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posted by Martin at 8/30/2004 08:25:00 AM

Sunday, August 29, 2004

 

Civil Contingencies Bill - Part 2 of several from Anne Palmer.

How did the whole sorry Constitutional vandalism mess start? Once again, these are only snippets. Part 2 of either 5 or 6 August 2004.

There is no doubt that the removal of the Office of Lord Chancellor, the removal of the Law Lords from the House of Lords (and perhaps in time, The Bishops) the removal of the remaining hereditary peers, and the setting up of a Supreme Court (that can never be supreme) is the biggest piece of Constitutional vandalism that has so far taken place.

I can do no better that take part of the speech from the debate on “Supreme Court and Judicial Reforms” on 12.2.2004 given by Baroness Kennedy of The Shaws, (Col 1281) Baroness Kennedy of The Shaws: My Lords, it is interesting to hear noble Lords puzzle over the events of 13 June. There we were, expecting simply a reshuffle, and yet we were plunged into this extraordinary constitutional drama. It was described by the noble and learned Lord, Lord Hoffmann, as an issue of personalities in the Cabinet. Was it simply a drama of loyalty? I am sure, as the noble and learned Lord, Lord Hoffmann, suggested, that the removal of the Lord Chancellor in that reshuffle must have caused considerable anguish. It must have been a source of great distress to a Prime Minister who had known that Lord Chancellor so intimately and who had him as a mentor and pupil master. It must have felt like an act of patricide. It may be that, like many an employer, one would want to say that the person was now redundant because their post was abolished, rather than that one was sacking them…….

Of course, what a Lord Chancellor learns in our constitution is a greater loyalty—a loyalty to the Constitution. The weight of that loyalty is probably not there in the beginning. It comes as you feel the weight of the role; you are more than a member of the Cabinet, you are the guardian of the Great Seal, the protector of the judiciary, the protector of an independent legal profession, careful of access to justice and mindful of the special role that you play. Because of your life in the law, you know about those checks and balances. Because of your life in the law, you know why law matters. Because of your life in the law, you have come to understand that you cannot only consider the short term in policy-making when it comes to law.

The role of the Lord Chancellor creates for that person a great conflict of loyalty. That was the drama that unfolded in the prologue to 13 June. The prologue, as has been described, involved a conflict of loyalty. What we saw unfolding was the drama that is crucial in any Cabinet, where on the one hand there is a Home Secretary who argues about law and order, and on the other there is a Lord Chancellor who is to be the voice of justice and who speaks about what is right and just. We saw that conflict of loyalty played out. The noble and learned Lord, Lord Ackner, described very powerfully the subject matter over which those battles ensued, where it became necessary for the Lord Chancellor to say to the Home Secretary, "Take your tanks off the Middle Temple's lawns. Take your tanks away from the front of the Royal Courts of Justice". The Home Secretary did not receive that message too kindly.

The Prime Minister had to decide where his loyalty lay—did it lie with authoritarianism or liberalism? Did it lie with the protection of justice or with the short-term politics of satisfying the hunger of a media that are often not too concerned about justice? That drama of the constitution was played out, and inevitably, I am afraid, a decision was made that meant that not just the Lord Chancellor himself was removed, but his role was abolished. It may well be that as the noble and learned Lord, Lord Hoffmann, described it, we saw that event dressed in the robes of high constitutional principle.

……The role of the Lord Chancellor, in the form that existed, was becoming untenable. In the new world that we live in it was, and is, unacceptable for a Lord Chancellor to sit in the Cabinet and also to sit as a judge. Politics has changed, and the interface of law and politics is much more complex than ever before.

…….There is great admiration for the British judiciary, but there is a puzzlement over the way in which our Lord Chancellor fulfils a strange tripartite set of roles. It was time for us to unpick some of those functions, and it was a great sadness to me that the Lord Chancellor, the noble and learned Lord, Lord Irvine of Lairg, did not reform himself. It need not have meant the undoing of that great institution of state, the Lord Chancellorship. There was no reason to abolish it, given the weight of history and tradition, which is so important when the issue is played out in the Cabinet.

What concerns me now is that we have reduced that role to just another Secretary of State, who may still have political ambitions and may still want to become Foreign Secretary, Chancellor of the Exchequer or Prime Minister. He may have constituents who demand of him that he is tough on asylum seekers, sends more people to prison and so on. The imperatives of justice may not be the highest in the mind of such a Cabinet Minister because the weight of that great role of state is not on his shoulders. That is a source of sadness to me because I think that that makes the difference. However much we try to entrench it in statute that the role of the new Secretary of State should be to protect the judiciary, I have concerns about whether that will be done with the urgency and passion with which Lord Chancellors have fulfilled that role for a long period of our history. That is where my regrets lie.

Just as it has become inappropriate for the Lord Chancellor alone to make appointments on soundings that are so secret and on questionable criteria, the judges must for a moment consider their position too. It is not acceptable to have in our legislature those who sit as judges in our highest courts, particularly now that our political world has become so much more complex. We could all say, "Why should we concern ourselves? If our practices suit us, why should we concern ourselves with perceptions around the world?". It matters because people look to us when they are reforming systems that have been under the heavy hand of the state and in which party members have become judges. Creating distinctions matters, and we should make it clear what those distinctions are and where they lie in our system.

We are seeing something of which the Hutton inquiry gave us a scent. There is a blurring of boundaries between intelligence and the politicians and between the Civil Service and politicians. We see the embracing by the politicians of aspects of government that should be distinct and where boundaries should be clear. I am afraid that we are, at times, seeing our judiciary co-opted. I was unhappy about the way in which Lord Justice Auld was given the role of considering reform of the criminal justice system. If his remit had been merely procedural, that would have been fine, but he did not confine himself to the procedural. He found himself moving into the constitutional sphere and advising about the removal of juries and so on. What happens then is that the politicians can say, "But our judicial brothers have suggested that this should be done". Such co-option of the judicial arm should be guarded against.

To noble and learned Lords from the judicial arm, I say that those are the concerns that should be in the mind of a judge, when invited to chair inquiries or head commissions. Judges should look carefully at the ways in which co-option should take place. Given the world that we live in and the way in which things have become more complex, it is in the judge's interest that the distances are clearly marked.

It is important to embrace constitutional change, but that should be done properly. We must understand what the foundations are. What is the baseline? What are the non-negotiables? Where are the cornerstones that we must not undermine? When we know those, we can embark on the process of change.”

Lord Millett Col 1295:….. Does anyone seriously believe that the creation of a new Supreme Court, modelled on that of the United States, will make the judiciary more independent of the executive? Does anyone seriously believe that transferring the ultimate responsibility for appointing judges from the Lord Chancellor to a Secretary of State will entrench the independence of the judiciary?

The Secretary of State in future, whatever he may be at the moment, is likely to be a middle-ranking, ambitious, career politician, with hopes of attaining yet higher office, dependent on the patronage of the Prime Minister and certainly subject to his direction. Moreover, he can be removed easily and at a moment's notice, without causing the kind of outrage which greeted the announcement last June.

The Lord Chancellor, by contrast, is a man bred to the law, holding an office which has existed for centuries, and which in itself tends to model his own conduct. He fills one of the great offices of state. He has reached the highest office any man of ambition could reach. There is nowhere else for him to go. Even historically, when he held not the greatest office of state but only the second office of state, the only place he could go was to become Archbishop of Canterbury.

His function in Cabinet is not to advise on the law. That is the function of the Attorney-General. His function is to represent the rule of law and to represent the judiciary. In performing his vital function, fundamental to the rule of law, he needs to be a member of the Cabinet. His brooding presence at the Cabinet table ensures the independence of the judges. He is the only person at that table who can say to a Minister, "You cannot do that; if you do you will cause an almighty row with the judges". When he makes such a point, he does not do so as a Cabinet Minister, but as head of the judiciary who happens to be sitting at the Cabinet table; and not exercising ministerial powers but representing the judges.

Lord Howe of Aberavon: Constitutional Reform Bill (Committee Stage) Col 1152:. Throughout the world, our legal system, because of its structure and shape, commands universal respect which we put at peril with great unwisdom.

It is interesting that that was clearly recognised by Her Majesty's Government only a very short time before the events of 12 June—to be compared almost with 9/11 in their folly. When the Council of Europe pressed the Government to explain the extraordinary anomaly of the Lord Chancellor's role, emphasising the separation of powers and so on, the Lord Chancellor's Department submitted a long paper in response to Mr Eric Jurgens's motion in the Parliamentary Assembly of the Council of Europe, which explained the position as follows:

"The Lord Chancellor provides a counter-balance for the judicial branch against the centralised power of government and Parliament

. . . he is removed to the House of Lords, away from the full force of party politics.

The Lord Chancellor is always a senior lawyer or judge, and therefore comes to government imbued with full understanding of legal culture and the rule of law". He is thus, "both a link and bulwark between the judiciary and the executive and the legislature".

The phrase, "imbued with full understanding of legal culture and the rule of law", goes a long way to answering the point most recently made by the noble Lord, Lord Goodhart.

That is the position as it was until June last year.

My Comments at this Point.

Are we really obeying orders from the Council of Europe? Are we deliberately allowing an outside body to dictate to us, this great Country with about 60 million people in it, to destroy our Constitution? To bring about changes to it of such enormity and permanency that the people in it do not have a say? Changes that will affect each and every one of them for all time to come and they do not have a say?

Who was it that is on record as saying about the proposed EU constitution? That there is nothing of significance that will change our Constitution in the proposed “Treaty establishing a Constitution for Europe” that would require a referendum (“a tidying up exercise” comes to mind) and yet here we are, allowing a temporary Government destroy our 1000 year old constitution without a murmer? Why? We are duty bound by oath of allegiance to defend our Queen and Country.We have no choice in this, it is a matter of fact. The same applies to our politicians, they are so bound and they may make no law that is unconstitutional.

What is the destruction of our Constitution all about? Why have a Supreme Court that cannot be supreme? I asked if Ireland had a Supreme Court and back came the reply from Anthony Couphlan, “Yes there is a Supreme Court as there is in most countries with written Constitutions, such as the Republic of Ireland, France, Germany, and the USA etc. The Supreme Court has the function, inter allia, of interpreting the Constitution. As the saying goes here: “The constitution is what the Supreme Court says it is”, for it is to be interpreted in the present tense.

Of course the Irish Supreme Court is no longer really supreme in fact, since in matters covered by the EC/EU Treaties, the EU Court of Justice has supremacy, and the Irish Court must follow its judgements, so that local, or national, title has really been a misnomer since we joined the EU.

When we joined the EU, the (written) Irish Constitution was changed to allow EU law to override anything else in the Constitution so long as it was “necessitated” by the obligations of membership of the Communities.

Of course, as you say, the proposed EU Constitution would give the UK a written Constitution for the first time, of which the ECJ would be the supreme interpreter. End of reply.

I do not believe that I am alone in my firm belief that should we accept the Treaty Establishing a Constitution for Europe, that we would indeed have a written Constitution for the first time. There is no doubt what so ever that it would override our Common Law Constitution thus making it redundant, and according to R, v Thistlewood 1820, to destroy the constitution “is an act of treason”. But who is listening, where are the judges that believe in the rule of law? The Law above the law to which all must obey, our very own Common Law Constitution. Whose Rule of Law are we following? Our law or the European Unions?

Do we need a Supreme Court for incorporating the EU Constitution into our legislation? Will we need a Supreme Court to ensure it is interpreted as is required by EU Law??

I quote from one document from the Centre for European Reform by Adam Townsend., “Can the EU achieve an area of freedom, security and justice?”

“It is unclear whether the EJC will interpret the Charter in such a way as indirectly to increase the powers of the EU institutions at the expense of national Governments. The EJC has traditionally been a force for integration in the EU. But although the rights in the EU Treaties have guided the Court’s decisions throughout its history, the EJC has been far less activist than the US Supreme Court, and has rarely struck down legislation on the grounds that it breaches rights.”…..

…”There are four additional factors that will increase the Court’s caseload over the next decade and suggests that national governments should make the court more efficient now.”

“First, the Charter of Fundamental Rights could generate a lot of litigation as plaintiffs test out its limits and meaning. Member States have increased the chances of litigation by making the operation and interpretation of the Charter unclear.”

“Second, the regular caseload of the EU Courts will inevitably increase with enlargement. The courts of the new members are also less familiar with EU Law, and may request more preliminary rulings from the EU Courts.”

“Third, the adoption of the new Constitutional treaty could make the overall legal framework uncertain for a time, which could lead to an increase in disputes….

Forth, the draft constitrutional treaty expands the court’s jurisdiction to cover almost all aspects of justice and home affairs, which is a very contentious and sensitive area.

In line with the Nice treaty, the draft constitution establishes three levels of federal courts. The European Court of Justice remains Supreme court of the Union, and its function is largely unchanged-it interprets the treaties and provides rulings on important questions of EU law. The draft treaty would rename the Court of First Instance the ‘High Court’. The draft treaty would allow the Union to establish ‘specialised courts’ below the High Court to hear cases in certain specific areas of law-intelectual property for example. The Union should establish these specialised Courts immediately-the Nice treaty of 2000 already permits this-to test whether they improve the administration of Justice”.End of quotes from that paper.

So, the question has to be asked, is this why there is such a rush for all the changes to our constitution? Is it truly all being done for the European Union? There is no doubt that the requirement of the Council of Europe requires a signature on this matter, for we are ‘the odd ones out again. We could remain as we are though for there is also a quote in the proposed EU constitution, something about ‘respecting the constitution of nation states’ or is that too much to expect now?

I turn now to a document all should read. It is the House of Lords European Union Committee 6th Report of Session 2003-4 “The Future Role of the European Court of Justice”, a 50 page report with evidence published `15th March 2004.

http://www.publications.parliament.uk/ld200304/ldselect/ldeucom/47/47.pdf (I cannot find this link -Ironies ed.)

One cannot but help make a few observations, and these are, that the witnesses very rarely agree over the interpretation of whole sentances or even on certain words and what they mean. Much of what is in the proposed EU Constitution seems to be a puzzle to them. The Committee appears to take the interpretaion they want it to mean and go on from there-working towards further integration-to making that work-they, as far as I can assertain, never err on the side of caution, or have any thought of our own constitution. Yet, as has already been mentioned in various debates, the changes proposed to the slautering of our constitution, which seemed to have happened without thought, or put down on the back of an envelope, just an urgent need to see to the ‘problem’ at the time without a thought of what was being proposed or the effect on our 1000 years of history. Actually even jokes about people sitting on wool sacks, in fancy breeches etc.

It is already expected in the paper that, “In a number of respects the powers of the Union would be increased”. (that of course means that the powers of the Member States is decreased, so let us not beat about the bush).

Paragraph 9. Under the treaty the jurisdiction of the Court has been extended. The draft treaty would bring judicial cooperation in criminal law and police co-operation within the same overall framework of judicial control as applies to other areas of EU law.

Para 39. Professor Denza….extending the doctrine of primacy to the CFSP would cause “a significant shift in the balance of power between the Union and the Member States towards the Union”. In her view, the Government appeared to be ignoring the extension of primacy issue and had misrepresented the position. Further, Professor Denza believed that it could be argued that the formalising and extension of the doctrine of primacy, when taken together with a number of other specific changes to the rules of governing the CFSP, were “sufficiently fundamental to call into question the ultimate independence of the Member States in the conduct of their foreign policy”. In international law, loss of such independence would imply loss of the separate status of the Member States. Professor Denza noted that the draft treaty was not expressly presented as producing such a fundamental effect and it contained other provisions pointing to the continuance of the Member States as separate sovereign entities. (My comments, what would the ECJ make of that?)

Para 84. Giving effect to the doctrine of the primacy of Community law nevertheless presents a serious constitutional issue, namely the compatibility of the primacy rule with the constitutional principle that Parliament is supreme and cannot bind itself or its successors. The potential problem of Parliament inadvertently overriding Community law in future legislation is dealt with in Section 2 (4) of the ECA which provides that “any enactment passed or to be passed shall be construed and have effect subject to the forgoing provisions of this section”. Parliamentary sovereignty is maintained—Parliament could expressly enact that a provision should take effect notwithstanding section 2 of the ECA.

Para 85, Professor Alter thought that the lack of a British Constitutional Court inclined to protect its own prerogatives could affect the debate within the United Kingdom about the limits of EU law authority. It is true that the discussion focuses more on the issue of Parliamentary sovereignty and the extent to which Parliament may, by the terms of the ECA, have abrogated its authority.”

Para 91 The scope for the new Supreme Court to adjudicate on the reach of Union law may need to be considered further and possibly defined in the legislation establishing the new Court.

ara 93 Professor Gaja said that the draft treaty ”still reflects the attitude of Member States that are reluctant to submit to the Court’s review CFSP acts, which they consider the result of the use of their sovereign prerogatives. This attitude contributes to keep pillar structure in existance in spite of the declared intention to merge the three pillars into a single Union.

Para 97 It was noted that the European Court of Human rights did not exclude foreign policy as such from judicial review…..

Para 98 ….Professor Priban expressed a concern that giving the Court jurisdiction over CFSP might result in limitation of national sovereignty in the field of international politics……

Para 109 Article 111-209 has been amended. One consequence of the amendment is that the article no longer contains provisions for the Court to have jurisdiction to ensure that implementation of the CFSP does not prejudice the competences set out in Articles 1-12 to 14 and 1-16. Is this omission deliberate or accidental?

Para 110 Art 1-15 (Loyalty Clause). Were the Court to have the power to review compliance by Member States with Article 1-15 (2) this would have potentially significant implications.

Para 117 We note that the draft treaty would substantially increase the Court’s powers from those currently set out in Article 35 TEU. The Draft Treaty would bring judicial co-operation in criminal law and police co-operation within the same overall framework of judicial control as applies to other areas of EU Law, subject to the exception in Article 111-283

You cannot have a true State if you do not have the control of the Criminal Justice system. This is the control of the relationship between one citizen and another, which is the defining moment of the modern State.You cannot have a true State if you do not have the control of the CFSP. Our State already has, (if only our Parliamentarians look to it), as its primary purpose, to protect one person from the other, Magna Carta and our very own Bill of Rights. Our freedom was established when Henry II set about the creation of the common law; when the Barons brought King John to Runnymead.

It may be that the new Supreme Court is to keep watch and make sure EU laws are implemented as the EU wishes, or it may be that the new Supreme court is required to incoporate the Treaty ESTABLISHING a Constitution for Europe (meaning the Union) into our law, but it is time once again to remind all, that the Parliament of the United Kingdom of Great Britain must and will be supreme and sovereign once more, but it is up to the people to make their voices heard to bring this about.

To transfer power over criminal law is one of the most fundamental things that could happen to this Country’s Constitution, but for a British Prime Minister to agree so easily to this transfer, to eagerly WANT this to happen, is unpardonable. To deliberately destroy this countries 1000 year old Constitution in order to comply with the Council of Europe’s rulings or at the wishes and will of any person from outside this country, is something the people of this country should never, ever forgive.

The proposed United Kingdom’s new Supreme Court will not (at this present time) be able to deal with Scottish appeals partly for historical reasons. The Act and Treaty of Union 1707 guarantees the separation of the Scottish judicial system from that of England; the administration of the civil and criminal courts in Scotland is a devolved matter within the competence of the Scottish Parliament and Executive.

The basis for the criminal justice system is utterly separate from that in England and Wales, As Lord Hope of Craighead has said:

….”although there is now much common ground between England and Scotland in the field of civil law, their system of criminal law are as distinct from each other as if they were two foreign countries”.

So for all the expense in finding a suitable place to either build a Supreme Court or a building suitable for renovating (or for a ‘make-over’) to house a Supreme Court, could hardly be classed as a “United Kingdom” Supreme Court, but the argument for and against, will be in part three.

Anne Palmer.

(I apologise for the format changes which occurred in transcribing this comment).