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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Leave a comment

Filed under Australia

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

UK withdrawal from the ECHR?

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

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

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

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

Reform of the Court

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

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

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

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

The responsibility weighing on the UK today

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

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

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

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

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

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

 

 

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

 

1 Comment

Filed under Human rights

Mark Elliott: Human rights reform and the role of the Strasbourg Court

MarkI wrote last week about the dismissal of Dominic Grieve as Attorney-General and subsequent indications as to the likely direction of Conservative Party policy in relation to human rights. As noted in the latter post, the plan—such as it is at present—appears to countenance the possibility of the UK’s departure from the European Convention on Human Rights, the argument being that it is intolerable for the UK to be beholden to the judgements of the Strasbourg Court. The agenda underlying agitation in favour of a UK exit is not always easy to discern, but generally appears to consist of two strands of thought that are respectively opposed to judicial “interference” in matters that are regarded as political, and to European involvement in decisions that (on this view) ought to be taken in Britain. British membership of the ECHR thus finds itself in an uncomfortable position, sitting vulnerably between the twin pincers of de-Europeanization and de-juridification.

Unsurprisingly, the Conservative Party’s nascent proposals (or, more accurately, reports of anticipated proposals) have elicited considerable criticism. However, in a thought-provoking post on The Conversation, Gavin Phillipson rightly points out that although the Conservatives’ proposals

are deeply ill-conceived and transparently political, they nonetheless deserve some intellectual reflection: in political and constitutional theory, the idea that democratically elected representatives, rather than unelected judges, should have the final say over questions of human rights is hardly the sole province of right-wing crankery.

Phillipson is right. The present position that obtains in the UK—according to which a judicial organ, in the form of the European Court of Human Rights, has the ultimate say on human-rights questions—is consistent with that which is found in some, but by no means all, developed democracies.

On the one hand, it bears some similarity to the US model, under which the Supreme Court has the final word on the constitutionality of legislation, albeit that the possibility of democratic override arises via (hard-in-practice-to-accomplish) constitutional amendment. There is no equivalent way of overriding the Strasbourg Court (subject to the ultimate possibility—now countenanced by the Conservative Party—of leaving the system altogether). Nor is the analogy with the US position by any means a perfect one: the US Bill of Rights is a domestic constitutional instrument, whereas the ECHR is a human rights treaty that is binding upon the UK as a State in international law.

On the other hand, many other developed democracies embrace human rights while according greater weight to the views of legislatures in relation to rights questions. A wide array of possibilities exists, ranging from the position found in New Zealand (where the legislature is unconstrained either by a written constitution or by an international judicial organ equivalent to the ECtHR) to the Canadian system (under which legislation struck down by judges can be reinstated by the legislature) to the Indian model (within which judicial strike-down powers are tempered by a system that is much more readily facilitative of constitutional amendment than is the US Constitution).

The diversity of practice evident within (and beyond) the common-law world means that, inconveniently perhaps, the position is far more nuanced and complex than can be accommodated by kneejerk criticism of any proposal to withdraw from or dilute the influence in the UK of the ECHR system. At the very least, such criticism must be justified by explaining why such steps would be unacceptable. As Phillipson observes:

[H]owever incoherent these particular proposals might be, we shouldn’t simply dismiss the principle behind them. Ensuring that national parliaments have the right to override or disregard decisions of a human rights court is a respectable position applied in various countries … In response to the Tories’ populist push on the ECHR, academics who defend “dialogic” or purely democratic approaches to rights protection as a matter of constitutional theory need to start thinking about why and how the ECHR system should be different from the Canadian model. In particular, if we want to defend the ECHR as it is, we need to come up with clear arguments as to why the Strasbourg court should retain the final word on questions of human rights in Europe.

One possible such argument is that the ECHR, as an international system, is not directly comparable to that found within individual states such as Canada. As one contributor put it in a conservation on Twitter, “If we don’t want [the] Belarus Parliament to have [the] final say on whether [it is] ok to torture, [the] quid pro quo is [that] ours doesn’t [either].” On this view, the absence of domestic democratic override is the price we way for being a member of a transnational human rights system that yields beneficial results by locking in other States. However, this argument only gets us so far.

International human rights systems do not have to involve the degree of domestic democratic marginalisation that is inherent in the (present) ECHR structure. For instance, the International Covenant on Civil and Political Rights, lacking the kind of enforcement machinery that the ECHR has, entails far fewer domestic democratic implications. This is not to suggest that the ICCPR is other than binding in international law upon States parties: but it does not possess a judicial organ equivalent to the Strasbourg Court that is in a position to secure the degree of lock-in of States parties that the ECtHR is capable of securing. This explains why, for instance, New Zealand’s membership of the ICCPR system puts it in a radically different position from that which the UK occupies as a State party to the ECHR.

Nor does it follow that the ECHR itself has to adopt the approach it presently does: if it were possible to muster the political will, the Convention could be amended so as to (for example) permit (either generally or in relation to particular rights or in particular circumstances) domestic override of Strasbourg judgments. (The Brighton Process resulted in some relaxation of the relationship between the Court and individual States, but to a degree far more modest than that which critics desired.) However, the political reality is that it is unlikely in the extreme that a consensus in favour of amending the Convention in this way could be marshalled.

Nor does it even follow that the promotion human-rights standards elsewhere is necessarily sufficient to justify sacrificing the possibility of greater domestic democratic involvement in the determination of human-rights questions. It is certainly arguable the loss of domestic domestic control is a price worth paying: but this is a value judgment that is not self-evidently correct. If the argument is to be sustained, it needs to be developed. It is true, of course, that British withdrawal from the ECHR would very likely be damaging, both to the UK’s international standing and the the cause, internationally, of protection of human rights. As former Attorney-General Dominic Grieve put it in a speech in 2011, the ECHR forms “an integral part of the post-war settlement”: it has played “an important and successful role in preventing the re-emergence of totalitarianism in Western Europe” and “continues to play a pivotal role in ensuring that the new democracies of Eastern Europe respect and protect the Convention’s rights and freedoms of all their citizens”.

A final point is also worth bearing in mind. The way in which arguments for and against UK withdrawal from the ECHR play out depend, to a large extent, on what a post-ECHR UK constitution would look like. If the choice were between the status quo and simply withdrawing from the ECHR (and repealing the HRA), then that would be one thing. If, however, the choice were between (in the first place) retaining the status quo and (in the second place) replacing the ECHR/HRA regime with a domestic constitutional framework that would equip British courts with powers equivalent to those enjoyed by (say) their Canadian counterparts, then the arguments might stack up very differently. And although some of the “costs” of withdrawal can, to an extent, be assessed now, any such assessment—shorn of the context that forward-looking proposals would supply—would be inchoate at best. Withdrawal with the intention of marginalising human rights within a newly liberated domestic polity would carry different implications—and create different perceptions—from withdrawal coupled with thorough-going constitutional reform that sought to confer a high degree of legal and political security upon fundamental rights.

It is impossible, therefore, to evaluate any suggestion that the present system should be scrapped until we know what, if anything, would replace it. This means that it is incumbent upon the Conservative Party—and anyone else proposing change in this area—to spell out not only which of our existing arrangements would be dispensed with, but what, if anything, would replace them. And, just to anticipate the obvious response, it is worth concluding by pointing out that falling back upon half-baked suggestions that we should have a “British Bill of Rights” just will not do.

 

Mark Elliott is Reader in Public Law at the University of Cambridge (Twitter: @DrMarkElliott). This post was first published on Mark’s blog, Public Law for Everyone.

 

 

 

3 Comments

Filed under Human rights

Ralph Janik: Jihad and Citizenship: Assessing the Austrian amendment

Ralph-Janik_avatar_1405579233-96x96Increasing numbers of young European fighters join various jihadist groups involved in the various armed conflicts in the Middle East. Slowly, the affected states – among them Austria – are starting to react to this worrying trend. Among the various emotionally debated issues is the question of the impact of such actions on the citizenship status. While currently only voluntarily joining the armed forces of a foreign state automatically leads to the loss of citizenship (§ 32 Citizenship Act), a recent proposal for an amendment would also cover non-state armed groups:

A citizen who voluntarily and actively takes part in hostilities abroad on behalf of an armed group in the context of an armed conflict loses his citizenship unless this would render him stateless.

As it is often the case with legal provisions, the wording, as clear as it may seem initially, poses a few problems and therefore calls for a further elaboration.

Armed groups and armed conflicts

The first issue concerns the definition of armed groups and armed conflicts. Traditionally, a distinction is being made between international and non-international armed conflicts. Regarding the latter, common Article 3 of the four Geneva Conventions speaks of an “armed conflict not of an international character occurring in the territory of one of the High Contracting Parties”. In order to distinguish such armed conflicts from mere internal disturbances, the ICRC requires a certain duration, intensity and level of organization of the involved parties. Thus, the situation in Syria was qualified as a non-international armed conflict from July 2012 onwards, while ICRC president Jakob Kellenberg stated that the clashes in Homs had met the threshold already in February 2012 (he thus spoke of a “localized” armed conflict).

These requirements are also in accordance with article 1 of the second Additional Protocol to the four Geneva Conventions as it speaks of “armed conflicts […] which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.” However, this definition notably excludes clashes between armed groups only. Thus, preference is to be given to the wider scope of application of common article 3 – the ICTY accordingly defined non-international armed conflicts as “protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.”

Yet, the proposal does not require any level of organization. It must not be forgotten that this requirement aims at reciprocity – only those groups should benefit from the protection of IHL who are themselves at least theoretically able to adhere to it. Basically speaking, this criterion is irrelevant for the purposes of the citizenship act. Seen in this light, the amendment could even apply to fighters who act on behalf of a loosely organized armed group lacking a certain command structure. However, it is questionable whether Austria intends to deviate from the commonly accepted definition of non-international armed conflicts by adhering to such a wide definition.

If this is indeed not the case, a remaining issue would be whether fighters acting without any orders could still be found to “act on behalf” of an armed group. In other words, would it be sufficient if someone independently acts “in the name of” an armed group? As the example of terrorist (clandestine) groups shows, such a scenario is not a remote possibility. A mere textual interpretation could be found to speak in favor of including such cases – mutatis mutandis leading to the very same problems of legal certainty judiciaries have faced when dealing with cases of alleged mere membership in terrorist organizations or actions undertaken as part of such a group.

An international armed conflict, then, is easier to define. Again, the ICTY has made matters clear: “an armed conflict exists whenever there is a resort to armed force between States.” Participating in such a conflict thus also makes it necessary to demarcate the scope of application of § 32 from the proposed amendment, i.e. the question whether paramilitaries and other groups closely affiliated to a state have to be considered as “armed forces of a state”, an issue that would have to be addressed by the rules of attribution as formulated in the ILC articles on state responsibility.

“who voluntarily and actively takes part in hostilities”

This wording also poses more problems as one would think at first sight. While taking part as a combatant is obviously covered, other forms of participation are more questionable. What about arms deliveries to combat zones? Or non-military support of armed groups, such as taking care of financial matters, administering social media accounts, including propaganda or the recruitment of new fighters?

In this regard, the ICRC’s work on the question as to when a civilian loses his protection by participating in hostilities is highly relevant. After all, it is certainly not a coincidence that the wording of the proposed amendment equals that of provisions relating to the loss of protection as a civilian such as common article 3, which prescribes humane treatment of “[p]ersons taking no active part in the hostilities”.

Here, the ICRC mentions three criteria which need to be fulfilled in order to be considered as actively taking part in hostilities.

First, a minimum threshold of harm: A certain likelihood that the act in question has a detrimental impact on military operations or the military capacities of one of the parties to a conflict, or leads to civilian casualties or the destruction of civilian objects. The harm must not necessarily materialize.

Second, there needs to be a causal link between the act or the military operation to which it contributes and the harm.

Third – and this is the most disputed element – the act “must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another (belligerent nexus)”. Actions taken in self-defense are thus excluded. Intent is not required, the objective nature of the act is decisive.

Going back to the issues raised above, driving a truck loaded with weapons to the combat zone has thus been found to qualify as active participation; delivering weapons to a port, from where they would be further transported, would not be sufficiently related to the hostilities. The other mentioned non-military forms of support would also not be covered.

Conclusion

In sum, judges could rely on existing case-law and scholarship, in particular the work of the ICRC, when applying the proposed amendment. The real problem would be the inherently difficult production of evidence in such matters. Obviously, this is a primary concern for members of secret services. Apart from that, the proposed amendment would often turn out to be rather toothless because of the caveat that the affected persons must not be rendered stateless (a provision that is not found in § 32 Citizenship act; persons joining the Foreign Legion without receiving French citizenship could thus basically become stateless). After all, the Austrian Citizenship act only allows for dual or multiple citizenship by birth. At this stage, it is unclear how many of the approximately 100 fighters who have travelled from Austria to fight in Syria are nationals of more than one state (or how many of them are Austrian citizens in the first place). However, I dare to guess that the number is rather small.

Ralph Janik is a research assistant (Prof. Dr. August Reinisch) and a lecturer at the University of Vienna.

This post originally appeared in the Verfassungsblog, and is reposted here with thanks.

 

2 Comments

Filed under Europe

Tom Quinn: Mandates, Manifestos & Coalitions: UK Party Politics after 2010

One of the most important assumptions underlying this view of British politics since 1945 was that governments were given mandates by voters in elections. That followed from the fact that they were directly elected by voters, as there were no post-election coalition negotiations to intervene between voters’ choices and government formation. Mandates followed from voter endorsement of governing parties’ manifestos. The winning party was assumed to have a mandate to implement its manifesto in office.

The hung parliament of 2010 and the subsequent coalition government challenged these assumptions. If no party enjoyed a parliamentary majority, what sense did it make to speak of mandates? What was the role of manifestos if no party possessed a majority to implement one in full? What was the legitimacy of coalition agreements if they have never been put to the electorate? Ultimately, is it necessary to rethink the relationship between voters, parties and governments in the UK political system?

The Traditional Mandate Doctrine

The traditional ‘mandate doctrine’ of British government is, in essence, a very simple one. Two major parties, Labour and the Conservatives, compete with each other to form majority governments to implement their preferred policies. This two-party system was upheld by a first-past-the-post electoral system that made it hard for small parties to win seats. The first-past-the-post (FPTP) electoral system would help to turn electoral pluralities into parliamentary majorities. Elections were opportunities for voters to decide whether Labour or the Conservatives would form the government.

To facilitate this choice, the parties would offer manifestos before the election. These are detailed policy programmes setting out what each party would do in government. Voters could consult these manifestos and vote for the one they most preferred. The party that won a majority of seats in parliament would have a mandate to implement its manifesto. That is, it would have both the right and the obligation to do so. At the following election, voters could decide whether the governing party had been true to its promises: if it had, they might vote it back into power; if it had not, FPTP made it easy to ‘send the rascals packing’ by voting in the other party. Thus, Britain’s party system was based on the direct election of governments by voters, ensuring strong bonds of accountability. Manifestos were an important hinge, linking pre-election promises with democratically mandated post-election governance.

The clarity and simplicity of this theory is a large part of its appeal. In reality, it begs a number of questions. First, no party has won a majority of votes in a UK election in the post-1945 era. At best, the winning party secures a plurality of the vote. In 2005, Labour won the election on only 35% of the national vote, implying that almost two-thirds of voters refused to endorse Labour’s manifesto. Yet Labour still claimed a mandate because it had a parliamentary majority. In 2010, the Conservatives won 36% of the vote but had no parliamentary majority. Was their mandate weaker than Labour’s five years’ earlier? Secondly, manifesto pledges are offered to voters on a take-it-or-leave-it basis: in voting for a party’s manifesto, the party will assume voters have endorsed everything in it, even if it contains things they do not like. Thirdly, most voters do not choose parties on the basis of manifestos. Nowadays, they are much more likely to vote on the basis of party leaders and overall party competence.

The mandate doctrine has exerted a strong influence on thinking about British politics since 1945. The apparent demise of the old two-party system, with the hung parliament in 2010, has finally forced us to confront some of these problems.

Demise of the Two-Party System

From 1945 till the mid-1970s, Britain was an almost classic case of a two-party system, with Labour and the Conservatives winning 90% of the votes and almost all seats. Those days are long gone. Since then, we have seen the rise of the SDP-Liberal Alliance, and then the Liberal Democrats, who now hold 57 seats out 650 in the UK parliament. Nationalist and unionist parties win about 30 seats. We have reached a point at which somewhere between 60 and 80 Westminster seats are likely to continue being won by parties other than Labour and the Conservatives, making it harder for one party to win an outright majority. Hung parliaments will become more likely, though not guaranteed.

A shift to a multi-party system would require a rethinking of the process of government formation in Britain. If hung parliaments became more frequent, coalition or minority governments would become more likely. The notion of a manifesto-derived mandate becomes even more problematical than it already is when no party manages to win a parliamentary majority.

Minority governments are a frequent occurrence in Europe, though they are also common in another FPTP nation, Canada. Minority governments have weaker mandates than majority ones and do not have the parliamentary numbers to implement their entire manifestos. Unless they enjoy supply-and-confidence agreements with an opposition party, minority governments may find themselves at the mercy of those opposition parties waiting for the right moment to bring them down. Compromises may have to be sought if any legislation is to be passed.

The other alternative is a coalition government. Coalitions can occasionally be offered directly to voters before an election and receive voters’ direct endorsement, as with Britain’s ‘coupon election’ of 1918. More usually, coalitions are formed after electors cast their votes. For supporters of the two-party system, post-election deals by parties violate the principle of the direct election of the government by the people, as coalitions are chosen by political elites.

Coalition Agreements and Manifestos

When no party wins a parliamentary majority, then no single party has the means to implement its manifesto pledges. If a coalition is formed between two or more parties, the government’s policies will usually involve a combination of the participating parties’ preferred policies. The practice in Europe, followed in Britain in 2010, is for a coalition agreement to set out the government’s policies. Coalition agreements are negotiated policy deals between parties in government and they’re intended to reduce conflict within the coalition, as well as signalling to voters the direction of policy. They tend to work more smoothly as the ideological distance between the coalition parties narrows. If there are significant differences between the parties, devising a coalition agreement is more difficult and it may contain more gaps, as conflict is postponed by ‘agreements to disagree’ or the establishment of commissions of inquiry.

When government policy is based on a coalition agreement, parties’ individual manifestos become starting points for negotiations between the parties, with pledges tradable or liable to dilution. The UK coalition agreement of 2010 combined elements of both Conservative and Lib Dem manifestos. The Lib Dems identified their priorities as the four key themes of their manifesto – fair taxes, fairness in education, a green economy and political reform, with signature policies such as raising the threshold on income tax, introducing a pupil premium and electoral reform. The Conservatives focused more on their ‘red lines’ in the negotiations – immediate action to reduce the budget deficit, toughness on defence and immigration, and no further transfers of sovereignty to the EU without a referendum. In the end, both parties secured gains on key policy areas, with clear ‘wins’ for each party on particular policies. The Conservatives won out on their red lines; the Lib Dems made progress on their four priorities.

Coalition agreements are programmes for government and so they must be internally coherent, particularly on plans for taxation and spending. That may mean the negotiating parties go beyond specific policies in their manifestos. A manifesto’s tax-and-spend policies may all fit together, but if only some of those pledges make it into the coalition agreement, while others do not, there is no guarantee that they will continue to add up. There would have to be compromise and that might involve watering-down manifesto pledges or even creating wholly new pledges. For example, all spending plans in the coalition agreement were subject to the proviso that deficit-reduction was the government’s fiscal priority.

The pledge to hold a referendum on the Alternative Vote (AV) electoral system provoked some debate because neither the Lib Dems nor the Conservatives had mentioned AV in their manifestos (though, ironically, Labour had!). However, it seemed a reasonable half-way-house between a referendum on proportional representation (the Lib Dem position) and the maintenance of the status quo (the Tory position). This pledge was vital in securing the formation of the coalition.

Perhaps the most contentious feature of the coalition agreement was the section on university tuition fees. The Lib Dems’ manifesto pledged the party to ‘scrap’ tuition fees but the reality of deficit-reduction made that extremely difficult. The coalition agreement declared that the government would await the Browne Report on university funding and that Lib Dem MPs would have the right to abstain – but not vote against – any rise in fees. After receiving the Browne Report, the government brought a bill before parliament to treble the ceiling on fees to £9,000 p.a. Most Lib Dem MPs voted in favour of the increase. Vince Cable, the Lib Dem secretary of state responsible for universities, later denied that this volte face involved a broken mandate:

We didn’t break a promise. We made a commitment in our manifesto, we didn’t win the election. We then entered into a coalition agreement, and it’s the coalition agreement that is binding upon us and which I’m trying to honour.

For supporters of the two-party system, this episode encapsulated the illegitimacy of coalition government: a minister producing a bill that directly contradicted his manifesto, but which he justified as the price of coalition government.

There is no doubt that this controversy badly damaged the Liberal Democrats’ credibility. But we should be careful before seeing it as an inevitable feature of coalition government. There were many other pledges on which compromises were struck that were not nearly as contentious. On this one, the Lib Dems’ original policy was not merely watered-down; it was directly opposed to the one they implemented in government. The pledge to scrap tuition fees was one of the key identity-defining policies of the post-Ashdown Liberal Democrat party. Along with opposition to the Iraq War, it helped define the party’s ideological identity as left-leaning. Reneging on it would inevitably damage the Lib Dems. But it’s hardly characteristic of most policies in the agreement.

Single-party majority governments are just as capable as coalitions of breaking their manifesto pledges. Tony Blair’s Labour government did not hold a referendum on electoral reform despite promising to do so in its 1997 manifesto. New Labour also announced operational independence for the Bank of England to set interest rates just five days after coming to power in 1997. This policy had not been mentioned in Labour’s manifesto on which the party had just fought and won an election, but a chorus of approval from the financial markets ensured that it came to be seen as a masterstroke.

Conclusion

If we accept the assumptions of majoritarian democracy, then the advent of coalition government is an unwelcome development. It blurs lines of accountability between voters and governments, and hands too much power to party elites, especially those in small parties. Government policy becomes based on coalition agreements that have not been directly endorsed by the voters and that undermines their legitimacy. Small parties may find themselves still in government playing a king-maker role even as they lose popularity.

In reality, there were already serious flaws in the traditional mandate doctrine. The concept of an electoral mandate becomes more ambiguous the closer one looks at it. It relies on some heroic assumptions about manifestos and voters, assumptions that are never satisfied in the real world. A party winning 36% fails to secure a mandate in one election, but in the previous election, another party won 35% and its parliamentary majority, created by FPTP, endows its manifesto with the mystical qualities of a mandate. The hung parliament of 2010 shone a light on the weaknesses of the mandate doctrine of British democracy, weaknesses that had previously been concealed by a procession of majority governments. Asking whether coalition agreements enjoy electoral mandates, therefore, is not really the right question. Of course, they don’t; but in all likelihood, neither do manifestos, at least, not en bloc, as a set of pledges. The real questions are: do they represent a logical compromise between the rival positions of the coalition parties; and, do they remain true to the spirit, if not always to the detail, of those parties’ manifestos? If coalition government is deemed necessary, a formal coalition agreement at least offers voters an outline of future government policy. The experience of 2010 is that most coalition pledges will have some origin in one or other party’s manifesto.

In this process, trust is a key ingredient. In the mandate doctrine, voters must trust governing parties to implement their manifesto pledges, but if they don’t, voters must wait till the next election to punish them. The same is true of coalitions. Some pledges may have to be traded, but if parties are seen to renege on major pre-election pledges, they can be punished at the ballot box.

We have probably entered an era in which majority governments, minority governments and coalitions are all genuinely possible. But it does appear that the old two-party system has largely gone and that in turn requires parties, voters and political observers to think beyond the old mandate doctrine about how we might conceive of the democratic legitimacy of government in a new era of the British politics.

 

Dr. Tom Quinn is a Senior Lecturer at Essex University.

(Suggested citation: T. Quinn, ‘Mandates, Manifestos & Coalitions: UK Party Politics after 2010’ U.K. Const. L. Blog (18th July 2014) (available at http://ukconstitutionallaw.org/).

 

1 Comment

Filed under UK Parliament

Natasha Simonsen:Government cannot use a ‘statutory back door’ to implement major changes to legal aid services, Divisional Court says

MatricIn a judgment released yesterday a Divisional Court unanimously struck down the government’s attempt to introduce a residence test for eligibility for legal aid, finding it incompatible with the objective of the Legal Aid, Sentencing and Punishment of Offenders Act (‘LASPO’). The ratio of the judgment was that the residence test had been introduced via an amendment to the schedule in the Act (that is, via subsidiary legislation) that was not compatible with the objective of the primary legislation. While that sounds like a rather technical decision, it has important ramifications for democratic accountability. It means, in essence, that if the government wants to make such a drastic change as this, it will need to do so via an amendment to the Act itself, with the full Parliamentary debate that that would entail. The case is also interesting because of the two rights-based grounds that were argued before it. The first, that the introduction of a residence requirement violated the fundamental right of access to a court, the court declined to engage with. The second was that residence was not a lawful ground for discriminating in the provision of legal aid between equally meritorious claims. The court accepted this claim, but apparently in obiter dicta, since only the statutory construction point was strictly required to reach the outcome.

The ratio of the judgment

Lord Justice Moses (with whom Mr Justice Collins and Mr Justice Jay agreed) held that the introduction of a residence requirement as an amendment to Schedule 1 of LASPO was ultra vires because it was not compatible with the Act. The court identified the objective of the primary legislation as being to provide legal aid to those with the greatest need. The amendment, in contrast, had ‘nothing to do with need or an order of priority of need. It is, entirely, focused on reducing the cost of legal aid’ [43]. This violated the principle that subsidiary legislation must ‘serve and promote the object of the statute’ [40].

This is important because secondary legislation does not face the same degree of scrutiny in the Parliament as does primary legislation. While primary legislation needs to be approved by a majority of votes in both Houses of Parliament, and receive Royal Assent by the Queen, secondary legislation can be either negative or affirmative. If the former, the instrument becomes law without a debate or vote but can be annulled by a contrary resolution in the Parliament. If the latter, both Houses of Parliament must expressly approve them. The respondent government had argued that, since this amendment took the form of an affirmative instrument, it had received the imprimatur of the Parliament. Notwithstanding that, the Divisional Court found that was not enough because, ‘on a true construction of the statutory powers in their context, no power to introduce such a measure can be found’ [48]. The court’s ruling reaffirms the constitutional principle that the government cannot use the means of subordinate legislation as a ‘statutory back door’ [46] to ‘widen the purposes’ of legislation that has been passed by the Parliament [40]. Changes this big need to be brought through the front door.

The residence requirement, if upheld, would have limited legal aid to those who could demonstrate ‘a meaningful connection with the UK’, unless they could demonstrate eligibility elsewhere in the legislation. Yesterday’s judgment does not foreclose the possibility of that restriction being introduced in the future. But the Court’s intervention puts the onus on the Parliament to consider and evaluate the purpose of legal aid in the UK and the objectives that LASPO aims to serve. If the legal aid is to be subjected to the pursuit of goals other than giving help to those in greatest need, then those objectives need Parliamentary approval in the form of primary legislation.

Thus, in some ways the court’s decision handballs the question back to the legislature. But the terms of any future legislative debate will no doubt be framed by the discussion of the issues in the judgment. The court discussed some powerful examples, such as P, a severely disabled adult who was starved, beaten and forced to live in a dog kennel by his mother and brother. Yet, for various reasons, it would have been impossible to prove that he had been lawfully in the UK for a continuous period of 12 months at some point in the past, and thus he would not have satisfied the proposed residence requirements. It is hard to see how depriving a person in P’s circumstances of legal aid could meet the Ministry of Justice’s specified objective of ‘targeting legal aid at the most serious cases which have sufficient priority to justify the use of public funds.’

It remains to be seen whether the government will appeal the court’s decision, or introduce amended legislation to the Parliament. Either way, the judgment has forced a fuller engagement with the question of the purpose that the provision of legal aid serves in England and Wales. This is democratic dialogue—and a culture of justification—in action.

Rights-based argument one: access to courts

The questions that the court did not decide may be almost as important as the questions that it did decide. The Public Law Project had also argued that the power contended for by the Lord Chancellor would violate the fundamental right of access to a court. But Moses LJ declined to engage with this argument, stressing that his reasoning was ‘confined to the construction of the powers that [the statute] confers’ [50]. In another passage, however, His Honour hinted at the problems that might arise in future, saying that ‘it might have been possible to draft primary legislation (I say nothing about its legality) which has the broader ambition of cutting the cost of legal aid by permitting the Lord Chancellor to adopt criteria irrespective of need…’ [45]. This foreshadows a debate which is highly likely to arise in any future legal proceedings.

The Divisional Court might be engaging in a spot of careful judicial diplomacy here. At a time when tensions are running high over the UK’s future in the European Convention system, it may not come as a surprise that the judgment turned on a narrow question of statutory construction rather than the implications of the measure for the Article 6 ECHR right of access to a court. Moreover, throughout the judgment Moses LJ referred obliquely to ‘vindicating rights’ [75] or ‘fundamental rights’ [47], [50], preferring to avoid specific reference to Convention rights or Convention case law. In this language choice, was the Court cleverly hinting here that the right of access to a court is no less entrenched in English and Welsh common law than in ECHR jurisprudence?

Rights-based argument two: discrimination

Interestingly, having reached a decision that turned on a question of statutory interpretation, and then having declined to deal with the argument based on access to justice, the Divisional Court went on to consider a third argument raised by the applicant. The judgment went on to hold that residence would not be a lawful ground for discriminating between the provision of legal aid in equally meritorious cases. This part of the judgment will no doubt provide fertile ground for equality lawyers, and has been discussed at length here and here. Rather confusingly, given that it does not appear to be part of the ratio, Moses LJ described the discrimination argument as the applicant’s ‘essential complaint’ [51]. The discussion of residence as a basis for distinguishing between worthy claimants builds on (without expressly citing) the House of Lords decision in the Belmarsh case, striking down detention of foreign nationals on the basis that the measure was not rationally tailored to the objective.

What appellate courts will make of this judgment, and how the government will respond, remains to be seen.

 

 Natasha Simonsen is a Stipendiary Lecturer in Law at St Anne’s College, Oxford .

(Suggested citation: N. Simonsen, ‘Government cannot use a ‘statutory back door’ to implement major changes to legal aid services, Divisional Court says’ U.K. Const. L. Blog (17th July 2014) (available at http://ukconstitutionallaw.org/).

 

 

2 Comments

Filed under Judicial review

Tom Hickman: Further Concerns about the DRIP Bill

tomIn a blog post on Monday I expressed concerns about the lack of time for proper scrutiny of the changes to be brought in by the DRIP Bill.

Towards the end of that blog I expressed puzzlement at a change to be made to the definition of “telecommunications system” in RIPA. This definition is central to the scheme of RIPA and is the basis for many of the powers therein.

The Governments’ suggestion that this change is intended to ensure that services like webmail are caught is not particularly persuasive. The explanatory material provided no further explanation.

Recall, the current definition of telecommunications service contained in section 2 of RIPA states that:

“telecommunications service” means any service that consists in the provision of access to, and of facilities for making use of, any telecommunication system (whether or not one provided by the person providing the service)

A telecommunications system is defined broadly as any system for facilitating communications electronically.

Clause 5 of the DRIP Bill provides that a telecommunications service shall henceforth include services, “facilitating the creation, management or storage of communications transmitted, or that may be transmitted” by means of a telecommunications system.

One explanation for this change presents itself. Telecommunications along with many other companies often store vast amounts of data about their customers and the usage of the company’s services for their own business purposes. The data can be stored for many years and are used for the company’s own business analysis purposes (think of Amazon analysing the purchasing habits of customers). Such data can be enormously valuable to the company.

It is stored in “data warehouses” or other storage facilities and is accessed in a variety of ways by increasingly sophisticated data search and management tools.

In addition, other data are held and used on other “platforms” within telecommunications companies for the companies’ operational purposes.

Such data may no longer be on the individual systems of users, such as in their email archive or records (which companies might not retain for very long). It does not necessarily include all of the data that would be of interest to law enforcement or intelligence agencies.

But the intention of the change to the definition of telecommunications services is to provide access to such platforms and if such platforms hitherto did not fall under RIPA then this amendment would represent a substantial change in the law. It would also potentially allow access to large amounts of data going back well over a year.

This suggestion is necessarily put forward on a tentative basis given the absence of time that has been allowed for people to scrutinise the Bill or consider its implications.

But two conclusions do seem warranted.

First, these thoughts underscore how unsatisfactory it is for legislation of this nature to be presented to Parliament on a fast-track basis as a behind-closed-doors “done deal”.

I am not of course suggesting that access to such platforms would necessarily be unjustified, my point is that it needs proper scrutiny and Parliament needs to know what it is voting on.

Secondly, history may identify this amendment as the most significant part of the DRIP Bill, although it is the one being given the least attention.

The DRIP Bill will pass through the House of Lords today and there will be no further opportunity for Parliamentary scrutiny of its terms.

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

(Suggested citation:  T. Hickman, ‘Further Concerns about the DRIP Bill’ U.K. Const. L. Blog (16th July 2014) (available at http://ukconstitutionallaw.org/).

 

3 Comments

Filed under Uncategorized