Monthly Archives: March 2012

Jacob Rowbottom: Cash for access and the problems of party funding


Following the Sunday Times cash for access sting, political parties are reported to be putting negotiations on reforming party funding on the fast track. Such discussions among the parties do not have a good record of success. The breakdown of negotiations over the Sir Hayden Phillips proposals in 2007 is well known. The report from the Committee for Standards in Public Life (the Kelly Report) published last year had two notes of dissent from the Labour and Conservative members. It is difficult to see what will be different this time around.

The government is pushing for a £50,000 cap on political donations. There are some obvious difficulties with this proposal. Donations of £50,000 may still give an impression of undue influence and privileged access. Parties can also give special status to those donors that pledge to give £50,000 each year over a 5-year period. A cap at this level does not prevent promises for very large donations being made.

While the proposal would at least cut out the million pound donations from individuals, it might make matters worse in other respects. Being unable to pick up the phone and ask certain committed multimillionaires to bankroll the party, parties would be under a stronger pressure than ever to fundraise. However, the incentives would not be to rely primarily on a mass of micro-donations of, say, £100. Instead fundraisers would seek as many donations of £50k (or close to that limit) as possible. Yet I imagine getting people to part with £50k is not easy and guess there are only so many ideologically committed donors to go round. Getting this sort of money means more fundraising dinners and meeting opportunities, the sort of things that have caused all the current controversy. If a donation limit is to be imposed at all, it needs to be set low.

Cash for access highlights not just the difficulties in limiting political donations, but of regulating lobbying in general. The government is currently consulting on a statutory register of lobbyists. But as several commentators have argued, it is not clear whether the individuals involved in the ‘cash for access’ controversy would fall under the definition of a ‘lobbyist’ under the current proposals. The success of a register also depends on what information is disclosed. While formal meetings with ministers are made public (and now the identity of large donors attending fundraising dinners are being disclosed too), no transparency regime can demand full disclosure into every possible social contact, phone call or conversation between a politician (or an aide) and an outside interest. A register of lobbyists is a necessary step, but there will always remain corners that are off the radar.

One issue missing from the current debate about party funding is freedom of expression. That right was not discussed in the Kelly Report. Yet it might have a big impact on the regulatory framework. A few weeks ago, the case of Animal Defenders International was argued before the Grand Chamber of the European Court of Human Rights, with the applicants arguing that the current ban on political advertising on the broadcast media is a violation of Article 10. I have written elsewhere why the Court should not accept that argument. However, judging from past decisions, the odds are that the Strasbourg Court will find the ban to be a violation of Article 10.

What would the implications of such a ruling be? One possible implication might be that political parties (along with other political organisations) would be free to advertise on TV and radio. While limits on the amounts that could be spent on such advertising could still be imposed, the current election spending limits might need to be raised to allow a sufficient amount advertising to be bought. In any event, there would still be money spent on advertising on off-election years (when spending limits do not apply). Allowing the parties to advertise on the broadcast media could increase the parties’ demand for money, and increase the pressure to fundraise.

If the Strasbourg Court finds that the blanket ban on broadcast advertising violates Article 10, then an alternative response might be to enact a partial ban – one which permits advertising on political issues, but not on electoral matters. That would mean political parties cannot advertise, but political interest groups can. The difficulty with that approach is that it might lead to political money flowing to independent political organisations, which are often closely aligned with certain political parties (or factions within a party). The problem is already present in the current controls on party funding. In a previous ‘cash for access’ scandal, one former minister suggested a donation to a think tank (which is not required to disclose donations, as political parties are) as a way to secure access to a politician.

So, these developments might lead to a situation for political parties where donations are capped, spending is limited, contacts are transparent and TV advertising is banned. By contrast, think tanks and pressure groups would not be required to disclose detailed information about sources of funding, not be subject to spending limits and (if my expectation on Animal Defenders International is correct) free to advertise on TV. That contrast would provide an incentive to creative an alternative market for political finance outside the formal party framework, but would arguably be just as harmful to the democratic process.

Reforms to political finance are necessary. My point is that we should be realistic about what reforms can achieve and think more broadly about the knock-on effects reforms can have. Do the proposals currently being floated really solve a problem or just move it elsewhere? A set of reforms passed quickly to mop up the scandal of the day are unlikely to deal with these questions successfully.


Filed under Constitutional reform, Human rights, UK Parliament

Nicholas Aroney: Federal Models for a U.K. Constitution?

When the referendum really comes, the sovereign Parliament must go.  But whether for good or for evil, the referendum, in principle at least, seems to be coming.

– C. H. McIlwain, The High Court of Parliament and Its Supremacy (1910), xv.

[N]ow we are witnessing something that would have seemed almost impossible a few years ago, a serious discussion taking place in the United Kingdom about the possibility, and the desirability, of the introduction of a federal, or ‘quasi-federal’ system there.

–  M. J. C. Vile, ‘Federal theory and the “New Federalism”’ (1977) 12 Politics 1.

Recent discussion about the possibility of the United Kingdom adopting a written constitution and forming itself into a federal state is not as new as it may seem.  Certainly, the discussion has raised more questions than it has answered.  For present purposes, we may start with the proposition that a federal state exists where there is (1) a binding constitution which (2) provides for representation of the peoples of the regions and localities of the federation within a federal parliament, (3) distributes power among central and regional governments, and (4) cannot itself be altered unilaterally by either the federal or regional parliaments.  As such, there is still a long distance between the present arrangement in the U.K. and a fully-orbed federal state.  Even if the current debate about the grounds, scope and effect of a Scottish independence referendum are resolved, and if popular and political will was to consolidate in favour of some kind of federal state (‘devo-max’ to the nth degree), many more questions about how to create a federal constitution would remain, centred on the four characteristics of a federal state noted above.

The first of these large questions concerns how a binding and legally entrenched constitution could come into being in the U.K., noting that U.K. law still treats the Parliament as the highest authority in the land and the institution that has the most plausible capacity to initiate, if not consummate, a constitutional change of such magnitude.  A second big question concerns precisely how representation of the constituent regions and localities would be instituted, noting among other things the problem of bifurcating the present Parliament at Westminster into two institutions, a federal legislature for the United Kingdom and a regional legislature for England, alongside the existing legislatures of Scotland, Wales and Northern Ireland.  The third question concerns the breadth of power that would to be devolved to the regional legislatures and whether it is feasible for the current asymmetry to be replaced by a more symmetrical devolution of powers.  And, fourthly, there is the very important question about what procedures would be laid down for the amendment of the constitution in the future, a question that cannot be separated from the first one, about how the constitution is to be established as legally binding upon the legislatures.

Just as the constitutional experience of many former British colonies has proven instructive for the analysis of the powers of the Parliament following the European Communities Act, the Human Rights Act and the recent European Union Act, so the experience of former colonies that have formed themselves into federations suggests several different ways in which a federal constitution for the U.K. might be designed and instituted.  In this short comment, I want to suggest that there are at least three basic ways of proceeding, exemplified in the diverse means by which federal constitutions were established in the United States, Canada and Australia respectively.  As it turns out, there are already many interesting parallels between the experiences of these three countries and current developments in the U.K., especially the potentially very significant referendum on Scottish independence presently being proposed (see Grégoire Webber’s recent contribution on the Canadian parallels), not to mention the similarly contentious referendum requirement laid down recently in the European Union Act.

Revolution was the path that the United States took, but in that country there continues a very important but still unresolved debate over whether, when the revolutionary claim to autochthony was effectively made, independence was secured severally by the individual American States or jointly by the States acting together as the Second Continental Congress in 1776 (cf the views of Jack Rakove, Akhil Amar and Henry Monaghan, among many others, on this point).  While many may say that the controversy has been made irrelevant by the outcome of the Civil War, the issue goes very significantly to the nature, design and interpretation of the U.S. Constitution (as US Term Limits v Thornton demonstrated).  The view that I think is best supported by the evidence is that assertions of independence and of constitutive authority were exercised both severally and jointly, but in a way that meant that no State would be bound by either the Articles of Confederation (ratified 1777-81) or the U.S. Constitution (ratified 1787-9) unless it individually ratified the proposed arrangement.  This was clearly the case for the Articles of Confederation, but it was also the case for the Constitution, even though the provision in the Constitution for ratification by only nine States meant repudiating the requirement of unanimity for the amendment of the Articles (see Articles of Confederation, Art. XIII; U.S. Constitution, Art. VII).  This fact of separate ratification by each State was indeed emphasised by James Madison in Federalist No. 39 when he said that the ‘assent and ratification’ of the Constitution, although in the name of ‘the people of America’, was given by the people ‘not as individuals composing one entire nation, but as composing the distinct and independent States’.  Even Chief Justice John Marshall, who is famous for asserting that the American Constitution ‘derives its whole authority’ from ‘the people’, admitted that the people when ratifying the Constitution had ‘assembled in their several States’, noting that ‘[n]o political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass.’

Now, it is indeed quite unforeseeable at the present time that a federal constitution for Britain will emerge on the basis of a series of claims to revolutionary autochthony by the constituent people, or peoples, of the United Kingdom.  But the prospect of a Scottish referendum on independence as the basis upon which a new devo-max settlement might be negotiated, suggests that an analogy to the United States might not be altogether out of place.  And here, the making of the U.S. Constitution remains potentially relevant in at least one important respect, for it illustrates how the design of a federal constitution is related to the authority upon which it is conceived to be based.  As Madison pointed out, although the U.S. Constitution was thoroughly ‘federal’ in its foundation, the representative institutions, distribution of powers, direct effect of federal law, and means of amendment of the Constitution displayed both ‘federal’ and ‘national’ features.  To take the most obvious example, the U.S. Senate was chosen by the legislatures of the States on the basis of equality among the States (it is now directly elected by the voters in each State, but still on the basis of State equality), the House of Representatives was, and still is, elected by voters in a manner that is essentially proportional to each State’s population, and the President was and is elected through an electoral college which allocates to each State a number of votes corresponding to its total representation in both houses of Congress.  Similarly, the U.S. Constitution can only be amended through the consent of special majorities of the State legislatures or in conventions held in each State.  In both ‘representation’ and ‘amendment’, the federal principle is expressed in the special role and status of the States, while the national principle is expressed in the movement from unanimity among the States towards majority rule at a state and national level. Moreover, throughout, democracy is conceived essentially as representative democracy, even at the supreme constitutive moments of ratifying the Constitution and making formal amendments to it.

This much is fairly rudimentary, but it is the logic of the constitutional design that is important, for the prime questions to be addressed in constructing a federal system concern the many different ways in which Madison’s ‘federal’ and ‘national’ principles can be combined.  Other federal countries offer models of different combinations of these principles, but a tendency to move from unanimity among the constituent states to majority rule, and from control by the state governments towards popular involvement of some kind, is consistent across all federal systems that come into being on the basis of a negotiated agreement among several constituent states.  Some integrative systems go further in these directions than others, and all of them express the principles in specifically different ways, but the underlying principles are the same.

This brings us to the Canadian and Australian examples.  These two federal systems did not come into being through revolutionary assertions of autochthony.  Lawmakers in both instances were careful to ensure complete legal continuity with the then accepted authority of the British Parliament to legislate for the colonies.  But the Canadian and Australian ways of coming together and constructing a federation were significantly different.  The Canadian federation was designed in a manner that was consciously intended to avoid the supposed tendencies of the American system to disunity and dissolution, expressed most tragically in the Civil War.  Rather than begin with putatively sovereign states bargaining on the basis of a fundamental constitutive equality, the Canadian system was understood to rest, ultimately, on the authority of a sovereign Imperial Parliament which would through the British North America Act 1867 (BNAA) unite Ontario, Quebec and the Maritime provinces into a suitable form of union, modelled on the British system of parliamentary responsible government.  Accordingly, while political representatives of the Canadian colonies did participate in conferences in 1864 and 1866 at which the terms and structure of a proposed union were agreed in the form of a series of published resolutions, the colonies did not participate as equals (the Maritime provinces were treated, constitutionally, as a unit), and they did not presume to dictate to the Parliament the exact language of the statute under which they would be united.  Unlike the Americans, the Canadians thus wished to create a relatively unified federation, under which the legislative powers of the general government (the Dominion of Canada) would be plenary and the powers of the Provinces would be limited to certain specified topics – a significant departure from the American model, where the original and plenary powers of the constituent States were the very presupposition of the federal system and the powers of the United States Congress were therefore limited and specified.  The Canadian Provinces were thus conceived to be creatures of the BNAA (indeed, most of them still don’t have ‘constitutions’ of their own).  The provincial governments were presided over by Lieutenant Governors and ‘represented’ by Senators appointed by a Governor-General advised by the government of the Dominion of Canada as a whole.  Indeed, the very nomenclature was significant: Provinces, not States; Lieutenant Governors, not State Governors, and so on.  Moreover, the constitutive dependence of Canada on the Imperial Parliament was preserved in the fact that no local power of constitutional amendment was included in the BNAA.  The logic of Parliamentary sovereignty thus shaped the Canadian constitution of 1867 through and through.  In its ‘foundation’, the system was highly unitary, with the exception that the Provinces did negotiate the general nature of the system that would be adopted (but not as equals), and these unitary and unequal foundations shaped the fundamentals of the BNAA in terms of its distribution of powers, representative institutions, and lack of an amending provision.

Now it is of course very true that constitutional politics in Canada has seen the country shift very dramatically in the direction of much greater autonomy for the Provinces.  This due to several factors: most notably, the pressures of linguistic and cultural diversity expressed in Francophone Quebec and calls for secession; the addition of several new Provinces to the federation by way of carefully negotiated agreements between the parties; and the unintended consequence that specifying the legislative powers of the provinces in the BNAA provided the Privy Council and Supreme Court with a textual ground upon which to limit expansionist interpretations of federal power.  But in the 1890s, when the Australian colonies were contemplating federation, the Canadian model appeared much too Imperial and centralist for politicians and a voting public that had become quite accustomed to exercising substantial powers of local self-government and constitutional self-determination (cf Colonial Laws Validity Act 1865).  The Australians wanted to follow the American model, and they did everything they could to reproduce an American-style federation subject only to the dictates of a continuing (but oftentimes grudging) willingness to acknowledge the authority of the British Parliament to legislate for Australia.  And it was in this respect that the referendum proved very significant indeed.

Following the American example, Australian politicians generally refused and resisted British encouragements towards federation until they themselves, as elected representatives of the colonies, thought that it was expedient and right to do so.  Accordingly, federation did not proceed in Australia until the Premiers of each colony supported it.  With this support, secured at a conference held in 1890, Enabling Acts were passed in each of the colonial Parliaments which set up a U.S.-style federal convention at which a draft Constitution Bill was to be debated, drafted and submitted to each of the colonial legislatures for their approval.  Such a convention, at which each colonial Parliament was necessarily equally represented, was duly held in 1891.  And the draft bill that emerged was inspired deeply by the American example.  The existence, powers and mutual independence of the constituent colony-states was taken as a presupposition of the whole system rather than as a product of it, and it was thought quite improper to make any provision at all for the governing institutions of the States within the federal constitution.  It was enough that the State constitutions should ‘continue’ as they had, subject only to the conferral of certain limited powers on the federal institutions of government.  Thus, the limited and specific distribution of legislative powers to the federal Parliament presupposed the original and plenary legislative powers of the colonial Parliaments, and these same Parliaments were also equally represented in the federal Senate.  Moreover, federal executive authority, although formally vested in the Crown, was to be exercised by a Governor-General acting on the advice of a Prime Minister and Cabinet responsible to a Parliament in which the Senate had equal power with the House of Representatives except in relation to financial bills; and even here the power of the Senate to refuse to pass supply was conceded, making the government potentially responsible to both houses (as famously occurred in 1975, leading to the controversial dismissal of the Whitlam government by Governor-General Kerr).  And, finally, again influenced by the American example, but also following the particular federating logic of the Australian system, provision was made for the amendment of the constitution by specially elected conventions held in each constituent state.

As it turned out, the Constitution Bill of 1891 did not secure the support of the colonial governments of the day, and federation languished for another four years, until a second convention was proposed in 1895.  This convention was duly held in 1897-8 and a second Constitution Bill was drafted, approved and finally enacted into law by the British Parliament in 1900.  What distinguished this constitution from the earlier draft was a slightly different federating logic.  This time it was thought important for the federal convention itself to be directly elected by the voters in each colony, and for the draft Constitution Bill prepared by the convention to be submitted to the colonial legislatures for their comments, subsequently revised at a second sitting of the convention, next submitted to the voters in referendums held in each colony and, only to the extent thus approved, finally sent to Westminster for enactment into law.  The principles embodied in this constitutive process dictated in the minds of the Constitution’s drafters that while the principles of unanimity and equality among the colony-states must be preserved, the principle of direct, popular, constituent authority should also be expressed throughout the system, particularly in the direct election of the Senate by the voters in each State, and in the provision for amendment of the Constitution by a referendum at which a majority of the voters in a majority of States would be needed, in addition to the support of a majority of voters in the nation as a whole.

In this, and in numerous other more specific ways, the Australian founders gave effect to a particular form of federating logic, similar to the American (and the Swiss) federations, and somewhat different from the Canadian.  In particular, through the referendum, the constitutional logic of the Australian federal system appealed to a kind of political sovereignty in the plurality of peoples of the constituent States as a means of asserting as much autochthony as was possible without altogether repudiating the authority of the British Parliament to legislate for Australia.  Indeed, one of the powers conferred upon the Australian Parliament, acting (significantly) with the consent of all of the State Parliaments concerned, was a ‘catch-all’ or ‘residuary’ capacity to exercise the legislative powers of the British Parliament with respect to Australia (see Australian Constitution, s.51 (xxxviii)).  As Andrew Inglis Clark, one of Australia’s leading constitutional lawyers, said at the time: ‘[the draftsmen] knew what they were doing.  …  They told the Convention what they were doing, and it agreed with them.  …  They did not hold anything back.  They faced the position that they were going in for absolute legislative independence for Australia as far as it could possibly exist consistent with the power of the Imperial Parliament to legislate for the whole Empire when it chose’.

In the 1980s, the constitutional ties between the British Parliament and Australia and Canada were decisively brought to an end.  But within Australia at least, opinions about precisely when constitutional independence effectively occurred, and what it has amounted to, have turned, in part, on views about the referendum – both as the means by which the federal Constitution was first approved by the voters, and as the only regular means by which it can formally and legitimately be amended in the future.  The statutory confirmation of Australia’s constitutional independence from the U.K. in 1986 was in fact secured in two separate Australia Acts, one enacted by the British Parliament following Australia’s request and consent pursuant to the Statute of Westminster, the other enacted by the Australian Parliament following the consent of the State legislatures pursuant to s. 51(xxxviii) of the Constitution.  Which of these statutes is the actually effective one, and by what authority the Australian Constitution is now binding, have been questions that have intrigued constitutional lawyers in Australia ever since, and in the ensuing discussions, the existence of the referendum has played a central conceptual and normative role.

It is exactly in this sense that the use of referendums in the United Kingdom has the potential to be of very great significance.  The referendum, even if only used as an ‘indicative’ device, has the capacity to be much more than a means by which the popular will is ascertained.  Whether it will in fact do so depends on numerous political and legal factors.  The referenda that have accompanied the current devolution arrangements have not led to such a conclusion, of course, but that is a function of the limited nature of devolution itself.  The proposition asserted by the Scottish Parliament that it has the power to define and hold a referendum of the Scottish people on the question of independence, if it is upheld, has the potential to be interpreted not simply as an appeal to public opinion, but as an appeal to an alternative basis of ‘sovereignty’, in much the same way that the referendum has functioned in the Australian debate.  For, as the Australian experience shows, even if independence (or devo-max, or a federal system) is formally established by an Act of the Parliament, the existence of a referendum initiated by local authority can be interpreted as the basis upon which the whole system rests, permanently limiting, or even displacing, the authority of the Parliament.  To be sure, such a fundamental realignment will only occur if it has fairly general support among the political and legal branches of government, but it can happen.  And the fact that the ultimate grounds of the Australian and Canadian federal systems are still debated shows that these things can take a long time to work themselves out.

In any case, many steps would need to be taken before anything approaching a federal state in the contemporary Australian or Canadian senses could be said to have developed in the U.K.  And yet, there are several respects in which the current scheme of devolution is not all that far removed from the Canadian system as it existed in the second half of the nineteenth century.  While the details of both systems were to an extent negotiated between the parties, each scheme rested (or still rests) on British parliamentary enactment.  The powers of the centre also appear in both instances to be original and plenary, while the powers of the regions are conferred from the ‘centre’, or from ‘above’.  And both systems have been asymmetrical in respect of the powers devolved and/or the degree of regional representation in the central legislature.  Even the development of the Sewel Convention and various constitutional concordats between Westminster and Holyrood recalls the way in which the fundamentals of the Canadian system have evolved through intergovernmental negotiations and constitutional agreements in a way and to extent that simply has not occurred in Australia.  Moreover, the legal capacity to make ‘constitutional’ changes to the scheme in both the U.K. and Canada rests, or once upon a time rested, with the British Parliament.

What nonetheless distinguishes the U.K. from mainstream federal systems is the extent of the powers devolved, the way in which those powers are conferred and the grounds upon which they are conferred.  This is because the logic of devolution is fundamentally different.  Devolution works as a grant from a superior legislature to formally subordinate ones.  The Scotland Act 1998 thus affirms the continuing legal authority of the Parliament at Westminster to legislate for Scotland generally and confers on the Scottish Parliament what are in principle subordinate and limited powers.  However, contrary to the scheme envisaged by the Scotland Act of 1978, the Act of 1998 confers general legislative power subject to a (long) list of specified reservations.  Such a scheme presents questions of interpretation that are intriguingly different from those presented by either the Canadian or Australian federal systems, because in Canada the powers of the Provinces are limited to specific topics in a manner similar to that envisaged for Scotland in 1978, whereas in Australia, like the United States, the powers of the States are treated as original and plenary and the powers of the federation specified and limited.  Interesting, the majority of the U.K. Supreme Court in Martin and Miller v Lord Advocate, following a line of Privy Council decisions arising out of Canada, Ireland, and India, seems to have adopted a ‘pith and substance’ theory of characterisation, an approach which tends to open up consideration of the scope of legislative power distributed to both levels of government, instead of focussing attention on whether, simply and literally, a particular enactment can be characterised as having a minimally sufficient connection with a conferred competence.  This marks the British and Canadian approaches off from those which have shaped Australian and American jurisprudence, where the courts have tended to interpret the specific and formally limited powers conferred upon the federation in the widest terms possible and have found sufficient connections to federal heads of power in a manner quite contrary to the framer’s intentions and expectations.  And yet, even these jurisdictions, there have been strong dissenting voices.  Similarly, the highly complex constitutional structure established by the devolution statutes is capable of radically different interpretations based, ultimately, on competing conceptions of the U.K., as the divergent judgments in Martin and Miller intriguingly demonstrate.  Indeed, whether a purposive, ‘pith and substance’ approach will continue to hold in relation to the Scottish Parliament’s asserted power to define and hold the referendum is an interesting question which approaches a kind of petitio principii.  This is because the requisite connection between a Scottish Act and a reserved matter depends on the purpose and practical effect of the law, and such purpose and effect, it seems from Martin and Miller, must in some sense be ‘legal’ and not merely ‘political’; but a Holyrood enactment which authorised a referendum on Scottish independence would only have the effect of legally authorising the holding of the referendum, and would have no legal effect on the existence or terms of the Union – that is, unless one accepts the theory that such a Holyrood-initiated referendum, if answered in the affirmative, would be the expression of the legally-effective sovereign will of the Scottish people to separate from the U.K.  Thus, absurdly, a Holyrood-initiated referendum is legal if it is of no legal effect, and illegal if it has a legal effect.  This is what happens when we play logical games with Austinian sovereignty!  The established federal systems have had to learn to be very careful with such volatile substances.  Most political scientists today say that sovereignty – of either the states or the union – is simply the wrong way to think about federalism.

This brings us, finally, to the identity of the U.K. Parliament as both ‘central’ legislature and as ‘sovereign’ legislature – a point of profound difference from the Canadian, let alone the Australian and American, systems.  This is not quite the same thing as the ‘West Lothian’ problem, although the fact that non-English representatives vote on matters concerning England within the Westminster Parliament – ie, the corollary of the fact that England has no legislature of its own – is one of the consequences of the dual nature of the Parliament and the asymmetrical structure of the U.K. system.  Interestingly, the two functions fused within the one institution (‘central’ legislature and ‘sovereign’ legislature) makes the U.K. look more like what the Germans are accustomed to calling a zweigliedrig or two-tier system, rather than a dreigliedrig or three-tier system, noting that the former conception entails a highly centralised federal system, in which the ‘states’ are subordinate to the ‘federal’ level of government, rather than both the ‘states’ and the ‘federation’ being equally subject to the order of the ‘federal state’ as a whole, as defined by the constitution.  It is not necessary to buy into the metaphysics of German state-theory to see the point.  For the U.K. to become more like a federal state in the dreigliedrig sense, a way to separate the ‘central’ legislature and ‘sovereignty’ functions would have to be found, and the formation of a written British Constitution, resting on the authority of the peoples of the U.K., is one way in which this might be achieved.

In drawing attention to all of this – about the four large questions that would have to be addressed if the United Kingdom were to become a federal state, with comments along the way about the nature of devolution and the question of the referendum – I am conscious that this is all a matter of very lively political debate, and it is not my intention to take sides (in this short piece, at least!).  But I suggest that the American, Canadian and Australian examples (and many other ‘federal’ models besides) can at least help us think through what U.K. devolution is, what it is not, and what it might become.  And because a similar analysis can be undertaken of the practice of many of the member states of the European Union to make ratification of European treaties subject to referendum approval (including the U.K., especially since the European Union Act), such comparisons may also shed light on what the troubled European Union is and what it also might yet become.

Nicholas Aroney is Professor of Constitutional Law, The University of Queensland and Visitor, Centre for European Legal Studies, Cambridge University.


Filed under Australia, Canada, Comparative law, Scotland

Nick Barber: The Virtues of Advisory Referendums

The question of the capacity of the Scottish Parliament to hold an advisory referendum is one that has exercised contributors to this blog.  The dispute turns on a piece of statutory interpretation.  The law in question is found in section 29 of the Scotland Act 1998.  This states, in brief, that an Act of the Scottish Parliament is not law if it ‘relates to reserved matters’ (s.29(2)(b)), and this question must be answered by considering ‘the purpose of the provision, having regard (amongst other things) to its effect in all the circumstances’ (s.29(3)).  Turning to Schedule 5, we find that ‘the Union of the Kingdoms of Scotland and England’ falls within these reserved matters.

Those arguing that the Scottish Parliament does possess a power to hold a referendum contend that the referendum is advisory, and consequently would not ‘relate’ to the Union as the Union would continue, unaltered, after the vote. Those arguing the contrary view contend that the any referendum would, nevertheless, ‘relate’ to the Union as the future of the Union is the subject-matter of the vote.

This post does not revisit these textual questions, but instead reflects on the consequences for the Scottish Parliament if the Supreme Court found that it lacked the power to hold referendums of this type.  If the Scottish Parliament were denied the power to hold advisory referendums on matters that are reserved to Westminster, quite a large number of questions would be excluded from its jurisdiction.  To take a few examples from Schedule 5, a narrow interpretation of section 29 would bar advisory referendums on:

the state funding of political parties in Scotland;

the stationing of American troops on Scottish soil;

the legalisation of cannabis in Scotland;

the sale of hard-core pornography in Scotland;

the legality of animal experimentation in Scotland;

the construction of ‘mega-casinos’ in Scottish cities;

the building of nuclear power stations in Scotland;

the stationing of nuclear weapons on Scottish soil;

whether Scotland should be in the same time-zone as England.

One factor that the courts should consider when choosing between a broad and narrow reading of s.29 is whether there is any advantage in allowing the Scottish Parliament to hold referendums of this type.  If such referendums are useful, if they are a potentially valuable part of the devolution framework, this is an argument in favour of the broader interpretation.  If not, this is a consideration that weighs for a narrower reading.

Whilst the Scottish Parliament is a body of limited jurisdiction, and unable to unilaterally legislate on reserved matters, it does not follow that it is constitutionally barred from having an opinion on these matters, or even campaigning within the structures of the Union on these topics.  If, for example, MSPs were particularly concerned with the problems that arise from the criminalisation of cannabis in Scottish cities, it is hard to argue that it would be inappropriate for them to debate this question, order an inquiry into the issues raised, or even pass a resolution expressing their concerns.  Just because a matter is reserved does not mean that the Scottish Parliament cannot have its say.  The advisory referendum should be understood in this context.  It is a tool through which the Scottish Parliament can engage in a debate within the Union.  It enables the Scottish Parliament to ascertain the strength of feeling amongst the people of Scotland on an issue, and, by expressing that strength of feeling, place pressure on Westminster.  So, an advisory referendum on the legalisation of cannabis that showed support from the people of Scotland for a change in the law would provide a powerful card that could later be played in negotiations with Westminster.

Why should the legal structure of devolution allow an advisory referendum whilst denying the Scottish Parliament to alter the law in these areas?  Perhaps because they are areas in which any change – even a change that applied to Scotland but not the rest of the United Kingdom – would have implications beyond the borders of Scotland.  If Scotland legalised cannabis it would affect the availability of cannabis in England.  If Scotland banned nuclear weapons on its soil, it would change the configuration of the defence of the United Kingdom.  There are, then, good reasons why Scotland should be able to undertake ‘advisory’ referendums on these matters, but not enabled to decide them unilaterally.  The outcome of the subsequent negotiations with Westminster might not track the wishes expressed in the Scottish vote: the interests of all the peoples of the Union need to be considered.  Perhaps the end result of a referendum on cannabis would not be full decriminalisation.  Perhaps the product of the subsequent negotiation with Westminster would be that the drug could be prescribed in Scotland by doctors, or sold only by state bodies – or any one of a number of other compromise positions.

What about the arguments against giving the Scottish Parliament this power?  A case could be made that this is a waste of public resources, that referendums are expensive and time-consuming, and that the Scottish Parliament has other, cheaper, ways of making its feelings felt.  But these are considerations for the Scottish people, not for judges.  Using the constitutional device of a referendum brings with it two risks for the Scottish Parliament.  First, there is always the danger that the referendum will be lost, or that turn out will be so small that the point of the referendum is defeated.  A vote on the legalisation of cannabis in which a majority voted to keep the current prohibition in place would end the debate on the topic, at least for a time.  And if only a tiny portion of the electorate participated, a positive result would give the Scottish government very little leverage in Westminster: this would be a card of very low value.  Finally, of course, the Scottish Parliament is an elected body.  If the Scottish electorate decides that there are too many referendums being called, it can always vote out those who pushed for them.

Addendum:  Aileen McHarg has told me of an interesting parallel in local government law that provides a good illustration of the utility of advisory referendums. In 1994 Strathclyde Regional Council held a referendum over the privatization of Scottish water authorities.   The question of the privatization of water companies fell beyond the scope of the local authority; this was a decision for the national government.  There was a 71.5% turn out of which 97.2% voted against privatization – and water privatization was abandoned in Scotland.  The local authority was not empowered to decide the issue, but did have the power to use a referendum to articulate the views of its constituents and, as a result, to affect the decision of central government.

Andrew Le Sueur’s important recent post on the widening powers of local authorities might also be worth considering in this context.  The Localism Act 2011 accords local authorities very broad powers: these institutions can do anything that ‘individuals generally may do’.  This would seem to encompass holding referendums.  The restrictions of the Scotland Act do not – of course – apply to local authorities.  If a narrow reading of the Scotland Act were adopted by the Supreme Court, would this mean that Oxfordshire County Council could hold an advisory referendum on Scottish independence, but the Scottish Parliament could not?  This does not appear a very attractive conclusion.

Nick Barber is a Fellow of Trinity College, Oxford. 


Filed under Devolution, Scotland, UK government

Andrew Le Sueur: ‘Fun-loving guys’, government ‘doing anything that individuals do’ and the rule of law

In my administrative law lectures, I get students to practise an action that I explain ought to become instinctive in the minds of lawyers working for (or against) government. You extend your index finger and, in a sweeping movement, point to a law in the book in front of you, or on the library shelf, or on Westlaw, or wherever. As Mr Justice Laws said in Fewings, ‘For private persons, the rule is that you may do anything you choose which the law does not prohibit … But for public bodies the rule is opposite, and of another character altogether. It is that any action to be taken must be justified by positive law’.

Pointing at positive legal authorisation for an act of government is not always straightforward – and that is half the fun and challenge in studying administrative law. The ‘positive law’ may be implied; it may be unclear. The issue in Fewings was whether Somerset County Council could lawfully ban hunting on its own land (a decade before the Hunting Act 2004 put in place a national ban on hunting with dogs). There was some awkward scrabbling around for any statutory basis for local authority management of open spaces but the parties alighted on (and the judges agreed) that s 120(1)(b) of the Local Government Act 1972 was a good enough foundation, even though it was ostensibly about the acquisition rather than the on-going management of land for ‘the benefit, improvement or development of their area’. Laws J and the majority of the Court of Appeal held, for somewhat different reasons, that s 120(1)(b) did not enable a hunting ban on council-owned land. The council had mistakenly assumed it could act like a private landowner and had not applied its collective mind to the purposes or limits of the power conferred on it by s 120. The judgments were regarded as undemocratic by some.

Another complication in the finger pointing approach is s 111 of the Local Government Act, which gives local authorities ‘subsidiary powers’ to do anything ‘which is calculated to facilitate, or is or conducive or incidental to, the discharge of any of their functions’. This wriggle-room can’t be taken too far into things that are ‘incidental to the incidental’. If we had time in my lectures, we could go into the ‘wellbeing powers’ created by s 2 of the Local Government Act 2000 and the twists and turns that ensued from that.

My finger-pointing exercise will need a radical re-think for the 2012-13 academic year. Section 1 of the Localism Act 2011 came into force in February, several weeks earlier than anticipated as a government response to the High Court’s ruling that Bideford Town Council had no powers to allow Christian prayers to be said at the start of council meetings. Mr Justice Ouseley held ‘There is no specific statutory power to say prayers or to have any period of quiet reflection as part of the business of the Council’.

The situation is now different under s 1(1) of the 2011 Act, which says ‘A local authority has power to do anything that individuals generally may do’. This includes ‘power to do it anywhere in the United Kingdom or elsewhere’, ‘power to do it for a commercial purpose or otherwise for a charge, or without a charge’ and ‘power to do it for, or otherwise than for, the benefit of the authority, its area or persons resident or present in its area’ (s 1(4)). This general power ‘is not limited by the existence of any other power of the local authority which (to any extent) overlaps with the general power’ (s 1(5)).

At second reading of the bill that became the 2011 Act, Eric Pickles MP (Con), Secretary of State for Communities and Local Government, said:

‘The reason why the general power of competence is so important is that it turns the determination requirements on their head. All those fun-loving guys who are involved in offering legal advice to local authorities, who are basically conservative, will now have to err on the side of permissiveness. That is a substantial change …’.

The government believes that the formula used is judge-proof. Junior minister Andrew Stunell MP (Lib Dem) assured colleagues on the public bill committee ‘just how broad that power is’ and, thanks to subsections (5) and (6), the ‘courts will find it difficult – we have been advised that they will find it impossible – to unpick that’. Later he said, clarifying the intended reach of the new general power:

‘In the past, local authorities could only do things that were permitted to them by legislation. We are now inverting that and saying, “You can do anything that isn’t forbidden by legislation.” That does not mean that we are taking away the current forbidden territory and saying to authorities that they can go into the forbidden territory. It is not saying that they can abandon their statutory and legal duties that are imposed by existing legislation.’

The idea of a power of general competence (PGC) for local authorities is neither peculiarly English nor is it new.

For example, the pros and cons of a PGC were hotly debated a decade ago in New Zealand, where it was seen variously as a ‘coming of age’ for local authorities to be ‘responsive to local needs’ or ‘an unhindered invitation for small-minded politicians and bureaucrats to meddle and construct empires funded by the taxes of their passive citizens no longer protected by the check and balance that prescription provides’.

In England in 1967, the Maud committee report on the management of local government recommended a PGC. The report argued ‘ultra vires as it operates at present has a deleterious effect on local government because of the narrowness of the legislation governing local authorities’ activities. The specific nature of legislation discourages enterprise, handicaps development, robs the community of services which the local authority may render, and encourages too rigorous oversight by central government. It contributes excessive concern over legalities and fosters the ideas that the clerk should be a lawyer’ (para 283). Forty-three years on, similar sentiments led to the promise of a PGC as a promise in the Coalition Government’s agreed programme.

So far as I can see, the introduction of the PGC for local authorities has sparked very little constitutional concern or even interest in England. There was, for example, no report from the House of Lords Constitution Committee drawing attention to the implication of a PGC for the rule of law. Debate on the bill leading to the Localism Act 2011 was rarely couched in constitutional terms. Why so? I have two suggestions.

First, in the UK there is a general lack of interest in local government from a constitutional standpoint. This seems to be the first post on this blog focusing on local authorities. In law schools, local government has squeezed off the syllabus of most undergraduate public law courses degrees by the Human Rights Act, devolution and Europe. It’s also noteworthy that the House of Lords Constitution Committee has never tackled central-local relations, or local government in and of itself, in an inquiry.

Second, it is possible that the PGC is less constitutionally and legally significant than at first sight it appears to be. In 1967, Maud committee report did consider the constitutional implications of its recommendation to create a PGC. The report sought to reassure the ‘fun-loving guys’ in local government: ‘the modification we propose would not mean that local authorities would cease to be subject to the rule of law. The supremacy of Parliament is not in question. Nor are we advocating the abolition of the doctrine of ultra vires for local authorities would still have to work within the statutes. They would continue to have statutory duties and limitations imposed on them and permission powers granted to them, and their governmental and coercive powers would be regulated by law’ (para 284). Some commentators, looking at the version of a PGC contained in the Localism Act 2011, have sought to downplay the scope of councils’ room for manoeuvre. For example, Tim Kerr QC argues that ‘the usual public law constraints (rationality, relevant considerations, procedural fairness, disregard of irrelevant considerations)’ would apply ‘to exercise of the power of general competence, even though an “individual” in the private sphere is not subject to them’. Sections 2 and 3 of the 2011 Act also needs to be considered: the former defines ‘boundaries of the general power’ (in particular, that the PGC doesn’t override express prohibitions of local government action contained in the statute book) and the latter ‘limits on charge in exercise of general power’. To this can be added the controlling force of ‘constitutional legislation’ such as the Human Rights Act 1998 and the Equality Act 2010. Clearly, the 2011 Act does not do away with the idea the local authorities are creatures of statute subject to the constraints of ultra vires.

The truth of the matter is that we do not yet know what councils will do with the PGC. In June 2011, the House of Commons Communities and Local Government select committee, in their report on localism, called on the ‘Government work with the Local Government Association to set out examples of specific ways in which the general power of competence will enable local authorities to extend their role beyond that conferred by the well-being powers.

However the power is used something of significance affecting the rule of law has been brought about by s 1 of the Localism Act. As Laws J explained in Fewings, ‘The rule [that any action by a public body must be justified by positive law] is necessary in order to protect people from arbitrary interference by those set in power over them’. Section 1 is ‘positive law’ but of such breadth that it looks as if it will largely be down to the political constitution to shape its use; that, at least, is the Government’s goal. Whether a revitalised local politics is up to the job remains to be seen.

Andrew Le Sueur is Professor of Public Law at Queen Mary, University of London and co-convenor of the UK Constitutional Law Group.


Filed under England

David Mead: The Right To Protest Contained By Strasbourg: An Analysis of Austin v. UK & The Constitutional Pluralist Issues it Throws Up

The last few days have proved to be eventful for anyone interested in free speech and protest. First, Cambridge PhD student Owen Holland was rusticated for seven terms for reading out a poem that disrupted a speech being given by universities minister, David Willetts. Had this fallen to the magistrates, under say s.5 of the Public Order Act 1986, rather than to the university’s disciplinary “court”, it is hard to see how the sentence meted out would not have been significantly less. The case it most closely resembles is DPP v Percy where a conviction under s.5 was overturned by the Divisional Court. Mrs. Percy unfurled a banner onto the ground outside a USAF air base in Norfolk, proclaiming “Stop Star Wars” to great consternation of serving personnel. Hallet J concluded that the magistrates had paid too little attention to the defendant’s rights to freedom of speech under Article 10 of the ECHR. In fact, charges may never have been brought. Under the new guidelines for public protest, published last week by the CPS, it is far likelier he would not even have been prosecuted. Various factors point to the public interest not being served: the protest was peaceful and was essentially only a minor infringement – though militating factors against were that it was probably not instinctive or done in the heat of the moment. All of this is aside from the potential liability of the university, as a “public authority under s.6 of the Human Rights Act, imposing what by any standard was a disproportionate penalty.

The other, more significant, event was the decision by the European Court of Human Rights in Austin v UK. This was the challenge to the decision by the Metropolitan Police decision to “kettle”, or contain, a group of some several thousand at Oxford Circus during the May Day protests in 2001. The police, perceiving a risk of violence and disorder (which did eventuate), imposed a cordon under the common law power to keep the peace. The applicants – comprising one protester and three innocent bystanders caught up in the containment – lost their case in the House of Lords in 2009. Their Lordships held that the cordon, that lasted for up to seven hours, did not constitute a deprivation of liberty within Article 5 of the ECHR. That decision was subject to uniform critical comment (by David Feldman in the CLJ, by Helen Fenwick in Public Law and my own piece in the EHRLR), specifically the idiosyncratic reasoning that was – in our collective view – clearly out of line with the great weight of Convention jurisprudence. Those who followed the case through the domestic courts were convinced that Strasbourg would see legal sense and reject the idea, propounded largely by Lord Hope and Lord Neuberger, that issues of proportionality were relevant to the question whether Article 5 was even engaged. Previous case law determined it played a role only at a later stage, when it came to deciding whether any deprivation was arbitrary, and so unlawful.

Sadly, we were all mistaken. While the Court in Strasbourg did not adopt the analysis of the House of Lords wholesale there is in truth little to discern between the two. Strasbourg does not specifically advert to proportionality as being part and parcel of Article 5 at the engagement stage – and we must be grateful for that. Instead, because of its emphasis on considering the whole context in which the supposed deprivation occurred, the result is much the same. Certainly the analysis by the House of Lords, that intention and motive should be one of the factors in determining whether there had been a deprivation, comes to play centre stage at Strasbourg. Despite its view that “an underlying public interest motive…has no bearing on the question of whether that person had been deprived of their liberty” (para 58), the approach it then adopted – that the type and manner of containment and the general context – effectively did that. Where the police impose a cordon as the least intrusive and most effective means “to isolate and contain a crowd, in volatile and dangerous conditions” (para 66) that would not involve depriving someone of their liberty. If we temporarily put pure legal analysis to one side, it is hard not to see how being held for up to seven hours without access to food or water, without shelter or perhaps suitable clothing on a wet, windy day was not depriving someone of their liberty. In common sense terms, what more was needed?

While the Court was keen to highlight the specific and exceptional facts, it has promulgated – wittingly or not –  a revision of the scope of the guarantee contained in Article 5, something it was at pains to stress elsewhere as a fundamental human right. It is hard to see why, or how, the various traditional factors that have historically underpinned the Court’s analysis should suddenly come to encompass “the specific context and circumstances” (paras 59 and 60). Three points seem to be worth making. First, those traditional factors – type, duration, effects and manner of implementation – tend to be the ones that are either capable of objective determination or in fact are viewed from the perspective of the putative detainee. Nothing in the Court’s history indicates that we should view deprivation through the eyes of the state or putative captor. Neither does “type and manner of implementation” mean “context” as well (para 65). Secondly, one factor that swayed the Court was the analogy drawn with other “commonly occurring restrictions on movement”: containment of away fans after football matches or becoming trapped with nowhere to go after an accident on a motorway. These examples also informed the outcome in the House of Lords but do they stand up? Many football fans might well see themselves as having been deprived of their liberty. In any event, would an officious bystander not think that those “deprived” of liberty in those situations would be seen as implicitly consenting to such restrictions when they set off for the match or on their holidays? The same is far from true of those who are kettled, and certainly not those three applicants who were innocently caught up in the indiscriminate police action. Last, from a conceptual point of view, Strasbourg’s analysis is problematic. It places the burden of arguing that containment was not for public protection purposes or was for longer than necessary on the citizen. This is a reverse from the usual approach under the qualified articles 8-11.

The judgment in other parts speaks with a different voice: the Court noted of Articles 10 and 11, which did not form part of the applicants’ case, that “it must be underlined that measures of crowd control should not be used by national authorities directly or indirectly to stifle or discourage protest.” It is hard to square this with its decision on Article 5. As I have written elsewhere this edges us towards the hitherto unknown concept of an illegal gathering, dealing with protesters en masse based on suspicions of a few. This is clearly out of line with the well-known principle, stemming from Ezelin v France, that no one should lose their right to protest peacefully simply because others are violent.

Austin does not provide the police with a carte blanche to contain when it is no longer necessary in order to prevent serious injury or damage; the Court could not exclude “that the use of containment and crowd control techniques could, in particular circumstances, give rise to an unjustified deprivation of liberty in breach of Article 5§1”. That though provides little guidance for future development. If the Court is keen to preserve its subsidiary role, some better indicia for national courts and police would have been of greater assistance. Presumably those set out by Lord Neuberger in the House of Lords (at [57]) take on greater resonance? It is something of an irony that if the prescribed by law test were applied to the Court’s own judgments, many would be found wanting. This is no different: could an officer know with sufficient certainty as to foresee the consequences of imposing a cordon? It’s doubtful, surely?

The decision was not unanimous. There is much greater and sounder strength to the dissent of Judges Tulken, Spielmann and Garlicki. It is they, for example, who point out that in its decision two years before, Gillan v UK, the European Court seems to be firmly of the view (though it decided the case under Article 8) that a stop and search for no more than half an hour could well be enough to constitute a deprivation of liberty. It is hard to see how Austin could be distinguished, given the clearly greater coercion and (we must assume) similar feelings on the part of those contained that they were entirely deprived of the ability freely to move. It is the dissenting judges too who highlight that the decision – and its implication of context, proportionality and purpose – is not limited to pressing cases of public order such as those in the instant case. It would apply to all detention and incarceration claims unless in future the Court can be prevailed upon to see Austin as an exception. That simply means that the law as it stands is even more opaque.

There are entirely plausible reasons – though not necessarily good ones – for the holding in Austin but they point to wider (inter-)institutional concerns. The Court was betwixt Scylla and Charybdis. If they found for the applicants on what was in effect the preliminary question, and held that the kettling constituted a deprivation of liberty, the UK and so the police would have lost. None of the justifications in Article 5(1)(a)-(f) would have held up: there was no specific obligation that any of them needed to fulfil and neither was any being detained on suspicion of having committed a crime. It would necessarily mean that any operation for the policing of large-scale disorder and protest would have had the power to contain removed from its “toolkit”. Whether this is good or bad is not the point, though we might simply pause to note that the Toronto police have recently foresworn its use so there must be alternatives. The Court will not have been unaware of the recent public and political reaction following Othman v UK, holding that Abu Qatada could not be deported to Jordan. Interim, we have had the leaking of the Brighton Declaration on the future of the Court (discussed on this ‘blog by both Mark Elliott and Noreen O’Meara). Is it surprising then that the narrowing of protection in Austin arose at a time when the Court and its judges might feel under heavy threat from politicians in member states – and indeed from leading judges? It would explain why it felt it could (should?) depart from A v UK, the Belmarsh case in 2009, which the three dissenting judges highlighted. There, the Court stated (para 171) that it did not accept the Government’s argument that

Article 5 § 1 permits a balance to be struck between the individual’s right to liberty and the State’s interest in protecting its population from terrorist threat. This argument is inconsistent not only with the Court’s jurisprudence under sub-paragraph (f) but also with the principle that paragraphs (a) to (f) amount to an exhaustive list of exceptions and that only a narrow interpretation of these exceptions is compatible with the aims of Article 5. If detention does not fit within the confines of the paragraphs as interpreted by the Court, it cannot be made to fit by an appeal to the need to balance the interests of the State against those of the detainee.  

We see dotted around the judgment many references to the idea of deferring to national decision makers, in particular courts, and positively acknowledging the subsidiary nature of the Strasbourg institutions.

The problem though is this. Strasbourg has done the very thing that those on the Tory right, such as Dominic Raab, normally accuse it of when it rules in favour of applicants: illegitimately usurping democratic decision-makers and unjustifiable expansionism on a grand scale. Austin is very clearly a judgment predicated on its “living instrument” approach (see para 53), something decried by Raab in his Daily Telegraph piece, but with one eye on its reception. In Raab’s view “the Court’s judges [have] assumed the power to extend human rights into uncharted areas. Courts should interpret the law, but leave elected lawmakers to create it.” Aside from the fact that Austin is not an extension of human rights but a narrowing, all that is true here. There is no warrant in any previous decision for the balancing that the Court adopted. Indeed as is clear from A v UK, it flies in the face of precedent, such as it is at Strasbourg. Nor was there any need. As the three dissenting judges pointed out, as indeed did the applicants’ counsel, the drafters felt the correct balance between individual rights and community security had been struck by expressly limiting the purposes which a deprivation of liberty might legitimately pursue. The fact that holding against the UK would have thrown public order policing into disarray is no reason for what Raab would no doubt in any other context have called a “shifting of the goalposts” and “subverting democracy”. If proportionality and purpose were properly to be part of Article 5, shouldn’t that be a decision for Council ministers? Sauce for the goose indeed.

David Mead is a Senior Lecturer in Law at the UEA Law School. 


Filed under Human rights

Douglas Edlin: Executing the Laws

Lethal Force and Legal Process

According to Article II, Section 3 of the US Constitution, the President of the United States must “take care that the laws be faithfully executed.”  In a speech delivered earlier this month, Eric Holder, the Attorney General of the United States, offered a legal defense of actions taken by the United States government to kill American citizens living abroad who pose an imminent threat to US national security.  In the speech, Attorney General Holder explained the Obama Administration’s approach to the identification, detention, and prosecution of suspected terrorists.  Holder also explained that, in certain circumstances, the United States must use lethal force rather than the legal process to combat the threat of terrorism.  Here is a brief excerpt:

[J]ust as surely as we are a nation at war, we also are a nation of laws and values.  Even when under attack, our actions must always be grounded on the bedrock of the Constitution – and must always be consistent with statutes, court precedent, the rule of law and our founding ideals . . . Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces.  This is simply not accurate.  “Due process” and “judicial process” are not one and the same, particularly when it comes to national security.  The Constitution guarantees due process, not judicial process.

After reading this, my immediate thought was:  is that correct as a statement of US law?  And a thought that occurred to me shortly thereafter (with this blog and its readership in mind) was: would this be an accurate statement of UK law?

What Process is Due?

The fundamental requirements of due process are adequate notice and a fair hearing.  The US government may not deprive someone of his life, liberty, or property without first advising him of the claims against him and providing him an opportunity to defend against those claims before an impartial decision maker.

On this understanding of due process, a judicial hearing is not always required.  In the US, as in the UK, administrative agencies and other non-judicial bodies often conduct hearings in which competing claims are resolved and rights are enforced.  This satisfies due process in the absence of a judicial process.

But this does not really respond to Holder’s argument.  The question is whether the government can bypass a judicial process where an American citizen is suspected of “levying War” against the United States, or “in adhering to their [those of the United States] enemies, giving them Aid and Comfort.”  The problem for Holder is that Article III, Section 3 of the United States Constitution specifically anticipates the threat to national security posed by treason and explains how citizens suspected of treason must be treated by the government: “No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”

The reference to “open court” in Article III, Section 3 seems to indicate that the process that is due to a citizen accused of treason is a judicial process.  It is a hearing in court.  The reference to a person being “convicted of treason” (and the placement of this language in Article III) establishes this as a power held solely by the judiciary.  In fact, in Marbury v. Madison, Chief Justice John Marshall noted that this specific “language of the constitution is addressed especially to the courts.”  The courts alone have the power to convict defendants of crimes, and treason is the only crime defined by the US Constitution.

This reading is consistent with the US Supreme Court’s decision in Hamdi v. Rumsfeld, 542 U.S. 507 (2004).  In Hamdi, the US government claimed the authority to detain US citizens indefinitely without a hearing.  Although the majority and dissenting justices disagreed about the specifics of the process, they agreed that, at a minimum, due process required the government to give Hamdi notice of its claims against him and an opportunity to contest these claims before “a neutral decisionmaker.”  The majority believed that this neutral decision maker could be a military tribunal or a federal court.  In dissent, Justice Scalia (possibly the most ideologically conservative member of the Court at this time) and Justice Stevens (perhaps the most liberal) concluded that only a federal court hearing would meet the requirements of the Constitution:

“Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime . . . The gist of the Due Process Clause, as understood at the founding and since, was to force the Government to follow those common-law procedures traditionally deemed necessary before depriving a person of life, liberty, or property.”

Holder’s claim that the US government may kill a US citizen in the absence of any judicial process seems inconsistent with his reassurances that the United States government may act, even in the fighting of a war, only in a manner consistent with “the rule of law and our founding ideals.”  In her opinion for the plurality in Hamdi, Justice O’Connor was careful to emphasize that “it is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.”  Justices Scalia and Stevens expressed their understanding of the relationship between the rule of law and the founding ideals of the US in this way: “The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.”

The Hamdi Court held that the US government cannot unilaterally and indefinitely detain a US citizen.  Some judicial process is required to ensure that the requirements of due process are maintained when the US government deprives someone of his liberty.  It would seem that the same process would be needed when the US government intends to deprive a US citizen of his life.

Traitors pose a unique threat, but not an unanticipated one.  In their rejection of shared values and in their access to protected locations and information, their betrayal undermines the security of our lives and our beliefs.  These threats were well known to the authors of the US Constitution.  That is why the language of Article III, Section 3 exists.

A Shared Tradition

In adverting to “our constitutional tradition” in Hamdi, Justice Scalia was referring quite specifically to the Anglo-American constitutional tradition.  The language of Article III, Section 3 itself is adapted from the Treason Act of 1351 (levying war, adhering to enemies, and giving them aid and comfort) and the Treason Act of 1695 (requiring a trial and the evidence of two witnesses to the same act).  In his Hamdi opinion, Justice Scalia includes references to the Statute of Treasons, the Habeas Corpus Act of 1679, and several English cases from the seventeenth and eighteenth centuries.

Is Justice Scalia’s understanding of our constitutional tradition accurate?  If Eric Holder were speaking about British policy, would due process require a judicial process in the UK?  I think the answer is yes.

The argument has been made frequently since 11 September 2001, at least in the US, that evidence of potential terrorist threats may be extracted from detainees through torture (or “enhanced interrogation,” or “degrading treatment,” or whatever one may choose to call it).  In the UK, the courts have refused to accept this argument.  In A v. Sec. of State for the Home Dept. (No. 2), [2005] UKHL 71, the House of Lords reaffirmed the common law prohibition against the use in court of any evidence obtained by torture.

Even more recently, in R (on the application of Mohamed) v. Sec. of State for Foreign and Commonwealth Affairs (No. 2), [2011] QB 218, the Court of Appeal was asked to consider the scope of the prohibition against torture in relation to the principle of “open justice.”  As Justice Scalia did in Hamdi, the Court of Appeal referred to “our shared traditions.”  In Mohamed, the Court was particularly concerned with a court’s obligation to explain the reasons for its decision:

“The public must be able to enter any court to see that justice is being done in that court, by a tribunal conscientiously doing its best to do justice according to law . . . [T]he principle of open justice represents an element of democratic accountability, and the vigorous manifestation of the principle of freedom of expression.  Ultimately it supports the rule of law itself.  Where the court is satisfied that the executive has misconducted itself . . . all these strands, democratic accountability, freedom of expression, and the rule of law are closely engaged.”

If Holder were describing British policy, it seems almost inarguable that due process would require some judicial involvement.  As with Hamdi and detention, if the rule of law and British constitutional principles prohibit the British government from torturing individuals suspected of terrorism (or using evidence obtained through torture against suspects), it is difficult to imagine that those same constitutional principles could permit the British government to kill individuals suspected of terrorism without any legal accountability in a judicial forum.

Where an individual claims that the government has violated his fundamental rights, due process requires a judicial process.  The notion that the government may violate the law in the course of executing the law – whether that is in the detention of suspects, the use of torture to obtain evidence, or the summary execution of criminals – fundamentally contradicts the principle that the government is limited by the law.  In our shared constitutional tradition, claims that the executive has violated the law are heard in court:

[T]he English conception of the rule of law requires the legality of virtually all governmental decisions affecting the individual to be subject to the scrutiny of the ordinary courts . . . The rule of law rightly requires that certain decisions, of which the paradigm examples are findings of breaches of the criminal law and adjudications as to private rights, should be entrusted to the judicial branch of government.  This basic principle does not yield to utilitarian arguments that it would be cheaper or more efficient to have these matters decided by administrators.  (Begum v. Tower Hamlets London Borough Council, [2003] UKHL 5, per Lord Hoffmann)

 The question remains whether and how the UK and US governments can protect their citizens by pursuing terrorist elements and threats in a manner that is consistent with our constitutional tradition.  Maybe it is more difficult for constitutional democracies to fight terrorists.  Maybe that is because what we are fighting for actually makes the fighting more difficult.

Traitors and Terrorists

Benedict Arnold received a trial.  So did Guy Fawkes.  So did John Walker Lindh.

According to Nils Melzer, Targeted Killing in International Law, Britain shifted its police policy after 11 September 2001 to a “shoot-to-kill” approach in certain instances of imminent threats of terrorist violence.  Of course, this is quite different from drone attacks against citizens on foreign soil.  The tragic shooting of Jean Charles de Menezes can be distinguished from the killing of Anwar al-Awlaki in many ways.  One distinction is that al-Awlaki was a US citizen and de Menezes was not a British citizen.  A second distinction is that de Menezes was killed on British soil and al-Awlaki was killed in Yemen.  And another distinction is the activity each man was engaged in immediately prior to his death.  The challenge is to decide which distinctions matter, and which do not, when considering how the UK and the US can combat terrorism without allowing the rule of law to become a casualty of that war.

It is easy for the government to say that it cannot wait when a terrorist is located.  It must act before that individual escapes from view and has the opportunity to plan or carry out an attack against the UK or the US.  It is easy for the government to say that it cannot conduct a trial of a citizen who has taken up arms against his nation.  It has to fight the war first.  But if the threat of terrorism means that the goal must be killing a citizen rather than trying him, even though trying him is what we have done in the past, the principles of law must still control the government.  Not just the principles of the law of war, but the principles of the law of the constitution.  There must be a process by which the rights of that person are considered along with his military value as a target.

This might not be as daunting as it seems.  The judges of the US Foreign Intelligence Surveillance Court have for decades reviewed ex parte requests by the government for permission (or occasionally retroactive approval) to conduct covert surveillance operations in the US.  Congress could create a separate court similar in composition and procedure to the FISC, or amend the Foreign Intelligence Surveillance Act to empower the FISC itself, to permit expedited review of government requests to engage in targeted killing.  The court would be able to review the basis for the government’s claims of imminent threat, the target’s involvement, and satisfaction of the principles of necessity, distinction, proportionality, and humanity, which govern the use of force in war (and which Holder discussed in his speech).  Although this would not provide the traditional judicial hearing envisioned by due process, it would provide judicial involvement in determining the legality of the government’s actions as well as some independent consideration of the rights and interests of the individual involved.

In his speech, Holder claimed that the US will not target one of its citizens without first engaging in “a thorough and careful review.”  Holder also said that the President is not “required to get permission from a federal court before taking action.”  But when the action the President is contemplating is intended to take the life of an American citizen, the Constitution prohibits the government from taking that action without due process.  And in the famous phrase of Justice Brandeis in Crowell v. Benson, 285 U.S. 22 (1932):  “under certain circumstances, the constitutional requirement of due process is a requirement of judicial process.”  The government’s first effort should always be to capture a citizen warring against his nation, and to try him in court, for treason or another crime.  Where that truly is not an option, however, an alternative judicial process, such as the FISC, must be invoked to ensure that lethal force is never substituted for legal process by a government limited by law.

The United Kingdom and the United States must be able to defend themselves from the threats of terrorism, and from the threats of treason.  However unprecedented the threats of terrorism may be, the threats of treason are not new.  For hundreds of years, the UK and the US have used judicial processes to try those accused of betraying their nation.  In a nation of laws and values, it seems impossible to reconcile indefinite detention and torture with due process.  There may be a need for targeted killing.  But a nation cannot defend its principles by violating them.  The shared tradition of the UK and the US requires some judicial process by which the actions of the executive in conducting the war on terrorism may be evaluated according to the principles of Anglo-American constitutionalism.

Douglas Edlin is an Associate Professor and Chair at the Department of Political Science, Dickinson College, Carlisle, Pennsylvania.


Filed under America, Comparative law, Human rights

Colin Harvey: Engaging With Human Rights in a Disunited Kingdom

The world is saturated with the normative discourse of rights. Rights-talk is to be found almost everywhere; in sugary political speeches, in legal texts, and in the pleas of those experiencing abuse and those advocating on their behalf. Complex societies become ever more fractured as enclosed language games provide a basis for professional progression and advancement of a field; as well as legal and political mobilisation.  Our wordplay and our transnational networks co-exist with shameful levels of inequality, barbarism and brutality. We know it.  We watch it happen. We keep talking about human rights.

That modernity binds both sides together is old news; the 20th century demonstrated the capacity of humanity to reach remarkable heights, as we butchered each other along the way. Understanding the flawed humanity enthroned within human rights seems just as urgent as pressing hard on the potential normative force of personhood. The human within human rights contains all the wonderful, strange, sad, destructive and contradictory tendencies that make our short lives so intriguing. When we struggle for human rights we surely know this. No one wishes to inhabit a world of dull and cramped uniformity.

For all the complexities it remains plausible to assert that although we arrive into a world not of our making, carrying all the inherited limitations of our species,  we have it within each of us, and in solidarity with others, to resolve many of the problems we face. We know enough still to believe that collectively determined action in the world is possible. No human person alive today need live a less than fully human life. If she does, we – as a species – have made it so. How taunting then the surplus of norms must seem, how ripe for future condemnation we are?

Why indulge in such lacerating critique? It is to make a simple point: a commitment to human rights is not ethically neutral, and this engaged perspective should be deployed against forms of legalism that risk suffocating the critical resources of the subject. To insist on human rights brings substantive political and legal consequences, and a basis for assessing practical action. The outcomes will depend on how rights are conceptualised, and there is no easy way to duck declared forms of commitment.

It may not seem like it, but this is of relevance when thinking critically about the Bill of Rights discussions in the UK.

First, the debate is not usefully considered in isolation from political context. Those who wish to know what a Bill of Rights worth that title looks like should be enlightened. But there is little value in pretending that those historically hostile to the aspirations of the global human rights movements have suddenly been converted to the cause. No amount of sunny verbiage about a British Bill of Rights can mask the grubbier political realities. A war against the ambitions of the global rights movement can be conducted within the discourse itself. Everyone believes in human rights now, but what sort of rights culture do you hold to? A constant effort is required to ensure a justifiable conception is promoted and defended. These are interpretative battles with worldly consequences.

Second, from a critical human rights perspective let’s be provocative: worship of one piece of legislation (the Human Rights Act 1998) does not seem that persuasive either. Whether a ‘constitutional measure’ or not it is still a grounded form of law.  The literature is impressive. The Act continues to have a positive impact, often in situations that do not make headlines. Empirical work is ongoing. Whatever the evidence suggests, the worry is that lines are now drawn; on occasion in contrast to what that evidence demonstrates. The constitutional significance of the Act will always confront its direct political heritage. Churchill can be cited as a reminder of the Convention’s origins. The ‘Britishness’ of the law can be defended and rehearsed ad nauseam. The historic cross-party noises in support of bills of rights can be dusted off. But this will, to many people, always be a New Labour legacy (either positively or negatively depending on your party politics). A contextual assessment of the Human Rights Act 1998 cannot dodge the long-term strategic question of whether this is the end for rights in the UK, and should not sidestep the political realities of its achievement.

Third, the voices that historically propel the human rights movement forward are prone to be rendered invisible by forms of narrow legalism. Hope is often invested in the promise of closure that a significant legal judgment can bring. The notion of the last word in bounded time feeds a worldly desire for decisions that is effectively absorbed into the concept of the rule of law. The idea that we might well be in a conversation without end – even over the contested meaning of established norms –  can cause either despair or offer a spur to action. As political constructs erect hierarchies of interpretation to limit the damage, the discourse of human rights imports a tension that cannot be removed; the door will continue to remain slightly ajar. To talk of who has the last word in historical time is rendered meaningless within such a conception of political and legal life. There will be moments of decision, but there will be a going on with human rights as a path that seeks to always comprehend the person first over all and every human construct.

Finally, new constitutional configurations are emerging across these islands. There will be those who seek to instil fearfulness around these trends. From a rights perspective the challenges and opportunities can be embraced. The potential is there for a dialogue among equals to open up public space for a less defensive engagement on how we might promote and protect human rights, and thus show leadership in our age of anxiety and hope.  The outcomes are not pre-determined; those who sow seeds of mistrust can also prosper. It is thus necessary to be open to post-devolutionary experiments in rights protection. The risk is that human rights are submerged in an insecure wave of political unionism. The creativity and energy of the human rights movement should not be undermined even by notionally progressive forms of political and legal unionism in the UK. Such an approach would bury a global movement in the rubble of a partial and frequently distorted ‘national/nationalist’ conversation.

These may all be irrelevant reflections, a distraction. The purpose here is just to pause to consider why we engage with human rights. Setting aside the often bewildering nature of personal motivations (that human again in human rights), we must do this work at some level because we feel profoundly uncomfortable with the world we are in, and thus wish to change it – in the time we have – using whatever forms available: political, cultural, social, economic, and even legal. The risk, it seems to me, is to mistake the contested tools for the contested objectives, and thus forget the ethical imperatives silently pressing us on.  That we are re-enacting the arguments of centuries is no reason for despair or retreat. All those who suffer now, and those silenced brutally in historical time, provide all the foundations necessary to keep going on. To keep talking about the best conceptions of human rights, and insisting on practical realisation.

Colin Harvey is Professor of Human Rights Law at Queen’s University Belfast.

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Filed under Constitutional reform, Human rights