Category Archives: UK government

Alan Trench: Scottish independence: does taking a sterling currency union off the table change the game?

alan-trenchThe heavy trailing of an announcement by the Chancellor of the Exchequer (and Danny Alexander and Ed Balls) that the UK Government is not prepared to establish a currency union with Scotland for use of the pound in the event of Scottish independence (see also BBC News coverage here) is a serious blow to aspirations of the SNP for a form of ‘independence lite’.  The logic of this was that it would avoid disrupting many key symbolic and economic ties between an independent Scotland (iScotland) and the remainder of the UK (rUK), so comforting swing voters about the limited scale of the risks of independence.  Those risks are real; think of how attractive Scottish investment trusts and insurance companies look if the complexities and exchange-rate risks of using a different currency are introduced into the equation, for example.  But this shift in the ground also emphasises a number of key issues about the implications of a Yes vote, and what would happen after it.

The first problem – which is particularly the case with the idea of a currency union, but applies to many other important issues – is the asymmetry of interest.  A currency union is central to the way the SNP has formulated its model for independence.  (That view can be contested, of course – whether by the likesof Jim Sillars on, essentially, autonomy grounds, or by Angus Armstrong and Monique Ebell on economic ones, relating to the flexibility of economic policy instruments and the implications of a debt burden.)  But it is of marginal interest or benefit to rUK at best, poses a serious risk at worst, and concluding that the risks of it from an rUK point of view exceed the benefits is a reasonable judgement to come to.  This isn’t the only issue where iScotland has a strong interest in something of limited concern to rUK, either.  In bargaining situations, iScotland has got to have something convincing to offer to rUK – and other than staying in the UK, or the Clyde nuclear bases, it’s hard to see what that might be.

The second problem is what the Yes side do in response to being denied a currency union – the ‘Plan B’ for iScotland’s currency.  There aren’t many currency options; they are using the pound without a currency union (‘dollarisation’), establishing a Scottish currency, or seeking to join the Euro.  (The clearest exposition of those is in a video put together by NIESR, availablehere.)  The first and third of those pose major problems – dollarisation would be unstable and expose iScotland to a range of monetary policy risks over which it had no control, while membership of the Euro normally requires having a national currency first, and then joining the Exchange Rate Mechanism to start the process of tying that currency to the Euro.  That implies a lengthy transition, a currency that sunders Scotland from what at the moment is its closest trading partner, and the question of what the constraints of the Eurozone might be in future.  From that point of view, an independent currency is the least unattractive option by some way – even if it seems riskiest to referendum voters, and proposing it now would indicate a significant reshaping of plans for independence at a late stage in the referendum campaign.

The third problem is how rejection of a currency union affects other options for Scotland.  Talk of repudiating iScotland’s share of UK debt may be attractive to SNP politicians, but is hot-headed nonsense.  It would create the very opposite of the ‘velvet divorce’ which underpins the Yes side’s strategy.  Indeed, it would amount to a unilateral declaration of independence, as well as creating a major ongoing dispute with rUK.  That would affect all plans for independence, not just currency; social union, an open border, co-operation in other matters will all be off the table.  It would create significant obstacles to any negotiations over EU membership, and an insuperable barrier to NATO membership, and make it very expensive for iScotland to borrow from international lenders if it could do so at all.  Reaching a deal on at least the main issues that underpin statehood with rUK would be vital for Scotland to become independent, and the asymmetry of interest means that rUK holds the whip hand in each strand of those negotiations.

The fourth problem is what this means for ‘independence lite’ as a wider project.  The idea that independence would widen the realm of autonomy in some areas (such as fiscal and social policy, and to some degree foreign policy) while retaining existing aspects of the Union such as currency or freedom of movement across the England-Scotland border may be attractive in Scotland.  But the reliance on rUK co-operation and goodwill has never made it a robust and achievable plan for independence, and that is what is starting to unravel for the Yes side.  Moreover, they are hoist to their own petard in two ways.  They have wanted to clarify the basis for independence before September’s poll; while the UK Government has rejected ‘pre-negotiation’ of independence, on currency it is clarifying its position in perhaps the most unhelpful way possible.  The Yes side also has (perhaps reluctantly) embraced the binary Yes/No approach to the referendum (and lost the possible ‘third option’ from the poll).  ‘Independence lite’ was a way of softening the impact of the choice of independence for swing voters and reinstating to a degree the middle ground that was otherwise excluded.  But the rejection of a currency union deprives the Yes side of that comfort as well.  As a result, the choice between independence and remaining part of the UK is becoming increasingly stark.

The challenge that now faces the SNP and the wider Yes campaign is whether to embrace a more radical approach to independence, which may be less attractive to key groups of swing voters (though not other parts of the Yes movement), but produce a more intellectually cogent model of independence, or stick to a middle course predicated on agreements with rUK that look increasingly hard to attain.  Nicola Sturgeon’s diary for the next few weeks includes lectures at UCL (this Thursday) and Cardiff on 24 March, so she will have plenty of opportunity to answer such questions.

None of this alters certain key facts, though.  The Scottish public still support an expanded form of devolution – not independence, but something that confers signficantly greater autonomy than the status quo.  Formulating that option is something that the Unionist parties need to do.  It is in their interests to make devolution work better, after all, as well as enable Scots to have the form of government they desire.  And putting such an option on the table will help people to regard voting No as a positive choice, not just a reaction to the uncertainties surrounding independence.  that also appears to be what voters want, and it is certainly necessary if the referendum is to resolve the wider question of Scotland’s place in the United Kingdom, rather that invite a ’round 2′ of the independence argument at some later date.

UPDATE, 13 February: There are also interesting comments on the currency announcement from Angus Armstrong of NIESR here, Alex Massie for theSpectator Coffee House blog here, and from the Guardian David Torrance in Comment is Free here and Larry Elliott’s Economics Blog here

Further update: The Chancellor’s speech is now available here.  The key points are his linkage of a banking union (necessary to support a shared currency) with a wider fiscal and political union, the question of what benefit rUK would derive from such a union given the asymmetry of the risks, and how stable and durable such a union would be – the possibility of one party choosing to break it.  To quote one passage:

The continuing UK would be almost ten times the size of the Scottish economy. So this would be a totally one-sided deal where UK taxpayers would have to transfer money to an independent Scotland in times of economic stress, with limited prospect of any transfers the other way.

We got Britain out of the eurozone bailouts. Now we’d be getting into an arrangement that was just the same.

The citizens of the rest of the UK could not sign up to such a deal. And frankly, even if we could, I do not think Scotland would want to either.

For the logic of a currency union would mean that Scotland would have to give up sovereignty over spending and tax decisions.

And another:

Because sharing the pound is not in the interests of either the people of Scotland or the rest of the UK.

The people of the rest of the UK wouldn’t accept it and Parliament wouldn’t pass it.

The Treasury analysis – the eleventh paper in the ‘Scotland Analysis’ series – on which Osborne drew in his speech is available here.

Alan Trench is a Professor of Politics at the University of Ulster, also having affiliation to the University of Edinburgh and the Constitution Unit at University College London, and he runs the blog Devolution Matters.  This post is reproduced from that blog with permission.

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Stuart Lakin: The Sovereignty of Law: Freedom, Constitution and Common Law by Professor Trevor Allan: Some Preliminary Thoughts

stuart1 Most readers of this Blog will undoubtedly be familiar with the work of Professor TRS Allan.   It is difficult to think of anyone who has made a more significant contribution to UK public law scholarship in recent decades.  For the uninitiated, Allan is best known for his radical challenge to constitutional orthodoxy in Britain.    Over the course of several impressive books – with suitably grand titles – he has set about dismantling just about every last (supposedly) well established doctrine, distinction and conceptual dichotomy.   In their place, he advances a fluid vision of the constitution in which the rights, duties and powers of individuals and institutions depend on moral argument about the rule of law, freedom, justice and due process.  Allan is arguably the pioneer of ‘common law constitutionalism’ (not to be confused or conflated with ‘legal’ constitutionalism – more on that below).

In his latest book,The Sovereignty of Law (2013) (hereinafter ‘Sovereignty’) Allan takes both his critique of orthodoxy and his own rule of law thesis to a new level of cogency and philosophical   rigour.  Whether or not one agrees with his arguments, it is a tremendous accomplishment.   The aim of this post is to provide a short, preliminary review.  I shall divide my thoughts into four sections: general observations, methodology, substantive claims, and potential objections.    Where I refer to the book directly, I shall use numbers in brackets.

1.  General observations

 There are eight chapters in total, all around the 30-40 page mark, plus an appendix.   As Allan explains (15-16), the chapters are closely interconnected and can be read in any order.   Broadly speaking, they cover: 1. constitutionalism, 2. constitutional convention, 3. the rule of law, 4. parliamentary sovereignty, 5. legislative supremacy and the rule of law, 6. constitutional foundations of judicial review, 7. judicial restraint, 8. democracy, rights and the common law.   Such is the close link between the themes and arguments within chapters, Allan breaks his discussions up with Roman numerals rather than specific sub-headings.   Each chapter begins with a clear and accessible introduction, aimed especially at students.  The appendix pursues some of Allan’s more abstract methodological arguments in greater detail.

Sovereignty as a whole reads rather like a set of colloquium-style ruminations.   Allan continually refers backwards and forwards to different aspects of his argument, restating, refining and anticipating his central claims.  For every abstract argument, he gives numerous concrete illustrations.  Indeed, the defining strength of Allan’s work, I think, is his ability to weave together complex debates in legal and political theory with detailed doctrinal analyses of cases, statutes and contemporary constitutional developments.   That strategy, we shall see below, is central to his methodological and substantive commitments.    Readers who lack the time or will to read Sovereignty from cover to cover will get a very good sense of Allan’s thought-world just by focusing on some of his excellent case studies.  Here are some particularly good examples: Liversidge v Anderson (21-25), Prolife (25-31), Factortame and Thoburn (146-150), Jackson (150-153), R v A (186-88), Bellinger (319-321), and **Bancoult (ch 8 generally).

Every leading thinker inevitably has their own intellectual heros.  Allan’s are (principally): Kant, Hayek, Fuller and Dworkin. Rather surprisingly, given the progressive nature of Sovereignty, Dicey also features prominently (see, for instance, 31-36).   Here, as elsewhere, Allan seems determined to enlist Dicey’s work to his own cause.

2.  Methodology

It is striking that Allan gives far greater coverage to questions of constitutional methodology in Sovereignty than in his earlier books.    Legal philosophers endlessly debate the nature of their own discipline: is it descriptive, evaluative, conceptual, interpretative or whatever?  The same sort of debates are slowly creeping into the work of constitutional theorists (alongside Sovereignty, see also, for instance, Nick Barber, The Constitutional State (2010), ch 1).

Allan attacks a ‘positivist’ approach to constitutional argument, one that involves describing the constitution without making any evaluative argument about why it – and the content of English law – should be understood in a particular way.    People who take this approach, he claims, mistakenly adopt the ‘external perspective’ of a political scientist, anthropologist or historian, rather than the ‘internal perspective’ appropriate to legal reasoning (chapters 1, 2 and the appendix are particularly good on this distinction). Their error is to suppose that there is a ‘fact-of-the-matter’ about the constitution and questions of public law (6-7).     Allan returns to this external/internal distinction again and again during Sovereignty.  His running contention, we shall see below, is that many of the different doctrines, distinctions and labels that public lawyers use make little sense once we abandon the positivist perspective.

The constitutional lawyer who takes the internal perspective, Allan explains, necessarily interprets statute and common law in the sense of ‘presenting reasons of justice or political morality for reading them in one way rather than another’ (6).  In this way, ‘legal analysis cannot be detached from…constitutional theory’ (22), and ‘legality is always connected to legitimacy’ (23).     Allan is careful to deny that he is inventing a new (ideal) constitution rather than elucidating the existing one.  The interpreter of the constitution, he insists, cannot bring any moral theory to their task.  They are constrained by the particular scheme of principle latent within current legal and political practice (340-346).   Allan draws heavily on the work of Dworkin in making these arguments.  However, there may be a fundamental methodological difference between the Dworkin and Allan, one which calls into question Allan’s external/internal distinction.   I shall return to this point below as a potential avenue for criticism.

3. Substantive Claims

Allan’s interpretative/internal approach generates a raft of bold, unconventional claims about the constitution.   Let me attempt to summarise some of them, roughly in the order that they appear.   Needless to say, I cannot do justice to the detail and nuance of Allan’s arguments here.  At best, I hope to capture their general spirit.    As you work through these claims, keep in mind the methodological distinction above.   In general, the view under attack is incorrect, according to Allan, because it is made from an external, descriptive perspective; and the correct view is correct because it is made from an internal, morally engaged perspective.   It is this ‘all or nothing’ stance that I think separates Allan from Dworkin.   More on this in section 4 below.

a)  There is no a priori distinction between law and constitutional convention, justiciable and non-justiciable powers, the ‘political’ and ‘legal’ constitution.  Whether a particular aspect of governmental practice raises questions of legal principle better enforced by courts, or questions of ‘good governmental practice’ better enforced by politicians will depend on a judgment about all of the relevant facts, reasons and values that apply in the specific context (ch 2).

b) The British constitution is founded on a model of rule of law that invokes the idea of   ‘liberty as independence’ (12).   This is ‘ultimately a principle of equal citizenship, precluding arbitrary distinctions between persons, irrelevant to any legitimate public purpose’.  The principle ‘…imposes a requirement of justification, connecting restrictions on liberty to a public or common good, open to fearless public debate and challenge’ (91).  (ch 3)

c)   Parliament does not possess absolute, sovereign legislative power.  Legislative supremacy (Allan’s preferred term) ‘may [only] operate within the constitutional framework of the rule of law‘ (133).   ‘Parliament’s authority is confined by the limits of our ability (in any concrete context) to interpret its enactments as contributions to the public good’ (12).   It follows that a statute is only recognisable as such if it can be read in a way that is compatible with the principle of equal citizenship (33).  (ch 4)

d)  Statutes do not mean what parliament intended, in the sense of communicating a ‘speaker’s meaning’ (193).   The interpretation of a statute instead requires us to construct the intent of the ‘ideal or representative legislator’ who seeks to reconcile ‘current policy and overarching legal principle’ (194).  There is then no conflict between Parliamentary supremacy and the rule of law.   These ideas are interdependent, embodying the twin imperatives of democracy and respect for individual dignity and autonomy (168). (ch 5)

e)  The traditional judicial review debate is loaded with positivist assumptions, notably that Parliament may abrogate fundamental rights using express language, and that there are discrete heads of judicial review which separately address issues of procedure and substance.   For Allan, fundamental rights ‘can be ‘overridden’ [i.e. defined] only in circumstances that justify curtailment‘   (258); ‘Judicial review…enforces standards of due process, which resist any neat division between procedure and substance’ (242); and the principles of legality, rationality and proportionality are all subsumed within a general right to fair treatment (260). (chs 6 and 7)

f)    There is no independent doctrine of judicial deference.   ‘The relevant considerations of constitutional legitimacy and institutional expertise are already implicit constraints on judicial review – reflected in ordinary legal reasoning…’ (241).   (ch 7)

g)  Section 3 of the HRA merely replicates the pre-existing common law order.  Common law reasoning involves precisely the same balancing of relevant considerations (176). It should not have mattered in the ex parte Smith case that the ECHR had not been incorporated (245).    ‘The court’s appraisal… fell short of what was necessary to protect the basic rights in issue (255).    If Parliament were to repeal the HRA, ‘the underlying common law constitution would remain untouched…’ (324) (chs 7 and 8).

h)  There is no distinction between the ‘legal’ and ‘political’ constitution: every account of the constitution is both legal and political in so far as it must include some coherent account of the separation of powers (305).  Nor is there any meaningful distinction between ‘weak’ and ‘strong’ judicial review.  The common law constitution is distinct from both arrangements.  Courts have a duty to interpret statutes in line with basic common law rights, and so it will rarely be necessary to quash a provision (as exemplified in Anisminic). (230) (323).  (ch 8)

4. Potential Objections

Every reader of Sovereignty will find in it their own points of interest and controversy.    The book is bursting with provocative claims and arguments.    I shall pick out two areas where I think Allan may be vulnerable to criticism.   I shall use small letters in brackets to refer back to the substantive claims above.

Interpretation and the Internal v External Perspective

We have seen that, for Allan, the only way to understand the existing British constitution is to interpret legal and political practice from the internal point of view of a lawyer of judge.  This means, he tells us, that legal doctrines can only be defended with ‘arguments of principle… consistently with our commitment to constitutionalism‘ (10).    One cannot simply describe the constitution from the outside.

The thrust of my first criticism is this: while we can agree with Allan that no account of the constitution can be descriptively correct, the various positivist-inspired doctrines, distinctions, labels, and so on that he attacks in Sovereignty need not be understood in this way.   They can instead be understood, in line with the method Allan recommends, as interpretations of British legal and constitutional practice.   It can be argued that a lawyer or judge arguing from the internal point of view may have entirely plausible moral reasons to distinguish between law and convention a), to propound a narrow, formal conception of the rule of law b), to separate the extent of Parliament’s legislative powers from the justification for those powers c), to understand statutes in terms of a ‘speaker’s meaning’ d), to understand judicial review as a set of discrete rules e), to separate questions about the content of the law from question about how judges should decide cases (e.g. to fashion an extra-legal doctrine of deference) f).    Legal theorists such as Hart and Raz strongly resist this moral ‘recasting’ of their theories, but it is central to the interpretative method – as least as developed by Ronald Dworkin – that legal positivism is only intelligible in this form.

By automatically equating the interpretative, internal point of view with his own moral/theoretical approach to legal and constitutional argument, Allan rather rigs the interpretative debate.   In my view, he needs to confront the orthodox positivist account of the constitution – along with every other account – as a rival interpretation rather than dismiss it as belonging to a separate ‘external’ intellectual discipline (sociology, political science, etc).      Both Barber (above) and Goldsworthy (see, for instance, The Sovereignty of Parliament (1999), ch 10) have offered explicitly interpretative bases for their broadly positivist claims.    It may be that Allan can defend his approach as a better interpretation of the constitution than the positivist one, but that aim immediately encourages a far healthier debate than is perhaps envisaged by Sovereignty.

The Impact of the HRA 1998 on the Common Law

Let us grant for the sake of argument that Allan’s interpretation of the constitution is correct: that the content of the law – including the powers of Parliament and courts – depend on the particular scheme of principle embedded within current legal and political practice.  A second criticism of Sovereignty is that some of Allan’s claims pay too little attention, or no attention to the evolution of practice and principle in Britain.   I have in mind the claims contained in g) and h) above.     Allan can be understood as saying, first, that the enactment of the HRA had no meaningful impact on the British constitution; and, secondly, that his favoured model of common law protection of rights by judges is the only legitimate form of institutional protection of rights.     Both of these claims are highly contentious.

In terms of the first claim, whether or not one would ideally support the structure and aims of the HRA, an interpreter of the constitution must adjust their account of the practice in light of that important Parliamentary ‘decision’ (just as they would have to adjust their account in the event of its repeal).  The Act plausibly introduces a novel division of labour in respect of rights protection; or, to put this point in more philosophical language, it contributes a scheme of institutional morality that arguably differs from what went before.   The ‘declaration of incompatibility’ mechanism in HRA s 4 is almost invisible in Sovereignty.   My argument – which I cannot develop here – is that Allan’ account of the constitution must accommodate rather than erase this mechanism.   His discussion of Bellinger (319-321) is particularly revealing on this point.

A similar objection can be made to the second claim.   Whether or not the labels ‘strong’ and ‘weak’ review serve any useful purpose, Allan seems to preclude different forms of rights protection altogether.    He repeatedly tells us that Charters of Rights and Bills of Rights cannot affect the judicial role (e.g. 282, 327): that (his account of) the separation of powers is an ‘essential component of [a] conceptual polity, enshrining the rule of law…’(295).      Despite extensive discussion of the work of Waldron and Bellamy – both of whom wish to make the legislature the primary forum for decisions about rights – (304-329), I think there is greater scope in Sovereignty for argument on whether a political community can protect rights in different ways.

Closing Thought 

These are exciting times for scholars of the British constitution.   What had been a rather arid, doctrinal, area of study is now rich with philosophical interest.   We should be grateful to Allan for spearheading that transformation.    Many public lawyers will feel rather battered and bruised by their treatment in Sovereignty; the ‘externalists’ are a populous group!    But Allan’s aim is undoubtedly to encourage a particular style of debate rather than delivery knockout blows.   It will fascinating to see how that debate unfolds.

Dr. Stuart Lakin is a Lecturer in public law and jurisprudence at the University of Reading.

(Suggested citation:  S. Lakin, ‘Review: TRS Allan’s The Sovereignty of Law (OUP, 2013)’ U.K. Const. L. Blog (4th February 2014) (available at http://ukconstitutionallaw.org/)).

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Nick Barber: After the Vote

Nick1At 650 pages Scotland’s Future  is not a light read.  It stands as the Scottish Government’s manifesto for a yes vote in the independence referendum.  The volume ranges from profoundly important questions relating to currency and Scotland’s membership of the European Union, right down to weather-forecasting and the future of the National Lottery.  Though it is likely many copies of Scotland’s Future will be printed, it is unlikely many will be read from cover to cover.  Its authors probably do not regret its length: by its very heft, the volume seeks to rebut claims that the consequences of independence have not been carefully thought through.  This post considers the immediate constitutional consequences of a yes vote in light of Scotland’s Future.  Its central argument will be that the timescale proposed by the Scottish Government for independence following a referendum is unrealistic, and may work against the interests of an independent Scotland.

Scotland’s Future sees a rapid move to independence after the vote.  The referendum will be held on the 18th of September 2014, and negotiations with the UK and the European Union will start shortly after.  The Scottish Government foresees that these negotiations will be completed by March 2016, 18 months later, and has picked 24th March 2016 as the day on which Scotland will become sovereign.   The first elections in an independent Scotland will be held on 5th May, 2016.  This is the date on which elections for the Scottish Parliament are to be held under the current devolution settlement.

So the key dates are:

18th September 2014: Referendum

 7th May 2015: Likely Date of General Election in United Kingdom (including Scotland)

 Early March 2016: Agreement between UK and Scotland, and between European Union and Scotland

24th March 2016: Independence for Scotland (via Acts of the UK Parliament and Scottish Parliament)

 5th May 2016: Elections to Scottish Parliament

There are two groups of negotiations that Scotland will need to engage in before March 2016: with the UK and with the European Union.  Each of these will be considered in turn.

Negotiations with the UK

The first question to be asked is who, exactly, will negotiate on behalf of the two territories.  The answer for the Scottish side is comparatively easy.  The Scottish White paper specifies that there will be a ‘negotiating team’ appointed, which will be led by the First Minister and include members from a number of political parties in Scotland and ‘public figures’ (p.72).  The Scottish Parliament will scrutinize the process as it progresses – a scrutiny that may complicate matters if, or rather when, difficult concessions need to be made.

Whilst there are still questions to be answered about the composition of the Scottish negotiating team – about the manner of their selection, approval, and, indeed, how this group of previously antagonistic politicians will manage to work as a ‘team’ – these can probably be resolved relatively quickly.  The United Kingdom’s representatives may prove harder to organise.  The principal, but not sole, reason why this may prove tricky is the General Election that will be held in May 2015.

The United Kingdom’s 2015 General Election is likely to impact on negotiations in a number of ways.  First, it makes it unlikely that much serious negotiating will be undertaken in the period between the referendum and the election.  The politicians responsible for the negotiations are likely to be distracted.  The Coalition Government will probably become weaker and more fragmented as the Conservative and Liberal parties seek to present distinct political identities to the public.  It will become steadily more difficult for the UK Government to act in a coherent manner. The looming election will also make meaningful compromise harder: no English politician will want to be seen making concessions to Scots just before an election.  But even more importantly, it will be the 2015 General Election that will determine which party, or parties, will lead the negotiations.  Whilst the negotiators for the UK are likely to be drawn from across the party spectrum, negotiations will be led by a representative of the governing parties: the Prime Minister will probably assume ultimate responsibility for the process.  Furthermore, just as the Scottish Parliament will review and, ultimately, approve the agreement on the Scottish side, the UK Parliament will play a similar role on the UK side.  Under our existing constitution, the final decision about Scottish independence rests with the UK Parliament, which will confer sovereignty on Scotland through a statute.  The agreement reached between the Scottish and UK negotiators must be one each Parliament is willing to endorse.  The political complexion of the 2015 Parliament may, then, be crucial in shaping the course and outcome of negotiations.

The 2015 General Election may raise further difficulties for the course of the negotiation.  Whilst it would make sense for negotiations to be held between Scotland and the remainder of the UK (that is, the UK less Scotland), no such constitutional entity exists.  The UK side of the negotiations will – nominally – include Scotland.  The 2015 UK Parliament will still represent, and sometimes legislate for, the whole of the UK.  The 2015 UK Government will still be responsible for the well-being of the whole of the state.   This will not prove a significant problem if the 2015 election produces a Government with a majority in England.  Then these constitutional conundrums can be ignored: Scottish MPs will have only limited impact in the UK Parliament, and negotiations can continue as if the UK representatives acted for those parts of the Union outside of Scotland.  Far more difficult, though, if after the 2015 election Scottish MPs hold the balance of power in the House of Commons. It could be that, for instance, Labour will gain a majority of seats in the Commons because of the support of Scottish Labour MPs.  If so, the conduct of the UK side of the negotiation may be partly, if indirectly, determined by Scottish MPs, and the product of the negotiations may require the support of Scottish MPs to become law.     And this balance of power would, of course, provide a further incentive for the UK representatives to slow down the pace of negotiations: once Scotland became independent, Scottish MPs would cease to sit in the UK Parliament.  If the governing party required the support of these MPs for its majority, it would lose control of the Commons and could, potentially, either be compelled to stand aside or hold a further election.

Perhaps in response to these worries the SNP has suggested that the UK General Election be postponed for a year.  This is a constitutional possibility, though a tricky one.  Postponing the election would require Parliament to repeal or circumvent the Fixed-term Parliaments Act 2011 and the support of the Commons alone would not be enough as the bill could still be vetoed by the House of Lords.  Parliaments have extended their own lives in the exceptional circumstances of World War I and World War II, but it is doubtful that the Scottish independence referendum – important though it is – presents a crisis of this intensity.  Furthermore, even if the General Election were postponed by a year, there is no guarantee that negotiations would be concluded within this timeframe.

A second reason why the negotiations will probably take longer than the Scottish Government hopes is that the UK side lacks an incentive to speed the process along.  Reading Scotland’s Future it is hard not to be struck by how many issues will need to be negotiated.  Once negotiations start, Scotland will be dealing from a position of comparative weakness.  The two things that Scotland will need in order for independence to be a success in the short and medium term – use of sterling as a currency and membership of the European Union – are both in the gift of the UK.  The UK ought to conduct negotiations in a positive and generous manner – it is in everyone’s long-term interest that Scotland becomes a prosperous and stable country after independence – but it should also ensure that the result protects the interests of those UK citizens outside Scotland.  Scotland’s Future proposes that the Bank of England will become Scotland’s lender of last resort, set the interest rates for both Scotland and the remainder of the UK, and determine monetary policy for the area.  Scotland would then require a share of ownership and control over the Bank.  Though Scotland’s Future suggests otherwise, it is likely that a corollary of this is that a great deal of financial regulation will also be undertaken at the British level: if the Bank of England is to act as lender of last resort, it will also want to have some control over financial regulations that mitigate the risks run by Scottish institutions.  Whilst the Bank of England might be the most important institution an independent Scotland would hope to share with the rest of the UK, it is not the only body that SNP plans to retain.  The Scottish white paper also suggests that around 30% of cross-border bodies will continue to provide services in Scotland (p. 363): once again, Scotland will wish to exercise a share of control over them.     Though it is plainly in the interests of Scotland to retain the pound and make use of the Bank of England and these other bodies, it is harder to see why it would be in the interests of the remainder of the UK to allow this.  Allowing Scotland a share in control of these bodies will reduce the control that citizens of the UK can exert over them: it is an open question why the UK should, or, more importantly, would, accept such a limitation on its sovereignty.  The two key cards held by the Scottish negotiators – allowing nuclear weapons to remain in Scotland and taking a share of the national debt – will need to be judiciously played.

Scotland’s negotiating position will be further harmed by its commitment to a rapid agreement.  The remainder of the UK could happily continue negotiating for years, Scotland’s Future proposes an agreement within 18 months.  Deadlines can be a useful part of a negotiating process, but only if both sides agree to adhere to them.  If – as is probably the case – an agreement takes longer to reach, the Scottish Parliamentary Election of 2016 presents a further challenge.  It is the looming presence of this election that may explain the SNP’s desire for a hasty settlement.  The 2016 election could complicate matters by returning a different government to Scotland – perhaps even a government that no longer supported independence.  This might provide an incentive for the UK negotiators to delay an agreement, hoping, perhaps, for an easier negotiating partner.  On the other hand, this risk may induce the Scottish team to make concessions to secure a quick agreement.

Negotiations with the European Union

In the previous section I noted that Scotland’s membership of the European Union would depend, in part, on the support of the UK.  The UK – like all other members of the EU – would possess the power of veto over Scotland’s application.  It is not in the UK’s long-term interests to deny Scotland membership of the EU, but its support cannot be assumed: Scotland’s membership of the European Union will be an important part of the negotiating process.

The relationship of a newly independent Scotland to the European Union is far from clear.  Whilst there was some early talk that Scotland would automatically become part of the EU on independence, Scotland’s Future accepts that there will need to be an amendment of the treaties for Scotland to join.  The normal processes through which a country applies for membership of the EU are found in Article 49 of the Treaty on European Union.  Scotland’s Future argues that this would be an inappropriate process to impose on Scotland, contending that Scotland, and its people, are already within the Union.  If Article 49 were insisted upon – either by the EU institutions or by any of the Member States – it seems that Scotland would have to gain independence before applying to join.  There would then be a problematic gap between independence and membership of the EU.  Scotland’s Future contends that, instead of Article 49, Article 48 would be the more appropriate mode to amend the Treaties to enable Scotland’s membership.

It is worth looking at Article 48 in a little more detail.  It reads, so far as is relevant:

 Article 48:

 1. The Treaties may be amended in accordance with an ordinary revision procedure. They may also be amended in accordance with simplified revision procedures.

Ordinary revision procedure

 2. The Government of any Member State, the European Parliament or the Commission may submit to the Council proposals for the amendment of the Treaties. These proposals may, inter alia, serve either to increase or to reduce the competences conferred on the Union in the Treaties. These proposals shall be submitted to the European Council by the Council and the national Parliaments shall be notified.

3. If the European Council, after consulting the European Parliament and the Commission, adopts by a simple majority a decision in favour of examining the proposed amendments, the President of the European Council shall convene a Convention composed of representatives of the national Parliaments, of the Heads of State or Government of the Member States, of the European Parliament and of the Commission. The European Central Bank shall also be consulted in the case of institutional changes in the monetary area. The Convention shall examine the proposals for amendments and shall adopt by consensus a recommendation to a conference of representatives of the governments of the Member States as provided for in paragraph 4.

The European Council may decide by a simple majority, after obtaining the consent of the European Parliament, not to convene a Convention should this not be justified by the extent of the proposed amendments. In the latter case, the European Council shall define the terms of reference for a conference of representatives of the governments of the Member States.

4. A conference of representatives of the governments of the Member States shall be convened by the President of the Council for the purpose of determining by common accord the amendments to be made to the Treaties.

The amendments shall enter into force after being ratified by all the Member States in accordance with their respective constitutional requirements.

5. If, two years after the signature of a treaty amending the Treaties, four fifths of the Member States have ratified it and one or more Member States have encountered difficulties in proceeding with ratification, the matter shall be referred to the European Council.

 Scotland’s Future claims that this process could be undertaken and completed within 18 months.

A number of points arise out of Article 48.  The most striking point is that, on the face of it, Article 49 would appear the more appropriate mechanism for Scotland’s application.  Article 49 deals with new countries wishing to join the EU, Article 48 relates to treaty amendments that alter the powers of the EU. Even if Article 48 is used, however, it is likely that the process of treaty amendment would still be a lengthy one.

First, the Scottish Government would have to secure the competence to negotiate with the EU, and perhaps other Member States, from Westminster.  Second, the Scottish Government, whilst Scotland was still a part of the United Kingdom, would have to persuade the Council that it was entitled to make use of Article 48, despite Article 48 being confined to governments of Members States.  Then, thirdly, preliminary negotiations would begin with the European institutions, and Member States, before a formal proposal was presented to the Council.  Fourthly, the Council, in its turn, would then send the proposal to the European Council (comprising the Heads of State of the Member States and the President of the European Council) and notify the European Parliament.  Fourthly, if a majority of the European Council were disposed to consider the amendments further, the proposal would be put to a Convention or directly to a Conference consisting of representatives of the governments of Member States.  The former, the Convention, is used if the amendments seem of wide significance, and would require assembling representatives from a broad range of institutions to deliberate and debate the proposals.  The latter, the Conference, can be engaged directly if the reforms are more limited.  It is likely that Scotland’s application – which would affect the composition of the European Parliament, the Commission, and the Court – would require the summoning of a Convention.  In any event, the proposal would then have to be agreed by a Conference of representatives of the governments of Member States.  Fifthly, and finally, the amendments would then have to be ratified by those Member States.   This would probably require a referendum in France and perhaps in some other states too.  Most Member States would require that the amendments be ratified by their legislatures before becoming effective. Then – after the amendments had been ratified by all of the Member States – Scotland would be able to join the European Union.

The last paragraph made for heavy reading.  I do not claim to be a specialist in European Law, but to assume that the Article 48 procedure could be completed within 18 months seems laughably optimistic:  three or four years seems a more plausible timeframe.  Even this makes a number of assumptions.  It assumes that the difficult issues that Scotland must negotiate are quickly agreed.  It assumes that other countries – in particular Spain – do not block or slow Scotland’s application.  And it assumes that the EU is willing to undertake a discrete treaty amendment process to speed Scotland’s membership – and does not seek to include Scotland in the next round of EU expansion.

Whilst the timeframe of Scotland’s Future is unrealistic, it is highly likely that Scotland would be able to join the EU before 2020.  It is in no-one’s interest to exclude Scotland from the Union.  If, as is almost certainly the case, Scotland cannot complete the Article 48 process before the 2016 deadline, it is conceivable that some sort of international agreement could be reached between Scotland and the EU to preserve Scotland’s legal position.  Perhaps Scotland would then be treated a little like Norway: possessing many of the privileges and duties of EU membership, but not able to return MEPs to the European Parliament or appoint Commissioners.

Conclusion

The contention of this post has been that the timescale set by Scotland’s Future is unrealistically tight, and likely to harm Scotland in a number of ways.  There would be benefits to a slower process of negotiation, one which was planned to last four or five years.  Aside from giving Scotland more leeway in negotiations with the UK and more time to allow the treaty amendment process to run its course in Europe, this would also permit Scotland to start the process of formulating a new constitution prior to independence.  Scotland’s Future proposes that a Constitutional Convention be held sometime after the first elections in 2016, following independence.  But if Scotland waits for independence to begin this process it is likely that many of the fundamental aspects of the new Scottish Constitution will have been settled – Scotland’s currency, aspects of its economic policy, and its relationship with the EU are only the most obvious of the questions that will have been resolved by this point.  Other matters that a Convention might want to consider – the role of the Queen and the continuation of the Human Rights Act, for example – will already be part of Scotland’s provisional constitution, and may prove hard to shift.  There is a danger that, like Israel before it, Scotland will find it easier to muddle through with this provisional constitution rather than produce a fresh constitutional document.

Finally, a benefit of running these three processes in parallel is that a further referendum could then be held prior to independence. This second referendum would stand as a ratification of the agreement with the UK (a ratification that, the Constitution Unit argues, is needed to approve the deal), as a vote to join the European Union, and, finally, as an approval of Scotland’s new constitution.  Each of these three issues presents a strong argument for a second vote.

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

Suggested citation: N. W. Barber, ‘After the  Vote’  U.K. Const. L. Blog (14th January 2014) (available at  http://ukconstitutionallaw.org).

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Liz Fisher: The Proposal for a New Specialist Planning Chamber and the Framing of Administrative Law

fishereOne of proposals in the Ministry of Justice’s paper on Judicial Review: Proposals for Further Reform is the creation of a new specialist planning chamber as part of the Upper Tribunal. While planning tends to be thought of as a niche area of public law (and a technically dense one at that) the way in which the paper frames discussion should give public lawyers pause for thought. This is particularly when planning judicial reviews have often been cited by government representatives as examples of why reform is needed to judicial review. The Further Reforms paper is no exception – the only two ‘case studies’ (albeit no case names) given in the paper are of judicial review of planning decisions (p 5 and 6).

The starting point in the proposal for the creation of a specialist planning chamber of the Upper Tribunal is the assumption that there is a general delay in cases being heard (p15). It is also noted that a factor leading to further delay is that judicial reviews in planning cases are not always heard by judges with expertise in the area thus lengthening the time cases take to be considered (p16). These are issues that have already been subject to some judicial development, the most recent in July 2013 when a Planning Fast Track was created which allows for the early identification of planning cases as well as the assigning of planning cases to judges who have expertise in the area (p16-7). That reform is still in its very early days, but the Ministry of Justice feels further reform is needed in the form of transferring both statutory challenges and judicial reviews to a specialist chamber of the Upper Tribunal which would have ‘specialist planning judges deployed to it’ (p 18) The Ministry argues that ‘the Government’s view is that this is likely to deliver greater benefit still’ (p18). The paper suggests that rather than creating a new Planning Chamber the Lands Chamber would be renamed the Lands and Planning Chamber (p 18).

I have no deep objection to the idea of a specialist planning tribunal or court. Specialist planning and environmental courts that carry out judicial and merits review are a successful feature of many common law jurisdictions. The NSW Land and Environment Court is the best example of such a judicial institution and it has developed a complex body of substantive and procedural doctrine in the planning context. There has also been a long debate in the UK about the merits of having a specialist environmental court here (see this virtual collection of essays on the topic). Much of the debate has focused on a judicial body to consider appeals under environmental legislation and in 2010 a First Tier (Environment) Tribunal was created. Macrory in a recent article has described the creation of that Tribunal as a product of ‘unexpected alignments’ and the development of a specialist planning chamber could be seen in the same light.

Indeed from one perspective the Ministry of Justice’s proposal could be understood as a catalyst for productive debate about a specialist planning chamber. This is particularly when the lack of substantive detail in the paper gives it a tentative feel and the second question for consultation on the specialist chamber proposal concerns ‘what procedural requirements might deliver the best approach’ in such a tribunal (p18). But as Jasanoff has put it so pithily ‘if a problem is framed too narrowly, too broadly, or wrongly the solution will suffer from the same defects’ (Sheila Jasanoff, Science and Public Reason (Earthscan 2012) 179).

And here the ‘problem’ is framed in a very narrow way. As noted above, the driving logic of this proposal is to do with reducing delay caused by judicial review actions, which is cited as hindering economic growth and adversely impacting upon both taxpayers and developers (p6-7). Even the role of expert judges is promoted in terms of reducing delay (p16 and p18). Overall, the Ministry of Justice states that these reforms will ‘reassure developers (both national and international) that any challenges are resolved quickly’ (p18). The consultation also asks whether respondents have ‘any examples/evidence of the impact that judicial review, or statutory challenges of government decisions, have on development, including infrastructure?’ (p18).

The problem with this focus is that planning law and judicial review are not just about making decisions as quickly as possible. Planning is a polycentric activity concerned with finding an acceptable use of land in circumstances where there is a range of different interests within interlocking communities. The technical nature of planning law, its heavy reliance on policy, the important democratic role for central and local government, and the significant role for dispute resolution all reflect that fact. Likewise, there is no discussion in the paper about the nature of judicial review as a check on power beyond a statement that the ‘Government will ensure that judicial review continues to retain its crucial role’ (p 5). That ‘crucial role’ is never discussed. The whole paper creates a dichotomy that is summed up in the Foreword: ‘We need dynamism and growth, not delay and expense’. It would seem that judicial review of planning decisions is being ascribed to the latter category and this impression is reinforced by the focus on the speed at which cases are processed rather than the substantive legal issues raised in planning challenges (p 17).

Following on from that, what experiences in other jurisdictions and the UK debate have highlighted is any specialist planning court or tribunal is a legally complex judicial institution that requires careful crafting and gives rise to a range of legal issues. In a recent paper, the highly respected Chief Justice Brian Preston of the New South Wales Land and Environment Court listed what he saw as  the ‘characteristic features’ of a successful specialist environmental and planning court. These include: the necessary status and authority; independence and impartiality; a comprehensive and centralised jurisdiction; knowledgeable and competent judges; a multi-door courthouse; access to scientific and technical expertise; that it facilitates access to justice; that it is responsive to environmental problems; that it develops its own jurisprudence; that it has an underlying ethos; that it is flexible and innovative; and that it achieves just, quick and cheap resolution of disputes.

Now I recognise that the Ministry of Justice’s proposal for a specialist planning chamber is not the same thing as a specialist environmental court but Preston’s list makes clear that the success of any adjudicative body in this area of operation is dependent on the consideration of a multitude of factors. Speed of resolution is relevant but it is not the only issue. It is also the case that any of the issues in Preston’s list require careful consideration. For example, the experience in other jurisdictions show that issues to do with the nature of expert judges is by no means straightforward – raising as they do questions about how to foster both legal expertise and expertise in the types of problems that planning relates to.

Moreover there is no discussion by the Ministry of Justice of the legal implications of such a proposal. Again, the experience in other jurisdictions is that the development of a specialist adjudicative body must be closely interrelated with the development of substantive law in that specialist area as well as the overall judicial structure. The feel of this proposal is that such a chamber is simply a further development of the fast track procedure (p 17).  For example, there is no mention of how this jurisdiction fits in with the wider logic of the Tribunal structure and the Planning Inspectorate structure. This is particularly significant when the type of cases that are being proposed to be transferred to it include a range of cases from a range of legal sources. Thus it includes statutory challenges under different legislative schemes, challenges from an appeal structure outside the existing Tribunal structure (the Planning Inspectorate), and common law judicial review actions that are often being brought by third party objectors as this is their only legal means of challenging a decision. As footnote 24 makes clear this will require a mixture of legislative and procedural reform. The tribunal structure as created by the Tribunals, Courts and Enforcement Act 2007 is a flexible one and the ‘judicial review’ jurisdiction has broad scope but it is still a jurisdiction in which a statute has a role to play. Furthermore, as the judgments in the Divisional Court ([2009] EWHC 3052), Court of Appeal ([2010] EWCA Civ 859) and Supreme Court in Cart v Upper Tribunal made clear in a different legal context the Upper Tribunal is a complex, and at times ambiguous institution. This is not a criticism of the Upper Tribunal. As Sedley LJ noted in the Court of Appeal in Cart the ‘edifice’ of which the Upper Tribunal is part of is a ‘landmark in the development of the United Kingdom’s organic constitution’.

Overall the proposal for a specialist planning chamber is promising but it needs further careful and wide-ranging debate that involves public law practitioners and scholars. The proposal is not just a planning law proposal but also a public law one that raises questions about the rule of law. This was a point recently well made by Preston CJ in discussing Australian law reform in this area (Brian Preston, ‘The Enduring Importance of the Rule of Law in Times of Change’ (2012) 86 Australian Law Journal 175). By only focusing on the speed that cases are decided there is a danger that these other issues may be side-lined.

The narrowness of the frame for debate in the Further Proposals paper does not only relate to the focus on delay in judicial review however. The proposal is also pervaded by a sense of urgency and the Ministry state that they ‘seek to deliver the new Chamber as swiftly as possible’ (p 18) although footnote this with a comment that speed will be limited by the fact that ‘changes to procedural rules would take 6 months to develop’ (fn 24). And it is here where public lawyers should be particularly concerned. The emphasis on the need for ‘swift’ reform makes any call for further discussion seem an act in time wasting. But it isn’t – reform grounded in a proper understanding of the legal issues is likely to yield a far more successful outcome that reform designed with only one aspect of a complex problem in mind.

Liz Fisher is  Reader in Environmental Law at Oxford University.

Suggested citation: L. Fisher, ‘The Proposal for a New Specialist Planning Chamber and the Framing of Administrative Law’ U.K. Const. L. Blog (1st November 2013) (available at http://ukconstitutionallaw.org).

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Anthony Bradley: A Review of Jack Straw’s Hamlyn Lectures: Aspects of Law Reform: An Insider’s Perspective

abradleyAs the lecturer disarmingly tells us at the outset of the Hamlyn Lectures for 2012 Hamlyn Lectures for 2012, the illustrious procession of Hamlyn lecturers since 1949 (Lord Denning) through to 2011 (Jeremy Waldron) has ‘without exception’ comprised ‘lawyers distinguished by their practice, their academic study or both’.  Jack Straw is an exception.  Since an LLB at Leeds and two years at the criminal bar, he has made his career in politics – holding glittering ministerial office, throughout the Blair-Brown years, as Home Secretary, Foreign Secretary, leader of the Commons, and Lord Chancellor.

Straw has always been interested in ‘the interaction of the work of our courts with the processes of government and the body politic’ and the lectures concern three areas in which Straw could draw on his own experiences.  Despite the responsibility that he had while a minister for ‘an extensive legislative programme’, Straw does not deal with the process of law reform or the machinery of legislation, but with three aspects of the legal system.

The first lecture, ‘The future of the criminal courts’, highlights changes in criminal justice since 1964.  These include greater legalization of policing, thanks in part to PACE and the creation of the Crown Prosecution Service, improved confidence in police integrity (Straw appointed the Stephen Lawrence inquiry), the impact of new technologies, and an improved relationship between senior judges, government and Parliament. (Straw does not claim credit, as he could have done, for his role as Lord Chancellor in the task of bridge-building between government and judiciary that was needed after this relationship reached its nadir during Lord Falconer’s tenure of the post.)  Straw asserts that the criminal justice system is now ‘more effective, more professional, more replete with integrity and more focused on the needs of victims’ than at any other point in his lifetime – but the programme of reform is ‘far from at an end’.

Those who are sceptical about these conclusions will find the third lecture (on appointing the judges) less controversial.  Straw develops two topics: the need to modify the system for appointments established in 2005 (by, among other things, sharpening up the roles of the Lord Chancellor and the Lord Chief Justice), and the need for a more diverse judiciary.  But it is the second lecture, ‘The Human Rights Act and Europe’, that many readers of this blog will read most closely.

As in his memoirs,  Straw describes the happy ‘conception, birth and childhood’ of the Human Rights Act 1998 (Lord Irvine was the bill’s midwife in the Lords; Straw its midwife in the Commons).  He emphasizes the value of the preparation done before the election in 1997, by the joint Labour/ Lib Dem working party among others, especially on the issue of how to incorporate the ECHR alongside the ‘elephant in the room’ of parliamentary sovereignty.   “The result was an Act which was elegantly drafted, and which has met the test of time.  The Act has been a success.” (p 29)

Straw insists that the Act is here to stay.  But, while praising the quality of the senior British judges, he strongly endorses Lord Irvine’s criticism  of the judges for failing to understand the clear words of section 2, HRA: those words (‘must take into account’) were  ‘chosen with care’ and support neither the ‘mirror principle’ nor any suggestion that British judges are duty bound to follow Strasbourg jurisprudence.

Straw puts the blame for current political hostility to European human rights on the ‘ever-expanding remit of the Strasbourg Court for which it has no mandate’.   He argues that, while British courts have for centuries ‘sought to defend the individual against the arbitrary or oppressive power of the state’, and may make decisions that are inconvenient to the executive, Parliament retains the authority to legislate in breach of fundamental rights.  “If Parliament holds its ground, it wins, always.” (p 38)  But such an extreme position is seldom reached because British courts ‘have an intimate understanding of the cultural and political norms within which they operate’.  And the political class is sometimes ‘willing, praying, that the courts will act where they fear to tread’ (the example given is development of the law of privacy).

By contrast, the Strasbourg court ‘has set itself up as Supreme Court for Europe, and one with an ever-expanding remit’.  Straw attacks the principle that the ECHR is a ‘living instrument’, claiming that this lacks any valid basis. He accepts that there is authority in the Convention for the Court to have ‘the role of protecting basic human rights’ (emphasis supplied), but agrees with Lord Hoffmann that basic human rights cannot be stretched to include ‘detailed interpretation of the right to silence, the hearsay rule and – most preposterous of all – night flights at Heathrow airport’.  And he highlights the issue of prisoners’ voting, on which there is ‘absolutely no doubt’ that it is the will of the British people that convicted prisoners should not be able to vote.

Straw develops two further arguments.  The first (linked with an attack on the court for attempting to impose uniformity in human rights across Europe) records disappointment that the HRA has not had the hoped-for effect of expanding the ‘margin of appreciation’ that Strasbourg should allow for national practice in dealing with ‘wider human rights beyond those basic ones whose protection was the purpose of the treaties’ (emphasis supplied).

The second argument is that, unlike most national constitutions, where decisions of a supreme court are subject to a democratic override (whether by special legislative process or constitutional amendment), there is no procedure in the Convention for enabling decisions of the Strasbourg court to be subject to international legislative process.  The view that there is a ‘democratic deficit’ in the Convention system is indeed held by others in Europe.[1]   One answer to this, as Straw points out, lies in the Convention machinery for implementing decisions of the court, which is primarily a matter for political action within the Council of Europe.  But Straw does not accept that this redresses the imbalance in the Convention system and warns that the pride of the court may go before a fall.

There is of course scope for challenging the legitimacy of the court (and indeed of any court that has to hold the ring between legislative decisions and minority rights), but our national sensitivities need to be seen in the light of the case for an understanding of Europe based on a shared value of human rights.  As the Hungarian judge at Strasbourg, András Sajó, has said, the historic belief in shared rights ‘is a self-imposed vision of the member States and not an elitist view from the Court at Strasbourg’.[2]  I welcome the continuing support that Straw gives to the HRA, but I would insist, with Sajó, that the features of the Strasbourg court that Straw now blames for the current discontents were all present and clearly visible in 1997.   

Anthony Bradley is Research Fellow at the Institute of European and Comparative Law. University of Oxford, and is formerly a vice-president of the International Association of Constitutional Law.

 This is a review of Jack Straw, Aspects of Law Reform: An Insider’s Perspective (Cambridge, Cambridge University Press: 2013).

 Suggested citation: A. Bradley, ‘A Review of J. Straw, Aspects of Law Reform: An Insiders Perspective’ UK Const. L. Blog (7th October 2013) (available at http://ukconstitutionallaw.org)

[1]           For a recent collection of papers that inter alia discuss this view, see S Flogaitis, T Zwart and J Fraser (eds) The European Court of Human Rights and its Discontents : Turning Criticism into Strength  (Edward Elgar, 2013).

[2]           A Sajó, in Flogaitis, Zwart and Fraser (above), page 186.

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John Stanton: The General Power of Competence and Reshaping Local Public Service Provision

johnI wrote back in March about the way in which, despite efforts to decentralise autonomy to the local level and to inspire and empower citizens to get involved in local politics, Central Government seems reluctant to ‘let go’ and to give local authorities a free rein in relation to the exercise of local powers. New neighbourhood planning measures provided suitable example.

On a slightly different aspect of local autonomy, news comes this week that Communities and Local Government Secretary of State, Eric Pickles, has been catching up on the way in which councils are using the General Power of Competence (GPC), introduced by the Localism Act 2011 as a replacement to the well-being power.

The Chairman of the Local Government Association (LGA), Sir Merrick Cockell, notes that “the GPC is giving councils greater freedom and confidence to think outside the box, be innovative and develop new services and partnerships … However, despite the impressive examples of GPC use … it remains limited by constraints set by central government. Easing those restrictions would certainly help encourage others to unlocking the potential of using it.” Such restrictions include a limitation on the number of company structures permitted; charges made under the GPC only being made for discretionary services which recover costs but which do not generate profit or surplus; and a restriction to the effect that the GPC does not extend the ability of councils to create byelaws or undertake enforcement.

In a sense, then, it’s the same story – the government trying its utmost to push power down to the local level and to encourage councils to take the initiative and lead forward change and improvements through innovative use of local powers; but in reality, due to excessive restrictions, local government is only able to act innovatively and responsively within parameters set by centralised authorities, far removed from local problems and issues.

Consideration of the way in which the GPC has been used, however, comes at a time when the relationship between Central and Local Government, particularly within the context of local council funding, is very much at the fore.

With the Coalition recently announcing that local councils would suffer a 10% cut in funding from Central Government, serious consideration needs to be given to the way in which local government can operate effectively. Whilst such cuts are inevitable during these financially constrained times, coupled with over prescriptive and centralised supervision, there is perhaps a danger that local authorities could reach a point where they are too reliant on central government telling them what to do within the financial limits also set by Whitehall.

One solution, discussed at the recent LGA Conference, would be to merge key government departments that provide public services, predominantly through local councils, and give local authorities the power to decide issues of funding and public service provision for themselves. This would shift the emphasis away from Ministers and a large number of civil servants, currently controlling local public service provision, and ensure that such power is directed and controlled at a more appropriate level, jointly by those at Whitehall and the local governmental level. Whilst creating what has been termed ‘an office for England’ would be a dramatic change with far reaching consequences, the key objective of giving local authorities greater power and more say over their funding could more realistically be achieved. It would relieve decision and policy makers of the ‘one size fits all’ approach and empower councils to allocate money appropriate for a particular policy area.

There is, as was noted at the LGA Conference, an awful lot of waste generated by the relationship between Central and Local Government which comes as a result of wanting to push power down to the local level at the same time as ensuring that Whitehall retains directing control over the broad framework of public service provision. Eradication of such waste would be a further by-product of Sir Merrick’s proposal, which could lead more widely to a much-needed redrafting of the constitutional relationship between Central and Local Government and perhaps finally give effect to what many recent governments have promised – power to the people.

John Stanton is a lecturer in law at City University, London.

Suggested citation:  J. Stanton ‘The General Power of Competence and reshaping local public service provision’ UK Const. L. Blog (27th July 2013) (available at http://ukconstitutionallaw.org).

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Nick Barber: The Constitutional Inheritance of the Royal Baby: A Speculation.

Nick1It might be thought that there would be little need for a post on this blog about the arrival of the royal baby.  The new Prince of Cambridge – Your Highness, to his friends – is unlikely to play a significant constitutional role for sometime to come.  I found myself wondering, though, what the constitutional situation will be when, and if, he finally comes to the throne.  So, here is the post I plan to write in 2075 – and the way academic pensions are going, I will probably still be working then.

To some, it may come as a surprise that Britain continues to be a monarchy.  We escaped, or missed, the tide of republican constitutional reform that followed the death of Queen Elizabeth in the middle third of the century.  Australia and Jamaica were the first to go, followed, like a line of falling dominos, by Canada, and then by New Zealand.  Other territories followed suit, with most adopting an elected head of state or – more simply still – combining the role of head of state with that of prime minister.  However, it is still the case that the sun never fully sets on our new King’s realms: some small territories decided, for economic and foreign policy reasons, to retain the royal connection.  And the Privy Council, acting as their highest court, still provides a useful guarantee of legal certainty to the owners of the many corporations nominally residing on these islands.  Like these micro-realms, we in the United Kingdom have retained our monarchy.  This is only partly through choice: the moment has never seemed quite right for a public discussion of the wider issues raised by an hereditary head of state, there always seems to have been more important matters to worry about.  It could well be said that it is apathy, rather than a commitment to royalism, than has allowed the institution to last this long.

Within the United Kingdom, the King inherits a fractious and diverse realm.  Scotland will undertake its 10th vote on independence from the Union this coming autumn, and the low-levels of likely voter turn out make it hard to predict the outcome.  For many years, the royal family has worked hard to maintain the Union – without, of course, ever stating this position publically – and conferral of the title of ‘Duke of Edinburgh’ on the heir apparent reflects this commitment.  A popular argument in favour of the monarchy is that it serves this unifying function, bringing the United Kingdom together.  However, it has been hard to avoid the impression in the last fifty years or so that the royal family is tied to England, and based in London.  The former monarch regularly attended the openings of the English Parliament and, of course, of our federal, British, Parliament, but was less commonly seen in the Scottish and Welsh Parliaments.  Whilst the nationalist movement in Scotland remains formally committed to the monarchy, it is hard to believe this commitment is very deep.  If – or, perhaps, when – Scotland finally votes for independence, it is likely to reassess its connection with royalty.

The King takes the throne following the abdication of his father.  It might reasonably be asked if we now have enough evidence to talk of a ‘convention’ of abdication.  Queen Elizabeth was the last monarch to reign until her death – though for the last ten years or so of her life Prince Charles acted as regent in all but name.  He abdicated shortly afterwards, having reigned for only a year, citing old age and a passionate desire to express his opinions about a wide range of matters more openly.  The new King’s father, the former Prince William, has just stepped down at the ripe old age of 91, having served for about 40 years.  Abdication seems to have become the standard way for the Crown to pass between generations.

The need for abdication as a regular feature of constitutional monarchies became apparent in the first half of this century.  The monarchies of the Netherlands and Belgium began this trend.  The ever-improving standards of healthcare – and the healthy lives led by the privileged sections of society from which monarchs are drawn – necessitated abdication as a standard constitutional device.  It became evident that without abdication states risked a succession of extremely elderly kings and queens, as the crown was passed from centenarian to octogenarian.  Can we now say that there is a convention in the United Kingdom that the Monarch will step down on reaching old age?  If this is a convention, there is a substantial amount of uncertainty involved in it.  It does seems that the Monarch will step aside when he or she feels that age is inhibiting her work, but whether that is 85 – as with Charles – or 91 – as with William – depends on the holder of the office and the pressure they are subjected to by the wider political community.  Perhaps a better – and more humane – approach would be to set a statutory retirement age for the monarch.  He or she would be compelled to stand aside, even if still capable of undertaking the duties of the office.

It might be objected, though, that the capacity to choose the date of their retirement is pretty much the last constitutional power that the Monarch possesses.  Removing this choice would leave the Monarch completely powerless, little more than a national mascot.  A clear trend of the twenty-first century has been the steady reduction in the political power and influence of the Monarch.  Most of the Monarch’s legal powers were lost by the start of the century – the prerogatives of the Crown were and still are exercised by those accountable to the Parliaments of the United Kingdom – but the Monarch’s political influence has also declined.  This is partly due to the holders of the office.  Queen Elizabeth – it subsequently transpired – had been able to exercise a small, but significant, influence on government policy.  Her weekly meetings with the Prime Minister combined with her understanding of politics and wide public popularity enabled her to shape some aspects of public policy under some prime ministers.  Her successors had far less clout.  The emergence of Prince Charles’ letters to Ministers – after many court battles – did not present him in an attractive light.  His views on farming, hunting, and – most damningly – homoeopathy did not enhance his public position.  For the short period he was monarch, he had little influence; ministers were keen to distance themselves from his views.  And when Prince William then took the throne it seems he had little interest in the detail of public affairs, content to leave matters entirely to the elected part of the constitution.  Perhaps wisely, he may have concluded that to exercise influence, or even to seek to exercise influence, was – first – likely to be leaked to the public, and – second – likely to harm the institution of the monarchy.

A further reason for the decline in royal power, and one that was not predicted at the time, was the shift of the United Kingdom to a formal federal structure in the middle part of the century.  The Prime Minister of the United Kingdom still has regular meetings with the Monarch, but many of the important day-to-day decisions are made by the first ministers of England, Scotland, Wales, and Northern Ireland.  It could easily be argued that the Prime Minister exercises substantially less power that any of these other four.  Indeed, the United Kingdom Parliament, and government at the United Kingdom level, is often very weak.  When the first ministers collectively decide on a policy, the United Kingdom Prime Minister is almost always compelled to accept their decision.  Even in matters of foreign policy, England and Scotland have – through offices overseas that are embassies in all but name – often as much influence as the formal representatives of the United Kingdom.

A possible corollary of this decline in power has been a decline in the heir apparent’s willingness to avoid making politically controversial statements.  Whilst his father was noted for his public restraint, our new King has spoken out on many issues – feeling, perhaps, that if he will be denied influence whilst in office, he should at least be allowed to express his views like any other citizen.  It has even been argued that along with the decline in royal power should come the right to vote: if our new King lacks special constitutional powers, why shouldn’t he at least enjoy the ordinary constitutional power the rest of us exercise?

In conclusion, as we start to look forward to the invigorating spectacle of the coming coronation – and turn our eyes away from the un-inspiring stories of the scandals surrounding the next generation of royalty – it might now be time to ask whether monarchy is really a fit institution for the coming twenty-second century.  True, some of the oddities have ended.  The Monarch is no longer the head of the Church of England – a divorce that brought great relief to each party – and no longer has any real political power.  But we might still worry about the symbolism of having a head of state who is always drawn from the most privileged part of our society.  More pressingly, perhaps, we might also worry about the unfair and unhealthy pressure that this puts on holders of this office.  Our new King has had to put up with 62 years of relentless scrutiny, and his capacity to choose his own path in life has been radically constrained.  Maybe, in 2075, it is time to think – cautiously – about change.

Nick Barber is a Fellow of Trinity College, Oxford, and University Lecturer in Constitutional Law. 

Suggested citation: N. W. Barber, ‘The Constitutional Inheritance of the Royal Baby: A Speculation’ UK Const. L. Blog (24th July 2013) (available at http://ukconstitutionallaw.org).

Readers are invited to submit, through the comments section, their own predictions for the state of the constitution when the royal baby takes the throne.  A prize will be awarded – in 2075 – for the most accurate.

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Mike Gordon: Prince Charles’ Correspondence Back in Court – Reflections on R. (Evans) v. Attorney General

mike-gordon-pictureThe Administrative Court is the latest body to become involved in the on-going saga related to disclosure of the Prince of Wales’ correspondence with government departments.  In the recent case of R. (Evans) v. Attorney General [2013] EWHC 1960 (Admin), the Guardian journalist Rob Evans challenged the legality of the government’s decision to veto disclosure of the relevant correspondence between Prince Charles and a range of government ministers.  Disclosure of most of this material had been ordered under the Freedom of Information Act 2000 (FOIA) by the Upper Tribunal, allowing an appeal from Evans against the earlier decision of the Information Commissioner that the correspondence sought could be withheld.

In particular, the Upper Tribunal ruled that what it called ‘advocacy correspondence’ – communication with government departments in which the Prince of Wales sought to advance a specific view or promote a particular cause – ought to be disclosed because ‘it will generally be in the overall public interest for there to be transparency as to how and when Prince Charles seeks to influence the government’, [2012] UKUT 313 (AAC), [4].  Such advocacy correspondence was not, in the view of the Upper Tribunal, covered by the constitutional convention that the heir to the throne can be (confidentially) instructed in the business of government in preparation for rule.  Nor was the general public interest in transparency outweighed by other factors advanced as cautioning against disclosure, which included a general desire to maintain confidentiality between correspondents, the protection of the Prince of Wales’ political neutrality, or the potential for a ‘chilling effect’ on the frequency or frankness of communication between the government and the heir to the throne.

After the appeal of Evans was allowed by the Upper Tribunal, the government moved to exercise its power under s.53(2) of FOIA to veto the disclosure of Prince Charles’ advocacy correspondence.  The Attorney General, on 16th October 2012, issued a certificate that he had, as required by the FOIA, on ‘reasonable grounds’ formed the opinion that there has been no failure to comply with the government’s general duty to provide access to information on request (set out in s.1(1)(b) FOIA).  The certificate was also laid before both Houses of Parliament, and set out the reasons for the decision, as explicitly required by s.53(3)(a) and s.53(6) FOIA respectively.  The government’s published policy on the use of the s.53 veto, carried over from previous Labour administrations, was also said to have been complied with, the Attorney General confirming that this was considered to be an ‘exceptional’ case.

In the most recent case, Evans sought to challenge the legality of the Attorney General’s certificate by judicial review.  The Administrative Court rejected his arguments that (i) the decision to exercise the veto was generally unreasonable; and (ii) the very availability of the veto in relation to the ‘significant’ elements of the correspondence classed as ‘environmental information’, and therefore subject to the Environmental Information Regulations 2004, was unlawful, due to its incompatibility with the EU Directive (2003/4/EC) the 2004 Regulations sought to implement, and Article 47 of the EU Charter of Fundamental Rights.  Leaving aside discussion of argument (ii) – a narrower issue which related only to part of the advocacy correspondence ordered to be disclosed by the Upper Tribunal – three points seem especially worthy of consideration in this post.

First, the Administrative Court sought to make it explicitly clear that the exercise of the veto was to be subject to ‘close judicial scrutiny’ because of the very nature of the power in question.  Davis LJ, giving the main judgment of the court, noted that the veto was ‘a remarkable provision’, in so far as it enabled an executive override of judicial decisions, [79].  Judge LCJ was perhaps even more strident, describing s.53 as a ‘constitutional aberration’, [2].   Both judges rejected the government’s attempt to invoke the classic notion of Wednesbury unreasonableness ‘so as to introduce some lesser… requirement’ of review (Davis LJ at [89], Judge LCJ at [14]).  Yet the standard of review ultimately employed did not seem as intrusive as might have been expected from the way it was advertised by the judges.

The substantive quality and coherence of the reasons advanced by the government were not interrogated in significant detail, with much argument dedicated instead to the question of whether a minister could exercise the veto simply because they disagreed with a previous decision.  Davis LJ rejected this argument, holding that it would ‘greatly narrow the ostensible ambit of s.53’ if it were accepted that the veto could only be used where a previous decision had been based on an error of fact or law, [110].  Indeed, Davis LJ held that ‘disagreement with the prior decision (be it of Information Commissioner, tribunal or court) is precisely what s.53 contemplates, without any explicit or implicit requirement for the existence of fresh evidence or irrationality etc. in the original decision which the certificate is designed to override’, [111].  Evidently influenced by the fact that the Information Commissioner and the Upper Tribunal had both previously, albeit to varying degrees, accepted the cogency of the arguments for non-disclosure (see e.g. [113]), and the fact that the Attorney General’s reasoning ‘had regard to and has engaged with the decision of the Upper Tribunal’, [73], Davis LJ held that the government had demonstrated reasonable grounds for its decision to veto.  The reasons expressed were ‘proper and rational’; indeed, in basic terms ‘[t]hey make sense’, [113].

This decision is likely to be disappointing for many, especially those who believe that transparency as to royal influence over government business is a matter of the utmost democratic importance.  Indeed, the Court of Appeal’s decision was (unsurprisingly) the subject of critical comment in an editorial in The Guardian: ‘having painted the veto as indefensible, the judges then elected to uphold it’.  Yet while political dissatisfaction with the government’s decision to exercise the veto is very well founded – to conceal the contents of letters which are not politically neutral to protect the perceived political neutrality of the Prince of Wales seems circular at best – the Court of Appeal’s judgment that the government’s action was legally reasonable seems sound.

To ask courts to go further and overturn a decision which we may find politically unreasonable would be to distort the legislative scheme created by Parliament.  While the Court of Appeal felt that the power of veto granted to the government was a profound one, Davis LJ also noted that this ‘seems to have been appreciated by Parliament in enacting s.53’, with a number of conditions therefore placed upon its exercise, [81].  Indeed, noting that ‘part of the scheme of the FOIA is to construct a series of available exemptions – whether absolute or qualified – to modify the general requirement of disclosure’, Davis LJ recognised that s.53 itself, understood with respect to the broader purpose of this legislative regime, could be conceived as one of the ‘checks and balances which Parliament has thought necessary to provide’, [83].  We may agree or disagree about whether the FOIA creates the best balance between disclosure and exemption of official information, yet to encourage courts to depart freely from this framework is hardly a democratic solution to what is, undoubtedly, a democratic problem.

Secondly, with particular respect to the judgment of the Lord Chief Justice, the invocation of the ‘constitutionality principle’ in this context is striking, [11].  What precisely this means is unclear, but Judge LCJ argued that only judicial oversight of the exercise of this veto power – a power effectively for a government minister to override a judicial decision – could offer ‘the necessary safeguard for the constitutionality of the process’, [14].  What precisely the notion of ‘constitutionality’ adds to the discussion in this context is also unclear, and Davies LJ’s leading judgment does not seek to rely on this principle, opting more straightforwardly to seek to interpret the meaning of s.53 both literally, and as part of the broader legislative scheme.

What is clear is that some judges are becoming much more comfortable in making appeals to such abstract public law principles when deciding specific cases, whether calling upon those principles is strictly necessary to resolve the case before them or not.  And, with this ‘principle of constitutionality’ a prime example, these principles are often utilised without their contestable nature being recognised.  In Evans, the notion of constitutionality seems to be employed to demonstrate that government activity must be inherently limited and strictly controlled by law.  Yet the limitation of government is not the predetermined purpose of constitutional law and practice (as Martin Loughlin, to offer just one leading example, has persuasively argued).  Judicial appeals to the notion of constitutionality which are based on this background assumption are therefore liable to continue to be greeted sceptically – especially when unnecessary to dispose of the case before them – by those concerned about the rhetoric and reality of judicial supremacism.

Thirdly, although the outcome of Evans is that Prince Charles’ advocacy correspondence is not to be disclosed (The Guardian has, however, confirmed it will appeal the decision), the FOIA has still produce some limited degree of transparency.  In having to explain and justify its exercise of the veto to a legally reasonable standard, as the FOIA explicitly requires, the government was forced to reveal a number of compelling facts about the nature of the Prince of Wales’ correspondence with government departments.  The letters reflected Prince Charles’ ‘most deeply held views and beliefs’, were ‘in many cases particularly frank’, and ‘contain remarks about public affairs which would… potentially have undermined his position of political neutrality’ (see [12] of the Statement of Reasons, appended to the Court of Appeal’s judgment as Annex A).

As the FOIA was amended in the final days of the previous government to make such future correspondence absolutely exempt from disclosure (by s.46 and Schedule 7 of the Constitutional Reform and Governance Act 2010), these somewhat cryptic insights into the nature of the relationship between the heir to the throne and the government may be the last made public for some time.  Yet while the details of how the Prince of Wales sought to influence government policy may remain concealed, as do whatever consequences may have been the result, the government itself has conceded, in exercising and justifying the veto, that such attempts have been made.  Having this established officially and beyond doubt, in such intriguing terms, is no small achievement.  Those who find the level of continued support for the (‘constitutional’) monarchy difficult to understand may simply have to draw on this to console themselves that the political neutrality of the heir to the throne has been exposed as a fiction, and hope that constitutional practice can evolve in such a way as to minimise future royal influence over the government.

Dr Mike Gordon is a Lecturer in Public Law at Liverpool Law School, University of Liverpool.

 Suggested citation: M. Gordon, ‘Prince Charles’ Correspondence Back in Court – Reflections on R. (Evans) v. Attorney General’   UK Const. L. Blog (22nd July 2013) (available at http://ukconstitutionallaw.org)

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Robert Hazell: The Royal baby, the Rules of Succession, and the Realms

robert_hazell1In anticipation of the birth of the Royal baby, Parliament passed the Succession to the Crown Act in April 2013.  It provides that in future the eldest child will be next in line of succession, whether it is a girl or a boy.  The law will not come into force in time for the Royal birth, but the new baby when born will be next in line.  This Blog post explains the background, and the difficulties involved in changing the rules of succession.

Why have the rules of succession been changed?

Over the last 20 years a series of Private Member’s bills have been introduced into both Houses of Parliament to provide for gender equality in the rules of succession to the Crown.  The Labour government did not resist the principle of the change; but it explained that such a change could be initiated only by the government, because of the need to engage with the 15 other countries of which the Queen is head of state (the Realms).  The government supported the change because of the equalities legislation it had itself introduced.  Another motivating factor was that the other European monarchies were all amending their laws to introduce equal primogeniture.  Sweden was the first to change, in 1980, followed by the Netherlands in 1983, Norway in 1990, Belgium in 1991, Denmark in 2009, and Luxembourg in 2011.  Spain has said it will switch to equal primogeniture, but the Spanish constitution has not yet been amended.

Although supportive of the change, the Labour government ultimately failed to act because it was daunted by the size of the task involved in engaging with the Realms; by further complications, such as whether to address the discrimination against Catholics which is also built into the rules of succession; and because there was no immediate reason to do so.

Why now?

The marriage of Prince William and Kate Middleton in April 2011 provided a spur to action.  What had been a hypothetical problem became a real possibility.  Having written to them beforehand, in October 2011 David Cameron used the Commonwealth Heads of Government meeting in Perth, Australia, to engage with those Commonwealth countries that are also Realms and seek their agreement to change their own laws.  The UK government has said that it will not bring the new law into force until all the Realms have made the change.  When the change is made, it will be backdated to 28 October 2011, the date of the agreement announced in Perth.

Why has changing the law taken so long?  The Realms

Changing the rules of succession for the UK is complicated because the British monarch is head of state of 15 other countries, known as the Realms.  These include large countries such as Australia, Canada, Jamaica, New Zealand; and small countries such as St Vincent, Tuvalu and the Solomon Islands.  (The full list is Australia, New Zealand, Canada, Jamaica, Antigua and Barbuda, Belize, Papua New Guinea, St Christopher and Nevis, St Vincent and the Grenadines, Tuvalu, Barbados, Grenada, Solomon Islands, St Lucia and The Bahamas).

The UK government and Buckingham Palace want any change in the rules of succession to be introduced throughout the Realms (if there were different rules, that could lead in time to different members of the Royal family succeeding in different countries).  Under the Perth agreement all the Realms agreed to make the necessary changes to their own laws.  The nature of the change required varies roughly in proportion to the size of the country: the smallest countries may simply pass a Cabinet resolution, others will legislate in parliament, while the largest countries may need to amend their constitutions.

Australia and Canada face particular difficulties because they are federations, where the consent of the states (in Australia) or the provinces (in Canada) is required for any constitutional amendment.  In Australia a compromise has been agreed that the State Parliaments will request the federal Parliament to change the law.  In Canada a minimalist law passed by the federal Parliament has since been challenged on the ground that changing the office of the Crown properly requires amendment of the Canadian constitution.

Will the Royal baby be next in line?

As the eldest child, the Royal baby will be next in line of succession after Prince William, whether it is a girl or a boy.  It does not matter that the new law has not been brought into force providing for equal primogeniture: so long as there is only one child, it is next in line.  The new law would only be needed if the eldest child is a girl, and a second child is subsequently born which is a boy.  The UK government hopes and expects that all the Realms will have come into line in the next 6-12 months, so the new law should have come into force by the time of the birth of any second child.

What other changes were made to the rules of succession?

Two other changes were made.  The Royal Marriages Act 1772 was repealed, and in future only the first six persons in line to the throne will require the Sovereign’s approval to marry.  Second, marrying a Roman Catholic will no longer disqualify a person from being in the line of succession.  But the prohibitions on the Monarch being a Roman Catholic remain: the Sovereign continues to be Supreme Governor of the Church of England, and must be in communion with the Church of England.

What does this change tell us about the British constitution?

Being unwritten, the British constitution is very easy to amend. Big changes, such as devolution to Scotland and Wales, reforming the House of Lords, or the Human Rights Act can be introduced by simple Act of Parliament.  What this episode shows is that changes to the succession to the Crown are much more difficult, because the change needs to involve not just the UK but the 15 other Realms.

It will have taken two to three years to effect this small change.  The difficulties in the Realms are multiple and varied.  Some saw this as a project of the UK government, and little to do with them.  Some struggled to realise what was required.  Some did not wish to provoke a wider debate about the monarchy.  At the other end of the scale, the two largest countries, Australia and Canada, have constitutions which are notoriously difficult to change.  So if any future change requires a constitutional amendment in either of those countries, the difficulties are further compounded.

It is too early to tell whether this small change has further consequences for the Realms themselves.  They are a widely scattered group of countries, most of whom have little in common.  It is possible that this exercise will have brought them a little closer together; it is also possible that it prompts some to question the link with the monarchy of a country so far away.

 

Robert Hazell is Professor of British Politics and Government at UCL, and Director of the Constitution Unit.

This post originally appeared on The Constitution Unit’s Blog. (http://constitution-unit.com/)

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Tom Hickman: Turning out the lights? The Justice and Security Act 2013

TomThe Justice and Security Act 2013 (“JSA”) received royal assent on 25 April 2013 and Part 2 of the Act is expected to come into effect in July 2013. Part 2 makes fundamental changes to UK law in any civil case involving national security issues by creating an extraordinary and seductive alternative to public interest immunity (“PII”) procedure. The alternative, known as Closed Material Procedure or “CMP”, represents a carve-out from basic principles of equality of arms and open justice by allowing courts to consider any material the disclosure of which would be “damaging to the interests of national security” without such material being disclosed to the non-Governmental party to the case.

The significance of the JSA from a rule-of-law perspective can hardly be overestimated, however infrequently it may (or may not) be used. During the final debate on the measure in the House of Lords (26 Mar. 13 Col. 1032), Lord Brown, the recently retired Law Lord and former Intelligence Services Commissioner, warned that the “legislation involves so radical a departure from the cardinal principle of open justice in civil proceedings, so sensitive an aspect of the court’s processes, that everything that can possibly help minimise the number of occasions when the power is used should be recognised…..”. Despite this, the power is a seductive one for Government and even for the courts. It enables the Government to place material before the courts without risk of public exposure or scrutiny and in the knowledge that it shielded from challenge because evidence cannot be adduced to respond to it (the other parties not knowing what it is). Judges will be attracted by the fact that it enables them to see all the evidence relevant to the decisions they have to make.

The operation of the JSA will no doubt be the subject of close attention by Governments around the world, not least those that have inherited the PII system.

The passage of the Bill

This blog completes a trio of posts on the passage of the Justice and Security Bill focusing on the provisions relating to CMP (undoubtedly the most significant and controversial part of the JSA). When the Bill was unveiled I drew attention to various ways in which it failed even to correspond to the objectives that the Government had set out in its Green Paper on Security and Justice

The Government’s main objective was stated to be to increase judicial scrutiny of the conduct of the Intelligence Services by enabling courts to consider material that would otherwise be excluded altogether from civil proceedings by the operation of PII. Furthermore the PII system was said to be doubly unfair: it was unfair, it was said, that the Government could not defend itself when its defence involved reliance on intelligence material that could not be disclosed and it was also said (through gritted teeth) to be unfair to claimants who could not prove Government illegality without reference to such material.

However the prospect of secret hearings to determine ordinary civil cases provoked very strong objections of principle from sections of the legal profession, civil liberties groups and wider society. They argued that such a regime is flatly contrary to the rule of law and natural justice.

Leaving aside these, fundamental, objections, the Bill that was introduced by the Government was strikingly lopsided: it would have enabled the Government to apply for CMP when it suited the Government to do so; the courts would have had no power to refuse a Government request for CMP in any case involving national security sensitive material; and, what is more, neither the courts nor other parties in the case would have had power to invoke CMP in cases in which it would have been contrary to the Government’s interests for the court to look at the material.

Such lopsidedness was so extravagant and indefensible, including when tested against the Government’s own stated objectives, that the Government must have expected to give way on most if not all of these issues and may have included such provisions in the original Bill to draw fire from other issues of more concern.

Unusually, the Bill was introduced in the House of Lords rather than the Commons. And the House of Lords, following a largely impressive debate which included important contributions from distinguished lawyers as well as intelligence experts, removed the lopsided provisions from the Bill, most importantly freeing the hands of the courts to decide whether to use CMP rather than this being in the hands of the Government. The House of Lords was widely hailed at the time as having inflicted a painful bloody nose on the Government. But I suggested in my second blog that this was not in truth much of a defeat for the Government.  I suggested that if the Bill was to be enacted two further protections were necessary: the retention of the Wiley balance and the introduction of a mechanism for a full review of the legislation.

When the Commons opened its deliberations on 18 December 2012 the Government accepted most of the changes that had been made. Kenneth Clarke, the Minister responsible for the Bill, stated in almost his first breath that the, “the people who moved those amendments [in the Lords] were pushing at an open door in terms of judicial discretion”. Perhaps most importantly, the Government accepted what has become section 6(5) of the JSA, which provides that it is a condition for the use of CMP that the Court is satisfied that its use in any particular case is “in the interests of the fair and effective administration of justice” (s.6(5)).

The Government refused to accept a requirement inserted by the House of Lords that CMP could be used only if a fair determination of the case could not be reached by any other means. After lengthy debate in the Commons, this provision was removed and a last-ditch attempt by the Lords to re-introduce it, when the Bill returned there, failed. The Government argued that the “last resort” requirement imposed an unwarranted fetter on the discretion of the Judge as when to use CMP. The irony that the Government had initially resisted judicial discretion did not seem to faze it. The Government was particularly concerned to ensure that a PII process does not have to be completed before CMP is ordered. It argued that in litigation such as the Guantanamo Bay case (see Al Rawi v Security Services [2012] 1 AC 531), which involved tens of thousands of potentially sensitive documents, the courts should be able to relieve Ministers of undertaking a PII exercise by making a CMP order instead.

However this argument is not persuasive. To begin with it departs from the Government’s own justifications for CMP—accountability and fairness—and instead rests a case for use of CMP on grounds of administrative convenience. Administrative convenience is not a good argument for departing from core natural justice rights and the established constitutional discipline of PII.

The administrative convenience hand is also over-played. It will still be necessary for the laborious process of document review and redaction to be undertaken when CMP is used. It is true that the Wiley balance (to which we will shortly turn) will not be applied to any of the documents. However it is precisely the fact that the Wiley balance is not applied to documents when a CMP is used which is such a powerful reason for CMP being a last resort that occurs only after a PII exercise has been conducted to enable material found to be properly covered by PII to be considered by the court. Notably those of their Lordships in Al-Rawi v Security Services who thought that the common law could be developed to allow CMP in exceptional cases made clear that this could only be a last resort after the completion of PII. This was at least in part to ensure that the departure from fairness and equality of arms inherent in CMP would be kept to a minimum.

It is true, as the Government pointed out, that PII usually involves a Minister personally reviewing every document over which PII is claimed and that this is not the practice when CMP is used in statutory contexts, but if personal review of every document is unmanageable in a particular case, this gives rise to an argument for a modification of the PII process rather than being an argument for using CMP as an alternative.

As I have said, the Government’s arguments won the day on the “last resort” issue, but the effect may be limited. The Government amendment did not go as far as to prevent the courts from insisting that PII exercises are gone through before considering CMP. This will be a question for the court in each individual case. There was also some merit in the Government’s general argument that the courts should have the fullest discretion to decide what is in the interests of justice in any individual case. It is impossible to predict all of the circumstances in which need for CMP might arise and a last resort provision could have had unintended consequences, such as in cases of urgency or where the parties consented to a CMP.

This question, as to when it will be in the interests of the “fair and effective” administration of justice to use CMP in ordinary civil proceedings, and the circumstances in which CMP can properly be invoked, will be the first important battleground between the Government and claimants. It looks likely that it will be considered in a number of cases almost as soon as Part 2 of the JSA comes in to effect. A great deal turns on the courts’ answer to this question.

A further important amendment that had been made by the House of Lords enabled a non-Government party to a case to apply for a CMP if that party requires documents that would otherwise be covered by PII in order to prove its case.  After initial Government resistance, this was retained. Section 6(1) and (4) of the JSA enable a court to use CMP on the application of any party or at the courts’ own motion, in a case in which national security sensitive material is relevant.

Furthermore, the Government brought forward a welcome additional protection which is now found in section 7, JSA. This provides that courts must keep the need for CMPs under review and “may at any time revoke” a section 6 declaration “it if it considers that the declaration is no longer in the interests of the fair and effective administration of justice in the proceedings” (s.7(2)). The “fair and effective administration of justice” is thus not only the trigger for CMP but is also a condition for terminating, or exiting, CMP.

The Government also bowed to pressure to insert clauses requiring information about the use of CMPs to be made public and for a review the operation of the system. Section 12 JSA requires the Secretary of State to report on the use of CMP every twelve months, including the number of cases in which it has been used and on the application of which party. Section 13 requires the Secretary of State to appoint a person to review the operation of the provisions relating to CMP after five years. These provisions provide salient oversight mechanisms and an important degree of transparency about how widely the CMP system is being used in civil cases. But just as importantly, sections 12 and 13 disincentivise over-use of the CMP system and will hopefully make the Government more reluctant to make CMP applications than it might otherwise would have been.

The Wiley balance issue

Let us then turn to the Wiley balance, which I have identified as a key issue in this and previous posts. The Wiley balance reflects a key constitutional principle, first recognised in England by the House of Lords in Conway v Rimmer (previously in Scotland) and subsequently re-affirmed by their Lordships in Ex parte Wiley, from which it takes its name. This principle is that the interests of secrecy do not act as a trump card which the Government  can play to resist disclosure of documents in legal proceedings. The courts must balance the interests in secrecy against the interests of justice, including open accountability, in deciding whether the documentation should be disclosed.

This balance is not applied in the statutory contexts in which CMP is currently used—in particular in SIAC, under the TPIM Act 2011 and in the Investigatory Powers Tribunal. In these contexts where the Government asserts that disclosure of evidence would be contrary to the public interest, the court or tribunal must not require its disclosure if it agrees that some harm to the public interest could result. Absent the Wiley balance whole swathes of information are not disclosable in these contexts even where the impact on national security would be relatively slight or remote but the interests of justice in disclosure are overwhelming. The result is that the majority of the evidence in a case, and often if not usually the entirety of the Government’s factual case, remains undisclosed and is considered in closed (subject to a limited AF (No 3) gist in TPIM cases). I gave the vivid example of the CC & CF case in my previous blog.

It is this system that is now contained in the JSA. It works in the following way. Upon the application of a party or of its own motion the court has a discretion, under section 6(1) of the JSA, to declare the proceedings are proceedings in which CMP can be used. At this stage, as emphasized above, the court can weigh the interests of justice and it must decide whether CMP would further the “fair and effective” administration of justice. But once a  section 6(1) declaration has been made section 8(1)(c) provides that rules of court “must secure” that if the Government applies to withhold material from a party and to adduce it by way of CMP, the court “is required to give permission for material not to be disclosed if it considers that the disclosure of the material would be damaging to the interests of national security”. Therefore once the CMP trigger has been pulled, the court loses its power to order disclosure of sensitive material where this is required in the interests of natural justice or openness. Once the section 6(1) declaration is made, the court can bring no balance of interests to bear in an application for material to be considered in a CMP and is required to approve the withholding of such material from the non-Government party.

The importance of this point can be illustrated by reference to the Binyam Mohamed case [2011] QB 218. In that case CMP was used in judicial review proceedings with the consent of the parties. However unlike in the statutory contexts in which CMP is used, PII principles were applied, including the Wiley balance. This played an important part in Court of Appeal’s decision to disclose information that revealed just how much UK intelligence officials knew about the mistreatment of Mr Mohamed whilst detained in Pakistan, based upon reports supplied to them by the CIA.  The Court of Appeal made public the reasons for the Divisional Court’s finding that UK officials had been improperly involved in the wrongdoing of foreign officials. The judgments of Lord Judge CJ and Sir Anthony May P emphasised that the balance between secrecy and open justice came down in favour of the latter. In addition to this, because the Government had applied the Wiley balance to all sensitive material and judged that there was, on balance, a public interest in disclosure of a considerable amount of it, the Government had disclosed important  information about the activities of the Intelligence Services as well as material relating to the CIA’s activities in respect of Mr Mohamed, including information deriving from the CIA itself (e.g. see [164]-[165]). This included for instance the fact that Binyam Mohamed had been the subject of rendition – a fact asserted to be secret by the CIA in US proceedings.

The Government rejected calls to build the Wiley balance into the JSA to avoid the possibility of repeat of the Binyam Mohamed case. An amendment that would have introduced the Wiley balance was defeated in the Commons, just as it had been in the Lords. But the debate on this issue in the Commons was ill informed. The Government argued that the Wiley balance simply had no relevance in the context of CMP because there is no question of damage to the interests of justice by material being excluded from the proceedings altogether. This failed to acknowledge the important role of the Wiley balance in protecting open justice, as demonstrated by the Binyam Mohamed case, as well as the fact that the evidence cannot be effectively challenged (including by submitting counter-evidence) if the excluded party does not know what it is.

It was also said that only a tiny amount of evidence would be subject to CMP. Sir Malcolm Rifkind MP, current Chair of the ISC, rejected analogies with Kafka on the basis that, “We are talking about cases in which the vast majority of evidence will be heard in open session. If closed material procedures do apply, they will apply usually to a very modest part of the total evidence.” On the contrary, given that the Government usually refuses to confirm or deny anything at all about the activities of the intelligence services, all of the factual evidence other than the allegations advanced by the aggrieved individual are usually kept entirely secret where CMP applies under statute because no balance of interests can be brought to bear.

The Government’s refusal to accept the Wiley balance was also flatly inconsistent with its often repeated assurance in Parliament and the media that the operation of CMP in civil cases would not result in any material that is currently disclosed being kept secret. For example, James Brokenshire MP, Minister for Crime and Security, stated at Committee stage on behalf of the Government:

“Let me be absolutely clear: in practice, nothing in these proposals will enable evidence that is heard in open court under the present arrangements to be head in secret in the future. That means that the claimant will continue to have access to at least the same level of information as is given under PII.” (31 Jan 2013, col. 150).

 As my example of the Binyam Mohamed case demonstrates, this is straightforwardly wrong. The disclosures made in that case about the activities of the Intelligence Services and the treatment and rendition of Mr Mohamed would not have been made if CMP under the JSA had applied.

The JSA does, however, provide at least the possibility of judges being able to expose Governmental wrongdoing when CMP is used. The potential is opened-up by section 7 which, as we have seen, enables courts to exit CMP when it is no longer in the interests of the fair and effective administration of justice. If serious wrongdoing was identified by CMP but could not be revealed, one option might be to exit CMP procedure to enable it to be exposed.

Opposition to the Bill fell away

Before concluding, I should make clear that following the defeat of an amendment to remove the CMP provisions from the Bill in the Lords, when the Bill moved to the Commons none of the three main political parties in Parliament had any appetite for removal of the CMP provisions. All accepted in principle that there are cases in which it is appropriate to use CMP. A discussion of this issue goes well beyond the scope of this and my previous blogs. My more modest ambition in these posts has been to highlight the need to include key safeguards in the legislation and chart the progress of the Bill through Parliament. Having now done so, my conclusions are these:

Conclusions

(1) Welcome safeguards introduced.  It is undoubtedly the case that the terms of the JSA are a vast improvement on the terms of the Bill as originally introduced to Parliament. The Government accepted the inclusion of important safeguards, including judicial discretion, the ability for both parties and the court to trigger CMP, CMP exit power, reporting and five year review. For this both the Government and Parliament must be given considerable credit (even if the Government might have anticipated at the outset that some of these protections would have to be included).

(2) Government redlines held. In the end, the Government got its desired CMP without difficulty and held its redline position on the non-application of the Wiley balance. This included defeating efforts to require CMP to be a last resort, which carried the implication that the PII exercise (with Wiley balance) would have to be gone through before CMP could be used.

(3) Control over information re-asserted. The Government has thus achieved a core objective of re-asserting control over national security information. Even if it is required to conduct a PII process, it is always open to the Government to concede issues or the entire claim if it is are ordered to disclose material which it does not want to disclose. This ejectorseat option was not available in the Binyam Mohamed case because what was sought in that case was third party disclosure applying Norwich Pharmacal principles. Such a claim could not be conceded without supplying the information sought. As I noted in my first blog, the Bill also included clauses that would immunise the intelligence services from Norwich Pharmacal actions in the future. These provisions were enacted in section 17 of the JSA without any significant opposition. In any event, in an extraordinary twist in the tale, the Court of Appeal has recently held in the case of R (Omar) & Ors v Foreign Secretary [2013] EWCA Civ 118 that it ought not to have permitted a Norwich Pharmacal application against the Intelligence Services and overruled the Binyam Mohamed case.

(4)  “Fair and effective” the key issue. The key issue under the JSA, which will determine how widely CMPs are to be used in civil proceedings and whether they become a means of concealing Governmental wrongdoing, is what is meant by “fair and effective administration of justice” in sections 6(5) (trigger) and 7(2) (exit).

(5) Turning out the lights? Given the new jurisdiction for courts to use CMP in civil proceedings, we may come to look back on the Binyam Mohamed case as the high point of public accountability of the Intelligence Services. For a moment, in the tense, shocking aftermath of the 9/11 terrorist attacks, the English courts opened a window into the workings of the Intelligence Services and shone a light on their murky relationship with the CIA. The JSA enables this window to be closed and for this light to be extinguished. Whether this is what occurs will depend very much on how the courts interpret its provisions and how they decide to use their new statutory jurisdiction to scrutinise the activities of the British Intelligence Services.

Tom Hickman is a Barrister and Reader in Public Law, UCL 

Suggested citation: T. Hickman ‘Turning out the lights? The Justice and Security Act 2013′ UK Const. L. Blog (11th June 2013) (available at http://ukconstitutionallaw.org)

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