Tag Archives: politics

The Prime Minister’s prerogative: Iraq, Syria – and war with Spain

The UK Parliament’s Syria vote offered (and lost) by David Cameron in 2013 suggests that former Prime Minister Tony Blair may have left a remarkable constitutional legacy as a result of the Iraq war – one that affects the United States and possibly even France as well as Britain. Even though British Prime Ministers can declare war and deploy troops abroad under Royal prerogative without any Parliamentary approval, in 2003 Blair sought the backing of Parliament for the Iraq venture. For the first time since the 1950 Korean conflict Parliament had a say (albeit “consultative”) prior to the engagement.

So what is the history of the prerogative power to make war, and has Britain now created a new constitutional precedent that amounts to a new convention?

The prerogative power to make war is one of a number of monarchical powers retained by the Crown as the medieval representative parliamentary system (which began as a means of legitimising tax-raising beyond the Crown’s traditional levies, particularly for wars) grew into a qualified democracy. Those prerogative powers that remain (including appointing governments and the dissolution of Parliament – until the change in the Coalition agreement in 2010) are mostly held by the Prime Minister in the name of the Crown and the relevant Secretaries of State: the Defence Secretary for war-making, the Foreign Secretary for treaty-making and regulating foreign relations (though treaties often have a parliamentary passage of some sort; see below). The Executive (Government) decides on military deployments, not the Legislature (Parliament).

The US President is Commander in Chief of the Armed Forces; the UK Prime Minister derives his/her powers from the Queen who is also Commander in Chief. The fiction is that the Queen’s powers are not exercised by the Prime Minister and Secretaries of State as such but that she is likely to be bound by their advice on such matters so they in effect hold the power.

‘Methinks it’s a very strange thing for a king to consult with his subjects what war he means to undertake. This were the means for his enemies to know what he intends to do’ – Commons Speaker, 1621

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The bedroom tax and Laws’ Law of Non-Intervention

The “bedroom tax” judgment in the High Court is a severe blow to disabled tenants in council and housing association accommodation. But it is more. It is an attempt to redraft and pull back from the UK courts’ willingness to accept challenges to the Government via the European Convention on Human Rights.

In Lord Justice Laws the Government seems to have an anti-Strasbourg champion, ready to return to an age when judges would offer “due deference” to the governmental authorities and intervene in executive or administrative decisions only if they were “manifestly unreasonable”.

Sadly, Laws seems not to consider it “manifestly unreasonable” to impose what amounts to a fine on disabled tenants who need more space in their homes than the average person.

Laws takes a strong constitutional stance against judicial intervention in government decisions in his rejection of claims that the bedroom tax is discriminatory in R (MA and Others) v Secretary of State for Work and Pensions (30 July 2013).

His judgment looks like a remarkable attempt to rein in the courts when considering decisions made in the political sphere. He states:

“The cause of constitutional rights is not best served by an ambitious expansion of judicial territory for the courts are not the proper arbiters of public controversy.”

Judicial restraint requires that judges limit themselves to considering the process of decision-making, not the outcome of the decision itself – otherwise Laws fears judges could end up reviewing the substantive merits of almost all public decision-making – whether decisions are morally right or wrong rather than simply whether they were properly arrived at.

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Edmondson et al: News International hacking judgment and GCHQ scandal

Note: Since publication of this post Privacy International has announced a legal challenge against the GCHQ programme based on European Court of Human Rights proportionality principles.

The first legal skirmish in the Rebekah Brooks/Andrew Coulson phone hacking saga has produced a Court of Appeal judgment with wider ramifications – which could spread into the burgeoning bugging scandal surrounding Britain’s “spy-station” GCHQ.

The phone hacking case need not detain us too long. Edmondson et al v Regina was brought by various top former News International personnel facing conspiracy charges regarding alleged phone hacking, among them Brooks and Coulson. Their contention was that the offence they are accused of, conspiring to intercept other people’s mobile phone voicemail messages, should be dismissed because the alleged hacking was not actually unlawful under the Regulation of Investigatory Powers Act 2000.

This is why the case is relevant to GCHQ and the revelations by Edward Snowden of alleged trawling and storing of private communications: Section 1(1) of RIPA says: “It shall be an offence for a person intentionally and without lawful authority to intercept, at any place in the United Kingdom, any communication in the course of its transmission by means of – 
(a) a public postal service; or
 (b) a public telecommunication system.” (Emphasis added.)

The Edmondson defendants claimed no one could be alleged to have “intercepted” messages that had already arrived at the voicemail inbox and been opened for reading by the recipients since they were no longer “in transmission”. They cited S.2(7) of RIPA which says:

For the purposes of this section the times while a communication is being transmitted by means of a telecommunication system shall be taken to include any time when the system by means of which the communication is being, or has been, transmitted is used for storing it in a manner that enables the intended recipient to collect it or otherwise to have access to it.”

The defendants argued that once it had been “accessed” (listened to in the case of a phone message or, presumably, opened if it is a text or email) it is no longer “in the course of its transmission”.

The judges, headed by the Lord Chief Justice Lord Judge, rejected this argument. “Interception” included interception of messages saved on the voicemail facility. The judgment notes:

In this regard it is significant that the intended recipient cannot gain access to the voicemail message without resort to the telecommunication system, but is totally dependent on the system. In these circumstances, there is no good reason why the first receipt of the communication should be considered as bringing the transmission to an end nor is there any support for this within the statutory language. We consider that it is readily apparent from the plain words that it was the intention of Parliament that section 2(7) should extend the course of transmission to include this situation.”

So the appeal was dismissed and the substantive case against the defendants proceeded. Ultimately Coulson was found guilty of conspiring to hack phones while Brooks was acquited (Guardian report).

Issues for GCHQ
The wider implications, however, are that the court has clarified that, no matter where in the process a phone message is captured, it will have been intercepted somewhere in the transmission system and hence potentially unlawfully.

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Bingham’s rule of law: outdated, utopian – and desperately needed now

How useful is Tom Bingham’s view of the rule of law? Through his lectures and book on the subject the former law lord unseated AV Dicey as the go-to guy of the Rule of Law. But what did he bring to it that makes us prefer his view to that of the formalistic and somewhat stuffy old Victorian predecessor?

Dicey’s formula can be summed up thus:

“a. No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the courts of the land;
b. No man is above the law; whatever his rank or condition is, he is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals;
c. It is because England has a constitution that the personal rights and liberties of individuals are always secure. This security comes from being able to go to the law courts to remedy any breach of these rights and liberties.”

Certainly the idea has gained many accretions since Dicey – possibly even been “reduced to incoherence” according to one commentator: “It would not be difficult to show that the phrase ‘the Rule of Law’ has become meaningless thanks to ideological abuse and general over-use”, (Judith Shklar, Political Thought and Political Thinkers, chap 2).

For the purposes of this piece we are talking in particular of Shklar’s Montesquieu version of the rule of law: “Those institutional restraints that prevent governmental agents from oppressing the rest of society”.

The concept has gathered various provisions, thanks to Bingham and others, any or all of which are devoutly to be wished but which don’t necessarily have the real constitutional weight of a “limited number of protective arrangements … meant to benefit every member of society” (Shklar again).

Lord Bingham, in the 2006 Sir David Williams Lecture, starts here: “All persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts”. But he adds to this a set of sub-rules without which he thinks the rule of law cannot (or does not) exist. None of these in fact constitute constitutional principles, nor have they ever done so.

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Criminalisation of squatting: how protection of property could crumble

Laws that seem to be pure commonsense when the press is demanding them and MPs making stirring parliamentary speeches backing them can soon look very different when they come into force and are tested to destruction in the courts. This will inevitably be the case with the criminalisation of squatting provision in the Legal Aid Sentencing and Punishment of Offenders Act 2012.

Criminalisation will have unintended consequences as a result of squatters’ response but also the response of property owners and the police – none of which can be predicted.

There follows a list of such actual and potential unexpected outcomes which it is intended will be updated as more become apparent.

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Lords committee issues new criticism of Theresa May over immigration

A UK Parliamentary committee has issued further criticism of Home Secretary Theresa May’s attempts to get flawed British immigration rules accepted by the courts.

May placed 290 pages of immigration code of practice rules in the House of Lords in an apparent kneejerk reaction to the Alvi case where the rules were struck down by the Supreme Court (reported here).

The court took the view that the Home Office was trying to treat the code as law for the purpose of barring immigration and for deportations even though they had passed through no proper parliamentary procedure. The day after the case, on 19 July, May sought to gain some sort of parliamentary sanction for the code by placing it before the Lords – a few days before their summer recess (the House of Commons was no longer sitting).

The House of Lords Secondary Legislation Scrutiny Committee has questioned this latest move on the grounds that the rules “may imperfectly achieve their policy objective”. Under the 1971 Immigration Act S.3(2) to count as legislation, such rules should lie in both Houses of Parliament for 40 days to allow parliamentarians to object or debate them if they wish – the so-called “negative procedure”.

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Theresa May’s meaningless statement on immigration rules

A UK parliamentary committee has expressed concerns about the procedure used by Home Secretary Theresa May to give enhanced democratic credibility to tougher action on immigration.

Her new Immigration Rules have been presented to Parliament in a constitutionally innovative manner that may have no legal validity. This involved not simply passing the rules through the two Houses of Parliament by the traditional means for secondary legislation but having an additional debate (with no vote) in the House of Commons (but not the House of Lords) to assert the legal power of the Rules against the claims of international human rights law.

The intention behind the Statement of Changes in Immigration Rules (HC 194) was to use the debate “as a vehicle to gain Parliament’s endorsement of its approach to Article 8 of European Convention on Human Rights to assist the courts when deciding appeals on immigration matters”, noted the Secondary Legislation Scrutiny Committee of the House of Lords. (Committee Report 4.3 pdf)

However, the committee implies that the procedure was of dubious validity and constitutionally unlikely to have the desired effect – to force judges to reduce their reliance on Article 8(1) when judging immigration and deportation cases.

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Lord Pannick opposes plan for Lord Chancellor to sit on judicial appointments panels

Lord Pannick has introduced an amendment to the Crime and Courts Bill that would remove a new requirement that the Lord Chancellor (Secretary of State for Justice, currently Kenneth Clarke) sit on the panel to appoint the President of the Supreme Court and Lord Chief Justice.

Lord Pannick told the House of Lords on 27 June: My Lords, in moving Amendment 117, I shall also speak to Amendments 118, 131 and 132, which address an issue of constitutional concern. The Bill would allow the Lord Chancellor to sit as a member of the appointments commission for the posts of Lord Chief Justice and president of the Supreme Court. The amendments would deny the Lord Chancellor such a role …

At present the Lord Chancellor can ask the appointments commission to think again about a proposed appointee, but the Lord Chancellor is not a member of the commission. The Constitutional Reform Act 2005 rightly recognised the need for a clearer separation of powers between the Executive and the judiciary. The change proposed by the Government would regrettably go back on that and it would have substantial disadvantages. First, it would increase the danger of political partiality in the appointment of a senior judge. I recognise, as I am sure will all noble Lords, that the present Lord Chancellor would not contemplate acting in such a manner, but even Mr Kenneth Clarke cannot continue in political life for ever. He is already above the retirement age for judges – a matter that we will be discussing later this afternoon. It would be highly undesirable to give a future Lord Chancellor the power so actively to influence the appointment of the senior judiciary.

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Can Pepper v Hart save Julian Assange?

The UK Supreme Court Julian Assange European Arrest Warrant case has been delayed for two weeks for new legal arguments to be put regarding the meaning of the UK legislation that enacted the EAW system. Those arguments may draw on the minority pro-Assange judgment of Lord Mance who made interesting use of the principle in Pepper v Hart [1992] UKHL 3 (summarised below) – that judges may consult speeches in Parliament to establish the purpose or meaning of statutes.

The issue at stake is whether “judicial authority” (the words used in the 2003 Extradition Act) for the purpose of issuing the arrest warrants can include mere prosecuting authorities, as is the practice in some European countries.

Sweden’s prosecutors are seeking Assange’s arrest to question him on allegations of sexual offences. If UK law requires a court or judge to issue the warrants, then Sweden cannot have him. It is a question of how the words “judicial authority” are interpreted, and Mance cited parliamentary debate on the Extradition Bill in Hansard to suggest that MPs were clear in their minds that they were voting for judges and courts, not for prosecutors. Continue reading

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