| THE CONSTITUTION UNIT NEWSLETTER | ISSUE 34 | SEPTEMBER 2006 | MONITOR HUMAN RIGHTS SABRE RATTLING IN THIS ISSUE This summer saw some strange manoeuvring Chahal v UK which led the High Court to rule that as the Labour and Conservative Party leaders the Afghan hijackers could not be deported back PARLIAMENT 2 sought to outdo each other in attacking the to Afghanistan, because they faced the risk of Human Rights Act. Following a court decision ‘inhuman or degrading treatment or punishment’. in May overruling the proposed deportation PUBLIC HONOURS 2 of nine Afghan hijackers, which both party David Cameron’s pledge of a British bill of rights UNDER SCRUTINY leaders said defied common sense, the Prime could have more far-reaching consequences, Minister ordered a review of the operation of not least because of his wish for the bill of rights the Act. In a speech to the Centre for Policy to be entrenched. Ironically it was Labour Party Studies on 26 June David Cameron went policy in 1997 to move to a British bill of rights PARLIAMENT AND THE 3 one stage further and promised to scrap the as a second stage, but that was quietly dropped ROYAL PREROGATIVE Human Rights Act altogether and replace it once the ECHR had been incorporated. Cameron with a British bill of rights. recognises the UK’s commitment to remain within the ECHR, so his British bill of rights would have CONSERVATIVE PARTY 3 Both leaders were responding to a long running to be the ECHR plus: unless there are further CONSTITUTIONAL POLICY press campaign. The Sun, Mail and Telegraph derogations, it cannot be ECHR minus. The have portrayed the act as a charter for foreigners drafting will be left to a panel of experts, but he and scoundrels, and EU inspired to boot. These also promised to promote public debate as the papers welcomed Blair’s review and Cameron’s drafting proceeds, in order to achieve a lasting DEVOLUTION 3 commitment to scrap the Act; but the small consensus. If that public debate is achieved, over print of the politicians’ statements was more a number of years as Cameron suggested, a nuanced than the headlines they generated. On British bill of rights could become as deep rooted FOCUS ON GERMANY 4 the Labour side, the Prime Minister asked the as the Canadian Charter of Fundamental Rights Home Secretary ‘to look again at whether primary and Freedoms, and no longer capable of being legislation is needed to address the issue of depicted as part of some European plot. FREEDOM OF INFORMATION 5 court rulings which overrule the government in a way that is inconsistent with other EU countries’ NEW DEVOLUTION ACT FOR WALES interpretation of the ECHR’. The Government of Wales bill finished its PARTY FUNDING REFORM 6 The report of the government’s review published parliamentary passage in July, just before on 25 July represents a victory for the DCA Parliament rose for the summer. Its final approval over No 10 and the Home Office. Lord Falconer followed a short stand-off between Commons and THINK TANKS IN THE NEWS 6 concludes that the impact of the Human Rights Lords, although the bill passed through the Lords Act on UK law and policy making overall has with relatively few amendments. The main point been beneficial. Difficulties have only arisen of contention was the ban on ‘dual candidacy’ because of myths and misperceptions about the for both constituency and regional list seats in FOCUS ON CATALONIA 6 Act; and because of over-zealous interpretation National Assembly elections. Opposition and by officials, who may occasionally pay too much cross-bench peers in the Lords sought to undo the attention to individual rights at the expense of the proposal to ban this which had been adopted by CONSTITUTION UNIT NEWS 7 wider community (as seems to have happened the Commons and included in both the 2005 white in the case of the release by the Parole Board paper Better Governance for Wales, and Labour’s of Anthony Rice). To counter these difficulties UK general election manifesto. Ultimately, a BULLETIN BOARD 8 the government is to lead a drive to ensure that trade-off with a compromise on the rules for the the public are better informed about the benefits composition of Assembly committees enabled of the HRA, and that officials place appropriate Liberal Democrat peers to abstain, and the bill to emphasis on public safety. The Home Office is to pass with the ban intact. The new election rules review how police, probation, parole and prison will apply at the May 2007 Assembly elections, services balance public protection and individual and the new arrangements including a formal rights; and in a gesture to the Prime Minister’s split between the devolved legislature and the original concerns, the government ‘if necessary, executive (to be called the Welsh Assembly will legislate to ensure that public protection is Government) will apply after then. given priority’. For the report see www.dca.gov. uk/peoples-rights/human-rights/pdf/exec_ The most important provisions of the new Act are summ_intro.pdf. those enabling legislative powers to be conferred 34 on the Assembly. Initially, powers will be The government is also planning a more conferred on a case-by-case basis by secondary The Constitution Unit proactive and strategic approach to human Westminster legislation. Broader legislative UCL Department of Political Science rights litigation. As part of this it is supporting a powers over the whole of 20 ‘fields’ set out in the Director: Professor Robert Hazell CBE test case brought by the Netherlands to try to Act, including health, education, local government www.ucl.ac.uk/constitution-unit persuade the European Court of Human Rights to and agriculture, can be conferred following Email: [email protected] incorporate a balancing test into its jurisprudence approval in a referendum, which the Secretary Phone: +44 (0) 20 7679 4977 on deportation. It was the court’s 1996 decision in of State will call. These procedures raise many Fax: +44 (0) 20 7679 4978 | THE CONSTITUTION UNIT MONITOR | ISSUE 34 | SEPTEMBER 2006 | 2 PARLIAMENT questions. It is unclear what legislative the 666 after most hereditaries departed be agreed. Ministers have indicated that powers the Assembly will seek in the short in 1999. One difficulty is that peers cannot agreement is necessary if reform is to term, how transfer orders will be scrutinised retire (though they can go on temporary proceed, and yet most accept that reform at Westminster, how these powers ‘leave of absence’, and these figures will change the relationship between the will relate to greater proposed use of exclude the handful who have done so). chambers and thus conventions may framework legislation in primary legislation This problem was highlighted in July by crumble anyway. One thing to emerge for England and Wales, or even how long former Liberal Democrat frontbencher Lord is the government distancing itself from this ‘transitional’ phase might last. So far Phillips of Sudbury, when he announced the manifesto proposal to limit Lords’ there is little indication from the Assembly his desire to leave the House. He consideration of bills to 60 sitting days Government of its legislative ideas, introduced the Life Peerages (Disclaimer) – not least because evidence from the Bill, which would allow life peerages to be Clerks showed that almost half of bills take although the looming election campaign renounced, and require the prime minister more time than this. A 60-day limit would may stimulate the parties to come up to appoint a replacement from the same thus be contrary to recent convention. with interesting proposals. The extent to political party. The bill has no immediate which the new Act leaves Welsh devolved prospect of becoming law. House of Lords Speaker Elected government entangled with the UK’s may prove highly problematic, however, Joint committee on conventions On 4 July 2006, a minor piece of especially when different parties hold constitutional history was made as the office in London and Cardiff. While the bill In May the long-awaited parliamentary joint House of Lords elected its first Speaker. is an imaginative technical response to a committee on the Lords was established. Nine candidates stood for election to the clever political compromise, those technical However, contrary to rumour (and the post under the Alternative Vote System. responses may not be able to cope with report in the last Monitor) it will not With 581 votes cast, Baroness Hayman serious political differences. consider the chamber’s composition, but won the election replacing the Lord only conventions governing its relationship Chancellor from his centuries-old position Lords Reform with the Commons. The Joint Committee on the ‘woolsack’. on Conventions comprises 11 peers and The controversy over ‘cash for peerages’ 11 MPs (11 Lab, 6 Con, 3 Lib Dem, 2 The Lords took the decision to elect its (see below), coupled with the appointment Crossbench). It is chaired by Labour’s own presiding officer in July 2005 following of Jack Straw as Leader of the House Lord (Jack) Cunningham, who skilfully the enactment of the Constitutional Reform of Commons, have reawakened interest steered the previous committee away Bill which makes it possible for the Lord in Lords reform. The May reshuffle saw from conclusions that the Commons might Chancellor to be drawn from either House. agree on in 2003. In contrast this time The move also fits in with a trend for a Straw not only change jobs, but take ministers are seeking agreement, but clearer separation of the three branches responsibility for Lords reform policy from seem unlikely to get it.