Category Archives: Devolution

Mark Elliott: A “Permanent” Scottish Parliament and the Sovereignty of the UK Parliament: Four Perspectives

MarkThe Report of the Smith Commission for Further Devolution of Powers to the Scottish Parliament has been published. It contains an array of significant proposals concerning the devolution of further authority to the Scottish Parliament. Stepping back from the detail, however, it also contains two — related — proposals that are potentially of constitution significance in bigger-picture terms.

In his foreword, Lord Smith writes:

The Scottish Parliament will be made permanent in UK legislation and given powers over how it is elected and run. The Scottish Government will similarly be made permanent.

In the report itself, these ideas are fleshed out (slightly) in the following terms:

UK legislation will state that the Scottish Parliament and Scottish Government are permanent institutions.

The report goes on to say that:

The Sewel Convention will be put on a statutory footing.

Viewed from a purist legal-constitutional perspective, these statements promise more than they can deliver — but, this post will argue, this does not necessarily diminish their significance.

Can the UK Parliament relinquish its authority?

Saying (as the report does) that UK legislation “will state” that the Scottish Parliament and Government are permanent institutions is not the same as saying (as the foreword does) that the Scottish Parliament “will be made” permanent. An Act of the UK Parliament might say that the Scottish Parliament is permanent, but that will not necessarily make it so. This follows because, at least on an orthodox analysis, the UK Parliament is incapable of legally diminishing its sovereign authority.

The point was well made by Laws LJ in Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), [2003] QB 151. The focus in that case was upon the relationship between EU and UK law, which raised questions about whether the European Communities Act 1972 (“ECA”) was in any sense entrenched, so as to make it capable of prevailing over other, including subsequent, legislation. Laws LJ thought not:

Whatever may be the position elsewhere, the law of England disallows any such assumption. Parliament cannot bind its successors by stipulating against repeal, wholly or partly, of the ECA. It cannot stipulate as to the manner and form of any subsequent legislation. It cannot stipulate against implied repeal any more than it can stipulate against express repeal. Thus there is nothing in the ECA which allows the Court of Justice [of the EU], or any other institutions of the EU, to touch or qualify the conditions of Parliament’s legislative supremacy in the United Kingdom. Not because the legislature chose not to allow it; because by our law it could not allow it. That being so, the legislative and judicial institutions of the EU cannot intrude upon those conditions. The British Parliament has not the authority to authorise any such thing. Being sovereign, it cannot abandon its sovereignty.

Laws LJ went on to suggest that the ECA was a “constitutional statute” and was for that reason immune from implied repeal, but that is a distinct matter (to be considered later). Questions about the status of the Scottish Parliament clearly arise in a context different from that which applied in Thoburn, but they raise comparable fundamental issues. If the UK Parliament were legislate to the effect that the Scottish Parliament “is permanent”, the implication would be that the UK Parliament had become incapable of abolishing the Scottish Parliament. Equally, if the Sewel Convention — which provides that the UK Parliament will not normally legislate on devolved matters absent the consent of the relevant devolved legislature — were “put on a statutory footing”, the implication would be that the UK Parliament was legally disabled from legislating on devolved matters absent such consent.

However, orthodox constitution theory — as the dictum above from Thoburn indicates — suggests that any statements along these lines that were inserted into a UK statute would not be legally binding. Because, “[b]eing sovereign, it cannot abandon its sovereignty”, any provision in legislation purporting to limit the UK Parliament’s capacity to legislate would be ineffective: it would constitute an attempt to do the one thing that a sovereign legislature cannot do.

Viewed, then, through a purist legal-constitutional lens, the promises concerning a “permanent” Scottish Parliament ring rather hollow. However, three alternative perrspectives yield rather different conclusions. The remainder of this post will attempt to do no more than briefly sketch those three alternatives in increasing order of potential legal significance.

Political considerations

The first possibility is that UK legislation providing for a permanent Scottish Parliament and placing the Sewel Convention on a statutory footing would be politically but not legally significant. In other words, they would constitute a crystal-clear commitment on the part of the Westminster Parliament to desist from interfering in Scottish devolved affairs. Importantly, however, on an orthodox legal analysis, this commitment would amount to an undertaking not to exercise sovereign authority that would persist in Westminster, as distinct from something that would detract from that sovereign authority. An analogy may be drawn with section 4 of the Statute of Westminster 1931, which provides that:

No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to a Dominion as part of the law of that Dominion, unless it is expressly declared in that Act that that Dominion has requested, and consented to, the enactment thereof.

The effect of this provision was not to legally disable the UK Parliament, as a matter of UK constitutional law, from legislating for Dominions against their wishes — but, as Lord Denning MR observed in Blackburn v Attorney-General [1971] 1 WLR 1037, ‘Freedom once given cannot be taken away. Legal theory must give way to practical politics.’ A similar point might be made in relation to devolution, its technical legal reversibility being eclipsed by the political difficulty — if not impossibility — of putting the devolution genie back in the bottle.

Contingent entrenchment

Second, it may be possible for a provision in a UK statute that sought to secure the permanence of the Scottish Parliament to be entrenched contingently rather than absolutely. In other words, rather than attempting absolutely to prevent future UK Parliaments from acting inconsistently with such a provision (by abolishing the Scottish Parliament), an attempt might instead be made to stipulate conditions that would have to be fulfilled before the permanence provision could be overridden. For instance, a requirement of a special (e.g. two-thirds rather than simple) majority or a special form of words (e.g. express rather than implied) might be required. However, the possibility of such contingent — or “manner and form” — entrenchment is not firmly established as a matter of UK constitutional law. Some cases — including Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), [2003] QB 151 and Ellen Street Estates v Minister of Health [1934] 1 KB 590 — pour cold water on the idea. Other decisions, however, are more sympathetic, certain of the Law Lords’ speeches in Jackson v Attorney-General [2005] UKHL 56, [2006] 1 AC 262 being cases in point.

If contingent entrenchment were deemed possible, then interesting questions would arise concerning how far this idea might be pressed. Could, for instance, the Westminster Parliament contingently entrench a provision guaranteeing the permanence of the Scottish Parliament on the basis that such a provision could not be overridden or repealed unless a condition requiring the Scottish Parliament’s consent were fulfilled? This would technically amount to contingent entrenchment — it would be a condition capable of being fulfilled, thereby leaving open the theoretical possibility of abolition — but it would amount to a condition so hard to fulfil and so unlikely to be fulfilled as to disclose an effective diminution in Westminster’s authority. This, in turn, raises questions about whether any theory of contingent entrenchment would admit of conditions outwith the control of the Westminster Parliament (compare, e.g., special-majority requirements and requirements concerning referendums or the approval of an external institution).

Constitutional statutes and common-law constitutional values

A third possibility is that the courts might regard a provision stipulating that the Scottish Parliament was sovereign to be a “constitutional” provision. (The courts might instead regard the whole of the UK Act concerned to be a constitutional statute, although, as David Feldman, “The nature and significance of ‘constitutional’ legislation” (2013) 129 LQR 343 shows, the notion of constitution provisions as distinct from statutes makes more sense.) Applying the kind of approach advocated in Thoburn and in R (HS2 Action Alliance) v Secretary of State for Transport [2014] UKSC 3, [2014] 1 WLR 324, this would suggest that the provision in question would enjoy a superior legal status to ordinary statutory provisions. However, at least in its current state of development, the notion of constitutional legislation (or provisions) appears to suppose that any such special status amounts in practice to nothing more radical than immunity from implied repeal. This hardly suggests that characterising the permanence provision as a constitutional one would confer significant legal (as distinct from political) security upon the Scottish Parliament.

However, one of the significant aspects of the analysis in HS2 (about which I have written at greater length here) is that attention was paid to the relationship between constitutional values and statutory constitutional provisions. In HS2, the constitutional fundamentality that was ascribed to Article 9 of the Bill of Rights 1689 was said to derive not from the fact that the Bill of Rights was a constitutional statute, but from the normative significance of the value codified by Article 9. The Supreme Court therefore doubted whether the ECA 1972, notwithstanding that it has been characterized as a constitutional statute, would prevail (absent express provision) over the value codified by Article 9.

Viewed from this perspective, a provision in a UK statute stipulating the Scottish Parliament’s permanence might equally be considered to be a codification of the underlying constitutional value of the autonomy and enduring nature of devolved institutions. Significantly, HS2 contemplates the possibility that not all constitutional values and provisions might be equal, and that some might be deemed to enjoy a deeper level of fundamentality than others. A statutory provision guaranteeing the permanence of the Scottish Parliament might well fall into such a category — and, if it did, it might turn out that the practical consequences of its inclusion in such a category went beyond mere immunity from implied repeal. Whether any constitutional value is so fundamental as to be wholly beyond disturbance by Westminster is, of course, an unresolved matter — but the possibility of such a super-fundamental category of values is of a piece with oft-cited judicial assertions in Jackson to the effect that rule-of-law requirements such as the availability of judicial review may point towards in extremis limitations upon the UK Parliament’s authority.

It is of the essence of our unwritten constitution that we cannot predict with certainty how constitutional crises that test the limits of legislative authority will play out. However, it is fair to say that our courts are sketching a constitutional order that is increasingly normatively rich, and which forms an increasingly hostile environment for an unreconstructed notion of the sovereignty of the Westminster Parliament.  It would be foolish to assert with certainty that if a future UK Parliament were to renege on the settlement proposed by the Smith Commission, it would — as a matter of law — be able straightforwardly to do so. It would, however, be equally foolish to assert that courts would stop in their tracks a UK Parliament that wished to proceed in such a way. Traditional analysis holds that the hard edges are knocked off the legal doctrine of parliamentary sovereignty by means of recourse to political constitutionalism. However, as I have argued elsewhere, the relationship between merely political and more fundamentally constitutional forms of restraint requires further exploration. There are, arguably, points at which the distinctions between legal, political and constitutional forms of restraint begin to break down — and the more fundamental the norm at stake, the greater is the stress under which such distinctions are placed.

Against this background, the proposal to legislate for restraints upon the UK Parliament — so as to attempt to secure the permanence of the Scottish Parliament — is intriguing. One way of understanding the proposal is as a tacit acknowledgment that reliance upon political restraint in Westminster is no longer perceived — from a Scottish perspective — as sufficient, and that the sort of harder, legal dividing lines familiar in federal systems are regarded as necessary. The difficulty is that grafting such an approach onto a system premised upon the sovereignty of a central legislature is far from straightforward. This problem, however, is one that stems from an understanding of the UK constitutional system that may be getting past its sell-by date.

Viewed in this way, the proposals of the Smith Commission harness what might, in time, turn out to have been the dawn of a new era of constitutionalism in the UK: one that is not content to rely purely upon political constitutionalism as a means by which to contain the potential for excess implied by legislative supremacy, but which instead invokes the constitution itself — in potentially legal as well as political guise — as a vehicle for supplying such restraint. It follows that while, from an orthodox legal-constitutional perspective, guarantees as to the Scottish Parliament’s permanence contained in a UK statute would not be worth the paper they were printed on, it should not be taken for granted that that perspective is the right one from which to attempt to gauge the political or legal implications of what is being proposed.

Mark Elliott is Reader in Public Law at the University of Cambridge. He can be found on Twitter as @DrMarkElliott. This post first appeared on Mark’s blog, Public Law For Everyone

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Sionaidh Douglas-Scott: British withdrawal from the EU: an existential threat to the United Kingdom?

Sionaidh-Douglas-Scott-avatar-1409859580-96x96The Conservative party’s proposal to repeal the Human Rights Act (and their proposal’s many faults) has already been well documented. However, as Roger Masterman has already pointed out on this blog, ‘It seems unusual then, that the target of Grayling’s indignation is the supposed denial of supremacy caused by the non-binding influence of decisions of the European Court of Human Rights, rather than the more realistic (though perhaps equally problematic) assertion that legal competence has been ceded in some way to the Court of Justice.’ But the European Union is very much a target of indignation for conservative and other eurosceptics, and David Cameron has promised, if re-elected, an in-out referendum by 2017, if the terms of Britain’s EU membership cannot be renegotiated. With UKIP support gaining in the polls, pressure is growing on other parties to support an EU in-out referendum. There is a realistic prospect that the UK may leave the EU.

There are many arguments that can be made as to why the UK should remain within the EU. This posting addresses just one: the serious constitutional consequences for both the constituent parts of the UK, and the UK as a whole, should there be a ‘Brexit’. Given that the UK has just survived perhaps the most serious threat ever to its constitutional existence, in the form of a very closely run Scottish referendum on independence, and given the fervent and almost desperate nature of the ‘Vow’ made by all three party leaders to accord greater powers to Scotland if necessary to maintain the Union, the risk of such further constitutional instability should be taken seriously.

At first it might seem that Scotland’s ‘No’ vote for independence would lessen the chance of EU secession, given the relatively greater pro-EU vote in Scotland (‘relatively greater’ because UKIP did gain one constituency in the Scottish European parliament elections of 2014). How each constituent part would vote is not certain, but according to 2013 House of Commons figures, 53% of Scots said they would vote to stay in the EU, compared with a third who said they would vote to leave. This was in contrast to attitudes in England, where 50% said they would vote to leave the EU compared with 42% who would vote to stay in. At the last European Parliament elections in May 2014, UKIP gained the largest percentage of votes in the UK overall, with 27.5%, but in Scotland only 10.46% of the vote. Furthermore, EU regional funding tends to benefit Scotland, Wales and Northern Ireland more than it does England. Wales and Northern Ireland are net recipients from the EU Budget, and in particular, Northern Ireland stands to lose significant sums if the UK withdrew from the EU. Likewise, to the extent that the devolved nations have access to EU institutions in areas of devolved competence, they enjoy an international presence that would be difficult to replicate through country-specific diplomatic missions. So there are distinct advantages to be lost by an EU exit.

However, the relatively lower eurosceptic vote in the devolved nations would not make a great impact on an EU in-out referendum overall, given that (according to the Office for National Statistics) the population of the devolved nations eligible to vote is small compared to that in England. How much does this matter? It matters a great deal if the vote in the devolved nations is of a less eurosceptic complexion than the English vote in an EU in-out referendum.

Destabilising devolution

It is with the devolution settlement itself that an EU exit would wreak the most havoc, risking a constitutional crisis. Both the European Convention on Human Rights (ECHR) and EU law are incorporated directly into the devolution statutes in Scotland, Wales and Northern Ireland. For example, section 29(2)(d) of the Scotland Act 1998 (SA), provides that Acts of the Scottish Parliament that are incompatible with EU law or with ECHR rights are ‘not law’. Section 108(6) Government of Wales Act 2006 states that any act of the Welsh Assembly incompatible with EU law or the ECHR, falls outside its competence. Section 24 of the Northern Ireland Act prohibits any legislation contrary to EU or ECHR law.

Therefore, although the Westminster Parliament may repeal the Human Rights Act 1998 or the European Communities Act (ECA) 1972, this would not bring an end to the domestic incorporation of the ECHR or EU law in devolved nations. It would still be necessary to amend the relevant parts of devolution legislation. But this would be no simple matter and could lead to a constitutional crisis. Although the UK Parliament may amend the devolution Acts, the UK government has stated that it will not normally legislate on a devolved matter without the consent of the devolved legislature. This requires a Legislative Consent Motion under the Sewel Convention. However, the devolved legislatures might be reluctant to grant assent, especially as one feature of the ‘Vow’ made to the Scottish electorate was a commitment to entrench the Scottish Parliament’s powers, thus giving legal force to the Sewel Convention. So the need to amend devolution legislation renders a UK EU exit constitutionally highly problematic.

Should devolved nations be able to host separate referenda?

Would it be possible for the devolved nations to demand their own referenda in the event of a Westminster mandated EU in-out referendum? In the frenzied last days before the Scottish independence referendum, there was talk of moves towards a ‘federal’ UK. This does not seem very likely now, and whatever recommendations the Smith Commission will deliver later this year (which are likely to include more financial, welfare and taxation powers for the Scottish Parliament) they are unlikely to include greater autonomy in foreign affairs. However, as many areas of EU competence are devolved matters, and continued Scottish membership of the EU was a concern in the event of Scottish independence, the matter is likely to be of great interest in Scotland. Notably, between the 2015 UK general election and the promised 2017 EU in-out referendum will come another election – the 2016 Scottish parliamentary elections. The SNP may perform well in that election, bolstered by the 45% vote in the independence referendum and progress toward ‘devo max’. In which case, the Edinburgh government – which is generally of a more pro-European and social-democratic hue than Westminster – might call for a new independence referendum if there were a serious prospect of a 2017 referendum leading to a UK EU exit, presenting such a further independence referendum as Scotland’s means of remaining within the EU. And given this change of circumstances they might gain over 50% of the vote. This would not find favour in London, which would almost certainly not accord a repeat referendum the sanction of legitimacy accorded to the 2014 vote. However, regions have been willing to go ahead with referenda even without a constitutional sanction – such as Catalonia this November.

In the face of such a prospect, should a potential EU in-out referendum be required to take on a different constitutional form to past UK-wide referenda? Should a requirement be set for a majority of exit votes in each of the devolution jurisdictions before UK withdrawal is possible? Or perhaps each of the devolved nations should be able to hold its own in-out referendum, and a ‘federal’ standard set whereby UK withdrawal is only possible if a majority of the devolved nations vote to exit? 

Scotland and the sovereignty question

A British exit from the EU is sometimes justified in terms of the maintenance of parliamentary sovereignty, which presently must concede the supremacy of EU law (acknowledged both in ECJ caselaw such as Costa v ENEL, and s 2(4) ECA). However, the Diceyan orthodoxy of parliamentary sovereignty has never held as much weight north of the border. In the 1953 case of MacCormick v Lord Advocate in the Court of Session, the Lord President, Lord Cooper, (a former Conservative and Unionist politician and eminent legal historian) contested the Diceyan orthodoxy thus:

‘The principle of the unlimited sovereignty of parliament is a distinctively English principle which has no counterpart in Scottish constitutional law….Considering that the Union legislation extinguished the parliaments of Scotland and England and replaced them by a new parliament, I have difficulty seeing why it should have been supposed that the new parliament of Great Britain must inherit all the peculiar characteristics of the English parliament but none of the Scottish parliament, as if all that happened in 1707 was that Scottish representatives were admitted to the parliament of England.’

Linda Colley’s well-known work, Britons: Forging the Nation, reminds us that both the British state and the British national identity were ‘forged’ by the Acts of Union of 1707. The United Kingdom is only 300 years old, not an ancient natural phenomenon, and it may be undone. Given that the Union of 1707 brought into being the British state, ought we not give this historical event of the Acts of Union its due as a keystone of the British constitution, rather than the Diceyan mantra of parliamentary sovereignty? In which case, perhaps we should recognise that the British constitution is not simply the English constitution, and that Scottish constitutional principles (and Northern Irish, and even now nascent Welsh – given the recent ‘Welsh Bye-laws case) play their part in a multiple constitutional order, and may be of particular salience at times of crisis or ‘constitutional’ moments, such as the issue of whether to withdraw from the EU. Scottish intellectuals, lawyers and politicians of many different political persuasions stand by an indigenous Scottish tradition of popular sovereignty that is claimed to date back to the Declaration of Arbroath in 1320. They hold that, before the 1707 Act of Union, sovereignty resided in the Scottish people – and that it still does so, in spite of the claims of Diceyan parliamentary sovereignty.

Many Scottish unionist politicians accept the doctrine of Scottish popular sovereignty. It was this doctrine that pervaded the Claim of Right for Scotland in 1989, which was signed by the great majority of Scotland’s MPs and many of the leaders of Scottish civil society. The draft Constitution for an independent Scotland, published earlier his year, stated that ‘the fundamental principle’ that ‘the people are sovereign…resonates throughout Scotland’s history and will be the foundation stone for Scotland as an independent country’.

Therefore, meditation on the entirety of the Union, and its constitutional basis, poses the question of whether, at least in Scotland, the doctrine of popular sovereignty might form the basis of Scotland’s own right to determine whether or not it exits the EU. If Scotland chose to remain, and England to leave, the scope for constitutional crisis would be extreme.

Impact on Ireland and the Northern Ireland peace process

Lastly, the impact on the island of Ireland of a UK exit from the EU should be considered. It could well be source of great instability. Although Ireland itself is clearly a separate state, and has long since left the UK, it is nonetheless in a somewhat different relationship to the UK than the other current 26 members of the EU. Section 2(1) of the Ireland Act 1949 (the British Act of Parliament passed to deal with the consequences of the Irish Republic of Ireland Act 1948) declared that, even though the Republic of Ireland was no longer a British dominion, it would not be treated as a ‘foreign country’ for the purposes of British law. Irish and UK history are much intertwined and, were the UK to exit the EU, it would mean an external border of the EU would run through the island of Ireland. The shared border with the Republic of Ireland has long been of enormous symbolic and practical importance. What would happen to the Common Travel Area between the two islands if the UK exited the EU? Would visa requirements and customs duties be imposed?

The Belfast or ‘Good Friday’ Agreement of 1998, an international treaty signed by the UK and Republic of Ireland, enshrined North-South and East-West co-operation, effected constitutional changes and established cross-border bodies. It includes many provisions concerning EU and ECHR law, and the status of the UK and Ireland as EU member states is woven throughout the Agreement. Indeed, the section entitled ‘Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland’ speaks of ‘close co-operation between (the) countries as friendly neighbours and as partners in the European Union’. The Good Friday Agreement required the British government to incorporate the ECHR into Northern Ireland law. Any amendment through changes to either the Human Rights or Northern Ireland Acts which did not meet the human rights commitments in the agreement would be incompatible with this international treaty. The peace process in Northern Ireland is unfortunately not irreversible, but it has been unforgivably ignored in UK discussion on whether to withdraw from the EU. It is also likely to be ignored in Brussels, where there is some impatience with British demands in any case.

In March 2012, a joint Statement by Taoiseach Enda Kenny and Prime Minister David Cameron set out a programme to reinforce the British-Irish relationship over the next 10 years. It emphasised the importance of shared common membership of the EU for almost forty years and described them as ‘firm supporters of the Single Market’. However, a UK EU exit would have consequences for the future of the Belfast agreement and in particular implications for Anglo-Irish co-operation in dealing with cross-border crime and terrorist activity. To give just one example: the UK and Ireland make frequent use of the European Arrest Warrant (EAW). Figures indicate that since the EAW entered into force, the great majority of requests made by Northern Ireland for surrender of persons have been to Ireland. Prior to the introduction of the EAW, a number of European and domestic measures in the UK and Ireland regulated extradition proceedings, and resurrecting these would be a painful process, fraught with difficulties and uncertainties and potential for endless litigation. While the EAW has not always functioned ideally, a return to bi-lateral extradition conventions and other measures would be very undesirable. (Although the UK’s current plans are to exercise a block opt-out from over 130 EU Justice and Home Affairs measures, the apparent intention is to opt back in to the EAW immediately).

In conclusion, a British exit from the EU risks undermining the very self-determination and national sovereignty that its adherents believe it will bring about. This is because it risks shattering the fragile balance and stability of the UK by threatening the peace settlement in Northern Ireland and raises the possibility of a further independence referendum in Scotland. Surely such constitutional risks are not to be taken on lightly? But at present, there is little indication that anyone calling for an EU exit is giving them much thought. 

Sionaidh Douglas-Scott is Professor of European and Human Rights Law at Oxford University.

 

(Suggested Citation: S. Douglas-Scott, ‘British withdrawal from the EU: an existential threat to the United Kingdom?’ U.K. Const. L. Blog (13th October 2014) (available at http://ukconstitutionallaw.org).

 

 

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Mark Elliott: Scotland has voted “no”. What next for the UK constitution?

MarkAfter a very long — and at times electrifying — campaign, a modest but decisive majority of those who participated in the referendum on Scottish independence have voted “no”. In one sense, this is the end of the process — even if, bearing in mind the main UK parties’ still-to-be-fulfilled promises about further devolution, it is only the beginning of the end. In another sense, however, it might turn out to be only the end of the beginning.

Had Scotland voted “yes”, this would have represented a constitutional shock of seismic proportions, and would quite conceivably have resulted in major constitutional changes in the remainder of the UK. It is less certain that such changes will follow the “no” vote. Nevertheless, it is likely that the “no” vote will leave at least some sort of — and potentially a very significant — constitutional legacy thanks to the conferral upon the Scottish Parliament of the additional powers promised by the main UK parties during the final weeks of the independence campaign.

It is not, however, obvious that the changes provoked by the referendum will — or should — be confined to the beefing up of the existing devolution system. As the debate moves on from the falsely binary form — independence or Union? — it took during the campaign, a more searching and granular debate can and will succeed it. (“Falsely” binary because, as I have argued before, both independence and Union are highly catholic concepts that bear a range of meanings and are capable of shading into one another.) That debate will concern not the apparently extreme options that were on offer to the people of Scotland, but the constitutional smorgasbord of possibilities that arise when we consider what kind of Union should exist, as we move forward, between England, Northern Ireland, Scotland and Wales.

Federalism?

The obvious counterpoint to the present system is a federal one. Some — including Lady Hale JSC — have gone so far as to argue that the UK is already a federal system. This is incorrect as a matter of technical constitutional law, since the principal hallmarks of a federal system are absent from the UK. The system of devolution is asymmetrical, with different parts of the UK having different types and amounts of power (and, in England’s case, none); the relationship between the central government and each of the four home nations is different; and the legal power vested in devolved institutions is insecure in the sense that it flows from UK legislation that remains within the legal control of the Westminster Parliament, as distinct from being enshrined in a written constitution that is immune from unilateral amendment by a single institution.

However, recognising that the UK does not conform to the technical paradigm of the federal model gets us only so far — not least because, like independence and Union, federalism is a concept whose elasticity tells against over-emphasis of technicality. Demonstrating an admirable grasp of such matters, former Prime Minister Gordon Brown, in an article in the New Statesman in June 2014, points out that the UK’s constitutional architecture increasingly tends towards, even though it does not fully conform to, a federal model. For example: in theory, the present system depends upon the Westminster Parliament’s ongoing acquiescence in the autonomy of devolved institutions, because, in theory, Westminster could unilaterally override legislation enacted by — or even unilaterally change, diminish or abolish the powers of — such institutions. However, the theoretical position described by the doctrine of the sovereignty of the Westminster Parliament is radically transformed when viewed through the prism of political reality. From this perspective, the true measure of constitutional security enjoyed by devolved institutions in the UK is comparable to that which is enjoyed by their counterparts operating elsewhere under federal arrangements.

Yet for all that the current arrangements may disclose traces of federalism, they also remain clearly distinguishable from that model. Its adoption would entail major constitutional innovation, bearing in mind that the vast majority of the country — i.e. England — is currently exempt entirely from the devolution scheme. A genuinely federal model would involve the creation of exclusively English institutions sitting — alongside their equivalents in the other three home nations — under the umbrella of pan-UK federal institutions. This would represent an enormous constitutional change; and while the scale of that change is not in itself a good reason for rejecting it, such a fundamental alteration to the constitutional fabric ought not to be undertaken lightly.

Whether a federal system in the UK would be appropriate must be considered holistically. It would be blinkered to advocate its adoption merely because it would be in the perceived interests of one or some — as opposed to all — parts of the country. By definition, a federal model would be all-encompassing, and would change the basis of the relationship between all four home nations, as well as the relationship between those nations and central institutions of the UK state. But in spite — or perhaps because — of such radical implications, talk of federalism is on the rise as we emerge, blinking, from the Scottish independence debate.

This is likely so for two reasons. From the perspective of the devolved nations, federalism offers a degree of lock-in to the decentralisation of power which outstrips that which can be supplied by mere devolution. And although, as noted above, the constitutional security enjoyed by devolved institutions is considerable under the current system, a federal model would (among other things) supply greater and more-formal guarantees concerning both the balance of power and (just as importantly) the process by which any further alterations to that balance would fall be negotiated and secured. Meanwhile, from the perspective of England, federalism offers the prospect of a form of “home rule” that would address concerns about the increasingly anomalistic lopsidedness of the existing constitutional architecture. Viewed in this way, a shift to a federal model might facilitate the containment of English nationalist tendencies, which are certain to be awakened in the aftermath of the Scottish independence debate.

England

The position of England cannot be considered in isolation — any change to its position would necessarily have implications for the situation of the other home nations — but it is increasingly obvious that it must be confronted head-on. England has long remained (as Richard Rawlings pithily puts it) “the spectre at the [devolution] feast” because its sheer political, numerical and economic weight has generally been judged to exempt it from the case in favour of devolution. A very large part of that case has always been that Scotland, Wales and Northern Ireland should be afforded an opportunity to move out of the shadow cast by England by virtue of its size, thereby allowing those parts of the country to live out their distinct political, cultural and economic identities. (There are, it goes without saying, other layers of complexity that apply in the particular case of Northern Ireland.)

On this view, to propose the extension of the devolution settlement to England would be nonsensical: it hardly needs to step away from its own shadow. However, the position is surely more complex than this. Even if the initial impetus for devolution is understood in the way sketched above, it does not follow that — now that there is devolution elsewhere — devolution remains inapposite in England. It is one thing to argue that the arguments forming the initial impetus for devolution had particular purchase in relation to the three smaller home nations; it is another thing to argue that the inapplicability of those arguments to England ought permanently to exclude it from any recognition within the devolution settlement. What, then, might be the positive arguments in favour of revisiting England’s position? Two are particularly pertinent.

The first argument concerns fairness; it is an old one, but it is no less compelling for that. The so-called West Lothian problem — which concerns the capacity of Westminster MPs representing non-English constituencies to legislate on matters affecting only England — is an increasingly pressing one. At its heart lies a basic unfairness stemming from an absence of reciprocity: while English MPs have renounced involvement in whole swathes of devolved matters, MPs representing constituencies located in devolved nations remain capable of influencing, sometimes decisively, the passage of legislation affecting only England.

Moreover, the electoral-college function served by the Westminster Parliament — its political composition determines which party or parties form the UK Government — means that the West Lothian problem is capable of distorting the political make-up of what is, for many purposes, the English government. Indeed, in 2010, the Conservative Party could comfortably have formed a single-party majority government had only English constituencies been taken into account.

It was always only matter of time before this issue is transformed from one that concerns constitutional anoraks into one that impinges significantly upon popular consciousness and stokes resentment. And that time has very likely now arrived. As the competence of devolved institutions expands — resulting in commensurate diminishment of Westminster’s involvement in matters affecting the devolved nations — so the anomalistic nature of the involvement of MPs from outside England in purely English affairs becomes more glaring. Indeed, it is highly unlikely that promises of further powers for Edinburgh will be politically deliverable unless accompanied by a resolution of the West Lothian problem.

The second argument concerns identity. One of the purposes of devolution is to acknowledge and to give institutional life to differential national identities within the UK. Do existing arrangements adequately accommodate this need as it pertains to England? One response to this question is (as mentioned above) to argue that English national identity receives adequate expression thanks to the size of England coupled with its (ambivalent) representation within the pan-UK Parliament and Government. However, whether this is so depends, at least in part, on how well UK institutions are able to perform their secondary function as English institutions (a question that takes us back, at least in part, to the West Lothian problem). A further issue, however, is whether the focus of this debate should be an undifferentiated English identity or multiple English identities — and this, in turn, invites questions about the extent to which we should be concerned with England’s place in the Union, and the extent to which we should instead be concerned with the place of English regions within England.  A complex set of issues — encompassing not only devolution to but also devolution within England — therefore arises.

Big-bang constitutionalism — or a typically British response?

Where, then, does this leave us? A dramatic response would be a form of “big-bang constitutionalism” involving a fundamental rethink about how the constitution works, how the four home nations relate to one another, how they relate to the UK tier of government, and where and how more-local levels of government should fit in.

The upshot might be a genuinely federal model involving the creation of an English Parliament and an English Government invested with powers similar to those wielded in Edinburgh, coupled with confining the Westminster Parliament and the UK Government to matters that need to be dealt with on a pan-UK basis. The adoption of such a system would necessarily entail the enactment of a written constitution enjoying a hierarchically superior legal status, so as to render the balance of power between the different tiers of authority constitutionally secure and impervious to unilateral disturbance — the absence of such characteristics being incompatible with a federal model. But while a “federal” system is increasingly in the contemplation of those arguing the case for Scotland to remain a UK with a reimagined constitution, it is not at all clear that the language of federalism is being used in a technical sense as opposed to being a rhetorical flourish. It is also widely argued that a truly, technically federal system in the UK would be highly problematic given that one of the four sub-federal units, i.e. England, would be so large and dominant, accounting for around 85% of the population. As Professor Vernon Bogdanor recently pointed out in The Times (£):

there is no federal system in the world in which one unit represents more than 80 per cent of the population. The nearest equivalent is Canada, where 35 per cent of the population live in Ontario. Federations in which the largest unit dominated, such as the USSR, Czechoslovakia and Yugoslavia, have not been successful.

A second possibility would be to roll out devolution to England, too. This would stop short of a federal model, since the new English (like the existing devolved) institutions would be creatures of the Westminster Parliament, lacking the constitutional security inherent in federalism. Such a system would also remain distinguishable from federalism because the devolved institutions in each part of the country would continue to wield different types and amounts of authority. As such, a system encompassing devolution in England would — by definition — not amount to full-blooded adoption of a federal system.

It would, however, represent a major constitutional change — and, as such, it would run up against much the same problem as the one cited by Bogdanor above: namely, England would acquire a distinctive institutional machinery that would (on the argument adopted by Bogdanor and others) risk destablishing the Union thanks to England’s relative size. We should not, however, adopt this argument unthinkingly, given the position at which we have arrived today. In its present condition, the Union is hardly in a particularly stable condition. It is therefore at least worth balancing any risk of destablisation against the possibility that creating English institutions might in fact exert a stablising influence, by enabling English nationalist impulses — which, as surely as night follows day, will be ignited by perceptions that Scotland is being accorded preferential treatment through the devolution of additional powers — to be accommodated within the Union.

A third possibility — and by far the most likely one, bearing in mind the Prime Minister’s statement of this morning — is an incremental, as distinct from a big-bang, approach. Such an approach would be of a piece with the incrementalist, pragmatic tradition that is arguably the defining characteristic of British constitutionalism. This tradition treats constitutional reform as an ongoing process — one that addresses challenges as they arise, rather than undertaking holistic reimaginings of the system. If this tradition prevails, then a Scottish “no” vote — and the associated conferral upon Scotland of additional powers — will likely trigger a series of consequences.

First, the possibility of conferring further powers upon devolved institutions elsewhere in the UK will arise. If Scotland is given additional powers in the aftermath of the “no” vote, it is inevitable that Northern Ireland and Wales will agitate for equivalent treatment.

Second, the West Lothian problem will be confronted, whether in the way proposed by the McKay Commission or otherwise, whilst stopping short of the more-radical option of creating wholly distinct (either federal or devolved) English institutions. Of course, as those who have wrestled with the West Lothian problem well know, there are no easy answers to it. Even curtailing the capacity of non-English MPs to influence English law is not a magic bullet, not least because this creates a further problem known as the “shifting majority”, the difficulty being that an administration formed from a party with a pan-UK majority would be unable to secure its English legislative programme if it were to lack a majority of English MPs. Indeed, the shifting-majority problem is a good illustration of the problems invited by piecemeal, as opposed to holistic, constitutional reform: pull at one loose thread, and a wider unravelling may follow.

Once — as, at some point, there inevitably will be — a UK government that commands a majority in the House of Commons thanks only to the ballast accorded by MPs from outside England, this problem will become all to apparent. It will strike at the heart of the Westminster model, according to which the government of the day commands — and must command — a majority in the House. In contrast, once the West Lothian Question is resolved, the possibility arises of a UK  government being incapable of securing a majority in the House of Commons on the vast majority of the — English — legislative business transacted there. While, therefore, the notion of “English votes for English laws” may sound as modest as it is sensible, it opens up a new can of worms that may be hard to contain. In particular, if the resolution of the West Lothian Question results in a de facto English Parliament within the Westminster Parliament, it will be hard to resist some degree of reform on the executive plane. The logic of an (effectively) English Parliament may, in other words, dictate the establishment of (in some form) an English government. A real possibility, therefore, is that tackling the West Lothian Question will — unintentionally — turn out to be the mere precursor to more far-reaching institutional reform, the logical endpoint of which is something more closely akin to English devolution of full federalism.

Third, even if reticence around pan-England institutions closes off discussion about devolution to England, it is likely that greater attention will be given to devolution within England: that is, devolution not to all-England institutions but to regional English institutions. Indeed, Nick Clegg and David Miliband have already said as much. Such proposals fell spectacularly flat when proposed in north-east England a decade ago, but that is not to say that different proposals would also fail. However, whether devolution within (rather than to) England is a fitting response to the challenges arising from the Scottish referendum is another question. The answer to it turns on (among other things) the prevailing sense (or senses) of belonging that operate in England: do those living in England identify with — and wish to be represented by — institutions that reflect an undifferentiated notion of Englishness, or would they identify more readily  with institutions standing for particular sub-strands of English identity?

Fourth, the constitutional position of devolved institutions in Scotland, Wales and Northern Ireland will become increasingly entrenched — not by dint of legal security wrought through the adoption of a technically federal model and the disavowal of Westminster’s sovereignty which that would entail — but thanks to the ongoing solidification of constitutional conventions that render unilateral interference by London in devolved affairs every bit as inconceivable as central incursions into local matters within a federal system.

These incremental steps would not amount to wholesale constitutional reform, but they form part of a narrative that it has been possible to discern for some time: of a system that is moving irrevocably away from the centralist model that was once said to characterise the UK constitution, and towards a system that, while not federal in the classical sense, is manifestly not unitary in nature.

Just as it does not now, so the UK constitution would not, were these things to come to pass, conform to any particular, identifiable model. It would not, for instance, be neatly characterisable as a federal system; nor could it be described as a unitary state. Rather, the constitution would remain — as it has been for centuries — messy and incomparable. But these characteristics are not necessarily negative ones. Untidiness is a price that is arguably worth paying for a system that exhibits a degree of flexibility, albeit that the practically irreversible dispersal of power that devolution is accomplishing inserts brakes upon that flexibility which are novel in this country. Nor is uniqueness necessarily something to be disparaged. That the UK constitution compares to no other should not inevitably be taken to mean that there is something defective about it. Rather, it is testament to the uniqueness of our epic constitutional story. The “no” vote in Scotland means that — at least for the foreseeable future — that story will endure. Nevertheless, it is hard to deny that — in ways that are, in the immediate aftermath of the referendum, difficult to forecast with absolute certainty — the “no” vote will be shown by history to have marked a profound turning-point in that story.

Mark Elliott is a Reader in Public Law at the University of Cambridge. This post was first published on his blog, Public Law for Everyone. Mark can be found on Twitter as @DrMarkElliott.

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Ann Sherlock: Supreme Court ruling on Welsh legislation.

AnnOn 9 July 2014, the Supreme Court delivered its unanimous ruling that the Agricultural Sector (Wales) Bill was within the legislative competence of the National Assembly for Wales.

The Bill had been referred to the Supreme Court in August 2013 by the Attorney General for England and Wales under section 112(1) of the Government of Wales Act 2006 (hereafter GWA 2006). This provision, whose equivalents in the Scottish and Northern Irish devolution legislation have yet to be used, allows for the referral of a Bill passed by the Assembly if the Attorney General or the Counsel General, the Welsh Government’s law officer, considers that it goes beyond the Assembly’s legislative competence.

This is the second occasion on which a Bill has been referred: the first concerned the Local Government Byelaws (Wales) Bill. The Attorney General argued that the Bill exceeded the Assembly’s competence in that it flouted a general restriction on the Assembly’s competence by removing or modifying a function of a Minister of the Crown. In the event, the Supreme Court ruled unanimously that, while the Bill did remove some of the Secretary of State’s functions, that removal was saved by the exception in the GWA 2006 which permits the removal of a function as long as it is ‘incidental to, or consequential on, any other provision contained in the Act of the Assembly.’ In the case of the Agricultural Sector (Wales) Bill, the issue related to whether the legislation went outside the subject areas in which the Assembly has legislative competence.

The Assembly’s legislative competence

As will be known, unlike in Scotland and Northern Ireland where all power is devolved unless expressly reserved (or excepted) to the UK Parliament, the GWA 2006 uses a conferred powers model under which the Assembly may legislate only on those subjects enumerated in the Act. Since 2011, those subjects are set out in Schedule 7 of the GWA 2006. Section 108(4) of that Act provides that an Assembly Act will be within its competence if ‘it relates to one or more of the subjects listed under any of the headings in Part 1 of Schedule 7’ and does not fall within any of the exceptions set out under any of the headings in that Part of the Schedule. (Additional limits on competence, such as those requiring compatibility with EU law and the ‘Convention rights’, were not relevant here.) Section 108(7) of the GWA 2006 states that the meaning of the term ‘relates to’ is to be ‘determined by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances.’

The Bill under review

The Agricultural Sector (Wales) Bill was passed in order to provide for a scheme to regulate agricultural wages in Wales following the abolition of the Agricultural Wages Board for England and Wales under the (UK) Enterprise and Regulatory Reform Act 2013. Until its demise, the Agricultural Wages Board set minimum wages for workers employed in agriculture, and other terms and conditions of employment. The Welsh Government wished to retain a system for regulating agricultural wages within Wales and sought to do this in the legislation under review. In general terms, the Bill preserved a statutory regime for workers in the agriculture sector which acknowledged the distinctiveness of this sector, and sought to safeguard a succession of skilled workers, with provisions for apprentices and trainees. It preserved the level of statutory protections in the Agricultural Wages Order of 2012 which, without the provision of this Bill, would have been revoked from October 2013. That Order recognised different categories of worker based on qualifications, competence, experience and levels of responsibility: all of these grades were above the current national minimum wage. The Bill provided for the establishment of an Agricultural Advisory Panel for Wales which would carry out similar but modified functions to those undertaken by the Agricultural Wages Board.

The Attorney General questioned the competence of the Assembly to make this legislation on the basis that it dealt with employment matters and industrial relations rather than agriculture. The Counsel General submitted that the Bill related to agriculture and on that basis came within the Assembly’s legislative competence.

The Court’s ruling

In reaching its decision, a number of matters to which the Attorney General referred the Court were ruled to be irrelevant to the interpretation of Schedule 7. The Court held that a ministerial statement in Parliament regarding the purpose of the GWA 2006, as being to ‘deepen’ rather than to ‘broaden’ devolution, was too general and ambiguous to be of assistance in interpreting the GWA. It also ruled that it would be inappropriate to consider correspondence which took place prior to the introduction of the Government of Wales Bill in 2005 between the Wales Office, the Welsh Government and Parliamentary Counsel: this correspondence was said to set out the views of the two executives on the scope of the subject of ‘agriculture’ and whether it should include specific references to competence in relation to the Agricultural Wages Board. Since this was correspondence which was never referred to in Parliament or made public, the Court held that it would be inconsistent with transparency and the democratic process to take it into account. Finally, the Court held that the fact that a power had not been transferred under the first or second phases of devolution was irrelevant to the position pertaining under the third, and current, phase of devolution for Wales.

As to how the GWA 2006 should be interpreted, the Court referred to the general principles developed in the previous Welsh Byelaws case, namely that:

  1. whether the provision was outside the Assembly’s competence must be determined by the rules laid down in section 108 and Schedule 7;
  2. the GWA 2006 should be interpreted in the same way as any other statute and its description as ‘an Act of great constitutional significance’ could not be taken, in itself, as a guide to its interpretation;
  3. when enacting the GWA 2006, ‘[t]he aim was to achieve a constitutional settlement’ and it was proper to have regard to that purpose in determining the meaning of words.

The Court examined the subjects listed in Schedule 7, noting the enumeration of agriculture as an area of competence and the exceptions to that particular subject (which relate to hunting with dogs, regulation of experiments on animals, import and export controls and regulation of the movement of animals, and authorisations of veterinary medicines and medicinal products.)   Since an exception will be relevant wherever it appears in Schedule 7, the Court examined the other subject headings and the exceptions listed under each of these. The Court noted the areas listed under the heading ‘Economic development’ (which includes economic regeneration and development and promotion of business and competiveness as areas of competence) and the exceptions listed under that heading. In particular, it noted that occupational and personal pension schemes were exceptions to the Assembly’s competence: this exception related to specific aspects of employment but Schedule 7 did not include any general exception in respect of employment or remuneration of employees.

As to the meaning of ‘agriculture’, which is not defined in the GWA 2006, the Court concluded that ‘agriculture’ could not be intended to refer only to ‘the cultivation of the soil or the rearing of livestock’. Rather, it needed to be understood ‘in a broader sense as designating the industry or economic activity of agriculture in all its aspects, including the business and other constituent elements of that industry’. This view was supported by the broad definition that had been given in Schedule 5 to the ‘red meat industry’, the only area of agriculture in which the Assembly had legislative competence prior to 2011.

With agriculture thus defined, the Court had little difficulty in concluding that the Bill was ‘aptly classified’ as relating to agriculture: ‘the purpose and effect of such a regime are to operate on the economic activity of agriculture by promoting and protecting the agricultural industry in Wales.’ However, the Attorney General submitted that the Bill would have an effect on employment and industrial relations, neither of which was listed as a subject on which the Assembly had legislative competence. However, the Court observed that neither were these matters specified anywhere in the Act as exceptions to the Assembly’s competence: as noted earlier, certain aspects of employment are listed as exceptions but in the Court’s view the specifying of these particular aspects suggested that there was no intention to create a more general limitation on the Assembly’s competence.

The Court accepted the Attorney General’s submission that the Bill might be characterised as relating to employment and industrial relations. This made it necessary to consider whether a Bill relating to a listed area of competence might still be regarded as falling outside competence if it also related to an area which was not listed as devolved. The Court considered that this issue would not arise very frequently given the relatively extensive list of exceptions set out in Schedule 7: this case arose because, despite not being devolved, employment and industrial relations were not stated to be exceptions to those areas which were explicitly devolved.

The crux of the Attorney General’s argument was that, in reality, this Bill did not relate to agriculture but to employment and industrial relations and should be characterised in that way. He contended that the Court should determine the ‘real’ purpose and objective effect of the legislation. The Court refused. It accepted that, as in this case, there might be more than one way of characterising the purpose and effect of a Bill: a Bill establishing a scheme for regulating agricultural wages could ‘in principle reasonably be classified either as relating to agriculture or as relating to employment and industrial relations. Which classification is the more apt depends on the purpose for which the classification is being carried out, and on the classifactory scheme which has to be employed.’ In the Court’s view, the rules in section 108 and Schedule 7 had to be interpreted according to the ordinary meaning of the words used: doing so would achieve a ‘coherent, stable and workable outcome’. In most cases, an explicit exception to a devolved subject area would resolve a question about competence. However, when, as here, no exception to the devolved subject was stated, section 108 still provided the test: provided that a Bill ‘fairly and realistically’ satisfied the test set out in section 108(4) and (7) and did not fall within an exception, it came within the Assembly’s competence. It did not matter that it might also be capable of being classified as relating to a subject which had not been devolved, as long as the latter had not been explicitly excepted. To agree to the Attorney General’s submission would be to add exceptions to those specified in the GWA 2006 and would give rise to uncertainty and to scheme that was ‘neither stable nor workable.’ Accordingly, a Bill which undoubtedly related to a devolved subject would be within the Assembly’s competence even if it could also be characterised as a Bill relating to a non-devolved matter which was not explicitly excepted in the GWA 2006.

General comments

The ruling in this case makes a significant clarification in relation to the competence of the Assembly. The Supreme Court sets out a straightforward approach to determining whether there is competence, which is grounded in the terms of the GWA 2006: as long as a Bill ‘fairly and realistically’ relates to a subject which is listed in Schedule 7, this being determined by reference to its effect and purpose, it will be within the Assembly’s competence unless it falls within an exception listed in Schedule 7 or elsewhere in the Act.

While most cases will be determined by the express grants and exceptions in Schedule 7, there will be other cases where there is less certainty. One such case would arise if the Assembly were to enact legislation providing for a general prohibition on smacking children and young people, by removing the defence of ‘reasonable chastisement’: this was a commitment of earlier Welsh Governments but was not included in the Social Services and Well-being (Wales) Act 2014 and when the issue was raised by the Assembly’s Health and Social Care Committee during the passage of the Bill (18 April 2013), the Deputy Minister expressed concerns that if such a prohibition were included in the Bill, there would be a challenge to the legislation from the UK Government regarding the Assembly’s competence ( Under Schedule 7 is it is clear that that the Assembly has competence in relation to protecting and promoting the well-being of children and young people. Criminal law on the other hand is not listed among the devolved subjects. However, section 108(5) provides that an Act will be within the Assembly’s competence if it is to enforce a provision of legislation that is within the Assembly’s competence or is otherwise incidental or consequential on such a provision.) The Welsh Government has stated that it has no plans to legislate on this issue during the current Assembly term: if such legislation is put forward at a later stage, we can expect another reference to the Supreme Court and a further clarification of the Assembly’s competence.

There is one further reference to the Supreme Court in the pipeline, concerning the Recovery of Medical Costs for Asbestos Diseases (Wales) Bill. This Bill allows for the recovery of costs incurred by the NHS in Wales in providing care and treatment to victims of an asbestos-related disease. Interestingly, this Bill has been referred by the Welsh Government’s own law officer, the Counsel General. His statement to the Assembly made clear that he considered the Bill to be within the Assembly’s competence but, aware of the fact that the insurance industry had disputed this throughout the Bill’s passage, wished the matter to be determined by the Supreme Court before its entry into force rather than waiting for what he considered an inevitable challenge afterwards which would be more time-consuming and more expensive. Were the Bill to be found to be outside the Assembly’s competence, this ‘pre-emptive challenge’ avoids the possible need for unpicking transactions made under it. The Counsel General considered it ‘very unlikely’ that such home-grown references would be made very often, although he was reluctant to describe this approach as ‘exceptional’.

While many in Wales consider that a move to a reserved powers model would greatly improve the clarity of the devolution settlement for Wales, some disputes will arise whatever the model. Nonetheless, the particular conferred powers model in Wales with its very specific grants and exceptions, and, as in this case, issues which are not mentioned explicitly as exceptions to devolved subjects, does not help. Accordingly, the recommendation in the Silk Part 2 Report for a reserved powers model was generally welcomed in Wales. However, the current arrangements are likely to be in place for some time still – even if the UK Government were to follow the Silk recommendations, the Silk report does not envisage an Assembly operating under the new system until 2021. In the meantime, and for those disputes which concern ‘borderline’ areas under any model, the clarification provided by the Supreme Court is valuable in improving the workability of the current arrangements.

 

Ann Sherlock, Centre for Welsh Legal Affairs, Aberystwyth University

 

(Suggested citation: Ann Sherlock, ‘Supreme Court ruling on Welsh legislation’ U. K. Const. L. Blog (30th July 2014) (available at: http://ukconstitutionallaw.org/)

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Donal Coffey: Accidental Entrenchment and the Scottish Independence Bill?

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

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

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

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

Article 3 states as follows:

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

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

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

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

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

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

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

 

Donal Coffey is a Senior Lecturer at the University of Portsmouth

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

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Merris Amos: Scotland, Independence, and Human Rights

Merris Amos.jpgIn its weighty tome, Scotland’s Future, the Scottish Government promises that at its heart, an independent Scotland will have “the respect, protection and promotion of equality and human rights.” Furthermore, this will not be just an empty gesture but will be “enshrined in a written constitution to bind the institutions of the state and protect individuals and communities from abuses of power.” The promise is also made that as an independent state, Scotland will live up to its international obligations on equality and human rights. Furthermore, protections already enjoyed will continue in a written constitution. These will include the rights contained in the European Convention on Human Rights (ECHR) but other rights will also be considered for inclusion. Specifically mentioned are the rights contained in the UN Convention on the Rights of the Child and principles designed to “deliver greater equality and social justice.” Any new rights or future changes will be developed in “full consultation with the people of Scotland”. It is also promised that Scotland will continue to have its own human rights body.

If the intention is to encourage a “yes” vote from those basing their vote for or against Scotland’s independence on human rights protection alone, this is a very good start. Leaders of the major political parties in the rest of the UK find it difficult to mention the words “human rights” let alone make promises to improve the legal protection of human rights or explore the possibility of adding new rights to those already protected by the Human Rights Act (HRA). Officially, the most recent pronouncement was from the Commission on a Bill of Rights which reported in 2013. Unable to agree on much, a majority of the Commission concluded that there was a strong argument in favour of a UK Bill of Rights which would build on all of the UK’s obligations under the ECHR and provide no less protection than was contained in the HRA. However, a different majority concluded that socio-economic rights were not something that should be included and that the present declaration of incompatibility contained in section 4 of the HRA should be retained as “there was no desire for conferring on courts a power to strike down inconsistent Acts of Parliament.” There has been very little progress on human rights law reform since.

By contrast, whilst the details are limited, the Scottish Government’s promises about human rights would address at least three of the problems with the current state of legal protection of human rights in the UK which the Commission on a Bill of Rights failed to do. First, as the Scottish Government itself recognised, whilst Scotland’s current equality and human rights framework is strong, that framework’s future cannot be guaranteed under current constitutional arrangements. The same goes for the rest of the UK. Once campaigning gets under way for the 2015 UK general election, it is likely that the repeal of the HRA will once again be a feature of the Conservative Party’s campaign as it was for the 2010 general election. Including human rights protection in a written constitution offers much more effective protection from the political winds of change than that offered by a mere Act of Parliament. Although it is likely that politicians would continue to criticise politically unpalatable judgments, such as those concerning prisoner voting, such criticism would be unlikely to be accompanied by promises to repeal or amend the constitution, particularly if the new constitution occupied a special place in the hearts and minds of the Scottish people. The experience of other countries demonstrates that including human rights protection as a key part of a written constitution also improves knowledge of and respect for human rights law, particularly if changes to present arrangements are developed in full consultation with the people of Scotland.

Second, whilst the details are not clear, it is likely that a written constitution containing human rights protection would mean that the legislation of the new independent Scottish Parliament would be vulnerable to legal challenge in the courts were it to be incompatible with human rights law. Whilst under the Scotland Act 1998 this is the situation at present in relation to the devolved legislation of the Scottish Parliament, it is not the situation in respect of the laws of the Westminster Parliament. Under section 4 of the HRA all a court can do is issue a declaration of incompatibility and wait for government, and Parliament, to change the law with all the delay and uncertainty that this entails. And finally, given the traditionally strong commitment to social justice in Scotland and willingness to include in the written constitution rights additional to those in the ECHR such as children’s rights and principles designed to “deliver greater equality and social justice”, it is likely that by contrast to the rest of the UK, human rights protection in an independent Scotland would extend to justiciable economic, social and possibly cultural rights. As appreciated during the lengthy process towards a Bill of Rights for Northern Ireland, often such rights have a more concrete meaning for people than civil and political rights and can help to muster support for human rights law generally whilst providing much needed protection for vulnerable individuals in an era of growing inequality.

Involving the people of Scotland in the future of human rights law, entrenching the outcome in a written constitution to which the legislature was subject, extending protection to economic, social, cultural and other human rights and support for a strong independent human rights commission would undoubtedly place an independent Scotland in the leading position on the protection of human rights when compared to the remaining countries of the United Kingdom. Were the HRA to be repealed following the next general election, the comparison would be even starker. But before planning a move to Scotland, it is important to be realistic about what will actually be achieved in relation to human rights protection were Scotland to achieve independence.

With a limited portfolio, it is fairly simple for the present Scottish government to be positive about human rights protection. Issues which have caused consternation for politicians at Westminster, such as the detention, control and deportation of terrorist suspects, have not arisen in the Scottish legal or political system. An independent Scotland would have responsibility for all matters including immigration and national security and much more difficult human rights questions would arise. Whilst it may be resisted, there would be a strong temptation to water down promised human rights protection in the face of public perceptions that human rights law is a “villain’s charter” an “obstacle to protecting the lives of citizens” and “practically an invitation for terrorists and would-be terrorists to come to Scotland”. Such notions have been prevalent in the UK print media over the last 14 years, including Scotland. Much initial work would have to be done to essentially rebrand the idea of human rights in the minds of the public, ensure sufficient education and promotion and encourage respect for the human rights parts of the written constitution. As the experience of other states demonstrates, the budget for an “open, participative and inclusive constitutional convention” would be considerable.

A related issue is what relationship Scottish courts in an independent Scotland would have with the European Court of Human Rights (ECtHR) when adjudicating on human rights claims. It is assumed that Scotland would be a party to the ECHR and thereby accept the right of individual petition to the ECtHR. Were the new constitution to be silent on the matter, it is also likely that Scottish judges would make full use of the jurisprudence of the ECtHR. Whilst there is considerable political mileage in the idea of a “Scottish” approach to human rights interpretation and application, which would garner respect and a margin of appreciation for Scotland before the ECtHR, again it is necessary to be realistic. It is only in a small minority of claims that there is actually room for a national approach. A recent example is the UK broadcasting ban on political advertising which was upheld by the ECtHR in Animal Defenders International v United Kingdom 2013. Other attempts to seek respect for a UK approach to human rights from the ECtHR, the blanket ban on prisoner voting for example, have not been successful.

In relation to the range of rights to be protected, it is important to appreciate that there exists a strong narrative force in the UK, and other national jurisdictions, against making economic and social rights justiciable in the same way as civil and political rights. As noted above, this was the conclusion of the Commission on a Bill of Rights and despite the promise of the Scottish government, the result of further consultation with powerful interests groups may mean that this promise is impossible to deliver. As it was for the HRA, a first step may be simply to offer protection to the rights contained in the ECHR and Protocol No.1, as noted in Rights Brought Home, the White Paper accompanying the Human Rights Bill, “ones with which the people of this country were plainly comfortable”. And finally, it is not clear from Scotland’s Future how the written constitution would limit the power of the Scottish Parliament to legislate. It is possible that human rights protection may afford Scottish judges something more than a declaration of incompatibility but less than a strike down power raising similar problems of delay and effectiveness which have bedevilled section 4 of the HRA.

Whatever the outcome of the referendum, by making the protection and promotion of equality and human rights as a part of a written constitution one of the issues for consideration, the Scottish Government has set an excellent example. Should the vote be for independence, those with the power to embrace and reform human rights law in the rest of the UK should take careful note.

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

(Suggested citation: M. Amos, ‘Scotland, Independence, and Human Rights’ U.K. Const. L. Blog (13th May 2014)  (available at  http://ukconstitutionallaw.org/).

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Filed under Constitutional reform, Devolution, Human rights, Judicial review, Scotland, UK Parliament

Stephen Tierney: Why is Scottish Independence Unclear?

stierneyAs commentators we seem to end many of our contributions to the independence debate with the rather unhelpful conclusion that much remains, and will continue to remain, uncertain; a state of affairs accentuated by recent comments on the prospect of currency union and EU membership. This must frustrate those hardy souls who read to the end of our blogs seeking enlightenment. Perhaps then we owe readers an explanation as to why it is so hard to offer a clear picture of how an independent Scotland will be brought about and what it would look like.

In trying to envisage life after a Yes vote it is natural to begin with the Scottish Government’s White Paper published in November 2013 which, at 648 pages, cannot be accused of failing to set out the SNP’s broad vision for independence. But for several reasons we must treat this only as the start of our quest and certainly not as a definitive template for a new Scottish state.

Here are some reasons why:

1. The White Paper is selective

The White Paper is certainly comprehensive but inevitably offers if not a Panglossian then at least an optimistic picture of the future, using evidence that supports the Scottish Government’s case for economic success and relatively easy transition to statehood. Inevitably many of these claims have been subject to contestation, and since they are dependent upon varying circumstances and the cooperation of other actors, not least the UK Government, they cannot be taken to be the last word on independence.

2. Are we sure there will be negotiations?

This is surely the easiest question to answer. The White Paper not unreasonably assumes a process of mutually cooperative negotiations given the Edinburgh Agreement in which the UK and Scottish governments undertook ‘to work together constructively in the light of the outcome, whatever it is, in the best interests of the people of Scotland and of the rest of the United Kingdom.’ This has recently been restated by a UK Government minister. It can also reasonably be assumed that despite the bluster of the referendum campaign it will be in the interests of the UK to build a constructive relationship with its near neighbour. But there are still many unknowns concerning the negotiation process and its possible outcomes.

3. Who will negotiate?

On the one hand we would expect the Scottish Government to take the lead for Scotland. But let’s not forget the Yes campaign is a broader church than simply the SNP, and different contributors to this, such as the Green Party, will have their own agendas which they would seek to advance in negotiations with the UK. Furthermore, in the White Paper the Scottish Government announced that it ‘will invite representatives from the other parties in the Scottish Parliament, together with representatives of Scottish civic society, to join the Government in negotiating the independence settlement.’ (para 2.7) Who might take part, what influence would these other actors have, and how might their influence re-shape the negotiations? Also, on the UK side different uncertainties present themselves. We assume the UK Government will negotiate for the UK, but with a general election in May 2015 a new government may take a different view of the negotiation process.

4. What if negotiations break down?

An unlikely scenario but one which does add more uncertainty to the mix is the possibility of failure of these negotiations to result in agreement. If negotiations do indeed break down, what then: a unilateral declaration of independence? This possibility has rarely been considered within the Scottish debate but it would raise a new set of issues regarding both the terms of separation between Scotland and the UK, at which point international law would provide some guidance as to the default position, and for Scotland’s status internationally.

5. Will there be a deal?

We can expect a deal at the end, but in light of the ‘personnel’ issues considered at point 3 the terms of any negotiated deal are hard to predict. How many of the goals to which it aspires in the White Paper will the Scottish Government achieve, and on which issues will it have to compromise, not only with the UK but with other parties to the negotiations on the Scottish side?

6. Surely experts can predict the outcome of negotiations?

Given that a UDI is highly unlikely, as commentators we can reasonably focus upon the terms of negotiations, but here voters must be struck by how we suffix our references to the most likely outcomes by restating how many variables are at work. It is no surprise that on the various issues at stake experts will reasonably disagree about different scenarios. As commentators we also have a duty not to enter the debate in a polemical way, using expert knowledge to advance the cause of one particular side. It is important to remain objective, presenting the evidence for the different sides of each argument as best we can.

7. Clarity and simplicity are not synonyms

The subject matter for negotiations could scarcely be more complex – disentangling a state with a highly integrated advanced economy. So many issues will need to addressed together that even listing the topics to be dealt with is a difficult, and inevitably an incomplete, task: the economy, the currency, debt, welfare, pensions, oil and gas, higher education, the environment, defence, the European Union, security and intelligence, borders, citizenship, broadcasting etc. etc. Issues surrounding each of these issues will have to be negotiated. Therefore, there is reasonable disagreement among commentators about the nature of the competence which an independent Scotland would acquire in relation to each of these, and as to the prospects for some degree of on-going cooperation or union with the UK in relation to each area of competence. And even if we commentators can reach some kind of consensus about a particular issue taken in isolation we need to factor in that each is a potential bargaining chip in negotiations. There may well be trade-offs which see some aspects of the Scottish Government’s preferred model of independence subject to compromise in return for other gains.

8. It’s politics, stupid

What would make things clearer? Well the obvious solution to a lot of uncertainty would be agreement between the two governments on a range of issues ahead of the referendum. The Electoral Commission (paras 5.41-5.44) has recommended ‘that both Governments should agree a joint position, if possible, so that voters have access to agreed information about what would follow the referendum. The alternative – two different explanations – could cause confusion for voters rather than make things clearer.’

But this is not going to happen. Uncertainty among voters is an important card for the Better Together campaign. It is simply not in the political interests of the UK Government to work with the Scottish Government to clarify possible negotiation outcomes. And in any case it may not be in the interests of the Scottish Government either should such pre-referendum discussions result in stalemate, thereby serving only to heighten rather than diminish uncertainty before the vote.

9. After independence: designing Scotland’s constitution

Even if negotiations are concluded and independence formally endorsed we will not have a final picture of Scotland’s constitutional future. Scotland will not at that stage have a constitution. According to the White Paper there will be an interim period during which some form of transitional arrangement will be needed. There will then be a Scottish parliamentary election in May 2016, and only after this, according to the White Paper, will a constitutional convention be established to draft a constitution. So many of the proposals set out in the White Paper concerning Scotland’s constitution are contingent upon how this convention is established, how it will draft a constitution, what this will contain, and how it will be ratified (i.e. will it be approved by the Scottish Parliament or by way of another referendum).

And what would the institutions of government in an independent Scotland look like: will the Queen be head of state? Will there be a one chamber or two chamber parliament? Will Scotland have a new constitutional court? The Scottish Government has views on these issues but also accepts they will be for the constitutional convention to determine. And what institutional arrangements would be needed to maintain areas of cooperation or union with the UK? All of these issues will remain to be settled.

10. It takes three to tango

And of course the foregoing issues focus upon Scotland’s relationship with the UK. What of Scotland’s external relations? Issues such as state recognition; succession to international rights, obligations and treaties; and membership of international organisations, all remain to be fully worked out. And most crucially, the European Union presents two huge issues. The first is how Scotland will be admitted to membership, something which remains a focus for debate, not helped by the bizarre interventions of senior EU politicians. The second issue is surely much more salient and the source of more reasonable disagreement, namely the terms of such admission.

11. What is ‘independence’ anyway?

All of these questions raise a larger issue, namely the heavily integrated nature of the modern nation-state and the web of international relations which bind states within Europe. As the details of the Scottish Government’s proposed model of independence emerge, for example in relation to the currency, what is envisaged is in fact the continuation of important relationships with the UK as well as new and close relations with international partners. But clarity on these points is obscured by campaign gaming. The Yes side is reluctant to voice these aspirations in detail since this will invite the ‘we will never agree to that’ response which we have seen in relation to currency union. This will inevitably mean that much of the detail of what the Scottish Government aspires to will most likely remain unstated at the time of the referendum. The challenge for voters then is a broader one: it concerns how they understand the very meaning of statehood and sovereignty in today’s Europe. The reality today is that any new state emerging from within the EU and intending to remain within the EU will, by definition, instantiate a novel form of statehood which delivers independence but not separation. This, a unique state of affairs, is the factor which poses the deepest analytical challenges to political actors, to constitutional theorists and practitioners, and, since a referendum is the mechanism assigned to determine such an outcome, ultimately to voters.

Is there any point in expert commentary?

Yes of course. There are many technical issues which can be clarified. This will not fully explain how Scottish negotiations will go with either London or Brussels but it can make clearer the issues which will be subject to negotiation.

Secondly, much of the uncertainty stems from the political positions of the two sides: Better Together which does not want to suggest negotiations will go smoothly for the Scottish Government; Yes Scotland which claims that they will. However, the UK Government’s position following the hard reality of a Yes vote is likely to be significantly different from that as stated in the heat of the referendum campaign. Again academics must try to disentangle these two different positions. At the same time they can probe the viability of the claims made by the Scottish Government in its White Paper.

In the end some kind of bigger picture may emerge, albeit through a glass darkly. People when they vote will do so with two rival visions of the future in mind. These will not be perfect predictions of what either an independent Scotland or an on-going UK (we must also remember that a No vote also carries many uncertainties concerning the future) will look like in 1, 5 or 10 years’ time, but they will need to make sense to the people casting their votes. As commentators, all we can do is try to offer some objective guidance so that these visions bear closer resemblance to reality than they otherwise might. A modest aim maybe, but no one ever said constitutional change was simple.

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

Suggested citation: S. Tierney, ‘Why is Scottish Independence Unclear?’ U.K. Const. L. Blog (25th February 2014) (available at: http://ukconstitutionallaw.org/).

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Filed under Constitutional reform, Devolution, European Union, Scotland, UK Parliament