Stephen Tierney: Is a Federal Britain Now Inevitable?     

stierneyThe Smith Commission Report issued today promises a restructuring of the United Kingdom which may prove to be more significant than the devolution settlement of 1997-98 itself; the acquisition of extensive tax and welfare powers would make Scotland one of the most autonomous regions in western Europe.

Notably the UK’s economic and fiscal coherence has hitherto been a key factor in allowing the asymmetrical and ad hoc nature of devolution to embed itself without any great disruption to the constitutional structures of the central state. With the dismantling of this system it seems that a tipping point might well be reached for our lop-sided and messy system of territorial government. The Smith Commission proposals, if implemented, will have knock-on consequences for several fundamental features of the UK constitution: parliamentary supremacy, the idea of the House of Commons as a national chamber for Britain, possibly the nature and composition of the House of Lords, and the relative freedom of the UK Government in its dealings with the devolved executives. It is perhaps ironic therefore, but I believe also inevitable, that a process which was designed studiously to avoid the federal question will now bring federalism to the table as possibly the only medium term solution to the deep imbalances which will come with further, radical powers for the Scottish Parliament.

How Does Smith Raise the Federal Question?

Federalism has rarely been seen as an attractive option by the British political class, and its feasibility as a constitutional project for Britain is certainly not beyond question. But some kind of federal solution will surely be needed to deal with two related issues: the extent to which Scotland’s representation within the House of Commons, so far only marginally affected by devolution (reduced from 72 to 59 by way of the Scotland Act 1998 as amended), will appear ever more anomalous as the Scottish Parliament’s powers expand; and the very real risk that as Scotland becomes ever more detached from Westminster, the Union will become largely irrelevant to many Scots. The latter is far more dangerous since it could well mean that Scottish independence is in the longer term now more rather than less likely. If this is true the unionist parties, which make up the majority of the Smith ‘Commission’ (which was in reality an inter-party bargaining group), risk seizing defeat from the jaws of referendum victory.

Viewed in this way it is not too dramatic to say that federalism may become the last throw of the dice for the Anglo-Scottish union: serving both to manage relations between a hollowed out central state and its nations/regions, and giving Scotland a sense of purpose in union as well as a sense of strength in autonomy.

I have discussed the inadequacy of the Smith process elsewhere. I won’t dwell on that issue here except to observe that once again, as in 1997-98, the UK has embarked upon a radical reorganisation of territorial authority on the hoof, formulating powers for Scotland without a broader conversation about what this will mean for the wider UK or for how Parliament functions.

But while from the perspective of ‘winning’ the referendum there was arguably a political imperative to set up Smith (see The Vow), this does not change the fact that the exclusion of the rest of the UK from its deliberations makes little sense. While independence is arguably a unilateral decision, further devolution for Scotland is not, and surely cannot be dealt with only by Scottish politicians determining simply what Scotland wants. The UK Government itself recognised this in 2012. It ruled out a multi-question referendum which would include a third option of ‘devo-more’ on the basis that further devolution would have to be discussed and negotiated across the UK; there was certainly sense to this. But on 18 September this was precisely the alternative to independence which was offered to voters. The Vow in effect meant that those voting No were not choosing the status quo but instead were signing a blank cheque for the as yet unformed Smith Commission.

Leaving process and principle to one side, the substantive consequence of this is that we have yet another asymmetrical process that promises to transfer more and more powers to the Scottish Parliament, making an already very lop-sided system of territorial decentralisation ever more so. On this basis the Smith report can only be a proposal. The UK Government will surely only agree to the increased powers for the Scottish Parliament it recommends if the whole package works to the advantage of the rest of the UK, for example by reducing or removing the perceived Scottish subsidies contained within the Barnett formula. The Smith Commission attempts to answer the Scottish question; but in doing so it in fact also raises the British question: how will the institutions of the British state adjust both to manage these new powers and to deal with the issue of fair representation across the state?

Federalising Britain: Correcting the ‘Representation Deficit’

There is much confusion about what federalism is, partly because of a failure to distinguish ‘federation’, which is often used to provide a very strict definition of the institutional nature of a federal state, from ‘federalism’ which is a much more flexible term, capturing what Daniel Elazar calls the inter-related ‘self-rule’ and ‘shared rule’ dimensions of territorial relations within a state.

From this perspective we can see the lop-sidedness of UK devolution as being all about the grant of ‘self-rule’ with very little focus upon ‘shared rule’; dispersing power to the Scotland, Wales and Northern Ireland without also binding them closely within the institutional structures of the central state. This is in effect a ‘representation deficit’ and Smith indicates that steps must be taken to avoid devolution falling further into the black as it were. The radical levels of tax devolution which Smith presages must be accompanied by a reimagining of the place of regions and nations within the decision-making bodies of the central state. This is needed both to correct unfairness within the system (for example a now more stark West Lothian issue) and to stem the pathology of a slow descent towards independence which might result from a system that offers detachment without any correlating integration.

Here are four questions which must now be answered after Smith:

  • Can further devolution be proposed only for Scotland, without provoking decentralisation across the UK?

An issue that accompanies the lop-sidedness of devolution is its strong asymmetry; what I have called double asymmetry: only some parts of the state are devolved, and those which are have very different models of government.

Each of these two features is likely to change. There are now proposals for strong devolution for Manchester. Attempts by the Blair government to promote a regionalist agenda fell flat but a new agenda, focused also on cities, which promises powers over areas such as housing, transport and economic development might be bolstered also by representation for English cities and regions in a revamped House of Lords (discussed below). Another incentive for regional powers could well be the sense that a Scottish Parliament with tax powers might use these to gain different forms of competitive advantage which should be countered within English regions. There is no mention of English devolution in Smith but it is now on the agenda.

If the powers of the Scottish Parliament increase, Wales will no doubt lobby for further competences if the current trajectory of Wales tracking Scotland’s growing autonomy continues. Federalism does not require symmetry, but in the past ten years we have seen Welsh devolution move closer to the Scottish model and this trend could well continue.

  • Can powers be taken away from Westminster with no impact on how Westminster is composed or how it operates?

Immediately after the referendum David Cameron tied new powers for Scotland to a concomitant recalibration of the powers of Scottish MPs at Westminster. This was shot down immediately by the Labour Party and the Prime Minister back-tracked. But it appears increasingly that this was a tactical retreat. The West Lothian question cannot be avoided; apart from anything else it will be an issue at the General Election next year. This need not mean an English Parliament but it will require a revision of the role of Scottish MPs at Westminster, perhaps along the lines of the McKay recommendations.

Another proposal, which would go some way to deal with the representation deficit, is reform of the House of Lords. Ed Miliband in his speech to the Labour Party conference in September 2014 suggested a new chamber of the nations and regions of the UK. This idea was earlier advanced by Gordon Brown. This would only be feasible if accompanied by meaningful devolution to English regions and cities and again it is not mentioned in Smith. But such a reformed chamber could offer a genuinely union-focused institution at the centre of the state, pushing back against the relentlessly fissiparous trajectory which Smith alone might otherwise deliver.

  • Can the Scottish Parliament become one of the most powerful sub-state legislatures in the Western world with no formalisation of the competence limits between it and Westminster?

Another dimension typical of a federal system is that both the central and regional tiers of government have constitutionally-demarcated spheres of operation. The reassertion of parliamentary supremacy in, for example, the Scotland Act is another way in which the UK has hitherto looked non-federal. But Smith now proposes that the Scottish Parliament be made ‘permanent’ (para 21). Such a move would presumably also extend to the prohibition of removal of its powers without the Scottish Parliament’s consent: Smith confirms that the Sewel convention will be put on a statutory footing.

There are various ways in which this could be done. One is of course a self-conscious reconstitution of the state – reforming the state’s rule of recognition around a new foundational document: a Liberal Democrat report has called for ‘a declaration of federal union’. But this is surely unnecessary. Some arrangement analogous to the European Communities Act 1972, but building in more explicit self-limitations on Parliament’s powers, would no doubt satisfy those who want guarantees of Scottish home rule, without dealing with the kompetenz-kompetenz issue which is still left open post-Factortame. This seems to be what Smith envisages in providing that its permanence will be guaranteed by ‘UK legislation’ (para 21). Another related way to do this would be through a new Act of Union or Acts of Union passed in parallel by the two parliaments. Technically it could be argued that each could be open to repeal (s37 of the Scotland Act 1998 would need to be taken into account), but by another reckoning such a double endorsement could take on an unsettled constitutional status as did the 1706/07 Acts, at least as viewed within the Scottish legal system. Smith also refers to the ‘sovereign right of the people of Scotland to determine the form of government best suited to their needs’ (para 20); again, if any such reference were to be included in the preamble of a new statute, this would add considerable weight to the constitutional status of legislation designed to ‘entrench’ the Scottish Parliament.

  • Can a territory enjoying such a delegation of powers continue to interact with Whitehall on the basis of informal and discretionary arrangements?

Another area which has been lacking is any formalisation in the ways in which sub-state executives interact with the UK government. So far devolution has worked through very informal arrangements through the Joint Ministerial Committee system, supported by Memoranda of Understanding and supplementary ‘concordats’. If the Scottish Parliament is empowered to set radically different fiscal and welfare priorities this could put great strain on the system and some form of formalisation may well be needed. This is recognised firmly by Smith. Lord Smith himself in his foreword to the Report asserts that ‘weak inter-governmental working… needs to be fixed. Both Governments need to work together to create a more productive, robust, visible and transparent relationship.’ This is fleshed out in Pillar 1 of the Report which calls for the ‘urgent’ reform of the JMC and a new Memorandum of Understanding to formalise inter-governmental (and inter-parliamentary) relations and open them up to ‘much stronger and more transparent parliamentary scrutiny’ (para 30). The proposals extend also to the area of UK relations with the EU. Smith recommends that Scottish Ministers be ‘fully involved’ in agreeing the UK position in EU negotiations relating to devolved policy matters, that they be consulted before final UK negotiating positions relating to devolved policy matters are fixed, and that devolved administration ministers be allowed to speak on behalf of the UK in Brussels in certain circumstances (para 31).

These measures could also help resolve the representation deficit by again giving Scottish (and surely the other sub-state governments) a clearly demarcated say in setting central government policy priorities in areas of shared concern. Certain issues could be unpalatable for some, for example giving the regions effective veto powers in relation to certain matters, perhaps exercised through the reformed second chamber (a measure that would require amendment to the Parliament Acts). But powers of this kind may be needed to give the union a real sense of meaning to those on the periphery.

Federalism: Feasible Within our Unwritten System?

To conclude, the federal idea is a more open canvas than the term ‘federation’ would suggest. It is flexible and open to a range of institutional possibilities; arguably it does not even require full-blown codification through a new foundational document. Indeed, it seems to me that the UK has been on a federal trajectory at least since 1998 and that Smith can be seen as another stage, albeit a dramatic one, on this incremental journey. But a number of important changes do seem likely to accompany a significantly strengthened Scottish Parliament. For example, we may well see a demand for regionalism in England, a recalibration of the House of Commons, and possibly also radical reform to the House of Lords. Efforts to make the Scottish Parliament permanent will take on a federal perspective, seeming to limit Westminster’s supremacy in this sphere at least; if this occurs a concomitant formalisation of respective executive powers also seems likely as Smith suggests.

Such reforms would both extend and crystallise the ‘self-rule’ dimension of a federalising UK while also offering institutional corrections to the representation deficit. Whether all of this will create a stronger sense of partnership and a renewed sense of belonging to a common union we simply don’t know, but without such a broader set of reforms the Smith process may well further unsettle the union it was intended to save.

 

Stephen Tierney is Professor of Constitutional Theory in the School of Law, University of Edinburgh and Director of the Edinburgh Centre for Constitutional Law. ESRC Senior Research Fellow, ESRC Centre on Constitutional Change

Suggested citation: S.Tierney, ‘Is a Federal Britain Now Inevitable?’ (27th November 2014) (available at http://ukconstitutionallaw.org).

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Merris Amos: The UK and the European Court of Human Rights

Merris Amos.jpgNow that the furore of the Scottish independence referendum has passed, the attention of politicians and media has once again turned to the dangers of the European Court of Human Rights (ECtHR). In his speech to the Conservative Party Conference in late September, Prime Minister David Cameron stated that the ECtHR needed “sorting out”. Three examples of its judgments were used to support this point: the prisoner voting litigation; the limits on deporting suspected terrorists, including Abu Qatada; and the extension of the HRA to the “battle-fields of Helmand”, an issue which the ECtHR has not directly adjudicated upon although it has given judgments concerning events in Iraq. Shortly after, the Conservative Party released its proposals for changing Britain’s human rights laws. Central to this is altering the relationship between the UK and the ECtHR so that its judgments are no longer binding over the UK Supreme Court and that it is no longer able to order a change in UK law. As any law student will know, this would be a waste of time as neither is currently possible in our dualist legal system. The judgments of the ECtHR are only binding in international law. To support these proposals, five examples of ECtHR judgments are given: prisoner voting; artificial insemination rights for some prisoners; limits on the deportation of foreign nationals who have committed crimes; and limits on the deportation of foreign nationals generally. The fifth example is the recent judgment on whole life tariffs which was misleadingly and erroneously portrayed as a decision that murderers cannot be sentenced to life imprisonment. It is clear that the Conservative Party is not expecting to receive votes from prisoners (who have no vote anyway), foreign nationals or members of the armed forces who also enjoy the protection of human rights law on the “battle-fields of Helmand”.

The idea that the ECtHR is a dangerous meddler in national affairs has gained enormous currency in recent years bolstered by a sympathetic media. In late August journalist Craig Woodhouse, reported in The Sun that the ECtHR ruled against Britain in “three out of the five cases it hears” and that “terrorist, rapists, killers and paedophiles” had all won at the Court, which “overrules Britain once every 47 days on average.” The most recent judgment of the Court concerning UK rules on prisoner voting, where it found a violation of human rights but declined to award the legal costs claimed by the applicants, was reported in The Daily Mail to be the direct result of the Court being “rattled by Cabinet Ministers threatening that Britain could leave”. Politicians from all parties are willing to jump on the bandwagon. In August, Jack Straw wrote in The Times that the prisoner votes and night flights judgments of the Court illustrated, it had “taken unto itself decisions that it should, under its own doctrine, leave to domestic courts and parliaments.” Judges have also descended to the arena. Lord Neuberger, President of the Supreme Court, recently told a conference audience in Melbourne of his suspicions that UK judges were too ready to make assumptions about the position of the ECtHR and then to follow it. And in November 2013 Lord Sumption, a Justice of the Supreme Court, gave a lecture in Malaysia in which he noted that the Court “undermined” the democratic process.

The prisoner voting litigation enables opponents of the ECtHR to easily create a false impression as to its “dangerousness” which it was not as easy to do prior to the first judgment on the question in 2004. It is an issue which is easily understood and captures the public imagination. Just to mention it gets everyone fired up and even encourages spirited debates in undergraduate Public Law tutorials. It is not legally complex and can be presented as requiring a simple “yes or no” answer. Any resolution may also have an impact for a large number of prisoners. In a consultation paper published in April 2009, the Ministry of Justice stated that were all current prisoners serving less than four years to be enfranchised, that would be 28,000 prisoners. However, judgments like this from the ECtHR are extremely rare as the examples recently provided by David Cameron and in the Conservative Party proposals demonstrate. Since 1966, when the UK accepted that individuals could apply to the ECtHR, it is has given more than 500 judgments where the UK was the respondent State. However, those intent upon bashing the Court can usually refer to no more than five, and always include its judgments on prisoner voting. Jack Straw’s recent effort was particularly poor. The only example additional to prisoner voting which he could produce was the Heathrow night flights case, a judgment given in 2003 where the facts took place prior to the coming into force of the Human Rights Act (HRA) and the applicants were not actually able to seek a remedy before the national courts. Furthermore, this is an issue which does not produce a predictable response, particularly from those living under a busy flight-path as obviously Jack Straw, or his constituents, do not. The facts of this judgment would not inspire hatred for the ECtHR in most, but sympathy for the applicants many of whom eventually decided to move from their homes, at considerable cost, to escape the noise.

Rather than a clear illustration of the ECtHR overstepping the boundaries, the judgments utilised by the Conservatives and others are a clear illustration of the failure of those constantly criticising the ECtHR to provide the full picture. It is not the case that this information is inaccessible or available only to lawyers. The ECtHR is particularly good at keeping records and publishes its judgments almost instantly on the website HUDOC for all to see. Its last country profile of the United Kingdom was completed in September 2014. The impact of the Human Rights Act on the applications made to the Court is obvious. In 2012 1,734 applications were allocated to a judicial formation (for admissibility to be determined). By 2013 this had dropped to 913 and the figure given for the period January to July 2014 is just 395 applications. The vast majority of applications against the UK are declared inadmissible or struck out.

It is not clear what period the figures reported in The Sun actually came from and it is also important to note that in its statistics, the ECtHR counts applications, not judgments. A single judgment concerning the UK may be a judgment in the case of two or more applicants. However, for the purposes of consistency, judgments will be the measure adopted here. In 2012, 23 judgments where the UK was the respondent State were given. By 2013 this had dropped to 13 and the figure for January to the end of September 2014 is 7 judgments. Of the 13 judgments concerning the UK decided in 2013, violations of the ECHR or Protocol No.1 to the ECHR were found in eight judgments, no violation in five. If the research referred to in The Sun is limited to the year 2013, it would be possible to state that the ECtHR ruled against Britain in 8 out of the 13 cases it heard that year, or close to “three out of five” as reported. However, if the research is limited to this year, 2014, where of the seven judgments concerning the UK, violations were found in three, this would be two out of five. Similarly in 2012 violations were found on the part of the UK in 10 of the 23 judgments given, once again, two out of five.

Judgments can be chosen and statistics manipulated to support whatever the author would like. But what it is most important to appreciate is that the judgments of the ECtHR are not all the same as the prisoner voting judgments. It is extremely rare for the ECtHR to find a violation of the Convention where rectifying the breach would involve a change to an Act of Parliament with repercussions for a large number of individuals. This is the exception, not the norm and most of the judgments of the ECtHR are not as clear cut, or as appealing as a tabloid headline. Often the facts, and the judgment, are extremely complex. A closer look at all of the judgments of the ECtHR in 2013 where the Court found against the UK illustrates this point.

As already noted, in 2013 in eight judgments the ECtHR found violations of Convention rights on the part of the United Kingdom. In two of these the applicants could not seek a remedy under the HRA before the courts of the UK as the facts they were complaining about took place before the HRA came into force on 2 October 2000. Both concerned deaths which occurred in the 1990s during The Troubles in Northern Ireland. In both the ECtHR concluded on the facts that there had been excessive delay in carrying out an effective investigation into the deaths. In three other judgments during 2013, the ECtHR reached a different conclusion to UK courts simply on the facts of the case meaning that just for these particular applicants, a remedy should be forthcoming. In the case of the first, this was not to be extradited to the United States, and in relation to the second, it found a violation of the Convention as a result of a thirteen month delay in his Parole Board review. The fact that the Convention had been breached was actually admitted to the ECtHR by the UK government. In the third fact based judgment, a convicted criminal successfully challenged his detention following the expiration of his sentence. He was detained, pending his deportation, for an additional 30 months after he should had been released having served his sentence for the crime he committed.

Only two judgments of the ECtHR in 2013 finding breaches of the ECHR on the part of the UK could be described as even approaching the magnitude of the prisoner voting judgments. The first was the judgment in the application of Ms Eweida and three other applicants. Ms Eweida, a practising Coptic Christian, argued that her failure to receive a satisfactory remedy before UK courts for her treatment as an employee of British Airways meant that the UK was in breach of Article 9 of the ECHR – the right to manifest religious belief. For a period of time Ms Eweida was at home without pay as she refused to comply with the uniform policy and conceal or remove her cross. She was unable to successfully receive a remedy for this treatment before the UK courts.

In a complex judgment, the ECtHR concluded that her behaviour was a manifestation of her religious belief and was therefore protected by Article 9. However, in contrast to its earlier case law, which had been followed by UK courts in Ms Eweida’s national litigation, it decided that the actions of British Airways amounted to an interference with Ms Eweida’s rights. It concluded that here the proportionate outcome would have been for the national authorities to afford Ms Eweida a remedy and their failure to do so meant that the UK was in breach of its positive obligations under Article 9. The other three applicants were not successful. This judgment was of enormous importance, not just for those in the UK seeking better protection of manifestations of religious freedom in the workplace, but for all ECHR Contracting States given the ECtHR had modified its jurisprudence, in relation to the interpretation and application of Article 9, swayed by the arguments of UK lawyers.

But although the ECtHR found against the UK, this judgment was not met with the same level of derision from politicians, media and others reserved for the issue of prisoner voting. It was reported that the Prime Minister welcomed the ruling, tweeting that he was “delighted that principle of wearing religious symbols at work has been upheld” but believed current law struck the right balance. Eric Pickles, Secretary of State for Communities and Local Government at the time, told BBC Radio 4 in response to the judgment that there had been a “degree of aggressive secularism” in the UK and that if it was necessary to change the law to ensure people could wear discreet religious symbols, the government would do so. It was reported that Vince Cable, Ms Eweida’s MP, was delighted with the result and saw this as an illustration of the ECtHR standing up for basic liberties. The tone of coverage in all media was either positive or neutral. The Daily Mail hedged its bets describing this as a “just decision” but of course, this “is not to say that the unaccountable foreign judges of Strasbourg have any business dictating the laws of the UK.” It also expressed its reservations about the Court finding against the three other applicants as this proved that “the court’s respect for our national religion and the right of believers to follow their consciences is paper-thin.” It seems that the ECtHR cannot ever win.

The second judgment against the UK in 2013 of significance and with wider ramifications was that concerning the applications of Douglas Vinter, Jeremy Bamber and Peter Moore. All three are convicted murderers and are serving mandatory sentences of life imprisonment with whole life tariffs – meaning they must spend the rest of their lives in prison. Each argued that their whole life orders were incompatible with Article 3 of the ECHR which protects against inhuman or degrading punishment. In a very complex judgment, the ECtHR held that where a whole life order was imposed, what Article 3 required was that there must be some sort of review during the period of the sentence, which allowed the authorities to consider whether any changes in the prisoner were so significant, and such progress towards rehabilitation had been made, as to mean that continued detention could no longer be justified on legitimate penological grounds. It did not prescribe the form that this review should take or when it should take place but observed that many other countries would institute a review on or before the 25 year point, with further periodic reviews thereafter. If the law did not provide for the possibility of such a review, a whole life sentence would not be compatible with Article 3. Although the UK government argued that the present law did provide for the possibility of such a review, the Court was not convinced that the law was sufficiently clear and held there was a violation of Article 3 in this regard. At no point did it recommend that the applicants be released or that whole life tariffs should not have been imposed on the applicants or could no longer be imposed on others. It is entirely possible that the outcome of a review at the 25 year mark would be that the prisoner remain in prison.

Given that the applicants were notorious murderers, Jeremy Bamber, for example, was convicted of the murder of his parents, adoptive sister and her two young children in 1986, it was not likely that any victory at all for them in the ECtHR would be well received back in the UK but the scale of misreporting of this judgment was shocking. In The Telegraph it was reported that the Court had held that whole life tariffs amounted to inhuman and degrading treatment. In The Times, it was reported that the Court had “infuriated ministers by ruling that whole-life sentences for the most notorious murderers are unlawful.” In The Sun the judgment was described as “a bombshell ruling banning British courts from giving our worst killers whole-life sentences.” In the recent Conservative proposals, the judgment is described as “banning whole life sentences even for the gravest crimes”.

The final judgment of the eight was very complex and concerned the intricacies of the interpretation and application of Article 5, the right to liberty. Whilst remedies implemented as a result would have wider implications for other in similar circumstances, this judgment definitely would not capture the imagination of the Editor of a tabloid newspaper. In short, a severely disabled woman successfully challenged her inability to have access to a court to effectively dispute one part of her detention, at the instigation of a council social worker, under the Mental Health Act 1983.

The full picture of the UK’s breaches as found by the ECtHR in 2013, a fairly typical year, shows that there were only two judgments of the ECtHR finding against the UK approaching the scale of impact of the prisoner voting judgments but still a long way off. One of these was well received escaping negative mention in any recent speech, proposal or media coverage. The other only has implications for the small number of prisoners, currently 48 in England and Wales, serving whole life tariffs. Each is now entitled to a review on or before the 25 year mark. But as the UK argued before the ECtHR, prior to this judgment were such a review ever requested of the Secretary of State, he or she could exercise the power of release and this would be done compatibly with the Convention. In its arguments before the ECtHR, the government had no difficulty with the principle of review, just with guaranteeing this clearly, in an Act of Parliament wary of the attendant publicity this would entail.

Is one controversial judgment per year, with limited implications for the general population, something we should be concerned about? Are these the actions of a dangerous judicial dictatorship? Obviously not. Superficial analysis of the UK’s record before the Court is a dubious path to tread. It also means that left out of the assessment of the ECtHR’s value to the UK are those judgments where it has found that the UK is not in breach of the ECHR. These judgments often concern issues of national law over which there has been disagreement for many years. A judgment of the ECtHR confirming the lawfulness of the current position can do much to put continuing disagreements at the national level to rest and allow Parliament and government to resist further calls for reform. Whether or not this is a positive development is open to question. However, it is important to appreciate that this benefit will also be lost should the UK withdraw from the ECHR system of protection. One further example from 2013 illustrates this point. In the application brought by the NGO Animal Defenders International, the ECtHR decided that the political broadcasting ban imposed in the UK by the Communications Act 2003 was compatible with the right to freedom of expression as protected by Article 10 of the ECHR. Parliament had passed this part of the Communications Act 2003 in full knowledge that it was possibly in breach of Article 10. The House of Lords (now the Supreme Court) in a carefully reasoned judgment, unanimously held that the ban was compatible with the right to freedom of expression. Lord Bingham observed that it was highly desirable that the playing field of debate “should be so far as practicable level.” In his view, this would not be achieved if political parties could “in proportion to their resources, buy unlimited opportunities to advertise in the most effective media, so that elections become little more than an auction.” In its judgment, noting the historical, cultural and political differences in Europe, the ECtHR held that it was for each State to mould its own democratic vision. It concluded that the impact of the ban did not outweigh the convincing justifications for it and that there was no breach of Article 10, the right to freedom of expression.

This significant victory for the UK received little attention in the UK media. There was some coverage of the victory in The Guardian, The Times, and The Independent reported that small advocacy groups would be bitterly disappointed but the judgment was welcomed by the then Culture Secretary, Maria Miller. The only coverage in The Daily Mail, some days after the judgment, concerned the prospect that the ECtHR would find against the UK stating “Britain is in danger of being forced by European judges to allow US-style political advertisements to be shown on television.” It is highly likely that the coverage would have been of a completely different tenor should the judgment have gone the other way.

33.2 million people identified as Christian in the 2011 Census. All of these people, and all others with religious beliefs, benefit from the improved right to manifest religious beliefs in the workplace as a direct result of a judgment of the ECtHR in 2013. Assuming it is of great benefit for the playing field of debate to be “so far as practicable level”, the entire population of the UK profits from the maintenance of the political broadcasting ban. By contrast 48 prisoners may have a review of their whole life tariff at the 25 year mark; 28,000 prisoners may one day get the right to vote; and various individuals have, based on their particular circumstances, have been able to resist deportation or extradition from the UK. It is easy to see why some judgments of the ECtHR are singled out for special mention or harsh criticism whilst others are not.

The war currently being waged on human rights law is an inevitable offshoot of the long standing “wars” on terror, crime, drugs and illegal immigration. It is just too tempting for governments waging these wars to maximise the political mileage by also engaging in warfare against whatever can be utilised in resistance including human rights law, international human rights supervision, and access to justice. However, it is a fundamental principle of human rights protection that human rights are for everyone including suspected terrorists, prisoners, criminals and foreign nationals living in the UK and the result should never be that human rights are for no-one. As a review of the judgments of the ECtHR in 2013 shows, the criticisms of the ECtHR in recent times are lies, manipulation of the truth and spin. 64 million people should not miss out on the benefits provided by the ECtHR as a result of politicians and media whipping up an irrational storm and not giving the whole picture. The people of the UK are too intelligent for that. When the criticisms of the ECtHR are wheeled out, which they are, on a regular basis, it is important to ask why, of the more than 500 judgments given by the ECtHR since 1966, the critics, at most, can only ever talk about five. What about the rest? What are they trying to divert our attention from?

Merris Amos is a Senior Lecturer at the School of Law, Queen Mary, University of London.

 (Suggested citation: M. Amos, ‘The UK and the European Court of Human Rights’ U.K. Const. L. Blog (24th November 2014)  (available at  http://ukconstitutionallaw.org/).

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James Hand and Donal Coffey: Miliband’s senate of the regions and a constitutional convention conundrum

donalJamesHandEd Miliband’s recent proposal for ‘an elected Senate that properly represents the towns, cities, regions and nations that make up the United Kingdom’ included reference to a ‘UK-wide Constitutional Convention’.

There has, of late, been increased talk of a constitutional convention, fuelled particularly by the Scottish Referendum and the question of devolution (see, e.g., on this site blog posts by Cormac Mac Amhlaigh and Robert Hazell). Earlier this year, the Labour Peers Working Group proposed that there should be a convention to consider ‘the next steps on further reform of the House of Lords and any consequential impact on the House of Commons and on Parliament as a whole’ (para 3.14) but there was support for a wider constitutional convention when their report was debated in the House of Lords (for an earlier post on this see here). Ahead of the Labour Party conference, the day after the Scottish Referendum result, Ed Miliband announced that a full Constitutional Convention would be set up in 2015 to discuss further devolution and reform at Westminster. As noted above, his more recent announcement that the House of Lords should be replaced with a senate of the cities, regions and nations again refers to the ‘UK-wide Constitutional Convention’ but its role seems to have changed markedly in the six weeks between announcements. The proposal for such a senate was greeted with arguably unfair allegations of hypocrisy following Labour’s role in the demise of the Nick Clegg’s House of Lords Reform Bill 2012 but of greater concern is the premise behind the proposal and the role of the UK-wide Constitutional Convention.

In his announcement of a Constitutional Convention for the UK (two days before the Labour Party conference and some six weeks before his Senate announcement), Ed Miliband stated that the convention would not look solely at devolution matters but also ‘look at new ideas for representation including reforms at Westminster and the case for a Senate of the Nations and Regions’ (emphasis added). Within those six weeks, the role of the convention had gone from considering the wider constitutional position and the case for a senate as part of that to, as regards the legislature’s second chamber, working out the details of the prescribed ‘solution’ (the abolition of the House of Lords and its replacement with a senate) and how it might fit with further devolution. Under the original announcement, the convention would have considered whether the idea of such a senate was the best way forward in light of the whole evolving constitutional settlement and not be solely restricted to the details. The changing state of local government was enough for Harold Wilson to defer consideration of specific regional membership of the Lords in the 1968 White Paper (Cmnd. 3799, para 23). Ed Miliband – who places great emphasis on regional representation and representation from our ‘great cities’ at the same time as his local government spokesman talks of counties rather than regions – has, however, sought to determine the outcome for the second chamber before the devolution (and indeed the consequential powers of the House) has been considered by the convention he intends to set up.

In the debate on the 2012 Clegg Bill, Baroness Boothroyd, the widely respected former Speaker of the House of Commons, asked ‘in the simplest and most mundane terms that [she could] command: in what way would the nation benefit and parliamentary proceedings be enhanced by the abolition of this House of experts and experience, and its replacement by a senate of paid politicians?’ Judging from his recent announcement, Ed Miliband’s response today would be that there would be ‘greater representation for the regions’. In his speech he said ‘[i]t cannot be right that the North West has almost the same population as London but only a small fraction of London’s number of peers… London is our capital and one of the world’s great cities but it cannot be right London has more members of the House of Lords than the East Midlands, West Midlands, Wales, Northern Ireland, the North East and Yorkshire and Humber added together.’ No source is given but the wording is very similar to a 2008 analysis by the New Local Government Network (p.15). This report looked at main residences for expenses purposes and showed a heavy London/South East and rural bias. However, looking at residences is a very misleading approach. As the House of Lords Library Note on Regional Representation in the House of Lords notes, citing Russell & Benton, just because many members have a London home does not make the House ‘London-centric’, not least as if they are active members a base in the capital is sensible (p.8). Furthermore, people have other ties to areas such as where else they live and have lived or have worked. The Library note attempts to address this by looking at territorial designations within titles and this does show a much wider spread of locations with, for example, Greater Manchester and surrounding areas well served (p.14). This, too, however does not give a full picture as it excludes those peers who do not have a location in their title and the choice of title is only one facet of somebody’s ties. For example, Lord Callaghan of Cardiff took his title from his constituency but was born and educated in Portsmouth and later farmed in East Sussex.

It may be that the current proposal for the senate, and the emasculation of the convention, owes more to current political machinations than considered constitutional reform. It could be seen to form part of a broader Labour scheme to answer the West Lothian question without adopting the recommendations of the McKay Commission. This Commission proposed that decisions effecting England, or England and Wales, should be taken only with the consent of a majority of English, or English and Welsh, MPs (see further here). In contrast, the Labour proposals seek to devolve power to the English regions (howsoever defined), which would affect the McKay reasoning by fundamentally altering the relationship between Westminster and the English regions. Lords reform is the copestone to this devolution project. Ed Miliband’s progression from a possibility of Lords reform to be determined by a constitutional convention in the immediate aftermath of the Scottish referendum, to his determination that the convention would merely set out the terms of such reform may have been a response to David Cameron’s recent call for an English-centred settlement of the West Lothian question.

The proposed constitutional convention in the UK will be likely to draw on the parallel Irish constitutional convention which recently completed its work (see here). The terms of reference of the convention were drawn up in advance by the Government and, in that sense, the recent Labour proposals are arguably in line with the Irish model. The major notable failure in constitutional reform in Ireland since the establishment of the convention was the proposal by the Government to abolish the Senate. The 32nd Amendment to the Constitution Bill was defeated in a referendum. The question was not referred to the constitutional convention as it formed part of the programme for Government. A similarly pre-judged outcome may ultimately hole Labour’s devolution proposals below the waterline.

If a well-constituted constitutional convention, with power to look at the whole picture, concluded that a federal or quasi-federal system was appropriate, then there could be clear scope for the second chamber to be a House – or Senate – of the Regions. However, that is far from the case that Ed Miliband is now making. If he succeeds, the destruction of a highly respected second chamber (albeit one in need of evolutionary reform) on such flaky foundations could be highly detrimental to our legislature and the legislation it produces.

 

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

Donal Coffey is a Senior Lecturer at the University of Portsmouth.

 

(Suggested citation: J. Hand and D. Coffey,‘Miliband’s senate of the regions and a constitutional convention conundrum.’ U.K. Const. L. Blog (23rd November 2014) (available at http://ukconstitutionallaw.org/)).

 

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Alexander Horne and Richard Kelly: Prerogative Powers and the Fixed-term Parliaments Act

KellyrAlexander HorneThe Fixed-term Parliaments Act 2011 is a contentious and oft criticised piece of legislation, although it does have its supporters. The government and the Political and Constitutional Reform Committee have argued it has created a stable environment for longer-term government planning.

The 2011 Act made provision for the next general election to be held on the first Thursday of May 2015 (and fixed the terms of future Parliaments to five years). Accordingly, it ostensibly removed the Prime Minister’s power to pick a date of his own choice. Prior to the 2011 Act, the prerogative power to dissolve Parliament before the maximum five-year period was exercised personally by Her Majesty, conventionally at the request of the Prime Minister.

When the Bill was considered in Parliament, the House of Lords proposed a “sunset clause”. This would have required both the Houses to renew the legislation after each general election. The Commons objected. The deadlock between the two Houses was resolved through the insertion of a statutory requirement on the Prime Minister to establish a committee “to carry out a review of the operation of [the] Act” and “if appropriate in consequence of its findings, to make recommendations for the repeal or amendment of [the] Act.” The committee is required to report at some point between 1 June 2020 and 30 November 2020.

On 23 October 2014, there was a debate in the House of Commons, scheduled by the Backbench Business Committee, calling for the repeal of the 2011 Act. MPs debated the following motion:

That this House believes that the Government should bring forward proposals to repeal the Fixed-term Parliaments Act 2011.

In the event, the motion was defeated by 68 votes to 21. During the course of the debate, an interesting question arose, which would have to be considered if opponents of the legislation were ever to succeed in securing repeal: namely, if the 2011 Act were repealed, would the former prerogative power revive? (This is not the only matter that could arise – for example, the 2011 Act also removed certain provisions relating to the maximum length of a Parliament; however these issues are not the focus of this blog).

The Royal Prerogative

According to A.V.Dicey, the Royal Prerogative is “the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown”. As Liam Laurence Smyth (then Clerk of the Journals) observed in Parliament and the Law, Hart, 2013 (citing from a Government submission to the House of Commons Select Committee on Public Administration from 2003):

It is not altogether clear what happens when a prerogative power has been superseded by a statute and the statutory provision is later repealed but it is likely to be the case that the prerogative will not revive unless the repealing enactment makes specific provision to that effect.

If this is the case, it would mean that rather than simply repealing the 2011 Act, opponents of the legislation would have to introduce a new statute setting out the circumstances in which the Prime Minister would be entitled to request the monarch dissolve Parliament or to put in place other provisions that set out how Parliament could be dissolved.

The latter route would appear to be necessary if the 2011 Act has abolished the prerogative power permanently. (Although the Explanatory Notes state that the prerogative power to dissolve Parliament was abolished by the Act, para 16, they do not form part of the legislation so clearly this is not determinative).

Other relevant issues here would include the fact that section 3(2) of the 2011 Act provides that “Parliament cannot otherwise be dissolved” (which might be argued to be an express abolition of the prerogative power). A contrary argument, that suggests the power is only in abeyance whilst the statute is in force, is the fact that the 2011 Act is subject to review and might be repealed. In such circumstances, would the drafters of the legislation have intended that there be no alternative means of dissolving Parliament?

For if such provisions are not included, and it is the case that the 2011 Act abolished the prerogative power, then a simple repeal of the Act would appear to mean that no mechanism to dissolve Parliament would exist.

A role for the courts?

If a dispute was to arise over this issue, there is a risk that it might have to be settled in the courts. In the well-known case of R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2008] UKHL 61, Lord Bingham observed:

It is for the courts to inquire into whether a particular prerogative power exists or not, and, if it does exist, into its extent: Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 398E. Over the centuries the scope of the royal prerogative has been steadily eroded, and it cannot today be enlarged (British Broadcasting Corporation v Johns (Inspector of Taxes) [1965] Ch 32, 79E). As an exercise of legislative power by the executive without the authority of Parliament, the royal prerogative to legislate by order in council is indeed an anachronistic survival. When the existence or effect of the royal prerogative is in question the courts must conduct an historical inquiry to ascertain whether there is any precedent for the exercise of the power in the given circumstances. “If it is law, it will be found in our books. If it is not to be found there, it is not law”: Entick v Carrington (1765) 19 St Tr 1030, 1066.

Such an inquiry was carried out by the Court of Appeal ([1919] 2 Ch 197) and the House ([1920] AC 508, 524-528, 538-539, 552-554, 563, 573) in Attorney-General v De Keyser’s Royal Hotel Limited. In Burmah Oil Company (Burma Trading) Limited v Lord Advocate [1965] AC 75, 101, Lord Reid said:

The prerogative is really a relic of a past age, not lost by disuse, but only available for a case not covered by statute. So I would think the proper approach is a historical one: how was it used in former times and how has it been used in modern times?

The desire of the courts to involve themselves in such a political case, involving the workings of Parliament, is far from clear. In particular, it is worth noting that in the case of Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 Lord Roskill stated plainly that there could be no grounds whatever upon which the power of dissolution could be challenged by way of judicial review, arguing that: “The courts are not the place wherein to determine whether … Parliament [should be] dissolved on one date rather than another.”

The question as to whether the prerogative power has been supplanted by statute is a rather different one and it would be a brave Prime Minister who would seek a dissolution with the law in an unclear state. That said, it might be thought that it would be an even braver court that would rule that Parliament could not be dissolved in order to hold a general election.

 

Alexander Horne is an employed barrister at the House of Commons and a teaching fellow at University College London.

Richard Kelly is a senior researcher at the Parliament and Constitution Centre in the House of Commons Library.

 

Suggested citation: A. Horne and R. Kelly, ‘Prerogative Powers and the Fixed-term Parliaments Act’ UK Const. L. Blog (19th November 2014) (available at http://ukconstitutionallaw.org)

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Conference Announcement: Thirty Years of Judicial Review in Scotland

strathGlasg Sponsored by the Clark Foundation for Legal Education and the UK Constitutional Law Association

Thirty Years of Judicial Review in Scotland

 

26 January 2015

10 am to 4.30 pm

University of Strathclyde, Court/Senate Suite, Collins Building, 22 Richmond St, Glasgow

This one day conference is being held jointly by Glasgow and Strathclyde University Law Schools to mark the thirtieth anniversary of the introduction of the specialised judicial review procedure in Scotland. It is an opportunity for practitioners, academics and law students to reflect on developments since 1985, how judicial review is working today, and how it might develop in future. It is particularly timely given the important reforms to the judicial review procedure about to be introduced by the Courts Reform (Scotland) Bill 2014. The programme features contributions by leading public law academics and practitioners, and a keynote address by the Right Hon Lord Reed, justice of the Supreme Court.

To register for this event please visit the Strathclyde University Online Shop. Registration fee £25. N.b., there are a small number of free places for undergraduate and postgraduate students. To book a free place please contact carol.hutton@strath.ac.uk.

Attendance at this event will qualify for 5 hours CPD.

 

Programme

9.30 – 10.00:               Registration

 10.00 – 10.55:                         Welcome and Keynote Address

Chair:                          James Wolffe, QC, Dean of the Faculty of Advocates

Speaker:                      The Right Hon Lord Reed, Justice of the Supreme Court: ‘The Development of Judicial Review in Scotland’

10.55 – 11.15:                         Coffee

11.15 – 13.00               What is Judicial Review For?

Chair:                         Professor Aileen McHarg, University of Strathclyde

Speakers:                    Brian Thompson, University of Liverpool: ‘The Place of Judicial Review in the Administrative Justice Landscape’

Professor Tom Mullen, University of Glasgow, ‘Public Interest Litigation’

Lynda Towers, Solicitor to the Scottish Parliament, ‘The Public Authority Perspective’

13.00 -14.00:              Lunch

14.00- 15.15:              Patterns of Judicial Review Litigation

Chair:                         Fiona Killen, Anderson Strathearn

Speakers                     Professor Alan Page, University of Dundee, ‘The Judicial Review Caseload’

Tony Kelly, Taylor & Kelly, Visiting Professor, University of Strathclyde, ‘The Potential Impact of the Courts Reform (Scotland) Act’

15.15 – 16.30:             The Development of Scots Judicial Review Doctrine

Chair:                         Sheriff Lorna Drummond, QC

Professor Chris Himsworth, University of Edinburgh, ‘The Concept of “Jurisdiction” in the Scottish Courts’

Denis Edwards, Terra Firma Chambers, ‘European Influences’

1630 – 1800                Reception

 

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Conor Gearty: On Fantasy Island: British politics, English judges and the European Convention on Human Rights

conorMy first encounter with the fantasies that underpin English public law came in the 1980s. I had just starting teaching constitutional law and was taking my first year students through Dicey: the independent rule of law; the availability of remedies to all, without fear or favour; the common law’s marvellous protection of civil liberties; how great we were, how terrible the continent; and all the rest of it. Outside the classroom, striking miners were being routinely beaten up by the police, their picketing disrupted by road blocks, their liberty eroded by mass bail conditions. The Campaign for Nuclear Disarmament was having its marches banned and its protests inhibited by ‘no-go’ areas arbitrarily erected by the police around American bases into which it had been decided to move a new generation of nuclear weapons. Some of my students were even beaten up themselves, on a march against education cuts in London – much to their surprise given what I was teaching them.

Far from confronting any of this from the perspective of principle, the courts were happy to act as a benign legitimating force, their various rulings invariably serving to throw the necessary constitutional camouflage over successive exercises of raw state violence. Eventually the judges overreached themselves even by the standards of the day: their absurd determination to prevent publication of a book (Spycatcher, by Peter Wright) containing serious allegations of criminality against the security services fell apart thanks partly to being published in the US under the protection of the first amendment but mainly to the determination of a European Court of Human Rights to take freedom of expression more seriously than had the supposed guardians of liberty on the Strand. (More on this court later, of course.) The determined commitment of a succession of senior judges to keep Irish prisoners in jail for serious terrorist offences long after it was obvious to all that the men (and in some cases children) involved had been victims of serious miscarriages of justice eventually brought the reckless reactionary partisanship of the senior judiciary to center stage where it could finally be seen and understood by all: the true perspective of the Dennings, the Diplocks, the Lanes, the Bridges, the Donaldsons was eventually exposed for all to see. By the early nineties, the Dicey fantasy I had found on arrival in England was in ruins, believed by almost no one, exposed as a construct founded on deceit.

It is invariably easier to expose the iniquities of the past than it is to address the problems of today. The judiciary has remade itself in a way that has been undoubtedly successful; they are certainly not as they were in the 1980s: aloof, national service men, bound by the Kilmuir rules to an extra-judicial omerta that removed them from all public discourse. The first generation of judges after the catastrophes of the late 1980s responsible for this make-over took to human rights as their penance for past sins and when they got the Human Rights Act (for which many of them had quietly campaigned) they went about interpreting it in a way that has been beneficial. But these men (and a very few women) are now largely going or gone, being replaced by a newer generation of senior figures – even more male than in the immediate past – whose pride in what they do seems untainted by any awareness of past wrong. And in their excitement at their success, not only past wrongs are being forgotten but truths are being constructed in a way that bears striking resemblance to that past. This revival of fantasy is now reacting with the current political atmosphere in a way that threatens to produce a poisonous cocktail that could destroy modern England. I do not believe I exaggerate.

So who are these judges who are at a political front-line many of them probably don’t know exists? We can learn far more than we used to of how they see the world. There are many speeches and public lectures: the Kilmuir rules are long forgotten. The habits of certainty and decisiveness so essential to adjudication are not easily laid aside at the lectern when judges approach it. Perspectives are laid out not as tentative scholarly arguments so much as authoritative findings of fact.   As President of the Supreme Court, Lord Neuberger is understandably one of the more prolific speech-makers. His talk at the Supreme Court of Victoria in Melbourne on 8 August this year introduces us to our first contemporary fantasy: the myth of Whiggish inexorability.   We learn from Lord Neuberger that ‘[t]he history of Human Rights and the United Kingdom in the last 100 years can be divided into several periods’: the ‘dark ages pre 1951 when Europe became ‘sharply aware of the need for [a] strong, clear and codified set of human rights’ when we in the UK did not; the ‘middle ages’ between 1951 and 1966 (when individuals were first allowed to take the UK to the European Court of Human Rights); the ‘years of transition’ between 1966 and implementation of the Human Rights Act 2000 when ‘human rights started to leak into the judicial cerebellum’ and – inevitably – ‘the age of enlightenment’ of today:

There is nothing here about the European choice directly after the war being governed by politics and the fear of the Left that has been so convincingly demonstrated in recent scholarship: the work of Marco Duranti in particular. There is no nod towards the decay of the judges’ standing in the 1980s in the UK that precipitated the move to rights – on Neuberger’s account human rights just sort of leaked into judicial grey matter. And like all such triumphalist accounts of the past, the present is treated as a destination (we are in the ‘still early days’ in our ‘age of enlightenment’), rather than just a brief moment on a journey to somewhere else.

Lord Neuberger is also an exemplar of our second fantasy, that of the civil libertarian common law. The 1980s (and indeed all earlier decades) have been forgotten: ‘there is no doubt that the common law was in many ways the origin and promoter of individual rights’ its only problem being (and the reason for the turn to rights) that ‘it developed such rights in a somewhat haphazard and leisurely way.’ Well that is one way to describe it – the partisanship of the common law for property and contract rights over gender and racial equality; an hostility to trade unions and the Labour party so severe that neither could have survived without legislation directly overturning judicial malevolence; the common law’s service as a base for the serial abuses of liberty with which I began this lecture. In his recent, beautifully written Hamlyn lectures, the celebrated Court of Appeal judge Lord Justice John Laws (The Common Law Constitution ) sings a hymn of praise to the old common law, arguing that it is the unifying principle of the constitution and that ‘its distinctive method has endowed the British State with profoundly beneficial effects.’ The recently retired Lord Chief Justice Lord Igor Judge took a not dissimilar line in a recent lecture at University College London where he defended the courts from executive interference against a background of unquestioned acceptance of the fact of the ‘independence of judicial decision making’ as ‘an integral structure of the constitution’.

Now it is only one step from this position to say that actually the common law is so wonderful that it ought to have superiority over Parliament itself, a position once held by the judges in eras gone by of course, but which one might have thought had been laid to rest by democratic revolution. In fact that is not the case. At least some of the judges have allowed the enthusiasm of certain academic scholars for such a possibility to lead them to what Lord Neuberger in his Melbourne speech called ‘the interesting point’ of whether the courts can in fact overturn Parliament itself. A mini-spate of cases in the Supreme Court have allowed the idea to grow without the unanimous disavowal that would surely have been its fate only a little while ago. On any current account the obstacles against such a judicial overriding of parliament would need to be very high: some draconian flouting of the rule of law or what Lord Neuberger called (and even then only possibly) ‘exceptional circumstances’. Perhaps these are what Lord Carswell in Jackson v Attorney General [2005] UKHL 56 referred to (albeit in the context of a law passed under the Parliament Act) as legislative acts amounting to ‘a fundamental disturbance of the building blocks of the constitution’ (at para 178).

The Human Rights Act currently controls judicial capacity here by its well-known reaffirmation of the principle of Parliamentary sovereignty in sections 3(2), 4(6) and 6(2) – well-known that is to everybody except senior members of the current Government who seem to think that the Act empowers the courts to strike down primary legislation – this fantasy of judicial supremacism in human rights law is a delusion seemingly restricted to the upper reaches of the Conservative party, guided by advisers no doubt to invent a problem in order better to able to curry favour with the electorate by dealing robustly with it. The prime minister has had many opportunities over the past few years to demonstrate how important it is to introduce law into the study of Oxford’s PPE degree – the lack of awareness of the contempt of court demonstrated by his intervention in the trial of the Saatchi PAs and the recent, forthright denial that EU legal obligations apply to British money come to mind. But the nadir was surely his apparent (contrived? genuine?) belief that in implementing a declaration of incompatibility issued in respect of the sex abuse register (so as to afford a modicum of due process to those whose lives had been hugely adversely affected by being on it) he was being forced by the courts to act. The whole point of the Human Rights Act – as my colleague professorial research fellow Francesca Klug has pointed out on occasions too numerous to count – is that declarations of incompatibility do not have to be followed. Lady Hale – who was one of the judges in the case - put it with characteristically understated precision in commenting on this incident: ‘Curiously, when introducing the order in Parliament, the Prime Minister was highly critical of our decision, but made no mention of the fact that the Government could have chosen to do nothing about it’

Repeal of the Human Rights Act – a policy to which the Conservative party is now committed – might well produce exactly that judicial supremacism about which the prime minister complains. Most really strong attacks on the rule of law and/or ‘the building blocks’ of the constitution would inevitably also entail a direct undermining of at least one and possible more Convention rights – the wholesale abolition of legal aid for example would breach the implied right of access to the courts in Article 6, under the Golder and Airey principle. The expulsion of asylum-seekers and others to face torture abroad would engage article 3 and so on. As things stand the judges could surely do nothing about such attacks however fundamental they believed them to be because of the explicit protection afforded parliament when it comes to legislation violating human rights – sections 3, 4 and 6 again. But take that protection away, and the common law solicitude for human rights that would replace it would not necessarily be so beholden to parliament. The primary laws themselves might become vulnerable. This would certainly be very odd: action to end something that could never happen would only serve to bring it about. The fiction of judicial supremacy would be turned into fact by efforts made to deal with it. But abolishing something that isn’t there creates it: in the social as well as earth sciences two negatives do indeed make a positive. Maybe the Tories genuinely don’t care about this – in modern politics the spin is the thing: fantasy rules.

It might seem a little odd to be talking about the British judges in this way, since they have not been at all in the firing line in recent years. The executive and the popular press appear to have a finite capacity for populist indignation against courts and since the decision in the prisoner-voting case of Hirst v United Kingdom in 2005 ((2006) 42 EHRR 41), most of this has been heading out of town, away from the Royal Courts of Justice and towards Strasbourg. True there have been past periods of noisy British scepticism towards the European Court of Human Rights (one thinks in particular of Ireland v UK (1978) 2 EHRR 25 and the Gibraltar decision of McCann v United Kingdom (1996) 21 EHRR 97 holding the UK responsible for the killing of an IRA active service unit) but nothing has been as sustained or as vehement as the head of steam that has been built up over this – it has to be said – relatively minor question of prisoner voting. True the litigant was not ideal from a human rights point of view: an axe-wielding killer celebrating his win with champagne as he pours Youtube abuse on the authorities was something of a low point even in the world of unsavory human rights defendants: And it was unlucky of Strasbourg that they were left holding this particular package when the music stopped – the local courts having deftly avoided trouble by refusing to find any human rights violation when the matter came before them. How the issue has escalated as it has must be a matter for sociologists and political scientists. One of the more remarkable features of the strange times we live in is that the case has produced a myth to which it is own refutation. The myth is that of Strasbourg supremacism: what the European Court of Human Rights says goes. Or as Lord Rodger of Earlsferry famously put it in Secretary of State for the Home Department v AF (No 3) [2010] 2 AC 269 at para 98, ‘Argentoratum locutum: iudicium finitum – Strasbourg has spoken, the case is closed’. But if this were true, prisoners would now be voting. Not only are they not voting; the Supreme Court has itself, in R (Chester) v Secretary of State for Justice; McGeoch (AP) v Lord President of Council [2013] UKSC 67, specifically refused even to issue a declaration of incompatibility to put pressure on the government that they should allow such votes. The obligations under the Council of Europe’s Convention on Human Rights are international not domestic: our legal system does not require their implementation, immediately or indeed ever (see article 46). True adherence to international law is an important matter, one that has many repercussions – the UK might find it harder to tell other countries what to do with regard to human rights; it might find itself in trouble at the Council of Europe; the UK judge at Strasbourg may end up lunching alone; and so on. Importantly for present purposes none of these effects is legal, or more precisely legal in the domestic sense.

The extraordinary way in which our public culture has been mustered to savage the Strasbourg court is one of the dismal wonders of our politically constricted age. That court has rescued the English common law from itself on far more occasions that it has made itself an unnecessary nuisance: the maltreatment of gays purely on account of their sexual orientation (Dudgeon v United Kingdom (1981) 4 EHRR 149); corporal punishment in schools (Campbell and Cosans v United Kingdom [1982] ECHR 1); the inhuman and degrading treatment of internees (Ireland v United Kingdom (1978) 2 EHRR 25); the deliberate shooting of suspected terrorists (McCann v United Kingdom (1996) 21 EHRR 97); draconian contempt laws that prevented campaigning newspapers from exposing wrong (Sunday Times v United Kingdom (1979) 2 EHRR 245); long periods of detention without trial Brogan v United Kingdom (1988) 11 EHRR 117); cruel invasions of privacy (Kaye v Andrew Robertson and Sports Newspapers Ltd [1991] FSR 62) – all unnoticed by the common law’s supposed celebration of individual rights, not leaking into ‘the judicial cerebellum’ so much as being rammed into it by Continental judges in the teeth of domestic opposition. Often this opposition has been led by politicians of course: the annoyance at having executive discretion constrained combines with awareness that the Strasbourg court will not answer back to produce a temptation to play to the gallery that is rarely resisted. But at least politicians have the excuse that they need votes and therefore have to please the Mail, potential UKIP voters and others who for various reasons are disinclined to look honestly at the facts. What excuse do British judges and former judges have for their recent attacks on the Court?

There is a long if not venerable tradition here of British mistrust of what Strasbourg does. The distinguished lawyer F A Mann once gave revealing expression to it in a note in the Law Quarterly Review inveighing against the majority judges in a leading Strasbourg case not on the basis of what they said but on account of the puny countries from which they came: (1979) 95 Law Quarterly Review 348. In the politer 1990s as the chastened judges rebuilt their reputation, such modest recoiling from Strasbourg’s incoherence as there was produced only occasionally expressed judicial puzzlement and a range of tentatively-articulated extra-judicial speeches in favour of incorporating the Convention into UK law and so giving British judges the first say over what it meant, a good example being the late Lord Bingham’s, ‘The European Convention on Human Rights: time to incorporate’ (1993) 109 Law Quarterly Review 390.

Now though we seemed to have entered a new era of vulgarity. Perhaps it was Lord Hoffmann who started this with his famous speech in 2009 to the judicial studies board on the ‘Universality of Human Rights in which he paraded a startlingly ridiculous set of remarks from a dissenting judge on the Strasbourg bench as though they were typical of agreed interventions by a unanimous grand chamber. Lord Judge’s recent interview in Counsel magazine was sufficiently forthright to receive the doubtful accolade of the following Daily Mail headline ‘HUMAN RIGHTS COURT “IS A THREAT TO DEMOCRACY”: EX-LORD CHIEF JUSTICE BLASTS UNELECTED STRASBOURG JUDGES’ There is another fantasy here, that of the neutral judge, the convention that he or she stands above the eddies and flows of the political. No doubt Lord Judge believes that he is making an apolitical point when he writes of the supremacy of parliament and of the need for judges not to get involved in political questions. But saying as much these days is in itself a political intervention. Lord Sumption manoeuvred himself into exactly the same position in his F A Mann lecture lecture on judicial and political decision-making in 2011, shortly before he took up his position as a supreme court judge. His excoriation of the tendency of the Strasbourg court to develop its jurisprudence across all 47 member states in a way which conflicted ‘with some very basic principles on which human societies are organised’ grew out of his belief that the Strasbourg jurisprudence had got out of control, with its ‘large number of derivative sub-principles and rules, addressing the internal arrangements of contracting states in great detail’. But calling for the court to pull back is itself a political intervention. The Conservatives echo this critique when they call for the Strasbourg Court to disown its jurisprudence on the evolving meaning to be accorded rights in the Convention. In doing this they are mimicking the American emphasis on original intent dreamed up by Reagan’s attorney general Ed Meese and supported by the anti-federalists and Christian right as a way of providing scholarly cover for the forced retreat of the US federal government on the one hand and the overturning of the celebrated abortion decision Roe v Wade on the other (In seeming through their arguments to eschew the world of politics both Lord Judge and Lord Sumption are in fact entering that world, their conservative position disguised as neutral by the judicial garb one has just taken off and the other was just about to out on.

A subset of the fantasy of Strasbourg supremacism, encouraged by Lord Rodgers’s ill-advised plunge into Latin, is that Strasbourg’s cases are required to be followed by the British courts.   As even first year law students know, this is simply not the case. The Human Rights Act could not have been clearer in section 2 when it required of the judicial authorities interpreting the Act that they take into account such jurisprudence – no further requirement to (in the English common law sense) ‘follow’ such decisions appears in the Act. Now it is perfectly true that the courts here themselves have tended to support Strasbourg decisions (Lord Bingham’s ‘mirror principle’ in R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323) on the sensible basis that it is wise to keep in tune with a body to which your own litigants (or at least the non-governmental ones) can appeal. Never invariable, that mirror principle has loosened up of late, with the courts treating the Strasbourg menu as if not quite a la carte then at least one from which there is a decent choice, including if needs must a house special grown entirely from British produce: R v Horncastle [2009] UKSC 14, [2010] 2 WLR 47. Strasbourg has on the whole gone along with this, conceding some positions to help keep the peace (as in Al-Khawaja and Tahery v United Kingdom (2012) 54 EHRR 23 (GC)) revisiting its case-law in light of guidance from their lordships, (Animal Defenders v United Kingdom (2013) 57 EHRR 21 (GC)) and even recanting when it has been caught out in foolishness (Z v United Kingdom (2002) 34 EHRR 97). This is what all informed observers call ‘dialogue’ – it is not dictatorship. The Conservative Party’s recent peculiar set of proposals, already referred to, for ‘changing Britain’s human rights law’ was full of invective against the Strasbourg court and this led its authors to conclude that the Human Rights Act needed to go (not Strasbourg, oddly). But why the Human Rights Act? The crime is that all this Strasbourg rubbish (‘problematic jurisprudence’) is getting into our law (‘often being applied’) and this has to stop. But then a bit later the paper volunteers that Strasbourg is ‘creating legal precedent for the UK’. So which is it ‘often’ or ‘always’? The paper appears to believe it is both, simultaneously. If section 2 did not already exist it would be produced as the solution to a problem – Strasbourg supremacy – that is simply not there, or at least not there in our domestic human rights law.

I end with the largest fantasy of all, the fantasy that drives all the others on this little island, or accurately a bit of this little island, and which is the only reason I can find for what would otherwise be incomprehensible. Lord Neuberger has it spot on when he told a Cambridge audience in February this year that ‘[t]he loss of the Empire and the loss of world premier league status has inevitably caused problems to the national psyche’ and that it is therefore understandable that ‘a transformation from a global pre-eminent status to just one of many EU or Council members requires an almost super-human attitudinal adjustment’ It is not one that some have been able to make, especially those, it seems, whose entire education has never required departure from the quads, cloisters and colleges of past glory or any kind of mustering in with that England known to the other ninety per cent. The Conservative part of the government increasingly gives the impression that the Act of Union with Scotland was the beginning of an heroic English age of imperialism to which we can now return, the people cheering from the sidelines as they did when Disraeli paraded Victoria as Empress of India.   Down that route is a provincial backwater peopled by well-educated fools, shouting loudly. No judge, past or present, should be encouraging this fantasy of English exceptionalism, especially now as it gathers such populist steam.

 

Conor Gearty is Director of the Institute of Public Affairs and Professor of Human Rights Law LSE. This is the text of the 36th Corbishley Lecture, held at LSE.

 

Suggested citation: C. Gearty ‘On Fantasy Island: British politics, English judges and the European Convention on Human Rights’ UK Const. L. Blog (13th November 2014) (available at http://ukconstitutionallaw.org)

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Colm O’Cinneide and Kate Malleson: Are quotas for judicial appointments lawful under EU law?

malleson-photo-2010a_ocinneide

In April 2014 Sadiq Khan, Shadow Secretary of State for Justice, asked Karon Monaghan QC and Geoffrey Bindman QC to review the options for a future Labour Government to improve diversity in the judiciary. On November 6th their report, entitled ‘Judicial Diversity: Accelerating change’, was published. Starting from the premise that ‘[t]he near absence of women and Black, Asian and minority ethnic judges in the senior judiciary is no longer tolerable’, it proposes a range of recommendations designed to speed up the glacial pace of change. Perhaps the most controversial of these is for the introduction of a quota system for women and BAME candidates. The report reviews the use of quotas in other UK institutions as well as their use in judicial appointments processes around the world, before addressing the question of whether such quotas would be lawful under EU law. This is a key question: EU law casts a long shadow in this context, as the Monaghan and Bindman report makes clear, given that any legislation enacted in Westminster to give effect to a quota system in the process of judicial appointments must conform to the requirements of EU law.

There are two stages involved in any legal assessment of the proposed quota measures under EU law. The first is whether holding a judicial office is classified as being ‘employed’. If the answer is no, then the question of their legality under EU law does not arise as appointments to judicial office will not fall within its scope of application. If the answer is yes, then the judicial appointments process will qualify as ‘access to employment’ which will bring it within the scope of Article 1 of the Recast Gender Equality Directive 2006/54/EC. This will mean that the use of positive action measures, such as quota systems, in the process of judicial appointment will have to conform to the restrictions on the use of such measures set out in the relevant case-law of the Court of Justice of the EU (CJEU).

In the 2012 case of O’Brien v Ministry of Justice, the CJEU indicated that it was a matter of national law as to whether judges should be classified as being in an employment relationship, but made it clear that their status would have to be ‘substantially different’ from that of employees before the relevant provisions of EU employment law would not apply – in this case, the Directive relating to the treatment of part-time workers. Subsequently, when this case was remitted back to the national courts, the UKSC decided that Recorders were in an employment relationship and therefore the provisions of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 applied. Although Recorders work on a part-time, fee-paid basis and are not permanent judges, the logic of the Supreme Court’s approach in O’Brien would suggest that a similar approach would be applied in general to their full-time, salaried equivalents, who are therefore likely to be classified as being in an employment relationship for the purposes of national and EU employment law.

However, a different conclusion could be reached in respect of Supreme Court Justices, given their particular constitutional role. In many European states, constitutional court judges are not considered to be employees: the view is taken that such a status would be incompatible with their status as holders of a high office of state. Furthermore, as the report makes clear, sensitivity surrounds the issue of whether EU law can or should impact on national constitutional arrangements relating to the status of constitutional courts. These considerations suggest that both the UKSC and the CJEU might be reluctant to hold that the Supreme Court was subject to EU employment law. It would certainly have been very unlikely that members of the Appellate Committee of the House of Lords would have been deemed to be in an employment relationship. The same view could be taken of the Supreme Court given that its role has not significantly changed, despite no longer being structurally part of the legislature. (The interesting question of whether the Supreme Court could legitimately decide whether its own members are employees or not will have to be left to a future blog post, if and when the issue arises).

The current position therefore seems to be that, while O’Brien does not settle this issue definitively, it is likely that members of the judiciary in general will be regarded as ‘employees’ for the purposes of EU law: the status of Supreme Court judges remains less clear. In turn, this means that the provisions of EU gender equality law, in line with the provisions of Article 1 of the Recast Gender Equality Directive 2006/54/EC, would apply to conditions of ‘access’ to that employment, including the judicial selection process.

If so, this gives rise to the question of whether quotas for women and BAME candidates would be lawful within the framework of EU gender equality law. The Monaghan and Bindman report concludes that they would. Given that European law in this context is relatively unsettled and that no cases have been considered by the CJEU specifically on quotas for judicial appointments, some elaboration of the report’s conclusions is required.

The legitimacy of positive action involving preferential treatment of women is well recognised in EU law, as reflected in the provisions of Article 157(4) of the TFEU (formerly Article 141(4) TEU) and Article 3 of the Recast Gender Equality Directive 2006/54/EC.  It is generally accepted that such preferential treatment will be lawful if it is justified and proportionate – i.e. the usual proportionality test is applied. However, the CJEU initially took a restrictive approach in applying the proportionality test in this context, ruling in the case of Kalanke in 1995 that quota systems involving automatic preference for female candidates constituted a violation of the principle of equal treatment as between men and women. In the case of Abrahamsson in 2000, the CJEU similarly ruled that preferential treatment can only be applied to compensate for existing disadvantage as a ‘break factor’ between ‘equally qualified’ candidates, and that an individual merit ranking system has to be initially applied to rank candidates before any automatic preference could be given to members of an underrepresented group. However, this case law has attracted strong academic criticism for imposing excessive constraints on the use of positive action. (See in general C. O’Cinneide, ‘Positive Action and the Limits of the Law’ (2006) Maastricht Journal of European and Comparative Law 351-365.) More recently, the Court has not applied the proportionality test in such a restrictive manner in relation to other situations where women benefited from preferential treatment designed to compensate for established inequalities. For example, in the case of Lommers in 2002, the Court considered that a child care scheme which gave priority to women was compatible with the principle of gender equality, on the basis that the scheme in question was intended to address the under-representation of women.

As such, the legal position in EU law relating to positive action measures designed to redress under-representation of women remains unsettled. The same is true as regards positive action measures directed towards addressing the under-representation of BAME groups: no European case-law exists on this point yet.

However, as noted in the Monaghan and Bindman report, the CJEU in assessing the proportionality of a quota system being used in the UK judicial appointments process is likely to take into account the continued lack of progress on diversity in this context, as evidenced by the recent Council of Europe statistics which show the three UK judiciaries languishing at the bottom of the league table for the proportion of women judges – beaten to the bottom only by Azerbaijan and Armenia. This context makes it more likely that the CJEU would be prepared to uphold a quota scheme as a proportionate response to this ongoing problem, especially given the failure of other less radical policy approaches to address the problem of female and BAME under-representation in the senior ranks of the UK judiciary. It is also arguable that the special constitutional and social importance of the judicial selection process might lead the CJEU to depart from the stricter Abrahamsson approach and to adopt the looser standard of review adopted in Lommers, especially given its preference for non-intervention in national constitutional issues.

To summarise: If judicial selection falls outside the scope of EU law, then it has no effect on any quota system. However, if, as is likely, judicial selection (at least in respect of appointments below the level of the Supreme Court) comes within the scope of EU law, then the legality of the quota system will depend on whether the CJEU adheres to the restrictive approach it adopted in Kalanke and Abrahamsson, or whether it adopts a looser, more accommodating standard of review as it did in Lommers. Given the particular context of the judicial appointments process and the growing trend across Europe to adopt positive action measures to promote greater diversity in public institutions it is likely that gender and BAME quotas for judicial selection in the UK, if carefully designed, will be lawful under EU law.

Colm O’Cinneide is a Reader in Law at University College London.

Kate Malleson is Professor of Law at Queen Mary, University of London

 

Suggested citation: C. O’Cinneide and K. Malleson, ‘Are quotas for judicial appointments lawful under EU law?’ UK Const. L. Blog (12th November 2014) (available at http://ukconstitutionallaw.org)

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