Tag: Constitution

The real “constitutional crisis” is Chris Grayling’s despotic tendencies and his undermining of the Rule of Law

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We have been hearing justifications for grotesquely unfair policies from the Conservatives a lot recently based on a claim that “we have a clear mandate to do this.” The concept of a government having a legitimate mandate to govern via the fair winning of a democratic election is a central component of representative democracy. However, new governments who attempt to introduce policies that they did not make explicit and public during an election campaign are said to not have a legitimate mandate to implement such policies.

Most of you will immediately think of the recent debates regarding the tax credit cuts, and the authoritarian threats to stifle legitimate criticism of government policies, but this is just the tip of a very deeply submerged iceberg.

I am currently researching an article about the hatchet man of justice, Chris Grayling, and his recent signaling of a crackdown on what he calls the “misuse” of freedom of information requests (FOI) as a means of researching “stories” for journalists. I’ll write about that particular symptom of Grayling’s syndrome of totalitarian thinking separately, as I got productively side-tracked.

I recently wrote an article about the government’s secret editing and amendment of the Ministerial Code Government turns its back on international laws, scrutiny and standards: it’s time to be very worried.

It’s not the first time, either: see also – A reminder of the established standards and ethics of Public Office, as the UK Coalition have exempted themselves.

And of course this – Watchdog that scrutinises constitutional reform is quietly abolished and Tory proposals are likely to lead to constitutional crisis, thisThe Coming Tyranny and the Legal Aid Bill and this – Sabotaging judicial review is one of this government’s most vicious acts.

I have had concerns for some time that the Conservatives behave unaccountably, profoundly undemocratically, with a disregard of the obligations of a government to be open and transparent, and often, the Conservatives shield very secretive and damaging long term aims.

During a House of Lords debate on Judicial Review reforms, respected peer and lawyer Lord Pannick QC spoke of the constitutional importance of Judicial Review and the hazards in circumscribing it, personally addressing Mr Grayling on the issue of the Lord Chancellor’s incompetence:

“However inconvenient and embarrassing it is to Mr Grayling to have his decisions repeatedly ruled to be unlawful by our courts, however much he may resent the delays and costs of government illegality being exposed in court and however much he may prefer to focus on the identity of the claimant rather than the substance of their legal complaint, it remains the vital role of judicial review in this country to hold Ministers and civil servants to account in public, not for the merits of their decisions but for their compliance with the law of the land as stated by Parliament.”

Grayling’s time as Justice Secretary has been an unremitting disaster. He has lost seven times so far in the courts and is the least impartial lord chancellor we have known. Rather than accept that he has attempted to legislate illegally, instead we see him trying to dismantle the mechanisms of democracy and law to suit his despotic policy designs, regardless.

I found a letter from earlier this year, by chance, it’s a response from the lord chancellor Chris Grayling to a report by the House of Lords Constitution Committee published last December following its investigation into the office of the legally unqualified but disdainful and arrogant lord chancellor: 

The Rt Hon. the Lord Lang of Monkton DL
The House of Lords Select Committee on the Constitution
House of Lords,
London,
SW1A 0PW

The Right Honourable Chris Grayling MP
Lord Chancellor and Secretary of State for Justice
102 Petty France
London SW 1H 9AJ
T 020 3334 3555
F 020 3334 3669E
general.queries @justice.gsi.gov.uk
http://www.gov.uk/moj
Our Ref: 20211

26 February 2015

Dear Lord Lang,

THE OFFICE OF LORD CHANCELLOR

The Government broadly welcomes the Committee’s Report on The office of Lord Chancellor and makes the following observations in response to a number of the specific recommendations.

The rule of law and judicial independence 

We invite the Government to agree that the rule of law extends beyond judicial independence and compliance with domestic and international law. It includes the tenet that the Government should seek to govern in accordance with constitutional principles, as well as the letter of the law. (Paragraph 25)

RESPONSE
The Government agrees that it should govern in accordance with constitutional principles and endorses the importance of the rule of law. However the Government does not endorse the view put forward in paragraphs 23 to 25 of the Committee’s Report in so far as it suggests that judges have power to insist that primary legislation passed by the UK Parliament “is not law which the courts will recognise”.

The Lord Chancellor’s duty to respect the rule of law extends beyond the policy remit of his or her department; it requires him or her to seek to ensure that the rule of law is upheld within Cabinet and across Government. We recommend that the Ministerial Code and the Cabinet Manual be revised accordingly. (Paragraph 50)

Page 2

To clarify the scope of the Lord Chancellor’s duty in relation to the rule of law, we recommend that the oath to “respect the rule of law” be amended to a promise to “respect and uphold the rule of law.”  (Paragraph 51)

RESPONSE
The Government believes that the Ministerial Code, Cabinet Manual and Oath of Office already accurately reflect ministerial responsibilities in relation to the rule of law. In particular, both the Ministerial Code and the Cabinet Manual note the role of the Law Officers in “helping ministers to act lawfully and in accordance with the rule of law”. The Government does not agree that there should be specific requirement on the Lord Chancellor in this respect, nor that the Code, Manual or Oath require amendment.

The Law Officers’ role in upholding the rule of law has always been important.

The changes to the office of Lord Chancellor over the last decade have made it even more so. As a result, we consider that it is imperative the Attorney General continues to attend all Cabinet meetings, and that they are adequately resourced not only in their role as legal advisers to the Government, but in their capacity as guardians of the rule of law. (Paragraph 79)

RESPONSE
The Government agrees with the Committee on the important role played by the Law Officers in upholding the rule of law. This view has been shared by successive governments. The Law Officers play this role, in particular, by advising on some of the most significant legal issues being dealt with by Government, through their significant public interest functions (for example bringing contempt proceedings) and through participating in the work of government as Ministers of the Crown. This includes the Attorney General participating in Cabinet meetings. Though the expectation is that the Attorney General will continue to attend all Cabinet meetings, this is ultimately a matter for the Prime Minister. The Government considers that the Law Officers are adequately resourced to fulfil their functions as they relate to the rule of law.

We recommend that the Law Officers give due consideration to the more reactive role of modern Lord Chancellors and ensure that the holder of that office is kept informed of potential issues within Government relating to the rule of law. (Paragraph 80)

RESPONSE
An important function of the Law Officers is keeping all Ministerial colleagues informed of significant legal issues. The relationship between the Lord Chancellor and the Attorney General is an especially important one. The Lord Chancellor and the Attorney General meet regularly to discuss matters of common concern, including those that relate to the rule of law, and the expectation is that this will continue.

Page 3

A Constitutional Guardian in Government

There is no clear focus within Government for oversight of the constitution. We invite the Government to agree that a senior Cabinet minister should have responsibility for oversight of the constitution as a whole, even if other ministers have responsibility for specific constitutional reforms. In the light of the Lord Chancellor’s existing responsibility for the important constitutional principle of the rule of law, we consider that the Lord Chancellor is best placed to carry out this duty. (Paragraph 101)

RESPONSE
The Deputy Prime Minister is the relevant Secretary of State for constitutional policy and has been so since 2010. Senior ministerial oversight reflects the importance of the constitutional changes outlined in the Programme for Government. This arrangement gives a clear focus for the delivery of reforms including Individual Electoral Registration; the introduction of fixed term parliaments; changes to the laws of succession; regulation of the lobbying industry and proposals for the recall of MPs.

The Deputy Prime Minister works in close collaboration with the Prime Minister and other relevant Cabinet Ministers including the Lord Chancellor and Attorney General and is supported by two ministers, and officials from the Cabinet Office Constitution Group.

The Future of the Office

We recognise the advantages to appointing a Lord Chancellor with a legal or constitutional background. We do not consider that it is essential but, given the importance of the Lord Chancellor’s duties to the rule of law, these benefits should be given due consideration. (Paragraph 109)

RESPONSE
The Government welcomes the Committee’s acknowledgement that it is not essential for the Lord Chancellor to have a legal background.

We recommend that the Government either ensure that the Permanent Secretary supporting the Lord Chancellor at the Ministry of Justice is legally qualified, or appoint the top legal adviser in that department at permanent secretary level. (Paragraph 113)

RESPONSE
The Government does not agree that the Permanent Secretary at the Ministry of Justice need be legally qualified, nor that the department’s top legal adviser need be appointed at permanent secretary level. The Lord Chancellor and Permanent Secretary have access to high quality legal services provided by the Treasury Solicitor’s Department including direct access to the Treasury Solicitor and one of his Deputies at Director General level, should it be needed.

Page 4

Given the importance of the Lord Chancellor’s duty to uphold the rule of law, the Lord Chancellor should have a high rank in Cabinet and sufficient authority and seniority amongst his or her ministerial colleagues to carry out this duty effectively and impartially. (Paragraph 117)

RESPONSE
It is for the Prime Minister to determine the order of precedence of Cabinet Ministers.

The Lord Chancellor is currently and traditionally one of the highest officers of state. The Lord Chancellor should be a politician with significant ministerial or other relevant experience to ensure that the rule of law is defended in Cabinet by someone with sufficient authority and seniority. It is not necessary to be prescriptive: more important than age or lack of ambition is that the person appointed has a clear understanding of his or her duties in relation to the rule of law and a willingness to speak up for that principle in dealings with ministerial colleagues, including the Prime Minister. (Paragraph 125)

We urge Prime Ministers, when appointing Lord Chancellors, to give weight to the need for the qualities we have outlined in this report, and above all to consider the importance of the Lord Chancellor’s duty to uphold the rule of law across Government. (Paragraph 126)

RESPONSE
The Constitutional Reform Act 2005 provides that the Prime Minister may not recommend an individual for appointment as Lord Chancellor unless he or she is satisfied that the individual is qualified by  experience. There is a range of evidence that the Prime Minister can take into account when reaching such a conclusion.

We recognise concerns that the combination of the office of Lord Chancellor with that of the Secretary of State for Justice could create a conflict of interests at the heart of the Ministry of Justice. However, upholding the rule of law remains central to the Lord Chancellor’s role and in practice the office is given additional authority by being combined with a significant department of state. (Paragraph 133)

RESPONSE
The Government welcomes the Committee’s agreement that combining the role of Lord Chancellor with that of Secretary of State for Justice strengthens the office.

 

CHRIS GRAYLING

The boldings are mine, the original copy of the letter may be viewed here.

I’m not a legal expert – nor is the lord chancellor – but I am someone with sufficient expertise to recognise when our long-standing laws and democratic processes are being side-stepped, deceitfully edited, re-written, or deleted to prop up an authoritarian government determined to impose a toxic, socially harmful and ideologically driven policy agenda, regardless of the consequences and public objection.

Watchdog that scrutinises constitutional reform is quietly abolished and Tory proposals are likely to lead to constitutional crisis.

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The Political and Constitutional Reform Committee, which was originally established for the duration of the 2010 parliament, has been very quietly scrapped following a meeting of party whips.

Originally, the cross-party committee was established to scrutinise the plans of the Coalition government, such as the House of Lords Reform and the Alternative Vote – many of which never made it onto the statute books.

The parliamentary committee’s main role was to scrutinise proposed major constitutional changes. This undemocratic development is especially worrying given the likelihood of significant constitutional changes in the forthcoming parliament, with the referendum on  membership of the European Union set to be held within the next two years.

There are further plans for devolution of powers to Scotland and Wales, as well as to cities, and it is expected that these will be delivered at the same time as the government repeals the Human  Rights Act, and draws up a bill of rights to replace it.

Considerable doubt exists among experts that the Council of Europe, a human rights watchdog responsible for ensuring the Convention is upheld, will accept the Tories’ proposals. In fact the plans are highly unlikely to be accepted. As a result, it is quite widely believed Britain will disengage from the European Convention on Human Rights (ECHR) and undermine Europe’s’ civil liberties framework in the process.

Cameron has previously pledged to withdraw from the ECHR, indicating plainly that he is indifferent to the fact that such a withdrawal would very likely spark a complex constitutional crisis in the UK.

If the Human Rights Act is repealed in its entirety, the repeal will apply to the whole of the UK. The Scotland Act gives powers to the Scottish Parliament, provided that they comply with the ECHR (among other things). This would not change with repeal of the Human Rights Act alone.

However, human rights are also partially devolved (the Scottish Parliament, for example, has set up a Scottish Human Rights Commission), and so any unilateral repeal of the Human Rights Act by Westminster would violate the Sewell Convention, which outlines that the Westminster government will: “not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament.” Nicola Sturgeon has stated clearly that the Scottish National Party oppose the repeal of the Human Rights Act.

And similar principles apply through the memoranda of understandings with each of the devolved legislatures in the UK.

In Northern Ireland, human rights are even further devolved than in Scotland, and the Human Rights Act (HRA) is explicitly mentioned in the Good Friday Act in 1998. To repeal the HRA would violate an international treaty as the Agreement was also an accord between two sovereign states – the UK and the Irish Republic.

Repealing the HRA unilaterally would put the UK in violation of the Good Friday Agreement, and its international treaty obligations to Ireland.  This would certainly damage our international reputation, as well as having consequences for the reciprocity on which the Treaty depends.

It’s quite possible that it would also be understood within Northern Ireland as a violation of both letter and the spirit of the Good Friday Agreement,  signalling that the UK government were no longer committed to the Agreement.

The Good Friday Agreement was also subject to a referendum in both Northern Ireland and the Republic of Ireland, both having to consent for the Agreement to be implemented.  The referendum enabled the Agreement to have widespread legitimacy, but importantly, because it took place in both parts of Ireland, it answered historic Republican claims to be using violence to secure the “right to self-determination” of the Irish people.

It was also necessary to changing the Irish Constitution. So a unilateral move away from UK commitments carries serious bad faith and democratic legitimacy implications, potentially with deeply problematic historical consequences.

The Conservatives also have plans to reintroduce the redefining of parliamentary constituency boundaries in a way that will be advantageous to the Conservative party. It is estimated that the planned changes will help the Tories to win up to 20 extra seats at a future election.

It was during the last term that the proposals were originally put forward. Labour and Liberal Democrat MPs were joined by those of smaller parties – including the SNP, Plaid Cymru, the DUP,  the Greens and Respect – to defeat the proposals, giving them majority in voting down the Tory plans for boundary changes.

The Tories are also committed to implementing a form of “English vote for English” laws – a move which will further undermine ties within the UK. But this pre-election pledge placed an emphasis upon English voting rights to undermine the nationalist appeal of UKIP south of the Border, whilst spotlighting the constitution to bolster the Scottish National Party in Scotland, again using nationalism tactically  to disadvantage the Labour Party.

At a time when the government is planning potentially turbulent constitutional changes in the forthcoming parliament, the move to abolish the watchdog – The Political and Constitutional Reform Committee – will serve to insulate the Tories from democratic accountability and scrutiny.

The Political and Constitutional Reform Committee had instigated an inquiry in 2013 regarding increasingly inconsistent standards in the quality of legislation, which resulted in several key recommedations, one of which was the development of a Code of Legislative Standards, and another was the creation of a Legislative Standards Committee.

The government response was little more than an extravagant linguistic exercise in avoiding accountability, transparency and scrutiny. Having waded through the wordy Etonian etiquette of paragraph after paragraph in the formal responses to each recommendation, the meaning of each may be translated easily enough into just one word: no.

For example: “A bill when it is published is the collectively agreed view of the whole Government on how it wishes to proceed. The process by which it has arrived at that view is a matter for the Government, not for Parliament.”

“The Government does not believe that a Code of Legislative Standards is necessary or would be effective in ensuring quality legislation. It is the responsibility of government to bring forward legislation of a high standard and it has comprehensive and regularly updated guidance to meet this objective. … Ultimately, it is for Ministers to defend both the quality of the legislation they introduce and the supporting material provided to Parliament to aid scrutiny.”

It’s troubling that the House of Lords Constitution Committee raised concerns during the inquiry that there is currently no acceptable watertight definition of what constitutional legislation actually is. 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.” The very worrying response:

“The Government does not accept that it would be helpful to seek to define “constitutional” legislation, nor that it should automatically be subject to a different standard of scrutiny. The tests suggested by Lord Norton and the list of characteristics suggested by Professor Sir John Baker are themselves subjective: whether something raises an important issue of principle, or represents a “substantial” alteration to the liberties of the subject [citizen], for example, are matters more for political rather than technical judgement.

Well no, such matters may be more for legal judgement, given the current framework of Human Rights and Equality legislation. The idea that the law is superior to the megrims of rulers is the cornerstone of English constitutional thought as it developed over the centuries. The Universal Declaration of Human Rights and the European Convention on Human Rights both refer to the Rule of Law.

The Universal Declaration of Human Rights of 1948, is the historic international recognition that all human beings have fundamental rights and freedoms, and it recognises that “… it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law…”

And of course there are implications for our current understanding of the word “democracy.”

Oh. There you have it: the government does seem to regard the liberty of citizens to be enclosed within their own doctrinal boundaries. Those Tory boundaries are entirely defined by partisan dogma and value-judgements, ad hoc justifications, all of which distinctly lack any coherence and rational expertise. Or independence and protection from state intrusion and abuse.

This is a government that has taken legal aid from the poorest and most vulnerable, in a move that is contrary to the very principle of equality under the law.

The Tories have turned legal aid into an instrument of discrimination. They have tried to dismantle a vital legal protection available to the citizen – judicial review – which has been used to stop the Conservatives abusing their powers again more than once. The Tories have restricted legal aid for domestic abuse victims, welfare claimants seeking redress for wrongful state decisions, victims of medical negligence, for example.

Reflected in many Conservative proposals and actions is the clear intent on continuing to tear up British legal protections for citizens and massively bolstering the powers of the state.

The hypocrisy is evident in that this is a government which claims to pride itself on its dislike for the state. But in every meaningful way, the Tories are vastly increasing state powers and intrusive authoritarian reach.

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