Category Archives: UK Parliament

News: The House of Commons Political and Constitutional Reform Committee Reports on Royal Consent

Parliament from river

The House of Commons Political and Constitutional Reform Committee reported on the practice of Royal Consent. Royal Consent was discussed on this blog in a post by Thomas Carter Adams. The doctrine requires the consent of the Queen, or, in some situations, the Prince of Wales, before a bill which affects their personal interests is discussed in Parliament.

Unsurprisingly, the Committee recommends that this requirement be abandoned.  The Committee – like the correspondents to the earlier blog post – had some difficulty identifying precisely what type of constitutional rule this was: whether it was an aspect of the prerogative, a rule of parliamentary procedure, or a convention.  It concludes that it is a rule of parliamentary procedure, and so falls within the province of each House of Parliament to modify or remove.  The Committee concluded that the provision could be abolished by the Houses making an address to the Crown followed by a Resolution of each House.

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Alexander Horne: Is there a case for greater legislative involvement in the judicial appointments process?

Alexander HorneThe dramatic increase in public law and human rights cases coming before the UK Supreme Court (and the Appellate Committee before it) means that the UK’s top court is more frequently determining essentially socio-political questions. In addition, in recent years, the judiciary has pressed for a rather more expansive definition of judicial independence, with a greater emphasis on the institutional independence of the judiciary. This has tended to lead to more powerful leadership roles, for senior judges in particular.

These changes, coupled with a greater focus – by both the judiciary and the executive – on the doctrine of the separation of powers, has resultedin judges taking responsibility for matters which, prior to theConstitutional Reform Act 2005, would most likely have been left to the Lord Chancellor (and his former Department). In the light of this expanding judicial role, now seems an appropriate time to question whether any new mechanisms for increasing political accountability, such as a parliamentary confirmation procedure, are needed for appointment to the most senior judicial offices (including, but perhaps not limited to, the UK Supreme Court, given the growing managerial roles played by the Lord Chief Justice and Heads of Division).

Confirmation processes are often dismissed out of hand – frequently with negative references to the partisan approach seen in the United States of America. Lord Neuberger (then Master of the Rolls) captured the common view of hearings before the USSenate Judiciary Committee, when he observed:

“Once you start muddying the water and involving the legislature in the appointment of judges, you risk going down a slippery slope, not quite knowing where it will end. The last thing that we want is the sort of thing you see in the United States. I do not pretend that it happens with every appointment to the Supreme Court but we all remember interviews and proposed appointments that led to something of a jamboree or a circus. I do not think that we want that.” (Evidence to the House of Lords Constitution Committee, November 2011)

 Of courseviews on the US experience do not go entirely one way. Graham Gee has previously considered whether the lessons drawn by UK commentators are necessarily justified; suggesting that most hearings do not generate political conflict and that in any event, “hearings are not the primary source of the politicization of the process” given the important role that partisan considerations play in the President ‘s nominations for the federal bench. Nonetheless, it must be acknowledged that a knee jerk reaction against the US procedure remains commonplace.

Critics of hearings frequently point to the potential impact on judicial independence. In its report on Judicial Appointments, published in March 2012, the House of Lords Constitution Committee summarised many of the oft-heard objections when it concluded that:

“Parliamentarians should not hold pre- or post-appointment hearings of judicial candidates, nor should they sit on selection panels. Political considerations would undoubtedly inform both the selection of parliamentarians to sit on the relevant committees or panels and the choice of questions to be asked.”

In spite of this, issues around judicial independence and accountability are now receiving more interest from academics and some parliamentarians. The question of whether to introduce parliamentary hearings received some attention during the consideration of theconstitutional reformswhich eventually led to the passage of the Constitutional Reform Act 2005. Scholars such as Keith Ewing and Robert Hazell and the former Permanent Secretary of the then Lord Chancellor’s Department, Sir Thomas Legg QC,argued that nominees for the new Supreme Court could be interviewed or confirmed by Parliament. The Study of Parliament Group published The Changing Constitution: A Case for Judicial Confirmation Hearings?, a short report by this author, in 2010.  Areport by Policy Exchange in 2011 suggested that:

“[A] more radical approach to judicial selection should at least be considered – namely legislative oversight of appointments to the Supreme Court. This would have the advantage of ensuring that judges retained their independence, but would be subject to Parliamentary scrutiny prior to their appointment.” (Policy Exchange, Bringing Rights Back Home)

And in 2012, the think-tank CentreForum published a report by Professor Alan Paterson and Chris Paterson, entitled Guarding the Guardians (the title may give some clue as to their conclusions)

The recently concluded project on the Politics of Judicial Independence, involving the Constitution Unit, Queen Mary and the University of Birmingham, is another good example – posing challenging questions about the balance between judicial independence and accountability – asking“who is now accountable for the judiciary, and to whom?” and “what are the proper limits of judicial independence?”.  Views on the subject of confirmation hearings were splitin a seminar on the subject of Judicial Independence, Judicial Accountability and the Separation of Powers, but a number of potential advantages were identified, including the fact that hearings could enhance the legitimacy of judges. Moreover, recent experience of the introduction of hearings in Canada, addressed in a series of articles (e.g. Peter Hogg, Appointment of Justice Marshall Rothstein to the Supreme Court of Canada, (2006) 44 Osgoode Hall Law Journal 527), suggest that one does not have to emulate the contentious US model.

Following in the footsteps of these earlier studies, the Study of Parliament Group has just published a new research paper, by the author of this post, entitled Is there a case for greater legislative involvement in the judicial appointments process?  It seeks to address some of the conceptual arguments for greater political accountability in the appointment process and also considers the expanding ambit of judicial independence. Focusing on whether parliamentarians should have a role in the judicial appointments process, it asks what is meant by political accountability in the context of judicial appointments and considers what evidence there is that greater accountability is necessary.

The paper examines whether new methods of accountability could be introduced in the UK without impacting on judicial independence, and seeks to shed light on these questions by assessing the recent move by the UK Parliament to introduce pre-appointment hearings for other public appointments. Finally, it evaluates whether such processes are readily transferable and, if so, whether UK parliamentary committees are well placed to undertake this task.

The paper concludes that the introduction of pre-appointment hearings for the most senior judicial appointments would have a number of benefits and could help ensure that independent and robust candidates are appointed.  As to the question of politicisation, it considers that as long as there is a continued role for an independent judicial appointments commission to recruit and screen candidates at first instance, any significant politicisation of the process could be avoided.

Whether recent examples of workable models from the UK, or from other jurisdictions, can convince the senior judiciary of the merits of such a change is clearly open to some doubt. But the author hopes that this new work might nonetheless inform any future debate on these issues.

This blog post is published to coincide with the launch of a new Study of Parliament Group Research Paper on Judicial Appointments.

 Alexander Horne is a Barrister (Lincoln’s Inn) and is currently the Legal and Senior Policy Adviser at the House of Commons Scrutiny Unit. The SPG Paper ‘Is there a case for greater legislative involvement in the judicial appointments process?’ is based on an MPhil thesis undertaken part-time at Queen Mary, University of London between 2010-13.  The views expressed are those of the author and should not be taken to reflect the views of any other person or organisation.

(Suggested Citation: A. Horne, ‘Is there a case for greater legislative involvement in the judicial appointments process?’ U.K. Const. L. Blog (27th March 2014) (available at  http://ukconstitutionallaw.org/).

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Scot Peterson: Constitutional Entrenchment in England and the UK

peterson_scotFrequently people think that there are only two ways address flexibility in a constitution: to legally entrench an entire document and to protect it with strong judicial oversight, or to have a political constitution and a sovereign parliament, which, in the words of A.V. Dicey, ‘has … the right to make or unmake any law whatever….’ One aspect of this sovereignty is that parliament cannot bind itself: ‘That Parliaments have more than once intended and endeavoured to pass Acts which should tie the hands of their successors is certain, but the endeavour has always ended in failure.’

Parliament has regularly used language limiting its future options. The Bill of Rights (1688) says that the rights declared there ‘shall be declared, enacted, and established by Authority of this present Parliament, and shall stand, remain, and be the Law of this Realm for ever’. More recently, Parliament promised in the European Union Act 2011 to hold a referendum on any law that increased the competencies of the EU and put in place mechanics for holding itself accountable through judicial review. Are these attempts really as pointless as Dicey claims?

The intention of the convention parliament in 1689 was to put an end to the conflicts of the preceding seventy years (interrupted by the reign of Charles II). The more recent act, too, was a product of what preceded it. Originally the Labour government had ruled out a referendum on the Treaty Establishing a Constitution for Europe (2004), which among other things introduced new shared competencies with member states. When the press speculated about Labour’s prospects before the 2004 European Parliament Elections (June 2004), Tony Blair announced that there would be a referendum on the treaty. After the treaty collapsed (because it was rejected in France and the Netherlands), the member states entered into the Lisbon Treaty, which had many of the same characteristics as the proposed constitution. Conservatives accused Labour of inconsistency in being unwilling to hold a referendum on the Lisbon Treaty, and in their manifesto promised a referendum lock on any future transfers of competencies, so that politicians would not be able to waver for short-term, political purposes. That promise became part of the coalition agreement in 2010 and was enacted into law.

The language used by parliament in both of these cases is a commitment device. It need not even be judicially enforceable to constrain (impose additional costs on) future choices by the legislature. Public embarrassment, through a newspaper’s exposure of inconsistency, is a practical means of ensuring accountability, so long as the newspapers do their job. And, as under the Human Rights Act 1998, the legislature may permit the courts to point out, but not to correct, inconsistency with entrenched law. An overly simplistic distinction between codification and a political constitution eliminates complex differences between these tools, and wastes resources that should be available to policy makers.

Scot Peterson is the Bingham Research Fellow in Constitutional Studies and Junior Research Fellow in the Social Sciences at Balliol College, University of Oxford.

(Suggested citation: S. Peterson, ‘Constitutional Entrenchment in England and the UK’ U.K. Const. L. Blog (25th March 2014) (available at  http://ukconstitutionallaw.org/).

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Meg Russell: The Byles/Steel bill – unless amended – holds grave dangers for the Lords

Meg RussellOn Friday 28 February Dan Byles’ Private Member’s Bill on Lords reform completed its Commons passage. It is now in the Lords, and will be sponsored by David Steel. The bill, which allows retirement from the Lords and expulsion of non-attendees and serious criminals, has been presented as a small, uncontroversial “housekeeping” measure. But as already argued in an earlier blog post, as currently drafted it would in fact introduce a very major change that would alter the Lords fundamentally, and in very undesirable ways.

I will not repeat the basic arguments in my earlier post, which is still available to read (see here). But it urged an amendment at Commons report stage, to ensure that those allowed to depart the Lords (through retirement or expulsion for non-attendance) cannot immediately run for the House of Commons. Such calls were made throughout the bill’s Commons passage, but have been resisted by ministers. This is both puzzling and very worrying. It is puzzling because a ‘cooling off’ period before those departing the Lords could run for the Commons has been included in numerous earlier proposals, from the Wakeham Royal Commission to the Clegg bill (both of which are quoted in my previous post). It is worrying for reasons that I will now spell out, somewhat more forcefully than before. In the rest of this post I summarise the problem, reflect on what the Lords should do, and end on responses to some points that have been made against the change that I propose – all of them unconvincing.

The bill as drafted (clause 4(5)(b)) explicitly allows departing Lords members to run for the Commons. The problem that this creates applies not to existing peers, who presumably gave up any Commons ambitions when accepting their life peerage. It relates instead to new members appointed after the bill has passed. One of the weaknesses of the debates to date (on which more below) is that they have focused too narrowly on the likely short-term effects, in terms of how many current peers may depart – and insufficiently on the long-term effects, in terms of future appointments. But while there may be small, short-term gains through allowing a few peers to retire, the effects of the bill in the longer term would be far larger, and potentially extremely damaging to the Lords.

To illustrate, let us consider three possible candidates for the Lords once the bill has passed:

  • Candidate A has served two terms as an MP, and is appointed to the Lords in 2015 after narrowly losing his seat. He badly wants to regain his constituency, and spends much of the next five years working there, maintaining a constituency office and regularly campaigning door-to-door.
  • Candidate B has fought several Commons seats unsuccessfully in the past, and after missing out again in 2015 is rewarded with a seat in the Lords. But she still yearns after a Commons career, so seeks reselection as soon as possible, and uses the Lords to try and raise her local profile above that of the incumbent local MP.
  • Candidate C is appointed to the Lords in 2015 after many years working as an adviser to his party leader. From there he starts looking for a Commons constituency, and uses Lords speeches primarily to broadcast his suitability as a future MP, and maybe even a future leader.

Candidates A, B and C are not so very different to many who have been appointed to the Lords in the past – indeed, around 60% of current party peers are either former parliamentary candidates or MPs. The key difference is that such people currently have to weigh up carefully whether they still want a Commons career. Those in doubt will turn down any offer of a peerage; those accepting one will set other ambitions aside. I do not see candidates A, B and C as bad people who are doing anything underhand or inappropriate; it is understandable that they should see the Lords as a useful temporary resting place. Nor would their party leaders be acting improperly; indeed, it is easy to see how and why leaders would embrace these new patronage powers. The point is that the bill as it stands fundamentally changes the calculus both for those offered seats in the Lords, and for those doing the appointing. Unless the route from Lords to Commons is explicitly ruled out, people will understandably conclude that it is fine to use it. If the bill passes in its current form, please have no doubt: these changes are certain to occur.

It should hopefully already be clear what effect this would have on the Lords. Many members would become far more preoccupied with constituency business and campaigning than with parliamentary scrutiny work; many would watch far more carefully what they said, in order to appeal to the media, local voters and their party leaders; in seeking to make Lords debates more eye-catching, they would make those debates more politicised. In addition, many members would become short-term occupants of the Lords, staying only a few years before another career could be developed – with a consequent loss of long-term thinking. Should this be considered fanciful, look (as set out at greater length in my previous post) at Ireland, and more recently Canada. In Ireland chamber-hopping is absolutely the norm, and Senators (despite not being directly elected) spend much of their time on local campaigning work. Only last month I acted as an adviser to the Irish Constitutional Convention, where this problem with their parliament was much lamented.

The Byles bill has been presented as a small “tidying up” measure, but these changes would be fundamental, and major. For hundreds of years (with a couple of exceptions, discussed below) members have been able to move from Commons to Lords but not the other way around. The bill would thus change centuries of British tradition, and the consequences need very careful thinking through. It could be argued to the bill effectively ends life peerages in all but name: allowing members to depart the chamber when they wish, at any age and after any period of service. But members can de facto already do this if they really wish, simply by ceasing to turn up. The one thing that they cannot do is run for the Commons. Perhaps some see advantages in changing these historic arrangements; but if so they should make a positive case for change, out in the open, and subject to proper scrutiny. This has absolutely not happened so far.

During the passage of the Byles bill through the Commons, concerns about these matters were raised repeatedly, particularly by Conservative backbencher Jacob Rees-Mogg. In response, at second reading last October Dan Byles said that, “That is the sort of detail that I would be more than happy to discuss… and we could consider whether some small amendment might be made in Committee” (col. 1005). When a ‘cooling off’ period was specifically suggested, so that departing peers had to wait several years before running for the Commons (as was provided in clause 41 of the Clegg bill), Byles said that “I would be interested to look into whether a time bar solution could be achieved” (col. 1055). Hence it was reasonable to assume that the problem would be resolved by government-backed amendments at committee stage – but it was not. At report stage last week the concerns were repeated. Rees-Mogg proposed amendments (particularly amendment 21) to deal with them, arguing that it was “fundamentally undesirable” (col. 558) for the Lords to become a base for aspirant MPs. Dan Byles responded that “we all agree that we would not want the House of Lords to become a training ground for a seat in the House of Commons” (col. 560). Stephen Twigg, speaking for the opposition frontbench, described this as “a serious issue” and “a risk” (col. 561). The minister likewise said that “We do not want to see the House of Lords become a nursery for the Commons where young hopefuls start their careers” and claimed to “fully understand” the concerns expressed (col. 562). Nonetheless no amendment was made. Despite pressures both behind-the-scenes and in the chamber, ministers had resisted changes to resolve the problem.

These developments demonstrate in part the weakness of the private members’ bill process. The bill had its second reading and report stage on ill-attended Fridays, with little media attention. Its sole committee session lasted a mere 38 minutes. There was no pre-legislative scrutiny, no call for evidence, no opportunity for witnesses to appear, and consequently no outside group engagement. The limited time available also led to great resistance to amendments. This was worse for the Byles bill for most PMBs, due to fears that any Commons amendments would make its Lords passage more difficult. Those in the Commons were warned to stick rigidly to the contents of David Steel’s previous bill on the topic, which had passed the Lords in 2012-13. Steel’s bill had also failed to include a ‘cooling off’ period, but it was a similarly fragile creature, with fears at the time that any amendments would derail it. Yet everyone knew that its prime purpose was as a spur to government action; and once government gets involved, Private Members’ Bills inevitably get tidied up. Now, however, the original Steel bill is being treated as a kind of revered text, which cannot be altered. The deafness to argument which is occurring over this bill is a classic recipe for bad policy-making, and even for policy disaster. On such an important matter it is essential for reasoned amendments to be properly debated and considered.

So the Lords is now left in a dreadful position. Typically when a bill leaves the Commons with outstanding problems, the Lords provides the forum for them to be carefully discussed and sorted out. It would be a terrible irony if this norm was broken with respect to a policy that concerns – and indeed threatens – the House of Lords itself. But the government claims that any Lords amendments will kill the bill, due to lack of time for these to be considered in the Commons. I am reliably advised by Commons clerks that this is not actually true – while there are no Private Member’s Bill Fridays left, several tricks could be used to get necessary Lords amendments through the Commons by May if the government wants the bill. The Lords therefore should carefully consider possible amendments to deal with the problem.

Options include:

  • Inserting clause 41 of Nick Clegg’s bill of 2012, which would require a ‘cooling off’ period of 4 years (which could be amended to a longer period). This seems the preferable and least contentious solution.
  • Simply removing subclause 4(5)(b), which provides that those departing the Lords are not disqualified from “being, or being elected as, a member of that House [i.e. the House of Commons]“. This would retain the current absolute bar on future candidacies – which probably goes too far, and could create legal uncertainty.
  • Restricting retirement provisions to current peers, not new entrants. Also problematic, as pressures for retirement would recur and require further legislation. Would also need to apply to provisions for expulsion by non-attendance, otherwise this creates a loophole.
  • Restricting these same provisions to those aged over 65 (as was suggested by Jacob Rees-Mogg’s unsuccessful amendment 3 at Commons report stage for the first of the provisions). This too would be a reasonable long-term solution.

Any of these amendments would resolve a weakness highlighted by MPs and therefore be unlikely to face Commons opposition. If the Lords does amend the bill, and the government does not deploy the tactics available to get it through the Commons, it is ministers not peers who would be culpable for killing the bill. If the bill is not amended in one of these ways, my reluctant advice to peers would be to resist it.

It pains me greatly to have to suggest this latter outcome, even as a possibility. I have long argued for the next small steps on Lords reform, both publicly (e.g. here and here) and behind-the-scenes. Allowing retirement would clearly be a beneficial next step. But a conspiracy of silence to get a flawed version of retirement onto the statute book is clearly a bad idea, and the threats in the bill as it stands are far too great. I began research in this area 16 years ago precisely in order to offer objective, evidence-based advice on Lords reform. That evidence tells me that any gain from the bill as is will be relatively small, while its long-term consequences will be huge and negative. Opening up a direct route from Lords to Commons, which has been closed for centuries, would be a major constitutional and political change. If this bill is truly about “housekeeping”, then using one of the amendments above to maintain something similar to the status quo is essential.

Postscript
Finally (in a post which is already far too long) the really committed may want to hear some of the arguments which have been made against the ‘cooling off’ period, and why I believe that they are wrong:

Argument 1: Peers have been able to leave the Lords and run for the Commons before, under the 1963 and 1999 Acts.

Response: these changes occurred in very different circumstances, and only ever extended to those who had inherited their seats in the Lords (i.e. entered by accident of birth) not those who had themselves been appointed. Hereditary peers of “first creation” were not covered by the 1963 Act, while the 1999 Act was a one-off exodus. Neither implied any change to the type of people appointed.

Argument 2: The ‘cooling off’ period proposed in other packages has been in the context of election to the second chamber, not appointment.

Response: This is simply untrue. The Wakeham Royal Commission (as quoted in my previous post) was particularly strong on this point, despite proposing a largely appointed house.

Argument 3: Once in the pleasant environment of the Lords, few people will feel motivated to depart for the Commons.

Response: I believe that this argument is naive, and too influenced by feelings among some current peers. It is important to remember that those now in the Lords have – by definition – renounced the option of a future Commons career. But the bill allows people who feel very differently to be appointed, and their party leaders will be tempted to do so. It is undeniable that a Commons career remains a desirable to many people active in politics, for example promising a salary, access to senior ministers, and a chance at a cabinet career. Indeed a majority of current party peers have run (successfully or unsuccessfully) for the Commons in the past.

Argument 4: Introducing a cooling off period would deny democratic rights to people to run for the Commons.

Response: In fact, a bill with a cooling off period (of say 4, 5 or 10 years) would significantly increase freedoms beyond what they are now. Life peers have been barred since 1958 from running for the Commons (and likewise, aside from exception 1 above, this has always applied to hereditary peers). Few have complained about this restriction.

Argument 5: There is no time in the Lords to consider amendments, given that the second reading is occurring so late (28 March).

Response: It is very unfortunate that the sponsors of the bill chose a late second reading date, seemingly to procedurally block the opportunity for amendments. The Companion to Standing Orders does set down minimum time periods between stages (e.g. 14 days between second reading and committee stage), but these are only ‘recommended’, and it is not unusual for them to be breached by agreement of the usual channels. If an amendment is put down, a committee stage will be required to debate it, and one can be provided.

Argument 6: It would be better to get this bill through, and if a problem occurs to then legislate to correct it afterwards.

Response: This is a very dangerous suggestion. Once the legislation is on the statute book there is absolutely no guarantee that it can be changed. A “corrective” PMB in the next session could easily die, or indeed be blocked by ministers. Then once the route from Lords to Commons has been opened post-2015, it would probably prove impossible close it again: such legislation would appear critical of particular individuals who have taken this route, or of their party leaders; party leaders will anyway by then have adjusted to the enhanced patronage that the bill provides. Far better not to take the risk - even if this means waiting for a better safeguarded retirement provision in a future bill

Dr Meg Russell is Deputy Director of the Constitution Unit, and Reader in British and Comparative Politics at UCL. She is author of The Contemporary House of Lords: Westminster Bicameralism Revived (Oxford University Press, 2013) and Reforming the House of Lords: Lessons from Overseas (Oxford University Press, 2000), and has acted as adviser to the Royal Commission on Reform of the House of Lords, the House of Lords Appointments Commission, the Leader of the House of Commons, and various parliamentary committees.

REPOSTED WITH THE KIND PERMISSION OF THE CONSTITUTION UNIT BLOG.

Suggested citation: M. Russell, ‘The Byles/Steel bill – unless amended – holds grave dangers for the Lords’  Constitution Unit Blog (5th March 2014)  (available at http://constitution-unit.com)  OR  M. Russell,  ‘The  Byles/Steel bill- unless amended – holds grave dangers for the Lords’ U.K. Const. L. Blog (5th March 2014) (available  at http://ukconstitutionallaw.org/).

 

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Stephen Tierney: Why is Scottish Independence Unclear?

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

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

Here are some reasons why:

1. The White Paper is selective

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

2. Are we sure there will be negotiations?

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

3. Who will negotiate?

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

4. What if negotiations break down?

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

5. Will there be a deal?

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

6. Surely experts can predict the outcome of negotiations?

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

7. Clarity and simplicity are not synonyms

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

8. It’s politics, stupid

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

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

9. After independence: designing Scotland’s constitution

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

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

10. It takes three to tango

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

11. What is ‘independence’ anyway?

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

Is there any point in expert commentary?

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

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

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

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

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

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

Thomas Adams: Wade’s Factortame

Thomas CarterWilliam Wade’s analysis of the second Factortame case ((1996) 112 Law Quarterly Review 568) is well known, and justly so. The facts, too, require little in the way of rehearsal.  Briefly, and simplifying somewhat: the House of Lords, as it was then known, decided in 1990 to ‘disapply’ a 1988 statute of the UK Parliament – the Merchant Shipping Act (hereafter the MSA) – which may otherwise have frustrated the exercise of rights recognized in EU law, specifically, the rights of a number of Spanish fishermen to trawl in UK waters. In doing so, the court took itself to be acting under the auspices of the European Communities Act 1972 (hereafter the ECA), itself an Act of Parliament. The ECA provides, by section 2 (4), that European Union Law is to prevail over inconsistent Acts of Parliament ‘passed or to be passed’. Wade’s view was that, in ‘disapplying’ the 1988 Act, the House of Lords altered the fundamental rule of recognition in UK law and thereby affected a technical legal ‘revolution’, one which all but overthrew the doctrine of Parliamentary Sovereignty:

‘When in the second Factortame case the House of Lords [refused to apply the MSA] it was natural to suppose that something drastic had happened to the traditional doctrine of Parliamentary sovereignty. The established rule about conflicting Acts of Parliament, namely that the later Act must prevail, was evidently violated, since the later Act in this case was the [MSA], yet it was disapplied under the [ECA]… When that Act was nevertheless held to prevail it seemed to be fair comment to characterize this, at least in a technical sense, as a constitutional revolution.’

A number of issues arise out of Wade’s analysis, and in this note we focus on two lesser explored but, nonetheless, fundamental questions. The first concerns whether the ‘established rule’ that Wade cites properly applied in Factortame, and hence can be seen to have been modified by the ruling. The second concerns the implications of our first point for Wade’s description of the case. Our aim will be to cast doubt, from within the traditional framework, upon the thesis that Factortame was a ‘revolutionary’ ruling.

Was There A Conflict?

Doubtlessly there was. EU law granted rights to fish which would have been explicitly curtailed by the MSA, had it been applied. But was this the right type of conflict? Wade cites, as having been amended in the case, the following ‘established rule’:

Where two statutes conflict, the latter is to prevail over the former.

Does this rule apply in Factortame? Importantly, the question is not whether EU law itself conflicts with the MSA, because the requirements of the former, as interpreted by the European Court of Justice, are not themselves statutory. The relevant objects of interpretation for the purpose of the rule are the ECA, which requires courts to give effect to EU law, and the MSA, which restricts the rights of non-nationals fishing in UK waters.

Two statutes may be said to conflict if one requires a result that the other denies, if one affirms a proposition of law which the other repudiates. So, for example, a statute prohibiting the consumption of alcohol by those under the age of 18 conflicts with a statute granting children over 15 the right to drink alcohol under the supervision of their guardians. And under the established rule that which was formerly enacted should give way to the latter. What proposition did the MSA stand for? That UK nationals be granted a special dispensation to fish that was to be denied to EU citizens more generally. The question, then, is whether the ECA rejects this legal result and the answer must be that it does not. The ECA says nothing substantive about the rights of EU citizens, UK or otherwise, to fish and so cannot be said, itself, to conflict with the MSA.

One way to see this is to ask the question whether the ECA could be taken to conflict with the MSA if EU law did not grant directly enforceable rights to fish in UK waters to EU nationals. The answer, of course, is that it would not. But the question of whether two statutes conflict cannot be taken to depend upon factors other than their own content. If the ECA and MSA would not conflict in this situation, despite nothing having been changed in our imagined circumstances about the meaning of the statutes, then they cannot be taken to have been in conflict on the facts of Factortame. We cannot settle a matter of interpretation, in other words, on the ground of external contingencies.

To repeat, there was a legal conflict: between the MSA and directly enforceable EU law, which was required to be given effect to under the ECA, but not between the ECA and MSA. Why does this matter? It matters for the reason that the traditional rule that Wade cites – that where two statutes conflict the former must give way to the latter – did not apply in Factortame, and hence cannot be said to have been modified by the result. What the court did in that case was not to alter, or set aside, a long established and fundamental rule of UK Constitutional Law, but to fashion a novel principle – that legislation be given effect subject to EU law, that is, in accordance with the terms of the ECA so long as that statute remained on the books – in a novel constitutional situation. Note, moreover, that this rule does not contradict the central aspect of the doctrine of Parliamentary Sovereignty, the principle that Parliament may make or unmake any law whatsoever. The question of whether Parliament would have to repeal the ECA in order to legislate contrary to EU law, or simply decree that such legislation was to have effect ‘notwithstanding’ the ECA is a nice question of constitutional law, and the answer would probably be settled in favor of the latter.

Recognition and Revolution

Wade’s question, in light of his analysis, was this: ‘Has the House of Lords adopted a new “rule of recognition” or “ultimate legal principle”?’ Having concluded that the traditional rule concerning statutory conflict had been amended he answered in the affirmative, describing the situation as ‘revolutionary’. Disagreeing with Wade’s analysis, we may pose a different question in the terms suggested by our own argument: does the fact that the House of Lords established a rule in a situation of constitutional uncertainty entail that their verdict was one of revolutionary import? Does, in other words, the fact that the court made decision which, in this sense, affects the rule of recognition constitute a technical legal ‘revolution’? Seeing why it does not requires a better understanding of recognition rules, and their place in a constitutional order.

The constituent parts of a legal system, H.L.A. Hart famously argued, have synchronic identity in virtue of the fact that they are identified, by the courts, in accordance with the system’s ultimate criteria of recognition. These criteria – shown in use but rarely, if ever, stated in anything close to canonical form, complex and in various ways indeterminate – both fix the court’s ultimate duties within the system and bestow upon them a further responsibility. Because, ultimately, it is for the courts to interpret and apply the rule of recognition it falls on them, also, to resolve doubts and indeterminacies relating to its application. Such a task is not merely desirably placed within the hands of the courts, as legal experts, buts falls on their shoulders of necessity.

The courts have, in this sense, an inherent jurisdiction, in the context of controversy, to determine the limits of their own powers. This authority is, of course, limited by the central, uncontroversial tenets of constitutional doctrine, so no paradox arises, but the capacity is real nonetheless. Hart makes the point:

‘The possibility of the courts having authority at any given time to decide… limiting questions concerning the ultimate criteria of validity, depends… on the fact that, at that time, the application of those criteria to a vast area of the law… raises no doubts, though their precise scope and ambit do.’

At the limits of their role the courts must make decisions not controlled directly by the constitution, but at any rate within their power; this is what happened in Factortame. Is it right to call such judgments ‘revolutionary’? The answer, perhaps, may be less exciting than we have been lead to believe.

Thomas Adams is a D.Phil candidate at Balliol College, University of Oxford.

 Suggested citation: T. Adams, ‘Wade’s Factortame’ U.K. Const. L. Blog (24th February 2014) (available at: http://ukconstitutionallaw.org/).

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Filed under Judicial review, UK Parliament, Uncategorized

Neil Walker on Scotland: Hijacking the Debate

NeilLet me lay my cards on the table. I remain inclined to vote ‘no’ in September’s referendum. I put it no stronger than ‘inclined’ in part  because I believe, in  the spirit of democracy – even democracy referendum-style – that those of us who have not signed the party pledge should keep an open mind as long as possible. That, indeed, is one of the reasons  why,  18 months ago,  some of us set up the Scottish Constitutional Futures Forum  and its  accompanying blog. But my reservations are also partly because  recent  events  have fuelled my anxiety about  the climate in which the debate is taking place. They have made me wonder whether the case for independence is getting a fair crack of the whip on the international stage, and have caused  me to ponder the implications of lending my vote to a position that remains so reliant upon negative rather than positive arguments.

I am not talking about the shenanigans over a Currency Union. It may  be a minority position, but I believe both sides have been giving as good as they get on this question, and that neither comfortably occupies the moral high ground. There has always been something  both opportunistic and wishful in the nationalist stance. Sterling, once derided as a busted flush,  is reclaimed as a joint birthright. The Euro, once hailed  as the bright new  monetary dawn, is conveniently relegated to the status of a political  lifestyle choice rather than faced up to as an obligation of EU membership that can, at most, be  deferred.

The Unionist response may be  no more elevated  than this, but is surely ranks no lower. There is an arguable case, if a far from compelling one, that it would be in rUK’s best interest to refuse the  departing Scots a Currency Union. There are certainly risks  either way, and  rUK might well change tack in the cold light of a ‘yes’ vote. But Better Together is being no more narrowly strategic than the nationalists in arguing forcefully for the position that  best suits its immediate interests. It is a position that could backfire – may already be backfiring – as it allows the nationalists to play the victim card, and to point out that, as the residual sovereign in the event of post-yes-vote negotiations, rUK enjoys  the ‘bully’s’  advantage  of  being able to make promises  – or threats – that it can credibly deliver upon in self-fulfilment of  its prophecies and  prejudices. But in the final analysis, the Better Together position, like the nationalist one, is a democratically legitimate one. It is articulated by  elected politicians of various parties in favour of a constituency – the UK – whose  right to retain the decisive constitutional  voice is the very issue at the heart  of the referendum. And while nationalists may proclaim the inconsistency of Better Together’s new position with its previous self-denying ordnance against pre-specification of the terms and conditions of independence, they must also acknowledge that  the Unionist parties, by building a united front on sterling, have at least  answered another widely aired  doubt. For  once they have demonstrated their ability to get their act together and find common voice when it really matters.

The issue of democratic credentials, however,  brings me directly  to the point of my comment: namely that other awkward union, the European Union, and the position of Jose Manuel Barroso, President of the European Commission, on the subject. Barroso has previously given strong indications of where he stands, so perhaps we should not be too surprised by his remarks on the BBC’s flagship Andrew Marr Show last weekend. The novelty of his latest contribution may only have been one of emphasis, but the tone was nevertheless striking. Apparently the prospects of membership for an independent Scotland, never untroubled in his perspective, are now to be assessed as  “extremely difficulty… If not impossible.”

These remarks have been well publicised. Predictably, they have been seized upon by Better Together as vindicating their long-standing scepticism about an independent Scotland’s EU future, and as further evidence of the emptiness of nationalist promises. But why should anyone listen to Barroso on this topic?  Does he have a legitimate political voice in the debate? Does he speak from a position of legal authority?  Or, regardless of his political or legal standing, does he simply have a good insider argument, and one that we should heed? The answer, on all three counts, would seem to be ‘no’. Why is this so, and why is it important to the integrity of the debate that the kind of intervention Barroso has sought fit to make should be challenged?

First, there is the question of legitimate political voice. Barroso is not an elected politician. One upon a time he was. Between 2002 and 2004 he was Prime Minister of Portugal. Since then he had done two stints and ten years as the unelected President of the European Commission. His position, which he will vacate this year, does depend upon that of two elected institutions – on the  Council ( made up of nationally elected politicians) which proposed him, and on the European Parliament which  was required to approve  his appointment.  Under new rules introduced by the recent Treaty of Lisbon, the appointment of his successor will be subject to an additional  indirect democratic check – namely the requirement that his or her nomination by the European Council should ‘take account’ of the results of the latest European Parliamentary elections. In fact, the last European elections in 2009 already saw a move towards an overtly political style of appointment, with Barroso the chosen candidate of the   European People’s Party.    But none of these developing procedures and practices can make an elected politician out of an unelected public servant. Barroso has no popular mandate, and perhaps some sense of that lay behind his protestations to Andrew Marr, rendered not a jot more credible by their repetition,  that his words did not constitute an attempt ‘to interfere’ in a matter of internal Scottish and British politics.

But even if Barroso represents no electoral constituency, does he, as head of the Commission, nevertheless possess a clear legal authority, or even a duty,  to step into the Scottish debate? The Commission certainly has an extensive legal remit. According to Article 17 of the Treaty on European Union, it ‘shall promote the general interest of the Union’.  Yet in so doing we should understand the Commission’s  role as servants of the Treaty framework rather than its master. Article 17 continues by specifying the Commission’s role in ways that reflect and confirm its status  as  the EU’s  administrative college. Its responsibilities are largely downstream. They include the monitoring of the  application of European law, the performance of various budgetary, management, executive and management functions, as well as the power to initiate ( but not decide) legislation under the Treaties. In all of this the Commissioners, including the President, like civil servants everywhere, are charged to act independently of external influence.

None of this suggests any stand-alone authority for the Commission or its President on the high political question of new membership, except insofar as this is directly specified in the Treaties. But if we look at the relevant provisions  – Article 49 on accession and  Article 48 on  the alternative route of general Treaty revision – the standing of the Commission is a distinctly modest one. As regards accession, its role is only one of consultation, with the key decision-making reserved to the European Parliament and the Council. As regards general Treaty revision, the Commission is one of a number of institutions that may make proposals, but here the decisive voice lies squarely with the national governments.

If the Commission does not command a central  legal role in these matters, should we not nonetheless be prepared to listen carefully to the views of its President simply as an expert in Union-craft -  as someone who has the knowledge and experience gained from a decade of independently ‘promoting the general interest of the Union’? Absolutely. Of course we should! The snag  here is  that the President has chosen to say nothing worth saying – nothing that would draw upon a considered sense of that general interest,  but instead restricts himself to well-worn  prognostications about what others  might do in pursuit of their particular interests. He trades on the symbolic authority of his position to do nothing more than profound than  recall that the reception of an independent Scotland into the European Union, whether through the  Article 49 route that he envisages, or through the relatively  ‘seamless’ Article 48  route that the nationalists argue for, would  require the approval of all 28 existing member states; and then to advise that this is an arithmetically formidable threshold, especially given the reservations of certain member states about independence movements in their own backyards – a caution that, as Barroso proceeds to reminds us,  has led Spain, concerned with Catalonian and Basque claims, even to refuse to permit a precedent as distant as the recognition of Kosovo as an independent Balkan state.

What is glaringly absent from the debate, both in the  knowing buck-passing of Barroso’s intervention and in the broader silence of the EU’s main movers and players on the Scottish question, is the articulation of any kind of public philosophy that would provide good reasons, rather than simply motivations of base political self interest, why an independent Scotland should or should not be welcomed with open arms. How, precisely, is the EU, still  resolved by common commitment of the member states in the preamble to the Treaty on European Union ‘ to  continue the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as closely as possible to the citizen in accordance with the principle of subsidiarity’, to justify the exclusion of an independent Scotland? Why should  a country of 5  million citizens, who  have also been EU citizens for 40 years and who have expressed no desire to leave the European Union, be treated less  generously than the 110 million new EU  citizens – over 20% of the EU’s total population – who have joined from Central and Eastern Europe since 2004? Why should Scottish citizens instead be placed in the same category of Kosovo, or any other  potential candidate from beyond the Union’s distant borders?

The point in posing  these rhetorical questions is not to suggest that the propositions they contain will simply collapse under the weight of their own absurdity. For there  may well be a principled case to  make  against automatic and accelerated membership of an independent Scotland. We find the embryo of such a case, for example, in the analysis of Joseph Weiler, the current President of the European University Institute in Florence. He has argued, with special  reference to the Catalan case,(see http://www.ejiltalk.org/catalonian-independence-and-the-european-union/) that just as national minorities in existing member states who presently enjoy extensive forms  of individual and collective freedom have no  automatic right to secede as a matter of general international law, so, too, the  European Union in its accession policy should not be expected to indulge the independence claims of these unoppressed sub-state nations.To the contrary, the very ethos of integration, reconciliation and continental solidarity that has fed the European project from its post-War beginnings, according to Weiler, should lead  the European Union to take a dim view of any separatist impulse that seems to betray these very founding virtues. From this perspective, therefore, far from having a stronger claim than those external candidates  who have benefited from the post-Cold War Enlargement, those nations already comfortably nested in the EU’s Western European heartland  of multi-level governance should be promised no safe European haven if they insist on the path to independence.

I happen to disagree with both the specific thrust and the wider implications of the  Weiler thesis. To begin with, and most narrowly, even if Weiler’s reasoning is applicable to the situation of Catalonia, where no constitutionally permissible route to referendum and independence is presently countenanced at the level of the wider Spanish state, the Scottish case  is quite different. Here, the Edinburgh Agreement reflects the preparedness of the UK’s flexible constitution to accommodate the prospect of independence. So for the EU to set its face against Scottish independence would be  to dismiss the significance of the member state’s own recognition of the legitimacy of secession.  Secondly, and more broadly, whether we are dealing with the  Scottish or the Catalan case or that of any other national minority, surely more store than Weiler allows should be set by an aspiring nation’s own sense of what is the constitutionally adequate vindication of its desire for collective autonomy. If nothing short of independence is deemed adequate from the perspective of the constituency in question as an affirmation of shared political identity, it is difficult to see why such a subjective  aspiration should be dismissed in favour of a supposedly objective  standard of adequate individual and collective freedom. Thirdly, even if a special case for the EU  as an entity possessing and pursuing a unique historical mission to make internal secession both unnecessary and unacceptable can  be advanced,  it seems unduly dogmatic to use this to justify a rigid policy against  continued membership of new internal states. There are, after all, other and rival views of the deeper purpose of the European Union. The priority given in the Preamble to the TEU to the principle of subsidiarity has already been mentioned, and this surely reflects an alternative  and more independence-friendly perspective. In the face of these competing narratives, should the public policy of the EU on accession not remain more agnostic?

Whether or not my arguments convince, they surely serve to demonstrate  that the EU’s accession policy is and always has been intimately linked to the deep purposes of the world’s first supranational polity, and to ongoing debate, inevitably controversial, over what precisely these deep purposes demand.  It is, therefore, a matter that  requires reasoned public argument and justification of the sort that Weiler attempts rather than a mere weighing of the strategic ‘private’ preferences of national parties. Yet all we get from Barroso is the latter. Not only is this less than we might expect from someone committed to the general interests of the Union, but it also allows the prejudices of national parties to be entered to the calculation without the embarrassment of a first person airing.

In a nutshell:  If any of the key players on the EU stage is opposed to Scottish membership then they should either show the courage of their convictions through a discourse of public justification linked to the interests of the Union as a whole  or, failing that,  they should at least be prepared to declare their intentions to act out of national self-interest. Barroso’ s intervention allows a significant oppositional note to be struck without either of these tests of public candour being met. The danger increases that our independence debate become hijacked to poorly specified and undefended external considerations. That surely is bad news for anyone interested in the referendum as a means to the long-term, widely accepted  resolution of our national conversation.

Neil Walker is Regius Professor of Public Law and the Law of Nature and Nations at the University of Edinburgh.

Suggested citation: N. Walker, ‘Hijacking the Debate’ Scottish Constitutional Futures Forum Blog (18th February 2014) (available at: http://www.scottishconstitutionalfutures.org) or N. Walker, ‘Hijacking the Debate’ U.K. Const. L. Blog (18th February 2014) (available at: http://ukconstitutionallaw.org/).

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Filed under Constitutional reform, Devolution, England, Scotland, UK Parliament, Uncategorized

Alison Young on HS2: Wilkommen zum Constitutional Pluralism

young_alison-l2The HS2 case is widely recognised as the first important Constitutional case of the year. Its importance for parliamentary sovereignty and the relationship between EU law and national law appears to turn on four paragraphs: paragraph 79 of Lord Reed’s judgment and paragraphs 206 to 208 of the judgment of Lord Neuberger and Lord Mance. Mark Elliott states that these paragraphs suggest that, not only does the UK have a separate category of ‘constitutional statutes’ but that some constitutional statutes are more constitutional than others. Adam Tomkins comments that the case also demonstrates the dangers that can arise when the Court of Justice of the European Union (CJEU) interprets EU directives in a purposive or teleological manner, perhaps taking these provisions beyond what the Member States, represented by the Council, the European Parliament and the Commission intended. He welcomes the approach of the Supreme Court which questions the interpretation of the CJEU. I want to focus on another question – is HS2 best understood as the UK’s conclusive acceptance of constitutional pluralism? In doing so, I hope to demonstrate how this may alleviate the confusion that may be caused by multi-layers of constitutional statutes, as well as how this may help the UK to respond when it believes that the CJEU may have gone too far.

Constitutional Pluralism

Constitutional pluralism is a much-used term. It can be hard to define, particularly when separating it from the related issue of legal constitutionalism. It can also be hard to separate out when the term is used to describe inter-institutional relationships and when it is used to prescribe how institutions should relate to one another. For the purpose of this brief response, constitutional pluralism is defined as occurring when two or more institutions assert the authority to definitely resolve a particular issue, but where neither institution can effectively ‘make good’ on its assertion of authority.

Applied to the European Union, both the CJEU and national courts assert their claim to be the institution that definitively determines the nature of the relationship between national law and EU law. However, neither can fully make good on this claim. The CJEU does not stand in a hierarchical relationship to the national courts. As such, it cannot, as a matter of law, force the national courts to comply with its judgments. However, national courts are also not completely free of influence from the CJEU. They play a major role in implementing EU law, but have no power to declare EU law to be invalid and, for the highest level of court capable of adjudicating on a particular issue, have an, albeit limited, obligation to refer the case to the CJEU. Whilst the CJEU determines EU law, the national courts determine how this is applied to the facts.

Constitutional pluralism can also be applied to the UK. Whilst Parliament enacts legislation, courts determine the principles by which this legislation will be interpreted. Courts control executive actions, either according to common law principles or statutory provisions, and the legislature can enact measures to override common law principles or to oust the jurisdiction of the courts. Both Parliament and the courts have a role to play in determining how legislation is recognised, and in assessing what is meant by ‘parliamentary sovereignty’ when expressed as a legal principle. Whilst most English courts are courts of inherent jurisdiction, Parliament could still place judicial power on a statutory basis, determining its confines.

HS2 and the EU

It is easy to find references to a potential acceptance of constitutional pluralism in the, probably already seminal paragraphs of Lord Reed and of Lord Neuberger and Lord Mance. All argue that the relationship between EU law and national law is a matter for UK constitutional law, to be determined by the UK courts. This is true for conflicts between EU law and UK statutes and for conflicts between EU law and UK constitutional principles. Lord Reed states that the issue as to whether a Directive should override national law ‘cannot be resolved simply by applying the doctrine developed by the Court of Justice of the supremacy of EU law, since the application of that doctrine in our law itself depends upon the 1972 Act’ [79]. Further, [i]f there is a conflict between a constitutional principle … and EU law, that conflict has to be resolved by our courts as an issue arising under the constitutional law of the United Kingdom.’ [79] For Lord Neuberger and Lord Mance ‘[u]nder the European Communities Act 1972, United Kingdom courts have also acknowledged that European law requires them to treat domestic statutes, whether passed before or after the 1972 Act, as invalid if and to the extent that they cannot be interpreted consistently with European law’ [206]. As regards a potential conflict between EU law and national constitutional principles, ‘[i]t is, putting the point at its lowest, certainly arguable (and it is for United Kingdom law and courts to determine) that there may be fundamental principles, whether contained in other constitutional instruments or recognised at common law, of which Parliament when it enacted the European Communities Act 1972 did not either contemplate or authorise the abrogation’ [207].

Constitutional pluralism is also illustrated in the way in which all of the members of the Supreme Court interpret the requirements of the Directive. There is recognition of potential problems with its interpretation. This is analysed not just from a perspective of national constitutional principles. The Supreme Court looks at the separation of powers, a constitutional tradition shared by the Member States. EU scholars who advocate constitutional pluralism draw on its ability to encourage judicial dialogue and to act as a mutual check. In particular, national courts can point out when decisions of the CJEU may challenge national constitutional principles – and vice versa – helping to alleviate concerns that arise when the CJEU has been overly teleological or purposive in its interpretation of EU law. Constitutional pluralism at the EU level does not just involve the courts. National courts look to national law – including legislation. Member State governments can contribute third-party interventions to the CJEU.

Constitutional pluralism in the UK

Lord Reed, Lord Neuberger and Lord Mance all refer to constitutional principles. For Lord Reed, article 9 of the Bill of Rights 1689 ‘embodies’ a constitutional principle. If a statutory principle can embody a constitutional principle, then this would appear to suggest that this constitutional principle exists independent of its embodiment. It also raises questions as to whether constitutional principles can also be embodied in the common law. Lord Neuberger and Lord Mance also refer to fundamental principles ‘enshrined’ in the Bill of Rights. In addition, ‘[t]he common law itself also recognises certain principles as fundamental to the rule of law’ [207]. They also refer to ‘constitutional statutes’ and ‘constitutional instruments’, both of which appear to be different from ‘ordinary statutes’ and potentially different from one another.

To delineate between different levels of statutes in this manner adds to the confusion already created by the classification of some statutes as ‘constitutional’. Academic debate continues as to what, if anything, is meant by a ‘constitutional statute’ and recent decisions of the Supreme Court appeared to downplay their importance. Rather than adding to the confusion, it may be better to recognise that the English law recognises constitutional principles which can be embodied in statutes – whether classified as ‘constitutional statutes’ or ‘constitutional instruments’, embodied in the common law, or which can act as background principles used when interpreting the common law, actions of the administration and legislation.

To read the decision in this manner is to recognise another example of constitutional pluralism. Parliament enacts the law. Courts interpret its provisions. Parliament can enact legislation embodying constitutional principles. Courts can embody constitutional principles through developing the common law. Courts may also refer to constitutional principles when interpreting executive acts and legislation. In doing so, both the courts and Parliament can check on the potential excesses of the other in a manner similar to the Member States and the CJEU. This is not to argue anything novel – if anything it is to state the obvious. What needs to change is our analysis of constitutional decisions according to a bifurcation between parliamentary and judicial sovereignty and accept that both may assert sovereignty, but neither really is supreme.

 Alison Young is a Fellow and Tutor in law at Hertford College, University of Oxford.

Suggested citation: A. Young, ‘Wilkommen zum Constitutional Pluralism’ U.K. Const. L. Blog (17th February 2014)  (available at  http://ukconstitutionallaw.org/)

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Filed under European Union, Judicial review, UK Parliament, Uncategorized

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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Mark Elliot: Reflections on the HS2 case: a hierarchy of domestic constitutional norms and the qualified primacy of EU law

mark1Earlier this week, the UK Supreme Court gave judgment in R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3. A good overview of the issues at stake in the case can be found in the Court’s press summary, as well as in a post by David Hart on the UK Human Rights Blog. This post is concerned only with one aspect of the decision, and with some very interesting dicta concerning not only the relationship between UK and EU law, but the nature of the UK’s constitutional order itself.

The issue raised by the case that is of relevance to this post can be stated (for these purposes) relatively straightforwardly. EU Directive 2011/92/EU lays down requirements concerning the way in which Member States must make certain decisions, including the decision concerning the construction of the proposed “HS2” high-speed rail network. The question for the Supreme Court was whether the process to be adopted in relation to the HS2 project will be compliant with the Directive—and, in particular, whether it will facilitate the degree of public participation called for by the Directive. Unusually, the decision concerning HS2 is to be taken not by administrative means, but by way of the enactment of a “hybrid Bill” (which is now before Parliament). Lord Reed—whose judgment on this aspect of the case commanded the support of the other six Justices—explained what is meant by a “hybrid Bill”:

The Speaker has defined a hybrid bill as “a public bill which affects a particular private interest in a manner different from the private interests of other persons or bodies of the same category or class” (Hansard (HC Debates), 10 December 1962, col 45). This hybrid character influences the Parliamentary procedure: a hybrid bill proceeds as a public bill, with a second reading, committee report and third reading, but with an additional select committee stage after the second reading in each House, at which objectors whose interests are directly and specifically affected by the bill (including local authorities) may petition against the bill and be heard. Parliamentary standing orders make provision for those persons who have standing to lodge a petition.

Whether this process passed muster according to the Directive appeared to require the Supreme Court to assess the adequacy of parliamentary procedure, using the Directive as a benchmark. Lord Reed observed that such scrutiny of the legislative process might impinge “upon long-established constitutional principles governing the relationship between Parliament and the courts, as reflected for example in article 9 of the Bill of Rights 1689”. In fact, Lord Reed concluded that the Directive did not require scrutiny of a constitutionally-problematic kind, but he went on to consider (briefly) what would have happened if that Directive had called for such scrutiny. He concluded that objections to the constitutional propriety of close judiciary scrutiny of the legislative process would not be capable of being resolved simply

by applying the doctrine developed by the Court of Justice of the supremacy of EU law, since the application of that doctrine in our law itself depends upon the [European Communities Act 1972]. If there is a conflict between a constitutional principle, such as that embodied in article 9 of the Bill of Rights, and EU law, that conflict has to be resolved by our courts as an issue arising under the constitutional law of the United Kingdom. Nor can the issue be resolved, as was also suggested, by following the decision in R v Secretary of State for Transport, Ex p Factortame Ltd (No 2) [1991] 1 AC 603, since that case was not concerned with the compatibility with EU law of the process by which legislation is enacted in Parliament.

At one level, this dictum merely serves as a reminder that—as section 18 of the European Union Act 2011 reminds us—the effectiveness of EU law within the UK legal system is ultimately attributable to, and a function of, the European Communities Act 1972. At another level, however, Lord Reed’s comment implies that EU law’s position within the UK system falls to be determined not only by reference to the bald terms of the ECA 1972, but also by reference to other features of the domestic constitutional landscape with which EU law might conflict, and which might therefore constrain the domestic applicability of constitutionally-suspect EU norms.

And this, in turn, suggests that the domestic status accorded to EU law is a matter which is too complex to be resolved by reference to the binary distinction drawn in Thoburn v Sunderland City Council [2002] EWHC 195 (Admin) between “constitutional” and “ordinary” legislation. According to that analysis, the fact that EU law enters the domestic system via gateway provisions enshrined in constitutional legislation secures primacy for EU in the absence of specific derogation from it in other primary legislation. But while Thoburn suggested that not all legislation is equal, it left unconfronted the question whether the hierarchy of statutes it envisaged is exhausted by the constitutional/ordinary distinction: whether, in other words, all constitutional legislation is equal in status.

The intriguing possibility that all constitutional legislation might not be equal—that there might be an ordering of constitutional norms and statutes more subtle that which is afforded by the binary framework of Thoburn—is given further succour by the joint concurring judgment of Lords Neuberger and Mance (with which the other five Justices agreed).  Lords Neuberger and Mance considered in more detail than Lord Reed the constitiutional implications of the claimants’ contention that the Directive required close judicial assessment of the adequacy of the legislative procedure adopted by Parliament, so as to bring the requirements of the Directive into tension with the constitutional principles, referred to above, concerning the proper relationship between the courts and the legislature. Lords Neuberger and Mance observed that:

Article 9 of the Bills of Rights, one of the pillars of constitutional settlement which established the rule of law in England in the 17th century, precludes the impeaching or questioning in any court of debates or proceedings in Parliament. Article 9 was described by Lord Browne-Wilkinson in the House of Lords in Pepper v Hart [1993] AC 593, 638, as “a provision of the highest constitutional importance” which “should not be narrowly construed”.

Could an EU Directive require domestic courts to set aside such a fundamental principle? Lords Neuberger and Mance doubted this. They observed that, in Factortame, the House of Lords had taken the ECA 1972 to require courts to treat as “invalid” domestic legislation found to be incompatible with EU law. (I pass over, for present purposes, fact that the House of Lords in Factortame in fact said no such thing, and merely held that domestic legislation could be disapplied to the extent of any inconsistency with EU law.) However, according to Lords Neuberger and Mance, it does not follow from Factortame that the ECA 1972 requires national courts to accord primacy to EU law over all domestic law:

The United Kingdom has no written constitution, but we have a number of constitutional instruments. They include Magna Carta, the Petition of Right 1628, the Bill of Rights and (in Scotland) the Claim of Rights Act 1689, the Act of Settlement 1701 and the Act of Union 1707. The European Communities Act 1972, the Human Rights Act 1998 and the Constitutional Reform Act 2005 may now be added to this list. The common law itself also recognises certain principles as fundamental to the rule of law. It is, putting the point at its lowest, certainly arguable (and it is for United Kingdom law and courts to determine) that there may be fundamental principles, whether contained in other constitutional instruments or recognised at common law, of which Parliament when it enacted the European Communities Act 1972 did not either contemplate or authorise the abrogation.

This analysis does not dissent from the basic idea, mentioned above, that EU law’s status within the domestic system is attributable to, and therefore determined and potentially circumscribed by, the ECA 1972. That was the point which Lord Bridge was at pains to make in Factortame, albeit that the sparseness of his analysis reduced the proposition to one of (prudent) judicial politics rather than high constitutional analysis. The Thoburn case placed some intellectual meat on the doctrinally skeletal Factortame decision by seeking to explain Parliament’s capacity to accord primacy to EU law—including in relation to legislation enacted after the ECA 1972—given its supposed inability to bind successor Parliaments. Thoburn did that by characterising the ECA as a constitutional statute that was immune from implied repeal, such that later legislation that was inconsistent (but not explicitly inconsistent) with EU law would cede priority to the ECA and hence to the EU law to which that Act gives effect.

However, the analysis of Lords Neuberger and Mance in the HS2 case goes further. It introduces the notion that not all constitutional measures are equal. (I use the term “measure” in order to encompass both constitutional legislation and common-law constitutional principles.) Instead, the analysis suggests that some constitutional measures are more fundamental than others, and that Parliament—in a given constitutional measure, such as the ECA—should not lightly be taken to have intended the abrogation of some other, perhaps more fundamental, constitutional measure. On this view, whilst—according to Thoburn at least—ordinary legislation will always (unless explicitly inconsistent) yield in the face of constitutional legislation, the relationship between constitutional statutes is a complex one that turns upon the fundamentality of the norms they respectively enshrine. Equally, on this view, the constitutional nature of a statute should not be taken to establish that it necessarily prevails over a common-law constitutional principle, the fundamentality of which might outstrip that of the constitutional statute (or, more precisely, the relevant provision contained in the statute).

This analysis has practical implications for the primacy of EU law. It has always been clear that that primacy is qualified in the sense that, as a matter of domestic constitutional law, Parliament is free to derogate from EU law provided it makes its intention sufficiently clear. However, the views advanced by Lords Neuberger and Mance in HS2 suggest that the primacy of EU law within the UK system may be more qualified than has so far been appreciated. In particular, it suggests that the “constitutional” status of the ECA does not conclusively establish that EU law prevails over everything except an explicitly-inconsistent Act of Parliament. Instead, the extent of EU law’s qualified primacy is, on this analysis, delimited by other constitutional measures—including (some) other “constitutional” legislation, and perhaps (some) common-law constitutional rights and principles—whose claim to constitutional fundamentality may prove more compelling than that of the ECA itself.

Moreover, the HS2 analysis has implications extending well beyond our understanding of the status of EU law within the UK legal system. In the judgments of Lords Neuberger and Mance and (to a lesser extent) Lord Reed, we find the seeds—at the highest judicial level—of a vision of the British constitution substantially at odds with Diceyan orthodoxy. Dicey—who famously said that “neither the Act of Union with Scotland nor the Dentists Act 1878 has more claim than the other to be considered a supreme law”—envisaged a constitutional landscape of unrelenting normative flatness, in which hierarchical considerations were limited to the purely formal (Acts of Parliament prevailing over the common law, primary legislation over secondary). In contrast, the HS2 judgment envisages a far richer constitutional order in which the differential normative claims of constitutional and other measures fall to be recognised and calibrated in legal terms. None of what is suggested in HS2 is wholly novel: it is over a decade since Thoburn introduced the notion of constitutional legislation, and the idea of common-law constitutional rights has been around for substantially longer. Nor can the inchoateness of the constitutional vision presented in HS2 be denied. It is, nevertheless, highly significant that a seven-Justice Supreme Court has endorsed an analysis of the constitution that is so un-Diceyan. Some will see HS2 as a judgment that puts EU law in its proper constitutional place. But by putting the constitution itself in its proper place—as a subtly-ordered body of law that occupies a distinctive position within the hierarchy of legal norms—the implications of HS2 may have more profound implications.

Mark Elliott is Reader in Public Law at the University of Cambridge. This post originally appeared today on Dr. Elliot’s blog Public Law for Everyone.

Suggested citation: M. Elliott, ‘Reflections on the HS2 case: a hierarchy of domestic constitutional norms and the qualified primacy of EU law’  U.K. Const. L. Blog (23rd January 2014) (available at http://ukconstitutionallaw.org).

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