Author Archives: Constitutional Law Group

Alexander Horne and Richard Kelly: Prerogative Powers and the Fixed-term Parliaments Act

KellyrAlexander HorneThe Fixed-term Parliaments Act 2011 is a contentious and oft criticised piece of legislation, although it does have its supporters. The government and the Political and Constitutional Reform Committee have argued it has created a stable environment for longer-term government planning.

The 2011 Act made provision for the next general election to be held on the first Thursday of May 2015 (and fixed the terms of future Parliaments to five years). Accordingly, it ostensibly removed the Prime Minister’s power to pick a date of his own choice. Prior to the 2011 Act, the prerogative power to dissolve Parliament before the maximum five-year period was exercised personally by Her Majesty, conventionally at the request of the Prime Minister.

When the Bill was considered in Parliament, the House of Lords proposed a “sunset clause”. This would have required both the Houses to renew the legislation after each general election. The Commons objected. The deadlock between the two Houses was resolved through the insertion of a statutory requirement on the Prime Minister to establish a committee “to carry out a review of the operation of [the] Act” and “if appropriate in consequence of its findings, to make recommendations for the repeal or amendment of [the] Act.” The committee is required to report at some point between 1 June 2020 and 30 November 2020.

On 23 October 2014, there was a debate in the House of Commons, scheduled by the Backbench Business Committee, calling for the repeal of the 2011 Act. MPs debated the following motion:

That this House believes that the Government should bring forward proposals to repeal the Fixed-term Parliaments Act 2011.

In the event, the motion was defeated by 68 votes to 21. During the course of the debate, an interesting question arose, which would have to be considered if opponents of the legislation were ever to succeed in securing repeal: namely, if the 2011 Act were repealed, would the former prerogative power revive? (This is not the only matter that could arise – for example, the 2011 Act also removed certain provisions relating to the maximum length of a Parliament; however these issues are not the focus of this blog).

The Royal Prerogative

According to A.V.Dicey, the Royal Prerogative is “the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown”. As Liam Laurence Smyth (then Clerk of the Journals) observed in Parliament and the Law, Hart, 2013 (citing from a Government submission to the House of Commons Select Committee on Public Administration from 2003):

It is not altogether clear what happens when a prerogative power has been superseded by a statute and the statutory provision is later repealed but it is likely to be the case that the prerogative will not revive unless the repealing enactment makes specific provision to that effect.

If this is the case, it would mean that rather than simply repealing the 2011 Act, opponents of the legislation would have to introduce a new statute setting out the circumstances in which the Prime Minister would be entitled to request the monarch dissolve Parliament or to put in place other provisions that set out how Parliament could be dissolved.

The latter route would appear to be necessary if the 2011 Act has abolished the prerogative power permanently. (Although the Explanatory Notes state that the prerogative power to dissolve Parliament was abolished by the Act, para 16, they do not form part of the legislation so clearly this is not determinative).

Other relevant issues here would include the fact that section 3(2) of the 2011 Act provides that “Parliament cannot otherwise be dissolved” (which might be argued to be an express abolition of the prerogative power). A contrary argument, that suggests the power is only in abeyance whilst the statute is in force, is the fact that the 2011 Act is subject to review and might be repealed. In such circumstances, would the drafters of the legislation have intended that there be no alternative means of dissolving Parliament?

For if such provisions are not included, and it is the case that the 2011 Act abolished the prerogative power, then a simple repeal of the Act would appear to mean that no mechanism to dissolve Parliament would exist.

A role for the courts?

If a dispute was to arise over this issue, there is a risk that it might have to be settled in the courts. In the well-known case of R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2008] UKHL 61, Lord Bingham observed:

It is for the courts to inquire into whether a particular prerogative power exists or not, and, if it does exist, into its extent: Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 398E. Over the centuries the scope of the royal prerogative has been steadily eroded, and it cannot today be enlarged (British Broadcasting Corporation v Johns (Inspector of Taxes) [1965] Ch 32, 79E). As an exercise of legislative power by the executive without the authority of Parliament, the royal prerogative to legislate by order in council is indeed an anachronistic survival. When the existence or effect of the royal prerogative is in question the courts must conduct an historical inquiry to ascertain whether there is any precedent for the exercise of the power in the given circumstances. “If it is law, it will be found in our books. If it is not to be found there, it is not law”: Entick v Carrington (1765) 19 St Tr 1030, 1066.

Such an inquiry was carried out by the Court of Appeal ([1919] 2 Ch 197) and the House ([1920] AC 508, 524-528, 538-539, 552-554, 563, 573) in Attorney-General v De Keyser’s Royal Hotel Limited. In Burmah Oil Company (Burma Trading) Limited v Lord Advocate [1965] AC 75, 101, Lord Reid said:

The prerogative is really a relic of a past age, not lost by disuse, but only available for a case not covered by statute. So I would think the proper approach is a historical one: how was it used in former times and how has it been used in modern times?

The desire of the courts to involve themselves in such a political case, involving the workings of Parliament, is far from clear. In particular, it is worth noting that in the case of Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 Lord Roskill stated plainly that there could be no grounds whatever upon which the power of dissolution could be challenged by way of judicial review, arguing that: “The courts are not the place wherein to determine whether … Parliament [should be] dissolved on one date rather than another.”

The question as to whether the prerogative power has been supplanted by statute is a rather different one and it would be a brave Prime Minister who would seek a dissolution with the law in an unclear state. That said, it might be thought that it would be an even braver court that would rule that Parliament could not be dissolved in order to hold a general election.

 

Alexander Horne is an employed barrister at the House of Commons and a teaching fellow at University College London.

Richard Kelly is a senior researcher at the Parliament and Constitution Centre in the House of Commons Library.

 

Suggested citation: A. Horne and R. Kelly, ‘Prerogative Powers and the Fixed-term Parliaments Act’ UK Const. L. Blog (19th November 2014) (available at http://ukconstitutionallaw.org)

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Conference Announcement: Thirty Years of Judicial Review in Scotland

strathGlasg Sponsored by the Clark Foundation for Legal Education and the UK Constitutional Law Association

Thirty Years of Judicial Review in Scotland

 

26 January 2015

10 am to 4.30 pm

University of Strathclyde, Court/Senate Suite, Collins Building, 22 Richmond St, Glasgow

This one day conference is being held jointly by Glasgow and Strathclyde University Law Schools to mark the thirtieth anniversary of the introduction of the specialised judicial review procedure in Scotland. It is an opportunity for practitioners, academics and law students to reflect on developments since 1985, how judicial review is working today, and how it might develop in future. It is particularly timely given the important reforms to the judicial review procedure about to be introduced by the Courts Reform (Scotland) Bill 2014. The programme features contributions by leading public law academics and practitioners, and a keynote address by the Right Hon Lord Reed, justice of the Supreme Court.

To register for this event please visit the Strathclyde University Online Shop. Registration fee £25. N.b., there are a small number of free places for undergraduate and postgraduate students. To book a free place please contact carol.hutton@strath.ac.uk.

Attendance at this event will qualify for 5 hours CPD.

 

Programme

9.30 – 10.00:               Registration

 10.00 – 10.55:                         Welcome and Keynote Address

Chair:                          James Wolffe, QC, Dean of the Faculty of Advocates

Speaker:                      The Right Hon Lord Reed, Justice of the Supreme Court: ‘The Development of Judicial Review in Scotland’

10.55 – 11.15:                         Coffee

11.15 – 13.00               What is Judicial Review For?

Chair:                         Professor Aileen McHarg, University of Strathclyde

Speakers:                    Brian Thompson, University of Liverpool: ‘The Place of Judicial Review in the Administrative Justice Landscape’

Professor Tom Mullen, University of Glasgow, ‘Public Interest Litigation’

Lynda Towers, Solicitor to the Scottish Parliament, ‘The Public Authority Perspective’

13.00 -14.00:              Lunch

14.00- 15.15:              Patterns of Judicial Review Litigation

Chair:                         Fiona Killen, Anderson Strathearn

Speakers                     Professor Alan Page, University of Dundee, ‘The Judicial Review Caseload’

Tony Kelly, Taylor & Kelly, Visiting Professor, University of Strathclyde, ‘The Potential Impact of the Courts Reform (Scotland) Act’

15.15 – 16.30:             The Development of Scots Judicial Review Doctrine

Chair:                         Sheriff Lorna Drummond, QC

Professor Chris Himsworth, University of Edinburgh, ‘The Concept of “Jurisdiction” in the Scottish Courts’

Denis Edwards, Terra Firma Chambers, ‘European Influences’

1630 – 1800                Reception

 

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Conor Gearty: On Fantasy Island: British politics, English judges and the European Convention on Human Rights

conorMy first encounter with the fantasies that underpin English public law came in the 1980s. I had just starting teaching constitutional law and was taking my first year students through Dicey: the independent rule of law; the availability of remedies to all, without fear or favour; the common law’s marvellous protection of civil liberties; how great we were, how terrible the continent; and all the rest of it. Outside the classroom, striking miners were being routinely beaten up by the police, their picketing disrupted by road blocks, their liberty eroded by mass bail conditions. The Campaign for Nuclear Disarmament was having its marches banned and its protests inhibited by ‘no-go’ areas arbitrarily erected by the police around American bases into which it had been decided to move a new generation of nuclear weapons. Some of my students were even beaten up themselves, on a march against education cuts in London – much to their surprise given what I was teaching them.

Far from confronting any of this from the perspective of principle, the courts were happy to act as a benign legitimating force, their various rulings invariably serving to throw the necessary constitutional camouflage over successive exercises of raw state violence. Eventually the judges overreached themselves even by the standards of the day: their absurd determination to prevent publication of a book (Spycatcher, by Peter Wright) containing serious allegations of criminality against the security services fell apart thanks partly to being published in the US under the protection of the first amendment but mainly to the determination of a European Court of Human Rights to take freedom of expression more seriously than had the supposed guardians of liberty on the Strand. (More on this court later, of course.) The determined commitment of a succession of senior judges to keep Irish prisoners in jail for serious terrorist offences long after it was obvious to all that the men (and in some cases children) involved had been victims of serious miscarriages of justice eventually brought the reckless reactionary partisanship of the senior judiciary to center stage where it could finally be seen and understood by all: the true perspective of the Dennings, the Diplocks, the Lanes, the Bridges, the Donaldsons was eventually exposed for all to see. By the early nineties, the Dicey fantasy I had found on arrival in England was in ruins, believed by almost no one, exposed as a construct founded on deceit.

It is invariably easier to expose the iniquities of the past than it is to address the problems of today. The judiciary has remade itself in a way that has been undoubtedly successful; they are certainly not as they were in the 1980s: aloof, national service men, bound by the Kilmuir rules to an extra-judicial omerta that removed them from all public discourse. The first generation of judges after the catastrophes of the late 1980s responsible for this make-over took to human rights as their penance for past sins and when they got the Human Rights Act (for which many of them had quietly campaigned) they went about interpreting it in a way that has been beneficial. But these men (and a very few women) are now largely going or gone, being replaced by a newer generation of senior figures – even more male than in the immediate past – whose pride in what they do seems untainted by any awareness of past wrong. And in their excitement at their success, not only past wrongs are being forgotten but truths are being constructed in a way that bears striking resemblance to that past. This revival of fantasy is now reacting with the current political atmosphere in a way that threatens to produce a poisonous cocktail that could destroy modern England. I do not believe I exaggerate.

So who are these judges who are at a political front-line many of them probably don’t know exists? We can learn far more than we used to of how they see the world. There are many speeches and public lectures: the Kilmuir rules are long forgotten. The habits of certainty and decisiveness so essential to adjudication are not easily laid aside at the lectern when judges approach it. Perspectives are laid out not as tentative scholarly arguments so much as authoritative findings of fact.   As President of the Supreme Court, Lord Neuberger is understandably one of the more prolific speech-makers. His talk at the Supreme Court of Victoria in Melbourne on 8 August this year introduces us to our first contemporary fantasy: the myth of Whiggish inexorability.   We learn from Lord Neuberger that ‘[t]he history of Human Rights and the United Kingdom in the last 100 years can be divided into several periods’: the ‘dark ages pre 1951 when Europe became ‘sharply aware of the need for [a] strong, clear and codified set of human rights’ when we in the UK did not; the ‘middle ages’ between 1951 and 1966 (when individuals were first allowed to take the UK to the European Court of Human Rights); the ‘years of transition’ between 1966 and implementation of the Human Rights Act 2000 when ‘human rights started to leak into the judicial cerebellum’ and – inevitably – ‘the age of enlightenment’ of today:

There is nothing here about the European choice directly after the war being governed by politics and the fear of the Left that has been so convincingly demonstrated in recent scholarship: the work of Marco Duranti in particular. There is no nod towards the decay of the judges’ standing in the 1980s in the UK that precipitated the move to rights – on Neuberger’s account human rights just sort of leaked into judicial grey matter. And like all such triumphalist accounts of the past, the present is treated as a destination (we are in the ‘still early days’ in our ‘age of enlightenment’), rather than just a brief moment on a journey to somewhere else.

Lord Neuberger is also an exemplar of our second fantasy, that of the civil libertarian common law. The 1980s (and indeed all earlier decades) have been forgotten: ‘there is no doubt that the common law was in many ways the origin and promoter of individual rights’ its only problem being (and the reason for the turn to rights) that ‘it developed such rights in a somewhat haphazard and leisurely way.’ Well that is one way to describe it – the partisanship of the common law for property and contract rights over gender and racial equality; an hostility to trade unions and the Labour party so severe that neither could have survived without legislation directly overturning judicial malevolence; the common law’s service as a base for the serial abuses of liberty with which I began this lecture. In his recent, beautifully written Hamlyn lectures, the celebrated Court of Appeal judge Lord Justice John Laws (The Common Law Constitution ) sings a hymn of praise to the old common law, arguing that it is the unifying principle of the constitution and that ‘its distinctive method has endowed the British State with profoundly beneficial effects.’ The recently retired Lord Chief Justice Lord Igor Judge took a not dissimilar line in a recent lecture at University College London where he defended the courts from executive interference against a background of unquestioned acceptance of the fact of the ‘independence of judicial decision making’ as ‘an integral structure of the constitution’.

Now it is only one step from this position to say that actually the common law is so wonderful that it ought to have superiority over Parliament itself, a position once held by the judges in eras gone by of course, but which one might have thought had been laid to rest by democratic revolution. In fact that is not the case. At least some of the judges have allowed the enthusiasm of certain academic scholars for such a possibility to lead them to what Lord Neuberger in his Melbourne speech called ‘the interesting point’ of whether the courts can in fact overturn Parliament itself. A mini-spate of cases in the Supreme Court have allowed the idea to grow without the unanimous disavowal that would surely have been its fate only a little while ago. On any current account the obstacles against such a judicial overriding of parliament would need to be very high: some draconian flouting of the rule of law or what Lord Neuberger called (and even then only possibly) ‘exceptional circumstances’. Perhaps these are what Lord Carswell in Jackson v Attorney General [2005] UKHL 56 referred to (albeit in the context of a law passed under the Parliament Act) as legislative acts amounting to ‘a fundamental disturbance of the building blocks of the constitution’ (at para 178).

The Human Rights Act currently controls judicial capacity here by its well-known reaffirmation of the principle of Parliamentary sovereignty in sections 3(2), 4(6) and 6(2) – well-known that is to everybody except senior members of the current Government who seem to think that the Act empowers the courts to strike down primary legislation – this fantasy of judicial supremacism in human rights law is a delusion seemingly restricted to the upper reaches of the Conservative party, guided by advisers no doubt to invent a problem in order better to able to curry favour with the electorate by dealing robustly with it. The prime minister has had many opportunities over the past few years to demonstrate how important it is to introduce law into the study of Oxford’s PPE degree – the lack of awareness of the contempt of court demonstrated by his intervention in the trial of the Saatchi PAs and the recent, forthright denial that EU legal obligations apply to British money come to mind. But the nadir was surely his apparent (contrived? genuine?) belief that in implementing a declaration of incompatibility issued in respect of the sex abuse register (so as to afford a modicum of due process to those whose lives had been hugely adversely affected by being on it) he was being forced by the courts to act. The whole point of the Human Rights Act – as my colleague professorial research fellow Francesca Klug has pointed out on occasions too numerous to count – is that declarations of incompatibility do not have to be followed. Lady Hale – who was one of the judges in the case - put it with characteristically understated precision in commenting on this incident: ‘Curiously, when introducing the order in Parliament, the Prime Minister was highly critical of our decision, but made no mention of the fact that the Government could have chosen to do nothing about it’

Repeal of the Human Rights Act – a policy to which the Conservative party is now committed – might well produce exactly that judicial supremacism about which the prime minister complains. Most really strong attacks on the rule of law and/or ‘the building blocks’ of the constitution would inevitably also entail a direct undermining of at least one and possible more Convention rights – the wholesale abolition of legal aid for example would breach the implied right of access to the courts in Article 6, under the Golder and Airey principle. The expulsion of asylum-seekers and others to face torture abroad would engage article 3 and so on. As things stand the judges could surely do nothing about such attacks however fundamental they believed them to be because of the explicit protection afforded parliament when it comes to legislation violating human rights – sections 3, 4 and 6 again. But take that protection away, and the common law solicitude for human rights that would replace it would not necessarily be so beholden to parliament. The primary laws themselves might become vulnerable. This would certainly be very odd: action to end something that could never happen would only serve to bring it about. The fiction of judicial supremacy would be turned into fact by efforts made to deal with it. But abolishing something that isn’t there creates it: in the social as well as earth sciences two negatives do indeed make a positive. Maybe the Tories genuinely don’t care about this – in modern politics the spin is the thing: fantasy rules.

It might seem a little odd to be talking about the British judges in this way, since they have not been at all in the firing line in recent years. The executive and the popular press appear to have a finite capacity for populist indignation against courts and since the decision in the prisoner-voting case of Hirst v United Kingdom in 2005 ((2006) 42 EHRR 41), most of this has been heading out of town, away from the Royal Courts of Justice and towards Strasbourg. True there have been past periods of noisy British scepticism towards the European Court of Human Rights (one thinks in particular of Ireland v UK (1978) 2 EHRR 25 and the Gibraltar decision of McCann v United Kingdom (1996) 21 EHRR 97 holding the UK responsible for the killing of an IRA active service unit) but nothing has been as sustained or as vehement as the head of steam that has been built up over this – it has to be said – relatively minor question of prisoner voting. True the litigant was not ideal from a human rights point of view: an axe-wielding killer celebrating his win with champagne as he pours Youtube abuse on the authorities was something of a low point even in the world of unsavory human rights defendants: And it was unlucky of Strasbourg that they were left holding this particular package when the music stopped – the local courts having deftly avoided trouble by refusing to find any human rights violation when the matter came before them. How the issue has escalated as it has must be a matter for sociologists and political scientists. One of the more remarkable features of the strange times we live in is that the case has produced a myth to which it is own refutation. The myth is that of Strasbourg supremacism: what the European Court of Human Rights says goes. Or as Lord Rodger of Earlsferry famously put it in Secretary of State for the Home Department v AF (No 3) [2010] 2 AC 269 at para 98, ‘Argentoratum locutum: iudicium finitum – Strasbourg has spoken, the case is closed’. But if this were true, prisoners would now be voting. Not only are they not voting; the Supreme Court has itself, in R (Chester) v Secretary of State for Justice; McGeoch (AP) v Lord President of Council [2013] UKSC 67, specifically refused even to issue a declaration of incompatibility to put pressure on the government that they should allow such votes. The obligations under the Council of Europe’s Convention on Human Rights are international not domestic: our legal system does not require their implementation, immediately or indeed ever (see article 46). True adherence to international law is an important matter, one that has many repercussions – the UK might find it harder to tell other countries what to do with regard to human rights; it might find itself in trouble at the Council of Europe; the UK judge at Strasbourg may end up lunching alone; and so on. Importantly for present purposes none of these effects is legal, or more precisely legal in the domestic sense.

The extraordinary way in which our public culture has been mustered to savage the Strasbourg court is one of the dismal wonders of our politically constricted age. That court has rescued the English common law from itself on far more occasions that it has made itself an unnecessary nuisance: the maltreatment of gays purely on account of their sexual orientation (Dudgeon v United Kingdom (1981) 4 EHRR 149); corporal punishment in schools (Campbell and Cosans v United Kingdom [1982] ECHR 1); the inhuman and degrading treatment of internees (Ireland v United Kingdom (1978) 2 EHRR 25); the deliberate shooting of suspected terrorists (McCann v United Kingdom (1996) 21 EHRR 97); draconian contempt laws that prevented campaigning newspapers from exposing wrong (Sunday Times v United Kingdom (1979) 2 EHRR 245); long periods of detention without trial Brogan v United Kingdom (1988) 11 EHRR 117); cruel invasions of privacy (Kaye v Andrew Robertson and Sports Newspapers Ltd [1991] FSR 62) – all unnoticed by the common law’s supposed celebration of individual rights, not leaking into ‘the judicial cerebellum’ so much as being rammed into it by Continental judges in the teeth of domestic opposition. Often this opposition has been led by politicians of course: the annoyance at having executive discretion constrained combines with awareness that the Strasbourg court will not answer back to produce a temptation to play to the gallery that is rarely resisted. But at least politicians have the excuse that they need votes and therefore have to please the Mail, potential UKIP voters and others who for various reasons are disinclined to look honestly at the facts. What excuse do British judges and former judges have for their recent attacks on the Court?

There is a long if not venerable tradition here of British mistrust of what Strasbourg does. The distinguished lawyer F A Mann once gave revealing expression to it in a note in the Law Quarterly Review inveighing against the majority judges in a leading Strasbourg case not on the basis of what they said but on account of the puny countries from which they came: (1979) 95 Law Quarterly Review 348. In the politer 1990s as the chastened judges rebuilt their reputation, such modest recoiling from Strasbourg’s incoherence as there was produced only occasionally expressed judicial puzzlement and a range of tentatively-articulated extra-judicial speeches in favour of incorporating the Convention into UK law and so giving British judges the first say over what it meant, a good example being the late Lord Bingham’s, ‘The European Convention on Human Rights: time to incorporate’ (1993) 109 Law Quarterly Review 390.

Now though we seemed to have entered a new era of vulgarity. Perhaps it was Lord Hoffmann who started this with his famous speech in 2009 to the judicial studies board on the ‘Universality of Human Rights in which he paraded a startlingly ridiculous set of remarks from a dissenting judge on the Strasbourg bench as though they were typical of agreed interventions by a unanimous grand chamber. Lord Judge’s recent interview in Counsel magazine was sufficiently forthright to receive the doubtful accolade of the following Daily Mail headline ‘HUMAN RIGHTS COURT “IS A THREAT TO DEMOCRACY”: EX-LORD CHIEF JUSTICE BLASTS UNELECTED STRASBOURG JUDGES’ There is another fantasy here, that of the neutral judge, the convention that he or she stands above the eddies and flows of the political. No doubt Lord Judge believes that he is making an apolitical point when he writes of the supremacy of parliament and of the need for judges not to get involved in political questions. But saying as much these days is in itself a political intervention. Lord Sumption manoeuvred himself into exactly the same position in his F A Mann lecture lecture on judicial and political decision-making in 2011, shortly before he took up his position as a supreme court judge. His excoriation of the tendency of the Strasbourg court to develop its jurisprudence across all 47 member states in a way which conflicted ‘with some very basic principles on which human societies are organised’ grew out of his belief that the Strasbourg jurisprudence had got out of control, with its ‘large number of derivative sub-principles and rules, addressing the internal arrangements of contracting states in great detail’. But calling for the court to pull back is itself a political intervention. The Conservatives echo this critique when they call for the Strasbourg Court to disown its jurisprudence on the evolving meaning to be accorded rights in the Convention. In doing this they are mimicking the American emphasis on original intent dreamed up by Reagan’s attorney general Ed Meese and supported by the anti-federalists and Christian right as a way of providing scholarly cover for the forced retreat of the US federal government on the one hand and the overturning of the celebrated abortion decision Roe v Wade on the other (In seeming through their arguments to eschew the world of politics both Lord Judge and Lord Sumption are in fact entering that world, their conservative position disguised as neutral by the judicial garb one has just taken off and the other was just about to out on.

A subset of the fantasy of Strasbourg supremacism, encouraged by Lord Rodgers’s ill-advised plunge into Latin, is that Strasbourg’s cases are required to be followed by the British courts.   As even first year law students know, this is simply not the case. The Human Rights Act could not have been clearer in section 2 when it required of the judicial authorities interpreting the Act that they take into account such jurisprudence – no further requirement to (in the English common law sense) ‘follow’ such decisions appears in the Act. Now it is perfectly true that the courts here themselves have tended to support Strasbourg decisions (Lord Bingham’s ‘mirror principle’ in R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323) on the sensible basis that it is wise to keep in tune with a body to which your own litigants (or at least the non-governmental ones) can appeal. Never invariable, that mirror principle has loosened up of late, with the courts treating the Strasbourg menu as if not quite a la carte then at least one from which there is a decent choice, including if needs must a house special grown entirely from British produce: R v Horncastle [2009] UKSC 14, [2010] 2 WLR 47. Strasbourg has on the whole gone along with this, conceding some positions to help keep the peace (as in Al-Khawaja and Tahery v United Kingdom (2012) 54 EHRR 23 (GC)) revisiting its case-law in light of guidance from their lordships, (Animal Defenders v United Kingdom (2013) 57 EHRR 21 (GC)) and even recanting when it has been caught out in foolishness (Z v United Kingdom (2002) 34 EHRR 97). This is what all informed observers call ‘dialogue’ – it is not dictatorship. The Conservative Party’s recent peculiar set of proposals, already referred to, for ‘changing Britain’s human rights law’ was full of invective against the Strasbourg court and this led its authors to conclude that the Human Rights Act needed to go (not Strasbourg, oddly). But why the Human Rights Act? The crime is that all this Strasbourg rubbish (‘problematic jurisprudence’) is getting into our law (‘often being applied’) and this has to stop. But then a bit later the paper volunteers that Strasbourg is ‘creating legal precedent for the UK’. So which is it ‘often’ or ‘always’? The paper appears to believe it is both, simultaneously. If section 2 did not already exist it would be produced as the solution to a problem – Strasbourg supremacy – that is simply not there, or at least not there in our domestic human rights law.

I end with the largest fantasy of all, the fantasy that drives all the others on this little island, or accurately a bit of this little island, and which is the only reason I can find for what would otherwise be incomprehensible. Lord Neuberger has it spot on when he told a Cambridge audience in February this year that ‘[t]he loss of the Empire and the loss of world premier league status has inevitably caused problems to the national psyche’ and that it is therefore understandable that ‘a transformation from a global pre-eminent status to just one of many EU or Council members requires an almost super-human attitudinal adjustment’ It is not one that some have been able to make, especially those, it seems, whose entire education has never required departure from the quads, cloisters and colleges of past glory or any kind of mustering in with that England known to the other ninety per cent. The Conservative part of the government increasingly gives the impression that the Act of Union with Scotland was the beginning of an heroic English age of imperialism to which we can now return, the people cheering from the sidelines as they did when Disraeli paraded Victoria as Empress of India.   Down that route is a provincial backwater peopled by well-educated fools, shouting loudly. No judge, past or present, should be encouraging this fantasy of English exceptionalism, especially now as it gathers such populist steam.

 

Conor Gearty is Director of the Institute of Public Affairs and Professor of Human Rights Law LSE. This is the text of the 36th Corbishley Lecture, held at LSE.

 

Suggested citation: C. Gearty ‘On Fantasy Island: British politics, English judges and the European Convention on Human Rights’ UK Const. L. Blog (13th November 2014) (available at http://ukconstitutionallaw.org)

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Colm O’Cinneide and Kate Malleson: Are quotas for judicial appointments lawful under EU law?

malleson-photo-2010a_ocinneide

In April 2014 Sadiq Khan, Shadow Secretary of State for Justice, asked Karon Monaghan QC and Geoffrey Bindman QC to review the options for a future Labour Government to improve diversity in the judiciary. On November 6th their report, entitled ‘Judicial Diversity: Accelerating change’, was published. Starting from the premise that ‘[t]he near absence of women and Black, Asian and minority ethnic judges in the senior judiciary is no longer tolerable’, it proposes a range of recommendations designed to speed up the glacial pace of change. Perhaps the most controversial of these is for the introduction of a quota system for women and BAME candidates. The report reviews the use of quotas in other UK institutions as well as their use in judicial appointments processes around the world, before addressing the question of whether such quotas would be lawful under EU law. This is a key question: EU law casts a long shadow in this context, as the Monaghan and Bindman report makes clear, given that any legislation enacted in Westminster to give effect to a quota system in the process of judicial appointments must conform to the requirements of EU law.

There are two stages involved in any legal assessment of the proposed quota measures under EU law. The first is whether holding a judicial office is classified as being ‘employed’. If the answer is no, then the question of their legality under EU law does not arise as appointments to judicial office will not fall within its scope of application. If the answer is yes, then the judicial appointments process will qualify as ‘access to employment’ which will bring it within the scope of Article 1 of the Recast Gender Equality Directive 2006/54/EC. This will mean that the use of positive action measures, such as quota systems, in the process of judicial appointment will have to conform to the restrictions on the use of such measures set out in the relevant case-law of the Court of Justice of the EU (CJEU).

In the 2012 case of O’Brien v Ministry of Justice, the CJEU indicated that it was a matter of national law as to whether judges should be classified as being in an employment relationship, but made it clear that their status would have to be ‘substantially different’ from that of employees before the relevant provisions of EU employment law would not apply – in this case, the Directive relating to the treatment of part-time workers. Subsequently, when this case was remitted back to the national courts, the UKSC decided that Recorders were in an employment relationship and therefore the provisions of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 applied. Although Recorders work on a part-time, fee-paid basis and are not permanent judges, the logic of the Supreme Court’s approach in O’Brien would suggest that a similar approach would be applied in general to their full-time, salaried equivalents, who are therefore likely to be classified as being in an employment relationship for the purposes of national and EU employment law.

However, a different conclusion could be reached in respect of Supreme Court Justices, given their particular constitutional role. In many European states, constitutional court judges are not considered to be employees: the view is taken that such a status would be incompatible with their status as holders of a high office of state. Furthermore, as the report makes clear, sensitivity surrounds the issue of whether EU law can or should impact on national constitutional arrangements relating to the status of constitutional courts. These considerations suggest that both the UKSC and the CJEU might be reluctant to hold that the Supreme Court was subject to EU employment law. It would certainly have been very unlikely that members of the Appellate Committee of the House of Lords would have been deemed to be in an employment relationship. The same view could be taken of the Supreme Court given that its role has not significantly changed, despite no longer being structurally part of the legislature. (The interesting question of whether the Supreme Court could legitimately decide whether its own members are employees or not will have to be left to a future blog post, if and when the issue arises).

The current position therefore seems to be that, while O’Brien does not settle this issue definitively, it is likely that members of the judiciary in general will be regarded as ‘employees’ for the purposes of EU law: the status of Supreme Court judges remains less clear. In turn, this means that the provisions of EU gender equality law, in line with the provisions of Article 1 of the Recast Gender Equality Directive 2006/54/EC, would apply to conditions of ‘access’ to that employment, including the judicial selection process.

If so, this gives rise to the question of whether quotas for women and BAME candidates would be lawful within the framework of EU gender equality law. The Monaghan and Bindman report concludes that they would. Given that European law in this context is relatively unsettled and that no cases have been considered by the CJEU specifically on quotas for judicial appointments, some elaboration of the report’s conclusions is required.

The legitimacy of positive action involving preferential treatment of women is well recognised in EU law, as reflected in the provisions of Article 157(4) of the TFEU (formerly Article 141(4) TEU) and Article 3 of the Recast Gender Equality Directive 2006/54/EC.  It is generally accepted that such preferential treatment will be lawful if it is justified and proportionate – i.e. the usual proportionality test is applied. However, the CJEU initially took a restrictive approach in applying the proportionality test in this context, ruling in the case of Kalanke in 1995 that quota systems involving automatic preference for female candidates constituted a violation of the principle of equal treatment as between men and women. In the case of Abrahamsson in 2000, the CJEU similarly ruled that preferential treatment can only be applied to compensate for existing disadvantage as a ‘break factor’ between ‘equally qualified’ candidates, and that an individual merit ranking system has to be initially applied to rank candidates before any automatic preference could be given to members of an underrepresented group. However, this case law has attracted strong academic criticism for imposing excessive constraints on the use of positive action. (See in general C. O’Cinneide, ‘Positive Action and the Limits of the Law’ (2006) Maastricht Journal of European and Comparative Law 351-365.) More recently, the Court has not applied the proportionality test in such a restrictive manner in relation to other situations where women benefited from preferential treatment designed to compensate for established inequalities. For example, in the case of Lommers in 2002, the Court considered that a child care scheme which gave priority to women was compatible with the principle of gender equality, on the basis that the scheme in question was intended to address the under-representation of women.

As such, the legal position in EU law relating to positive action measures designed to redress under-representation of women remains unsettled. The same is true as regards positive action measures directed towards addressing the under-representation of BAME groups: no European case-law exists on this point yet.

However, as noted in the Monaghan and Bindman report, the CJEU in assessing the proportionality of a quota system being used in the UK judicial appointments process is likely to take into account the continued lack of progress on diversity in this context, as evidenced by the recent Council of Europe statistics which show the three UK judiciaries languishing at the bottom of the league table for the proportion of women judges – beaten to the bottom only by Azerbaijan and Armenia. This context makes it more likely that the CJEU would be prepared to uphold a quota scheme as a proportionate response to this ongoing problem, especially given the failure of other less radical policy approaches to address the problem of female and BAME under-representation in the senior ranks of the UK judiciary. It is also arguable that the special constitutional and social importance of the judicial selection process might lead the CJEU to depart from the stricter Abrahamsson approach and to adopt the looser standard of review adopted in Lommers, especially given its preference for non-intervention in national constitutional issues.

To summarise: If judicial selection falls outside the scope of EU law, then it has no effect on any quota system. However, if, as is likely, judicial selection (at least in respect of appointments below the level of the Supreme Court) comes within the scope of EU law, then the legality of the quota system will depend on whether the CJEU adheres to the restrictive approach it adopted in Kalanke and Abrahamsson, or whether it adopts a looser, more accommodating standard of review as it did in Lommers. Given the particular context of the judicial appointments process and the growing trend across Europe to adopt positive action measures to promote greater diversity in public institutions it is likely that gender and BAME quotas for judicial selection in the UK, if carefully designed, will be lawful under EU law.

Colm O’Cinneide is a Reader in Law at University College London.

Kate Malleson is Professor of Law at Queen Mary, University of London

 

Suggested citation: C. O’Cinneide and K. Malleson, ‘Are quotas for judicial appointments lawful under EU law?’ UK Const. L. Blog (12th November 2014) (available at http://ukconstitutionallaw.org)

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Alan Bogg and Keith Ewing: Pensions dispute: Bullying tactics violate workers’ human rights

boggaKeith EwingHow should workers respond to bullying and intimidation tactics used by employers during industrial action disputes? Two leading academics consider the current dispute in the university sector.

It is a remarkable feature of British labour law that the worker who takes industrial action is usually regarded as having committed a repudiatory breach of contract. This is true in relation to strikes, as well as industrial action short of a strike, such as a work-to-rule or a refusal to undertake certain duties.

This remains true even if the strike is a lawful strike, directed at legitimate purposes and fully compliant with the strict rules on notice and ballot requirements. It also remains true regardless of the purpose of the action – whether it is designed to improve terms and conditions of employment, or, in the case of the current UCU dispute, defend long established terms and conditions of employment.

The legal status of industrial action means that employers have several sanctions they can impose on staff. In the current dispute between the universities and their staff over pensions, employers are no doubt being advised by their lawyers about how best to retaliate. These lawyers are likely to have been trained by the very people against whom they are now advising. One line of advice we have seen is that the employers may seek to recover from academic staff any losses incurred by the university, should the university be sued by students as a result of the dispute.

Historically, there are examples of legal steps of this kind in the law reports. They stand out because the practice of suing strikers for breach of contract is exceptional. Most employers during a dispute want nothing more than to resolve the strike through negotiation. Most employers realise that bullying individual strikers through suing for breach of contract is petty, short-sighted, and inflammatory.

It is a matter of surprise and horror that some university employers are threatening precisely to take such action against individuals participating in an assessment boycott in the current dispute over the pension settlement. The senior management teams of at least three universities seem to be taking us back to Taff Vale with this intimidation of individual strikers. Taff Vale was the infamous case in 1901 in which a railway company sued a trade union for damages caused by a strike.

What is being proposed now over 100 years later is of course much worse. Employers can no longer sue trade unions for damages in lawful disputes such as the UCU pensions dispute. Even if they could, there would be a cap on the amount that could be extracted by way of damages from a union – a cap laid down in a statute introduced by the Thatcher government. But there is no such protection for individuals, this having been thought to have been unnecessary in our more civilised industrial past.

We have no idea who is providing legal advice to employers. It appears, however, that this is not the first time that this tactic has been contemplated by employers and others. In the course of a previous dispute in the university sector, a leading law firm advised that

 

…. if a university is sued by a student for breach of contract, in relation to the impact of the industrial action, the university could seek to join members of staff to that litigation and to recover from them any damages which are awarded to the student. This is, of course, not necessarily a line which universities would wish to take. Nevertheless it may be something which could be communicated to staff as a possibility by institutions wishing to take a particularly robust position in relation to the dispute. For example when communicating any policy on deductions, universities could also state that they reserve their legal rights to join members of staff as parties to any litigation brought by students.

 

We suspect that the current threat to sue is an empty threat, designed to intimidate individuals and discourage them by spreading fear. So far as we are aware, there has been no reported case since 1959 in which an employer – university or otherwise – has sued an individual striker for breach of contract. The last employer to do so was the National Coal Board, which brought proceedings against pit deputies who had refused to take part in Saturday working, bringing production to a standstill as a result.

Apart from the fact that it was decided so long ago, the notable feature of the pit deputies case is that the principles for the assessment of damages in unusual cases of this kind are very unclear. As a result, the decision provides absolutely no basis for the universities’ facile claim that they will (i) seek to recover damages from employees, (ii) assessed on the basis of any losses they suffered as a result of an action by students. It is not so simple, no matter how hard the employers may bark otherwise.

In the pit deputies case, there was no question of the workers being liable for the loss of production caused by the industrial action. At best, they were responsible for the losses incurred in hiring replacements to provide the cover necessary on a Saturday. Although only a small sum of damages was eventually assessed, as a result the decision remains highly contestable, not least because it takes no account of the employer’s duty to mitigate its losses in contract claims.

If the threats are empty gestures by bullying employers, the universities issuing such threats may be regarded as breaking the employment contract through a breach of the term of mutual trust and confidence. This has been used as a standard to challenge other forms of workplace bullying and harassment by employers, and the issuing of threats known to be empty but with the objective of intimidating, particularly in an otherwise lawful dispute, would seem to constitute a repudiatory breach of contract by the employer.

Why is this important? One reason is that it is unfair to dismiss an employee for taking part in lawful industrial action. To engage in conduct during industrial action that by its bullying nature constitutes a repudiation on the part of the employer would provide for employees to leave en masse and to claim that they had been constructively dismissed. By their conduct, university managers run the risk of exposing their institutions to even greater liability than they probably anticipated.

More importantly, however, on 8 April 2014, the European Court of Human Rights published a crucially important decision in a complaint brought by rail union RMT about restrictions in British law on the right to strike. Although the claim was unsuccessful on the merits, the Court held that the right to strike is ‘clearly protected’ by the European Convention on Human Rights, Article 11. Penalising strikers in lawful disputes through threats to sue appears to be incompatible with the growing case law under Article 11.

The imposition of financial penalties on individual workers for participating in lawful industrial action is a basic violation of workers’ human rights as recognised by the Strasbourg court. Under the Human Rights Act, domestic courts must have regard to that European jurisprudence in developing the common law, including implied terms such as mutual trust and confidence. The management teams at the ‘Taff Vale’ universities, as well as their wise legal advisers, will surely be aware of these recent developments.

While these new developments are being processed, we note that some of these universities portray themselves as defenders of human rights, with fancy human rights programmes. What are students to make of this hypocrisy? That these universities are prepared to trade in human rights only as a commodity? That these universities do not respect the human rights of those they employ? That these institutions have been so damaged by their managers that they have no intellectual credibility? Intellectual credibility is also a commodity.

The university employers have provided an open goal for the Strasbourg court, by ruthlessly exploiting one of the last unprotected frontiers of British labour law. As we have explained, British workers who take part in a strike or other industrial action have a right not to be dismissed for doing so. But they have no express protection against action short of dismissal of the type now threatened by the ‘Taff Vale’ employers, unless they were to resign and claim that they had been constructively dismissed by the bullying conduct of their employer.

But no one should have to resign from their employment to assert their human rights or to protect their human rights from the bully. If these threats are carried out, their union would surely support the workers in question – to hold these employers to account in the domestic and European courts. It would be remarkably ironic if these human rights defenders were to become human rights defendants It would also be extremely helpful to workers everywhere if by their stupidity the university employers were unwittingly to contribute to the introduction of legislation protecting the right of every worker not to suffer detriment for engaging in lawful activity.

That would be quite a legacy.

 

Alan Bogg is a Professor of Law at Oxford University.

Keith Ewing is a Professor of Law at King’s College, London.

 

This post originally appeared on The Institute of Employment Rights Blog.

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Javier García Oliva: Catalonia in Spain? The future ahead

Javier-10-2After the result of the Scottish Referendum on 18th September 2014, an analysis of pro-independence movements within other members of the European Union could not be more timely. Catalonia is a particularly pressing case, as it has witnessed in the course of the last few months, bitter debates about its future position within the Spanish State. A key point to note is that Catalonia is, in accordance with the Spanish Constitution of 1978, a nacionalidad, the most sophisticated type of Comunidades Autónomas or sub-State entities, with the fullest capacity for regional autonomy within the Spanish State.

It would be helpful to refer, albeit briefly, to the various steps leading up to the current clash between the national Spanish and regional Catalonian authorities. Clearly, the recent and much publicised consultation held on 9th November, was a particular flashpoint in an ongoing legal and political tussle. This consultation exercise had been previously declared illegal by the Spanish authorities, but went ahead regardless (admittedly on the basis that it was officially arranged by voluntary organisations rather than the regional government). Of those who chose to participate, 80% expressed their desire to live within an independent Catalonian State.

This controversial consultation is undeniably an important landmark in the continuing conflict between the central and the regional authorities and will be discussed further afterwards below; however, the other key aim of this blog is to highlight the main findings of the previous decision of the Spanish Constitutional Court on 25th March 2014, which deemed important parts of the Catalonian Declaration on an independence referendum unconstitutional.  The consultation, its outcome and implications can only be meaningfully understood in the context of this earlier judicial pronouncement.

A referendum about the “political future of Catalonia” had been included in the agreement of governance signed on 18th December 2012, by both Convergėncia I Unió (CIU) and Esquerra Republicana de Catalunya (ERC), two nationalist parties. The latter was a traditionally left-wing pro-independence party, whilst the former, a conservative nationalist coalition, was generally regarded as a strong supporter of further autonomy within the Spanish State, but not a pro-independence party. In fact, during the 1990s, Convergėncia i Unió had been a strong ally of both the Conservative and the Socialist Parties in the central Government in Madrid. It is unquestionable that the pro-independence movement could only claim the support of a small minority of citizens in the Catalonian nacionalidad as recently as ten years ago; but there has since between a paradigm cultural shift in this regard, and the character of the debate has radically altered.

On 23rd January 2013 the Parliament of Catalonia adopted the “Declaration of Sovereignty and of the Right to Decide of the Catalan People”, which stated that “The people of Catalonia have –by reason of democratic legitimacy- the character of a sovereign political and legal entity’. The Declaration asserted as its basis on the principles of sovereignty, democratic legitimacy, transparency, dialogue, social cohesion, Europeanism, legality, role of the Catalan and participation: “In accordance with the democratically expressed will of the majority of the Catalan public, the Parliament of Catalonia initiates a process to promote the right of the citizens of Catalonia to collectively decide their political future”. Only a few months later, on 8th May 2013, this Declaration was provisionally suspended by the Spanish Constitutional Court.

However, the Government of Catalonia, the Generalitat, led by Artur Mas, decided to go ahead with this project in defiance of the Court’s ruling. In December 2013 it announced that an agreement had been reached by the majority of political parties represented in the Parliament of Barcelona, including a date (9th November 2014) and the wording for the referendum on independence. The questions would be as follows: “Do you want Catalonia to become a State?” and in the affirmative, “do you want this State to be independent?” This move by the Catalonian authorities had not been endorsed by the central authorities; in fact the Spanish Prime Minister, Mariano Rajoy, and other members of the Government were explicit in categorising the proposals as illegal.

Crucially, on 25th March 2014 the Spanish Constitutional Court, in response to an appeal put forward by the Abogado del Estado (Attorney General), on behalf of the Spanish Government against the January 2013 Declaration of the Catalonian legislature, found that the principle of sovereignty, as articulated within the Catalonian Declaration, was unconstitutional and therefore void. However, it also stated that the right to decide was compatible with the Constitution, provided that it was duly interpreted.

In the view of the Abogado del Estado, the January 2013 Declaration encouraged citizens to take part in a political process which could be regarded as a genuine challenge to the Spanish Constitution, and in particular to Art 1.2 . This provision establishes that national sovereignty belongs to the Spanish people, and it is from this source that the powers of the State emanate. Furthermore, in his view, the Declaration purported to have juridical effects ad extra, with undeniable external juridical significance. In fact, it explicitly stated that its addressees were all citizens of Catalonia and that it had a binding effect on the action carried out by the Generalitat. In the view of the Abogado del Estado, the Government of Catalonia was unquestionably bound to achieve the aims set out by its Parliament, and these also had an impact on the citizenship. As the Constitutional Court is the guardian of the Spanish Constitution, the Abogado del Estado asserted that relying on Art 161.2 was appropriate in this context, as it authorises the Spanish Government to contest before the Constitutional Court the provisions and resolutions adopted by the organs of the Autonomous Communities, and this Declaration aimed to alter, unilaterally, the global balance of the Spanish State. In addition to Art 1.2, stated above, the Declaration breached Arts 2, 9.1 and 168 of the Spanish Constitution, as well as Arts 1 and 2.4 of the Regional Law of Catalonia. Art 2 was critical, as the highest Spanish Law is based on the indissoluble unity of the Spanish nation, the common and indivisible homeland of all Spaniards, whilst recognising and guaranteeing the right to autonomy of the nacionalidades and regions of which it is composed. Furthermore, in procedural terms, Art 168 declares that if such a fundamental revision of the Constitution is proposed, it must be approved by a two-thirds majority of the members of each Chamber, and the Parliament should immediately be dissolved. The Abogado del Estado insisted that nacionalidades are, of course, entitled to believe that they should become independent, but they must should then follow the correct procedure.

The legal team of the Catalonian authorities challenged this analysis, and stated that such a Declaration was within the remit of Art 145 of the Reglamento of the Catalonian Parliament, which is, by definition, completely different from a legislative action. In their view, such a Declaration aimed to express a will and a political purpose, and a legally binding force was lacking. In fact, it did not change any existing legal framework nor produce real or concrete legal effects. This was, in their opinion, a purely political declaration which indicated the political route through which the whole procedure was to be developed. They also acknowledged that in the juridical sense the principle of sovereignty did not fit into the current legal framework, but insisted that this was not an obstacle, as their Declaration was purely political in nature, and neither had nor claimed legal and constitutional effects.

As previously indicated, the Spanish Constitutional Court found that the Declaration was, strictly speaking, a political act, and accepted the assertion by Catalonian authorities’ lawyers that it was not legally binding; nevertheless, the Court emphasized that such lack of legal force by no means equated to a lack of civil effect. Because in reality stating that citizens of Catalonia are ‘sovereign’ would lead to a juridical outcome, the exercise of the right to decide couldn’t truly be limited to the political realm. In addition, the decision of the highest Spanish Court concurred with the analysis of the Abogado del Estado in relation to the breach of both Arts 1.2 and 2 of the Spanish Constitution. As a result of this finding, an Autonomous Community couldn’t unilaterally convene a referendum in order to decide whether to remain part of the Kingdom of Spain.

Furthermore, in a previous decision of the same Court, STC 31/2010, it was recognized that Catalonia was a subject with rights, but with a crucial caveat. This subject status flowed from the framework recognized by Art 1 of its Estatuto de Autonomía, Catalonia’s highest internal law. This legal structure obviously not only assumes, but is utterly dependent upon, the overall universe created by the Spanish Constitution in 1978; and so must be compatible with it. In other words, the Autonomous Community of Catalonia only makes sense in light of the sovereignty proclaimed by Art 1.2 of the Constitution.

However, the Spanish Constitutional Court was at pains to stress that the concept of the ‘right to decide’ is not, by its very nature, incompatible with the Spanish legal framework, but it may only be exercised in compliance with the mechanisms set out with the national Constitution. ‘The right to decide’ cannot amount to complete self-determination, as that is not recognised by the 1978 document; however such an outcome can certainly be a political aspiration, to be reached by means of a legal and constitutional process. The Court recognised the significance of a healthy dialogue between the central and Catalonian authorities, but also clearly stated that it is not its function to determine the right shape of such dialogue. Furthermore, the Spanish Constitutional Court was not antagonistic to changes or transformations to the current framework, as long as they followed the right legal and constitutional procedures. In light of this, if a Comunidad Autónoma initated the constitutional reform procedure, as recognized by Arts 87.2 and 166 of the Spanish Constitution, the Spanish Parliament would be bound to consider it. In summary the Spanish Constitutional framework was not found to be, in principle, a barrier to the ‘right to decide’. This had been recognised as a political aspiration which could be defended as such.

A few days later, on 8th April 2014, the Spanish Congress, the Lower House, rejected the Parliament of Catalonia’s request to give it the power to organise the self-determination referendum.

But despite the opposition of the authorities in Madrid, the Catalonian legislature and executive continued with their plans in the course of the last few months. The consultation law was approved by the regional Parliament on 19th September 2014, followed by a decree of the President of its executive on 27th September. The response of the Spanish Constitutional Court could not have been more rapid and only two days later, on 29th September, it provisionally suspended the vote.

In this climate of continued conflict and disagreement, the Government of Catalonia declared on 14th October 2014 that a public consultation would replace the previously planned vote. Nevertheless, what was presented as a concession was not adequate to satisfy the Spanish Government, which after having consulted the Consejo de Estado, a prestigious advisory body, decided to also request the suspension of this alternative public consultation, which was to have been held on 9th November. In the eyes of the Consejo de Estado, rather than improving the constitutional position, the guarantees incorporated into the proposed consultation were even weaker than the inadequate assurances within the previously planned vote.

Only a few days ago, on 4th November, the Spanish Constitutional Court decided to accept the appeal brought forward by the Abogado del Estado against the process of public consultation and, consequently, decided to suspend such a public consultation, as well as all other decisions related to its preparation.

In response to this pronouncement, the Government of Catalonia agreed to leave the running of this public consultation mainly, if not exclusively, in the hands of voluntary associations, including the Pacto Nacional por el Derecho a Decidir. The Spanish Government for its part declared that in light of this, it would not challenge the decision.

More than two million of the population within Catalonia took part in the 9th November consultation. Nevertheless, the validity and significance of the outcome is inevitably going to be limited. It seems clear that it has been overwhelmingly supported by those who pursue independence; even the authorities of Catalonia have recognised this reality.  There was an undeniable element of self-selection in those who opted to participate in an exercise of, at best, doubtful legal and democratic validity; the result cannot be held up as the undisputed voice of the Catalonian people as a whole.

On balance, the fact that the consultation was allowed by the regular judiciary to take place, despite the decision of the Spanish Constitutional Court, is to be welcomed, although it has been regarded by some as a sign of weakness and apathy towards such a blatant breach of the legal framework. In the eyes of the judges, however, positive intervention to prevent it would have been disproportionate and this is a reasonable conclusion in light of the overall political context. The final percentage of participation may have been around a 35%, which has been heralded as an authentic success by the Government in Catalonia, but which is by no means a majority vote. However, it should not be underestimated by the central authorities in Madrid either.

The last few months have witnessed an antagonistic exchange in an increasingly confrontational relationship between the political authorities in both Catalonia and Madrid. This is extremely regrettable, given that, such a climate of hostility is damaging and counterproductive for all parties. It is unfortunate for Catalonia, Spain and the wider world that, the authorities of Catalonia have knowingly determined to pursue an illegal path; something which is at odds with the constructive and honourable role played by Convergencia I Unió only two decades ago.

This should have never happened, but at the same time, the Spanish Government cannot simply adopt the stance of opposing reform or changes, regardless of the circumstances. For the good of the whole nation, there needs to be a collaborative and productive a dialogue between the central and the regional authorities. This must be facilitated in a manner which is in compliance with the provisions of the Spanish Constitution, from whence the existence and legitimacy of both regional and national government are derived. Nevertheless, Catalonians must be empowered, alongside citizens from the rest of Spain, to discuss their future in the Spanish State, and the result of yesterday’s consultation should be followed by a response from the central Government. Where there is a political appetite for such discussion, engaging in dialogue is a necessary exercise and we should expect our politicians to pursue it. The dialogue does not have to conform to the British model, as each State context is unique. However, the presence of a codified Constitution such as exists in Spain, should not be used as a dam to keep back the tide of change if this was supported by the majority of the citizenship. Perhaps the future of the territorial Spanish framework can be under the umbrella of a Federal State, as suggested by the Socialist Party, the centre-left wing main opposition party. This is a very interesting proposal, but to what extent isn’t Spain already a Federal State?

 

Javier García Oliva is a Senior Lecturer at the School of Law, Manchester University.

Suggested citation: J. Oliva: Catalonia in Spain? The future ahead (10th November 2014) (available at http://ukconstitutionallaw.org).

 

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Conference Announcement: New Zealand Administrative Law Conference

NZ_flag_PhotoI write with some news from the far ends of the empire – calling all readers with an interest in New Zealand and administrative law.  NZ law in this area still tends to be closer to the English than that of most other commonwealth jurisdictions – but obviously there are significant local variations, for a variety of reasons (eg the increasingly different constitutional, political and social setting, and dare I say also the different judicial personalities).  We also have some fine administrative law scholars, but their attention often gets captured by developments in other jurisdictions.

In an attempt to help redress the dearth of academic commentary on NZ case law and other developments in this area, the Legal Research Foundation is hosting a conference specifically devoted to NZ Administrative Law on 30 January 2015 in Auckland.  The programme for the day is as follows, involving speakers from most NZ universities and two who are currently based in Australia:

 

“What is new about neo-liberalism? Reframing the debate about the use of contractual techniques of governance”

Professor Janet McLean, University of Auckland

 

“The unlamented victim – Administrative Law in times of crisis”

Dr John Hopkins, University of Canterbury

 

“The convergence of the Court’s roles in appeal and judicial review”

Marcelo B Rodriguez Ferrere, University of Otago

 

“Non-justiciability in New Zealand: Does it, and should it, have a continuing role?”

Dr Rayner Thwaites, University of Sydney

 

“The Ireland Principle for Multiple Purpose Cases: An Exploration and Defence”

Hanna Wilberg, University of Auckland

 

“Grounds, Intensity and Instinct in New Zealand Administrative Law”

Dean R Knight, Victoria University of Wellington

 

“Human Rights Law as Administrative Law: The Evolution of the Baigent Remedy”

Dr Jason Varuhas, University of New South Wales

 

“The ‘State of the Nation’ in New Zealand Administrative Law”

Professor Philip Joseph, University of Canterbury

 

The conference brochure can be downloaded from http://www.legalresearch.org.nz/events, and online registration is also available there.  For further information, please contact myself (h.wilberg@auckland.ac.nz) or the Legal Research Foundation’s Secretary Barbara Relph (barbara@legalresearch.org.nz).

Hanna Wilberg

 

Hanna Wilberg is a Senior Lecturer at the University of Auckland

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