Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Archive for the ‘Chapter 3’ Category

Constitutional conventions

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Constitutional conventions are an important features of the UK constitutional settlement. As the conventions are not exactly rules in the normal sense, it can on occasion be hard to know what they are and when they apply. In 2011, the then Coalition Government published a statement of Constitutional Conventions that had been drafted by the then Secretary to the Cabinet Sir Gus O’Donnell. Although the work had been started at the request of the former Prime Minister, Gordon Brown MP, it was thought to be particularly helpful to guide the Coalition Government, led by David Cameron and Nick Clegg. The book was published in October 2011.
Recent events in the House of Lords – where a draft Statutory Instrument (which was designed, as part of the Government’s Welfare Reform plan, to cut tax credits to those in work) were not approved by a majority of the Lords, despite being approved in the House of Commons – have thrown a new spotlight on these conventional rules. (They have also reopened the wider issue of the composition of the House of Lords and whether or not it should become an elected body.)
The specific issue – relating to the approval of the Statutory Instrument already approved in the House of Commons – is to be subject to a review led by Lord Strathclyde.
This incident emphasises the point that while the process of government usually ticks over in a fairly ordered way, the lack of detail written rules can on occasion lead to considerable controversy.

The Cabinet Manual setting out the main laws, rules and conventions affecting the conduct and operation of government is available at

Written by lwtmp

October 28, 2015 at 6:19 pm

English Votes for English Laws

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On 22 October 2015, the UK Parliament agreed new legislative procedures for enacting bills, or provisions in bills, that apply only to England. This has been one of the extremely controversial consequences of the Referendum on Scottish Independence.
The policy paper supporting the changes states:

English votes for English laws addresses the so-called ‘West Lothian Question’ – the position where English MPs cannot vote on matters which have been devolved to other parts of the UK, but Scottish, Welsh and Northern Ireland MPs can vote on those same matters when the UK Parliament is legislating solely for England.

It goes on to say:

These proposals change the process by which legislation is considered by the House of Commons so that MPs with constituencies in England (and where relevant England and Wales) are asked to give their consent to legislation that only affects England (or England and Wales), and is on matters that are devolved elsewhere in the UK. Those MPs will therefore have the opportunity to veto such legislation.

The new process will apply to government bills introduced in the Commons after the new rules are agreed. It will then apply to all parts of government bills which are certified by the Speaker as containing English, or English and Welsh, provisions. It will not apply to routine bills that implement the House’s spending decisions contained in the Estimates. It will also apply to secondary legislation.

The following changes to the legislative process are made:

  • Any bills that the Speaker has certified as England-only in their entirety will be considered by only English MPs at committee stage. The membership of this committee will reflect the numbers of MPs that parties have in England.
  • After the Report Stage, for bills containing English or English and Welsh provisions, there is then a process for gaining the consent of English or English and Welsh MPs. These MPs will form a legislative Grand Committee who will consider a consent motion for any clauses that the Speaker has certified as English or English and Welsh only. This is a new stage to allow all English or English & Welsh MPs either to consent to or to veto those clauses. At this stage no amendments to the text of the bill can be made but specified clauses can be vetoed by amendments to the consent motion. In the case of a bill which is England-only, or England and Wales only, this stage allows those MPs to consent to or veto the whole bill.
  • If clauses of the bill are vetoed by the legislative Grand Committee there is a reconsideration stage when further amendments can be made, to enable compromises to be reached. The whole House can participate in this stage, which is, in effect, a second report stage for disputed parts of the bill.
  • This is followed by a second legislative Grand Committee at which all English or English and Welsh MPs are asked to consent to the amendments made by the whole House. If no agreement is reached at this point, the disputed parts of the bill fall.
  • Following report stage and any consent motions the bill continues to third reading, in which as now all MPs can participate. It then progresses to the House of Lords.
  • The legislative process in the House of Lords is unchanged.
  • If the bill is amended by the House of Lords, then when it returns to the Commons the Speaker is required to certify any motions relating to Lords amendments to the bill, on the same basis as before. Any votes on amendments that have been certified as England or England and Wales only will be subject to a double majority vote. That is to say that such amendments will have to be supported by a majority of English or English and Welsh MPs as well as a majority of all MPs before they can become law.
  • The process for bills that start in the House of Lords is similar, with bills being certified when they first arrive in the House of Commons.

English votes for English laws outline model for bills starting in the House of Commons

Special rules apply to Finance Bills and to Secondary Legislation.

The changes are clearly complex. The Government plans to ask the House of Commons Procedure Committee to review the new procedures after they have been used.

The above is adapted from the Government Policy Paper, available at

A more detailed guide, as well as the changes to the standing orders of the House of Commons and accompanying Explanatory Notes are available at

An excellent research review prepared by Richard Kelly in the House of Commons Library, which gives a detailed account of the background to the whole issue, is at

Written by lwtmp

October 24, 2015 at 11:55 am

Law for Lawmakers: A JUSTICE guide to the law

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JUSTICE has recently published Law for Lawmakers, a short introduction to some key legal and constitutional principles confronted by MPs, Peers and their staff in their work. This guide is designed to provide basic information and signposts to sources of legal advice and support.

Whilst the legal profession is well-represented in politics it has never dominated the House of Commons. For example, of Parliament’s 650 current MPs, only 88 practise law in England and Wales. As the makers of our laws, as our representatives, and in holding the Government to account, MPs and Peers wear many hats. Each of these roles requires MPs to grapple with the law every day. However, for over three-quarters of all first-time MPs this may be a very new experience.

This Parliament is set to consider constitutional questions ranging from the scope of surveillance powers for the security services to the withdrawal of the UK from the European Union; from a new devolution settlement for the Union to the repeal of the Human Rights Act 1998.

The JUSTICE guide doesn’t set out to answer those questions, but it may help to inform discussion and debate.

The guide may be found and downloaded at
It is an ideal introduction to the law-making process for all who are interested, not just MPs.

Written by lwtmp

October 16, 2015 at 12:12 pm

Prisoners’ Voting Rights: the view of the European Court of Justice

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I have written before about the stand off between the UK Government and the European Court of Human Rights on the question of whether the UK’s policy of prohibiting any prisoner from voting is compatible with the right to vote set out in the European Convention on Human Rights. (See 5 December 2012, 17 Oct 2013 and 21 Aug 2014.)

Although the issue has been seen largely as a matter arising from the European Convention on Human Rights, the issue also raises a question of European Law – namely whether a total ban on voting infringes the rights of citizens to vote in elections for the European Parliament.

The question was raised in the UK in the Supreme Court in 2013 as one concerning the equal treatment as between EU citizens residing in Member States other than that of their nationality. However, that principle would not apply to UK Citizens being detained in UK prisons. In any event, the EU legal principle of non-discrimination would still not be engaged. Convicted prisoners serving their sentence are not in a comparable position to persons not in prison. Thus,  the Supreme Court held on that occasion that EU law did not apply.

The issue has come back to the European Court of Justice in a case involving France: Thierry Delvigne v Commune de Lesparre-Médoc and Préfet de la Gironde Case C-650/13. (October 2015) Here the ECJ held that a Member State can maintain an indefinite ban on voting in European Parliament elections for certain nationals of that State, although such a ban must, be proportionate. In the case, Delvigne was convicted in March 1988 of a serious crime and sentenced to a term of imprisonment of 12 years. Under the (French) law in effect at the time, this resulted in a total loss of his civic right to vote. However, after release he could apply to have his right to vote reinstated. He did this in 2012, but his application was rejected.

Despite the fact that French electoral law was amended in 1994 to limit any voting ban to 10 years, the ECJ held that the original law was proportionate and would be upheld. This result was reached following analysis of  Articles 39 and 49 of the Charter of Fundamental Rights of the European Union.

There seem to be clear implications in this judgement for the UK. On the one hand, for those sentenced to substantial prison sentences, the position under the old law in France is arguably harsher than the law in the UK, where rights to vote are restored when a prisoner’s sentence is served. On the other hand, the position relating to those sentenced for shorter terms in the UK is arguably harsher than the position in France.

Of course, the ECJ ruling applies only to the right to vote in European elections. The wider limitations on prisoners’ right to vote, and the long-standing divergence of view between the ECtHR and the UK Government on the legal position in the UK, remain.

For details of the ECJ judgement see

Written by lwtmp

October 15, 2015 at 3:35 pm

Turning constitutional conventions into law

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During the debate on what became the Scotland Act 1998, Lord Sewel indicated in the House of Lords  (H.L. Deb vol. 592 col. 791) that “we would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters without the consent of the Scottish Parliament”.

Clause 2 of the Scotland Bill 2015  inserts a new subsection (8) into section 28 of the 1998 Act so it is recognised in statute that, although the sovereignty of the UK Parliament is unchanged by the legislative competence of the Scottish Parliament, the UK Parliament will not normally legislate for devolved matters in Scotland without the consent of the Scottish Parliament.
For further details see


Written by lwtmp

October 13, 2015 at 4:31 pm

English Votes for English Laws – EVEL

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A consequence of the Referendum on Scottish Devolution was that the Prime Minister, David Cameron, announced that he wanted not only to devolve more legislative power to the Scottish Government, but also wanted to ensure that only English MPs were able to vote on Bills that would only have effect in England.
The issue of English Votes for English Laws has proved to be extremely controversial.
A first attempt to create a new parliamentary procedure for dealing with the issue was set out in a paper published by the Cabinet Office in July 2015.
However it ran into serious difficulties in debate in the House of Commons, and the Government decided to rethink how it was going to implement Mr Cameron’s pledge. Revised proposals are expected in the near future.

The text of the original Cabinet Office paper can be found at

Written by lwtmp

October 13, 2015 at 12:23 pm

The Scotland Bill 2015

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A principal outcome of the Referendum on Scottish Independence was an agreement – the Smith Commission Agreement – that more power should be devolved from Westminster to the Scottish Parliament. The Scotland Bill was published in July 2015 and has started its progress through the Westminster Parliament.

The Explanatory Notes to the Bill summarise the contents of the Bill as follows:

The Bill is an enabling Bill and the majority of the provisions in the Bill set out the powers that are being transferred to the Scottish Parliament and or the Scottish Ministers. In particular the Scotland Bill amends sections of the Scotland Act 1998 and rebalances the devolved and reserved responsibilities between the administrations. The Bill also includes provisions which set out the constitutional relationship of the Scottish Parliament and Scottish Government within the United Kingdom’s constitutional arrangements. It does not amend this relationship.
…[T]he Bill:
• declares that a Scottish Parliament and a Scottish Government are considered permanent parts of the UK’s constitutional arrangements, and that the UK Parliament will not normally legislate in devolved areas without the consent of the Scottish Parliament, whilst retaining the sovereignty to do so;
• gives increased autonomy to the Scottish Parliament and the Scottish Ministers in relation to the operation of Scottish Parliament and local government elections in Scotland;
• gives increased autonomy to the Scottish Parliament in relation to the power to amend sections of the Scotland Act 1998 which relate to the operation of the Scottish Parliament and the Scottish Government within the United Kingdom;
• increases the financial accountability of the Scottish Parliament through devolution of the rates and bands of income tax, Air Passenger Duty and the Aggregates Levy, and assignment of VAT revenues;
• increases responsibility of welfare policy and delivery in Scotland through the devolution of welfare powers to the Scottish Parliament and / or the Scottish Ministers;
• gives significant responsibility to Scotland for areas such as road signs, speed limits, onshore oil and gas extraction, consumer advocacy and advice amongst others by devolution of powers in relation to these fields to the Scottish Parliament and the Scottish Ministers; and
• increases scrutiny for the Scottish Government of specific bodies and increases the ability of the Scottish Government to design schemes relating to energy efficiency and fuel poverty by the devolution of functions to the Scottish Ministers.

The Smith Commission Agreement increases the financial accountability of the Scottish Parliament. A new fiscal framework will be agreed for Scotland to accompany the further powers included in this Bill, in order to set and coordinate sustainable fiscal policy for the UK as a whole. This will give the Scottish Government the tools to manage the powers in this Bill while ensuring consistency with the fiscal framework in the rest of the UK. It is intended that that framework will be negotiated in parallel to the passage of this Bill.

There is still considerable political debate as to whether the provisions of the Bill go far enough. The Scottish National Party is arguing for more devolution. The final outcome of this process will be known in 2016.

The Bill and accompanying papers is at

The subject of English Votes for English Laws – EVEL – is considered in a separate note.

Written by lwtmp

October 13, 2015 at 12:12 pm


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