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Constitutional Standards in the 21st Century

About The Author

Alexander Barbour (Former Criminal & Environmental Law Editor)

Alex has recently graduated from the University of Birmingham, achieving a First Class Honours degree in Law. His main interests lie in issues concerning human rights, criminal justice and the environment. Alex recently received the Albion Richardson Award from Gray’s Inn to fund the BPTC, which he is currently undertaking at the University of Law, Birmingham.

The British constitution is an uncodified political constitution that relies on non-legally binding conventions to secure the successful governance of the UK. However, the rise in judicial review, the decisions of the House of Lords in Factortame (No. 2) and Jackson, and the proposed codification of the constitution by the last Labour government under Gordon Brown have all revived an ongoing debate as to what the British constitution is and why it matters so much. The latest project from the Constitution Unit of University College London will bring renewed hope to constitutional lawyers of improving Parliament’s ability and willingness to enact legislation that adheres to the traditional principles of the British constitution. These principles have not been adhered to in recent times as a result of the war on terror, which, together with retrospective legislation, have left the influence of constitutional norms on the legislative process weaker than ever. But are these hopes legitimate, or are they more idealistic than realistic. 

The report, written by Jack Simson Cairn, Robert Hazell and Dawn Oliver, sets out a code of constitutional standards based on the reports of the House of Lords Select Committee on the Constitution (“Constitution Committee”). The 126 standards that have been identified and consolidated in the code from 146 reports of the Constitution Committee from 2001 onwards are organised into five sections: the rule of law; delegated powers, delegated legislation and Henry VIII clauses; the separation of powers; individual rights; and parliamentary procedure. Whilst the code focuses primarily on constitutional standards relating to parliamentary process,it also clearly sets out a number of constitutional principles that, in my opinion, have not been adhered to in recent times.

Retroactivity of Legislation

The code sets out at paragraph 1.1.1, “enacting legislation with retrospective effect should be avoided.” This is a key precept of the rule of law. There are two main conceptions of the rule of law: Firstly, Raz’s formal conception that sets out a series of procedural attributes by which the degree of compliance with the rule of law can be assessed. Alternatively, there is the substantive conception, espoused by Dworkin, which goes beyond procedural attributes to look at the content of the legislation in order to establish whether it is ‘good’ or ‘bad’. Regardless of whether you are a proponent of the formal or substantive conception of the rule of law, it cannot be disputed that this particular constitutional standard has been overlooked in the past.

A well-known, and highly criticised, piece of retroactive legislation is the War Damage Act 1965, enacted in response to the decision in Burmah Oil v Lord Advocate. This case concerned the destruction of oil fields by the British forces in Burma during the Second World War in order to prevent the fields falling into the hands of the advancing Japanese army. Burmah Oil Company, one of the many companies affected by the destruction, brought an action against the UK government following the conclusion of the war. Although their claim succeeded and it was held they were entitled to compensation, the decision was frustrated by the enactment of the War Damage Act 1965, which retrospectively exempted the Crown from liability in respect of damage to, or destruction of, property caused by lawful acts during the war. So why did Parliament abandon constitutional standards here? It appears as though the saving of public money was deemed to be of greater importance than compensating those negatively affected by government actions. I believe this to be a clear example of Parliament abusing its sovereignty and enacting legislation utterly at ends with the rule of law: legislation that is unconstitutional in every sense.

Further to the general principle outlined in paragraph 1.1.1, the code goes on to set out in paragraphs 1.1.7 and 1.1.8 that an Act purporting to have retroactive provisions should not be used unless there is a compelling reason to do so, and that power to make such provisions should be justified on the basis of ‘necessity’ rather than ‘desirability’. The Constitution Committee set out in paragraph 4 of their Final Progress Report 2005-06 that the Housing Corporation (Delegation) Act 2006 is an example of where retrospective application was necessary. Here, the new Act brought the law into line with how it was generally perceived to be previously, so the general aversion to retrospective legislation, namely lack of legal certainty, had been tempered. The War Damage Act did not have retrospective effect in order to bring legal certainty; instead, it aimed at reducing the cost of compensation to the government. Whilst the outcome of the War Damage Act may have been desirable for the government, the retroactivity of the statute, in my opinion, is not justified by necessity, unlike the Housing Corporation (Delegation) Act.

Increasingly in modern times, however, Parliament has not heeded the deep concerns of the Constitution Committee, an example being the passing of the Banking Act 2009 under the previous Labour government. In both the report on the Banking Bill and a later supplementary report on the Act itself, the Constitution Committee flagged up s. 75(3) as having unconstitutionally retrospective effect, as the provision could be applied retrospectively where the Treasury felt to do so was either “necessary or desirable”. Following strong opposition by the Committee in their first report, Lord Myners made a detailed speech to the House of Lords outlining the Government’s position, resulting in an amendment to the provision, namely that the Treasury should have regard, when issuing orders under s. 75(3), to the fact that it is in the public interest to avoid retrospective legislation. Though the amendment was a positive step, the amendment is a weak one, showing reluctance by Parliament to take on the Constitution Committee’s suggestions, harking back to the disregard for constitutional principles seen following Burmah Oil. The Committee expressed their concern clearly in paragraph 10 of the supplementary report:

We note Lord Myners' statement that section 75(3) of the Banking Act 2009 “does not set a precedent for the use of retrospective powers”. The fact of the matter is, however, that a precedent has been set. It is not, in our view, an acceptable precedent.

Protection of Civil Liberties

Not only has retrospective legislation been a key constitutional issue in recent times, but more and more statutes, particularly those in response to the war on terror, are being labeled by the Constitution Committee as ‘unconstitutional’ for disproportionately infringing on individual rights. The judgment given by the House of Lords in A v Secretary of State for the Home Department [2004]held that the indefinite detention without trial of suspected international terrorists under Part 4 of the Anti-Terrorism, Crime and Security Act 2001 was not justified, despite agreeing that there was a “public emergency threatening the life of the nation”. Parliament felt that immediate legislation was necessary in order to clarify the law and provide a legal basis for detention of terrorist suspects, and, as a result, the Prevention of Terrorism Bill was introduced. This Bill was the first relating to anti-terrorism that received criticism from the Constitution Committee, who outline at paragraph 15 of their report on the Bill that provisions of constitutional significance that make far-reaching inroads into the liberties of the individual must be strongly justified. This was a clear indication to Parliament that the Committee was concerned about potential infringement on the rights of suspected terrorists.

Such justification came, in many people’s eyes, with the London Bombings of the 7th July 2005. In response to public outcry for tougher anti-terrorism measures, the Terrorism Bill was drafted. Unsurprisingly, the Constitution Committee saw the Bill as unconstitutionally restrictive on individual rights. Paragraph 6 of the Committee’s report on this Bill is of particular note, as here the Committee sets out clearly that although certain Convention rights are not absolute, such as the Article 5 right to liberty and security of the person, for a restriction of these rights to be compatible with the European Convention on Human Rights, it must be proportionate (a point consolidated in paragraph 4.1.1 of the Constitution Unit’s new code). The passing of the Bill into law created new powers of detention for the police, who could detain a terrorist suspect for up to 28 days without charge. Despite being far less than the 90 days initially suggested by the government, but this increase in powers of detention was seen to have a disproportionately negative effect on the individual rights of suspected terrorists in the UK.

The most recent comments on the broader topic of anti-terrorism legislation came in the Constitution Committee’s report on the Counter-Terrorism Bill in the 2005-06 session, where the Committee outlined that in a constitutional democracy such as the UK, a proper balance must be struck between the constitutional principles of security on the one hand and respect for the rule of law and individual liberty on the other. The suggestion here is that such a balance has not been struck, a suggestion that is hard to contest.

The law as it currently stands is set out in the Terrorism Prevention and Investigation Measures Act 2011, which abolished control orders under the Prevention of Terrorism Act 2005 and introduced a new regime to protect the public from terrorism. Notably, the 2011 Act saw the creation of TPIMs by the Secretary of State, as discussed in depth in a previous article for Keep Calm Talk Law by Ivonna Beches. The introduction of the TPIMs is a progression towards pre-emptive measures being used in a manner that attempts to prevent terrorism proportionately to a suspected terrorist’s human rights. Yet, as Ivonna’s article shows, these measures are similarly being criticised for unfairness by non-governmental organisations such as Liberty. 

The Way Forward

Parliament, when enacting legislation, has not always adhered to the standards outlined in the code, often with damaging effect to the British constitution; but will the code improve the situation? On the one hand, it could be said that having a code that does no more than consolidate the reports of the Constitution Committee will do little more than act as a framework for the Committee to develop its own comprehensive code of standards, without actually improving the legislative process. However, I believe there is a great possibility that this code will act as an aid to the legislative process, because by increasing the knowledge and awareness of Parliament as a whole to the norms of the British constitution the code will encourage parliamentarians to engage with constitutional issues much earlier. As Jack Simson Caird says himself, “there seems to be little to lose and much to gain from making more use of soft law codes of standards in Westminster”. With the creation of a code of constitutional standards, I would argue that the hopes of less unconstitutional legislation being enacted in the future is now more realistic than idealistic, but only time will tell. 

Further Reading 

Constitution Unit, UCL, ‘The Constitutional Standards of the House of Lords Select Committee on the Constitution’

J. Simson Caird, ‘A Code of Constitutional Standards’ UK Const L Blog (8th January 2014)

Raz, ‘The Rule of Law and Its Virtue’

The Reports of the Constitution Committee


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Tagged: Anti-Terror, Constitution, Rule of Law

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