Parliamentary Committee considers remit of the proposed Constitution, Democracy and Rights Commission

The House of Commons’ Public Administration and Constitutional Affairs Committee (the “PACAC”) is conducting a Call for Evidence as part of its inquiry (the “Inquiry”) in relation to the commitment in the 2019 Conservative Party manifesto (at page 48) that the Government would establish a Constitution, Democracy and Rights Commission (the “Commission”).

Background

According to the manifesto commitment, the Commission’s purpose would be to make proposals “to restore trust in our institutions and in how our democracy operates”. The manifesto stated that the role of the Commission would be to examine: the relationship between the Government, Parliament and the courts; the functioning of the Royal Prerogative; the role of the House of Lords; and access to justice for ordinary people. It appears the intention was that the Commission would also “update” the Human Rights Act and administrative law, as well as ensure that judicial review is “available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays”.

The Government subsequently announced that it had appointed a panel of experts to examine whether there is a need to reform the judicial review process and there was a Call for Evidence by the Government’s Independent Review of Administrative Law (the “IRAL”; see Public Law Notes updates of 3 August 2020 and 27 October 2020). As regards the remaining commitments, the Government has made no announcements about the form or timing of the Commission except in the Queen’s Speech.

The Call for Evidence seeks submissions on the form which the Commission should take, its main purpose and output, and any particular issues which should be a priority for the Government. This Call for Evidence gives members of the public the opportunity to have their say and influence the findings of the Inquiry.

Evidence to the Inquiry

Oral evidence has been given to the Inquiry by a number of individuals including Lord Sumption, former Justice of the Supreme Court, and academics.

The focus of the oral evidence given so far has been on what should be the priorities for the Commission. The suggestions covered a broad array of topics including (among others):

  • The context of the reforms that the Commission would consider in that Brexit is “affecting the relationships between the different institutions in the Constitution” in any case and so it may be sensible to consider significant constitutional issues at this juncture;
  • The opportunity to “rebuild public trust” in the institutions following the divisive Brexit debates;
  • The electoral system;
  • The House of Commons’ ability to control the legislative agenda;
  • The implications of the Human Rights Act 1998;
  • The separation of powers;
  • The role of the public and how the public might be engaged with the Commission;
  • Whether the Government is approaching the issues which the Commission will consider with an open mind.

The PACAC has not yet stated when the findings of the Inquiry will be published.

Selecting a tactical or strategic approach to constitutional reform

The New Labour Government’s constitutional reform programme in the 1990’s and 2000’s took what some have described as a “piecemeal” approach as it introduced devolution, enacted the Human Rights Act 1998; established a freedom of information regime and reformed the House of Lords. Given the pressure of COVID-19, the Government may find that it does not now have the time to consider constitutional reforms in the round. Therefore, there is a real possibility that this Government could replicate New Labour’s approach, by thinking about issues tactically and thus leaving some dissatisfied.

Evidence given to the Inquiry by Professor Russell, Director of the Constitution Unit at University College London, suggested that there has been a “sort of scattergun” approach by Government, including proposals such as moving the House of Lords to York; abolishing certain regulators or weakening their powers; and establishment of the IRAL. Further, there have been reports over the weekend that the Government is backing plans to reform the Supreme Court by reducing the number of Justices and renaming the institution. Lord Lisvane, a Member of the Constitutional Reform Group Steering Committee, has also suggested that the overlap between the Commission and the IRAL is “a recipe for unconstructive confusion”.

Lord Lisvane has rightly pointed out to the Inquiry the potential scale of the Commission’s remit:

The daunting thing about what is proposed is the sheer size of the canvas. As soon as you start unpacking the individual elements they expand further. For example, how do you do Government and Parliament relations without looking at the devolution settlements? How do you do access to justice for—in the condescending phrase—ordinary people without looking at the structure and resourcing of the justice system and legal aid? As soon as you start looking in more detail, the sheer size of the task starts to increase. I think that that is going to be a major challenge…

The Call for Evidence closes on 16 November. It will be interesting to see how the Committee’s findings fit with the remit of and any recommendations made by IRAL, which is due to report back later this year.

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Supreme Court holds that public authorities may disapply secondary legislation in cases of incompatibility with the Human Rights Act

In RR v Secretary of State for Work and Pensions [2019] UKSC 52, the Supreme Court has dealt with an important constitutional question on the powers of public authorities and tribunals. In its judgment handed down today, it held that a public authority, court or tribunal can disapply a provision of subordinate legislation which would otherwise result in their acting incompatibly with rights under the European Convention on Human Rights where this is necessary to comply with the Human Rights Act (“HRA”).

HSF acted for three charities – Liberty, Child Poverty Action Group, and Public Law Project – who jointly intervened before the Supreme Court.

Key points

  • Secondary legislation is subordinate to the requirements of an Act of Parliament. Consequently, where provisions in secondary legislation produce outcomes that are contrary to the requirements of an Act of Parliament, a public authority, court, or tribunal can disapply such a provision.
  • In a human rights context, as a general rule, a provision of subordinate legislation which results in a breach of a Convention right must be disregarded.

Background

This case is the latest in a line of decisions relating to the judicial review of the regulations governing the removal of the spare room subsidy for people in social housing (colloquially known as the “bedroom tax”). The bedroom tax is effectively a percentage reduction in the eligible rent if the number of bedrooms in social sector properties exceeds a certain defined number calculated in line with regulation B13(5) and (6) of the Housing Benefit Regulations 2006 (“the Regulations”). In 2016, the Supreme Court in R (Carmichael) v Secretary of State for Work and Pensions [2016] UKSC 58 held that regulations B13(5) and (6) led to unjustified discrimination on the ground of disability to the extent that they did not cater for a “a transparent medical need for an additional bedroom” (“Carmichael SC”). The relief granted was a declaration that the claimant had suffered discrimination contrary to article 14 of the Convention.

In response to the decision, the Respondent introduced the Housing Benefit and Universal Credit (Size Criteria) (Miscellaneous Amendments) Regulations 2017 (SI 2017/213) which were intended to cater for the instances in which the Supreme Court had held that the previous version of regulation B13(5) and (6) led to violations of a ECHR (the “Amended Regulations”). They came into effect on 1 April 2017 and were not retrospective.

However, there remained a number of cases before local authorities and tribunals that related to the period between the relevant provisions of the Regulations coming into force in 2013 and the Amended Regulations coming into force in 2017.

Facts

The initial claim leading up to today’s decision was also brought by the Carmichaels. They argued that they needed a second bedroom due to Mrs Carmichael’s medical condition. This was not a situation contemplated by the Regulations. The local authority in question, Sefton Borough Council, applied regulation B13 and decided that, because they were a couple, they were only entitled to one bedroom and consequently applied the 14% reduction contemplated in the Regulations.

The Carmichaels successfully challenged this decision in the First-tier Tribunal (FTT) in 2014. The FTT’s rationale was that in light of the interpretative obligation under section 3(1) of the HRA, regulation B13(5)(a) should be read so as to apply either to a couple or to one member of a couple who could not share a bedroom because of the disability of one of them.

The government pressed on with its challenge to the FTT decision, notwithstanding the fact that by this time the Supreme Court in Carmichael SC had found that the Regulations as applied in cases such as that of the Carmichaels led to a breach of Convention rights. The Upper Tribunal (UT) confirmed the decision of the FTT, albeit for slightly different reasons (“Carmichael UT”). Even though it concluded that the FTT’s reading of the Regulations (i.e. to effectively read in wording that was not present in the legislation) was impermissible, it found that the Carmichaels’ housing benefit was to be calculated without applying the reduction because to do so would be a clear breach of Convention rights contrary to section 6(1) of the HRA. The Court of Appeal overturned this decision and found that adopting the UT’s approach would amount to an impermissible rewording of the Regulations (SSWP v Carmichael and Anr [2018] EWCA Civ 548, “Carmichael CA”). The majority in the Court of Appeal concluded (with Leggatt LJ dissenting) that lower tribunals would have to apply the Regulations in their original form, with the only remedy available being a claim for damages under section 8(2) of the HRA.

RR had similar proceedings ongoing in parallel, and the FTT had reached the same conclusion in that claim as it had with the Carmichaels. Following the decision in Carmichael CA in 2018, the UT was bound to allow the government’s appeal. However, it also granted RR a ‘leapfrog’ certificate to appeal directly to the Supreme Court.

Judgment

The key question before the Supreme Court was the effect of the Court’s decision in Carmichael SC on local authorities and tribunals hearing claims relating to periods before the Amended Regulations were introduced in 2017. In such cases, local authorities and tribunals were faced with two options: (1) to apply the Regulations in their original form despite the fact that doing so would result in a breach of convention rights; or (2) to calculate the housing benefit without applying the reduction as the tribunals had done with both the Carmichaels (in the FTT and UT) and RR (in the FTT). The Court termed this an “important constitutional question”.

Lady Hale’s judgment (with which all the other judges concurred) rejected the reasoning of the majority in Carmichael CA. It found that there is “nothing unconstitutional about a public authority, court or tribunal disapplying a provision of subordinate legislation which would otherwise result in their acting incompatibly with a Convention right, where this is necessary in order to comply with the HRA. In doing so, the decision has reaffirmed the primacy of Acts of Parliament, and specifically, the clear requirements of the HRA. The Court, does, however acknowledge that there may be situations where the statutory scheme cannot work without the offending provision, but does not go on to explain how such a situation should be dealt with.

The Court relied upon the distinction between primary and secondary legislation in the context of the HRA. While it is unlawful for a public authority to act in a way which is incompatible with a convention right (section 6(1) of the HRA), there is an exception in section 6(2) if the public authority is compelled to act in a certain way as a result of a provision of primary legislation. The Court observed that no such exception exists when it comes to secondary legislation such as the Regulations. The Court also pointed to a number of cases where the English courts have held that a provision of subordinate legislation which results in the breach of a Convention Right must be disregarded.

Comment

This decision is a significant judgment on the constitutional status of the HRA. It is also likely to have implications well beyond the welfare benefits context in so far as it clearly sets out how local authorities and tribunals can deal with situations in which secondary legislation is incompatible with Convention rights.

In particular, with the raft of Statutory Instruments required from the government in advance of Britain’s exit from the European Union (often with minimal legislative oversight), this judgment is likely to act as an important safeguard against any new regulations that produce an outcome which is incompatible with Convention rights and the HRA.

 

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Supreme Court unanimously holds that extended prorogation of Parliament is unlawful

In R (Miller) v The Prime Minister; Cherry and ors v Advocate General for Scotland [2019] UKSC 41, the Supreme Court found that the Prime Minister’s advice to Her Majesty to prorogue Parliament for an extended period was unlawful and void, and quashed the consequent Order in Council effecting the prorogation.

Key Points

  • It is the function of the Court to determine the limits of prerogative powers, which can be by reference to common law principles.
  • Parliamentary sovereignty and Parliamentary accountability are both common law constitutional principles which will be protected by the Court where necessary.
  • The Government must provide a reasonable justification for any attempt to frustrate or prevent the exercising of these constitutional principles.

Background

On 27 or 28 August 2019, the Prime Minister formally advised Her Majesty that Parliament should be prorogued for a period starting between 9 and 12 September until 14 October 2019. The Prime Minister announced the decision on 28 August 2019 and sent an explanatory letter to all MPs. An Order in Council effecting the prorogation was made that same day.

Mrs Miller immediately challenged the decision by way of judicial review and it was heard by the Divisional Court on 5 September 2019. The Court found against Mrs Miller but allowed her appeal to leap-frog to the Supreme Court.

Joanna Cherry QC MP and a cross party group of 75 MPs had separately, and pre-emptively, brought proceedings in Scotland on 30 July 2019 in relation to the same matter. The claim was initially dismissed by the Outer House of the Court of Session on the basis that it was not justiciable. It was then appealed to the Inner House of the Court of Session, where it was determined that the case was justiciable and, further, that the decision was unlawful as it had been tainted by improper purpose.

Both decisions were appealed to the Supreme Court and were heard by the Court on 17 – 19 September 2019.

A number of interveners also argued that prorogation was unlawful. These included The Right Honourable Sir John Major KG CH (for whom Herbert Smith Freehills acted), the Lord Advocate (on behalf of the Scottish Government), the Counsel General for Wales, Raymond McCord (a victims’ campaigner in Northern Ireland), the Shadow Attorney General (Baroness Chakrabarti) and the Public Law Project.

Judgment

The Supreme Court determined that the Prime Minister’s advice to Her Majesty to prorogue Parliament was justiciable and, due to the effect that it had on Parliament, unlawful.

Justiciability
The first question concerned whether the Courts were allowed to review the lawfulness of the Prime Minister’s advice to Her Majesty the Queen i.e. is it justiciable.

It was not disputed that the Prime Minister’s advice to Her Majesty fell within scope of his prerogative powers. When determining whether the exercise of this power was justiciable, the Court set out the two relevant questions. The first related to whether a prerogative power existed and, if so, to what extent. If it was accepted that a prerogative power did exist, as it did here, the second question was whether the exercise of that power was open to legal challenge on “some other basis” [35] (i.e. one of the recognised grounds of judicial review). The Court found that the first question as to the limits of a prerogative power undoubtedly lies within the jurisdiction of the courts. However, in relation to the second question, where prerogative powers were being exercised within their legal limits, their subject matter might mean that they were not amenable to judicial review. For example, a matter of ‘high policy’ would fall within such an excluded category.

In this instance, the question concerned the legal limits of the power to prorogue Parliament and whether they had been exceeded. Such questions were a question of law for the Court to determine. It was the Court’s function to determine whether the Prime Minister’s advice had trespassed beyond that limit. It was therefore, by definition, a justiciable question.

Lawfulness 
Having determined that the issue was justiciable, the Court went on to consider the lawfulness of the Prime Minister’s advice.

The power to prorogue is limited by the constitutional principles of Parliamentary sovereignty and Parliamentary accountability with which it would otherwise conflict. The Court therefore imposed the following test: “…a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive” [50].

The Court did not think it necessary to consider whether the Prime Minister’s motive or purpose in advising Her Majesty to prorogue for this period was lawful, instead it looked at the effect of the decision.

This particular prorogation, the Court noted, prevented Parliament from carrying out its constitutional role for five out of a possible eight weeks between the end of the summer recess and Exit Day on 31 October 2019. Moreover, documentation disclosed by the Government did not explain why the prorogation was five weeks long when a usual prorogation was four to six days. In other words, there was no reasonable justification provided for the Prime Minister’s advice to the Queen. In the absence of “any reason – let alone a good reason” [61] for the length of the prorogation, the Court found the decision unlawful.

Remedy

The Court concluded that the Prime Minister’s advice to Her Majesty was unlawful, void and of no effect. Consequently, it found that the Order in Council was also unlawful, void and of no effect and was to be quashed. In practical terms, Parliament had not been prorogued.

The Court disagreed with the Government’s submission that the prorogation would still stand if the Prime Minister’s advice was found to be unlawful. It did not agree with the fact that the Order in Council would be protected as a “proceeding in Parliament” which could not be impugned by a Court under Article 9 of the Bill of Rights 1688, simply because it took place in the House of Lords chamber.

Comment

This judgment is of immense constitutional significance. It reviews the relationship between the three branches of State – the judiciary, Parliament and the executive – and clarifies the limits on the executive’s prerogative powers. It builds on cases such as R (UNISON) v Lord Chancellor [2017] UKSC 51 in order to contribute to “the constitutional history of this country [which] is the history of the prerogative powers of the Crown being made subject to the overriding powers of the democratically elected legislature as the sovereign body” (Lord Browne-Wilkinson in R (v Secretary of State for the Home Department, Ex p Fire Brigades Union [1995] 2 AC 513 at p552). Having said that, the Court was keen to stress that the facts in this case were exceptional and it remains to be seen whether the Court’s findings will be able to be applied more widely.

Herbert Smith Freehills LLP represented The Right Honourable Sir John Major KG CH in the above case as an intervener in both the Divisional and Supreme Courts.

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