Monthly Archives: May 2011

Christopher McCrudden: Duties beyond borders: the external effects of our constitutional debates.

How far, if at all, should we take into account the effects of our internal constitutional debates on those outside the boundaries of the state? I’ve been thinking about this after taking part in two particularly interesting conferences in the last couple of weeks (it is the conference season after all).

In the first, sponsored by Queen’s, Belfast and Oxford at Balliol College, I helped bring together British legal academics, members of the recently established Commission on Human Rights, and representatives of the Council of Europe and the European Court of Human Rights to consider issues raised by recent British debates on the Human Rights Act and the UK’s relationship with the Court.

The second, on ‘Sovereignty, Global Justice and the Ethics of War’ at the Institute for Advanced Studies in Jerusalem, seemed at first sight likely to focus on issues far removed from the issues we debated in Oxford.  Intriguingly, however, they proved to have much in common.

In the Oxford conference, we were reminded that the debate over how the UK should react to the Court’s decisions on prisoner voting has potentially adverse effects well beyond the UK. The sight of the House of Commons defying the Court has potentially damaging effects on the authority and legitimacy of the Court and the Convention in other states. It is one thing for the robust UK debate to be picked up in other stable constitutional democracies with good human rights records.  It’s another thing entirely where the British debate is transmitted to barely democratic European states with a debateable human rights record, and a weak commitment to constitutionalism.

In the latter states, it was suggested, the British ‘defiance’ gives aid and comfort to altogether darker forces, which see the British resistance as legitimating their own visceral resistance to the cosmopolitan liberal vision that the Court and the Convention embody.  Aren’t we, it was argued, under an obligation to take into account the adverse effects that the British debate may have elsewhere in Europe?

There is, of course, both an empirical as well as a normative issue in play here.  For the purposes of this blog, I don’t want to get embroiled in the empirical question of whether the UK debates do have such effects externally (although I’m quite prepare to believe that they have). The question I’m interested in is whether, assuming that there are such external effects, we ought to take these into account.

It’s at this point that the discussions in Jerusalem are powerfully relevant, since they addressed directly the morality of ignoring what economists call ‘externalities’ in domestic constitutional decision-making.  On what might we base an obligation to ‘internalise’ these externalities?

An obvious starting point is enlightened self-interest.  Ensuring that Europe has stable constitutional democracies committed to the Rule of Law is clearly to the UK’s benefit. Authoritarian, human rights-violating states generate violence and instability beyond their borders, and are therefore a drain on our diplomatic and defence resources, quite apart from disrupting the opportunities for trade and investment.

The Council of Europe and the European Court of Human Rights have undoubtedly played a significant role in helping to ensure that fragile European states become more or less reliable members of the European public space. That is why the United States’ State Department has warned recently against undermining them, in its own foreign policy interests.

Is there an obligation irrespective of self-interest? Again, a source of such an obligation can be identified which is both obvious and powerful, but often overlooked: the United Kingdom is under (at least) a moral obligation to implement judgments of the Court of Human Rights because we have (at least) implicitly promised to do so when we joined the Convention system, and violating that promise is, at least prima facie, wrong.  (It also threatens to undermine our expectation that others will consider themselves bound by their promises to us, of course.)

Apart from an obligation derived from self-interest and promising, where else might we locate a duty to others outside our borders? Perhaps the most useful insight from Jerusalem was that ‘membership’ may provide an important point of departure: two people belonging to the same ‘community’ have some duties to each other simply by virtue of that common membership.  If they do, does that mean that we have an obligation to have regard to the effect of our actions on those other members of our community? Probably so.

Turning back to the British debate, what is the relevant community? Some might want to argue that the relevant community is the human community at the global level, but a less ambitious claim would be that, at the very least, we are all members of a European community (small ‘c’) and this generates mutual obligations to each other.

And therein lies the problem: do we in the United Kingdom consider we are members of a European community.  I think we are, and that that we have an obligation, therefore, to take external effects on other Europeans into account.  Unfortunately, some of those currently opposing the Court act as if they think that the relevant community stops at the Channel; taking the interests of others into account does not even appear to occur to them. Indeed, it seems clear that the motivation of some is partly driven by the desire to oppose the Court in order to demonstrate that they are not Europeans.

But not all. A significant proportion of current critics of the Convention and the Court will argue that they do indeed consider themselves Europeans, that they do take into account the external effects on other Europeans, but that their conception of the European community is significantly narrower than the membership of the Council of Europe. We may have obligations to France or Ireland, they may say, but not to Russia or the Ukraine. For them, accommodating the interests of the latter is part of the problem, and I am picking up a growing scepticism as to whether they should have been admitted in the first place.

So, an argument based on the perception of common membership would, for these critics, not extend to an obligation to take into account the effects on those outside their conception of the ‘real’ Europe.  In that case, such an obligation will only be based on self-interest and promising, unless we can convince them of an obligations based simply on our common humanity.

I’ve been deliberately vague, so far, on precisely what a duty to pay due regard to externalities might actually involve. I’m not suggesting that the current British debate shouldn’t occur at all; this debate is legitimate and even desirable. Nor am I saying that our duties to (external) others are other than one consideration among others. But, at a minimum, it seems to me that those participating in that debate have a duty to appreciate who their potential external audience is, together with a duty to at least try to gauge the effect of their actions on that external audience. I’d even be prepared to argue, I think, that we are under an obligation to adopt constitutional policies which may be marginally sub-optimal domestically, if they will significantly enhance the well-being of others who are members of our (European) political community.

I’m less certain who, precisely, bears an obligation to internalise externalities. My starting point is politicians in Parliament, but what about authors of think-tank reports and former Supreme Court judges? Are they under such an obligation?  More intriguing still, how far is there an obligation on current members the superior courts (particularly the Supreme Court) to be aware of external audiences, and adjust their judgments to take external adverse consequences into account?  Does the era of transnational judicial dialogue bring with it judicial responsibilities as well as judicial opportunities?

So, in conclusion, I’m suggesting that the current UK debate is an important constitutional moment, involving critical issues of the extent of the obligations of various public actors to those outside the state, and our conception of what ‘Europe’ involves.  What is somewhat depressing about the current ‘constitutional’ debate over human rights is not that it is taking place.  No, the depressing aspect of the debates is how narrowly focussed they are, not least in appearing to ignore the effects of that debate on others outside the UK.

 

© Christopher McCrudden. Professor (elect) of Human Rights and Equality Law, Queen’s University, Belfast, and William W. Cook Global Professor of Law, University of Michigan Law School.  With grateful thanks to Adam Tomkins and Nick Barber.

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Filed under Constitutional reform, Human rights, Judiciary, UK Parliament

Aileen McHarg: Axa General Insurance Ltd v the Lord Advocate – Update

The insurance companies’ appeal against the Inner House of the Court of Session’s decision in Axa General Insurance Ltd v the Lord Advocate (discussed in a previous post) will be heard by a seven justice bench of the Supreme Court from 13 to 15 June 2011.  The case will be heard alongside a reference by the Attorney General for Northern Ireland regarding the validity of the Damages (Asbestos-Related Conditions) Bill passed by the Northern Ireland Assembly on 21 March 2011.  The Bill is in almost identical terms to the Damages (Asbestos-Related Conditions) (Scotland) Act 2009, the validity of which was upheld by the Inner House in Axa.  The Attorney General’s reference is limited to clauses 3 and 4(2) of the Bill.  The former provides that the period between the House of Lords’ decision that pleural plaques were not actionable and the coming into force of the legislation is to be ignored for the purpose of calculating limitation periods, while the latter provides that the Bill has retrospective effect.  The Attorney General decided to refer the Bill prior to its receiving Royal Assent in order to pre-empt legal challenges and associated delays similar to those which had been experienced in Scotland.  This is the first pre-enactment reference made in relation to any devolved legislation.

 

Aileen McHarg is a Senior Lecturer in Law at Glasgow University. 

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UKCLG co-sponsored event: 13 June at SOAS on Nepal

Date: Monday 13 June
Time: 5 p.m.
Place: Room G51, Main Building, School of Oriental and African Studies, Russell Square, London WC1H 0XG

Constitution Drafting, State Restructuring And The Peace Process In Nepal: What Next?

A roundtable discussion organised by

the Britain-Nepal Academic Council

and the UK Constitutional Law Group,

for the Centre of South Asian Studies, SOAS.

Speakers will include:

General Sir Sam Cowan
Professor David Gellner
Professor Peter Leyland
Dr Mara Malagodi
Dr Sara Shneiderman
Professor Surya Subedi
The meeting will be chaired by Professor Michael Hutt.

All Welcome

Further Information: http://www.soas.ac.uk/csas/

Or contact Centres & Programmes on:

Email: events@soas.ac.uk
Tel: +44 (0)20 7898 4893 /2

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Andrew Le Sueur: Reaching Middle England at Chelsea

People accidentally stumbling across this blog must think that we’re an intensive lot. But it’s not all “rules of the game” with no “game”. We all have hinterlands. Part of mine is gardening, even though anyone living in my London terraced house before 1985 would have called my plot a “back yard” not a “patio”. So, yesterday it was my annual pilgrimage to the RHS Chelsea Flower Show; it poured with rain but I’ve been inspired.

Non-gardeners can be forgiven for thinking that Chelsea is just about plants. That’s a mistake: it’s as much about propaganda and selling ideas and causes. The climate change agenda is everywhere. Not-for-profit organisations such as the BBC and Cancer Research sponsor some of the large show gardens. One that caught my eye was the Magistrate’s Garden, designed for The Magistrates’ Association “celebrating the 650th anniversary of the magistracy in England and Wales”.

Middle Englanders straining the see the garden through the crowds had glossy leaflets thrust into their hands, explaining the garden and the Association. Kate Gould, the garden’s designer, explains: “The garden is imagined, as a courthouse would be, in a central and modern town location, backing onto the court rooms. It has been designed for use by the magistrates themselves, to work, reflect or relax in during the working day. The two facing benches refer to the magistrates’ bench and the court’s crest is set into the wooden panels above the seat”.

A timeline in the leaflet intermingles horticultural and legal landmarks. Did you know that the lawnmower was invented in the same year (1830) as Parliament renewed licensing powers for Justices of the Peace? Confidence in the timeline is dented a bit by the entry “1989 Human Rights Act”, though it’s interesting to speculate what a Conservative-inspired incorporation of the ECHR might have looked like. May be we’ll find out here? The final entry on the timeline helps explain the motivation for the garden: “2011 Economic difficulties result in closure of one quarter of magistrates courts”.

Hazel Genn’s work on public understanding of judges reveals just how little public understanding there is of judges and courts and that almost everything that people think they know comes via the news media and TV drama. So well done the Magistrates’ Association for the piece of outreach work to Middle England, attached to a lovely garden. Anything that helps cut through the tabloid fog to put information directly into people’s hands must be a good thing.

Next year at Chelsea? I’d like to see the Judges’ Council explaining the super-injunctions saga though Hibiscus rosa-sinensis spilling over some tall, neatly trimmed box hedges.

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Richard Ekins: Regulatory responsibility in New Zealand

The Parliament of New Zealand has been invited to consider an important proposal for constitutional change – the Regulatory Standards Bill 2011 (“RSB”) – which aims to improve the quality of lawmaking and hence to reduce the regulatory burden on citizens.

The RSB is identical in all save name to the Regulatory Responsibility Bill (“RRB”) drafted and recommended by the Regulatory Responsibility Taskforce  in its Report of September 2009.  The Taskforce’s draft bill was the successor to an earlier Regulatory Responsibility Bill, introduced into Parliament in 2006 by Rodney Hide MP, and eventually rejected by the Commerce Committee.  This in turn was almost identical to that proposed by Dr Bryce Wilkinson in his Constraining Government Regulation, New Zealand Business Roundtable Discussion Paper, 2001, Appendix C, pp. 236-41.  Wilkinson served on the Taskforce.

The RRB (now RSB) has been welcomed by some business groups, most notably Federated Farmers and the  New Zealand Business Roundtable.  It has been trenchantly criticised by some academics (including me; see most recently this paper with Chye-Ching Huang) and rejected byTreasury (the lead agency responsible for advising on the Bill), as well as by almost every other government department or agency.  The Minister for Regulatory Reform, the Hon Rodney Hide, has made a virtue of this universal rejection, arguing it is just what one should expect from a measure that aims to force policymakers to be principled.

Why such opposition to the Bill?  What does it propose?  The RRB/RSB aims to rule out certain statutes and regulations as ‘unconstitutional’ by affirming eleven principles of responsible regulation and by introducing three mechanisms – certification, judicial declarations of incompatibility, and interpretation – to ensure legislation conforms to those principles.  In what follows, I outline the detail of the Bill and comment briefly on its merits.

The principles of responsible regulation

Clause 7(1) of the RSB sets out eleven “principles of responsible regulation” in paragraphs (a)-(k), grouped under six subheadings.

  • rule of law;
  • liberties;
  • taking of property;
  • taxes and charges;
  • role of courts; and
  • good law-making.

Clause 7(2) echoes s 5 of the New Zealand Bill of Rights Act 1990 and states that “Any incompatibility with the principles is justified to the extent that it is reasonable and can be demonstrably justified in a free and democratic society.”  It is these principles, duly limited, that are the focus of the three mechanisms.  Rather than outline them in full detail, let me just note several points of interest.

The bill affirms liberty, paragraph (b) stating that legislation should:

” …not diminish a person’s liberty, personal security, freedom of choice or action, or rights to own, use, and dispose of property, except as is necessary to provide for, or protect, any such liberty, freedom, or right of another person.”

Very many legislative acts diminish a person’s liberty or freedom of choice.  This principle bars the imposition of duties unless those duties are necessary to protect “any such liberty, freedom, or right of another” (the phrase omits “personal security”, although the later discussion, at paragraph 4.53 of the Report, implies that this is an oversight).  Imagine an Act like the Bakeshop Act 1896 (NY) that prohibits any person from employing another to work in a bakery for more than ten hours per day or sixty hours per week.  That Act would depart from paragraph (b), for it restricts the freedom of contract of employer (and employee), and is not necessary to protect any existing liberty or freedom of the employee (or any other person).  The legislators might attempt to justify their act by reference to the health of the worker or the need to protect him from economic exploitation.  It would be open to the courts to consider this rationale and to decide that the legislation is an unjustifiable limit on liberty.  This is of course precisely what took place in the infamous United States Supreme Court decision, Lochner v. New York 198 U.S. 45 (1905).  Enacting this principle opens the policy of almost every statute up to review on Lochner grounds.

The bill also states, in paragraph (c), that legislation should “not take or impair… property” unless this is necessary in the public interest and full compensation is paid, such compensation to be paid if practicable by those who benefit from the taking.  This principle seems plainly to be the main concern of those moving the RSB and its precursors.

The principle conflates takings and impairment.  The effect is that limiting how one uses property attracts full compensation.  The point of the principle is to make it very expensive to limit how property owners may act, for any property owner who suffers loss from regulatory change is entitled to be made whole.  Thus, if Parliament wishes to ban dangerous weapons, it must buy them.  Legislation imposing mandatory closing times on certain pubs would be an impairment attracting compensation.  And legislation criminalising prostitution would arguably be a taking of the goodwill of what would otherwise have been lawful brothels.  This principle smuggles in a doctrine of regulatory takings that is foreign to the New Zealand constitution (and is more radical than other jurisdictions).

The final four paragraphs (h)-(k) set out the principles of “Good law-making”.  Paragraph (h) states that legislation should not be made unless there has been consultation.  Extraordinarily, and quite contrary to the Bill of Rights 1688 (still good law in New Zealand) this subjects the adequacy of the parliamentary process itself to legal argument and judicial ruling.

The remaining three principles amount at best to the truism that one should not make law unless there is good reason to make law.  However, paragraph (j) states that legislation should produce benefits that outweigh its costs, which may wrongly prioritise cost-benefit analysis and lead to quantifiable outputs looming too large in the lawmaking process.

The certification regime

The primary mechanism for ensuring that legislation is compatible with the principles (subject to reasonable limits) is the certification regime.  Clauses 8 and 9 require various persons to certify whether the legislation is compatible with each of the principles and if not how it is incompatible and whether this is justified.  In respect of a Government Bill, the Minister responsible for the bill and the chief executive of the public entity that will be responsible for administering the resulting Act must certify the bill.

The chief executive does not have to state whether or why an incompatibility is justified if a Minister also gives a certificate under clause 8.  The reason for this, the Report states, is that the Minister is the appropriate person to judge whether a departure is justified (paragraph 4.106) and in such cases the chief executive’s role “is best limited to the proposal’s technical compliance with the principles set out in clause 7(1)”.  However, the final two principles require the chief executive to certify whether he or she thinks the benefits outweigh the costs and whether the legislation is the most effective, efficient and proportionate response available.  This means the chief executive must in effect certify whether he or she would enact this law.  The certification regime thus promises to grossly politicise chief executives and to arm them to veto government policy in a way that is flatly inconsistent with our constitutional arrangements.

Declarations of incompatibility

The bill introduces judicial declarations of incompatibility as a mechanism to support certification.  Clause 12 authorises the superior courts to declare that legislation is incompatible with the principles specified in s 7(1)(a)-(h), unless the incompatibility is justified under s 7(2).  Clause 13 of the bill provides that a declaration of incompatibility does not render the relevant legislation invalid.  The supporters of the RSB gesture vaguely towards the experience of the United Kingdom.  However, this this suggests experience to me that the proposed power might be very effective (although the imperative of conformity to international obligations is absent), but also risks illegitimately prioritising judicial analysis of the merits of legislation.

There are strong reasons of democratic principle and institutional competence to refrain from authorising courts to review legislation against these principles.  Interestingly, the Taskforce partly saw the force of these reasons, excluding the final three principles of good law-making from the jurisdiction on the grounds they were “unsuitable for judicial consideration, given the institutional limits of the adversarial process” (paragraph 4.124 of the Report).  This proves too much for determining whether legislation unreasonably limits liberty or property is equally unsuitable for judicial consideration.

The interpretive direction

The third mechanism is the direction in clause 11 that “[w]herever an enactment can be given a meaning that is compatible with the principles (after taking account of section 7(2)), that meaning is to be preferred to any other meaning.”  The Taskforce fails to justify this provision, saying only, in paragraph 1.20 of the Report, that “the existing judicial review jurisdiction would be enlivened by an interpretation provision”.  True, it would embolden litigators to argue that empowering statutes may be read to authorise only reasonable limits on liberty, or to entail compensation for impairment of property, or not to authorise any regulation that fails a cost-benefit analysis.  This would undermine many regulations in a highly uncertain, discretionary fashion.

Oddly, the interpretive direction is not limited to principles (a)-(h).  The courts must prefer a meaning of legislation that is consistent with all four principles of “Good law-making”, three of which the Taskforce elsewhere notes are unsuitable for judicial consideration.  The interpretive direction requires legal argument and judicial decision on these very issues.  This is almost certainly an oversight (I have pointed it out to members of the Taskforce and to Treasury a number of times since late 2009), yet the RSB remains unchanged.

The clause does not apply to legislation that post-dates the bill until ten years after its commencement in order to give lawmakers time to review and update the statute book.  The implication is that after ten years, it is sound for the courts to adopt novel meanings that depart from the understanding and intentions of the relevant lawmaker.  On this approach, clause 11 amends all statutes that pre-date the Act to the extent that the courts can give effect to novel meanings consistent with the principles of responsible regulation (as the courts understand them).  Parliament should not amend legislation in this reckless way.

Conclusion

The RSB is unconstitutional.  Many of the principles it affirms are heterodox and should not be justiciable.  The bill politicises chief executives, enabling them to undermine ministers.  It also authorises courts to review the detail of policy, illegitimately constraining Parliament and calling into question the validity of much secondary legislation.  It will be interesting to see whether New Zealand’s Parliament agrees.

Richard Ekins is a Senior Lecturer at the Faculty of Law, The University of Auckland.

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Filed under Comparative law, Judicial review, New Zealand

Jeff King: Should prisoners have the right to vote?

I think they should, and want to explain why in a way that addresses the issue recently faced by the courts and by Parliament.  The prisoner voting saga culminated in the Hirst v UK (No.2) [2005] ECHR 681 case before the Grand Chamber of the European Court of Human Rights, and the nearly five hour debate on the floor of the House of Commons which ended with a 234-22 vote in favour of a resolution that “supports the current situation in which no prisoner is able to vote except those imprisoned for contempt, default or on remand.”: House of Commons Debates, 10 February 2011, Vol 523, No.116, 493-586.  The saga, for Parliament, represented two distinct issues: whether the Strasbourg Court was exceeding its competency; and whether prisoners ought, as a moral and human rights matter, to have the right to vote.  This blog entry is concerned only with the second of these questions, but as it turns out, the status of the right to vote as a human right is highly relevant to the resolution of this moral issue.

The debate in the Commons was supposed to address that moral question in order to satisfy the finding in Hirst that the impugned 1983 law, which carried forth without debate a policy adopted in 1870, could not be justified as being necessary in a democratic society given that Parliament had not debated the issue in light of modern day penal policy: Hirst v UK, [79]; but see Joint Dissenting Opinion of Justice Wildhaber et. al., [7].  However, the Commons was almost entirely preoccupied with the question of whether Strasbourg had exceeded its authority or was staffed with incompetent judges.  Indeed, the matter swung so much that way, that the Attorney General was forced to remind the House of the point of the debate, eliciting the following hilarious exchange:

  • The Attorney General (Mr. D Grieve): ‘Members might also wish to focus on why they consider the current ban, or some variant of it, to be reasonable and proportionate in our own national context. It was the absence of debate of that issue that appeared to make the Court take the view that our ban was indiscriminate.’ (HC Debate, 513)
  • Chris Bryant (Lab): ‘Really?’ (513)
  • Ben Gumner (Con): ‘I am slightly worried by what my right hon. and learned friend said earlier about the purpose of this debate.’ (515)
  • David Davidson (Con): ‘Does the AG accept that, in being a lawyer, he has the problem of over-complicating matters? [Laughter.[sic]] Is not the basic issue whether we in this country should decide our line on whether prisoners should be able to vote – or should it be decided by somebody else?’ (517)

So much for reasonable disagreement about the scope of the right to vote.  In fact, as Liora Lazarus has noted on this blog in her response to Graham Gee, it was almost impossible to find any discussion which acknowledged the existence of the right and tried to delineate its scope. Only a few could arguably have been said to address the issue that way: see Long (HC Debates, 532-33); Qureshi (535-36); Corbyn (538-39). In fairness, a few MPs did address the moral issue moderately squarely, and at times the debate was very impressive on all sides of the issue.  The most frequent argument against prisoner voting is that such criminals had broken the social contract: HC Debate, 527, 544, 563. One can be tempted here to get philosophically pedantic, and claim that no one actually signed any social contract, and that a ‘hypothetical contract is not simply a pale form of an actual contract; it is no contract at all.’ (Dworkin: Taking Rights Seriously (1977: 17-18).  But what the MPs surely meant is that community life entails obligations of reciprocity, one in which the benefits of the state system and mutual forbearance come with the burdens of obedience to the rules adopted fairly by the community.  One can at once see the allure and limitations of this argument. It is among the better reasons for why we normally obey community rules (though not always, see Raz, The Authority of Law  (1979: Ch.12).  But it’s less convincing to those who have had poor life chances, and received a slim share of the alleged benefits of forbearance.  The link between inequality and incarceration is shocking: Wilkinson and Pickett, The Spirit Level (2010: ch.11).  And let it not be forgotten that due to exactly this type of reasoning, which essentially justifies depriving voting for life, one in eight African-American men is ineligible to vote in America: Cole, ‘Can our shameful prisons be reformed?’, NY Rev Books, 19 Nov 2009, §4.  The fact that Britain tailors the disenfranchisement to the prison term is less cruel, but it borrows the same reasoning.

But I want to suggest that the argument is misguided for another reason. It implicitly fails to recognise a very relevant dimension of the issue, namely that the right to vote is a fundamental human right. It is not a privilege, like a driving license or access to the gym on weeknights.  The denial of this claim, including immediately by the two sponsors of the resolution, was a veritable leitmotif of the debate:

  • Jack Straw: ‘the issue before us today – is by no stretch of the imagination a breach of fundamental human rights. Rather it is a matter of penal policy…’  (HC Debates, 502; see also 493).
  • David Davis: ‘[T]here is an important point about not confusing the rights that are properly held by everybody who is a British citizen…with those much more circumscribed rights that are given to prisoners.’ ): (493).
  • Many others: 537, 539, 542, 545, 548, 553, 556, 557, 577 (debate on that point), 578.

But the right to vote is a human right.  Participation in self-government is the most basic expression of the principle of equality, a recognition that each person has basic, equal and presumptively irrevocable civic status in the society.  So the many MPs who denied that idea are wrong as a matter of law, and of morality: see in addition to Art.3, AP.1 of the ECHR, the International Covenant on Civil and Political Rights, art. 25(b); Waldron, Law and Disagreement (1999: Ch.11), and cf. Griffin, On Human Rights (2008: ch.15, but note 254-255).  (Some parliamentarians became exercised over the Court’s deriving a right to vote from the duty to hold periodic elections in Art.3, AP1 (see Hirst v UK, [56]-[62]) but that is hardly an interpretive stretch by comparison to equality rights for transsexuals or gays in the military).  The fact that it is a human right means it is among the most basic conditions for human dignity, autonomy, and citizenship.  One does not forfeit a fundamental human right as the default penalty for non-compliance with law.

So what does that mean then? I would say this: it is of the essence of basic human rights that they are qualified or limited, if at all, only for a legitimate or compelling state interest achieved by proportionate means (i.e. are necessary and strike a fair balance). I think this admittedly legalistic proportionality principle neatly encapsulates the presumptive or peremptory force, or urgency, we attach to rights in the realm of moral practical reasoning as well.  Limitations of those types of interests require special justification.

We recognise this principle in the human rights law relating to prisoners, who continue to enjoy nearly all their other human rights while in prison, to the extent that they are exercised compatibly with the basic regimen of prison life: Hirst v UK, [69].  But don’t we take away the prisoner’s right to liberty?  How can one say that this can go but the right to vote must stay?  This is believed to be the ace in the back pocket of those opposing prisoner voting.  It is a difficult issue, but the analogy breaks down upon close examination.

In Hirst, the UK offered three legitimate state aims: (1) it would punish crime; (2) it would prevent crime; and (3) it would enhance civic responsibility and promote respect for the rule of law: Hirst v UK, [50], [74]-[75]. Consider these aims and the deprivation of liberty.  As to punishment, it is notable that we do not incarcerate all offenders.  Typically it is only the more serious and violent ones.  In these cases, it is plausible to say that incarceration is necessary to punish, because it may well be the only acceptable social response that constitutes a grave or real sanction for the offender in the relevant circumstances.  Second, imprisonment at least arguably constitutes a deterrent, and, more importantly, it takes serious criminals off the streets or out of bank boardrooms where, if left, they would be liable to continue harming the public.  Third, the rehabilitation/civic responsibility function of prisons is sharply contested. But there is at least a prima facie argument that without rattling the jailhouse keys, it would be hard to induce offenders to take up activities designed to facilitate their constructive re-entry into civil society, including especially the conditions for release on license (parole).

Disenfranchisement cuts a poor figure next to the deprivation of liberty, at least when these aims are contemplated.  Taking them in reverse order, the idea that denial of the vote enhances civic responsibility is ludicrous.  It is the very negation of their civic capacity, a message of mandatory disengagement, and of revoked social status: see HD Debates, 576-577 (Lorely Burt MP (LibDem), a former prison governor); see also 536 (Qureshi (Lab)), 538-39 (Corbyn (Lab)), 545 (Brake(LibDem)).  Second, denying the vote will in no way deter people from crime, given that many prisoners would not vote anyway, and the loss of the vote would add nothing by way of discouragement, for most offenders, to the loss of liberty.  And the vote itself will not harm the public through the choice of harmful candidates.  (This public protection rationale may justify, in my view, disenfranchisement in cases such as post-war Germany or Rwanda, or in cases of electoral fraud, where there is a special proportionality akin to expulsion from a profession for misconduct). We thus arrive at the third argument – that it is necessary to punish the criminal.  I see why some will think this is punishment, even though for most prisoners it will not be.  But it is not necessary to punish, because the deprivation of liberty and subsequent difficulties in re-joining society constitute the real and effective forms of punishment.  It is true that it is additional punishment for those that care, but then that does not make it necessary, nor does it explain why some other form of additional punishment (no doubt more effective if pain is the goal) could not be sought.

At the very base then, my argument amounts to this: we do not give violent prisoners the vote because they “deserve” it; we do so because they are presumptively entitled to vote as a basic human right, not as a privilege, and we have no good argument for saying it is necessary to take it away.

Jeff King is a Fellow and Tutor in Law at Balliol College, Oxford. 

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Filed under Human rights, UK Parliament

House of Lords Reform

The Government has published the House of Lords Reform Draft Bill.  The proposals are still subject to consultation and parliamentary debate, but it seems that, at a minimum, the bulk of Lords will be directly elected (with 240 members elected, and 80 appointed).  It is proposed that elected members would sit for 15 years, and would be elected through some form of proportional representation.  Twelve bishops will remain in the House.

It seems  that the public will not be asked to approve these proposals through a referendum.

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Conor Gearty: Max Mosley in Strasbourg

It is right that the feisty and courageous Max Mosley should have lost his recent case at Strasbourg.  He was asking for simply too much.  After all, he had already won his action for damages in the English courts,  having secured a £60,000 damages award from Mr Justice Eady.  Mosley wanted more – in particular he argued for a general presumption that those whose privacy would be affected by a proposed publication should be given prior notification of its imminence so as to give them the chance to start proceedings to prevent it ever appearing.

Whatever one things about the despicable behaviour of the media in this area (on which more presently) the kind of closing off of the stable door before the horse bolts suggested by Mosley would have done far more harm than good.  Gagging orders of the type that once pockmarked the laws of libel and contempt would become far more common than they are now, and not all the claimants would be genuine individuals striving to protect their privacy (think Trafigura and capitalist crooks like the late Robert Maxwell as well as trouser-less footballers and the occasional Marr-man (ie a political commentator required for professional reasons to appear ethically pure).  The chill factor caused by such a new law would dampen down much reporting that was valuable as well as some that was contemptible – it would be a blunderbuss of censorship destroying far more than it targeted.

The European judges have sensibly avoided going down this route.  Their unanimous judgment notes that what Mosley was after went far beyond – and was consciously designed to go well beyond – the confines of his own case: he had won after all.  This being so, the Court could not help but notice that it was being drawn into something which was too close to law-making for its liking.  There was much diversity of practice across Europe and plenty of legislative engagement with the issue in Britain already:  clear indicators that the case was right for the application of the Court’s  margin of appreciation.  (This is the polite way the Court has of brushing of supplicants whose overtures it wants to reject.)

There was also, of course, a free speech point.  The European Convention on Human Rights  protects not just respect for privacy (article 8) but free speech as well (article 10).  The neat way the Court dealt with this was to note what needed to be done to make the prior notification rule fit with article 10.  First there had to be a defence based on the public interest and this would have to include a reasonable belief as to that interest was.  Second, there could be no possibility of punitive fines or a criminal sanction for breach since these would (as the Court put it) ‘create a chilling effect which would be felt in the spheres of political reporting and investigative journalism, both of which attract a high level of protection under the Convention.’

But with these two free speech qualifications was it worth having the rule at all?

Surely newspapers would just publish and take their chances with the court afterwards, arguing a reasonable belief in the public interest and taking on the chin any damages that might follow if the defence happened to go  wrong?  As the Court observed, even if the pre-notification rule had been in place the News of the World might well have chosen not to inform Mosley – remember all that nonsense about Nazi regalia masquerading as a public interest motive for publication?  So having eviscerated the rule sought in order to make it fit with article 10, the Court stood back, admired its destructive handiwork and concluded that it was something not worth having after all.

Despite the defeat, Mosley emerges from the story as a strong character unafraid of confronting head-on the commercially driven sleaziness of what used to be called the Tabloid press.  Those who do not read these papers do not perhaps appreciate quite how dependant they are on invading the privacy of celebrities (memorably  defined by Chris Patten as ‘Somebody I have never heard off’).  Few politicians in any kind of position of power ever challenge their moral iniquity – even when they are breaking the law or being grossly deceptive to get their story (and it is not just the Tabloids – remember Vince Cable’s entrapment by the Telegraph).  The pressure groups are also invariably the friends of the media – as all eleven interveners were in the Mosley case.  Less appreciated is how close the linkages are between those professional lawyers who argue for free speech in their spare time and for newspapers in court for commercial gain in their professional lives.

The one group who are immune to this pressure are the judiciary: their job is to apply the law – not as they imagine it but as it happens to be.  Parliament has long bottled out of challenging the press directly in a new privacy bill, instead quite deliberately allowing the Human Rights Act to do the work by a process of case-law accretion.  The press tried to exempt itself from the Act when it was going through Parliament – using the then chair of the Press Complaints Commission  Lord Wakeham to table an amendment which would have had this effect. It failed but the press got what is now section 12 instead.  Welcomed by Lord Wakeham at the time, it helped to achieve exactly the opposite of what it intended, a common law of privacy – starting with Douglas v Hello! Ltd in late 2000.

Since then the courts have done their job as well as could be expected, developing an article 8 jurisprudence as consistent with article 10 as can be reasonably managed given the opposite directions in which these two  rights point.

The media is not used to not getting its way.  They have subjected the judges involved in this area of the law to a fierce onslaught of criticism.  The person most often in the firing line these days is Mr Justice Eady, but there have been others in the past and there will be more in the future.  Leading the charge has been the editor of the Daily Mail, Paul Dacre, furious that his writ appears not to run in the courts as easily as it seems to everywhere else.

In all the rage about celebrity privacy, it is only the courts that appear ever to take into account the children who are often the worst victims (in terms of being bullied at school) of revelations about the bad behaviour of a parent: see this recent example of how the courts try to achieve a proper balance in this area.  it seems that newspaper editors have a commitment to children when it comes to exposing supposed child-abusers, but are less fearless when their own wallet is at stake.

Who is to defend the judiciary?  Perhaps an intervention by a team of academics would not be out of place, a joint letter or article in the … papers.  Would it ever be published?  Shall we see?

Conor Gearty is Professor of  Human Rights Law at LSE

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Stephen Tierney: Britain wakes up to the referendum

The referendum has crept up on the British constitution. As late as 1997 it appeared to be a fairly exotic device used only for highly exceptional constitutional situations which also threatened a political split in the party of government. But following the referendum in Wales in March of this year, last week’s AV poll and the likelihood of a referendum on Scottish independence in the next five years we need to address the referendum as a fixed feature of our system, recognising that direct democracy looks likely to proliferate in a number of directions in the coming decade.

When a national referendum was first used on continued membership of the EC in 1975 it was taken by many to be a one-off initiative. This was a unique constitutional situation and one which did not align clearly along ideological lines. The referendum was deployed to head-off a damaging split in the Labour Party. James Callaghan’s famous reference to the rubber life-raft which the party had to climb into was equally apt in respect of the failed attempts to bring about devolution for Scotland and Wales in the late ‘70s; again Labour was split on the issue and the referendum served to defuse this problem by handing decision-making power directly to ‘the people’.

This process, however, proved to be a watershed by creating a precedent of sorts and since then we have seen the referendum become a fixture in the territorial reorganisation of these islands. Referendums were used of course to found the Parliament in Scotland, Assemblies in Northern Ireland and Wales and the Greater London Authority two decades later. This established a pattern, and the referendum has also been applied relation to the fairly anodyne regional assembly proposal for the North East of England in 2004 (a postal ballot was used) and the somewhat technical extension of powers to Welsh devolution proposed by the Government of Wales Act 2006 s.103 and approved by the Welsh people (or at least by 64% of the 35% who turned out) two months ago.

The relationship between the referendum and devolution marks the emergence of the referendum as a more systematic feature of the constitution. Vernon Bogdanor has gone so far as to argue that there is now a convention whereby a referendum must be held for “any significant devolution of powers away from Westminster” or “when a wholly novel constitutional arrangement is proposed”. [Evidence to House of Lords Select Committee on the Constitution, 'Referendums in the United Kingdom', Report with Evidence, House of Lords Select Committee on the Constitution,12th Report of Session 2009–10, HL Paper 99, Minutes of Evidence, pages 45-46]. This may over-state matters somewhat, since the Scotland Bill currently proceeding through Parliament proposes to extend significant powers to the Scottish Parliament, including fiscal powers, without a referendum. Nonetheless, it is an important point that the use of the referendum for significant constitutional moments has become an established and seemingly growing practice, and the possibility of emerging conventions should not be overlooked.

And we can point to a number of other areas where the referendum will continue to be important. With AV now seemingly dead, it does nonetheless now seem that in political terms no significant change to the UK voting system could be effected by Parliament without the endorsement of the people in a direct vote. One wonders if we might say the same thing about other significant changes such as House of Lords reform. This is questionable since the House of Lords Act 1999 was passed without a referendum, but at the same time the ground towards a greater direct say by citizens in constitutional matters seems to be shifting all the time. The House of Lords Select Committee report cited above was generally sceptical about the wisdom of using referendums but still concluded: ‘they are most appropriately used in relation to fundamental constitutional issues’ (para 228); this certainly seems to be the way the wind is blowing.

The EU Bill currently before Parliament will provide by law that a treaty amending or replacing the current EU treaties may not be ratified without a referendum. Another territorial matter which is often over-looked is the Northern Ireland Act 1998 section 1 which provides that any move to reunify the island of Ireland would require ‘the consent of a majority of the people of Northern Ireland voting in a poll’. And with the outcome of the Scottish parliamentary election the SNP government with an overall majority seems certain to re-launch the initiative towards independence which stalled in 2010. There is much to be said about the legal implications of such a move and there will be other occasions on which to explore the particular issues emerging from this specific case, but for now it can be seen as part of a broader trend towards direct democracy across the UK. As we reflect on last week’s elections one thing is very clear; the referendum is here to stay and its implications for the UK constitution, while potentially great, remain to be properly worked through.

 

Stephen Tierney is Professor of Constitutional Theory at the University of Edinburgh

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Aileen McHarg: SNP Wins Overall Majority in Holyrood

If the Labour Party supported Scottish devolution as a means of ‘dishing the Nats’, it is a tactic which has spectacularly backfired.  At the fourth Scottish Parliament elections on 5 May, the Scottish National Party (SNP) won an overall majority of seats, enabling them to form the first majority government in Scotland since devolution.  Previous elections produced two Labour-Liberal Democrat coalitions between 1999 and 2007, and a minority SNP administration between 2007 and 2011.  This time, the SNP have taken 69 out of the 129 seats in the Parliament, an increase of 22 on their 2007 performance.  Labour now have 37 seats, down 9; the Conservatives 15, down 2; the Liberal Democrats, 5, down 11; the Green Party remain at 2; and the Independent, Margo MacDonald, retained her seat.  (N.b., boundary changes since 2007, mean that the figures are not directly comparable).

Four things are particularly notable about the composition of the new Parliament.

First, the SNP won 53 out of the 73 constituency seats elected by first past the post (FPTP), an astonishing reversal of the position at the first Holyrood election in 1999, when the Labour Party won 53 seats and the SNP took only 7.  The additional member system (AMS) was adopted for Holyrood elections precisely because of Labour’s overwhelming dominance in Scotland under FPTP.  Even at the 2007 election, when Labour gained one seat fewer overall than the SNP, they won 37 constituency seats, compared with only 15 in 2011.

Second, the result demonstrates the imperfect proportionality of AMS.  The SNP gained 53% of the seats at Holyrood, but only 45.4 % of the constituency vote and 44 % of the regional vote.  Previous elections have produced similar boosts in share of seats compared to share of votes for the largest parties, suggesting that the ratio of ‘top-up’ regional list seats to constituency seats is not enough to compensate for the disproportionality of FPTP.

Third, the slight difference in share of votes as between the constituency ballot and the regional ballot indicates that at least some voters are continuing to use their two votes differently.  The regional vote may be used, for example, to support a party which has little chance of winning a constituency seat, or to express a second preference; conversely, the constituency vote may be exercised tactically, or by reference to the candidates’ personal characteristics.

Fourth, despite fears that the gender balance in the Parliament would worsen, it has actually improved slightly, with an increase from 43 to 45 female MSPs (35%), although this remains below the high of 39.5% achieved in the 2003 election.  Paradoxically, the increase appears to be attributable to Labour’s poor performance in the constituency vote; whereas it fielded only 18 out of 73 female constituency candidates, women were well represented in its regional lists, with most lists being ‘zipped’ with alternate male and female candidates.  By contrast, the SNP does not appear to have adopted any affirmative action measures, and its gender balance, with just 17 female MSPs (24%), is significantly worse than that of the other main parties (Labour 45%; Conservatives 40%).  Racial diversity in the Parliament has also improved very slightly, with two Asian MSPs elected in 2011 (one each for Labour and the SNP), compared with one in 2007 and none in either 1999 or 2003.

To what is the SNP’s success attributable?  There seems to be general agreement that it does not represent a sudden upsurge in support for independence.  Rather, it seems to be due to a combination of factors:

First, the party has a popular and charismatic leader in Alex Salmond, who ran a quasi-presidential campaign.  His personal share of the vote in his Aberdeenshire East constituency rose by 21.3 percentage points to 64.5%.  He and his party faced lacklustre opposition, especially from Labour, which managed to throw away a sizeable poll lead in the months before the election was called.  Both the Labour and Liberal Democrat party leaders, Iain Grey and Tavish Scott, have already announced their resignations, and the Conservative Party leader, Annabel Goldie, has also faced resignation calls.

Second, despite running a minority government since 2007, Salmond and his ministerial team gained a reputation for competence, making no major mistakes and suffering none of the personal scandals that dogged previous Scottish administrations.

Third, the SNP has successfully ‘detoxified the brand’.  Once regarded as the ‘Tartan Tories’, the party is now positioned well to the left of Labour (although, at the same time, it remains strongly pro-business).  Policies such as a five year council tax freeze, free prescription charges and free university education proved popular with voters, although it remains to be seen whether these will in fact be affordable.

Fourth, the party was the only one to offer a positive, and distinctively Scottish, vision of the country’s future, particularly around the development of renewable energy.  Again, it remains to be seen whether this vision will be realisable (not least because the Scottish Parliament and Government do not control all the policy levers necessary to achieve it).  Nevertheless, the Parliament does appear to have established itself as Scotland’s national forum in which Scottish issues play the decisive role in how people vote.  Unlike local government elections, Scottish Parliament elections do not seem to be treated primarily as an opportunity to express an interim verdict on the performance of the UK government.  This explains the disparity between the results of the 2011 Holyrood elections and the 2010 Westminster elections, in which the SNP secured just six seats.  That said, turn out remains disappointing for Holyrood elections, at just 50% in 2011, down from 51.3% in 2007.

Finally, what are the implications, particularly the constitutional implications, of an SNP majority government?

First, there will be none of the delays and uncertainties in forming a government that followed previous Holyrood elections, although formation of the government is not automatic.  The appointments of both the First Minister and the other Scottish Ministers require to be approved by the Parliament (within 28 days of the election) before being made by the Queen.  The first meeting of the new session will be on Wednesday 11 May.

Second, Salmond has a much larger field from which to appoint his ministerial team.  After the 2007 election, he made a virtue out of necessity by appointing a pared-down ministerial team, with thematic rather than departmentally-based portfolios.  This approach is regarded as having been effective, and it is yet to be seen whether or not it will change.

Third, and most importantly, the SNP will have much greater freedom than during the last Parliament to pursue their policies – and a longer period in which to do so.  In order to avoid a clash with the next Westminster election, the Fixed Term Parliaments Bill provides for the next Scottish Parliamentary election to be held on 5 May 2016, instead of 5 May 2015.  The 2007 – 2011 session was notoriously light on legislation compared to the first two Parliamentary sessions, and the Scottish Government was constrained by its lack of majority.  For instance, it initially failed to have its 2009 budget approved by the Parliament, and managed to pass it at the second attempt only by making concessions to other parties.  In addition, some flagship proposals – most notably legislation to replace the council tax with a local income tax and to pave the way for a referendum on independence were dropped altogether because of Parliamentary opposition.  The SNP now has the numbers to take forward both policies, although its manifesto merely undertakes to consult on replacing the council tax with a fairer system based on ability to pay during this Parliament.  On the other hand, a referendum Bill has been promised in the second half of the Parliamentary term.  Meanwhile, the party intends to press for amendments to the Scotland Bill to further strengthen the Scottish Parliament’s financial powers.

Independence – and what precisely that means in an interconnected, globalised world – will, in all likelihood, be the issue that receives the greatest attention over the next few years.  Formidable obstacles remain in its path, not least the legality of any referendum Bill passed by the Scottish Parliament.  The UK government has said that it will not dispute the vires of such a Bill, but that does not mean that others will not.  Assuming that any such challenge fails (and this is likely to depend upon the exact wording of the Bill), securing a majority in favour of independence will be the next hurdle to overcome.  At the moment, no-one expects that to happen – opinion polls consistently show support for independence at no more than around 25 to 30%.  Then again, a week ago, no-one predicted that there would be a majority SNP government at Holyrood.

Aileen McHarg is a Senior Lecturer in Law at the University of Glasgow.

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