Author Archives: Constitutional Law Group

Patrick O’Brien: How active were pre-2009 judges as parliamentarians?

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(Click on graph for bigger image)

Is the question of anything more than historical interest? The Constitutional Reform Act 2005 precluded judicial peers from contributing to parliamentary debate from 1 October 2009. Many of the Law Lords were opposed to the change, and many judges are at least nostalgic for the past arrangements. The current Lord Chief Justice (LCJ) of England and Wales, Lord Thomas, and his immediate predecessor, Lord Judge, have both publicly regretted the fact that they cannot speak in Parliament on matters of importance to the judiciary. To the extent that the outlook of judges today is shaped partly by the feeling that they have lost a valuable platform, the issue is worth exploring. In fact judges were very infrequent contributors to parliamentary debate. Whilst past Lord Chief Justices – and other judicial peers – may have occasionally used the chamber of the Lords as a platform for articulating judicial viewpoints, all things considered they did so rarely.

As part of research done with colleagues as part of an AHRC project on The Politics of Judicial Independence in Britain’s Changing Constitution we created a database of the number of Hansard contributions made by each of a set of judicial peers during each year in the period between the commencement of the Appellate Jurisdiction Act 1876 on 1 November 1876 and the creation of the Supreme Court on 1 October 2009. The graph gives a figure for the ‘career average annual contribution’ (CAAC) for each judge (listed in order of appointment on the x-axis). This figure is calculated by dividing the total number of contributions by each serving judge to debate in the House of Lords by the number of years as a serving judge with a peerage. The CAAC figure is intended to provide a rough basis for comparing each judges’ overall activity in debate.

Who were the judicial peers? The Law Lords (the Lords of Appeal in Ordinary) form the bulk of those included in the database, but judicial peers also included figures like the LCJ of England and Wales, who by convention received a peerage with the job, and other senior UK judges who tended to be awarded peerages after appointment (see the ‘Summary Data’ table). For practical reasons we have not sought to track down every single judge with a peerage and so the few judges who held peerages whilst in post but fall outside of these categories are not included. The figures for each category, including ‘All judicial peers’, are calculated independently. This is because a number of judges (16 in total) served in more than one of the judicial offices considered, meaning that in some cases the same person appears in more than one category (e.g. Lord Woolf appears in the figures for Law Lord, Master of the Rolls and Lord Chief Justice).

 

   

 

 

Summary data: judicial peers and their contributions to Lords debates 1876 to 2009

Judicial Position Number with peerages Number who contributed Average/Median CAAC
Law Lord 112 87 (78%) 5.16/1.68
LCJ (England & Wales) 16 13 (81%) 4.64/3.25
Master of the Rolls 13 9 (69%) 4.74/1.75
Lord President (Scotland) 8 4 (50%) 1.16/0.06
LCJ (Northern Ireland) 2 0 0
LCJ (Ireland; pre-1920) 1 0 0
All judicial peers 133 104 (78%) 4.91/1.76

 

What do the data tell us? Contrary to the impression that is sometimes presented of the judicial peers, they were relatively inactive parliamentarians from the very beginning. Most judicial peers contributed very little to debate. A few individuals spoke a great deal by the standards of the group as a whole but this appears to be influenced by personal factors. These judges had mostly had previous careers as politicians. All four judges with CAAC figures of greater than 50 contributions per year were Law Lords. Lord Morris (1890s) and Lord Carson (1920s) were former Irish politicians who retained a keen interest in Irish affairs after their appointment to the Appellate Committee. Viscount Dilhorne (1970s) was another former politician; a prominent former Tory MP and Lord Chancellor. It seems reasonable to attribute the enthusiasm of these three for debate to their familiarity with politics and the debating chamber. The fourth of this group, Lord Ackner, did not have a political background but contributed heavily to the debates on Lord Mackay’s reforms to judicial pay and conditions and to the legal system in the late 1980s and early 1990s. This picks out another feature of judicial contributions: they were episodic and motivated by judges’ interest in specific issues (notably law reform and judicial ‘trade union’ issues).

Half of the total cohort spoke on average less than twice a year (the median CAAC figure is just 1.76 contributions per year). A fifth never spoke at all. There was no significant decline in contributions until the last decade of the Appellate Committee, and – measured as a matter of pure quantity and frequency of contributions to parliamentary debate – there was no ‘golden age’ after 1876 in which the judicial peers were active as legislators to any significant extent. The trend line in the graph above shows a very gentle and gradual decline from the first judicial peer in the sample to the last. Much of the decline is accounted for by the abrupt and almost complete reduction in contributions by the last judicial peers from around the year 2000.

It is not clear to us that judges have lost all that much in their departure from Parliament. There may be subtle ways in which judges could be influential as parliamentarians that are not captured by the Hansard data but judges are not short of ways to express themselves or of contacts in Parliament. Nor is Parliament short of legal and judicial experts, albeit that judges now must be retired before they can take their seats in the House of Lords. Serving judges can still articulate their views on law and justice issues through public lectures, direct engagement with the government and Parliament, and through the formal procedure for laying representations before Parliament (section 5, Constitutional Reform Act 2005). Of most interest to us, and the subject of a pair of papers we are due to complete shortly, is the fact that judges have become regular witnesses before Parliamentary committees. Judges have appeared before committees as witnesses 260 times in the last 35 years, most of those in the last decade. This, however, deserves another post all of its own.

Patrick O’Brien is a Fellow in the Department of Law at the London School of Economics.

 

The research into judicial peers and judicial appearances before parliamentary committees forms the basis of a pair of papers I am currently writing with Robert Hazell on dialogue between judges and Parliament. Readers may also be interested in our forthcoming book, G Gee, R Hazell, K Malleson and P O’Brien, The Politics of Judicial Independence in the UK’s Changing Constitution (CUP, due out in early 2015).

Suggested citation: P. O’Brien, ‘How active were pre-2009 judges as parliamentarians?’, UK Const. L. Blog (28th October 2014) (available at http://ukconstitutionallaw.org).

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Adam Perry: The Source of the Crown’s General Administrative Powers

AdamThe Crown has statutory and prerogative powers, and many people have said it has other powers as well. The Supreme Court clearly agreed for the first time in 2013. In R (New London College) v Secretary of State for the Home Department, Lord Sumption said for the majority: ‘the Crown possesses some general administrative powers to carry on the ordinary business of government which are not exercises of the royal prerogative and do not require statutory authority’ (at [28]). This remark was obiter, but it is in keeping with the trend of authority over the past decade. (Mark Elliott, Paul Daly, and Janet McLean blogged about New London College earlier.)

The Crown’s ‘general administrative powers’, as Lord Sumption calls them, and as I shall call them here, are unglamorous but important. They range from the power to form contracts to the power to convey property, and include powers to circulate written material, consult with officials, give gifts, and create policies. Much of the day-to-day business of government falls under the Crown’s general administrative powers.

Their importance makes it worth knowing what gives the Crown its general administrative powers. How does the Crown come by these powers? What is their basis or source? Two answers have been popular, but I have doubts about both of them.

Harris’s Account

Bruce Harris has done more than anyone else to bring attention to the Crown’s general administrative powers. Harris takes as his starting point the principle set out by Sir Robert Megarry in Malone v Metropolitan Police Commissioner that everyone is legally permitted to do what is not legally prohibited. Harris calls this the ‘principle of legality’. He thinks it gives everyone, including the Crown, a ‘residual liberty’ to do what is not prohibited. The Crown’s residual liberty is a ‘third source’ of power or (the word he prefers) ‘authority’, in addition to statute and custom. This third source is the source of the Crown’s general administrative powers.

I find Harris’s argument fascinating, but I am not convinced by it. It helps to make the steps of his argument clear. This is what Sir Robert Megarry says in Malone:

  1. The Crown is permitted to do what the Crown is not prohibited from doing.

Harris ultimately says that the Crown has a power to do what the Crown is not prohibited from doing. Note the shift from ‘is permitted’ to ‘has a power’. Permissions are very different from powers, so what Harris says does not follow directly from 1. I think Harris must be assuming this:

  1. The Crown has a power to do what the Crown is permitted to do.

Now Harris’s conclusion follows:

  1. The Crown has a power to do what the Crown is not prohibited from doing.

It seems to me that there are several problems with this argument. But the most important is that 2 is false. The Crown does not have a power to do whatever it is permitted to do. Think of some of the things the Crown is not prohibited from doing: making a will for you, solving the Middle East crisis, repealing all the laws of France, giving itself the power to repeal all the laws of France, and on and on. It follows from 1 that the Crown is permitted to do all these things. Were 2 true, it would follow that the Crown has the powers necessary to do all these things. But the Crown has no such powers, so 2 is wrong. In short, what the Crown is permitted to do is one thing, what it has a power to do is another.

This is a quick objection, of course. There are subtleties in Harris’s account that I have left out. Given the difference between permissions and powers, I can’t see how Malone or the ‘principle of legality’ could be the right starting point. But I am keen to know what others think.

The Common Law Account

Courts in this country have favoured a different account of the source of the Crown’s general administrative powers. In R v Secretary of State for Health, ex p C, the Court of Appeal claimed that the common law gives the Crown the same powers as a natural person. In Shrewsbury & Atcham Borough Council v The Secretary of State for Communities and Local Government, the Court of Appeal followed C, which it took to have established that the Crown has common law powers to do ‘anything which could be done by a natural person’ (at [44]). (The Supreme Court has also on occasion referred to the Crown’s ‘common law powers’.)

It is striking that the Court of Appeal did not offer any real argument for the claim that the common law is the source of the Crown’s general administrative powers. The closest it came was citing a passage from Halsbury’s Laws of England.

There is an obvious argument for that claim. It proceeds by process of elimination: there are only three legal sources – statute, custom, and common law; the source of the Crown’s general administrative powers is not statute or custom; so, their source must be the common law. But note the implicit assumption that the source of the Crown’s general administrative powers is a legal source.

That assumption seems half right and half wrong to me. It is half right because (with some possible exceptions not relevant here) legal powers have legal sources, and some of the Crown’s general administrative powers are legal powers. This includes its powers to form contracts, give gifts, and convey property. These are legal powers because, in essence, their use affects legal duties and rights because that is what the Crown can be taken to intend by using them. The common law is indeed the source of these powers.

The assumption is half wrong because some of the Crown’s general administrative powers are not legal powers. This includes its powers to circulate written material, consult with officials, and create policies. The relationship between non-legal powers and legal sources is tricky, but the three powers I just mentioned seem clearly not to have any legal source, including the common law. I cannot argue for that claim here, but if you are sceptical, ask: what change in the common law would make it impossible for the Crown to circulate a list or consult with officials?

So the common law account identifies the source of some but far from all of the Crown’s general administrative powers.

Those are the two existing accounts of the source of the Crown’s general administrative powers. There is a need for a new account, and in a separate working paper, I take some steps towards one. There are many other interesting questions about the Crown’s general administrative powers. What is the extent of the Crown’s general administrative powers? What distinguishes them from the Crown’s prerogative powers? How should courts treat exercises of general administrative powers? Is it consistent with the rule of law for the Crown to rule using powers not conferred by law? In my paper I try to answer some of these questions, too.

Adam Perry is Lecturer in Law at Queen Marys University of London.

 

Suggested citation: A. Perry ‘The Source of the Crown’s General Administrative Powers’ UK Const. L. Blog (25th November 2014) (available at http://ukconstitutionallaw.org)

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Seminar Announcement: Political vs. Legal Constitutionalism: fin de siècle?

School of Law, SOAS, University of London

Cordially invites you to

The Comparative Constitutional Law Series

Political vs. Legal Constitutionalism: fin de siècle?

Wednesday 29 October 2014

Room 4426, Main Building, SOAS, Thornhaugh Street, Russell Square

 

 

This workshop examines the state of the debate on political and legal constitutionalism in the UK and provides a comparative perspective on similar debates in the US, China, and India. Why does the debate persist despite scholarly efforts to address it? Why is it significant at all? What are the consequences of accepting one approach or another? Should we move beyond the debate because it is no longer interesting or relevant?

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First Session: 17:00-18:15

The State of The Debate in The UK

Graham Gee (Birmingham University): Is there More to the Political Constitution than Meets the Eye?

Jack Caird (Sussex University): Enhancing Politics through Law? Constitutional Politics in the Political Constitution

Discussant: Nick Barber (Oxford University): The Debate as a Red Herring

Moderator: Mazen Masri (City University)

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Second Session: 18:30-19:45

The Debate Elsewhere

Ernest Caldwell (SOAS): the Chinese debates

Alexander Fischer (SOAS): the Indian debates

Nimer Sultany (SOAS): the US debates

Discussant: Paul O’Connell (SOAS)

Moderator:  Ioannis Kalpouzos (City University)

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Open and free for the public

 

For more info contact: Nimer Sultany, ns30@soas.ac.uk

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Robert Hazell:You want a constitutional convention? This is what you need to think through first.

robert_hazell1

In the run up to the Scottish independence referendum, and its aftermath, calls have grown for a constitutional convention to discuss further devolution, as well as wider constitutional reforms. Yet most constitutional conventions around the world have failed to deliver subsequent reform. Careful thought therefore needs to be given to the purpose, scope and terms of reference, timetable, selection of members, budget, staffing and links to government and Parliament if a convention is to have any chance of success. Robert Hazell addresses each of these issues in turn.

Purpose

A constitutional convention is a group of people convened to draft a constitution (like the drafters of the American constitution in Philadelphia in 1787), or to consider specific constitutional reforms. In recent times conventions have come to include ordinary citizens, like the Irish Constitutional Convention which met from 2012 to 2014. A convention may be established for several reasons:

  • To build cross party consensus for further constitutional reforms
  • To harness expert opinion to chart a way forward
  • To develop a more coherent overall reform package, rather than further piecemeal reforms
  • To bring in ideas from outside the political elite
  • To create greater legitimacy and support for the convention’s proposals
  • To generate wider participation through innovative methods of public engagement.

A constitutional convention is not the only means of achieving these purposes. If the main objective is to build cross-party consensus, then cross-party talks are the obvious vehicle (as in the cross party talks which preceded the Belfast agreement, or the current talks on further devolution to Scotland led by Lord Smith of Kelvin). If the main objective is to harness expert opinion, then the best vehicle may be an expert commission. In recent years expert commissions have been successfully used to chart the way ahead for further devolution, with the Calman Commission in Scotland leading to the Scotland Act 2012, and a series of commissions leading to the grant of further legislative powers to Wales. But the extraordinary levels of public engagement during the referendum campaign in Scotland have created an expectation that for proposals to command legitimacy, there must be greater citizen involvement in producing them. The Scottish experience lies behind calls for a constitutional convention. But alternative models exist (for example, inter parliamentary talks); and there is no single model for a constitutional convention (see Alan Renwick’s excellent pamphlet, and Fournier et al’s book When citizens decide: Lessons from citizens’ assemblies on electoral reform OUP 2011).

Scope and terms of reference

One argument advanced for a constitutional convention is that it would enable development of a coherent overall reform package, rather than further piecemeal reforms. People have suggested that it should address the unfinished business from previous reforms: an elected House of Lords, a British bill of rights, reform of party funding, a written constitution. A list of reform proposals from all sides of the political spectrum could include the following:

  • Renegotiating the balance of competences. In/Out referendum on EU
  • Human rights. Repeal of the Human Rights Act. British bill of rights. Exit from ECHR, Council of Europe
  • Reform of House of Lords. Further improvements to ‘transitional’ appointed House; directly elected second chamber; federal second chamber to represent nations and regions
  • Reforms to House of Commons. Reducing size of House to 600. Changing the voting system. Votes at 16. Extending expatriate voting rights
  • Reform of party funding
  • A written constitution for the UK. This would offer the widest scope, encompassing all the above.

A convention charged with resolving such a wide range of different issues would face an impossible task. Each issue has proved intractable; in combination they are insuperable. Even if the convention is asked just to consider further devolution in the UK, the agenda would be sizeable. It includes the following items:

  • Further devolution to Scotland, of tax and welfare. What else? Devo more or Devo max?
  • Devolution finance, reform of the Barnett formula
  • Further devolution to Wales (Silk report 2 on legislative powers)
  • Further devolution to Northern Ireland (e.g. of corporation tax)
  • Devolution within England: an English Parliament. Regional assemblies, city regions.       Combined authorities, elected mayors, restructuring local government, reforming local government finance
  • Rebalancing the Centre.       English votes on English laws.       Entrenching the devolution settlement. Combined Secretary of State for the Union. Federal second chamber.

This is a big agenda, and a convention charged with considering further devolution would need to have a phased work programme and prioritise certain items. Depending on the political context, it might decide to prioritise work on the English Question (see my earlier blogpost on The English Question).

Timetable

That brings us to the timetable. This must fit the agenda of the next UK government, and the wider political and electoral cycle. What results (if any) are required before the next UK general election in May 2015, the next Scottish elections in May 2016, the introduction of a British bill of rights, or a possible In/Out EU referendum in 2017? Practical realities mean it would be almost impossible to establish a convention before the May 2015 election. In other countries the lead in time required to set up a convention from the formal decision to establish one has typically been six months (see column 2 in the table below). Informal negotiations within the governing party and with other parties can extend that time further: in British Columbia and Ontario it took two years from the initial decision to establish an Assembly to the Assembly starting work. The table below shows the scope, timetable, budget and staffing of previous conventions. It is incomplete, and I would welcome help in filling the gaps and adding details of other conventions, but the data suggest that establishing a convention is a big and complex task, requiring careful planning with long lead in times.

Data about previous constitutional conventions

 

constitutional-conventions

Once established, the timetable of a convention will depend on what it is asked to do. Three of the conventions listed above had a single task, devising a new electoral system. The Irish convention had eight tasks; the Icelandic convention a single huge task, creating a new constitution. The timetable will also depend on the size of the convention, and its working methods. The larger the convention, and the more participatory and inclusive its working methods (eg holding regional meetings), the longer it will take to complete its task.

Establishing the convention: membership, budget, and staffing

Much has already been written about the different options for selecting citizens to serve on a convention so that it is representative of all parts of the UK, and of gender, age, socio-economic background, ethnic minorities, disabled people etc (see Alan Renwick’s pamphlet and the Electoral Reform Society evidence). Ensuring adequate representation from all parts of the UK and all these different variables may result in a large convention: the Electoral Reform Society suggest 200-220 people. That in turn would require a large budget, for servicing large meetings, travel etc. The two Canadian conventions each cost $5m. The Irish convention cost only 1m euros, but was squeezed very tight: those involved say it needed twice the time and twice the money to do justice to its remit. In an age of austerity, with further cuts to come, a Rolls Royce convention may not be feasible. Proponents will need to think how far the size and cost can be scaled back without compromising the integrity of the exercise.

Even a scaled back convention is likely to cost low millions. If the government decides not to establish a convention, it is unlikely that anyone else could afford to do so. But it is conceivable that civil society organisations might try, through a large donation or innovative fund raising through crowdsourcing. They would then have to decide the terms of reference, the timetable, the membership, budget and staffing of the convention, and they would be responsible for the success or failure of the enterprise.

Working methods of the convention

Again, much has been written about this. The convention will need a strong online presence, with an excellent website, podcasts of all its sessions, and imaginative use of social media. It will need to commission and publish evidence, hold public meetings, and it may want to publish working papers and consultation papers. It will also need the ability to commission expert reports, to establish sub committees or expert committees, to commission polling data or other research. An expert panel can help to advise the convention, source and brief the relevant experts, and ensure it draws upon the widest possible research and evidence base.

Links to representative government and legislatures and the political process

Finally, the convention needs to maintain strong links with government and with Parliament to ensure that it carries them along with its thinking. Other conventions have failed in part because they have been too removed from the political process. One way of bringing the two together is to include politicians in the convention, as in Ireland where one third of the members were politicians, and two-thirds ordinary citizens (with mixed success, leading one adviser to suggest that any future convention might have only citizen members and a separate panel of parliamentarians as a conduit and sounding board). Another is to require the convention to deliver an interim report, and then to hold a parliamentary debate so that parliamentarians are informed of the convention’s thinking, and can feed back their initial reactions.

Conclusion

A constitutional convention sounds an attractive idea. But a convention established hastily, overloaded with too many tasks, inadequately staffed or required to report too quickly is almost certain to fail. That will be damaging to the cause of deliberative democracy as well as to constitutional reform. Those who call for a constitutional convention have focused almost exclusively on its membership, and how those members would be selected. As much thought needs to be given to its purpose, terms of reference, timetable, budget, leadership and staffing, as well as its links to government and Parliament. If equally careful thought and planning is given to all those things, a convention stands a much greater chance of success.

Robert Hazell is Professor of British Politics and Government & Director of the Constitution Unit.

 

This post originally appeared on the Constitution Unit Blog and is reposted with thanks.

 

Notes on Table 1

[i] The government that established the BC Citizens’ Assembly was elected in May 2001. It had promised an Assembly as part of a more ambitious reform package that included new public accounting standards, open cabinet meetings etc. There was some opposition in caucus to the idea of holding an Assembly, so it took time for the Premier to generate the necessary support. An expert, Gordon Gibson, was commissioned to prepare a plan for the Assembly, and reported in Dec 2002. In May 2003 the legislature endorsed the proposal, with amendments, and the government’s proposed chair. In August the selection process started with the first mailing of invitations. Selection meetings around the province went on over the fall and the Assembly was then ready to meet in January 2004.

[ii] It took 18 months from the Premier’s announcement of his intention to establish a Citizens’ Assembly, in November 2004, to the Regulation creating the Assembly and appointing the chair in March 2006. It then took a further six months to set up the Assembly, which started work in September 2006.

 

 

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Sionaidh Douglas-Scott: British withdrawal from the EU: an existential threat to the United Kingdom?

Sionaidh-Douglas-Scott-avatar-1409859580-96x96The Conservative party’s proposal to repeal the Human Rights Act (and their proposal’s many faults) has already been well documented. However, as Roger Masterman has already pointed out on this blog, ‘It seems unusual then, that the target of Grayling’s indignation is the supposed denial of supremacy caused by the non-binding influence of decisions of the European Court of Human Rights, rather than the more realistic (though perhaps equally problematic) assertion that legal competence has been ceded in some way to the Court of Justice.’ But the European Union is very much a target of indignation for conservative and other eurosceptics, and David Cameron has promised, if re-elected, an in-out referendum by 2017, if the terms of Britain’s EU membership cannot be renegotiated. With UKIP support gaining in the polls, pressure is growing on other parties to support an EU in-out referendum. There is a realistic prospect that the UK may leave the EU.

There are many arguments that can be made as to why the UK should remain within the EU. This posting addresses just one: the serious constitutional consequences for both the constituent parts of the UK, and the UK as a whole, should there be a ‘Brexit’. Given that the UK has just survived perhaps the most serious threat ever to its constitutional existence, in the form of a very closely run Scottish referendum on independence, and given the fervent and almost desperate nature of the ‘Vow’ made by all three party leaders to accord greater powers to Scotland if necessary to maintain the Union, the risk of such further constitutional instability should be taken seriously.

At first it might seem that Scotland’s ‘No’ vote for independence would lessen the chance of EU secession, given the relatively greater pro-EU vote in Scotland (‘relatively greater’ because UKIP did gain one constituency in the Scottish European parliament elections of 2014). How each constituent part would vote is not certain, but according to 2013 House of Commons figures, 53% of Scots said they would vote to stay in the EU, compared with a third who said they would vote to leave. This was in contrast to attitudes in England, where 50% said they would vote to leave the EU compared with 42% who would vote to stay in. At the last European Parliament elections in May 2014, UKIP gained the largest percentage of votes in the UK overall, with 27.5%, but in Scotland only 10.46% of the vote. Furthermore, EU regional funding tends to benefit Scotland, Wales and Northern Ireland more than it does England. Wales and Northern Ireland are net recipients from the EU Budget, and in particular, Northern Ireland stands to lose significant sums if the UK withdrew from the EU. Likewise, to the extent that the devolved nations have access to EU institutions in areas of devolved competence, they enjoy an international presence that would be difficult to replicate through country-specific diplomatic missions. So there are distinct advantages to be lost by an EU exit.

However, the relatively lower eurosceptic vote in the devolved nations would not make a great impact on an EU in-out referendum overall, given that (according to the Office for National Statistics) the population of the devolved nations eligible to vote is small compared to that in England. How much does this matter? It matters a great deal if the vote in the devolved nations is of a less eurosceptic complexion than the English vote in an EU in-out referendum.

Destabilising devolution

It is with the devolution settlement itself that an EU exit would wreak the most havoc, risking a constitutional crisis. Both the European Convention on Human Rights (ECHR) and EU law are incorporated directly into the devolution statutes in Scotland, Wales and Northern Ireland. For example, section 29(2)(d) of the Scotland Act 1998 (SA), provides that Acts of the Scottish Parliament that are incompatible with EU law or with ECHR rights are ‘not law’. Section 108(6) Government of Wales Act 2006 states that any act of the Welsh Assembly incompatible with EU law or the ECHR, falls outside its competence. Section 24 of the Northern Ireland Act prohibits any legislation contrary to EU or ECHR law.

Therefore, although the Westminster Parliament may repeal the Human Rights Act 1998 or the European Communities Act (ECA) 1972, this would not bring an end to the domestic incorporation of the ECHR or EU law in devolved nations. It would still be necessary to amend the relevant parts of devolution legislation. But this would be no simple matter and could lead to a constitutional crisis. Although the UK Parliament may amend the devolution Acts, the UK government has stated that it will not normally legislate on a devolved matter without the consent of the devolved legislature. This requires a Legislative Consent Motion under the Sewel Convention. However, the devolved legislatures might be reluctant to grant assent, especially as one feature of the ‘Vow’ made to the Scottish electorate was a commitment to entrench the Scottish Parliament’s powers, thus giving legal force to the Sewel Convention. So the need to amend devolution legislation renders a UK EU exit constitutionally highly problematic.

Should devolved nations be able to host separate referenda?

Would it be possible for the devolved nations to demand their own referenda in the event of a Westminster mandated EU in-out referendum? In the frenzied last days before the Scottish independence referendum, there was talk of moves towards a ‘federal’ UK. This does not seem very likely now, and whatever recommendations the Smith Commission will deliver later this year (which are likely to include more financial, welfare and taxation powers for the Scottish Parliament) they are unlikely to include greater autonomy in foreign affairs. However, as many areas of EU competence are devolved matters, and continued Scottish membership of the EU was a concern in the event of Scottish independence, the matter is likely to be of great interest in Scotland. Notably, between the 2015 UK general election and the promised 2017 EU in-out referendum will come another election – the 2016 Scottish parliamentary elections. The SNP may perform well in that election, bolstered by the 45% vote in the independence referendum and progress toward ‘devo max’. In which case, the Edinburgh government – which is generally of a more pro-European and social-democratic hue than Westminster – might call for a new independence referendum if there were a serious prospect of a 2017 referendum leading to a UK EU exit, presenting such a further independence referendum as Scotland’s means of remaining within the EU. And given this change of circumstances they might gain over 50% of the vote. This would not find favour in London, which would almost certainly not accord a repeat referendum the sanction of legitimacy accorded to the 2014 vote. However, regions have been willing to go ahead with referenda even without a constitutional sanction – such as Catalonia this November.

In the face of such a prospect, should a potential EU in-out referendum be required to take on a different constitutional form to past UK-wide referenda? Should a requirement be set for a majority of exit votes in each of the devolution jurisdictions before UK withdrawal is possible? Or perhaps each of the devolved nations should be able to hold its own in-out referendum, and a ‘federal’ standard set whereby UK withdrawal is only possible if a majority of the devolved nations vote to exit? 

Scotland and the sovereignty question

A British exit from the EU is sometimes justified in terms of the maintenance of parliamentary sovereignty, which presently must concede the supremacy of EU law (acknowledged both in ECJ caselaw such as Costa v ENEL, and s 2(4) ECA). However, the Diceyan orthodoxy of parliamentary sovereignty has never held as much weight north of the border. In the 1953 case of MacCormick v Lord Advocate in the Court of Session, the Lord President, Lord Cooper, (a former Conservative and Unionist politician and eminent legal historian) contested the Diceyan orthodoxy thus:

‘The principle of the unlimited sovereignty of parliament is a distinctively English principle which has no counterpart in Scottish constitutional law….Considering that the Union legislation extinguished the parliaments of Scotland and England and replaced them by a new parliament, I have difficulty seeing why it should have been supposed that the new parliament of Great Britain must inherit all the peculiar characteristics of the English parliament but none of the Scottish parliament, as if all that happened in 1707 was that Scottish representatives were admitted to the parliament of England.’

Linda Colley’s well-known work, Britons: Forging the Nation, reminds us that both the British state and the British national identity were ‘forged’ by the Acts of Union of 1707. The United Kingdom is only 300 years old, not an ancient natural phenomenon, and it may be undone. Given that the Union of 1707 brought into being the British state, ought we not give this historical event of the Acts of Union its due as a keystone of the British constitution, rather than the Diceyan mantra of parliamentary sovereignty? In which case, perhaps we should recognise that the British constitution is not simply the English constitution, and that Scottish constitutional principles (and Northern Irish, and even now nascent Welsh – given the recent ‘Welsh Bye-laws case) play their part in a multiple constitutional order, and may be of particular salience at times of crisis or ‘constitutional’ moments, such as the issue of whether to withdraw from the EU. Scottish intellectuals, lawyers and politicians of many different political persuasions stand by an indigenous Scottish tradition of popular sovereignty that is claimed to date back to the Declaration of Arbroath in 1320. They hold that, before the 1707 Act of Union, sovereignty resided in the Scottish people – and that it still does so, in spite of the claims of Diceyan parliamentary sovereignty.

Many Scottish unionist politicians accept the doctrine of Scottish popular sovereignty. It was this doctrine that pervaded the Claim of Right for Scotland in 1989, which was signed by the great majority of Scotland’s MPs and many of the leaders of Scottish civil society. The draft Constitution for an independent Scotland, published earlier his year, stated that ‘the fundamental principle’ that ‘the people are sovereign…resonates throughout Scotland’s history and will be the foundation stone for Scotland as an independent country’.

Therefore, meditation on the entirety of the Union, and its constitutional basis, poses the question of whether, at least in Scotland, the doctrine of popular sovereignty might form the basis of Scotland’s own right to determine whether or not it exits the EU. If Scotland chose to remain, and England to leave, the scope for constitutional crisis would be extreme.

Impact on Ireland and the Northern Ireland peace process

Lastly, the impact on the island of Ireland of a UK exit from the EU should be considered. It could well be source of great instability. Although Ireland itself is clearly a separate state, and has long since left the UK, it is nonetheless in a somewhat different relationship to the UK than the other current 26 members of the EU. Section 2(1) of the Ireland Act 1949 (the British Act of Parliament passed to deal with the consequences of the Irish Republic of Ireland Act 1948) declared that, even though the Republic of Ireland was no longer a British dominion, it would not be treated as a ‘foreign country’ for the purposes of British law. Irish and UK history are much intertwined and, were the UK to exit the EU, it would mean an external border of the EU would run through the island of Ireland. The shared border with the Republic of Ireland has long been of enormous symbolic and practical importance. What would happen to the Common Travel Area between the two islands if the UK exited the EU? Would visa requirements and customs duties be imposed?

The Belfast or ‘Good Friday’ Agreement of 1998, an international treaty signed by the UK and Republic of Ireland, enshrined North-South and East-West co-operation, effected constitutional changes and established cross-border bodies. It includes many provisions concerning EU and ECHR law, and the status of the UK and Ireland as EU member states is woven throughout the Agreement. Indeed, the section entitled ‘Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland’ speaks of ‘close co-operation between (the) countries as friendly neighbours and as partners in the European Union’. The Good Friday Agreement required the British government to incorporate the ECHR into Northern Ireland law. Any amendment through changes to either the Human Rights or Northern Ireland Acts which did not meet the human rights commitments in the agreement would be incompatible with this international treaty. The peace process in Northern Ireland is unfortunately not irreversible, but it has been unforgivably ignored in UK discussion on whether to withdraw from the EU. It is also likely to be ignored in Brussels, where there is some impatience with British demands in any case.

In March 2012, a joint Statement by Taoiseach Enda Kenny and Prime Minister David Cameron set out a programme to reinforce the British-Irish relationship over the next 10 years. It emphasised the importance of shared common membership of the EU for almost forty years and described them as ‘firm supporters of the Single Market’. However, a UK EU exit would have consequences for the future of the Belfast agreement and in particular implications for Anglo-Irish co-operation in dealing with cross-border crime and terrorist activity. To give just one example: the UK and Ireland make frequent use of the European Arrest Warrant (EAW). Figures indicate that since the EAW entered into force, the great majority of requests made by Northern Ireland for surrender of persons have been to Ireland. Prior to the introduction of the EAW, a number of European and domestic measures in the UK and Ireland regulated extradition proceedings, and resurrecting these would be a painful process, fraught with difficulties and uncertainties and potential for endless litigation. While the EAW has not always functioned ideally, a return to bi-lateral extradition conventions and other measures would be very undesirable. (Although the UK’s current plans are to exercise a block opt-out from over 130 EU Justice and Home Affairs measures, the apparent intention is to opt back in to the EAW immediately).

In conclusion, a British exit from the EU risks undermining the very self-determination and national sovereignty that its adherents believe it will bring about. This is because it risks shattering the fragile balance and stability of the UK by threatening the peace settlement in Northern Ireland and raises the possibility of a further independence referendum in Scotland. Surely such constitutional risks are not to be taken on lightly? But at present, there is little indication that anyone calling for an EU exit is giving them much thought. 

Sionaidh Douglas-Scott is Professor of European and Human Rights Law at Oxford University.

 

(Suggested Citation: S. Douglas-Scott, ‘British withdrawal from the EU: an existential threat to the United Kingdom?’ U.K. Const. L. Blog (13th October 2014) (available at http://ukconstitutionallaw.org).

 

 

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Tom Hickman: ISIS, passports and Magna Carta: New national security powers raise complex issues

tomOn 1 September the Prime Minister made a statement to Parliament in which he indicated that the Government was considering introducing the following new national security measures:

  • Powers to enable the police to confiscate passports at borders if they suspect an individual is seeking to travel to support terrorism, for a period allowing them to investigate the individual concerned. This will include “safeguards and … oversight”.
  • A power to exclude British nationals from the UK.
  • Placing no-fly list arrangements on a statutory footing.
  • Requiring persons subject to TPIMs to engage with the Prevent programme.
  • Ratcheting-up the statutory restrictions that can be imposed on individuals under the TPIM Act 2011 to include “stronger locational constraints” either through use of exclusion zones or relocation powers.

The announcement followed atrocious acts committed by ISIS in beheading Western hostages and, in particular, the fact that British citizens were implicated. In her Conservative Party Conference speech, the Home Secretary said that a new counter-terrorism bill would be introduced by the end of November.

Although the Prime Minister made a welcome reference to the need to avoid a “knee-jerk” reaction to ISIS, these proposals have a back-of the envelope feel. In addition to clarifying precisely what is proposed, it needs to be understood why these powers are—given those already in existence—required to meet the needs of the police and security services.

Several discussions in the media since the Prime Minister made his statement have demonstrated a lack of understanding of what is proposed and what powers are already available. A survey of how the proposals fit within the suite of national security powers already available is therefore worthwhile.

Removal of passports

Reference is often made by the general public to a person being granted a passport in terms which are intended to mean a grant of citizenship. Correspondingly, people often refer to a person being stripped of a passport when they mean stripped of citizenship. It is often not appreciated, even by lawyers, that as a matter of UK law the grant of a passport is quite separate from the grant of citizenship and that under UK law a national has no right to a passport.

A British citizen benefits from many rights and privileges, including a right of abode in the United Kingdom protected by s.2, Immigration Act 1971. But British citizenship does not entitle a person to a British passport. Under the peculiarities of the British constitution, the Secretary of State retains a power to refuse or cancel a passport under the royal prerogative.

The conferral of a passport is essentially a diplomatic act, which both confirms the identity of the bearer and confirms their status as a British national under the diplomatic protection of the British Crown. British passports include a request on behalf of the British Crown to “all those whom it may concern” to “allow the bearer to pass freely without let of hindrance, and afford the bearer such assistance and protection as may be necessary.” Each passport states that it “remains the property of Her Majesty’s Government …and may be withdrawn at any time.” If a person refuses to return a passport upon request they are presumably guilty of theft.

The power to revoke and refuse passports has long been regulated by a published policy, a policy that was updated as recently as 25 April 2013. The policy states amongst other things that the power may be invoked to stop “British nationals who may seek to harm the UK or its allies by travelling on a British passport to, for example, engage in terrorism-related activity”.

The removal of a passport does not therefore affect a person’s right of abode in the UK, which is statutory, nor – rather importantly – does it actually remove a citizen’s right to travel abroad or come and go from the United Kingdom. This is a common law right or freedom that is also embodied in Article 12(4) of the ICCPR, which states: “Everyone shall be free to leave any country, including his own”. The effect of withdrawal of a passport is to frustrate the exercise of that right by denying an individual a universally accepted from of identification and by withdrawing the request of the Crown that he or she be given free passage. But a person who travels abroad having had their passport withdrawn, has done nothing wrong.

The Prime Minister’s proposals relate to the extension of the Home Secretary’s power relating to passports to the police, allowing them to withdraw and confiscate passports for a short period pending an investigation. However, given that the power does not actually preclude a person from travelling abroad—it simply makes it more difficult for them to do so—it doubtful whether an extension of this power is really the right way to approach the issue. A more appropriate power might be a temporary travel ban. But as we shall see Parliament has already made provision for travel bans under the Terrorism Investigation and Prevention Act 2011 (“TPIM Act”) and therefore any such new power needs to be considered alongside those already available under the TPIM Act.

Before turning to the TPIM Act, however, we should consider the power to deprive people of British citizenship under section 40 of the British Nationality Act 1981. This power has historically been used to strip dual citizens of their nationality, allowing them to be either deported or excluded (by a legally separate but often contemporaneous order) from the UK. The Bureau of Investigative Journalism reported in December 2013 that the use of the deprivation power had “dramatically escalated” to prevent jihadists returning to the UK.

A controversial amendment to this power made by section 66 of the Immigration Act 2014, which came into effect in July this year, allows the Secretary of State to deprive people of British citizenship even where this would make them stateless where the individual has committed acts that are prejudicial to the vital interests of the country.

But despite its breadth, the power of deprivation of citizenship has important limitations. The power to render a person stateless does not apply to non-naturalised citizens. It must also be doubtful whether the deprivation power could be used against persons seeking to travel to the Middle East for the first time, as opposed to returning jihadists, since such persons would not have yet done any acts prejudicial to the interests of the UK. Furthermore, it would not be appropriate for this power to be used for the purpose of investigating a suspect, since its effect is permanent.

Of more significance therefore is a power under the TPIM Act to impose a “Travel Measure” on an individual reasonably believed to be involved in terrorism related activity. Schedule 1 paragraph 2 of the TPIM Act establishes a power with the explicit purpose of prohibiting a person from leaving the United Kingdom (or alternatively requiring prior notice before leaving the UK). It also includes a power to surrender a UK passport and to hand-over and not to possess any other passports and travel documents. The TPIM Act also enables the power to be exercised on an urgent basis where required.

TPIMs are usually associated with curfews, tags and limits on association. It is often overlooked that the TPIM Act can be used in a more limited fashion and that a Travel Measure can be imposed whether or not other TPIM Measures are imposed. From the perspective of the authorities, it has some obvious advantages over the passport deprivation power, in particular that it imposes a prohibition on leaving the country and that the prohibition is backed by criminal penalties.

The TPIM Act also has various safeguards for individual liberty, such a requirement for judicial approval of any Measures imposed, special advocate procedure to test the justification for the Measures, requirements to renew and keep the necessity for such measures under review, and oversight of the Independent Reviewer of Terrorism Legislation (“the IR”). Not only does the prerogative not carry with it such protections, the exercise of the prerogative power can be indefinite, whereas any TPIM Measure has a maximum lifespan of two years in the absence of renewed engagement in terrorism related activity.

Therefore if the police have reasonable grounds to believe a person is seeking to leave the UK to engage in jihad abroad they could seek an urgent Travel Measure from the Secretary of State under the TPIM Act. This may require a new administrative process for border police seeking urgent TPIMs, but given that Parliament has established this power – with important safeguards – there would need to be a compelling reason why the police should be conferred an analogous, and less effective, power. There is also considerable value in maintaining centralised decision-making both for consistency of decision-making and as a disincentive against over-use of the power by police. It would also ensure that the safeguards imposed by Parliament were engaged.

It follows that if the Government seeks new powers outside the TPIM Act, it will have to explain why those under the TPIM Act – designed in part for precisely these circumstances – are inadequate. One response may be that persons leaving the UK would not yet have engaged in terrorism related activity, which is the precondition for a TPIM Measure. However, given the extremely broad way that the concept of terrorism related activity is statutorily defined, and the related concept of terrorism, it seems unlikely that the Government would contend that it is not capable of applying to persons who seek to leave the UK to engage in jihad. The Government might say that the power should be exercised on the basis of suspicion rather than reasonable belief (another condition for imposing a TPIM Measure), but Parliament would no doubt take considerable persuading that such a power should be exercised by police on the basis of suspicion alone, not least as Parliament decided when it enacted the TPIM Act that TPIM Measures should only be imposed on the basis of reasonable belief.

Nonetheless, whilst we are entitled to be sceptical given the lack of explanation currently available, there is at least potentially a gap in the Government’s armoury which the new power could fill.

This discussion may have prompted the thought amongst some readers whether it remains lawful for the Secretary of State to exercise prerogative powers intended to prevent a person believed to be involved in terrorism related activity from leaving the United Kingdom, given that Parliament has legislated powers on precisely this issue subject to numerous safeguards. It is a central principle of constitutional law that the prerogative cannot be exercised where Parliament has legislated on a subject. And here resorting to the prerogative rather than seeking a Travel Measure under the TPIM Act denies individuals a right of appeal and many associated protections (including a 2 year limit) that accompany a Travel Measure. Using the royal prerogative to deprive a person of their passport can therefore be used as a means of bypassing the protections in the TPIM Act.

This is perhaps most obvious when persons are deprived of passports after a Travel Measure comes to the end of its 2 year maximum term: the removal of a passport to continue, in effect, the travel restriction based on same factual case is difficult to reconcile with Parliament’s stipulation that Travel Measures will not endure for longer than 2 years in the absence of re-engagement in terrorism related activity.

The Prime Minister referred to litigation seeking to test this point (including one case in which the author acknowledges a role acting for a Claimant) and the Prime Minister stated to Parliament that the Government is preparing legislation in case such challenges succeed.

However, irrespective of such challenges, it is time that the prerogative power to withdraw passports is put on a statutory footing in its entirety. As long ago as 1980 Sir William Wade described the power in his Hamlyn Lectures, as, “a murky administrative area where there is a crying need for clarification and legal right”: Constitutional Fundamentals, Stevens & Sons, p.52. Legislating for the withdrawal of passports would not only give the power a proper democratic basis suitable for the modern era, it would enable proper protections to be put in place for individuals. The incentive for Governments is that it would enable the power to be made more effective by pairing it with actual prohibition on travel and removing the legally problematic overlap of the prerogative and the TPIM Act regime.

Returning to the current proposal, if the police are to be given new powers to temporarily deprive persons of their passports this should be a self-contained statutory power or an extension of the TPIM Act and not an opportunity to provide statutory endorsement by a side-wind for a prerogative power which is out-dated and in need of reform.

Preventing British citizens returning to the UK

The idea that British citizens should be prevented from returning to the UK raises myriad issues, legal, moral and practical. The most immediate legal issue is section 2 of the Immigration Act, which identifies the right of abode as a core incident of citizenship.

But there is also a deeper constitutional principle in play here. Blackstone in the Commentaries wrote in 1765 that, “every Englishman may claim a right to abide in his own country for as long as he pleases; and not to be driven from it unless by the sentence of the law. … For exile, or transportation, is a punishment unknown to the common law…” (Vol i. p.133).

Indeed, it is a mark of how deeply rooted this principle is that any legislation in this field would need to amend or depart from Magna Carta itself, the famous chapter 29 of which (which is still on the statute book) states, “No Freeman shall be …outlawed, or exiled, or any other wise destroyed…” save by lawful judgment of his peers. The Prime Minister appears to have forgotten about Magna Carta. But its sentiments were echoed by Dominic Grieve, the former Attorney-General, who stated in Parliament, “I share the concern that has been expressed about the suggestion that British nationals, however, horribly they may be alleged to have behaved, should be prevented from returning from this country.” (HC Debs 1 Sept 2014 c.32.)

From a more practical perspective, the idea of refusing to allow citizens to return to the UK reflects a sense in which the UK Government would like to think of such individuals as ‘somebody else’s problem’. But such an attitude is unlikely to win favour amongst other States left with the problem of un-returnable British jihadists in their midst, and they may well simply not accept the position of the UK Government and seek to return the individual to the UK.

If individuals return to the UK having acted in a manner inconsistent with their duty of loyalty to this country and to British law then the proper response is for them to face due process of British justice and be prosecuted for one of the wide array of terrorism offences, or for treason.

No fly lists

Just as it is appropriate for the prerogative passport power to be placed on a statutory basis, so should the arrangements for no-fly lists. And for the same reasons: (1) their legal origin and legal effect are obscure; (2) they represent an interference with individual freedom of movement and to come and go from the UK unimpeded; and (3) they lack adequate legal safeguards. The Government’s suggestion that these should be put on a statutory basis is therefore to be welcomed.

TPIMs and Prevent

In principle there is sense in the suggestion that there should be engagement with TPIM subjects other than through the police and MI5, such as through the Prevent programme or possibly the probation service, particularly if combined with a relaxation of their obligations as they near the end of a TPIM and their return to ordinary life. But there are real complexities here particularly if it is sought to compel engagement by imposing it as a TPIM Measure backed by criminal sanctions.

These difficulties arise from three features of the regime: (1) TPIM subjects usually maintain their innocence of the allegations against them and often, although not invariably, of extremist views; (2) they are subject to TPIMs on the basis of secret evidence; and (3) nothing has been proved against them and—a point that is often overlooked—do benefit from a presumption of innocence, which cannot be simply abandoned in this context. In the light of these three factors, it is difficult to see how many TPIM subjects could constructively engage with programmes insofar as those programmes are premised on their guilt, or could reasonably be compelled to do so. Furthermore, such individuals will understandably be fearful that anything they say or do might be deployed against them either in open court or, possibly, in secret.

There is also an important difference in principle between the essentially negative duties imposed by a TPIM, even those which may be enforced by limited positive duties (such as reporting to a police station to prevent overseas travel), and a positive requirement to attend meetings and engage with a prevention-orientated programme.

Therefore whilst there is undoubtedly room for new thinking and new initiatives in this context, the difficulties should not be underestimated and the proposals will require very careful scrutiny.

Relocation powers

The suggestion that the Government might re-introduce the power of relocation that previously existed under the control order regime is a suggestion which will raise concern across the political spectrum (I leave aside the idea of exclusion zones).

In 2011 Parliament accepted that relocation could not be justified given its serious detrimental impact on individuals by cutting them off from family, friends and their local community. It operated as a form of internal exile, justified by reference to secret evidence. It was one of the most resented aspects of the control order regime by affected persons and local communities. Parliament accepted that the financial saving from the surveillance budget that such a power allowed could not justify the encroachment on civil liberties that it entailed.

The Government appears to have drawn the idea (or at least support for the idea) of backtracking from the TPIM Act in respect of relocation from the recent report of the IR. In his report published in March 2014, amongst a number of recommendations for increasing safeguards under the TPIM Act, such as narrowing the definition of terrorism related activity and adopting a balance of probabilities threshold, the IR stated the “the time has now come to revisit the issue” of relocation arguing that, “Locational restraints have the ability to reduce the abscond risk, to rebuild confidence in TPIMs, to disrupt terrorist networks and to reduce the surveillance budget. Relocation was repeatedly described by the courts as proportionate …” (Terrorism Prevention and Investigation Measures in 2013, March 2014, 6.23.)

The IR suggested that the reintroduction of relocation might be accompanied by much greater freedom for a person to travel around the country (albeit not back to his place of residence).

Many people will take the view that a relocation power simply cannot be justified, especially when accompanied by other intrusive obligations, given the low standard of proof (reasonable belief) and the fact that TPIM Measures are supported by secret evidence.

But on the premise that such powers can in principle be justified, they must, at a bare minimum, be supported by clear and compelling justification. We cannot fully analyse the arguments for and against here, but the following remarks can be made.

The first point to note is that the IR has made a range of recommendations and there is a danger in cherry-picking those that one agrees with or which suit the political climate without accepting others that would proved a counter-balance—the IR’s recommended adoption of the balance of probabilities threshold is perhaps particularly important in this respect.

The nub of the justification for relocation is really the potential for reducing the risk of absconding from TPIMs and the associated reduction of the surveillance budget (the IR has stated that relocation saved the Government tens of millions in surveillance costs.)

In terms of the surveillance budget, it needs to be borne in mind that the IR’s proposal of a form of ‘relocation lite’ which would not confine relocated TPIM subjects to a small geographical area may not generate the same savings to the surveillance budget as were facilitated by the control order regime where relocated persons were so confined. We cannot know, but it seems likely that the relocation lite proposal would still require substantial amounts of surveillance (the suggestion of exclusion zones is a fortiori).

Absconding is a problem. But it seems to be associated in the media with TPIMs when in fact 7 of the 9 absconds were under the control order regime and the two absconds under that TPIM regime (Ibrahim Magag in December 2012 and Mohamed Mohamed in November 2013) were the first absconds since 2007. There is also a major difference between TPIMs and control orders relevant to the risk of abscond, which is that TPIMs come to a natural end after two years, thus providing a much greater incentive for individuals not to abscond than existed under the control order regime under which restrictions were imposed indefinitely.

The IR points to the fact that absconding did not occur under the control order regime after relocation was introduced as evidence of its efficacy at reducing the risk of absconding. Of course, relocation will, logically, reduce the risk of absconding to some extent by cutting people off from friends and associates. But its impact under the control order regime was known to Parliament when it prohibited relocation in 2011. Furthermore, the fact that most TPIM subjects have not absconded—and, as explained above, have a greater incentive not to do so than under the control order regime—should not be lost sight of. If looking at the bald statistics alone the question they pose is, could the relocation of all 10 persons who have been subject to TPIMs have been justified to attempt to prevent two absconds? Or to put this another way, can reallocation be justified to reduce a 1 in 5 chance of absconding further? This is not, however, an argument that can be carried by reference to the statistics—apart form anything else the numbers are just too small.

It is also worth emphasising the fairly obvious point that the fact that a measure is more effective does not mean it is justified. Detention in Belmarsh would, for instance, undoubtedly prevent people absconding (as well as resulting in a massive saving to the surveillance budget) but thankfully nobody suggests that detention should be reintroduced.

In a report published in January 2014, the Joint Committee of Human Rights was clear in its view that relocation could not be justified, whilst accepting its contribution to reducing the risk of absconding. It stated: We remain of the view that a power to relocate an individual away from their community and their family by way of a civil order, entirely outside the criminal justice system, is too intrusive and potentially damaging to family life to be justifiable…” (10th Report 2013-14, Post Legislative Scrutiny: TPIM Act para. 55.

Finally, the issue of providing justification also should not, I suggest, be avoided by pointing to the approach of the courts in upholding a number of relocations under the control order regime. The courts are working within a legal regime in which their role and function is restricted. In rejecting appeals from relocation orders, they should not be thought to be endorsing such powers as they are not considering whether a regime including relocation is preferable to a regime of increased surveillance. The regime is taken as a given and the courts ask whether the measure is proportionate within that regime. If, for example, preventing a person from travelling abroad is endorsed as a legitimate aim, and there is evidence that relocation will make it more difficult for the person to travel, the courts are generally reluctant to say that the obligation goes too far, given that Parliament has endorsed the power as available for use for such purposes.

Connected to this is fact that the role of the courts in judging whether a measure is disproportionate remains secondary: they do not say whether a measure should be imposed but whether it is disproportionate to the objective. In AR, for example, Mitting J stated that he favoured a reduction in the individual’s curfew, but the refusal of a reduction could not be said to be disproportionate: “the decision”, he said “is not mine” [2009] EWCH 1376 at 4. The decision that Parliament will be asked to make if the suggestion of reintroducing relocation is carried-through, however, very much its decision and it should not avoid it by pointing to the approach of the courts.

Conclusion

The Government’s announcement of more powers to combat the national security threat posed by ISIS touches upon some fundamental constitutional issues. And it is a mixed bag. On the one hand, it includes suggestions such as preventing British citizens entering the UK and reintroducing relocation powers, which are very troubling; on the other hand it provides an opportunity put other powers, in principle justifiable, such as the withdrawal of passports and no-fly lists, on a more appropriate legal basis.

 

Tom Hickman is a Reader in Law University College London and Barrister at Blackstone Chambers.

Suggested citation:  T. Hickman, ‘ISIS, passports and Magna Carta: New national security powers raise complex issues’ U.K. Const. L. Blog (9th October 2014) (available at http://ukconstitutionallaw.org/).

 

 

 

 

 

 

 

 

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Alison Young: HRA Howlers: The Conservative Party and Reform of the Human Rights Act 1998

young_alison-l2It seems that a day cannot go by without another mention by the Conservative party of their desire to repeal the Human Rights Act 1998, withdraw from the European Convention of Human Rights, or find a way in which the decisions of the European Court of Human Rights can be ‘advisory’ as opposed to ‘legally binding’. So much so, that it hardly seems newsworthy to report that the Justice Secretary, Christopher Grayling MP, published an 8-page strategy report setting out both why the Conservative Party felt there was a need for change and the proposed replacement for the status quo. However, what does attract attention is the reaction of the former Attorney General, Dominic Grieve MP, that the strategy document was based on ‘a number of howlers’. In agreement with Stephen Tierney, who concluded that the real winner in the Scottish Referendum was democracy, this blog post aims to further democratic participation and debate. It will do so by investigating the strategy report’s argument for the need for change. After all, if the facts on which a policy is based are ‘howlers’, we should at least question whether change is needed, and, if not, whether it may nevertheless remain desirable if unnecessary.

The strategy report begins by focusing on the flaws of the European Court of Human Rights accusing it of ‘mission creep’. It provides four examples to back its claim. First, the report points to problems arising from the European Court of Human Rights’ judgments that a complete ban on prisoner voting breaches Article 3 of the First Protocol. The report claims that it was never intended that this provision of the Convention would grant individual rights. Rather, it is designed to guarantee free and fair elections. Issues relating to the franchise in such elections are deliberately left out of the text. Second, the strategy report lists the decision of the European Court of Human Rights in 2007 which concluded that article 8 included the rights of prisoners to go through artificial insemination with their partners. Third, decisions of the European Court of Human Rights in relation to article 8 are criticised again, this time because foreign nationals who commit serious crimes in the UK can plead their right to family life in order to remain in the UK following their release from prison as opposed to being deported. Fourth, the European Court of Human Rights has banned life sentences, concluding that they are contrary to Article 3 of the Convention.

Before assessing whether these illustrations really are examples of mission creep, we need first to establish if they are true, or howlers. The first howler is the classic error of elevating the need for regulation into a ban. This is exemplified by the strategy report’s discussion of life sentences. In Vinter and Others v United Kingdom the European Court of Human Rights did conclude that life sentences could breach Article 3 of the European Convention. The important word here is ‘could’. The Court does state that ‘Article 3 must be interpreted as requiring reducibility’ of a life sentence. [paragraph 119]. But it is important to realise that by ‘reducibility’ the Court did not mean that life sentences were banned. Rather, the ‘reducibility’ of the sentence required is ‘a review which allows the domestic authorities to consider whether any changes in the life prisoner are so significant, and such progress towards rehabilitation has been made in the course of the sentence as to mean that continued detention can no longer be justified on legitimate penological grounds.’ [paragraph 119]. The Court is also careful to point out that ‘it is not its task to prescribe the form (executive or judicial) which that review should take’. [paragraph 120], save to mention consensus found in comparative and international law of support for a review ‘no later than twenty-five years after the imposition of a life sentence, with further periodic reviews thereafter.’ [paragraph 120]. As the Government itself acknowledges, Vinter v UK does not mean that life sentences are banned or that those serving life terms must be released. Rather, what is banned is a life sentence without a review after 25 years of that sentence. If there are sound penological grounds for continued detention, the prisoner remains in detention.

A second howler is found in the strategy document’s third example – the deportation of foreign criminals. This howler is more subtle. The criticism is that foreign nationals who commit serious crimes are able to remain in the UK. The strategy report sees this as problematic as ‘[t]hese judgments have apparently overlooked the very clear qualifications in the Convention relevant to the legitimate exercise of such rights.’ The document suggests that the European Court of Human Rights fails to do its job seriously, elevating qualified rights into absolute rights; exchanging “you may have a right to remain in the UK as you have a family here and the protection of your right to family life outweighs the interests of justice and the potential harm to the rights of others” for “you can remain here indefinitely as you have a family”. However, as the subtle use of ‘apparently’ makes clear, the real accusation of the strategy report is that it disagrees with the way in which the Court balances rights. The authors of the strategy report would have deported more convicted criminals. It is a subtle howler because it is not technically incorrect. But it is a howler nonetheless, as the language elevates a disagreement over issues where it is reasonable to disagree into a conclusive criticism. It is not that the European Court of Human Rights overlooks the interests of justice and the need to protect the rights of others. It is more that the Court perhaps places less emphasis on these interests and more on the right to family life than the authors of the strategy report would have done, had they been deciding the cases. This is not surprising. These are complicated issues on which it can be reasonable to disagree. That is one of the reasons why both courts and legislatures play a role in these decisions and why the European Court of Human Rights grants a wide margin of appreciation.

Howlers apart – is this a convincing argument in favour of ‘mission creep’? The document accuses the European Court of Human Rights of mission creep as it uses the Convention as a ‘living instrument’, allowing the meaning of the document to evolve over time and, therefore, drift away from the intentions of the original authors of the document. It is true that the way in which the European Convention of Human Rights has been interpreted has changed over time. This is hardly surprising. The world does not stand still. Unsurprisingly, the authors of the European Convention on Human Rights had no opinion on whether prisoners should be allowed access to artificial insemination to enable them to start a family. Artificial insemination of humans, although it existed, was not a widespread or widely acceptable practice when the Charter was drafted. It is also highly unlikely that such specific instances of application of general human rights were matters for discussion at the drafting of the European Convention of Human Rights.

The strongest example of ‘mission creep’ found in the strategy report is the argument that Article 3 of the First Protocol was not designed to provide for any specific franchise. That is correct – in part. Article 3 of the First Protocol states; “[t]he High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.” The question remains whether removing the franchise from a section of the community means that the State in question has carried out a free election. Removing the vote from all members of a particular political party, or from a certain ethnic minority, for example, would be extremely unlikely to meet the criteria of a free election. Nor would the conditions of the Article be met if you were required to cast your vote in the presence of an armed member of the secret services.

The problem is not necessarily that the European Court of Human Rights uses the Convention as a living instrument. Without doing so, human rights cannot help with novel situations – such as the growing use and acceptance of artificial insemination. Maybe the real issue is whether the Court is allowing the Convention to evolve in the right way. Is it the job of the Court to push signatory States forward in developing human rights protections, or to reflect developments in human rights found in the signatory States and elsewhere? When we look at the examples given in the strategy report, the Court appears to be more likely to follow than lead. In its most recent case on prisoner voting, for example, the Court referred to laws across a range of signatory States, in addition to the law in Canada, South Africa and Australia. It was also careful to grant a wide margin of appreciation to States when determining the specific franchise. The European Court of Human Rights does not prohibit signatory States from removing the vote from prisoners. It merely prohibits blanket bans. Signatory States have the ability to determine which prisoners should be prevented from voting and why – a process that the Westminster Parliament is slowly undertaking.

‘Mission creep’ is hard to define. Determining the relevant roles of international courts of human rights, national courts and national legislatures is not an easy task. Moreover, it is something on which one can expect reasonable disagreement. But it is important to recognise that there are mechanisms that the national courts and legislatures can use to signal to the European Court of Human Rights that it has perhaps, taken its mission too far. In Horncastle, for example, the UK Supreme Court did not follow a decision of the European Court of Human Rights, Al Khawaja, relating to whether allowing convictions based on hearsay evidence breached article 6. The decision of the European Court of Human Rights was on appeal to the Grand Chamber at the time and the Supreme Court was concerned that the European Court of Human Rights had not fully taken account of other procedural protections in the common law. In the Grand Chamber hearing in Al Khawaja, the UK Government was able to intervene and the European Court of Human Rights took account of the reasoning of the UK Supreme Court in Horncastle. In doing so, it modified its earlier conclusions, replacing a ban on convictions based on hearsay evidence for a more sophisticated position, recognising when hearsay evidence could be relied upon whilst still protecting the procedural rights of the accused. (See commentary here.) Similarly, in Animal Defenders International v UK, the European Court of Human Rights took account of a decision of the House of Lords and of reports of the Joint Committee on Human Rights. (See commentary here.) As a signatory State to the European Convention, it is also open to the United Kingdom to raise its concerns as to ‘mission creep’ in meetings of the Council of Europe.

Having accused the European Court of Human Rights of ‘mission creep’, the strategy report moves on to fire three criticisms at the Human Rights Act: (i) it undermines the role of the UK courts to decide human rights issues; (ii) it undermines the sovereignty of Parliament and democratic accountability to the public; and (iii) it goes beyond the UK’s obligations under the Convention. However, when we examine the arguments and examples more closely, more howlers appear. The strategy report argues that section 2 of the Human Rights Act 1998 undermines the role of the UK courts. As is well known, section 2(1) of the Human Rights Act requires the UK courts to take judgments of the European Court of Human Rights into account. This could undermine the role of the UK courts were they to read section 2(1) as imposing a system of precedent, with national courts being unable to give a different interpretation of Convention rights than that found in decisions of the European Court of Human Rights. However, this is not an accurate account of how the UK courts interpret section 2(1). Horncastle demonstrates how the UK Supreme Court does not always follow decisions of the European Court of Human Rights. Nicklinson contains dicta demonstrating how national courts may develop Convention rights beyond the interpretation found in the European Court of Human Rights. Moreover, recently, the UK Supreme Court has been developing constitutional rights of the common law – sometimes, preferring, as in Osborn, to refer to the common law. If the strategy report is to be believed, the role of the UK courts is being undermined. However, this does not appear to be the opinion of the UK courts. And, it is the UK courts who determine what it means to take decisions of the European Court of Human Rights into account when interpreting section 2(1).

Assessing whether the Human Rights Act undermines the sovereignty of Parliament and democratic accountability is no easy task. However, the argument used to support this claim in the strategy report contains further howlers. The strategy paper is concerned about the use of section 3(1) of the Human Rights Act, which requires courts to interpret legislation in a manner compatible with Convention rights, so far as it is possible to do so. The concern is that courts take this duty too far. Two possible howlers can be found here, the second following on from the first. First, the strategy report is selective in its choice of case used to illustrate how the courts go beyond the limits of possible interpretations. The document refers to the interpretation of the Misuse of Drugs Act in R v Lambert. This is a case from 2001. The case law has moved on since then. The strategy report makes no mention of Ghaidan v Godin-Mendoza, a more recent case which is often regarded as back-tracking from the earlier, more proactive case law on section 3, including Lambert. Ghaidan v Godin-Mendoza makes it clear that courts will not read words so as to be compatible with Convention rights where to do so would undermine a fundamental feature of that legislation. Second, the strategy report assumes that the sovereignty of Parliament is undermined as interpretations are given that are contrary to the will of Parliament. In these circumstances, there is nothing in the Human Rights Act 1998 preventing the Westminster Parliament from re-enacting legislation to reverse a section 3(1) interpretation. To do so, the Westminster Parliament would have to make it clear that this was its intention, owning up politically to its desire to reverse this interpretation, explaining its reasons for doing so, and doing so in a manner that made the Westminster Parliament democratically accountable for its actions.

Further howlers are found in the third criticism of the Human Rights Act. It is true that the European Convention of Human Rights does not dictate how signatory States are to protect Convention rights. There is no requirement that the Convention be incorporated as it was by the Human Rights Act. This is to state the obvious- after all, the UK signed up to the European Convention of Human Rights long before it enacted the Human Rights Act 1998. However, the strategy report goes on to contrast the situation in the UK with that of Germany. To quote from the strategy report: ‘The German Constitutional Court, for example, ruled that if there is a conflict between the German Basic Law and the ECHR then the Basic law prevails over the Convention. The Human Rights Act provides no such protection in the UK.’ There are two subtle howlers here. First, the ruling of the German Constitutional Court recognises the way in which Germany incorporates international law. The German Basic Law states that international law has the same status as Federal law. As such, it has a lower status than Constitutional law. In the UK, international law has to be incorporated into UK law, normally by primary legislation. Primary legislation can be overridden by other primary legislation. There is no need for the UK to provide the same protection from the ECHR as is found in the German Basic Law. The Human Rights Act can be overridden by future legislation – although the provisions of such future legislation may need to be carefully worded to achieve this effect. The authors of the strategy report must realise this as that is precisely what they propose. The Human Rights Act, even if recognised as a constitutional statute, is not the UK equivalent of the German Basic law. There is not the same need for the Act to provide the same protection as the German Basic Law.

Second, care needs to be taken over the context in which the German Constitutional Court made this statement. Two further clarifications are needed here. The statement was made in the context of conflicting rights. The decision of the European Court of Human Rights questioned by the German Constitutional Court concerned the interpretation of Article 8 requiring a granting of greater visiting rights to a child’s biological father. The German Constitutional Court expressed concern that this could interfere with the human rights of a child’s adoptive family. This stands to reason. There are only so many hours in the day. The more time a child spends with her biological parents the less time can be spent with her adoptive parents. It is one thing to be concerned about following decisions of the European Court of Human Rights when they may cause conflicts with national constitutionally protected human rights. It is quite another to want to claim the ability to ignore human rights decisions because you disagree with them.

The German Constitutional Court did rule that, where there is a conflict, the German Basic law prevails. However, the court has made similar statements with regard to directly effective European Union law. But it has never applied the German Basic law over directly effective European Union law. Nor was the German Basic Law applied over the European Convention of Human Rights. Provisions were interpreted in such way as to ensure their compatibility. What is important is how similar statements of the German Constitutional Court prompted reactions from the European Court of Justice. The Court of Justice developed protections of human rights, inter alia, in the light of such statements. This, in turn, led to the conclusions of the German Constitutional Court that it would apply directly effective European Union law, so long as the European Union continued to provide an adequate protection of human rights. The statements of the German Constitutional Court are examples of constitutional dialogue between courts. In a similar manner, the court is sending the message that it could ignore the European Court of Human Rights, but that, normally, it would follow its provisions. One could argue that the UK Supreme Court in Horncastle was sending the same message. In a similar way, we could conclude that HS2 is an example of the UK Supreme Court sending the same message to the European Court of Justice.

It is not the aim of this blog post to defend the European Court of Human Rights from an accusation of ‘mission creep’. Nor is the aim to claim that the Human Rights Act 1998 is perfect and so need not be changed. It is, instead, to clarify whether the claims of the strategy report provide a sound justification for reform. It is one thing to conclusively prove that an organisation has clearly overstepped the bounds of its legal or political authority. It is another to recognise that the boundaries of that authority are unclear, but that there are mechanisms that can be used by States to raise concerns about ‘mission creep’ and to potentially correct instances where the European Court of Human Rights has overstepped the mark. It is one thing to argue that the Human Rights Act 1998 undermines national courts and fails to protect democracy and national State interests. It is another to realise that those national courts do not appear to feel or act as if they are being undermined, or to recognise that there are provisions within the Human Rights Act 1998 to correct potential erosions of sovereignty and democratic accountability. This is not to argue against reform. It is rather to argue for further clarity as to whether reform is needed and why calls for reform are being made. That way the UK electorate is in a better position to exercise its democratic choice in the next general election.

 

 

Alison Young is an Associate Professor of Law and a  Fellow of  Hertford College, University of Oxford.

(Suggested Citation: A. Young, ‘HRA Howlers: The Conservative Party and Reform of the Human Rights Act 1998’ U.K. Const. L. Blog (7th October 2014) (available at http://ukconstitutionallaw.org).

 

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