Graham Allen MP, Chair of the Political and Constitutional Reform Committee

The Constitution Society welcomes the report as an important contribution to the campaign for a general improvement in the quality of legislation. [2] We especially endorse the fourth of the report’s five key recommendations:  that a test for identifying constitutional legislation should be agreed between Parliament and the Government.

In evidence to the Committee in 2012, the Society argued that constitutional legislation should be distinguished from ordinary legislation for three reasons[3]:

-        Constitutional legislation is the architecture of the state. The elements of the constitution are unavoidably interconnected, so an alteration in one part of the building can have unforeseen consequences in other parts.

-        Most major constitutional legislation has an effective presumption of irreversibility.

-        A practice has arisen under the current government of employing ‘manner and form’ restrictions where a piece of legislation passed by an ordinary majority imposes restrictions on future Parliaments regarding how that legislation is to be implemented or repealed.

In its report, PCRC endorses this principle and concludes as follows[4]:

• Constitutional law is qualitatively different from other types of legislation. We agree with the House of Lords Constitution Committee that there is currently no acceptable watertight definition of what constitutes constitutional legislation. However, we consider that it can be identified through experience and commonsense, and that this is encapsulated in Lord Norton’s “2Ps” test (does it affect a principal part of the constitution, and does it raise an important issue of principle), and the list of typical features of constitutional legislation suggested by Professor Sir John Baker. We await the Constitution Society’s work to formulate a definition.

• We have considered the Government’s response to the House of Lords Constitution Committee Report, and disagree that a watertight definition is needed before making any changes to processes for preparing and legislating in the area of constitutional law.

• The current ad hoc process of identifying which bills to take on the Floor of the House of Commons in a Committee of the whole House lacks transparency: it is clear that differentiation is taking place in order to decide which bills are to be considered by a Committee of the whole House, but the decision-making process is unclear. We recommend that the Government adopts our suggestion and applies Lord Norton’s “2Ps” test, together with the list of typical features of constitutional legislation as suggested by Professor Sir John Baker, or at the very least sets out why it does not agree with this approach. We also recommend that the Government follows our draft Code of Legislative Standards and explains whether the test has been met for each piece of legislation.

The Constitution Society’s working party on Constitutional Definition [5], referenced in the PCRC report, is currently examining an appropriate test to distinguish major constitutional legislation and how such a test might be embedded in Parliamentary procedures. We hope that the working party will publish its conclusions in the autumn.  

The most important aspect of Parliamentary privilege is freedom of speech in Parliament which derives from the 1689 Bill of Rights. It is a right which can be justified on simple functional grounds: MPs cannot do their job unless they can speak freely without fear of being prosecuted or dragged through the courts by wealthy litigants. For that reason it is essential to maintain Parliamentary privilege, something that is recognised in all modern, democratic constitutional systems.

A view has gained ground in recent years that the doctrine of Privilege should be brought up to date and codified in a new statute [2] . It is argued that the definition of Privilege in Article IX of the Bill of Rights is uncertain and ambiguous. More generally, a modern doctrine of Privilege should not rely on a 300-year old statute whose main purpose was to assert Parliament’s rights against the monarch, when many believe that the main threat to Parliament today is from an over-assertive judiciary.

A  Joint Committee of Parliament is currently examining the whole question. It seems that most members of the Committee, and a majority of MPs generally, oppose codification. They believe the courts’ interpretation of the Bill of Rights continues to provide a functional basis for the application of Privilege. It is widely agreed that the judges have no appetite for confronting Parliament by attempting to pick holes in Article IX. In other words, if it ain’t broke, don’t fix it.

Richard Gordon and Malcolm Jack’s new paper [3] on the codification of Privilege is very timely and the authors are especially well qualified to tackle this difficult and controversial question. Sir Malcolm Jack was Clerk of the House of Commons from 2006-2011; Richard Gordon QC is a leading practitioner in constitutional and administrative law who has written widely on constitutional issues. The paper provides a lucid and balanced exposition of the history and basis of contemporary privilege and the arguments for and against codification. Their conclusions are potentially alarming for upholders of the status quo.    

Gordon and Jack argue that, while the senior judiciary has no wish to interfere in the affairs  of Parliament, there is now a significant danger that they may be compelled to do so by actions brought by aggrieved third parties who believe their rights have been infringed by members of Parliament.   

The re-invigoration of Select Committees since the 2010 election is generally welcome.   However as a consequence of this new assertiveness it must now be far more likely that sooner or later an offended non-member will seek legal redress. So far, most of those on the receiving end of Select Committee histrionics have been widely viewed as – to use the term of art – Obvious Wrong ‘Uns: bankers; corporate tax-dodgers and phone-hacking tabloid journalists.  For perhaps understandable reasons, they have not sought to restore their reputations in the courts. However it is not difficult to conceive of instances in which an offended witness might take a different view. Here are three possible situations:

• Select Committees can make serious and damaging allegations against individuals without following any due process. A statement by a committee of Parliament that, for example, a senior businessman was not a fit and proper person to be a director of a public company might cause very material damage to that person’s livelihood and reputation.

• Select Committees may seek to compel witnesses to make disclosures which breach statutory or contractual confidentiality constraints. A witness who made such disclosures to avoid being held in contempt might be subject to judicial review in the case of a public official or an action for breach of contract in the case of an employee.

• A reluctant witness might apply to the court to protect him from a Select Committee summons on the grounds that he could not be compelled to appear and answer questions in breach of his common law right against self-incrimination.

Supporters of codification argue that clarifying the scope of privilege in a new statute would both offer appropriate protection to third party rights and make Select Committees more effective in dealing with evasive and recalcitrant witnesses, something that the public is likely to support.

While Select Committee activities are the most obvious source of contentious proceedings involving issues of privilege, Gordon and Jack also explore the significant difficulties around the possible use of statements made in Parliament in civil and criminal such proceedings.

The implementation of the Human Rights Act provides further scope for potential challenges to privilege. There have been some disturbing episodes in which persons whose anonymity was protected by super-injunction have been named by MPs in proceedings in the House.  While the victims of these public humiliations may have been individuals held in low public esteem, even love rat footballers have a right to private life under Article 8 of the European Convention. Had the footballer in question chosen to take the matter to Strasburg it is far from certain that the Court would have accepted that a doctrine of Parliamentary Privilege derived from a 300-year old statute could be the basis for a lawful infringement of his Article 8 rights.      

While at the moment there appears to be an uneasy truce between Parliament and the courts, issues raised in the paper show reasons why it could break down. Judges and politicians do not seem to be speaking the same language: few MPs now have a legal background and some judges have expressed less than flattering views about the political class. A thread that should unite them, and at the same time gain widespread public support, would be a clear acknowledgment of the importance of the rule of law. A new privileges statute would be a way of creating such respect for what is an essential constitutional protection in a modern democracy.

Nat le Roux, Director of The Constitution Society

May 2013

Our latest report, Parliamentary privilege: Evolution or codification, can be downloaded for free here.

As patron of YPC, Mr Bercow spoke of the importance of neutrality and some of the changes he has brought to the Commons, as well as several more he would like to implement. 

On the British constitution, Mr Bercow explained that he believed that traditions and practices that work should never be got rid of for the sake of ‘reform’ – but when there is a case for change he supported looking at what could be done. 

The audience put some interesting questions to Mr Bercow. The Speaker’s answers offered what he said was an “honest politician’s views” and that he avoided “sitting on the fence” despite his neutrality. For instance, Mr Bercow voiced support for same-sex marriage, suggested Britain was best placed to remain in the European Union, rejected a call for separation of powers, and advocated the doctrine of Parliamentary Supremacy as remaining potent and relevant.

Mr Bercow rejected the notion of a ‘golden age’ for Parliamentary democracy and argued that most MPs are hardworking and committed to making the United Kingdom a better place. He also noted the importance of his ongoing role as a constituency MP and the need to balance non-partisanship with remaining an advocate for his constituents. 

The full video will be on the site in due course. In the meanwhile, the next date for YPC is on July 18th when a discussion on the future of Britain in the European Union will be held. 

The Constitution Society is grateful to the European Parliament Information Office for hosting the event, Parliamentary Outreach for their assistance, Mr Bercow for taking the time to speak to us, and of course the large audience of interested and engaged young people. 

The Constitution Society’s latest paper – Parliamentary Privilege: Evolution or codification - will be formally launched tonight at a dinner for select guests. However the PDF is now available to download here. The authors are Richard Gordon QC, and Sir Malcolm Jack, former Clerk of the House of Commons.

Parliamentary privilege is vital to the effective running of a modern, democratic Parliament and free speech in Parliament is still a crucial component. Today an over-powerful judiciary could be considered Parliament’s main ‘adversary’. In modern times the context, within which parliamentary privilege works, has changed greatly.

This paper examines how best to convince the public that parliamentary privilege remains essential to a twenty-first century parliament. It considers options such as principles legislation on the issue or leaving things alone. It considers the Government’s Green Paper on Parliamentary privilege and asks how real is the danger of judicial activism in the affairs of Parliament and whether that danger is increased or diminished by a new statute.

For any queries on the paper or the launch please email James Hallwood via james@constitutionsoc.org.uk

Parliamentary Privilege: Evolution or codification.

Written by eminent barrister, Richard Gordon QC, and Sir Malcolm Jack, former Clerk of the House of Commons (2006-2011), the paper looks at the critical constitutional issue of Parliamentary privilege from a number of interesting angles.

A formal launch on Thursday 9th May will be attended by parliamentarians, journalists and academics for a discussion on the paper’s key findings.

Until then, the paper is embargoed but a preview can be found from Joshua Rozenberg on the Guardian Law website.

Once the paper has been distributed a PDF copy will be available from the website. 

For any queries on the paper or the launch please email James Hallwood via james@constitutionsoc.org.uk

YPC is The Constitution Society’s initiative to inform today’s young people and tomorrow’s leaders on the workings of the British constitution and the arms and levers of our state.

Bringing young people from a broad range of experience and backgrounds together with key figures in the workings of the British constitution, we aim to better prepare the politicians and civil servants of tomorrow.

Mr Speaker will be delivering a talk on the role of Parliament in the British constitution on Monday 13th May at 5pm in Westminster. To register for a place or for any queries, please email ypc@consoc.org.uk

The revelation that Ms Brown had once sent violent, racist, and homophobic tweets made her position untenable, but her resignation does not usher in the end of the role of a ‘Youth Police Commissioner’ in Kent. Introduced by Kent’s Independent PCC, Ann Barnes, the role sought to engage the police with young people – a replacement will be appointed in due course. This was a position created in Kent alone and at the behest of its PCC. 

Questions of vetting, transparency, and the powers of PCCs are now in the spotlight. Making summary appointments is one of the important powers that PCCs have been granted, but until now it has been little explored. The landmark election of PCCs would have been the ideal opportunity for a constitutional discussion on the rights and wrongs of democratisating key roles – yet the election did little to explore the constitutional implications of this new position and the low turnout (below 15%) spoke for the lack of enthusiasm or clarity on the remit of the office. 

 If something good can come out of the unfortunate experience of Paris Brown, it could be a wider awareness of the role and powers of PCCs and the constitutional implications. The Constitution Society supported an important APPG meeting on this topic with UCL’s Dr Colin Provost, but more must be done to improve public discussion on what PCCs ‘are for’ and ‘do’. The Constitution Society hopes that by May 2016 the second round of PCC elections will be more informed and wider known. 

Eleanor has a long been at the forefront of constitutional discussions in Parliament, serving as Frontbench spokesman on Constitutional Affairs in 2000, a key member of the Political and Constitutional Reform Committee since 2010 and an important voice on the Joint Committee on House of Lords Reform. Eleanor is also the Chairman of the 1922′s Sub-Committee on Home and Constitutional Affairs and the government’s Special Representative to Gibraltar.

Eleanor joins Labour Peer, Lord Howarth of Newport and former Liberal Democrat MP, David Howarth, bringing political balance to our Advisory Board and key expertise. 

We very much look forward to working with Eleanor in the future.

To see the rest of our Advisory Board, our Trustees, and staff click here. 

The extended sojourn of Abu Qatada in the U.K. on the basis of Article three of the European Convention on Human rights, has certainly offended those key ‘British’ senses of decency, justice and common sense, and does not Parliament reign Sovereign here?

The most common sentiment among those who would like to get rid of the Human Right’s Act, and pull out of the convention which it enshrines in British law, is that the principles contained within the convention itself are difficult to disagree with, but that Strasbourg, in the words of May, “keeps moving the goal posts”; and on first examination it is easy to sympathise with this point.

Article three- the one which relates to Qatada- reads:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

 Of course few people today would fully oppose that principle; however there is nothing in it which explicitly prohibits a country from deporting an individual to another country where torture is used. It is not self evident that in doing so the original country is submitting the individual to torture, and in any case, are the rights and wrongs of the legal system of another country our business?

However to pull out of the Convention all together on the basis of one issue which has caught the public’s attention would be a rash, and glosses to glibly over the very purpose of such a convention.

The European Convention on Human Rights was drafted in 1950 by the Council of Europe in order to protect the fundamental freedoms of the individual in case they should be threatened by the state. In the U.K. thanks to many years of relatively liberal government, this is something far easier to forget than in countries which have suffered great atrocities.

However we need look no further than Eastern Europe for a stark warning about how things can easily become very different. In Hungary the Prime Minister Viktor Orban has been steadily trying to tighten his grip over the levers of power, and to introduce concerning legislation such as a law which prevents any media not controlled by the state from carrying political messages.

Until now the main thorn in his side was the country’s constitutional court; however that opposition has recently been nullified. As a result the only strong official voices arguing against Orban are those of the Council of Europe.

It is an unavoidable part of being part of an agreement which encompasses many nations, that there are sometimes going to be judgements which many don’t like. However, if the people of Europe respect such decisions, then when they need protection it will be there. That is why Lord McNally was right to say that people should be reassured to know that people like Abu Qatada are protected by the convention. In his words in an interview to Radio Five Live “‘The fact is, in my mind, if the Human Rights Act occasionally comes in favour of somebody who is not very likeable in terms of what they have done or who they are… that to me is a reassurance, that if even he is given the protection of our law and Human Rights Act then all the rest of us are going to be protected by it as well.”

Yes, occasionally there are going to be disagreements over how a certain article should be interpreted. But surely, it is better for that decision to be made by neutral experts. Judges may not be infallible, but  politicians keen for votes certainly aren’t either. It is precisely because as a society we can get so caught up on being offended over an issue like Qatada that the decision shouldn’t be entirely in our hands.

Rowan Arthur, Eurasia Editor at World Outline

The Constitution Society has no formal view on this topic but acts as a platform for discussion and debate. Any responses to this article or pitches for future pieces can be directed to info@constitutionsoc.org.uk

We are excited to announce that the next APPG podcast is now available to listen to or download. The most recent meeting of the APPG on the Constitution was on on the subject of the Contemporary Relevance of Magna Carta.

The speaker was:

• Professor Nigel Saul, Royal Holloway, will talk on: ‘The History and Contemporary Relevance of Magna Carta’

You can listen to the podcast on our website here. If you would like to download the podcast simply right click the link and select ‘save as’.