Author Archives: Constitutional Law Group

Event: 2014 Public Law Lecture

ThomsonBangor University School of Law is delighted to host the 2014 Public Law Lecture sponsored by the journal Public Law, a Thomson Reuters publication.

The lecture, hosted as part of the school’s 10th Anniversary Celebrations, will be delivered by the Rt. Hon. The Lord Thomas of Cwmgiedd, Lord Chief Justice of England and Wales

Thursday 9th October 18:30

Main Arts Building, Bangor University, College Road, Bangor, Gwynedd, LL57 2DG

For further information and to register your attendance please visit: https://www.eventbrite.com/e/lord-chief-justice-of-england-and-wales-annual-public-law-lecture-sponsored-by-thomson-reuters-tickets-12523834125

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Graham Gee: Do Lord Chancellors defend judicial independence?

graham-gee-webAs part of its inquiry into the office of Lord Chancellor, the Constitution Committee asks whether “new” (i.e. post-2003) Lord Chancellors have actually defended judicial independence in line with their customary and now statutory duty to do so. I was asked for examples earlier this summer when appearing before the Committee (with Andrew Le Sueur and Patrick O’Brien). I tried to identify some, but rather garbled my answer. Earlier in the year I also sketched some thoughts about Lord Chancellors in Public Law, but struggled to find clear-cut examples. One reason is that collective cabinet responsibility and the confidentiality of exchanges between Lord Chancellors and judges mean that outsiders will seldom have a full picture of what has occurred behind closed doors. This is unfortunate since my impression is that many lawyers assume—mistakenly, I think—that new Lord Chancellors are neither willing nor able to defend judicial independence. This post is hopefully third time lucky in correcting this assumption. By drawing on press reports, public statements and interviews that Robert Hazell, Kate Malleson, Patrick O’Brien and I conducted between 2011-2013, I want to piece together evidence that suggests that new Lord Chancellors can and do defend judicial independence.

Ministerial Criticism

An important part of the Lord Chancellor’s role is to encourage colleagues to respect the convention that ministers should not criticize judicial decisions or the judges who deliver them. One way Straw sought to “repair fences with the judiciary” (p498) after the tensions of the Blair era was by clamping down on breaches of the convention, as obliquely acknowledged in 2010 by the LCJ (Q13). Few ministers, if any, broke the convention during Straw’s tenure as Lord Chancellor. According to a senior official we interviewed, officials in Straw’s private office would contact counterparts in other departments in advance of judgments in politically contentious cases to remind them that ministers must not criticize judicial decisions in public. The contact was between officials, but reflected the tone set by Straw.

Not all Lord Chancellors will be as successful as Straw in promoting respect for the convention: from time to time ministers will vent their frustration. The question that then arises is whether the Lord Chancellor will fulfill his or her duty by, for example, speaking with the ministers, rebuking them and eliciting an undertaking that their outbursts will not be repeated. In 2006, the Home Secretary, John Reid, criticized the sentence handed down to Craig Sweeney, a sex offender. Further criticism followed from the PM’s spokesman in a press briefing and Vera Baird, a junior minister at the Department of Constitutional Affairs. This episode is commonly cited as one where Lord Falconer, “did not fulfill [the Lord Chancellor’s duty] in a satisfactory manner”.  But, as I see it, this should be read as an example of a Lord Chancellor energetically —and, if a long view is taken, rather successfully—enforcing his duty.

No doubt this whole episode was unedifying. But it is difficult to imagine what more Falconer could have done. According to our interviews, the Lord Chancellor spoke with the Home Secretary on the day of his comments. During a tense conversation, Reid indicated that he would not repeat the criticism. When on the next day the PM’s spokesman endorsed Reid’s criticism, Lord Falconer spoke with Blair to explain why Reid’s comments were inappropriate. Like Reid, the PM indicated that the criticism would not be repeated. At the end of the week Vera Baird said on the radio that the judge had got the sentence wrong. Falconer spoke with her and procured a written apology, which was published on the department’s website. Falconer also appeared that week on the BBC’s Question Time programme, stressing that judges should not be treated “as whipping boys”. Deciding how to respond to a ministerial outburst is always a question of judgment. It seems reasonable for Falconer to have concluded that discreet action behind closed doors would be more effective than more public steps. And arguably he was proven correct: so far as I can recall, Reid did not breach the convention during the rest of his time as Home Secretary, at least not as brazenly, with Blair also muted in his public comments on the courts during his final year as PM. Viewed in this light, Falconer could be said to have fulfilled his duty effectively.

Much ultimately depends on the lead set by the PM. This in turn raises the question of whether new Lord Chancellors can effectively rebuke the PM, on whose patronage they will depend to a greater extent than their predecessors who were usually at the end of an eminent legal career and not ambitious for promotion. A recent example suggests that new Lord Chancellors will take senior colleagues, and even the PM, to task. In 2011, the PM and Home Secretary criticized the Supreme Court’s decision in Re (F) on the notification requirements for sexual offenders. Ken Clarke wrote to the Home Secretary, with the letter copied to No. 10 in an indirect rebuke to the PM. As reported on The Spectator’s blog, Clarke reminded Theresa May, and by extension David Cameron, that they were “constitutionally obliged to accept the independence of the judiciary”. I suspect that this incident was one that Lord Phillips had in mind when he referred to “one or two occasions” where Lord Chancellors have “made it plain” to ministers and even the PM that public criticism was not acceptable. (As an aside: Clarke himself received a letter from Phillips objecting to the comments and encouraging him to take action. But as one judge remarked, Clarke would likely have done so with or without judicial encouragement).

Responding to Legitimate Judicial Concerns

A second way that Lord Chancellors can defend judicial independence is by listening to legitimate judicial concerns and articulating them inside government. An example is Lord Falconer’s battle over proposed changes to judicial pensions. In late 2004, The Daily Telegraph reported that a row erupted in cabinet over Falconer’s proposal to exempt judges from rules in that year’s budget that would cap tax relief on pension contributions at £1.5m. The Lord Chancellor had promised an exemption to judges before clearing this with his colleagues. In his memoirs Jonathan Powell relates how the matter, quite unusually, came to the cabinet, where Gordon Brown “and others raised strong objections” (63). No decision was taken for several months, but the Lord Chancellor continued arguing for a judicial exemption. Despite opposition from Labour backbenchers, Falconer announced in late 2005 that judicial pensions would be de-registered from the Finance Act 2004, and hence not subject to the cap. In other words, the judges won their exemption with the Lord Chancellor’s help.

Arguably, this episode was less about judicial independence and more about judicial self-interest. But the judges themselves presented the issue as one impinging on their independence—and for present purposes I’ll assume that they were correct. Threats of judicial resignations and judicial review were important alongside Lord Falconer’s efforts. And it is true that in a different financial climate in 2013 the Treasury clawed back the exemption. On its own terms, however, this furore saw the Lord Chancellor resist pressure from powerful colleagues and backbench opposition to successfully represent judicial interests.

Evaluating Lord Chancellors

My point is that there is evidence that Lord Chancellors can and do defend judicial independence. I’m not suggesting that everything in the garden is rosy. Relations between the government and the judges are at times strained, and Lord Chancellors and judges will disagree about how best to manage, organize and fund the courts, and may have serious disagreements about important issues relating to legal aid and judicial review. There will also be times when Lord Chancellors are slow to defend judicial independence, if they do anything at all. All of this is true and yet much, and possibly most of the time, Lord Chancellors still take seriously their duty to defend judicial independence. Over and above this basic insight, four further points must be kept in mind.

First, it is unrealistic to expect new Lord Chancellors to be preeminent guardians of judicial independence in the same way as was said to be true of pre-03 officeholders. One consequence of twinning the office with the role of Secretary of State for Justice is that Lord Chancellors spend much less time on judiciary-related issues. This likely makes it more difficult to respond as swiftly to judicial concerns. But even if the post-2003 Lord Chancellors are less reliable and less proactive guardians, and even if they not a systematic defender of judicial independence, this does not mean that their role is without value.

Second, the fact that Lord Chancellors might not be the preeminent guardian is off-set by the many other actors who contribute to judicial independence. Some have a clear responsibility to do so (e.g. the LCJ; the JAC; the JCIO, the Constitution Committee); others do so indirectly via their day-to-day work (e.g. the clerks in the Table Office). Other actors within government help foster judicial independence (e.g. the Attorney General; the Treasury Solicitor; other government lawyers). The Lord Chancellor is only one part—albeit, as the examples above demonstrate, a very important part—of the way judicial independence is secured.

Third, politicians without the legal pedigree of old-style Lord Chancellors, or who are not even lawyers at all, can grasp the importance of judicial independence. Several of our judicial interviewees commended recent Lord Chancellors, albeit acknowledging that they had not always seen eye-to-eye with them. One senior judge, for example, said that Straw and Clarke clearly understood judicial independence, and another judge said that he had been “quite impressed” by Grayling despite his lack of legal training, a view echoed by a third judge. New-style Lord Chancellors will not sound like their predecessors, and often this grates on lawyers’ ears (e.g. when Ken Clarke could not recall how many women were on the Supreme Court). But lawyers should be less precious about this, and recognize instead that the new Lord Chancellors can potentially bring something of value to policy discussions (e.g. by adding political impetus to the judicial diversity debate or encouraging judges in leadership roles to “succession plan”).

Finally, Le Sueur and O’Brien have each argued that the office should be abolished, with its functions easily subsumed within the twinned role of Secretary of State for Justice. (See Patrick O’Brien’s posts here and here). I disagree. There is still value in ascribing certain important constitutional functions to the office of Lord Chancellor as distinct from, even if occupied by the same person as, the Secretary of State. This can assist officials who brief new ministers about the office’s special responsibility to defend judicial independence, especially important if the new minister is not legally qualified. It presumably also helps a Lord Chancellor when reprimanding colleagues if he or she can point to their customary duty as Lord Chancellor. And as Lord Hope has suggested, “we would lose something intangible” if the office was scrapped. In a constitution such as ours, symbols such as the office of Lord Chancellor matter. But, above all, now is not the time to inject more uncertainty into the judicial system by scrapping the role. Judicial-executive relations have changed considerably since 2003, and will do so for some time yet as the full implications of recent reforms become clear. What is required now is a period of relative stability to allow new practices to solidify, leadership roles to become clearly defined and relationships to mature.

 

Graham Gee is a lecturer at the University of Birmingham. Between 2011-13, he worked with Robert Hazell, Kate Malleson and Patrick O’Brien on an AHRC project exploring, amongst other things, the office of Lord Chancellor. Their book on The Politics of Judicial Independence in the UK’s Changing Constitution is published by CUP in 2015.

Suggested citation: G. Gee,Do Lord Chancellors defend judicial independence?’ U.K. Const. L. Blog (18th August 2014) (available at http://ukconstitutionallaw.org).

 

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Graham Allen: Kick-starting the debate on a codified constitution for the UK

Graham AllenDoes the United Kingdom need a codified constitution? It’s a question on which generations of law students will have had to write essays, burning the midnight oil and scribbling or tapping away into the night, rehearsing the pros and the cons. But I want it to be something else: the start of a lively and passionate public debate that could result in real change to our country’s democratic set-up.

Parliament’s Political and Constitutional Reform Select Committee, which I chair, has just launched a major consultation which aims to do just that—get people to think properly for the first time about whether having the political rulebook written down in one place might actually be a positive development for our democracy.

Example constitutions

The consultation follows on from a unique four-year project which has seen the Committee working collaboratively with King’s College London. At the end of July, we published the results of this work in a report called A new Magna Carta? The report represents the most comprehensive attempt to date to provide different detailed models of a codified constitution for consideration and comparison. It includes three illustrative blueprints that show what form a codified constitution could take:

  • A constitutional code: a document sanctioned by Parliament, but without statutory authority, and which would set out the essential existing elements and principles of the constitution and the workings of government.
  • A constitutional consolidation Act: a consolidation of existing laws of a constitutional nature, the common law and parliamentary practice, together with a codification of essential constitutional conventions.
  • A written constitution: a document of basic law by which the United Kingdom would be governed, setting out the relationship between the state and its citizens, including an amendment procedure and some elements of reform.

There have been previous attempts to produce illustrative constitutions for the UK. Among the notable examples are O. Hood Phillips QC (1970), Lord Hailsham (1976), Frank Vibert (1990), John Macdonald QC (1990), Tony Benn (1991), and the Institute for Public Policy Research (1991). Professor Robert Blackburn, who created the blueprint constitutions on the Committee’s behalf, has drawn on some of these previous attempts, and in presenting different options he has moved the debate forward. The blueprints can be regarded as standalone documents, in the sense that each is an example of a particular approach to codifying the constitution, or as three stages, resulting in a fully codified constitution.

The process of codification

In addition to the blueprints, the report contains a paper setting out the process that could be adopted in the preparation, design and implementation of a codified constitution. Using the three blueprints, the paper suggests that different models of codification would require different processes. The paper recommends that in the case of the constitutional code, “the Cabinet Office prepare a first draft of the document, building on its pre-existing guide to the law, conventions and rules on the operation of government set out in its Cabinet Manual.” For the Constitutional Consolidation Act, the paper recommends “it would be appropriate for the purpose and scheme of the proposal, together with the reasoning behind it and any problems and issues to be settled, to be set out in an initial Green Paper, inviting public and parliamentary response.” The suggestion is then that the Government ask the Law Commission to carry out the task of consolidation. In a letter to Professor Blackburn, Sir David Lloyd Jones, the Chairman of the Law Commission of England and Wales wrote: “the task of bringing together in one statute, and modernising the language of, various provisions of existing statute law relating to constitutional matters is one for which, in principle, the Commission would be well suited.”

In the case of a fully-fledged written constitution, the paper suggests that “the most suitable way forward would be for a Commission for Democracy to be set up under ministerial authority for the purpose, following cross-party talks reaching consensus on its general aims, form of composition and method of working.” Its initial task would be to draw up a written constitution, which would then be subject to political and popular approval. But a Commission for Democracy could also be a permanent part of our society, with a remit to improve the quality of our political democracy and enhance engagement.

Why now?

Of course, an essential pre-requisite to any of these processes would be cross-party agreement that codification was necessary. I believe that that agreement might be closer than people think. This is a very opportune moment to be revisiting and revitalising the debate on codification. We are living through a period of considerable constitutional change. During the past 20 years, under Governments of different political stripes, significant developments have included the removal of most hereditary peers from the House of Lords, freedom on information legislation, the establishment of the Supreme Court, the introduction of fixed-term Parliaments, and the domestic legal entrenchment of human rights. There has been devolution in Scotland, Wales and Northern Ireland, but there is still suffocating over-centralisation in England, with local government acting merely as the delivery arm of central Government. The United Kingdom itself is under stress. We’ve also had our first collation Government in recent times. Some constitutional flexibility is a good thing, but I believe it’s also important that people have somewhere to go where they can find and understand the country’s constitutional arrangements—the framework within which change is taking place.

Evidence of disengagement with mainstream politics is all around us. It can be seen in turnout rates for recent elections and the rise in support for what is essentially an anti-politics party. People don’t feel that politicians represent their views or understand their lives. But I don’t think people are apathetic about politics. They care passionately about local and global issues. They just feel that the world of mainstream politics is remote, inaccessible, and frankly sometimes incomprehensible.

A codified constitution wouldn’t solve all these problems. But it would be a start. It would mean that for the first time in the history of our country people would be able to go to one document to find the rules that govern how the state exercises power in our democracy. I hope that, in time, the constitution would become a tangible source of national pride. Every school child would know where to find it.

Consultation

The Select Committee’s consultation, which runs until 1 January 2015, is asking people firstly for their views on whether the UK needs a codified constitution. It then asks for feedback on the three blueprint constitutions that we have published. We are also interested in hearing what people think should be included in or excluded from a codified constitution and their views on the paper about the process of creating a codified constitution. Responses can be submitted via our website: www.parliament.uk/new-magna-carta-consultation They can be as short as a few sentences or as long as 3,000 words, and they can focus on one aspect of the debate, or many. We’ll be publishing the responses we receive as written evidence on our website as the consultation progresses, so there will be a chance to see the contributions that have already been submitted. After January, we will be working on a report so that we can present the responses to Government ahead of the general election.

Alongside the consultation, the Committee is running a competition to write a rousing 350-word preamble to a codified constitution for the United Kingdom. My attempt is available to read on our website, along with other entries we have received. I’m sure that, as constitutional lawyers, you’ll be able to do a better job than I did and I urge you to have a try. Entries can be submitted via our website: www.parliament.uk/pcrc-preamble

As we approach the 800th anniversary of Magna Carta, this is a once-in-a-lifetime opportunity to shape the future of our democracy—to look forward, as well as back—and to have your say on what the next 800 years should look like. Please read our report on A new Magna Carta? and take this chance to get involved.

 

Graham Allen is Member of Parliament for Nottingham North, and Chair of the Political and Constitutional Reform Committee.

Suggested citation: A. Allen, ‘Kick-starting the debate on a codified constitution for the UK’ U.K. Const. L. Blog (14th August 2014) (available at http://ukconstitutionallaw.org).

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Neil Walker: The Uncelebrated Union

NeilLast week’s first televised debate of the referendum campaign revealed few surprises of tone or content, even if the outcome disappointed pro-independence hopes of a momentum-building surge in support. As expected, Alex Salmond concentrated on the core message of political self-determination, and the prospect of the new Scotland embracing a model of social and economic solidarity that London is increasingly unable or unwilling to deliver. With equal predictability, Alistair Darling for ‘Better Together’ insisted upon the precariousness of the pro-independence position on currency, placing this at the suggestive centre of a wider narrative contrasting the vulnerability of a fledgling Scottish polity to the reassuring solidity of the existing British state with its broader institutional shoulders and deeper pockets. It was not, truth be told, a good night for the ‘ vision thing’. Salmond seemed somewhat less energised and less sure-footed than usual in his portrayal of the promised land, perhaps inhibited by the artificial format of the TV duel and by the strong pre-debate expectations that his quick wits and populist style would win the day hands-down. For his part, Darling, true to form, simply chose not to let his political imagination off the leash. He stuck to a narrow brief, defending the status quo, or at least a soft focus version of it, and concentrating his fire on the supposed gaps and shortcomings of the ‘Yes’ case.

For Better Together, as has so often been the case over 30 months of campaigning, what was not said was more interesting and more revealing than what was. One particularly deafening silence, much commented on in the immediate aftermath, surrounded Darling’s refusal, despite many repeated invitations from his opponent, to offer an explicit endorsement of the proposition that Scotland could be successful as an independent country. In an episode that rapidly descended into Paxmanesque political pantomime, and which hardly flattered either party, Darling’s discomfort was that of someone torn between a desire not to offer a succulent soundbite to the ‘Yes’ campaign (‘Darling makes case for independence’), and an anxiety not to appear dismissive of the potential of his fellow Scots.

There was, however, another telling silence, less apparent, quite unremarked in post-debate commentary, but ultimately of deeper significance. On more than one occasion, Darling referred to Scotland as ‘part of something larger’. Yet when he did so, he omitted to give that larger entity a name. This might seem trivial. After all, everyone knows where and what he was talking about –   who the ‘we’ are who, in his view, are and ought to remain Better Together. And so, perhaps, we should read nothing more into his silence than a (reasonable) assumption of the self-evidence of his object of desire. Yet that would be too simple an explanation. For Darling’s reticence can also be seen as a mark of reluctance, even of unease. It betrays a sense that the state we are in is best left understated, so to speak; and that it might be to the symbolic disadvantage of the ‘No’ campaign to apply a label to the entity whose preservation they seek.

An appreciation of why this is the case takes us to the heart of the question of Scotland’s constitutional future, not just over the vital final weeks of the referendum contest but also in the years to come.

What’s in a name?

The awkwardness begins with the sheer range of candidate labels. Was Darling talking about – or rather not talking about – Britain, or the United Kingdom, or perhaps ‘The Union’? As Aileen McHarg reminds us in a recent post, these are not interchangeable terms, and the uncertain movement between them is a symptom of Better Together’s indecision over whether and how to present a holistic case for the defence. The terms may refer to ( more or less) the same geographical unit, but each speaks in a somewhat different register. Crudely, we may think of Britain as the cultural entity, the UK as the institutional entity, and the Union as the abstract idea – the constitutional key to what these islands hold in sovereign common. Clearly, those different registers – cultural, institutional and constitutional – overlap, and they also closely interact, but they do nevertheless reveal different levels of understanding of our wider political community. And, as we shall see, Better Together is not entirely comfortable operating at any of these three levels.

Take first, Britain. The long decline of Britishness as a dominant national identity from the 19th century high water mark of Protestantism and empire is well-known. As recently as 1970, asked to choose a single nationality as many as 39% of Scots identified as British. By 2013 that figure had fallen to 23%. The significance of this cultural fact in framing the referendum debate Is often overlooked just because it is nowadays so well established. But it can hardly be overestimated. As the Edinburgh Agreement confirms, it is Scotland’s referendum to decide, not Britain’s, and the arguments on both sides – from Better Together every bit as much as the nationalists – always appeal first and foremost, and often enough solely, to the Scottish rather than to the British national interest in making their case.

Yet that is not to say that a cultural sense of Britishness is irrelevant to the debate. Only around a quarter of contemporary Scots assert an exclusively Scottish identity, the rest admitting at least to a residual sense of British identity, and more than one third regularly claiming their British identity to be as strong if not stronger than their Scottish identity.   Migratory patterns further complicate cultural identity. Over 800000 people born in Scotland live elsewhere in the UK, mostly in England; and according to the Scottish Government’s recently published draft interim constitution, those members of that sizeable diaspora who presently qualify as British citizens (i.e., nearly all) would automatically join the vast majority of the 5.3 million Scottish residents as citizens of a newly independent Scotland, including the half million Scottish residents who were born in England (discussed by Nick Barber and Jo Shaw). Ties of family, friendship and work link many people across the four nations well beyond this considerable population of internal migrants, and together with shared language and heritage, and a wide array of cultural institutions from the BBC to the British Lions, and from the royal family to the Trades Union movement, feed a resiliently self-reinforcing sense of affinity and common sentiment.

So while it is a dominant identity for relatively few, being British remains an integral part of the cultural self-understanding of most participants in the referendum. It follows that even if it is emphatically the Scottish rather than the British national interest that is at stake in this referendum, some attention must be paid to British values, and to the value of Britishness, as part and parcel of any attractive conception of that Scottish national interest. No-one understands this better than Alex Salmond, and that is why he has been so ready to extol and to endorse the enduring virtues of British culture to audiences both North and South of the border. It is also why he has been at pains to offer reassurance about Scotland’s post-independence commitment to many aspects of ‘social union’, not least the 400 year old monarchical union. For Better Together, however, despite such nationalist concessions, this remains a delicate subject. Indeed, the generosity of the endorsement of a residual Britishness by Scottish nationalists, in particular by the nationalist leadership, can even serve to highlight Better Together’s own difficulty in painting a more robust picture and a more confident sense of the place of British culture in Scottish political life, and so further expose the tension between culture and polity in any vision of a continuing British state.

What of the United Kingdom? Surely as we move from the cultural software to the institutions that supply the hardware of the modern state the ‘No’ campaign find themselves on firmer ground. For here we are talking about the deeply embedded and closely enmeshed political and economic infrastructure of a 300 year old state; about its common monetary and fiscal framework and financial institutions, its NHS and wider system of social welfare, its dense network of common regulatory agencies, its armed forces, its global diplomatic presence, and its membership of key international institutions from the EU to the UN Security Council, and from NATO to the G8 and G20. And certainly, the kernel of the campaign case for the status quo, as underlined by the formidable sweep and detail of the Scotland Analysis papers of HM Government and by the tendency   of   Better Together spokespersons to disaggregate the case for the UK into its many particular benefits, has been here; in the advantages that accrue from belonging to something tried and tested, bigger and more resourceful, and with a long established international position and global reputational capital.

There is much in all of this, and it may well provide the decisive platform for a ‘No’ vote on September 18th. Yet there is an obvious snag here too. For the stress upon results, what is sometimes called ‘output legitimacy’, leaves the ‘No’ side exposed to counterclaim, and also threatens to cast its overall approach in an unflattering light. To begin with, if it is the record of the British state which supplies the case for the defence, then it is bound to be the entire record, and, of course, there is much both in the UK’s imperial past and in its long post-imperial decline and repositioning that can be singled out for criticism by those who are inclined to emphasise the downside; and once debate is joined at this level, there can be no copper-bottomed, position-independent way of demonstrating that one side’s assessment of the balance sheet is superior to the other’s.

In addition, a results-based assessment has a necessarily contingent quality. Success depends upon performance and performance depends upon the presence and maintenance of favourable   preconditions. On the one hand, this leaves the defenders of the British state vulnerable to arguments that these conditions have been eroded and circumstances have changed; that the UK   as an integrated project in some sense or other has been ‘broken’ or is on the verge of becoming so, whether because of declining financial and diplomatic muscle in a world still suffering the shock waves of the financial crisis. or a congealed neo-liberal consensus at the centre, or the prospect of a UKIP-fuelled marginalisation or exit from Europe. On the other hand, that same preoccupation with successful outputs, and with the conditions of success, also feeds what we might call the tendency towards counterfactual negativism in Better Together’s portrayal of the Yes case. Whether on currency Union, or membership of the EU, or future defence contracts, the No campaign is drawn by its results-orientation to scrutinise closely the basis of the nationalist boast that they could achieve equivalent or better outcomes in another possible world. And while close scrutiny of hypothetical claims is understandable, and perfectly reasonable, it does also help fertilise the view, enthusiastically cultivated by the other side, that the No camp is motivated by narrowly instrumental considerations; that Project Fear and Mission Balance Sheet are its only and small-minded answers to the expansively regenerative politics of nationalism.

Which brings us third, and finally, to the idea of Union. Can this idea – this most abstract rendition of the state we are in – supply the deep constitutional code that holds the cultural pieces of Britain together, and which makes the institutional framework of the UK and its attendant benefits more than the sum of its parts? In some respects, the idea of Union offers an unlikely candidate for this task. As Colin Kidd has ably demonstrated (in his Union and Unionisms ), the history of unionism in these islands is not a singular one, but a complex tapestry of sometimes divergent, sometimes interfluent themes. In particular, the banal conception of Union and unionism – especially well-known in Scotland and Ireland – as shorthand for the single, consolidated and historically both largely centralised and imperially expansive British state, is only one part of the story. The other main version of unionism has been generally less prominent over the modern era, yet it is both etymologically persuasive and more consonant with the everyday meaning of the term. It begins with a much earlier pre-1707 Scottish impulse to address relations with the large English neighbour on the basis of presumptive equality, continues through various iterations over the centuries of legal Union, and has acquired renewed resonance in very recent times. On this alternative view, unionism is counterposed not to nationalism and to the independence of the component parts, but to an idea of English empire over the territory of the British Isles and beyond. The two versions of unionism, then, do have in common the preservation of the British state, but while in the first version the state prevails by denying or disdaining nationalist sympathies, in the second and more progressive version it prospers by accommodating and in significant measure embracing such sympathies.

Arguably, it is the second version of unionism that supplies a more persuasive, if still only partial, reading of recent British constitutional history. Unarguably, it is the second version that must be deepened and amplified if the Union is to prevail in the longer term. The distinctive components of this progressive unionism are both structural and ethical. In structural terms, the Union offers a very special model of constitutional design, incorporating a rare idea of constitutional authority. The Union state is understood – at least ideally if not always strictly as a matter of historical record – as a conditional compact between sub-state national authorities, each of which retains or (in the less idealised version) rescues and regains some core of constituent power – some claim of national right – to revisit the terms and the very existence of Union. The Union state, then, emerges and matures through a process of evolution and according to the shifting balance of constitutional forces, rather the unfolding of a single master project. Equally, its form always remains provisional, open to further development rather than a matter of finality. And its shape is inevitably asymmetrical, reflecting the different composition and aspirations of its national parts – what Michael Keating (in Plurinational Democracy) calls its ‘plurinational’ rather than its ‘multinational’ pedigree – rather than the careful symmetry of the units we find in classical federalism. Last, and most fundamentally, the Union state, progressively understood, must draw a distinction between constituent power and constituted authority – or between (plural) political sovereignty and (singular) legal sovereignty. The coherence of the polity requires that a particular settlement of legal authority hold firm at any particular time and cannot lightly be overturned, but the need to respect the equality of the national parts also requires – whether or not as part of a formal constitutional amendment procedure – that this settlement remain open to revision in a way that allows and respects the renewable expression of popular sovereignty (normally indicated through referenda) by these national parts.

The ethical dimension of a progressive unionism is perhaps even more under-articulated, but it has recently been given thoughtful articulation by Gordon Brown. Brown insists that it is a necessary rather than a contingent feature of the British state, as well as a distinct advantage over an independent Scotland, that it be a ‘Union of social justice.’ That is to say, there should be and should remain an ‘insurance policy’ between the national parts enabling, through common fiscal instruments, whatever redistribution is necessary to guarantee common standards of welfare across the UK as a whole wherever and whenever resources and risks are otherwise unequally divided. Clearly, this inclusive commitment to a basic threshold of social justice requires some measure of common investment in values such as egalitarianism, community spirit and social responsibility – social democratic standards that Brown reminds us are, by any historical measure, as much English as they are Scottish, Welsh or Irish – but it also requires this to be matched by the deep political tolerance of diversity necessary to give effect to the structural dimension of Union. That is to say, a progressive unionism must find a way of reconciling solidarity with respect for different forms of cultural life and their political expression. And in so doing it must recognise and manage the following difficulty; that each cluster of values is both the condition of and a constraint upon the other. Solidarity is required for a settled order of political pluralism to prevail, but the more pluralistic – the more diversely accommodating – the polity, the greater the challenge there is to generate such solidarity. Equally, without robust recognition of national diversity in today’s Britain, the trust and respect necessary to sustain cross-national solidarity will not be forthcoming, yet the political arrangements necessary to deliver the solidarity dividend themselves set limits on how far political diversity can be accommodated.

The case for the Union state as an answer, however complex, to the internal pluralism of the British state is strengthened by it suitability to the wider political environment. The Union idea may represent a departure from the constitutional orthodoxy of the modern state, but its more decentred and negotiated understanding of sovereignty and its provisional and iterative approach to constitutional agreement reflects and adapts to recent developments in geopolitical circumstances. For the broader constitutional picture in a globalising age is not simply of a two-level power system, but of a multipolar pattern. Constitutional authority in and for the Union today is in fact balanced precariously not just amongst London, Edinburgh, Cardiff and Belfast, but also between these sites and Dublin, Brussels ( EU political institutions), Luxembourg (EU Court of Justice) and Strasbourg ( European Court of Human Rights). Legal jurisdiction in this densely interconnected environment, therefore, comes not in organically compact blocks but is salami-sliced across a range of political settings. In turn, that multipolar authority system has encouraged a more general underlying   condition of   ‘constitutional unsettlement’ (see N. Walker, “Our Constitutional Unsettlement” (2014) Public Law 529). With so many constitutional sites co-implicated, and with no undisputed ‘authority of authorities’ to plan or co-ordinate their interaction, the course of constitutional change becomes unpredictable, with the resolution of each arena of negotiation and disputation heavily dependent upon similarly unresolved questions in other arenas. So, as we have seen, uncertainty about Britain’s future in the EU, and to a lesser extent the ECHR, and similar doubts about an independent Scotland’s European prospects, have become staples of the referendum debate, just as, reciprocally, the referendum result will significantly affect the stakes and influence constitutional (re)negotiation in all these other areas.

All in all, the idea of the Union state, especially under the flexible arrangement of the unwritten constitution, seems a good fit for this fluid scenario. In particular, with its   recognition of the inevitably of power-sharing, and in its emphasis upon the open-ended political treatment rather than the definitive legal resolution of diverse constitutional claims, the a Union state can speak a language of relative rather than absolute authority, of shifting rathe than final settlement, that is appropriate to our time and place.

The Union’s new vows

There remains, of course, a gap between such a progressive unionism in theory and the Union in practice. The Union today remains largely uncelebrated, as double-edged a source of comfort and inspiration for the defenders of the state we are in as are the ideas of Britain and the United Kingdom. In part this is because of the legacy of traditional unionism – the banal, knee-jerk version that rejects rather than encourages accommodation of political and cultural nationalism below the state. In part, too, it is because the difficult work of rethinking the Union in a more rounded fashion requires a kind of cross-party engagement and reasoned, inclusive dialogue that has not found an easy place in the referendum campaign. Significant progress has been made. The Scotland Act 2012, negotiated between Westminster and an SNP-led Holyrood, is gradually rolling out more fiscal powers and new fields of competence to the Scottish Parliament, while the three main pro-Union parties have all published plans for further constitutional reform, and have agreed to develop these under a joint platform post-referendum. But much of this activity has been reactive, a second agenda behind the main priority of fighting the referendum in more critical and defensive mode,

Yet if the new progressive unionism outlined above is to be taken seriously as a long-term solution to Scotland’s constitutional question, then it must do more. The structural and ethical questions it asks offer new opportunities to the political imagination, but they also pose significant challenges. More work is needed not just to convince sceptical nationalists that their aspirations can be accommodated, but also to commit effectively to the procedures of ‘joined up’ constitutional reform the Union needs if it is to integrate concern for the Scottish question and for the sub-state national question more generally, with all the other aspects of the multipolar constitution.

The task   of achieving and sustaining a long-term commitment among Unionsits to progressive unionism should not be underestimated. Nor should anyone understate the difficulty of selling to a wider audience such a project, whose core message is a rejection of the false clarity of some versions both of nationalism and of traditional unionism, in a manner that is itself sufficiently clear and appealing. One thing is certain, however. If the British/UK/Union state to to succeed in promoting a grown-up and sustainable constitutional model for the 21st century, it has to get used to declaring its own name and aim in public.

 

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

 

This post originally appeared on the Scottish Constitutional Futures Forum Blog.

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Mathias Cheung: The Hong Kong Government’s proposed electoral reform violates the Basic Law and the Sino-British Joint Declaration

CheungThe House of Commons Foreign Affairs Committee has recently initiated a formal inquiry into the implementation of the Sino-British Joint Declaration. The inquiry will focus on the constitutionality of the Hong Kong Government’s proposed electoral reforms and its compliance with international law obligations. As the biblical saying goes: ‘faith , if good deeds do not go with it, is quite dead’ (James 2:17). Likewise, assurances, if good policies do not go with it, are quite dead. China’s commitment to the Joint Declaration and ‘one country, two systems’ is to be analysed not by its words, but its actions – especially in relation to fundamental rights and freedoms (contrast William Hague’s reliance on ‘explicit’ assurances in the latest Six-Monthly Report).

The Consultation Report

On 15 July, the Hong Kong government submitted a consultation report to the Central People’s Government, citing ‘mainstream opinion’ as accepting that the Chief Executive should be a person who loves and obeys the country, and so a nominating committee in accordance with Article 45 of the Basic Law is necessary to screen out disagreeable candidates. The nominating committee’s power determines who can stand in the election and cannot be undermined. This mirrors statements made by Zhang Xiaoming, Director of the Liaison Office of the Central People’s Government, last September and again on 7 August. Little to no mention was made of the option of civic nomination, where the electorate of Hong Kong is empowered to choose the candidates for the post of Chief Executive, in the consultation report. As Professor Simon Young noted, the report leaves little hope of a genuinely democratic solution.

The advice tendered by the Hong Kong Government to Beijing is effectively that a nominating committee, which will screen candidates, is the only legal solution and cannot be circumvented. The burial rites for civic nomination seem imminent, pending a formal decision of the Standing Committee of the National People’s Congress later this month. In an article in the Wall Street Journal, Chief Secretary Carrie Lam went so far as to say that universal suffrage ‘was not part of the Sino British Joint Declaration’ anyway. If so, the pan-democrats’ demands become a hopeless political squabble with no legal basis. But is this really just a political question?

To screen or not to screen – a constitutional, not a political, question

Hong Kong’s proposed electoral reform places it at the threshold of Chinese history – it is the second time since 1989 to see major calls for democracy reach the Central People’s Government. There is a crucial difference though. This time, the demanded reforms are not nation-wide, but only for one city – Hong Kong. More importantly, while past demands were purely political, democracy in Hong Kong is legally mandated by the Basic Law and the Sino-British Joint Declaration – the law as approved by Beijing is on the side of democracy. Could Hong Kong make a modest, localised breakthrough under the law’s aegis? Most people still perceive this as a purely political debate, in a titanic tug-of-war between the law and the pan-democrats’ political group. Chief Secretary Carrie Lam described pan-democrats as ‘refusing to return to the legal framework of the Basic Law or accept the political reality’, emphasising that ‘laws, especially those of a constitutional nature like the Basic Law… should never be freely interpreted or lightly abandoned’.

In my view, this is a mischaracterisation that turns the entire constitutional question on its head. The Basic Law does not expressly require an electoral system that is limited by a significant risk of screening by a nominating committee. Rather, it mandates full and genuine democracy when construed properly – it is a question of law rather than politics. Like any other constitutional document, the Basic Law stands as the safeguard of the rule of law and democracy, when interpreted purposively as a whole and in the light of international law obligations. That the Basic Law and the rule of law is used as a trump card militating against a genuinely democratic arrangement should be viewed with suspicion.

I agree with Professor Cora Chan’s earlier comment in this blog that the obstacle to introducing a system with civic nomination is Beijing’s political will. The political will, however, should ultimately be guided by constitutional law and international law. Even the most totalitarian regime knows the need to maintain the facade of legality, as demonstrated by Hitler’s coming to power in the 1930s, and now by the Hong Kong Government’s invocation of the Basic Law. The battle may take place in the political arena, but it is fought by the Government with law as its sword, and the constitution as its shield. It has misled the people, even law students, to believe that civic nomination is a political demand to be met by a far-fetched amendment to the Basic Law. That is simply not true – the Basic Law as it stands already enjoins a fully democratic procedure and can accommodate elements of civic nomination.

If the aspiration for democracy is to be realised, the pan-democrats must clarify that the Basic Law and the rule of law is on their side, in order to help the general public understand that a genuine democratic arrangement is their constitutional entitlement. It is time to set the record straight, and in so doing remind both the public and Beijing that the Basic Law and the Sino-British Joint Declaration actually mandate a fully democratic election, consistent with international human rights law – this is not subject to the vagaries of political fiat. The role of the Foreign Affairs Committee inquiry is to reinforce this message by pointing out the unconstitutionality of the Government’s proposal, and its corresponding violation of the Sino-British Joint Declaration.

The correct approach to the rule of law and construing the Basic Law

The Hong Kong Government relies on the rule of law and the Basic Law to reject genuinely democratic methods of electing the Chief Executive in 2017. This position is untenable for two reasons: (1) protection of fundamental freedoms and democratic values is inherent in the rule of law; and (2) the Basic Law read as a whole requires a genuinely democratic procedure respecting international human rights standards.

The first point can be briefly put. What the Government is adverting to is strict, literal compliance with the law and constitution – rule by law. The rule of law goes beyond that, for as Lord Bingham stressed in his posthumous monograph, ‘the rule of law requires that the law afford adequate protection of fundamental human rights. It is a good start for public authorities to observe the letter of the law, but not enough’ (see Tom Bingham, Rule of Law (Allen Lane 2010) p84). The rule of law serves to uphold, not to undermine, democratic rights and civil liberties.

The second point is the most significant. Strict compliance with the Basic Law does not require the undemocratic and precarious electoral system proposed by the Hong Kong Government. The correct approach to construing the Basic Law was definitively laid down by Li CJ in Ng Ka Ling v Director of Immigration [1999] HKCFA 72 [73]-[76]:

As is usual for constitutional instruments, it uses ample and general language. It is a living instrument intended to meet changing needs and circumstances.

It is generally accepted that in the interpretation of a constitution such as the Basic Law a purposive approach is to be applied. The adoption of a purposive approach is necessary because a constitution states general principles and expresses purposes without condescending to particularity and definition of terms…

The purpose of a particular provision may be ascertainable from its nature or other provisions of the Basic Law or relevant extrinsic materials including the Joint Declaration…

As to the language of its text, the courts must avoid a literal, technical, narrow or rigid approach. They must consider the context. (emphases added)

 In line with these principles of construction, the Basic Law is a living instrument that meets changing needs. With almost 800,000 citizens calling for civic nomination in an unofficial referendum, the threat of civil disobedience, and aggravating polarisation of different camps, the circumstances in Hong Kong necessitate a genuine democratic arrangement that can restore confidence in the people and stability in the society. This does not involve doing any violence to the Basic Law’s text, but interpreting it holistically – in the light of other key provisions, the Sino-British Joint Declaration, and international law obligations.

The Government’s proposal is in fact unconstitutional

While Article 45 of the Basic Law provides for the nomination of candidates by a broadly representative nominating committee, the words ‘in accordance with democratic procedures’ are crucial and cannot possibly be superfluous. It indicates the purpose and context of the nomination procedure, which has to be part of a democratic procedure. A nominating committee which is unaccountable may be dominated by one political faction or another, thereby enabling them to screen out candidates from opposing factions. It is not a ‘democratic procedure’ even in the remotest sense, and is simply unconstitutional.

This fact is borne out even more clearly when read together with other provisions. Article 25 of the Basic Law provides that ‘all Hong Kong residents shall be equal before the law’, and Article 26 emphatically enshrines every permanent resident’s ‘right to vote and the right to stand for election in accordance with law’. This means that every permanent resident should in principle have the equal right to stand for election. A nominating committee which could arbitrarily bar an eligible candidate violates his/her equal right to stand for election, and thus her right to equality before the law. The Basic Law could not have intended such a fundamental contradiction, especially since Article 45 is meant to give effect to Article 25.

The Government’s proposal violates international human rights law

Article 39 of the Basic Law further stresses that the laws of Hong Kong (i.e. including the Basic Law) shall implement the provisions of the International Covenant on Civil and Political Rights (“ICCPR”). Article 25 of the ICCPR expressly provides that:

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:

(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;

(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors…

General Comment No. 25 makes it clear (paragraph 15) that ‘the effective implementation of the right and the opportunity to stand for elective office ensures that persons entitled to vote have a free choice of candidates’, and restrictions must not be by reason of political affiliation. Furthermore, ‘if a candidate is required to have a minimum number of supporters for nomination this requirement should be reasonable and not act as a barrier to candidacy’ (paragraph 17). The Government’s proposal risks presenting electors with a Hobson’s choice, in which candidates they support fail to get nominated, due to unwritten and unreasonable reasons hidden in the back of the mind of the nominating committee. This violates Article 25 of the ICCPR and Article 39 of the Basic Law, ignoring the Human Rights Committee’s exhortation in its Concluding Observations in 2013.

The Government’s proposal puts China in breach of the Joint Declaration 

The unconstitutional proposal puts China in a breach of the Sino-British Joint Declaration. Article 3(5) makes it clear that the rights and freedoms of persons will be ensured by law, and the equal right to vote and stand for election is a fundamental political right as implicitly acknowledged by the acceptance of the ICCPR by Hong Kong. Moreover, Article 3(2) guarantees a high degree of autonomy except in foreign and defence affairs – the Government’s proposal disables electors from freely directing the course of affairs falling within the scope of Hong Kong’s autonomy. This creates the undue risk of rendering the promised autonomy illusory, and having ‘one country, one system’ in all but name. Above all, the foregoing violations of the Basic Law undermine the guarantee that the policies as embodied by the Basic Law would remain unchanged for 50 years.

Conclusion – the constitutional way forward

It is well-settled that laws enacted after an international treaty has been signed should be construed as intending to carry out the obligation (see Lord Diplock in Garland v British Rail Engineering Ltd [1983] 2 AC 751, 771). This applies with even greater force to fundamental rights, as an aspect of the rule of law (see Electrolux Home Products Pty Ltd v Australian Workers’ Union [2004] HCA 40 [21]). The Basic Law read in conjunction with international law obligations requires a system along these lines: civic nomination is a democratic process that allows the people to freely choose any person to be the Chief Executive. This guarantees the equal right to stand for election enshrined by Article 25 of the ICCPR and Article 26 of the Basic Law. A broadly representative nominating committee would then be responsible for checking whether the nominated candidate are legally eligible (e.g. validity of civic nomination, age, criminal records, financial resources), upon satisfaction of which it shall formally nominate the candidate in accordance with Article 45. This is fully constitutional and conforms with the international law obligations of Hong Kong and China.

This is the constitutional way forward. In contrast, the Hong Kong Government’s proposal is unconstitutional – it creates a situation where ‘all candidates are equal, but some are more equal than the others’. Can we call this democratic progress at all? I am hopeful that the Foreign Affairs Committee inquiry would acknowledge that the pan-democrat’s proposal for civic nomination is not a violation but a fulfilment of the Basic Law. As the latest Six-Monthly Report rightly noted, ‘the important thing is that the people of Hong Kong have a genuine choice’.

 

Mathias Cheung is a Research Assistant at Oxford University and a BPTC Student at City Law School. 

Suggested citation: M. Cheung, ‘The Hong Kong Government’s proposed electoral reform violates the Basic Law and the Sino-British Joint Declaration  U.K. Const. L. Blog (11th August 2014) (available at  http://ukconstitutionallaw.org).

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News: E-Book on Scottish Independence Released

The ESRC Future of the UK and Scotland project has published a book which seeks to provide voters with information that may help them in deciding how to vote on 18 September.

‘Scotland’s Decision: 16 Questions to think about for the referendum on 18 September’ is aimed in particular at undecided voters. It takes 16 questions which are central to the debate and asks impartial observers to address these. It does not aim to provide definitive answers, or suggest which way to vote, but rather seeks to enable voters to judge better the arguments put by each side.

Among the many issues it covers, the book addresses: the economy in the event of a Yes vote; the currency arrangement for an independent Scotland; how long negotiations would take; assets and liabilities; if the vote is No, what powers might Scotland get; Scotland’s role in the world; an independent Scotland and the European Union; what the constitution of an independent Scotland might look like and how it would be made; social and welfare policy; immigration policy; pensions; whether or not independence would be good for business; and what independence would mean for the energy markets.

It is downloadable here and here as an e-book.

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Nick Barber: After the Vote: The Citizenship Question

Nick1Three intertwined questions relating to citizenship will become of great importance if there is a ‘yes’ vote in the Scottish referendum. First, who will become, or be able to become, a Scottish citizen? Secondly, who will remain, or be permitted to remain, a United Kingdom citizen? Thirdly, and relatedly, who will become, or be permitted to become, a dual citizen, a citizen of both Scotland and the United Kingdom? Aside from a very good paper by Jo Shaw and a Scotland Analysis Paper produced by the British Government, these questions have not received the attention they deserve.  The questions around citizenship are given added significance because of the role, in the background, of European citizenship. European citizenship is dependent upon the individual holding citizenship of a member state: those in the United Kingdom are currently European citizens because of their UK citizenship. If Scotland votes for independence it is likely – it is almost a certainty – that there will be a gap between independence and Scotland joining the European Union. During this time Scottish citizens would not be European citizens unless they were also citizens of the United Kingdom (that is, citizens of the remainder of the United Kingdom after independence).

Who will be a Scottish Citizen?

Perhaps surprisingly, the Scottish Constitutional Convention that is intended to draft a constitution for Scotland will not be assembled until after independence – and so the citizenship question will need to be settled before it sits. Like a number of important issues, it seems citizenship will not be a question that the Convention will be empowered to answer. The Draft Interim Constitution gives an indication of those who will become, or who may apply to become, Scottish citizens. The Draft Interim Constitution needs to be treated with a little caution as it embodies the view of Scotland’s SNP controlled government; after a ‘yes’ vote it is possible that the Scottish Parliament might revisit the citizenship question.

Section 18 of the Draft Interim Constitution identifies the following groups as automatically receiving Scottish citizenship or as entitled to apply for citizenship:

(1)        The following people automatically hold Scottish citizenship, namely
(a) all those who, immediately before Independence Day, hold British citizenship and
either
(i) are habitually resident in Scotland at that time, or
(ii) are not habitually resident in Scotland at that time but were born in Scotland,
(b)  any person born in Scotland on or after Independence Day if either of the person’s parents, at the time of the person’s birth—
(i)  holds Scottish citizenship, or
(ii)  has indefinite leave to remain in Scotland, and
(c)  any person born outside Scotland on or after Independence Day if
(i) either of the person’s parents, at the time of the person’s birth, holds Scottish citizenship, and
 (ii) the person’s birth is registered in Scotland.
(2) The following people are entitled to claim Scottish citizenship according to the prescribed procedures, namely
(a)  any person born in Scotland on or after Independence Day if either of the person’s parents meets the prescribed requirements,
(b)  any person with
(i) a prescribed connection by descent with a person holding Scottish citizenship, or
(ii) any other prescribed connection with Scotland.
(3)        A person holding Scottish citizenship may also hold other nationalities or citizenships at the same time.
(4)        Further provision about entitlement to Scottish citizenship is to be made by Act of the Scottish Parliament, and “prescribed” means prescribed by or under such an Act.
(5)        Such an Act may, in particular, include provision supplementing, qualifying or modifying the provision in this section.

 

The first point to make about these criteria is that they are quite extensive (though not quite as extensive as the original proposals found in the Scottish White Paper). There are about 810,000 people who were born in Scotland but live elsewhere in the United Kingdom – that is equivalent to roughly a sixth of the population that currently lives in Scotland. There might be a large number of people who discover, to their surprise, either that they have been granted Scottish citizenship without their knowledge or can acquire citizenship on application. It is conceivable that the large number of Scottish citizens living outside of Scotland may present challenges in the future: would they be entitled to vote in elections, or, if it is held, in a referendum on a draft Scottish Constitution?

The second point to note is that these criteria have been drafted in ignorance of the United Kingdom’s (that is, the remainder of the United Kingdom after independence) view on citizenship. This will be discussed in the next section, but it is possible that the UK will be unwilling to allow so many of its citizens to hold dual citizenship with Scotland. If so, the Scottish citizenship rules may need to be modified to prevent the automatic conferral of citizenship on people who have no wish to become Scottish citizens and wish to remain UK citizens.

Who will be a UK Citizen?

The Scottish White Paper assumes that UK citizenship will persist after independence. If this were correct, on the day that Scotland becomes independent all Scottish citizens would also be UK citizens. Between six or seven million people would then become dual Scottish/UK citizens. British citizenship law is quite generous in respect of dual citizenship: in general it allows its citizens to hold citizenship of other countries. There are, however, a number of reasons why Scotland might be treated differently, at least initially.

First, it is unusual for a state to have quite so many of its citizens holding dual citizenship. Classically, citizenship is presented as the highest form of political membership that an individual can possess: their membership of the state.  States are partly characterised by the claims they level over their members: they present themselves as exercising supreme authority, claiming to have the final say about the obligations of their members, to be the final determiner of political and personal disputes. Citizenship is a form of state membership that brings with it a share in the governance of the state: it is the citizens, through the institutions of the constitution, that determine the decisions and policies of the state. Understood in this light, dual citizenship is inherently problematic. The individual is a member of two states, states animated by two distinct citizenries, which make competing claims to supremacy over her.

In the real world, of course, this is rarely a problem. Having a small number of people within the state who possess dual citizenship does not significantly impair the state’s capacity to coordinate action within the community. But if all, or a large portion, of the Scottish citizenry were also citizens of the (remainder of) United Kingdom, the potential for tension would be far greater. The capacity of the United Kingdom to control its people – to make good on its assertions of authority – would be significantly impaired. And, by derivation, the capacity of the citizens of the United Kingdom to control their state would be reduced.

The converse of this observation also presents difficulties. Whilst the state asserts authority over its citizens, it purports to exercise this authority to advance their wellbeing: the welfare of its citizens is, or should be, the primary concern of the state. If Scottish citizens were also UK citizens, UK institutions would have a direct interest in the ways in which Scottish citizens were treated. In such a situation, the UK could properly take an interest in the decisions of Scottish institutions; indeed, it could be argued that it would be under a duty to do so.  The overlap of citizenship could, then, generate conflict between the two states.

Furthermore, British citizens who live abroad are entitled to vote in elections. Under the Representation of the People Act 1985, a British citizen who has lived abroad for up to fifteen years can register to vote in parliamentary elections. Registration is tied to the last address at which the person lived – and this requirement might be enough to ensure that UK citizens in Scotland are not able to vote in elections (their place of residence now being part of a foreign country). But there are the seeds of an interesting legal challenge here. The driving purpose of these provisions of the RPA 1985 was to give citizens living abroad the vote. The registration requirement was included to ensure that this right could not be manipulated by political parties, who might be tempted to fill up marginal seats with friendly ex-pat voters. It could be argued that where a person’s place of former residency has disappeared, she should be permitted to register in the constituency nearest to that location. The Human Rights Act might be invoked to support or require this reading. Protocol 1 of the European Convention on Human Rights has been construed to include the right to vote in elections. The European Court of Human Rights has accepted that states can place residency requirements on the right to vote – it is permissible to deny those settled in a foreign country the right. It could be argued, however, that a law that gave the right to vote to a UK citizen living in Spain, but denied the right to a UK citizen in Scotland amounted to discrimination under Article 14 of the European Convention on Human Rights: if the UK gives this right to some citizens who live abroad, it must accord the same right to all such citizens.

Finally, dual citizenship raises a broader question of fairness. Whilst all Scottish citizens would maintain their UK citizenship, those living in the rest of the UK who did not satisfy the Scottish citizenship test would not be able to acquire dual citizenship in return. Scottish citizens would gain the benefits of UK citizenship – being able to move freely between the two states, benefiting from consular representation overseas, perhaps being able to vote – whilst most UK citizens would not receive the benefits of Scottish citizenship.

For these reasons, it may be the case that the UK, at independence, will not initially permit its citizens to hold dual citizenship with Scotland. People alive at the moment of independence may have to choose: they can be either UK citizens or Scottish citizens. Such a requirement need not be permanent. Once the two citizenries are relatively well-defined, people born after independence could then benefit from the normal rules that govern joint citizenship – with a modest number of dual citizens emerging over a long period of time.

The European Dimension

A few paragraphs ago, I commented that dual citizenship is unusual and, in some ways, problematic. European citizenship might be thought to be a form of dual citizenship writ large – it is held by all citizens of the Member States of the European Union, and is dependent upon their national citizenship. This duality has spurred considerable discussion of the nature of citizenship in European scholarship: does European citizenship show that the institution of citizenship can transcend the state, or is it window-dressing, an effort to persuade the peoples of Europe to accept the governance of the European Union? For our purposes, though, it is the link between UK citizenship and EU citizenship that is of importance.

If the tight timetable for independence following a ‘yes’ vote in the referendum is adhered to, it is almost certain that Scotland will become an independent state before its accession to the European Union. It is also almost certain that the remainder of the UK will remain a member of the European Union after independence. There will be a period when the UK is a member of the EU, but Scotland is not. Consequently, the assertion in Section 25 of the Draft Interim Constitution that Scottish citizens will also be European citizens will be ineffective: conferral of European citizenship will not be within the jurisdiction of the Scottish state at that time.   The gap between independence and accession will necessitate the creation of temporary legal structures to enable Scotland to operate as if it were a member state, devices which, at a minimum, ensure the Scottish people continue to enjoy the basic rights that membership of the EU brings.

There are a number of ways in which this might be achieved, but one which may tempt some EU institutions – especially the European Court of Justice – is by preventing the UK removing the citizenship of those who are also citizens of Scotland. If all Scottish citizens were also UK citizens they would continue to enjoy the rights conferred by the European Union – in particular, they would continue to benefit from the right to freedom of movement within the territory of the Union. In the case of Rottmann the European Court of Justice held that as the removal of national citizenship caused the loss of European citizenship, decisions of Member States regarding the removal of citizenship were reviewable under European Law. If the United Kingdom were to attempt to strip Scottish citizens of their UK citizenship it is likely that this would be subject to review in the courts, and likely that the ECJ would be asked to rule on the question. It is possible, at least, that it might conclude that the removal of European citizenship from such a large number of people runs contrary to European Law.

Conclusion

There are no easy answers to the citizenship questions that would be raised by a vote for independence. If the UK were to permit Scottish citizens to retain their UK citizenship, problems would be raised around the participation of Scots in UK parliamentary elections. If, as is, I think, more likely, the UK were to require people to choose between UK and Scottish citizenship, the decision may run into problems with European Law.

Nick Barber is Associate Professor of Constitutional Law at Oxford University, and a Fellow of Trinity College, Oxford. 

Suggested citation: N. W. Barber, ‘After the Vote: The Citizenship Question’  U.K. Const. L. Blog (4th August 2014) (available at  http://ukconstitutionallaw.org).

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