Week 5 Lecture 1

WEEK 5 LECTURE 1 (13) • Scottish parliament privileges and standards • How do they differ from those of Westminster? • Privileges ensure that the parliament can function as they must • It is a parliament of a nation within the UK, 1998 born • It has a longer history, independent country before 1707 • It isn’t an independent nation anymore, but part of asymmetric union state • The privileges are similar but not identical to those of London’s parliament • We have expectations as citizens of democracy that there are standards • Breach of public trust is unacceptable, reforms by 190s • What to do with regulation of standards in public life, how to arrange? • Standing orders of Scottish parliament, relevant s 39-42 of Scotland act 1998 • Compare and contrast the UKPa vs scopa, pros and cons to each • Underlying rationales, objectives similar • Complicated system in UKPa over time evolved to itself • Scopa has a neater more modern form • Privilege is not used in legislation of Scottish parliament • MSPs do have the rights but they aren’t called that, same functions • Scotland act s 41, defamatory statements, any statement and publication • They are absolutely privileged; this is neater statement of how to do • Many commonwealths have parliamentary privilege act separately • MSP must have exemption to general rule to not defame • They must be allowed to say things that are potentially defamatory • Challenged statements are limited, IN PARLIAMENT • Or UNDER AUTHORITY OF THE PARLIAMENT • If MSP is sued by citizen, they can plead absolute privilege • Even if impugned statement made with malice or bad faith! • Nothing is relevant, it can be personal vendetta but still absolute privilege • “Proceedings in parliament” are not defined here, but we see standing orders • There must be acknowledgement that it is to do with a political process • They need to have hard/fast rule, giving effect to privilege • Qualified privilege? It is to other people reporting on statements • If reporter is sued, parliament’s authority can be used • If a report is done for other reasons and not in accurate good faith, it is problem • Absolute privilege is only for MSPs within section 41 • Big difference in Westminster and Holyrood: CONTEMPT OF COURT s42 • Strict liability rule, it is impediment to the course of justice in legal proceedings • A fair trial can be stumped by other issues • Intention doesn’t matter when it comes to contempt, it is strict liability • If the statement is MADE IN RELATION TO BILL OR SUB LEGISLATION • Or FAIR AND ACCURATE REPORT OF PROCEEDINGS IN GOOD FAITH • We mentioned that scopa cannot exceed Scotland act competence • If you say something that is in contempt of court it is punishable • MSP cannot discuss active legal proceeding, SUB JUDICE rule, Standing order rule 7.5 • It applies to everyone; you cannot be a risk to legal proceedings • This is any civil or criminal proceeding in any court in the UK • This is important thing, freedom of expression other than contempt of court • EXCLUSIVE COGNISANCE? Validity of proceedings not affected by vacancy 1998 s 1 • It is parliament of limited legislative competence, it must be kept within • Acts of scopa must be justiciable, Ex Cog cannot be the same as in UKPa • If anybody can go to court on any issues in parliament’s running, it wouldn’t be smooth • Scotland act s 28, validity of act of parliament not affected by invalidity in proceedings • This is the extent of exclusive cognisance, more limited than UKPa • It can sue or be sued, it has legal personhood • Bills and acts are judicially supervised, s 40 allows legal proceedings by or against • Court cannot make any remedy under s 40 other than declarator • No interdict, suspension, reduction or specific performance by court • If parliament is in breach of legal right, court can only give an order clarifying legal issues • Westminster there is no legal question allowed against parliament • Sottish parliament is newish, there are not complex rules that have grown yet • Rules of privilege different in UKPa because it grew organically • Devolution of tax raising powers is new, before it had spending only • The nature of politics changed, it could become more serious parliament • Standards: 1997-8 schemes led to Scotland act design, cash for questions affair etc • Public confidence in institutions was growing thin in Major time • Standards in public life were getting built into the new parliament • Criminal liability in parliament had to be investigated when necessary • Scotland act 1998 s 39, register of members interests, open to inspection by public • If you take holiday which someone pays for or someone gives you a gift over X value • Declaration must happen before any debate on a relevant topic • Discussion of whiskey or African dictators must not be done for the wrong reasons • Some MSPs practice as lawyer while they are in parliament • This is not ok if you are a frontbencher/in government • Taxpayers have a right to know how much income you make elsewhere and how • Sponsorships, gifts, interests in heritable property, shareholdings • Code of conduct in force since February 2000, four volumes, many subjects • Volume 2 section 5 has rules on hospitality, benefits, gifts • PAID ADVOCACY: Whaley v Watson, MSP introduced member bill to ban fox hunting • 2000 legal administrative and administrative assistance was benefit in kind? • Policing conduct is a matter for parliament • Lobbygate affair? Standards committee concluded no truth in news report • There was allegation that lobbyists had unfettered access • This led to lobbying Scotland act 2016 anyway • Standards procedures public appointments committee • Mandatory committee, within 21 days of election • Now is commissioner for ethical standards in public life in Scotland • Complaint about MSP statement? Presiding officer deals • Scopa Commissions and Commissioners act 2010 • Admissible complaints investigated by commissioner, sent to standards committee • There is procedure laid down for investigation, report to parliament • If there are recommended sanctions, parliament must approve • Restriction on participation, exclusion, removal of allowances • Withdrawal of rights/privileges, they can be criminal offences! • Police deal with you like any other member of the public WEEK 5 LECTURE 14(2) • WITH CORMAC: you should start looking at exam questions from past years • It is one thing to understand the topic, another to recall and apply to cases • While stuff is fresh from lectures, it is best to review and revise • We will look at EXECUTIVE: rearrangements in Scottish govt feb 2020 • UK government got cabinet reshuffle, alexander Hamilton quote • What does executive do? It is opposite of legislature, democracy watchword • Power should lie with the people, part of this is deliberation reflection openness • Executive needs converse, effective efficient decisions, secrecy • DECISION ACTIVITY SECRECY AND DISPATCH, proceedings of one man • As the people increase, these reduce and aren’t so swift and merciless • Speed and versatility are necessary for the executive • John Locke identified 2 activities: federative (foreign policy) and enforcing • Law enforcement lies with the executive, you could lose if legislature makes war • Bargaining power and leverage lies with executive, you don’t want it all in open • Separation of powers – law maker cannot be same as enforcer • Enforcing law to own advantage can happen • Modern constitutional systems same, locke concern makers enforcing tyranny • Main threat now to liberty and constitutional values are executive • These are the largest and best resourced branches of government now • Enforcement of the law, translating measures into enforceable way • Build bridge, immigration law, etc all done by executive • Minister of the crown shall XYZ, it could be PM • There are allocations of funding, they run the day to day governing • Executive is always on call, legislature must be convened but executive is 24/7 • They must react quickly to events, flood, terror attack, scandal • Huge number of individuals, first minister prime minister • Civil servants, council, police are all part of executive • Historically, it grew from kingly powers, grew into permanent advisory body • Legislature gave interests of the ruled aristocracy but executive help monarch • Privy council, specialist body of advisors to monarch still (ceremonial though) • Presidential, semi-pres, parliamentary executive • President like USA, powers of monarch to president • Only exists in republican states, he is also head of state, monarch is not president • 2 types of power fused in president: executive as head of state and government • Head of state is ceremonial, represent abroad, give ambassadors position etc • Government is quotidian, giving royal assent is signing by head of govt • Donald Trump has ceremonial side but also day to day ruling • Presidential uses high separation of powers, judiciary legislature executive • All separate buildings, executive is totally autonomous to security threat etc • Directly elected by the people not by legislature • Executive in presidential system is hard to get rid of, long political process • Presidents can lead to dysfunction, legislature battle with president • The want accountability but not stalemate, big issue in presidential systems • Despotism can happen in presidential systems • Parliamentarian system, like in Westminster with prime minister • Head of government but not head of state, monarch is still head of state • Not directly elected, but appointed by law-making body • Legislature election is proxy executive elections • You cannot vote directly for FM or PM, we don’t have a say • Delegated body of legislature, they then vote for the executive • Parliamentary system has low or nonexistent separation of powers • Executive sits in the legislature, there is fusion of powers • Executive sits in legislature, small bit of legislature is in the executive • Party and political systems big thing in the executive • This included in law-making, legislature should have the law-making • Anyone can introduce a bill, the executive must always support to win • This is an issue with separation of powers • Semi presidential powers, like in France – president and prime minister share • More separation of powers, legislature different from executive • There are blurred lines of accountability, president blames PM etc • Question of controls on parliament, executive themes of restrain • Executive is most equipped branch for emergencies, flexible versatile • Fire services, police, all of these are within remit of executive • Its gotten to be huge, no longer so small and weak • Problems from democratic perspective? Legislature must compete • Executive law-making big issue, they should translate law into action • This has expanded into the minister deciding the law and making rules • Law-making body should have the say • EMERGENCIES: swift decisive action necessary for common good • People give government their vote to be protected • Executive can do good things like curbing a global pandemic • The ways it does things can be problematic • The costs may not be worth it for the benefits • Social harms of imprisoning people, deportation based on public safety • Ways criminal law operates needs standards • There are more considerations to do • 9/11 suspension of constitutional guarantees, torture etc necessary for safety • Fundamental rights may be jeopardised by executive • What values can be suspended in the public interest? • Modern executives are massive, acts of executive govern health transport safety • Constitutional guarantees? One branch outpowers the other 2 branches • More people money resources make other bodies not in control • How can executive be properly held to account • Major issue is also delegation, what role should executive have in law-making • Legislative initiative? They may be able to propose laws • In EU the executive can propose all laws, legislature approves it • Legislature makes it good law, considers issues etc • Bad government has executive who ignores legislature or cronyism • Legislature cannot think about or do everything always, executive must do some • You don’t need broad consultation, it is converse of legislature • Lawmaker says minister shall do X, delegates to executive • Rather than have detailed piece of long complicated legislation, it is convenient • Clauses in legislation will say a general thing and the minister can do what he wants • This is a problem democratically, there is no transparency or peoples’ choice • You can look in record for what legislator did what, but executive does whatever • Financial firms, arms firms etc can bribe the executive and we don’t know • Legislature has a public record, tendency recently is more executive • Subset of concern is to pass primary legislation by executive • Legislature allows executive to do things, but also to amend acts themselves • Henry VIII powers to fix primary legislation, this allows for huge changes • Usually only parliament can pass legislation, this is important power democratically • This is a primary law-making power, but we don’t know who was consulted etc • Was there lobbying going on from different industries? Who did it etc • Parliamentary system allows for this to happen more often • Legislature does what executive wants, so executive isn’t held to account • This is a big issue these days, executive can steamroll over legislature WEEK 5 LECTURE 3 (15) • WITH ASANGA: the executive in the UK constitution • Christian jones will take it after reading week • This lecture: WHAT IS THE EXECUTIVE? ANATOMY OF THE EXECUTIVE IN UK • And relationship with the crown, concepts and institutions • The crown isn’t as powerful as before, executive is second to legislature now • Whitehall includes cabinet and civil service, what powers are exercised? • Executive, Montesquieu separation of powers concept based on UK • People with ordinary knowledge of UK would say PM and cabinet is executive • Who makes the law? Parliament they most say, less detail • Courts are identifiable, separate matter in what they do • Parliament legislature, executive is implementation and public policy • Vast range of activities by the executive, political branch central to state • It has two main functions: GOVERNING AND INITIATIVE • Identifiable features of executive branch which distinguish them • Jokes about running the country, Dominic Cummings and BJ • There are many tasks, policy making, management of public institutions etc • Administration of justice, foreign relations, taxation etc • They also do foreign relations, this used to be extensive prerogative • In first Miller case, the challenging of article 50 was undertaken • May govt tried to do it, it affected individual rights so had to be parliament • Legislature had to pass the withdrawal act • Taxation comes from government, fiscal policy subject to executive • This has to be approved by parliament, but chancellor of exchequer does it • Regulatory state now in place, post-war was welfare state • After 80s, neoconservatives retreated from welfare but regulation still • Privatisation was big thing in 80s, state retained regulation of the industries • National security and military action distinguishes a sovereign state • Legitimate violence monopolised by the state, intelligence services etc • Antiterrorism powers and armed forces are all executive thing • Secretary of defence is big thing in the cabinet • Matters of security and intelligence are by COBRA meetings • INITIATIVE? It distinguishes executive • It is the only branch that can take initiative: planning, developing, designing • Public policy can be promoted by the executive, legislature is scrutinising • Courts have no initiative, they can only act in response • Executive can look ahead to anticipate the future • Responding to (unforeseen) circumstances, • If there is natural disaster, invasion, terrorist attack etc they defend • There is quick response to situations as they change • GROWTH OF EXECUTIVE: past 200 years big increase • Executive action has increased in scope, premodern times limited monarchical • Range of executive activities was more limited but absolute power • Monarch was the state and government, both reigning and ruling • Little else was done but military action, taxation also done • If king was ambitious, he would invade other places and tax for that • Military exploits of ambitious kings there was imperial expansion effort • Premodern state wasn’t concerned with the poor, regulation, welfare • Taxes were raised only for military action • Huge change in 19c, direct results of industrial revolution • Major change in late 18 early 19c, better thinking and resource use • Technology transforms society from agricultural society to manufacture • Mining industry and production of goods, transformation • Economic prosperity of societies hinges on that still • Raw materials converted in Manchester Birmingham Glasgow etc • Production was huge beyond local societies, you need to find a market for it • Raw materials included humans in slave form, cotton mills Lancashire • Bring cotton from USA or India, milled in Lancashire and sent back to empire • Mercantilist model of imperialist economic organisation • This was a huge bureaucratic apparatus, merchant navy etc • The bigger the organisation gets the more stuff there is to rule • With social changes, executive had to take action • Peelers: conservative PM to establish a permanent constabulary • Bobbies and Peelers come from his name • Knock on effects in society, no permanent police before 1850s • Regulation of trade and industry happened, bleak Dickens life • You couldn’t maintain order in such blatant inequality • Involvement in regulation and welfare was necessary • Huge range of areas that modern government oversees • The bureaucracy involved is massive, infrastructure, transport, economy • Everything is touched by the executive, free broadband for everyone pledge • It is not wishful thinking but it is essential to have internet in future • Energy is huge deal, environment and climate change, arts and culture • Opera theatre etc, we value them and want government to save them • European despots have huge contribution to architecture and arts • We expect state to play central role in rights and equality, constitution/democracy • The expect the rights claims to be protected and promoted, this done by state • Only the state can make laws that preserve rights • Democratisation expanded to include everybody, complex claims • Range of responsibilities huge now, barons were needed by king in early days • It was thought in past that the king had no duty to save citizens • Complexity and interconnectedness of modern life is much bigger now • Globalisation, WTO taking over trade etc, does it reduce or maintain natl govt? • Western democracies and depth of nation state reaffirmed in global world • UK central govt, political and administrative executives • PM cabinet and minsters are political • Civil service and other public bodies are administrative • Crown was dignified executive, historically oldest institution of constitution • Anything under public law by crown is just an adornment, formality • 1066 we can date growth of central monarchical state in England • Beginning of the current monarchy in Norman conquest • Anglo saxon kingdoms unified, 1688 evolution from absolute to constitutional • In Europe it was different, 1789 revolutions and kingly demise • 1640 it happened here, restoration was afterwards • By and large, in British history republic was short and sad • It was not absolute to republic in UK, but to constitutional monarchy • Incremental changes moved us toward a more subtle power • William of Orange married to James protestant daughter, bill of rights • We don’t do revolution in this country, but slow change • We bring into institutional complex of constitution balance of society and power • Commons lords and crowns brought into one place • French couldn’t do this with their etats, they had sudden revolution • There is big thing about the crown as ancient institution, touristic draw • British constitutional law involves big discussion of state • How do we define, how is it created? • TOWN INVESTMENTS LTD V DEPT ENVIRONMENT 1978, executive is barely law • R V CAMDEN AND ISLINGTON HEALTH AUTHORITY 2001, state not an entity • We repair and patch up old ramshackle institution • Her majesty’s government used instead, it is shorthand • Convenient for public law to refer to the crown or HMG • Powers given to executive are unnamed minister in legislation • Suing govt for contractual delictual matter • Symbols are never mere symbols, performative function of identification • Unity etc done with the crown and its power