ministry of Justice Green Paper "The Governance of Britain" published in 2007. The Modernisation Committee of the House of Commons gave effect to these proposals, passed only by a second casting vote of the Leader of the House, Harriet Harman, and the results of which in a rather comedic (some might say Orwellian) twist were "welcomed" by the Government in its White Paper "Regional Accountability: the Government's response to the Modernisation Committee's third report of session 2007-08".

The reason given for forming these committees was to improve the accountability of the regional development agencies and the government offices for the regions to Parliament. Many of the things that these regional bodies do (other than those of the government offices which are in any event already accountable to Parliament) could in fact be put back to the local authorities from which they came. However, in the absence of these functions returning to local authorities, some form of accountability seems to me to be a good idea.

It is strange however to see these bodies mentioned in the context of devolution, because they do not exercise devolved powers of any kind. The fact that they are scrutiny bodies on the model of other Select Committees, not policy forming bodies, was one justification given for the fact that their membership does not reflect the political make-up of the regions which they represent. Instead, they represent the political make-up of Parliament as a whole - in other words, there will always be an inbuilt government majority, even though Labour members are in a minority in a number of the English regions. In fact in the south-west region (and possibly in the eastern region) the government will have to draft in members from other regions in order to maintain the government majority on the committee.

Were committees to have some role in devolved policy forming, then such a membership would I imagine be seen as unacceptable even by present Ministers.

Also mentioned are Regional Ministers. These additions to the payroll were, like the Regional Select Committees, created under the Green Paper proposals (paragraphs 115 to 118). They have no executive functions within the region. They are "champions" of government policy to regions and vice versa (people at whom rotten eggs can be thrown in place of those Ministers who do make the decisions?). They are entirely toothless - in fact, does anyone actually know who their regional minister is, and has anyone ever seen one of these curious beings?

Wednesday, 3 December 2008

Speaker's regrets

The Speaker made a statement to the House of Commons this afternoon about the Damian Green affair. (See on this my earlier commentary on the legal position.)

In his statement he states that he "regrets" that police were allowed to search Damian Green's MP's office in the House without a warrant; that the Serjeant at Arms had allowed the search by signing a consent form; and that he had known in advance about the search and Mr Green's arrest, but he had not been told that the police did not have a search warrant.

However, he is confessing to an error of procedure that he or the Serjeant at Arms did not make. The question of the Serjeant at Arms consenting (apparently inadvertently) to the entry into Mr Green's office without the prior issue of a warrant is a red herring, since the issue of a warrant for the search of the House of Commons would have been unconstitutional. In short, a warrant couldn't have been issued without consent, and if consent were to be given then there would be no need for a warrant.

The Speaker's proposal for a new protocol permitting or requiring warrants to be issued against the House is also misconceived, for the same reason. It should be resisted as comprising a gross breach of privilege. It is not for the courts to issue warrants, but for the House to permit or to refuse permission, after investigating the facts alleged by the police giving rise to the request for them to enter. Possibly he meant to institute a protocol or procedure for the issue of warrants against the personal property of individual MPs which they keep in their offices (see below). It remains to be seen what MPs think about that.

I suppose confessing to an error of procedure may be viewed as better than confessing to an error of judgement.

There remains the question of the taking away of a MP's personal property in his office (if any). That may require a warrant although it is an interesting point whether such a warrant could be issued, even with the Serjeant at Arm's or Speaker's consent. Would that require an Act of Parliament?


On the last point (whether further legislation would be needed to enable personal property of a member in his office at the House to be seized under a warrant), probably not. The Times have obtained a copy of a House of Commons Library report prepared at short notice last night. The report points out correctly that a member of Parliament is not protected from arrest within the Palace of Westminster on account of criminal conduct on his part, and that unlawful conduct engaged at in Parliament is not privileged unless it forms part of a proceeding in Parliament protected by article 9 of the Bill of Rights. This report of the Committee of Privileges also covers similar ground.

This means that in the unlikely event of Damian Green having conspired with a civil servant for the civil servant to commit misconduct in a public office, Mr Green would not be immune. However, that has not been in dispute.

This does not mean that executing a warrant to seize or examine property of the House, such as its computers and papers, in furtherance of a criminal investigation would be proper without consent of the House. It seems to me that it would not, but since this does not appear to have arisen before there are no precedents to rely on.

Much probably turns on what comprises property of the House and what comprises personal property of an individual MP. That might also make the drafting and execution of a warrant for the seizure of property within the precincts of the Palace of Westminster an exceptionally difficult exercise.

Presumably little if any personal property of Damian Green was involved as he did not, apparently, give consent to seizure of property there without a warrant1. Perhaps time will tell.


Update 2:

1 An issue would then arise about whether section 18 of the Police and Criminal Evidence Act 1984 applies to offices at Parliament with respect to the personal property of a MP or peer kept in his/her office, and if so whether the MP or peer "occupies or controls" the office within the meaning of that section in addition to the Parliamentary estate (clearly the Parliamentary estate does). If he/she does, then that is another reason why the issue of a warrant is an irrelevance - the police would not need one and could not be required to obtain one to examine and seize personal property.

Saturday, 29 November 2008

Leaky ship

The ship of state has always leaked. Gordon Brown was open that he had received information from a mole in the Treasury in the mid 1990s, as had Winston Churchill about lack of preparation for war in the 1930s, and sometimes it is in the public interest that information should leak. On the other hand, the proper functioning of the civil service and the normal processes of the state are also in the public interest, and departments simply cannot run properly if confidential advice to ministers is leaked every other day. There must be a minimum level of trust between ministers and civil servants.

In the news at the moment is the arrest and bailing of Damian Green MP, apparently "on suspicion of conspiring to commit misconduct in a public office". The facts about Mr Green and the leaks concerned are entirely unclear at the moment. This commentary only explores the legal background to events as they may unfold.

Those leaking in the 1990s and afterwards no doubt felt somewhat safer in this enterprise than beforehand, by the fact that the Official Secrets Act 1989 had replaced the former notorious section 2 of the Official Secrets Act 1911 (long title of the 1989 Act: "An Act to replace section 2 of the Official Secrets Act 1911 by provisions protecting more limited classes of official information"). The idea was to protect whistle-blowers up to a point - the line being drawn where the leak might be damaging within the terms of the 1989 Act. (The object was also to remove a public interest defence in the 1911 Act which worked against the prosecution in the Clive Ponting case).

In order for official information to be protected under the 1989 Act as an official secret, normally it has to fall into one of the categories that could give rise to an offence under that Act, that is to say security or intelligence information, defence information, information concerning international relations, foreign confidences, information which might lead to the commission of crime, and information obtained under the special investigation powers in the Interception of Communications Act 1985 and the Security Service Act 1989. In addition the disclosure normally has to cause harm to the UK or its interests as set out in the Act for the category in question, or (broadly) it could reasonably be believed that harm could occur.

If a civil servant were improperly to pass other (unprotected) information to, say, a journalist or member of Parliament, that is not to say that the civil servant concerned would not have breached the terms of his or her appointment as a civil servant and be liable to disciplinary action and dismissal (he or she would be likely to be dismissed and might suffer other civil sanctions), but that is a civil rather than a criminal matter.

Step in however the ever mysterious common law, and conspiracy. There is an ancient common law offence of "misconduct in a public office". For an offence of misconduct in a public office to arise, a person holding a public office such as a civil servant or police officer must, without reasonable excuse, wilfully do (or fail to do) an act in the execution of the office which is of such a serious kind as to amount to a breach of the trust imposed in the office holder.

At common law there is also the crime of conspiracy to commit an offence, and in statute of aiding and abetting or counselling and procuring an offence. This can make people who are sometimes called "accessories" also guilty of an offence.

So although, say, a civil servant who leaks unprotected information might escape under the 1989 Act, he or she might still be guilty of the common law offence of misconduct in a public office (punishable by up to life imprisonment incidentally).

If a particular journalist or member of Parliament were to enter into a scheme or arrangement with an official in advance, under which he or she would knowingly be passed unauthorised information from a department by the official, the journalist or member may in certain circumstances also be guilty of conspiracy in, or aiding and abetting, the misconduct of the official in public office, even if the information is not protected under the 1989 Act. This forms part of the background to secrecy law, but I must make the point that there is no indication at all that anything like this has happened in the case of Mr Green. Even if it had, it might well be innocuous.

There is also an interesting point in the case of a member of Parliament, about whether the office of member itself comprises an "office" covered by the common law offence, in which case an MP, subject to article 9 of the Bill of Rights 1689, might be liable as a principal rather than just an accessory. This is highly theoretical though.

Those charged with such offences have one thing on their side: it is unlikely a jury would convict except in serious cases genuinely affecting the security of the state. That is not to say that any charge or trial might not be politically mbarrassing (for the government as well as the person subject to the charge).

Wednesday, 26 November 2008

Judicial activism revisited

An interesting article on the relationship between the courts and Parliament in the development of human rights is set out by Nick Herbert MP on his webpage, which reproduces a speech he delivered at the British Library on Monday. It covers in part similar ground to that covered in my commentary, but from a political (and Conservative Party oriented) perspective rather than a legal one.

One of his arguments is that Parliament has abrogated its responsibilities in passing the buck to the courts in determining the balance between privacy rights under article 8 and the guarantee of freedom of expression under article 10. That is a reasonable point for those who think that press freedom is too important an area of law to be left wholly to the courts. One of his arguments is that the Human Rights Act 1998 paints the human rights canvas with too broad a brush, forcing the judiciary to decide too many of the details.

Broadly expressed constitutional principles will always give rise to difficulties of this kind - hence the complaints of some about the activism of the Supreme Court of the United States in construing and applying the the US constitution (including the Bill of Rights comprised in its first ten amendments).

The problem is that whatever formula Parliament comes up with to describe what that balance should be, the judiciary will inevitably be left to apply the formula to individual cases, and application of that formula to individual cases gives rise to precedents (and precedence) for the future. And what formula will that be, other than something similar to the formula set out in the Convention itself?

He is right, though, to stress the role that elected representatives must play in matters of human rights policy. I do not underestimate the importance of reminding our policy makers that they will, in due course, face the electorate again. Representational democracy provides our final defence against the ill intentioned, the poorly advised and those who might otherwise be carried away by their own ideas. Sometimes the current that the democratic process puts through the sea in which our policy makers sail can wash them away without the need for an election - as in the case of Margaret Thatcher and the poll tax.

But it is also to be recognised that the primary role of human rights legislation is to give remedies against public authorities (see my discussion on horizontality). It is to provide a shield to the minority, the unpopular and the disregarded from the enthusiasms of the majority - a bottom line beyond which the majority through their elected executive, however secure their democratic credentials, may not go. In short it is to deal with the perils of the dictatorship of the majority. It is not, as he says, "to drive better performance in public services".

There is a debate for the philosophically inclined about whether this bottom line is an inherent attribute of the condition of human existence, comprising a truth to be held as self-evident and rights endowed by their Creator (no attribution required), or whether they originate in the sovereign will of Parliament. In the British constitution though, they do the latter.

However, we have these two principles at work (democratic authority on the one hand, and a bottom line of respect to which all are entitled as individuals on the other), both of which are essential to the workings of a civilised society.

Sometimes, as in all human interaction, people may make mistakes in how that balance is drawn - Nick Herbert gives some examples in his speech, some of which I would agree with and some I would not. There are also, as he says, severe dangers in attempting to expand this rights language to cover socio-economic and environmental rights. The due representation of these supplementary pseudo-rights in the political process might or might not be desirable, but if it is they should not be expressed in the same language as the fundamental rights to which I have referred above. That would devalue the kernel of human dignity comprising the core human values set out in the Convention. Such supplementary rights would also be unjusticiable.

Amen to his call for respect to be given to human rights where they are most challenged in the world, and the perspective that that might give to our own preoccupations: and a reminder of how lucky we are in the UK, and indeed in the western world (including all the signatories of the Convention) to have politicians who, for all their shortcomings, at the end of the day will have the best interests of their citizens at heart, and consequences where they do not. These are rights to be defended.

Monday, 24 November 2008

Devolution and the West Lothian Question - Part 3

Out of interest I wrote to the Prime Minister about the Very Simple Solution set out in Part 2. I was not naive enough to think it would have much effect and I was expecting no more than a simple acknowledgement and a "thanks but no thanks". However, what I received in reply was the Ministry of Justice's justification for the current status quo. The correspondence, as it stands at present, can be viewed here. (Update: on this correspondence see also Part 4 and Part 5)

I cover it now because the MoJ's arguments presented in the correspondence seem to me to be so weak, even after allowing for the fact that they are no doubt based on the Ministry's standard "scripts" it uses in correspondence on devolution.

Ministry of Justice

The MoJ have in the course of the correspondence put forward three justifications for the status quo. These are:
  • any rearrangement of voting at Westminster in consequence of devolution would divide the UK and provide two classes of MPs
  • things decided for England only on matters devolved elsewhere could nonetheless affect its neighbours, thus entitling them to vote on them
  • around 85% of the MPs at Westminster represent constituencies in England, and the occasions where a UK government does not have a majority in England are rare. (Although they do not say it, presumably an underlying point is that back-bench revolts are also relatively rare.)

Dividing the UK

This argument seems the strangest of all, as it is in the nature of devolution that it divides the UK on devolved matters: that is its purpose. As at present constituted, devolution also provides two classes of MP, namely those who can vote on all matters affecting their constituents and those who cannot.

The fact of the matter is that like it or not devolution has, on devolved matters, broken the sharing and pooling of legislative and executive authority achieved by the Acts of Union.

The only answer to this argument of the MoJ would be to abandon devolution entirely. This would destroy the hard won peace process in Northern Ireland (probably Tony Blair's finest legacy), and is certain now to be politically unacceptable in Wales and Scotland. It is too late for the MoJ to have these second thoughts.

As regards my proposed solution, as mentioned in Part 2 it would not in fact prevent members for constituencies outside England voting on England-only matters at all stages of the Bill, including third reading so far as concerns the requirement that to be passed the Bill would need to have the approval of a majority of the members for the whole of the UK (in addition to the requirement for a majority of members at third reading representing the areas to which the Bill or part is to apply).

Things decided for England only will still affect its neighbours in the UK

The MoJ offer as an example the fact that under the Barnett formula a decision to spend money in England has a "knock on" effect for those in Scotland, who will automatically receive a proportion of the expenditure in the block allocation to the Scottish Government. This gives rise to two thoughts. First, is it seriously suggested that members for Scottish constituencies would want to decide an issue for England only not on its merits for the people who would be subject to the decision in question, but instead in order to reduce or increase expenditure in Scotland? It seems very far-fetched, but if that were true, the principles of good government would dictate that it would be a reason for them not to have the final say on the issue, rather than to have it. It would also suggest that what should be changed are the funding arrangements.

Secondly, one likely outcome of the Calman Commission is indeed that funding to the parts of the UK with devolved institutions will change, maybe to an arrangement for assigned revenues (Scotland to get back some categories of the tax revenue it generates) plus a needs-based top up. If that were done, the link is removed - does this mean that the government would then be in favour of a solution to the West Lothian Question?

Probably not1, which raises the question what other things may have the suggested effect. If there are any, one other curious property that these other things must presumably possess is that when decided for Scotland, Wales or Northern Ireland only they do not have any analogous reverse effect on England, because one result of devolution is that, by design, members of Parliament for constituencies in England do not have a say on decision making in the reverse direction on devolved matters outside England.

Cases where UK governments do not have a majority in England are rare

Here, for me, is the rub. What I believe would threaten the future of the UK, and at the very minimum cause unacceptable ill-feeling within its constituent parts, is if a UK government were regularly and persistently to enact (by means of whipping Scottish members) controversial legislation for England (and Wales prior to a successful Assembly Act referendum) on matters devolved in Scotland which is opposed by the majority of members elected for England (and Wales prior to the referendum). The threat would be even worse if there were a SNP government in Scotland pouring petrol on the flames.

This may turn out to be the SNP's best hope. We have of course seen it recently on such matters as top-up fees and some aspects of foundation hospitals, but these require a significant back bench revolt to occur. The situation becomes much more serious were it to happen regularly.

As mentioned in Part 2, the pre-disposing electoral outcome at Westminster for this to happen in its starkest form - a working majority or working coalition in the UK but no majority (or coalition majority) in England (or in England and Wales prior to an Assembly Act referendum) - has according to MoJ's correspondence occurred three times with respect to England since 1945. Given the risks to the union that this would cause post-devolution, it seems to me to count as less than "rare". As I also mentioned in Part 2, the probabilities will have slightly changed since the period up to 2005, because at the 2005 election Scotland returned only slightly more members per head of population than England, rather than nearly 20% more before 2005, but that levelling of the playing field will be likely to be offset by the collapse of Tory representation at Westminster for Scottish constituencies and (to a lesser extent) Welsh ones over the last two Parliaments. The fact of the matter is that at some time or other it will indeed happen again, but this time in the post-devolution world.

Furthermore, if one considers also the case of a government with a working majority in the UK but only a small majority prone to reverses in England (or England and Wales) on controversial issues, this raises the probability of problems arising further. This is difficult to analyse and requires taking a gamble on how many "top-up" fee type revolts the system can stand and how often.

An argument about probabilities in any event cuts both ways. If it were an infrequent event, then acceding to the Very Simple Solution should pose no more worries than not acceding to it.

I hope it is not the case that the Labour party are willing to put the future of the union in jeopardy for their own perceived electoral advantage. I am willing to give them the benefit of the doubt, but in my view they will need to find solutions, rather than pretend the issue does not require an answer.


1 There is a natural advantage to a Labour party administration relying on its Scottish members in the Commons, given that the Conservative party are down to their last member in Scotland (and had none at all in the preceding Parliament).

Devolution and the West Lothian Question - Part 2

For the reasons mentioned in Part 1, I think a solution needs to be found to the West Lothian question if the long term future of the United Kingdom as a political entity is to be assured. In my view current arrangements are, in the long term, simply unsustainable.

However, there is more time to deal with the point than the representational principles to which I referred in Part 1 might lead one to believe. Although I have never seen this articulated in discussions of the West Lothian Question, in the legislative sphere there are two schools of thought:
  • The "how dare they" school - this objects to any role for members at Westminster on matters which, in their constituencies, are devolved to another legislature, whether speaking in debates, putting down amendments or voting. (Its proponents are pragmatic though in the sense that they take the Sewell Convention seriously, as they should.)
  • The pragmatic school - adherents of this school are not too fussed unless the voting of a particular member at Westminster on a matter devolved in the member's own constituency has a decisive effect in England or (until a successful Assembly Act referendum) Wales.
The "how dare they" school would also automatically object to members for, say, constituencies in Scotland taking office as ministers on portfolios now having England-only scope at Westminster, such as health, local government, education, town and country planning, railways and roads. The pragmatic school may or may not do so. Some may feel that it does make a pragmatic difference, because a member for a constituency outside, for example, England will have her constituents' interests at least equally in mind when administering policy, rather than only the interests of those for whom she is making decisions, and might be less mindful that she will have to face her constituents on her decisions at the next election (she won't).

The "how dare they" school, relying on general patriotic sentiment, is likely to become more important over time as the consequences of devolution feed through into national consciousness in England. It goes without saying that a failure to deal with the pragmatist's view on controversial issues will give a substantial boost to the "how dare they" approach should the scenario described below arise.

The pragmatist's view

In the pragmatist's view, the West Lothian Question in its legislative form is not an issue unless the voting of a particular member at Westminster on a matter devolved in the member's own constituency has a decisive effect on the making of laws in England or (until a successful Assembly Act referendum) Wales.

The pre-disposing electoral outcome at Westminster for this to happen in its starkest form - a working majority or working coalition in the UK but no majority (or coalition majority) in England (or in England and Wales prior to an Assembly Act referendum) - has according to MoJ's correspondence referred to in Part 3 occurred three times with respect to England since 1945. The probabilities will have slightly changed since the period up to 2005, because at the 2005 election Scotland returned only slightly more members per head of population than England, rather than nearly 20% more before 2005. However, that levelling of the playing field will be likely to be offset by the collapse of Tory representation at Westminster for Scottish constituencies and (to a lesser extent) Welsh ones over the last two Parliaments.

If one considers also the case of a government with a working majority in the UK but only a small majority prone to reverses in England (or England and Wales) on controversial issues, this raises the probability of problems arising further.

I refer to some of these points again in Part 3. The purpose of introducing the pragmatist's view here is that it is relevant to possible solutions.

A number of solutions to the West Lothian problem have been suggested, from the establishment of a separate Parliament for England equivalent to the Scottish Parliament and Northern Ireland Assembly (with the giving of immediate Assembly Act powers for the Welsh Assembly under a joint referendum with an English referendum); to a modification of MPs' voting rights in the Westminster Parliament; to some form of regional government within England; to reducing representation at Westminster for devolved areas.

Regional government

Devolved regional government in England is certainly possible. A regional government and parliament for, say, the North, the Midlands and the South, based on the Scottish or Welsh model with real governmental functions and some legislative powers, is doable, might be attractive to those in the north of England at least (and also elsewhere if they were given an opportunity to express a view on what region they thought they were in), and would result in the introduction of something approaching federal government within the UK.

The problem is that that level of full-blooded regional devolution within England is unlikely to occur: whilst Whitehall, and Westminster career politicians, are reluctantly willing to give up Scotland, Wales and (for historical reasons) Northern Ireland, it is highly improbable that they will readily give up England, which they see as the political prize and on which their careers and route to power depend. It is probably even more unappealing to David Cameron (and Gordon Brown) than are sour little Englanders. In England as a whole there may not in any event be a majority in favour of carving the country up in this way.

If done properly with genuine and real devolved powers, personally I would like it, but I am realistic enough to know that without a significant change in political culture it is not going to happen.

Mini-devolution on the Prescott lines with assemblies covering smaller areas with very limited executive or policy forming powers (and no legislative powers) lacks any significant public support, relies on arbitrary boundaries not representing local loyalties, and is based on the conception that the presence of the Mayor of London and London Assembly, which together comprise a reincarnated GLC with a few knobs on, means that the West Lothian Question is no longer an issue for those living in Greater London. It was a nice try on John Prescott's part, and has the advantage of not threatening the political establishment, but is probably doomed to failure first as unwanted and secondly as not addressing the problem. Come the man, come the policy.

An English Parliament

Whether there should be an English Parliament generally generates more heat than light. The argument traditionally ranged against it is that an English Parliament would command such a large proportion of the UK by population and economic activity that it would dominate. I have never wholly got to grips with that argument, as viewed on those terms England dominates already, so no change there. Whilst some, but by no means all, polls seem to show that more people in England want it than not, it is not clear that this is more than a relatively unformed preference (which is probably why polls differ on the point), but since all mainstream parties oppose it, in the short to medium term we are unlikely to find out either way.

In its favour, which is why it might well happen in the long term (but that means long term - 30 years maybe), it does not fracture structures in the same way that full-on regionalisation would. One can see the existing political forms transferring relatively seamlessly into English institutions. Also in its favour is that it brings the West Lothian Question to an end at a stroke, including dealing with the "how dare they" school of objection.

A significant problem (from my perspective) is none of the above - it seems to me to create another layer of bureaucracy without significantly driving down decision making to any degree. In short, there would be more people to spend taxpayers' money on making themselves feel important. Do we really want both Westminster (UK) MPs and MEngPs politicking around at our expense - I don't. It is easy to add bureaucracy, and much more difficult to remove it.

Reducing representation at Westminster in devolved areas

The idea here is that Scotland would return less members to Parliament per head of population than England, and ditto Wales if a successful Assembly Act referendum were held.

This is precedented - it was the solution adopted when the Stormont Parliament was established in 1920 until direct rule in 1972. People in Northern Ireland returned less members per head of population than in other parts of the UK.

The main objection to this is that it misses the mark, by still giving (albeit a lesser number of) members' voting rights in England on devolved matters, whilst also inadequately representing the parts of the UK where there are devolved legislatures on UK reserved issues such as UK taxation, energy supply, defence and foreign affairs. These weaknesses seem to me to be fatal.

Either of the other three possible solutions seem much to be preferred.

Revised voting arrangements at Westminster

This is the "English/Welsh votes for English/Welsh laws" solution. It is favoured by the Conservatives in some form, it appears. Kenneth Clark has chaired a working party with proposals which reported in July this year (Report of the Conservative Task Force "Answering the Question: Devolution, the West Lothian Question and the Future of the Union").

The Kenneth Clark proposals, which involve restricted voting at Public Bill Committee and Report stages, seem to me to be too complicated, and whilst I regard the current government's arguments for the status quo as poor (see Part 3), there does seem to me to be some force in the point made by others, which the Ministry of Justice do not make in that correspondence (perhaps because I was not proposing it), that they would encourage or induce a Parliament within a Parliament. They are similar to the "in and out" proposals examined at the time of (unsuccessful) Bills for Irish home rule at the end of the 19th century, except that all members of Parliament would participate at second and third reading stages.

Whilst that is not necessarily wrong - it is difficult to believe that new political forms could not in due course develop to accommodate them - the British constitution is intensely practical and it seems better to try out more straightforward solutions and see how they work when put to the test.

I have a Very Simple Solution (TM), which is to borrow from the precedent of the House of Lords, namely to confer the power to delay legislation for a session.

I think an arrangement could be devised that if at third reading a particular Bill or separate part of a Bill were not to receive the approval of the majority of members for the countries to which the laws are to apply, then it could only be passed by enactment of the same Bill or part in the following session. That would allow the government to govern, whilst also respecting the position of those in England or Wales and their representatives. This approach may possibly also need to be applied to the Commons Consideration of Lords Amendments stage of Bills originating in the Commons, by taking a further "in principle" vote at that stage, but that is a matter of finesse.

Those who get particularly upset about the West Lothian Question will probably argue that a vote at third reading should be decisive, without leaving the government the opportunity of enacting the same legislation against the wishes of the majority in the following session. I am relatively agnostic about this - forcing a Bill rejected by the Lords through under the Parliament Act is a rare occurrence, and were it to happen in relation to England and/or Wales under my proposal the electorate in England or Wales would be likely to take notice of it at the next election; the government would therefore be expected to have to come up with a pretty good explanation when doing so. In my view whether a third reading vote should be decisive or be subject to being overridden in the next session should be decided on what would best hold the union together and minimise resentment between people in England and people in Scotland (and elsewhere in the UK) caused by asymmetrical devolution.

Looking at the point from a wider perspective, on the one hand, providing a "Parliament Act" kind of procedure would lessen the prospect of a Parliament within a Parliament developing if that were thought to be undesirable - at the end of the day the government would be able to call the shots, where it really wanted to. On the other hand, not allowing rejection of a Bill or part of a Bill to be overridden in the next session would encourage governments in office and oppositions to develop a minimum level of consensus as employed in many other parts of the European Union. That would, it seems to me, be healthy, but with Whitehall and Westminster so used to the hard wiring of the legislature with the executive in the UK as to be part of their DNA at present, that may require too much political sophistication too soon.

It should be noted that either approach to my Very Simple Solution would still give members in Scotland and Northern Ireland a full say on England or Wales-only legislation, and a Bill or separate part of a Bill could still not pass at third reading without a majority of UK members. That might also raise the ire of those particularly upset about the West Lothian Question, but neither could it pass at third reading first time around without there also being a majority within the part of the UK to which the Bill applies.

The extent of a Bill or separate part of a Bill can be certified by the Speaker. It used to be done before devolution for the purposes of the Scottish Grand Committee. Various drafting conventions about how a Bill is divided into parts may be required so as to enable separate treatment in this way, but this is nothing that the flexibility of Parliamentary procedure (and the excellent drafting skills at the Office of the Parliamentary Counsel) could not manage.

This proposal might, depending on taste, also be accompanied by a convention that only a member for an English constituency should be a minister in the Commons for an England-only portfolio - a kind of reverse Sewell Convention. That would not be necessary for my proposal to work however.

Devolution and the West Lothian Question - Part 1

The background
to devolution

The so-called "West Lothian Question" arises from non-uniform devolution within the United Kingdom, although as the name suggests it originates from devolution proposals for Scotland (in fact, those current in the 1970s).

Although Scotland has for over a thousand years retained (and still retains) its own legal system, the union with England and Wales made by the Acts of Union of 1707 instituted a sharing of legislative and executive sovereignty with England and Wales in the Parliament at Westminster. The Scotland Act 1998 changed this by establishing the Scottish Parliament with legislative autonomy for all but certain "reserved matters". This includes legislative power in health, education, transport (except air transport), local government, planning and development, and most areas of the criminal law. The 1998 Act also established the Scottish Executive, which now calls itself the Scottish Government since the Scottish National Party became the largest party in the Parliament following the last Scottish election in 2007 (albeit without a majority).

Northern Ireland has had a Parliament at Stormont since the enactment of the Government of Ireland Act 1920, further formalised with the creation of the Irish Free State in 1922 (the progenitor of the present Republic of Ireland), although there was direct rule from Westminster from 1972 because of civil strife between the communities. The Northern Ireland Assembly is the latest incarnation of the Stormont Parliament, being established by the Northern Ireland Act 1998 following the signing of the Good Friday Agreement. It has a similar degree of legislative autonomy to the Scottish Parliament, and indeed somewhat wider powers if the Secretary of State for Northern Ireland consents (with the Secretary of State's consent it may enact legislation on reserved matters provided they do not fall within a special category of reserved matters described as "excepted" matters).

Wales has constitutionally been considered to be a part of England for most purposes since the 15th or 16th century and certainly following the Glorious Revolution of 1688, and since then has had a single legal system with England. However, under the Government of Wales Acts of 1998 and 2006, there is now a Welsh Assembly with limited legislative power to pass Assembly Measures (the exercise of which is the subject of Orders in Council under Part 3 of the 2006 Act) and an Assembly Government. Under Part 4 of the 2006 Act the Assembly may, by a vote of two-thirds of all its members, hold a referendum in Wales under which it may acquire wider "Assembly Act" powers similar to those of the Scottish Parliament and Northern Ireland Assembly. The Assembly Government is at present a coalition of the Labour party and Plaid Cymru (the Welsh nationalist party), under which the Labour party has committed to support the holding of such a referendum by 2011. Sensing a stirring of the pot in England, it may well renege on that, and even if it doesn't a change of UK government is quite likely before then.

Formally, the Westminster Parliament still retains legislative power for the whole of the United Kingdom even in relation to devolved matters, but it does not in fact legislate for Scotland on devolved matters without the consent of the Scottish Parliament by virtue of the "Sewell Convention" - to the point that in 2004 the UK government apologised to the Scottish Parliament for legislating in Scotland on a minor housing matter without consent by oversight (an Act concerning mobile homes was amended in the UK Parliament thinking it applied to England and Wales only when it didn't - the irony of Scottish members voting on supposedly England/Wales-only legislation seemed to escape everyone). That consent is now rarely given in relation to Scotland on other than private member Bills (which normally make no progress) and would not be given in any event by the Scottish Government unless it were to agree with the proposals of the UK government. Similar principles apply in Northern Ireland while there is a functioning government under the 1998 Act in effect.

The West Lothian Question

There is no equivalent devolution for England. In addition members of the Westminster Parliament for Scotland, Northern Ireland and Wales retain full competence to decide laws in England, and to hold office as ministers in England in relation to matters wholly devolved in their own constituencies.

In short, members of Parliament for constituencies in Scotland, Wales or Northern Ireland may take decisions for England, both as legislators and as members of the executive branch of government, even where they no longer do so for their own constituencies because of devolution. This is the issue referred to as the West Lothian Question (although it could equally be called the West Belfast question or, particularly following a successful Assembly Act referendum, the West Clwyd question).

From the perspective of representational democracy this gives rise to two problems. First, it means that members of Parliament may take decisions as legislators or as members of the executive for which they bear no accountability to their electorate (their constituents) because they do not affect their electorate. Secondly, and this is really the other side of the same coin, people in England may be made subject to laws or decisions on matters devolved elsewhere which are opposed by the majority of their representatives in Parliament.

This might be thought of as unfair (and most reasonable people would I think recognise that it is), although as discussed in Part 2 it operates on two different levels, namely those of principle and pragmatics. However, it should be realised that from the nationalist point of view, it is not necessarily a unique unfairness within the British constitution. Under the various Acts of Union, voluntarily assented to in the case of Scotland, some may have perceived an unfairness to the extent that people in England would have been able by their numerical superiority to impose policy on other nations in the UK. I suspect that some proponents of the current devolution 'status quo' view current arrangements as a redistribution of unfairnesses, by creating circumstances where people in other parts of the UK can in certain circumstances impose policy on people in England in areas where they are the sole arbiters of policy for themselves - a kind of balancing of two injustices such that at least they reciprocate in some way satisfying to them.

However, this is a particularly tribal view of the United Kingdom. It assumes that people in England have some common political animus that might make them to want to dominate, and that other parts of the UK have a corresponding animus with respect to people in England - that we are not "in it together". It seems to me to be a weak argument for tolerating the obvious democratic deficiencies of the current arrangements. It would also mean that there is a constitutional instability within the United Kingdom which threatens the cause for it to exist in the first place.

Thursday, 20 November 2008

Privacy, human rights and horizontality - unacceptable judicial activism? (aka the Bluffer's Guide to Press Freedom)


Mr Justice Eady said the following in his judgment in Max Mosley's privacy case against the News of the World (Mosley v News Group Newspapers Limited), when giving judgment in July this year, no doubt knowing what was likely to lie ahead in the way of criticism of judicial activism:
"It is not simply a matter of “unaccountable” judges running amok. Parliament enacted the [Human Rights Act 1998] which requires [the privacy values of the European Convention on Human Rights] to be acknowledged and enforced by the courts."

Some commentators, particularly some politicians and newspapers editors, have indeed expressed concerns about judicial activism. Earlier this month in a speech to the Society of Editors, Daily Mail editor Paul Dacre expressed the concern of some in the newspaper industry, describing Mr Justice Eady's decision as creating a new privacy law via the back door, without democratic accountability. In other words, he sees the court as creating new law in the sensitive area of press freedom which should be left to our elected representatives in Parliament. He gave a stinging criticism of the judge personally for judicial activism.

Is this unfair, and was Eady J correct to say that, so far as concerns the law, he was driven to this? Well in one way or another he was, whether (as he said) by virtue of the enactment of the 1998 Act, or by virtue of the ordinary common law principles of confidentiality as previously developed by the courts. The issue is really how far around the houses you need to go to get there. In privacy, the courts have taken the scenic route rather than the direct route, as explained below.

Is then the legal system wrong? Possibly, depending on what it is thought the judicial branch of government is there to do, and how much scope it is thought it should have to develop the common law (a common law of which Mr Dacre spoke approvingly incidentally). However, it is worth noting that the judgment, and the one in the earlier Campbell case (see below), brings UK jurisprudence on privacy into line with that of most other civilised countries.


Who would guess that what lawyers call horizontality could be so exciting? Horizontality is not about whether one should adopt the missionary position, but whether the rights set out in the Convention and its subsequent protocols are enforceable not just against public authorities (what is called "verticality"), but also directly between individuals or other private bodies without any further legislative intervention by Parliament being necessary ("horizontality").

The facts of the Mosley case, concerning an article in the News of the World involving his private life, have been well publicised and I will not recite them here. Amongst other things, the newspaper alleged that there was a Nazi theme to the event in question, which Mr Mosley strongly denied, and which Eady J concluded in his judgment was unfounded - this might therefore have grounded an action in defamation, but the proceedings in question were separate ones for breach of confidentiality and privacy. Eady J held that there was an unacceptable and unlawful invasion of Mr Mosley's privacy, contrary to Article 8 of the European Convention on Human Rights, which was not justified in applying the public interest test by virtue of him being President of the FIA.

The 1998 Act incorporates most of the Convention into UK law (it applies throughout the United Kingdom). Article 8 of the Convention provides that "Everyone has the right to respect for his private and family life, his home and his correspondence." In privacy and defamation matters, this needs to be balanced with Article 10, which gives a right to freedom of expression, which applies to the press as to anyone else and under which a public interest test is to be applied.

Section 6(1) of the 1998 Act provides that "It is unlawful for a public authority to act in a way which is incompatible with a Convention right". It is fairly clear what this means for, say, the local council deciding whether to grant planning permission or to take a young child into care. It is also reasonably clear what this obliges public authorities to do when acting under statutory powers: under section 3(1), so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. Where it is not possible to do so, the court can make a declaration of incompatibility for Parliament to pick up and deal with.

But by virtue of section 6(3)(a), "public authority" includes a court or tribunal. What does this oblige the court to do, and in particular does it oblige the court to provide new rights to sue where one individual infringes the Convention rights of another individual in a matter not otherwise regulated by statute? When the Bill for the 1998 Act was being passed, the Government stated that it did not have that effect. It is to be noted in particular that Article 13 of the Convention, giving the right to an effective remedy, is not a Convention right applied by the 1998 Act and therefore is not a matter binding the court under section 6(1). That remains with Parliament, to the extent to which it is not captured by the Articles which are applied by the Act.

The Campbell case

Some legal commentators on the Mosley litigation have said that the chicken flew the coup in Campbell v Mirror Group Newspapers Limited [2004] UKHL 22. This involved an article about Naomi Campbell in the Mirror newspaper. The privacy case arising from the article was heard, and won by Ms Campbell, in the High Court, appealed successfully by the newspaper to the Court of Appeal and then successfully further appealed by Ms Campbell in the House of Lords. It was a split decision in the Lords (3-2) on the issues whether the public interest test for publication was satisfied and whether the information had the necessary quality of confidence, but their Lordships were more or less agreed on the law to be applied to the case. In fact it is apparent from the judgment that the chicken flew the coup when the Human Rights Act 1998 was enacted, and indeed even before then.

The most widely accepted view of the current state of the law on the Convention, as applied by section 6(1) of the 1998 Act, is probably best summarised in the judgment of Baroness Hale in the Campbell case at paragraph 132, where she said:
"The 1998 Act does not create any new cause of action between private persons. But if there is a relevant cause of action applicable, the court as a public authority must act compatibly with both parties' Convention rights."

Given that at common law there is indeed a pre-existing cause of action for breach of confidentiality, held to apply when "the person publishing the information knows or ought to know that there is a reasonable expectation that the information in question will be kept confidential", then as if by magic and a little circularity, Article 8 privacy law had landed.

Others of their Lordships reached the same conclusion on the law albeit by slightly varying routes.

Lord Hoffman (one of the two dissenting judges in the Lords) at paragraph 49 began with the earlier traditional understanding that:
"Even now that the equivalent of article 8 has been enacted as part of English law [by the 1998 Act], it is not directly concerned with the protection of privacy against private persons or corporations. It is, by virtue of section 6 of the 1998 Act, a guarantee of privacy only against public authorities. Although the Convention, as an international instrument, may impose upon the United Kingdom an obligation to take some steps (whether by statute or otherwise) to protect rights of privacy against invasion by private individuals, it does not follow that such an obligation would have any counterpart in domestic law."

However he took the view that there "has been a shift in the centre of gravity of the action for breach of confidence" at common law, which has assimilated similar principles, and that there was now no justification for applying different principles between an individual and a public authority on one hand under the 1998 Act, and between two individuals on the other hand at common law.

Similarly, for Lord Nichol (the other dissenting judge) at paragraph 18, by virtue of the ability of common law confidentiality to move at its own pace and to incorporate Convention privacy principles quite apart from the 1998 Act:
"... it is not necessary to pursue the controversial question whether the European Convention itself has [a] wider effect. Nor is it necessary to decide whether the duty imposed on courts by section 6 of the Human Rights Act 1998 extends to questions of substantive law as distinct from questions of practice and procedure. It is sufficient to recognise that the values underlying articles 8 and 10 are not confined to disputes between individuals and public authorities."

Where we are

The truth is that the common law position on confidentially and privacy had been developing long before the 1998 Act was enacted, from its origins in an action for breach of trust where information is supplied by one person to another on the understanding of confidentiality, to a duty of confidentiality (and indeed privacy) where it is a just and reasonable expectation between those concerned that a duty of confidentiality should arise. Given that in the 1998 Act Parliament had seen fit to apply the privacy principles under the Convention as between a private person and a public authority, there seemed no reason (in the courts' view) why the common law regarding confidentiality should not have similar effect as between individuals.

Such development of the common law by reference to Convention principles has been true of other areas, such as defamation and the "responsible journalism" branch of qualified privilege (Reynolds v Times Newspapers Limited [2001] 2 AC 127), which has been informed but not driven by Article 10 of the Convention. In fact, the Reynolds case shows that the application of Convention rights is not a one-way street against press freedom, as it extended the range of defences available to the press in an action for defamation.

The other point to note is that even if one were to take the view, as some do, that the law relating to the freedom of the press is too sensitive to be one to be developed by judicial initiative, the UK is still a party to the Convention. What would change would be the venue - the proceedings would be against the UK in the European Court of Human Rights for failing to provide an adequate remedy for Convention rights under Article 13. Were Parliament to fill the gap by providing that remedy, for as long as the UK remains a signatory to the Convention it is difficult to see that they could or would do anything other than in effect apply Articles 8 and 10 of the Convention horizontally, as at present done by the courts by judicial initiative. And why not decide it at home rather than in Strasbourg anyway?

Lord Nichol's judgement is the one which most explicitly leaves open the possibility of deciding that section 6 has a wider substantive effect in mandating the horizontality of Convention rights than has up to now been established in Campbell and discussed by Baroness Hale. But given that it is no longer a live issue in privacy cases because of the development of the common law, that will have to await some new area of litigious activity. Much hangs on the significance (if any) to be placed on the fact that the 1998 Act does not apply Article 13 of the Convention - so for whom is that Article going to be unlucky?

Watch this space.


The contents of this commentary have some analogy with the balance between the natural and prerogative powers of the Crown on the one hand, and those conferred on the Crown by statute on the other hand. The government has been consulting on proposals for the further regulation of the prerogative by Parliament and has promised a Bill, presumably to be introduced in the 08/09 session (ie very shortly). I will comment on that, and on the Crown's natural powers and their background, including "Everyman's Guide on How to Declare War", when we see it. Other topics I hope to cover (d.v.) are devolution; contingent and contingency fees and "loser pays" in civil litigation (otherwise known as the personal injury circus); and distributive intellectual property licences (sometimes called "copyleft licences") which I think will make a big impact in the next decade, together with a general commentary on the politico-legal issues du jour as they arise.