Monthly Archives: February 2014

Janet McLean: Hard power but soft law: second thoughts about the third source?

Janet McLeanDoes government have the power of an ordinary person, to do that which is not prohibited? Two recent cases, one from UK and one from NZ, raise this question and suggest it needs re-examining.

In the UK, statute deals with the requirements to be satisfied by international students applying to enter or remain under its migrant points system. Rules made under the statute must be laid before Parliament. Government “guidance” requires that student migrants must be sponsored by an educational institution holding a sponsor’s licence and sets out the requirements that educational institutions must satisfy in order to qualify for such a licence. The “guidance” is not laid before Parliament, and is frequently changed without notice.  An institution which loses its licence, and hence all of its international students and most of its business, attempts unsuccessfully to challenge the guidance.  In the UK Supreme Court, Lord Sumption (with whom Lords Hope, Clarke and Reed agreed) suggested that the “guidance”, though mandatory in part, had no necessary statutory or prerogative underpinning [28]. The publication of guidance does not require statutory authority and can be an exercise of the residual freedom government has to do anything an ordinary person can do which is not prohibited by law (R (on the application of New London College Ltd) v Secretary of State for the Home Department [2013] UKSC 51. Lord Carnwath disagreed, denying the existence of any authority for such a proposition and finding the impugned powers to be wholly derived from statute.

Highly controversial emergency powers are granted by an Act of Parliament (Canterbury Earthquake Recovery Act 2011) to assist in New Zealand’s recovery from the Canterbury Earthquake. These allow for the formulation of a recovery plan after formal consultation and hearings and the suspension of the usual planning laws after a notification procedure. The Minister issues “information” about different zones to which different compensation criteria apply without invoking the procedures required by the statute. This is treated by the New Zealand Court of Appeal (Ministry for Canterbury Earthquake Recovery v Fowler Investments [2013] NZCA 588 (Quake Outcasts case)) as an exercise of the residual power government has to do anything that is not prohibited by law. The “information” that a building is in a Red Zone and that a particular compensation package will apply is treated as not affecting the rights and liberties of property owners.  Being in the Red Zone does not of itself prohibit building or the granting of a building consent, prohibit residents from living there or require the demolition or repair of houses (the Court of Appeal affirmed here the High Court ruling in O’Loughlin v Tower Insurance [2013] NZHC 670). And yet, the Court of Appeal accepted that the Crown was pursuing a clearance programme to remove all buildings and improvements from Red Zone land, followed by the removal of infrastructure. The practical effect of the creation of the Red Zone and the terms of the compensation offer has been the exit of most residents from the area “leaving those who remain in a very difficult and unattractive position” [104].

In both cases the guidance has important practical consequences for the claimants but is treated as having no legal effect on the claimants’ rights and liberties. Both cases raise again the controversial question of the extent to which the government enjoys residual, “third source”, or ordinary law power, and if so what should be the appropriate legal controls on the scope and exercise of such power. And both raise the issue of whether we need to rethink judicial review doctrines in the light of new techniques of governance (see recently K Yeung, “Better Regulation, Administrative Sanctions and Constitutional Values” (2013) 33 Legal Studies 312-339).

These cases are examples of the informal “soft law” interventions favoured by the “better regulation” movement. In regulatory terms the New London College case concerns the co-option of educational institutions as private regulators engaged in the implementation of government policy. It is private institutions which must verify the seriousness of students’ study plans, their financial resources and their ability to follow their chosen course – with the incentive that their licence depends on it.  The guidance allows for different conditions to be placed on different institutions depending on whether they have “Highly Trusted” Status.   The Quake Outcasts case also involves the use of “soft power” – in the form of financial incentives rather than formal zoning laws. It leaves matters to be determined by individualised regulatory negotiations. These techniques are only “soft” in relation to the instruments they use rather than in their practical effects.

Lord Sumption in New London College admits that  the formal law is not a good fit with the regulatory framework: “the Immigration Act 1971 has not aged well” [1].  He helpfully raises the question of whether the idea that the government has the same residual powers as a natural person “is really apt in the case of public or governmental action, as opposed to purely managerial acts of a kind that any natural person could do, such as making contracts, acquiring or disposing of property, hiring and firing staff and the like” [28]. This distinction between “ordinary” and “governmental” powers sounds promising – especially given that judges tend instinctively to resist the imposition of public law controls on the “ordinary law of contract”. Such an approach would leave “ordinary contract law” relatively “untouched”. Even then the line may sometimes be hard to draw – would the acquisition of property in the Red Zone be more governmental (in pursuit of a government clearance programme) or managerial (a simple purchase)? He did not need to resolve the question in this case because he thought that there would be ancillary power to issue the guidance under the statute in any event.

The appellants in New College were challenging the existence of the power to issue guidance. They do not appear to have addressed the issue of whether the manner of the exercise of the power could be the subject of judicial review. A challenge to the way in which the power had been exercised may have been more useful in assisting them to recover their sponsor licence or obtain Highly Trusted Status. The New Zealand Court of Appeal did allow for the possibility that the exercise of residual freedom could be reviewable on reasonableness or rationality grounds [81] but it did not need to decide the point. (It left intact the declaratory relief awarded to the claimants in the High Court given on another basis.) The New Zealand Court of Appeal’s approach is surely the correct one. The availability of judicial review should not depend on the regulatory techniques chosen by governments in order to pursue their policies.

These issues are unlikely to go away any time soon. The regulatory theorists and the black letter lawyers need to engage in a better dialogue if we are to have a chance to resolve them.

Janet McLean is a Professor of Law at the University of Auckland.

 (Suggested citation: J. McLean, ‘Hard power but soft law: second thoughts about the third source?’ U.K. Const. L. Blog (27th February 2014) (available at http://ukconstitutionallaw.org/).

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Stephen Tierney: Why is Scottish Independence Unclear?

stierneyAs commentators we seem to end many of our contributions to the independence debate with the rather unhelpful conclusion that much remains, and will continue to remain, uncertain; a state of affairs accentuated by recent comments on the prospect of currency union and EU membership. This must frustrate those hardy souls who read to the end of our blogs seeking enlightenment. Perhaps then we owe readers an explanation as to why it is so hard to offer a clear picture of how an independent Scotland will be brought about and what it would look like.

In trying to envisage life after a Yes vote it is natural to begin with the Scottish Government’s White Paper published in November 2013 which, at 648 pages, cannot be accused of failing to set out the SNP’s broad vision for independence. But for several reasons we must treat this only as the start of our quest and certainly not as a definitive template for a new Scottish state.

Here are some reasons why:

1. The White Paper is selective

The White Paper is certainly comprehensive but inevitably offers if not a Panglossian then at least an optimistic picture of the future, using evidence that supports the Scottish Government’s case for economic success and relatively easy transition to statehood. Inevitably many of these claims have been subject to contestation, and since they are dependent upon varying circumstances and the cooperation of other actors, not least the UK Government, they cannot be taken to be the last word on independence.

2. Are we sure there will be negotiations?

This is surely the easiest question to answer. The White Paper not unreasonably assumes a process of mutually cooperative negotiations given the Edinburgh Agreement in which the UK and Scottish governments undertook ‘to work together constructively in the light of the outcome, whatever it is, in the best interests of the people of Scotland and of the rest of the United Kingdom.’ This has recently been restated by a UK Government minister. It can also reasonably be assumed that despite the bluster of the referendum campaign it will be in the interests of the UK to build a constructive relationship with its near neighbour. But there are still many unknowns concerning the negotiation process and its possible outcomes.

3. Who will negotiate?

On the one hand we would expect the Scottish Government to take the lead for Scotland. But let’s not forget the Yes campaign is a broader church than simply the SNP, and different contributors to this, such as the Green Party, will have their own agendas which they would seek to advance in negotiations with the UK. Furthermore, in the White Paper the Scottish Government announced that it ‘will invite representatives from the other parties in the Scottish Parliament, together with representatives of Scottish civic society, to join the Government in negotiating the independence settlement.’ (para 2.7) Who might take part, what influence would these other actors have, and how might their influence re-shape the negotiations? Also, on the UK side different uncertainties present themselves. We assume the UK Government will negotiate for the UK, but with a general election in May 2015 a new government may take a different view of the negotiation process.

4. What if negotiations break down?

An unlikely scenario but one which does add more uncertainty to the mix is the possibility of failure of these negotiations to result in agreement. If negotiations do indeed break down, what then: a unilateral declaration of independence? This possibility has rarely been considered within the Scottish debate but it would raise a new set of issues regarding both the terms of separation between Scotland and the UK, at which point international law would provide some guidance as to the default position, and for Scotland’s status internationally.

5. Will there be a deal?

We can expect a deal at the end, but in light of the ‘personnel’ issues considered at point 3 the terms of any negotiated deal are hard to predict. How many of the goals to which it aspires in the White Paper will the Scottish Government achieve, and on which issues will it have to compromise, not only with the UK but with other parties to the negotiations on the Scottish side?

6. Surely experts can predict the outcome of negotiations?

Given that a UDI is highly unlikely, as commentators we can reasonably focus upon the terms of negotiations, but here voters must be struck by how we suffix our references to the most likely outcomes by restating how many variables are at work. It is no surprise that on the various issues at stake experts will reasonably disagree about different scenarios. As commentators we also have a duty not to enter the debate in a polemical way, using expert knowledge to advance the cause of one particular side. It is important to remain objective, presenting the evidence for the different sides of each argument as best we can.

7. Clarity and simplicity are not synonyms

The subject matter for negotiations could scarcely be more complex – disentangling a state with a highly integrated advanced economy. So many issues will need to addressed together that even listing the topics to be dealt with is a difficult, and inevitably an incomplete, task: the economy, the currency, debt, welfare, pensions, oil and gas, higher education, the environment, defence, the European Union, security and intelligence, borders, citizenship, broadcasting etc. etc. Issues surrounding each of these issues will have to be negotiated. Therefore, there is reasonable disagreement among commentators about the nature of the competence which an independent Scotland would acquire in relation to each of these, and as to the prospects for some degree of on-going cooperation or union with the UK in relation to each area of competence. And even if we commentators can reach some kind of consensus about a particular issue taken in isolation we need to factor in that each is a potential bargaining chip in negotiations. There may well be trade-offs which see some aspects of the Scottish Government’s preferred model of independence subject to compromise in return for other gains.

8. It’s politics, stupid

What would make things clearer? Well the obvious solution to a lot of uncertainty would be agreement between the two governments on a range of issues ahead of the referendum. The Electoral Commission (paras 5.41-5.44) has recommended ‘that both Governments should agree a joint position, if possible, so that voters have access to agreed information about what would follow the referendum. The alternative – two different explanations – could cause confusion for voters rather than make things clearer.’

But this is not going to happen. Uncertainty among voters is an important card for the Better Together campaign. It is simply not in the political interests of the UK Government to work with the Scottish Government to clarify possible negotiation outcomes. And in any case it may not be in the interests of the Scottish Government either should such pre-referendum discussions result in stalemate, thereby serving only to heighten rather than diminish uncertainty before the vote.

9. After independence: designing Scotland’s constitution

Even if negotiations are concluded and independence formally endorsed we will not have a final picture of Scotland’s constitutional future. Scotland will not at that stage have a constitution. According to the White Paper there will be an interim period during which some form of transitional arrangement will be needed. There will then be a Scottish parliamentary election in May 2016, and only after this, according to the White Paper, will a constitutional convention be established to draft a constitution. So many of the proposals set out in the White Paper concerning Scotland’s constitution are contingent upon how this convention is established, how it will draft a constitution, what this will contain, and how it will be ratified (i.e. will it be approved by the Scottish Parliament or by way of another referendum).

And what would the institutions of government in an independent Scotland look like: will the Queen be head of state? Will there be a one chamber or two chamber parliament? Will Scotland have a new constitutional court? The Scottish Government has views on these issues but also accepts they will be for the constitutional convention to determine. And what institutional arrangements would be needed to maintain areas of cooperation or union with the UK? All of these issues will remain to be settled.

10. It takes three to tango

And of course the foregoing issues focus upon Scotland’s relationship with the UK. What of Scotland’s external relations? Issues such as state recognition; succession to international rights, obligations and treaties; and membership of international organisations, all remain to be fully worked out. And most crucially, the European Union presents two huge issues. The first is how Scotland will be admitted to membership, something which remains a focus for debate, not helped by the bizarre interventions of senior EU politicians. The second issue is surely much more salient and the source of more reasonable disagreement, namely the terms of such admission.

11. What is ‘independence’ anyway?

All of these questions raise a larger issue, namely the heavily integrated nature of the modern nation-state and the web of international relations which bind states within Europe. As the details of the Scottish Government’s proposed model of independence emerge, for example in relation to the currency, what is envisaged is in fact the continuation of important relationships with the UK as well as new and close relations with international partners. But clarity on these points is obscured by campaign gaming. The Yes side is reluctant to voice these aspirations in detail since this will invite the ‘we will never agree to that’ response which we have seen in relation to currency union. This will inevitably mean that much of the detail of what the Scottish Government aspires to will most likely remain unstated at the time of the referendum. The challenge for voters then is a broader one: it concerns how they understand the very meaning of statehood and sovereignty in today’s Europe. The reality today is that any new state emerging from within the EU and intending to remain within the EU will, by definition, instantiate a novel form of statehood which delivers independence but not separation. This, a unique state of affairs, is the factor which poses the deepest analytical challenges to political actors, to constitutional theorists and practitioners, and, since a referendum is the mechanism assigned to determine such an outcome, ultimately to voters.

Is there any point in expert commentary?

Yes of course. There are many technical issues which can be clarified. This will not fully explain how Scottish negotiations will go with either London or Brussels but it can make clearer the issues which will be subject to negotiation.

Secondly, much of the uncertainty stems from the political positions of the two sides: Better Together which does not want to suggest negotiations will go smoothly for the Scottish Government; Yes Scotland which claims that they will. However, the UK Government’s position following the hard reality of a Yes vote is likely to be significantly different from that as stated in the heat of the referendum campaign. Again academics must try to disentangle these two different positions. At the same time they can probe the viability of the claims made by the Scottish Government in its White Paper.

In the end some kind of bigger picture may emerge, albeit through a glass darkly. People when they vote will do so with two rival visions of the future in mind. These will not be perfect predictions of what either an independent Scotland or an on-going UK (we must also remember that a No vote also carries many uncertainties concerning the future) will look like in 1, 5 or 10 years’ time, but they will need to make sense to the people casting their votes. As commentators, all we can do is try to offer some objective guidance so that these visions bear closer resemblance to reality than they otherwise might. A modest aim maybe, but no one ever said constitutional change was simple.

Stephen Tierney is a Professor of Constitutional Theory at the University of Edinburgh and Director of the Edinburgh Centre for Constitutional Law.  He is currently ESRC Senior Research Fellow under the Future of the UK and Scotland programme

Suggested citation: S. Tierney, ‘Why is Scottish Independence Unclear?’ U.K. Const. L. Blog (25th February 2014) (available at: http://ukconstitutionallaw.org/).

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Filed under Constitutional reform, Devolution, European Union, Scotland, UK Parliament

Thomas Adams: Wade’s Factortame

Thomas CarterWilliam Wade’s analysis of the second Factortame case ((1996) 112 Law Quarterly Review 568) is well known, and justly so. The facts, too, require little in the way of rehearsal.  Briefly, and simplifying somewhat: the House of Lords, as it was then known, decided in 1990 to ‘disapply’ a 1988 statute of the UK Parliament – the Merchant Shipping Act (hereafter the MSA) – which may otherwise have frustrated the exercise of rights recognized in EU law, specifically, the rights of a number of Spanish fishermen to trawl in UK waters. In doing so, the court took itself to be acting under the auspices of the European Communities Act 1972 (hereafter the ECA), itself an Act of Parliament. The ECA provides, by section 2 (4), that European Union Law is to prevail over inconsistent Acts of Parliament ‘passed or to be passed’. Wade’s view was that, in ‘disapplying’ the 1988 Act, the House of Lords altered the fundamental rule of recognition in UK law and thereby affected a technical legal ‘revolution’, one which all but overthrew the doctrine of Parliamentary Sovereignty:

‘When in the second Factortame case the House of Lords [refused to apply the MSA] it was natural to suppose that something drastic had happened to the traditional doctrine of Parliamentary sovereignty. The established rule about conflicting Acts of Parliament, namely that the later Act must prevail, was evidently violated, since the later Act in this case was the [MSA], yet it was disapplied under the [ECA]… When that Act was nevertheless held to prevail it seemed to be fair comment to characterize this, at least in a technical sense, as a constitutional revolution.’

A number of issues arise out of Wade’s analysis, and in this note we focus on two lesser explored but, nonetheless, fundamental questions. The first concerns whether the ‘established rule’ that Wade cites properly applied in Factortame, and hence can be seen to have been modified by the ruling. The second concerns the implications of our first point for Wade’s description of the case. Our aim will be to cast doubt, from within the traditional framework, upon the thesis that Factortame was a ‘revolutionary’ ruling.

Was There A Conflict?

Doubtlessly there was. EU law granted rights to fish which would have been explicitly curtailed by the MSA, had it been applied. But was this the right type of conflict? Wade cites, as having been amended in the case, the following ‘established rule’:

Where two statutes conflict, the latter is to prevail over the former.

Does this rule apply in Factortame? Importantly, the question is not whether EU law itself conflicts with the MSA, because the requirements of the former, as interpreted by the European Court of Justice, are not themselves statutory. The relevant objects of interpretation for the purpose of the rule are the ECA, which requires courts to give effect to EU law, and the MSA, which restricts the rights of non-nationals fishing in UK waters.

Two statutes may be said to conflict if one requires a result that the other denies, if one affirms a proposition of law which the other repudiates. So, for example, a statute prohibiting the consumption of alcohol by those under the age of 18 conflicts with a statute granting children over 15 the right to drink alcohol under the supervision of their guardians. And under the established rule that which was formerly enacted should give way to the latter. What proposition did the MSA stand for? That UK nationals be granted a special dispensation to fish that was to be denied to EU citizens more generally. The question, then, is whether the ECA rejects this legal result and the answer must be that it does not. The ECA says nothing substantive about the rights of EU citizens, UK or otherwise, to fish and so cannot be said, itself, to conflict with the MSA.

One way to see this is to ask the question whether the ECA could be taken to conflict with the MSA if EU law did not grant directly enforceable rights to fish in UK waters to EU nationals. The answer, of course, is that it would not. But the question of whether two statutes conflict cannot be taken to depend upon factors other than their own content. If the ECA and MSA would not conflict in this situation, despite nothing having been changed in our imagined circumstances about the meaning of the statutes, then they cannot be taken to have been in conflict on the facts of Factortame. We cannot settle a matter of interpretation, in other words, on the ground of external contingencies.

To repeat, there was a legal conflict: between the MSA and directly enforceable EU law, which was required to be given effect to under the ECA, but not between the ECA and MSA. Why does this matter? It matters for the reason that the traditional rule that Wade cites – that where two statutes conflict the former must give way to the latter – did not apply in Factortame, and hence cannot be said to have been modified by the result. What the court did in that case was not to alter, or set aside, a long established and fundamental rule of UK Constitutional Law, but to fashion a novel principle – that legislation be given effect subject to EU law, that is, in accordance with the terms of the ECA so long as that statute remained on the books – in a novel constitutional situation. Note, moreover, that this rule does not contradict the central aspect of the doctrine of Parliamentary Sovereignty, the principle that Parliament may make or unmake any law whatsoever. The question of whether Parliament would have to repeal the ECA in order to legislate contrary to EU law, or simply decree that such legislation was to have effect ‘notwithstanding’ the ECA is a nice question of constitutional law, and the answer would probably be settled in favor of the latter.

Recognition and Revolution

Wade’s question, in light of his analysis, was this: ‘Has the House of Lords adopted a new “rule of recognition” or “ultimate legal principle”?’ Having concluded that the traditional rule concerning statutory conflict had been amended he answered in the affirmative, describing the situation as ‘revolutionary’. Disagreeing with Wade’s analysis, we may pose a different question in the terms suggested by our own argument: does the fact that the House of Lords established a rule in a situation of constitutional uncertainty entail that their verdict was one of revolutionary import? Does, in other words, the fact that the court made decision which, in this sense, affects the rule of recognition constitute a technical legal ‘revolution’? Seeing why it does not requires a better understanding of recognition rules, and their place in a constitutional order.

The constituent parts of a legal system, H.L.A. Hart famously argued, have synchronic identity in virtue of the fact that they are identified, by the courts, in accordance with the system’s ultimate criteria of recognition. These criteria – shown in use but rarely, if ever, stated in anything close to canonical form, complex and in various ways indeterminate – both fix the court’s ultimate duties within the system and bestow upon them a further responsibility. Because, ultimately, it is for the courts to interpret and apply the rule of recognition it falls on them, also, to resolve doubts and indeterminacies relating to its application. Such a task is not merely desirably placed within the hands of the courts, as legal experts, buts falls on their shoulders of necessity.

The courts have, in this sense, an inherent jurisdiction, in the context of controversy, to determine the limits of their own powers. This authority is, of course, limited by the central, uncontroversial tenets of constitutional doctrine, so no paradox arises, but the capacity is real nonetheless. Hart makes the point:

‘The possibility of the courts having authority at any given time to decide… limiting questions concerning the ultimate criteria of validity, depends… on the fact that, at that time, the application of those criteria to a vast area of the law… raises no doubts, though their precise scope and ambit do.’

At the limits of their role the courts must make decisions not controlled directly by the constitution, but at any rate within their power; this is what happened in Factortame. Is it right to call such judgments ‘revolutionary’? The answer, perhaps, may be less exciting than we have been lead to believe.

Thomas Adams is a D.Phil candidate at Balliol College, University of Oxford.

 Suggested citation: T. Adams, ‘Wade’s Factortame’ U.K. Const. L. Blog (24th February 2014) (available at: http://ukconstitutionallaw.org/).

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Jacob Rowbottom: Laws, Miranda and the Democratic Justification for Expression

jacob-rowbottom-photoThe Divisional Court’s decision in the David Miranda case has provoked much controversy and debate about freedom of the press and national security issues. About halfway through his judgment, Laws LJ makes a number of comments about the justifications for freedom of expression and media freedom. While these may not be the most pressing or immediately important issues raised by this particular case, it is worth noting what Laws LJ says at paras [41-46] as he seems to move away from what has been something of an orthodoxy in the British and European jurisprudence – the importance placed on the democratic justification for expression.

Laws LJ takes this step away from the democratic justification only in relation to individual freedom of expression, and not media freedom. On his view, media freedom is justified ‘to serve the public at large’ – in other words to scrutinize government and provide useful information to the public. These are classic features of the democratic justification. In this, Laws (correctly in my opinion) takes an instrumental account of media freedom, an approach that is reflected in many of the cases and in the Leveson Report. By contrast, he states that freedom of expression ‘belongs to every individual for his own sake’. Here Laws LJ states that ‘the promotion or betterment of democratic government’ is not the ‘essential justification of free expression’. Instead, individual freedom of expression ‘is a condition of every man’s flourishing’.

The implication of this distinction is that when applying the proportionality test in the case of media freedom, the courts are balancing ‘two aspects of the public interest’. By contrast, freedom of speech is about balancing the rights of the individual with the interests of the community. This should not, however, be taken to mean that media freedom rights are more easily outweighed. There may be instances where the public interest in expression serving the needs of the audience is stronger than the interest held by the individual. There will be cases where the audience-focused public interest justification makes a very strong case for heightened protection.

In his discussion of the democratic justification, Laws LJ describes Alexander Meiklejohn’s view that free speech is ‘a collective, not an individual, interest’ and a ‘servant of democracy’. We can see the collective approach to free speech reflected in Meiklejohn’s famous comment that ‘What is essential is not that everyone shall speak, but that everything worth saying shall be said’. According to this approach, the key is that all the relevant viewpoints get a hearing and are considered. The goal is to ensure that the audience is well informed. This thinking suggests that if every person were to speak in a debate, then similar views would be likely to be repeated – while this might make speakers feel better about themselves, it does not give the audience new information (except indicating strength of feeling). Laws LJ argues that this justification, while relevant to the media, does not provide a foundation for individual freedom of expression.  In short Laws LJ seems to take the following approach: the collective Meiklejohnian justification for the media, and a liberty theory for individual speakers.

One of the main criticisms of the democratic justification/collective interest advanced by Laws is that it tends ‘to devalue non-political speech and justify the prohibition or abridgement of speech advocating undemocratic government’. It is certainly true that the democratic justification, as advanced under Article 10, has led to a hierarchy in which political speech is given strongest protection. If what Laws LJ means is that the democratic justification is not the sole justification and needs supplementing in some instances to give broader protection, then this is a valid point. I have argued elsewhere that in some cases more protection is needed for the non-political speech of individuals. But the democratic justification still plays an important role in relation to individual expression and there are strong arguments to support the robust protection of political speech. Furthermore, some hierarchy among categories of speech may be practically necessary – not every utterance can be given exactly the same intensity of protection. If all types of expression were treated as a single category then it might weaken the protection of expression overall (ie treating all speech types equally might lead to a leveling down of protection rather than a leveling up).

Laws LJ’s concern that the democracy argument justifies ‘the prohibition or abridgement of speech advocating undemocratic government ‘ is less persuasive. An account of speech that focuses on the collective democratic interest does not necessarily lead to a conclusion that prohibitions on undemocratic speech are to be permitted. The audience interest in hearing diverse views can extend to those that challenge democratic values. One can still oppose restrictions on ‘extreme speech’ while staying within the framework of the classic democratic justification for expression rights. Furthermore, if Laws LJ’s maintains the collective/democratic justification in the case of media freedom, then why doesn’t his objection to the justification apply in this context as well as to individual speakers?

None of this is dismiss the important distinction drawn between individual speech rights and media freedom (with which I strongly agree). However, we can support that distinction for reasons that still connect free speech with democracy. Meiklejohn provides a powerful argument that captures one very important role for free speech in a democracy. But there are other additional reasons why free speech is necessary in a democracy. When thinking about the free speech rights of individuals, we also need to consider the perspective of the speaker.  While this seems to be what Laws LJ is getting at, the speaker-based perspective can fit within a democratic justification. Expression can be a form of participation in the political process. To speak out in a democracy is valuable not solely as a means of informing the public, but also as a way of having your say and engaging with collective decision-making. For example, protests are important not just to publicize a cause, but in allowing people to publicly register their thoughts.

My point is that we need not marginalize the democratic justification for expression to go beyond an audience-focused approach. Instead, some of the classic theory’s shortcomings can be addressed by developing the understanding of democracy that underpins the justification for free speech rights.

Jacob Rowbottom is a Fellow of University College, Oxford.

Suggested citation: J. Rowbottom, ‘Laws, Miranda and the Democratic Justification for Expression’  U.K. Const. L. Blog (22nd February 2014) (available at : http://ukconstitutionallaw.org/)

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Neil Walker on Scotland: Hijacking the Debate

NeilLet me lay my cards on the table. I remain inclined to vote ‘no’ in September’s referendum. I put it no stronger than ‘inclined’ in part  because I believe, in  the spirit of democracy – even democracy referendum-style – that those of us who have not signed the party pledge should keep an open mind as long as possible. That, indeed, is one of the reasons  why,  18 months ago,  some of us set up the Scottish Constitutional Futures Forum  and its  accompanying blog. But my reservations are also partly because  recent  events  have fuelled my anxiety about  the climate in which the debate is taking place. They have made me wonder whether the case for independence is getting a fair crack of the whip on the international stage, and have caused  me to ponder the implications of lending my vote to a position that remains so reliant upon negative rather than positive arguments.

I am not talking about the shenanigans over a Currency Union. It may  be a minority position, but I believe both sides have been giving as good as they get on this question, and that neither comfortably occupies the moral high ground. There has always been something  both opportunistic and wishful in the nationalist stance. Sterling, once derided as a busted flush,  is reclaimed as a joint birthright. The Euro, once hailed  as the bright new  monetary dawn, is conveniently relegated to the status of a political  lifestyle choice rather than faced up to as an obligation of EU membership that can, at most, be  deferred.

The Unionist response may be  no more elevated  than this, but is surely ranks no lower. There is an arguable case, if a far from compelling one, that it would be in rUK’s best interest to refuse the  departing Scots a Currency Union. There are certainly risks  either way, and  rUK might well change tack in the cold light of a ‘yes’ vote. But Better Together is being no more narrowly strategic than the nationalists in arguing forcefully for the position that  best suits its immediate interests. It is a position that could backfire – may already be backfiring – as it allows the nationalists to play the victim card, and to point out that, as the residual sovereign in the event of post-yes-vote negotiations, rUK enjoys  the ‘bully’s’  advantage  of  being able to make promises  – or threats – that it can credibly deliver upon in self-fulfilment of  its prophecies and  prejudices. But in the final analysis, the Better Together position, like the nationalist one, is a democratically legitimate one. It is articulated by  elected politicians of various parties in favour of a constituency – the UK – whose  right to retain the decisive constitutional  voice is the very issue at the heart  of the referendum. And while nationalists may proclaim the inconsistency of Better Together’s new position with its previous self-denying ordnance against pre-specification of the terms and conditions of independence, they must also acknowledge that  the Unionist parties, by building a united front on sterling, have at least  answered another widely aired  doubt. For  once they have demonstrated their ability to get their act together and find common voice when it really matters.

The issue of democratic credentials, however,  brings me directly  to the point of my comment: namely that other awkward union, the European Union, and the position of Jose Manuel Barroso, President of the European Commission, on the subject. Barroso has previously given strong indications of where he stands, so perhaps we should not be too surprised by his remarks on the BBC’s flagship Andrew Marr Show last weekend. The novelty of his latest contribution may only have been one of emphasis, but the tone was nevertheless striking. Apparently the prospects of membership for an independent Scotland, never untroubled in his perspective, are now to be assessed as  “extremely difficulty… If not impossible.”

These remarks have been well publicised. Predictably, they have been seized upon by Better Together as vindicating their long-standing scepticism about an independent Scotland’s EU future, and as further evidence of the emptiness of nationalist promises. But why should anyone listen to Barroso on this topic?  Does he have a legitimate political voice in the debate? Does he speak from a position of legal authority?  Or, regardless of his political or legal standing, does he simply have a good insider argument, and one that we should heed? The answer, on all three counts, would seem to be ‘no’. Why is this so, and why is it important to the integrity of the debate that the kind of intervention Barroso has sought fit to make should be challenged?

First, there is the question of legitimate political voice. Barroso is not an elected politician. One upon a time he was. Between 2002 and 2004 he was Prime Minister of Portugal. Since then he had done two stints and ten years as the unelected President of the European Commission. His position, which he will vacate this year, does depend upon that of two elected institutions – on the  Council ( made up of nationally elected politicians) which proposed him, and on the European Parliament which  was required to approve  his appointment.  Under new rules introduced by the recent Treaty of Lisbon, the appointment of his successor will be subject to an additional  indirect democratic check – namely the requirement that his or her nomination by the European Council should ‘take account’ of the results of the latest European Parliamentary elections. In fact, the last European elections in 2009 already saw a move towards an overtly political style of appointment, with Barroso the chosen candidate of the   European People’s Party.    But none of these developing procedures and practices can make an elected politician out of an unelected public servant. Barroso has no popular mandate, and perhaps some sense of that lay behind his protestations to Andrew Marr, rendered not a jot more credible by their repetition,  that his words did not constitute an attempt ‘to interfere’ in a matter of internal Scottish and British politics.

But even if Barroso represents no electoral constituency, does he, as head of the Commission, nevertheless possess a clear legal authority, or even a duty,  to step into the Scottish debate? The Commission certainly has an extensive legal remit. According to Article 17 of the Treaty on European Union, it ‘shall promote the general interest of the Union’.  Yet in so doing we should understand the Commission’s  role as servants of the Treaty framework rather than its master. Article 17 continues by specifying the Commission’s role in ways that reflect and confirm its status  as  the EU’s  administrative college. Its responsibilities are largely downstream. They include the monitoring of the  application of European law, the performance of various budgetary, management, executive and management functions, as well as the power to initiate ( but not decide) legislation under the Treaties. In all of this the Commissioners, including the President, like civil servants everywhere, are charged to act independently of external influence.

None of this suggests any stand-alone authority for the Commission or its President on the high political question of new membership, except insofar as this is directly specified in the Treaties. But if we look at the relevant provisions  – Article 49 on accession and  Article 48 on  the alternative route of general Treaty revision – the standing of the Commission is a distinctly modest one. As regards accession, its role is only one of consultation, with the key decision-making reserved to the European Parliament and the Council. As regards general Treaty revision, the Commission is one of a number of institutions that may make proposals, but here the decisive voice lies squarely with the national governments.

If the Commission does not command a central  legal role in these matters, should we not nonetheless be prepared to listen carefully to the views of its President simply as an expert in Union-craft –  as someone who has the knowledge and experience gained from a decade of independently ‘promoting the general interest of the Union’? Absolutely. Of course we should! The snag  here is  that the President has chosen to say nothing worth saying – nothing that would draw upon a considered sense of that general interest,  but instead restricts himself to well-worn  prognostications about what others  might do in pursuit of their particular interests. He trades on the symbolic authority of his position to do nothing more than profound than  recall that the reception of an independent Scotland into the European Union, whether through the  Article 49 route that he envisages, or through the relatively  ‘seamless’ Article 48  route that the nationalists argue for, would  require the approval of all 28 existing member states; and then to advise that this is an arithmetically formidable threshold, especially given the reservations of certain member states about independence movements in their own backyards – a caution that, as Barroso proceeds to reminds us,  has led Spain, concerned with Catalonian and Basque claims, even to refuse to permit a precedent as distant as the recognition of Kosovo as an independent Balkan state.

What is glaringly absent from the debate, both in the  knowing buck-passing of Barroso’s intervention and in the broader silence of the EU’s main movers and players on the Scottish question, is the articulation of any kind of public philosophy that would provide good reasons, rather than simply motivations of base political self interest, why an independent Scotland should or should not be welcomed with open arms. How, precisely, is the EU, still  resolved by common commitment of the member states in the preamble to the Treaty on European Union ‘ to  continue the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as closely as possible to the citizen in accordance with the principle of subsidiarity’, to justify the exclusion of an independent Scotland? Why should  a country of 5  million citizens, who  have also been EU citizens for 40 years and who have expressed no desire to leave the European Union, be treated less  generously than the 110 million new EU  citizens – over 20% of the EU’s total population – who have joined from Central and Eastern Europe since 2004? Why should Scottish citizens instead be placed in the same category of Kosovo, or any other  potential candidate from beyond the Union’s distant borders?

The point in posing  these rhetorical questions is not to suggest that the propositions they contain will simply collapse under the weight of their own absurdity. For there  may well be a principled case to  make  against automatic and accelerated membership of an independent Scotland. We find the embryo of such a case, for example, in the analysis of Joseph Weiler, the current President of the European University Institute in Florence. He has argued, with special  reference to the Catalan case,(see http://www.ejiltalk.org/catalonian-independence-and-the-european-union/) that just as national minorities in existing member states who presently enjoy extensive forms  of individual and collective freedom have no  automatic right to secede as a matter of general international law, so, too, the  European Union in its accession policy should not be expected to indulge the independence claims of these unoppressed sub-state nations.To the contrary, the very ethos of integration, reconciliation and continental solidarity that has fed the European project from its post-War beginnings, according to Weiler, should lead  the European Union to take a dim view of any separatist impulse that seems to betray these very founding virtues. From this perspective, therefore, far from having a stronger claim than those external candidates  who have benefited from the post-Cold War Enlargement, those nations already comfortably nested in the EU’s Western European heartland  of multi-level governance should be promised no safe European haven if they insist on the path to independence.

I happen to disagree with both the specific thrust and the wider implications of the  Weiler thesis. To begin with, and most narrowly, even if Weiler’s reasoning is applicable to the situation of Catalonia, where no constitutionally permissible route to referendum and independence is presently countenanced at the level of the wider Spanish state, the Scottish case  is quite different. Here, the Edinburgh Agreement reflects the preparedness of the UK’s flexible constitution to accommodate the prospect of independence. So for the EU to set its face against Scottish independence would be  to dismiss the significance of the member state’s own recognition of the legitimacy of secession.  Secondly, and more broadly, whether we are dealing with the  Scottish or the Catalan case or that of any other national minority, surely more store than Weiler allows should be set by an aspiring nation’s own sense of what is the constitutionally adequate vindication of its desire for collective autonomy. If nothing short of independence is deemed adequate from the perspective of the constituency in question as an affirmation of shared political identity, it is difficult to see why such a subjective  aspiration should be dismissed in favour of a supposedly objective  standard of adequate individual and collective freedom. Thirdly, even if a special case for the EU  as an entity possessing and pursuing a unique historical mission to make internal secession both unnecessary and unacceptable can  be advanced,  it seems unduly dogmatic to use this to justify a rigid policy against  continued membership of new internal states. There are, after all, other and rival views of the deeper purpose of the European Union. The priority given in the Preamble to the TEU to the principle of subsidiarity has already been mentioned, and this surely reflects an alternative  and more independence-friendly perspective. In the face of these competing narratives, should the public policy of the EU on accession not remain more agnostic?

Whether or not my arguments convince, they surely serve to demonstrate  that the EU’s accession policy is and always has been intimately linked to the deep purposes of the world’s first supranational polity, and to ongoing debate, inevitably controversial, over what precisely these deep purposes demand.  It is, therefore, a matter that  requires reasoned public argument and justification of the sort that Weiler attempts rather than a mere weighing of the strategic ‘private’ preferences of national parties. Yet all we get from Barroso is the latter. Not only is this less than we might expect from someone committed to the general interests of the Union, but it also allows the prejudices of national parties to be entered to the calculation without the embarrassment of a first person airing.

In a nutshell:  If any of the key players on the EU stage is opposed to Scottish membership then they should either show the courage of their convictions through a discourse of public justification linked to the interests of the Union as a whole  or, failing that,  they should at least be prepared to declare their intentions to act out of national self-interest. Barroso’ s intervention allows a significant oppositional note to be struck without either of these tests of public candour being met. The danger increases that our independence debate become hijacked to poorly specified and undefended external considerations. That surely is bad news for anyone interested in the referendum as a means to the long-term, widely accepted  resolution of our national conversation.

Neil Walker is Regius Professor of Public Law and the Law of Nature and Nations at the University of Edinburgh.

Suggested citation: N. Walker, ‘Hijacking the Debate’ Scottish Constitutional Futures Forum Blog (18th February 2014) (available at: http://www.scottishconstitutionalfutures.org) or N. Walker, ‘Hijacking the Debate’ U.K. Const. L. Blog (18th February 2014) (available at: http://ukconstitutionallaw.org/).

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Const. Court for South Africa: Invitation for Foreign Law Clerks

The Justices of the Constitutional Court of South Africa are pleased to invite applications from outstanding recent law graduates and young lawyers interested in serving as foreign law clerks.  Candidates may be appointed to start as soon as 1 July 2014.

Background

South Africa continues to be regarded as one of the most intriguing and compelling examples of constitutionalism in the transition to democracy.  Its Constitution is viewed as one of the world’s most progressive founding charters.

The Constitutional Court, the country’s highest court, is the guardian of that promise.  It has, in a range of ground-breaking decisions, given content to the Constitution’s guarantees by, for instance, ruling the death penalty unconstitutional; upholding full equality for gay and lesbian people; declaring that resident non-citizens are entitled to social benefits; and ordering the government to make anti-retroviral treatment available to pregnant mothers living with HIV/AIDS.

A highly respected commentator, Justice Ruth Bader Ginsburg of the United States Supreme Court, stated the following in the context of a discussion of new democracies:

“I would not look to the U.S. Constitution, if I were drafting a Constitution in the year 2012.  I might look at the Constitution of South Africa.  That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, had an independent judiciary.  . . .  It really is, I think, a great piece of work that was done.”

About the Position of a Foreign Law Clerk

Each year, six to ten young lawyers from around the world serve as foreign law clerks to the Constitutional Court.  Working alongside two South African law clerks, foreign law clerks assist a specific judge in performing his or her duties.

The responsibilities of foreign law clerks are essentially the same as those of their South African counterparts and similar to judicial clerks elsewhere in the common law world.  These include extensive legal research and writing, as well as the formulation, drafting, and editing of judgments.  The Court itself is highly collaborative, allowing for substantial engagement among clerks from all Chambers.

Foreign clerks are generally appointed to serve one six-month term.  Some may, however, serve for longer and sometimes in more than one Chambers.

Foreign law clerks are not remunerated by the Court.  So, it is essential that they seek their own funding to cover their expenses, including food, accommodation, travel to South Africa, visas and travel to and from work.

Further details

Further details on the programme may be found on the Constitutional Court website: www.constitutionalcourt.org.za

Applicants requiring additional information, or wishing to confirm receipt of their application, may also contact Mr Mr Mosala Sello in the Chambers of Justice Johann van der Westhuizen via email (sello@concourt.org.za) or telephone (+27 11 359 7427).

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Alison Young on HS2: Wilkommen zum Constitutional Pluralism

young_alison-l2The HS2 case is widely recognised as the first important Constitutional case of the year. Its importance for parliamentary sovereignty and the relationship between EU law and national law appears to turn on four paragraphs: paragraph 79 of Lord Reed’s judgment and paragraphs 206 to 208 of the judgment of Lord Neuberger and Lord Mance. Mark Elliott states that these paragraphs suggest that, not only does the UK have a separate category of ‘constitutional statutes’ but that some constitutional statutes are more constitutional than others. Adam Tomkins comments that the case also demonstrates the dangers that can arise when the Court of Justice of the European Union (CJEU) interprets EU directives in a purposive or teleological manner, perhaps taking these provisions beyond what the Member States, represented by the Council, the European Parliament and the Commission intended. He welcomes the approach of the Supreme Court which questions the interpretation of the CJEU. I want to focus on another question – is HS2 best understood as the UK’s conclusive acceptance of constitutional pluralism? In doing so, I hope to demonstrate how this may alleviate the confusion that may be caused by multi-layers of constitutional statutes, as well as how this may help the UK to respond when it believes that the CJEU may have gone too far.

Constitutional Pluralism

Constitutional pluralism is a much-used term. It can be hard to define, particularly when separating it from the related issue of legal constitutionalism. It can also be hard to separate out when the term is used to describe inter-institutional relationships and when it is used to prescribe how institutions should relate to one another. For the purpose of this brief response, constitutional pluralism is defined as occurring when two or more institutions assert the authority to definitely resolve a particular issue, but where neither institution can effectively ‘make good’ on its assertion of authority.

Applied to the European Union, both the CJEU and national courts assert their claim to be the institution that definitively determines the nature of the relationship between national law and EU law. However, neither can fully make good on this claim. The CJEU does not stand in a hierarchical relationship to the national courts. As such, it cannot, as a matter of law, force the national courts to comply with its judgments. However, national courts are also not completely free of influence from the CJEU. They play a major role in implementing EU law, but have no power to declare EU law to be invalid and, for the highest level of court capable of adjudicating on a particular issue, have an, albeit limited, obligation to refer the case to the CJEU. Whilst the CJEU determines EU law, the national courts determine how this is applied to the facts.

Constitutional pluralism can also be applied to the UK. Whilst Parliament enacts legislation, courts determine the principles by which this legislation will be interpreted. Courts control executive actions, either according to common law principles or statutory provisions, and the legislature can enact measures to override common law principles or to oust the jurisdiction of the courts. Both Parliament and the courts have a role to play in determining how legislation is recognised, and in assessing what is meant by ‘parliamentary sovereignty’ when expressed as a legal principle. Whilst most English courts are courts of inherent jurisdiction, Parliament could still place judicial power on a statutory basis, determining its confines.

HS2 and the EU

It is easy to find references to a potential acceptance of constitutional pluralism in the, probably already seminal paragraphs of Lord Reed and of Lord Neuberger and Lord Mance. All argue that the relationship between EU law and national law is a matter for UK constitutional law, to be determined by the UK courts. This is true for conflicts between EU law and UK statutes and for conflicts between EU law and UK constitutional principles. Lord Reed states that the issue as to whether a Directive should override national law ‘cannot be resolved simply by applying the doctrine developed by the Court of Justice of the supremacy of EU law, since the application of that doctrine in our law itself depends upon the 1972 Act’ [79]. Further, [i]f there is a conflict between a constitutional principle … and EU law, that conflict has to be resolved by our courts as an issue arising under the constitutional law of the United Kingdom.’ [79] For Lord Neuberger and Lord Mance ‘[u]nder the European Communities Act 1972, United Kingdom courts have also acknowledged that European law requires them to treat domestic statutes, whether passed before or after the 1972 Act, as invalid if and to the extent that they cannot be interpreted consistently with European law’ [206]. As regards a potential conflict between EU law and national constitutional principles, ‘[i]t is, putting the point at its lowest, certainly arguable (and it is for United Kingdom law and courts to determine) that there may be fundamental principles, whether contained in other constitutional instruments or recognised at common law, of which Parliament when it enacted the European Communities Act 1972 did not either contemplate or authorise the abrogation’ [207].

Constitutional pluralism is also illustrated in the way in which all of the members of the Supreme Court interpret the requirements of the Directive. There is recognition of potential problems with its interpretation. This is analysed not just from a perspective of national constitutional principles. The Supreme Court looks at the separation of powers, a constitutional tradition shared by the Member States. EU scholars who advocate constitutional pluralism draw on its ability to encourage judicial dialogue and to act as a mutual check. In particular, national courts can point out when decisions of the CJEU may challenge national constitutional principles – and vice versa – helping to alleviate concerns that arise when the CJEU has been overly teleological or purposive in its interpretation of EU law. Constitutional pluralism at the EU level does not just involve the courts. National courts look to national law – including legislation. Member State governments can contribute third-party interventions to the CJEU.

Constitutional pluralism in the UK

Lord Reed, Lord Neuberger and Lord Mance all refer to constitutional principles. For Lord Reed, article 9 of the Bill of Rights 1689 ‘embodies’ a constitutional principle. If a statutory principle can embody a constitutional principle, then this would appear to suggest that this constitutional principle exists independent of its embodiment. It also raises questions as to whether constitutional principles can also be embodied in the common law. Lord Neuberger and Lord Mance also refer to fundamental principles ‘enshrined’ in the Bill of Rights. In addition, ‘[t]he common law itself also recognises certain principles as fundamental to the rule of law’ [207]. They also refer to ‘constitutional statutes’ and ‘constitutional instruments’, both of which appear to be different from ‘ordinary statutes’ and potentially different from one another.

To delineate between different levels of statutes in this manner adds to the confusion already created by the classification of some statutes as ‘constitutional’. Academic debate continues as to what, if anything, is meant by a ‘constitutional statute’ and recent decisions of the Supreme Court appeared to downplay their importance. Rather than adding to the confusion, it may be better to recognise that the English law recognises constitutional principles which can be embodied in statutes – whether classified as ‘constitutional statutes’ or ‘constitutional instruments’, embodied in the common law, or which can act as background principles used when interpreting the common law, actions of the administration and legislation.

To read the decision in this manner is to recognise another example of constitutional pluralism. Parliament enacts the law. Courts interpret its provisions. Parliament can enact legislation embodying constitutional principles. Courts can embody constitutional principles through developing the common law. Courts may also refer to constitutional principles when interpreting executive acts and legislation. In doing so, both the courts and Parliament can check on the potential excesses of the other in a manner similar to the Member States and the CJEU. This is not to argue anything novel – if anything it is to state the obvious. What needs to change is our analysis of constitutional decisions according to a bifurcation between parliamentary and judicial sovereignty and accept that both may assert sovereignty, but neither really is supreme.

 Alison Young is a Fellow and Tutor in law at Hertford College, University of Oxford.

Suggested citation: A. Young, ‘Wilkommen zum Constitutional Pluralism’ U.K. Const. L. Blog (17th February 2014)  (available at  http://ukconstitutionallaw.org/)

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