Memorandum by Sir Michael Wheeler-Booth
1. The Government appeared at first not to wish
to hear arguments on their recent proposals for constitutional
reform for as was said in a Consultation paper "we are not
commenting on the broad principles of the change" (CP13/03
September 2003 p 10). However, the decision to set up a Select
Committee has made clear that arguments on the merits of the recent
proposals for constitutional reform are now admissible. This note
covers both wider issues as well as a few detailed points. The
precedents indicate that it is open to the Committee, after hearing
such evidence it wishes, to amend or even to kill the Bill. This
is in contrast with the usual committee proceedings, where agreeing
to the second reading of a Bill by the House implies acceptance
of its general principles. The Committee can employ a parliamentary
draftsman to help to amend the Bill, or alternatively can request
the Government to do so on lines indicated. I have recently seen
evidence from Professors Griffith and Bogdanor with whom I am
broadly in agreement and which has provoked this note to supplement
their evidence. It is brief in the knowledge that I am late and
also that the committee has asked for short submissions.
2. Surely anyone studying the proposals will
recognise that there are arguments both ways. Some authorities,
like Lords Bingham and Alexander and Professor Robert Stevens
favour the proposals, while others including the majority of the
law lords (including Lord Nicholls and Hope) and Professor Griffith
do not. I offer this evidence with consequent diffidence.
A.GENERAL POINTS
3. As we do not have a codified constitution,
we do not have any special requirements for the passage of constitutional
legislation into law as, for example, the requirement for a 2/3
majority in both Houses; as exists in most other countries. Our
lack of formal safeguards should not, however, encourage the passage
of such legislation without due care. The Constitutional Reform
Bill would change our constitution radically, but it has been
introduced without manifesto commitment in advance. A consequence
of this is that the bill is not protected by the terms of the
"Salisbury" convention. Further as it was introduced
into the Lords as first House, it is not potentially subject to
the Parliament Acts procedure. These two facts are eloquent evidence
of the innocent good faith of the Government when it made its
proposals. The bill differs from the earlier major constitutional
changes carried out in the last Parliament, which had been clearly
signposted in the 1997 Manifesto. The committee could recommend
for the future that this should not be a precedent to follow.
4. Nor have the proposals been subjected to any
major open enquiry, for example by a Royal Commission or a departmental
committee, in which the views of the public could be sought. Nor
has there been a White or green paper giving the Government's
thinking, which could have been debated and probed in Parliament.
5. Our constitution can be likened to a bird's
nest. It has slowly evolved over centuries. It is an elaborate
construction of interconnected and interdependent sticks, fluff
and straw all bound together. One element is dependent on another.
Remove one twig and you affect others, remove a number and the
nest is in trouble. For "sticks and fluff" read "statute
law", "practice", "parliamentary procedure",
"convention", "the law and practice of parliament",
and the "rule of law". This unwritten tradition, witnessed
in Glanvill (c1187-9) and Bracton (c1250) is very old and as early
as thereafter has had the advantage of being flexible and evolutionary.
6. Since 1997, bit-by-bit this old constitution
so dependent on convention is being replaced by written texts,
of which the Human Rights Act is perhaps the most important. The
difficulty is that these changes are being made piecemeal and
without indication of their interconnectedness with the other
changes having been considered.
7. For example, the Scotland Act 1999 was partly
based on the detailed work of the Scottish Convention, which sat
in the 1990s and drew as a wide spectrum of evidence both within
Scotland and elsewhere. As a consequence the White Paper on Scottish
devolution was carefully constructed. In contrast, the Government's
proposals for a devolved National Assembly for Wales were little
considered publicly within Wales in advance and their White Paper
much less well prepared. The Labour party report "Shaping
the Vision—a report on the Powers and Structures of the
Welsh Assembly" of May 1995 had consisted of nine pages of
typescript, a flimsy document which contained a number of major
recommendations which subsequently had to be jettisoned, including
whether the elections to the Assembly should use the "first
past the post" system, or the AMS type of PR and whether
the Local Government style government, instead of the cabinet
system for the new Welsh executive should be used. A consequence
of the failure to think things out in advance has been the Richard
Commission on the Powers and Electoral Arrangements for the National
Assembly for Wales, whose report has taken a year and a half to
prepare. The resultant Acts setting up the devolved institutions
bore little relationship the one to the other.
Most countries in the world have a codified constitution.
Supreme Courts thereunder have the role of enforcing the constitution,
even against the legislature. It follows that in such countries
it is clearly desirable to have a separation of powers.
8. At present, the United Kingdom almost alone
in the world still has an unwritten constitution with no separate
Supreme Court. As the highest appellate court it has the Appellate
Committee of the House of Lords and the Judicial Committee of
the Privy Council. We stick to the old concept of parliamentary
sovereignty—that is to say that "what the Queen in
Parliament enacts is law". The Government in all its constitutional
changes so far has been careful to ensure that this doctrine is
respected (although this concept is at present under creeping
attack from the EU).
9. Historically the concept of the separation
of powers is alien to our experience; on this issue Professor
Griffith has written authoritatively. In the Middle Ages, the
Crown in Council, and subsequently the Crown in Parliament was
an amalgam of legislature, judiciary and executive. In the Rolls
of Parliament this mixture of functions is evident. Montesquieu
in his influential book L'Esprit des Lois (1748) Part 2,
Chapter 6 "On the Constitution of England", although
he had spent two years, 1729-31, in England, fundamentally misunderstood
the nature of the English constitution under George II, by erecting
a mirage whereby there was a separation of powers at that time
between the executive, legislative and judicial powers.
10. A little earlier, in 1700, in the Act of
Settlement which settled the succession of the Crown after Princess
Anne's death on the House of Hanover, laid down in 5.
"That no person who has an office or profit
or place of profit under the King or receives a pension from the
Crown shall be capable of serving as a member of the House of
Commons"
after the death of King William and Princess Ann
of Denmark. This provision was subsequently repealed in the Regency
Act (4 & 5 Anne c20 5:28) before it had taken effect. If it
had not been repealed, it would have effected a revolutionary
change in our constitution, and the existing system whereby the
executive sits largely in the House of Commons and dominates that
legislative House—the system we now call the Westminster
system—or "elective dictatorship", would not exist.
But in the event the change was never made and ever since as previously
in this country we have not had a separation of powers.
11. There is a case for having a codified constitution,
and going over to it, following lengthy consultation, as was done
in the fledgling United States of America after the War of American
Independence. The Constitutional Convention in Philadelphia 1787,
the publication of the Federalist papers and vigorous debate led
to the framing of the US Constitution and its subsequent unanimous
ratification by the States. Similarly, the German Basic Law was
agreed to in 1949, after lengthy discussion within the Federal
Republic.
12. If we wish to be radical, there would be
a case for a thorough reappraisal of our constitution from the
bottom up, which might consider inter alia:
the effective separation of powers;
no Government domination of the House of Commons;
a Supreme Court, separate from Parliament and
able to strike down acts of the legislature;
the electoral arrangements for the Commons.
Unfortunately, we seem at present to be stumbling
towards a written constitution, without it having been thought
out.
13. One such draft constitution for the UK has
been drafted by the Institute of Public Policy Research, published
in 1991, edited by Professor James Cornford. Professor Cornford
has come to Oxford to make the case for his constitution, but
in a seminar where his opponent was the late Dr Geoffrey Marshall,
Cornford's argument in support of a written constitution failed
to get support.
14. Nowadays, the right of the US Supreme Court
to strike down laws passed by the US Congress is regarded as a
distinctive feature of the American system. In the original US
Constitution of 1787 no such right was given to the Supreme Court,
but the court subsequently arrogated to itself this power in the
case Marbury v Madison in 1803. Although not part of the present
proposals that a UK Supreme Court should have such a power, it
is questionable whether a desire to extend their jurisdiction
is a tendency confined to the American judiciary.
15. Other Courts, including the European Court
of Justice and the European Human Rights Court, have shown a tendency
to extend their competences and it is not unthinkable here. If
this were to occur it would mean that unelected judges, unaccountable
and virtually irremovable would gradually become the final arbiters
in issues social and moral, as abortion or divorce, instead of
Parliament, which is broadly accountable. Professor R Dworkin's
Freedom's Law (OUP 1999) described the working of the US
system—hardly one to replicate here.
16. Since the Reformation, the concept of Parliamentary
sovereignty has been central to our constitution. Before then,
as Professor Russell has shown in his paper "Cromwell's Doctrine
of Parliamentary Sovereignty" (Transactions of the Royal
Historical Society, 6th series (1977 pp 235-246)) in the middle
ages. More and others previously had believed that Parliament
was subject to a higher order law. And now since the Human Rights
Act, Lord Steyn and others have argued that an independent Supreme
Court will be the guardian of the fundamental laws of the country.
The implications of such a change would be far-reaching.
17. The previous two great administrations of
the left of the 20th century—Campbell-Bannerman and Asquith
(1905-16), and Attlee (1945-51), both enacted much legislation
with large social and economic impact on the country. Both Governments
were resolute in their determination to keep the courts out of
their legislation and they so enacted. By contrast, the present
Labour Government has greatly extended the ambit of the courts.
It is too early to judge which strategy will prove the more effective.
MINOR AMENDMENTS
18. Having taken time on the general merits of
the proposed legislation, I will be brief. On specific points,
in particular considering whether an objective is being achieved
as economically as possible—both in terms of the statute
book, and trouble and expense.
19. The present bill, although it may reflect
faithfully the drafting instructions, is unnecessarily long and
detailed and would be improved if it could be curtailed radically.
To say that "Ministers . . . must uphold the continued independence
of the judiciary" is to say the obvious. The provisions relating
to a Judicial Appointments Commission are welcome and overdue.
For reasons connected with the appointments of the Senior Law
Lord and LCJs and Masters of the Rolls under Lord Chancellors
MacKay and Irvine, the "Minister" under the Bill should
have discretion to reject the Commission's view. To have this
power must imply an ability to be in a position to exercise judgement
on the merits of the individuals concerned, which must mean that
in practice the Secretary of State will have to be someone with
an informed view of the senior judiciary.
20. A feature of judicial administration which
is not tackled in the Bill is that of the choice of law lords
to sit—whether it be in the House of Lords or Privy Council
or in the new Supreme Court. It is not widely known that up until
Coldstream's time as Permanent Secretary to the Lord Chancellor
(1954-68), it was the Permanent Secretary under the Chancellor's
guidance who made the choice of those who sat on appeals.
Since Coldstream's time, this selection has been
taken over by the "senior law lord", a significant development
of the independence of the judiciary from the executive, which
has taken place quietly and without being remarked either by academic
writers or the press. Indeed the whole development of the post
of "senior law lord" is of recent origin, an entirely
organic and evolutionary development, made little by little.
21. Till now, however, the choice of law lords
or other judges to chair commissions, tribunals and committees
of enquiry has remained with the executive—a point of significance
as shown recently, for example, in the choice of Lord Scott for
Arms to Iraq, or Lord Hutton for the "dossier".
22. A further related matter which is not covered
by the Bill is the use of en banc courts as distinct from
selected membership of five or occasionally seven. As the importance
of issues to come before the highest court is likely to rise as
a consequence of devolution and human rights this might be considered,
unless it is felt that this can safely be left to the discretion
of the Lords of Appeal, under the guidance of the senior law lord.
23. The case for the abolition of the ancient
office of Lord Chancellor seems to stem in part from a suspicion
of the antiquity of the post, which is credited with having been
established about 600 AD. I am not aware of evidence for this
dating. A further factor may be the mockery by Gilbert and Sullivan
in Iolanthe. Given the picture painted by Professor Stevens of
Lord Chancellor Halsbury, it may not have been unwarranted in
1900. But now things have moved on—he is no longer required
to wear silk tights—and his dress and functions could be
further modified to be more in keeping with modern conceptions.
24. There may be practical arguments why he should
no longer sit judicially for which the manifold new functions
thrust on him in the last 40 years leaves little or no time: there
is also the issue of conflict of interests (see the McGorell case).
Since the war, only two Lord Chancellors have had judicial experience
before appointment, and it has been apparent that this lack of
experience has sometimes been a cause of irritation to the other
law lords.
25. Perhaps, too, he should no longer be burdened
with the titular Speakership of the House—though since Lord
Gardiner's time (1964-70), Lord Chancellors have spent less and
less time on the Woolsack—except for a brief period at the
beginning of each day, and when they have had business in the
House. And the task of presiding has been delegated to unpaid
Deputies: a paid Speaker will be more expensive to little end.
26. But it is questionable whether these objectives
could not be met without the very cumbersome legislation required
to abolish the office. Would not a blanket clause to replace "Lord
Chancellor", wherever it occurs on the statute book, with
"Secretary of State for Constitutional Affairs and Lord Chancellor"
be a much quicker and cheaper way of achieving the same objective?
The Lord Chancellor's role thereafter, if denied, would wither
on the vine.
27. Finally, if the Lord Chancellor is to be
abolished, what is the case for the retention of the Great Seal?
28. A new Supreme Court. As for the present,
Phase 2 of House of Lords reform is not being proceeded with,
it seems inopportune to go forward with this change at present
by way of legislation. The lack of accountability of the present
membership of the Lords provides a cogent reason why the present
twilight phase cannot long endure.
29. If it is desired to give the House of Lords
judicially a more acceptable face a cheaper method would be to
regulate their participation in legislation by means of a Standing
Order. I hold to the arguments put forward in the Royal Commission
Report on the House of Lords Cm 4534, chapter 9 why the continuing
presence in the Lords of the law lords is of advantage to the
body politic, and also—for the reasons advanced by Lord
Nicholls, is good for the character and standing of the law lords.
A Standing Order would be much cheaper and less trouble than the
provisions in the bill for a Supreme Court. It would not prevent
the law lords from being provided with more infrastructure, and
alternative accommodation outside the Palace of Westminster, if
desired and when it becomes available. Common membership of the
House with lay peers makes the law lords less remote and more
human than if they were totally removed. Although the law lords
are an endangered species, we should not neglect their human rights.
30. Despite the criticisms in this note, it is
genuinely intended to be helpful to the committee in its difficult
task. The amendments suggested above would greatly shorten the
Bill and make its passage through Parliament quicker. But I very
much hope that the Committee in its report may address some of
the issues raised in Part A "General Points" of this
evidence. Legislate in constitutional matters at speed and repent
at leisure.
May 2004
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