Author Archives: Constitutional Law Group

Joseph Tomlinson: Ambitions and Constraints – A Report on the Second Conference on the Teaching of Public Law (2014)

JoeFollowing on from the success of last year’s inaugural Conference on the Teaching of Public Law at the University of Manchester, City Law School ably assumed hosting duties to allow the discussions to be advanced further. The enthusiasm that was so evident at last year’s event showed no sign of waning a year on, as interesting perspectives from contributors and stimulating discussion from attendees continued throughout the day’s four panel sessions. This post briefly summarises some of the key points that were raised by contributors and during discussions.

Public Law in Changing Times: Challenges Ahead

(Panel: Nick Barber, Oxford; Prof. Martin Loughlin, LSE; Dr Alison Young, Oxford; Prof. Maurice Sunkin, Essex; Dr Javier Oliva (Chair), Manchester)

The first panel was tasked with identifying what challenges teachers of public law may face in coming years. Alison Young began with comments about the nature of public law as a subject and the effects that has on the teaching of public law. A distinction was drawn between public law and other areas of law, the former being the sum of lots of interwoven ideas and the latter capable of being comprehended in a more linear, step-by-step fashion. One problem flowing from this is the difficultly of knowing the best ‘way in’ to the subject for students. In the face of the teaching challenge presented by the nature of the subject, it was noted that care must be taken to avoid a retreat into either an overly doctrinal or overly theoretical approach – both of which can lead to students attempting to just ‘learn five things about the rule of law’ for exam purposes. Continuing with the theme of how the nature of public law affects how it is taught, Martin Loughlin offered his view that public law is, in essence, a ‘label in search of a concept.’ Britain’s historical lack of a distinct public law means that, in contrast to continental public law systems, we lack clear concepts of central features within the subject. The absence of such conceptual clarity can translate into difficulties in conveying the subject to students.

Nick Barber followed those comments about the nature of the discipline by attempting to unpack the oft-heard marker’s complaint that students struggle to ‘make arguments’ or ‘lack creativity’ in assessments. He highlighted two potential deficiencies in the teaching of public law that may contribute to this complaint being so frequently made. First, was the issue of ‘coverage’: the ‘tell them about public law cases stuff’ is largely done well but the academic interest in judicial reasoning can become ‘fetishistic’ and exist at the expense of, amongst other things, looking at how institutions work, the empowering capabilities of public law, the processes of Parliament, local government, devolution and perhaps even statutes. Second, it was suggested that more could be done to equip students with the ‘tools’ to make arguments. Providing students with training on understanding and deploying statistics was suggested as one way to achieve this sort of argumentative creativity. As could the introduction of more political theory to public law courses. Overall, more could be done to give students a holistic view of the stuff that public law is made of and to provide students with the ability to criticise the content of the law.

Maurice Sunkin concluded the first panel by placing the teaching of public law in the broader contexts of legal education and university education – both of which are landscapes that are seemingly ever changing. Whilst it is likely to remain the case that all students of law will require a grasp of the fundamentals of public law, it will be of interest to see how this fits into broader institutional demands and the demands of the ‘consumer’ student. To that end, it was suggested that in the future there may be greater diversity in what is taught and how.

In discussion, it was suggested, in relation to the problems stemming from teaching a subject that can be more confusing than most on a law degree, that complexity may be a good thing when that complexity is harnessed and made constructive instead of destructive. We were also reminded of the need to be realistic about what can be covered in a first year public law course. Aside from time constraints, public law may be the first substantive law subject that students tackle and public law’s core concepts are more difficult to grasp than many of the other concepts encountered in the rest of a typical first year’s academic diet. These sort of pragmatic considerations naturally pose challenges in relation to how much of a role such things as normative political philosophy and statistics can play in a foundational undergraduate public law course public law, though such things may justify a place as part of the broader law curriculum.

Research-led Teaching

(Panel: Prof. Paul Craig, Oxford; Merris Amos, QMUL; Prof. Roger Masterman, Durham; Dr Kirsty Hughes, Cambridge; Dr Ioannis Kalpouzos (Chair), City)

The second panel saw contributors traverse the relationship between research and teaching. Paul Craig commenced the panel’s contributions on the same realistic note upon which the first panel concluded by observing that how much research-led teaching can occur depends primarily upon how much choice one has in what and how one teaches. If the opportunity exists, there is the possibility of translating a specialisation into a course – students may even recognise and appreciate the genuine interest of the teacher and feel inclined to embrace the subject more than they otherwise would. However, courses built on specialisations may be time-consuming to assemble, tricky to get approved and may only be a short-term fixture if centred on an individual’s particular interests and expertise. The solution may be found in building individual research interests into existing modules.

Merris Amos, considering the ways in which teaching can assist research, noted how gaps in teaching materials can provide a fruitful source of research ideas. Bringing research interests into the classroom can also allow for genuinely valuable student input, with a diverse student body drawing upon experiences and offering perspectives the public law teacher/researcher will not necessarily have considered. Using research activities to curate events-led teaching can also be useful but there is, of course, always the risk that events can overtake during teaching. Roger Masterman followed up with a contribution that focused on how providing students with opportunities to be autonomous researchers themselves possesses the virtue of creating more independent and critical students. Making the student the researcher also often leads to the student assuming increased ownership of their work. It may, therefore, ultimately have the effect of producing better skilled and more-employable graduates. Providing the student with opportunities to undertake research can be achieved through dissertations or other modules that place research at their core.

Kirsty Hughes, in a neat conclusion to the contributions from panel two, highlighted how research and teaching can often interact to the benefit of both. Transmitting the ideas involved in your research to students can be a good means of understanding how to transmit those same ideas effectively in your research. It may also be worthwhile – without having to circulate any drafts or other similar material – to introduce parts of your research into small group discussions. A key point was also made on the value of (teaching) textbooks as research. Such textbooks can heavily influence the shape and structure of the field yet the current REF approach to textbooks does not incentivize their production (and could even be seen to discourage their production).

In discussion, the assumption that teaching necessarily takes an academic away from their research was squarely challenged – research and teaching in public law can, in many ways, be made to work in tandem. It was noted that the interaction between the two may even become more of a necessity as student fees start to play a larger role in funding research, and students might start to ask what benefit they gain from this activity.

Assessment and Ph.D Students in Public Law

(Prof. Robert Thomas, Manchester; Dr Javier Oliva, Manchester; Ann Lyon, Plymouth; Jack Simson Caird, QMUL; Craig Prescott, KCL; Dr John Stanton (Chair), City)

Ann Lyon began panel three with a general overview of the range of assessment methods in public law – which often fit into a part of a wider assessment regime at institutions – and the familiar pros and cons of each assessment method.

Robert Thomas and Javier Oliva jointly tackled the topic of PhDs in public law. Robert started by noting the importance of PhDs in public law. Public law PhDs, of course, possess inherent importance in contributing to public law scholarship, but they also serve to launch the careers of the next generation of public law scholars (a PhD now being seen as highly desirable or necessary for most academic posts). As an academic community we must, therefore, facilitate and encourage the undertaking of public law PhDs. To achieve this we ought to cultivate an interest in both the topic of public law and the process of writing a PhD. Dissertations, workshops and one-to-one discussions can all be helpful in this endeavour. Support should also be offered in designing a PhD that is innovative but achievable. Perhaps most significantly, institutions must find ways of providing financial backing for those seeking to undertake a PhD in public law.

Javier Oliva followed on by discussing the public law PhD process. The central aim of the supervisor ought to be to guide the student to completion whilst attempting to ensure the student has a good general experience throughout their degree. Supervisors also need to be aware of the personal challenges facing students during their PhD and be aware of particular challenges facing international and part-time students. One interesting topic that was raised was whether the supervisors should be experts in the particular area of the PhD – though it is not strictly necessary, it would seem to be a good idea that at least one member of the supervisory team possesses expertise in the area of the research. On an important last note, it was suggested that universities should be honest and rigorous when reviewing students’ progress.

It was, then, the turn of the PhD students themselves to have their say. Craig Prescott astutely noted the paucity of public law-specific PhD events in the UK. As an interesting side-note, it was observed how formulating a PhD proposal is particularly difficult for those who are outside of an academic institution at the time of application, due either to a lack of guidance or a lack of access to materials. Craig also endorsed the utility of the Graduate Teaching Assistant (GTA) method of funding research as it allows a PhD to feel part of the academic community at their institution (though research time ought to be protected from excessive teaching demands). Jack Simson Caird continued by similarly endorsing the utility of the GTA model of funding and similarly endorsing its ability to bring students into closer contact with the academic community. The paucity of public law PhD events and the distinct lack of any sort of network between public law PhDs at different institutions was again flagged as a serious deficiency.

Resources and Technology in the Teaching of Public Law

(Dr Mike Gordon, Liverpool; Prof. Andrew Le Sueur, Essex; Dr Mark Elliott, Cambridge; Brian Thompson, Liverpool; Ann Lyon (Chair), Plymouth)

Brian Thompson started the fourth session by highlighting how technology has been embraced in public law teaching and how this has been both a good and bad development. His main concern was that whilst technology may be convenient we may be deskilling students of valuable research skills through its use.

Mark Elliot, the author of the Public Law for Everyone blog, focused on the use of the blog in public law scholarship and teaching (Mark’s own full blog post on the use of blogging in public law can be found here.  There appear to be good reasons for public lawyers to get involved in blogging. It can be a good method of producing brief comment pieces, particularly on topical issues. It can also be a useful platform for posting short, abstract-like pieces about early-stage research ideas. Online discussions on blog posts can also prove fruitful (once the occasional offensive, libelous or otherwise generally unhelpful comments are deleted). Entering the blogosphere can also be a means of extending impact (not in the REF sense!) as blogs are perhaps more likely to be accessed by (and found to be intellectually accessible to) non-law colleagues than the more traditional channels of academic output. A blog may also be a useful way of reaching and assisting students studying public law. The blog, therefore, can be a useful tool for the public law academic but it has to be used appropriately. For instance, one cannot hope to be a perfectionist or seek comprehensiveness when blogging. A blog is instead a place more suited for formative ideas and is (naturally) distinct from a peer-reviewed article and should be seen as such by readers. Blogging can also become – but does not have to be – a distraction from research.

Mike Gordon then discussed (with some interactive demonstrations) how technology – particularly twitter and interacting polling technology – may be useful in engaging students in traditionally passive learning environments, such as lectures. The key task is, however, finding the appropriate role for technology in teaching. Andrew Le Sueur followed up by suggesting that some of the common use of technology in public law teaching is indeedinappropriate. In what may be a surprising turn from one of the conference’s two tech-savvy ‘live tweeters’, Andrew concluded the day by attempting to ‘roll back’ the enthusiasm for the use of technology in teaching by presenting a ‘six-point plan for recovery.’ That plan, in brief, encouraged teachers of pubic law to:

      1. Recognise the value of handwriting;
      2. Enforce the value of going to the library;
      3. Encourage students to buy books;
      4. Make tutorials and small group sessions computer-free zones;
      5. Shut down all VLE discussion forums; and
      6. Stop using PowerPoint in teaching.

Some suggestions were, unsurprisingly, more controversial than others (the idea that the use of PowerPoint facilitates ‘the trivialization of the rule of law in three bullet points’ had both its supporters and it detractors). The core of the message was, however, much like what each of the contributors suggested: technology has its place in the teaching of public law and though we should seek to embrace it for its benefits, we should be equally cautious of embracing it at the expense of the virtues of other, more traditional means.

Concluding Remarks: Ambition and Constraints

The discussions throughout the day were, like last year, very lively and the conference continues to meet a clear desire to discuss the teaching of public law. Whilst this year’s exchanges, again like last year, showed a widely-held ambition to improve the teaching of public law, there was an acute awareness this year of the potential constraints teachers of public law operate within. These constraints may flow from, amongst other things, institutional configurations, what can be expected of first year law students and even the nature of public law itself. How public law teaching can be improved within these various constraints is the continuing challenge. 


Joseph Tomlinson is a Ph.D Candidate at the University of Manchester.

(Suggested citation: J. Tomlinson, ‘Ambitions and Constraints – A Report on the Second Conference on the Teaching of Public Law (2014)’  U.K. Const. L. Blog (2nd July 2014) (available at








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The Public Law Current Survey was originally published in Public Law and is reprinted with the generous permission of that journal.

(This survey covers the three-month period 1st February to 30 April 2014)


Administration of Justice

See also Devolved nations; Human rights; Policing

Anonymity orders

A court order prohibiting the publication of any identifying particulars in relation to those aged under 18 “against or in respect of whom the proceedings are taken” (made under s.39 of the Children & Young Persons Act 1933) cannot last longer than, and so automatically expired on, the subject’s 18th birthday. It thus extended only to reports of the proceedings before that date (JC and RT v Central Criminal Court [2014] EWHC 1041 (QB)).

Legal Aid

The changes effected by the Criminal Aid (General) (Amendment) Regulations 2013, SI 2013, No 2790 were not unlawful. These removed from the scope of criminal legal aid in prison law cases seven areas including pre-tariff reviews before the Parole Board, category A reviews, eligibility of women prisoners for mother and baby units, segregation and access to offending behaviour courses. There was no case that they had been introduced without proper consultation. The claim that removal in these seven cases was bound to lead to unfair decision making in breach of the common law right of fairness, as was submitted, was premature addressing the situation which would operate, as the applicants saw it, once criminal legal aid for prison law was withdrawn. The claim that the changes constituted an unacceptable risk of interference with their rights of access to justice was unarguable and neither could the claimant overcome the high hurdle inherent in a claim founded on irrationality. Last, the submission that the Lord Chancellor’s decision to remove areas of prison law from criminal legal aid as a result of the Regulations was ultra vires his statutory and constitutional role under the Constitutional Reform Act 2005 to uphold the rule of law went nowhere. As the Court noted, whatever concerns the claimants might have had, for the time being the forum for advancing them remained the political (R (oao Howard League for Penal Reform) v Lord Chancellor [2014] EWHC 709 (Admin)).


Armed forces


The Defence Select Committee 14th report “Intervention: Why, When and How?” (HC 952) was published on 28 April. Its 12th report (HC 931, 2 April) was “UK Armed forces personnel and the legal framework for future operations” and its 10th (HC 772, 25 March) “Remote Control: Remotely Piloted Air Systems – current and future UK use”. Its 9th report was “Future Army 2020” (HC 576, 6 March). The House of Commons Political and Constitutional Reform Committee 12th report (HC 892, 27 March) was “Parliament’s role in conflict decisions: a way forward”.


Confidentiality (and data protection)

Data Retention

The CJEU upheld the opinion of A-G Pedro Cruz Villalón and declared that the Data Retention Directive (Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks) was invalid as being a breach of the rights to privacy and protection of personal data contained in Articles 7 and 8 of the Charter. By requiring the retention of those data and by allowing the competent national authorities to access those data, the directive interfered in a particularly serious manner with those fundamental rights. While retaining data for the purpose of their possible transmission to the competent national authorities genuinely satisfied an objective of general interest, namely the fight against serious crime and, ultimately, public security, in adopting the Directive, the EU legislature had exceeded the limits imposed by the principle of proportionality: the wide-ranging and particularly serious interference was not sufficiently circumscribed to ensure that the interference was actually limited to what was strictly necessary; its generalised scope meant that there was no differentiation, limitation or exception made in light of the objective of fighting against serious crime; the Directive failed to lay down any objective criterion which would ensure that the competent national authorities had access to the data and could use them only for the purposes of prevention, detection or criminal prosecutions concerning offences that, in view of the extent and seriousness of the interference with the fundamental rights in question, might be considered to be sufficiently serious to justify such an interference. The period for which data had to be retained was arbitrary and uniform, and there were too few safeguards to ensure effective protection of the data against the risk of abuse and guard against any unlawful access and use (Joined Cases C-293/12 and C-594/12, Digital Rights Ireland and Seitlinger and Others, 8 April).

Information Commissioner

The Ministry of Justice announced the reappointment of Christopher Graham as the Information Commissioner for another two years (from 28 June), making his total tenure at its conclusion seven years. The Information Commissioner’s Office (ICO) launched its latest corporate plan “Looking Ahead, Staying Ahead” on 25 March with the Information Commissioner promising a fresh approach to the handling of issues raised by the public around data protection concerns. The plan marks a shift in focus, and identifies various strategic outcomes such as a high proportion of individuals having a basic awareness of their information rights, coupled with ready access to information on how to exercise those rights; development of people’s understanding of information rights and risks embedded as an output of the formal education system; and good information rights practice and the upholding of information rights being demonstrably driven by ICO’s casework and secured and underpinned by the use of the ICO’s regulatory tools.


On 25 February, the ICO published an updated Privacy Impacts Assessments Code of Practice, to help organisations respect people’s privacy when changing the way they handle people’s information. The code explains the privacy issues that organisations should consider when planning projects that use personal information, including the need to consult with stakeholders, identify privacy risks and address these risks in the final project plan.



See Government; Judicial Review; Judiciary



The House of Commons Political and Constitutional Reform Committee 11th report (HC 784, 26 March) was “The Impact of Queen’s and Prince’s Consent on the Legislative Process”.


Devolved nations

Devolved powers

On 3 March, the Commission on Devolution in Wales / Comisiwn ar Ddatganoli yng Nghymru (the Silk Commission) published its report on Part II of its remit on the wider powers of the National Assembly for Wales “Empowerment and Responsibility: Legislative Powers to Strengthen Wales”.

Judgment is awaited from the Supreme Court in the case of the Agricultural Sector (Wales) Bill Reference by the Attorney General for England and Wales (a reference under s.112 of the Government of Wales Act 2006) while the hearing in the case Recovery of Medical Costs for Asbestos Diseases (Wales) Bill – Reference by the Counsel General for Wales was scheduled for 14 and 15 May.


On 13 March, Westminster passed the Northern Ireland (Miscellaneous Provisions) Act 2014. This makes provision about donations, loans and related transactions for political purposes in connection with Northern Ireland; amends the Northern Ireland Assembly Disqualification Act 1975 and the Northern Ireland Act 1998; and makes provision about the registration of electors and the administration of elections in Northern Ireland.

In Scotland, the Budget (Scotland) Act 2014 was passed on 5 February and received Royal Assent on 12 March. The Children and Young People (Scotland) Act 2014 was passed on 19 February and received Royal Assent on 27 March. It makes provision inter alia about the rights of children and young people and about investigations by the Commissioner for Children and Young People in Scotland; and about the provision of services and support for or in relation to children and young people. The Tribunals (Scotland) Act 2014was passed on 11 March and received Royal Assent on 15 April, establishing the First-tier Tribunal for Scotland and the Upper Tribunal for Scotland. The Public Bodies (Joint Working) (Scotland) Act 2014 was passed on 25 February and received Royal Assent on 1 April. It provides for the carrying out of functions of local authorities and Health Boards, requiring a jointly prepared integration scheme where a local authority and a Health Board cover the same geographical area, and makes further provision about certain functions of public bodies including under the National Health Service (Scotland) Act 1978.

On 28 February, the Welsh Affairs Committee at Westminster published its “Pre-legislative scrutiny of the draft Wales Bill” (4th report HC 962). The draft Wales Bill itself was presented to Parliament on 20 March, and an impact assessment published on 17 March. 2014 The Bill makes provision about elections to and membership of the National Assembly for Wales and about the Welsh Assembly Government. It also makes provisions about the setting by the Assembly of a rate of income tax to be paid by Welsh taxpayers and about the devolution of taxation powers to the Assembly (this requires related amendments to Part 4A of the Scotland Act 1998). It makes provision about borrowing by the Welsh Ministers and miscellaneous amendments in the law relating to Wales. The Bill had its second reading on 31 March 2014. The Bill will next be considered in a Committee of the whole House of Commons on 30 April 2014. Welsh legislation that was passed in the period includes the Social Services and Well-being (Wales) Bill/ Bil Gwasanaethau Cymdeithasol a Llesiant (Cymru) – 18 March – and The Education (Wales) Bill – Bil Addysg (Cymru) – 25 March. The four-week intimation period has ended for both without challenge and both Bills have therefore been submitted for Royal Assent. The former covers inter alia improving the well-being outcomes for people who need care and support, and carers who need support; and co-ordination and partnership by public authorities with a view to improving the well-being of people. The latter covers inter alia the appointment of HM Chief Inspector and HM Inspectors of education and training in Wales under section 19 of the Education Act 2005.

Scottish Referendum

The Scottish Affairs Select Committee 7th report was “The Referendum On Separation For Scotland: The Impact On Higher Education, Research And Tuition Fees” (HC 1444, 16 March) and also published  “The Referendum on Separation for Scotland, Session 2013–14 – Oral and written evidence – Volume IV” (HC 140, 24 March). The Scottish Government published “Higher Education Research in an Independent Scotland” (30 April) setting out its vision for the future of university research in an independent Scotland.


On 6 March, MPs at Westminster took part in a general debate on Welsh affairs, a debate scheduled by the Backbench Business Committee following representation from Albert Owen, Elfyn Llywd, Roger Williams and Glyn Davies.

The Scottish Affairs Select Committee produced various reports in the period including:- “The Crown Estate in Scotland: follow-up” (5th report, HC 889, 7 March), “Blacklisting in Employment” (6th report HC 543, 14 March) and interim reports on zero hours contracts and land reform.


Discrimination and equality

See Ecclesiastical; Free speech; Judicial Review



The applicant church was denied exemption from business rates in respect of its temple at Preston, an exemption that was reserved for buildings used for public religious worship contained within the Local Government Finance Act 1988. This did not give rise to violations of the Church’s rights under Article 9 of the Convention and Article 1 of Protocol No. 1, both taken alone and in conjunction with Article 14. So held the European Court of Human Rights in an application by the Mormon Church, with a worldwide membership of over 12 million people and approximately 180,000 adherents in the UK or the Republic of Ireland. While all the applicant’s places of worship that were open to the public, such as its chapels and stake centres, had the benefit of the full exemption from rates– as indeed did Church of England churches – its two temples were open only to the most devout of members who held what is called a “recommend”. Contracting States have a certain margin of appreciation in deciding whether and to what extent any interference is necessary. A wide margin is usually allowed to the State when it comes to general measures of economic or social strategy. This is because, given their direct knowledge of their society and its needs, the national authorities were in principle better placed than an international judge to appreciate what is “in the public interest”. The legislation was neutral, in that it is the same for all religious groups as regards the manifestation of religious beliefs in private; and indeed produces exactly the same negative consequences for the officially established Christian Church in England (the Church of England) as far as private chapels were concerned. Insofar as any difference of treatment between religious groups in comparable situations can be said to have been established in relation to tax exemption of places of worship, such difference of treatment had a reasonable and objective justification. In particular, the contested measure pursued a legitimate aim in the public interest and there was a reasonable relationship of proportionality between that aim and the means used to achieve it. The domestic authorities cannot be considered as having exceeded the margin of appreciation available to them in this context, even having due regard to the duties incumbent on the State by virtue of Article 9 of the Convention in relation to its exercise of its regulatory powers in the sphere of religious freedom (Church of the Latter-Day Saints v UK App 7552/09, ECtHR, 4 March).



See Devolved nations



 See EU


European Union

 See also Confidentiality; Extradition; Judiciary


The Government’s response to the European Scrutiny, Home Affairs and Justice Committees’ joint Reports on the 2014 block opt-out decision was published on 26 March (HC 1177).


The CJEU confirmed that Art 51 of the Charter meant that fundamental rights contained in the Charter were as applicable in resolving disputes relating to a Member State’s implementation of national derogations from EU Law as to the implementation of EU Law itself. So held the CJEU in a preliminary reference arising from the attempted regulation by the Austrian authorities of the unauthorised operation of games of chance machines, by imposing administrative penalties. In so doing, the CJEU clarified the interpretation offered last year in Fransson (Case C‑617/10) on the scope of Art 51. Under the Court’s settled case-law, the fundamental rights guaranteed in the legal order of the EU are applicable in all situations governed by EU law, but not outside such situations. In this respect the Court had already previously observed that it had no power to examine the compatibility with the Charter of national legislation lying outside the scope of EU law. On the other hand, if such legislation fell within the scope of EU law, the Court, when requested to give a preliminary ruling, was duty-bound to provide all the guidance as to interpretation needed in order for the national court to determine whether that legislation was compatible with the fundamental rights the observance of which the Court ensures. Where a Member State relied on overriding requirements in the public interest in order to justify rules which were liable to obstruct the exercise of a freedom e.g. to provide services, such justification, provided for by EU law, must be interpreted in the light of the general principles of EU law, in particular the fundamental rights guaranteed by the Charter. Thus, national rules can fall under the exceptions provided for only if they are compatible with the fundamental rights the observance of which is ensured by the Court. Were it is apparent that national legislation is such as to obstruct the exercise of one or more fundamental freedoms guaranteed by the Treaty, it may benefit from the exceptions provided for by EU law in order to justify that fact only in so far as that complies with the fundamental rights enforced by the Court. That obligation to comply with fundamental rights manifestly comes within the scope of EU law and, consequently, within that of the Charter. The use by a Member State of exceptions provided for by EU law in order to justify an obstruction of a fundamental freedom guaranteed by the Treaty must, therefore, be regarded as ‘implementing Union law’ within the meaning of Art 51 (Pfleger Case C‑390/12, 30 April).

Financial Transaction Tax

The CJEU dismissed as premature the UK’s action to annul the Council decision (Council Decision 2013/52/EU of 22 January 2013) authorising eleven Member States to use the enhanced cooperation procedure to set up a financial transaction tax (FTT). The UK’s claim was based on the grounds (i) that it produced extraterritorial effects and (ii) when read together with other directives on mutual assistance and administrative cooperation in the area of tax (such as Council Directive 2010/24/EU of 16 March 2010 concerning mutual assistance for the recovery of claims relating to taxes, duties and other measures (OJ 2010 L84, p.1) and Council Directive 2011/16/EU of 15 February 2011 on administrative cooperation in the field of taxation) would impose costs on non-participating States. The Court found that in the context of an action for the annulment of a decision which authorised enhanced cooperation, the Court’s review was related to the issue of whether the granting of such authorisation was valid. That review must not be confused with the review which may be undertaken, in the context of a subsequent action for annulment, of a measure adopted for the purposes of the implementation of the authorised enhanced cooperation. In this case, the Court found that the contested decision did no more than authorise the establishment of enhanced cooperation, but did not contain any substantive element on the FTT itself (UK v Council Case C-209/13, 30 April).

Copyright and duties of ISPs

A person who makes protected subject-matter available to the public on a website without the agreement of the rightholder is using the services of the business which provides internet access to persons accessing that subject-matter. Thus, an ISP which allows its customers to access protected subject-matter made available to the public on the internet by a third party is an intermediary whose services are used to infringe a copyright. The CJEU so held in a preliminary reference from the Austrian Oberster Gerichtshof seeking an interpretation of the Copyright Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L167, p.10). Two film companies had become aware that copyrighted films of theirs were being made available to view and to download without their consent on a website hosted by U, an ISP. The Austrian courts had granted an injunction against U prohibiting its customers from having access to the site. The Court held that the directive, which seeks to guarantee a high level of protection of rightholders, did not require a specific relationship between the person infringing copyright and the intermediary against whom an injunction may be issued. Nor was it necessary to prove that the customers of the ISP actually access the protected subject-matter made accessible on the third party’s website, because the directive required that the measures which the Member States must take in order to conform to that directive were aimed not only at bringing infringements of copyright and of related rights to an end, but also at preventing them. Given the conflict, in the context of an injunction, between copyrights and related rights (which are intellectual property) with the freedom to conduct a business, which economic agents (such as ISPs) enjoy, Member States must ensure that they rely on an interpretation of EU law and their national law which allows a fair balance to be struck between those fundamental rights. The injunction sought here did not seem to infringe the very substance of that right. In general, the fundamental rights concerned did not preclude such injunctions on two conditions: (i) that the measures taken by the ISP did not unnecessarily deprive users of the possibility of lawfully accessing the information available and (ii) that those measures had the effect of preventing unauthorised access to the protected subject-matter or, at least, of making it difficult to achieve and of seriously discouraging users from accessing it (UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH and Wega Filmproduktionsgesellschaft mbH Case C-314/12, 27 March).

Parliamentary activity

The House of Lords EU Select Committee 9th report “The Role of National Parliaments in the European Union” (HL 151) was published on 24 March.   The House of Commons European Scrutiny Committee 43rd report “The application of the EU Charter of Fundamental Rights in the UK: a state of confusion” (HC 979) was published on 2 April, in part prompted by the reported comments made by Mostyn J in R (aoa AB) v Secretary of State for the Home Department [2013] EWHC 3453 (Admin) – that the Charter of Fundamental Rights, which included rights that go beyond rights protected in the ECHR, was now legally binding in the UK. This itself was derived from an interpretation of NS (Joined cases C-411/10 and C-493/10 [2013] QB 102). At its meeting on 5 February, the European Scrutiny Committee considered Commission Communication: Towards the elimination of female genital mutilation (COM(13) 883 (see 34th report, HC 83-xxxi 18 February) and at its 26 February meeting, Commission Communication: A policy framework for climate and energy in the period from 2020 to 2030 (COM(14) 15) and High volume hydraulic fracturing (fracking) in the EU (Commission Communication COM(14) 23 and Commission recommendation C(2014) 267): see 37th report HC 83-xxxiv. At its 12 March meeting, it considered a Draft Directive on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services (COM(12) 131): see 39th report, HC 83-xxxvi, 26 March.


Extradition, deportation and immigration 

Immigration Bill

The JCHR published its 12th report “Legislative Scrutiny: Immigration Bill Second report” (HL 142/HC 1120, 3 March) looking specifically at the possible use of new powers contained in Clause 60 of the Immigration Bill to deprive naturalised UK citizens of their UK citizenship and leave them stateless. The Committee expressed significant concerns and recommended that the Bill be amended to make it a precondition of the making of an order by the Secretary of State that the deprivation be compatible with the UK’s obligations under international law. While the JCHR accepted that enacting the power in clause 60 did not in strict legal terms involve any breach by the UK of its obligations under the UN Conventions on Statelessness, it believed that it would lead to an increase in statelessness.  This would represent a significant change of position in the human rights policy of the UK, which had historically been a champion of global efforts to reduce statelessness. The report also returned to some of the issues set out in its first Report on the Bill such as notification of family members if they are facing removal; removal of appeal rights; best interests of the child; and legal aid for deportation and removal decisions.

The House of Lords Select Committee on the Constitution also published a report on the Bill (HL 148, 7 March) raising three concerns: deprivation of nationality (clause 60); the reduction in the grounds on which appeals can be made against decisions of the Secretary of State (clause 11) and the definition of the public interest factors in immigration decisions that engage Article 8, a “constitutional innovation” (clause 14).


In EU Law, the interpretation to be given to the concept of ‘internal armed conflict’ within Directive 2004/83/EC of 29 April 2004 (OJ 2004 L 304, p.12, and – corrigendum – OJ 2005 L 204, p.24) on minimum standards for the qualification and status of third country nationals or stateless persons as refugees must be independent of the definition used in international humanitarian law. An internal armed conflict must be found to exist where a State’s armed forces confront one or more armed groups or where two or more armed groups confront each other, regardless of the intensity of the confrontations, the level of organisation of the armed forces involved or the duration of the conflict (Diakité v Commissaire général aux réfugiés et aux apatrides Case C-285/12, 30 January).

Where an asylum seeker in the UK claims that if they are returned to the country in which they first claimed asylum (here Italy) they would face ill-treatment in breach of Article 3, they did not have to show a systemic breach in the receiving country. So held the Supreme Court unanimously, overturning the Court of Appeal, and allowing appeals by four asylum seekers’ (one from Iran and three from Eritrea) and remitting all four to the administrative court to determine on the facts whether in each case it was established that there was a real possibility that, if returned to Italy, the claimant would be subject to treatment in violation of the Convention. All four had argued they would either be destitute and homeless or would face risk of repeated rape in Italy, a country on the UK’s presumed safe list. The Court of Appeal had been wrong to follow the systemic breach case law of the CJEU (such as in NS (Afghanistan) v Secretary of State for the Home Department[2013] QB 102) in the context of Council Regulation 343/2003 on the processing of asylum applications (commonly known as Dublin II), rather than the established case law of the ECHR which required only a breach. The CJEU’s focus was not on the sort of breach that had to be established, but rather on EU member states’ awareness of such a breach. There was therefore no warrant for concluding that the CJEU’s judgment was that there had to be a systemic breach; it only meant that a systemic breach would be enough. The CJEU was not calling into question the well-established test applied in human rights law, which is that the removal of a person from a member state of the Council of Europe to another country is forbidden, if it is shown that there is a real risk that the person transferred will suffer treatment contrary to Article 3 of the ECHR. Indeed, the EU required its laws to be interpreted in accordance with fundamental rights, such as those guaranteed by the ECHR. Article 4 of the EU Charter of Fundamental Rights contained a human rights protection in equivalent language to Article 3. The UK, as an EU member state, was obliged to observe and promote the application of the Charter whenever implementing an instrument of EU law. There was no dispute that the positive obligations under Article 3 included the duty to protect asylum seekers from deliberate harm by being exposed to living conditions which cause ill treatment, and for which the state bore responsibility. Where, therefore, it can be shown that the conditions in which an asylum seeker will be required to live if returned under Dublin II are such that there is a real risk that he will be subjected to inhuman or degrading treatment, his or her removal to that state is forbidden (R (oao EM (Eritrea) v Secretary of State for the Home Department [2014] UKSC 12).


It did not violate the specialty principle – that an individual extradited to the UK to face trial may only be tried for crimes allegedly committed before the extradition if those crimes formed the basis of the extradition request – to seek to commit O’B for contempt (O’B having violated a previous court order imposed before he fled from the UK) where O’B had been extradited from the USA to face fraud charges. So held the Supreme Court in an appeal by O’B arising from the reinstitution of contempt proceedings that followed from his breach of a restraint order imposed under s.41 of the Proceeds of Crime Act 2002 (POCA), rejecting his claim that the court lacked jurisdiction. Disobedience to the Common Serjeant’s POCA order constituted civil not criminal contempt. The primary purpose of civil contempt was to ensure that court orders were observed, and the contemnor did not acquire a criminal record. It thus could not and did not constitute an extradition offence and so did not and could not fall foul of the specialty principle. In any event, a proper reading of s.148 and s.151 of the Extradition Act 2003 was to limit extradition offences and requests to those offences that constituted criminal offences in the requesting state, here the UK (R v O’Brien [2014] UKSC 23).


Freedom of Information


As a matter of ordinary statutory construction, the absolute exemption from disclosure contained in s.32(2) of the Freedom of Information Act 2000 (FoIA) continued after the end of an inquiry. The words “for the purposes of the inquiry or arbitration” qualify the immediately preceding words in s.32(2)(a) and s.(32)(2)(b) and referred to the original purpose for which the relevant documents were placed in the custody of, or were created by, a person conducting an inquiry. They did not refer to the purpose for which a public authority held the documents at the time of a request for information. So held the Supreme Court by a majority (5:2) in an appeal brought by K, a journalist who had made requests for information in relation to three inquiries conducted by the Charity Commission between 2003 and 2005 into the ‘Mariam Appeal’, launched by George Galloway in connection with the sanctions imposed on Iraq following the first Gulf War. K was not assisted by appeals to Article 10 of the ECHR. Had it been necessary for the resolution of the appeal, the Supreme Court would have concluded that article 10 did not contain a freestanding right to receive information from public authorities. Recent developments in the case law of the European Court of Human Rights were not sufficient to justify a departure from the principle clearly established in a series of Grand Chamber decisions on Article 10 such as Leander v Sweden(1987) 9 EHRR 433, Gaskin v United Kingdom(1990) 12 EHRR 36, Guerra v Italy(1998) 26 EHRR 357 and Roche v United Kingdom(2006) 42 EHRR 30. There remained in the Charity Commissioners the power to disclose information outside the FoIA and the exercise of that would be subject to judicial review. (Per Lord Mance) given the importance of the principles of openness and transparency, courts would apply a very high standard of review to any decision not to disclose information in answer to questions of real public interest raised by a journalist in relation to inquiries on which the Charity Commission had published reports, and would take into account similar factors and provide a no less favourable standard of protection for a person seeking information, as any review under Article 10 of the ECHR. Lord Wilson and Lord Carnwath (dissenting) would have allowed K’s appeal on the basis that he had a right to receive the requested information under Article 10 and would have read down s.32(2) such that the absolute exemption expired at the end of the relevant inquiry. That would have preserved the FOIA as the mechanism for obtaining information, so offering a number of advantages to a person seeking information compared with a judicial review (Kennedy v The Charity Commission [2014] UKSC 20).

Note: the speeches contain further discussion of the “mirror principle” in s.2 of the HRA, and the relative roles of common law rights and those under the HRA 

Attorney-General’s certificate

It did not constitute “reasonable grounds” within s.53(2) of the FoIA for the Attorney-General to issue a certificate exempting material from disclosure simply because he disagreed with – or simply reached a different conclusion to – the Upper Tribunal in weighing the competing public interests involved. So held the Court of Appeal, overturning the decision of the High Court and quashing the A-G’s certificate. The decision of the Upper Tribunal which entitled E to have disclosure of the “advocacy correspondence”, that is correspondence in which The Prince of Wales advocated certain causes which were of particular interest to him, was reinstated. Something more was required of the A-G than simple disagreement. Examples of what would suffice were that there had been a material change of circumstances since the tribunal decision or that the decision of the tribunal was demonstrably flawed in fact or in law. The fact that a s.53(2) certificate involved making an evaluative judgment (rather than a finding of primary fact) was not material to whether the accountable person had reasonable grounds for forming a different opinion from that of the tribunal. The certificate was also unlawful as being incompatible with EU Law in so far as it related to environmental information. This in turn tainted the whole certificate, not simply those aspects relating to environmental information (R (oao Evans) v Attorney-General[2014] EWCA Civ 254).

Freedom of speech

 See also Administration of justice; EU; Parliament; Policing

It did not violate C’s rights under Article 10 of the ECHR for T to decide not to allow adverts on the sides of its London buses that said “Not Gay! Ex-gay, post-gay and proud, get over it”. So held the Court of Appeal, upholding the decision of the High Court not to grant relief to C, a non-profit Christian initiative seeking to support men and women with homosexual issues who voluntarily sought a change in sexual preference and expression. T was responsible for the provision of passenger transport services in Greater London. T’s policy included the term that advertisements would not be approved if, inter alia, in T’s reasonable opinion, the advertisement was likely to cause widespread or serious offence to members of the public or contained images or messages which related to matters of public controversy and sensitivity. The standards of “offensiveness” and “public controversy” were sufficiently precise to meet the requirement of legal certainty. Both “offence” and “controversy” were uncomplicated ordinary English words. They were both concepts that were frequently used to set regulatory standards of decency. The policy too sought to achieve the legitimate aims of respecting the dignity and private life of individuals of a particular sexual orientation and ensuring T’s compliance with its statutory duties under s.149 of the Equality Act 2010. The ban was proportionate: the restrictions imposed on C only applied to the advertisements placed on T’s network. It was not faced with a total prohibition on publishing and disseminating its message. The restrictions were justified in view of the prominence of the advertisements and the fact that they would be seen by, and cause offence to, large numbers of the public in central London. Moreover, for those who were gay, the advertisements would be liable to interfere with the right to respect for their private life under Article 8(1). The advertisements too were liable to encourage homophobic views and homophobia places gays at risk. Closely linked to this was T’s duty under s.149 which pointed strongly against allowing the advertisement to appear on its buses, since it would encourage discrimination. The fact that an earlier advert by Stonewall – “Some people are gay; get over it” – was permitted did not render the decision in respect of C unlawful. The inconsistency of the application of the policy was outweighed by other factors. The Stonewall advertisement was intended to promote tolerance of homosexuals and discourage homophobic bullying whereas C’s could be seen as encouraging homophobia and put homosexuals at risk, as well as leading to breaches of the s.149 duty. Article 9 added nothing to the case. However, the case was remitted to the judge to assess whether (i) the decision was taken on the instructions of the Mayor for London rather than T and if so (ii) it had been taken for the improper purpose of advancing the Mayor’s election campaign (R (aoa Core Issues Trust) v Transport for London [2014] EWCA Civ 34). 

Government and Civil Service

Parliamentary reports

The House of Lords Select Committee on the Constitution 5th report (HL 130, 12 February) was “Constitutional implications of coalition government” covering the formation of government, government and its programme, the operation of government, including collective responsibility, and the end of Parliament. “Government Foreign Policy towards the United States” was the topic of the Foreign Affairs Committee 8th report (HC 695, 3 April). The Public Administration Select Committee 9th report (HC 1041, 28 February) was “Latest proposals for ministerial involvement in permanent secretary appointments: PASC’s recommendations”. The Public Accounts Committee 47th report (HC 777, 14 March) was “Contracting out public services to the private sector”.


Human Rights

 See also Confidentiality; Ecclesiastical; EU; Extradition; Freedom of Information; Judiciary; Judicial Review; Policing; Prisoners; Terrorism

Article 2

It was premature and thus inadmissible to raise a complaint under Article 2, in respect of the UK’s alleged failure to conduct a prompt, effective and independent investigation into the deaths of family members at the Hillsborough tragedy in 1989, founded on the fact that there had not been sufficient levels of public scrutiny and family participation. Following the setting up of the Hillsborough Independent Panel in 2009 and given the pending inquests and investigations, so far the various UK authorities had taken prompt and effective measures to investigate further the deaths of the Hillsborough victims (Harrison v UK (44301/13, ECtHR admissibility decision, 25 March).

The Secretary of State did not have a duty under the Inquiries Act 2005 to establish a public inquiry into the Batang Kalir massacre in 1948 (during the Malayan emergency) when 24 civilians were allegedly executed by the British Army without any justification, and he had not erred in exercising his discretion thereunder in refusing to establish one. So held the Court of Appeal in refusing an appeal brought by the victims’ families. While it was probable that, in light of Janowiec v Russia (App 55508/07, 21 October 2013) on the issue of retrospectivity, given the limited nature of the investigation which took place before the critical date and the potential significance of the new material which had emerged since but which had never been subjected to the full rigour of independent evaluation, the ECtHR would find the “genuine connection” test satisfied (such that the applicants could claim to have at least an arguable chance of success before the Strasbourg court on the issue), the Secretary of State had nonetheless not erred in law or breached the applicant’s rights under Article 2 in failing to order an inquiry. Domestic courts still continued to be bound, on the question of retrospectivity, by Re McKerr[2004] 1 WLR 807. The Court of Appeal in the instant case did not accept that a majority of the Supreme Court in Re McCaughey[2011] 2 WLR 1279 overruled McKerr on that point or intended to do so. If they had so intended, they would have said so. Any attempt to move in that direction would now be a matter for the Supreme Court rather than for the Court of Appeal. Neither did common law require the development of a right to such an inquiry by reference to customary international law (which in any event at the relevant time did not impose such an obligation). The Human Rights Act, as properly construed in domestic law in relation to its temporal and territorial limitations, has set the parameters within which a right to an investigation can be claimed. It was not the intention of Parliament to leave open in domestic law a mandatory duty without temporal limitation by reference to customary international law. Lastly, the decision was not Wednesbury unlawful (Keyu v Secretary of State for Foreign and Commonwealth Affairs [2014] EWCA Civ 312).

Article 6

The European Court declared as inadmissible a challenge under Article 6 that despite the size, complexity and importance, neither legal aid nor any other source of funding was made available to permit the families of service personnel to pursue their claims against the Ministry of Defence for damages and loss allegedly arising from nuclear testing in the Pacific in the 1950s and thus to exercise their right of access to the courts. Applications under Article 2 – the failure to hold a public inquiry – were inadmissible on grounds of non-exhaustion of domestic remedies and incompatibility ratione temporiswith the scope of the Convention (Sinfield v UK, 61332/12, 18 February following domestic proceedings (Ministry of Defence v. A.B. and Others [2012] UKSC 9) in which the Supreme Court held that proceedings were time-barred).

Article 11

The ban on unlawful secondary union action contained in s.224 of TULRCA 1992 (exempting such action from the statutory protection against liability in tort regarding acts done “in contemplation or furtherance of a trade dispute” under s. 219 of the 1992 Act – the “golden formula”) while part of protected union activity within Article 11, was a proportionate restriction on that right. So held the ECHR in a challenge brought by R. While it was true both that the UK was one of a small group of European States to have adopted such a categorical stance on the matter and that throughout the two-decade long ban, the UK had been subject to critical comment by the ILO Committee of Experts and the ECSR, and while accepting that trade unions could find themselves severely hampered in the performance of their legitimate, normal activities in protecting their members’ interests by the ban (albeit that such far-reaching negative effects did not arise on the facts), the ban was not outside the UK’s margin of appreciation. In the sphere of social and economic policy, which must be taken to include a country’s industrial relations policy, the Court would generally respect the legislature’s policy choice unless it was “manifestly without reasonable foundation”. Moreover, the Court had long recognised the “special weight” to be accorded to the role of domestic policy-makers in matters of general policy on which opinions within a democratic society may reasonably differ widely. The ban on secondary action had remained intact for over twenty years, notwithstanding two changes of government during that time, denoting a democratic consensus in support of it, and an acceptance of the reasons for it, which span a broad spectrum of political opinion in the UK. These considerations led the Court to conclude that in its assessment of how the broader public interest was best served in any country in the often charged political, social and economic context of industrial relations, the domestic legislative authorities relied on reasons that were both relevant and sufficient for the purposes of Article 11 (RMT v UK App 31045/10, 8 April).



See also Human Rights

It was irrational at common law for the Secretary of State to refuse to set up a statutory inquiry under the Inquiries Act 2005 into the death of a man (L) who had died in London following ingestion of a radioactive substance where there was a strong suspicion it had been administered by Russian agents at the instigation of the Russian authorities. So held the Divisional Court in a judicial review challenge by L’s wife, quashing the refusal. While there was an ongoing inquest into L’s death, PII certificates in respect of many documents meant that the coroner had withdrawn from its scope many issues going to Russia’s culpability and preventability. This effectively meant that a wider inquest encompassing the clear public interest in establishing or denying Russia’s role in the alleged state-sponsored assassination would not be possible or would be at least very much compromised. Consequently, the notion entertained by the Secretary of State that an inquest could allay public concerns in relation to the issue was plainly unsustainable and so could not provide a rational basis. Neither was it a valid, sustainable reason to support the failure to hold an inquiry that PII material would not be made public so that nothing more would be gained. Undoubtedly public conclusions could be drawn from the material by any chair of the inquiry even if the material itself could not be disclosed publicly. The duty under Article 2 of the ECHR was here complied with on the facts by the police investigation and identification of likely suspects (R (oao Litvinenko) v Secretary of State for the Home Department [2014] EWHC 194 Admin).


Judicial Review

See also Freedom of Information; Inquiries; Policing


In February, the Ministry of Justice published “Judicial Review: Proposals for Further Reform – the Government Response” (Cm 8811) the response to last year’s consultation that itself in turn produced 325 responses.

The JCHR published its 13th report of the session (HL 174/HC 868, 30 April) “The implications for access to justice of the Government’s proposals to reform judicial review”. This was heavily critical of the failure to demonstrate by clear evidence that non-immigration related judicial review had “expanded massively” in recent years; that there were real abuses of the process taking place; or that the current powers of the courts to deal with such abuse were inadequate. The JCJR also made criticisms based on human rights grounds and on the rule of law. Additionally, it offered views on the combined role of the Lord Chancellor and Secretary of State for Justice: the “Government’s proposals …expose the conflict inherent in the combined roles…which raises issues which should be considered by a number of parliamentary committees. We think the time is approaching for there to be a thoroughgoing review of the effect of combining in one person the roles of Lord Chancellor and Secretary of State for Justice and of the consequent restructuring of departmental responsibilities between the Home Office and the Ministry of Justice.”


It did not breach the public sector equality duty (contained in s.149 of the Equality Act 2010) and neither did it result in unlawful discrimination (within Article 14, combined with A1P1 of the ECHR) against those with disabilities for the government to have introduced the so-called “bedroom tax”, that is to have reduced the amount of housing benefit a public sector tenant could claim where their property was considered to have excess bedrooms. The effect of the 2012 Regulations was to reduce the eligible rent for the purpose of calculating means-tested housing benefit where the number of bedrooms in a property let exceeded the number to which a claimant was entitled (by reference to standard criteria set out in the regulations). The reduction in eligible rent was 14% where there was one excess bedroom and 25% where there were two or more. So held the Court of Appeal upholding the decision of the Divisional Court in a challenge brought to the Housing Benefit (Amendment) Regulations 2012 SI 2012 No. 3040 as further amended by the Housing Benefit and Universal Credit (Size Criteria) (Miscellaneous Amendments) Regulations 2013 SI 2013 No. 2828, both of which in turn amended the Housing Benefit Regulations 2006 SI 2006 No 213 (R (oao MA) v Secretary of State for Work and Pensions [2014] EWCA Civ 13).

Note: a challenge to the “benefit cap” imposed by the Welfare Reform Act 2012 and the Benefit Cap (Housing Benefit) Regulations 2012 SI 2012 No 2994 – that they were in breach of A1P1 and Art 8 read with Art 14 of the ECHR – brought by four single mothers who had escaped domestic abuse and were living in rented accommodation was similarly unsuccessful in the Court of Appeal but as it was argued before the Supreme Court in late April, it will be reported in a future issue: R (oao SG) v Secretary of State for Work and Pensions [2014] EWCA Civ 156.




Elisabeth Laing, Q.C., His Honour Judge William Davis, Q.C and His Honour Judge Roderick Newton have all been appointed Justices of the High Court. The House of Commons Justice Select Committee held a one-off evidence session on the Judicial Appointments Commission, on 5 March hearing from: Christopher Stephens, Chairman; Mr Justice Bean, Commissioner; and Dame Valerie Strachan, Commissioner, Judicial Appointments Commission.


Speeches given by members of the senior judiciary include:-


The Justice Select Committee held a one-off evidence session on the work of the Lord Chief Justice on 2 April.


Local Government 

The Communities and Local Government Select Committee 6th report (HC 712, 13 March) was on “Local government procurement”.



The Parliamentary and Health Service Ombudsman investigated 2,199 cases in 2013/14 compared to 384 the previous financial year, according to its own statistics published in April. This, the PHSO argued, was a result of changes in the way complaints are handled rather than there having been an actual increase in the number of complaints overall or a reflection of decreasing standards and levels of administration. Almost 80% of these investigations were about the NHS and the rest were about UK government departments and their agencies. On average, the time taken to complete an investigation halved, from 317 days in 2012/13 to 163.

On 28 April, the Public Administration Select Committee published its 14th report “Time for a People’s Ombudsman Service” (HC 655) recommending that the “MP filter”, be abolished, as is already the case in respect of NHS complaints; that the Parliamentary and Health Service Ombudsman have “own-initiative” powers to investigate areas of concern without having first to receive a complaint; that there be a consultation on the creation of a single public services ombudsman for England; and that a distinctive ombudsman service for UK non-devolved matters be created. The report should be read alongside its 12th report (HC 229) “More complaints please” (14 April).



See also Armed forces; Crown; Ombudsman


The House of Commons Procedure Committee published it 6th Report (HC 1220, 7 April): “Programming: proposal for a trial of new arrangements for the tabling of amendments to bills at report stage”. Its 5th report was “Private Members’ Bills” Government response and revised proposals” (HC 1171, 31 March) recommending that the House agree a convention that there should be a vote on second reading of a private Member’s bill at the end of a full day’s debate. Its 4th report (HC 1046, 13 February) was a monitoring report on written parliamentary questions.

Parliamentary Reports

Reports published in the period and not referred to elsewhere in this Survey include:


On 24 February, MPs took part in a general debate on an e-petition relating to holiday companies charging extra in school holidays. Total signatures reached 170,000 and the Backbench Business Committee allocated time.


On 13 March, the following Public General Acts were passed at Westminster:-

  • The Anti-social Behaviour, Crime and Policing Act 2014. This introduces wider injunctions to prevent anti-social behaviour (replacing ASBOs), public space protection orders (PSPOs) and community protection notices, criminal behaviour orders following conviction. It amends the law relating to police powers of dispersal and creates the power to seek closure of premises associated with nuisance or disorder. It also makes provision for the recovery of possession of dwelling-houses on grounds of anti-social behaviour, as well as amending the law relating to DNA profiles and personal samples, Schedules 7 and 8 to the Terrorism Act 2000 (police powers at ports and borders), the Extradition Act 2003 and provisions relating to the use of amplified noise equipment near Westminster contained in the Police Reform and Social Responsibility Act 2011. It makes provision about firearms, about sexual harm and violence, and about forced marriage. Finally, it covers the College of Policing, the Independent Police Complaints Commission and the Serious Fraud Office.
  • The Children and Families Act 2014 makes provision about children and families, such as adoption and contact; about family justice; and about people with special educational needs or disabilities and further provision about the right to request flexible working.
  • The Citizenship (Armed Forces) Act 2014 is concerned with applications for naturalisation as British citizens made by members or former members of the armed forces.
  • The International Development (Gender Equality) Act 2014 promotes gender equality in the provision by the Government of development assistance and humanitarian assistance to countries outside the United Kingdom.
  • The Offender Rehabilitation Act 2014 makes provision about the release, and supervision after release, of offenders; about the extension period for extended sentence prisoners; and about community orders and suspended sentence orders.

Statutory instruments of interest include: those dealing with sanctions in relation to Ukraine (SI 2014, No 1100, SI 2014, No 1098, SI 2014, No 693 and SI 2014, No 497); The Terrorism Act 2000 (Proscribed Organisations) (Amendment) Order 2014 (SI 2014, No 927), combined transport authority orders relating to Merseyside and south and west Yorkshire (SI 2014 Nos 863, 864 and 865); and The Equality Act 2006 (Dissolution of the Disability Committee) Order 2014 (SI 2014, No 406).


The Committee on Standards produced two reports, on Maria Miller and Patrick Mercer respectively (10th report, HC 1179 3 April; 11th report HC 1225 1 May). Miller was found to have breached rules on claiming expenses and Mercer found to have received consultancy fees in connection with tabling questions. After several days in the media spotlight, Miller resigned as Minister for Culture, Media and Sport and Mercer immediately resigned his seat as MP for Newark.



See also Parliament

Crime statistics

The Public Administration Select Committee published its 13th report (HC 760, 9 April), ‘Caught red-handed: Why we can’t count on Police Recorded Crime statistics’, followed by a backbench debate on 10 April. On 1 May, Her Majesty’s Inspectorate of Police published “Crime Recording: a matter of fact – an interim report of the inspection of crime data integrity in police forces in England and Wales” identifying serious concerns about the crime-recording process. HMIC found weak or absent management and supervision of crime-recording, significant under-recording of crime, serious sexual offences not being recorded, and some offenders having been issued with out-of-court disposals when their offending history could not justify it.

Use of force

The conclusions reached by the Inquiry chaired by Sir Christopher Holland in to the death of Azelle Rodney in 2005 – that there was no lawful justification for a police marksman (known as E7) to have opened fire and shot him six times – were not irrational. The High Court so held in refusing E7 permission to apply for judicial review to challenge the findings (R (oao E7) v Sir Christopher Holland [2014] EWHC 452 Admin).

Osman duty

A failure by the police to investigate thoroughly allegations of rape and serious sexual assault were capable of founding liability, as a public authority under s.6 of the HRA, for breach of Article 3. So held the High Court (Green J) giving judgment against the police arising out of their failure to investigate and so apprehend W the so-called “Black cab rapist” who drugged and raped over 100 women in a six-year period 2002-2008. The claimants were among his victims. On the facts, there was a systemic failing in five areas which accounted for the failure to apprehend W, and so for the failure to bring an end to the rapes. Article 3 imposed a duty upon the police to investigate. This covered the entire span of a case from investigation to trial, the purpose of which was to secure confidence in the rule of law in a democratic society. The duty was not conditional upon the State being guilty, directly or indirectly of misconduct itself and was triggered where there was a credible or arguable claim that a person had been subjected to treatment at the hands of a private party which met the description of torture or degrading or inhuman treatment. That included allegations of crime that were “grave” or “serious” such as rape and serious sexual assault. Where a credible allegation of a grave or serious crime was made, the police must investigate in an efficient and reasonable manner, one capable of leading to the identification and punishment of the perpetrator. The duty was one of means, not results. Whether a breach had occurred was measured by viewing the conduct of the police over a relevant time frame. The assessment of the efficiency and reasonableness of an investigation took account of its promptitude and also whether the offender was adequately prosecuted. Investigative failings might be systemic or operational. That said, not every failing attracted liability; an operational failing which, had it not occurred, would not have been “capable” of leading to the apprehension and prosecution of an offender was also not actionable. The police were only liable for failing to meet an operational standard that was capable of leading to the apprehension and prosecution of an offender. The mere fact that a civil claim against the offender had succeeded and/or that disciplinary measures had been taken against defaulting officers was not sufficient to expunge liability; Article 3 required an effective criminal investigation. The process of determining whether an investigation was “reasonable” or “capable” of leading to the apprehension, charge and conviction of a suspect was a fact sensitive exercise. It was also subject to the margin of appreciation and to proportionality. The law must not impose an excessive burden on police. On those matters, Strasbourg case law was consistent, settled and mature; it articulated a test which did not open the Pandora’s Box of liability for the police and when applied rigorously by the domestic courts should not be such as to create a disproportionate burden on the police; the duty acknowledged by Strasbourg case law was not one which jarred with common law traditions but, on the contrary, was consistent with domestic law; and the conclusion was one which the domestic courts had not (in their admittedly brief encounters with the principle) objected to (DSD and NBV v Commissioner of Police for the Metropolis [2014] EWHC 436 QB).

Police complaints

The Court of Appeal, overturning the Divisional Court, held on an application for judicial review that there was an arguable case that current ACPO guidance –which while requiring that officers involved in fatalities did not confer, did not require their separation prior to the arrival of investigators from the IPCC – was unlawful as a breach of Article 2 of the ECHR. D1′s son had been shot dead by police officers. D2′s son had suffered a cardiac arrest following his detention by police officers (R (oao Duggan) v ACPO; R (oao Delezuch) v Chief Constable of Leicestershire, unreported 7 March).

Production Orders

While the principle in Al Rawi v The Security Service [2011] UKSC 34 that it is not permissible in either a civil or criminal trial for one party to be prevented from seeing evidence relevant to the other’s case did not in general apply to statutory procedures designed to gather evidence from a third party since they did not involve the determination of substantive rights, the principle should apply to applications under Schedule 1 of the Police and Criminal Evidence Act 1984 to obtain journalistic material. Such an application, and any production order that eventuates, is likely to involve a journalist’s legal rights. This had been recognised by Parliament, which had established the special procedure. Parliament had required, by that special procedure, that an application for a production order should be made inter partes. As a result, when that application was made, there was a discrete legal issue between (here) the police and B. Equal treatment of the parties to that issue required that each should know what material the other is asking the court to take into account in making its decision, and should have a fair opportunity to respond to it. The Crown Court judge in this case should not have taken into account evidence from which B was excluded. So held the Supreme Court in application by B against which a production order had been made, in the absence of its representatives, as part of an investigation into leaked security documents (R (on the application of British Sky Broadcasting Limited v The Commissioner of Police of the Metropolis [2014] UKSC 17).

Stop and search

On 30 April, the Home Secretary made a statement in the House of Commons on the use of stop and search powers by the police indicating that perhaps as many as a quarter of a million stops could be illegal. She announced a reform package including a revised code of practice making clear what constituted “reasonable grounds for suspicion” under the Police and Criminal Evidence Act and a review of national police training to include “unconscious bias awareness training”.

Section 60 of the Criminal Justice and Public Order Act 1994 which permits stops and search without reasonable suspicion under a general authorisation based on (i) a reasonable belief that incidents involving serious violence might take place in any locality in that police area, and (ii) that it was expedient to give such an authorisation was not unlawful for being either a violation of Article 5 or 14 of the ECHR. It did not constitute a deprivation of liberty and there was no evidence that there was anything in the legislation which itself was racially discriminatory. So held the Court of Appeal upholding the decision of the court below (R (oao Roberts v Commissioner of Police for the Metropolis [2014] EWCA Civ 69).


Prisoners and mental health detainees

See also Administration of justice; Parliament

Whole life tariffs

It was not incompatible with Article 3 of the ECHR as determined in Vinter (App 66069/09 ECtHR judgment 9 July 2013) for a convicted defendant to be sentenced to a whole life term under s.269 of the Criminal Justice Act 2003. There was nothing in Vinter that gainsaid Parliament’s power to establish a framework of whole life sentences as a just punishment for the most heinous crimes. Vinter held that where there was the prospect of release and possibility of review, and provided a legal regime for review was in place at the time the sentence was passed, a life sentence would be compatible with Article 3. Here, the review regime in s.30 of the Crime (Sentences) Act 1997 was compatible with Article 3: it was sufficiently certain and following R v Bieber [2008] EWCA Crim 1601, the Secretary of State was bound to exercise the power in s.30 in a manner compatible with Article 3. The power of review arose in exceptional circumstances justifying release on compassionate grounds. The term was sufficiently certain and had in any event to be read compatibly with Article 3. Section 30 therefore gave offenders the possibility of release in exceptional circumstances. It was entirely consistent with the rule of law that applications were considered on an individual basis against the criteria that circumstances had changed to such an extent that the punishment was no longer justifiable (Re A-G’s reference (No. 69 of 2013); R v McLaughlin [2014] EWCA Crim 188).

Mental health and deprivation of liberty

What would be a deprivation of liberty for a non-disabled person is also a deprivation for a disabled person. The key feature was whether the person concerned was under continuous supervision and control and was not free to leave. The person’s compliance or lack of objection, the relative normality of the placement and the purpose behind it were all irrelevant to that objective question. So held the Supreme Court in joined applications by three individuals (two with learning difficulties and one with cerebral palsy and Down’s syndrome) who were either in a foster home or some form of residential accommodation either arranged by or provided by the local authority. P lived in accommodation arranged by his local social services authority, in a staffed bungalow with other residents near his home following the grant of a Court of Protection order. One to one support enabled him to leave the house frequently for activities and visits. Intervention was sometimes required when he exhibited challenging behaviour. MIG (aka P) was placed with a foster mother; she never attempted to leave the foster home by herself but would have been restrained from doing so had she tried. MEG (aka Q) lived in a residential home for learning disabled adolescents with complex needs. She sometimes required physical restraint and received tranquillising medication. None of the courts below had concluded that any of these arrangements constituted a deprivation of liberty. These were all overturned by the Supreme Court who held (in the case of MIG and MEG by a majority) that each was a deprivation of liberty and so needed authorisation by a court or by the procedures known as the deprivation of liberty safeguards (DOLS) in the Mental Capacity Act 2005 (introduced following HL v UK (2004) 40 EHRR 761) and subject to regular checks. The purpose of the DOLS was to secure independent professional assessment of (a) whether the person concerned lacked the capacity to make his own decision about whether to be accommodated in the hospital or care home for care or treatment, and (b) whether it was in his best interests to be detained. The ECtHR had established general principles relating to the deprivation of liberty of people with mental disorders or disabilities, albeit that it had not yet had to decide a case involving, as here, a person without capacity, who appeared content with their care placement, which was in a small group or domestic setting as close to home life as possible, and which had been initially authorised by a court. The general principles made it clear that it was important not to confuse the question of the benevolent justification for the care arrangements with the concept of deprivation of liberty. Human rights have a universal character and physical liberty was the same for everyone, regardless of their disabilities (P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council; P and Q aka MIG and MEG (by their litigation friend, the Official Solicitor) v Surrey County Council [2014] UKSC 19).


Public Order

In deciding whether a direct action protester had a defence to a charge of aggravated trespass contrary to s.68 of the Criminal Justice and Public Order Act 1994 – the disruption or obstruction of a third party’s lawful activity – the key was to ascertain whether the third party’s (alleged) criminal offence that was complained about was integral to the third party’s core activity carried on, and which was disrupted or obstructed. Not every incidental or collateral criminal offence could properly be said to affect the lawfulness of the activity, nor to render it criminal. It would not do so when there was some incidental or collateral offence, which was remote from the activity. So held the Supreme Court unanimously upholding the convictions of two campaigners who had mounted a non-violent protest in a London shop that specialised in selling beauty products derived from Dead Sea mineral material. The pair objected to the shop because its wares were connected with an Israeli-owned business in the West Bank. Thus, the protesters’ claim that the company running the shop was guilty of the offence of cheating the Revenue through asserting certain tax or excise advantages under an EC-Israeli Association Agreement which did not in fact extend to products originating in the Occupied Palestinian Territory was a classic example of a collateral, and in fact antecedent and remote, offence which did not affect the lawfulness of the core activity of the shop, namely retail selling At most, it meant that the importer was liable to repay the Revenue any duty which ought to have been paid but was not. The Supreme Court did narrow the seeming scope of the Divisional Court judgment which indicated the defence would be confined to situations where the disrupted or obstructed activity was “patently unlawful”. (DPP v Richardson [2014] UKSC 8).



See also Parliament


The Independent Reviewer of Terrorism Legislation, David Anderson QC, laid his annual report on the operation in 2013 of Terrorism Prevention and Investigation Measures (TPIMs), the successor to control orders, before Parliament on 27 March.  Only 10 people have been subject to TPIMs since 2012.  Two had absconded, and most of the other TPIMs expired after reaching their two-year limit.  On the same day, it was announced in a written ministerial statement that since February 2014 no TPIMs had been in force. The report makes ten recommendations which, if accepted, would strengthen the locational measures on TPIM subjects, provide for probation-led interventions, clarify the circumstances in which TPIMs can be sought and address deficiencies in the procedures for judicial appeal and review.

Counter-terrorism powers

The lawful use of the powers contained in Schedule 7 of the Terrorism Act 2000, to stop and question at ports, is for the purpose of determining whether M appears to be “concerned in the commission, preparation or instigation of acts of terrorism”. M was stopped at Heathrow en route to the USA, and (according to a Security Service assessment) was carrying items that would assist G (a journalist instrumental in the media publication of NSA and GCHQ material obtained from Edward Snowden) in releasing more material in his possession. On the facts, it was clear that the purpose of the stop and question was to ascertain the nature of the material which M was carrying and if on examination it proved to be as was feared, to neutralise the effects of its release (or further release) or dissemination and not the unlawful one, of assisting the Security Service in obtaining access to the material in M’s possession. So held the Divisional Court in an application for judicial review by M claiming that his detention and questioning were unlawful for want of legal authority and/or violation of his Convention rights. In deciding whether the statutory purpose was made out, the court was not limited to a consideration of the examining officers’ subjective state of mind. The primary evidence for the determination of the stop’s purpose was likely to be the terms of the instructions given to the examining officers. The power in Schedule 7 was given in order to provide a reasonable but limited opportunity for the ascertainment of a possibility: the possibility that a traveller at a port may be involved (“concerned” – s.40(1)(b)), directly or indirectly, in any of a range of terrorist activities enumerated in s.1(2) of the 2000 Act. If the possibility was established, the statute prescribed no particular consequence. The outcome of a Schedule 7 examination was thus open-ended. What happened would depend, plainly, on the outcome of the Schedule 7 examination including any searches where those had been carried out. There may be a prosecution for an offence under the Act, or indeed some other offence; materials in the subject’s possession may be retained if the general law allowed it; the subject might be released with no further action. The examining officers were not required, as a condition of the power’s lawful use, to have concluded before they executed the stop that the claimant “[appeared] to be a person falling within section 40(1)(b)“. The power’s very purpose was to ascertain whether the subject so appeared. Although M was not a journalist and the stolen GCHQ intelligence material he was carrying was not “journalistic material”, or if it was, only in the weakest sense, he was acting in support of G’s activities as a journalist and thus it was accepted that the Schedule 7 stop constituted an indirect interference with press freedom, and so with Article 10 of the ECHR. The Schedule 7 power was though not over-broad or arbitrary, and so was “prescribed by law”. Neither was the power unlawful in terms of Article 10 for want of any provision for prior judicial scrutiny. The Strasbourg court had not developed an absolute rule of prior judicial scrutiny for cases involving State interference with journalistic freedom, empowering states with the margin of appreciation (R (oao Miranda) v Secretary of State for the Home Department [2014] EWHC 255 Admin).

Note: there is some discussion by Laws LJ on the concept of proportionality in light of Lord Sumption’s restatement in Bank Mellat v Her Majesty’s Treasury (No 2) [2013] UKSC 39.


David Mead is Professor of UK Human Rights Law at the University of East Anglia. He is also Current Developments Correspondent for the UKCLA Blog, and Current Survey Editor of Public Law.



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James Hand: Lords response to Labour Peers’ Working Group Report – A Programme for Progress: The future of the House of Lords and its place in wider constitution.

James-Hand-140-x-150The House of Lords have recently debated the Labour Peers’ Working Group report looking at the future of the House of Lords and its place in a wider constitution. The report was published on 28th May 2014 and was generally well received by contributors from all sides during the 4 hour motion to take note. Lord Dubs, one of the authors, has set out the key conclusions of the working group here but in summary they seek to achieve in the interim a smaller House of Lords, limited to 450 members, ahead of a constitutional convention to decide on the future of the House of Lords and, potentially, other constitutional issues. The report also dealt with other matters such as recommending the final abolition of the remaining hereditary peers’ right to sit (in contradiction to the compromise in 1999 ‘binding in honour’ on those who assented that they should remain until the second and final stage of reform had taken place), ceasing to wear robes during introduction and some procedural reforms. This post, however, shall focus on two significant issues arising from the debate: the prospects for a convention and the division over the means for the reduction in the size of the House.

A constitutional convention

There has been much talk of a constitutional convention in Scotland should the Yes campaign win September’s referendum there (see e.g. Aileen McHarg’s and Katie Boyle’s blog posts) but regardless of the outcome of that referendum the constitutional position of the whole UK, and the House of Lords within it, is open to question following years of piecemeal constitutional reform. With one or two notable exceptions, there was general support among the speakers for the proposal that there should be a convention.

While the report limited the scope of the proposed convention to considering ‘the next steps on further reform of the House of Lords and any consequential impact on the House of Commons and on Parliament as a whole’ (para 3.14), some speakers took a wider approach. Lord Gordon of Strathblane, for example, endorsed the idea but held that the way European legislation was dealt with and the operation of the House of Commons would be higher up the list for consideration by such a body and Lord Norton of Louth, who had previously argued for one before with a different scope, considered that we need one ‘to help us make sense of where we are, and not necessarily to tell us where we should be going—Parliament can decide that once we have a much clearer appreciation of where we are in terms of the structures and relationships that form our constitution’ (at col 952). Only two peers from some 40 peers who spoke, expressed opposition: Lord Stephen questioned whether any convention could come up with any new answers about the Lords and Lord Howarth of Newport thought that the political parties should distance themselves but that the process ‘might valuably be undertaken by academics and think tanks, which could elucidate the issues and offer useful ideas.’ He further stated that a ‘royal commission, or a commission or convention, will get things wrong… [w]hat they recommend will be found not to work’ before going on to note to the shortcomings of the US Constitution and the 1990s Scottish Constitutional Convention (at col 959).

Significantly, both front benches spoke positively of a wider convention. Lord Hunt of King’s Heath, for the Opposition, noted that not ‘all noble Lords are in favour of such a proposal, but we cannot consider Lords reform in isolation from the many other pressing issues that we face in relation to the constitution, not least, as [Lord Maxton] said, in today’s era of new technologies, and also, as the noble Lord, Lord Phillips, said, in view of young people’s disengagement from politics’ (cols. 983-984). For the Government, Lord Wallace of Saltaire went further:

The case for a commission or convention is out there. There was an excellent report by the House of Commons Political and Constitutional Reform Committee last year which suggested that the Government have no view on this issue at present. However, personally and as a Minister, this is a question that we ought to be debating in the last year of this Parliament. I welcome what the noble Lord, Lord Foulkes, and others are doing. It is one that we all need to consider because we need to look at how all of this runs together. (col. 987)

That is not say that a convention will be immediately forthcoming as time is too short to define what is sought before the election, but that the topic of a convention is, to quote Lord Wallace, ‘precisely the sort of thing’ that could usefully be considered in the last year of a fixed-term parliament which could then be taken forward by the next government. A constitutional convention for the UK (or rest of the UK) can thus be seen to be more likely than it has been in the past.

Reducing the size of the House

There was broad agreement that the House of Lords needed to be smaller and, with one exception, that it should be smaller than the House of Commons. The Act passed in the last session (colloquially termed the Norton-Steel-Byles Act) sought to reduce membership through expulsion due to criminal offence, voluntary resignation and removing those who failed to attend any sitting during a session (the first of which is in force now and the latter two due to come into force this summer). The report proposed a more drastic threshold of 60% of sittings in a session (which they curiously refer to as an average (at para 8.11)), unless there are exceptional circumstances, and a compulsory retirement for all those who reached the age of 80 in the preceding session (at paras 8.5-8.6).

To have an arbitrary age limit cut-off is inherently discriminatory – in another context it has been described as ‘the statutory age of senility’ – and the justification is slight. Its proponents describe it as the least worst alternative. However, there was support by a number of peers for an evolution of the process that saw the hereditary peers whittled down (attributed to Billy Bragg by the Joint Committee on the Draft House of Lords Reform Bill and as, for example, written about here). Each Parliament, the parties could determine how many peers each should have (possibly based on the general or other election results, either by each election or through using a rolling average) and then elect or select within themselves which peers should remain. Lord Norton of Louth when preferring such a scheme to an arbitrary age limit noted that it ‘would enable the issue of overall size, as well as party balance, to be addressed effectively’ (col. 952). Lord Haskell appeared to prefer a one-off repeat of the Weatherill hereditary peer reduction followed by a formula allowing new peers to be allocated between the parties and the cross-benches (col 980). The proposal fared less well on the front benches. Lord Hunt of Kings Heath drew an unflattering comparison with the hereditary by-elections (where there are sometimes more candidates than remaining peers to act as electors, particularly with regard to the Labour hereditaries) and considered that the cut-off at the age of 80 was the least worst option (col. 983). Lord Wallace of Saltaire pictured ‘a wonderful series of bloodlettings within each of the two groups’ (seemingly forgetting about the Liberal Democrats and others) but, when challenged by the Earl of Sandwich, acknowledged that it was ‘one way of addressing the question of topping up after the election’ (cols 988-989).

In seeking to dismiss the concept of a modified-Weatherill approach to the question of the numbers of sitting life peers (either as a one-off or occurring each Parliament), the frontbench spokesmen appear to have overlooked a number of issues. Lord Hunt was concerned that a system that sought to replicate the general election results would be a strange basis for a distinct House. However, he fails to take account of a sizeable presence of cross-benchers (fixed in one version of the proposal at 20%) which would automatically render the make-up of the House different from the Commons. Furthermore, a system of rolling averages – to avoid temporary blips in electoral support being reflected in the less democratic, less powerful, more reflective House – could be used if a longer term view was sought or, to reflect the differences in different elections, a formula comprising local and European results instead or as well could be adopted. While such a system to reduce the peers – and in the Norton, if not Haskell formulation, keep the number in regular (and reasonably proportional) check – is derived from the Weatherill reduction of peers, to disparage it based on the hereditary peer by-elections is to ignore the differences in size of much of the electorate (there are, for example, over 200 Labour life peers (and nearly 100 Lib Dems) but they have only four sitting hereditary peers each). What would take place would not be a ‘blood-letting’ in Lord Wallace’s words but a pruning (or re-potting if former peers returned following a change in the political wind) which could take account of the age and past attendance but would do so in the round and not as an arbitrary cut-off. Such a system would allow peers to emulate the now late Lord Wilberforce, who regularly attended over 100 times a year, even when in his mid 90s, if they had valuable contributions to make while allowing others to retire if they so wished or to take a sabbatical and return if there was sufficient support amongst their colleagues. Only if there had been a large number of appointments during a session (which could be prevented by a statutory appointments commission) or there had been a radical change in support would there ever likely be a sizeable change in membership (which would be further reduced by both the option of retirement and the inevitability of death).

There seems to be near universal agreement that the House of Lords’ size needs to be constrained, not least as the risk now looms large of a ballooning house if new appointments are made to reflect changing strength in the Commons looms (as predicted by Robert Hazell & Ben Seyd and Meg Russell) even if there is not unanimity about the actual size. It would, on the precedent of the Weatherill amendment, only take a small change to legislation to bring about a system of indirect election as mooted by Lord Norton of Louth which would retain much of the existing strengths (and membership) of the House and which could act to prevent chamber-hopping (see e.g. Meg Russell’s piece from March) and allow more time for a wider-ranging constitutional convention to take place.


James Hand is an Associate Senior Lecturer at the University of Portsmouth

(Suggested citation: J. Hand, ‘Lords response to Labour Peers’ Working Group Report – A Programme for Progress: The future of the House of Lords and its place in wider constitution’ U.K. Const. L. Blog (29th June 2014) (available at


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Edward Kirton-Darling: Missing: political genius. If found, please return to the British People, care of Palace of Westminster, SW1A.

Edward2If Scottish voters chose independence in the referendum in September, the SNP confirmed on 16 June that a written constitution for Scotland would be drawn up. Where does that leave the rest of the UK? In an endeavour to consider what Scottish independence would mean for the rUK, this post considers Lord Bingham’s accounts of the proper relationship between the Rule of Law and Parliamentary Sovereignty, and, drawing on his concern about an imbalance within Parliament, argues that if Scottish were to secede, this would further unbalance the rUK’s constitutional order.

Lord Bingham, the Rule of Law and Parliamentary Sovereignty

In 2007, Lord Bingham set out his perspective on the relationship between the rule of law and parliamentary sovereignty in a Commemoration Oration at Kings. Much of the speech was subsequently reproduced in 2010 in Chapter 12 of his book, but for one significant amendment, which I will come to below. Bingham argued that fundamental rights must be incorporated into any proper account of the rule of law, and having set out the rights contained in the ECHR, which are “as good a check list as any,” he paused to wonder that “It is hard to understand how this very basic and practice catalogue of rights has come to be portrayed to the public as some ill-conceived, European-inspired, affront to the commonsensical conduct of government.” For Bingham, rights are not enough; at the heart of the rule of law is democracy, and the ability of a citizen to have a say in the laws by which they are bound.

Lord Bingham then turned to parliamentary sovereignty and dismissed arguments suggesting there were legal limits on Parliament’s ability to constitutionally legislate howsoever it wished. Where legislation which interfered with fundamental rights was clear and unambiguous, the courts have no power to annul or modify such enactments. Where courts do have such power, it exists by operation of Acts of Parliament, and if Parliament told them to do so, courts would stop interfering. He reserved particular ire for arguments based on common law fundamental rights – whether founded in obiter remarks by Sir Edward Coke in 1610 or Lord Steyn in 2005 – concluding that “The British people have not repelled the extraneous power of the papacy in spiritual matters and the pretensions of royal power in temporal in order to subject themselves to the unchallengeable rulings of unelected judges.”

However, this stirring paean to a sovereign British Parliament left Lord Bingham with the problem of the protection of fundamental rights. He was not persuaded by the argument that in practice, Parliament will not interfere with fundamental rights, indeed it was not hard for him to envisage such interference. Instead, checks and balances within the concept of Parliamentary Sovereignty hold the key, and traditionally, the rule of law was protected by the existence of 3 powerful independent players in the Crown, the Lords and the Commons. In this context, the contemporary “vice at the heart of our constitutional system” is the overweening unrestricted power of whoever is in a majority in the House of Commons. Such a party can effectively act as it wishes, including passing legislation which interferes with the rule of law, and Lord Bingham argues that this serious problem, once squarely confronted, can surely be resolved by “the political genius of the British people.”

Crucially, the speech at Kings does not prescribe or even suggest what such a solution might look like. The tenor of the lecture, grounded in respect and admiration of the UK’s constitutional traditions, points towards a political solution to the tension between Parliament and the rule of law; maintaining a Parliament capable of legislating in any way it wished, but fixing the malaise by resolving the imbalance in the constituent parts of the sovereign Parliament; shackling the House of Commons, rather than the sovereign Parliament.

By 2010, this argument had changed (as I discuss below), but in relation to Scottish independence, there are two aspects of Bingham’s analysis which are important: (1) whether the Union with Scotland limited Parliament’s law making powers, and 2) how Scottish independence might affect the already unbalanced constitution.

Act of Union with Scotland & Devolution

In relation to devolution, Lord Bingham entirely dismissed any argument that Parliament had lost the power to legislate for Scotland (or Wales or NI). He maintained that as with the HRA and the EU, Parliament had curtailed its own power by express authority, and could revoke that power, at least in theory. However, the only chink which Bingham partially conceded in the armour of an all-powerful sovereign Parliament related to the question of Scotland. Bingham said:

It has been suggested, with some judicial support, that the principle of parliamentary sovereignty did not obtain in Scotland before 1707 and that the Union with Scotland Act 1706 cannot itself be amended or abrogated since it gave effect to the Treaty of Union in which certain provisions were agreed to be and were described in the Act as unalterable. The merits of this argument are far from clear. It is hard to see how the pre-1707 Scottish Parliament could have done anything more fundamental than abolish itself, and it is hard to accept that the Westminster Parliament could not modify the Act of Union if there were a clear majority in favour of doing so. But if, which I doubt, there is an exception here to the principle of parliamentary sovereignty, it is a very limited exception born of the peculiar circumstances pertaining to the union with Scotland and throws no doubt on the general applicability of the principle.

If Scotland votes yes to independence, we will shortly find out if Lord Bingham is correct, and political reality suggests his doubts are valid. The recent House of Lords Constitution Committee report on constitutional implications of the referendum concludes that a, relatively short, Act of Parliament would be capable of recognising independence for Scotland and the end of the UK’s legislative competence over Scotland. Clearly, If Scotland votes yes, and the UK Parliament passes legislation amending the Acts of Union, whether or not it existed before, this one possible exception cannot survive. However, this argument for a limited UK Parliament has been primarily limited to Scottish jurists and academics, as Baroness Hale acknowledged in Jackson v. AG [2005] UKHL 56, at para 159, stating “The concept of Parliamentary sovereignty which has been fundamental to the constitution of England and Wales since the 17th century (I appreciate that Scotland may have taken a different view) means that Parliament can do anything.” A resolution of the Scottish question will consequently have limited impact on arguments about sovereignty in the rUK.

Similarly, arguments over devolution’s role in undermining the classic theory of a sovereign Parliament (dismissed by Lord Bingham, and argued by Gavin Little in Scotland and Parliamentary Sovereignty (2004) 24(4) Legal Studies 540) will become outdated if Scotland votes yes to independence. For critics of Bingham’s approach, it may make little difference, as other putative substantive limits on Parliament remain and judges will continue to engage in constitutional analysis (see for example, M. Elliott U.K. Const. L. Blog (23rd January 2014) and Vernon Bogdanor Imprisoned by a Doctrine 32(1) OJLS 179). Thus Scottish independence will not definitively settle the question of legal limits to Parliament’s power either way, but as I argue below, it will have an impact on Parliament itself.

An Unbalanced Constitution

Lord Bingham’s 2007 resolution of the tension between a sovereign Parliament and fundamental rights under the rule of law was to turn to a critique of Parliament. In his account, there are no permissible legally enforceable limits to Parliament’s power, but the existence of checks and balances within a sovereign democratic Parliament would prevent express interference with rights. As such he proposes a Madison-style approach to avoiding majoritarianism, emphasising productive tensions within the legislative branch of government.

Alison Young’s post on this blog on 17th February 2014 argued that debate over whether judges or Parliament are supreme misses the point. Instead constitutional pluralism is evidenced by courts and Parliament checking each other’s excesses, with both asserting sovereignty in different circumstances, and neither able to finally demonstrate supremacy. The argument suggests that constitutional strength comes from the tension between institutions and their ability to exert restraint on each other.

Combining these two accounts suggests that intra-institutional checks and balances are important, and constitutional plurality is protected by tensions, both between constitutional institutions and within those institutions. Taking Bingham’s argument one step further, and focussing on Parliament in particular, productive tensions within the House of Commons, ensuring effective scrutiny of legislation and restricting a Government by requiring it to take different perspectives into account, is part of what ensures legitimacy and authority – and protects rights – in the UK’s constitutional order.

Concern about an imbalance within Parliament is not a recent development – Lord Bingham quotes a Victorian Lord Chief Justice with approval:

The constitution has lodged the sacred deposit of sovereign authority in a chest locked by three different keys, confided to the custody of three different trustees … One of them is now at length, after ages of struggle, effectually prevented from acting alone; but another of the two is said to enjoy the privilege of striking off the other two locks, when, for any purpose of its own, it wishes to lay hands on the treasure.

What difference will the independence of Scotland make to this debate? It is instructive to compare mid-Victorian Britain to a future rUK to consider this question. The criticism of an over-powerful House of Commons was made in a context in which the Monarch had been prevented from acting alone, but the House of Lords retained the power to veto, and in which party discipline (and consequent executive power over both Houses) was much weaker. Powerful local government, championed by J. Toulmin Smith and exemplified by the activities of Joseph Chamberlain in Birmingham, provided a political counterweight to Westminster, and economic power was split between London, established regional centres like Manchester and Glasgow, and newly developing industrial hubs like Middlesbrough, Gladstone’s “infant Hercules.”

Many of these political and economic balances are either gone or are dramatically denuded; with London, the House of Commons and the government within Parliament now far more dominant. Other restricting factors have emerged. The devolved institutions are one example, and while other limiting factors could be identified – some might point to the impact of social media and more transparent government, while stronger English regional voices may be emerging, see for example the launch of the North East Party on 26 May this year, – it is clear that the secession of Scotland would have an impact on the political checks and balances within the Commons itself.

Firstly, this is because the removal of Scottish MPs will result in a concurrent increase in the proportion of MPs voting with the government as part of the ‘payroll’ vote. Around 140 members (95 paid, and an estimated 45 unpaid Parliamentary Private Secretaries) are obliged by convention to vote with the government. The 95 members figure is fixed as an absolute number in primary legislation (while the number of PPS’ is not included and fluctuates). The result following Scottish independence – if no amendment is made to the payroll vote – will be that almost a quarter of the House of Commons will not generally be permitted to exercise an independent judgment on legislative matters. Such an increase may not have a dramatic impact on the Commons by itself (the current figure is approximately 22%), but is part of a long term trend of an increase in the ‘payroll’ vote which has already been subjected to fierce criticism (see the Public Administration Select Committee report “Too Many Ministers?” 9th Report, Session 2009-10).

Furthermore, as Keating has argued, Scottish MPs have traditionally operated on a regionally distinctive basis (See Michael J. Keating Parliamentary Behaviour as a Test of Scottish Integration into the United Kingdom, Legislative Studies Quarterly, Vol. 3, No. 3 (Aug., 1978), pp. 409-430). He showed (albeit pre-devolution) that the involvement of the majority of Scottish MPs in UK-wide politics was primarily aimed at seeking Scottish advantages. It could be argued therefore that removal of Scottish MPs would have little impact on a rUK, however, Keating shows disproportionately strong involvement by Scottish MPs on UK-wide Bills on economic affairs, in particular agricultural and fisheries (now devolved) and trade and industry (which is not devolved). Keating also argues that UK-wide legislation has been affected by Scottish members acting in a regionally distinctive way, illustrating this with the example of a failed attempt to legalise homosexuality across the UK in 1965 (subsequently applied to England and Wales only). Thus a Scottish MP arguing for the (perceived) best interests of Scotland affects the rUK, either through pushing UK-wide policies which are (perceived to be) best for Scotland, or through raising an argument for Scottish exceptionalism, with resulting negotiation, debate and scrutiny of proposed policies.

In a more recent paper, Keating and Cairney have shown that in a political culture moving towards a political class dominated by university educated middle class professionals, Scottish MPs were traditionally more diverse, “conforming more closely to the class stereotypes” (See Michael J. Keating and Paul Cairney, A New Elite? Politicians and Civil Servants in Scotland after Devolution Parliamentary Affairs (January 2006) 59 (1): 43-59). Although the upper class/public school/military representatives have subsequently disappeared from Scottish politics, Scottish MPs remain more likely to be from working class backgrounds than their English and Welsh counterparts.

Thus regionally distinctive behaviour by Scottish MPs has had implications for legislation affecting the whole of the UK, and the removal of Scottish members will have an homogenising effect on the Commons post-independence, as well as removing one political party in the shape of the SNP entirely. Furthermore, the removal of Scottish devolution would also remove an inter-UK test of subsidiary; a hurdle which demanded attention when any policy was considered or legislation introduced.


Potential Scottish independence can be put into a context in which the UK might conceivably leave the EU and repeal the HRA. Many of the arguments for these steps appeal to a sense in which Parliament has lost its democratic sovereign right to govern. Their appeal is to a Diceyean Britain in which Parliament is supreme. However, in Dicey’s late-Victorian Britain, significant checks on majority rule remained; formally in the shape of a still powerful Lords and far more interventionist Monarch; politically in a UK with far more powerful economic and political regional traditions; and theoretically, with powerful arguments opposing an unlimited Parliament built on the Acts of Union.

Checks and balances remain part of the UK’s constitutional order, but a result of Scottish membership of the UK will be a reduction in the potential restrictions on a majority party in the House of Commons. If intra-institutional plurality is a source of legitimacy and authority, this reduction in plurality in the Commons undermines Parliament itself. Did Lord Bingham predict this? His later (2010) formulation of the way to resolve the tension between Parliament’s sovereignty and the rule of law was to tentatively propose a written constitution. Perhaps he had given up on the political genius of the British people in the interim, or perhaps he had higher hopes of us than we have recently been able to evidence.


Edward Kirton-Darling is a doctoral candidate in socio-legal studies at the University of Kent.

(Suggested citation: E. Kirton-Darling, ‘Missing: political genius. If found, please return to the British People, care of Palace of Westminster SW1A’  U.K. Const. L. Blog (26th June 2014) (available at


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Gabrielle Appleby and Joanna Howe: The High Court ends backdoor law making (for now)

gabrielle-applebyjoanna-howeCentral to the Australia’s conservative Coalition Government’s successful 2013 electoral campaign was its promise to ‘stop the boats’. By this, it was intended that the Coalition would do all it could to deter asylum seekers from arriving in Australia by boat. The measures it intended to implement included the reintroduction of Temporary Protection Visas (TPVs). The problem for the Government was that it did not have a majority in the Senate and both the Greens and the Australian Labor Party were opposed to the reinstatement of TPVs.

This blog post interrogates the attempts of the Australian Government through its delegated legislative powers to circumvent the Parliament – and more specifically the Senate –in its reintroduction of the TPVs. It has made repeated attempts to bring TPVs (or their equivalent) into law in the face of express parliamentary disapproval. In the latest instalment of the conflict last week, the High Court in two cases – Plaintiff M150/2003 v Minister for Immigration and Border Protectionand Plaintiff S297/2013 v Minister for Immigration and Border Protection– struck down the Minister’s decision to limit the availability of permanent protection visas. With a change in the composition of the Senate due in July, there will undoubtedly be further attempts to introduce the policy.

In our view, these efforts greatly undermine the place of Parliament as the institution in which the Constitution vests legislative power, and the role of the Senate as a house of review and scrutiny in which delegated legislation is held to account.

Constraints on the making of delegated legislation

We all accept that to enable the great wheels of government to turn, it is necessary in some cases for Parliament to delegate legislative power to the government. The question however remains what constraints and checks exist on delegations via parliamentary scrutiny and oversight.

The Australian High Court has been heavily influenced by English parliamentary practice and principle (particularly parliamentary sovereignty) and pragmatic considerations of administration in its approach to the constitutionality of delegation of legislative power. In contrast to the American position, where the separation of powers and vesting of legislative power in the Congress has been used as a basis for a requirement that the Congress must set ‘intelligible principles’ to guide delegated power, there is no such restriction in Australia. The High Court has accepted the constitutionality of delegated legislative power, with almost no restriction. (The only restriction that was accepted was based on federal principles, that a delegating provision must retain a connection to federal power, the limitation has never been used to strike down a delegating provision. However, the most recent National School Chaplains decision – Williams v Commonwealth (No 2) – raised the possibility of the Court striking down the broad delegation of authority to approve executive expenditures in the future: see further discussion in a recent blog post by Graeme Hill.) Supervision of delegation has been left as a matter for Parliament to police.

At the federal level in Australia there is a comprehensive statutory regime for parliamentary scrutiny provided in the Legislative Instruments Act 2003 (Cth). ‘Legislative instruments’ are defined expansively under the Act. The Act provides for a number of accountability measures including the requirement that instruments be publicly registered, tabled before both Houses of Parliament, subject to possible parliamentary disallowance by any one of the houses, and subject to a 10-year sunset clause.

There are, however, problems with the current system of parliamentary scrutiny, for example the disallowance process. It was this loophole that was exploited in the government’s introduction of TPVs.

Challenging parliament’s role – the case of Temporary Protection Visas

Before delving into the minutiae of the Government’s recent attempts to introduce TPVs, it is important to sketch their chequered role in Australian refugee policy.

TPVs (or Subclass 785 visas) were introduced in 1999 by the conservative Howard Coalition Government. The visas were introduced through regulation as a new class of visas under the Migration Act 1958 (Cth). Section 31 of the Migration Act provides that there is to be ‘prescribed classes of visas’ – that is, visas prescribed by Regulations. Section 504 of the Act gives the Governor-General the power to make ‘make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed’. It is a wide delegation of legislative power, with the classes and conditions of visas being a highly contentious political issue in Australia.

TPVs created two classes of asylum seekers, those that had arrived by boat and were eligible only for temporary protection (‘illegal’ refugees) and those that had come by authorised methods (such as by plane) and were offered permanent protection (‘legal’ refugees). TPVs greatly reduced the rights of ‘illegal’ refugees, providing only limited rights to work and government welfare and no rights for travel or family reunion. Upon expiration of the visa after three years, visa holders had to apply for another TPV. TPVs were intended to deter asylum seekers from making the journey to Australia by boat and were heavily criticised on the basis of their ‘human cost’. They provided little certainty and hope to those claiming asylum, leaving them in ‘ongoing limbo’. They were also criticised as amounting to a breach of international law, particularly the obligations not to return asylum seekers to a country where they will be persecuted, and not to penalise persons for seeking asylum (see for example the criticism by Esmaeili and Wells).

In 2008, TPVs were repealed by the Rudd Labor government – again through regulation – as part of its wider roll back of the Howard Government’s refugee policies.

This brings us to the present day where the Abbott Coalition Government has attempted to reintroduce TPVs without parliamentary approval. Indeed, in spite of strong and explicit parliamentary opposition, the Government has managed to implement TPVs, at least for short periods, through Parliament’s delegation of legislative power.

The Migration Amendment (Temporary Protection Visas) Regulation 2013 (Cth), which came into effect on 18 October 2013, purported to deny permanent protection visas to unauthorised maritime arrivals through the reintroduction of TPVs.

The Senate disallowed this regulation on 2 December 2013. At the time of its disallowance it had been the subject of an investigation by the Senate’s Regulation and Ordinances Committee. This Committee noted three concerns with the Regulation. First was its retrospective operation, in that it invalidated all existing applications for permanent protection visas. Second was its undue trespass onto individual rights, particularly family considerations and the rights of children. Finally, the Committee raised concerns with lack of consultation prior to the making of the Regulation. The Government’s Explanatory Statement had claimed that the Regulation was introduced ‘as a matter of urgency’, and therefore no consultation was undertaken.

Under the Legislative Instruments Act, while the Senate can disallow regulations, if disallowed, regulations cease to have effect upon their disallowance rather than being void ab initio. This meant that the TPV Regulation continued in its operation between 18 October 2013 and 2 December 2013.

Thus, despite the disallowance, the Committee noted that its concerns and inquiries remained relevant for the period of the Regulation’s operation, and demanded a response from the government. The Minister didrespond to the Committee’s concerns. However, these responses, and the Committee’s subsequent inaction, demonstrate little rigorous parliamentary scrutiny even in this controversial policy area. In relation to the first concern, the retrospective application of the Regulation, the Minister explained:

Applying TPVs to persons having arrived prior to 13 August 2013 was important for consistency and fairness, with all relevant applications being assessed against the new criteria for the permanent protection visa.

In relation to the undue trespass on human rights, the Minister explained that ‘there is no right to family reunification under international law’. Further, the removal of the possibility of family reunification was vital to the policy aim of dissuading asylum seekers from journeying to Australia by boat. In relation to the Regulation’s effect on the rights of the child, the Minister said:

The extension of this approach to unaccompanied minors was to discourage them from undertaking such voyages to achieve resettlement for their families in Australia. It was the government’s view that the need to discourage minors from undertaking dangerous voyages and to maintain the integrity of Australia’s borders outweighs the best interests of the child to have the right to family reunification.

This response does not assert that the Regulation did not trespass on the rights of the child, but that the best interests of the child had been outweighed by the Government’s policy objectives.

Finally, in relation to the lack of consultation, the Minister reaffirmed the Explanatory Statement’s assertion that the Regulation was required ‘as a matter of urgency’, ‘to implement TPVs as a key element of the Government’s policies underpinning its border protection strategy to combat people smuggling and discourage people from making dangerous voyages to Australia.’ The Committee ‘thanked the Minister’ for his responses, and concluded its interest in all of the matters.

During the parliamentary recess over Christmas of 2013, in spite of the disallowance motion, the Government made the Migration Amendment (Unauthorised Maritime Arrival) Regulation 2013 on 12 December 2013, to take effect on 14 December 2013. This Regulation did not formally reinstate TPVs but its object was to deny permanent protection visas to unauthorised maritime arrivals. It did so by making a person who did not hold enter Australia on a valid visa ineligible for a protection visa. Instead, Temporary Humanitarian Concern Visas (a pre-existing visa class, Subclass 786) were offered to those persons. This visa cannot be applied for; an individual must be invited to accept the visa. The conditions mirror those that attach to TPVs. Government defiance of Parliament in the exercise of delegated legislative power was exemplified by the following exchange between Government and Opposition spokeswomen. An Opposition spokeswoman said the regulation was ‘clearly an attempt to steamroll the parliament’. A spokeswoman for Scott Morrison, the Immigration Minister, said ‘The Senate’s actions in disallowing TPV regulations has meant that the government has had to look at existing temporary visa options to achieve the same outcome.’

Section 48 of the Legislative Instruments Act prevents the making of a regulation by government within six months that is ‘the same in substance’ as a regulation that has been disallowed. The government claimed that the December Regulation was not ‘the same in substance’ as the October Regulation, despite the two laws clearly being directed at the same ends.

In addition to the December 2013 Regulation, the Minister also made a determination on 4 March 2014, to limit the number of protection visas that could be granted during that financial year to 2,773. This limit was reached just weeks later on 24 March 2014. This determination was made under section 85 of the Migration Act 1958 (Cth).

The December 2013 Regulation was disallowed by the Senate on 27 March 2014. However, in the time between their making and their disallowance, because of their retrospective operation, they had been applied to a number of asylum seekers. Some of these had been denied permanent protection visas and instead issued with Temporary Humanitarian Concern Visas. Others remained in detention, issued with no alternative visa in lieu of a protection visa for which they had applied. The period of the Regulation’s operation had been substantially extended because it had been made at the start of a long parliamentary recess and applied to any pending applications, not just those made after the Regulation came into effect. Because disallowance does not operate retrospectively the Government had achieved its policy objectives in the face of parliamentary opposition, at least for a short time.

The High Court weighs in

Two affected asylum seekers brought challenges to the December 2013 Regulation in the High Court of Australia. The plaintiffs’ claim was initially based on the argument that the Regulation was made in breach of s 48 of the Legislative Instruments Act. However, by the time the challenge was heard in May this year, the Regulation had been disallowed. The plaintiffs’ counsel argued in an early directions hearing that the argument should nonetheless be determined. He said:

[A]lthough while I accept that there would be a utility question, we were going to argue that the matter should proceed … in any event because the Minister obviously takes the view that he can remake regulations with relatively minor differences and that is okay and we would be concerned that he would just do it again if it was disallowed. So we would say that there is a line of authority in the US Supreme Court and the Irish High Court to the effect that where there is an area where there is a difficulty to review, the matter can be considered to be not moot even though the person affected is not necessarily directly affected.

However, by the time of the hearing, the plaintiffs had changed their challenge to focus on the validity of the Minister’s purported determination to limit the number of protection visas available during the 2013-14 financial year. The High Court held that the March determination was invalid as it went beyond the substantive scope of the power conferred by s 85 of the Migration Act 1958 (Cth). This is because this section is to be read in conjunction with s 65A of the Act that the Minister make a decision granting or refusing to grant a protection visa within a specified period of 90 days. The High Court found that in light of this, s 85 is not to be construed as empowering the Minister to determine the maximum number of visas that may be granted in a financial year. The rules of statutory construction required s 85 to be interpreted according to the Act as a whole by ‘adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions’ (quoting the principle from Project Blue Sky Inc v Australian Broadcasting Authority). The decisions are fairly orthodox, providing good examples of the application of the principles of statutory construction that require a harmonious, contextual construction.

The future of TPVs in a changed Senate

The current Senate remains opposed to the introduction of TPVs. On 1 July the composition of the Senate changes, with those Senators elected in 2013 taking their seats. The balance of power will shift from the Greens to mining magnate Clive Palmer’s newly formed ‘Palmer United Party’, together with a number of smaller party and independent Senators, one of whom has a loose alliance with the Palmer United Party. Their views on TPVs have not yet been tested, although the Palmer United Party’s policy on asylum seekers leading up to the 2013 election was far more moderate that that advocated by the Coalition.

There is a strong possibility that the Abbott Government will remake the regulations after July, probably before the expiration of six months from when the December Regulations were disallowed (on 27 March 2014). Indeed, it will need to do so quickly if it wishes to avoid having to make decisions about protection visas for a number of asylum seekers.

Given its track record in this area, there is a strong possibility these any new regulation would operate retrospectively, to catch all of those asylum seekers with pending protection visa applications.

Is there another way? Making delegated legislation more accountable

The Government’s use of delegated legislative provisions to defy the Parliament in its attempt to reinstate TPVs forces us to question whether the current mechanisms for ensuring the accountability of the Executive to the Parliament suffice in this area.

Although beyond the scope of this blog post, we believe that the Constitution requires the High Court to develop a set of judicially enforceable standards for the delegation of legislative power to the Executive in both a substantive and procedural sense. We look to the High Court because the current constitutional position – leaving the scrutiny of delegated legislation to the Parliament – has proven ineffective, characterised by overly broad delegations, exercise of delegations in a way that implements controversial policy issues that have often affect human rights, at times retrospectively. The scheme established by Parliament provides insufficient scrutiny and allows government exploitation of accountability loopholes. The time is ripe for the High Court to produce a set of constitutional requirements for delegations that ‘prod’ the Parliament to take responsibility for the delegation of power that is constitutionally entrusted to it.

Dr Gabrielle Appleby, Senior Lecturer, and Dr Joanna Howe, Lecturer

Adelaide Law School, University of Adelaide.

Drs Appleby and Howe will present their paper, ‘Scrutinising Parliament’s Scrutiny of Delegated Legislative Power’, which develops these arguments, at the Cambridge Public Law Conference in September 2014.

(Suggested citation: G. Appleby and J. Howe, ‘The High Court ends backdoor law making (for now)’  U.K. Const. L. Blog (26th June 2014) (available at

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Aileen McHarg: A Constitution for an Independent Scotland: the Draft Scottish Independence Bill

aileenIn her speech at Edinburgh University launching the draft Scottish Independence Bill, Nicola Sturgeon claimed that ‘the prospect of a Constitutional Convention and a written constitution are, in themselves, positive reasons for voting Yes.’  Many intending Yes voters will agree with that statement, viewing independence not only as a way of addressing Scotland’s perceived democratic deficit, but also as an opportunity for democratic renewal.

The adoption of a permanent written constitution is, however, a post-independence project.  In the interim, Scotland will require a set of constitutional arrangements to enable it to function as an independent state.  The draft Bill, which will only be introduced into the Scottish Parliament in the event of a Yes vote (and will require a preliminary transfer of power from Westminster), is thus intended to provide the necessary ‘constitutional platform’ for independence, as well as to impose a binding obligation on the Scottish Parliament to establish a Constitutional Convention to begin drafting a permanent constitution as soon as possible after independence.

The key problem for the interim constitution is one of legitimacy.  While the permanent constitution is to be adopted through a widely participative and deliberative process, independent of both Government and Parliament, the interim constitution is the initiative of the Scottish Government alone.  Although the draft Bill is subject to consultation, it will be enacted as an ordinary Act of the Scottish Parliament (ASP).  There are two dangers here.  One is that the interim constitution is a politically partisan document which lacks broad acceptance.  This is particularly problematic if it takes longer than expected to agree the permanent constitution or, indeed, if agreement ultimately proves impossible.  The other is that the interim constitution conditions the content of the permanent constitution through a process of path dependency, thus in practice blunting the radical democratic edge of the Constitutional Convention.  Both considerations counsel in favour of conservativism in the interim constitution, providing as much institutional and legal continuity with Scotland’s pre-independence constitutional arrangements as possible.

How well, then, does the draft Bill measure up?

There is indeed a good deal of continuity.  Scotland will remain a parliamentary democracy, with legislative power vested in the Scottish Parliament and executive power in the Scottish Government, accountable to the Parliament and through the Parliament to the people (ss 7(2), 10, 11, and 12).  It will also still be a constitutional monarchy, with the Queen as head of state, and all existing legal rights, powers and privileges of the Crown in Scotland preserved intact (ss 7(1) and 9).  Autonomous, elected local government will remain in place (s 17), and the continued independence of the judiciary and continued commitment to the rule of law are declared (ss 13 and 15).  The European Convention on Human Rights will still apply in Scots law and will be extended to cover all legislative and executive functions on the higher standard currently applied to devolved functions under the Scotland Act, rather than the lower standard applicable to reserved functions under the Human Rights Act (ss 26 and 27).  On the assumption that Scotland will be a member of the European Union, the supremacy of EU law is also explicitly accepted (s 24(2)).

There is, of course, some necessary innovation to provide Scotland with the full legal and institutional apparatus of an independent state.  The draft Bill thus provides for the concept of Scottish citizenship (s 18), establishes a Scottish civil service (s 16), and ends appeals to the UK Supreme Court (s 14).  It also makes provision for the conduct of international affairs and foreign policy, membership of international organisations, and ratification and incorporation of international agreements (ss 19 – 22).

Aspect of the draft Bill do, however, go beyond what is strictly necessary.  For instance, section 2 declares that ‘In Scotland, the people are sovereign.’  Arguably, this is not an innovation, but rather reflects a long-standing Scottish constitutional tradition which survived the Union with England.  The difficulty, though, is in understanding what the principle of popular sovereignty means when divorced from the specific claims of a right to self-determination and the rejection of Parliamentary sovereignty which gave it potency in the context of the Union.  Section 3 does attempt to give it content, asserting (in addition to the right to self-determination) that ‘[a]ll State power and authority … derives from, and is subject to, the sovereign will of the people, and those exercising State power and authority are accountable for it to the people.’  But how exactly this is to be reconciled with other aspects of the constitution, such as judicial independence, the continued acceptance of the royal prerogative as a source of executive power, or the supremacy of EU law remains to be seen.

More problematically, the Bill also contains a number of substantive value commitments.  These include: an obligation on the Scottish Government to pursue negotiations for nuclear disarmament and the removal of nuclear weapons from Scottish territory (s 23); constitutionalisation of the principle of equality (s 28); a duty to promote children’s wellbeing (s 29); protection for island communities (s 30); the right to a healthy environment (s 31); and a duty to use natural resources sustainably (s 32).  Whether a written constitution should contain substantive commitments of this kind is controversial, and they are particularly objectionable when it is not clear that there is broad public support for their inclusion.

However, the significance of this objection is perhaps reduced by a deeper continuity in the proposed interim constitution.  As already noted, the Bill will be enacted as an ordinary ASP, and the consultation paper accompanying the Bill makes clear that it will not have any entrenched legal status.  Nor, indeed, will Scotland’s interim constitution be a codified one.  Rather, the Bill will take its place as one of a number of constitutional statutes, alongside a revised Scotland Act, the Human Rights Act, the Representation of the People Acts and others.  As such, it will be amendable by subsequent Parliaments by simple majority, although amendment will have to be express, not merely implied, and there will be a certification process adopted to ensure that amendments are properly identified and considered.

Some people may object that this provides insufficient security for Scotland’s post-independence constitutional arrangements.  It is, however, a valid constitutional model, which should not be rejected out of hand.  An important task for the Constitutional Convention in drafting the permanent constitution will be to consider how best to reconcile the competing virtues of constitutional certainty and flexibility; in other words, how best to prevent abuse of power without unduly constraining future generations and excessively empowering unelected judges.  In the meantime it is clear that, in constitutional terms, independence for Scotland will be as much evolutionary as revolutionary.

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


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


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Stephen Tierney: Leaving Westminster: Constitutional Supremacy in an Independent Scotland

stierneyOn 16 June the Scottish Government unveiled its Scottish Independence Bill in an address by Nicola Sturgeon, Deputy First Minister of Scotland, to the Edinburgh Centre for Constitutional Law.

The referendum on independence for Scotland will be held on 18 September this year and commentators have been waiting for a detailed elaboration of the constitutional steps that would be taken by the Scottish Government in the event of a Yes vote by the people. The Scottish Independence Bill (‘the Bill’) sets out an interim constitution which, it is intended, will be passed by the Scottish Parliament to take effect on Independence Day (scheduled for 24 March 2016), and also paves the way for the drafting of a permanent constitution by a constitutional convention which will probably commence work later that year.

In a related post one member of my research team has looked at the transitional arrangements necessary to bring these changes about. In this piece I will set out the background to the proposal, look at the terms of the proposed interim constitution contained within the Bill, and consider the process by which a permanent constitution might be drafted. I will conclude by asking whether highly elaborate and detailed constitutions are really needed in a healthy parliamentary democracy, or whether in fact an independent Scotland would be better served by maintaining the advantages of the Westminster model, trusting in an open political process in which important decisions are left to parliament or to citizens acting directly in referendums.

The story so far

The Scottish Government reached agreement with the UK Government in October 2012 on the principle that Scotland can hold a referendum on independence. This was endorsed by way of secondary legislation and, consequently, the Scottish Parliament passed into law two bills establishing the franchise for the referendum and the broader process rules.

Furthermore, the Bill builds upon an earlier declaration of the Scottish Government’s constitutional ambitions. In November 2013 the Scottish Government published its White Paper, Scotland’s Future, which stated that an independent Scotland will have a new written constitution. This paper announced that Westminster parliamentary supremacy would be replaced with the principle of popular sovereignty, a commitment reiterated in the Bill (section 2): ‘In Scotland, the people are sovereign’. It is however anticipated that this sovereignty will manifest itself in a highly elaborate written constitution as a result of which the powers of the Scottish Parliament will be substantially curtailed.

Is the Scottish Independence Bill significant?

The Bill is notable for setting out both the substantive terms of the interim constitution and the process by which a permanent written constitution will be drafted following the Scottish Parliament elections in May 2016. The proposal is of course only for an interim constitution. It would take effect on ‘Independence Day’ in March 2016 (s1) but would continue in force only until a permanent written constitution for the State ‘is agreed by or on behalf of the people of Scotland’ (s4). We also need to contextualise this since it is a long way from taking effect. First, there would need to be a Yes vote in the referendum which current opinion polls do not suggest is likely. Secondly, the Bill is being offered up for consultation, so even its draft form is not set in stone. Thirdly, the passage of the Bill by the Scottish Parliament prior to independence would require legislation or at the very least a s30 Order in Council under the Scotland Act 1998, transferring the necessary powers to the Scottish Parliament. And fourthly, in being passed into law by the Scottish Parliament, the Bill could again be significantly amended.

But if the ‘Yes Scotland’ campaign is victorious in September the draft Bill will no doubt be the blueprint for the early years of Scottish independence. The Scottish Government, with a majority in the Scottish Parliament and with the momentum of a referendum victory, will doubtless get its way in the parliament after September. Secondly, although intended only as an interim measure, there may well be path dependency whereby a number of its provisions eventually find their way into a permanent constitutional document (the Scottish Government expressly anticipates this – Explanatory Notes p64).

The Interim Constitution: a bridge from parliamentary to constitutional supremacy?

There is no attempt in the Bill to put all of its provisions beyond the ordinary legislative process; the interim constitution is on its face open to repeal or amendment by ordinary act of the Scottish Parliament.

It is anticipated that in due course there will be a permanent written constitution in which the supremacy of that constitution over the powers of the Scottish Parliament is expressly declared. But until then, during the interim constitutional period, the Scottish Parliament will operate through a regime of self-imposed legislative restrictions in a limited number of areas. Most notably the Bill seeks to maintain the current provision contained in s29(2)(d) of the Scotland Act 1998 whereby the laws of the Parliament can be struck down on the grounds of incompatibility with Convention Rights (see the Bill ss 26 and 27). It is also anticipated that the Bill will ‘sit alongside… a refreshed and rewritten Scotland Act’ (Explanatory Notes p50), which will no doubt reiterate the human rights restriction, and will integrate the Human Rights Act 1998 into this renewed Scotland Act (partly through the principle of continuity of laws – the Bill, s34). We should also note s 24 which provides ‘Scots law is of no effect so far as it is inconsistent with EU law’. Therefore, although Schedule 5 of the Scotland Act will be repealed, freeing the Scottish Parliament from the constraints of those matters currently reserved to the Westminster Parliament, the interim constitution is intended to re-impose restrictions on the competence of the parliament, from the inside as it were.

In technical terms the model will be of interest to Westminster commentators because it suggests a period of half-way transition from the Westminster model. The Explanatory Notes p60 make clear that there will be no ‘hard amendment formula’ in the interim arrangements. The status of the interim constitution will be preserved in part by a ‘certification system’ whereby a minister or MSP introducing a bill to parliament would declare if the new act would amend the existing interim constitution. The planned Scottish Supreme Court (see below) could not declare such amendments to be unconstitutional but could strike down the laws of the Scottish Parliament if incompatible with EU law or Convention rights.

This is a complex set of arrangements and after independence the status of the interim constitution will no doubt be addressed by the new Scottish Supreme Court (see below). It would be interesting to observe how the court would make sense of this quasi-entrenchment of rights and EU law in a system where the interim constitution itself is not entrenched. If the Scottish Parliament did act incompatibly with Convention Rights or EU law, in a fully self-conscious way, would a court consider this to be unconstitutional or would it treat ss 26 and 27 as self-imposed restrictions which the parliament of an independent Scotland is free to amend at will?

A permanent constitution for Scotland: entrenching policy?

One should be sceptical of course of the very idea of a ‘permanent’ constitution. But whereas some countries do change constitutions frequently, in the post-war West constitutions have enjoyed more stability than in earlier times and in other parts of the world. We can assume then that a ‘permanent’ constitution for Scotland may indeed be a document of considerable durability.

One notable aspect of the Scottish Government’s proposal is the desire to entrench within a permanent constitution so many issues which are in effect policy preferences.

In its 2013 White Paper the Scottish Government offered a fairly extensive list of what it thinks the constitution should contain. These have continued to be central to its vision for independence and a number of them appear in the interim draft constitution contained in the Bill. For example:

  • equality of opportunity and entitlement to live free of discrimination and prejudice (see also the Bill s28 – although there is no specific reference in s28 to prejudice)
  • entitlement to public services and to a standard of living that, as a minimum, secures dignity and self-respect and provides the opportunity for people to realise their full potential both as individuals and as members of wider society (not in the Bill)
  • protection of the environment and the sustainable use of Scotland’s natural resources to embed Scotland’s commitment to sustainable development and tackling climate change (the Bill ss 32 and 33)
  • a ban on nuclear weapons being based in Scotland (the Bill s23 contains a commitment to ‘pursue negotiations with a view to securing… the safe and expeditious removal from the territory of Scotland of nuclear weapons based there’.)
  • controls on the use of military force and a role for an independent Scottish Parliament in approving and monitoring its use (no specific reference in the Bill but s19, as well as committing Scotland to respecting international law, extends this also to promoting peace, justice and security)
  • the existence and status of local government (the Bill s17)
  • rights in relation to healthcare, welfare and pensions (not in the Bill)
  • children’s rights (a duty on the Scottish Government to promote the wellbeing of children in Scotland – the Bill s29)
  • rights concerning other social and economic matters, such as the right to education and a Youth Guarantee on employment, education or training (not in the Bill)

It is notable that in the White Paper there was no commitment that a number of the proposed rights, such as the opportunity of education, training or employment and rights to welfare support and health care would be legally enforceable by courts but rather the more open-ended suggestion that they will be ‘questions of social justice at the forefront of the work of Scotland’s Parliament, government and public institutions.’ Notably, these rights do not find their way into the Bill at all. But they may well reappear following the consultation process, or may find their way into a permanent constitution. In such an event, enforceability will be an issue, with a debate likely as to whether and how these are to be in any way legally actionable.

The Bill also declares that Scotland is a ‘constitutional monarchy’ (s7) and ‘the Queen in Head of State’ (s9). In the White Paper it was added that Scotland would remain a constitutional monarchy ‘for as long as the people of Scotland wish us to be so’. This suggests that the head of state issue could be revisited in the process of drafting the permanent constitution. With the commitment in the Bill to popular sovereignty we might expect a debate about the compatibility of these different commitments. 

Sovereignty of the Judiciary

The Bill also provides that the existing high courts, the Court of Session and High Court of Justiciary, will be in their respective areas of competence ‘the Supreme Court of Scotland’ (s14).

It is interesting that the current court system will continue. The Bill suggests that judges will be given fundamental powers including, in a permanent constitution, the power to review acts of the Scottish Parliament on a wide range of issues. Since judges will become very important political actors in an independent Scotland there will no doubt also be consideration as to whether a new, specialist constitutional court might be needed and also an enquiry into how judges are appointed.

If it comes to drafting a permanent constitution it should also be noted that there are also other options available for constitutional review, such as a review committee of Parliament which could advise that draft legislation might be counter to constitutional principles, Parliament then retaining power to accept or reject this advice. The notion that judicial review of legislation is the automatic default option is highly questionable.

Drafting the Constitution: A Scottish Constitutional Convention?

The White Paper provides that, following the elections of May 2016, a constitutional convention will be established to ‘prepare the written constitution’. This commitment is stated more firmly in the Bill (s33): ‘The Scottish Parliament must, as soon as possible after Independence Day, make provision by Act of the Parliament for the establishment of an independent Constitutional Convention to be charged with the task of drawing up a written constitution for agreement by or on behalf of the people of Scotland.’ One small point is that ‘as soon as possible’ could be read to mean before the parliamentary elections scheduled for May 2016. From the Explanatory Notes one must assume this is not the intention of this provision since it would contradict the stated intention of the Scottish Government that it would be for the post-May 2016 Parliament to appoint the Convention.

The White Paper did not offer much detail as to the design of this convention, except that it would be ‘open, participative and inclusive’ and that the new constitution ‘should be designed by the people of Scotland, for the people of Scotland’. The Bill also leaves the membership of the convention and its operational rules for the Scottish Parliament to determine, including ‘the procedure by which the written constitution prepared by the Convention is to be agreed by or on behalf of the people.’ (s33). In other words, we don’t know yet if a referendum will be used to ratify a permanent constitution for Scotland.

The duty to establish a convention is a legally binding commitment within the Bill but since the Bill is open to repeal in the same way as any other act of the Scottish Parliament it will not in fact prevent the Scottish Parliament should it later wish, by way of legislation, to delay this process or amend how a new constitution is to be brought about. Again the response of the Scottish Supreme Court to such legislation would be interesting.

The Bill and its explanatory notes don’t offer any detailed view as to what the convention should look like, but we know from the White Paper that the Scottish Government has been looking at ‘international best practice’ and the practical experience of other countries such as citizen-led assemblies and constitutional conventions British Columbia (2004), the Netherlands (2006), Ontario (2007) and Iceland (2010). This raises the question: will the process really be a popular and meaningful engagement with citizens, or will it be a largely elite-led event? Will in fact the new constitution be drafted by elites – politicians, civic society organisations, business interests, trade unions and local authorities? The Explanatory Notes attached to the Bill point towards a broad approach to civil society engagement. But there are significant democratic risks associated with constitutional conventions in relation to representation and accountability. There is also the problem of such processes being dominated by the most vocal elements of civil society who can use the process to embed their own particular policy preferences in the constitution which may not have the support of a plurality of citizens. In short, any move towards a permanent written constitution should be worked out very carefully to ensure that the process is genuinely democratic, popular and deliberative.

Inclusion of all parties?

The parties which constitute the ‘Better Together’ organisation – campaigning to keep Scotland in the UK – tend not to comment on the prospect of a post-independence constitution largely because they do not want to entertain publicly the prospect of a Yes vote. However, it is likely that all parties in Scotland will develop their own constitutional agendas in the event that Scots do indeed vote for independence.

The timetable set out in both the White Paper and the Bill makes clear that there will be time for this to take place. The constitutional convention will in all probability not be established until after the Scottish parliamentary election in May 2016. Parties will no doubt run in that election with manifesto plans for the constitutional process, setting out whether or not they agree with the constitutional convention route, and stating their respective preferences in relation to constitutional content. And indeed it may well be that one or more of the parties which are currently campaigning for a No vote will in fact be in government to oversee the move towards a new constitution.

Rejecting the Westminster Model: throwing baby out with the bathwater?

It seems sensible that an independent Scotland should have a written constitution to replace the Scotland Acts of 1998 and 2012. The powers and responsibilities of the main institutions of government and of the judiciary will require to be defined. But I have two main concerns. The first is to do with process. Drafting a new constitution should involve as much engagement with the general public as possible, so that the process is genuinely popular rather than elite-driven. The interim constitution is a government-crafted device and may well shape the scope of the deliberations to be undertaken by the convention. The convention itself should, therefore, be designed very carefully if it is to be genuinely deliberative and representative.

Secondly, I am in general very sceptical of written constitutions which are highly detailed not only in setting out the institutional arrangements for the state but in prescribing a set of values, for reasons I have set out elsewhere. In the event of independence, a constitution will be needed, but why not start with a more modest document that provides for a head of state and sets out the powers of the Scottish Parliament and Scottish Government, the court structure, and local government? This would then leave it up to the people to exercise their newly gained independence through their parliament, allowing them to make the decisions they want, and from time to time to change their minds about these decisions should they wish to do so in an open and flexible way. And for big decisions there is of course the referendum; if it is appropriate to use direst democracy to determine the independence question why not use it for other major decisions which Scots will make in the future?


Stephen Tierney is Professor of Constitutional Theory at the University of Edinburgh and Director of the Edinburgh Centre for Constitutional Law.  He is currently ESRC Senior Research Fellow under theFuture of the UK and Scotland programme

This post originally appeared  on the ICON-nect  blog:


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Donal Coffey: Accidental Entrenchment and the Scottish Independence Bill?

donalThe Scottish Government has recently published their proposed Scottish Independence Bill as part of the process directed towards ultimate Scottish independence from the United Kingdom. Katie Boyle has provided an overview of the various key provisions of the Bill in a recent blog post. In this post, I want to consider a potential argument that can be put forward on the Bill as it stands: the Bill may have inadvertently entrenched the proposed Constitution as a fundamental law.

First, it is important to establish that this would be inadvertent. The briefing notes accompanying chapter five of the Bill (pp. 59-67) make it clear that it was not the intention of the drafters that the Scottish Independence Bill would be entrenched. The relevant section is as follows:

The Scottish Government proposes that the Scottish Independence Bill and renewed Scotland Act will not contain a bespoke amending formula or hard entrenchment provision. This is because they are inherently temporary and are a staging post on the way to the permanent written constitution which would be prepared following independence. An excessively onerous amending formula would be inappropriate for interim arrangements. (at 60)

The notes argue that, if enacted, the Act would have constitutional status that requires explicit amendment or repeal. It is left open to the constitutional convention as to whether and how to entrench the constitution itself. However, the drafting of the Independence Bill itself leaves it questionable whether entrenchment may inadvertently occur due to the drafting of Article 3.

Article 3 states as follows:

(1)In Scotland, the people have the sovereign right to self-determination and to choose freely the form in which their State is to be constituted and how they are to be governed.

(2) All State power and authority accordingly derives from, and is subject to, the sovereign will of the people, and those exercising State power and authority are accountable for it to the people

(3) The sovereign will of the people is expressed in the constitution and, in accordance with the constitution and laws made under it, through the people’s elected representatives, at referendums and by other means provided by law.

(4) The sovereign will of the people is limited only by the constitution and by the obligations flowing from international agreements to which Scotland is or becomes a party on the people’s behalf, in accordance with the constitution and international law.

This Article provides that the people are the wellspring of all State power and authority; the draft refers to this as “the sovereign will of the people”. There is a subordinate, derived power which can be exercised by the people’s elected representatives (Article 3.3). However, in a problematic construction of clause (4), the ultimate power, “the sovereign will of the people”, is expressly described to be limited “by the constitution” and by international law obligations. The difficulty is as follows: “the constitution” referred to in Article 3 is that contained in part 2 the Scottish Independence Bill (Art. 1.1). Therefore, the exercise of the ultimate sovereign will of the people is subject to the terms of the Scottish Independence Bill. This, presumably, would also temper any subsequent exercise of the “sovereign will of the people”, i.e. through the constitutional convention outlined in Article 33. Therefore, the meaning of Article 3.4 is actually to entrench the Scottish Independence Bill in a manner which the drafters apparently did not intend. It seems more likely that it is the inferior power wielded by the people’s elected representatives that was intended to be subject to the limitations of Article 3.4, but this is not the natural construction of Article 3.4 as it stands.

It might appear that any deficiency in drafting under Article 3.4 would be cured by the exercise of the constituent authority of the people after the constitutional convention. However, it would further be open to question whether that subsequent exercise was a true exercise of constituent authority or would be an exercise of constituted authority under the Scottish Independence Bill, and therefore subject to any limitations therein. In this regard, the work of Dr. Joel Colón-Ríos has identified recent Columbian jurisprudence which has limited the power of the people to amend the Constitution via a referendum where this power is subject to the terms of the Constitution itself (see “Beyond Parliamentary Sovereignty and Judicial Supremacy: the Doctrine of Implicit Limits to Constitutional Reform in Latin America” (2013) Victoria University of Wellington Law Review 521 at 529-531).

It therefore appears clear that Article 3.4 may inadvertently entrench the Scottish Independence Bill in a manner which was unforeseen by its drafters. If this was not their intention, it is a relatively simple matter to insert words to make clear that it is the inferior governmental power, and not the sovereign power of the people, which is limited by the constitution. Moreover, it seems prudent to foreclose any possible judicial review on the basis of the above argument (whether it would be successful or not) simply because to do so would ensure that the path to independence, if such is the will of the Scottish people, is not subject to time-consuming and controversial actions in the courts.


Donal Coffey is a Senior Lecturer at the University of Portsmouth

(Suggested citation: D. Coffey, ‘Accidental Entrenchment and the Scottish Independence Bill?’ U.K. Const. L. Blog (24th June 2014) (available at

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Philippa Webb and Kirsten Roberts: How can parliamentary oversight of human rights be made more effective? Report to be launched in Geneva this week.

KRWebb_photoThere is intense interest in the UK in the role of the judiciary in protecting and promoting human rights, but Parliaments can also play a vital role. The UK Joint Committee on Human Rights, which has featured on this blog, is widely admired as a mechanism for the oversight of human rights. However, it is not the only possible oversight mechanism, and it, too, could be improved.

This week at the United Nations in Geneva, the results of an 18-month project spanning 9 jurisdictions on Effective Parliamentary Oversight of Human Rights will be launched. We will be putting forward proposals aimed at encouraging parliaments to become more effective in their human rights work.

An advance copy of the Outcome Document can be downloaded here.

In democracies, parliaments are crucial in balancing the use of power by the executive and overseeing the functioning of the State. In many countries this balance is off – with the executive and civil service seemingly unwilling to cede any real control to oversight or accountability mechanisms. Yet as a crucial component of the state architecture, parliaments share a responsibility to protect, respect and fulfill the State’s international human rights obligations. As elected representatives, parliamentarians have the responsibility to provide for the best interests of their constituents. However, in addition to this duty, parliaments are also ideally positioned to be leaders in ensuring that the State is not perpetrating human rights violations, that domestic law is not incompatible with human rights standards and in ensuring that human rights protections are in place.

The international organization for parliaments, the Inter-Parliamentary Union, with whom we will co-host the event in Geneva, has identified 7 common tools for parliamentary oversight: Committee hearings,
Hearings in plenary sittings, Inquiry commissions,
Question time,
Interpellations, and
the Ombudsman. These mechanisms are clearly lacking in many systems.A dedicated human rights mechanism– whether it is a committee, sub-committee or rapporteur, is required for all Parliaments. This mechanism, whatever its form, should have a clear goal. In our Outcome Document, we propose what such a goal might look like:

To help ensure increased compliance with human rights and a better life for all the people in this country through publicly examining existing or potential human rights deficits identified by parliamentarians, international organisations, the National Human Rights Institution, Civil Society Organisations, the media, the public, victims, whistleblowers and others; making proposals on areas for change or improvement; and calling the government to account for failures to protect the rights of the people of this country.

A clear goal for a parliamentary human rights mechanism would help to provide focus, purpose and clarity to its work. In addition to any mechanism, parliamentarians also have individual responsibilities. Parliamentarians should ensure they are educated on human rights standards, and aware of human rights issues. For both the mechanism and individual parliamentarians, there must be engagement with independent oversight bodies in the state as well as with Civil Society Organisations and victims’ groups. Parliamentarians should take personal responsibility for the promotion of specific human rights issues, particularly those relevant to their constituents. We hope that the proposals we put forward in Geneva this week can contribute to promoting much needed change in this area in Parliaments around the world.


Philippa Webb and Kirsten Roberts are co-investigators of a research project on Effective Parliamentary Oversight of Human Rights, funded by the King’s Policy Institute:


(Suggested citation: P.Webb and K. Roberts, ‘How can parliamentary oversight of human rights be made more effective? Report to be launched in Geneva this week.’  U.K. Const. L. Blog (24th June 2014) (available at

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Katie Boyle: Scotland in Transition: the Scottish Government’s Proposed Interim Constitution and the Scottish Independence Bill

KatieOn Monday 16 June 2014 the Scottish Government launched the Scottish Independence Bill: A Consultation on an Interim Constitution for Scotland at the Edinburgh Centre for Constitutional Law. The publication is first and foremost a consultation paper that proposes establishing an interim constitution under section 4 of the proposed Bill should a majority vote in favour of Scottish independence in the referendum on 18 September 2014. The proposed interim constitution would bridge the constitutional gap between the proposed date of Scottish independence (24 March 2016) and the adoption of a permanent written constitution. To place this within the wider proposed transitional framework, the Bill would require a number of transitional mechanisms to be established before it could be legally passed by the Scottish Parliament after the referendum and before independence day. Viewed in this context the Bill proposes that the constitution-framing exercise would operate under a three stage process:

1) The transfer of a significant number of reserved powers would be required in the intervening period post-referendum / pre-independence day in order to allow for the passage of the Bill;

2) The interim constitution Bill would be enacted pre-independence day, partly commenced pre-independence day and partly commenced on independence day (section 36) to found Scotland’s constitutional arrangements until the permanent constitution is adopted;

3) The interim constitution would be replaced by a written constitution post-independence day following the deliberation and constitution-framing exercise to be conducted by the Constitutional Convention established under an Act of the newly elected independent Scottish Parliament (section 33).

Stage one of this process would require legislative action by Westminster in order to devolve the necessary power to legislate for an interim constitution. So rather than solely focus on the content of the Bill itself, it is crucial to examine what would be required in order to ensure legality in the passing of the proposed interim constitution. A number of matters that are currently reserved would require to be devolved before independence day, such as for example, the ability to legislate to change the constitution of the United Kingdom (reserved under paragraph 1 of Schedule 5 of the Scotland Act 1998).

It is proposed that the Bill would then commence on an incremental basis with sections 1 (independence), 18 (Scottish citizenship), 20 (international organisations), 34 (continuity of laws) and 37 (short title) commencing in advance of independence day (when the Bill is granted Royal Assent). This would confer on the Scottish Parliament the power to declare independence through a resolution of the Scottish Parliament (section 1), rather than independence emanating from Westminster legislation. It would also allow (should executive competence be transferred) the Scottish Government to enter into negotiations with international organisations, such as the EU, in advance of independence day to seek to secure continuing membership and a smooth transition to an independent state (see Barber for a discussion on the logistics of an EU negotiation process). It is proposed that the remainder of the Bill would thereafter commence on independence day itself.

It is envisaged that the Bill would hold a semi-constitutional foundation whilst the permanent written constitution is being prepared by a Constitutional Convention to be established ‘as soon as possible’ by the newly elected Scottish Parliament in May 2015 (section 33). This is the second stage of transition and during this period the Bill provides the foundation of an interim constitution. However, it is important to note, although it is proposed that the Bill would form a ‘constitutional statute’ under the common law principles first developed by Lord Justice Laws in the Thodburn case – it would not be an entrenched constitution subject to special amendment procedures. Like any other constitutional statute the terms of the then enacted legislation could be amended through subsequent ordinary legislative procedure where subsequent legislation expressly repeals or amends part of the interim constitution (meaning the Bill is exempt from the doctrine of implied repeal but not exempt from expressed repeal or amendment).

The Bill would also not stand alone in forming the constitutional framework of a newly independent and transitional Scotland. The statute would be complemented by existing arrangements under an amended version of the Scotland Act 1998. Section 34 of the Bill provides for continuity of laws and the rule of law (guaranteed under section 15) would provide for the continuance of all existing legislation in force the day before independence day and also all common law judgments that relate to Scotland – until such time as judgments are overturned or legislation amended or repealed and replaced. The Scotland Act would require some significant changes – such as the repeal of Schedule 5 that lists those powers reserved to Westminster, and section 28(7) of the Act which reserves the ultimate sovereignty over both reserved and devolved matters to the UK Parliament at Westminster. This would see the incremental dismantling of the current devolved framework.

So whilst the proposed Bill is designed to serve as an interim constitution, the existing constitutional framework under the revised Scotland Act would continue to co-exist providing the technical and substantive instructions on how administrative and constitutional law in Scotland should operate. This is, of course, all dependent on the UK Parliament agreeing to transfer the necessary powers and make the necessary amendments to the Scotland Act in the intervening months between the referendum and independence day in order for the passage of the Bill to be a legal possibility.

This in and of itself poses difficulties to the eventual enactment of the Bill if the UK Parliament are opposed to transferring powers pre independence day. Although the Edinburgh Agreement (the agreement reached between the UK and Scottish Government on 12 October 2012 that governs the referendum process) contains a duty to cooperate in good faith and ‘in the best interests of the people of Scotland and the rest of the UK’, it does not impose a duty to transfer powers on an incremental or pre-independence basis should the UK Government consider this is not in the best interests of the people of Scotland, or the best interests of the people of the rest of the UK. In any event, the transfer of legislative competence through a section 30 Order and the transfer of executive competence through a section 63 Order would require affirmative approval by the UK Parliament and the Scottish Parliament before becoming law. The UK Parliament is not a party to the Edinburgh Agreement and so there may be significant barriers to ensuring the passage of such Orders. Furthermore, changes to the composition of the Parliament in the 2015 general election and a newly elected UK Government, whatever political administration that might be, may complicate matters further.

The Scottish Government could seek to enter into a second agreement with the UK Government after the referendum if the electorate vote for independence. This second agreement could act as a more wide reaching framework agreement to govern subsequent negotiations on the terms of independence – this at the very least might help smooth the first transitional stage by clarifying how the substantive terms of independence and separation might be negotiated and by identifying common principles and values in a spirit of cooperation. At this stage Scotland would not yet have reached independent statehood and this precludes the possibility of an international treaty, however, the framework agreement could reflect the language and content of an international treaty in order to add legitimacy to the process (akin to the terms of the multi-party peace agreement in Northern Ireland in 1998). The terms of an international treaty could thereafter be drawn up to be adopted on independence day, with an ad hoc internationalisation of the previous agreement, so that any matters that continue to be negotiated could be done so in a continuing spirit of cooperation. This would build upon the commitment in the Edinburgh Agreement ‘to continue to work together constructively in the light of the outcome, whatever it is, in the best interests of the people of Scotland and of the rest of the United Kingdom’.

If these potential barriers in relation to the transfer of legislative and executive competence are overcome, through for example the adoption of a framework agreement, it is possible that the Scottish Parliament would be in a position to lay the Bill before the legislature in advance of independence day in order to complete stage one of the process. This comes with the caveat that this would be no easy path to secure and is wholly dependent on the UK Government and Parliament respecting the outcome of the referendum and facilitating a quick transition in terms of the transfer of competence. In this sense, it might be more beneficial to set a framework agreement in place before the referendum – so that the terms of the agreement could also cover the eventuality of a no vote providing an opportunity to clarify the road map for Scotland’s constitutional future whatever the outcome of the referendum. This is highly unlikely given the timeframe and the fact the UK Government has already made clear that it would not be appropriate to negotiate the terms independence before the referendum.

In the event of a yes vote and the above barriers being overcome, Scotland would thereafter enter stage two of the process under the proposed interim constitution. The Bill proposes transitional arrangements in relation to the Scottish constitutional framework including the proposed process to create a written constitution through the establishment of a Constitutional Convention (section 33). The outcome of the proposed Convention, a written and permanent constitution, would ultimately see Scotland entering stage three of the transitional process.

A Deliberative, Participative and Inclusive Constitutional Convention?

The final proposed stage in the transitional constitutional status of a newly independent Scotland is provided for under section 33 of the Bill. The provision for a permanent constitution confers a duty on the Scottish Parliament to establish by an Act of Parliament an independent Constitutional Convention charged with the task of drawing up a written constitution for agreement by or on behalf of the people of Scotland. The Act must provide for the membership of the Convention; the funding of and administrative support of the Convention; the time by which the Convention is to complete its task and its dissolution; the procedures and processes to be followed by the Convention; and the procedure by which the written constitution should be adopted by or on behalf of the people. Interestingly, there is no substantive provisions relating to the matters to be considered by the Convention in the Bill itself – leaving this open to the Scottish Parliament to decide post independence.

Likewise, the actual appointment of Convention members and the process of deliberation is also left open – meaning the commitment to a participative and inclusive process promised in the explanatory notes (page 44) is not underpinned by any substantive provisions on how this might be achieved. Much like the referendum process, legitimacy in the outcome of the Constitutional Convention would be engendered through legitimacy in the process itself. The proposals in Scotland’s Future (page 352) and the explanatory notes to the Bill promise to include the voices of civic society groups such as trade unions, business interests, local councils, faith groups, community groups, and extensive involvement of ordinary citizens. However, the mechanisms through which these voices would be heard in the deliberative constitution-making process are not yet clear. The Scottish Parliament would therefore be tasked with taking into consideration how best to ensure that the Constitutional Convention takes into account an array of voices, all of which may have differing and potentially competing interests, when legislating for the membership, procedures and processes to be followed by the Convention.

By way of example, one might consider how best to include minority groups in a majoritarian decision making process that might otherwise be marginalised and potentially excluded from the process – particularly in relation to vulnerable and disadvantaged groups. The Scottish Parliament, and latterly the Convention itself, would also need to consider whether there should be some form of framework from which the constitution-making process should begin – through for example embedding fundamental constitutional rights, or whether some of the provisions in the interim constitution should be retained, such as those relating to the head of state (section 9); nuclear disarmament (section 23); or the division of powers between legislature, executive and judiciary (sections 10, 11, 13 and 14).

The constitution-framing exercise ought to form a deliberative, informed, reasoned and inclusive process so as to avoid what could potentially be an exercise of elite or majoritarian decision making (see Tierney and Boyle). At the very least, it is notable that the proposed Bill ensures the Convention would operate independent of the Scottish Government and Parliament (section 33(3)(4)). Nonetheless, a great deal of consideration would require to be given to creating a deliberative framework that engenders legitimacy in the eventual outcome of the Constitutional Convention process through mechanisms ensuring substantive inclusion and participation.

Finally, the Bill proposes that the written constitution at the completion of the Convention process would not necessarily require approval by direct democracy through another constitutional referendum. The Bill leaves it open to the Scottish Parliament to decide how the written Constitution is to be agreed – either through a subsequent referendum, or through approval by Parliament on behalf of the people (section 33(3)(e)). There is a debate to be had about what role direct democracy should play in the adoption of constitutions and subsequent constitutional change and what model Scotland could adopt in this regard (see Constitutional Referendums for an analysis of these issues).


As was alluded to in the first paragraph, the interim constitution Bill first and foremost forms part of a consultation paper that is open to deliberation and to the submission of views rather than a Bill that is being laid before the Scottish Parliament in its current form. The publication states that the ‘purpose of the Bill and consultation paper is to facilitate as wide and open a debate on the constitution of an independent Scotland as possible’. With this in mind, it is important to remember that there is a constitution-framing exercise already underway and the consultation process provides an important opportunity to contribute to the wider discussion on potential constitutional change should the referendum result in a yes vote. Again, according to the principles of deliberative democracy, such an exercise is a welcome one in ensuring a participative process.

This will also no doubt inform and encourage UK wide reflection on constitutional arrangements – whether that be in relation to a written constitution, further devolution, membership of the EU, or a Constitutional Convention for the UK for that matter. Given that the political parties supporting Scotland’s continuing membership of the UK have now come together to promise further devolution in the event of a no vote one thing we can be certain of is that Scotland and the UK’s constitutional landscape will most likely face change in the near future whatever the referendum result on 18 September 2014.


Katie Boyle is a constitutional lawyer, Economic and Social Research Council Research Fellow at the University of Edinburgh and Lecturer in International Human Rights at the University of Limerick.

The research for this blog forms part of a research project undertaken by Professor Stephen Tierney, ‘The Scottish Independence Referendum: A Democratic Audit’, funded by the ESRC Future of the UK and Scotland Senior Fellowship scheme. All views expressed are the author’s own.

(Suggested citation: K. Boyle, ‘Scotland in Transition: the Scottish Government’s Proposed Interim Constitution and the Scottish Independence Bill’ U.K. Const. L. Blog (21st June 2014) (available at


Filed under Scotland