- The House of Commons is elected as a representative cross section of British interests and opinions
- A Cabinet is formed representing the views of enough members of the House to command a majority
- Appointments are made based on support within the house and talent
- The Cabinet discusses all major aspects of policy and agrees major decisions
- The Cabinet is bound by Collective Responsibility and do not disagree in public
- Ministers that cannot agree to a decision at all should resign
- If the Cabinet no longer commands the support of the House, then the government should fall
The problem lies not with the way this individual decision was made. The problem lies with the corrupted system that our Parliamentary democracy has become. This is the way it actually works:
- The House of Commons is elected using a gerrymandered system created in 1947 that encourages:
- an unrepresentative House with a two-party duopoly
- A predominance of white middle class men in suits
- Safe seats allocated by party fiat in which the rebellious are penalised
- Party loyalty over individual thinking
- A Cabinet is formed by the party leader, made up mostly of his/her friends or political allies
- Appointments are made based on presentational ability and sucking up
- The Prime Minister makes most major decisions and reveals them to Cabinet
- Groupthink is both likely and encouraged
- Discussion and debate is discouraged
- Ministers who disagree with the PM are aware that challenging is a threat to their career
- Super majorities from one party mean the Majority is rarely threatened
British politics has allowed, over the last 60 years, to become increasingly corrupt and partisan. This is a fault of the electoral system, and specifically the introduction of uniform single member constituencies and the abolition of alternative voting methods made by the Representation of the Peoples Act 1948. We need to remake and revitalise the Parliamentary system of government. For that to happen, we also need to examine how and why the Cabinet system works.
If it's decided that the Cabinet should have disagreements in public, that Collective Responsibility can be abolished, etc, then so be it. I can see arguments favouring that, especially in the new information age.
But to call for the abolishing of a fundamental feature of the British system, that has been working effectively for over 300 years, over a single, specific issue in which an abominable decision was made, is to throw out the baby with the rather murky bathwater.
Parliament voted for the Iraq war. The nation almost certainly opposed it. That is the real problem. In defending the principles of our democracy, for once in his life, Jack Straw is right.
And if you think I liked typing that last sentence you really don't know me.
Introspection
There probably ought to be a Creative Commons licence in here somewhere but in the meantime consider this permission to quote me (link) & link to what I write.
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Comments
The law is not being broken in this case, the FOI specifically allows for this. And rightly so. Parliament should be holding Cabinet to account over it. That it's not is a failing in Parliament.
We're not in the US or in a jurisdiction where there's a constitutional document and a supreme court to override things.
The legislation allows the executive an opt out from it's general remit, under specific, exceptional circumstances. That opt out is perfectly legal, and thus falls within the remit of the courts, which are still free to rule that it's being used illegally.
If that goes to court, I await the result, but the opt out is there in law, thus the rule of law is applied. No individual is above the law, but an officer of state has the responsibility to uphold the aspects of the law and the constitution, that action is still subject to judicial interpretation.
In the UK, nothing beats Parliamentary supremacy. Dicey is pretty clear on this being one of the fundamental planks of the rule of the law. (EU legislation is only applied because of UK statute allowing for it, in theory.)
Specifically, legislation which cuts the executive out from judicial scrutiny is NOT compatible with the rule of law,
Jack Straw's decision is subject to judicial review.
(Note that the standards of judicial review don't typically look to see if the decision was right on the merits of the case, but if it was manifestly stupid and no reasonable person could have come to the same conclusion. So judicial review can be turned down when someone made a 'wrong' decision if they made it in good faith and it was reasonable.)
The Campbell Diaries, even in their censored form, are a useful guide to the period. He rarely mentions cabinet members outside of the Blair coterie, except in order to express irritation with them.
I'd love to read what they discussed, but I can't really criticise him, having done essentially the same thing myself, albeit on a rather less national issue – I took Guild Council to closed council when we had 30 students in about the closure of the Italian and Music departments.
They'd got their points over, some had begun to heckle somewhat, and some of the council members were looking somewhat intimidated. Thus I decided that closed council was neccessary, so that we could all be utterly blunt about the matter, and so that people could vote how they thought they should, not as a result of feeling they'd have trouble if they didn't vote a particular way.
I'd like to move to a climate that accepts debate as part of the system, but until we get that, secretive meetings are pretty much essential, and collective responsibility just works.
But the extraordinary importance of this specific case overrides the need for confidentiality this once, for me. And for the Tribunal apparently, who said they had considered those issues.
It wouldn't be opening up a precedent to do this often, it is a one-off judgement. It's not calling for the abolition of this feature: it wants pertinent information in what could become a war crimes investigation. Parliament serves the people. If they'd done their duty, they'd have nothing to fear etc etc.
Note, there's not going to be a war crimes investigation under this Govt. Once this Govt is out of office, then the minutes could be released early. But while in office? No, dangerous precedent.
I'm not saying never. I'm saying not now.
Possibly a moral one, but not a legal one. Tribunals basically can't create legal precedent.
This is one of the reasons your common or garden tribunals are criticised - they stunt the development of the common law, and details often aren't available to the courts of cases that finished there, so they can't see what's going on or if it's reasonable. (e.g. Judges might develop the common law in a completely contrary direction, and Parliament/the executive might intervene with new legislation/SOs, but they don't have the facts available like they would with most court cases.)
And that is why this perversion of democracy should be made transparent, to maintain the principles of 'democracy' he's claiming to defend. The system failed (because it is corrupt and not fit for purpose). This will help restore faith in it, and also improve it.
I'm not convinced that the public should be kept ignorant and ministers remain unnaccountable just because one part of the current process isn't utterly broken. They serve us. This unusual move has been deemed to be in the public interest, and to outweigh the traditional confidentiality.
Edited at 2009-02-25 08:34 am (UTC)
The former, yes, absolutely. But the latter? Case not proven. You know I'm in favour of fundamental constitutional reform. As part of that, the way collective responsibility works could be reformed.
But not in this way, and not over a specific issue, any major reform of this nature has to be done carefully, and not just because the Govt fucked up.
Actually, Parliament serves us. Ministers serve Parliament. That's a crucial point. Parliament is crap, that's the problem.
But all UK laws form part of the constitution, and the way those laws are applied is also constitutional.
Not exactly. The common law is developing the notion of constitutional statutes including, but not limited to, the 1689 Bill of Rights, the Human Rights Act 1998, the European Communities Act 1972, and pretty much all the Acts concerned with devolution to Wales, Scotland and Norn Iron. This essentially means that the doctrine of implied repeal doesn't apply to them in the way that it applies to every other Act. This doesn't prevent those Acts being amended or repealed, but it prevents Parliament from doing so accidentally. Parliament has to express the repeal in words that cannot be misunderstood - in all other cases, a later conflicting statute will repeal an earlier statutory provision, in so far as the two conflict, even if the later provision makes no mention of the earlier one.
Sunderland City Council is ringing bells here. Pikiwedia suggests Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), [2003] QB 151.
Who seems to be on a one man crusade to rewrite the basic terms of the UK constitution in a way that it actually makes sense. Until he declared these constitutional laws to be superior, they weren't. Now, under the terms of his ruling, they are.
Legally, he's set a precedent. I don't agree with him, but legally, he's right, until it's overturned or we get a resolution.
Lord Denning (MR at the time, I think) ruled in Macarthy's Ltd v Smith that Parliament would need to expressly repeal the European Communities Act 1972, and that the courts would then be obliged to follow that explicit legislation. This is merely obiter and comes about partly because of the 'construe' wording of the ECA, but it seems to have been more or less a settled point of law for the last 30 years - Parliament can repeal the ECA, but needs to say so explicitly. (Repealing the ECA would essentially require us to leave the EU/EEA, but could be done.)
Lord Denning was hardly uncontroversial - his time at the Court of Appeal is marked by some of the more amusing recent attempts to get around House of Lords rulings, with him writing some amusing slapdowns in the HoL - and he wasn't exactly strong on following precedent, but his words do seem to carry a lot of weight.
1 ETA: Note that this doesn't actually require Parliament to do anything harder to repeal the Act - it's not entrenching it in a formal sense of requiring, say, a 75% majority of both houses to repeal it. It just requires the wording to be explicit.
Edited at 2009-02-25 02:50 pm (UTC)
But that's a specific case of international treaty law being domestically applicable. It didn't previously apply to the Acts of Settlement or Union, and most certainly never applied to the Bill of Rights, which was never passed, merely accepted as being part of the natural order of how things should be.
But we're quibbling. Essentially any individual law can change the constitution, and they frequently do, albeit in minor ways. Thus constitutional law is a lovely little minefield in which everyone reserves the right to go "ah, but whatabout..."
In broad terms this sucks on a number of levels, but in parliamentary procedure terms, and in the terms of the letter of the law regarding FOI, Jack Straw is *shudder* right.
But the Inf Tribunal is also supposed to be a part of how the current system works, legally if not constitutionally. They made it very clear that this was an exceptional case. They have the power to order the release of minutes in exceptional circumstances and they did it. It doesn't set a precedent for minutes to be handed over willy-nilly, as several people (mostly defending the Tories) are suggesting.
And from the perspective of const reform, release of the minutes will probably be a good thing - if the cabinet is revealed to be a rubber-stamping body then the case for reform gets stronger.
We've a longstanding commitment to fix the other flaws, and a more recent one to look at everything, including the Cabinet.
But the Tribunal is part of how things work, and the Cabinet veto is also part of how things work, what he's done is perfectly legal and constitutionally valid. I believe that, regardless of the details of the case, it's also constitutionally justified.
Cabinet is almost certainly a rubber stamping body, has been since the early Thatcher era for the most part. It shouldn't be, but it's not the fault of Cabinet, which is my basic point. We know it's not working, thus we want to change it, this isn't evidence we need, and releasing it hurts the bits that we'd want to work properly in the future.
(Actually, he isn't. But I want him to be. And I think this case is important enough to break the rule.)
Now, Parliament may be acting as the best safeguard for our ancient and traditional liberties in a general sense, but in the case of the Freedom of Information Act, it's hard to argue that the veto is undermining the rule of law.
On a simple level, we don't have a fundamental right to see Cabinet discussions (until the relevant time limits have passed, etc.). If that is a fundamental right, we've been denied it for ever.
If the argument is that the FoIA is being applied unequally (so not everyone is being subjected to it in the same way), that's built into the Act anyway. It only applies to the public sector in the first place - but the Rule of Law is not being subverted by the private sector being left out, surely? Lots of acts do this, creating obligations and offences that only apply to certain people in certain circumstances. See also the Human Rights Act 1998, which only has direct vertical effect i.e. against the State/emanations of the state (although because the courts are covered, it's potentially creating indirect horizontal effect).
If the argument is that the Executive get their discussions treated differently than other people, then first we have to remember that it's the Cabinet, not the Executive. (The Cabinet is a tiny portion of the Executive.) Then we can look at the fact that, for example, the Bill of Rights 1689 exempts Parliamentary discussions from being questioned by the court (and Pepper v Hart 1993 creates a tiny exemption to examine, not question), and the legislature generally enjoys certain privileges not accessible to the common man. (The most obvious problem this creates is that your MP can't libel you on the floor of the House.) Yet having these discussions privileged in this way doesn't undermine the Rule of Law.
Then we already allow that certain things can be secret - e.g. under the Official Secrets Act - because of public policy concerns.
And if we really are concerned about the Rule of Law, s.35(1)(b) specifically excludes "Ministerial communications" which, in particular, includes "proceedings of the Cabinet or of any committee of the Cabinet" (s.35(5)). So Parliament already said that this information shouldn't be published. So wouldn't we be undermining Parliament?
Hmm. Undermining Parliamentary statute - erm, isn't that a breach of the Rule of Law?
... may NOT be ...
Is that of FOI or OSA? I've lost track.
If it's of FOI, then how has this all come up in the first place?
So it seems there are exceptions to the exemption, though I don't see in the FoI act where this is specified. (I can't see that s35(4) on public interest applies here.)
This still feeds in to the point about the Rule of Law, though. Parliament has already recognized that there may be circumstances in which the public interest (as determined by the courts/tribunal/ICO) may need additional balancing factors. In particular, I can't see the High Court wanting to get its hands dirty with the realities of politics. In that sense, the veto allows political concerns to be handled alongside legal ones.
That's not to say that this was a good thing for the Act to say - and nor is this sentence saying that it was a bad thing for it to say. But the point is that the Rule of Law in the UK is tightly interwoven with Parliamentary supremacy and sovereignty, and this is what Parliament voted for - a political check on a legal process.
My point here is that we're opposing the wrong thing. We should be highlighting why the cabinet system has failed, and how Labour has failed to fix it, instead we're chasing headlines in a misguided and constitutionally damaging way.
If you think cabinet minutes shouldn't be released, why not put it into law? Otherwise we end up with the current situation where they're not officially exempt, but will be vetoed every time. If you're in favour of this reform, why not implement it after the other reforms that affect cabinet?
If you think the system doesn't work, why not expose that for everyone to see, before building it back up? If your secret service is going around secretly killing people rather than protecting them, you don't tell people off for revealing these killings on the basis that we should have a secret service to protect people and its activities should be secret.
But perhaps all this is a political distraction. If people see these minutes are they going to think FoI is a cure to bad cabinet government rather than just evidence for reform? Is putting energies into arguing about FoI really a distraction from more serious reform? Or would releasing these minutes be crucial evidence in motivating people to reform the system?
If you think these minutes could be an important motivator for the right kind of reform, you should support their release, if not, you should oppose it. What we really need is for someone to leak them...
And from what CB has said above, the Cabinet minutes are already excluded from FOI, which makes complete sense, so I need to do some digging to find out the backhistory to see how a tribunal ruled something to be released that it isn't empowered to do.