Author Archives: Constitutional Law Group

Greg Weeks: Comment on Australia: Protection of refugees who do not “live discreetly”

Gregory WeeksAt the political level, Australia’s lamentable record of mistreating refugees is well established and is catalogued and critiqued elsewhere, such as by my colleagues at the Kaldor Centre for International Refugee Law. Within the scope allowed by Australia’s stringent migration legislation, the judiciary has a much stronger modern record in regard to protecting the interests of refugees who seek to resettle in Australia. In particular, the High Court has repeatedly made its position clear on the issue of whether a person who otherwise satisfies the legal requirements to be classified as a refugee can be turned away on the basis that s/he could have sought refuge elsewhere, including within his or her country of origin.

This application of the “internal relocation principle” is based both on the requirement in Art. 1A(2) of the Refugee Convention that a refugee have a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion” and on Migration Act 1958 (Cth). The internal relocation principle’s scope has been complicated by the belief that it obliges refugees, where possible, to remain in their countries of origin and “live discreetly” in order not to be persecuted. The High Court has recently rejected this understanding for the third time in just over a decade in Minister for Immigration and Border Protection v SZSCA [2014] HCA 45, a decision which referred extensively to the earlier High Court decisions in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 and SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18.

In the landmark S395 case, a majority of the High Court rejected the reasoning that, while two homosexual men from Bangladesh may not be able to live openly as homosexuals, they would be unlikely to suffer persecution if they were “discreet” about their sexuality. This amounted to a finding that Australia owes no protection obligations to refugees who are able to cease the conduct which is has caused, or would cause, them to be persecuted for one of the reasons specified in the Refugee Convention. In separate judgments, McHugh and Kirby JJ and Gummow and Hayne JJ identified the legal error inherent in such reasoning as being that the decision-maker had failed to engage with the basic question of whether the applicants themselves had a “well-founded fear of persecution”, as opposed to whether they could mitigate such a fear by acting in accordance with an objectively reasonable standard. As Gageler J put it in SZSCA, the principle that derives from S395 is that an asylum seeker cannot be expected “hide or change behaviour that is the manifestation of a Convention characteristic”. It does not apply to a case which “does not contemplate changed behaviour to avoid persecution but to avoid creating a wrongful perception of membership of a protected class”.

The persecution feared in S395 was “general and nationwide” and the joint judgment in SZSCA noted that such was not the case in the matter they were called upon to decide. The internal relocation principle might therefore apply if the applicant were able to avoid persecution by relocating within Afghanistan, although the Refugee Review Tribunal (RRT) had not considered the issue in those terms. It found rather that the applicant was likely to be safe from the Taliban if he remained in Kabul and ceased work as a truck driver transporting building materials. SZATV was also a case in which the RRT held that the applicant, having been found to have a well-founded fear of persecution for reason of his political opinions, expressed in the course of publishing journalism critical of corruption in regional government, was able to avoid the persecution he would suffer as a journalist in Chernovtsy by working as a construction worker in Kiev.

In the course of its decision in SZATV, the High Court accepted Lord Bingham’s analysis in Januzi v Home Secretary [2006] 2 AC 426 of how the internal relocation principle fits within the Refugee Convention. Both cases agree that the internal relocation principle will apply where it is reasonable to expect an applicant to have sought refuge in another part of his or her country of origin. Indeed, in SZFDV v Minister for Immigration and Citizenship (2007) 233 CLR 51, a case heard concurrently with SZATV, the High Court held by majority that the applicant should reasonably have sought refuge elsewhere within India. The application of the internal relocation principle appears to be more likely in countries of greater size.

In SZATV, the joint judgment of Gummow, Hayne and Crennan JJ accepted that that, for the purposes of assessing whether it is “reasonable” to expect an applicant to seek refuge within his or her home country, it is relevant to ask whether such a course of action would be “practicable”, which must in turn “depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality”. The decision in SZATV turned upon the expectation that the applicant would “live discreetly” in another part of Ukraine, in the sense that he would cease the very activity that had caused him to suffer persecution in Chernovtsy. This is equivalent to telling the applicants in S395 that, if they must be gay, they should at least not appear to be gay. The High Court was correct to reject any such proposition.

The circumstances were different in SZSCA, in which the applicant had been a long term resident of Kabul (where the RRT held he would be safe from the Taliban) and therefore did not need to relocate to another part of Afghanistan in order to seek refuge. However, on focussing on this particular circumstance, the majority in the High Court held that the RRT failed to consider that the applicant’s living, and capacity to support himself and his family, relied on work that caused him to leave Kabul regularly. The RRT had instead assumed that the applicant could work as a jewellery-maker, as he had done previously in Jaghori. In essence, this was viewed as another expectation that a refugee should continue to “live discreetly” in his country of origin rather than seek refuge in Australia. Again, it has been swiftly rejected by a High Court majority, albeit over Gageler J’s compelling dissent. His Honour could not ascertain that the applicant belonged to a “particular social group” for Convention purposes and, consequently, saw SZSCA differently to either S395 or SZATV.

Notwithstanding the entirely reasonable concerns expressed by Gageler J, it is pleasing to see the High Court reiterate the legal position that a refugee cannot be expected to avoid persecution by ceasing the very conduct that the Convention protects. Refugees are given few breaks by Australian legislation. The continued judicial application of the principle first expressed in S395 may not redress this long-standing trend, but is in any case a welcome sign that the Refugee Convention retains importance in Australian law.

 

Greg Weeks is a Lecturer in the Faculty of Law, University of New South Wales and the United Kingdom Constitutional Law Blog’s Australia Correspondent. He was part of the legal team which acted for the applicant called SZATV in the High Court and subsequently represented him before the Refugee Review Tribunal.

Suggested citation: G. Weeks, ‘Comment on Australia: Protection of refugees who do not “live discreetly” U.K. Const. L. Blog (15th December 2014) (available at http://ukconstitutionallaw.org).

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News: Reforming electoral law across the UK

In a consultation opening today the Law Commissions of England and Wales, Scotland and Northern Ireland set out provisional proposals for reforming the law that governs the conduct of elections and referendums across the UK.

Electoral law in the UK is spread across 25 major statutes. It has become increasingly complex and fragmented, and difficult to use. The last century has seen a steady increase in the numbers and types of election. Today we may be asked to vote – at the same time – for a range of representatives. We could be casting votes for our local mayor, police and crime commissioner and councillors while also voting for our MP, MSP or MLA, Welsh or London AMs or our MEPs. Each of these election types comes with its own set of rules and systems, and combining them to produce one election event introduces yet more layers of electoral laws.

The Law Commissions are seeking views on potential reforms that will modernise and rationalise electoral law. Their consultation looks at the management and oversight of elections, notice of elections and the polling process, as well as registration of electors, management of postal voting applications, and how and when an election can be challenged. All the Commissions’ provisional proposals for reform are founded on two principles:

 

  • the laws governing elections should be rationalised into a single, consistent legislative framework governing all elections, and
  • electoral laws should be consistent across all types of election.

 

Nicholas Paines QC, Law Commissioner for public law, who is leading the project for the Law Commission of England and Wales, said: “Elections are fundamental to democracy. They are the mechanism by which citizens exercise their democratic rights. The price we pay as a democracy when the electoral process loses credibility is high and potentially catastrophic.

“It is clear that electoral law is in need of reform. Inconsistencies and ambiguities risk undermining the credibility of our electoral process. The law must be simplified, modernised and rationalised so that it can be more easily understood and used by administrators and candidates, and public confidence in electoral administration can be strengthened.”

Lord Pentland, Chairman of the Scottish Law Commission, said: “The Scottish Law Commission entirely agrees that it has become essential for electoral law throughout the UK to be streamlined and put into a modern, accessible and user-friendly format, which is fit for the 21st century. We have, therefore, been delighted to participate fully in this important law reform project. We look forward greatly to receiving a wide range of responses to the consultation exercise.”

Dr Venkat Iyer, the Law Commissioner leading on the project for Northern Ireland, said: “UK Parliamentary and European Parliamentary elections, as well as UK-wide referendums, are subject to rules across jurisdictional borders. We are very pleased to be conducting this timely review in partnership with our colleagues in the Law Commission for England and Wales and the Scottish Law Commission.”

The consultation is open until 31 March 2015.

 

Notes for editors

  1. The Law Commission and the Scottish Law Commission are non-political independent bodies, set up by Parliament in 1965 to keep all the law of England and Wales and of Scotland under review, and to recommend reform where it is needed.
  2. The Northern Ireland Law Commission exists to review areas of the law and to make recommendations for reform. It was established under the Justice (Northern Ireland) Act 2002 (as amended by the Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010), and was set up in 2007 following the recommendations of the Criminal Justice Review Group.
  3. For more details on this project, visit:

http://lawcommission.justice.gov.uk/areas/electoral-law.htm

http://www.scotlawcom.gov.uk/law-reform-projects/joint-projects/electoral-law/

http://www.nilawcommission.gov.uk/index/current-projects/electoral_law_reform.htm

  1. For all press queries please contact:

Phil Hodgson, Head of External Relations, Law Commission of England and Wales:  020 3334 3305

Jackie Samuel:  020 3334 3648

Email:  communications@lawcommission.gsi.gov.uk

 

Editor’s Note:

The reform will be discussed at the following event:

Reforming Electoral Law

Nicholas Paines QC & Henni Ouahes, Law Commission

Date: 1pm, 28 January 2015

Venue: Council Room, 29-30 Tavistock Square

 

See: www.ucl.ac.uk/constitution-unit/events

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CONSTITUTIONAL LAW DISCUSSION GROUP (CLDG), EDINBURGH LAW SCHOOL: CALL FOR PRESENTERS

Old_College_of_Edinburgh_UniversityABOUT THE CLDG
The Constitutional Law Discussion Group (CLDG) at Edinburgh Law School aims to provide a structured forum for the discussion of topics relevant to constitutional law and theory. We hold fortnightly meetings, attended by doctoral students and staff, mainly from the law school, but also political science and other departments. The CLDG operates in association with, and with the support of, the Edinburgh Centre for Constitutional Law (ECCL).

Meetings of the CLDG typically last for one hour to 90 minutes, with the usual format a presentation of 30-45 minutes, followed by Q&A with the audience, and an informal reception. However, we are open to different formats, and have experimented with ‘dialogues’, open discussion, a one-day symposium, and ‘virtual’ meetings (e.g. Google+ hangouts).

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APPLICATIONS TO PRESENT NEXT SEMESTER (JANUARY-JUNE 2015)
We wish to invite PhD researchers and postdoctoral scholars conducting research on constitutional law and constitutional theory to present at the CLDG next semester (January-May 2015).  The open dates (always a Tuesday, at 3pm) are:

20 January   |   3 February   |   17 February  |   3 March   |   24 March   |   21 April   |   12 May

Applications to present next semester should be sent no later than Friday 8 January, but earlier applications (ideally before Christmas) are encouraged.

Please note that the CLDG selects speakers on a competitive basis and cannot commit a slot to all applicants. Presenters are not required to circulate a paper in advance, but may do so. Please note that we ordinarily cannot cover travel or accommodation expenses for speakers.

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PAST PRESENTERS
Past presenters have included a mix of doctoral students, early career researchers and established academics, including scholars from Edinburgh and the UK, and other universities in Europe, Canada, the United States, Israel, Argentina and Brazil. Topics vary widely, and in the past year have included constitutional reform in the age of Arab revolutions, the accommodation of national pluralism in Sri Lanka, judicial review and judicial empowerment in the US and UK, constitutional courts, social rights, federalism and referendums on independence.

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MORE INFORMATION & CONTACT DETAILS
If you would like to present, to informally discuss a possible presentation, or to be added to our mailing list, please contact us at cldg@ed.ac.uk.
For more information on the CLDG, visit our website:  http://www.cldg.law.ed.ac.uk/
For a list of past speakers and topics, see: http://www.cldg.law.ed.ac.uk/list-of-past-speakers/
For speaker guidelines, see: http://www.cldg.law.ed.ac.uk/guidelines-for-speakers/
For a list of forthcoming events, see: http://www.cldg.law.ed.ac.uk/forthcoming-events/

Yours sincerely,

TOM GERALD DALY
Convenor
Constitutional Law Discussion Group (CLDG)
Edinburgh Law School
cldg@ed.ac.uk
http://www.cldg.law.ed.ac.uk

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Christoph Smets: A UK senate: Competition for the Commons or federalising representation?

OLYMPUS DIGITAL CAMERAAfter the warning shot fired from the ballot boxes of the Scottish electorate in this year’s referendum on independence, the West Lothian question has stirred with renewed power. It seems to have triggered a highly unconventional response on the part of the Labour party’s leader, Ed Miliband, who – as reported by James Hand and Donal Coffey – has recently promised to abolish the House of Lords altogether and replace it with a senate, should Labour win next May’s general election.

The exact form and composition of such a senate would be decided by a Constitutional Convention, but it appears that, for the moment, the model favours another directly elected chamber, representing regions or counties and cities. This seems odd, considering the House of Commons’ primary function: Since voters in the UK do not vote for a party but for a candidate only, who is also only eligible for a single constituency, the voting system in the UK is already aiming to represent not only the people, but the people of a certain city or region (which, in fact, is the House of Commons’ historic root). After replacing the second chamber with another elected representative body, now concerned with representing “towns, cities, regions [and nations]”, the question arises who would have the more legitimate claim to representing the people of any given area: the MP or the MS (Member of Senate)?

A second chamber representing the states (or Länder, in the case of Germany) isn’t all that new to a German legal scholar, and it may be surprising to hear one such criticising plans of regional representation, but there is a difference between the German and the (proposed) British approach, which, at first sight, does not seem to improve democratic legitimacy: whereas the (would-be) future UK Senate would be elected, the German upper chamber, the Bundesrat, represents the federal states themselves and is made up of delegates from the governments of the already existing federal states’ parliaments. This fact leaves little room for any doubts as to who is representing the people, and who is not. It is more or less an institutional interest group, de facto representing the interests of the states vis-à-vis central government (which is made up of the same parties holding the majority in Parliament).

Since all UK countries – barring England (!) – have their own parliaments, a senate design of this kind could be fitting, but it would necessitate the constitution of a separate English parliament, thus easing the West Lothian question.

Looking at Britain’s European neighbourhood, a middle ground between popular vote and nomination by governments is currently occupied by France, where the Sénat is elected indirectly on the sub-regional level of the départments (101 in 27 regions for the whole of France), mostly voted for by members of the even lower level of city parliaments.

Looking at Mr Miliband’s plans in more detail, it would see senators being elected not solely on a regional basis, but would see “an elected Senate that properly represents the towns, cities, regions and nations that make up the United Kingdom. […] This regional and national representation will avoid duplicating the constituency link of MPs […].”

So, Mr Miliband’s senate would mean an amalgamation of both the “state model” – as practised in Germany, large parts of Europe and the US (where the term “senate” most likely is borrowed from) – as well as a regional model more akin to France. But this kind of mixed design also sends a mixed message: if voting in the UK countries would be based on constituencies it would conflict with the last part of the statement, but if voting in all parts of the UK would be based on regions it would conflict with the former commitment to towns, cities, regions and nations, emphasis added. So, a UK Senate in the proposed form should logically trigger a mixed election procedure: By the UK countries’ general electorate for Scotland, Wales and Northern Ireland and by the electorate of certain regions, (towns and cities?) in England. This, however, would neither fit the purpose of regional representation within the UK countries, nor federalisation or devolution for England, but only the lack of English regional representation, perceived by Mr Miliband.

But the weighing of senate models might obstruct the broader picture: It transcends prudent parliament design, devolution and representation, touching on the very core of British government as Her Majesty’s Government, and Britain as a constitutional monarchy. Abolishing the House of Lords also means abolishing peerage (at least as the right to sit in parliament), and in doing so a royal prerogative, by far exceeding the importance even of the Parliament Acts 1911 and 1949. It would mean abolishing a part of British constitutional identity. It is therefore not only prudent, but necessary to see House of Lords’ reform as a result of a truly open and transparent dialogue, which cannot – by its nature – be at the discretion of any single party.

As a means for guidance, one might consider how any proposed change compares to the road travelled thus far. It has been one determined by a history of Britain’s very own way of government, one that does not do away easily with a time-honoured modus operandi simply because the current situation suggests a change in approach. One might therefore take a look at the institutional roots of “senates” in the respective countries: Both Germany and the US for instance share a history of having evolved from pre-existing states or principalities, later having been bound together by a supreme power of common government. While at first glance this seems to be exactly the case for the UK as well (albeit with a predominant English role), there is – in contrast to Germany and the US – no history of these states themselves being institutionally represented at the central power, what with the historic House of Lords being made up of noblemen mainly representing themselves, not necessarily their regions. As hinted to above, since the split of parliament into an upper and lower House in the times of Edward III., this was actually the task of the House of Commons, but even they did not represent Scotland, Wales and so on, but the shires or counties, of the Kingdom of England (and later of Great Britain and the United Kingdom respectively).

While both in Germany and in the US, states or principalities were caught up in a continuous institutional power struggle with central government, the representation of noblemen (and later -women) in the House of Lords was indiscriminate to the extent that the peers were bound together rather against the Commons (with a friendly working relationship in the last decades) with the dominant constitutional struggle of British modern history being one of parliament (meaning in this case the House of Commons) against king or queen, not principalities against the ruling house of the Kaiser or North vs. South like in the US. While therefore the representation of states both in Germany and the US has always been a matter for “senates”, in the UK it has mostly – albeit indirectly – been accomplished by the House of Commons.

It must thus be argued that the currently favoured senate model with a shift of regional representation from the Commons to a senate is one that does not easily fit the British way of government and its history, at least not in an evolutionary way (that last point also having been made by James Hand and Donal Coffey). But while the last two decades or so of British history have seen highly increased devolution to Scotland, Northern Ireland and Wales, the notion of increased power for the UK countries’, especially for (Northern) Ireland, dates back to the 19th century. So, one might say that there is an evolution towards devolution. That notion entails not only more legislative powers, but elected legislatures: the UK countries have, to a significant extent, already taken regional representation into their own hands. From the English viewpoint, this devolution has come about as diminishing English, in the sense of common British, powers. This – and the role of England as the historic nucleus of the United Kingdom – may explain the difference in approach regarding the idea of representing Scotland, Wales and Northern Ireland nationally on the one hand, and England regionally on the other. With devolution still progressing (for instance by proposals to make permanent the Scottish Parliament), the urge to keep the kingdom together is in Mr Milibands model translated into a “House of regions and nations”, the contradictions of which I have pointed out above.

But if one were to simply adopt another country’s model, thus ignoring British idiosyncrasies, one would not solve questions specific to the past and present developments within the UK. So, a “State House” model for the UK could have features of both European and British traditions: If the general electorates in England, Scotland, Northern Ireland and Wales were to vote for their own parliaments (which in fact, barring England, they already do), concerned with regional representation, these state parliaments could legitimately and with regional focus deal with problems specific to the respective states’ questions and problems. This is also signified by the results of the general elections for Scotland, Wales and Northern Ireland, which turned out seats for members of common British parties as Labour and Conservatives, but also regional parties as Plaid Cymru, SNP, DUP, Sinn Féin and others. The common interests of the United Kingdom could then – with better focus – be dealt with by a senate of states’ representatives. The German model would see those simply nominated by states’ governments (see above), but as there is a British tradition for the House of Lords to be made up by peers belonging to parties, a British “State House” could see senators being elected by the UK countries’ parliaments. This way, there would be democratic legitimation for the senators by way of indirect voting while actually providing the “clearly defined different role for the Senate” as desired by Mr Miliband. This could also provide an opportunity for a reduced size of the upper chamber, which has been in the debate for quite some time now. A question which cannot be elaborated on here, is that of powers and competencies, which would have to be newly negotiated when introducing such drastic change, keeping in mind for instance that some (e. g. veto) rules have their basis in the historic struggle between the House of Lords with its noble origins and the House of Commons as the democratic force in the narrower sense.

But the centrifugal force of devolution is not only eased by the creation of a “State House”: Great Britain and Northern Ireland have been and still are united as one kingdom. While further federalisation almost certainly will a trigger a fresh debate on the future of British monarchy, the institution of a common head of state and the way in which this office is executed has – as evidenced by the development of the Commonwealth of Nations – an integrating effect. This is especially true for the UK countries, which form the “homeland” of a monarch still being the head of fourteen states, foremost Australia, Canada and New Zealand.

But if the UK does decides for fundamental constitutional change, the “State House” model might just work.

 

Christoph Smets is a Teaching Fellow/Senior Research Assistant at the Heinrich-Heine-University Düsseldorf

 

Suggested citation: C. Smets, ‘A UK senate: Competition for the Commons or federalising representation?’ UK Const. L. Blog (1st December 2014) (available at http://ukconstitutionallaw.org)

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Comment on India: Chintan Chandrachud: Koushal v Naz: The Third Way Out

ChintanDecember 11, 2014 will mark one year from the day on which the Indian Supreme Court delivered one of its most heavily criticised judgments in recent history – Suresh Kumar Koushal v Naz Foundation (Koushal). The Court’s holdings in that case are only too well known by now. But briefly, it reversed a Delhi High Court judgment reading down section 377 of the Indian Penal Code (which criminalised ‘carnal intercourse against the order of nature’), effectively placing India’s LGBT community in the shadow of criminality and continued social stigmatisation. The judgment: (i) extended a rebuttable presumption of constitutionality to an almost conclusive presumption that legislation which is validly enacted cannot be struck down (ii) failed to consider whether the separate legislative treatment of ‘carnal intercourse against the order of nature’ was based on intelligible grounds (iii) seemed to ascribe a numerical de minimus for the enjoyment of fundamental rights (for those seeking a more detailed appraisal of the judgment, these pieces by Madhav Khosla and Tarunabh Khaitan are a good place to start).

Thus far, scholars have considered two options that are available to nullify Koushal: judicial reconsideration of the decision and the legislative repeal of section 377. As it stands, both of these seem difficult. In February 2014, the Indian Supreme Court dismissed a review petition seeking reconsideration of the judgment. A second review petition (called a ‘curative petition’) is pending, and placing bets on its outcome is a task best left to daredevils. Legislative repeal is a much bleaker prospect, given that the Bhartiya Janata Party-led government has sent mixed signals on the issue. It is also widely perceived that legislative repeal will jeopardise an important segment of the party’s conservative political constituency – a price that it is probably unwilling to pay. But there is a third, much more subtle, option on the table – narrowing the impact of Koushal through subsequent decisions.

Two judgments indicate that this option is silently underway. In NALSA v Union of India, the Indian Supreme Court was tasked with deciding whether the right to equality and other fundamental rights required state recognition of hijras (broadly, Indian male-to-female transgender groups) and transgenders as a third gender for the purposes of public health, welfare, reservations in education and employment, etc. In a remarkably broad ruling, the Court held that hijras should be treated as a third gender, and that transgenders should be given the right of gender self-identification. Without overruling Koushal, the Court undercut some of its findings. First, it observed that even though section 377 was facially gender neutral, it had a disproportionate impact on certain communities. Second, it rejected the numerical de minimus for the enjoyment of fundamental rights set up by Koushal, observing that transgenders, ‘even though insignificant in numbers’, enjoyed the same fundamental rights as everyone else.

In another scarcely reported, but no less significant, judgment (Kirankumar Devmani v State of Gujarat), the Gujarat High Court dealt similar setbacks to Koushal. The question before the High Court was whether the state was justified in refusing to grant tax concession for a vernacular film depicting the life of a homosexual. In a carefully reasoned judgment, the Court held that the state’s refusal violated the right to equality and the freedom of speech and expression. The Koushal judgment arose for the Court’s consideration, since the question then was whether the state was justified in refusing concessions to a film that encouraged an ‘illegal’ activity. The High Court’s observations, which stand in stark contrast to the Koushal prognosis, are worth quoting:

Even a person with homosexual preference as human being [sic] has right to life and liberty guaranteed under article 21 of the Constitution. Such right to life and liberty includes right to live life with dignity… In the constitutional scheme of things that we have adopted in our country, plurality of ideologies and different view points are accepted and respected. No single view point may be fully correct or fully incorrect and yet all of them can peacefully coexist.

The Court was, of course, conscious that judicial discipline demanded that the Koushal judgment be upheld. Quite masterfully, it acknowledged that ‘carnal intercourse’ was an offence, but did not go into the question of whether it was morally wrong and would ‘leave it at that’.

The High Court then capitalised on the poor reasoning of the judgment in Koushal to narrow its precedential value, holding that the Indian Supreme Court’s judgment rested significantly on the presumption of constitutionality and did not cast light on the ‘subject matter’ of homosexuality in general. It concluded by saying that although it neither ‘endorsed nor deprecated’ the ideas in the film, the state’s failure to grant the tax concession was unconstitutional.

These two judgments suggest that the imperfect legal reasoning adopted in Koushal makes it highly susceptible to narrowing. The silent disintegration of judgments – as an alternative to the more hard-edged options of judicial overruling or legislative repeal – is a common phenomenon. In the United Kingdom, the House of Lords gradually retreated from its controversial decision in Pepper v Hart (allowing parliamentary proceedings to be cited for the purposes of statutory interpretation). In the United States, the Roberts Court has narrowed precedents in many areas, including abortion, campaign finance and affirmative action. Richard Posner describes this as ‘boiling the frog’. The unpleasant analogy is that if you want to boil a frog, you put it in warm water and gradually turn up the heat – if you were to drop it in boiling water, it would jump out at you. Koushal’s emasculation has begun. The water may not be boiling – but it is warm.

 

Chintan Chandrachud is a PhD Candidate at Sidney Sussex College, University of Cambridge and India Correspondent for the UKCLA Blog. 

 

Suggested citation: C. Chandrachud, ‘Koushal v Naz: The Third Way Out ’ UK Const. L. Blog (30th November 2014) (available at http://ukconstitutionallaw.org)

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Mark Elliott: A “Permanent” Scottish Parliament and the Sovereignty of the UK Parliament: Four Perspectives

MarkThe Report of the Smith Commission for Further Devolution of Powers to the Scottish Parliament has been published. It contains an array of significant proposals concerning the devolution of further authority to the Scottish Parliament. Stepping back from the detail, however, it also contains two — related — proposals that are potentially of constitution significance in bigger-picture terms.

In his foreword, Lord Smith writes:

The Scottish Parliament will be made permanent in UK legislation and given powers over how it is elected and run. The Scottish Government will similarly be made permanent.

In the report itself, these ideas are fleshed out (slightly) in the following terms:

UK legislation will state that the Scottish Parliament and Scottish Government are permanent institutions.

The report goes on to say that:

The Sewel Convention will be put on a statutory footing.

Viewed from a purist legal-constitutional perspective, these statements promise more than they can deliver — but, this post will argue, this does not necessarily diminish their significance.

Can the UK Parliament relinquish its authority?

Saying (as the report does) that UK legislation “will state” that the Scottish Parliament and Government are permanent institutions is not the same as saying (as the foreword does) that the Scottish Parliament “will be made” permanent. An Act of the UK Parliament might say that the Scottish Parliament is permanent, but that will not necessarily make it so. This follows because, at least on an orthodox analysis, the UK Parliament is incapable of legally diminishing its sovereign authority.

The point was well made by Laws LJ in Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), [2003] QB 151. The focus in that case was upon the relationship between EU and UK law, which raised questions about whether the European Communities Act 1972 (“ECA”) was in any sense entrenched, so as to make it capable of prevailing over other, including subsequent, legislation. Laws LJ thought not:

Whatever may be the position elsewhere, the law of England disallows any such assumption. Parliament cannot bind its successors by stipulating against repeal, wholly or partly, of the ECA. It cannot stipulate as to the manner and form of any subsequent legislation. It cannot stipulate against implied repeal any more than it can stipulate against express repeal. Thus there is nothing in the ECA which allows the Court of Justice [of the EU], or any other institutions of the EU, to touch or qualify the conditions of Parliament’s legislative supremacy in the United Kingdom. Not because the legislature chose not to allow it; because by our law it could not allow it. That being so, the legislative and judicial institutions of the EU cannot intrude upon those conditions. The British Parliament has not the authority to authorise any such thing. Being sovereign, it cannot abandon its sovereignty.

Laws LJ went on to suggest that the ECA was a “constitutional statute” and was for that reason immune from implied repeal, but that is a distinct matter (to be considered later). Questions about the status of the Scottish Parliament clearly arise in a context different from that which applied in Thoburn, but they raise comparable fundamental issues. If the UK Parliament were legislate to the effect that the Scottish Parliament “is permanent”, the implication would be that the UK Parliament had become incapable of abolishing the Scottish Parliament. Equally, if the Sewel Convention — which provides that the UK Parliament will not normally legislate on devolved matters absent the consent of the relevant devolved legislature — were “put on a statutory footing”, the implication would be that the UK Parliament was legally disabled from legislating on devolved matters absent such consent.

However, orthodox constitution theory — as the dictum above from Thoburn indicates — suggests that any statements along these lines that were inserted into a UK statute would not be legally binding. Because, “[b]eing sovereign, it cannot abandon its sovereignty”, any provision in legislation purporting to limit the UK Parliament’s capacity to legislate would be ineffective: it would constitute an attempt to do the one thing that a sovereign legislature cannot do.

Viewed, then, through a purist legal-constitutional lens, the promises concerning a “permanent” Scottish Parliament ring rather hollow. However, three alternative perrspectives yield rather different conclusions. The remainder of this post will attempt to do no more than briefly sketch those three alternatives in increasing order of potential legal significance.

Political considerations

The first possibility is that UK legislation providing for a permanent Scottish Parliament and placing the Sewel Convention on a statutory footing would be politically but not legally significant. In other words, they would constitute a crystal-clear commitment on the part of the Westminster Parliament to desist from interfering in Scottish devolved affairs. Importantly, however, on an orthodox legal analysis, this commitment would amount to an undertaking not to exercise sovereign authority that would persist in Westminster, as distinct from something that would detract from that sovereign authority. An analogy may be drawn with section 4 of the Statute of Westminster 1931, which provides that:

No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to a Dominion as part of the law of that Dominion, unless it is expressly declared in that Act that that Dominion has requested, and consented to, the enactment thereof.

The effect of this provision was not to legally disable the UK Parliament, as a matter of UK constitutional law, from legislating for Dominions against their wishes — but, as Lord Denning MR observed in Blackburn v Attorney-General [1971] 1 WLR 1037, ‘Freedom once given cannot be taken away. Legal theory must give way to practical politics.’ A similar point might be made in relation to devolution, its technical legal reversibility being eclipsed by the political difficulty — if not impossibility — of putting the devolution genie back in the bottle.

Contingent entrenchment

Second, it may be possible for a provision in a UK statute that sought to secure the permanence of the Scottish Parliament to be entrenched contingently rather than absolutely. In other words, rather than attempting absolutely to prevent future UK Parliaments from acting inconsistently with such a provision (by abolishing the Scottish Parliament), an attempt might instead be made to stipulate conditions that would have to be fulfilled before the permanence provision could be overridden. For instance, a requirement of a special (e.g. two-thirds rather than simple) majority or a special form of words (e.g. express rather than implied) might be required. However, the possibility of such contingent — or “manner and form” — entrenchment is not firmly established as a matter of UK constitutional law. Some cases — including Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), [2003] QB 151 and Ellen Street Estates v Minister of Health [1934] 1 KB 590 — pour cold water on the idea. Other decisions, however, are more sympathetic, certain of the Law Lords’ speeches in Jackson v Attorney-General [2005] UKHL 56, [2006] 1 AC 262 being cases in point.

If contingent entrenchment were deemed possible, then interesting questions would arise concerning how far this idea might be pressed. Could, for instance, the Westminster Parliament contingently entrench a provision guaranteeing the permanence of the Scottish Parliament on the basis that such a provision could not be overridden or repealed unless a condition requiring the Scottish Parliament’s consent were fulfilled? This would technically amount to contingent entrenchment — it would be a condition capable of being fulfilled, thereby leaving open the theoretical possibility of abolition — but it would amount to a condition so hard to fulfil and so unlikely to be fulfilled as to disclose an effective diminution in Westminster’s authority. This, in turn, raises questions about whether any theory of contingent entrenchment would admit of conditions outwith the control of the Westminster Parliament (compare, e.g., special-majority requirements and requirements concerning referendums or the approval of an external institution).

Constitutional statutes and common-law constitutional values

A third possibility is that the courts might regard a provision stipulating that the Scottish Parliament was sovereign to be a “constitutional” provision. (The courts might instead regard the whole of the UK Act concerned to be a constitutional statute, although, as David Feldman, “The nature and significance of ‘constitutional’ legislation” (2013) 129 LQR 343 shows, the notion of constitution provisions as distinct from statutes makes more sense.) Applying the kind of approach advocated in Thoburn and in R (HS2 Action Alliance) v Secretary of State for Transport [2014] UKSC 3, [2014] 1 WLR 324, this would suggest that the provision in question would enjoy a superior legal status to ordinary statutory provisions. However, at least in its current state of development, the notion of constitutional legislation (or provisions) appears to suppose that any such special status amounts in practice to nothing more radical than immunity from implied repeal. This hardly suggests that characterising the permanence provision as a constitutional one would confer significant legal (as distinct from political) security upon the Scottish Parliament.

However, one of the significant aspects of the analysis in HS2 (about which I have written at greater length here) is that attention was paid to the relationship between constitutional values and statutory constitutional provisions. In HS2, the constitutional fundamentality that was ascribed to Article 9 of the Bill of Rights 1689 was said to derive not from the fact that the Bill of Rights was a constitutional statute, but from the normative significance of the value codified by Article 9. The Supreme Court therefore doubted whether the ECA 1972, notwithstanding that it has been characterized as a constitutional statute, would prevail (absent express provision) over the value codified by Article 9.

Viewed from this perspective, a provision in a UK statute stipulating the Scottish Parliament’s permanence might equally be considered to be a codification of the underlying constitutional value of the autonomy and enduring nature of devolved institutions. Significantly, HS2 contemplates the possibility that not all constitutional values and provisions might be equal, and that some might be deemed to enjoy a deeper level of fundamentality than others. A statutory provision guaranteeing the permanence of the Scottish Parliament might well fall into such a category — and, if it did, it might turn out that the practical consequences of its inclusion in such a category went beyond mere immunity from implied repeal. Whether any constitutional value is so fundamental as to be wholly beyond disturbance by Westminster is, of course, an unresolved matter — but the possibility of such a super-fundamental category of values is of a piece with oft-cited judicial assertions in Jackson to the effect that rule-of-law requirements such as the availability of judicial review may point towards in extremis limitations upon the UK Parliament’s authority.

It is of the essence of our unwritten constitution that we cannot predict with certainty how constitutional crises that test the limits of legislative authority will play out. However, it is fair to say that our courts are sketching a constitutional order that is increasingly normatively rich, and which forms an increasingly hostile environment for an unreconstructed notion of the sovereignty of the Westminster Parliament.  It would be foolish to assert with certainty that if a future UK Parliament were to renege on the settlement proposed by the Smith Commission, it would — as a matter of law — be able straightforwardly to do so. It would, however, be equally foolish to assert that courts would stop in their tracks a UK Parliament that wished to proceed in such a way. Traditional analysis holds that the hard edges are knocked off the legal doctrine of parliamentary sovereignty by means of recourse to political constitutionalism. However, as I have argued elsewhere, the relationship between merely political and more fundamentally constitutional forms of restraint requires further exploration. There are, arguably, points at which the distinctions between legal, political and constitutional forms of restraint begin to break down — and the more fundamental the norm at stake, the greater is the stress under which such distinctions are placed.

Against this background, the proposal to legislate for restraints upon the UK Parliament — so as to attempt to secure the permanence of the Scottish Parliament — is intriguing. One way of understanding the proposal is as a tacit acknowledgment that reliance upon political restraint in Westminster is no longer perceived — from a Scottish perspective — as sufficient, and that the sort of harder, legal dividing lines familiar in federal systems are regarded as necessary. The difficulty is that grafting such an approach onto a system premised upon the sovereignty of a central legislature is far from straightforward. This problem, however, is one that stems from an understanding of the UK constitutional system that may be getting past its sell-by date.

Viewed in this way, the proposals of the Smith Commission harness what might, in time, turn out to have been the dawn of a new era of constitutionalism in the UK: one that is not content to rely purely upon political constitutionalism as a means by which to contain the potential for excess implied by legislative supremacy, but which instead invokes the constitution itself — in potentially legal as well as political guise — as a vehicle for supplying such restraint. It follows that while, from an orthodox legal-constitutional perspective, guarantees as to the Scottish Parliament’s permanence contained in a UK statute would not be worth the paper they were printed on, it should not be taken for granted that that perspective is the right one from which to attempt to gauge the political or legal implications of what is being proposed.

Mark Elliott is Reader in Public Law at the University of Cambridge. He can be found on Twitter as @DrMarkElliott. This post first appeared on Mark’s blog, Public Law For Everyone

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Stephen Tierney: Is a Federal Britain Now Inevitable?     

stierneyThe Smith Commission Report issued today promises a restructuring of the United Kingdom which may prove to be more significant than the devolution settlement of 1997-98 itself; the acquisition of extensive tax and welfare powers would make Scotland one of the most autonomous regions in western Europe.

Notably the UK’s economic and fiscal coherence has hitherto been a key factor in allowing the asymmetrical and ad hoc nature of devolution to embed itself without any great disruption to the constitutional structures of the central state. With the dismantling of this system it seems that a tipping point might well be reached for our lop-sided and messy system of territorial government. The Smith Commission proposals, if implemented, will have knock-on consequences for several fundamental features of the UK constitution: parliamentary supremacy, the idea of the House of Commons as a national chamber for Britain, possibly the nature and composition of the House of Lords, and the relative freedom of the UK Government in its dealings with the devolved executives. It is perhaps ironic therefore, but I believe also inevitable, that a process which was designed studiously to avoid the federal question will now bring federalism to the table as possibly the only medium term solution to the deep imbalances which will come with further, radical powers for the Scottish Parliament.

How Does Smith Raise the Federal Question?

Federalism has rarely been seen as an attractive option by the British political class, and its feasibility as a constitutional project for Britain is certainly not beyond question. But some kind of federal solution will surely be needed to deal with two related issues: the extent to which Scotland’s representation within the House of Commons, so far only marginally affected by devolution (reduced from 72 to 59 by way of the Scotland Act 1998 as amended), will appear ever more anomalous as the Scottish Parliament’s powers expand; and the very real risk that as Scotland becomes ever more detached from Westminster, the Union will become largely irrelevant to many Scots. The latter is far more dangerous since it could well mean that Scottish independence is in the longer term now more rather than less likely. If this is true the unionist parties, which make up the majority of the Smith ‘Commission’ (which was in reality an inter-party bargaining group), risk seizing defeat from the jaws of referendum victory.

Viewed in this way it is not too dramatic to say that federalism may become the last throw of the dice for the Anglo-Scottish union: serving both to manage relations between a hollowed out central state and its nations/regions, and giving Scotland a sense of purpose in union as well as a sense of strength in autonomy.

I have discussed the inadequacy of the Smith process elsewhere. I won’t dwell on that issue here except to observe that once again, as in 1997-98, the UK has embarked upon a radical reorganisation of territorial authority on the hoof, formulating powers for Scotland without a broader conversation about what this will mean for the wider UK or for how Parliament functions.

But while from the perspective of ‘winning’ the referendum there was arguably a political imperative to set up Smith (see The Vow), this does not change the fact that the exclusion of the rest of the UK from its deliberations makes little sense. While independence is arguably a unilateral decision, further devolution for Scotland is not, and surely cannot be dealt with only by Scottish politicians determining simply what Scotland wants. The UK Government itself recognised this in 2012. It ruled out a multi-question referendum which would include a third option of ‘devo-more’ on the basis that further devolution would have to be discussed and negotiated across the UK; there was certainly sense to this. But on 18 September this was precisely the alternative to independence which was offered to voters. The Vow in effect meant that those voting No were not choosing the status quo but instead were signing a blank cheque for the as yet unformed Smith Commission.

Leaving process and principle to one side, the substantive consequence of this is that we have yet another asymmetrical process that promises to transfer more and more powers to the Scottish Parliament, making an already very lop-sided system of territorial decentralisation ever more so. On this basis the Smith report can only be a proposal. The UK Government will surely only agree to the increased powers for the Scottish Parliament it recommends if the whole package works to the advantage of the rest of the UK, for example by reducing or removing the perceived Scottish subsidies contained within the Barnett formula. The Smith Commission attempts to answer the Scottish question; but in doing so it in fact also raises the British question: how will the institutions of the British state adjust both to manage these new powers and to deal with the issue of fair representation across the state?

Federalising Britain: Correcting the ‘Representation Deficit’

There is much confusion about what federalism is, partly because of a failure to distinguish ‘federation’, which is often used to provide a very strict definition of the institutional nature of a federal state, from ‘federalism’ which is a much more flexible term, capturing what Daniel Elazar calls the inter-related ‘self-rule’ and ‘shared rule’ dimensions of territorial relations within a state.

From this perspective we can see the lop-sidedness of UK devolution as being all about the grant of ‘self-rule’ with very little focus upon ‘shared rule’; dispersing power to the Scotland, Wales and Northern Ireland without also binding them closely within the institutional structures of the central state. This is in effect a ‘representation deficit’ and Smith indicates that steps must be taken to avoid devolution falling further into the black as it were. The radical levels of tax devolution which Smith presages must be accompanied by a reimagining of the place of regions and nations within the decision-making bodies of the central state. This is needed both to correct unfairness within the system (for example a now more stark West Lothian issue) and to stem the pathology of a slow descent towards independence which might result from a system that offers detachment without any correlating integration.

Here are four questions which must now be answered after Smith:

  • Can further devolution be proposed only for Scotland, without provoking decentralisation across the UK?

An issue that accompanies the lop-sidedness of devolution is its strong asymmetry; what I have called double asymmetry: only some parts of the state are devolved, and those which are have very different models of government.

Each of these two features is likely to change. There are now proposals for strong devolution for Manchester. Attempts by the Blair government to promote a regionalist agenda fell flat but a new agenda, focused also on cities, which promises powers over areas such as housing, transport and economic development might be bolstered also by representation for English cities and regions in a revamped House of Lords (discussed below). Another incentive for regional powers could well be the sense that a Scottish Parliament with tax powers might use these to gain different forms of competitive advantage which should be countered within English regions. There is no mention of English devolution in Smith but it is now on the agenda.

If the powers of the Scottish Parliament increase, Wales will no doubt lobby for further competences if the current trajectory of Wales tracking Scotland’s growing autonomy continues. Federalism does not require symmetry, but in the past ten years we have seen Welsh devolution move closer to the Scottish model and this trend could well continue.

  • Can powers be taken away from Westminster with no impact on how Westminster is composed or how it operates?

Immediately after the referendum David Cameron tied new powers for Scotland to a concomitant recalibration of the powers of Scottish MPs at Westminster. This was shot down immediately by the Labour Party and the Prime Minister back-tracked. But it appears increasingly that this was a tactical retreat. The West Lothian question cannot be avoided; apart from anything else it will be an issue at the General Election next year. This need not mean an English Parliament but it will require a revision of the role of Scottish MPs at Westminster, perhaps along the lines of the McKay recommendations.

Another proposal, which would go some way to deal with the representation deficit, is reform of the House of Lords. Ed Miliband in his speech to the Labour Party conference in September 2014 suggested a new chamber of the nations and regions of the UK. This idea was earlier advanced by Gordon Brown. This would only be feasible if accompanied by meaningful devolution to English regions and cities and again it is not mentioned in Smith. But such a reformed chamber could offer a genuinely union-focused institution at the centre of the state, pushing back against the relentlessly fissiparous trajectory which Smith alone might otherwise deliver.

  • Can the Scottish Parliament become one of the most powerful sub-state legislatures in the Western world with no formalisation of the competence limits between it and Westminster?

Another dimension typical of a federal system is that both the central and regional tiers of government have constitutionally-demarcated spheres of operation. The reassertion of parliamentary supremacy in, for example, the Scotland Act is another way in which the UK has hitherto looked non-federal. But Smith now proposes that the Scottish Parliament be made ‘permanent’ (para 21). Such a move would presumably also extend to the prohibition of removal of its powers without the Scottish Parliament’s consent: Smith confirms that the Sewel convention will be put on a statutory footing.

There are various ways in which this could be done. One is of course a self-conscious reconstitution of the state – reforming the state’s rule of recognition around a new foundational document: a Liberal Democrat report has called for ‘a declaration of federal union’. But this is surely unnecessary. Some arrangement analogous to the European Communities Act 1972, but building in more explicit self-limitations on Parliament’s powers, would no doubt satisfy those who want guarantees of Scottish home rule, without dealing with the kompetenz-kompetenz issue which is still left open post-Factortame. This seems to be what Smith envisages in providing that its permanence will be guaranteed by ‘UK legislation’ (para 21). Another related way to do this would be through a new Act of Union or Acts of Union passed in parallel by the two parliaments. Technically it could be argued that each could be open to repeal (s37 of the Scotland Act 1998 would need to be taken into account), but by another reckoning such a double endorsement could take on an unsettled constitutional status as did the 1706/07 Acts, at least as viewed within the Scottish legal system. Smith also refers to the ‘sovereign right of the people of Scotland to determine the form of government best suited to their needs’ (para 20); again, if any such reference were to be included in the preamble of a new statute, this would add considerable weight to the constitutional status of legislation designed to ‘entrench’ the Scottish Parliament.

  • Can a territory enjoying such a delegation of powers continue to interact with Whitehall on the basis of informal and discretionary arrangements?

Another area which has been lacking is any formalisation in the ways in which sub-state executives interact with the UK government. So far devolution has worked through very informal arrangements through the Joint Ministerial Committee system, supported by Memoranda of Understanding and supplementary ‘concordats’. If the Scottish Parliament is empowered to set radically different fiscal and welfare priorities this could put great strain on the system and some form of formalisation may well be needed. This is recognised firmly by Smith. Lord Smith himself in his foreword to the Report asserts that ‘weak inter-governmental working… needs to be fixed. Both Governments need to work together to create a more productive, robust, visible and transparent relationship.’ This is fleshed out in Pillar 1 of the Report which calls for the ‘urgent’ reform of the JMC and a new Memorandum of Understanding to formalise inter-governmental (and inter-parliamentary) relations and open them up to ‘much stronger and more transparent parliamentary scrutiny’ (para 30). The proposals extend also to the area of UK relations with the EU. Smith recommends that Scottish Ministers be ‘fully involved’ in agreeing the UK position in EU negotiations relating to devolved policy matters, that they be consulted before final UK negotiating positions relating to devolved policy matters are fixed, and that devolved administration ministers be allowed to speak on behalf of the UK in Brussels in certain circumstances (para 31).

These measures could also help resolve the representation deficit by again giving Scottish (and surely the other sub-state governments) a clearly demarcated say in setting central government policy priorities in areas of shared concern. Certain issues could be unpalatable for some, for example giving the regions effective veto powers in relation to certain matters, perhaps exercised through the reformed second chamber (a measure that would require amendment to the Parliament Acts). But powers of this kind may be needed to give the union a real sense of meaning to those on the periphery.

Federalism: Feasible Within our Unwritten System?

To conclude, the federal idea is a more open canvas than the term ‘federation’ would suggest. It is flexible and open to a range of institutional possibilities; arguably it does not even require full-blown codification through a new foundational document. Indeed, it seems to me that the UK has been on a federal trajectory at least since 1998 and that Smith can be seen as another stage, albeit a dramatic one, on this incremental journey. But a number of important changes do seem likely to accompany a significantly strengthened Scottish Parliament. For example, we may well see a demand for regionalism in England, a recalibration of the House of Commons, and possibly also radical reform to the House of Lords. Efforts to make the Scottish Parliament permanent will take on a federal perspective, seeming to limit Westminster’s supremacy in this sphere at least; if this occurs a concomitant formalisation of respective executive powers also seems likely as Smith suggests.

Such reforms would both extend and crystallise the ‘self-rule’ dimension of a federalising UK while also offering institutional corrections to the representation deficit. Whether all of this will create a stronger sense of partnership and a renewed sense of belonging to a common union we simply don’t know, but without such a broader set of reforms the Smith process may well further unsettle the union it was intended to save.

 

Stephen Tierney is Professor of Constitutional Theory in the School of Law, University of Edinburgh and Director of the Edinburgh Centre for Constitutional Law. ESRC Senior Research Fellow, ESRC Centre on Constitutional Change

Suggested citation: S.Tierney, ‘Is a Federal Britain Now Inevitable?’ (27th November 2014) (available at http://ukconstitutionallaw.org).

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