Author Archives: Constitutional Law Group

Katie Boyle and Stephen Tierney: Human Rights in Transition: The Proposed Interim Constitution for Scotland

KatiestierneyThe site has recently seen posts addressing the UK’s relationship to the European Convention of Human Rightshere and here. In this post we will seek to extend the debate to the issue of Scottish independence. The framework for human rights protection contained in the Scottish Government’s recent publication, the Scottish Independence Bill: A Consultation on an Interim Constitution for Scotland (see Boyle, Tierney and McHarg) is notable in promising a more robust form of legal protection for fundamental rights (what we might call a ‘rights affirmative’ constitutional arrangement) at a time when the prevailing mood in Whitehall is for a restriction in the role of the courts.

In substantive terms the rights to be protected in the interim constitution of an independent Scotland are those contained in the European Convention of Human Rights (ECHR), which thereby becomes part of the Bill’s foundational constitutional framework. In this sense the arrangements mirror those of the Human Rights Act regime. But the constitutional status of these rights is potentially radically different. If the Bill is viewed through a Westminster prism as a ‘constitutional statute’ (see page 62 of the consultation paper) then the rights it contains could be subject to amendment during the period of transition to a permanent constitution if the Scottish Parliament expressly chooses to repeal or amend the Bill. However, there is some ambiguity in the Bill and broader consultation paper, since at other times it seems to be the intention of the Scottish Government that rights contained in the Bill will not be subject to parliamentary authority, but will be, in effect, entrenched. And in any case rights entrenchment is likely to be solidified following the work of the proposed Constitutional Convention process and the adoption of a new permanent written constitution. The consequence of these two processes is that the constitutionalisation of human rights – both in transition and in an envisaged permanent constitution – will require a reconceptualisation of the legislative role in Scotland and the drawing of an ever more stark contrast between the relationship of courts v legislature in Scotland on the one hand, and that between courts and Parliament in London on the other. Such a radical realignment of institutional powers should be made clear to citizens, enabling an open and inclusive debate in Scotland concerning how or indeed whether human rights should be protected from legislative will in a new Scottish constitution.

Section 26(2) of the proposed Bill provides that Scots law is of no effect in so far as it is incompatible with Convention rights. Page 56 of the consultation proposes that the Human Rights Act 1998 and Scotland Act 1998 be amended to ensure that those matters currently reserved under the Scotland Act 1998 and legislation currently exempt from an ultra vires declaration (i.e. primary legislation emanating from Westminster) should, under the Bill, be subject to the same compatibility requirements under a revised Scotland Act. This would extend the protection of those rights contained in the European Convention of Human Rights from devolved to reserved matters and create a more robust human rights framework than is currently available under the Westminster system. The courts would be able to declare legislation ultra vires the interim constitution should a breach of Convention rights be established, rendering the contravening provision or act unlawful and of no effect. This is clearly a stronger remedy than the declaration of incompatibility option available under section 4 of the Human Rights Act which does not affect the operation of a non-compatible provision and therefore defers to the doctrine of parliamentary sovereignty. In this sense the proposed Bill appears to place limitations on the competence of the newly independent Scottish Parliament, creating a framework model of constitutionalism potentially very different from the Westminster process model (for a discussion on framework v process models of constitutionalism see Feldman). This would be complemented by the existing duty to read legislation as compatible in so far as it is possible to do so under section 101 of the Scotland Act.

However, this is where it gets slightly complicated. The Bill proposes affording ECHR rights constitutional status yet at the same time it also nods towards parliamentary supremacy, suggesting at least the theoretical possibility that the ECHR protection mechanisms could be repealed if the Scottish Parliament expressly chose to do so. Furthermore, perhaps by omission, the section dealing with ECHR protection mentions that the Scottish Government and public bodies are bound to comply but does not expressly provide that the Scottish Parliament’s legislative competence is limited. This omission would be overcome by the overarching provision in section 26(2) that declares Scots law to be of no effect so far as it is incompatible and, under the continuation of laws (section 34) an amended version of section 29 of the Scotland Act could continue to apply, limiting the competence of the Scottish Parliament in relation to ECHR rights and EU law. This is clarified in the explanatory notes to the Bill,

‘The Scotland Act’s human rights ‘bite’ is sharper than that of the Human Rights Act. The renewed Scotland Act will apply the higher threshold – that only applies to Scottish Parliament legislation at present – across all legislation, whether passed at Westminster or by the Scottish Parliament.’

So, whilst the wording of the Bill is unclear on this, it can be implied that the Bill proposes to retain the current, limited, legislative competence framework of the Scotland Act and extend it to reserved matters. By way of example, this would mean that on independence day all reserved matters that are currently in ‘ECHR limbo’ (such as the blanket ban on prisoner voting rights and the Strasbourg judgment in the Hirst case) would need to be remedied, otherwise an application to a Scottish court could result in an ultra vires declaration, rendering the offending provision unconstitutional and of ‘no effect’ in Scots law. In this sense we can see a ‘rights affirmative’ approach at play in relation to those rights recognised under the ECHR.

With the ECHR as the substantive benchmark the Bill does not extend legal coverage to the broad spectrum of rights recognised in international law, such as the right to adequate housing, the right to the enjoyment of the highest attainable standard of physical and mental health, the right to work, the right to an adequate standard of living, the right to take part in cultural life and so on (see for example the scope of rights covered in the International Convention on Economic, Social and Cultural Rights which the UK is party to but which it has not incorporated into domestic law). There is reference in the Bill to some additional rights, such as equality, children’s wellbeing, the interests of the island communities, entitlement to a healthy environment and protection of natural resources (sections 28-32). Although the Bill would codify these references under a single statute, it would appear for the most part that there is nothing in the substance of the provisions that goes any further than protections currently available under existing legislation which would continue to operate under the continuation of laws in section 34 of the Bill. For example, the provisions relating to equality do not go any further than the procedural protections available under the Equality Act 2010. The reference to children’s wellbeing confers a duty on public authorities to ‘seek to safeguard, support and promote the wellbeing of children in Scotland.’ Again, this arguably does not go any further than existing legislation such as the duties conferred on public authorities under the Children (Scotland) Act 1995. The right to a healthy environment potentially extends the scope of justiciable environmental rights in the Bill. On the other hand, the intention could be merely to codify already existing case law under Article 8 of the ECHR. The references to additional rights are therefore better considered as overarching principles rather than substantive provisions that confer additional rights. In the explanatory notes the Scottish Government explains that the intention of this approach is to assist in mainstreaming existing mechanisms. Many human rights advocates may well argue that this does not go far enough.

So, although the interim constitution Bill provides a more robust human rights protection framework than is currently available under the Westminster model, it is also quite restrictive in the wider recognition of additional rights beyond those contained in the ECHR – the ECHR predominantly focussing on civil and political, and not economic, social and cultural rights. Having said that, the proposals leave the future of human rights protection mechanisms in Scotland open for deliberation under the Constitutional Convention process. It is proposed that the interim constitution would be replaced by a written constitution post-independence day following the deliberation and constitution-framing exercise to be conducted by the Constitutional Convention established under an Act of the newly elected independent Scottish Parliament (section 33). And, whilst the interim constitution is a robust (wide reaching with effective remedies) but restricted (only protecting a limited number of rights) model, it does not mean that the same would apply under the terms of a permanent written constitution. The permanent constitution could well embed more wide-reaching human rights protections. In the same vein, the Constitutional Convention might recommend that existing protection mechanisms be reduced or their justiciability qualified (although this might cause significant difficulties if these were deemed to be at odds with Scotland’s obligations under the Council of Europe and European Union). This brings us back to the idea of the interim constitution as a ‘constitutional statute’. This term as understood within a ‘Westminster’ constitutional mentality would make it exempt from implied repeal but not express repeal: in this sense the Scottish Parliament could legislate expressly to amend initial rights protection mechanisms contained in the interim constitution should it so choose. But given the ambiguity in the Bill and supporting documentation to which we have alluded, such an eventuality would raise an interesting issue of legality for the legislation in question. A case might well come before the courts which would test the limits of the Scottish Parliament’s competence in relation to the interim constitution’s authority to bind this Parliament into the future, offering the prospect of a clean break with the very notion of legislative supremacy.

The Scottish Government points out that enhancing rights protection is something that it would suggest be included in the permanent written constitution. Under this proposal, it would be for the Constitutional Convention to decide whether additional protections be afforded to economic, social and cultural rights as well as civil and political rights, such as has recently been recommended by Constitutional Conventions in Ireland and New Zealand. The Bill’s proposed approach differs from the path taken in the interim constitution of South Africa which set out ‘constitutional principles’ to be embedded in the permanent constitution – including equality measures and extensive human rights protection – meaning the road map for human rights was much clearer and more prescriptive in the South African interim arrangements than that set out in the Scottish Government’s proposals. The much broader (and less prescriptive) road map is arguably no bad thing – leaving the decisions on what ought to be included in the final written constitution to the participative Constitutional Convention process.

On the other hand, much of the Scottish Government’s rhetoric around the referendum debate has been about securing a fairer and more inclusive society in an independent Scotland. There ought to be a debate about whether this could, or should, be reflected in any proposed interim or permanent constitution. There also needs to be a debate about how this commitment could be, or whether it ought to be, protected from change by successive political administrations. It is crucial that the people of Scotland should have the opportunity to consider and contribute to the potential models of constitutionalisation of such aspirations – whether they be through channels of political representation in Parliament, through general mission statements or overarching principles, or through the entrenchment of fundamental values in a framework constitution that binds the legislature, executive and the judiciary in the exercise of state power. The consultation process on the proposed Bill offers an opportunity to begin this discussion even before the referendum is held. Interested parties can now begin to contribute to the debate on the future of human rights protection in Scotland should the referendum result in a yes vote. Regardless of differing views as to whether or how human rights should be entrenched, and if so which are suitable for such constitutional protection, what is surely critical is that in the exercise of these debates the process of decision-making about constitution framing be genuinely deliberative, informed and inclusive. In this sense we would reassert that, should there be a yes vote, the Constitutional Conventionbe designed very carefully if it is to be genuinely deliberative and representative’.

In the event of a no vote the future of human rights is perhaps even less certain – the recent UK Cabinet reshuffle suggests that a move towards human rights reform is very much on the Conservative agenda with Prime Minister David Cameron promising to alter, potentially radically, the UK’s relationship to the ECHR. The Shadow Justice Secretary Sadiq Khan has also set out Labour’s plans for a less intrusive Human Rights Act, offering to limit the extent to which Strasbourg jurisprudence is treated as binding and thereby seeking to shift the balance of judicial power back towards the British courts (for a discussion on this see Elliot and Mead). In light of these proposals, the regime offered in the Scottish Government’s proposed Bill strikes a very different tone, seeking to legally enshrine European human rights provisions ever further in Scotland by transferring ECHR devolved protection mechanisms to reserved matters. If indeed the legal guarantees offered to human rights are further restricted by Westminster in the next few years then it would appear that, in the area of human rights law, an independent Scotland may well look remarkably different from the rest of the UK.

 

The research for this blog was funded by Stephen Tierney’s ESRC Senior Research Fellowship under the ESRC Future of the UK and Scotland programme.

Professor Stephen Tierney is Professor of Constitutional Theory at the University of Edinburgh and Director of the Edinburgh Centre for Constitutional Law.  He is currently ESRC Senior Research Fellow under the Future of the UK and Scotland programme and leads the The Scottish Independence Referendum: A Democratic Audit’ research project.

Dr Katie Boyle is a constitutional lawyer and Economic and Social Research Council Fellow at the University of Edinburgh working on the ESRC funded research project ‘The Scottish Independence Referendum: A Democratic Audit’.

(Suggested citation: S. Tierney and K. Boyle, ‘Human Rights in Transition: The Proposed Interim Constitution for Scotland’ U.K. Const. L. Blog (1st August 2014) (available at http://ukconstitutionallaw.org/)).

 

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Cambridge Public Law Conference 2014: Detailed Programme Now Available

The full programme for the 2014 Cambridge Public Law Conference has now been published, providing details of all plenary sessions and parallel panel sessions. The programme can be accessed via the conference website or viewed directly via this link.

The conference runs from 15 to 17 September 2014, under the theme “Process and Substance in Public Law”. Almost 60 speakers are involved, representing a broad range of jurisdictions including the UK, Ireland, Canada, the USA, Australia, New Zealand and South Africa.

A limited number of conference places remain available; registration information can be found here.

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Call for Evidence: Review of Communications Data and Interception Powers

The Home Secretary announced to Parliament on 10 July that the Independent Reviewer of Terrorism Legislation had been asked, with all-party support, to lead a review before the General Election, in the light of the diverse and emerging threats we face, of

  • the capabilities and powers required by law enforcement and the security intelligence agencies, and
  • the regulatory framework within which those capabilities and powers should be exercised.

The terms of reference for the review are here, and the obligation to commission the review was given statutory force in the Data Retention and Investigatory Powers Act 2014, which sped through Parliament last week.

Among the issues that will be considered are whether the UK needs new legislation along the lines of the proposed Communications Data Bill, and whether Part 1 of RIPA 2000 needs to be amended or replaced.  The review will also be looking at the statistical and transparency requirements that should apply, and at the effectiveness of current statutory oversight arrangements.  For comparative purposes it is hoped to refer to the position in other countries, in particular Germany and the USA.

The Independent Reviewer is currently assembling the help needed, and establishing working practices.

If you wish to submit evidence with a bearing on any of the issues, please do so by Friday 3 October 2014 to independent.reviewer@brickcourt.co.uk, limiting your submission where possible to a maximum of 5000 words and heading your email “Evidence for Review”.

The default position is that evidence received may be published or shared with others, attributed to its author and quoted from in my report.  If you wish to submit all or part of your evidence on a confidential basis, please so indicate in a cover email.

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Ann Sherlock: Supreme Court ruling on Welsh legislation.

AnnOn 9 July 2014, the Supreme Court delivered its unanimous ruling that the Agricultural Sector (Wales) Bill was within the legislative competence of the National Assembly for Wales.

The Bill had been referred to the Supreme Court in August 2013 by the Attorney General for England and Wales under section 112(1) of the Government of Wales Act 2006 (hereafter GWA 2006). This provision, whose equivalents in the Scottish and Northern Irish devolution legislation have yet to be used, allows for the referral of a Bill passed by the Assembly if the Attorney General or the Counsel General, the Welsh Government’s law officer, considers that it goes beyond the Assembly’s legislative competence.

This is the second occasion on which a Bill has been referred: the first concerned the Local Government Byelaws (Wales) Bill. The Attorney General argued that the Bill exceeded the Assembly’s competence in that it flouted a general restriction on the Assembly’s competence by removing or modifying a function of a Minister of the Crown. In the event, the Supreme Court ruled unanimously that, while the Bill did remove some of the Secretary of State’s functions, that removal was saved by the exception in the GWA 2006 which permits the removal of a function as long as it is ‘incidental to, or consequential on, any other provision contained in the Act of the Assembly.’ In the case of the Agricultural Sector (Wales) Bill, the issue related to whether the legislation went outside the subject areas in which the Assembly has legislative competence.

The Assembly’s legislative competence

As will be known, unlike in Scotland and Northern Ireland where all power is devolved unless expressly reserved (or excepted) to the UK Parliament, the GWA 2006 uses a conferred powers model under which the Assembly may legislate only on those subjects enumerated in the Act. Since 2011, those subjects are set out in Schedule 7 of the GWA 2006. Section 108(4) of that Act provides that an Assembly Act will be within its competence if ‘it relates to one or more of the subjects listed under any of the headings in Part 1 of Schedule 7’ and does not fall within any of the exceptions set out under any of the headings in that Part of the Schedule. (Additional limits on competence, such as those requiring compatibility with EU law and the ‘Convention rights’, were not relevant here.) Section 108(7) of the GWA 2006 states that the meaning of the term ‘relates to’ is to be ‘determined by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances.’

The Bill under review

The Agricultural Sector (Wales) Bill was passed in order to provide for a scheme to regulate agricultural wages in Wales following the abolition of the Agricultural Wages Board for England and Wales under the (UK) Enterprise and Regulatory Reform Act 2013. Until its demise, the Agricultural Wages Board set minimum wages for workers employed in agriculture, and other terms and conditions of employment. The Welsh Government wished to retain a system for regulating agricultural wages within Wales and sought to do this in the legislation under review. In general terms, the Bill preserved a statutory regime for workers in the agriculture sector which acknowledged the distinctiveness of this sector, and sought to safeguard a succession of skilled workers, with provisions for apprentices and trainees. It preserved the level of statutory protections in the Agricultural Wages Order of 2012 which, without the provision of this Bill, would have been revoked from October 2013. That Order recognised different categories of worker based on qualifications, competence, experience and levels of responsibility: all of these grades were above the current national minimum wage. The Bill provided for the establishment of an Agricultural Advisory Panel for Wales which would carry out similar but modified functions to those undertaken by the Agricultural Wages Board.

The Attorney General questioned the competence of the Assembly to make this legislation on the basis that it dealt with employment matters and industrial relations rather than agriculture. The Counsel General submitted that the Bill related to agriculture and on that basis came within the Assembly’s legislative competence.

The Court’s ruling

In reaching its decision, a number of matters to which the Attorney General referred the Court were ruled to be irrelevant to the interpretation of Schedule 7. The Court held that a ministerial statement in Parliament regarding the purpose of the GWA 2006, as being to ‘deepen’ rather than to ‘broaden’ devolution, was too general and ambiguous to be of assistance in interpreting the GWA. It also ruled that it would be inappropriate to consider correspondence which took place prior to the introduction of the Government of Wales Bill in 2005 between the Wales Office, the Welsh Government and Parliamentary Counsel: this correspondence was said to set out the views of the two executives on the scope of the subject of ‘agriculture’ and whether it should include specific references to competence in relation to the Agricultural Wages Board. Since this was correspondence which was never referred to in Parliament or made public, the Court held that it would be inconsistent with transparency and the democratic process to take it into account. Finally, the Court held that the fact that a power had not been transferred under the first or second phases of devolution was irrelevant to the position pertaining under the third, and current, phase of devolution for Wales.

As to how the GWA 2006 should be interpreted, the Court referred to the general principles developed in the previous Welsh Byelaws case, namely that:

  1. whether the provision was outside the Assembly’s competence must be determined by the rules laid down in section 108 and Schedule 7;
  2. the GWA 2006 should be interpreted in the same way as any other statute and its description as ‘an Act of great constitutional significance’ could not be taken, in itself, as a guide to its interpretation;
  3. when enacting the GWA 2006, ‘[t]he aim was to achieve a constitutional settlement’ and it was proper to have regard to that purpose in determining the meaning of words.

The Court examined the subjects listed in Schedule 7, noting the enumeration of agriculture as an area of competence and the exceptions to that particular subject (which relate to hunting with dogs, regulation of experiments on animals, import and export controls and regulation of the movement of animals, and authorisations of veterinary medicines and medicinal products.)   Since an exception will be relevant wherever it appears in Schedule 7, the Court examined the other subject headings and the exceptions listed under each of these. The Court noted the areas listed under the heading ‘Economic development’ (which includes economic regeneration and development and promotion of business and competiveness as areas of competence) and the exceptions listed under that heading. In particular, it noted that occupational and personal pension schemes were exceptions to the Assembly’s competence: this exception related to specific aspects of employment but Schedule 7 did not include any general exception in respect of employment or remuneration of employees.

As to the meaning of ‘agriculture’, which is not defined in the GWA 2006, the Court concluded that ‘agriculture’ could not be intended to refer only to ‘the cultivation of the soil or the rearing of livestock’. Rather, it needed to be understood ‘in a broader sense as designating the industry or economic activity of agriculture in all its aspects, including the business and other constituent elements of that industry’. This view was supported by the broad definition that had been given in Schedule 5 to the ‘red meat industry’, the only area of agriculture in which the Assembly had legislative competence prior to 2011.

With agriculture thus defined, the Court had little difficulty in concluding that the Bill was ‘aptly classified’ as relating to agriculture: ‘the purpose and effect of such a regime are to operate on the economic activity of agriculture by promoting and protecting the agricultural industry in Wales.’ However, the Attorney General submitted that the Bill would have an effect on employment and industrial relations, neither of which was listed as a subject on which the Assembly had legislative competence. However, the Court observed that neither were these matters specified anywhere in the Act as exceptions to the Assembly’s competence: as noted earlier, certain aspects of employment are listed as exceptions but in the Court’s view the specifying of these particular aspects suggested that there was no intention to create a more general limitation on the Assembly’s competence.

The Court accepted the Attorney General’s submission that the Bill might be characterised as relating to employment and industrial relations. This made it necessary to consider whether a Bill relating to a listed area of competence might still be regarded as falling outside competence if it also related to an area which was not listed as devolved. The Court considered that this issue would not arise very frequently given the relatively extensive list of exceptions set out in Schedule 7: this case arose because, despite not being devolved, employment and industrial relations were not stated to be exceptions to those areas which were explicitly devolved.

The crux of the Attorney General’s argument was that, in reality, this Bill did not relate to agriculture but to employment and industrial relations and should be characterised in that way. He contended that the Court should determine the ‘real’ purpose and objective effect of the legislation. The Court refused. It accepted that, as in this case, there might be more than one way of characterising the purpose and effect of a Bill: a Bill establishing a scheme for regulating agricultural wages could ‘in principle reasonably be classified either as relating to agriculture or as relating to employment and industrial relations. Which classification is the more apt depends on the purpose for which the classification is being carried out, and on the classifactory scheme which has to be employed.’ In the Court’s view, the rules in section 108 and Schedule 7 had to be interpreted according to the ordinary meaning of the words used: doing so would achieve a ‘coherent, stable and workable outcome’. In most cases, an explicit exception to a devolved subject area would resolve a question about competence. However, when, as here, no exception to the devolved subject was stated, section 108 still provided the test: provided that a Bill ‘fairly and realistically’ satisfied the test set out in section 108(4) and (7) and did not fall within an exception, it came within the Assembly’s competence. It did not matter that it might also be capable of being classified as relating to a subject which had not been devolved, as long as the latter had not been explicitly excepted. To agree to the Attorney General’s submission would be to add exceptions to those specified in the GWA 2006 and would give rise to uncertainty and to scheme that was ‘neither stable nor workable.’ Accordingly, a Bill which undoubtedly related to a devolved subject would be within the Assembly’s competence even if it could also be characterised as a Bill relating to a non-devolved matter which was not explicitly excepted in the GWA 2006.

General comments

The ruling in this case makes a significant clarification in relation to the competence of the Assembly. The Supreme Court sets out a straightforward approach to determining whether there is competence, which is grounded in the terms of the GWA 2006: as long as a Bill ‘fairly and realistically’ relates to a subject which is listed in Schedule 7, this being determined by reference to its effect and purpose, it will be within the Assembly’s competence unless it falls within an exception listed in Schedule 7 or elsewhere in the Act.

While most cases will be determined by the express grants and exceptions in Schedule 7, there will be other cases where there is less certainty. One such case would arise if the Assembly were to enact legislation providing for a general prohibition on smacking children and young people, by removing the defence of ‘reasonable chastisement’: this was a commitment of earlier Welsh Governments but was not included in the Social Services and Well-being (Wales) Act 2014 and when the issue was raised by the Assembly’s Health and Social Care Committee during the passage of the Bill (18 April 2013), the Deputy Minister expressed concerns that if such a prohibition were included in the Bill, there would be a challenge to the legislation from the UK Government regarding the Assembly’s competence ( Under Schedule 7 is it is clear that that the Assembly has competence in relation to protecting and promoting the well-being of children and young people. Criminal law on the other hand is not listed among the devolved subjects. However, section 108(5) provides that an Act will be within the Assembly’s competence if it is to enforce a provision of legislation that is within the Assembly’s competence or is otherwise incidental or consequential on such a provision.) The Welsh Government has stated that it has no plans to legislate on this issue during the current Assembly term: if such legislation is put forward at a later stage, we can expect another reference to the Supreme Court and a further clarification of the Assembly’s competence.

There is one further reference to the Supreme Court in the pipeline, concerning the Recovery of Medical Costs for Asbestos Diseases (Wales) Bill. This Bill allows for the recovery of costs incurred by the NHS in Wales in providing care and treatment to victims of an asbestos-related disease. Interestingly, this Bill has been referred by the Welsh Government’s own law officer, the Counsel General. His statement to the Assembly made clear that he considered the Bill to be within the Assembly’s competence but, aware of the fact that the insurance industry had disputed this throughout the Bill’s passage, wished the matter to be determined by the Supreme Court before its entry into force rather than waiting for what he considered an inevitable challenge afterwards which would be more time-consuming and more expensive. Were the Bill to be found to be outside the Assembly’s competence, this ‘pre-emptive challenge’ avoids the possible need for unpicking transactions made under it. The Counsel General considered it ‘very unlikely’ that such home-grown references would be made very often, although he was reluctant to describe this approach as ‘exceptional’.

While many in Wales consider that a move to a reserved powers model would greatly improve the clarity of the devolution settlement for Wales, some disputes will arise whatever the model. Nonetheless, the particular conferred powers model in Wales with its very specific grants and exceptions, and, as in this case, issues which are not mentioned explicitly as exceptions to devolved subjects, does not help. Accordingly, the recommendation in the Silk Part 2 Report for a reserved powers model was generally welcomed in Wales. However, the current arrangements are likely to be in place for some time still – even if the UK Government were to follow the Silk recommendations, the Silk report does not envisage an Assembly operating under the new system until 2021. In the meantime, and for those disputes which concern ‘borderline’ areas under any model, the clarification provided by the Supreme Court is valuable in improving the workability of the current arrangements.

 

Ann Sherlock, Centre for Welsh Legal Affairs, Aberystwyth University

 

(Suggested citation: Ann Sherlock, ‘Supreme Court ruling on Welsh legislation’ U. K. Const. L. Blog (30th July 2014) (available at: http://ukconstitutionallaw.org/)

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Derek O’Brien – Comment On The Caribbean: Commonwealth Caribbean Elections.

derek-obrien-33When comparing the relative political stability of Britain’s former colonies in the Commonwealth Caribbean with the lack thereof in former British colonies in Africa and Asia and the former colonies of other major powers reference is sometimes made to Huffington’s ‘two-turnover test’(S Huntington, The Third Wave: Democratization in the Late Twentieth Century (Norman, University of Oklahoma `Press, 1991). That is to say, since independence successive governments across the region have respected the outcomes of elections and have peacefully surrendered power to their successors. Notwithstanding their often ‘rambunctious’ nature, Commonwealth Caribbean elections are thus often held up as a vital sign of the region’s commitment to democracy along Westminster lines (JI Dominguez, ‘The Caribbean Question: Why has Liberal Democracy (Surprisingly) Flourished?’ in JI Dominguez et al (eds), Democracy in the Caribbean (Baltimore, John Hopkins University Press, 1993).

However, this picture of 50 odd years of post-independence political stability, punctuated by carnival-like general elections once every four or five years, does not bear too close scrutiny. The reality is that in the post-independence era Commonwealth Caribbean elections have, sometimes, been violent affairs. In Jamaica, for example, there were 800 murders attributed to political violence at the time of 1980 general elections. In Guyana, in 1997 a dispute about the election results led to a sustained period of post-election violence and rioting. In some countries in the region elections have also been decidedly fraudulent affairs. This is especially true of Guyana during the era of Forbes Burnham, which witnessed a number of ‘rigged’ elections following independence in 1966 (D.O’Brien, Constitutional Law Systems of the Commonwealth Caribbean (Oxford, Hart Publishing, 2014). As the international team of observers led by Lord Avebury noted in its report on the 1980 election:

We came to Guyana aware of the serious doubts expressed about the conduct of previous elections there, but determined to judge these elections on their own merit and hoping that we should be able to say that the result was fair. We deeply regret that, on the contrary, we were obliged to conclude, on the basis of abundant and clear evidence, that the election was rigged massively and flagrantly (Report of the International Team of Observers at the Election of Guyana, Something to Remember (London, Latin American Bureau, 1980).

 Elections in Antigua and Barbuda under the Bird dynasty, during the 1980s and 1990s, were no better. It was widely suspected that the governing party Antigua Labour party (ALP), led by Lester Bird, had used its influence over the Supervisor of Elections to manipulate the electoral process. Evidence of this can be found in the several reports of independent observers of elections during this period, which document some very serious incidents of malpractice. These include: double-voting; the removal of the names of eligible voters from the electoral register; and the inflation of the register by 25 per cent as a result of the inclusion of the names of people who had died or migrated. Most serious of all was the violation of the confidentiality of the voting booth; with electoral officers noting each voter’s registration number on the counterfoil of the ballot paper. This would have had serious ramifications for anyone on the government payroll or otherwise obligated to the ALP (DW Payne, ‘The Failings of Governance in Antigua and Barbuda: The Elections of 1999’ (1999) Policy Papers on the Americas, Vol X, Study 4). Eventually, however, following the recommendation of an independent Commonwealth Observer Group on the conduct of the 1999 elections, the Government was persuaded to establish an Electoral Commission which, along with the Supervisor of Elections, would, henceforth, have responsibility for the conduct of elections.

Notwithstanding the establishment of this Electoral Commission, however, the conduct of elections in Antigua remains a highly contested affair. This is most clearly demonstrated by two recent cases on appeal to the Eastern Caribbean Supreme Court (ECSC), a regional court of appeal for the independent eastern Caribbean islands of Antigua and Barbuda, the Bahamas, Dominica, Grenada, St Kitts and Nevis, St Lucia and St Vincent as well as well as the British Overseas Territories of Anguilla, Montserrat and the British Virgin Islands. In both cases the appellant was Gaston Browne, the leader of the Opposition ALP.

The first case, Browne v AG Antigua and Barbuda, concerned a challenge to the constitutionality of section 5 of the Representation of the People (Amendment) Act 2010 ROP(A)A, which had amended s.16 of the Representation of People Act 1992 by extending the residency qualification for Commonwealth citizens who wished to register to vote, from three to seven years. Section 6 of ROP(A)A had also amended the period within which all persons who were qualified to vote were required to apply for registration as an elector. There were three main strands to the appellant’s challenge.

The first was that the procedure for amending the specially entrenched provisions of the Constitution had not been followed. In the appellant’s submission, by restricting the right of Commonwealth citizens to vote to those who had been resident for seven years ROP(A)A had altered the provisions on voting contained in s.40(3) of the Constitution. In particular, the right of Commonwealth citizens to vote was now being restricted to those who qualified to be citizens of Antigua and Barbuda by virtue of having been resident for seven years. Since s.40 was an entrenched provision it could only be altered, it was argued, by means of a two-thirds majority vote of all the members of the House of Representatives followed by similar two-thirds majority in a referendum. In the Court’s view, however, the right of Commonwealth citizens to vote was dependent on registration in accordance with s.40[2) of the Constitution, which provides that from time to time parliament may by ordinary legislation pass laws prescribing the qualifications relating to residence and domicile for Commonwealth citizens to be eligible to vote. ROP(A)A did not, therefore, involve an amendment to the Constitution per se: it merely changed the eligibility of Commonwealth citizens to register as a voter and the Constitution contemplated that such a change could be effected by ordinary legislation.

The second strand of the appellant’s argument concerned the fundamental nature of the right to vote, which according to the appellant meant that any interference with the right had to satisfy the proportionality test outlined by the Judicial Committee of the Privy Council in deFreitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing. In the court’s view, however, the right to vote was a constituional right and not a fundamental right since it was not included in the list of fundamental rights to be found in Chapter II – an interesting distinction in the light of the current debate about prisoners’ right to vote under the European Convention of Human Rights. The changing of the period of residence for Commonwealth citizens to be registered as electors did not, therefore, attract or engage the requirement of proportionality.

The third strand was concerned with the retrospective effect of the legislation upon two groups of voters. The first group comprised existing Commonwealth citizens who would, henceforth, not be able to vote if they did not satisfy the new residency test. According to the appellant, these Commonwealth citizens, who would have been entitled to vote under the former legislation, would now be required to re-register on pain of de-registration under a new regime of proof and with a more onerous residence qualification. The Court did not, however, accept that this meant the legislation had retrospective effect. Statutory provisions which affect existing rights prospectively, such as the provisions of ROP(A)A were not, in the Court’s view, retroactive . In so far as there was an interference with an existing right – in respect of registration and voting – it was sanctioned by the Constitution. The second group of voters comprised all of those who were required to re-register to vote as a result of ROP(A)A. According to the appellant, their registration as voters under s.19 of the Representation of the People Act 2001 was continuous and since s.19 had not been amended by ROP(A) A the actions of the Electoral Commission in requiring these voters to re-register was ultra vires. In the Court’s view, however, the right to be registered to vote under s.40 of the Constitution did not confer on a person an entitlement to be registered for the purposes of voting ad infinitum or in perpetuity.   Registration to vote was always subject to s.40(3) of the Constitution which empowered parliament to prescribe the qualifications relating to residence or domicile as from time to time. Furthermore, the re-registration process was necessary to ensure that all persons registered to vote were so entitled based on the new residency criteria.

The second and related appeal heard by the ECSC was Browne v Constituencies Boundaries Commission. This case concerned the implementation of certain constituency boundary changes following a report by the Constituencies Boundaries Commission (CBC) published in June 2010. The appellant challenged the boundary changes proposed by the CBC on two main grounds. Firstly, that they amounted to gerrymandering and that the CBC was infected by bias. Secondly, that the period allowed by the CBC for consultation was inadequate, having regard to the Constituencies Boundaries Commission Guidance Act 2012 (the Guidance Act). The appeal was allowed, but solely on the ground that the consultation by the CBC had been inadequate.

Dismissing the first ground of appeal, the Court held that in order to succeed with an allegation of gerrymandering the appellant would have had to show two things: firstly, that the CBC altered the boundaries and that the alterations had the effect of diluting or weakening the ALP’s support in those altered constituencies; and, secondly, that the CBC so altered the boundaries precisely with view to achieving that effect. The appellants had failed to show either.

So far as the charge of bias was concerned the Court noted that the composition of the CBC was governed by s.63 of the Constitution. This provision, which is similar to provisions to be found in several other Caribbean Constitutions, requires the CBC to comprise a Chairman appointed in accordance with the advice of the Prime Minister after the latter has consulted with the Leader of the Opposition, two other members appointed in accordance with advice of the Prime Minister, and one member appointed with the advice of the Leader of the Opposition. This meant that the CBC was essentially composed of party supporters, affiliates and activists, thereby infecting and undermining the impartiality of and public confidence in the CBC. As Singh JA had observed with regard to the composition of the CBC in Dominica in Constituency Boundaries Commission and Another v Baron:

It is my considered opinion that such a commission will always lean more towards political loyalty than constitutional integrity. What would assist in order to avoid the appearance of this mischief of bias is that if, when members are to be recommended to the President [the Governor-General] the respective politicians give names of those who are less politically conspicuous. Life would be so much simpler.

However, in the Court’s view, so long as the composition of the CBC was in accordance with the provisions of the Constitution there would be a ‘presumption of impartiality’. The presumption could only be rebutted by leading cogent evidence. This the appellant had failed to do.

The Court did, nevertheless accept that the CBC’s failure to allow sufficient time for the appellant to respond to its preliminary proposals for boundary changes, coupled with the CBC’s failure to provide the appellant with printed maps depicting the proposed changes, meant that the CBC had failed in its statutory duty to consult pursuant to s.3(2) of the Guidance Act. What this means in practice remains to be seen, but the judgment came too late to implement the boundary changes recommended by the CBC in time for the 2014 elections.

Both of these judgments touch upon a multiplicity of legal issues – the constitutional status of the right to vote, the relationship between the constitutional right to vote and amendments to the registration process, the composition of election management bodies, such as the CBC, and the duty of such bodies to consult – which will be of interest to those concerned with the conduct of elections and electoral reform generally. Arguably, however, their chief interest lies in what the judgments reveal about the intensity of Commonwealth Caribbean politics and the willingness of local politicians to use every weapon at their disposal, including litigation, in pursuit of an electoral advantage. Here, the Leader of the Opposition, Gaston Browne, was convinced that the changes to the residence qualification for Commonwealth citizens and the proposed boundary changes would favour the governing United Progressive Party. What he could not have known at the time that he embarked on this litigation was that, notwithstanding the changes to the residence qualification for Commonwealth citizens, his party would go on to a resounding victory in the 2014 elections, winning 14 out of the 17 seats available.

Though there may be many cultural and social factors that contribute to the intensity of elections in the region a key factor is, undoubtedly, size. Commonwealth Caribbean countries are some of the smallest in the world: Antigua and Barbuda, for example, has 47,000-plus voters, divided into 17 constituencies, making the average number of voters in a constituency just over 2,500. When you combine the winner takes all nature of the ‘first past the post’ system, which is the system of choice for all the countries in the region (with the exception of Guyana which has adopted the party list system), with such small constituency sizes it is inevitable that politicians will wish to fight over every vote. Thankfully, however, on this occasion, at least, the fight was played out in the courts.

 

Derek O’Brien is Reader in Law, Law School, Oxford Brookes University, and Caribbean Correspondent for the UKCLA Blog .

Suggested citation: D. O’Brien, ‘Commonwealth Caribbean Elections’ U.K. Const. L. Blog (29th July 2014) (available at http://ukconstitutionallaw.org).

 

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J. R. Nethercote: Forgotten centenary: Joseph Cook and the 1914 Double Dissolution of the Australian Parliament

JN1The assassination and obsequies of Archduke Franz Ferdinand and his Duchess did not occupy the front pages of newspapers for long. Various European capitals were preoccupied by the crisis, with varying degrees of intensity, but behind closed doors.

Australia quickly returned to its own political crisis, a parliamentary crisis pitting the Labor-dominated Senate against the House of Representatives where the first Liberal Government held office with a slender majority. It came to head almost at the same time as Princip fired the fatal shots at Sarajevo.

Australia’s federal democracy, little more than a decade old, had many innovatory features. Foremost among these was a bicameral parliament in which both Houses, with comparable if not quite identical powers, were elected on the same democratic franchise.

A conflict between the Houses could not, in a rhetorical sense, be fought in terms of the People versus the Peers as was Britain’s parliamentary crisis of 1909-11; and it was not beyond resolution as was the case in Canada, where Robert Borden’s Conservative Government was repeatedly frustrated by the Liberal-dominated Senate.

The Australian Constitution itself provided a means of addressing the conflict, if not necessarily of resolving it.

According to section 57, if the Senate twice rejected, amended unacceptably or failed to pass a bill, with an interval of three months between the first and second parliamentary deliberations, the Governor-General could dissolve both the Senate and the House and call fresh elections for each.

If the legislation still fell foul of the Senate, a joint sitting of the two houses could be convened to vote on it. (This has only occurred once, in 1974.)

Section 57 in its refined form was a consequence of George Reid’s famous ‘Yes-No’ speech during the referendum campaigns leading to adoption of the Constitution.

Inter-house disputes in the early parliaments were handled by negotiation. The 1910 election, however, provided Labor, led by Andrew Fisher, with majorities in both Houses.

But, in the 1913 election, Labor lost its majority. The Liberal Party led by Joseph Cook took office with 38 seats in a 75-seat chamber. It survived with the vote of the Speaker.

Labor was down but by no means out. It won 11 of the 18 Senate seats contested in the election. Together with 18 sitting senators, it had a commanding majority, 29 to 7.

Cook knew his hold on government was tenuous. He immediately sought to remedy the situation utilising the distinctive, indeed unique, avenue offered by section 57.

He presented two short bills which he knew Labor would reject. The first proposed a ban on union preference; the second provided for postal voting at elections. In Dr Evatt’s words, ‘a disagreement was specially manufactured.’

Labor rejected the first without hesitation; it proposed amendments to the postal voting proposal which the Liberal Government found unacceptable.

Labor, moreover, used its Senate numbers to revive proposed amendments to the Constitution seeking extension of Commonwealth powers in a range of industrial and business matters, including monopolies and trusts. The Government refused to put them to the people because they had already twice failed at referendum.

As the crisis approached its climax a new Governor-General arrived, Sir Ronald Munro-Ferguson, a Scotsman.

He was a veteran on the Liberal side in the recent battles in Britain between the Commons and the Lords. This was something of a disadvantage – it took some weeks before he understood that the matter could not be settled according to Westminster practice.

This is the central significance of the 1914 double dissolution, the centenary of which, even if otherwise unnoticed, falls at this time. The framework for settling the dispute was to be found, not in the doctrine and practice of Westminster, but in the Constitution of Australia.

Unlike its counterpart in Canada, it did not contain any affirmation that an explicit intention was to have ‘a Constitution similar in Principles to that of the United Kingdom.’

In an early conversation with Munro-Ferguson, Cook expressly objected to what he described as ‘home precedents.’

Munro-Ferguson’s first (Westminster) instinct was to suggest a fresh election for the House. But such a course would advantage the Opposition, whose Senate strength would not be tested. He soon recognised that a double dissolution was the only course available.

A host of ancillary matters arose. The first concerned the bills upon which the double dissolution was to be based (in the event, only the union preference bill was activated for the double dissolution).

Labor contended that to have a double dissolution the legislation had to be ‘a measure embodying a principle of vital importance necessary in the public interest’; in this, the Chief Justice, Sir Samuel Griffith, sympathised – it was an ‘extraordinary’, not an ‘ordinary,’ power.

It has since been accepted, by authorities as diverse as Dr Evatt and Sir Paul Hasluck, that what counts is conformity with the requirements of section 57, not the significance of the legislation; the latter is a political judgment.

Another consideration was who could the Governor-General consult in reaching his decision, partly in the context of contending (in the face of Cook’s disagreement) that he could exercise a discretion in deciding whether to grant a double dissolution.

In anticipation of the Balfour Report (1926) and the Statute of Westminster (1931), Cook insisted that the Governor-General should take advice only from his ministers (not a view with which Labor, in the circumstances, agreed). Cook acquiesced in consultation with the Chief Justice, who provided advice, but not with the Leader of the Opposition.

(Before leaving London he had had conversation with the constitutional guru of the empire, Arthur Berriedale Keith, as well as the Australian High Commissioner in London, none other than Sir George Reid, who knew something about section 57.)

The Opposition wanted to see the exchange of correspondence between the Prime Minister and the Governor-General. Cook refused and Munro-Ferguson concurred, observing that ‘at home undoubtedly such documents would not be published.’ A statement in the House by the Prime Minister was considered sufficient.

Fisher pressed the matter after winning the election and the papers were almost immediately tabled, as is now usually the case.

The Governor-General granted Cook a double dissolution on 4 June 1914. The Parliament was prorogued on 27 June 1914; and the double dissolution effected on 30 July, just as the European powers were exchanging ultimatums about war.

Cook had underlined that were his advice not accepted, the Government would resign. Fisher, if he agreed to form a government, would not be able to meet the House without suffering immediate defeat.

Munro-Ferguson would then be in the invidious position of having to give his [Cook’s] opponents what [Cook] had been refused.

Just such a course of events was witnessed little more than a decade later in the so-called King-Byng affair in Canada.

Joseph Cook does not stand high among Australia’s political leaders. He had been a very loyal deputy to an often absent Reid for nearly a decade; he surrendered the leadership to Deakin upon formation of the Fusion, forerunner of the first Liberal Party; he surrendered it again in 1917 when the Liberal Party and Hughes Labor combined to form the Nationalist Party.

According to Munro-Ferguson, ‘Mr Cook has plenty of adroitness and courage, and though high-strung so as sometime to “see red,” he has self-control.’

But this centenary reminds the nation of its debt to Cook. In his insistence that our governance is a matter of our own Constitution, not a deference to Westminster, he was a powerful and original spokesman for self-government and for responsible government in Australia.

Cook and Fisher started their campaigns just as hostilities commenced in Europe.

They fulsomely declared their loyalties to the Crown and the Empire. Fisher memorably revived the commitment of the Boer war years to fight to the last man and the last shilling.

He carried the day (5 September): in the House, with nearly 51 percent of the vote, he returned with 42 seats, a majority of nine over all others; and in the Senate, a resounding win, 31 seats to five on the basis of 52.15 per cent share of the vote.

Within little more than two years, Labor would split on the conscription issue; fifteen years would elapse before Labor again won a Federal election.

 R. Nethercote is Adjunct Professor, Canberra Campus, Australian Catholic University

A shorter version of this post originally appeared in the Canberra Times.

(Suggested citation: J. R. Nethercote, ‘Forgotten centenary: Joseph Cook and the 1914 Double Dissolution of the Australian Parliament’ U. K. Const. L. Blog (28th July 2014)  (available at: http://ukconstitutionallaw.org/)

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David Harris, Michael O’Boyle, Ed Bates and Carla Buckley: UK withdrawal from the Convention? A broader view.

ECHRIn the following blog the authors of the third edition of a leading text on the Law of the ECHR (Harris, O’Boyle and Warbrick, The Law of the European Convention on Human Rights, David Harris, Michael O’Boyle, Ed Bates and Carla Buckley, OUP, 2014) look back to the circumstances surrounding the publication of the first edition, in 1995, as a basis for reflection for today, with talk of the UK’s withdrawal from the Convention in the air. A significant part of what follows draws on the Preface to the third edition of the authors’ book, the intention being to bring the comments made there to a broader audience than the book itself would have reached. The post that follows is written in the authors’ personal capacity.

Back in 1995 the Preface to the first edition of Harris, O’Boyle and Warbrick noted that the growth of support for a bill of rights in the UK created the possibility that the provisions of the Convention could be directly applicable in UK courts. It was also noted that ‘if this were to come about, the law of the Convention would be thrust to the fore of university legal curricula and would achieve an immediacy and relevance that would dynamise, if not revolutionize, the United Kingdom’s constitutional system’.

The Human Rights Act, and dialogue between Strasbourg and national judges

All of this has come true since the entry into force of the Human Rights Act 1998, the judicial interpretation of which has given rise to a home grown corpus of human rights law developed first by the House of Lords and, subsequently, the Supreme Court. Both of these courts have based themselves on the case law of the European Court of Human Rights and have not been fearful of pointing to inconsistencies and lack of clarity in Strasbourg law when this was called for. Strasbourg, for its part, has welcomed this new form of ‘dialogue’ inter alia with the Supreme Court and looks with admiration at the manner in which Convention principles have been applied and interpreted in an impressive body of national case law.

The relationship has run into episodic difficulties in cases like Al-Khawaja and Tahery v UK and Taxquet v Belgium (where the UK was an intervener), when, with the opportunity to reconsider the chamber judgment, the Court’s Grand Chamber listened carefully to the arguments of the UK, and adjusted its case law to take into account the specificities of the UK legal system, as pointed out by the Supreme Court, and in keeping with the principle of subsidiarity. As has been noted by many commentators, there has developed over the years a healthy cross fertilisation between the two courts and their respective judgments are eagerly and expertly parsed and dissected by each other. The same can be said for the Court’s relationship with the superior courts of other countries—Germany and France being prime examples.

The importance of this form of judicial dialogue for the orderly development of the law cannot be overstated. But it has also given rise to a realization that while the Strasbourg Court may not be able, as a judicial institution, to defend itself against the buffetings and criticisms it regularly receives from political figures, as in the UK, it can intensify its relationships with the national superior courts through the medium of ‘dialogue’ as a more appropriate and more adapted response to such criticisms. For it must not be forgotten that the essence of the notion of subsidiarity resides in the daily application by the national courts of Convention law.

More possibilities for dialogue with Strasbourg in the ‘age of subsidiarity’?

Opportunities for dialogue will be enhanced when Protocol 16 enters into force, for those States which opt to ratify it. This provides for the possibility of a national superior court to request an advisory opinion from the Court on issues relating to the interpretation of the Convention. It has been dubbed the ‘Dialogue Protocol’ because it offers the prospect of another form of adjudication in Strasbourg, distinct from individual and inter-state complaints, involving the superior courts as willing partners in the elucidation and development of the case law rather than as the potentially irritated subjects of violation verdicts.

In the meantime, and (arguably) against the background of the reform process initiated at Interlaken, including the valuable contribution made by the UK in the context of the Brighton Declaration, there are very strong signs that the Court has met the States’ request to ‘give great prominence’ to ‘principles such as subsidiarity and the margin of appreciation’. In that connection reference may be made to a recent lecture entitled Universality or Diversity of Human Rights? Strasbourg in the Age of Subsidiarity, in which the Icelandic judge in Strasbourg, Robert Spano, responded to criticism levelled at the Court by some former members of the senior judiciary in the UK to the effect that it too easily overrides the views of national decision-makers. Adopting a careful analysis of recent case law, he argues convincingly that Strasbourg has been refining its approach to subsidiarity and the margin of appreciation, ‘adopting a qualitative, democracy-enhancing approach in the assessment of domestic decision-making in the field of human rights’. Judge Spano has suggested that the next phase in the Convention’s life might come to be known as the ‘age of subsidiarity’.

The principle of subsidiarity has always been a fundamental one in the Strasbourg jurisprudence. However, the prospect that the Strasbourg system is indeed embarking on an ‘age of subsidiarity’ should be a vital consideration informing the debate with respect to its role and relationship with the UK. This point is of major significance if the time comes when the future of the Human Rights Act is reconsidered – for the Act facilitates subsidiarity as well as a Strasbourg-UK judicial dialogue – and is thus at the heart of the issue of the UK’s membership of the Convention itself.

‘Rights Brought Home’ and the Convention under attack in the UK

In 1995 the Preface to the first edition of Harris, O’Boyle and Warbrick observed that many of the issues examined in Strasbourg touch on highly sensitive subjects such as prisons, immigration and the administration of justice, and that political figures and media commentators in the UK frequently complain, in ‘strident tones of indignation, of interference in the domestic affairs of the state by uninformed and ill-qualified foreign jurists’. So it has not only been since the passage of the Human Rights Act that the influence of and jurisdiction of the Strasbourg Court has become contentious in the UK.

The politics of the day in the mid- to late-1990s were different, however, as is evident from the Labour Government’s White Paper, Rights Brought Home: The Human Rights Bill. Looking back today it is interesting to note that reference was made to the scheme of supervision provided by the Strasbourg Court as one that was ‘now well tried and tested’ it being established that Convention ‘rights and freedoms’ were ‘ones with which the people of this country [were] plainly comfortable’. Those rights therefore ‘afford[ed] an excellent basis for the Human Rights Bill’ (para 1.3).

Given the concerns recently expressed in the UK with respect to the Convention as a ‘living instrument’ the speech delivered by Jack Straw (‘Human Rights and Personal Responsibility – New Citizenship for a New Millennium’, St Paul’s Cathedral, London (2 October 2000)) then Home Secretary, on the day that the Human Rights Act 1998 entered into force, may be looked upon with some interest. He acknowledged that the Convention was not a ‘monument to history’ but that its ‘living instrument’ character was an answer to those ‘who assert that the convention has been developed in a way not anticipated by its draftsmen’. Straw stated that he had no ‘problem with the living instrument explanation’, but saw matters in ‘a slightly different way’. The ECHR he said, was ‘relevant to the UK today – and tomorrow – because the basic values at its heart are timeless’. They were ‘about the equal worth of all, and the belief in our responsibility to create a society that advances such equal worth and dignity’.

These comments could be made with respect to the judgments against the UK in cases such as Hirst (No.2) (prisoners’ votes), Vinter (whole life sentences) and Othman (Abu Qatada ) (deportation to Jordan). Yet, on the basis of such rulings, the level of criticism in the UK against Strasbourg has developed to an intensity that could hardly have been predicted back in the 1990s. As has been widely reported the point has been reached whereby certain Government ministers have suggested that not only should the HRA be repealed, but even that UK withdrawal from the Convention system should be considered, some going so far as to challenge the Court’s legitimacy as an institution.

UK withdrawal from the ECHR?

Against this background we refer back to 1995, when the Preface to the first edition of our text had asked the rhetorical question whether the Strasbourg system had developed to the point where no European state could seriously contemplate withdrawing from the Convention. What should one make of this today?

It is a measure of the continued success of the Convention system that the question remains a valid one in 2014 for the large majority of the treaty’s 47 High Contracting Parties, indeed, possibly all other States except the UK. For it is our contention that the intensity of the UK debate about the sovereignty of Parliament and the legitimacy of the Court is not replicated in other countries. Of course, there are episodes of criticism elsewhere but, as far as the authors are aware, it would appear that the UK is somewhat isolated in terms of the depth of its apparent opposition to Strasbourg. A detailed study published just last month (J Gerards and J Fleuren ‘Implementation of the European Convention on Human Rights and of the judgments of the ECtHR in national case law’) looked to the reception of the ECHR in Belgium, France, Germany, the Netherlands, Sweden and the UK. It concluded that ‘[in] Belgium, France, Germany and Sweden, the overall legitimacy of the Court and its judgments is hardly subject to debate’ [at 369], even if the Court comes in for occasional criticism in respect of specific, individual judgments. A debate about the Court and its influence with respect to the Netherlands did gain some, initial momentum in 2011-2012, although ‘the critical wind subsided’ [at 256].

Would it be an exaggeration to say, then, that the depth and intensity of the debate about the Court in the UK, and which regularly gives rise to talk of denunciation, is a peculiarly British one? If so, one might ask, ‘why’?

It may also be asked whether opposition to Strasbourg in ‘the UK’ is genuinely replicated in large parts of the nation. That this is at least open to question is suggested by the comments made by two members of the Commission on a Bill of Rights (Baroness Kennedy QC and Professor Philippe Sand QC) who argued that it was ‘abundantly clear that there is no [lack of] “ownership” issue [as regards the HRA] in Northern Ireland, Wales and Scotland (or large parts of England), where the existing arrangements under the [HRA] and the European Convention on Human Rights are not merely tolerated but strongly supported’ (para 88.v).

Reform of the Court

Of course, it is not claimed that the Court is a perfect institution. Nor is it maintained that the Convention’s member States embrace everything Strasbourg does with spontaneous love and affection. Yet it was precisely to preserve the Strasbourg system and its effectiveness for future generations that there has been a determination on the part of the Contracting Parties collectively to reform the system, and to overcome the challenges resulting from the overloading of the Court that were starting to become apparent as far back as the 1990s.

The reform conferences held in Interlaken, Izmir and Brighton revealed a strong political will to put the European system on a more solid footing and to give it the tools to deal more effectively with its worrying backlog of cases without seeking, at the same time, to clip the Court’s wings or to weaken the level of protection it provides. Overall there is a clear political attachment to the ECHR amongst Council of Europe States and an endorsement of the Court’s contribution to the development of human rights law and democratic standards. The reform agenda has placed the focus on the issues inter alia of delay in the examination of applications, the margin of appreciation and the notion of subsidiarity (as discussed above), interim measures, the election of judges and the vexed problem of the enforcement of the Court’s judgments (where serious compliance problems have arisen since the first edition of the book).

From the perspective of workload and the backlog of cases, Protocol 14 has now entered into force. The reforms that it introduces, together with internal reforms such as the provisions for pilot judgments and the prioritisation of important cases, have started to ease the Court’s workload. At the end of June 2014 the number of pending cases stood at 84,850 —a considerable reduction from a figure in excess of 160,000 of some two years before.

In this regard a new mood of optimism may be emerging at Strasbourg, and one aspect of the reform debate may be coming to the fore. Noting that the recent phase of reform was commenced at Interlaken under the notion of a ‘shared responsibility’ for the Convention between Strasbourg and the member States, the President of the Court has recently stated that it is living ‘up to its responsibility to achieve greater efficiency, improve its performance, to allocate its resources more effectively and to concentrate increasingly upon priority cases, without abandoning any other cases’. For the reform process to succeed he has called for ‘improvements at Strasbourg’ to be ‘reflected by improvements at the national level, through better observance of the Convention and the existence of effective domestic remedies in case of breach’. As he puts it, ‘[e]ach State must live up to its responsibility’ and ‘the Committee of Ministers must act more effectively in supervising the execution of judgments – the joint and several responsibility of States under the Convention, as it were’.

The responsibility weighing on the UK today

In this last regard the weight of responsibility bearing on the UK during what remains a difficult time in the Convention’s life must be brought into real focus. What is at stake for the Convention system and Europe overall as a result of the hostility directed toward Strasbourg by the action of a State held in such high regard as the UK cannot be underestimated. ‘Europe overall’ – for one only has to visit the Court’s web site to appreciate the broader importance of the Court given the nature of some of the disputes it has been grappling with recently – an inter-state case brought by Georgia against Russia concerning a collective expulsion of Georgian nationals, the resolution of a long-standing dispute between a variety of Balkan states concerning foreign currency savings in the banks of the former Republic of Yugoslavia, the detention of accused persons in cages during their trial, the hospital treatment of an orphan Aids victim etc.

It is difficult to imagine that one of the leading founders of the system could turn its back on the Convention without inflicting serious damage on the entire edifice by inspiring other States, beset by more fundamental problems of human rights, to follow suit. Some of those States may be from central and eastern Europe, who were encouraged to join the Convention in the 1990s at a critical time in their history, viewing full membership of the Strasbourg system as a necessary component of the legitimacy credentials associated with a democratic, European State. The Secretary General of the Council of Europe has argued before the Parliamentary Joint Committee examining the prisoner voting issue (para 109) that the UK’s withdrawal from the Convention would imperil not just the Convention but the 47 member State Council of Europe as a whole.

Similar comments apply to the potential confrontation that lies ahead with respect to the prisoner voting issue. Former President Sir Nicolas Bratza has underlined how the position adopted by the UK is likely to have consequences for those member States whose human rights records need significant improvement. In a recent lecture he explained that he was ‘convinced… not only of the fragile nature of the hold on democracy and the rule of law which there exists’ in some of the newer member States, ‘but [also] of the vital importance of the wholehearted support for the Convention system in preserving those ideals’. The UK’s failure to implement the judgment in Hirst has had, he explains, a ‘corrosive effect in Russia and Ukraine’, demonstrating that ‘compliance with the Convention obligations by the established democracies does matter’. Fearing further ‘erosion of the hard-won Convention standards in many parts of the Continent’, Bratza maintains that ‘the damage done by the withdrawal of support for the system by one of its key players would be simply incalculable’. He concludes:

‘That system may indeed be imperfect. But it is the only one that we have. What is needed is not to turn one’s back on that system but to work within it, to make it more effective and, in doing so, ensure that, 60 years after it came into effect, the Convention becomes not a dead letter but the vital and living instrument it was always supposed to be’. [N Bratza, “Living Instrument or Dead Letter – the Future of the European Convention on Human Rights”, (2014) EHRLR 116 at 128 – based on the text of the Miriam Rothschild and John Foster Human Rights Lecture (9 November 2013)

We conclude with the following observations. While the issue of UK membership has come to the fore in UK politics in recent years in ways which could hardly have been foreseen in 1995, it cannot be predicted with any certainty what the outcome will be, either in the short or long term. But we respectfully submit that the particular constitutional difficulties encountered by the UK in recent years are straight-forwardly outweighed by the advantages of being a party to the Convention, and the important role played by the ECHR in developing human rights standards throughout Europe and beyond as part of a collective guarantee of human rights—a role that is intimately bound up with peace and security in the region as recognized in the Convention’s Preamble. That point applied back in the late 1990s when the British contribution to the Convention was a cause for celebration under the banner ‘rights brought home’. But it applies today, and with even greater force, given the reform phase that the Convention system is going through, and the strong evidence that it is indeed proving to be effective, including with respect to some of the criticism that has been levelled against the Court in the UK as regards the principle of subsidiarity and Strasbourg’s relationship with national decision-makers. To put in jeopardy what has been patiently built up over more than 60 years would be a disservice to Europe, the rule of law and to the peaceful settlement of disputes.

D Harris, M O’Boyle, E Bates and C Buckley.

 

 

(Suggested citation: D. Harris, M. O’Boyle, E. Bates and C. Buckley, ‘UK withdrawal from the Convention? A broader view.’ U. K. Const. L. Blog (24th July 2014)  (available at: http://ukconstitutionallaw.org/)

 

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