Author Archives: Constitutional Law Group

by Constitutional Law Group | April 25, 2013 · 3:30 pm

Jeff King: Deference, Dialogue and Animal Defenders International

In Animal Defenders International, the European Court of Human Rights upheld the British ban on political advertising in the broadcast media (s.321 Communications Act 2003), consistently with the judgments of the UK House of Lords and High Court, but in an apparent departure from its previous caselaw in the VgT (Verein gegen Tierfabrik v. Switzerland, no. 24699/94 ECHR 2001‑VI) case. The key issue in the case was whether a blanket ban (or ‘general measure’) was a proportionate restriction of the freedom of expression, or whether some class of exception (a ‘case-by-case’ approach) for groups such as the NGO in this case ought to be recognized. I am in complete agreement with Jacob Rowbottom ’s view on the correctness of the Court’s judgment and the desirability of a general ban. In brief, the problem with making case-by-case or category-based exceptions for advocacy groups is that there is a risk of profusion of ‘non-profit’ groups that are in fact created and backed by well-monied interests, the unveiling of which becomes an impossible regulatory task in the shadow of constant litigation. The focus of the present comment is on three further matters raised by the case that are of importance for British constitutionalism: the role of judicial restraint; the merit of rigorous human rights-based parliamentary scrutiny of legislative proposals; and the value of UK-Strasbourg dialogue.

Many academics have stepped into what is often called ‘the deference-debate.’ [*] One group, in which we find Murray Hunt, Aileen Kavanagh, Alison Young, myself, and I think to a more subtle extent Alan Brady, believe that there is a role for both the practice of judicial restraint, and also for a specific doctrine of judicial restraint, though none of us is generally skeptical of the judicial protection of human rights. On the other hand, we find Trevor Allan arguing a cogent case that a doctrine (e.g. a set of overtly recognized principles) of judicial restraint would be pernicious, that it will lead to excessive deference, and that any proper role for judicial restraint is already comprehended within the legal standards themselves – in legal concepts such as proportionality, Wednesbury reasonableness, fairness and so on. For the unanimous judgment of the House of Lords in Huang v SSHD [2007] UKHL 11, Lord Bingham made the following finding, after summarizing a range of immigration-specific factors for consideration:

The giving of weight to factors such as these is not, in our opinion, aptly described as deference: it is performance of the ordinary judicial task of weighing up the competing considerations on each side and according appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice. That is how any rational judicial decision-maker is likely to proceed.

Who needs a doctrine, in other words? This largely agrees with the views of both Trevor Allan and Tom Hickman. The problem though is that this view depends entirely on the judge having Lord Bingham’s intuitions about ‘appropriate weight,’ which are not as widely shared as we all would wish. In Animal Defenders International, the Court split 9/8 and Rowbottom, the country’s leading legal expert on the matter, was himself convinced that Strasbourg would decide against the ban. The safe bet was on losing.

The substance of the majority’s decision gave enormous weight to the comprehensive examination of the issue within the legislative process (and in court thereafter):

114. […] The Government, through the DCMS [the Department], played an important part in that debate explaining frequently and in detail their reasons for retaining the prohibition and for considering it to be proportionate and going so far as to disclose their legal advice on the subject (paragraphs 50-53 above). The 2003 Act containing the prohibition was then enacted with cross-party support and without any dissenting vote. The prohibition was therefore the culmination of an exceptional examination by parliamentary bodies of the cultural, political and legal aspects of the prohibition as part of the broader regulatory system governing broadcasted public interest expression in the United Kingdom and all bodies found the prohibition to have been a necessary interference with Article 10 rights.

115. It was this particular competence of Parliament and the extensive pre-legislative consultation on the Convention compatibility of the prohibition which explained the degree of deference shown by the domestic courts to Parliament’s decision to adopt the prohibition (in particular, paragraphs 15 and 24 above). The proportionality of the prohibition was, nonetheless, debated in some detail before the High Court and the House of Lords. Both courts analysed the relevant Convention case-law and principles, addressed the relevance of the above-cited VgT judgment and carefully applied that jurisprudence to the prohibition. Each judge at both levels endorsed the objective of the prohibition as well as the rationale of the legislative choices which defined its particular scope and each concluded that it was a necessary and proportionate interference with the applicant’s rights under Article 10 of the Convention.

116. The Court, for its part, attaches considerable weight to these exacting and pertinent reviews, by both parliamentary and judicial bodies, of the complex regulatory regime governing political broadcasting in the United Kingdom and to their view that the general measure was necessary to prevent the distortion of crucial public interest debates and, thereby, the undermining of the democratic process.

The Court here effectively endorses a notion of judicial restraint in deference to the substance and process by which the decisions were undertaken in this situation. The very issue of the viability of an exception as an alternative to a blanket ban had been batted back and forth by several bodies during the legislative process (and insufficiently so by the Strasbourg court in previous cases, as the UK argued in this case). The majority judgment showed respect for that process and awareness of their own limitations in second-guessing it in a complex context, when the stakes are high. (The concurring judgment of Sir Nicholas Bratza was even better on this and other points, but I pass over it here for a variety of reasons).

By contrast, the two dissenting judgments had no time for this. The first group of dissenters quote the notorious court-sceptic JAG Griffith as authority for the implied point that the British courts defer too much to Parliament (Joint Dissenting Opinion of Judges Ziemele et.al., para.2), and then chastise the majority in the following terms:

“Nor does the fact that a particular topic is debated (possibly repeatedly) by the legislature necessarily mean that the conclusion reached by that legislature is Convention compliant; and nor does such (repeated) debate alter the margin of appreciation accorded to the State. Of course, a thorough parliamentary debate may help the Court to understand the pressing social need for the interference in a given society. In the spirit of subsidiarity, such explanation is a matter for honest consideration. In the present judgment, however, excessive importance has been attributed to the process generating the general measure, which has resulted in the overruling, at least in substance, of VgT, a judgment which inspired a number of member States to repeal their general ban -a change that was effected without major difficulties.”

Both parts of this quote are misguided in my view. Dismissing the outcome because such a process can yield wrong results (obvious) is to miss the point that this process, on this issue, did deserve considerable weight for a range of substantive reasons. They include the fact that the interlocutors in that process had special knowledge of British politics, commercial media, and consumer habits, and studied the phenomenon at great length and in good faith. The second part of this quote states a claim that could be a highly material point – surely if the revoked ban had not led to problems elsewhere, then that supports the view that the blanket ban isn’t necessary. But how do they know whether the ban has not in fact been pernicious there? No evidence is given on this point, and we cannot assume no news is good news when we haven’t looked. We do know that the impact of the Citizens United v Federal Communications Commission 558 U.S. 310 case in America, which struck down a not entirely dissimilar ban on ‘electioneering communications’ funded by corporations, has been terrible. One study determined that the case accounted for 78% of campaign spending in the 2012 Presidential election. (For a more nuanced view of its impact, see here).

The other dissenting judgment, of Justices Tulkens, joined by Judges Spielmann and Laffranque, at least addressed this issue:

“17. The references to other systems in the context of that examination were brief and selective. The system most frequently referred to, as an example to be avoided, was that of the United States (paragraphs 37-54 of the judgment), but the latter country’s regulatory system is so different to that in issue here that the comparison strikes me as barely relevant.”

In this hubristic gesture, Judge Tulkens sweeps aside the virtually unanimous domestic agreement that it is both relevant and indeed persuasive. What is brushed aside in the dissenting judgments more broadly include the views of the Neill Committee on Standards on Public Life, which visited several countries and reported at length to Parliament; the Joint Committee on Human Rights; the Independent Television Commission; the Joint Committee on the Draft Communications Bill; the Electoral Commission; and the unanimous opinion of the UK Parliament. These bodies not only know local dynamics, but had greater subject-matter expertise and took more time for consideration. To offer only one illustration, the Neill Committee Report was 262 pages, and the Committee undertook visits to five countries, considered over 400 written submissions, and spent seventeen days taking evidence from 120 individual experts representing 75 organisations in public hearings held around Britain. It also commissioned two relevant research studies, one of them analyzing freedom of expression jurisprudence.

I will not delve into the UK literature on judicial restraint here to show how the various factors adduced in that literature would counsel the right outcome here. In brief, the relative expertise was greatly skewed towards the British institutions, both political and judicial; the exact human rights issue was the subject of protracted debate and litigation; the claimant group was not clearly politically marginalized or vulnerable to begin with (a point which is anyway not decisive here); and the cost of getting the issue wrong could be immense and irreversible (hence an impediment to much needed flexibility). The principles of restraint and deference alluded to by the authors above all draw attention to these items and above all warn judges to resist the temptation to think that once human rights are in play, the judge decides in splendid isolation from policy or considerations of competence. To those who think this is all obvious, the near miss in Animal Defenders International reminds us that it isn’t.

Having explored this much, I can deal briefly with my second and third points. The second concerns the value of parliamentary consideration of human rights issues. I am presently engaged in research that examines parliamentary responses to section 4 declarations of incompatibility, and am struck by the incredible professionalism and rigour that is often (not always) found in this process. The JCHR in particular draws the direct attention of both houses to significant human rights implications of bills. It does so on the basis of advice from its legal advisor (presently Mr. Murray Hunt) and always in due consideration of the domestic and international law, as well as considerations of policy. It considers evidence submitted by a variety of NGOs and engages in extended correspondence with the Government on particular bills. It is the interaction between this Committee, Government and Parliament, where the normative guidance set out in the jurisprudence of the courts unites with the participatory advantages and working flexibility of the legislative process. It may look revolutionary in the human rights context, but it is in fact a workaday illustration of a more widely acknowledged truth - that pre-legislative scrutiny, as well as legislative scrutiny, is extremely valuable for helping to identify key issues before views ossify and legislative change becomes impeded by inertia and competition. It can also potentially play a constructive role in litigation afterwards, either helping or harming a legal challenge to the Convention-compatibility of legislation (pace Article 9 of the Bill of Rights 1689 – on which see further the AHRC Report by Hunt, Hooper and Yowell, Parliament and Human Rights, pp.49-50).

The last point is that this case does represent precisely the merits of UK judges scrutinizing the state’s arguments in UK courts, in Convention-rights terms and with due consideration of Strasbourg jurisprudence, before the issue travels to Strasbourg for consideration there. The Strasbourg Court not only essentially adopted the reasoning of the UK courts, but in doing so it explicitly rowed back from its own jurisprudence (i.e. the VgT case). This is an entirely appropriate form of institutional dialogue, and shows maturity of judgment, the flip side of the much-maligned UK courts’ own willingness to apply rules laid down in Strasbourg. The upshot of this is plain: a British Bill of Rights that acted as a substitute for the Human Rights Act 1998 would have destroyed that dialogue, and made the wrong outcome in Animal Defenders International more likely.

Jeff King is Senior Lecturer in Law at The Faculty of Laws, UCL.

Suggested citation: J. King, ‘Deference, Dialogue and Animal Defenders International’ U.K. Const. L. Blog (25th April 2013) (available at http://ukconstitutionallaw.org).

[*] Some important works in this vein include M. Hunt, ‘Sovereignty’s Blight: Why Contemporary Public Law Needs a Concept of Due Deference’ in Bamforth and Leyland, Public Law in a Multi-Layered Constitution (Hart 2003); A. Kavanagh, ‘Defending Deference in Public Law and Constitutional Theory’ (2010) 126 Law Quarterly Review 222 (see also her book Constitutional Review under the UK Human Rights Act (CUP 2009) Part II; A. Young, ‘In Defence of Due Deference’ (2009) 72 The Modern Law Review 554; J. King, ‘Institutional Approaches to Judicial Restraint’ (2008) 28 Oxford Journal of Legal Studies 409, and Judging Social Rights (CUP 2012) Part II (elaborating four principles of restraint). For the earliest statement of the best critique, see TRS Allan, ‘Human Rights and Judicial Review: A Critique of “Due Deference”’ (2006) 65 The Cambridge Law Journal 671, a position refined and enhanced in Professor Allan’s more recent (and forthcoming) work. See also the nuanced position of Dr. Tom Hickman, Public Law after the Human Rights Act (Hart 2010) (accepting and outlining a role for ‘weight’ and guiding principles, but rejecting the idea of a doctrine). Alan Brady’s Proportionality and Deference under the UK Human Rights Act (CUP 2012) integrates deference into the proportionality analysis in a manner that I believe has more in common with the doctrinalists than with Allan’s approach. Leadings treatise writers such as Paul Craig, Timothy Endicott and Jeffrey Jowell all recognize the role for judicial restraint but have largely steered clear of the question of whether any doctrine is necessary.

1 Comment

Filed under Human rights, UK Parliament

Tagged as Animal Defenders Case, Election Broadcasts, European Court of Human RIghts, freedom of expression, Media Law

by Constitutional Law Group | April 22, 2013 · 10:41 am

Jacob Rowbottom: A surprise ruling? Strasbourg upholds the ban on paid political ads on TV and Radio

The European Court of Human Rights has given its decision in Animal Defenders International , holding that the ban on political advertising on the broadcast media does not violate Article 10. I had been convinced that the Strasbourg Court, following earlier decisions in Switzerland and Norway, would come to the opposite conclusion – but I am relieved that they did not. The ban on political ads has been a crucial measure that has helped to keep the cost of politics down in the UK. That said, it was a close shave. The ban was upheld by a majority of 9, with 8 dissenting. The decision was published earlier this morning, so what follows are my initial thoughts.

The approach of the majority stands in stark contrast to that in the US. While the US Supreme Court in Citizens United rejected arguments that corporate spending can distort the electoral process, the Strasbourg Court accepted the argument that ‘powerful financial groups’ can ‘obtain competitive advantages in the area of paid advertising and thereby curtail a free and pluralist debate’. Not only that, concerns about distortion are not limited to the electoral period:

‘While the risk to pluralist public debates, elections and the democratic process would evidently be more acute during an electoral period, the Bowman judgment does not suggest that that risk is confined to such periods since the democrafic process is a continuing one to be nurtured at all times by a free and pluralist public debate.’

This is an important element of the ruling, as it allows the state to take measures to tackle concerns about money in politics generally while staying within the requirements of Article 10.

The key area of debate was not the rationale of the measure, but the proportionality of the ban. The Court found that a partial ban on political advertising – for example allowing some issue advocacy – was unlikely to be workable, noting that such avenues were likely to be abused by ‘wealthy bodies with agendas’. Furthermore, the ban only applied to one type of media, and thereby leaving opportunities for alternative means to communicate, such as newspapers or social media.

Also significant was the fact that the ban had been considered by the UK on several different occasions, such as the Neill Report, in pre-legislative scrutiny and in court. This distinguishes it from cases such as Hirst, where a ban on prisoner voting rights had been maintained without any discussion. The Court thereby attached ‘considerable weight to these exacting and pertinent reviews, by both parliamentary and judicial bodies’.

But what about the previous decisions of the Strasbourg Court in relation to Switzerland and Norway? This I think was the biggest challenge facing the UK government when they were arguing their case. Most interesting here are comments from Judge Bratza who commented that the Court’s decision in VgT Verein:

‘did not do full justice to the purpose of the general prohibition in the legislation, which was to avoid leaving to individual judgment questions such as the wealth or influence of the individual, political party or association or the worthiness or morality of the polifical cause in question, with the attendant risks of discriminatory treatment.’

Consequently, he confessed ‘to entertaining certain doubts about the Chamber’s judgment in the case.’

By contrast, the dissenting opinion of Judges Ziemele, Sajo, Kalaydjiyeva, Vucinic and De Gaetano described the contrast with the Court’s earlier decisions as a ‘double standard within the context of a Convention whose minimum standards should be equally applicable throughout all the States parties to it.’ However, rather than being a double standard, the majority’s approach maybe an example of the way that dialogue with the UK shaped the ECtHR’s jurisprudence – or more cynically how the Court was influenced by the existing political tensions between the UK and Strasbourg.

The reasoning of that group of dissenting judges also shows a divide in the Court concerning its Article 10 jurisprudence. While the majority stressed the need for the ban to address distortion in public debate, those dissenters called it ‘well-intentioned paternalism’. Ziemele, et al emphasized Article 10 as primarily a negative right against state measures:

‘Promoting a right where it cannot be effective without additional State action is, according to our jurisprudence, appropriate, but is not a generally accepted primary ground for rights restriction. There is a risk that by developing the notion of positive obligations to protect the rights under Articles 8 to 11, and especially in the context of Articles 9 to 11, one can lose sight of the fundamental negative obligation of the State to abstain from interfering. The very initiative to legislate on the exercise of freedom in the name of broadcasting freedom, and in order to promote democracy in general terms, and for aims which may not necessarily fully conform to one or more of the legitimate aims of Article 10 § 2, remains problematic. The ban itself creates the condition it is supposedly trying to avert – out of fear that small organisations could not win a broadcast competition of ideas, it prevents them from competing at all. It is one thing to level a pitch; it is another to lock the gates to the cricket field.’

The final sentences attacks what it sees as a ‘level-down’ approach to political equality. Similarly, they went on to say:

‘Freedom of expression is based on the assumption that the speakers, not the Government, know best what they want to say and how to say it. Ideas can compete only where the speaker is in a position to determine, within the limits recognized by the Convention, which form of imparting ideas serves best the message.’

I think these criticisms are misplaced. TV is not a politics free zone, so I don’t think the gates are locked. It is just one type of transaction that is blocked. I think the state plays an important role in ensuring that the opportunities for communication are not skewed in favour of those with the deepest pockets. The case for the ban is not that people cannot decide for themselves, but that different groups should have equal opportunities to persuade people of the merits of their position.

The decision in Animal Defenders International has come as a surprise to me, but – and many will disagree with me on this point – it is a pleasant surprise. It is one in which the Strasbourg Court has moved away from its earlier jurisprudence and emphasized the importance of insulating political debate from the inequalities in wealth.

Jacob Rowbottom is a Fellow of University College, Oxford.

Suggested citation: J. Rowbottom, ‘A surprise ruling? Strasbourg upholds the ban on paid political ads on TV and Radio’ UK Const. L. Blog (22nd April 2013) (available at http://ukconstitutionallaw.org)

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Filed under Human rights

Tagged as Animal Defenders Case, Election Broadcasts, European Court of Human RIghts, freedom of expression, Media Law

by Constitutional Law Group | April 3, 2013 · 7:59 am

Craig Prescott: The Union, Constitutional Change and Constitutional Conventions (and English Regionalism?)

Last week, the House of Commons Political and Constitutional Reform Committee published their report, Do We Need A Constitutional Convention For the UK? (HC 2012-13 371). It is an interesting document, mainly because its very existence shows that the idea of a constitutional convention is becoming more mainstream within Westminster. But the report raises many questions, not all of which are fully answered. The central thrust of the report is that considering the raft of changes made to the constitution since 1997, particularly devolution, ‘it is time to conduct a comprehensive review so that the Union can work well in the future’ (para 111), and that this review should take the form of a ‘constitutional convention to look at the formal constitutional structure of the UK’. Matthew Flinders in his evidence provides the rationale for undertaking such a review now, stating that

‘the constitutional fault-lines that have always existed within the Westminster Model have arguably grown into significant gaps – possibly even chasms – as a result of recent reform. The old constitutional rules and understandings through which politicians and the public made sense of the political sphere no longer seem to apply. Moreover a number of issues on the political horizon – not least a planned referendum on Scottish independence – are stretching the constitutional elasticity of the Westminster Model to breaking point.’ (para 33).

Whilst ultimately leaving the issue open, the Committee suggest that the convention would have a particular focus on the relationship between the ‘different elements of the UK and how it functions as a whole’, but the English Question, ‘the fact that England…outside London does not have its own devolved settlement – must be addressed first’ (para 113). The concern of the Committee is the asymmetrical nature of devolution, and the ‘gaping hole’ of England. Whilst the timing of these things is perhaps never ideal, especially at the moment with so many issues in flux, it is unfortunate that the Committee published its report without considering the proposals of the McKay Commission on the ‘West Lothian Question’ – the most manifest pressure on the constitution that asymmetrical devolution creates. (The McKay Commission has been discussed by Mark Elliott.)

Strengths & Weaknesses

The report should be welcomed as a rare example in British constitutional debates – politicians thinking ahead. The Scottish referendum, to be held on 18th September 2014, will increase the pressure on the union, whatever its result. If the vote is yes, then a substantial part of the Union will withdraw and if the vote is no, ‘devo-max’ has been promised, but will place the unitary nature of the Union under more strain. The problem with this example of future cartography, is that it is unclear what the issues will be. The consequences to the rest of the Union of a Scottish withdrawal will remain elusive until the terms of that withdrawal become clearer. Likewise, ‘Devo-max’ is still a slippery concept. Much may depend on the result of the referendum. If independence is soundly defeated, then pressure for significant change could be less than it currently appears.

These uncertainties lead to the Reports main weakness: namely, it is difficult to provide examples of the sort of issues that a UK wide constitutional convention on the future of the Union could resolve. The firmest proposal that the report makes is to consider the devolution of financial powers to English local government, but it is not clear that a uniform settlement is needed across all the devolved institutions and English local government, which would be the real value of a UK-wide constitutional convention. Indeed, the report is rather sanguine about the prospect of federalism, which would be a logical rationale for a UK-wide convention (paras 48 – 53). As Alan Trench states, what ‘is vital for Wales is of much less importance in eastern England. To the extent there is a ‘Scottish’, ‘Welsh’ or ‘north-east English’ interest in the Union, each of these different’

Alternatively, a UK convention could be a more technical exercise that ‘tidied up the loose ends of devolution’, which would see how the relationship between the different institutions could be improved (see John McCallister MLA, para 35). If this is the case, there seems little to be gained with a constitutional convention over the more traditional method of a Commission to consider these technical issues. Commissions have been used extensively as the main driver of change in devolution, with the Richard Commission directly led to the Government of Wales Act 2006, the Calman Commission led to the Scotland Act 2012 and the Silk Commission in Wales is ongoing.

If the desire is for a technical tidying up of devolution arrangements, this does not appear to fit with the use of constitutional conventions so far. The international use of conventions has so far developed into two categories. Firstly, they are used to devise a new constitution for a state (such as in Iceland), or, conventions are used to discuss a particular issue (for example the Citizen’s Assemblies on Electoral Reform in British Columbia and Ontario). The proposal of the Committee somehow falls in-between these two categories. As a convention would be an experimental device in the UK, and no convention has been held in a political unit the size of the UK some care should be taken for a convention not to be too novel.

For this reason, there seems to be a greater argument for a constitution convention on House of Lords Reform (a point made in written evidence by Michael Gordon and Brian Thompson of University of Liverpool). This would be consistent with the use of conventions abroad, and fulfills the rationale behind a convention, which is to increase the range of ‘inputs’ into the constitutional change process beyond the government of the day to not only other political parties but to those who will be subject to the new constitutional structure – the people. The use of conventions reflects these twin needs. Parties across the political spectrum need to have confidence in the viability of a constitutional structure to foster stability, and that the people can confer legitimacy on new constitutional structures, to the extent that sections of the public are willing to accept perceived negatives decisions from the new structure. If a convention is to merely tie up the loose ends of asymmetric devolution, a convention is not necessarily required to fulfill these twin needs.

The Real Issue: The Process of Constitutional Change

The real issue that lurks in the background of the Committee’s report is not really the structure of asymmetric devolution, but an increasing dissatisfaction with the process of constitution change, which created the situation in the first place (this was considered by the House of Lords Constitution Committee in its report, The Process of Constitutional Change (HL 2010-12 177). The main problem is that despite all the changes enacted since 1997, there has never been a holistic look at how the changes affected the constitution as a whole. Indeed, shortly after the 1997 General Election, the incoming Labour Government rejected the very idea of a White Paper discussing its constitutional change agenda in an overarching fashion. No Minister was given overall responsibility for the constitutional reform agenda and the idea of a declaratory White Paper ‘embracing, describing and linking the whole rolling process’ was decided against (Peter Hennessy, The Prime Minister – The Office and Its Holders Since 1945 (Penguin 2000)).

This approach has now started to reveal its flaws – the issues surrounding the sustainability of a post 2015 Government relying on Scottish seats for its majority are vividly described here. The suggestion for a constitutional convention is ultimately delayed a reaction to this, but could be addressed at the wrong target at the wrong time. If anything, a constitutional convention considering asymmetric devolution should have been convened before devolution was enacted.

Conventions and English Regionalism

To this extent, the report is on safer ground when suggesting a ‘pre-convention’ or forum to consider English local government. Perhaps the Committee should have gone further and suggested a full-blown convention for English local government. It would comply with the rationales for a convention indicated above. However, the idea of regionalism is rejected outright in the report on the grounds that there is no appetite for another layer of politicians (para 14). This perhaps can be explained in the context of the poor public finances and the lingering shadow of the MP expenses scandal making the prospect of more politicians an unlikely one. But the Committee is at risk of falling into the same trap as the current and previous Governments who viewed the rejection of Local Mayors and Regional Assemblies as a rejection of the very idea of regionalism.

Yet this is not necessarily case. The one occasion a robust scheme was proposed in England, it was comprehensively approved in a referendum – in London. Whilst this could be due to the particular characteristics of the capital, there is some support for similar structures outside London. During the May 2012 referendum on an elected Mayor in the City of Manchester, opinion polls showed more support support for a Mayor across the Greater Manchester area on the London model, than the Mayoral proposal on offer which was rejected

One of the advantages of a constitutional convention is that it is an opportunity for some fresh thinking on issues which have proved beyond resolution by the more regular constitutional change mechanisms. This is another reason that makes House of Lords reform is a prime candidate for a convention. By increasing the ‘inputs’ into the process, it allows for options that have fallen outside the purview of politicians to be considered. For example, the Calman Commission through its public engagement processes found that the role of the Crown Estate in Scotland was a far more important issue for people than politicians’ realised. Conventions also allow for the thorough consideration of issues, something that was lacking in the years following the 1997 General Election. It just could be that a constitutional convention held on a regional level could be the way to bring English regionalism fully to life. At least this way, it could be put to the people.

However, holding a constitutional convention on such an issue necessitates making certain choices. The decision at which level to hold an English constitutional convention, (at Local, Regional or England-wide level) could be viewed as impliedly prejudging the conclusion of the convention. If it is held on a England-wide level, is that precluding a more local solution? Does the holding of a convention on a regional level preclude the option of devolution to the North of England? (The Hannah Mitchell Campaign Organisation are campaigning on this very issue.) When the demos and territorial scope of an institution are itself up for discussion, the creation of a convention itself needs to be very carefully considered (Stephen Tierney, Constitutional Referendums (OUP, 2012). This is where the Committee’s idea of a pre-convention could be useful. An example can be drawn from New Zealand, where the Constitutional Advisory Panel is currently engaging with the public by asking for the views of the public of possible areas of the constitution that they feel may need change It could be that a similar sort of process could be useful to frame an English constitutional convention.

Composition

The other main choice is the composition of a convention. There are three elements that could be reflected. Politicians are the most obvious element, as they work daily within the existing constitutional structure and have a direct interest in any new constitutional structure. But this direct interest is also self-interest, as change is rarely desirable amongst those already in positions of power. A barrier to English regionalism is that both Westminster and local councils could see regional institutions as a new competing powerbase. For this reason, expertise is the second element, as the assumptions and interests of politicians can be challenged. Expertise clearly includes experts from academia and public policy, but it can also be more broadly defined to include representative groups such as business organisations, trade unions and religious institutions. This element can also bring different perspectives on the issue, including international comparisons. The Australian Constitution Convention in 1998, held to consider whether to retain the Queen as Head of State combined these two elements, with half being politicians elected onto the convention, and the other half being appointed experts. The final element is the people themselves. In principle this is consistent with the rationale of holding a convention, in that public involvement allows the people to confer legitimacy onto a new constitutional structure. Also, if the proposals are to be put to the broader electorate in a referendum, then people may have a greater degree of trust in the proposal, if members of the public have been involved in devising the proposal. Usually, representation of this element has been through (largely) random selection, as in the Citizens’ Assemblies on Electoral Reform in British Columbia and Ontario.

The Citizens’ Assemblies in British Columbia and Ontario both saw their proposals falter in referendums (although in British Columbia 57.7% supported the proposal, but it was short of the 60% threshold). This raises two questions. Firstly, whether a convention with different elements in its composition would have arrived at a proposal, which would have proved more appealing to a greater portion of the electorate. Or, whether you have to accept that however a convention is composed, sometimes the issue is too intractable for it to be resolved on that occasion. The second question is that if proposals are to be put to a referendum, then as much focus should be attached on the rules and conditions of the referendum as there is on the convention that frames the question.

Public Interest

Short of an Ackerman-esque major ‘constitutional moment’, the perennial difficulty with constitutional change is the limited desire amongst the general public for constitutional change and debate. Experiments aimed at increasing engagement with politics in general have been met with limited success. For example, the 25% turnout at the open primary in Totnes before the 2010 election did not ‘indicate a zealous public chomping at the bit to get involved’ (Ruth Fox, ‘Engagement and Participation: What The Public Want and How Our Politicians need to Respond’, 62 Parliamentary Affairs 673). The Hansard Society’s Annual Audit of Political Engagement consistently shows that around 50% have little interest in politics. However, a convention would be entirely new to British politics and its novel nature, could spark a greater level of interest, particularly if it tapped into the prevailing dissatisfaction with politics and involved members of the public.

Iceland’s Constitutional Council provides an interesting example of a particularly high level of public engagement (the report discusses Iceland in paras 24-27). After a National Forum of 1,000 citizens discussed themes for a new constitution, the Constitutional Council, was created with 25 citizens elected to draft the new constitution. An interesting feature of the Council’s method was its use of the internet to engage with the public. The Council posted draft articles on the internet and social media, inviting public comment and then posted redrafts taking account of the comments received. Council meetings were broadcast on the television and internet. After being approved in a non-binding referendum, the constitution is awaiting ratification. Whilst there are major differences between Iceland and the UK – Iceland’s population is around 320,000, compared to the UK’s 60 million, elements of the three-stage process of a general meeting, elections and engagement could be a useful process for future reform mechanisms. The method of using the internet to allow discussions of draft articles is particularly interesting as it would allow the broader public to scrutinise proposals. For more on Iceland see Thorvaldur Gylfason, ‘From Collapse to Constitution: The Case of Iceland’, CESifo Working Paper No. 3770

The Future?

Finally, the report makes an interesting hint. It suggests that the use of a convention with an open remit could struggle to reach conclusions (para 81). This is almost certainly correct. If a convention with an open remit to consider the issue of the relationship between the devolved institutions would struggle, it raises the issue of how appropriate a convention would be to codify the UK constitution. Given the complexity of such a task, it could be that the best use of the convention method would be not to have one convention, but several conventions. Each convention would consider a different aspect of a codified constitution, possibly operating with other procedures, where appropriate, and all being subject to one overarching body co-ordinating the whole process. It must be noted that having several conventions or bodies, whilst logical, could have difficulties in engaging the public across the different procedures, bodies and conventions. Clearly, this is a consideration for another time, particularly as the Committee is considering this very issue, with its inquiry into Mapping the Path to Codifying or Not Codifying the UK Constitution.

Conclusion

By offering something new to the constitutional change process, constitutional conventions have a potential role in resolving constitutional issues, which have eluded the more traditional methods. The Reports main value is in identifying constitutional conventions as a method for constitutional change that should be pursued. However, the report has possibly approached the issues in the wrong order. Conventions need to be examined first, and it needs to be establish how conventions can be used as a sound and viable process in the UK. Only then can you consider for which issues a convention would be appropriate. House of Lords reform is clear case, as the ordinary processes of constitutional change have broken down time and time again. The future of the Union and the English Question are two further candidates, but it is too early to be definitive about this. Wait until 19th September 2014.

Craig Prescott is a Teaching Assistent and Ph.D student at the School of Law, University of Manchester.

Suggested citation: C. Prescott, ‘The Union, Constitutional Change and Constitutional Conventions (and English Regionalism?)’ UK Const. L. Blog (3rd April 2013) (available at http://ukconstitutionallaw.org)

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Filed under Constitutional reform, UK Parliament

Tagged as Convention for the UK, English Regionalism, House of Commons Political and Constitutional Reform Committee, McKay Report, West Lothian Question

by Constitutional Law Group | April 2, 2013 · 2:51 pm

Dawn Oliver: Parliamentary Sovereignty in Comparative Perspective

I Parliamentary sovereignty in other countries

In this post I defend the absence of judicial strike down powers in the UK by exploring the ways in which other countries besides the UK manage to function well as liberal democracies without courts enjoying strike down powers, and looking at some of the negative aspects of the USA system, which is sometimes held up as a model to which the UK should look.

A doctrine of parliamentary sovereignty in the particular sense that the courts will give effect to legislation passed by the Parliament on any subject matter, even if it is ‘unconstitutional’, is not unique to the UK. It applies in common law based New Zealand which – like the UK – does not have a formally entrenched written constitution (though a 75% majority in a referendum is required to certain aspects of the electoral system). It also applies in some of our Northern European neighbours, notably Finland, Sweden and the Netherlands.

New Zealand

Politics in New Zealand resembles that of the UK in a number of respects, including the development of constitutional conventions of political restraint in relation to the constitution and the cultivation of good relations between the courts, the Parliament and the executive (M. Palmer ‘Open the door and where are the people’ The white population of New Zealand is relatively homogeneous and cohesive. Special measures – the Treaty of Waitangi – protect the Maori.

The New Zealand Parliament enacted a Constitution Act in 1986 which describes the country’s constitutional arrangements but leaves the traditional doctrine of parliamentary sovereignty broadly in place. The principal purpose of the 1986 Act was to patriate the New Zealand constitution by breaking its links with and dependence on the United Kingdom’s legal system.

The constitutionality of laws in New Zealand, not being protected by American-style judicial review, is promoted in a range of informal ways. In 1986 Minister of Justice, later Prime Minister, Geoffrey Palmer established a non-statutory Legislation Advisory Committee. The Committee is serviced by the Ministry of Justice and generally meets every six weeks. Its terms of reference are as follows:

(a) to provide advice to departments on the development of legislative proposals and on drafting instructions to the Parliamentary Counsel Office;

(b) to report to the Attorney General on the public law aspects of legislative proposals that the Attorney General refers to it;

(c) to advise the Attorney General on any other topics and matters in the field of public law that the Attorney General from time to time refers to it;

(d) to scrutinise and make submissions to the appropriate body or person on aspects of Bills introduced into Parliament that affect public law or raise public law issues;

(e) to help improve the quality of law-making by attempting to ensure that legislation gives clear effect to government policy, ensuring that legislative proposals conform with the LAC Guidelines and discouraging the promotion of unnecessary legislation.

Its members include the President of the Law Commissioners, academics, practising barristers, judges and parliamentary counsel and civil servants. While it has no delaying power and it is open to the government to ignore its reports, it is assumed to have an effect upstream in government during the preparation and then the parliamentary processing of bills. It is very rare for the New Zealand Parliament to pass laws that would be regarded as ‘unconstitutional’. I shall return to lessons that may be drawn from the New Zealand approach in due course.

Sweden, Finland and the Netherlands

Doctrines of parliamentary sovereignty in the sense that the courts may not hold an act passed by the primary legislator to be invalid as being ‘unconstitutional’ also operate among some of our Northern European neighbours (see Jaakko Husa‘ Guarding the Constitutionality of Laws in the Nordic Countries: A comparative perspective’ in 48 American Journal of Comparative Law, 2000, p. 345). Practice in these non-common law, small country jurisdictions may seem of little relevance to the UK, but we share a number of important and influential characteristics with them which can cast light on how they, and the UK, manage quite well without constitutional review by the courts.

There is very little American or German style ‘judicial review’ of legislation in Sweden: judicial review is only permitted if the conflict with the Constitution or another higher law is ‘clear’ or ‘manifest’ (see Thomas Bull ‘Judges without a Court: Judicial Preview in Sweden’ in T. Campbell, K. D. Ewing and Adam Tomkins The Legal Protection of Human Rights: Sceptical Essays, Oxford, Oxford University Press, 2011; Lars-Goran Malmberg in X. Contiades, ed. Engineering Constitutional Change: A Comparative Perspective on Europe, Canada and the USA, Abingdon, Routledge, 2012); in Finland there is none (see Jaakko Husa The Constitution of Finland, Oxford, Hart Publishing, 2011; Tuomas Ojanen ‘Constitutional amendment in Finland’ in Contiades ed, above; M. Suksi ‘Finland’ in Oliver and Fusaro, How Constitutions Change, Oxford, Hart Publishing, 2011; Kaarel Tuori in T. Campbell, K. D. Ewing and Adam Tomkins The Legal Protection of Human Rights: Sceptical Essays, above). These countries rely substantially on pre-legislative, abstract scrutiny – preview – of bills by special parliamentary committees: for instance the important and highly regarded Constitutional Committee of the Finnish Parliament; and, in the case of Sweden, on the work of its extra-parliamentary legislative committees in preparing proposals for legislation, and its Law Council, an official independent body similar to the French Conseil d’état or the New Zealand Legislation Advisory Committee, which scrutinises and reports on bills.

The Netherlands also lacks judicial review of Acts for constitutionality by the courts: this is forbidden by article 120 of the Constitution (see C A J M Kortmann and P P T Bovend’Eert The Kingdom of the Netherlands: An Introduction to Dutch Constitutional Law, Boston, Kluwer Law and Taxation Publishers, 1993). The Netherlands system relies on its Council of State to ‘control’ [scrutinise] and report on bills before they are passed. Its parliamentary committees are weak.

Each of the ‘preview’ bodies in these three countries includes lawyers in its membership – judges, academics or practitioners – and in some respects they adopt formal procedures which resemble those of the courts: hence the phrase ‘judicial preview’ may be applied to them, though they are none of them ‘courts’. In summary, each of these countries has developed a system of constitutional preview involving extensive consultation about and expertly advised non-partisan scrutiny of legislative proposals at a number of stages in the legislative process which has proved effective in preventing the making of ‘unconstitutional’ laws.

Despite the restrictions on or absence of judicial review for constitutionality only seldom, if at all, are laws passed which seriously conflict with constitutional principles in these countries. (Readers may be thinking that ‘seldom’ is not as good as ‘never’; and why does only ‘serious’ conflict matter? Perfection is unachievable in these matters. Is it the fact that bad laws of a constitutional nature have never been passed and given effect by the courts under their written constitutions in countries with judicial review? Surely not. (I shall consider the position on this issue in the United States briefly below.) On the other hand the Netherlands is a monist system and thus treaties, including for instance human rights treaties, have direct legal effect and give rise to rights that individuals may enforce in the courts. Thus there is in practice a form of judicial review of provisions in Acts which a court in the Netherlands may ‘disapply’ in case of incompatibility with treaty provisions, some of which are ‘constitutional’ in nature.

Sweden and the Netherlands, like the UK, are constitutional monarchies: they have evolved continuously over at least two centuries gradually subjecting the exercise of formerly wide powers by the head of state and government to legal and conventional constraints. The Constitution of Sweden dates from the Instrument of Government, 1809. The Constitution of the Netherlands as an independent state and monarchy dates back to 1814. Finland was part of Sweden until it became a Russian Grand Duchy – similar to a monarchy – of Russia in 1809. The Finnish Constitution of 1917-1919 was drafted on the assumption that the country would be a monarchy or German Grand Duchy, but this became impossible after the defeat of Germany in World War I and Finland turned to electing a President who enjoyed some powers of a King. Thus although the Finnish Head of State is a President the country has retained some of the traditions of continuity that constitutional monarchies possess ( see Seppo Hentila in The Parliament of Finland (Helsinki, The Parliament of Finland, 2000) pp. 35-45; Jaakko Husa, above.)

Each of these countries has a parliamentary executive, thus allowing constitutional traditions and conventions of responsible and responsive government to evolve and regulate the relations between the parliament and the executive in ways that are not possible in non-parliamentary, presidential systems; each has a fairly homogeneous population most of whose members share senses of common identity and common interests. Where, as in the Aland Islands of Finland, a population has a separate identity, special arrangements for their protection have been made. These countries have fairly consensual political traditions (see for instance Arend Lijphart, The Politics of Accommodation: Pluralism and Democracy in the Netherlands, 2nd edn. , Berkeley: University of California Press, 1975, on The Netherlands), and there are cultures of non-partisan approaches to constitutional matters or political traditions of pragmatic compromise: these tendencies may be reinforced by the fact that each uses a system of proportional representation in elections. The Finnish Constitutional Committee and the Swedish and Netherlands Councils of State act in quasi-judicial ways, taking advice from lawyers, often academics, and evidence, formulating their opinions in terms of constitutional legality, and generally adopting non-political positions.

Where a non-partisan approach to constitutional matters does not exist in a substantial section of the population of a state, where for instance a population is seriously divided on class, racial, sectarian, tribal or religious grounds, non-partisan politics, especially in relation to minorities and constitutional matters, may be impossible: experience in Northern Ireland, with its divided unionist and nationalist communities, in the middle of the twentieth century illustrates the point. In such countries there may well be a need for a judicially enforceable Constitution –and/or international agreements to resolve conflicts – as are provided for by the Northern Ireland Act 1998 and the Belfast Agreement (Cm 3883, 1998).

The UK shares many characteristics with New Zealand, Sweden, Finland and the Netherlands including evolution of constitutional arrangements over many years and parliamentary executives. Of course, the UK does not have a tradition of consensual party politics or coalition government. This may be due to the first past the post electoral system and to the fact that British politics retains elements of a class system, which in turn are reflected in some of the policies of the main political parties: class is less important in New Zealand and our Northern neighbours than in the UK. The UK does however, I suggest, have cultures and traditions that are hostile to partisan, and in favour of non-partisan, constitutional politics – again, Northern Ireland has been an exception: there consociationalism now provides a new form of consensus politics. But among the general public and in opposition parties opposition to partisanship in constitutional politics is deeply embedded in Great Britain.

It is broadly agreed and understood among Westminster parliamentarians and among the general public that constitutional change should not be brought about with a view to benefiting the party or parties in government or their supporters; rather constitutional changes should promote honestly held views about the public interest and where the balance between individual rights and conflicting public interests lies. Allegations of partisanship are of course made, especially by opposition parties and the critical press, when constitutional changes are under consideration. But Governments proposing change in the UK will never admit to partisanship: if they were to do so this would attract general public disapproval.

Partisan party political considerations no doubt influence the priority given to some proposals for constitutional change over others: commitments by the Labour government that was elected in 1997 to devolution to Scotland and Wales were no doubt influenced by fear of the Scottish National Party and Plaid Cymru winning over Labour voters if no such promise was made. That consideration does not however of itself detract from the merits of devolution, which are based in senses of shared national and regional identities and desires for government in these areas to promote general interests within each territory and for public servants to prioritise the interests of their populations, and not sectional interests.

This non-partisan understanding about constitutional change in the UK may exist because each government is an opposition in waiting and each opposition party is a government participant in waiting. The electoral system operates so that there are regular changes of government. It is not therefore in the interests of either government or opposition parties to concede a right to the others to use their power in relation to the constitution for party political advantage without any public interest justification. The terms of such debates take for granted that constitutional change should be non-partisan.

To sum up, nowadays the systems in New Zealand, Sweden, Finland and the Netherlands, and in the UK, include informal procedures, legal and political cultures and traditions which enable their constitutional arrangements to function reasonably well and generally without discriminating against parties and classes of people – without judicial strike down powers.

II Countries in which the courts may disapply or strike down legislation: the case of the USA

As is well known doctrines of parliamentary sovereignty in the specific sense that the courts will apply Acts passed by the Parliament regardless of their wisdom, workability or constitutionality do not apply in many countries with written and entrenched constitutions: the Constitution itself may contain clauses which limit the legislator’s power to make certain laws, for instance laws which interfere with federal principles or constitutionally protected human rights, or the independence of the judiciary either forever (eternity clauses, as in the German Basic Law) or unless and until the text of the Constitution is amended in accordance with special procedures such as two thirds majorities in the legislature and assent by three quarters of the states (as in the USA), referendums (as in Switzerland) and so on. And in those countries the courts – either all courts, or a Constitutional or Supreme Court – may disapply (in a concrete case) or strike down (for universal effect) legislation passed by the legislator/Parliament which breaches the Constitution: the USA and Germany are well known examples of countries in which a strike down power exists, but this is the case in very many liberal democracies.

The USA

The USA is an interesting example of how a system based on the common law has evolved differently from that of New Zealand and the UK and its Northern European neighbours. The USA was formed in a revolution and rejected the hereditary monarchy; it introduced instead an elected, rather monarchical, Presidency many of whose powers are very broad and ill-defined in the Constitution, legally controlled to an extent by Congress and by judicial review by the Supreme Court – but not, politically, by conventions. Other presidential powers are so constrained by Congress, in which the President may not have a majority, that it becomes almost impossible for even the most basic new laws to be passed without protracted political wrangling.

Why is this not the case in the UK – and in New Zealand and Canada and other Commonwealth nations? (s ee for instance T. Kahana ‘Canada’, M. P. Singh ‘India’, and P. Rishworth ‘New Zealand’ in Oliver and Fusaro, eds, above). In these countries conventions have evolved over time to deal with the fact that the Crown was not subject to judicial review – individual ministerial responsibility to Parliament being the most significant of these conventions. No such evolution took place in the USA because, the system being presidential rather than parliamentary, no confidence relationship exists between the President and Congress, and because all the ground rules are assumed to be contained in the Constitution and the decisions of the Supreme Court: in this respect the USA is a highly positivist system. The fact that the USA took a different and ‘non-conventional’ route from that taken by the UK and many Commonwealth countries and many other constitutional monarchies may go some way to account for the development of constitutional judicial review in the USA and in other states with executive presidencies, and for its absence in the UK and its legally related cousins.

The positivist approach and the absence of political conventions that constrain the exercise of executive power may also account for the fact that neither party political nor constitutional politics in the USA are consensual: the Constitution itself has been subject to political manipulation, the appointments to the Supreme Court have become politicised, and many executive and Supreme Court decisions on constitutional issues are wide open to allegations of political partisanship. Given that the United States Supreme Court’s constitutional judicial review jurisdiction is commonly looked to as an example to be followed by the UK, we should bear in mind that America is very different from the UK in many respects. It is not a parliamentary system. It is federal while the UK is a union state: it is essential in a federation that the states are judicially protected against encroachment on their powers by the federal institutions. By contrast the devolution arrangements in the UK specifically preserve the UK Parliament’s sovereignty. America’s political culture is even more aggressive than that of the UK and far less civil in its political and legal affairs: incivility is recognised as a problem in the USA (see for instance Susan Herbst, Rude Democracy: Civility and Incivility in American Politics, Philadelphia, Temple University Press, 2010; Dr Leslie Gaines-Ross ‘Incivility is harming America’s reputation’ at http://reputationxchange.com/2011/06/21/incivility-is-harming-americas-reputation/) whereas it is not – so far – seen to be a real problem in UK politics and legal practice.

The US Supreme Court has of course a positive record in relation to the Constitution, in particular human rights, in some areas, including the desegregation of schools (Brown v Board of Education 347 US 483 (1954)), and abortion (Roe v Wade 410 US 113 (1973). American arrangements are not, however, by any means watertight guarantees of human rights or good government (see generally T. Campbell, K.D. Ewing and A. Tomkins The Legal Protection of Human Rights: Sceptical Essays, above), and this should be borne in mind by those arguing for the adoption of constitutional review in the UK. No system is watertight. The USA Constitution and the Supreme Court’s role in interpreting and upholding the Constitution, and the political and public cultures there have not prevented the following:

a) Slavery (abolished by the Thirteenth Amendment, 1865; compare the ending of slavery throughout the British Empire by Act of Parliament in 1833, and its ending at common law in Somersett v Steuart (1772) 20 St Tr 1 (England) and Knight v Wedderburn (1778) Moor 14545 (Scotland)).

b) Racial segregation (upheld by the Supreme Court in Plessy v Ferguson 163 US 537 (1896), but later declared unconstitutional by the Supreme Court in Brown v Board of Education 347 US 483 (1954); the move to constitutionally required integration came with the Supreme Court decision in Green v School Board of New Kent County 391 US 430 (1968)).

c) Discrimination (phased out in a series of Civil Rights Acts in 1964, 1965 and 1968).

d) The denial of voting rights to slaves (ended by the Fifteenth Amendment, 1870, which guaranteed the right to vote without regard to race) and women (the Nineteenth Amendment, 1920, completed the extension of the franchise to women, providing that the right to vote could not be denied ‘on account of sex’).

e) Denial of many labour rights (Lochner v New York 198 US45 (1905)).

f) Prohibition (established by the Eighteenth Amendment in 1920, ended by the Twenty First Amendment in 1933).

g) The race based gerrymandering of district boundaries (found to be unconstitutional by the Supreme Court in Gomillion v Lightfoot 364 US 339 (1960); see also Miller v Johnson 515 US 900 (1995) and Hunt v Cromartie 532 US 234 (2001). Partisan gerrymandering continues).

h) The widespread use of the death penalty,

i) The upholding of unfair campaign financing practices (Buckley v Valeo 424 US 1 (1976); Citizens United v Federal Election Commission 558 U.S. 310 (2010)).

j) Resolution by the top court of a major presidential election dispute in favour of the candidate who received fewer votes than his opponent, reinforcing the incentives for a President to pack the Supreme Court with sympathetic judges (Bush v Gore 531 US 98 (2000)).

k) Detention of suspects without trial off-shore for lengthy periods.

Such problems should be borne in mind by those encouraging the UK and its courts to adopt US style judicial review, especially if they are encouraged to do so unilaterally and without a mandate in the form of legislation passed by Parliament or the adoption of a written constitution for the UK. A move to judicial review of legislation in the UK could well undermine the positive pro-constitutionalism, non-partisan aspects of the political and governmental culture.

III Concluding remarks

Of course other countries with entrenched written constitutions and Constitutional or Supreme Courts exercising judicial review of Acts may have different experiences of the workings of their arrangements. Such a system works well in Germany, for instance. But each has its own history and political and legal cultures. These should not be overlooked when fundamental changes to the British arrangements by virtue of unilateral and thus irreversible assumption of a strike down power by the courts is contemplated or argued for. Hints by some of the judges in Jackson v. Attorney General ([2006] 1 AC 262) to the effect that the courts may exercise a reserve power to refuse to give effect to a provision in an Act that was contrary to the rule of law should ring alarm bells. If the UK were to adopt an entrenched written constitution providing for a Supreme or Constitutional Court with strike down powers the controversies about such powers would not go away. But at least the Court could point to the Constitution as granting it that power. Our current courts cannot point to any such legitimating source: they should not assume such a power.

Dawn Oliver is Emeritus Professor of Constitutional Law at University College London.

Suggested citation: D. Oliver, ‘Parliamentary Sovereignty in Comparative Perspective’ UK Const. L. Blog (2nd April 2013) (available at http://ukconstitutionallaw.org)

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Filed under Comparative law, Judiciary, UK Parliament

Tagged as America, comparative law, constitutional review, New Zealand, Parliamentary sovereignty

by Constitutional Law Group | March 30, 2013 · 7:51 am

Conor Gearty: The Important Inconvenience of the Rule of Law

Omar Othman is a resident of this country – guilty of no crime and up to now facing no charges – whose home country wants to put him on trial in a case where the key evidence against him will in all likelihood have been procured by torture. The only reason he probably won’t be tortured is because the state concerned has reluctantly promised (as an inducement to get him back) not to follow its usual routine.

If this person’s name were MacKinnon or Giles or Gary and the country Syria or Sudan, we’d have outraged Daily Mail editorials and a civil libertarian Home Secretary. But it is Abu Qatada and the state is Jordan.

In politics universal values (the rule of law; the protection of human rights; the prohibition on torture) are fine – but only so long as they don’t get in the way of our diplomatic or political interests, the career ambitions of our leading politicians, or the propensity of our allies to do evil.

The law doesn’t work like this.

It deals in legal commitments. No bit of the Human Rights Act or of the European Convention on Human Rights or the Convention Against Torture has a proviso ruling out their protection for foreigners with ‘funny’ names or for those with the ‘wrong’ ethnic or religious backgrounds. The three senior judges who have just reminded the government of this yet again in the latest ruling on Abu Qatada are not necessarily liberal, or progressive, or devotees of some kind of judicial cult worshipping at the shrine of Shami Chakrabarti. They are just doing in a dull old-fashioned kind of way what is made inevitable by their training, their culture, and the unequivocal democratic laws that it is their job to apply.

The facts of this case are surely by now well-known. It concerns the refusal by the Secretary of State to revoke the deportation order against Abu Qatada notwithstanding the ruling of the European Court of Human Rights that to send him to Jordan for trial would in the circumstances amount to a flagrant denial of his article 6 right (under the European Convention) to a fair trial. The Special Immigration Appeals Commission having made the decision to uphold the application, it was always a long shot that the Court of Appeal – with oversight only on issues of law – would overrule its specialist subordinate, and so it turned out. Here was a ‘detailed and careful judgment by an experienced tribunal’ (para 42) on the nature of the burden of proof and on what is entailed by the ‘flagrant denial of justice’ test that applied to cases such as the one before the court.

The subject matter also mattered.

As the Master of the Rolls, speaking for the Court of Appeal, put it:

‘Torture is universally abhorred as an evil. A state cannot expel a person to another state where there is a real risk that he will be tried on the basis of evidence which there is a real possibility may have been obtained by torture. That principle is accepted by the Secretary of State and is not in doubt. That is the principle which SIAC had to apply in the present case in the light of all the evidence that it heard and read. This included evidence as to what had happened and what there was a real risk would happen if Mr Othman faced a retrial on the very serious charges that he faces. SIAC found that there was a real risk that evidence obtained by torture would be admitted at the retrial and that, as a consequence, there was a real risk that he would be subject to a flagrant denial of justice’ (para 58)

Successive governments and the Tories in particular have long had a problem with the rule of law. It seriously inhibits the security services in their desire to take national security wholly back – Cold War style – into the realm of the executive. It also inconveniently stands against the populist manoeuvring favoured by the dark side of both main Parties.

But ….

The rule of law is what Conservatives in particular were brought up to believe in, a bit of the imperial history (Magna Carta, Blackstone, Dicey; etc) that Michael Gove will soon be making all little Englanders learn by rote. In the good old days the judges saved embarrassment by looking the other way when radicals were shafted, shocking bail conditions imposed, foreigners unceremoniously thrown out. This went on right into the 1980s (Spycatcher; the Birmingham Six; the miners’ strike). But things have changed. The Hales, Neubergers, Dysons of today are not the ex-servicemen, rabid anti-Communists and Tory placemen of yesteryear. And there is now the European Court of Human Rights to keep them honest, as it did in the Abu Qatada case itself last year when overruling our judges’ effort to be relaxed about torture evidence as long as it was being allowed in Amman and not the Old Bailey.

This is how the Court of Appeal dealt with the politics, what in cricket might be called the straightest of straight bats:

‘Mr Othman is considered to be a dangerous and controversial person. That is why this case has attracted so much media attention. It is entirely understandable that there is a general feeling that his deportation to Jordan to face trial is long overdue. But the principles that we have to apply do not distinguish between extremely dangerous persons and others who may not constitute any danger in the United Kingdom and whom the Secretary of State wishes to deport to face trial in another country. The fact that Mr Othman is considered to be a dangerous terrorist is not relevant to the issues that are raised on this appeal. It would be equally irrelevant if we were deciding the question whether there was a real risk that he would be tortured if he were returned to Jordan.‘ (para 56).

What will the government do?

In the short term it has enough legal devices to hand to continue to make the life of Abu Qatada and his family hell without exposing their hand against him in any kind of fair prosecution for a serious offence. If they get the chance they might even press charges if they can be assured of the secret justice for which they have been fighting so hard in recent weeks.

In the longer term the Conservatives only get away with supporting universal values like the rule of law and human rights while also condemning non-white foreigners, deadbeat immigrants and benefit scroungers because they are always silently whistling that none of the values we supposedly uphold really in truth applies to these reprobates. Nigel Farage has thrown the Party into a panic precisely because he is talking about this, not covertly whistling.

Short of abolishing the rule of law and universal human rights the party is left with the poor consolation of being able only to shout insults at the judges –like a political version of the limbless black knight in Monty Python and the Holy Grail who roars at his adversary ‘Come back and I’ll bite your legs off.’

Conor Gearty is Professor of Human Rights Law, LSE, and a Barrister at Matrix Chambers.

Suggested citation: C. Gearty ‘The Important Inconvenience of the Rule of Law’ UK Const. L. Blog (30th March 2013) (available at http://ukconstitutionallaw.org)

An earlier version of this post appeared in The Guardian.

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Filed under Human rights, Judiciary

Tagged as Abu Qatada, Deportation, Rule of Law

by Constitutional Law Group | March 29, 2013 · 7:48 am

Christopher McCrudden: Equality and the Good Friday Agreement: Fifteen Years On

The Northern Ireland peace agreement was born on the 10^th April 1998, Good Friday, in Belfast and will thus celebrate its 15^th birthday next week. One of the central elements of the Agreement was to achieve equality between the two main communities in Northern Ireland. It was an ambitious attempt to achieve this aim through a significant restructuring of the Northern Ireland constitution. This aspect of the Agreement has implications, therefore, for the role of constitutions in achieving equality more broadly. The fifteenth anniversary provides a suitable occasion to assess the outcomes achieved, and to look to the future.

The Northern Ireland constitutional model incorporated in the Belfast-Good Friday Agreement is neither unique, nor particularly unusual in a global context. It is a classic democratic consociation, as political scientists term it. Four key elements of democratic consociation are commonly identified.

These are, first, the sharing of executive and, often, legislative and security powers among representatives of all the major communities, especially those with histories of prior antagonism. Examples of specific arrangements include collective presidencies and co-premierships; examples also include concurrent or qualified majority rules. Plainly such power-sharing aims to achieve greater inclusivity and jointness in decision-making than ‘winner-takes-all democracy’.

The second key feature is community autonomy. Each constituent group has significant internal self-government in at least one public function (for example, in establishing and controlling its own schools). Equality across the communities applies in these respects. Self-government accompanies shared government.

The third feature is the widespread use of the proportionality principle, understood to encompass proportional representation in shared institutions, and the allocation of important resources and public offices. For example, posts in the civil service, security forces, and judiciary, are shared out by reference to the proportions the groups have in the population as a whole, or in the labour market. Proportionality may also apply to the allocation of public expenditures, e.g., each group may receive the same per capita funding for its primary schools.

Lastly, because power-sharing, proportionality, and autonomy may not provide sufficient assurance to particular groups that their interests will not be over-ridden, explicit veto rights may be granted to each of the communities on vital issues, with variations in how these veto rights are allocated and legally entrenched.

How does all this relate to the equality agenda? Apart from the attempt to achieve equality at the level of the legislature and the executive, there are three additional legislative features of the equality agenda in Northern Ireland that relate to the Agreement: first, the fair employment legislation which began in 1976, was fundamentally restructured in 1989, and more minimally reformed as a result of the Belfast/Good Friday Agreement; second, section 75 of the Northern Ireland Act 1998 which established a public sector equality duty on public bodies resulted directly from the Agreement itself; and third, the (now repealed) quota provisions regarding the recruitment to the Northern Ireland Police Service is derived from the Patten Commission established as a result of the Agreement. There are five points I want to make.

First, the equality agenda comprising these elements can best be understood in the context of the Northern Ireland consociational model. It is, of course, separable from it – much of the equality agenda borrows its techniques from other countries (such as the United States) where consociations are not in operation. But placing it within the consociational model emphasizes the extent to which equality in Northern Ireland is primarily about securing the third of the three elements I described earlier – the proportionality principle. It is this that marks the equality agenda in Northern Ireland out from that in the rest of the United Kingdom or, indeed, in the Republic of Ireland.

Second, it is also useful to see the equality agenda in the context of the consociational model for another critical reason: the effective enforcement of fair employment after 1990, and the debate over the public sector equality duty in the early 1990s was a critical element in the “confidence building” measures that resulted in nationalist (and particularly republican) politicians agreeing to the other elements of the consociational package, in particular the first of these, the sharing of legislative, executive and security powers with the other parties. The orthodox histories of the run up to the Belfast/Good Friday Agreement largely, I think, underestimate the extent to which there was a parallel “peace process” that supported the main process, but which concentrated less on security and power-sharing issues and more on economic, social and human rights issues. In practice, the two went hand in hand.

The relative success in getting these equality measures accepted and implemented provided a degree of reassurance that the Northern Ireland state was capable of reform and transformation, and laid some of the political ground work for the Agreement. The Americans, and largely because of them the Irish Government, understood this; I was never convinced that the British Government did (or, perhaps, does) fully comprehend the importance of this.

The third reason for emphasizing the consociational context of the equality agenda is that the other elements of the consociational model act as a limit on a liberal individualistic equality agenda. This can be seen in two respects. First, the consociational model depends on the recognition and (to a degree) the institutionalization, of the two major communities as the key political actors. For some, though not for me, this is anathema because it appears to emphasize existing divisions rather than transcending them; and this came to a head in particular in the debate over the Patten police quota arrangements.

A second limit on the equality agenda arising from consociation relates to schools. I said that one of the features of a consociation is a degree of autonomy in certain spheres. In Northern Ireland, the best example of an autonomy arrangement relates to primary and secondary education, which is a closely guarded sphere of Catholic influence. Fair employment legislation has carved out teaching in schools as an exception. This can really only be understood when seen in the consociational context.

I will end by making two further points. The first is that, to a considerable extent, the strategy worked, not just in the sense that it helped build confidence (which it did), but in its own terms. In particular, research supported by the Nuffield Foundation demonstrates pretty definitively that the effective enforcement of the fair employment legislation in the 1990s led to a significant shift in the labour market with significantly reduced inequality between Catholics and Protestants, at the same time as achieving significant desegregation. There is a more complex story to tell, but suffice to say it is a very good news story, and one that Northern Ireland should be proud of. It is the success of this legislation that has significantly taken the poison out of the discrimination issue (a poison that those of us who worked in the area remember only too well). The same applies to the Patten quota, which has succeeded in restructuring the composition of the police service from one that was overwhelmingly Protestant to one that is now proportional, and has contributed to the increased acceptance of the police in the nationalist community.

Finally, what of the future? Although by no means unique globally, consociational arrangements are unusual in the British and Commonwealth world, and are therefore continually under pressure; there is a sense among some opinion formers in Britain that the Westminster model is in some way the “norm” and that, in time, the aim should be to return Northern Ireland to “normality”. In the equality context, this means constant indirect pressure to reduce the specifically Northern Ireland features of the approaches taken to equality, such as compulsory monitoring in fair employment, a significant regulatory presence in the labour market in the shape of the Equality Commission, and the process requirements of the public sector equality duty concerning civil society participation in decision-making, and impact assessment. Both the European Union and the domestic courts have recognized the importance of preserving the Northern Ireland equality model, and have resisted attempts to force change.[1]

The greater danger comes, I think from, a sense among some opinion formers in London (and even some in Belfast) that the equality job has been done, equality has been achieved, and we can therefore simply dismantle the panoply of equality requirements, particularly in a time of financial cutbacks. That view, I suggest, should be strongly resisted. The importance of the equality agenda in enabling the Belfast-Good Friday Agreement to be concluded in the first place, and ensuring that a stable government could eventually be established and maintained, should be recognized and lessons learned. It would be a mistake, I think, of incredible stupidity with incalculable costs if inequality between the two communities were to become a significant problem again in Northern Ireland.

Christopher McCrudden FBA is Professor of Equality and Human Rights Law, Queen’s University Belfast, and Leverhulme Major Research Fellow (2011-2014). It is an edited version of a talk presented on the 27th March 2013 at the British Academy seminar “The Good Friday Agreement: 15 Years On”.

Suggested citation: C. McCrudden, ‘Equality and the Good Friday Agreement: Fifteen Years On’ UK Const. L. Blog (29th March 2013) (available at http://ukconstitutionallaw.org)

[1] Unlike in Bosnia Herzegovina, where there have been systematic external attempts to dismantle the consociational arrangements, explored further in Christopher McCrudden and Brendan O’Leary, Courts and Consociations: Human Rights versus Power-Sharing (OUP, 2013).

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Filed under Devolution, Northern Ireland

Tagged as Consociationalism, Equality, Northern Ireland, Religious Schools

by Constitutional Law Group | March 26, 2013 · 4:57 pm

Mark Elliott: Devolution, the West Lothian Question, and the nature of constitutional reform in the United Kingdom

Earlier this week, the McKay Commission published its Report on the Consequences of Devolution for the House of Commons. The Commission’s terms of reference required it to determine “how the House of Commons might deal with legislation which affects only part of the United Kingdom, following the devolution of certain legislative powers to the Scottish Parliament, the Northern Ireland Assembly and the National Assembly for Wales”. In other words, the Commission was established to do that which Lord Irvine of Lairg (in)famously counselled against: viz to tackle the West Lothian Question. (Irvine reportedly said that the best thing to do about that question was to “stop asking it”.) There are various ways in which the question can be framed. The Commission, for its part, took the central issue to be the possibility that “MPs from outside England could help determine laws that apply in England, while MPs from England would have no reciprocal influence on laws outside England in policy fields for which the devolved institutions would now be responsible”.

The notion of reciprocity—or, more accurately, the lack of reciprocity that is a function of the UK’s asymmetric model of devolution—has always been at the heart of the West Lothian Question. Viewed more broadly, the fact that the West Lothian Question has arisen and remained unanswered for so long is reflective of a typically British approach to constitutional reform—one that treats the constitution as a work-in-progress, and which accepts disjointedness and inelegance as the price of pragmatism and speed. Within that tradition of constitutional reform, loose ends are an inevitable result of an underlying reluctance to confront big-picture questions. The McKay Commission’s approach to the West Lothian Question is of a piece with this dominant approach to constitutionalism in the UK, in that it proposes a practical solution that leaves the some fundamental questions unanswered.

The Commission’s guiding principle—and where that principle did not lead it

The Commission is clear that doing nothing should not be regarded as a viable option. In doing so, they rightly reject the view (advanced by Vernon Bogdanor in evidence to the Commission) that because England has a de facto predominance in the UK, it has “no need to beat the drum or blow the bugle”. Bogdanor argues that if England seeks to exploit its inherent dominance, it may strain the Union to “breaking point”. But this overlooks the potentially fissiparous effect of leaving the West Lothian Question hanging and thereby stoking a sense of disempowerment. This is a sphere in which perception matters: and the risk is that England may perceive itself to be (as Richard Rawlings, “Concordats of the Constitution” (2000) 116 LQR 257, put it) “the spectre at the feast”.

Instead, the Commission concludes that: “Decisions at the United Kingdom level having a separate and distinct effect for a component part of the United Kingdom should normally be taken only with the consent of a majority of the elected representatives for that part of the United Kingdom.” The Commission recommends that this principle be adopted by means of a resolution of the House of Commons. The question then became how this guiding principle should be given practical effect.

One obvious issue is that the “separate and distinct effect” formulation is undeniably vague. As Brigid Hadfield, “Devolution, Westminster and the English Question” [2005] PL 286, put it, “What … is an English law? If it cannot be defined with sufficient precision, then non-English MPs cannot fairly be precluded from voting on it.” By advocating the vaguer “separate and distinct effect” formulation, the Commission implicitly acknowledges that the matter is a complex one in relation to which judgement would have to exercised, rather than something that can be reduced to a clear-cut formula. But acknowledging complexity is not the same thing as resolving it, and the application of the “separate and distinct” criterion would doubtless excite controversy. Such definitional difficulties are not good reasons for shelving attempts to resolve the West Lothian Question (on the ground that it is all too difficult), but there is clearly further work to be done here.

Leaving to one side the inevitable questions of categorisation, how does the Commission propose that its guiding principle should be implemented? It rejects the creation of a separate English legislature, arguing that it might have a destabilising effect and would likely require wholesale constitutional reform. What, though, of the more modest proposal that only MPs representing English constituencies (or MPs representing English and Welsh constituencies) should be allowed to vote on laws likely to have a “separate and distinct effect” upon England (or upon England and Wales)?

The Commission rejects this option too. Its reasons for doing so are largely pragmatic. In particular, it fears that different “classes” of MPs would be created, and that the possibility of “deadlock” would arise: a Government might enjoy a majority in Parliament as a whole whilst lacking an outright majority of English MPs. Such a scenario is alien to the standard modus operandi of the UK system, in which (typically) a single party has an overall majority such that the Executive is able to drive its business through Parliament with (at least a degree of) impunity. In any event, the flip-side of the “deadlock” problem is arguably more profound. It concerns the dual functions ascribed to the post-devolution UK Parliament, whereby it is required to sustain not only the UK Government but also the de facto English Government. This is the sort of big-picture issue that the McKay Commission fails squarely to confront—a point that I develop below.

The Commission’s key proposals

Having rejected an English Parliament and “English votes for English laws” (along with various other options), the Commission concludes that its guiding principle should be implemented (first) by giving a voice to English (or English and Welsh) MPs in relation to relevant Bills, and (second) by making it politically difficult—but not impossible, either as a matter of law or parliamentary procedure—to enact relevant Bills in the absence of majority support on the part of relevant MPs.

As to the first point, the Report says that “views from England (or England-and-Wales) should be known before a final decision is made about something with a separate and distinct effect”. The Commission identifies a range of ways in which this might be achieved. One possibility is modelled on “legislative consent motions” whereby, under the Sewel convention, the consent of a devolved legislature may be sought to the enactment of UK legislation encroaching upon devolved competence. The McKay Commission envisages that an analogous procedure might be used in relation to UK legislation liable to have a “separate and distinct” effect upon England (or England and Wales), the suggestion being that a Grand Committee consisting of all MPs representing relevant constituencies would render an opinion (by means of a resolution) as to whether the (relevant parts of the) Bill should be proceeded with. Other options identified by the Commission include debating a motion “expressing  an opinion on that part of a bill relating separately and distinctly to England (or England-and-Wales)”, and the committal of relevant Bills to specially-constituted Public Bill Committees in which the party balance would reflect that which obtained in England (or England and Wales) rather than in the whole House. The Report does not express a firm conclusion as to which of these options should be taken forward; it identifies further questions that would need to be resolved, and suggests that the Government should put its preferred options to the House of Commons, and that a Select Committee should subsequently advise the House on points of detail.

So much for a distinctive English (or English and Welsh) “voice”. What if that voice (by a majority) opposes a Bill or relevant parts of it? Here, the Commission is very clear that MPs representing English (or English and Welsh) constituencies should not have a power of veto. It therefore rejects a “double-lock” procedure, under which it would be necessary, where relevant, to secure the approval not only of a majority of all MPs but also the approval of a majority of English (or English and Welsh) MPs. This reflects the Commission’s view that once the views of MPs representing particularly affected parts of the country have been heard and considered, “the UK majority should prevail, not least in order to retain the UK Government’s accountability at election time for decision-making during its time in office”.

However, at the same time as rejecting a “double-lock”, the Commission proposes a “double-count” procedure. This would involve making public not just the names of MPs who voted for and against the Bill, but also the constituencies they represent—with a view to determining whether relevant Bills (or provisions) attracted the support of a majority of MPs representing relevant constituencies. Although no legal or procedural consequences would ensue if a majority of the latter type were not secured, the Commission envisages that “if a government was seen to have failed to attract the support of a majority of MPs from England (or England-and-Wales) for business affecting those interests, it would be likely to sustain severe political damage”. The intention, therefore, is to disincentivise the use of MPs from unaffected (or less affected) parts of the country to push through legislation against the wishes of the majority of MPs representing particularly affected parts of the UK, whilst stopping short of preventing such a practice.

In preferring double-count over double-lock, the Commission cites its own guiding principle—that decisions “should normally be taken only with the consent of a majority of the elected representatives for that part of the United Kingdom” (emphasis added). The Commission’s defence of this position rests upon the principle of reciprocity. Devolved legislatures’ wishes with respect to incursions by Westminster into areas of devolved competence are normally respected (via the use of legislative consent motions under the Sewel convention), but are not necessarily respected (because Westminster could, at least in theory, override their wishes by asserting its legislative supremacy, which is undiminished by devolution).

By the same token, while English (or English and Welsh) MPs should be able to object to UK legislation likely to have “separate and distinct” effects upon England (or England and Wales), they should not thereby be able to veto such Bills. Instead, the consequences of oibjecting—like the consequences of a devolved legislature refusing to endorse a legislative consent motion—should play out on the political stage. The essence of the proposal, therefore, is to place (for these purposes) the group of MPs representing English (or English and Welsh) constituencies in a position vis-à-vis the (full) Westminster Parliament that is analogous to the position that devolved legislatures occupy in relation to Westminster. And, as the Commission notes, the analogy would likely be extended by the emergence of a constitutional convention corresponding to the Sewel convention. (It is worth noting in passing that the likely prescriptiveness of such a convention would mean that a double-lock requirement might well obtain in effect if not in form, just as the UK Parliament’s capacity unilaterally to interfere in devolved affairs is rendered essentially notional by the Sewel convention.)

The bigger picture

The analogy outlined above is persuasive as far as it goes—but, arguably, it does not go far enough because it takes insufficient account of two sets of distinctions and the relationship between them. First, there is the distinction between the twin roles performed by all Westminster-style legislatures: viz legislating, on the one hand, and determining the composition of and sustaining the Executive, on the other. Second, there is the distinction between the way in which the Westminster Parliament, on the one hand, and the devolved legislatures, on the other, discharge those roles. The McKay Commission’s focus is upon the way in which the Westminster Parliament discharges its first—i.e. legislative—function. But there is insufficient consideration of the second function—i.e. determining the composition of and sustaining the Executive.

The analogy between devolved legislatures and Westminster breaks down because, unlike the former, the latter has to determine the composition of and sustain a Janus-like Executive: one that functions both as the Government of the United Kingdom and as the Government of England. Within this distinction is concealed the West Lothian Question writ large. As conventionally framed, the West Lothian Question is concerned with micro-level (albeit important) questions concerning Parliament’s legislative function and its exercise in relation to individual Bills. But a macro-level question also arises. Because the Westminster Parliament must sustain not only the UK Executive but also the de facto English Executive, no amount of finessing of the procedure whereby legislation is enacted can get around the possibility that elections to the UK Parliament may yield an Executive that does not accurately reflect the wishes of voters in England (as refracted through Parliament as an electoral college). Indeed, the 2010 election is a case in point, in that the Conservative Party won an overall majority of English but not UK constituencies.

It is in this sense that the McKay Commission might be said to have failed fully to grasp the nettle. The underlying issue that is never fully grappled with is that the post-devolution Westminster Parliament is required to perform a set of functions that may be in tension with one another. And this raises questions about our constitutional architecture more profound than those addressed by the Commission. It does not, of course, follow that that particular nettle should be grasped. As noted at the outset of this post, a certain degree of messiness is an unavoidable byproduct of the approach that characterises constitutional reform in the UK—and history teaches that the results of that approach do not necessarily yield a constitution lacking workability or public acceptance.

Viewed thus, the McKay Commission’s proposed solution to the West Lothian Question is of a piece with the type of constitutionalism that generated the question in the first place. It provides a partial, practical workaround to a problem created by a disjointed set of constitutional changes. Whether all of this showcases the merits of the UK’s highly pragmatic approach to constitutional reform or reflects a failure to confront difficult and fundamental questions is a matter of perspective. In any event, the McKay Commission’s Report shows that Lord Irvine was wrong; the West Lothian Question needed to be asked, and we could do a lot worse than answer it by implementing the Commission’s proposals. It is likely, however, that the concern underpinning Irvine’s reluctance to engage with the question derived from his recognition that once one begins to pick away at the loose edges of the constitution, it may quickly begin to unravel. It follows, then, that while asking the West Lothian Question is not unwise, thinking about it too hard might well be discomforting.

Mark Elliott is Reader in Public Law at the Faculty of Law, University of Cambridge.

Suggested citation: M. Elliott, ‘Devolution, the West Lothian Question, and the nature of constitutional reform in the United Kingdom’ UK Const. L. Blog (26th March 2013) (available at http://ukconstitutionallaw.org)

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Filed under Devolution, England, Scotland, UK Parliament

Tagged as Devolution, England, McKay Report, Parliament, West Lothian Question

by Constitutional Law Group | March 25, 2013 · 9:08 am

Mike Gordon: Ministerial Responsibility After Huhne

Does the Chris Huhne affair have constitutional implications? In one sense, the answer to this question might be a rather obvious one. From a constitutional perspective – although certainly not from a political perspective – the case seems relatively uncontroversial.

Huhne resigned from his post as Secretary of State for Energy and Climate Change on 3^rd February 2012, initially to defend himself against a criminal charge of perverting the course of justice. Huhne, it was alleged, had passed penalty points for a speeding offence to his ex-wife, Vicky Pryce, to avoid a driving ban in 2003. This allegation was denied by Huhne until 4^th February 2013, when the former Minister entered a plea of guilty on the first day of his trial for this offence. Huhne subsequently resigned as MP for Eastleigh, and after Pryce was also convicted of perverting the course of justice for her part in the affair, both were sentenced to eight months imprisonment on 11^th March 2013.

There can be little doubt that it was necessary for Huhne to resign as Energy Secretary, especially since he has now admitted perverting the course of justice, a matter which was denied at the time of his resignation from the Cabinet. The critical tenets of the convention of individual ministerial responsibility are well established, and can be readily applied to this case. Adopting Brazier’s definition, a Minister is individually responsible for ‘(a) his private conduct, (b) his general conduct of his department, and (c) acts (or things left undone) by civil servants in his department’ (Constitutional Practice, 3^rd ed. (1999), 150).

That a Minister must, among other things, accept responsibility for his or her personal conduct is also made abundantly clear in the current iteration of the Ministerial Code (2010). By clause 1.1, ‘Ministers of the Crown are expected to behave in a way that upholds the highest standards of propriety’. By clause 1.2, Ministers must ‘protect the integrity of public life’ and ‘observe the Seven Principles of Public Life’, among which are ‘selflessness’, ‘integrity’, ‘openness’, ‘honesty’ and ‘leadership’. By clause 1.2(d), ‘Ministers should be as open as possible with Parliament and the public’. Indeed, the need for current Ministers to maintain the highest standards of conduct is made clear in the Prime Minister’s foreword, which poses a stark challenge for the coalition: ‘Our new government has a particular and historic responsibility: to rebuild confidence in our political system’.

In misleading the authorities about the identity of the driver who had committed the speeding offence in 2003, Huhne’s personal conduct fell below the standard which could be expected of a Minister. Whatever view is taken about the utility and proportionality of Huhne and Pryce’s subsequent conviction and jail sentences, Huhne had violated his constitutional obligations as a Minister, and it was right that he resigned from public office.

The Huhne affair might then be seen to raise few difficulties for constitutional lawyers. However, if we try to look at the underlying state of individual ministerial responsibility, as revealed by considering the Huhne case in its broader political-constitutional context, it may be seen as indicative of a wider trend. Or, put another way, perhaps the Huhne affair is of interest from a constitutional perspective because of what it was not about, rather than what it was.

Simon Jenkins, reacting to this case in an article in The Guardian, argues that Huhne and Pryce have been punished and condemned severely for their personal conduct because of a broader inability to hold those in public office to account for their official conduct. This is, Jenkins maintains, a manifestation of ‘a public craving for revenge on those in any sort of power’: ‘[t]he truth is that we have so few ways of making power answer for its misdeeds that we grab hold of any stick that will do. There is virtually no accountability for incompetence in office beyond the ballot’.

An assessment of the accuracy of Jenkins’ frank analysis of the relationship between the public’s reaction to poor personal conduct, and their inability to hold those wielding public power to account for poor official performance is, of course, well beyond the scope of this post. Nevertheless, it does provide a provocative vantage point from which to examine the extent to which the Huhne affair may be one in a line of such incidents.

If we look at the circumstances in which other senior Ministers have been forced to resign in the present Parliament, all seem to relate crucially to their personal conduct, as opposed to departmental failings. David Laws resigned as Chief Secretary to the Treasury in May 2010 as a result of his excessive expenses claims (although Laws is now back in government). Liam Fox resigned as Defence Secretary in October 2011 due to what Sir Gus O’Donnell’s report called a ‘blurring of lines’ between his private and official responsibilities, related to the position of his friend and ‘adviser’ Adam Werritty. And most recently, in October 2012 Andrew Mitchell resigned as Chief Whip as a result of allegations – consistently denied by Mitchell, and now the subject of a police investigation into whether he was the victim of a conspiracy – that he called a police officer a ‘pleb’.

And this cannot simply be because no departmental or official failings have occurred. While the selection of instances of government ‘errors’ may understandably be regarded as subjective, a number of examples might be identified, even though doubtlessly contestable – the ‘pausing’ of NHS reform; reversal of policy on the sale of forests; Jeremy Hunt’s handling of the News Corp bid for BSkyB; and the West Coast Mainline ‘fiasco’.

This may seem an unscientific approach to ministerial responsibility. It focuses only on one term of one government, and that of an exceptional coalition government at that. Yet it is unclear that coalition government would in principle provide vastly different challenges for individual ministerial responsibility as compared to those that would be experienced in single party government (in contrast with collective ministerial responsibility, which must be approached differently in a period of coalition).

Moreover, it might instinctively be thought that this trend is not new, and its emergence may be traced back through the New Labour years, the Conservative era before that, and even beyond (although Woodhouse indicates that only three out of ten resignations due to individual ministerial responsibility in the period 1982-1992 were the result of ‘private indiscretion’, in contrast with the period 1972-1982, in which the two senior ministerial resignations which occurred were both a result of private conduct; Ministers and Parliament (1994), 174). To try to sustain such a proposition would require testing in a much more substantial manner than is possible in a short blog post; yet even if a pattern was shown only to have developed or been amplified recently, the implications could still be usefully explored.

A further objection might be that political accountability is about much more than resignations, or the lack thereof. And indeed, this challenge has much force – resignation from ministerial office may be the ultimate sanction for poor conduct, but it is not the only one. Minsters may also be subsequently demoted to a more junior post, or removed from government entirely at a Cabinet reshuffle; be required to apologise to Parliament and/or members of the public; perhaps even the embarrassment suffered as a result of being criticised by the opposition or the press could be considered a ‘sanction’ of sorts (it is certainly an incentive to avoid poor performance).

Resignation is, however, the sanction which is most visible to citizens, and most straightforward to quantify. While this certainly cannot be considered to represent the entire spectrum of political accountability, nor can it be seen as the only measure of the effectiveness of such accountability, the frequency with which and circumstances in which resignations occur are still worthy of consideration in their own right.

As a result – and the tentative nature of the following comments is worth emphasising – if this brief survey does provisionally suggest the existence of a pattern, the Huhne affair may have constitutional implications after all. That is, it may be indicative of a trend that a Minister’s responsibility for his or her personal conduct is given greater emphasis than their responsibility for the actions of their department and/or civil servants. Or (and with apologies to George Orwell), while all varieties of individual ministerial responsibility are equal, some are more equal than others.

If this is the case, what are the consequences? Two key, interrelated questions seem to emerge: (1) is this a satisfactory position?; and (2) does our traditional conception of individual ministerial responsibility need to be revised? Those who believe that mechanisms and principles of political accountability are of critical importance in a constitutional order may find this position to be inadequate. An emphasis on personal conduct might be seen to distract attention from the crucial matter – holding those who exercise public power to account for the unacceptable performance of their official duties.

Yet the answers to these questions would be complex, and could raise issues relating to the essential nature of constitutional conventions. Are conventions simply descriptive of practice (representing what Marshall called a ‘positive morality’ of the constitution) or normative, in that they represent a vision of what the constitution ought to be (for Marshall, a ‘critical morality’; Constitutional Conventions (1984), 11-12)? If conventions are descriptive, perhaps the way we explain and understand individual ministerial responsibility does need to be revisited and/or augmented. If normative, however, perhaps to do so would seemingly endorse the trend, and thereby undermine political accountability.

Perhaps, however, the fundamental tenets of individual responsibility do not need to be reassessed, and the trend identified is simply a short-term function of the political character of the convention. As Finer famously argued, resignations only result ‘if the minister is yielding, his Prime Minister unbending, and his party is out for blood’ (‘The Individual Responsibility of Ministers’ (1956) Public Administration 377-396, 383). These conditions (which would also need to be supplemented in the modern era, in particular to take account of the role of the media) might be thought more likely to obtain in relation to personal conduct, which is inherently attributable to the Minister in question, than departmental failings, which are difficult both to establish and to associate definitively with a particular individual.

Or, alternatively, might these developments best be analysed in light of the purpose, or more accurately purposes, of individual ministerial responsibility? On the one hand, the convention serves to secure accountable government (at least in part) for citizens via Parliament. On the other hand, the convention serves to secure effective government (at least in part) for the Prime Minister, who can remove Ministers whose performance has been deficient. The potential tension between these purposes might remind us that different constitutional actors will have different objectives when individual responsibility is invoked, and that this convention alone, no matter how well defined, will therefore never be sufficient to achieve effective political accountability in a constitution.

Perhaps such change (if indeed this is change) in individual ministerial responsibility is to be expected. Or perhaps it is merely a symptom of a more fundamental set of issues relating to the state of political accountability in the UK. Whatever the case may be, if nothing else this post has aimed to demonstrate that the Huhne affair raises a range of questions about political accountability that merit further consideration. And given the attention of public lawyers seems to have been diverted from ministerial responsibility in recent years, renewed engagement with this crucial constitutional convention could prove to be of value.

Dr Mike Gordon is a Lecturer in Public Law at Liverpool Law School, University of Liverpool.

Suggested citation: M. Gordon, ‘ Ministerial Responsibility After Huhne’ UK Const. L. Blog (25th March 2013) (available at http://ukconstitutionallaw.org)

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Filed under UK Parliament

Tagged as Ministerial Code, Ministerial Responsibility

by Constitutional Law Group | March 21, 2013 · 5:13 pm

Helen Fenwick: The Report of the Bill of Rights Commission: disappointing Conservative expectations or fulfilling them?

The Commission delivered its Report – A UK Bill of Rights? – The Choice Before Us – to the Government in December 2012. It is an odd document, dominated by the lack of agreement in the Commission as to the role that any human rights’ instrument in Britain should play. That was unsurprising since at the inception of the Commission the Coalition partners appeared to want it to play two different roles – defending or attacking the HRA. From the very outset the Commission and the idea of a Bill of Rights (BoR) was relied upon by Cameron and other senior Conservatives to allay anger in the Conservative party, and among some voters, directed at decisions made under the Human Rights Act. David Cameron announced the Commission’s inception in March 2011 at Prime Ministers’ Questions as a reaction to criticism of the decision of the Supreme Court that sex offenders should be able to challenge their inclusion on the Sex Offenders’ register. He indicated that a BoR would address the concerns expressed (17.3.11; see the Telegraph in relation to R and Thompson v SSHD). The idea that a BoR could right the wrongs of the HRA – would provide a panacea for the HRA’s ills – had apparently been embedded in the Conservative party psyche for some years: David Cameron in a speech to the Centre for Policy Studies in 2006 Balancing freedom and security – A modern British Bill of Rights said that the HRA should be repealed: “….The Human Rights Act has a damaging impact on our ability to protect our society against terrorism…. . I am today committing my Party to work towards the production of a Modern Bill of Rights”. In contrast, the 2010 Liberal Democrat election manifesto promised to “Ensure that everyone has the same protections under the law by protecting the Human Rights Act.”

This piece will suggest that the ‘panacea’ notion was always an illusion. It will argue that the polarised nature of the Commission in political terms, and its remit, inevitably meant that Cameron’s apparent expectations of the goods its Report would deliver were always likely to be disappointed, but that its key proposal – that there should be a new BoR – might prove advantageous in future for the Conservative party.

The majority proposal of a new Bill of Rights

The Commission was obviously constrained by its terms of reference, which most significantly included the following: to “investigate the creation of a UK Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in UK law, and protects and extend our liberties” (see Ministry of Justice18.3.11). If some senior Conservatives considered that the BoR could be used to restrict rights, that remit meant that it was obviously unlikely to deliver that result.

The Commission found that the strongest argument, and the one advanced by the largest number of their respondents, was that the UK already has a bill of rights in the shape of the HRA (A UK Bill of Rights? – The Choice Before Us, Overview, para 68). But, in a decision criticised by the minority (Prof Philippe Sands QC and Baroness Helena Kennedy) the majority in the Commission did not accept that therefore enactment of a new Bill of Rights was unnecessary since: ‘there is a lack of public understanding and ‘ownership’ of the Human Rights Act’ (Report, para 80) which they found was ‘equally, if not even more, evident in relation to the European Convention on Human Rights and the European Court of Human Rights’. In other words, the majority did not accept that the HRA was already playing the role of a BoR and could just continue to do so.

The majority in the Commission did not think that a public education programme about the HRA (para 7.36) or ECHR was the answer because public perceptions were not likely to change (para 12.8); so they found that there was a strong argument for a fresh beginning in the form of a new BoR (para 12.7), but without recommending repeal of the HRA. Seven out of the nine Commissioners therefore recommended introduction of a Bill of Rights: “a majority of members believe that the present position is unlikely to be a stable one. Some of the voices both for and against the current structures are now so strident, and public debate so polarised, that there is a strong argument for a fresh beginning.” (para 84) Two of the Liberal-Democrat nominees in the minority, Helena Kennedy and Philippe Sands, in their separate paper in Vol 1, disagreed with the proposal for a new BoR; they also disagreed with the majority on the issue of support for the HRA and pointed out that the current arrangements were more strongly supported in Wales, Scotland and Northern Ireland than in England. But although the majority of the Commission gave support to the introduction of a new BoR (para 12.7), the role it should play in terms of creating a ‘fresh beginning’ remained unclear, as discussed below.

A polarised Report

The uneasy compromise reached between the two parties in setting up the Commission was reflected in its membership – split between nominees from each party – and in the fragmented nature of the Report itself, which contains no less than eight separate papers by Commission members or groups of members, dwarfing the sections of the Report that the majority managed to agree on. Indeed, it would not be too much of an exaggeration to say that seeking to discover any majority proposals in the Chapters in Volume 1 among the mass of descriptive material, discussion of the views of respondents, and the separate papers, is a strangely onerous task. There are two volumes running to 514 pages combined, but aside from the short ‘over view’ section at the beginning of Volume 1, it is hard to find more than about 15 pages in the body of the Report dealing with the proposals, and even those pages are largely concerned with the views of the respondents. Clearly, lack of unanimity meant that the Commission had to rely on majority views from respondents. However, the majority departed from those views in relation to the key proposal that there should be a new BoR rather than relying on the HRA as a BoR.

The separate papers reveal that the ideas of the Commission members as to the role a Bill of Rights should play are, overall, not reconcilable with each other. As Helena Kennedy and Philippe Sands put it in their separate paper: “the fault lines amongst us are real and deep”. On the one hand, a number of the Conservative nominees, reflecting views expressed at various times by Cameron, Grieve and May, appear to consider that it should be utilised to enhance Parliamentary autonomy and escape from the ‘absolutism’ of the ECHR, or from the ECHR altogether; on the other, the view of the Liberal Democrat nominees could be characterised as being that rights’ protection should be enhanced or maintained, either by means of a new BoR or via the HRA.

Baroness Kennedy and Philippe Sands’ minority paper entitled “In Defence of Rights” opposed the idea of a new BoR, but said: “We remain open to the idea of a UK Bill of Right were we to be satisfied that it carried no risk of decoupling the UK from the Convention”, a proposition they were not prepared to be associated with. They did not support a new BoR because their work on the Commission had “alerted [them] to what they believe is the real possibility that some people support a UK Bill of Rights as a path towards withdrawal from the European Convention” – a view expressed by a number of their colleagues on the Commission (ie certain of the Conservative nominees) (para 12.5). Lord Faulks QC and Jonathan Fisher QC in a paper entitled ‘Unfinished Business’ found: “In the period since our appointment as members of the Commission on a Bill of Rights it has become increasingly clear that a key issue, if not the key issue, has not been adequately considered by the Commission and reflected in the terms of its report. The issue concerns how the UK should respond to the judicially activist approach taken by the European Court of Human Rights to the ECHR over the last 30 years”. They concluded that “there are strong arguments that the cause of human rights, both in the UK and internationally, would be better served by withdrawal from the Convention and the enactment of a domestic Bill of Rights.”

Given such polarisation of ideas in the Commission as to the role of the HRA, ECHR and any new BoR, it is unsurprising that the ideas put forward for the content of any BoR were highly tentative and cautious, and that proposals for a BoR, as opposed to the HRA, put forward at various points in pursuit of the ‘BoR as panacea’ notion in particular by Dominic Grieve, did not find their way into the Commission’s proposals.

Would the ‘proposals’ if realised in a BoR create a difference from the HRA?

While the majority on the Commission agreed that there should be a new BoR, they were clearly unable to agree on its content. So the discussion below struggles to identify any clear recommendations from the majority that would differentiate such a BoR from the HRA. In general there are no ‘proposals’ in the sense of firm recommendations – the majority would only go so far as to identify matters worthy of consideration if a BoR was ever in contemplation.

Enforcement mechanisms and the impact of the Strasbourg jurisprudence

The problem, from the anti-HRA viewpoint espoused by a number of senior Conservatives, is partly that the interpretations of the Convention rights at Strasbourg on a number of contentious issues – in particular prisoners’ voting rights, aspects of counter-terrorism law and deportation of non-citizens – are ones that are not assented to by the Westminster Parliament, or in some instances by judges in the House of Lords/Supreme Court, (SSHD v AF (no 3) (2009)) but which may have effect in UK law (see eg Theresa May’s speech to the conservative party conference in Oct 2011) or in effect constrain Parliament (eg compare PM Qs 24^th Oct 2012 cols 922-3 with the Voting Eligibility (Prisoners) Draft Bill Nov 2012, Cm 8499).

From this viewpoint the effects of ss2 and 3 HRA combined, or of ss2 and 6, are part of the problem. S2 HRA can operate in conjunction with ss3 or 6 to allow a Strasbourg decision, that happens to bear on a matter currently in front of a domestic court, to have legal effect in domestic law (as occurred in AF no3), before the executive has a chance to react to the decision. While the government is bound under Article 46 ECHR by final Strasbourg decisions, the executive might well prefer to delay and procrastinate, or to bring forward legislation to Parliament which might represent a more minimal response to the Strasbourg decision than court-based findings would or might.

Senior Conservatives have proposed changes to s2 HRA to create greater leeway for courts to depart from Strasbourg, presumably partly with a view to creating more ‘wriggle-room’ in relation to the Article 46 duty. In 2009 Dominic Grieve said that the equivalent of s2 HRA in a BoR should allow or require the domestic courts to take a different stance from Strasbourg in a wider range of circumstances than those currently accepted. Grieve has argued that the HRA had been “interpreted as requiring a degree of deference to Strasbourg that I believe was and should be neither required nor intended”. Instead, he said, a new bill of rights, which would replace the Human Rights Act, would make it clear that British courts could allow for UK common law to take precedence over decisions by the Strasbourg Court: “We would want to reword it to emphasise the leeway of our national courts to have regard to our own national jurisprudence and traditions and to other common law precedents while still acknowledging the relevance of Strasbourg court decisions” (Grieve Middle Temple Lecture, 2009). He has also said: ‘there is no duty in the ECHR to follow Strasbourg case-law’ (Conservativehome blog 2009). Commission member Anthony Speaight said on this in evidence to the Constitutional Reform Select Committee in 2011: ‘the court…makes decisions that something or other is a human right that would not by the average Briton be regarded as a human right….’. Grieve’s key speech on the ECHR in 2011 targeted s2 HRA as a failing section on the basis that it allows Strasbourg interpretations of the ECHR too much purchase in domestic law. He has also said on s3 that it is wrong that courts should ‘have power to stand a statute on its head’ (Conservativehome blog 2009).

Unsurprisingly, the Commission’s proposals did not meet these concerns. In seeking to interpret the Convention rights under the Human Rights Act, the domestic judiciary must merely ‘take into account’ any relevant Strasbourg jurisprudence, under s2; it was clearly the intention underlying s2 that the jurisprudence would not be viewed as, in effect, binding (see Klug and Wilbore ‘Follow or Lead?’ (2010) 6 EHRLR 621). But the stance taken towards s2 in the jurisprudence overall bears little relation to the wording it employs. It was found in Ullah in the House of Lords that the judges should follow any clear and constant jurisprudence of the Strasbourg court, a finding generally referred to as ‘the mirror principle’, (eg Lewis ‘The European Ceiling on Human Rights’ [2007] PL 720) which until recently remained the dominant approach (Manchester CC v Pinnock (2010)). On the other hand, in R v Horncastle (2010) the Supreme Court considered that departure even from clear jurisprudence was exceptionally acceptable under s2 HRA, as Parliament originally intended. The Commission noted that there was a substantial body of opinion that wanted to enable it to be made clearer that courts were free to depart from Strasbourg (at paras 56 and 57). The Commission noted that JUSTICE had reflected this position: “there has been a longstanding debate on whether section 2 [of the Human Rights Act] requires our judges to be bound by the jurisprudence of the European Court of Human Rights. Although there is a clear line of case law which suggests our judges consider themselves so bound, there is nothing in the Human Rights Act 1998 which requires this approach…The judges themselves appear to be moving away from this unduly restrictive approach…Rightly we consider that the language in the Human Rights Act 1998 strikes an appropriate balance between respect for the boundaries of the Convention and encouragement of the development of independent domestic rights jurisprudence.” (para 56)

But although, as JUSTICE noted, it cannot be said that the judges have confined themselves only to ‘taking account’ of the Strasbourg jurisprudence, the Commission did not propose a change to the position under s2: ‘There was also a clear majority in favour of maintaining the requirement in the Human Rights Act on UK courts to ‘take into account’ relevant judgments of the European Court of Human Rights with three quarters of those responding on this issue wanting to maintain the current formulation. However, a number of those taking this view did so on the basis that our courts were now correctly interpreting the Act’s wording in this respect having failed on some occasions to do so in the past’ (para 58).

The Commission proposals were somewhat equivocal as to the key current domestic ECHR enforcement mechanism in s6 HRA, recommending in its ‘over-view’ that consideration should be given to broadening the definition of ‘public authority’ so that private sector organisations providing public services would count as ‘public authorities’ (para 97) although in the Conclusions chapter it merely stated that “the current definition of a public authority within the Human Rights Act should be looked at again if a UK Bill of Rights were to be taken forward” (para 12.26).

Grieve had proposed that the s10 HRA fast-track procedure for responding to a s4 declaration should be abolished (British Academy Forum (2010)) which would be one means of limiting the impact of s4, which has come to be viewed as creating a de facto obligation upon the executive to act, even though as a matter of law a s4 declaration can be disregarded. But the Commission proposed no change to ss4 or 10, finding that s4 had performed successfully (para 12.25).

Overall, no ideas for significant changes to the interpretation and implementation of the rights in the UK were put forward by the majority to warrant consideration in relation to any BoR. The Commission concluded that the mechanisms in any UK Bill of Rights should be broadly similar to those in the Human Rights Act (para 95).

Changes to the listed rights?

Any aim of senior Conservatives of seeking to weaken the ties to Strasbourg via a BoR would not be realised via changes to the listed rights, as far as this Report is concerned, which was no doubt inevitable, given the Commission’s remit. The Commission said that it did not oppose the concept of additional rights in a BoR in principle (para 12.18). When listed rights were referred to in the Commission’s proposals, the reference was, it appears, to the list of ECHR rights in Sched 1 HRA (para 12.11) possibly with some additions. The Commission considered the inclusion of a right to jury trial, but the Report found that there were problems regarding the forms that a right to trial by jury could take (paras 8.41, 8.44). It also looked at the possible inclusion of rights to administrative justice and the creation of limits on the power of the state to impose administrative sanctions without due process of law, such as fines for speeding (British Academy Forum (2010)). The Commission merely concluded that consideration should be given to inclusion of such rights (para 8.44), if there was to be a BoR.

The free-standing anti-discrimination Protocol, Protocol 12 ECHR has not been ratified by the UK and there are no indications at present that the current government intends to ratify it. None of the speeches of Conservative spokespersons before or after the 2010 Election made mention of the possibility of protecting the further rights under Protocol 12. The Commission found that if a BoR was under consideration in future “the most obvious candidate for inclusion” was Protocol 12 and the “right to equality and non-discrimination currently enshrined in the Equality Act 2010″ (paras 8.15, 8.23 and 91).

Various groups put forward arguments to the Commission for specific additions to the current HRA Sched 1 rights, such as the inclusion of certain socio-economic rights (eg Children’s Rights Alliance advocating the inclusion of children’s rights). But the Commission did not recommend that particular “socio-economic” or environmental rights should be added to a bill of rights: “All other things being equal a majority of members believe that such choices are better made by Parliaments rather than judges.” (paras 91and 8.21) Similarly the Report noted that “Approaching 100 respondents to our consultations were in favour of the incorporation into any UK Bill of Rights of rights contained in international instruments which the UK has already signed but not fully incorporated into our domestic law” (para 8.45), but did not make a proposal that such rights should be included.

So in terms of the list of rights covered, any Bill of Rights based on these proposals could look something like an ‘HRA plus’ (term used by JCHR), but not plus much. Chapter 8 of Vol 1, which considered these rights, was concerned more with the views of respondents to the Commission, than with clear proposals.

The question whether a BoR should give greater guidance to judges on balancing competing rights was answered in the negative: ‘On balance our conclusion, in line with that of the majority of respondents on this issue, is that if there were to be a UK Bill of Rights the balancing of competing rights within such a Bill, where such occurred, would be better left to the courts not least because of their ability to weigh the competing considerations against the facts of the particular case before them.’ (para 8.51)

The Commission considered that changes to the wording used to express the rights could be employed to create a distinctively ‘British feel’ to the instrument in order to address the public’s lack of allegiance to the HRA. It was not proposed that the wording of the rights themselves should see any radical change but the Commission considered that if a BoR was under consideration it would be “desirable in principle” that its wording should reflect “the distinctive history and heritage of the countries within the United Kingdom.” (para 86 and 8.8)

Relationship between the ‘proposals’ and the concerns about the HRA identified by the majority

One of the firmer conclusions of the majority was that “the key argument is the need to create greater public ownership of a UK Bill of Rights than currently attaches to the Human Rights Act” (para 12.11). However, the proposals that emerged would be unlikely, if realised in practice, to address that need, taking account of the context – the apparently deep public dissatisfaction with the HRA. They are so modest and cautious (even leaving aside the devolution context which clearly provided a problematic back-drop to the Commission’s work) (Chap 12, 12.3, 12.4 and Chap 9) that they might be said to amount in effect to a proposal to re-badge the HRA in a BoR, despite the Commission’s acceptance that it has become discredited in the eyes of the public. A key question, unexplored in the Report, is – why is there dissatisfaction with the HRA? Of course there was no public information campaign prior to its introduction, leaving a vacuum which created room for a narrative hostile to the HRA to take hold. Lord Lester, speaking as a member of the Commission, has attributed the nature of that narrative to a prolonged media attack on the HRA which has at bottom the purpose of protecting their own commercial interests; he said on this issue to the Political and Constitutional Reform Committee in 2011: “some sections of the media—self-interested, God bless them—have campaigned vigorously against the Human Rights Act, totally unscrupulously, completely unfairly, mischaracterising everything as being a result of the Human Rights Act…” (Answer to Q 59). He indicated that the hostility might spring from restrictions “on their right to invade personal privacy” created by the HRA (Answer to Q 65).

For example, the idea – part of the media campaign against the HRA – that human rights’ concerns stand in the way of Britain’s ability to combat terrorism, has found a particular focus in relation to Abu Qatada (see eg The Sun 15.4.12). David Cameron’s speech to the Parliamentary Assembly of the Council of Europe in 2012, during the UK’s six month chairmanship of the Council, reiterated the theme of seeking enhanced subsidiarity as a key reform. He referenced counter-terrorism and prisoners’ voting rights as examples of issues on which the Court should be very slow to intervene, once democratic debate on the issue and full scrutiny in national courts, taking the Convention into account, had occurred. Referencing the Qatada case as illustrating the need for reform, he said ‘we have gone through all reasonable national processes…yet we are still unable to deport [or detain him]’. Thus, parts of the media and senior members of the Conservative party have taken the stance – possibly coincidentally – that the Human Rights Act makes dealing with suspected terrorists harder, putting lives and national security at risk; and the lines between the actual impact of the HRA in this respect in legal terms, and what would occur in any event under the ECHR at the international level, have become blurred, perhaps intentionally.

Thus if a BoR was to be introduced, based on these proposals, which would play a role very similar to that of the HRA, it would appear probable that parts of the media might attack it as a merely re-badged HRA, leading again to public dissatisfaction with the new BoR. But conversely and unpalatably it might appear to follow that if a new BoR was introduced post-2015 under a Conservative government, not based on these proposals, and disassociated from the ECHR, it would be welcomed by parts of the media, meaning that it might be more likely to command public acceptance, at least in England.

Conclusions

It is concluded that there was never any real basis for considering that the Commission might propose a BoR which would answer to the expectations of a BoR expressed by Cameron in 2011. Clearly, the split in nominees, on party lines, and the Commission’s remit, always suggested that the proposals for a BoR that eventually emerged were not likely to do so. It would appear that the role a number of Conservatives apparently wanted the BoR to play, and the proposals likely to emerge from that Commission, were never likely to cohere with each other. It seems unlikely that there was ever any real expectation from the point of view of the Conservative leadership that the proposals would lead to a new BoR that might cure the ills of the HRA. Thus, deployment of the notion of a BoR for the last few years as a panacea for the ills of the HRA has arguably always been an illusion, designed to calm right-wing concerns about non-repeal of the HRA, since repeal was almost certainly impossible in the context of the Coalition. In a much-reported speech Theresa May recently made it clear in relation to the Qatada saga that repeal of the HRA and withdrawal from the ECHR would be on the table if the Conservatives gained a majority in 2015. “When Strasbourg constantly moves the goalposts and prevents the deportation of dangerous men like Abu Qatada, we have to ask ourselves, to what end are we signatories to the Convention?” she said. No mention was made of the Commission’s Report on the BoR: the role Cameron had previously outlined for it appears to have been quietly forgotten. In other words, senior Conservatives seem to be distancing themselves from this Report, unsurprisingly, and the debate appears to be shifting from the ills of the HRA to those of the ECHR at Strasbourg.

This piece has argued that the Commission did fulfil the role of simultaneously preventing conflict between the Coalition partners over the HRA for a time and calming Conservative concerns regarding decisions under the HRA. But in so far as there were real expectations that a BoR would provide an answer to the ‘problem’ of the HRA, the Report might appear to be disappointment to the Conservative leadership since if its proposals (or ideas it put forward that could warrant consideration) were realised in practice it clearly would not provide the panacea apparently hoped for. But on the other hand, the majority of the Commission did propose a new Bill of Rights, creating a momentum behind the BoR idea which might be advantageous post-2015 to a Conservative government if one is returned and pushes forward with the proposals recently floated by Theresa May regarding the HRA and ECHR. The proposal of a BoR could help to pave the way to repeal of the HRA; it might allay concerns that Britain would become ‘a pariah state’ (Dominic Grieve) if it withdrew from the ECHR, and the BoR itself could act as a Trojan horse in terms of restriction of rights (Michael Fordam QC Report, para 7.32).

Helen Fenwick is Professor of Law at The University of Durham.

Suggested citation: H. Fenwick, ‘The Report of the Bill of Rights Commission: disappointing Conservative expectations or fulfilling them?’ UK Const. L. Blog (21st March 2013) (available at http://ukconstitutionallaw.org)

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Filed under Human rights

Tagged as European Court of Human RIghts, Human Rights Act, Human Rights Commission

by Constitutional Law Group | · 8:01 am

Aileen McHarg: The Leveson Report, the Royal Charter and the Scottish Parliament: A Reply to Jamieson

Iain Jamieson’s earlier post argues that the ability of the Scottish Parliament to implement its own model of press regulation in response to the Leveson Report has effectively been ousted by the UK government’s proposal to establish a UK-wide system of press regulation by Royal Charter. I would take issue with two aspects of his analysis.

First, Jamieson claims that, since the provisions of the proposed Royal Charter will be entrenched by clause 92 of the Enterprise and Regulatory Reform Bill, which applies to Scotland, the Scottish Parliament cannot legislate to amend the Royal Charter or provide that it should not apply to Scotland. Clause 92 provides that the Charter cannot be amended except in accordance with the procedure laid out in the Charter itself (two thirds majority of each House). As Jacob Rowbottom has argued on this blog, the degree of entrenchment actually provided by this device is limited because clause 92 can itself be repealed or amended by subsequent UK legislation with no special majority.

To argue that the Scottish Parliament will nevertheless bound be by clause 92 therefore requires the further claim that, because clause 92 (however indirectly) ‘occupies the field’ in relation to press regulation, the Scotland Act 1998 will be impliedly repealed insofar as it devolves power to legislate on that issue to the Scottish Parliament. There are at least three ways of responding to this implied repeal argument, all of which lead to the conclusion that the Scottish Parliament will not in fact be bound by clause 92.

The first, and most speculative, response would be to rely on Laws LJ’s obiter dictum in Thoburn to the effect that, since the Scotland Act is a constitutional statute, it cannot be impliedly repealed. This would mean that the only way in which the Scottish Parliament’s legislative competence can be reduced would be through express amendment via primary legislation or a section 30 order, either of which would require (by convention, in the former case, and by statute, in the latter) the consent of the Scottish Parliament.

It is, however, unnecessary to adopt such a heterodox approach. A second, more conventional, approach would be to accept that the Scotland Act may be impliedly repealed, but to argue, as Barber and Young have done (‘The Rise of Prospective Henry VIII Clauses and Their Implications for Sovereignty’ [2003] PL 112, pp 112-6), that a statute can only be impliedly repealed by a subsequent statute on the same subject matter, not merely by a later conflicting statutory norm. Since the Enterprise and Regulatory Reform Bill does not deal with the same subject matter as the Scotland Act (the division between reserved and devolved legislative competences), it cannot impliedly repeal the transfer of power to the Scottish Parliament effected by the Scotland Act even if a norm contained within it or flowing from it for the time being ‘occupies the field’ of a particular devolved competence. It would, on this analysis, still be open to the Scottish Parliament to assert its legislative competence in relation to press regulation and repeal (expressly or impliedly) the provisions contained in clause 92.

A third, even more conventional approach, would lead to the same conclusion. This would be to accept that a statutory provision can be impliedly repealed by a later inconsistent statutory norm, even if the subject matter of the two statutes is not identical. This view, however, requires a more nuanced approach to when such a conflict arises. In relation to the Scotland Act 1998, for instance, it may be argued that the transfer of legislative competence in devolved areas to the Scottish Parliament is not inconsistent with (and therefore not impliedly repealed by) later UK legislation on a devolved matter because the Scotland Act itself, in s.28(7) expressly envisages that such a situation may occur. This approach suggests that the Scotland Act, properly understood, involves a sharing of legislative power between the UK and Scottish Parliaments, and that the latest norm on a particular devolved matter will prevail irrespective of the Parliament from which it emanates. This analysis would appear to be the one which best fits the post-devolution legislative practice, where the Scottish Parliament has regularly consented to allow the UK Parliament to legislate on its behalf, but has on some occasions subsequently amended such legislation.

The second point which arises out of Jamieson’s blog concerns whether the UK government is legally or constitutionally entitled to impose a system of press regulation on Scotland via the royal prerogative. The constitutional position, as set out in written answer by Tony Blair on 30 June 1999, is that where the exercise of prerogative powers relates to a matter within devolved competence, it is for the First Minister rather than Ministers of the Crown to advise the Queen. The situation is slightly different in relation to business of the Privy Council, such as grant or amendment of a Royal Charter, because it is the Privy Council as a whole rather than a particular minister which advises the Queen. Nevertheless, the written answer states that:

‘the advice in relation to a particular matter which the Privy Council offers to Her Majesty is in many instances based, either by virtue of statutory provision but more often by convention, on advice or information provided to the Privy Council by one or more particular Ministers of the Crown as the Privy Counsellor with the principal interest in that matter.’

It goes on to state that, in areas of devolved competence, the Privy Counsellor with the principal interest would be the First Minister (who is a member of the Privy Council).

It is not clear from these provisions whether the Privy Council as a whole is entitled to depart from the advice of the principal minister. Where there is a conflict of views between members of the same administration it may perhaps be argued that the majority view should prevail. However, in the case of a conflict between the view of the First Minister and other Privy Counsellors representing the UK government, there is a strong case (for the reasons that Jamieson outlines) for saying that it should not.

Given that the question of who should advise the monarch on the exercise of the royal prerogative is a matter of convention rather than law, it may be difficult to argue that the UK government would be acting illegally if the Privy Council were to recommend the adoption of a system of press regulation applying throughout the UK in the face of Scottish opposition. As a matter of constitutional morality, though, it is hard to avoid the conclusion that to treat the design of a new UK-wide system of press regulation as a matter for negotiation purely between the main parties in the UK Parliament is constitutionally improper.

Contrary to Jamieson, therefore, I would argue that just because the UK government has chosen a regulatory vehicle which manages to avoid the application of the Sewel Convention, it does not thereby follow that the Scottish Parliament is compelled to accept it or deprived of its competence to legislate for a different system of press regulation in Scotland.

(I am grateful to Chris Himsworth for his very helpful comments on this note and particularly for alerting me to the Blair written answer.)

Aileen McHarg is Professor of Public Law at the University of Strathclyde.

Suggested citation: A. McHarg, ‘The Leveson Report, the Royal Charter and the Scottish Parliament: A Reply to Jamieson’ UK Const. L. Blog (21st March 2013) (available at http://ukconstitutionallaw.org)

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Filed under Devolution, Scotland

Tagged as Leveson Inquiry, Press Freedom, Scotland, Scottish Parliament's Jurisdiction, Sewel Convention

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