Review: Secrets of the Political Constitution

Reviewed Work(s): The Constitution after Scott: Government Unwrapped by Adam

Tomkins
Review by: Ian Leigh
Source: The Modern Law Review, Vol. 62, No. 2 (Mar., 1999), pp. 298-309
Published by: Wiley on behalf of the Modern Law Review
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 REVIEW ARTICLE

Secrets of the Political Constitution

lan Leigh*

Adam Tomkins, The Constitution After Scott: Government Unwrapped, Oxford:

Clarendon Press, 1998, xiii + 275 pp, hb ?45.00, pb ?18.99.

Sometimes the past seems not so much another country as another galaxy. After
years of deprivation of real developments in the UK constitutionalists now have a
surfeit: like the proverbial No 27 bus, devolution, the Human Rights Act, reform of
the House of Lords, electoral reform and freedom of information have all come
along at once. It is easy to forget that just three years ago the major source of interest
was a drawn-out and convoluted investigation into an obscure area of government
policy: export licence applications. The Major administration was overshadowed by
Waiting For Scott. Unlike Godot, the central character finally arrived (in February
1996)1 and for a fortnight the broadsheets and the sun-dried tomato buying classes
were occupied with little else. For most normal life then resumed, but a faithful band
of retired civil servants, political scientists and public lawyers pursued the lasting
significance of it all. A veritable academic cottage industry - conferences, symposia,
and special journal issues2 - flourished. Adam Tomkins' book, building on his own
earlier work,3 is the latest contribution to this feast.
After a section setting the scene, the book is divided into four parts. The first three
deal, respectively, with the position of government and Parliament, government and
the intelligence agencies, and government and the courts. Part Four is a comparison
of the Scott Inquiry with the Congressional investigations into Iraqgate. This
framework allows for separate chapters on the subjects of ministerial responsibility
to Parliament, the role of the civil service, freedom of information, the intelligence
input to the export licensing process, and public interest immunity. The Conclusion
assesses the Inquiry's significance in the context of constitutional reform.

Government, parliament and information

Although the Scott Report found that there had been repeated failures by Ministers
to give an account to Parliament, paradoxically no one resigned in the aftermath.
* Department of Law, University of Durham.
1 Report of the Inquiry into the Export of Defence Equipment and Dual-Use Goods to Iraq and Related
Prosecutions, HC (1995-96) 115; discussed in I. Leigh and L. Lustgarten, 'Five Volumes in Search of
Accountability: the Scott Report' (1996) 59 MLR 695.
2 Public Law, Autumn 1996; Parliamentary Affairs, January 1997 (re-issued as F. Ridley and B.
Thompson (eds) Under the Scott-Light: British Government Seen Through the Scott Report (Oxford:
OUP, 1997)).
3 'Public Interest Immunity After Matrix Churchill' [1993] PL 650; 'A Right to Mislead Parliament?'
(1996) 16 LS 63; 'Government Information and the Public: Misleading by Design or by Default?'
[1996] PL 472; 'Intelligence and Government' (1997) 50 Parl Affs 109.
C, The Modem Law Review Limited 1999 (MLR 62:2, March). Published by Blackwell Publishers,
298 108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.

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March 1999] Secrets of the Political Constitution

The chapter on Ministers and Parliament (ch 1) pl

ministerial responsibility in the continuing debate bet
select committees over the distinction (if any) be
'responsibility'. The history of the expression 'knowin
in the Ministerial Code (then called Questions of Proce
which Scott set such store is carefully rehearsed and c
treated in the process to a valuable dissection of the p
and the controversy surrounding the sacking of the Dir
Derek Lewis, by Michael Howard in 1995. There is a wo
earlier, and often misunderstood, constitutional cau
This yields the lesson that Sir Thomas Dugdale's resign
attributed to acceptance of responsibility for the action
it was to appease his own back-benchers in the Conser
the policy of keeping farms under state control. Equa
David Maxwell-Fyfe's famous typology of four diff
ministers are responsible to Parliament as regards the
Tomkins persuasively argues that the purpose was to d
actions of their departments for which ministers would
face of contemporary fears about anonymous bure
defective foundation for the distinction between 'r
ability' which the Conservative governments and senio
to build upon it.
Scott, however, accepted this distinction uncritically
constitutional naivety and his failure to appoint expert
substantial debate over accountability which had been
64). Nevertheless, the report played an important part
ultimately to Parliament adopting resolutions in the dyi
for the 1997 general election which set out its own und
These resolutions record the duty to account (includin
Steps agencies), stress the need for 'accurate and tr
information should only be withheld when in the public
should require civil servants to be as helpful as poss
truthful and full information to select committees. T
errors should be corrected at the earliest opportuni
knowingly mislead Parliament will be expected to off
Prime Minister. Although the content of the reso
compromise, nevertheless, Tomkins suggests, this is a s
No longer is ministerial responsibility merely an unwritten co
now a clear parliamentary rule, set down in resolutions by bo
government acting on its own cannot now change the terms o
Parliament in the way that the Conservative government did
(p 62).

Important as this is, it is only part (and perhaps a small part) of what is needed to
make ministerial responsibility work. The more difficult question is political will.
The conclusion that the doctrine of ministerial responsibility 'is in a healthier
condition now than it was at the beginning of the 1990s' (p 64) depends crucially
on a calculation of probabilities. Tomkins is optimistic about the future and
suggests that 'the Scott report demonstrates the failure, but also the hope, of

4 HC Deb vol 530 cols 1285-1287 20 July 1954.

5 HC Deb vol 292 cols 1046-1047 19 March 1997; HL Deb vol 579, col 1055 20 March 1997.

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 The Modern Law Review [Vol. 62

Parliament' (p 66). Others may be l

engage in disinterested enforcement
optimistic conclusion, the chapter dev
which, in his words, 'ministerial resp
effective weapon in parliament's arm
account and are made truly, and con
Overall, then, the account is too rosy
been four basic difficulties over mini
the convention, investigating the
convention to the facts, and enforce
somewhat unsatisfactory way) to reso
other three remain intractable.
The chapters on the civil service and on freedom of information face the
difficulty that the Scott report, to the disappointment of a number of commentators,
made no formal recommendations about these matters. Nevertheless, as Tomkins
correctly identifies, concerns of this kind were central to the investigation, albeit
not treated explicitly. In each case, as with ministerial responsibility, he argues that
it should be for Parliament and not the government to set the ground rules. He is,
therefore, in favour of a statutory regime for the civil service6 incorporating
protections for whistle-blowers. 'The cloak of the Crown, so convenient to
government, should be stripped away, and the civil service should be re-clothed in
a new parliamentary garb' (p 94). Likewise, 'the public interest is not a matter only
for ministers, but should be enshrined in statute to include what might be called
basic constitutional values' (p 94). In the same way, after criticising the revised
rules governing the evidence of civil servants to parliamentary select committees
(Departmental Evidence and Response to Select Committees, 1997), he urges
Parliament to devise rules of its own (p 111).
Statutory freedom of information is to be preferred to the Code of Practice on
Access to Government Information for the same reason (p 125), although his
account also acknowledges the credit due to the Major administration for
introducing the Code, the generally beneficial way in which it has operated, and
the important part played by the Ombudsman. The discussion is measured and
thoughtful, although it has inevitably been overtaken by publication of the
Government's White Paper, Your Right to Know, detailing plans for a Freedom of
Information Act.7 This makes it possible to predict with greater certainty an issue
which Tomkins raises but, disappointingly, never fully tackles: whether freedom of
information legislation would have averted the Arms to Iraq affair in the first
place.8
Although it proposes a reduction from the 15 exemptions in the Code of Practice,
the White Paper contains no shortage of proposals for exemptions which could
have been used to withhold information. The proposed seven specified interests
include: national security, defence and international relations; information the
disclosure of which could harm the effectiveness of law enforcement; commercial
confidentiality; the safety of the individual; and information supplied in confidence

6 cf N.D. Lewis, 'A Civil Service Act for the United Kingdom' [1998] PL 463.
7 Cm 3818 (1997). For discussion see: Birkinshaw, [1998] PL 176; S. Palmer 'Freedom of Information -
Principles and Problems: A Comparative Analysis of the Australian Proposed UK Systems' in
University of Cambridge Centre for Public Law, Constitutional Reform in the United Kingdom:
Practice and Principles (Oxford: Hart Publishing, 1998).
8 see 115 and 124. There is, however, a useful treatment of US Classification and FOIA exemptions
(248-254) which he uses to reach a broadly negative conclusion (at 264).

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March 1999] Secrets of the Political Constitution

by private individuals and companies or other organisat

harm to the specified interest would need to be a 'su
qualify for protection, and it would also be necessary to
public interest to withhold the information. (However, t
passing the so-called 'mosaic' argument frequently
agencies when it states 'such harm could in certain circu
cumulative effect of numerous disclosures of similar ma
as by a single disclosure').10 A large proportion of the in
government to the Scott Inquiry, but previously withhe
public, about export licence applications, defence procu
at proliferation would fall into these categories. The d
ministers, whether based on information from these or
export licence applications would certainly have
exemption for policy advice for which the test would
'substantial' harm." All the familiar arguments ab
collective responsibility in government', 'the politic
officials' and 'the importance of internal discussion an
place on a free and frank basis' are summoned in support
Scott Inquiry had never taken place.
If all of this were not enough, the White Paper propos
should be not merely exempted but excluded altogether
the consequence that the Information Commissioner w
The security and intelligence agencies, together with
organisations held by other public bodies, are the first
bodies 'could not carry out their duties effectively in th
their operations and activities were subject to freedom o
has rightly been questioned by the Public Administratio
of the Government's proposals.13 As the Committee
agencies' work were to be covered by the legislation
frequently succeed in invoking exemptions to defeat acc
there is an important symbolic point at stake: requirin
withholding information is very different to exempting it
that the Data Protection Act 1998, dealing with access t
route of exemption and not exclusion. A minister may
section 28 of that Act claiming national security as a rea
certificate is reviewable by the Tribunal. Empirical res
Canadian Access to Information Act 1982 and the Pr
access to intelligence files confirms the benefits of su
handling processes of such agencies to outside scrutiny
not least in stimulating internal awareness of informat
The second exclusion relates to law enforcement and is
the police but also other bodies carrying out inves

9 Your Right to Know, para 3.11.

10 ibid para 3.10.
11 ibid para 3.12.
12 ibid para 2.3.
13 Third Report of the Public Administration Committee, Your R
Proposals for a Freedom of Information Act, HC 398-I (1997-89) p
14 Interviews were conducted with officials of the Canadian Security In
and Privacy Commissioners and their staff, users of the legislation
experts: see I. Leigh, 'Legal Access to Security Files: the Canadian E
and National Security 126.

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The Modern Law Review [Vol. 62

regulatory work. Perhaps wisely, th

it would be surprising if Customs
directors) were not included. Ag
wholesale exemption of this kind
enforcement agencies be able to tak
harm test.15
Turning from the Labour gover
equally mixed. The admission tha
parodied by an earlier generation o
for a naval intelligence operation b
talent for irony in Whitehall. The o
seen as post-ironic.16 The gover
information mantle was the Home
files held by the Security Service.1
claims that individuals may hav
confirmed that the Service had emb
files without independent scrutiny
Equally, the attempts to extradite f
David Shayler and the government's
his allegations of incompetence and
after his successful invocation of th
of the crusade against Peter Wright
A major test for the Blair adm
information in a post-Scott environ
new 'ethical' foreign policy19 came
to the Arms to Iraq affair. The questio
restoration to power of President K
of the military junta in March 1998
actions of a British-based company
Sandline International. As in the
ministers had misled Parliament

15 Public Administration Committee, paras

16 http://www.mi5.gov.uk
17 HC Deb vol 317 cols 251-254 29 July 1998
have been destroyed (110,000 of these in ea
290,000 personal files of which 20,000 ar
approximately equally between terrorism an
proliferation and serious crime). The greates
subversion files compiled during the Cold Wa
were given in an earlier statement: HC Deb v
Service (London: HMSO, 3rd ed, 1998) 24-2
Records has been asked to advise on the crite
Government Response to the Annual Report o
4089 (1998) para 16. During the debate on this
whole question: HC Deb vol 318 col 649-6
Committee has also undertaken to examine w
the destruction of files, the protections again
legislation, and implications of the ECHR: An
1997-98, Cm 4073 (1998) para 51. The same
holds 86,000 files (75 per cent are closed) of
they are not files whose subject-matter is in
18 For an account by his supporters see: http:
19 Designed in part to make human rights con
of export licence applications: L. Lustgarten,
Report' (1998) 61 MLR 499, 510, citing H

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March 1999] Secrets of the Political Constitution

answers given by the junior Foreign Office ministers

House of Lords and Mr Lloyd in the House of Commons
two of the main protagonists, the Foreign Secretary,
Symons, had been involved in the Arms to Iraq affair,
chief of the government from his position as Shadow
latter as defender of senior civil servants whilst Secre
Association. Another common theme was allegations of
this case an apparent breach of the Sierra Leone (Unite
1997, which prevented the supply of military equipmen
solicitors objected to a Customs investigation into th
arguing that any breach had been 'licensed' throug
Commissioner, Mr Penfold.
An inquiry conducted by Sir Thomas Legg and Si
ministers from any intention to mislead and blamed in
by civil servants and failures of communication.22 Whi
alleged, that the High Commissioner had in effect
intervention, it nevertheless recommended clearer guid
Foreign Office staff and military companies and that g
the requirements of domestic law (Foreign Office o
preoccupied with international law). The treatment of th
new government intended to continue the practices of
in attempting to manage news and Parliament. Specula
had dominated the news for weeks beforehand but it r
coverage when published since the Foreign Secretary's
Commons fortuitously coincided with the first Cab
government - in which the major casualty was the mini
freedom of information legislation, Dr David Clarke!
Attempts by the Foreign Affairs Select Committee to
brought the first real clashes between the new govern
select committees' access to information. The Committe
Government's view that it should await the outcome o
proceeding with its own investigation. The Foreign Sec
Foreign Office telegrams led the Committee to issue tw
result that they were given a summary of the telegram
some members to check the summary against the orig
the Permanent Secretary before the committee result
forced to correct earlier evidence which he had given a
His refusals to answer questions led to threats o
Controversially, Labour members of the committee bl
other members by formally objecting to them. The sele
is continuing at the time of writing. Nevertheless, on a
episode seems to demonstrate that the new govern
predecessors to control the flow of information to Par

20 HL Deb 587 cols 99-101 10 March 1998.

21 HC Deb vol 308 cols 840-846 12 March 1998.
22 Return to an Address of the Honourable the House of Commons dated 27th July 1998 for the R
the Sierra Leone Arms Investigation, HC 1016 (1997-98); see esp. ch 9; for the Foreign Secr
statement and subsequent questions see HC Deb. vol 317 cols 19 ff 27 July 1998.
23 First Special Report of the Foreign Affairs Select Committee, (1997-98) HC 760 and Second
Report of the Foreign Affairs Select Committee, (1997-98) HC 852. It is unclear from the excha
far published whether the Foreign Secretary has acceded to the Committee's reported requ
interview the Chief of the Secret Intelligence Service (MI6).

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 The Modern Law Review [Vol. 62

Scott, parliamentary committees ar

Tomkins' hopes for the 1997 resolu

Intelligence and accountabil

Whereas historians have long re

understanding international and do
been slower to appreciate the centra
Although the Scott report does n
nevertheless, the most detailed cas
within Whitehall. The report refer
Security Service and with their sou
Mark Gutteridge, and quotes extens
each interview with them and from
No official document has done so in
having access to similar material, th
conventional secrecy.
Chapter 4 ('Governing Without Int
of the Scott report - the light it s
agencies and on the assessment and
government decision-making. Ex-m
of intelligence (pp 154-155). David
reports 'didn't tell you all you want
crisper) assessment is that they we
162) that the Report had less impac
government activity is not readily v
reforms which have been made.
He also criticises the Intelligence and Security Committee (established under the
Intelligence Services Act 1994)24 for doing too little to follow up leads from the
Scott report (pp 159-162). However, it was to be expected that the Committee
would take some time to establish its authority in the intelligence community and it
made its appearance at a time of extraordinary realignment of security and
intelligence priorities, which naturally had a strong prior claim on its time. The
Committee's progress must be measured against the relative lack of legal powers
which it enjoys and lack of an investigative capacity. Judged by these standards the
Committee appears to be performing strongly. It has flexed its muscles by publicly
asserting that it expects to be 'properly and promptly informed' by the agencies of
their activities, rather than merely responding to requests for information; in this
the Committee were consciously following the Congressional oversight model,
rather than the more responsive mode contemplated in the legislation.25 The
agencies appear to be co-operating in this process. Where the Committee can
perhaps be criticised is for a cautious approach to publishing details of its
investigations. There are signs, however, in the most recent report (the first to be
debated in the House of Commons)26 that the Committee, in part due to the Shayler
affair, is becoming more vocal in its criticisms and is attempting to enlist public
and parliamentary support in a quest for greater powers.

24 L. Lustgarten and I. Leigh, In From the Cold: National Security and Parliamentary Democracy,
(Oxford: Clarendon Press, 1994), 511-515.
25 Annual Report for 1995, Cm 3198 (1996) para 37.
26 HC Debs vol 318 cols 578 ff 3 Nov 1998.

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March 1999] Secrets of the Political Constitution

The Committee can be criticised also for failure t

relevant to its previously published concerns over the
for law enforcement.27 Despite clearly cataloguing con
intelligence agencies' handling of human sources (H
Managing Director, Paul Grecian) between obtaining in
information for enforcement of export control le
recommendations. These difficulties are likely to mult
takes a more prosecution-oriented role. As Justice has r
area is ripe for greater regulation.28
The new remit given in the Security Service Act
prevention and detection of serious crime, together wit
for intelligence officials to appear in court as part
terrorism means that the vexed topic of judicial treatment
also assumed fresh significance. Many lawyers will be
account of public interest immunity given in chapter 5:
the doctrine through the landmark cases,29 the use of P
Churchill trial, and the Report's criticisms of the exten
the application of PII to criminal trials, and of the
ministers had to sign to make these claims. The develo
reviewed, as is (briefly) the change in practice announ
December 1996.31 Overall, Tomkins consistently prefe
the law to the government's and roundly criticises the
judged initial response to the Report. Competent as
account in this chapter is, nevertheless, like the R
disappointing. Like Scott before him, Tomkins rather
constitutional picture underlying the technicalities of P
about the separation of powers and the rule of law are
through the thicket of the detail, but not directly co
book's emphasis on the lasting significance of the Rep
might also have been expected of the Government's ch
in December 1996, and more attention paid to the new
The latter point is particularly important for two re
Procedure and Investigations Act 1996 now provides
which all PII claims are made in criminal cases and,
informers. Secondly, the more restricted statutory duti
under the Act mean that defendants are much less likely n
Matrix Churchill trial to be able to claim either primar
unused prosecution material. In effect, the Crown has m
since it is less likely to be under a duty to disclose in t
this important development is relegated to a footnote
It is to be expected also that in future the developmen

27 Report on the Security Service's Work Against Organised Crime,

28 Justice, Under Surveillance: Covert Policing and Human Rights S
esp ch 2.
29 Duncan v Cammel Laird [1942] AC 624; Conway v Rimmer [1968] AC 910; Burmah Oil v Bank of
England [1980] AC 1090; Air Canada v SSfor Trade (No 2) [1983] 2 AC 394.
30 R v CC of West Midlands, ex p Wiley [1995] 1 AC 274.
31 HC Deb vol 576 cols 1505-1517 19 December 1996. For comment see M. Supperstone, 'A New
Approach to Public Interest Immunity?' [1997] PL 211; C. Forsyth, 'Public Interest Immunity: Recent
and Future Developments' (1997) 56 CLJ 51.
32 For an account taking this perspective, see I. Leigh, 'Public Interest Immunity' (1997) 51
Parliamentary Affairs 55.

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 The Modern Law Review [Vol. 62

by Article 6 of the European Conve

decisions of the European Court
interventionist approach towards the
v UK 35 a provision of the Fair Emp
a minister to give a conclusive cert
national security was held to violate
tribunal from effectively reviewin
longer conclusive in the same way a
how, when combined with the Eur
overall conduct of a trial for fair
challenge. One case pending in St
Davis, Johnson and Rowe)36 may y
regime for disclosure in criminal ca
the Court of Appeal, allows the
directions without advising the def

Iraqgate and Congress

Comparative analysis is one of the
Scott. The American Connection
readers. The examination of how
grappled with very similar issues to
unique opportunity for compara
valuable account of a complex story
investigation of the Gonzalez Com
procurement, attempts by the Bus
prosecution of Christopher Drog
Lavoro (BNL) Atlanta branch. As
hampered by the fact that no single
consider all aspects of the affair. T
Committee, and so had a constitutio
apparent failure of the federal ban
lending and credit guarantees give
institutions of interest to Gonzalez
the statutory object of aiding and f
what was ostensibly a government
Commodity Credit Corporation. Ea
Gonzalez Committee faced numerou
withholding information, includin
would prejudice the forthcoming
national security. Some documents
33 For an initial tentative assessment see Le
34 See especially in a criminal context Bar
holding that the Court can review the whole
Mechelen v Netherlands (1998) 25 EHRR 647
evidence that the domestic court had correc
examination of anonymous witnesses via a
See also Teixera de Castro v Portugal, ECHR
from police officers who were agents provo
35 Tinnelly and McElduff v UK, ECHR, Jud
and C. White, 'Security Vetting in Northern
341, 349-354.
36 (1993) 96 Cr App R 110; Rowe and Davis v UK (1998) 25 EHRR CD 118, admissibility decision.

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March 1999] Secrets of the Political Constitution

a systematic attempt from the White House to co-ordin

information to the Committee, orchestrated by a g
became known as the 'Rostow gang'.
British constitutional commentators often assume that
are in a superior position to Select Committees beca
subpoenas and high levels of support staffing. However
review of the constitutional precedents and case law, a
their work: the requirement that Congress establis
interest in the matters under investigation (rather th
wrong-doing as such), the constitutional rights avai
called before congressional investigations, the con
privilege, and the classification of documents under t
Act. A strong and interesting theme running throu
constitutional practice is the extent to which conflicts
and the Executive branches over access to informat
resolved by negotiation rather than by determination in
In passing, chapter 7 (at pp 262-263) discusses the deb
of Special Prosecutors (Independent Counsel appointed
under the Ethics in Government Act). None was appoin
but with hindsight and in view of the controversy surroun
President Clinton,37 it would have been interesting to h
this constitutional device by way of comparison wi
Parliamentary Commissioner for Standards (perhaps t
constitution comes to such an office). Sir Richard Scot
Gordon Downey could each argue with some justifi
investigator is a well-tried diversionary tactic emp
pressure.
Ultimately, Congressional interest in the investigations petered out. After
Clinton became President in 1992 there was little further political point in pursuing
Iraqgate and the Democrats lost control of the House of Representatives in the
1994 elections in any event. Nor could either of the Congressional Intelligence
Committees be persuaded to open formal investigations into the scandal, and they
alone had power to obtain access to the necessary secret intelligence and national
security documents. Surprisingly, therefore, more of the story was uncovered in
Britain than in the US. At the very least, Tomkins argues, this must give advocates
of a written constitution and supporters of constitutional reform, such as freedom
of information, pause for thought.

Conclusion: reforming the political constitution

The conclusion reflects a recurring theme of the book: Tomkins' indefatigable

belief in political accountability as preferable to legal accountability. In part this
seems based on incurable optimism, like the drinker whose glass is half-full, rather
than half empty. And so he finds hope in the behaviour of the two Conservative
MPs (Quentin Davies and Richard Shepherd) who voted independently in the
debate on the Report on 26 February 1996, rather than the 320 who did not (pp
269-271). This points the way to the 'constitutional ideal which it is not only
37 Referral to the United States House of Representatives pursuant to Title 28, United States Code, ? 595
(c) Submitted by the Office of the Independent Counsel September 9, 1998.
38 Controversy over the inquiry process is discussed by Tomkins at 17-21.

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The Modern Law Review [Vol. 62

desirable but essential that we mo

the political parties. Proposals for
them senior responsibility for scru
seem worthwhile avenues as an alte
which leaves MPs overly-beholden
proposals from the Liberal Dem
establishing a separate parliamenta
would chair them, and through
valuable suggestions, but it is wor
might, to use his expression, 'drive
Some type of standing, independen
the Ombudsman and the Parliamen
the veracity of answers to Parliam
MPs with the necessary data which
His preference for Parliamentary
Tomkins to the following fork in
should we throw away the British pol
instead to the courts; or should we seek
the constitutional control room can be

This is, however, a false alternati

Griffith's celebrated Chorley lectu
or political accountability as a
constitutional reform proposals wh
under discussion demonstrates the
Tomkins' subject-matter - fre
enforcement mechanisms involvin
envisaged.42 At the judicial end of
which the courts have the pow
information on appeal. In Canad
complaints against refusal of acces
disclosure; however, in practice th
greater access by negotiation and it
to ignore such recommendations.
some circumstances for a minister
disclosure, but the reasons for r
inviting political scrutiny. The La
effect building on the Ombudsm
creating an independent Informati
to order disclosure, subject only
schemes has something to recomm

39 At 274, citing A Parliament for the Peo

paper No. 20 September 1996).
40 See Leigh and Lustgarten, n 1 above, 71
41 J.A.G. Griffith, 'The Political Constitut
42 See generally R.S. Baxter, 'Freedom of
European Public Law 635.
43 Your Right to Know, Cm 3818 (1997), para
the legislation to the Home Office has led to
be diluted. Firm plans for the legislation fo
from the Queen's Speech. Subsequently th
published for consultation before the end
1998.

308 ? The Modem Law Review Limited 1999

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March 1999] Secrets of the Political Constitution

involves subtle interplay of legal and political factors, w

the political climate in which it operates. This only serve
of attempting to categorise such mechanisms as either
Nor is the only choice between reforming Parliament
the courts. One of the intriguing features of the constit
now underway is the extent to which power is being fra
organs of the state. This is not merely due to the increased
the Human Rights Act. It also involves the creation
legislatures in Scotland and Northern Ireland, executiv
possible creation of regional assemblies for parts of En
role in relation to the new Regional Development A
experimental powers to local authorities and the emerge
governance, such as directly elected mayors for ma
could argue that the doctrine of Parliamentary suprema
central government will remain firmly in control of the pu
case of the power of the Scottish Parliament to va
Nevertheless, for the first time in the post-war period
voluntary reversal of the centrifugal tendencies of the s
emergence of political pluralism and increased toleration
power, then it may in the end it may do more to chec
mighty Executive than all the schemes one can drea
Parliament. One should add to this picture the alre
fragmentation of power resulting from the creation o
growing band of regional and local quangos, the breakd
between public and private agencies, and the direct
European institutions. Rhodes' thesis of the 'hollowing-
accompanying metaphor of policy networks44 start to
ways of mapping the constitution than the old classific
Government versus Judiciary, checks and balances, and
may come to see the Scott Report and the debates it pr
the old constitutional order.

44 R. Rhodes, 'The Hollowing Out of the State: The Changing Nature of the Public Service in Britain'
(1994) 65 Pol Q 138.

? The Modem Law Review Limited 1999 309

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