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| THE NEWSLETTER | ISSUE 43 | SEPTEMBER 2009 | MONITOR LABOUR’S LAST FLING ON CONSTITUTIONAL REFORM IN THIS ISSUE

Gordon Brown’s bold plans for constitutional constitutional settlement …We will work with the reform continue to be dogged by bad luck and bad to deliver a radical programme of 2 - 3 judgement. The bad luck came in May, when the democratic and constitutional reform”. MPs’ expenses scandal engulfed Parliament and government and dominated the headlines for a Such rhetoric also defies political reality. There is EXECUTIVE 3 month. The bad judgement came in over-reacting a strict limit on what the government can deliver to the scandal, promising wide ranging reforms before the next election. The 2009-10 legislative which have nothing to do with the original mischief, session will be at most six months long. There PARTIES AND ELECTIONS 3-4 and which have limited hope of being delivered in is a risk that even the modest proposals in the the remainder of this Parliament. Constitutional Reform and Governance will not pass. It was not introduced until 20 July, 4-5 The MPs’ expenses scandal broke on 8 May. As the day before the House rose for the summer published fresh disclosures recess. After a year’s delay, the only significant day after day for the next 25 days public anger additions are Part 3 of the bill, with the next small HUMAN RIGHTS 5 mounted. It was not enough that the whole steps on reform (see page 2); and Part 7, to issue of MPs’ allowances was already being strengthen the governance of the National Audit investigated by the Committee on Standards in Office. INFORMATION POLICY 5-6 Public Life, due to report in the autumn (Monitor 42, page 1). The government felt obliged to rush The rest of the bill is a cut down version of the through emergency legislation for an independent draft published in March 2008 (Monitor 39). The INTERNATIONAL FOCUS 6 Parliamentary Standards Authority (see page 2). government has abandoned proposals to restrict And as critics denounced the whole Westminster the powers of the Attorney General, to control the system as rotten to the core, an extraordinary war making power by statute, and to remove the PEOPLE ON THE MOVE 6 period ensued in which every conceivable Prime Minister’s involvement in the appointment remedy was put forward, from a right of recall to of . Still left are provisions to put the civil referendums to electoral reform. service and parliamentary scrutiny of Treaties on UNIT NEWS 7 a statutory footing; and to relax the restrictions on led a campaign for a referendum demonstrations around Parliament. These issues on electoral reform. called for the will be of greater interest to the Lords than the BULLETIN BOARD 8 referendum to be held at the same time as the Commons, and the Lords will determine whether next election (Times, 25 May). called the bill passes. The government will have to be for a switch to the Alternative Vote before the prepared to abandon further parts of the bill to election, without a referendum. These calls defied ensure the passage of the rest. political reality. Referendums require legislation, as does electoral reform. Neither would be likely to pass the , let alone the Lords. NEW STARTS IN Labour remains deeply divided over electoral OCTOBER: END OF THE LORDS reform, which is why the topic has made so little under both Blair and Brown. On 1 October, the newly created Supreme Court will replace the Appellate Committee of the On 10 June the Prime Minister made a statement as the final court of appeal in the to the Commons on the control of MPs’ expenses, . The Supreme Court assumes and set out proposals for reform on five further the existing jurisdiction of the House of Lords as issues. First, the government would publish well as the devolution jurisdiction of the Judicial proposals for the final stages of Lords reform Committee of the Privy Council. It was established before the summer break. Second, it would initiate by the Constitutional Reform Act 2005, with the the widest possible debate about a bill of rights aim of formally separating the legislative and and a written constitution. Third, devolving power judicial functions of the House of Lords. The and engaging people in their local communities. Supreme Court is located in Guildhall Fourth, taking a debate forward on electoral on , next to reform. Fifth, increasing public engagement and the Queen Elizabeth conference centre. in politics. The first justices of the 12 member Supreme 43 These proposals had been approved by the Court will be the current Law Lords, with The Constitution Unit Democratic Renewal Council, a new Cabinet Phillips of Worth Matravers serving as President UCL Department of Political Science Committee chaired by the Prime Minister. In of the Court and Lord Hope of Craighead as the Director: Professor Robert Hazell CBE Building Britain’s Future, the draft legislative Deputy President. Future appointments to the Court www.ucl.ac.uk/constitution-unit programme published on 29 June, the government will be made by the new procedure used for the first Email: [email protected] announced “the DRC will agree a series of time this year to appoint Lawrence Collins LJ, Sir Phone: +44 (0) 20 7679 4977 proposals for the fundamental reshaping of our Brian Kerr (LCJ, NI) and Sir Anthony Clarke MR. Fax: +44 (0) 20 7679 4978 | THE CONSTITUTION UNIT MONITOR | ISSUE 43 | SEPTEMBER 2009 | 2

NEW SUPREME COURT (CONT’D) PARLIAMENT (CONT’D)

The selection commission is composed of the The first set of proposals are included within Standards Bill in the summmer to create President and Deputy President of the Court the Constitutional Reform and Governance an Independent Parliamentary Standards along with members of the judicial appointment Bill (see Page 1), and show distinct similarities Authority (IPSA).The IPSA will consist of four bodies from and , and to Lord Steel’s private member’s bill (see members and chair appointed by the . All newly appointed judges Monitor 42). One change would end the of the Commons with the agreement of a will formally be Justices of the Supreme Court by-elections that replace hereditary peers as parliamentary committee. and not members of the House of Lords. they die, meaning that these members would Earlier this summer, it was announced that the gradually disappear over time. Another would The authority will be responsible for creating Court will allow its proceedings to be televised specify that members convicted of serious a scheme for members’ allowances, rule when requested by the media. criminal offences, or made bankrupt, would on members’ interests, and for maintaining be automatically expelled, and would allow the register of financial interests. It will the House to expel or suspend members who also supervise a new Commissioner for PARLIAMENT bring it into disrepute. A third would allow Parliamentary Investigations, who would members to resign/permanently retire from the look into allegations of abuse or misuse of chamber. There are two notable omissions, allowances or failure to register financial House of Commons Reform Committee however. The first, which was included in interests. The two bodies will not be covered Lord Steel’s bill, is any provision to put the by and will be within Alongside the new Parliamentary Standards House of Lords Appointments Commission the scope of the Freedom of Information Act. Bill (see below), one of ’s on a statutory basis. The Commons Public announcements in June following the MPs’ has called for this, The bill creates a new criminal offence of expenses row was the establishment of but ministers probably feared accusations knowingly providing false or misleading a new committee on reform of the House of “cementing” an appointed House if they information in a claim for an allowance, of Commons chaired by Tony Wright MP. proposed it. The second omission is any for which the maximum sanction is up to This initially sounded like a commission or provision to prevent resigning peers from 12 months’ custodial sentence or an unlimited taskforce, but went on to be established immediately standing for the House of fine (not exceeding the statutory maximum). formally as a select committee. Its creation Commons. Such a provision has previously A new offence of breaching the rules on paid was delayed by disagreements over the been recommended by the Royal Commission advocacy is to be considered again in committee’s terms of reference, but was and others, including the government itself in the future. agreed on the day before the Commons rose previous white papers. Its non-appearance for summer recess (20 July). The committee sparked controversies that Lord Mandelson The bill underwent some revision as it is charged with looking at scheduling of would use the bill to return to the Commons, went through parliament. The power of the business in the House, the appointment of and perhaps even stand as Labour leader. Commissioner for Parliamentary Investigations members and chairs of select committees, Justice Secretary has since to order MPs to repay misused allowances the appointment of deputy speakers, public indicated that a “quarantine” clause may in was dropped due to its potential impact initiation of parliamentary proceedings and fact be added to the bill (FT, 26 August). upon parliamentary privilege. Instead, the other related matters. It has a limited life, Nonetheless its passage before the election Commissioner will report his or her findings being required to report by 13 November, is not assured. to the House of Commons Committee for before which agreement must be reached Standards and Privileges. A clause that by its 18 members. One central issue for the Jack Straw sought to maintain the allowed the courts to consider comments committee is whether it should recommend by announcements and public consultations made by MPs during parliamentary creation of some kind of “Business Committee” in the summer over longer-term Lords reform. proceedings was dropped for the same to schedule House of Commons business. As indicated in the July 2008 white paper, and reason. The Joint Committee on Human The 2007 Constitution Unit report The House in line with Commons votes in March 2007, Rights expressed concern that the disciplinary Rules?, which has been mentioned by the government proposes an 80 or 100% aspects of the bill contravened section 6(1) Justice Secretary Jack Straw in connection elected chamber, with members serving long of the European Convention on Human with the committee’s work (see Liaison non-renewable terms. It promises to publish Rights and recommended a right of appeal. Committee evidence, 14 July), recommended draft clauses for parliamentary scrutiny to The Lords , among establishment of a Business Committee implement such a plan, but formal introduction others expressed concern that the bill was specifically for timetabling non-government of a bill before the election is unlikely. The fast tracked without sufficient time for scrutiny. business. The report’s co-author, Unit Deputy government appears to be moving towards an Though the bill originally intended to cover the Director Meg Russell, has been appointed as a 80% elected chamber, phased in over three conduct of peers in the House of Lords, the specialist adviser to the committee. general elections, and elected by proportional Act does not do so. It received representation on a regional basis. This on 21 July. Lords reform: stages 2 and 3? would please the Liberal Democrats, but the Conservatives have declared themselves CSPL enquiry into MPs’ expenses It seems you wait years for a package of Lords opposed to proportional elections, and reform to come along, and then two arrive at generally see Lords reform as a low priority. Throughout the hue and cry into MPs’ once. In part spurred by the general furore The government has moved a long distance expenses the Committee on Standards in around MPs’ expenses, and in part due to the on this issue, but the odds are still against Public Life has been quietly continuing with impending general election, the government wholesale reform. its enquiry, which it had commenced a month has proposed further interim changes to the before the media storm broke. The Committee House of Lords, and set out a wholesale Parliamentary Standards Authority published an Issues and Questions paper in reform package to create a largely or wholly April, and in response it has received over 700 elected second chamber. In response to the MPs’ expenses crisis, the submissions, including about 50 from MPs. It government rushed through a Parliamentary has also held 9 days of public hearings. | ISSN 1465–4377 | 3

PARLIAMENT (CONT’D) EXECUTIVE (CONT’D)

The Committee plans to publish its report spurious basis. Concerns have also been universal system of school and class councils, in late October. It will not be easy to forge a raised about peers claiming daily attendance including student representatives in school consensus about MPs’ pay and allowances, allowance for extremely brief appearances in governance, youth-based advisory panels especially six months before an election (see the House. The matter of peers’ allowances for national, regional and local public bodies, Monitor 42, page 1). An additional complication was referred by the House Committee to the government support for volunteering, and is that any new system will now have to Senior Salaries Review Body in June, which exploring a programme of compulsory civic be administered by the new Independent has issued a consultation document and is service for young people. Parliamentary Standards Authority. expected to report in October. It faces difficult questions, since many peers legitimately On politics, the commission found that See: http://www.public-standards.gov.uk/ maintain - and indeed are encouraged to young people are under-represented at all OurWork/MPs_Allowances_0_1.html maintain - outside employment, the neat levels, lack crucial information, and do not solution of paying a full-time salary seems feel empowered. It recommended: voter Lords comings and goings inappropriate. Any new system of allowances registration and polling stations in schools, will need to be relatively consistent with what enhanced use of new media to engage with Following the allegations of impropriety over the Kelly committee recommends to the House young people, ongoing assessment of youth “cash for amendments” (see Monitor 42), Lord of Commons. By next year the system for both participation and legislative impact, annual Truscott and Lord Taylor of Blackburn were chambers is likely to have been reformed. scrutiny panels composed of young people, suspended from the chamber in May. Their and a national award to recognise youths suspension will last at least until the general New House of Commons Speaker Elected involved in ‘citizenship activities’. election. Various other membership changes have taken place, some more unusual than Tory MP became the 157th On the divisive issue of lowering the voting others. The June European elections saw the Speaker of the House of Commons after age (discussed in a separate report) the first automatic temporary “disqualification” defeating nine other candidates in the June commission ‘did not find significant evidence of a peer (Baroness Ludford) elected as an election. He replaces Michael Martin who upon which to base a recommendation’. It also MEP. In October when the Supreme Court resigned after serving for almost a decade said that such a clear conclusion is unlikely is established the serving Law Lords will as Speaker. Martin has always been a to emerge in the foreseeable future, and that be similarly disqualified, but in June a final controversial Speaker; however, his mis- this should therefore be decided by political Law Lord, Lord Kerr, was appointed. That handling of the Damien Green affair along processes and parties, and that ‘the approach same month the Cabinet reshuffle saw Lord with the MPs’ expenses scandal caused many of using independent commissions to review Mandelson promoted, and to lose confidence in his ability to serve any this issue ought not be used again.’ appointed a peer in order to become Europe longer. Bercow is also a controversial figure, minister. Controversially was known as one of the ‘most outspoken social The Youth Citizenship Commission Final also given a peerage and made “enterprise liberals’ within the Conservative Party (. Report, ‘Making the Connection: Building tsar”. There was much comment about the co.uk). Due to his lack of popularity within Youth Citizenship in the UK,’ is available at: number of peers now attending Cabinet the Conservative Party, Bercow’s election as http://www.ycc.uk.net/publications/ (four, routinely) and the size and influence of Speaker was made possible largely by gaining the support of Labour MPs. Lord Mandelson’s department, with limited PARTIES AND ELECTIONS accountability to the Commons. Concern has also been expressed that several of EXECUTIVE the “goats” (members of Gordon Brown’s Political Parties and Elections Act 2009 “government of all the talents”) appointed to the Lords as ministers have very quickly Youth Citizenship Commission Final Report The Political Parties and Elections Bill stepped down but remain as peers. These received Royal Assent in July. Although it was now include Lord Jones, Lord Carter, Lord In June the Youth Commission published introduced long before the MPs’ expenses Darzi and Lord Malloch Brown. The Commons its final report into youth citizenship and scandal came to light, the Act may be seen Justice Committee added an official voice to participation in the political system, entitled as part of a larger project of restoring trust these criticisms in July. Other new arrivals ‘Making the connection: Building youth in politics. It is designed to improve the include Baroness O’Loan citizenship in the UK’. regulation of elections in the United Kingdom and Lord Sacks, Conservative Lord Freud, by strengthening the investigative powers of and Crossbench hereditary Lord Aberdare, the Electoral Commission and providing it with The Commission was created in 2008, in the who won what could be the final by-election, additional sanctions. The Commission will be wake of the Governance of Britain Green following the death of Lord Bledisloe. Other able to impose civil sanctions on those who paper published the previous year. Its task notable deaths include Lord Dahrendorf and breach electoral , whereas before it could Lord Kingsland. was to define youth citizenship, find ways of only bring a criminal prosecution (which is increasing youth participation in politics, and viewed as too severe for many offences) or Lords expenses consult on the possibility of lowering the do nothing. . The Commons expenses row has been The Act also changes the composition of the followed by more limited, but nonetheless On citizenship, the commission found a lack of Electoral Commission, with up to four people potentially damaging, accusations about abuse identification with the concept at all ages. To with recent political experience now able to of Lords expenses in various newspapers. improve this, it said citizenship learning and serve as Commissioners at any one time. These mostly relate to peers claiming an experience should be embedded at a young Despite some controversy, rules relating to the overnight allowance provided for members age, with a ‘greater focus on political literacy’. political activities of Commission staff members who live outside on an allegedly It therefore recommended: establishing a | THE CONSTITUTION UNIT MONITOR | ISSUE 43 | SEPTEMBER 2009 | 4

PARTIES AND ELECTIONS (CONT’D) DEVOLUTION (CONT’D) have also been relaxed. The Act introduces So far, although the decision has proved in proportion to their respective populations. a number of measures designed to ensure unpopular with Scots and potentially Accordingly, it is based on expenditure per greater transparency and accountability relating damaged the SNP’s electoral chances, it has person rather than on the needs of the devolved to donations received by political parties and not undermined the status of the minority administrations. In the case of Wales, the candidates. For example, future donations will . Neither has it produced Formula is controversial because its application have to be accompanied by a declaration as to significantly greater pressure for MacAskill will eventually result in a convergence in the source of the money, and donations of more (already under parliamentary pressure over spending between which than £7,500 can only come from UK residents. such issues as knife crime and court reforms) does not take account of differing needs. Finally, the Act sets in motion a process to pave to resign as Justice Secretary. Lockerbie has the way for individual voter registration. overshadowed the other main issue in this The Commission concluded that Wales period: the publication of the Calman report. currently loses approximately £300 million The report was surprisingly ambitious, calling a year and that without changes that figure DEVOLUTION for more fiscal autonomy for the Scottish could reach £8.5bn within 10 years. As Parliament (although actually producing a a short-term solution, the Commission Scotland plan that makes it more accountable than recommends maintaining funding at current autonomous, by increasing the Scottish levels thereby stopping the relative decline The previous Monitor questioned the ’s ability to vary income tax but not in funding to Wales. The Commission’s other Government’s ability to maintain its image as a alter the mix of taxes overall) and the further recommendations include: ensuring that strong and competent government: when faced devolution of certain taxes and issues such as funding is aligned with the relative needs of the with problems passing its budget legislation Scottish Parliament elections, airgun regulation Assembly, which it presently is not; enhancing (highlighting the problems faced by minority and drink-driving limits. It also recommended the funding flexibility available to the Welsh governments); when struggling to address reforms to make intergovernmental relations Government; reducing the likelihood of future the economic crisis (highlighting its limited more formal and to extend the Scottish disputes by establishing an independent economic policy levers); and when faced with Parliament’s legislative process. advisory body to oversee the technical aspects a limited ability to engage in intergovernmental of the operation of the Barnett Formula; and by issues with the Prime Minister rather than the While it was received well by its main audience agreeing to a new Ministerial concordat on the Scottish Secretary (highlighting its status as (the Labour, Conservative and Liberal funding arrangements for Wales; and improving another UK government department rather than Democrat parties), no party has made any firm the transparency of the process by which the a government in its own right). In this period, commitment to implement its recommendations. Assembly Government is funded. the issue of the Lockerbie bomber served Indeed, the irony is that the party most critical further to challenge the SNP Government’s of the report is also the keenest to see some The report has been welcomed by the image both internationally and with its own of it implemented immediately. The SNP is Welsh First Minister, Deputy First Minister, electorate. particularly opposed to its fiscal measures, but and Finance Minister. But implementing the would like further devolution powers. Commission’s recommendations will require The issue is multi-faceted and still unfolding. considerable negotiation and consultation While the decision about whether or not to Paul Cairney, University of Aberdeen between the Welsh Assembly, Westminster, release Megrahi from Greenock prison was the Treasury and the other devolved ostensibly one for Scottish Justice Secretary Wales administrations. The Commission’s second Kenny MacAskill, it was linked to levels of report, which is expected in late 2009 or external pressure. This came not only from In July 2009, Commission early 2010, will focus on alternative funding highly vocal US sources – such as the FBI on Funding and Finance for Wales released arrangements and powers to vary taxation director Robert Mueller and Secretary of its first report which recommends significant and borrow money. State Hilary Clinton – against his release, but changes to the way that funding is allocated also alleged pressure from UK government by Westminster to the Welsh Assembly. The Northern Ireland sources to allow his release as a way to foster Commission, which is chaired by the economist closer economic and political links between Gerald Holtham (the Holtham Commission), It was another period of drift and inertia in the UK and Libya. More could have been was established as part of the One Wales Northern Ireland, with the largest party, the made of the Scottish-UK intergovernmental coalition agreement between Labour and Plaid Democratic Unionist Party, continuing to issue had MacAskill agreed to Megrahi’s Cymru. Its terms of reference are to examine demonstrate its determination to use the release under the UK-Libya prisoner transfer the pros and cons of the present Barnett power over Sinn Féin granted to it in the St agreement, particularly since Formula based approach to the distribution Andrews agreement of 2006, which paved the was highly critical of then Prime Minister Tony of public funds to the Welsh Assembly way for the renewal of devolution in May 2007. Blair’s involvement in the agreement and the Government and to consider whether the absence of FCO consultation with the Scottish Assembly should have the power to vary the Addressing an event in May commemorating Government. Instead, MacAskill released rate of taxation and borrow money. The Calman the 1981 IRA hunger strike, the deputy Megrahi on compassionate grounds, allowing Commission has undertaken a similar review of first minister, Martin McGuinness – whose him and Salmond to present a narrative based funding devolution in Scotland. photograph, gun in hand, from 1972 was Scottish ministerial autonomy (which the UK splashed on during the period – Government has been happy to reinforce, For nearly thirty years the Barnett Formula has warned unionists that the alternative to what with Gordon Brown particularly reluctant to been the primary mechanism through which the he called ‘partnership and equality with Sinn comment) and the principles of , Treasury distributes funds to Scotland, Wales Féin’ was ‘deadlock and stasis’. The DUP’s leaving others to explore the degree of and Northern Ireland. Under the Formula, any European candidate, Diane Dodds, however external interference. change in public expenditure in England will be insisted: ‘Using devolution we have brought the distributed across the three devolved regions Sinn Féin agenda to a grinding halt’. | ISSN 1465–4377 | 5

DEVOLUTION (CONT’D) HUMAN RIGHTS (CONT’D)

But the party was challenged by a renegade Belfast earlier in June. The previous month a (para. 59)’. Rather than issue a declaration of member and incumbent MEP, , who Catholic had been brutally slayed by ‘loyalists’ incompatibility, the Lords ordered the cases to pointed to the contradiction in the DUP sharing in Derry. And a series of minor sectarian be heard again in accordance with their ruling. government with SF by day while attacking it attacks were reported during the period – at on the doorsteps by night. Bairbre de Brún of the end of which yet another ‘peace wall’ was The full judgment is available at: SF duly topped the Euro-poll in June and the erected in Belfast. http://www.publications.parliament.uk/pa/ DUP leader and first minister, Peter Robinson, ld200809/ldjudgmt/jd090610/af.pdf reshuffled his team, tasking his former finance Robin Wilson, Queen’s University Belfast minister and potential successor, , Trouble at the Equality and Human with ‘reconnecting’ with the party’s base. Rights Commission HUMAN RIGHTS SF was however unable to bathe in victory. After facing significant criticism for his The party lost its Euro-seat in Dublin and Law Lords strike another blow to leadership , the embattled chairman of for the first time in more than a quarter of a Government’s counter-terrorism strategy the Equality and Human Rights Commission century there were calls for Gerry Adams to (EHRC), Trevor Phillips, announced that he is step down as leader. Party activists in the The Government’s counter-terrorism strategy to give up some of his powers. The EHRC has republic became increasingly restive about the suffered another blow this June when the law been plagued by scandal and infighting for over perceived irrelevance of the party in the south, lords ruled that the use of secret evidence a year now. The National Audit Office released and in the north worried that it was being against three men subject to control orders a report in July which found that the EHRC stymied by the DUP at every turn. denied their right to a fair trial. In Secretary of had spent nearly £1 million on consultancy State for the Home Department v AF [2009] contracts offered to seven of Mr Phillips’ former Shaken by the election, the DUP continued to UKHL 28, the three appellants were subject colleagues at the EHRC who had recently been drag its feet on the devolution of policing and to control orders which placed significant made redundant. Moreover, since March, six of justice—though advocated by the outgoing restrictions on their . Control orders seventeen commissioners have resigned, most chair of the Policing Board and the outgoing were introduced by Parliament in response to of them after the announcement that Mr Phillips chief constable, Sir Hugh Orde. The DUP the decision in A v. Secretary of State for the would be reappointed for another three years demanded that the Treasury first provide Home Department [2004] UKHL 56. In that (Times, August 11). Mr Phillips has agreed to additional funding. A frustrated Mr Adams earlier case the law lords held that section 23 restructure the EHRC by appointing a senior ominously told a paramilitary-style gathering in of the Anti-Terrorism Crime and Security Act, official to head each of its areas of activity Co Tyrone: ‘The republican struggle was not which provided for the of which is likely to diminish his overall authority and is not about bums on executive seats …’ foreign nationals suspected of involvement with within the Commission. terrorism, was incompatible with articles 5 and 15 of the ECHR. On those seats, there was correspondingly INFORMATION POLICY little activity. The - increasingly semi-detached from the executive The can impose control and itself divided over its liaison with David orders on individuals who are suspected of Constitution Unit study on the impact of FOI Cameron’s Conservatives - claimed in involvement in terrorism but who cannot be June that four-fifths of assembly business deported or prosecuted. Control orders can be The FOI team recently completed its two and comprised private members’ motions. used to impose curfews of up to 16 hours a day, a half year ESRC funded study into the impact place restrictions on the use of mobile phones of FOI upon British central government. The study had two aspects. First, it examined Impasse remained on the future of academic and the internet, and require the ‘controlee’ to whether FOI had met its six objectives. The selection – with the now abolished ‘transfer regularly check-in with police. objectives comprised two ‘core’ aims of test’ being replaced by two unregulated increasing transparency and accountability, and tests applied by most grammar schools The central issue in the 2009 case was whether four ‘secondary’ aims of improving decision- this academic year – despite teachers’- the procedures for the judicial supervision of making, improving public understanding, and union warning to the assembly’s Education control orders satisfied the appellant’s right increasing public participation and trust in Committee of ‘chaos’ come September. There to a fair hearing under article 6 ECHR. The government. Second, it looked at how FOI may was still no sign of a devolved replacement appellants maintained that they had been have impacted upon the Whitehall model of for the direct-rule strategy to assist victims denied a fair hearing because the judges relied government, with its key features of ministerial of the ‘troubles,’ leaving the four-member primarily on secret evidence when deciding accountability, collective cabinet responsibility Commission on Victims and Survivors to impose the control orders. Much of the and effective government. established in January 2008 twiddling its sensitive evidence is not disclosed to the defendants. Instead, special security vetted thumbs. And Mr McGuinness could only advocates can hear the sensitive evidence, The study drew upon interviews with a wide pledge that the successor policy to deal with but cannot disclose it to the defendant. A range of officials across eight government sectarianism and racism, which had been due recent judgment of the ECtHR held that when departments, plus requesters and journalists. to be launched at the Community Relations full disclosure of evidence is not possible for This was supplemented by an online survey Council conference in April 2008, would be reasons of national security, the Convention of requesters and analysis of more than worked on over the summer. requires that the ‘controlee’ has the opportunity 1000 newspaper articles in the national press to effectively challenge the case against him between 2005 and 2008. This last aspect was This policy vacuum was not without or her. As Lord Phillips explained, when ‘the particularly important given that 99.9% of the consequence: Mr McGuinness was speaking case against the ‘controlee’ is based solely or public only learn about FOI disclosures through in an assembly debate following the expulsion to a decisive degree on closed materials the the media (as less than 1 in 1000 people make of more than 100 Romanian Roma from south requirements of a fair trial will not be satisfied… an FOI request). | THE CONSTITUTION UNIT MONITOR | ISSUE 43 | SEPTEMBER 2009 | 6

INFORMATION POLICY (CONT’D) INTERNATIONAL FOCUS (CONT’D)

The findings showed that FOI has achieved its close with the Information Tribunal’s ruling representative. Politicians within the TCI two core objectives of increasing transparency ordering disclosure of the Cabinet minutes along with the 15 member states of the and accountability. Central government is on , which the government subsequently Caribbean Community have criticised the more transparent, and is pro-actively releasing vetoed. decision as “drastic” and neo-colonial. information with a more ‘open attitude’. FOI has also been used as a tool of accountability, The final concern examined was one that has been associated with FOI regimes across the though only when the context is supportive. PEOPLE ON THE MOVE world: the so-called ‘chilling effect’. It is alleged However, FOI has not met its supporters’ to that to avoid disclosure, official information Chris Wormald is the new head of the highest hopes. It has had little impact upon is created and distributed in ways that are Economic and Domestic Secretariat, Cabinet the secondary objectives. The study found not recorded. Although the cause of much Office, in succession toPaul Britton. Paul that FOI had not improved decision-making, anecdotal evidence and conjecture, there was continues to be the Prime Minister’s Church very little hard evidence or concrete examples as wider initiatives towards evidence based Appointments Secretary, working on a part policy-making had a far greater influence. FOI of the ‘chilling effect’ at work. In those few time basis. has not increased public understanding, as cases where recording behaviour changed, the media rarely reports FOI disclosures that factors other than FOI were responsible, such In July 2009, the House of Lords Constitution have revealed decision-making information. as changes in how decisions are made or lack Committee appointed two new legal advisers, Requesters rarely ask for it and access to such of resources to create records. Overall, the in succession to Professor Andrew Le Sueur information is not guaranteed. Nor has FOI great majority of officials felt that not having (Queen Mary, University of London) who widened public participation. It is used mainly a full record would ultimately cause far more stands down after three-and-a-half years in the by professionals (journalists or campaigners) trouble than having it. role. They are Professor Richard Rawlings or those members of the public already (Faculty of Laws, UCL) and Professor Adam involved in the political process in some way. The study will be published as a book next Tomkins (School of Law, University of Finally, FOI has not increased public trust. year. The Unit is now beginning an ESRC ). funded study of FOI at the local government The most frequent stories revealed by FOI Robert Rogers, at present Clerk of level using the same methods. In parallel, and highlighted by the media concern failure, Legislation, has been appointed Clerk incompetence or maladministration. Moreover, it is conducting a Leverhulme Trust funded Assistant and Director General Chamber and study of the impact of FOI upon Parliament, decisions to withhold information – the Committee Services of the Commons. David minority of cases - often make the headlines, examining both how MPs have used FOI and Natzler replaces Robert Rogers as Clerk of how Parliament has been affected by the Act. characterising the government as secretive. Legislation. FOI is caught within the wider conflict between More details on the study can be found Jacqy Sharpe replaces David Natzler as parts of the press and government, a point at the new FOI website: www.ucl.ac.uk/ Clerk of Committees, while Andrew Kennon thrown into sharp relief by the MPs’ expenses constitution-unit/research/foi/index.html becomes the Principal Clerk Table Office. controversy. Liam Laurance Smyth replaces Andrew This is not to say FOI has ‘failed’. FOI was Kennon as Clerk of the Journals, and Simon Patrick replaces Liam Laurance oversold and claims were made that were INTERNATIONAL FOCUS unlikely to be achieved. It was not made Smyth as Clerk of Bills. clear how, for example, FOI would stimulate Turks and Caicos Islands back under This summer’s Cabinet reshuffle saw the participation. Moreover, FOI is shaped by its direct British rule resignations of , , context. The government is becoming more , John Hutton, , accountable and transparent without FOI and On Friday 14 August the British and . this movement helped FOI achieve these , and in the Turks and Caicos Islands (TCI) Tony McNulty Beverly Hughes Liam goals. Yet low levels of participation, trust and Byrne are left out of the new Cabinet. Alan stated that a proclamation had been public understanding are problems that are Johnson moves from Health to the Home signed which brings into force an Order in complex and multi-causal. The belief that FOI Office, while former Culture Secretary Andy Council suspending parts of the Islands’ would improve them ignores political realities. Burnham moves to the Ministry of Health constitution. The move follows an inquiry To achieve these objectives, FOI disclosures with taking over as Secretary which revealed widespread corruption would have had to lead to changes in public of State for Culture, Media and Sport. Bob within the government. It is alleged that behaviour that run contrary to long-established Ainsworth takes over as Minister of Defence, foreign developers and investors bribed patterns. is the new Secretary of State Ministers and other government officials for Communities and Local Government, with FOI has not, however, realised the fears of in order to secure favourable deals on Lord Adonis taking over as the Minister for sceptics and opponents. It was feared that Crown Land. Christopher Bryant, the Transport. is promoted to FOI exposure would reduce civil servants Parliamentary Under-Secretary of State Secretary of State for Work and Pensions, anonymity and impartiality by publicly for Foreign Affairs, explained that, ‘This while Peter Hain becomes the Secretary of identifying them. Or that it would erode is a serous constitutional step which the State for Wales. Finally, Lord Mandelson has collective Cabinet responsibility by exposing UK Government has not taken lightly but Innovation and Skills added to his already vast discussion and undermine ministerial these measures are essential in order portfolio which includes Business, Enterprise accountability by bypassing Parliament. to restore good governance and sound and Regulatory Reform. However, FOI has had little bearing on financial management (Independent, Alan Gillespie, former investment banker, has officials being identified or associated with August 15).’ The suspension is set to last succeeded Lord (Adair) Turner as chair of the particular policies. Ministerial accountability for two years, during which time the territory ESRC. to Parliament has not diminished. Nor has it will be under the direct rule of Governor exposed Cabinet discussion, though it came Gordon Wetherell, who is the Queen’s | ISSN 1465–4377 | 7

CONSTITUTION UNIT NEWS

Devolution Monitoring Reports and the unfinished business from recent and make recommendations regarding the constitutional reforms, and set out the options appointment of members and chairmen of Sadly the ESRC has decided not to continue facing an incoming government. The biggest select committees, and allowing the public to funding the Devolution Monitoring Reports, items on the Conservative agenda are a initiate debates and proceedings in the House which we produce with our research partners referendum on the EU Treaty; replacing the of Commons. in Scotland, Wales, Northern Ireland and the Human Rights Act with a British bill of rights; English regions. In 2008 we obtained offers reducing the size of the Commons and the FOI Live to fund the reports for a further three years Lords; introducing English votes on English from the UK government and the Welsh laws; and strengthening Parliament. The Unit’s annual conference for Freedom of and Scottish governments. We then sought information practitioners, run in partnership matching funding from the ESRC under their The Conservatives will not want to move with the Ministry of Justice and Information Ventures Fund, but they have declined to do fast on all these items. has Commissioner’s Office, took place at the so. We are still in discussion with the three indicated that Lords reform is a ‘third term’ Victoria Park Plaza Hotel in London on 11 governments to see if they might be willing to topic. Reducing the size of the House of June this year. The conference attracted more fund a streamlined set of reports. It would be a Commons would take at least two , than 200 delegates from across the public great pity to abandon our work on devolution, and might not be implemented until the third. sector. It was made up of workshops and and the research networks it sustains, just Developing a British bill of rights would require panels from across the field of information when it has reached such an interesting widespread public consultation, which would rights. Highlights from the day included a juncture. also take years. One purpose of the briefing is discussion of the Obama administration’s to think through the phasing and the timetable plans for FOI by Honorary Senior Research for the different constitutional reform items, Minority and coalition government Associate Professor Daniel Metcalfe and and their impact on each other, so that the presentations by a panel of FOI requesters. In anticipation of a possible hung parliament Conservatives and Whitehall have a more The day ended with a valedictory address by after the next general election, we are realistic sense of what they might do, and in outgoing Information Commissioner Richard revisiting and updating earlier research what order. Thomas looking back on his time in the post. conducted by Ben Seyd. In 2000-01 he carried Pre appointment scrutiny hearings Constitution Unit Staff Update out a two year study which looked at coalition government in Denmark, Germany, Ireland The Unit has been commissioned by the FOI/DP team Research Assistant Mark and New Zealand. His report was published as and the Liaison Committee Glover has left the Unit in July 2009 to go to Coalition Government in Britain: Lessons of the House of Commons to conduct an the National Audit Office. Mark was with the from Overseas (CU publication 84). It covered evaluation of the new scrutiny hearings being Unit from January 2006 and was a key part the rules on government formation and conducted by Select Committees before of the ESRC funded project into the impact of dissolution; negotiating a coalition; drafting the major public appointments. This innovation FOI upon British central government working coalition agreement; and managing coalition was first proposed in Gordon Brown’s 2007 alongside Sarah Holsen and then Ben Worthy. government. Governance of Britain green paper. In 2008 He was also responsible for the Unit’s seminar Our new study will focus mainly on minority the government and Liaison Committee series, which expanded during his time, the government, and will update the previous agreed on a list of 60 appointments which Unit newsletter and a whole range of other study by looking at the experience of New would be subject to scrutiny hearings, on activities. Everyone at the Unit wishes him the Zealand since 1996, Canada (13 minority a pilot basis. The Unit will study the first 15 best of luck in his new career. governments in the past century), and appointments subject to the new procedure, This summer the Unit also welcomed two new Scotland. The Unit’s research team is led which fell vacant in 2008 and 2009. staff members. Mark Chalmers joined in June by Robert Hazell, with Mark Chalmers from The Commissioner for Public Appointments, as a part-time research assistant to Robert Canada and Ben Yong from New Zealand, Janet Gaymer, has expressed serious Hazell after completing an LLB at the London working in partnership with Akash Paun from concerns about the new procedure. She School of Economics. He also holds degrees the Institute for Government. fears that it will politicise the process, put off in Political Science from the University of Recent experience in Canada shows the potential candidates, lengthen the process, Windsor in Ontario Canada. His research difficulties of minority government, but and undermine its integrity. The purpose interests include comparative constitutional Scotland and New Zealand both demonstrate of the Unit’s study is to investigate whether law and judicial decision-making. that minority government can be stable, those fears have been borne out in practice, In August, Gabrielle Bourke joined the Unit as coherent and effective. Our report will be and to ask what value is added by the new a full-time research assistant. Prior to joining published in the autumn, and will draw out the scrutiny hearings, in making the executive the Unit Gabrielle worked as an Executive lessons for the Prime Minister, Parliament, more accountable, and the process more Assistant to the Honourable Michael Cullen opposition parties, , the media and transparent. The study will be led by Peter MP and former Deputy Prime Minister of the public. If you want to see the report in Waller, formerly a senior civil servant with a lot New Zealand. She holds a Master of Arts draft, contact [email protected] of experience of public appointments. It should be completed in early 2010. Degree from the University of Auckland and a Bachelor of Arts Degree from the University Conservative agenda for constitutional reform Meg Russell Appointed Specialist Adviser of Otago. to the Committee on Reform of Parliament The Unit is planning to produce a briefing on Interns...As always, the Constitution Unit is the Conservatives’ agenda for constitutional The Deputy Director of the Constitution grateful for the hard work and diligence of reform, similar in spirit to the briefing we Unit, Dr Meg Russell, was appointed as a its interns: Maria Baqueriza, Leah Jennings, produced before Gordon Brown became Specialist Adviser to the Select Committee Senay Nihat, Kristina Wollter, Ben Yong, Prime Minister in 2007. It will take all the on Reform of the House of Commons in July Agnieszka Smolenska, Sundeep Iyer, Conservatives’ known policy commitments, 2009. The role of the Committee is to consider Simon Black and James Easy. 8 BULLETIN BOARD

RECENT UNIT PUBLICATIONS FORTHCOMING EVENTS PUBLICATIONS RECEIVED

• Levy, J. ‘Strengthening Parliament’s Constitution Unit Seminars • , The New British Powers of Scrutiny: An assessment Constitution (Hart Publishing, 2009) of the introduction on Public Bills Committees,’ July 2009. Copies of the • Lord Jay of Ewelme (Chair, House of Lords • Kochan, B. (ed.) London Government: report can be obtained by emailing: Appointments Commission), Thursday 22 50 Years of Debate (London: LSE, [email protected]. October, 1pm, The Work of the House of 2008). Lords Appointments Commission. • Morris, R.M. (ed.) Church and State • Parker, S., Paun, A. and McClory, J. in 21st Century Britain. The Future of • Michael Russell (MSP, Minister for Culture, The State of the Service: A review of Church Establishment (Basingstoke: External Affairs and the Constitution), Monday Whitehall’s performance and prospects Palgrave Macmillan, 2009). 9 November, 6pm, The Constitutional Debate for improvement (London: Institute for about Scotland’s Future. Government, 2009). • Tyrie, A., Young, G. and Gough, R. • Strafford, J. Our Fight for : (ed.) ‘An Elected Second Chamber: A • Dr Tony Wright (MP, Chair, Committee A in the United Conservative View’, July 2009. Available on Reform of Parliament), Wednesday 25 Kingdom (Beaconsfield: J. Strafford at: http://www.ucl.ac.uk/constitution-unit/ November, 1pm, Reforming Parliament Holdings Ltd., 2009). files/publications/unit-publications/ (Subject to change depending on the 146.pdf. speaker’s schedule, check website for updates). Further details on Constitution Unit STOP PRESS • Sir Christopher Kelly (Chair, Committee publications can be found at: http://www. for Standards in Public Life), Wednesday ucl.ac.uk/constitution-unit/publications Sir George Young MP has been 20 January, 6pm, MPs Expenses and appointed Shadow Leader of the House Allowances. of Commons, following David Cameron’s removal of MP from the • Peter Riddell (Assistant Editor for ), . Sir George is on the Thursday 4 March, 1pm, How to Ensure more Council of the Society and a effective Transitions of Government. committed parliamentary reformer. He is also joint author of the Constitution Unit’s Government Information Policy Seminar latest publication: An Elected Second Series 2009 (subscription only) Chamber – A Conservative View (see opposite).

• Jane Sigley (Head of FOI Policy and Strategy, Ministry of Justice), Tuesday 8 September, 6:15pm, Information policy: where we’ve come from, where we’re going (provisional title).

• Jeremy Hayes (Senior Editor, “The World Tonight,” BBC), Tuesday 13 October, 6:15pm, A Shock to the System: Journalism, Government and the FOI Act.

• Professor John Angel (Chair, Information Tribunal), Tuesday 17 November, 6:15pm, Cases at the Information Tribunal.

Full information on events can be found at: http://www.ucl.ac.uk/constitution-unit/events/ index.html

The Constitution Unit, UCL Department of Political Science, 29–30 Tavistock Square, London WC1H 9QU