Monthly Archives: January 2012

Gavin Anderson et al: The Independence Referendum, Legality and the Contested Constitution: Widening the Debate

Two weeks ago, the UK Government published its consultation document on Scotland’s Constitutional Future, in which it stated its view that the Scottish Parliament has no power to enact legislation authorising a referendum on the question whether Scotland should become independent from the United Kingdom.  Last week, the Scottish Government published its own consultation paper, Your Scotland, Your Referendum, claiming that the Scottish Parliament can validly authorise the asking of at least some questions about independence, although the document is ambiguous as to whether the Scottish Government believes that it has power to ask its preferred referendum question, namely ‘Do you agree that Scotland should become an independent country?’.

The legality or otherwise of an independence referendum is, from one perspective, a narrow point: a matter merely of process, which could be authoritatively resolved by an express grant of power from either the UK Government (under s.30 of the Scotland Act 1998) or the UK Parliament (under primary legislation), and a distraction from the more important issues of where a referendum might be taking both Scotland and the rest of the UK.

From another perspective, though, the legality issue is crucial because the answer to the question tells us a great deal about where we are currently in constitutional terms, and hence about how great or small a constitutional leap we might be about to take.  Furthermore, since the recognition claims and aspirations that are so central to constitutional politics are often as much concerned with who is entitled to set or influence the agenda of debate as they are about the outcome of debate, we cannot dismiss the question of background legal authority as of merely academic interest.  Accordingly, the legality issue remains important even if it becomes practically irrelevant, and it has significance not only for Scotland, but for our understanding of the nature of the UK constitution as a whole.

Contrary to the views of the UK Government and a number of influential commentators, on this blog and elsewhere, we believe that the legality of a referendum Bill passed under the Scotland Act as it currently stands is a more open question than has been generally acknowledged.  In other words, we believe that a plausible case can be made that such a Bill would be lawful, and believe it is important that these arguments are clearly set out.  The case for legality rests on a particular reading both of the purposes of a referendum Bill, and of the purposes of the Scotland Act.

The UK Government’s argument that a referendum Bill would be unlawful rests on two premises: first, that section 29(2)(b) of the Scotland Act, which provides that an Act of the Scottish Parliament is outwith competence if it “relates to” a reserved matter, is to be interpreted literally; and, second, that the purpose of a referendum Bill, having regard to its effect in all the circumstances (s.29(3)), would be to dissolve the Union.  Since the Union is a matter reserved to the UK Parliament, the Bill would, they argue, therefore relate to a reserved matter and would be unlawful.

Both premises of this argument are contestable.  Taking the second premise first, there are a number of difficulties with the UK Government’s interpretation of the purpose of a referendum Bill.  In the first place, they rely on a broad interpretation of its purpose, effectively treating the undoubted political aspiration of the SNP government, as promoters of the Bill, to bring about an end to the Union, as the purpose of the legislation.  By contrast, the purpose as stated in the long title of the draft Bill published by the Scottish Government is simply to seek “the views of people in Scotland on a proposal about the way Scotland is governed.”  In taking a broader rather than a narrower view of the legislative purpose, the UK Government seems to be relying on the approach adopted by the Supreme Court in Martin and Miller v HM Advocate   [2010] UKSC 10, in which Lord Hope said:

“One of the circumstances to which it is proper to have regard is the situation before the provision was enacted, which it was designed to address. Reports to and papers issued by the Scottish Ministers prior to the introduction of the Bill, explanatory notes to the Bill, the policy memorandum that accompanied it and statements by Ministers during the proceedings in the Scottish Parliament may all be taken into account in this assessment.”

It is, however, important to note that the reason for adopting a broad approach to purpose in Martin and Miller was not to hold that the legislation in question was ultra vires, but in fact to hold that it was intra vires.  Arguably, this approach would not be appropriate where its effect would be to render legislation beyond competence.  This is supported by s.101(2) of the Scotland Act, which instructs the courts that, where possible, they should interpret Bills as narrowly as is required to allow them to be upheld.

A second objection to the UK Government’s broad reading of the purpose of a referendum Bill is that it conflates the intention of the Scottish Government with the intention of the Scottish Parliament.  It is perfectly conceivable that some MSPs may vote for a referendum, not because they support independence, but rather because they expect that the vote will be lost and that the issue of independence will thereby be removed from the political agenda, at least for the foreseeable future.  Indeed, this seems to be the UK government’s own reason for wishing a referendum to take place.

Finally, it is a curiosity of the UK Government’s position that, in assessing the effect of a referendum, they seem to be assuming that the yes campaign will win.  Hence it will confer a political mandate to negotiate terms for independence and will lead inexorably to the dissolution of the Union.  Should the outcome be different, though, the effect, it would seem, would be to reinforce the Union.  If the key test of legality is practical effect, would the referendum legislation in that case be lawful?  Of course, it would be absurd if the legality of a referendum Bill were to depend on outcome of the referendum, not least because the outcome is unknowable at the point at which any challenge is likely to be heard.  This then points to the true meaning of the ‘effect’ of a Bill as being its legal effect, rather than its practical effect.  Since the legal effect of a referendum Bill is indisputably simply to seek the views of people in Scotland – and any further effect is both non-binding and speculative – this again points to the narrower, consultative, interpretation of the legislative purpose as being the correct one.  It should be added that, if this is the correct approach to the identification of the Bill’s purpose, then the precise wording of the referendum question would appear to be a red herring; the legal effect of the referendum is not altered by asking an indirect rather than a direct question about whether Scotland should become independent.

However, even if the purpose of the Bill is correctly characterised as consultative, the second limb of the UK Government’s argument remains to be addressed.  Would a consultative Bill nevertheless ‘relate to’ the Union?  Literally, of course, it would.  However, the weight of authority (see Tarun Khaitan’s helpful post on this issue) suggests that devolution statutes, as constitutional measures, are not to be interpreted literally, but rather “generously and purposively” (Robinson v Secretary of State for Northern Ireland [2002] UKHL 32).  In other words, the statutory phrase “relates to a reserved matter” is itself capable of expansive or restrictive interpretation.  Arguably, in order to give effect to the purpose of the Scotland Act, it should therefore be read as requiring those challenging the competence of a Bill to show more than it merely “has something to do with” a reserved matter, in this case the Union.

What, then, is the purpose of the Scotland Act?  Here we come to the nub of the difficulty of predicting how the courts would respond to a challenge to the legality of a referendum Bill: the contested, and potentially evolving, nature of (a) the purpose of devolution; (b) the nature of the UK constitution; and (c) the impact of devolution upon the UK constitution.  There are at least three possibilities.  One is to regard devolution as a mere delegation of authority from the UK Parliament.  On this view, the Scottish Parliament is politically and legally subordinate to Westminster, and the latter remains the sole font of sovereign authority within the state (the unitary state narrative).  The second possibility is that devolution represents a move towards a quasi-federal constitution.  On this view, the Scottish Parliament is the political equal of Westminster, within its sphere of competence, but it is bound by the norms of the UK constitution as a whole (the federalist narrative).  The third view sees devolution as a renegotiation of the terms of Union on the part of the sovereign Scottish people, and hence sees the Scottish Parliament as a legitimate representative of the Scottish people in the course of any further renegotiation in which the interests of the Union as a whole and of its various parts are put at issue (the union state narrative).

Both the unitary state and federalist understandings of the purposes of devolution might suggest that questions about the future constitutional position of Scotland should indeed be reserved to the UK Parliament.  However, the union state narrative – strongly endorsed by the Scottish Constitutional Convention prior to devolution – suggests a much broader role for the Scottish Parliament in debating, and facilitating public deliberation on, questions about the future governance of Scotland, albeit the Scottish Parliament does not have power to unilaterally secede from the Union or to enlarge its own powers.  On this view of the purposes of the Scotland Act, then, it may be argued that a consultative referendum would be a lawful exercise of the Scottish Parliament’s legislative powers.

Which of these constitutional narratives would the courts – and particularly the Supreme Court – endorse?  The unitary state narrative would appear to be ruled out by the recent decision in Axa General Insurance Ltd v Lord Advocate [2011] UKSC 46, which rejected the argument that, at least for the purposes of judicial review at common law, the Scottish Parliament is to be understood as a subordinate legislature.  More generally, judicial dicta and extra-curial writings questioning the continued accuracy of the traditional understanding of Westminster’s sovereignty also suggest that a crude, unitary account of the UK constitution would not be accepted.

The thickening sense of UK constitutional law that this brings in its wake might point to a quasi-federal account of the UK constitution as being most likely to be endorsed.  However, the union-state narrative also gains support, not only from the political background to devolution, but also from the decision in MacCormick v Lord Advocate 1953 SC 396 and subsequent cases, to the effect that the fundamental principles of Scots constitutional law are not necessarily the same as those of English constitutional law, a view apparently endorsed by Lord Hope in R (Jackson) v Attorney-General [2006] 1 AC 262.  The choice between these two options might turn in the end on whether the Supreme Court sees itself as a court interpreting and upholding a single and unified corpus of constitutional law, or as one recognising and seeking to reconcile the somewhat different constitutional traditions of the various jurisdictions of the UK.

The questions ultimately at stake in any challenge to the legality of a referendum Bill are, then, large ones indeed, and such a case would have the potential to be a defining moment in Scots – and UK – constitutional law.  Should we, as constitutional lawyers, therefore welcome the prospect of a legal challenge?  Does this have the potential to be our Reference re the Secession of Quebec, laying down authoritative principles as to how questions about Scotland’s – and the UK’s – constitutional future is to be determined?  Or is the better analogy Bush v Gore?  In other words, would any decision about what the law is on this point inevitably be seen as being tainted by the judges’ views as to what the law ought to be?  The fraught political context in which such a challenge would be heard, as well as the widely publicised antipathy to the Supreme Court within the Scottish government, suggests that the latter analogy is more apt.

The risk to the authority of the courts – a risk which, it should be noted, would not be avoided by taking refuge in a literal interpretation of the Scotland Act – therefore suggests that the UK and Scottish Governments would indeed be wiser to agree on an express transfer of powers.  Nevertheless, because of the fundamental nature of the issues at stake, and the inherent contestability of constitutional law questions of this kind, it is important that any such agreement should be not taken as an unequivocal endorsement of the view that Westminster alone is entitled to authorise a referendum on the constitutional future of any part of the UK.

Gavin Anderson, Senior Lecturer, University of Glasgow

Christine Bell, Professor of Constitutional Law, University of Edinburgh

Sarah Craig, Lecturer, University of Glasgow

Aileen McHarg, Senior Lecturer in Public Law, University of Glasgow

Tom Mullen, Professor of Law, University of Glasgow

Stephen Tierney, Professor of Constitutional Theory, University of Edinburgh

Neil Walker, Regius Professor of Public Law and the Law of Nature and Nations, University of Edinburgh

Editor’s update: This post was the subject of a report in The Herald.  The report can be read here:

http://www.heraldscotland.com/politics/political-news/holyrood-has-authority-over-referendum.1328929454

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Paul Kildea: Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples: The ‘what’ and ‘how’ of reform

Amending the text of the Australian Constitution has been described as a ‘labour of Hercules’. It has been changed just eight times since Federation in 1901 (out of 44 attempts) and has remained unaltered for more than three decades. But a thawing of our famously ‘frozen’ Constitution may be just around the corner. On 19 January 2012 a government-appointed panel of experts recommended that the Constitution be amended to give recognition to Aboriginal and Torres Strait Islander peoples. It is likely that a referendum will be held on the subject some time in 2013.

Whether this referendum succeeds or not will depend on whether the government can put together a package of reforms capable of attracting broad support, and how well it addresses perennial process challenges around public education and engagement. In this post I outline the recommendations made by the panel in its report, and then suggest some steps that should be taken to strengthen Australia’s approach to constitutional reform process – the ‘how’ question, as Tom Hickman put it so neatly in his recent post on this blog.

The need to give constitutional recognition to Aboriginal and Torres Strait Islander peoples has been debated on and off for decades. The most recent push began in August 2010 when the Gillard Labor government pledged to hold a referendum on the subject as part of a political deal with the Greens and Independent MPs, whose support enabled the government to retain power. In December 2010 the government appointed a panel of experts to conduct a community consultation process on the issue, and to report on options for reform. The panel had a diverse membership, featuring representatives from all major political parties as well as Indigenous, business and community leaders. After releasing a discussion paper, the panel conducted a public engagement program that included 250 consultations across urban, rural and remote locations (including targeted consultations in Indigenous communities), the collection of 3,500 submissions and the maintenance of an online presence through its website, Facebook and Twitter. After analysing public input and seeking legal advice on its draft proposals, the panel compiled its report.

In the report the panel makes four recommendations for constitutional amendment: the removal of two ‘race’ provisions; the creation of a new head of power with respect to Aboriginal and Torres Strait Islander peoples; the inclusion of a prohibition on racial discrimination; and the insertion of a provision recognising Aboriginal and Torres Strait Islander languages.

The first of these is the least contentious, and currently holds cross-party support. It is widely felt that part of giving constitutional recognition to Indigenous peoples is removing those provisions that contemplate discrimination against them (as well as other peoples captured by the term ‘race’). To this end, the panel recommends the repeal of section 25, which contemplates that State Parliaments can disqualify certain people from voting on the basis of their race. While not in operation now, it was a live provision in the decades following Federation when States denied voting rights to Indigenous peoples. Its presence in a modern constitution has been described as ‘odious’.

The panel also recommends the removal of the ‘race power’, a head of power (in section 51(xxvi)) that gives the national Parliament power to make laws with respect to ‘the people of any race for whom it is deemed necessary to make special laws’. This provision has an unsavoury genesis, having been included in the Constitution for the express purpose of supporting discriminatory laws against what one of the framers called ‘the people of coloured or inferior races’. However, by the time Indigenous peoples were brought within the power in 1967, there was a strong public feeling that the national Parliament should only use the power for positive purposes, such as alleviating disadvantage. In the decades since, it has been used to support beneficial laws, such as those giving protection to sacred sites. Nonetheless, the panel recommended its removal out of a view that a provision framed around the concept of ‘race’ has no place in a modern constitution.

The panel’s second recommendation concerns the insertion of a new section 51A that gives the national Parliament the power to make laws ‘with respect to Aboriginal and Torres Strait Islander peoples’. In effect, this replaces the ‘race power’ with a head of power specific to Indigenous peoples. This is, in part, a matter of necessity: if the ‘race power’ were simply removed, certain laws that are currently supported by it (including native title and heritage protection laws) would have no constitutional basis and the subjects of those laws would revert to the States. For this reason, the panel only supports the repeal of the ‘race power’ if it is replaced by a new section 51A.

The contentious aspect of the proposed section 51A is the panel’s recommendation that the description of the head of power be preceded by a ‘statement of recognition’. This statement, which appears as a type of ‘preamble’ to the head of power, provides four types of recognition to Aboriginal and Torres Strait Islander peoples: it recognises their status as the first occupants of Australia; it acknowledges their continuing relationship with their traditional lands and waters; it expresses respect for their continuing cultures, languages and heritage; and it acknowledges ‘the need to secure [their] advancement’. This last phrase has attracted attention in media debate. The panel included it with the intention of limiting the head of power – specifically, to guard against the possibility that the national Parliament might use it to pass laws detrimental to Indigenous peoples. The need to do this arises from a 1998 High Court decision that left open the possibility that the existing ‘race power’ could be used to support both beneficial and detrimental laws. But in the past two weeks, there has been debate among constitutional lawyers as to whether ‘advancement’ is too vague a term, and some have noted that such words have been used in the past to justify laws that harmed Indigenous peoples. There is also a question over whether including symbolic language in the body of the constitution will create uncertainty in interpretation. More broadly, some worry that the inclusion of a word like ‘advancement’ will not be supported at a referendum as many voters will see it as about giving Indigenous peoples ‘special treatment’, a potent and divisive theme in Australian political debate.

The panel’s third recommendation has also attracted early opposition from some quarters. It involves the insertion of a new section 116A that would operate as a prohibition on racial discrimination. It would provide that ‘[t]he Commonwealth, a State or a Territory shall not discriminate on the grounds of race, colour or ethnic or national origin’, except where a given law or measure is for the purpose of ‘overcoming disadvantage, ameliorating the effects of past discrimination, or protecting the cultures, languages or heritage of any group’. Protection against racial discrimination already exists in national and State legislation, but the panel’s proposal would remove its existing vulnerability to subsequent legislative override. This recommendation has been welcomed by many commentators, who argue that it is consistent with Australia’s contemporary values and international obligations, and point to the existence of similar prohibitions in the constitutions of Canada, South Africa and India. But it has attracted criticism from some conservative commentators, who argue that the categories of ‘race, colour or ethnic or national origin’ are too broad and will give rise to unpredictable interpretive consequences. Others have referred to the proposed reform as a ‘one-clause bill of rights’, a potentially resonant criticism in a nation that has tried and failed several times to introduce constitutional and statutory charters of rights.

The panel’s final recommendation is the insertion of a new section 127A concerning the recognition of languages. It would, first, recognise English as the national language of Australia and, second, recognise that the Aboriginal and Torres Strait Islander languages were ‘the original Australian languages, a part of our national heritage’. The panel has described the first limb as ‘simply acknowledg[ing] the existing and undisputed position’, while seeing the second limb as providing ‘an important declaratory statement in relation to the importance of Aboriginal and Torres Strait Islander languages’. It is not intended to give rise to any substantive rights or obligations. Perhaps surprisingly, there has been little public debate about this recommendation so far, but this is liable to change. One issue that is likely to be discussed is whether the first limb serves any real purpose, and whether the declaratory nature of the second limb renders it more suitable for inclusion in the statement of recognition in proposed section 51A.

Overall, the panel has provided the Gillard government with a substantial package of reform proposals. Just over a year ago, some wondered whether the panel would limit its recommendations to symbolic forms of constitutional recognition, such as the assertion of values and aspirations in a preamble. However, the panel has shown itself to be more ambitious than this. Its report lays the foundation not only for a vigorous legal debate about different forms of constitutional recognition, but also for a wider public debate about the building of relationships between Indigenous and non-Indigenous Australia, and the combating of racial discrimination.

An obvious question at this point is whether the constitutional reforms recommended by the panel have any chance of succeeding. Certainly, the Australian Constitution sets a high bar for change: a proposed amendment must attract the support of an absolute majority of both Houses of the national Parliament, followed by the approval of a ‘double majority’ at a referendum – that is, a majority of voters nationally, plus a majority of voters in at least four of the six States. The referendum record tells us that few proposals clear this hurdle; in fact, 36 out of 44 reform attempts have failed. Whether the suggested reforms regarding Indigenous recognition buck the trend will depend largely on whether cross-party support can be maintained, and whether the Gillard government commits the necessary resources to engaging and informing the public, and making a coherent case for change.

The challenges of public education and engagement loom particularly large. The panel ran an impressive program of national consultations but, given resource and time constraints, it was only ever going to be capable of reaching a relatively small proportion of the Australian population. The next stage of the process involves widening the debate to a ‘mass’ public of 22 million people: raising awareness, sparking interest, improving understanding, and prompting input. It is this aspect of constitutional reform that Australia has never handled particularly well. This is perhaps reflected in the fact that the primary tool of public education prior to a referendum is a confusing and adversarial campaign pamphlet that half of the population tosses away without reading. It was a laudable innovation when it was first introduced in 1912; a century later, the nation’s referendum machinery is creaking and in need of reform. To draw on Tom Hickman again, it is time that we began to focus more intensely on the ‘how’ question.

The panel was alert to this, and recommended that the government implement ‘a properly resourced public education and awareness program’ in the lead up to the referendum. This is a sensible suggestion, but my feeling is that we need to start getting more specific about how this can be achieved. An obvious starting point for Australia is to focus on producing better quality information materials and to distribute them through all available media, including social networking sites. To avoid the perception that government is tweaking the message, an independent body could be appointed to oversee all education and engagement activities. This body could also serve as a watchdog on public debate, requiring that basic standards of accuracy be met by campaign organisations receiving public funds.

What else? A modern constitutional reform process should also involve a variety of fun and engaging community activities. Gone are the days when we were limited to dull town hall meetings. Iceland showed this definitively last year when it ‘crowdsourced’ the drafting of its new constitution, inviting citizens to join experts in an online dialogue about proposed reforms. Alongside online innovations, deliberative forums such as citizens’ assemblies and citizen juries have an important role to play. Their model of face-to-face discussion gives participants a rich learning experience and a sense that they have made a real contribution to national debate, while also helping to raise awareness across the community.

More mundanely, government should look to community groups and NGOs to help carry the load. It could establish a grants program to support the grassroots initiatives of worthy organisations interested in advancing public education and engagement. In the current reform process this would ideally include the many cash-strapped organisations that serve remote Indigenous communities. Additional resources could also be made available to the National Congress of Australia’s First Peoples and Reconciliation Australia, which are certain to play a pivotal educative role as the process unfolds.

These suggestions do not amount to a comprehensive program for strengthening constitutional reform process in Australia. But they would be steps in the right direction. The panel’s report makes clear that this constitutional moment is of great national significance, and it deserves an approach to process to match. It should be participatory, educative and inclusive – and well-resourced. The payoff will come in the form of a popular process capable of building genuine consensus around the constitutional recognition of Indigenous Australians.

Dr Paul Kildea is a Lecturer in the Faculty of Law at the University of New South Wales, and Referendums Project Director at the Gilbert + Tobin Centre of Public Law

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Ruiyi Li: Case-law adopted by China?

On the 26th of November 2011, the Supreme People’s Court of China (SPCC) announced the first set of ‘guiding cases’: two civil law cases and two criminal cases.  This marks the establishment of the guiding cases system in China.  What is a guiding case?  A guiding case is a judgement selected by the SPCC from judgments already handed down by courts – both lower level courts and the SPCC itself.  Once the judgment has been selected by the SPCC as guiding case, the lower courts in the Chinese legal system are then required to take account of it.   This introduces something comparable to, but distinct from, the Common Law doctrine of precedent into the Chinese system, and may lead to a profound shift from previous practice.  Generally speaking, China has adopted the model of a civil law legal system, without a doctrine of precedent.  This is because, in part, the primacy of the National People’s Congress, the principle legislative body in China, is taken to exclude a doctrine of precedent.  Only the National People’s Congress can create law.  If the Courts can make law in their judgments through the interpretation of legislation, such interpretation would encroach upon the sovereignty of the NPC.  As this note will explain, the solution of the ‘guiding case’ attempts to preserve this feature of the Chinese Constitution, whilst giving some power to shape the law to the judicial branch.

Art. 2 of the Work Rules in Regard to Guiding Cases (Work Rules) provides a definition of the type of case that may be chosen by the SPCC as part of the guiding case system.  The judgment of the guiding case must be already in force, that is, it must have already been decided by a court, and the case must possesses at least one of the following features: (1) the case has received broad social attention, (2) the legislation applied in the case itself has been drafted in very broad terms, (3) the type of dispute is a paradigm, (4) the case raises difficult, complicated, or new issues, (5) or, finally, a case that does not fall within any of the former four but nevertheless merits a guiding function.

  1. Four guiding cases

 Four judgments were chosen by the SPCC in the first round of the guiding case system.

Centaline Property Agency Ltd. China. Shanghai v. Tao Dehua concerned a disputed brokerage contract arising in the dealing of second-hand properties.  This judgment held that a property sale contract is invalid if the purchaser who has committed to a brokerage contract tries to exclude the agent who organised the deal and buy direct from the seller.  The Court allowed an exception to this rule where the same housing stock information had been released by more than one agency – in this instance, the purchaser is entitled to deal with the one who offers the lowest price and best service.  The Court aimed to protect the lawful rights and interests of the brokering agency, promote the healthy development of brokering service market, maintain the dealing in good faith, encourage fair competition among brokering agencies, enhance the quality of service, and protect consumers’ lawful rights and interests.

The second case is Wu Mei v. Meishan Xicheng Paper Co., Ltd. of Sichuan Province.  It deals with legal effect of settlement agreements signed by the parties outside of the court over a disputed contract of sale.  The Court held that if the litigants have reached a settlement agreement before the judgment is delivered in the trial of second instance, the settlement agreement is binding.  If one party does not perform the settlement agreement or performs it partly, the other side can appeal to the court to enforce the judgment given in the trial of first instance.  In this way, the freedom of disposing the object in issue enjoyed by litigants has been respected, whilst those rules of abiding by the agreement reached have been emphasized and the authority of the first court’s judgment has been preserved.

No. 3 guiding case PAN Yumei and CHEN Ning, A Bribe-Accepting Case concerns corruption, expanding the offence to include some new situations: the position of civil servants who receive bribes indirectly by being registered as a co-founder of a company without contributing anything to its establishment, or who receives bribes directly but either does not act on those bribes or subsequently returns the money.  Such indirect means, or delayed honesty, does not affect the verdict of corruption.

The last decision of WANG Zhicai, An Intentional Homicide Case concerns death sentence reprieves.  In this case the defendant had murdered the victim after she refused his offer of marriage.  The defendant was initially sentenced to death by the Higher People’s Court.  But all death sentences cases must be reviewed by SPCC before execution.  After the SPCC reviewed his case, the murderer was awarded a reprieve.  Because the killing was undertaken in a moment of passion, the death penalty was not appropriate. Considering the emotion of victim’s family, SPCC also decided that para. 15 of the 8th amendment of Criminal Law is applicable in the case which requires a minimum tariff of twenty years for murder.  The SPCC explained why this case was significant.  On three occasions the SPCC cited the importance of the role of the criminal law in achieving social harmony.  The emotions of the victim’s family and other ordinary people should be considered by the court.  Whilst the death sentence should be commuted, the murderer would still be subject to severe punishment.

2. Three steps to establishing the guiding case system.

The SPCC has been preparing for the introduction of a guiding cases system for a very long time. The guiding cases system was first announced in the 2nd Five-Years Reform Outline for People’s Court (2004-2008) (2nd Reform Outline) on the 26th of October 2005.  The aim of this reform was to ensure the unified application of legislation, using a system of guiding cases to produce coherence between courts.  Proposal Number 13 of the 2nd Reform Outline says:

 “Establishing and improving the guiding cases system:  Recognising the role that guiding cases can play in unifying the application of legislation – by directing the lower courts’ operation, enriching and developing their jurisprudence and so on – the SPCC shall lay down the decisions in regard to guiding cases system, and shall determine the standard for, and the process of, cases selection, the way to release guiding cases and guiding rules and so on.”

The Work Rules was issued by the SPCC on the 26th of November 2010.  It may be seen as the second step to the establishment of the guiding cases system.  The Work Rules specify the mechanism through which the guiding cases are selected.  The SPCC is the only body with authority to determine which cases should be guiding cases and to promulgate them (Art. 1 of the Work Rules).  Based on Art. 3 of the Work Rules, a Guiding Cases Affairs Office (GCAO) has been set up, which is an office of the SPCC.  The GOAO is in charge of selecting and investigating guiding cases.  All the divisions of SPCC can recommend cases to GCAO directly, but other bodies can also suggest cases to the GCAO.  The Higher People’s Courts (HPC) and the Liberation Army Military Court (LAMC) can recommend cases to GCAO after HPC or LAMC’s judicial committee discusses their significance.  The Intermediate People’s Court (IPC) and Basic-level People’s Court (BPC) only can recommend cases to GCAO indirectly via referral through their superior courts.   Individuals may recommend any case which they think should be guiding case to the Court which delivered that case.  After selection by GCAO, the GCAO then reports its opinions on the merits of the case to the Judicial Committee of SPCC which will finally decide which one should be guiding case.

The third step toward the new system was taken by the SPCC by issuing an order to lower courts on 20th of December 2011.  This order made two points.  The first part seeks to ensure that all the courts accurately understand the guiding spirits, the ratio, of the four cases.  This part sets out the four cases and specifies the guidance provided by each case.  The second part requires that the lower courts should bring the guiding cases into play, setting out the duties of the lower courts in the guiding case system.  In particular, the Supreme Court limits the capacity of the Higher People’s Court to promulgate guiding cases.  By referring to the guiding cases system, the HPC may release some cases to guide its lower courts, but may not use ‘guiding cases’ or similar phrases to avoid confusing the cases announced by HPC with cases announced by SPCC.  This measure introduces a limited form of something like a hierarchy of judicial precedent into the system.  Both the SPCC and HPC have some power to pick cases that influence lower courts, but the decisions of the SPCC are given higher legal status than those of the HPC.  Following this order, the guiding cases system has been established in China

3. The nature of guiding case

The guiding cases system established in China is different from the Common Law understanding of precedent.  Guiding case and precedent are different, not only in their expression but also in their nature.  Art. 7 of the Work Rules provides that all courts should refer to guiding cases when they adjudicate similar cases – but  this is the only provision that concerns the effect of guiding cases.  Guiding cases must be referred to by the lower court, but they are not, in themselves, authoritative.  In other words, the ratio decidendi of guiding cases cannot be the legal ground of the lower court’s judgment, but it can be cited as a reason for explaining the judgment.  The possible legal bases of judgment are not expanded: the text of the Codes is still the only binding legal authority.  The judgment of guiding case is more like an interpretation of specific provisions, through which the higher courts clarify vague provisions and fill in legal loopholes.

The differences between the guiding case system and precedent are rooted in the constitutional settlement contained in the Constitution of China.  The National People’s Congress (NPC) enjoys complete sovereignty.  Courts in China have no power to review primary legislation or secondary legislation, let alone the power to change or modify legislation.  Thus, under the Constitution of China it is impossible for the judges to make law, whilst law-making is the essence of the Common Law tradition.  Guiding cases system is a judicial reform, but any reform must still be accord with this constitutional settlement.  For this reason, the SPCC created a guiding case system instead of precedent which, crucially, does not formally empower the SPCC to change or develop the law.  This constitutional concern might be another reason why the SPCC avoided using the sensitive word precedent in setting out the new system.

4. Challenges of the new system

The new system attempts to secure the advantages of both the Common Law and civilian systems.  The guiding cases system may bring some benefits to China’s legal system, perhaps by enhancing the faith of the masses in the judiciary, but it is a radical departure for the judiciary in China.  The first challenge is how the lower courts will use the guiding cases.  Some commentators are worried that the judges may try the cases mechanically.  There is no detailed guideline of how to determine which guiding cases to follow and precisely what significance these cases should be given, a lack of guidance which increases the practical difficulties for a judiciary that has been trained in the context of civil law.  Normally judgments handed down by Chinese courts are very brief, and this is also true of the judgments of the four guiding cases.  Thus, there is actually not much content in the judgments for the lower courts to referred to.

The selection of the guiding cases has also been criticized.  Some cases that are more typical and more significant than the four handed down have not been selected to be guiding cases.  The HPCs recommend 20 cases in total to the SPCC, but only four were selected.  This demonstrates that the SPCC is being very cautious in the beginning.  Furthermore, the guiding cases system will not extend to interpretations of the Chinese Constitution.  The Constitution of China only can be interpreted by the Standing Committee of NPC, the legislature, and cannot be adjudicated on by the judges.  Therefore, there are no judicial decisions on constitutional law in China.

Finally, there is a tension inherent in the new system.  As analyzed previously, law-making by judges is constitutionally impossible.  It might be argued that the judges are only interpreting the legislation in the judgments – but it is impossible to avoid creation when judges interpret legislation.  The creative aspect of interpretation may be translated into a familiar word: law-making.  Under the surface of the guiding case system is a potential challenge to the constitutional settlement.  To avoid this happening, judges may write judgments more rigidly than before, for example adopting the approach of rigid Originalism to interpret the legislation.  But if the interpretation very mechanical how will the guiding cases succeed in play a guiding role?

Ruiyi Li is a post-doctoral researcher at the Law School of Tsinghua University, China.

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Aileen McHarg: Public Law, Private Law and the Distinctiveness of Scots Judicial Review

Scottish judges and textbook writers are fond of asserting the distinctive nature of judicial review in Scotland compared with England.  According to Clyde and Edward, for example, (Judicial Review, 2000, ch 2), the basis for judicial review in Scotland is a more generalised one than in England, historically grounded in equity, and not so dependent on specialised procedures or specific remedies.  This view was endorsed by the Inner House of the Court of Session in West v Secretary of State for Scotland 1992 SC 385, which held that, although the grounds of review are essentially the same in the two jurisdictions, the scope of review is not.  The correctness of West has subsequently been repeatedly affirmed both by the Scottish courts and by the House of Lords/Supreme Court, and the claimed historical and conceptual distinctiveness of Scots law is sometimes invoked as a reason for not following English authority.  For instance in Eba v Advocate General for Scotland [2010] CSIH 78 one of the reasons given by the Inner House for refusing to follow the Court of Appeal’s ruling on the reviewability of the Upper Tribunal in R (Cart) v Upper Tribunal [2010] EWCA Civ 859 was the fact that judicial review in Scotland is available as of right and not dependent upon the discretion of the court.  For the same reason, inter alia, the Supreme Court considered it necessary to give separate judgments in Eba [2011] UKSC 29 and Cart [2011] UKSC 28, notwithstanding that it thought that the extent of review of the Upper Tribunal should be the same in both countries.

In fact, though, the practical differences between Scots and English judicial review are fast disappearing.  Indeed, the Supreme Court itself has done a good job in recent months of ridding Scots judicial review of some of its more problematic idiosyncrasies.  In Eba, reiterating that the grounds of review are the same in Scotland as in England, Lord Hope held that Lord Emslie’s dictum in Watt v Lord Advocate 1979 SC 102, to the effect that the Court of Session could only correct ultra vires and not intra vires errors of law, should no longer be followed, since it was irreconcilable with the decision in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147.  Then in Axa General Insurance Ltd v Lord Advocate [2011] UKSC 46, the Supreme Court abandoned title and interest, as laid down by the House of Lords in D&J Nicol v Dundee Harbour Trustees 1915 SC (HL) 7, as the test for access to judicial review.  According to Lord Hope and Lord Reed, the Nicol test had been adopted before the modern development of public law and was therefore based in irrelevant and inappropriate private law concepts which had had a damaging effect on the development of judicial review in Scotland.  Since, in public law cases, the role of the courts was to vindicate the rule of law rather than private rights, they held that the test should be based on interests alone (the precise nature of the interest required depending on the context) and should in future be referred to as ‘standing’.  This clearly resembles the English approach, although it remains to be seen how far the Scottish courts will follow England in liberalising access to judicial review.

The abandonment of title and interest in favour of the English test of ‘sufficient interest’ had in fact already been recommended by the Gill Review (Report of the Scottish Civil Courts Review, Vol II, 2009, ch 12 – http://www.scotcourts.gov.uk/civilcourtsreview/theReport/Vol2Chap10_15.pdf), and Gill also recommended following the English approach by introducing a three month time limit within which to bring an application for judicial review, and a requirement to obtain leave to proceed.  Both recommendations have been accepted in principle by the Scottish Government, subject to consultation on the length of the time limit (Scottish Government Response to the Report and Recommendations of the Scottish Civil Courts Review, 2010 – http://www.scotland.gov.uk/Resource/Doc/330272/0107186.pdf), although they have not yet been implemented.  These proposed reforms are less welcome than the reforms of standing and review for error of law, not only because there is no strong evidence that they are necessary, but also because they are likely to bring in their wake another problematic aspect of English judicial review procedure, namely increased litigation over the exclusivity of the judicial review procedure – a  problem which already exists in Scots law, but which has not so far been of major practical concern since there is little incentive to bring an ordinary action instead of judicial review.  However, these changes, if implemented, will not only be of practical significance.  The introduction of a leave requirement, for instance, will remove the claimed conceptual difference between Scots and English law relied upon in Eba.

What, then, is left of the alleged distinctiveness of Scots judicial review?  Apart from the available remedies – there is no Scottish equivalent of the prerogative orders, so ordinary civil remedies are used instead – the major outstanding difference relates to the scope of review and the related question of the classification of the remedy.  In West, Lord Hope, as Lord President of the Court of Session, stated that in Scotland, unlike in England: ‘The competency of the application [for judicial review] does not depend upon any distinction between public law and private law, nor is it correct in regard to issues about competency to describe judicial review as a public law remedy.’  Instead, judicial review was competent to correct errors or abuses by ‘any person or body to whom a jurisdiction, power or authority has been delegated or entrusted by statute, agreement or any other instrument.’  The appropriate test for identifying a reviewable decision was therefore the existence of a ‘tripartite relationship’ between the decision-maker, the person affected by the decision, and a third party from whom decision-making power has been delegated or entrusted.

This test has the major advantage over the English approach of not excluding from review powers derived solely from contract, and review of so-called ‘domestic tribunals’ is therefore more readily available in Scotland, even extending, in several cases, to the decisions of golf club committees.  More generally, though, the West test is highly problematic as a conceptual explanation of the scope of review and has proved no easier to apply in practice than the English public/private distinction (for fuller discussion see A McHarg, ‘Border Disputes: the Scope and Purposes of Judicial Review’ in A McHarg and T Mullen (eds), Public Law in Scotland, 2006).  Nevertheless, as already noted, Scottish judges continue to cite West with approval.  However, it too has been placed under considerable conceptual strain by the recent trend towards assimilation with English law.

The strain first began to show in Davidson v the Scottish Ministers (No 1) [2005] UKHL 76, which concerned whether the prohibition on granting coercive remedies in civil proceedings against the Crown in s.21 of the Crown Proceedings Act 1947 extended to judicial review.  In order to bring Scots law into line with the decision in M v Home Office [1994] 1 AC 377 that the prohibition did not extend to judicial review in England, but at the same time unwilling to draw a direct analogy between Scots and English judicial review, the two Scottish Law Lords, Lord Hope and Lord Rodger, introduced a distinction between ‘public law’ and ‘private law’ judicial review proceedings.  Arguing that the main purpose of the Crown Proceedings Act was to reform English law as it applied to private law proceedings against the Crown, they held that the phrase ‘civil proceedings’ in s.21 therefore only applied to private law proceedings.  Because judicial review in Scotland was not solely a public law remedy, it was not possible to exclude it entirely from the meaning of ‘civil proceedings’.  However, cases in which judicial review was being invoked against the Crown were public law proceedings, and so were not covered by the s.21 prohibition.

Although intended as a reaffirmation of West, the decision in Davidson in fact significantly revised it: contrary to West, judicial review in Scotland does involve a distinction between public law and private law, although this is a distinction that must be drawn within the judicial review caseload, rather than a means of delineating the boundaries of review.  The distinction is, however, a problematic one.  In the first place, it was not clear from the decision in Davidson how and where the boundary between public law and private law judicial review was to be drawn – there are suggestions in some places of an institutional approach to the distinction, but elsewhere of a functional approach.  Secondly, it was also unclear what, if anything, was the practical significance of the difference (although there is some authority to the effect that the grounds of review might be different for at least some categories of private decision-maker, such as arbiters – Diamond v PJW Enterprises Ltd 2004 SC 430).

Until recently, therefore, it might have been tempting to dismiss the deployment of the public law/private law distinction in Davidson as merely an expedient for getting round a problematic point of statutory interpretation, of no real practical importance.  However, the Supreme Court’s decision in Axa has both reinforced and given some substance to the distinction.  This is because both Lord Hope and Lord Reed expressly limited their rejection of title and interest to public law proceedings.  Lord Reed did not discuss what the test should be in private law cases, but Lord Hope stated that title and interest remains appropriate because: ‘The fact that a person upon whom a decision-making function has been conferred by a private contract is amenable to the supervisory jurisdiction is not something that is likely to affect anyone other than the parties to the contract.’

Nevertheless, while it may now have some substance, the distinction is no less problematic than it was before Axa.  There is no discussion whatever in Axa of how the line is to be drawn between public law and private law judicial review proceedings, and Lord Hope’s reason for differentiating them in relation to standing is, in my view, unconvincing.  While it may be true in some cases that contractually-based decisions are of no interest to third parties, just as some decisions taken under statutory authorities have no wider implications, it is not necessarily true in all cases, and certainly not in the more important instances of judicial review in the private sphere, such as in relation to self-regulatory bodies or contracted-out service providers.  It is not difficult to conceive of circumstances in which people not in a contractual relationship with such bodies – say the intended beneficiaries of self-regulation or the recipients of contracted-out services – might wish to challenge their decisions.  And while there may be legitimate concerns about over-exposing private decision-makers to potential challenges, these could readily be met by a contextually-sensitive application of an interest-based standing test, rather than by continuing to require proof of title to sue.

In fact, in my view, the attempt to distinguish between public law and private law judicial review proceedings in general is misguided.  Rather than resolving some of the problems created by West, it simply compounds the wrong-turning taken by Scots law in that case when the Inner House refused to follow English law in accepting, as I have argued elsewhere (see McHarg, 2006, above), that judicial review is always a public law remedy.  The essential problem is that, in West and subsequent cases, the Scottish courts have attempted to maintain two mutually inconsistent positions: first, that the Scots law of judicial review is fundamentally different from English law; but, second, that Scotland should follow England’s lead in relation to the substantive grounds of review, and now also in relation to procedural matters.  Instead of advancing a conceptually distinct account of the nature of judicial review in Scotland, the result, in my opinion, has simply been muddle and confusion.  By contrast, adopting the English version of the public/private distinction would undoubtedly bring with it practical difficulties, but it would provide greater conceptual coherence, by acknowledging the conceptual linkages between questions of scope, grounds and procedure.  Assimilation with English law would not, however, necessarily imply that the Scottish courts should follow every aspect of English jurisprudence on the scope of review – arguably, for instance, the English courts are wrong to exclude review of contractually-based decisions.  On the contrary, one of the benefits of abandoning the claim to a fundamental distinction between Scots and English law is that it would provide Scottish judges with a stronger conceptual foundation upon which to make a more active contribution to the development of judicial review – leading as well as following – than they have done in recent years.

In short, the time has come to consign West to the legal history books, along with Watt and Nicol.

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

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Paul Yowell: EU Act 2011: Law and Politics

The European Union Act 2011, which received royal assent in July of last year, could have important implications for several aspects of the UK constitution, including the UK’s relationship with the EU, the understanding of parliamentary sovereignty, the question of ‘manner and form’ restraints on Parliament, and the role of public referenda in the UK. The Act and some of these questions were discussed on this site recently by Mike Gordon. My post will not address parliamentary sovereignty but will focus on precisely what triggers the Act’s requirement that certain changes to EU treaties must be approved by referendum in order to be ratified, and speculate on whether the Act played a role in David Cameron’s decision to veto proposed treaty changes at the EU summit in December.

The main purpose of the EU Act 2011 is to place a ‘referendum lock’ on any further transfers of power from the UK to the European Union. This is how the Conservative Party manifesto in the last election described the proposal that led to the Act. The Liberal Democrats acquiesced to this pledge in the coalition agreement, which promised ‘no further transfer of sovereignty or powers over the course of the next Parliament’, and to ‘amend the 1972 European Communities Act so that any proposed future treaty that transferred areas of power, or competences, would be subject to a referendum on that treaty’. The EU Act 2011, however, is worded not in terms of transfers of power but in terms of extension of the competence or objectives of the European Union and decrease in the voting power of the UK in certain situations, with an exception for treaty changes that do not apply to the UK. Section 2 of the Act provides generally that treaties amending or replacing existing EU treaties may not be ratified unless the public approves proposed changes in a referendum, and section 3 applies the same rule to ministerial approval under the simplified treaty revision procedure under TEU art. 48(6).  Section 4 describes several situations which trigger the referendum requirements of sections 2 and 3, including:

(a) the extension of the objectives of the EU as set out in Article 3 of TEU;

(b) the conferring on the EU of a new exclusive competence;

(c) the extension of an exclusive competence of the EU;

(d) the conferring on the EU of a new competence shared with the member States;

(e) the extension of any competence of the EU that is shared with the member States;

(f)  the extension of the competence of the EU in relation to—(i) the co-ordination of economic and employment policies, or (ii) common foreign and security policy;

(g) the conferring on the EU of a new competence to carry out actions to support, co-ordinate or supplement the actions of member States;

(h) the extension of a supporting, co-ordinating or supplementing competence of the EU;

(i)  the conferring on an EU institution or body of power to impose a requirement or obligation on the United Kingdom, or the removal of any limitation on any such power of an EU institution or body;

(j)  the conferring on an EU institution or body of new or extended power to impose sanctions on the United Kingdom;

(k) any amendment of a provision listed in Schedule 1 that removes a requirement that anything should be done unanimously, by consensus or by common accord …

Describing the Act as applying to transfer of power suggests a simultaneous increase of EU power and removal of UK power; but according to the terms of the Act itself, almost any extension of EU competence, including in areas of competence shared with the member states, is caught by section 4. The areas of shared competence include the internal market, economic and social cohesion, consumer protection, the environment, and other areas listed in TFEU art. 4.

Section 4(4) of the EU Act 2011 provides further that a treaty change ‘does not fall within this section merely because it involves one or more of the following—(a) the codification of practice under TEU or TFEU in relation to the previous exercise of an existing competence; (b) the making of any provision that applies only to member States other than the United Kingdom; (c) in the case of a treaty, the accession of a new member State’ (italics added). If any of the three conditions obtain, the treaty change is not sufficient to trigger the referendum requirement; however, a referendum would not necessarily be excluded in such a situation. Thus the government is not obliged to hold a referendum if it agrees to a change to the EU treaties that does not apply to the UK.

At the summit to deal with the crisis in the eurozone that was held December 7th-9th, EU leaders agreed to proposals to amend the treaties to adopt new rules and procedures promoting fiscal stability and discipline. These included more stringent limitations on sovereign debt and enhanced oversight and enforcement mechanisms, which give greater control over national budgets to Brussels; the fiscal discipline rules are obligatory for eurozone members and optional for other member states. But fiscal discipline is not all that was on the table. At the start of the summit on 7 December, Angela Merkel and Nicholas Sarkozy sent a joint letter to Herman von Rompuy, President of the European Council, outlining a plan that included new financial regulation and taxes. Calling for a ‘new common legal framework’ they stated:

‘We need to foster growth through greater competitiveness as well as greater convergence of economic policies at least amongst Euro Area Member States. To these aims, building on Article 136 and/or on enhanced cooperation, a new common legal framework, fully consistent with the internal market, should be established to allow for faster progress in specific areas such as:

• Financial regulation;

• Labor markets;

• Convergence and harmonization of corporate tax base and creation of a financial transaction tax …’

The agreement that EU leaders signed on 9 December did not explicitly mention regulation or taxes but referred to ‘enhanced governance’ to foster a ‘deeper integration in the internal market’:

‘The stability and integrity of the Economic and Monetary Union and of the European Union as a whole require the swift and vigorous implementation of the measures already agreed as well as further qualitative moves towards a genuine ‘fiscal stability union’ in the euro area. Alongside the single currency, a strong economic pillar is indispensable. It will rest on an enhanced governance to foster fiscal discipline and deeper integration in the internal market as well as stronger growth, enhanced competitiveness and social cohesion.’

It was reported that David Cameron’s chief demand at the summit negotiations was to protect Britain from new financial regulations and restore certain points of regulation to a unanimous voting rule. Under current rules, the financial transaction tax championed by Merkel and Sarkozy is subject to a unanimity rule, giving the UK a veto. Regulation, however, comes under the rule of qualified majority voting.

When his demand was not met, Cameron refused to agree to the treaties, exercising an effective veto, meaning that the proposed changes on fiscal discipline would have to proceed, at least for now, as an inter-governmental agreement rather than as part of the EU treaties. Eurosceptics hailed the veto as bold and prudent and rewarded Cameron with a bump in the polls. (The British public is in a sceptical mood; a recent YouGov survey found that 43% would vote to leave the EU and 36% would vote to stay.) Critics claimed that British diplomatic efforts at the summit lacked preparation and skill, and that Cameron’s veto will prove counter-productive. Under current voting rules Britain has had strong clout and has generally been able to prevent new regulations it opposed. Cameron’s move may usher in a new era in which Britain finds itself in a weakened bargaining position or frozen out of key discussions, as the result of anger at the veto of the treaty in a time of crisis. Sarkozy claimed that Cameron was trying to ‘create an offshore zone in the heart of Europe’. The Economist is broadly sympathetic with Cameron’s aim; a leader titled ‘Save the City’ and accompanying article argue that the greatest threat the City faces is from new regulation (both from Brussels and homegrown). But the magazine concludes that because of the self-defeating nature of the British veto, Cameron’s aim was not so much to protect the City as ‘to avoid having to sell a more integrated Europe to Tory Eurosceptics’.

I would like to venture a somewhat different explanation of Cameron’s veto that figures in the dynamics of the EU Act 2011. Let us suppose that The Economist’s diagnosis is correct: the best way to safeguard British interests with regard to regulation would have been to maintain its clout at the negotiating table; hence it would have been in Britain’s national interest to sign the treaty agreement at the summit’s end, and to reserve that possibility as part of a sound negotiating strategy. The treaty change may well have been a hard sell to Tory Eursceptics; 81 of them rebelled in a backbench motion in December calling for a referendum on Britain’s position in the EU.  But because of the EU Act 2011, Cameron may have been faced not only with persuading his backbench but with the prospect of a mandatory referendum. While the treaty changes regarding fiscal discipline did not apply to Britain, signing the summit agreement would have set in motion a process that could result in extension of EU regulatory power as called for by Merkel and Sarkozy. The documents reflecting Britain’s position at the summit are not public, so we do not know precisely what aspects of financial regulation Cameron was seeking to safeguard with his demand for unanimous voting, or exactly how he proposed to do so. But it seems possible that his demands would have been formulated with a view to avoid triggering the referendum requirement in the EU Act 2011. Such a referendum might well have ended in an embarrassing defeat for Cameron, given the public’s eurosceptic mood. Perhaps Cameron vetoed the treaty in part to avoid the possibility of a referendum under the Act.

Foreign Secretary William Hague is well-acquainted with the details of the Act. He proposed the idea behind it at the Conservative Party conference in 2010, and, when addressing the Commons at the time of the Eurosceptic rebellion, relied on the Act as the centerpiece in his argument against having a referendum on leaving the EU altogether. We can assume that Cameron’s team at the EU summit was monitoring negotiations and proposals for their potential to trigger the referendum requirement of the Act.

Whatever the accuracy of the above speculations about British national interests and Cameron’s motive for the veto, they serve to highlight a potential negative consequence of the EU Act 2011 raised during scrutiny by the House of Lords. Several Lords pointed out that the bill would tie British hands in treaty negotiations. The Act is very broadly phrased to catch virtually any extension of EU competence or objectives unless it applies only to states other than the UK. But the EU treaties already define EU competence and objectives in broad terms, and rely mainly on the principle of subsidiarity in TEU art. 5 to protect member state sovereignty. Given the complex institutional structure of the EU, and the detailed scheme of exclusive and shared competences, it might be in the British interest at a summit to agree to a treaty that nominally extends EU competence in a certain area but also includes restraints or institutional mechanisms that safeguard British concerns. The EU Act 2011, for better or worse, limits the power of leaders and diplomats in such a situation to make decisions and the promises that may be needed to secure concessions, and delegates authority to the people acting through a referendum.

    Paul Yowell is a Lecturer in Law at New College, Oxford. 

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Sophie Duxson and Greg Weeks: A Constitutional crisis or just the work of a sovereign Parliament?: The case of Hungary

On 1 January 2012, a new Constitution (or Fundamental Law) took effect in the Central European state of Hungary.  From even before that date, there has been considerable international comment to the effect that the governing Fidesz party, led by Prime Minister Viktor Orbán, has misused its parliamentary majority to pass laws which have laid the path for authoritarianism. In response, the Hungarian government has claimed that it has done no more than to update an outdated document.

The new Constitution is the first that Hungary has had since the Communist-era Constitution of 1949, an amended version of which was in effect until 31 December 2011. Hungary is the only ex-Soviet country that did not enact a new written Constitution with the fall of Communism in 1989-90. Such an enactment has been a policy platform for various political parties in Hungary since then, and Fidesz made it a major part of its election promise in its 2010 campaign. Tibor Navracsics, the Deputy Prime Minister of Hungary, has argued that the new Constitution “introduces some much-needed simplification. For instance, the number of ombudsmen will be reduced to one from four.”  More than this, he argues that it “draws a line under the last 20 years and locks in the values of the political transition of 1989-90.”  In any event, the changes have all been effected within the law due to Fidesz’s two-thirds ‘supermajority’ in Parliament.  These two opposed positions form the basis for a fascinating case study in the question of where law obtains its legitimacy.

The United States has expressed concern about the nature of Hungary’s Constitutional reforms but admits that the Fidesz party’s “Prime Minister Orbán and his government were elected through a free and fair election with an overwhelming majority”.  The usual rhetoric of Western governments in such circumstances is that they have obtained a ‘mandate’ to govern, which is to say the right to have their chosen legislation enacted by Parliament.  Furthermore, the Hungarian Ambassador to the USA has expressly denied claims that these changes were sprung on an unsuspecting public, noting that there had been “long-standing consensus among the major political parties in Hungary that the current Constitution was in need of an overhaul.”  This point is illustrated by the fact that “the last Hungarian government to have a two-thirds majority, the Socialist-Liberal coalition of the mid-nineties, actually wanted to change the Constitution, but the two coalition partners were unable to agree between themselves how to go about the changes”.

The nature of the ‘concern’ that is being expressed by the USA, the European Parliament and the Venice Commission for Democracy through Law of the Council of Europe, amongst others, is therefore that there are some constitutional values whose effect is greater than that of validly enacted legislation. The answer, of course, is that the “culture, social structure and political organisation” of countries vary and, therefore, so too will their respective constitutional systems.  Dr Navracsics has recently emphasised the point that “there is no one standard democratic model” but has said that regardless of this, the new Constitution “enshrines a classic separation of powers between Hungary’s legislature, executive and judiciary … [and] … upholds parliamentary democracy and the rule of law”.

The opponents of the Fidesz government would doubtless deny the last of Dr Navracsics’ claims.  The rule of law is notoriously difficult to define and, like beauty, usually resides in the eye of the beholder.  The debate, for practical purposes, boils down to the question of whether there are things that a legislature can do which lose their legal validity on the basis of being outside of non-legislative norms.  Jeffrey Goldsworthy has declared the demise of common law constitutionalism in his book Parliamentary Sovereignty (2010, CUP) and it is true that this movement has many fewer vocal adherents than it once did.  He has conceded, however, that there are now many more people who look to (constitutionally entrenched) fundamental rights as being preferable to the superiority of Parliament.  In the absence of entrenched rights, what kinds of things might a legislature do – validly in a positivist sense – which could be said to violate non-legislative (Constitutional) norms?

The opponents of the new Hungarian Constitution have pointed in particular to two major issues: judicial independence and fair electoral laws.

It would not be an overstatement to say that Hungary’s new Constitution seriously compromises the independence of the judiciary. The Constitutional Court, so carefully set up in the wake of the collapse of Communism, has gained international recognition for the impressive body of case law it has generated in the past 22 years. However the Court, which gave the judiciary the role of reviewing almost all proposed legislation on the basis of its constitutionality, has been rendered “functionally dead.” The jurisdiction of what the Court can review has been limited to non-economic legislation, unless it has a severe impact on fundamental rights; new positions have been created on the bench, promptly filled by Fidesz’s political allies; and the court can no longer rule on the constitutionality of legislation in the abstract.

The rest of the judiciary is also in disarray; the new Constitution’s lowering of the retirement age will force around 300 judges to retire in the coming year.  The new President of the also-newly-created National Justice Office, Tunde Hando, is a family friend of Prime Minister Orbán and the wife of an influential Fidesz politician. Ms Hando has the power to appoint new judges, (which she will be doing a lot of, there being such a sudden dearth of them), move judges to different courts, and soon will be able to decide, with the public prosecutor, which judge will decide which case.

A spokesman for Prime Minister Orbán has argued that the independence of the judiciary is not at risk because Ms Hando cannot dictate the outcome of a case. This argument is simplistic: a fundamental ingredient of the independence of the judiciary is its immunity from being selected, moved around and placed on certain cases. The judiciary must be completely separate from the Executive. The appointment of a close personal friend of the Executive to the role of President of the judiciary sails dangerously close to the wind. Key members of the Association of Hungarian Judges recently issued a letter condemning “political attacks” by the Socialist Party leader and insisting that their independence remained intact. But this letter was crucially sent after the passage of the law placing Tunde Hando in her current hiring-and-firing position.

The issue of electoral laws is another area to which critics have directed their attentions. Constitutional amendments leading up to this new Constitution have radically redrawn electorates to Fidesz’ advantage. A Hungarian think-tank has established that, based on these new electoral boundaries, Fidesz is the only party that could have won the last three elections. These same amendments have also changed elections are administered: a new election now means a new electoral commission. In the lead-up to the most recent election (of 2010), Fidesz was able to throw out the existing members and replace them with five members of its own party.

These are just a sample of the kinds of radical changes to the legal and political landscape that this new Constitution has, and will bring about in Hungary. The new document, along with the ten constitutional amendments that have been implemented in the last twelve months, impose “more overtly political management” of almost every independent public institution. The four offices of the ombudsmen, which dealt with completely separate issues and had far-reaching jurisdictions, have been downgraded to one weaker role. New media laws enacted in the lead-up to the new Constitution have seen the creation of a media board staffed by Fidesz officials whose job is to review media and impose fines for violation of regulations relating to political “balance.” The terms of public officials put in place by the party, like the head of the national budget council and the state audit office, have been increased to terms of six to twelve years. They can only be replaced by a two-thirds vote in Parliament.

The question remains then: do these measures violate constitutional norms, although they are validly and democratically implemented? Hungary has a unique political history in many ways that renders its political reality different to the majority of Western democracies and even other ex-Soviet states. The country has seen its fair share of near-totalitarian governance; some believe that Orbán is trying to revive the autocratic, near-fascist government of 1920s Miklós Horthy.

But while the rule of law is a subjective concept dependant on the relevant political model, we would argue that there are some key ingredients that, if compromised, undermine the rule of law to the point of non-existence. The independence of the judiciary is one. The ability for the judiciary to police the Executive adequately and the legislature to protect the rights of individuals and to curb arbitrary use of power is a fundamental tenet of the rule of law. In the Hungarian case, this independence has unquestionably been compromised by the severe restriction of the ambit of judicial review and the infiltration of party politics into positions of power over the judiciary.

Fair electoral laws are another basic constitutional norm necessary for a democracy that adheres to the rule of law. Manipulating electorates to ensure a continued supermajority in Parliament is a step too far.

We will end with just one example of how the new Constitution so flagrantly violates constitutional norms as to risk the integrity of democracy itself in Hungary.  The Venice Commission has expressed grave concern about the following phrase in the Constitution’s Preamble: “We do not recognise the communist constitution of 1949, since it was the basis for tyrannical rule; therefore we proclaim it to be invalid.” Instead of declaring the previous Constitution to have been repealed, this specific wording suggests the acceptance of ex tunc nullity; which could “lead to the result that all acts of state enacted under the former Constitution would lose their legal basis and will thus be invalid themselves.” In its report, the Venice Commission points out that such an interpretation could mean case law decided under the now “invalid” Constitution would also be declared a nullity; even Constitutional institutions like Parliament could be declared “legally inexistent.” The deliberately vague wording means that such an outcome, while very unlikely, is possible. Such a possibility bodes very ill for the future of the rule of law in Hungary.

Sophie Duxson is a Second-year student in the Juris Doctor programme, University of New South Wales.

Greg Weeks is a Lecturer and  Member of the Gilbert + Tobin Centre of Public Law, Faculty of Law, University of New South Wales.

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Tom Adams: Lord Sumption and Judicial Responsibility

Lord Sumption has for some time been an important man, and very recently became more important.[1] Indeed, he was too important already on the 9th of November 2011 for Lincoln’s inn, which reached capacity long before he read the opening lines of his F A Mann lecture. The lecture concerned a big question, quite possibly the question for public law scholarship: ‘How far can judicial review go before it trespasses on the proper function of government and the legislature in a democracy?’  Not only did the lecture attempt to tackle this fundamental issue, but it did so with the stated aim of avoiding what Sumption considered to be the narrow focus of ‘the academic literature’. For this concerned itself too much with ‘the experience of modern Britain’. What was needed, in order to arrive at a satisfying answer to the question, was ‘a longer historical perspective and a broader geographical range’.

The first section of the speech did as promised and placed the question of judicial legitimacy in this broader context. France was hailed as a model of judicial restraint, at least until 1958 when the constitution of the Fifth Republic heralded the birth of the Conseil Constitutionnel. This model of deference was attributed, in part, to the fact that the Counseil d’Etat (the senior administrative court in France) has always drawn its membership ‘from the ranks of senior administrators’. By way of contrast the constitution of the United States, founded by men who were ‘suspicious of democracy’, favoured strong legal controls on the exercise of public power, controls so strong that they questioned the US’s credentials as a functioning democracy:

‘In one sense it can be said that the unspoken object of most modern democratic constitutions is to treat the people as a source of legitimacy, while placing barriers between them and the levers of power. One of these barriers is the concept of representation… But another barrier is law… France, like every other functioning democracy, has adopted the first technique but rejected the second. The United States has adopted both.’

Sumption called upon his audience to see the current debate ‘between the originalists and their opponents in the United States Supreme Court’ in this light, as ‘fundamentally a debate about the permissible limits of judicial lawmaking in a democracy’. Not then, as many would see it, as a debate about the best interpretation of the vague moral standards laid down in the constitution.[2] Originalism, for Sumption, is small-c conservative only.

What then, of Britain? Where does the UK fit in the ‘spectrum extending from France at one extreme to the United States at the other’? Sumption contrasts the ‘old orthodoxy’ with a newer wave of judicial activism. Under the old approach, the function of the judiciary was to ‘interpret and enforce law’ not to ‘decide what is in the public interest’. Under the new approach the courts have apparently taken it upon themselves to determine the public interest at the expense of politics. Sumption, as one might have guessed, prefers the old orthodoxy. R v Foreign Secretary, ex p World Development Movement [1995] 1 WLR 386 is given detailed treatment as an example of the new approach. The case concerned Section 1 (1) of the Overseas Development and Co-operation Act 1980 which reads as follows:

‘The Secretary of State shall have power, for the purpose of promoting the development or maintaining the economy of a country or territory outside the United Kingdom, or the welfare of its people to furnish any person or body with assistance, whether financial, technical or of any other nature.’

In 1993, the then Foreign Secretary, Douglas Hurd, decided to spend £316 million to help finance the Pergau Dam, in Malaysia. Money for the project had originally been promised at a time when the UK was negotiating an arms deal with Malaysia worth over £1 billion.

Both the National Audit Office and the Overseas Development Administration’s own economists had advised that the expenditure was ‘markedly uneconomic’. In fact, the project would have imposed a huge cost penalty on the Malaysian economy as compared with other alternatives. The money put forward by the UK government would, at best, offset the extra cost of the dam.  Fearing damage to the UK’s ties with Malaysia, Mr Hurd went ahead anyway. To the surprise of many the High Court held that the government had acted unlawfully in providing the money. The court held that it was ‘a matter for the courts and not the secretary of state to determine whether, on the evidence… the particular conduct was or was not within the statutory purpose.’ On the basis of relevant evidence, including white papers, guidelines and the activities of previous governments, the power in section one was to be read to license economically sound development only. The proposed investment was therefore considered to be ultra vires the section. Rose LJ had the following to say:

‘It is not, in my judgement, possible to draw any material distinction between questions of propriety and regularity on the one hand, and questions of economy and efficiency of public expenditure on the other.’

This irks Sumption. He considers the judgement ‘almost to have deliberately been framed as a rejection of [the] distinction between politics and law.’ Indeed, this would have been the case had the court considered it to be its task to consider directly the merits of the policy at hand. But the court didn’t, so it isn’t. The court decided that, on the best interpretation of the statute, efficiency was a condition of the exercise of the power granted by the relevant section. The act was to be interpreted so as to fulfil the development purpose of the legislation. It was this fact that made the assessment of the economic credibility of the policy relevant to the courts task vis. policing the bounds of authority granted to the administrative body in question.

Both the development of the principle of legality and the work of the courts’ implementation of the Human Rights Act 1998 also come under fire, principally for transferring ‘out of the political arena … and into the domain of judicial decision making’ political matters.  But neither of these powers, if exercised properly, interfere with the lifeblood of Parliamentary politics. The principle of legality requires that executive action which interferes with certain fundamental interests be expressly licensed by Parliament. In requiring Parliament to face up squarely to the exercise of politically sensitive power by the executive, this principle actively engenders political debate. The Human Rights Act, itself a political creation, specifically envisages dialogue between the courts and Parliament. Legislation which is incompatible human rights cannot be struck down by the courts. Instead, they must issue a declaration of incompatibility. The final resolution of the matter remains with Parliament. Sumption notes, in passing, that in the case of the Human Rights Act it is often said that ‘the judges are only doing what Parliament has required them to do.’ This fails to convince because ‘Parliament may do many things which undermine the democratic element of our constitution’. True enough, but this is an argument against bad politics not bad judging.

This is not to deny that Sumption makes many valuable points in his lecture. His reaffirmation of the doctrine of due deference as a means of respecting, not the idiosyncratic decisions of particular ministers but instead, ‘the constitutional separation of powers’, for example, is a welcome one. This is especially so outside of the Human Rights Act context. The point was endorsed recently by Sumption’s new colleague Lord Hope in Axa General Insurance Ltd. v The Lord Advocate, where he noted, in relation to the issue of court supervision of the Scottish Parliament, ‘the advantages that flow from the depth and width of the experience of its elected members and the mandate that has been given to them by the electorate.’

Many law students develop a strong distaste for politics and a reverence, perhaps undue, for the importance of legal process and legalistic answers. Jonathan Sumption obviously never did, possibly because he studied history. Undue reverence should not, however, be replaced by undue distaste. A fair critique of the legal aspects our constitution requires that one square up to them in all of their subtlety.

 

Tom Adams is Stipendiary Lecturer in Law, St Hilda’s College, Oxford


[1] Sumption was sworn in as a member of the UK Supreme Court on the 11th of January 2012

[2] Ronald Dworkin, Freedom’s law : the moral reading of the American Constitution (Oxford University Press 1996) 1-14

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Adam Tomkins: The Scottish Parliament and the Independence Referendum

I read with great interest the stimulating post written on this subject by Nick Barber. He makes three points that I would take issue with.

The first is a detail, but an important one none the less. Nick summarises the position of the UK Government as being that the UK Parliament can delegate to the Scottish Parliament the power to hold a referendum on Scottish independence but that it can also “impose limits on the exercise of this power”. It is important to point out that this is not what Her Majesty’s Government has proposed in their recently published consultation paper on Scotland’s Constitutional Future.  Rather, their proposal is that a section 30 order be made whereby clear legal authority is vested in the Scottish Parliament to pass an Act authorising a lawful referendum. A section 30 order requires the approval of each House of the UK Parliament and the approval of the Scottish Parliament: this is a matter of law and is not dependent on the Sewel Convention (see Scotland Act 1998, Sched 7). It is not therefore possible for the UK to “impose” anything on Scotland using the section 30 order procedure that the UK Government has proposed should be used in this case. It is worth spelling this out because Scottish Ministers have wrongly asserted in the past few days that the United Kingdom Government is seeking to dictate matters. It is doing no such thing.

The second point is more substantial. Nick asserts that the Scottish Parliament has “wide powers” and that it “can almost certainly run a referendum if it wishes”. Nick’s analysis of this point relies on a distinction between what he calls binding and advisory referendums. I return to this distinction in my third point, below. What is surprising about Nick’s analysis is the absence from it of the relevant law. The starting place, of course, is section 29 of the Scotland Act 1998. This provides that an Act of the Scottish Parliament (ASP) “is not law” if it is outside the legislative competence of the Parliament, and that an ASP (or a provision of an ASP) is outside legislative competence if “it relates to reserved matters”. Subsection 3 tells us that this issue is to be determined “by reference to the purpose” of the provision in question, “having regard (among other things) to its effect”. Now, Schedule 5 to the Scotland Act reserves “the Union of the Kingdoms of Scotland and England”. Thus, an ASP that related to the Union would, quite clearly, not be law. Contrary to Nick’s stated view, it is not simply that the Scottish Parliament cannot “pull Scotland out of the Union”: it is that any provision of an ASP that related to the Union would be “not law” within the meaning of section 29. Would an ASP authorising a referendum on Scottish independence be one that related to the Union? Of course it would.

Lest there be any doubt about this, let us develop the argument by considering the matter of “purpose”. The purpose of the Scottish National Party in promoting a referendum on Scottish independence could not be clearer. On page 28 of the SNP’s manifesto   for the May 2011 Scottish parliamentary elections, it is declared that “A yes vote will mean Scotland becomes an independent nation”. The purpose of the referendum for which the First Minister claims his famous mandate is unambiguously to deliver independence. It is not to begin negotiations with a view to exploring the possibility of rethinking the Union. It is to deliver independence: to break the Union, to break up Britain. Applying the purpose test of section 29(3) of the Scotland Act therefore only reaffirms the result already arrived at. That is to say, the Scottish Parliament clearly lacks the requisite legislative competence.

Finally, some words about “binding” versus “advisory” referendums. There has been a great deal of confusion about this matter this week, not least in several remarks of the Scottish Ministers. Two quite different things are meant by this distinction. The first relates to the legal effects of any referendum. Most referendums in the UK are advisory in this sense. That is, the decision taken in a referendum does not, in and of itself, effect a change in the law. Some other intervention or mechanism is required to achieve this, such as a legislative amendment or some form of ministerial order. Of course, a referendum could be set up such that its result would be legally binding: the statute authorising the referendum could make provision to this effect. As Nick reports, this was done in the case of the AV referendum, in the Parliamentary Voting System and Constituencies Act 2011, section 8. This sense of the binding/advisory distinction makes no difference to the question of the legislative competence of the Scottish Parliament to hold a referendum on Scottish independence. Whether or not the ASP purporting to authorise such a referendum contained a provision equivalent to section 8 of the PVSC Act, the matter would be outwith legislative competence for the reasons given above.

Recall also the rather elementary point that something can be binding in the British constitutional order without it being legally required in the strictest sense. Referendums are not opinion polls: their purpose is not to test public opinion, but to make decisions. They are appeals directly to the people to make a decision that, for whatever reason, is felt to be more appropriately made by the public than by a legislature. As the House of Lords Constitution Committee observed in its authoritative report on referendums and their place in the UK constitutional order, even where a referendum was legally only advisory, “it would be difficult for Parliament to ignore a decisive expression of public opinion” (12th report of 2009-10, HL 99, para 197). This sense of the binding/advisory distinction may therefore not amount to very much.

But there is a second sense attributed by some commentators to the binding/advisory distinction. In the Herald on 11 January 2012, for example, Professor Stephen Tierney argued as follows: “If a question is carefully crafted, asking people whether or not their preference is for independence and making clear this would only be treated by the Scottish Government as a political mandate to enter negotiations, this would seem to fall within competence”. This is an echo of the argument made by the late Professor Sir Neil MacCormick, one of the SNP’s most significant figures in the late twentieth century: see, for example, his essay “Is there a constitutional path to Scottish independence?” (2000) 53 Parliamentary Affairs 721, at pp 725-6. A positive answer to such a referendum question, it is claimed, would do no more than authorise the Scottish Government to negotiate with the United Kingdom Government. The problem with this is twofold. First, a bespoke mandate to renegotiate the terms of the Union, let alone to negotiate its dissolution, is clearly a mandate that “relates to” a reserved matter and falls foul of section 29. But moreover, the Scottish Government already has what MacCormick described as “unlimited powers to negotiate with the Westminster government about any issues which could be the subject of discussion between them”. There is no need for a referendum to be held before the Scottish Ministers can talk to Her Majesty’s Government about Scotland’s constitutional future. Indeed, such discussions have been ongoing throughout the prolonged passage through the UK Parliament of the current Scotland Bill. Thus, and to return to the words of section 29 of the Scotland Act, it could hardly be held to be the purpose of such an “advisory” referendum simply to authorise negotiations. No, the purpose of the referendum would not be to authorise an inter-governmental conversation. Its purpose would be as set out in the SNP’s own words (in its 2011 manifesto), that “Scotland becomes an independent nation”.

Professor Adam Tomkins is the John Millar Professor of Public Law at the University of Glasgow. He writes here in a purely personal capacity.

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Cormac Mac Amhlaigh: … yes, but is it legal? The Scottish Independence Referendum and the Scotland Act 1998

The question of the legality of a referendum on Scottish independence pursuant to an Act of the Scottish Parliament has been a hobbyhorse of Scottish constitution- watchers since before the Scotland Act 1998 (SA) came into force.  It has now entered the national (British) political fray front and centre, in the form of the spat between Alex Salmond and David Cameron over ownership and control of an independence referendum process and the timing and wording of any such referendum.

Both parties have (unsurprisingly) taken opposite views on the legality of an Act of the Scottish Parliament (ASP) facilitating a referendum on independence (or devo max; devolution of powers just short of full independence) in the absence of a specific grant of the power to hold the referendum by Westminster.  Thus, arguably one of the most significant constitutional issues since the foundation of the United Kingdom over 300 years ago could founder on legal technicality:  would an ASP authorising a referendum, touch upon prohibited grounds under s. 29 of the SA.

As is well known, the model of devolution of powers to the Scottish Parliament under the Scotland Act took place according to an exclusionary as opposed to an inclusionary model.  That is, unlike the devolution proposals in 1978, the Scotland Act devolves plenary powers to Holyrood except for the competence to define the limits of its own competence, as well as specific prohibited grounds reserved to the Westminster parliament.  Most of the litigation on the powers of the vires of measures taken under the Scotland Act (most notably executive acts) in the first decade and a half of devolution have related to (some high profile) human rights cases, most notably the recent Cadder v. HM Advocate [2010] UKSC 43 Frazer v. HM Advocate [2011] UKSC 24 decisions.

The relevant wording of s. 29 for the purposes of an ASP facilitating a referendum, is that it must not ‘relate to’ reserved matters (s. 29(2)(b)).  S. 29(3) provides guidance on the meaning of ‘relates to’, which will be determined by reference to the ‘purpose of the provision, having regard (among other things) to its effect in all the circumstances’.  (s. 29(3) SA).  Reserved powers, contained in Sch. 5 include the Constitution of which ‘the Union of the Kingdoms of Scotland and England’ is part.  So, it all turns on whether an Act which facilitates a referendum on Scottish independence or devo max ‘relates to’ the Union of Scotland and England within the meaning of s. 29 SA.

The Coalition government, in its recent report on the a referendum which includes its interpretation of the legal position, claims that such a referendum clearly relates to the constitution, and particularly the Union between Scotland and England, in that an independence referendum could lead to the severance of the Union.  The Scottish government, for their part, argue that any such referendum would be merely advisory or consultative, have no legal effect within the terms of the Scotland Act and therefore does not violate the terms of devolution.  The implication being that part of the reserved powers model of devolution entails the devolution of the power to hold referendums given that it is not specifically reserved or limited by the Scotland Act, regardless of the subject matter of the plebiscite.

The question of the validity of an ASP facilitating such a referendum is an archetypal ‘hard case’, due to the fact that it involves a dispute about the level of analysis the Supreme Court should adopt in assessing the vires of ASPs under s. 29 SA.  Should the scrutiny of the purpose of a referendum ASP be narrow and limited, not moving beyond the immediate purpose of the Act itself; i.e. to hold a referendum?  Or should the scrutiny be more contextual, one could say ‘anxious’, taking into account, not only what the Act purports to do in the immediate term, but also the social and, perhaps more importantly political, context within which the Act would operate and its longer term consequences?

On a narrow reading of s. 29, which coincides with the Scottish Government’s reading, the purpose of such a provision would be to hold a referendum and there the analysis by the court would stop.  The holding of referendums is not explicitly prohibited in the SA and therefore the facilitating Act would clearly be valid.  If pushed, it could be argued on this view that its ‘effect in all the circumstances’ would be null in that it would not have any legal effect; its simply taking the temperature of Scottish public opinion.

A broader level analysis, one which seems to be reflected in the coalition government’s reading of the SA, is that the analysis must not stop at the immediate purpose of the ASP to hold a referendum, but that the purpose of the referendum itself must also be considered.  On this reading, the purpose of the ASP is thus to hold a referendum in order to subsequently secede from the Union which therefore ‘relates to’ a reserved matter.  The referendum, on this view, should not be considered an end in itself, but rather an instrument to achieve a further goal, that of secession or the devolution of further powers to the Scottish Parliament.

Whereas there has been much discussion (and disagreement) about the legality of an independence ASP, ultimately  the legality of the bill will be determined by the Supreme Court’s interpretation of s. 29 and so the best predictor of the legality of a proposed bill is an attempt to predict how the Court would approach s. 29.  To put it bluntly in the context of the current debate, a broad contextual approach to scrutiny of the purpose a purported Bill by the Supreme Court would favour the coalition government’s position whereas a narrow, limited scrutiny of the purpose of the purported bill favours the Scottish government’s interpretation of the Parliament’s powers.  The question is then, what indicators are there of the Supreme Court’s view?

There has been a surprising dearth of litigation reaching the Supreme Court based on the competence of ASPs with regard to reserved powers as opposed to violations of EU or Human Rights law under s. 29(2)(d). In fact, to date, only one case has been decided by the Supreme Court where it was forced to interpret the relevant provisions of s. 29 SA; Martin and Miller v. HM Advocate [2010] UKSC 10.  Although the Court was unanimous in finding that the Act of the Scottish Parliament (ASP) in question was not in violation of s. 29(2) read in conjunction with s. 29(3), that is that it did not ‘relate to’ reserved powers, the case does reveal some clues as to how the Supreme Court would interpret s. 29 SA for the purposes of a referendum bill, should it ever have the occasion to.

The case involved an ASP, the Criminal Proceedings (Reform) Scotland Act 2007 , and in particular s. 45 which purported to raise the maximum penalty for offences tried summarily to 12 months imprisonment.  The joint appellants were convicted of road traffic offences for which the maximum penalty had, before the 2007 Act, been 6 months imprisonment.  The Court sentenced them to   12 and 7 months imprisonment respectively (i.e. more than the pre-2007 reform limits).  The Road Traffic Acts, pursuant to which the offences were prosecuted, is a reserved matter under Schedule 5 of the Scotland Act and so they claimed, among other things, that the ASP which augmented the sentences was beyond the powers of the Scottish Parliament due to the fact that it ‘related to’ a reserved matter, namely offences under the Road Traffic Acts.

The case was eventually decided according to the more arcane provisions of s. 29(2)(c) and s. 29(4) SA where the court divided 3 to 2 on the outcome, details which need not detain us here.  Of more interest was the unanimous approach of the Court as to whether the amendments of the 2007 Act ‘related to’ a reserved matter under s. 29(2) SA read in conjunction with s. 29(3) SA.  The court found that the ‘purpose test’ contained in s. 29(3) SA, necessitated a broad contextual approach to the provision of the 2007 and not simply a narrow, facial reading of the provision which augmented the sentences for offences tried summarily.  Thus, Lord Hope found that in applying the purpose test, the Court should have regard to the ‘situation before the provision was enacted, which it was designed to address’.  The Court liberally referenced the expert committee reports which recommended the change in the maximum penalties for offences tried summarily, reports and papers issued by the Scottish Ministers prior to the introduction of the Bill, explanatory notes to the Bill, policy memoranda, statements made by ministers and the Parliamentary committees during the passage of the Bill through the Scottish Parliament to conclude that, in the light of the broader context of the provision, its purpose was to reform the summary justice system by reducing pressure on higher courts (which was unambiguously a devolved matter), and not to raise sentencing limits for road traffic offences generally (which would be a reserved matter).  The increase in the sentencing powers of offences tried summarily in the lower courts was deemed to be a necessary part of this reform.  As Lord Kerr remarked, the greater maximum penalty introduced by the relevant provisions was not ‘an end in itself’ but a mechanism of a broader purpose of the reform of the jurisdiction of the Scottish courts (a devolved matter) in order to enhance efficiency.

Analogizing then from this case to the legality of an ASP facilitating a referendum, it would appear that were the Court to follow the approach it took in Miller and Martin, this would militate in favour of the coalition government’s interpretation of s. 29.  As such, the referendum introduced pursuant to the bill would not be read as an ‘end in itself’ but rather would have to be seen in its broader political context of enactment, including consultations, debates and previous ministerial statements.  This could include the purpose of the bill constituting a means to a broader end of Scottish independence which would clearly fall foul of s. 29(2) SA.  As much seems to have been anticipated by the coalition government’s legal analysis of the situation in its recent Consultation Document, where it refers to the Scottish Government’s 2010 Draft Referendum Bill Consultation which stated that ‘The [Scottish] Parliament’s powers should be extended to enable independence to be achieved’.  The Consultation document therefore concluded that ‘both purpose and effect [of a referendum bill] therefore related directly to the reserved matter of the Union of the Kingdoms of Scotland and England’ and that the ‘underlying purpose’ of any advisory or consultative referendum would be Scottish independence.

However, if the reports, statements and arguments advanced by the Scottish Government as well as the explanatory notes to any forthcoming referendum bill contained a ‘saving clause’, explicitly stating that the purpose of the Bill was not to give effect to secession nor directly affect the Union and therefore encroach upon a reserved power, but rather was the simply exercise of a devolved power (the power to hold referendums), then this would muddy the waters considerably.  It would remain to be seen what the Supreme Court would make of such a savings clause, were it to be introduced.

Whichever way the Court swings on this question should it ever actually reach its docket, what is clear is that the law can play only but a minor role in the resolution of this potential constitutional crisis.  Analogies to the Canadian situation with Quebec should be made with caution (after all, the Scotland Act is not the Canadian constitution), but if we are permitted to draw anything from the Quebec Secession Reference decision of the Canadian Supreme Court in 1998, it is surely that these questions are, at root, political questions which must, in the final analysis, be resolved politically.

Dr. Cormac Mac Amhlaigh is Lecturer in Public Law, University of Edinburgh.

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Mike Gordon: The European Union Act 2011

The European Union Act 2011 (EUA) is an unprecedented constitutional experiment.  This post will outline the two main innovations of the Act: (1) the section 18 ‘sovereignty’ clause; and (2) the scheme of ‘referendum locks’ introduced in sections 2, 3 and 6.  Three key questions raised by the EUA for UK constitutional lawyers will then be identified, and some tentative responses to these questions sketched.  The post draws on an article written in collaboration with my colleague Michael Dougan, which is to be published in the February 2012 edition of the European Law Review.

(1)  The ‘sovereignty’ clause

The provision contained in section 18 of the EUA was originally projected to be a ‘sovereignty’ clause, intended to reaffirm the sovereign character of the legislative power of the UK Parliament.  Yet the final text of the provision enacted in the EUA is no ‘sovereignty’ clause at all; instead, section 18 simply confirms the narrower point that the status of EU law within the UK is ultimately dependant on its continuing statutory basis.  In other words, section 18 maintains that EU law is effective and supreme over other domestic norms because an Act of Parliament, the European Communities Act 1972, makes it so.

(2)  The ‘referendum locks’

The ‘referendum locks’ introduced in sections 2, 3 and 6 of the EUA form part of a broader system of control over the making of various decisions related to the EU.  While the Act provides that some categories of decision must be approved by Act of Parliament (see e.g. section 7), and others merely subject to Parliamentary Approval (see e.g. section 10), the ‘referendum locks’ are the EUA’s most demanding control mechanism.

The locks provide that certain decisions can only be lawfully authorised by an Act of Parliament which makes the subsequent effectiveness of the decision contingent on whether it has been approved by a majority of the electorate voting in a referendum.  The range of situations in which the EUA requires a referendum to be held to authorise action to be taken in relation to the EU is remarkably broad.

Section 2 covers any treaty amending or replacing the existing EU Treaties, although a treaty which does not transfer power or competence from the UK to the EU, in accordance with section 4 of the EUA, will be exempt from the requirement that a referendum be held.  Section 3 covers changes to the existing EU Treaties made using the ‘simplified revision procedure’ under Article 48(6) TEU, although again, a referendum may not be required if the treaty is exempt from the criteria set out in section 4, such that power or competence is not transferred from the UK to the EU.  In relation to section 3 only, a significance test may also be applied in relation to some specific types of transfer of power or competence, with those that are not significant to the UK failing to attract a referendum under the Act.

Section 6, in contrast, sets out a series of trigger events, which will automatically require approval by Act of Parliament and at a referendum.  Most of these trigger events relate to changes in the EU’s voting rules – in particular, certain extensions of QMV – but a number of specific decisions which would significantly affect the UK-EU relationship (such as joining the euro, the removal of border controls under the Schengen Protocol, or participation in a European Public Prosecutor’s Office) would also attract a referendum under section 6.

Three Key Questions Raised by the EUA

The two elements of the EUA highlighted above clearly raise a number of important constitutional issues, for section 18 seeks to clarify the status of EU law within the UK, while the scheme of referendum locks contained within the Act purports to ensure that future transfers of power or competence to the EU from the UK will take effect subject to approval at a national referendum.  Yet there are three key questions which are worthy of particular attention.

 (i)   What is the impact of the EUA on the sovereignty of Parliament?

When the changes incorporated in the EUA were first proposed, it might have been thought that section 18 would have been of greater importance to our understanding of the current status of the doctrine of parliamentary sovereignty.  After all, section 18 was to be a ‘sovereignty’ clause, and could have required a range of interesting problems to be confronted.  Could a sovereign Parliament legislate to confirm its own sovereignty?  What practical effect would such a clause have on the courts and other constitutional actors?

Yet in its ultimate incarnation, section 18 raises few such issues; indeed it tells us little we did not already know from the famous judgment of Lord Bridge in Factortame (No. 2) [1991] 1 A.C. 603.  Section 18 implies that Parliament remains sovereign, for the domestic supremacy of EU law fundamentally depends on an Act of Parliament.  If this is the case, section 18 seems to invite us to infer, the supremacy, and indeed effectiveness, of EU law within the UK could be withdrawn by an Act of Parliament.  This is, however, far from revolutionary, and section 18 arguably therefore emerges as a useful reminder at best, and somewhat of a distraction at worst.

More controversial by far are the EUA’s referendum locks.  For here, it seems, is a Parliament moving away from Dicey’s constitutional orthodoxy, and attempting to bind its successors as to the manner and form of future legislation.  Whether the referendum locks will be viewed as legally binding ultimately depends on what perspective is taken:  those who follow Wade’s line that Parliament cannot alter the political fact of its sovereignty will believe such statutory conditions to be unenforceable, whereas those who are persuaded by Jennings and Heuston’s alternative understanding of legally unlimited legislative power may be convinced that Parliament has made a valid alteration to the future law-making process.

It is not easy to predict which view will prevail.  Nevertheless, the rhetoric surrounding the Act – in particular the very language of ‘locks’ – coupled with the failed attempt to insert a sunset clause into the legislation as it passed through the House of Lords (which implies that such a clause would have be needed to cause the referendum requirements to lapse) provides some evidence that the government may have induced Parliament to bind its successors to an altered future manner and form, even if this was not explicitly acknowledged.  Perhaps, then, the EUA can be seen as building on the decision of the House of Lords in Jackson [2005] UKHL 56, and confirming a modern shift to the manner and form understanding of parliamentary sovereignty.

Of course, even if this is accepted, it is crucial to note that the EUA’s referendum locks will only bind future Parliament’s for as long as they remain on the statute book.  These locks are in no sense entrenched, and could doubtlessly be expressly repealed in a future Act.  Nonetheless, the political cost of so doing may be high, due, for example, to the difficulties inherent in justifying to citizens the removal of legal rights to popular participation.  And it is for this reason that it will still be important to establish whether or not the EUA’s referendum locks can be reconciled with the sovereignty of Parliament; if they cannot, and the manner and form conception of the doctrine is rejected, the locks can be readily disregarded by future governments, as they will be impliedly repealed by any Act of Parliament authorising action in relation to the EU that the EUA would otherwise purport to control.  For a government to adopt such a strategy would be risky, creating considerable uncertainty pending the outcome of any legal challenge, while potentially appearing disingenuous to the public, and as such, it might be prudent for a manner and form understanding of the EUA to be embraced on pragmatic grounds.

(ii) What will be the impact of the EUA on the UK-EU relationship?

It is difficult to predict what impact the EUA will have on the relationship between the UK and the EU, but a number of factors suggest that this impact is not likely to be positive.  The system of referendum locks introduced by the EUA goes much further than any equivalent regime in any other Member State.  To some extent, then, the UK has set itself up as an exception in comparison to its fellow EU members, a fact which is unlikely to win the UK friends in Brussels if the effect of the locks is to obstruct future reform.  Such obstruction could occur through a failure to win a required referendum in relation to a specified revision of the EU Treaties, or a government simply refusing to agree to proposed changes to avoid even holding a referendum in the first place.

Indeed, while potentially disruptive to the EU, it is not hard to see why a future government would adopt such an attitude.  The EUA might require the holding of referendums on a range of esoteric issues (a referendum would need to be held, to give one example, to allow the Council to act by qualified majority, rather than unanimously, when making changes to the list of military products exempt from internal market provisions pursuant to Art 346 TFEU).  It would be very difficult even for well informed citizens to engage with such issues, and it is therefore possible that the outcome of the referendums would be determined by a smaller number of groups and individuals with strong preordained views about the EU.  Perhaps any such referendum would essentially morph into an ‘in-or-out’ referendum on the EU – a matter which, surprisingly, the Act does not provide for.

It thus remains to be seen whether the EUA will contribute to the UK becoming sidelined within the EU.  Yet with the government seemingly willing to veto revision of the EU Treaties even where the Act’s referendum locks would not have been legally engaged – as would appear to be the case in relation to the UK’s refusal to agree at the negotiations in Brussels in December 2011 to a revision of the EU Treaties to incorporate a ‘fiscal compact’ among other things – the EUA could well exacerbate the UK’s increasing isolation.

(iii)        What does the EUA tell us about the place of referendums in the UK constitution?

The EUA offers further evidence of the growing importance of referendums in the UK constitution.  Referendums are clearly a versatile democratic tool, having recently been used to give citizens an opportunity to determine whether to adopt the AV voting system for elections to the House of Commons (and simultaneously enabling a political disagreement between coalition partners to be bypassed), while a referendum of some kind on Scottish independence, effecting the right to self-determination, looms on the horizon.  In the EUA, in contrast, referendums are used as a ‘lock’, to inhibit the freedom of action of the government of the day in particular, but also to block the extension of the power and competence of the EU with respect to the UK (and perhaps even the expansion of the EU more generally).

The value and importance of the referendum as a constitutional device can thus be recognised, while nevertheless acknowledging genuine concerns about the use made of the mechanism in the EUA.  The scope of the EUA’s referendum locks can be criticised as excessive:  this could produce voter fatigue if frequent referendums are held on marginal issues.  If turnout to vote in such referendums is low, the legitimacy both of the actual decisions reached, and direct democracy more broadly, could be questioned.

Further, it is not altogether clear why the UK’s relationship with the EU is singled out for special treatment –  if referendums are to be guaranteed here, should they not also be guaranteed in relation to fundamental changes to the UK’s own internal constitutional arrangements?  While the focus on the UK-EU relationship can be explained by party political preoccupations, this does not mean it is justified.  Ultimately – as with all matters discussed in this post – it will take time to discern the impact of the EUA on UK constitutional practice relating to referendums.  Yet the fact that the EUA does not make good use of referendums should be seen as a flaw of the Act, and not of direct democracy itself.

 

Mike Gordon is a Lecturer in Law at Liverpool Law School, University of Liverpool

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