The courts and politics, holding the executive to account.

As a political party the Liberal Democrats are committed to the rule of law. Very frequently, however, we spend little time considering what this actually means and a lot of time looking at what exactly we would change in terms of local, national or international policy.

In fact even though many MPs are lawyers (I am a physicist by training and entrepreneur by career) the focus once elected is on the political process rather than the legal process.

An analysis of current british politics sees the government moving away from the concept of the Rule of Law and moving instead toward the Rule of Person.

The rule of law was defined by Albert Venn Dicey in his Law of the Constitution in 1895:

... every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. The Reports abound with cases in which officials have been brought before the courts, and made, in their personal capacity, liable to punishment, or to the payment of damages, for acts done in their official character but in excess of their lawful authority. [Appointed government officials and politicians, alike] ... and all subordinates, though carrying out the commands of their official superiors, are as responsible for any act which the law does not authorise as is any private and unofficial person.

-- Law of the Constitution (London: MacMillan, 9th ed., 1950), 194.

This principle gives rise to the aspect of law known as Administrative or Public Law. For someone to force the government to act lawfully they need to raise a legal action known as a Judicial Review. These are what are known as “prerogative orders”. Strictly they are cases between the Monarch and the government requiring the government (or any other public authority such as the BBC or Takeover panel) to act lawfully.

The first time I started looking at Administrative Law was when I wanted answers from Birmingham City Council as Group Leader of the Lib Dem Group in opposition. It has taken me some time to get a reasonable understanding of this. That has involved raising a number of Judicial Reviews one of which (R v The Prime Minister ex Parte John Hemming MP) I will go into later on.

It turns out that there have been a number of legal cases relating to what rights of access Councillors have to information held by their council. In fact these are much wider than appears to be the case. If you are a councillor and ask an officer for any information where you have a defined “need to know” then they must provide it. For example if you are on the Housing Scrutiny committee you have a right to any information held within the housing department even if it is confidential. If it is confidential then you need to keep it confidential, however.

If they refuse to provide the information then you can raise a judicial review to force them to provide that information. At one stage I threatened 7 simultaneous judicial reviews against Birmingham City Council which got the Chief Executive to come and ask me to call the dogs off.

What about the costs? Well actually if you do the paperwork yourself then the court fee is £50. The problem comes if you lose. My most well known JR was one which failed during the General Election. It was “stop the General Election, the election system is too easy to fiddle”. In essence this was part of my campaign to try to tighten up on electoral law. To that extent with the more recent changes I succeeded. I did, however, have to pay £4,000 in costs to the government. It is not, therefore, something that can be done on a tiny budget.

There is a new system now of protective costs orders. There remains, however, a risk of around £5,000 if you get nowhere with a Judicial Review.

That brings me to R v The Prime Minister ex Parte John Hemming MP with an interested Party of The Speaker of the House of Commons.

I took a strategic decision on being elected as an MP that I did not want to be a spokesman (although I wouldn’t mind being leader), but I wanted to concentrate my efforts on campaigning issues. This means that I look for areas in which to campaign and do so. I am quite pleased with my progress at the moment in doing that having been part of a number of changes of policy.

Part of the process of campaigning is to find out what is actually happening. That is not as easy as it sounds as the government at the centre can think one thing, but the reality can be quite different.

One route is to ask the Civil Service and/or ask Written or even Oral Parliamentary Questions. You can tell when you are asking a really good question because the civil service (or is it the Special Advisors) simply refuse to answer the question in some way or other.

That set me thinking. The question was whether or not MPs have any rights to information in the same way that Councillors have. Clearly they should. It would be an absurdity were MPs to actually have a lesser right to information than citizens have through the Freedom of Information Act.

I therefore started rummaging around the constitution. There are a number of key constitutional statutes. The Bill of Rights Act 1688 and the York Statute 1322 are an important element of this. Other legislation such as the 1840 Parliamentary Papers act are also important.

Clearly the mechanism for forcing the government to answer questions would be through Public or Administrative Law. In other words an application for Judicial Review.

Being aware of this I wrote a final letter on the basis of an appeal against refusal to answer questions to Tony Blair on 8^th May. Oddly enough they didn’t actually answer the letter.

I then started the Judicial Review Pre-Action protocol. That is basically a warning letter saying respond to me or else I issue proceedings. Oddly enough they didn’t respond to this either.

Then in June I took my paperwork to the Administrative Court office in the Royal Courts of Justice at the Strand.

Finally I got a response from the government. The government’s response was that the case is not “justiciable”. They don’t argue about whether or not they have answered the questions, they simply say that the courts cannot force them to answer questions.

That was always going to be the key debate. This will happen at what is called the Permission Stage of Judicial Review. There are two steps to Judicial Review. The first is getting permission. That is when the argument is about whether or not the applicant has a cat in hell’s chance of making his arguments stick.

It is at this point that the case is likely to end up going through the Court of Appeal and potentially to the Judicial Committee of the House of Lords. The first part of the permission stage is when a judge looks at the papers. The real problem is that you can only appeal against a refusal. If permission is given then the defendant cannot appeal.

It was, therefore, to be expected that the case would be refused on paper. I, therefore, have applied for a court hearing. The hearing date has now been set for 30^th October.

This is where the debates about whether or not it is possible to enforce the Ministerial Code and/or Cabinet Office guidance on responding to letters will be first properly considered.

I feel reasonably confident that my case is solid. What is clear from the House Authorities is that no-one else has tried this before. As with most campaigns this campaign to improve democratic accountability will only succeed if I keep on grinding away.

So far the government’s failure to respond to the early letters shows me that they are worried about the case. However, the show will not be over until the fat lady sings.