David Mead: PUBLIC LAW CURRENT SURVEY

davidmeadThe 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 May to 31 July 2014)

Administration of Justice

 Legal Aid

It was unlawful to seek, by means of secondary legislation proposed under s.9 of Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), to remove from the right to legal aid those who failed a residence test. So held the High Court in a challenge by the PLP to the Secretary of State’s proposed Statutory Instrument. It was ultra vires since LASPO did not permit such a criterion to be introduced by secondary legislation. It extended the scope and purpose of the statute and was thus outwith the power to add, vary or omit services conferred by s.9 of LASPO. The only criterion that emerged from analysis of the statutory provisions, read as a whole, related the identification and provision of services to need: thus, secondary legislation could only provide an opportunity to add, vary or omit those cases when, from time to time, the Lord Chancellor judged that a greater need had arisen or a lesser need had emerged for distribution of civil legal aid. Furthermore, the proposed SI was discriminatory in so far as in those cases where the state had chosen to provide legal assistance (in contrast to those cases where the UK was, by virtue of the HRA or under the common law right of effective access to the court, obliged to provide legal assistance, which latter cases were governed by s.10 of LASPO), it planned to refuse such assistance to those who would otherwise qualify save for the fact that they did not meet a residence test. Justifying discrimination in the provision of legal services simply on the ground of the need to save money was no answer to the allegation of discrimination on the grounds of residence. The mere saving of cost could not justify discrimination. The other justification offered by the Lord Chancellor was the need for public confidence in the legal aid system. In the context of a discriminatory provision relating to legal assistance, the Court’s view was that invoking public confidence amounted to little more than reliance on public prejudice (R (oao Public Law Project) v Secretary of State for Justice [2014] EWHC 2365 Admin).

It had been wrong in law to stay a complex fraud trial for abuse of process on the ground that the accused could no longer receive a fair or on the ground that it was necessary to protect the integrity of the criminal justice system in cases where, because of a 30% cut in remuneration offered to barristers in Very High Cost Cases (VHCC), barristers had collectively withdrawn from the scheme so that none of the accused was legally represented. So held the Court of Appeal overturning a decision of Leonard J. His holding that to allow the State an adjournment to put right its failure to provide the necessary resources to permit a fair trial to take place would amount to a violation of the process of the court was wrong in principle. It was quite wrong to seek to link the Financial Conduct Authority as prosecuting authority and those responsible for the provision of legal aid or to speak of “its own failure” as if there were a joint enterprise in which both were involved. Neither could the finding of the judge that there was no realistic prospect of competent advocates with sufficient time to prepare being available in the foreseeable future be sustained, and it was unreasonable for him to reach it. At the date of the hearing before Leonard J, there was a sufficient prospect of a sufficient number of Public Defender Service advocates who were then available to have enabled a trial to proceed in January 2015. That pool included a sufficient number of advocates of the rank of QC and was available at the date of the hearing. There was thus no question of a present breach of Article 6 and, should that state of affairs have arisen in the future, there would, in any event, be remedies short of a stay that could be deployed (R v Crawley [2014] EWCA Crim 1028).

Confidentiality (and data protection)

Data Retention

The Data Retention and Investigatory Powers Act received Royal Assent on 17 July – having been debated in Parliament for only two days after being introduced by the government as an emergency measure to respond to the ECJ judgment in Seitlinger and Digital Rights Ireland (discussed in the last current survey) in relation to Directive 2006/24/EC on retaining certain communications data. It also amended Part 1 of the Regulation of Investigatory Powers Act 2000, and provided for the extra-territorial application of that Part and about the meaning of “telecommunications service” for the purposes of that Act. Draft Regulations were published on 11 July.

Information Commissioner

The Information Commissioner’s annual report for 2013/14 was published on 22 July with the Commissioner warning that it had never been more important that the general public had an independent regulator overseeing the handling of people’s personal data, something in turn dependent on strong powers and sustainable funding.

Right to be forgotten

An internet search engine operator was responsible for the processing that it carried out of personal data which appeared on web pages published by third parties. Thus, if, following a search made on the basis of a person’s name, the list of results displayed a link to a web page which contained information on the person in question, that data subject may approach the operator directly and, where the operator did not grant his request, bring the matter before the competent authorities in order to obtain, under certain conditions, the removal of that link from the list of results. So held the ECJ held, contrary to an earlier opinion of A-G Jaaskinen, in a challenge under the 1995 Data Protection Directive (Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31)) brought by G who objected that searches against his name on Google produced links to two newspaper articles that referred to old bankruptcy proceedings against him some twelve years before, proceedings that had been fully resolved for a number of years such that reference to them was now entirely irrelevant (Google Spain SL, Google Inc. v Agencia Española de Protección de Datos, Mario Costeja González Case C-131/12, 13 May).

The House of Lords European Union Committee reported on the case “EU Data protection law: a right to be forgotten?” (HL40, 30 July) and concluded that it was unworkable, unreasonable and wrong in principle.

Constitution

Codified constitution?

On 10 July, the Political and Constitutional Reform Select Committee launched a major consultation on “A New Magna Carta” into the shape of our democracy today. That Committee also published its report “The constitutional role of the judiciary if there were a codified constitution” (HC 802 14 May). If the UK moved towards a codified constitution, one way of addressing the question of what powers the judiciary should have if they held a piece of legislation to be unconstitutional, would be to introduce the concept of a “declaration of unconstitutionality” along lines of declarations of incompatibility under s.4 of the HRA. If the UK were to adopt a codified constitution, there would be no need for a separate constitutional court.  The Supreme Court could adjudicate on constitutional matters.

House of Lords

Following the appointment of Baroness Stowell of Beeston as Leader of the Lords on the basis that she would attend Cabinet rather than be a full Cabinet member, The House of Lords Constitution Committee reported on the status of the Leader of the House of Lords (HL 41, 25 July 2014). It concluded that part of the role of the Leader of the House was to give “unpalatable” advice to other ministers about the views of the House of Lords on departments’ policies, and to advise colleagues on the chances of legislation passing the House or how long it might take. If, as now, the Leader was not a full member of the Cabinet, “there may be a risk that the views of the House are not fully listened to in the Cabinet.” The committee was not aware of any Leaders of the House of Lords who were not full members of the Cabinet and suggested this is the first time that the Cabinet had not included any representatives of the House of Lords as full members. The report stated that it sits “uneasily” with the constitutional principle that ministers are drawn from a bicameral legislature for one House of Parliament to be unrepresented in the full Cabinet.

The House of Lords Privileges and Conduct Committee has published a report recommending changes to the Code of Conduct (HL 182 12 May).

The House of Lords Reform Act 2014 (which received Royal Assent on 14 May) provides for resignation from the House of Lords and for the expulsion of Members of the House of Lords in specified circumstances.

Lord Chancellor

The House of Lords Constitution Committee is currently taking evidence for its inquiry into the office of Lord Chancellor.

Devolution 

Case law

The Agricultural Sector (Wales) Bill 2013, establishing a scheme for the regulation of agricultural wages in Wales was within the legislative competence of the National Assembly for Wales, as a devolved matter relating to agriculture with s.108 of and Schedule 7 to the Government of Wales Act 2006, rather than (as had been argued by the Attorney General for England and Wales) to employment and industrial relations, which had not been devolved to the Welsh Assembly. So held the Supreme Court on a reference by the Attorney-General under s.112(1) of the 2006 Act. The question whether a provision was outside the competence of the Assembly must be determined according to the rules in s. 108 and Schedule 7; the description of the 2006 Act as being of great constitutional significance could not be taken, in itself, to be a guide to its interpretation. The statute must be interpreted in the same way as any other statute; and if help was needed as to what the words mean, it was proper to have regard to the purpose that lay behind the 2006 Act, namely to achieve a constitutional settlement. In interpreting s.108 and Part 1 of Schedule 7, it was not open to the Court to consider inter-governmental correspondence that preceded the 2006 Act but was never made public or disclosed to Parliament. Neither did the fact that a power was not conferred during the first or second phases of devolution assist, as each of the three phases significantly increased the legislative competence of the Assembly. On a true construction, the Bill related – that is had “more than a loose or consequential connection” – to agriculture in its broader sense as meaning the industry or economic activity of agriculture in all its aspects. It appeared from the consultation process that led to the Bill that its purpose was to regulate agricultural wages so that the agricultural industry in Wales would be supported and protected. Provided that a Bill fairly and realistically satisfied the test set out in ss.108(4) and (7) and was not within an exception, it did not matter whether it might also be capable of being classified as relating to a subject which had not been devolved, such as employment and industrial relations. The legislation did not require that a provision should only be capable of being characterised as relating to a devolved subject (Agricultural Sector (Wales) Bill – a Reference by the Attorney-General for England and Wales [2014] UKSC 43).

Legislation

The Procurement Reform (Scotland) Act 2014 received Royal Assent on 17 June, making provision about the procedures relating to the award of certain public contracts and requiring certain authorities to produce procurement strategies and annual reports.

The Education (Wales) Act 2014 makes provision about the Education Workforce Council (formerly the General Teaching Council for Wales), extends the registration, qualification and training requirements of the education workforce, makes provision about the determination of school term and holiday dates in Wales and in connection with appointments to Her Majesty’s Inspectorate of Education and Training in Wales.

The Local Government (Northern Ireland) Act – passed on 12 May – is wide-ranging and includes provisions relating to disqualification of councillors, the discharge of council functions, executive arrangements, and conduct of councillors and council meetings, and performance improvement.

Parliamentary: reports and debates

The House of Lords Constitution Committee report “Scottish independence: constitutional implications of the referendum” (HL 188 16 May) was debated by the House on 24 June. The Scottish Affairs Committee produced four reports relating to devolution in the period: “The Referendum on Separation for Scotland: no doubt–no currency union” (HC 499, 21 July), “Our Borderlands, Our Future” (HC 556, 14 July), “The Referendum on Separation for Scotland: Implications for Pensions and Benefits” (HC 498, 6 July) and “The Referendum on Separation for Scotland: Scotland’s Membership of the EU” (HC 1241 27 May) alongside reports on the bedroom tax and blacklisting in employment. The Scottish Parliament’s own EU and External Relations Committee “Report on the Scottish Government’s proposals for an independent Scotland: membership of the European Union” (SP 530) was published on 23 May. The Welsh Affairs Committee published its report “Energy generation in Wales: Shale Gas” (HC 284 16 June) and is currently holding inquiries into cross border health arrangements, prisons in Wales and the treatment of offenders, and the international representation and promotions of Wales by UK bodies.

Elections

Campaigning

The House of Lords Communications Committee reported that political jockeying over TV election debates risked a return to the historical pattern of failure to ensure the debates reach our screens (“Broadcast General Election Debates” HL 171, 13 May). This would be regrettable in light of powerful evidence that the public expected the debates to happen again. Research also showed that the debates helped to energise and engage the public in the electoral process, with the most striking impact on the young and relatively disengaged.

An injunction that prevented B from distributing leaflets in which he urged people not to vote for a mayoral candidate who allegedly provided cover for a neo-Nazi Organization violated the right of free speech in Article 10 in giving undue weight and concern to the protection of the candidate’s personality rights above B’s freedom of expression. So held the European Court upholding an application against Germany after B was prevented by a court order from distributing the leaflet and making other assertions of fact which could be taken to depict the candidate as a supporter of neo-Nazi organisations. In doing so, the German courts had improperly considered the leaflets to be assertions of fact, and attached a a disproportionally high degree of factual proof, that B had failed to discharge, when it was clear that there were elements of value judgment in the leaflets that were incapable of proof. In requiring “compelling proof”, they had applied a degree of precision that came close to the one usually required for establishing the well-foundedness of a criminal charge. That degree of precision could hardly be compared to that to be observed when someone’s opinion on a matter of public concern was concerned as this undoubtedly was. The leaflet was distributed in the run-up to the mayoral elections and set out B’s view of a candidate’s suitability for the office and was therefore of a political nature and concerned a question of public interest at the time. This was all the more so when the limits of acceptable criticism were properly wider as regards a politician than as regards a private individual (Brosa v Germany App 5709/09, 17 April).

Voting ban

The ban preventing prisoners from voting in the 2014 referendum, contained in the Scottish Independence Referendum (Franchise) Act 2013, was not incompatible with A3, P1 or Article 10 of the ECHR; the duty on states in the First Protocol “to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature” did not extend to votes in a referendum. The Court handed down judgment with reasons to follow – at the time of writing these were not available (Moohan and Gillon v Lord Advocate 24 July).

European Union

Balance of Competencies

The Government published its various Reviews of the Balance of Competencies between the UK and the European Union including those covering the Single Market: Freedom of Movement, Competition and Consumer Policy, EU Budget , Cohesion Policy, Fundamental Rights and Social and Employment Policy.

The Government published its response to the House of Commons European Scrutiny Committee Report (43rd Report, 2013–14, HC979) “The application of the EU Charter of Fundamental Rights in the UK: a state of confusion” (referred to in the last Current Survey)

Commission

Jean-Claude Juncker, the former Prime Minister of Luxembourg, was elected President of the European Commission, to replace Jose Manuel Barroso, by a strong majority of 422 votes in the European Parliament plenary session in July. This followed a 27:2 vote by the European Council on 27 June 2014, with the UK (and Hungary) voting against his candidature preferring a more reforming candidate. Juncker’s political guidelines for the next European Commission were set out in “A New Start for Europe: My Agenda for Jobs, Growth, Fairness and Democratic Change”.

Parliamentary

On 10 July, the House of Commons held a general debate on the UK’s Justice and Home Affairs Opt-outs. 

Freedom of speech

Anonymity orders

An anonymity order, made under s.11 of the Contempt of Court Act 1981, during the course of deportation proceedings against A (commenced after A was convicted for sexual offences with a child) was not made unlawfully. So held the Supreme Court rejecting a challenge by the BBC to the order, in terms of both substance and process. It was an accepted fact that if A was being deported became known in his country of origin there would be a real risk of his article 3 rights being infringed. The anonymity order had been made, withholding A’s identity, was necessary to safeguard his article 3 rights and to preserve the integrity of the court proceedings; publication of the information would give A grounds for a fresh application to the Home Secretary and frustrate the proceedings. There were exceptions to the general constitutional principle of open justice, public scrutiny of the courts and media reporting of proceedings, important as they were. The courts have an inherent jurisdiction to determine how the principle of open justice should be applied and can permit the identity of a party or witness to be withheld from public disclosure where necessary in the interests of justice. Central to the court’s evaluation would be the purpose of the open justice principle, the potential value of the information in advancing that purpose, and any risk of harm that its disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others. The principle of open justice was protected by both the ECHR and at common law, and the latter remains in vigour even where Convention rights also apply. The use of s.11 was not limited to protecting the public interest in the administration of justice, or to cases where members of the public are present in court. Section 12 of the HRA did not apply to s.11 applications as they were not applications for relief made against any person. Fairness nevertheless required the media to have an opportunity to be heard, but both this and the media’s right to an effective remedy were secured by enabling any person affected to seek recall of the order promptly at a hearing inter partes, as was the case here for the BBC. In terms of Article 10, the arguments in favour of making the order were overwhelming, and necessary in a democratic society in order to protect the integrity of the legal proceedings and A’s article 3 rights. The order allowing A to withhold his identity was also in accordance with the court’s common law powers (A v BBC [2014] UKSC 25).

Social Media

The House of Lords Communications Committee report “Social Media and Criminal Offences” (HL 37 29 July) concluded that legislation currently in existence, including the Communications Act 2003 and the Protection from Harassment Act 1997, along with the guidelines for applying them published by the Director of Public Prosecutions, were enough to ensure that criminal offences committed using social media could be adequately prosecuted.

Government and Civil Service

The Commons Political and Constitutional Reform Committee called for more clarity on the Prime Minister’s powers in its report “The Role and Powers of the Prime Minister” (HC 351, 24 June), and argued that more of them should be put into statute to allow for greater transparency and accountability. The Committee continued taking evidence in its inquiry into Revisiting the Cabinet Manual.

In July, there was a Cabinet reshuffle including new appointments as Foreign Secretary, Leader of the House, Chief Whip and Attorney-General.

Human Rights

Assisted suicide

Under the UK’s constitutional settlement, the courts have the constitutional authority to make a declaration of incompatibility in relation to the blanket ban on assisted suicide, contained within s.2 of the Suicide Act 1961. So held a majority of the Supreme Court in various applications challenging both the ban and the DPP’s prosecution policy. While the Supreme Court was unanimous in holding that s.2 engaged Article 8, as it prevents people who are physically unable to commit suicide without assistance from determining how and when they should die, the Court was divided on the appropriate resolution. While (per Lord Mance, Lord Neuberger and Lord Wilson) the sensitive and controversial nature of the issue did not justify the court ruling out the possibility that it could make a declaration of incompatibility, it would be inappropriate for a court to decide whether s.2 was incompatible with Article 8 before giving Parliament the opportunity to consider the position in the light of this judgment. In contrast, Baroness Hale and Lord Kerr would have issued a declaration of incompatibility. In making no exception for those whose expressed wish to die reflects an autonomous desire rather than undue pressure, the current ban on assisting suicide was incompatible with Article 8. While Lord Sumption, Lord Hughes, Lord Reed and Lord Clarke accepted that the courts had jurisdiction under the HRA to determine the compatibility of the universal ban with Article 8, that question turned on issues which Parliament was in principle better qualified to decide, it involving important elements of social policy and a moral value-judgment, which were inherently more suitable for decision by Parliament as the representative organ of the constitution. Under present circumstances the courts should respect Parliament’s assessment. On the second question, the Court unanimously held that the DPP’s policy was lawful. It was one thing for the court to decide that the DPP must publish a policy, and quite another for the court to dictate what should be in that policy. The exercise of judgement by the DPP, the variety of relevant factors, and the need to vary the weight to be attached to them according to the circumstances of each individual case, were all proper and constitutionally necessary features of the system of prosecution in the public interest (R (oao Nicklinson and another) v Ministry of Justice; R (oao AM) v DPP [2014] UKSC 38).

Children

The JCHR report “Legal Aid: Children and the Residence Test” (HC 234 / HL 14, 30 June) concluded that the impact of the legal aid residence test on children would lead to breaches by the UK of the UN Convention on the Rights of the Child because it will in practice prevent children from being effectively represented in legal proceedings which affect them.

Criminal conviction certificates

The system of enhanced criminal record certificates contained in Part V of the Police Act 1997 constituted unlawful violations of privacy, contrary to Article 8 of the ECHR. So held the Supreme Court, upholding the declarations of incompatibility granted by the Court of Appeal in respect of ss. 113A and 113B, in claims brought by two individuals against whom disclosures of cautions (some six to eight years in the past) were made. It was impossible to read and give effect to the provisions in a way which was compatible with T’s or JB’s Convention rights. Neither individual had any other criminal record. Laws requiring a person to disclose his previous convictions or cautions to a potential employer constituted an interference with Article 8. Disclosures in the ECRCs also constituted Article 8 interferences, significantly jeopardising T’s and JB’s entry into their chosen fields of endeavour. The majority of the Court considered the sections were incompatible with Article 8 because they failed to meet the requirement of legality, that is the interference was not “in accordance with law” because the legislative scheme required indiscriminate disclosure by the state of personal data which it had collected and stored but without adequate safeguards against arbitrary interferences with Article 8 rights as to enable the proportionality of the interference to be adequately examined. The Court unanimously held too that the interferences could not, in any event, be said to meet the requirement of being “necessary in a democratic society”. Lord Wilson noted that it was the Home Secretary who identified a need to scale back the criminal records system “to common sense levels”. Lord Reed pointed to a lack of a rational connection between dishonesty as a child and the question of whether, as an adult, the person might pose a threat to the safety of children with whom he comes into contact (R (oao T and JB) v Secretary of State for the Home Department [2014] UKSC 35).

Damages

The last issue noted the decision of the High Court that the Metropolitan Police had breached the Article 3 duty owed to the victims of the so-called black cab rapist for failing to carry out an effective investigation. In DSD and NVB v The Commissioner of Police for the Metropolis [2014] EWHC 2493, Green J turned to the question of quantum. In doing so, he provides a useful guide to and an analysis of the principles underpinning an award of damages under s.8 of the HRA, including an overview of the growing corpus of case-law.

Fair trial

A British citizen on trial abroad, facing charges of drug smuggling in Indonesia, and possible death penalty, was not within the jurisdiction of the UK for the purposes of Article 1 of the ECHR, which is primarily territorial. It was not possible to identify any relevant acts of diplomatic or consular agents or any relevant exercise of authority or control by such agents over S which could bring the exception into play, and which would have entitled S to free legal representation within Article 6(3)(c). A refusal to instruct or fund lawyers on behalf of S could not constitute an exercise of authority or control over her. The power the Secretary of State has under domestic law to provide assistance, including legal funding, for British citizens facing capital charges abroad, was not derived from statute but was an exercise of the prerogative. There was no necessary implication that a blanket policy was inappropriate, or that there must always be room for exceptions, when a policy is formulated for the exercise of a prerogative power. In any event, the evidence was that the Foreign Office was prepared to consider whether the policy should be modified in the face of the particular circumstances of S’s case. The department responded with urgency to S’s unexpected death sentence, and put S in contact with an experienced local lawyer who was willing to conduct the appeal on an expenses-only basis. Their reasons for not making an exception to their no-funding policy were not irrational. That said, S remained in jeopardy and urgently in need of legal help. Circumstances had radically developed in unforeseen ways as to call for an urgent review of the policy as it applied to S in light of the current information (R (oao Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [2014] UKSC 44).

Freedom of Religion

On 1 May, MPs took part in a general debate on freedom of thought, conscience and religion around the world, a debate scheduled by the Backbench Business Committee following representations from Naomi Long, Dr Julian Lewis and Mark Pritchard.

Lady Hale gave the annual Human Rights Lecture for the Law Society of Ireland “Freedom of Religion and Belief” on 13 June.

It was not unlawful for the Secretary of State to seek to remove B and his daughter, Iranian nationals, to France, pursuant to Dublin II, having refused their asylum claims on third safe country grounds despite the banning by French Law of, in effect, the wearing of the burka and niqab in public. It was not a violation of any of B’s rights in Articles 3, 8, 9, 11 or 14 of the ECHR, coming nowhere near the stringent flagrancy test. It was also clear that the Minister had throughout considered the best interests of the child B, as required under s.55 of the Borders, Citizenship and Immigration Act 2009 (R (oao Baradaran) v Secretary of State for the Home Department [2014] EWCA Civ 854).

The French law prohibiting the concealment of one’s face in public places (Law no. 2010-1192 of 11 October) did not violate Article 8 or Article 9, or Article 14, of the ECHR. So held the Grand Chamber by a majority (and unanimously for Article 14) in a claim brought by a French national, who was a practising Muslim, who argued that the effect of the law was to ban her from wearing either the burka or niqab in public. Personal choices as to one’s appearance related to the expression of an individual’s personality, and thus fell within the notion of private life. Being prevented from wearing in public places clothing that she was required to wear by her religion raised an issue with regard to the freedom to manifest one’s religion or beliefs. There was a “continuing interference” with the exercise of the applicant’s rights under Articles 8 and 9, as she was confronted with a dilemma: either she complied with the ban and thus refrained from dressing in accordance with her approach to religion, or she refused to comply and would face criminal sanctions. The ban was not “necessary in a democratic society” in order to fulfil the aim of public safety. In view of its impact on the rights of women who wished to wear the full-face veil for religious reasons, a blanket ban on the wearing in public places of clothing designed to conceal one’s face could be regarded as proportionate only in a context where there was a general threat to public safety. The French Government had not shown that the ban fell into such a context. The ban though was a proportionate response to the legitimate aim of “living together”, an element of protecting and preserving the rights of others. The face played a significant role in social interaction. It was legitimate to restrict in places open to all, practices or attitudes which fundamentally call into question the possibility of open interpersonal relationships, which, by virtue of an established consensus, formed an indispensable element of community life within the society in question. The barrier raised against others by a veil concealing could thus be seen as breaching the right of others to live in a space of socialisation which made living together easier. The ban was proportionate: while it mainly affected certain Muslim women, there was no restriction on the freedom to wear in public any item of clothing which did not have the effect of concealing the face. Further, the ban was not expressly based on the religious connotation of the clothing in question but solely on the fact that it concealed the face. In addition, the sanctions provided for by the Law were among the lightest that could have been envisaged. Furthermore, as the question whether or not it should be permitted to wear the full-face veil in public places constituted a choice of society, France had a wide margin of appreciation such that the Court had a duty to exercise a degree of restraint in its review of Convention compliance, since such review led it to assess a balance that had been struck by means of a democratic process within the society in question. This was all the more so given the lack of common ground between Member States (SAS v France Application no. 43835/11 1 July).

Property 

It was a disproportionate interference with the right to peaceful enjoyment of possessions in A1, P1 for a confiscation order (of £29,000) to be imposed – following conviction for obtaining pecuniary advantage by deception through using a false passport – where that amounted to the confiscation of someone’s entire savings over nearly four years of genuine work and when the proceedings as a whole had not afforded a reasonable opportunity to put a case to the competent authorities so that they could establish a fair balance between the conflicting interests at stake, namely P’s right to protection of his property and the requirements of the general interest. As domestic law had only permitted the national courts to consider whether or not a confiscation order was “oppressive” or an “abuse of process” at the time P’s case was decided (R v Waya [2012] UKSC 51not yet having been decided), the scope of review carried out by them had been too narrow (Paulet v UK App 6219/08, 13 May; on confiscation orders, see too R v Ahmad; R v Fields [2014] UKSC 36).

While it was foreseeable as an established principle of the common law of receivership that a court-appointed receiver, including one made under s.48 of the Proceeds of Crime Act 2002 (following an application by the CPS) may draw his remuneration and expenses to the assets placed by the court in his/her control, it was disproportionate to order that the receiver’s expenses be drawn from the companies. So held the Supreme Court in rejecting an appeal by the CPS against decisions that the receiver (B) not be permitted to draw £772,000 expenses and remuneration from E’s assets. E was a holding company for a number of trading cash and carry retail outlets. The orders were sought because the CPS was conducting a covert investigation into a suspected fraud on HMRC, allegedly carried out by W and H (joint beneficial owners of E Group) through E group companies. The taking of property without compensation was, in general, a disproportionate interference with A1P1 of the ECHR. In this case E Group was neither defendant – the defendants being W and H – nor (as the Court of Appeal found) was there any reasonable cause for regarding E Group assets as those of the defendants at the time when it was made. It was akin to seeking to use the assets of an innocent defendant to cover the costs of detaining and prosecuting him or her. The receiver would have a claim in unjust enrichment against the CPS (Barnes v EastEnders Group plc [2014] UKSC 26).

Privacy

It violated a patient’s procedural rights under Article 8 not to be consulted in the process leading to a “Do Not Attempt Cardio-Pulmonary Resuscitation” (DNACPR) notice, and the same would hold as a matter of common law. While it would be inappropriate (and therefore not a requirement of Article 8) to involve the patient in the process if the clinician considered that to do so was likely to cause her to suffer physical or psychological harm, doctors should be wary of being too ready to exclude patients from the process on the grounds that their involvement was likely to distress them. Many patients may find it distressing to discuss the question whether CPR should be withheld from them in the event of a cardio-respiratory arrest. If however the clinician formed the view that the patient would not suffer harm if she were consulted, the fact that she may find the topic distressing was unlikely to make it inappropriate to involve her. So held the Court of Appeal in a claim brought by the family of T, who died in Addenbrookes hospital. A few weeks after being diagnosed with lung cancer with an estimated life expectancy of 9 months, T sustained a serious cervical fracture after a major road accident and admitted to the hospital. She had chronic respiratory problems and was placed on a ventilator, but did not respond to treatment for her chest infection. Following a review of her treatment, a DNACPR notice was placed on her notes. The family claimed that in imposing the notice without adequate consultation, and without notifying her of the notice, the hospital breached T’s rights under Article 8 of the ECHR, as did failing both to make its DNACPR policy available to her and to have a policy which was clear and unambiguous. Claims were also brought against the Secretary of State for failing to publish national guidelines but these were not upheld (R (oao Tracey) v Cambridge University Hospitals NHS Foundation Trust and the Secretary of State for Health [2014] EWCA Civ 822).

Socio-economic rights

It had been lawful for a council to reduce a care package to aid someone’s toileting needs, no longer paying for night-time carer but funding instead only incontinence pads for a 60-year old woman who had very limited mobility as a result of a stroke. While this very distressing situation, and the indignity it brought, did constitute an interference with the right to respect for her family and private life under Article 8, it pursued a legitimate aim, namely the economic well-being of the State and the interests of other care-users. The interference was “necessary in a democratic society”, especially when weighed against the economic well-being of the State. States had a wide margin of appreciation in issues involving social, economic and health-care policy, especially when deciding how to allocate scarce resources. It was therefore not for the Court to substitute its own assessment of the merits of the contested measure for that of the competent national authorities. The Court found that both the local authority (via regular care reviews) and the national courts (including the Court of Appeal and the Supreme Court) had balanced M’s need for care with its social responsibility for the well-being of other care-users in the community at large. It was thus proportionate (McDonald v UK App 4241/12, 20 May).

Human Rights Act and the ECHR.

There has been much media speculation about the future of the HRA post-2015, especially in light of the change in personnel in the office of Attorney-General. While their plans have not yet been firmed up, current Conservative thinking seems to be to re-align the balance of power between Strasbourg judges and Westminster politicians by giving a form of democratic override to ECHR judgments, while ostensibly remaining within the Council of Europe and not amending Article 46. This was reported in a leaked document by former A-G Dominic Grieve as a “a legal car crash” albeit one with “a built-in time delay”. Labour too, according to a piece in the Daily Telegraph, is seeking to resituate power but with a focus on s.2 and the duty to “to take account”. In June, Lord Phillips contributed to this debate; his annual lecture to the Centre of European Law at Dickson Poon School of Law was “European Human Rights – A Force for Good or a Threat to Democracy?”

Judicial Review

The House of Lords Select Committee on the Constitution (2nd report, HL 18, 4 July) on the Criminal Justice and Courts Bill considered in detail the Government’s proposals to reform judicial review. On 30 June, the House of Lords held a debate, and there is considerable discussion of the proposed change to s.31 of the Senior Courts Act 1981 – refusal of relief (in clause 64 of the Bill) – in debate on the Bill on 28 July, particularly by Lord Brown and Lord Woolf, with Lord Brown calling the Government’s proposals a “double heresy” (Hansard HL Deb 28 July col. 1434 onwards).

The Jobseekers (Back to Work Schemes) Act 2013 was the Government’s attempt to reverse the effects of the UKSC decision in Reilly No.1. The 2013 Act retrospectively validated the 2011 Regulations (found by the Court of Appeal in that earlier litigation to be ultra vires), retrospectively validated all notification letters that had failed to comply with the requirements in the 2011 Regulations, and retrospectively validated sanctions which had been imposed pursuant to the 2011 Regulations. The High Court held, in this further challenge by Reilly, that the 2013 Act was incompatible with Art. 6(1) ECHR and granted a declaration under s.4 of the HRA. Although Parliament was not precluded in civil matters from adopting new retrospective provisions to regulate rights arising under existing laws, the principle of the rule of law and the notion of a fair trial and equality of arms contained in Article 6(1) (according to Strasbourg case-law) “precludes any interference by the legislature… with the administration of justice designed to influence the judicial determination of a dispute” or “influencing the judicial determination of a dispute to which the State is a party”. This can only be justified “on compelling grounds of the general interest” and “any reasons adduced to justify such measures be treated with the greatest possible degree of circumspection”. Such principles also accurately reflected fundamental principles of the UK’s unwritten constitution. Here, the Secretary of State was the opposing party in the earlier litigation. The 2013 Act was promoted by the Secretary of State and enacted by Parliament in March 2013, and was directly targeted at resolving the litigation in Reilly No. 1 and so amounted to an interference in ongoing legal proceedings brought R, as it influenced the judicial determination in favour of the Secretary of State. As to the second claimant’s claims under A1, P1 by contrast, he was not here deprived of an existing possession; this was not a revocation of benefit previously received, nor a demand for repayment. The mere fact that he had been paid a benefit in respect of an earlier period did not entitle him to continuing payments in the future if he no longer met the necessary conditions. The 2013 Act did not therefore engage A1, P1 (R (oao Reilly and Hewson) v Secretary of State for Work and Pensions [2014] EWHC 2182 Admin).

Judiciary

Speeches

Lady Hale gave the Fiona Woolf Lecture for the Women Lawyers’ Division of the Law Society “Women in the Judiciary” on 27 June.

Personnel

Lord Justice Moses resigned as Lord Justice of Appeal with effect from 21 June and will become Chairman of the Independent Press Standards Organisation. Mr Justice Tugendhat retired from the High Court in June. Also in June, Jennifer Roberts QC was appointed a Justice of the High Court (Family Division) and Mark Warby QC to the Queen’s Bench Division, as well as HHJ Goss (QBD) in May. Lord Justice Moore-Bick was appointed as Vice-President of the Court of Appeal (Civil) in May.

Local Government

The Communities and Local Government committee (HC 503 9 July) report “Devolution in England: the case for local government” called for the transfer of a range of tax raising powers to local authorities along with greater flexibility to borrow for investment. Releasing groups of authorities in England—centred on large city and county regions—from the fiscal grip of Whitehall could re-energise local democracy, boost England’s economic performance and lead to more balanced growth across the country. In Scotland, the parliamentary Local Government and Regeneration Committee report “Flexibility and Autonomy in Local Government” (SP 573 27 June) recommended increased powers and freedoms for local authorities.

Parliament

Legislation

Public General Acts passed in the period include:-

  • The Immigration Act, inter alia limiting access to services, facilities and employment by reference to immigration status and providing for the removal of citizenship from persons whose conduct is seriously prejudicial to the United Kingdom’s vital interests.
  • The Defence Reform Act relating to defence procurement and reserve forces.
  • The Care Act inter alia reforming the law relating to care and support for adults and the law relating to support for carers and providing for safeguarding adults from abuse or neglect and about care standards.

Reports

Significant reports not referred to elsewhere in this survey include

  • The Commons Education Committee reported on “The Underachievement of White Working Class Children” (HC 142, 18 June)
  • The Commons Political and Constitutional Reform Committee report “Fixed term Parliaments: the final year of a Parliament” (HC 976 7 May) called on Government, Parliament and all the political parties to use the remaining time before the end of the first ever fixed-term parliament to fully and properly plan ahead of the 2015 election and the next Parliament. As the Committee Chair Graham Allen MP said, “the year ahead of the next general election presents a wonderful opportunity for Parliament, Parties and politicians to demonstrate a better side to the public including exploring real policy choices and holding serious debate. We should be bold enough to use this unique period not just as a conventional legislative year but with imagination and creativity.”

Police

The Commons Home Affairs Committee published its report “Police and Crime Commissioners: Progress to Date” (HC 757, 5 May). HMIC issue two strategic policing requirement reports in June: on dealing with threats to public order, and threats of a large-scale cyber incident, as well as (in July) “Policing in Austerity: Meeting the Challenge”.

Prisons

A person released from prison on a home detention curfew, and then recalled to prison under s. 255 of the Criminal Justice Act 2003, did not have the right under Article 5(4) of the ECHR to challenge that deprivation before a judicial body. So held the Supreme Court in rejecting a challenge by W, who had been sentenced to 18 months in prison for robbery, and released after five months under a home detention curfew pursuant to s.246 of the 2003 Act. Two months later the Secretary of State decided to revoke the licence under s.255, because the appellant’s whereabouts could no longer be monitored in the community, and he was recalled to prison. The decision of the Secretary of State was not subject to any statutory judicial control or review. Under Strasbourg jurisprudence, where a person was lawfully sentenced to a determinate term of imprisonment by a competent court, there was (at least in the absence of unusual circumstances) no question of his being able to challenge his loss of liberty during that term on the ground that it infringed Article 5(4). This was because, for the duration of the sentence period, “the lawfulness of his detention” has been “decided…by a court”, namely the court which sentenced him to the term of imprisonment. On this approach, Article 5(4) could not normally be invoked in a case where, in relation to those serving determinate terms, domestic discretionary early release provisions were operated by the executive. The notion that Article 5(4) was satisfied by the original sentence appeared entirely principled, and the consequence that a person under such a regime had to rely on his domestic remedies, at least unless other Convention rights were engaged, was not unreasonable in practice. The common law should be well able to afford appropriate protection to the rights of people in the position of W without recourse to the ECHR. The Court divided on the question of whether Article 5(4) was capable of applying to the revocation of a mandatory licence, rather than (as here on the facts) a discretionary decision to release on licence. The majority considered Smith and West [2005] UKHL 1 to be incorrect and the observations of Lord Brown in R (Black) v Secretary of State for Justice [2009] UKHL 1 to be wrong in so far as they suggested that domestic law in relation to article 5(4) differed from the Strasbourg jurisprudence. Baroness Hale was of the view that once a prisoner passed the point of mandatory release on licence, the basis for any later recall and detention was the risk of reoffending rather than the original court order and, therefore, Article 5(4) applied (R (oao Whiston) v Secretary of State for Justice [2014] UKSC 39).

Terrorism

Reports

The Independent Reviewer of Terrorism’s Report into the operation of the Terrorism Acts in 2013 was published on 22 July. Among topics covered were recent developments in proscription; alleged ethnic or community bias in the use of police powers; reform of the Schedule 7 port power; developments concerning arrest and detention; the worldwide reach of UK counter-terrorism law; the breadth of the definition of terrorism; and the future of independent review, in the light of recent Government proposals to create an Independent Privacy and Civil Liberties Board (announced as part of the package surrounding the Date Retention and Investigatory Powers Act).

Terrorist trials

In exceptional circumstances, the core of a criminal trial could be held in private and not defeat the principle of open justice. So held the Court of Appeal, varying an order of Nicol J that would have permitted the entirety of the trial to be held in camera, in applications brought by two defendants charged with various offences under the Terrorism Acts 2000 and 2006, and under the Identity Documents Act 2010. On the evidence, there was a significant risk – at the very least, a serious possibility – that the administration of justice would be frustrated were the trial to be conducted in open Court; for what appeared to be good reason, the Crown might be deterred from continuing with the prosecution. That said, there would be no risk to the administration of justice if certain elements of the trial were heard in open Court: swearing in of the jury; reading the charges to the jury; at least a part of the Judge’s introductory remarks to the jury; at least a part of the Prosecution opening; the verdicts; and sentencing (Guardian News and Media v AB CD [2014] EWCA Crim 1861)

 

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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Ian Cram: Penalising the googling juror? – Reflections on the futility of Part 3 of the Criminal Justice and Courts Bill (2013-14)

cram2-ianThe hotchpotch of measures that comprises the Criminal Justice and Courts Bill is about to reach Report Stage in the House of Lords. The Bill sets out a panoply of new and controversial measures to deal with dangerous offenders, young offenders, drugs-testing in prisons, wilful neglect or ill-treatment by care workers, reforms to criminal proceedings (including the use of cautions), the possession of extreme pornographic images, civil proceedings involving judicial review (B. Jaffey & T. Hickman), personal injury cases and challenges to planning decisions. The adequacy of this miscellaneous approach to law reform will doubtless come under the fuller scrutiny that it deserves elsewhere. This blog takes as its focus provisions in Part 3 of the Bill which seeks to put on a statutory footing offences connected with private research by jurors. I suggest that resort to the criminal law constitutes a clumsy, impractical and unnecessarily punitive attempt to regulate the extra-curial activities of the modern, online juror. It is incumbent on our lawmakers to explore more imaginative responses to the undoubted problem of jurors’ access to untested, internet materials – responses that might be more obviously premised upon an appreciation of jurors’ dutiful efforts to arrive at just verdicts.

Whilst illicit, private research by jurors long pre-dates the Internet (recall Sidney Lumet’s classic 1957 film Twelve Angry Men), the ability of jurors to seek out materials concerning events and personnel at the centre of criminal proceedings is considerably enhanced in the electronic era. A survey by Thomas for the Ministry of Justice in 2010 which at the time was reckoned to have underestimated the extent of online research, it was revealed that 12% of jurors in ‘high profile’ and 5% of jurors in standard (non-high profile) cases confessed to doing private research into the cases they were trying. (C Thomas, ‘Avoiding the Perfect Storm of Juror Contempt’ [2013] Crim L Rev 483) Despite some well- publicised convictions of jurors in 2011 and 2012 for online research during deliberations (Fraill [2011] EWHC 1629 and Dallas [2012] EWHC 156) resulting in custodial sentences, it would be surprising in 2014 if actual instances of jurors’ private research had not increased beyond the levels reported in 2010.

The legal basis of convictions such as those in Fraill and Dallas remains unclear. Is the offence committed merely when the juror intentionally disobeys a judicial instruction or does it also need to be shown that he/she has acted in a way calculated to create a real risk of prejudice to the administration of justice? Dallas is currently awaiting the outcome of her application to Strasbourg, arguing that the trial judge’s warning to jurors not to conduct private research lacked the requisite degree of clarity needed to make clear both what was prohibited and what the legal consequences of any breach might be.

It is against this somewhat uncertain background that the Law Commission recommended in 2013 the creation of statutory offences of new offences concerning private research by jurors (and its dissemination) as well as giving trial judges the power to order jury members to surrender electronic communications devices for a limited period. To be fair to the Commission, it is intended that these new offences operate alongside non-penal measures such as declarations of good behaviour and an amended oath that will reinforce the importance of trying the case solely upon the evidence presented by the parties.

Research in the US where the ‘google mistrial’ in both criminal and civil jury trials is a recognised phenomenon indicates two main reasons why jurors engage in prohibited online searches. (G Lacy, ‘Untangling the Web: How Courts should respond to Juries using the Internet for Research’ (2012) 1 Reynolds Court and Media Law Journal 169; D Aaronson & S Patterson, ‘Modernizing Jury Instructions in the Age of Social Media’ (2013) 27 Crim Just 4) The first is that some jurors do not understand what forms of conduct are prohibited. They fail thus to see that private inquiry into the meaning of legal/medical terms (such as negligence’ or ‘Van der Woude syndrome’) constitutes ‘research’. In other cases, a warning not to do private research is couched in general, technologically non- specific terms that is misconstrued. These sorts of misunderstanding are or ought to be fairly easily remedied through clearer instructions from the bench. The second reason behind juror online searches is altogether more troublesome however. Even in the face of unambiguous instructions which helpfully make explicit the rationale for restrictions, some jurors refuse to comply, believing that the lawyers are trying to conceal something that is relevant to the proceedings. (T Hoffmeister, ‘Google, Gadgets and Guilt: Juror Misconduct in the Digital Age’ (2012) 83 U Colo L Rev 409) Other empirical research from the Australian state of Victoria refers to a phenomenon of ‘juror reactance’ in which, notwithstanding a judicial direction to the contrary, jurors are unable to discard ‘information’ that is considered relevant to the case before them. (J Johnston et al, Juries & Social Media – A Report prepared for the Victorian Department of Justice (2013) available at http://epublications.bond.edu.au/law_pubs/600/) On this basis, it may be predicted the proposed new criminal restrictions in England and Wales will make jurors more likely to conceal the fact of their illicit research from fellow jurors. It is unlikely to stop the research in the first place. What if, in any given criminal trial, there are four or five jurors who have separately conducted private research and conceal this fact from their co-jurors?

Conclusion

‘Indeed, the internet has made the commission of many criminal offences much easier. It would be absurd to suggest that such conduct should no longer be criminalised on account of the ease with which such offences can now be committed.’– Rt Hon Attorney General Dominic Grieve QC MP (February 2013)

The insistence of the previous Attorney General on using the full force of the criminal law against googling jurors is understandable even laudable (costs of retrials, ordeals for witnesses and delayed justice are not insignificant reasons for taking a serious view of this conduct) but, for reasons advanced above, likely to fail in its primary objective of halting the practice. The empirically documented phenomena of ‘juror ‘reactance’, linked concerns that the adversarial process is keeping relevant material from jurors and an overriding desire to do justice to all parties will continue to prompt a certain (possibly rising) proportion of jurors to engage in online research. The supporters of the new measures have yet to explain satisfactorily how illicit internet use will be policed and detected. If, as seems likely, few cases of online research will be detected, it would be interesting to hear from the Bill’s supporters precisely how the law will (i) bolster the fairness of criminal proceedings and (ii) will not fall into general disrepute. (Interestingly, in the US there are few instances of criminal proceedings against jurors who engage in private research, D Bell, ‘Juror Misconduct and the Internet’ (2010) 38 Am J. Crim. L. 81)

It may be that part of the problem will take of itself in the aftermath of the European Court of Justice’s ruling this May in Google Spain v Gonzalez (and another). Well-counselled defendants may now instruct Google to remove links to webpages that mention them. In this way, ‘googling’ will yield up little of any prejudicial effect. But this incidental form of protection for adversarial justice can hardly be said to offer a coherent way forward. At bottom, the way in which our legal system signals its appreciation of jurors’ sincere efforts to arrive at justice may not be best served by a punitive response to ‘fact-gathering’. A more imaginative response to realities of jurors’ online research may be to explore within certain defined limits ways of accommodating jurors’ desire to be more informed about the case before them. At present, the practice of allowing jurors’ questions varies from Crown Court to Crown Court.

Whisper it quietly for fear of upsetting the legal profession’s control over adversarial proceedings – a better response to the problem of the googling juror may necessitate affording ordinary citizens a more active role in establishing the truth of the kind their 18th century predecessors enjoyed.

Ian Cram is Professor of Comparative Constitutional Law at the University of Leeds.

 

Suggested citation: I. Cram, ‘Penalising the googling juror? – Reflections on the futility of Part 3 of the Criminal Justice and Courts Bill (2013-14)’ U.K. Const. L. Blog (2nd October 2014) (available at http://ukconstitutionallaw.org).

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Stephen Tierney: ‘And the Winner is… the Referendum’: Scottish Independence and the Deliberative Participation of Citizens

stierneyOnly 45% of Scots said yes to independent statehood, but a massive majority said yes to direct democracy. The turnout of 84.65% was the highest for any UK electoral event since the introduction of universal suffrage, significantly trumping the 65.1% who voted in the 2010 UK general election and the 50.6% who bothered to turn out for the 2011 Scottish parliamentary elections.

But turnout is only part of the picture. The story we are hearing time and time again from voters and campaigners alike is that citizens felt greatly empowered by the referendum and the role they had in making such a huge decision. Evidence is emerging of the extent to which people sought out information about the issue at stake and engaged vociferously with one another at home, in the workplace, in pubs and public meetings, and, to an unprecedented degree in British politics, on social media through Twitter, Facebook, blogs etc. My own evidence is merely anecdotal, but as someone who lived through the referendum campaign, I can say that in the month before the vote I experienced a level of public engagement with a major political issue the like of which I have never known.

And it is surely significant that it was a referendum which proved the catalyst for this level of public engagement. One of the main criticisms of referendums in political science is that they are in fact incapable of fostering the deliberative participation of citizens. The strength of this argument, however, hinges upon an assumption that referendum processes are easily manipulated by elites. By this construction referendums tend to be held quickly by way of a snap poll organised at the behest of the government; voters are presented with an issue which is itself confusing and can be made more so by an unintelligible question; voters themselves lack the time, sufficient interest in the matter at stake or the competence to understand or engage properly with the issue, and in effect turn up at the polling station, if indeed they bother to do so at all, in an unreflective manner, often following party cues in determining how to vote.

The Scottish process could not be more different from this caricature. Voters had plenty of  time to discuss and reflect upon the issue (the plan to hold a referendum was announced in January 2012) and the question (‘Should Scotland be an Independent Country?’) was very clear, having been reviewed by the independent Electoral Commission. I have mentioned the levels of engagement in the referendum by citizens, and indeed one of the most empowering elements of the entire process was the way in which, as the 18th of September approached and opinion polls narrowed, political elites on both sides had to sit on the side-lines, aware that the power to change or not to change the UK state lay entirely in the hands of the Scottish people.

The thorough regulation of the Scottish referendum demonstrates that major constitutional decisions can be made by the people without any significant democratic deficit. Certain conditions are certainly important: the issue must matter to the voter (a turnout of only 42% for the UK referendum on the electoral system in 2011 highlights this); its significance must be readily understood; and the campaign rules must to be structured in a way that creates a level playing field for both campaigns without the distorting effects of massive spending by one side in particular. But when these conditions are achieved as they were in Scotland, then the field is set for a citizen-led process.

What then are the likely consequences of this? There is a trend towards referendum use in the UK and the success of the Scottish referendum will no doubt lead to demands for more direct democracy. For example, processes of further European integration require a referendum under the European Union Act and of course the Conservative Party is committed to at least the possibility of a referendum on continued EU membership in 2017. Whatever arguments can be led in opposition to such referendums, the notion that people are incapable of reaching informed decisions on important and even complex issues has been severely undermined by the Scottish referendum.

This may also have knock-on consequences around Europe. The way in which the referendum seems to have reinvigorated politics in Scotland, and perhaps more widely in the UK, has not gone unnoticed by a foreign media which descended en masse upon Scotland in the week leading up the referendum. In many ways the strength of the process rather than the issue of independence itself became the story. Other sub-state territories will find their arguments for a referendum on independence bolstered by this, in democratic terms at least. But also those states which now increasingly turn to the referendum in relation to the ratification of EU treaties will have a role model for the effective and legitimate application of direct democracy.

The referendum is indeed on the rise in many other states, and this is itself part of a wider process of grassroots political engagement by citizens through non-conventional avenues. The politics of protest has been much talked about in recent years, but at a more prosaic level the internet has opened up a far more diverse range of sources of information for citizens, and at the same time has presented platforms for horizontal engagement among citizens through social media in ways which even ten years ago were barely feasible. Many citizens who are engaging in political argument to an unprecedented extent with many more interlocutors than ever before will not be satisfied unless they also have the power to make political decisions.

Another consequence is that arguments of principle against the referendum have been further undermined by the success of the Scottish process. It does often appear that the opposition we find to referendums in political theory and among political scientists owes more to a broader scepticism with popular politics altogether. Referendums are stereotyped as democratically problematic, not because citizens are in fact ill-informed voting fodder (if this were the case how could we legitimise representative democracy?) but because they get in the way of politics as an almost exclusively elite process interspersed by the occasional inconvenient election.

A theme of great interest today is the emergence of new experiments in applying deliberative democracy in processes of constitutional change, for example in Iceland, Ireland and Canada. What is interesting is that despite the role of the referendum in the latter two cases – in Ireland as a required stage in constitutional amendment and in Canada following citizens assemblies in British Columbia and Ontario – the connection between popular deliberation and the referendum has rarely been explicitly drawn. The Scottish process may well change this. Deliberative democracy is not just about deliberating, it is about deciding. When the people are asked to participate directly in politics it is unsurprising that they are not satisfied by then handing back decision-making power to elites; when they help frame a constitutional issue they also expect to be able to determine that issue.

The referendum is not a perfect device, and if not properly regulated it can indeed be manipulated by elites. But if the process is properly designed we now know it can work well. The Scottish referendum has not changed the borders of the UK but it has challenged the boundaries of our imagination. Constitutional politics may never be the same again.

 

Stephen Tierney is Professor of Constitutional Theory in the School of Law, University of Edinburgh and Director of the Edinburgh Centre for Constitutional Law. He currently holds an ESRC Senior Research Fellowship to study the Scottish referendum process. He served as independent adviser to the Scottish Government on the technical aspects of the referendum for six months in 2012, and in January 2013 was appointed constitutional adviser to the Scottish Parliament’s Referendum (Scotland) Bill Committee.

This post originally appeared on the I-CONnect blog, and is reposted here with thanks.

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Aileen McHarg: What Does the Union Need to Do to Survive?

aileen

The victory for the No campaign in last week’s referendum means that, for the foreseeable future, Scotland will remain part of the United Kingdom, and that its (domestic) governance will continue to be split between Westminster and Holyrood.  The result was a decisive one in that there was a clear margin of victory, achieved through a fair and legitimate process.

However, the referendum is less decisive than some may have hoped for in two senses.

First, the level of support gained by the Yes campaign (44.7%) was actually a considerable achievement given that it started well behind, with polls in 2011 showing that no more than a third of the electorate favoured independence (see James Mitchell’s post on this blog).  Moreover, Yes campaigners show no signs of abandoning their cause.  Since last Friday, there has been a remarkable surge in membership of the SNP (as well as the Scottish Greens and the SSP), and the latest poll on voting intentions at the next Holyrood election suggests that the SNP will gain an even higher share of the vote that it did in 2011.

Secondly, the clarity of meaning of the result was significantly undermined by the Better Together parties’ belated insistence that a No vote did not mean a vote for the status quo.  Even if it is not clear how much this contributed to the No victory (see Mitchell), it has created a strong expectation that reform of the UK constitution, and of Scotland’s place within it, is required.  Again, this has been confirmed by events since the referendum, including the Prime Minister’s speech on the morning of 19 September pledging to honour the reform commitments made prior to the referendum, the publication of the text of a House of Commons motion by the unionist parties setting out the timetable for reform, and the appointment of Lord Smith of Kelvin to broker an agreement between the parties on the details of reform.

On both counts, therefore, there is a sense that the No vote signifies merely a provisional choice to remain within the Union, rather than a decision that settles the matter for a generation or more.  Although the unionists have won an important battle in the campaign to hold the UK together, it is too early to claim that they have won the war.  If the Union is to survive in the long term, significant reform will be required to address the constitutional discontents evident in Scotland during the referendum debate – and now also evident elsewhere in the UK, particularly in England, in its aftermath. 

Far from being resolved, therefore, the debate on the future of the UK’s territorial constitution has only just begun.  At this stage, however, it is easier to identify what issues need to be addressed than how best to do so. 

Regaining Losers’ Consent in Scotland

The first challenge is to restore the legitimacy of UK decision-making in Scotland.  At its most basic, the constitutional case for independence rested on a claimed democratic deficit in the status quo – in other words, that only independence would ensure that Scotland always gets the government it votes for.  Of course, in a democracy, one cannot always expect to be in the majority.  The stability of the system therefore depends on the existence of “losers’ consent”, i.e., that voters accept the legitimacy of the government even if they did not vote for it.  Where there is no losers’ consent, because the minority does not accept the legitimacy of the political community within which the majority has been obtained, then the political system is likely to be unstable.

In the case of Scotland, the legitimacy of the UK as a political community seems to have been significantly weakened for a substantial proportion of the electorate.  According to the post-referendum poll conducted by Lord Ashcroft, the most important reason for supporting independence for 70% of Yes voters was the principle that all decisions about Scotland should be taken in Scotland, while another 10% were primarily motivated by the desire to ensure that there would be no more Conservative governments.  Moreover, for a significant proportion of No voters, their support for the Union appears to be conditional.  Lord Ashcroft’s poll showed that only 27% of No voters were primarily motivated by a strong attachment to the UK.  47% were mainly concerned about the risks of independence, while 25% thought that a No vote would mean more powers for the Scottish Parliament, whilst retaining the security of being in the UK. This is confirmed by Better Together’s own admission that they chose to focus so heavily on the risks of independence because their private polling showed that of the roughly one third of the electorate who remained undecided in summer 2013, 64% said they would vote for independence if they were certain that Scotland would be no worse off as a result.

This, then, suggests a weak basis for the legitimacy of UK decision-making in Scotland, which is vulnerable to further erosion if voting patterns in Scotland and the rest of the UK continue to diverge, or if the material benefits of remaining in the Union are reduced.

Nevertheless, it may not be impossible to rebuild legitimacy.  Forced choices about primary motivation may in fact conceal a more complex set of motivations and more mixed political affinities.  For instance, while the 2014 Scottish Social Attitudes survey showed that, on a forced choice, 65% opt for a Scottish national identity, and only 23% for a British identity, when allowed a more nuanced choice, 63% opted for some sort of mixed Scottish/British identity.  Interestingly, the Yes campaign did not attempt to deny this dual identity during the referendum debate. Rather they sought to depoliticise Britishness in favour of social, cultural or geographic understanding of it.  The challenge then, for supporters of the Union, is to rebuild a dual political identity to fit with a dual governance structure.

Three strategies seem possible, but none is unproblematic.  One is to alter the distribution of powers between the Scottish and UK Parliaments so that fewer decisions are subject to a UK rather than a Scottish majority.  This is, however, risky in two ways.  First, since there is no non-contentious basis on which to distribute powers, this is bound to remain a source of tension, with the ongoing potential to provoke a constitutional crisis if the UK institutions make decisions which are strongly opposed in Scotland.  Secondly, the more political decisions are made in Scotland, the more this seems likely to strengthen Scottish political identity at the expense of Britishness.

The second strategy is to attempt to ensure that Scotland continues to benefit from membership of the Union, or at least that Scots perceive the benefits of Union to be greater than the benefits of independence.  This may mean material benefits, or it may mean political opportunities – a persistent theme in the Yes campaign was the claimed greater opportunities for social democratic and political reform in an independent Scotland, compared with the UK.  But this strategy is highly problematic too.  It is inherently difficult to ensure that the Union continues to deliver economic benefits to Scotland, and attempts to do so artificially, for instance through the Barnett formula, are liable to breed resentment in other parts of the UK.  In addition, the more powers that are exercised in Scotland, the less risky a further step to independence is likely to be seen, whereas continuing to talk up the risks of independence may simply maintain focus on it as a live constitutional option.

Questions of political opportunity are easier to address in principle – and in particular, reform of the electoral system at Westminster might go some way towards reducing the perceived polarisation of political attitudes in Scotland and in England in particular.  However, the key problem here is whether there is any real appetite for political reform at Westminster.

The final strategy is, as Neil Walker has suggested, to try to rebuild the ethical case for the Union based on arguments about broader solidarity and inter-dependence, and about the value of the UK itself as a special kind of plurinational state which is capable to combining respect for national diversity with broader solidarity.  But again there are problems.  Quite apart from the questions of how and by whom this ethical case would be made, the UK is in competition with other sites of solidarity and for managing inter-dependence, most notably the EU.  These may prove to be more attractive in the long run, particularly if the UK itself retreats from international co-operation through withdrawal from or renegotiation of the terms of EU membership.  In addition, a convincing defence of the UK as a plurinational state requires reform going beyond further piecemeal tinkering with the scope of devolved powers.

Recognising the UK’s Plurinational Nature

The asymmetric nature of devolution in the UK means that, while the constitution feels plurinational at the peripheries, it remains essentially unitary at the centre.  Devolution can be explained in a number of ways, but at least on one understanding it amounts merely to a form of minority protection against the dominance of England, rather than involving a fundamental rethinking of the territorial constitution.  This gives rise to a number of problems which threaten the future stability of the state.

In the first place, there are some well-known anomalies, the most prominent of which is the West Lothian Question, or the question of English Votes for English Laws.  But we can add to this the mismatch between the legal and political constitutions as regards the entrenchment of the devolved institutions; differential forms and levels of devolution, some aspects of which are difficult to justify in principle; and a system of territorial financing which is perceived to be unfair.

A second problem is the lack of recognition of the plurinational nature of the state at the centre.  This is manifested in, for example, a weak and largely informal system of inter-governmental relations, which allows the UK government to dominate the devolved governments; the lack of any explicit territorial representation in the UK Parliament; and ad hoc arrangements for representing devolved interests in EU decision-making.

Finally, there is a fundamental lack of clarity over the nature of the territorial constitution, revealed by, for example, contests over the location of sovereignty (in the UK Parliament or the Scottish people?); uncertainty over the very existence and content of UK constitutional law (as distinct from local inflexions of it); and deep uncertainty over how to handle constitutional issues on which there may be different territorial majorities – rumbling discontent over the franchise for the independence referendum is one example; the threat of British exit from the EU or repeal of the Human Rights Act are others. 

Once again, these problems are much easier to state than to resolve.  As we have seen in recent days, David Cameron’s apparently modest proposal to resolve the West Lothian Question by ensuring that only English MPs can vote on laws which affect England only in fact raises a whole host of practical, political and constitutional objections.  Similarly, Ed Miliband’s proposal that the House of Lords should be replaced by a Senate of the Nations and Regions, while superficially attractive, does nothing by itself to resolve any of the ‘wicked issues’ that have so far stymied House of Lords reform, such as what powers it would have, how much of a rival it would be to the House of Commons, and whether it would still be able to perform its scrutiny function effectively.

A full answer to the anomalies and uncertainties of the current territorial constitution implies a properly federal constitution, with devolution all round, an entrenched written constitution, and territorial, not merely majoritarian, consent to future reforms.  Again, though, it is hard to detect any real appetite for root and branch reform of this nature.  Nor indeed is it obviously desirable in principle.

Embracing Not Destroying the Union State

The basic problem with any attempt to federalise the UK is that it seeks to impose a symmetrical (or broadly symmetrical) constitutional model on a country which is in fact deeply asymmetrical. 

One issue is, of course, the sheer size of England relative to the other parts of the UK.  This, in my view, makes any federal solution based on England as a federal unit simply unworkable.  There is a sense in which it would be unfair – as well as unrealistic – to treat England, with its 54 million people, as constitutionally equivalent to Scotland, Wales and Northern Ireland, with only 10 million people between them.  In any case, because of its size, it is hard to say that England is really disadvantaged by the current constitutional arrangements – the largely theoretical problem of the West Lothian Question aside – such as to justify the creation of an additional layer of government.

The regions of England, on the other hand, arguably are disadvantaged, but as Mark Elliott has pointed out, it cannot seriously be suggested that the English regions should have the same legislative powers as Scotland, Northern Ireland or even Wales.  Moreover, there are significant issues about whether there are sufficiently strong regional identities in England to avoid creating new losers’ consent problems. 

The second problem is that the asymmetry of the current devolution arrangements has not come about by accident, because there was insufficient ‘joined up’ constitutional thinking on the part of their architects.  Rather, these were deliberate attempts to create bespoke institutional arrangements for territories with different constitutional histories, facing different constitutional problems, and whose pre-existing governance arrangements were already different.  While the fact of devolution creates some commonalities across the devolved nations, these underlying differences cannot simply be wished away in the interests of constitutional tidiness. 

It remains the case that the UK is best understood as a union state, rather than a unitary state or a quasi-federal one, and any reform of the territorial constitution should seek to embrace this fact, rather than set out to destroy it.  From this perspective, a number of recent suggestions for reform seem profoundly misguided.  For instance, Jack Straw has proposed that the Union should be made indissoluble and further independence referendums banned.  However, this would do great violence to the constitutional understandings of many people in Scotland (including some who voted No), and for consistency it would have to be extended to Northern Ireland, which would breach the Belfast Agreement.  It is similarly mistaken to try to tie proposals on English Votes for English Laws to the question of further powers for the Scottish Parliament, or to advocate (as Lord Norton of Louth has done) a reduction in the number of Scottish MPs, or to suggest that Scottish MPs should not be able to become Prime Minister or hold any of the great offices of state.  All of these proposals look too much like taking revenge on the Scots for daring to hold the independence referendum, and are likely to backfire should another one ever take place.  Too enthusiastic a promotion of a ‘Britishness’ agenda is also likely to expose territorial divisions rather than doing anything to heal them.

As Vernon Bogdanor has argued, “[a]symmetry is the price England pays to keep Scotland within the union.”  If a way cannot be found to make asymmetry tolerable to the English majority, then the Union will not survive.

A Note on Process

A final word on the process by which the territorial constitution should be reformed.  After the expansive and participatory constitutional process of the independence referendum, and the lost chance of further popular participation in the drafting of a new Scottish constitution, it is in some ways disappointing that the constitutional reform process has reverted to type.  Further powers for Scotland are to be thrashed out behind closed doors by the political parties, presided over by a member of the quangocracy.  Meanwhile, reform at Westminster has been overtly politicised.  The government has announced an accelerated timetable for reform in a fairly naked attempt to gain electoral advantage over the Labour party, while Labour’s response that the issue should be entrusted to a constitutional convention looks more like an attempt to buy itself time than a genuine commitment to participatory constitutionalism.

I find myself genuinely torn on this question.  On the one hand, there is undoubtedly much to be said for the principle of public involvement in constitutional reform, as Cormac Mac Amhlaigh has argued, and any proposals would have much greater legitimacy if they resulted from a popular process rather than from a party political compromise.  In addition, a constitutional convention would be able to consider more fully the implications of particular changes for other aspects of the constitution than the balkanised process that seems to be under way.  On the other hand, given the difficulties involved in any attempt at wide-ranging reform, it is hard to see how public involvement could have the same generative capacity as in relation to the much more straightforward question of whether Scotland should become independent, or even the relatively simpler task of developing a written constitution for a newly independent state.  There is also a political imperative to be seen to respond quickly to the independence referendum – particularly in Scotland, but probably also in England as well.  In the circumstances, perhaps the best we can hope for is some form of muddling through, in which case a constitutional convention may serve only to delay and complicate matters.

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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Barry Winetrobe: The West Lothian Dead End: Asking the Wrong Question after the Scottish Referendum

BarryBarry Winetrobe argues that the sudden focus on the ‘West Lothian/English Question’ is misconceived, and that it is just a surrogate for the more salient issue of sub-national financial arrangements.

Hello darkness, my old friend, I’ve come to talk with you again.” With apologies to Simon & Garfunkel, we note the post-referendum retrieval, from the very long grass in which it seemed to have been quietly resting, of the West Lothian/English Question (‘WLQ’). Oh dear.

The WLQ Pandora’s Box was opened by the Prime Minister in his Downing Street statement on the morning of Friday 19 September: “The question of English votes for English laws – the so-called West Lothian question – requires a decisive answer.” Ever since, the pundits – media and academic – have been frantically debating the procedural, constitutional and party political implications of this spanner in the post-referendum works, including its unilateral linkage or otherwise to the three party leaders’ ‘Vow’ on greater Scottish devolution published on 16 September.

All constitutional debate is welcome, especially if it engages the public. But a WLQ focus on further UK constitutional reform can be nothing but a disruptive and damaging distraction. Those of us who had always argued that WLQ was just one of those ‘constitutional anomalies’ common in the so-called British Constitution, which should be accepted, rather than something to be ‘solved’, have cause to worry. Like Lords reform, WLQ is both logically and politically insoluble under our present constitutional framework. If it is not to be ‘solved’ by the break-up of the Union, or by some form of genuine federalism (and where have the Lib Dems been on the latter during and after the referendum campaign?), it should not be treated as something which can be solved now by our political elite, especially under the present fevered circumstances.

In written and oral evidence to the McKay Commission, I argued – unsuccessfully – that the Committee, with such a high-powered membership, should not fall into the trap of trying to devise some clever, rational and ‘practical’ solution to WLQ, but should grasp the opportunity of examining the more genuine parliamentary and inter-parliamentary issues arising from devolution. Events seem to have borne out this warning, culminating in Sir William McKay’s extraordinarily endearing admission on BBC radio (as quoted in the print/online media eg The Guardian website, 21 September): “You can’t lower any of our solutions, immediately and without amendment, into the present situation. They will have to be tweaked – a fairly hefty tweak, more a kick than a tweak.

What we have had confirmed in the immediate referendum aftermath is that WLQ is, for many politicians, merely a surrogate for the actual post-devolution ‘fairness’ issue: finance. In so far as the Barnett Formula’s continuance has been guaranteed by the party leaders ‘Vow’, it is the perceived unfairness of the post-devolution allocation of central funding among the various nations and regions of the UK that is the issue worthy of addressing and, if there is thought to be a problem, ‘solving’.

The various TV and radio vox pop sessions, and the pronouncements of the media, south of the border, have demonstrated how WLQ parliamentary procedural ‘unfairness’ and financial ‘unfairness’ have become conflated into a single alleged grievance – with even its own new shorthand term, ‘goodies’.

It is much easier to focus on a grievance if it can be explained in simple terms. Thus there was little public concern about the WLQ or English Question, until it was described in crude phrases like ‘English Votes for English Laws’. The Question as originally posed by Tam Dalyell in the 1970s was not even primarily addressed to that, being more concerned with the inability of the Scottish MPs to vote on devolved matters concerning their constituents, not on their continuing ability to vote on the equivalent English matters.

Thus far UK ‘devolution finance’ (to use a crude shorthand for all the various sub-national transfers etc) has been rather opaque. Who knows what the Barnett Formula actually is? Like its sub-national cousin, local government finance, it is as impenetrable as the proverbial Schleswig-Holstein question. While this allowed all sorts of guestimates to be bandied about as to Scotland’s ‘unfair share’ – remember Ken Livingstone’s during London Mayoral campaigns on how many billions goes from London to Scotland? – there was no real engagement or development of the debate in the public mind.

If methods were devised to make devolution-related financial transfers more transparent and simple to understand, there could be a genuine, meaningful public debate. Remember the seismic shift in local government finance when the opaqueness of domestic rates was replaced by the superficial simplicity and transparency of the poll tax? Instantly, taxpayers could quantify the financial cost of spending policies – and of transfers between areas and councils through RSG etc – in terms of ££s rather than ‘p in the £’ rateable values. Indeed, it was this transparency that helped kill the poll tax itself, and ultimately Margaret Thatcher’s premiership.

While this may have short-term risks for the devolved nations, it would ultimately assist the maturing of the devolved arrangements as they develop. One glaring flaw in the original ‘settlement’ was the fact that the devolved bodies had powers to spend but not to raise the revenue required for that spending, barring a minor power not ever used. As that taxing side of the equation is enhanced, making them more responsible and publicly accountable for their spending policies, any Barnett-related unfairness should be reduced and possibly eliminated. With it would go, if done properly, apparent grievances of English taxpayers funding better quality services (free personal care, free prescriptions, no tuition fees etc) for the Scots, which is the genuinely corrosive risk to the current Union constitution.

So, forget WLQ, except as a party political punchbag, and focus on sub-national finance arrangements. The erosion, especially in the 1980s, of the post-war consensus (or acquiescence) in redistribution as a positive principle of public policy means that such debates on financial transfers from one part of the UK to another, and the like, will be difficult, with a greater need for those in favour of redistributive policies to make a strong case against those whose instinct is now that they should get back from the state all that they paid into it, and that their hard-earned money should not be given, without consent, to other areas or people. These are the proper political and constitutional ‘fairness’ arguments we should now be having.

Barry Winetrobe is an Honorary Senior Research Associate at the Constitution Unit, UCL.

 

Suggested citation: B. Winetrobe, ‘The West Lothian Dead End: Asking the Wrong Question after the Scottish Referendum’ U.K. Const. L. Blog (23rd September 2014) (available at http://ukconstitutionallaw.org).

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Nick Barber: If Scotland Had Voted Yes…

Nick1This is a copy of a blog post that was, in the event, not needed. My colleagues have told me that my writing has a calming, if not soporific, quality, and I thought that I should use this skill to good effect by preparing a post for publication in the event of a ‘yes’ vote in the referendum.

 The post was written at a time when it looked like the vote could go either way. Now, just a few days later, the context in which it was produced seems both foreign and remote. There is a temptation – which I have resisted – to modify its text in the light of hindsight. I’ve left it unaltered: it stands as an exercise in counter-factual constitutional history, an engagement with the constitution crisis that might have been.

 

Don’t Panic

After months, decades, of polls showing a substantial majority in favour of the union the decision by the Scottish people to vote for independence has come of something of a surprise. The reasons for this reversal will be analysed for years to come, and other countries facing secessionist pressures may have something to learn from the failure of the ‘no’ campaign, but for those in the United Kingdom the ‘yes’ vote raises a set of more pressing constitutional problems. For Scotland, the prospect of independence must be an exciting prospect, if also a daunting one. For the rest of the United Kingdom, though, the rUK, the Scottish vote may be seen as a rejection, even as an abandonment.

This post reflects on the immediate challenges facing each side of the divided union. It argues that these negotiations should not be seen as a zero-sum game: each side has an interest in ensuring that the other’s interests are protected. It considers the steps that will need to be taken in the rUK Parliament to begin this negotiating process. Finally, it moots a radical model for future cooperation between Scotland and the rUK: a new legislative body granted a limited jurisdiction by these two sovereign states, empowered to make legal and executive decisions at the level of the Union.

No Hard Feelings

Whilst it may be hard for some to appreciate this morning, Scotland’s secession vote is a story of constitutional success, a success of which all parts of the United Kingdom can be proud. Most new states are the product of war. The Scottish state will have emerged from a fair vote following a peaceful and informed campaign.

As a number of commentators have noted (see Martin Wolf in the FT and Alan Trench at Devolution Matters), the Scottish negotiating position is relatively weak. Most of what Scotland needs to be successful in the short term requires the support of the rest of the UK. Over the European Union, for example, prior to independence, Scotland’s engagement with European institutions will be mediated through the United Kingdom’s government. It will fall to the rUK to help Scotland secure the interim arrangements that will enable it to be treated as if it were a member of the EU in the period (quite possibly a period of five to ten years) between Scottish independence and its accession to the Union. Similarly, the immediate stability of the Scottish economy will depend on the action of the rUK government. It is likely that Scotland will see capital flight as companies and people shift their money from Scottish banks to rUK institutions, and financial institutions, and perhaps other businesses, will relocate from Edinburgh to London. rUK could act to mitigate this – but, in the aftermath of a ‘yes’ vote, why should it?

There are several reasons why the rUK should seek to help and support Scotland – and should resist the temptation of the immediate and superficial pleasures of adopting a tough negotiating stance. First, it is in rUK’s long-term interest to maintain a strong, friendly, relationship with Scotland. On a host of issues – from defence to foreign policy, from the economy to domestic security – rUK and Scotland will need to find ways to work together. It would be a mistake for the rUK to sour its relationship with Scotland for short-term advantage or out of a misguided sense of revenge. Secondly, it is in rUK’s immediate interest to have an economically successful state as a neighbour. Trade between Scotland and the rUK will be an important source of wealth to each side: a poor Scotland will be a weak trading partner. And if there were an economic collapse in Scotland – as some have warned – it is likely that there would be population movement from Scotland to rUK, placing pressure on rUK’s welfare systems.

In short, it is in rUK’s interests to negotiate generously with Scotland, even though Scotland has a weak hand to play in the negotiating process.

The last few paragraphs have discussed the political dimension of the negotiating process. This is, though, a blog on constitutional law: it is now time to consider the constitution issues that arise within this political framework.

The United Kingdom Parliament

The Fixed-Term Parliaments Act 2011 specifies 7th May 2015 as the date of the next General Election. This presents problems for negotiations between rUK and Scotland, as it will not be until after this election that the final negotiating team for rUK can be formed.   Alan Trench has argued that the date of the General Election should be brought forward, a decision that would allow the process to begin as soon as possible and give the UK Parliament a mandate for the negotiations. I agree, but before the current Parliament is dissolved it needs to enact two groups of measures to regulate the operation of the UK and Scottish Parliaments in the period between the ‘yes’ vote and independence.

First, the United Kingdom Parliament should transfer the broadest possible powers to the existing Scottish Parliament. The UK Parliament can no longer claim to represent the whole of the peoples of the United Kingdom and, so far as possible, the Scottish Parliament should govern and speak for Scotland. The UK Parliament – or the UK Government, though a section 30 order – should also empower the Scottish Parliament to create the processes and structures through which negotiations with the UK are to be undertaken. It is worth noting that it would be a mistake for the UK Parliament to enact, or to empower the Scottish Parliament to enact, the so-called Interim Constitution mooted by the Scottish Government. Some of the provisions in that document fall beyond the scope of Westminster – whether Scotland keeps the monarchy or introduces a new set of environmental rights are matters for Scots to decide – but others will be matters of negotiation. For example, the citizenship question – the question of who will become a citizen of Scotland and who will remain a citizen of the UK – will require careful discussion. This is not a decision that Scottish institutions can take by themselves. At the end of the negotiating process the UK Parliament should enact a thin constitution for Scotland before granting it independence – but this statutory constitution will almost certainly differ from the Interim Constitution proposed by the SNP, and will probably be quickly overtaken by a new, indigenous, document passed by the Scottish Parliament after independence.

The flip side of this transfer of powers should be a limitation of the capacity of Scottish MPs to vote in Westminster. The West Lothian question is a mainstay of constitutional seminars: why should Scottish MPs vote in the UK Parliament on matters that relate largely to England, when English MPs do not get to vote on similar matters that relate to Scotland? The question becomes more pressing the more powers the Scottish Parliament gains and, now, as Scotland is poised to leave the Union, the moral entitlement of Scottish MPs to vote in Westminster is severely limited. The problem is compounded by the need to hold a General Election during the negotiating process. It is possible that the balance of power in the Commons could turn on the presence of Scottish MPs: the Conservatives might win a majority in rUK, but Labour could win a majority of seats in the UK as a whole. Under the existing constitutional settlement, it is possible that the leader of the Labour Party would be invited by the Queen to form a government – and would be dependent on the support of Scottish MPs for his majority.

I have discussed this issue further elsewhere, but the ‘yes’ vote demands that the West Lothian question is addressed as a matter of priority. There are two problems that need to be resolved: the capacity of Scottish MPs to vote on rUK matters, and the role of Scottish MPs in the formation of the next rUK Government. Both of these issues can probably be resolved through a resolution of the Commons – though given their constitutional significance it might be preferable to use a statute. The voting rights of Scottish MPs should be limited to those areas that fall outside of the powers devolved to the Scottish Parliament, with the Speaker empowered to issue a ruling on the question in the event of disagreement.  This restriction on the voting power of Scottish MPs would go well beyond that recommended by the McKay Commission. For most practical purposes, Scottish MPs will cease to play a role in Westminster – but there will be some issues, such as foreign policy and some economic matters over which Westminster will still need to act for the UK as a whole, and Scottish MPs should be entitled to participate in these decisions. Allied to this, the Commons should pass a resolution requesting that the Queen not take account of Scottish MPs when deciding which party leader should be invited to become Prime Minister after an election.

The solution to the West Lothian question proposed in the last paragraph is a rough and ready one: it is only attractive because of the relatively short period of time during which Scottish MPs will continue to sit in the Commons after the ‘yes’ vote. The problems that the proposal would otherwise face – the capacity of Scottish MPs to serve as Ministers, the difficulties of distinguishing Scottish and rUK issues, the problem of maintaining voting limits on MPs in a system which supposedly remains characterised by parliamentary sovereignty – are far less pressing if the settlement need only last 18 months.

The Negotiating Process: A New Legislature for the Union?

Part, perhaps even a large part, of the negotiating process will revolve around the division of assets and liabilities between Scotland and rUK. Prior to the vote most of the debate in the media has focused on this issue; the question of who gets what out of the Union.   Less consideration has been given to another aspect of these negotiations: the need to create a new set of institutions through which the rUK and Scotland can agree on joint action. These new institutions will be necessary in a host of areas: from aspects of foreign policy to immigration, from security to transport, there is a range of decisions that must be agreed by the two states before action can be taken. Beyond this, there is a broad penumbra of issues outside of this core in which cooperation is desirable, even if not essential. There would be advantages in adopting common, or at least complementary, economic and social policies, for instance.

There are two groups of forms these transnational institutions could take. First, they could be forums in which representatives of the executives of the two states meet. The British Irish Council could provide a model for this, or might even provide a basis from which such an institution could develop. Second, and more radically, a body, perhaps a legislature, could be created that had a closer connection to the people or the Parliaments of the states it represents. Its members could either be directly elected by the peoples of Scotland and rUK, or they could be drawn from the Parliaments of those territories.

I want to end this post with a radical suggestion, that would require a deal of imagination on each side – rUK and Scotland – to come about. One model for future cooperation that should be on the table is a new rUK/Scotland legislature; empowered by those two states to make legally binding decisions in defined areas. The greater the powers given to this body, the more constitutionally significant it will become. At the most extreme, a legislature and executive could be created at the rUK/Scotland level. If a currency union were to come about, regulatory and fiscal decisions could be made at this level. Similarly, the apparatus of foreign and defence policy could be accountable to this set of institutions – indeed, perhaps the relationship of the states and some international institutions could be mediated through these bodies. rUK and Scotland could share the UN security council seat, and hold joint membership of the EU. This new constitutional settlement would have to be ratified by each side – as sovereign states, both Scotland and rUK would have to agree to the deal – and, probably, would require the approval of a referendum in each territory.

Such a proposal might seem like a pipe dream whilst Scotland is still heady with the excitement of independence and the rUK is feeling the bitterness of rejection. But each side would have much to gain from the deal. It would solve the problems presented by the division of currency, EU membership, and maintain the strength of the Union internationally. It would also constitute an innovative form of constitutional structure grounded in the agreement of two states to act together for their common benefit: a model from which, perhaps, other states might draw inspiration.

 

Nick Barber is Associate Professor of Constitutional Law at Oxford University, and a Fellow of Trinity College, Oxford.

Suggested citation: N. W. Barber, ‘If Scotland Had Voted Yes…’ U.K. Const. L. Blog (22nd September 2014) (available at http://ukconstitutionallaw.org).

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Cormac Mac Amhlaigh: For a Constitutional Convention for the United Kingdom

CormacThe referendum has come and gone and there is a mix of numbness and relief intermingled into the haar which descended upon Edinburgh several days ago but failed to dampen the electrified atmosphere which accompanied the referendum. It was said long before the referendum even happened, that whatever the outcome, more and deeper constitutional change would be the one certainty in the uncertainty of the election result. This was brought home by the eleventh hour promises by the three parties on the eve of the referendum itself, as well as Cameron’s post-referendum speech which put the English question at the heart of any constitutional reform. As the referendum results are being unpicked with much staring into crystal balls as to what will happen next, two features of the post-referendum debate, such as it is, stand out; many references to the ‘three political parties’ and various options as to what needs to happen next and what types of reform are possible and/or probable: more fiscal powers for the Scottish parliament, a possible English parliament and so on.

With this emphasis on political parties and concrete proposals, the one elephant in the room is mention of the people. It is a virtual cliché at this stage that the one winner of the referendum (apart from the lacklustre ‘No’ campaign) was democracy and political engagement based on the fact that the long two-year campaign involved wide participation from the public with informed debates on almost every dimension of political life in Scotland as well as the extraordinarily high turnout for the referendum (not to speak of the almost pre-Invasion Iraq proportions of voter registration). If this is true, then, if anything should be preserved from the referendum experience, it should be a mechanism to secure and enhance this democratic political engagement and this is why rather than pledges, vows, discussion of taxes and England we need a fully-fledged open and deliberative constitutional convention to deliberate on the constitutional future of the United Kingdom.

If one thing became clear from the referendum, it was the idea that the Westminster Parliamentary system was ‘broken’, so much so that Alex Salmond took to using the ‘Westminster establishment’ as a term of derision in the week before the vote. Yet what we are seeing in the pre-referendum ‘Vow’ as well as Cameron’s post-referendum speech is more of the same; constitutional reform being jealously fought over by the exclusive club of the three main Westminster parties where each party tries to promote or prevent a proposal which will promote or prevent them from getting into power sooner or promote or prevent them from holding onto it for as long as possible. This is precisely what has caused political disengagement and voter disaffection not just in Scotland but right across the United Kingdom.

The Labour party famously said that devolution would kill nationalism in Scotland ‘stone dead’. This week’s referendum goes to show just how wrong they were and that the ‘typically British response’ of pragmatism and piecemeal reform on the recommendations of hopelessly distant Commissions, hand-picked and vetted by the party faithful, is no longer fit for purpose. Independence may be off the agenda for a generation, but the referendum result must not stop the bottom-up political movement for reform of the system. While it is true that arcane constitutional matters do not win general elections, what this week has shown is that they have the potential to cause major constitutional upheaval and for that reason alone, the parties should rise above immediate short-term electoral gain and to see the bigger constitutional picture. This is too important an issue to be left to the political parties and their electoral ambitions.

Therefore, for both principled and pragmatic reasons the United Kingdom needs a full constitutional convention to deliberate on its future. Iceland, Ireland and even the European Union (yes, even that bastion of political non-responsiveness) have all experimented with conventions in the recent past, with differing levels of success, but what they all share was a form of open democratic political engagement which doesn’t take the people for granted once political representatives assume office and puts the most important question of politics, the nature and form of the constitution and the level and distribution of power under it, back into the hands of the people. Early post-referendum signs are encouraging with the Green Party and even David Miliband calling for a constitutional convention but they must be taken seriously and followed through. In the avalanche of proposals and counter-proposals which will be forthcoming in the weeks and months ahead, then, this is a plea for a focus on process over fixed outcomes, democratic means over settled ends, for a more democratic, responsive, and fair constitutional settlement for this (just about) United Kingdom.

 

Cormac Mac Amhlaigh is Lecturer in Public Law at the University of Edinburgh. 

Suggested citation: C. Mac Amhlaigh, ‘For a Constitutional Convention for the United Kingdom’ UK Const. L. Blog (22nd September 2014) (available at http://ukconstitutionallaw.org)

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