PARLIAMENT AND THE LAW by Alexander Horne, Gavin Drewry, and Dawn Oliver (eds). Oxford, UK and Portland, OR: Hart Publishing. 2013. 404 pp. Cloth $110.00. ISBN: 978-1-84946-295-2.
Reviewed by Gerard W. Horgan, Department of Political Science, St. Thomas University. Email: gehorgan@stu.ca.
It takes considerable confidence in their material for a book’s editors, as opposed to its publishers, to claim that their edited collection will become “an invaluable and unique resource for constitutional lawyers, political scientists and practitioners” (p. ix). In this case, however, it seems the editors’ confidence is not misplaced.
The essays contained in PARLIAMENT AND THE LAW were written and edited by members of the UK’s Study of Parliament Group, the membership of which includes parliamentary officials, political scientists, and constitutional lawyers. The resulting collaborative work seeks to examine “issues that are at the heart of the current concerns and debates about parliamentary and constitutional reform” (p. vii). In this the book succeeds, and anyone at all familiar with British political controversies over recent years – MPs’ expenses, phone hacking, the right of prisoners to vote – will find here discussions of how these controversies have affected, and been affected by, the relationship between Parliament and the courts in the UK.
The book is composed of thirteen chapters, arranged in three sections: Privilege and Conduct; Parliament - Internal Arrangements; and Rights, the Constitution and the Legal System. Chapter one introduces the first section and sets the historical context for the privileges of Parliament. Readers unfamiliar with the idiosyncrasies of British government will immediately be made aware of the recondite nature of the world they are about to enter, when informed that some of these privileges “rest solely on the law and custom of Parliament” (quoted at p. 3). As part of the opening rituals at the start of each parliament, the Speaker lays claim, on behalf of the members of the House of Commons, “by humble petition to Her Majesty, to all their ancient and undoubted rights and privileges, especially to freedom of speech in debate, to freedom from arrest, and to free access to Her Majesty whenever occasion shall arise, and that the most favourable construction shall be put upon all their proceedings” (p. 6). Why are privileges maintained on this ancient basis? Because once a privilege has been defined by statute, it becomes a matter that it is justiciable. This fact provides the underlying theme for the remainder of this section of the book: the overriding concern for parliamentarians over time has been to avoid any move that might allow the courts further entrée into their affairs. As recently as July 2013, a Joint Committee of Parliament rejected any comprehensive codification of privilege, concluding that legislation regarding privilege should only be used when absolutely necessary (p. 33).
Chapters 2-4 explore in detail the limits of privilege and areas of friction with the principle of the rule of law. Chapter 2 notes that freedom of speech in debate, “a cornerstone of our uncodified constitution,” is guaranteed by Article 9 of the Bill of Rights 1689 (p. 35). Article 9 states “That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament” (p. 37). As the chapter documents, while the core of this right remains unchallenged, there is much debate and activity just outside the core. For instance, courts increasingly refer to parliamentary debates and committee proceedings in the course of their work [*17] (pp. 46-7, 59-62). Meanwhile, the sub judice ‘rule’, whereby matters awaiting adjudication by the courts should not be raised in Parliament, is in fact only a convention; as such it “is not strictly enforceable on Members” and breaches do occur (pp. 50-2). The chapter pays particular attention to a recent source of friction: the impact on Parliament of so-called ‘super-injunctions’, i.e., court orders that, when an injunction is in place, require that the very existence of the injunction may not be disclosed or published. While Parliament considers that such injunctions may not restrict the freedom of debate in Parliament, solicitors acting for clients have, variously: written to an MP threatening legal action if allegations about a client were repeated in the House; contended that such injunctions should prevent the media from reporting the relevant House proceedings; and written to a Parliamentary Committee purporting to require it to remove portions of the record of evidence provided to it from the parliamentary website (pp. 50-55). Given these challenges, the chapter concludes, “this area of law is unlikely to remain unchanged in the longer term” (p. 65).
Chapter 3 concerns the interaction of Parliamentary privilege with the criminal law. On its face, this might be considered to be a rather uncomplicated area, as regarding individual MPs the rule is quite simple: MPs have no specific immunity from either criminal or civil law (p. 67). Nonetheless, corporate dispensations granted to the House have generally shielded House authorities from both civil and criminal sanctions. A recent Supreme Court decision has, however, called this principle into question (p. 73). Readers familiar with British politics will likely find the most fascinating aspect of this chapter, however, to be the intricate questions of privilege illuminated by the warrantless police search, in 2008, of the parliamentary office of MP Damian Green. First, it remains unclear whether the legislation under which warrants are issued by judges applies to the Parliamentary Estate, so any future attempt by police to execute such a warrant might be resisted by parliamentary authorities (p. 78). Second, some papers removed by police from Green’s office were later identified by parliamentary authorities as being of a sort that should attract privilege. Whether a valid warrant can be issued to seize privileged papers remains unclear (pp. 79-80).
It is in chapter 4, on the relationship between the law and the conduct of MPs, that the issues raised by the MPs’ expenses scandal of 2009 are explored. Self-regulation of MPs’ conduct has in general been the rule, in line with the principle that Parliament should have ‘exclusive cognisance’ of its own affairs. As the chapter documents, the application of this principle has usually only been narrowed in response to crises (p. 89). The expenses scandal was just such a crisis, and led to the passage of “watershed” legislation which placed regulation of MPs’ expenses, salaries, and pensions in an independent, statutory body (p. 90). Moreover, pursuant to charges of false accounting against several MPs and peers, the Supreme Court held that “the extent of parliamentary privilege is ultimately a matter for the courts to determine” (quoted at p. 113). As the authors note, in an era that features the decline of deference and increased expectations of transparency, arguments in favour of self-regulation, whether by MPs or Lords, seem to be out of step with the times.
The second section of the book opens with chapter 5, which documents the sources of legal advice available to Parliament. The chapter shows that there is a wide variety of such advice available, from sources both internal and external to Parliament. It concludes, however, that as Parliament’s needs in this area are growing, “a larger [*18] and more integrated parliamentary legal service” may be required (p. 137).
One of the reasons for the increased need for such advice is ably demonstrated in the following chapter, on the Freedom of Information Act. This legislation came into force in the UK only in 2005, so the chapter tries both to show how and why Parliament came to be covered by the Act, and to evaluate the effects of the Act on Parliament. It is notable that, while there are exclusions, a wide range of administrative materials, briefings, and correspondence is included, and that this is unusual, given that in other Westminster-inspired systems, in Canada, Australia, and New Zealand, parliaments are exempt from comparable legislation (p. 141). While the author’s finding that the effects of the FOI at this early date are mixed was, perhaps, predictable, the use of the MPs’ expenses scandal as a case study again adds to the immediacy of the analysis.
The content of chapter 7, which provides a general overview of the powers and functions of UK parliamentary select committees, is that most likely to be familiar to readers having previous knowledge of the UK Parliament. The discussion of committees’ powers to send for ‘persons, papers and records’ is, however, illuminating, inasmuch as it demonstrates the power of moral suasion. That is, in general those ‘invited’ or ‘summonsed’ to appear before a committee do so, in spite of the fact that such committees have no “readily enforceable powers of compulsion” to force them to do so (p. 196).
For those seeking an introduction to the legal aspects of the impact of devolution on the UK Parliament, chapter 8 will do nicely. Although it is very much a summary of the issues, in the aftermath of the recent referendum on Scottish independence it is a timely summary. While those seeking a definitive answer to the ‘West Lothian Question’ will have to look elsewhere, this chapter will at least supply the reader with the background necessary to understand the complexity of the issues involved.
The third section of the book begins with a chapter on Parliament’s Joint Committee on Human Rights. In what is perhaps the strongest non-theoretical chapter of the book, Murray Hunt provides a fascinating account of how human rights protection may be integrated in a political system that does not feature strong judicial review of legislation according to an entrenched charter of rights. It is demonstrated here that close scrutiny by a parliamentary committee can not only alter executive processes, but also ultimately reinforce the understanding, in both the executive and legislative branches, that rights protection is not a matter to be left to the courts. There are lessons here both for other Westminster-style systems, and for separation of powers systems, in which executives and legislators consider themselves free to embrace the worst of populist excesses because responsibility for rights protection is someone else’s problem.
The closely related following chapter explores the ramifications of the Human Rights Act 1998 (HRA), which domesticated the provisions of the European Convention on Human Rights (ECHR). The chapter considers the political criticisms of the HRA, and proposals for its replacement with a new British Bill of Rights. Discussion of the latter could scarcely be more well timed, as Prime Minister Cameron signalled, at the Conservative Party’s autumn 2014 conference, that this will be a party manifesto commitment for the 2015 general election.
Chapter 11 considers the evolution of the House of Lords Select Committee on the Constitution since its inception in 2001. In [*19] a somewhat novel finding, but of a piece with Hunt’s conclusions, the authors conclude that the Committee has developed characteristics parallel to those of a constitutional council or court: “it is independent of government; it conducts abstract constitutional review of legislation; it contains senior figures from the worlds of politics and law…and…it interprets and articulates the principles of the British Constitution” (p. 308).
It is against this background that, in the penultimate chapter of the book, Dawn Oliver provides a robust theoretical defence of the doctrine of parliamentary sovereignty. As she notes, the UK is not alone in subscribing to this doctrine: the Netherlands, Sweden, Finland, and the Westminster-inspired New Zealand do so as well. The heart of her argument is that “there is a pragmatic rationale for the doctrine of parliamentary sovereignty in the UK: given the absence of a formal written constitution…the courts know that a challenge by them to the legal validity of a provision in an Act of Parliament may itself be challenged and disobeyed by government, that in such a conflict the courts could well find themselves unable to enforce their orders, and that this may result in damage to the effectiveness of the rule of law and thus to the very constitutional foundations of the system of government in the UK” (p. 356). While conceding that, even given the Parliamentary safeguards described in the preceding chapters, there is more that could be done to scrutinize proposed legislation on constitutional grounds, Oliver believes that the UK’s “political cultural capital”, specifically the rule of law culture, is the best safeguard of constitutional values (pp. 323, 337).
The final chapter deals with parliamentary accountability for the administration of justice. The author notes that, until recently, the doctrine of the separation of powers shielded both judges and the civil servants who administer the court system from parliamentary scrutiny (p. 341). The chapter documents the long road of reform, culminating in the Constitutional Reform Act 2005, which paved the way for the removal of the appellate function of the House of Lords, the establishment of the Supreme Court, and for the later administrative reorganization that resulted in the creation of a Ministry of Justice. The author concludes that these changes have been generally positive in terms of transparency and accountability in the administration of justice (pp. 360-1).
In summary, this book succeeds in filling a particular niche. For a non-political account of the law and procedure of Parliament there is, of course, ERSKINE MAY, while the latest edition of the more accessible GRIFFITH AND RYLE is now well out of date. From the legal side, there are the regularly updated tomes on constitutional and administrative law by, for instance, Bradley, Loveland, or Parpworth. It is into a space between these two types of reference texts that this edited collection lies. The arrangement of the chapters according to thematic sections generally works well. The multidisciplinary nature of the collaborative effort effectively prevents any of the authors from indulging in esoteric methodologies or interests. The documentation of parliamentary sources, in particular, is impeccable. At its best when its concerns are the most immediate, the chapters that demonstrate clearly how the resolution of current political controversies involve the historical peculiarities of the UK – the uncodified constitution, the domestication of the ECHR as a substitute for a domestically formulated and agreed charter of rights, parliamentary sovereignty, to name a few – make fascinating reading. The book will, indeed, represent a unique resource for its intended readership. [*20]
REFERENCES
Blackburn, Robert, Andrew Kennon, and Sir Michael Wheeler-Booth. 2003. GRIFFITH & RYLE ON PARLIAMENT: FUNCTIONS, PRACTICE AND PROCEDURES. 2nd ed. London: Sweet & Maxwell.
Bradley, Anthony, Keith Ewing, and Christopher Knight. 2014. CONSTITUTIONAL AND ADMINISTRATIVE LAW. 16th ed. London: Pearson.
Jack, Sir Malcolm, ed. 2011. ERSKINE MAY'S TREATISE ON THE LAW, PRIVILEGES, PROCEEDINGS AND USAGE OF PARLIAMENT. 24th ed. London: LexisNexis.
Loveland, Ian. 2012. CONSTITUTIONAL LAW, ADMINISTRATIVE LAW, AND HUMAN RIGHTS: A CRITICAL INTRODUCTION. 6th ed. Oxford: Oxford University Press.
Parpworth, Neil. 2012. CONSTITUTIONAL AND ADMINISTRATIVE LAW. 8th ed. Oxford: Oxford University Press.
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© Copyright by the author, Gerard W. Horgan.
