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Seminar Announcement: Political vs. Legal Constitutionalism: fin de siècle?

School of Law, SOAS, University of London

Cordially invites you to

The Comparative Constitutional Law Series

Political vs. Legal Constitutionalism: fin de siècle?

Wednesday 29 October 2014

Room 4426, Main Building, SOAS, Thornhaugh Street, Russell Square

 

 

This workshop examines the state of the debate on political and legal constitutionalism in the UK and provides a comparative perspective on similar debates in the US, China, and India. Why does the debate persist despite scholarly efforts to address it? Why is it significant at all? What are the consequences of accepting one approach or another? Should we move beyond the debate because it is no longer interesting or relevant?

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First Session: 17:00-18:15

The State of The Debate in The UK

Graham Gee (Birmingham University): Is there More to the Political Constitution than Meets the Eye?

Jack Caird (Sussex University): Enhancing Politics through Law? Constitutional Politics in the Political Constitution

Discussant: Nick Barber (Oxford University): The Debate as a Red Herring

Moderator: Mazen Masri (City University)

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Second Session: 18:30-19:45

The Debate Elsewhere

Ernest Caldwell (SOAS): the Chinese debates

Alexander Fischer (SOAS): the Indian debates

Nimer Sultany (SOAS): the US debates

Discussant: Paul O’Connell (SOAS)

Moderator:  Ioannis Kalpouzos (City University)

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Open and free for the public

 

For more info contact: Nimer Sultany, ns30@soas.ac.uk

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Tom Hickman: ISIS, passports and Magna Carta: New national security powers raise complex issues

tomOn 1 September the Prime Minister made a statement to Parliament in which he indicated that the Government was considering introducing the following new national security measures:

  • Powers to enable the police to confiscate passports at borders if they suspect an individual is seeking to travel to support terrorism, for a period allowing them to investigate the individual concerned. This will include “safeguards and … oversight”.
  • A power to exclude British nationals from the UK.
  • Placing no-fly list arrangements on a statutory footing.
  • Requiring persons subject to TPIMs to engage with the Prevent programme.
  • Ratcheting-up the statutory restrictions that can be imposed on individuals under the TPIM Act 2011 to include “stronger locational constraints” either through use of exclusion zones or relocation powers.

The announcement followed atrocious acts committed by ISIS in beheading Western hostages and, in particular, the fact that British citizens were implicated. In her Conservative Party Conference speech, the Home Secretary said that a new counter-terrorism bill would be introduced by the end of November.

Although the Prime Minister made a welcome reference to the need to avoid a “knee-jerk” reaction to ISIS, these proposals have a back-of the envelope feel. In addition to clarifying precisely what is proposed, it needs to be understood why these powers are—given those already in existence—required to meet the needs of the police and security services.

Several discussions in the media since the Prime Minister made his statement have demonstrated a lack of understanding of what is proposed and what powers are already available. A survey of how the proposals fit within the suite of national security powers already available is therefore worthwhile.

Removal of passports

Reference is often made by the general public to a person being granted a passport in terms which are intended to mean a grant of citizenship. Correspondingly, people often refer to a person being stripped of a passport when they mean stripped of citizenship. It is often not appreciated, even by lawyers, that as a matter of UK law the grant of a passport is quite separate from the grant of citizenship and that under UK law a national has no right to a passport.

A British citizen benefits from many rights and privileges, including a right of abode in the United Kingdom protected by s.2, Immigration Act 1971. But British citizenship does not entitle a person to a British passport. Under the peculiarities of the British constitution, the Secretary of State retains a power to refuse or cancel a passport under the royal prerogative.

The conferral of a passport is essentially a diplomatic act, which both confirms the identity of the bearer and confirms their status as a British national under the diplomatic protection of the British Crown. British passports include a request on behalf of the British Crown to “all those whom it may concern” to “allow the bearer to pass freely without let of hindrance, and afford the bearer such assistance and protection as may be necessary.” Each passport states that it “remains the property of Her Majesty’s Government …and may be withdrawn at any time.” If a person refuses to return a passport upon request they are presumably guilty of theft.

The power to revoke and refuse passports has long been regulated by a published policy, a policy that was updated as recently as 25 April 2013. The policy states amongst other things that the power may be invoked to stop “British nationals who may seek to harm the UK or its allies by travelling on a British passport to, for example, engage in terrorism-related activity”.

The removal of a passport does not therefore affect a person’s right of abode in the UK, which is statutory, nor – rather importantly – does it actually remove a citizen’s right to travel abroad or come and go from the United Kingdom. This is a common law right or freedom that is also embodied in Article 12(4) of the ICCPR, which states: “Everyone shall be free to leave any country, including his own”. The effect of withdrawal of a passport is to frustrate the exercise of that right by denying an individual a universally accepted from of identification and by withdrawing the request of the Crown that he or she be given free passage. But a person who travels abroad having had their passport withdrawn, has done nothing wrong.

The Prime Minister’s proposals relate to the extension of the Home Secretary’s power relating to passports to the police, allowing them to withdraw and confiscate passports for a short period pending an investigation. However, given that the power does not actually preclude a person from travelling abroad—it simply makes it more difficult for them to do so—it doubtful whether an extension of this power is really the right way to approach the issue. A more appropriate power might be a temporary travel ban. But as we shall see Parliament has already made provision for travel bans under the Terrorism Investigation and Prevention Act 2011 (“TPIM Act”) and therefore any such new power needs to be considered alongside those already available under the TPIM Act.

Before turning to the TPIM Act, however, we should consider the power to deprive people of British citizenship under section 40 of the British Nationality Act 1981. This power has historically been used to strip dual citizens of their nationality, allowing them to be either deported or excluded (by a legally separate but often contemporaneous order) from the UK. The Bureau of Investigative Journalism reported in December 2013 that the use of the deprivation power had “dramatically escalated” to prevent jihadists returning to the UK.

A controversial amendment to this power made by section 66 of the Immigration Act 2014, which came into effect in July this year, allows the Secretary of State to deprive people of British citizenship even where this would make them stateless where the individual has committed acts that are prejudicial to the vital interests of the country.

But despite its breadth, the power of deprivation of citizenship has important limitations. The power to render a person stateless does not apply to non-naturalised citizens. It must also be doubtful whether the deprivation power could be used against persons seeking to travel to the Middle East for the first time, as opposed to returning jihadists, since such persons would not have yet done any acts prejudicial to the interests of the UK. Furthermore, it would not be appropriate for this power to be used for the purpose of investigating a suspect, since its effect is permanent.

Of more significance therefore is a power under the TPIM Act to impose a “Travel Measure” on an individual reasonably believed to be involved in terrorism related activity. Schedule 1 paragraph 2 of the TPIM Act establishes a power with the explicit purpose of prohibiting a person from leaving the United Kingdom (or alternatively requiring prior notice before leaving the UK). It also includes a power to surrender a UK passport and to hand-over and not to possess any other passports and travel documents. The TPIM Act also enables the power to be exercised on an urgent basis where required.

TPIMs are usually associated with curfews, tags and limits on association. It is often overlooked that the TPIM Act can be used in a more limited fashion and that a Travel Measure can be imposed whether or not other TPIM Measures are imposed. From the perspective of the authorities, it has some obvious advantages over the passport deprivation power, in particular that it imposes a prohibition on leaving the country and that the prohibition is backed by criminal penalties.

The TPIM Act also has various safeguards for individual liberty, such a requirement for judicial approval of any Measures imposed, special advocate procedure to test the justification for the Measures, requirements to renew and keep the necessity for such measures under review, and oversight of the Independent Reviewer of Terrorism Legislation (“the IR”). Not only does the prerogative not carry with it such protections, the exercise of the prerogative power can be indefinite, whereas any TPIM Measure has a maximum lifespan of two years in the absence of renewed engagement in terrorism related activity.

Therefore if the police have reasonable grounds to believe a person is seeking to leave the UK to engage in jihad abroad they could seek an urgent Travel Measure from the Secretary of State under the TPIM Act. This may require a new administrative process for border police seeking urgent TPIMs, but given that Parliament has established this power – with important safeguards – there would need to be a compelling reason why the police should be conferred an analogous, and less effective, power. There is also considerable value in maintaining centralised decision-making both for consistency of decision-making and as a disincentive against over-use of the power by police. It would also ensure that the safeguards imposed by Parliament were engaged.

It follows that if the Government seeks new powers outside the TPIM Act, it will have to explain why those under the TPIM Act – designed in part for precisely these circumstances – are inadequate. One response may be that persons leaving the UK would not yet have engaged in terrorism related activity, which is the precondition for a TPIM Measure. However, given the extremely broad way that the concept of terrorism related activity is statutorily defined, and the related concept of terrorism, it seems unlikely that the Government would contend that it is not capable of applying to persons who seek to leave the UK to engage in jihad. The Government might say that the power should be exercised on the basis of suspicion rather than reasonable belief (another condition for imposing a TPIM Measure), but Parliament would no doubt take considerable persuading that such a power should be exercised by police on the basis of suspicion alone, not least as Parliament decided when it enacted the TPIM Act that TPIM Measures should only be imposed on the basis of reasonable belief.

Nonetheless, whilst we are entitled to be sceptical given the lack of explanation currently available, there is at least potentially a gap in the Government’s armoury which the new power could fill.

This discussion may have prompted the thought amongst some readers whether it remains lawful for the Secretary of State to exercise prerogative powers intended to prevent a person believed to be involved in terrorism related activity from leaving the United Kingdom, given that Parliament has legislated powers on precisely this issue subject to numerous safeguards. It is a central principle of constitutional law that the prerogative cannot be exercised where Parliament has legislated on a subject. And here resorting to the prerogative rather than seeking a Travel Measure under the TPIM Act denies individuals a right of appeal and many associated protections (including a 2 year limit) that accompany a Travel Measure. Using the royal prerogative to deprive a person of their passport can therefore be used as a means of bypassing the protections in the TPIM Act.

This is perhaps most obvious when persons are deprived of passports after a Travel Measure comes to the end of its 2 year maximum term: the removal of a passport to continue, in effect, the travel restriction based on same factual case is difficult to reconcile with Parliament’s stipulation that Travel Measures will not endure for longer than 2 years in the absence of re-engagement in terrorism related activity.

The Prime Minister referred to litigation seeking to test this point (including one case in which the author acknowledges a role acting for a Claimant) and the Prime Minister stated to Parliament that the Government is preparing legislation in case such challenges succeed.

However, irrespective of such challenges, it is time that the prerogative power to withdraw passports is put on a statutory footing in its entirety. As long ago as 1980 Sir William Wade described the power in his Hamlyn Lectures, as, “a murky administrative area where there is a crying need for clarification and legal right”: Constitutional Fundamentals, Stevens & Sons, p.52. Legislating for the withdrawal of passports would not only give the power a proper democratic basis suitable for the modern era, it would enable proper protections to be put in place for individuals. The incentive for Governments is that it would enable the power to be made more effective by pairing it with actual prohibition on travel and removing the legally problematic overlap of the prerogative and the TPIM Act regime.

Returning to the current proposal, if the police are to be given new powers to temporarily deprive persons of their passports this should be a self-contained statutory power or an extension of the TPIM Act and not an opportunity to provide statutory endorsement by a side-wind for a prerogative power which is out-dated and in need of reform.

Preventing British citizens returning to the UK

The idea that British citizens should be prevented from returning to the UK raises myriad issues, legal, moral and practical. The most immediate legal issue is section 2 of the Immigration Act, which identifies the right of abode as a core incident of citizenship.

But there is also a deeper constitutional principle in play here. Blackstone in the Commentaries wrote in 1765 that, “every Englishman may claim a right to abide in his own country for as long as he pleases; and not to be driven from it unless by the sentence of the law. … For exile, or transportation, is a punishment unknown to the common law…” (Vol i. p.133).

Indeed, it is a mark of how deeply rooted this principle is that any legislation in this field would need to amend or depart from Magna Carta itself, the famous chapter 29 of which (which is still on the statute book) states, “No Freeman shall be …outlawed, or exiled, or any other wise destroyed…” save by lawful judgment of his peers. The Prime Minister appears to have forgotten about Magna Carta. But its sentiments were echoed by Dominic Grieve, the former Attorney-General, who stated in Parliament, “I share the concern that has been expressed about the suggestion that British nationals, however, horribly they may be alleged to have behaved, should be prevented from returning from this country.” (HC Debs 1 Sept 2014 c.32.)

From a more practical perspective, the idea of refusing to allow citizens to return to the UK reflects a sense in which the UK Government would like to think of such individuals as ‘somebody else’s problem’. But such an attitude is unlikely to win favour amongst other States left with the problem of un-returnable British jihadists in their midst, and they may well simply not accept the position of the UK Government and seek to return the individual to the UK.

If individuals return to the UK having acted in a manner inconsistent with their duty of loyalty to this country and to British law then the proper response is for them to face due process of British justice and be prosecuted for one of the wide array of terrorism offences, or for treason.

No fly lists

Just as it is appropriate for the prerogative passport power to be placed on a statutory basis, so should the arrangements for no-fly lists. And for the same reasons: (1) their legal origin and legal effect are obscure; (2) they represent an interference with individual freedom of movement and to come and go from the UK unimpeded; and (3) they lack adequate legal safeguards. The Government’s suggestion that these should be put on a statutory basis is therefore to be welcomed.

TPIMs and Prevent

In principle there is sense in the suggestion that there should be engagement with TPIM subjects other than through the police and MI5, such as through the Prevent programme or possibly the probation service, particularly if combined with a relaxation of their obligations as they near the end of a TPIM and their return to ordinary life. But there are real complexities here particularly if it is sought to compel engagement by imposing it as a TPIM Measure backed by criminal sanctions.

These difficulties arise from three features of the regime: (1) TPIM subjects usually maintain their innocence of the allegations against them and often, although not invariably, of extremist views; (2) they are subject to TPIMs on the basis of secret evidence; and (3) nothing has been proved against them and—a point that is often overlooked—do benefit from a presumption of innocence, which cannot be simply abandoned in this context. In the light of these three factors, it is difficult to see how many TPIM subjects could constructively engage with programmes insofar as those programmes are premised on their guilt, or could reasonably be compelled to do so. Furthermore, such individuals will understandably be fearful that anything they say or do might be deployed against them either in open court or, possibly, in secret.

There is also an important difference in principle between the essentially negative duties imposed by a TPIM, even those which may be enforced by limited positive duties (such as reporting to a police station to prevent overseas travel), and a positive requirement to attend meetings and engage with a prevention-orientated programme.

Therefore whilst there is undoubtedly room for new thinking and new initiatives in this context, the difficulties should not be underestimated and the proposals will require very careful scrutiny.

Relocation powers

The suggestion that the Government might re-introduce the power of relocation that previously existed under the control order regime is a suggestion which will raise concern across the political spectrum (I leave aside the idea of exclusion zones).

In 2011 Parliament accepted that relocation could not be justified given its serious detrimental impact on individuals by cutting them off from family, friends and their local community. It operated as a form of internal exile, justified by reference to secret evidence. It was one of the most resented aspects of the control order regime by affected persons and local communities. Parliament accepted that the financial saving from the surveillance budget that such a power allowed could not justify the encroachment on civil liberties that it entailed.

The Government appears to have drawn the idea (or at least support for the idea) of backtracking from the TPIM Act in respect of relocation from the recent report of the IR. In his report published in March 2014, amongst a number of recommendations for increasing safeguards under the TPIM Act, such as narrowing the definition of terrorism related activity and adopting a balance of probabilities threshold, the IR stated the “the time has now come to revisit the issue” of relocation arguing that, “Locational restraints have the ability to reduce the abscond risk, to rebuild confidence in TPIMs, to disrupt terrorist networks and to reduce the surveillance budget. Relocation was repeatedly described by the courts as proportionate …” (Terrorism Prevention and Investigation Measures in 2013, March 2014, 6.23.)

The IR suggested that the reintroduction of relocation might be accompanied by much greater freedom for a person to travel around the country (albeit not back to his place of residence).

Many people will take the view that a relocation power simply cannot be justified, especially when accompanied by other intrusive obligations, given the low standard of proof (reasonable belief) and the fact that TPIM Measures are supported by secret evidence.

But on the premise that such powers can in principle be justified, they must, at a bare minimum, be supported by clear and compelling justification. We cannot fully analyse the arguments for and against here, but the following remarks can be made.

The first point to note is that the IR has made a range of recommendations and there is a danger in cherry-picking those that one agrees with or which suit the political climate without accepting others that would proved a counter-balance—the IR’s recommended adoption of the balance of probabilities threshold is perhaps particularly important in this respect.

The nub of the justification for relocation is really the potential for reducing the risk of absconding from TPIMs and the associated reduction of the surveillance budget (the IR has stated that relocation saved the Government tens of millions in surveillance costs.)

In terms of the surveillance budget, it needs to be borne in mind that the IR’s proposal of a form of ‘relocation lite’ which would not confine relocated TPIM subjects to a small geographical area may not generate the same savings to the surveillance budget as were facilitated by the control order regime where relocated persons were so confined. We cannot know, but it seems likely that the relocation lite proposal would still require substantial amounts of surveillance (the suggestion of exclusion zones is a fortiori).

Absconding is a problem. But it seems to be associated in the media with TPIMs when in fact 7 of the 9 absconds were under the control order regime and the two absconds under that TPIM regime (Ibrahim Magag in December 2012 and Mohamed Mohamed in November 2013) were the first absconds since 2007. There is also a major difference between TPIMs and control orders relevant to the risk of abscond, which is that TPIMs come to a natural end after two years, thus providing a much greater incentive for individuals not to abscond than existed under the control order regime under which restrictions were imposed indefinitely.

The IR points to the fact that absconding did not occur under the control order regime after relocation was introduced as evidence of its efficacy at reducing the risk of absconding. Of course, relocation will, logically, reduce the risk of absconding to some extent by cutting people off from friends and associates. But its impact under the control order regime was known to Parliament when it prohibited relocation in 2011. Furthermore, the fact that most TPIM subjects have not absconded—and, as explained above, have a greater incentive not to do so than under the control order regime—should not be lost sight of. If looking at the bald statistics alone the question they pose is, could the relocation of all 10 persons who have been subject to TPIMs have been justified to attempt to prevent two absconds? Or to put this another way, can reallocation be justified to reduce a 1 in 5 chance of absconding further? This is not, however, an argument that can be carried by reference to the statistics—apart form anything else the numbers are just too small.

It is also worth emphasising the fairly obvious point that the fact that a measure is more effective does not mean it is justified. Detention in Belmarsh would, for instance, undoubtedly prevent people absconding (as well as resulting in a massive saving to the surveillance budget) but thankfully nobody suggests that detention should be reintroduced.

In a report published in January 2014, the Joint Committee of Human Rights was clear in its view that relocation could not be justified, whilst accepting its contribution to reducing the risk of absconding. It stated: We remain of the view that a power to relocate an individual away from their community and their family by way of a civil order, entirely outside the criminal justice system, is too intrusive and potentially damaging to family life to be justifiable…” (10th Report 2013-14, Post Legislative Scrutiny: TPIM Act para. 55.

Finally, the issue of providing justification also should not, I suggest, be avoided by pointing to the approach of the courts in upholding a number of relocations under the control order regime. The courts are working within a legal regime in which their role and function is restricted. In rejecting appeals from relocation orders, they should not be thought to be endorsing such powers as they are not considering whether a regime including relocation is preferable to a regime of increased surveillance. The regime is taken as a given and the courts ask whether the measure is proportionate within that regime. If, for example, preventing a person from travelling abroad is endorsed as a legitimate aim, and there is evidence that relocation will make it more difficult for the person to travel, the courts are generally reluctant to say that the obligation goes too far, given that Parliament has endorsed the power as available for use for such purposes.

Connected to this is fact that the role of the courts in judging whether a measure is disproportionate remains secondary: they do not say whether a measure should be imposed but whether it is disproportionate to the objective. In AR, for example, Mitting J stated that he favoured a reduction in the individual’s curfew, but the refusal of a reduction could not be said to be disproportionate: “the decision”, he said “is not mine” [2009] EWCH 1376 at 4. The decision that Parliament will be asked to make if the suggestion of reintroducing relocation is carried-through, however, very much its decision and it should not avoid it by pointing to the approach of the courts.

Conclusion

The Government’s announcement of more powers to combat the national security threat posed by ISIS touches upon some fundamental constitutional issues. And it is a mixed bag. On the one hand, it includes suggestions such as preventing British citizens entering the UK and reintroducing relocation powers, which are very troubling; on the other hand it provides an opportunity put other powers, in principle justifiable, such as the withdrawal of passports and no-fly lists, on a more appropriate legal basis.

 

Tom Hickman is a Reader in Law University College London and Barrister at Blackstone Chambers.

Suggested citation:  T. Hickman, ‘ISIS, passports and Magna Carta: New national security powers raise complex issues’ U.K. Const. L. Blog (9th October 2014) (available at http://ukconstitutionallaw.org/).

 

 

 

 

 

 

 

 

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Announcement: UKCLA Public Law PhD Group

In response to the clear demand for such a group that was remarked upon multiple times at the Conference on the Teaching of Public Law earlier this year, we are establishing the UKCLA Public Law PhD Group. The basic idea is to draw public law PhD students together from across different universities.

We intend to start this endeavour by formulating a public list (which will be available on the UKCLA’s website) of PhD students researching public law, along with their research areas and contact details. We hope that the list will enable PhD students researching public law to talk to each other. From there we hope to develop events aimed at public law PhD students.

If you want to be part of the UKCLA Public Law PhD Group list then please email publiclawphdgroup@gmail.com with the following information:

  • Your full name;
  • The institution where your PhD is being undertaken;
  • The research title of your PhD;
  • The e-mail address you want listing on the UKCLA site; and
  • Any further information that you think may be relevant/helpful.

If you would like to include a short synopsis of your PhD (max. 150 words) then please do so. All of this information will be available publically on the UKCLA website.

Please direct any questions you may have to the above address and we will be happy to answer them.

We look forward to hearing from you.

Thanks,

Joe Tomlinson & Jack Simson-Caird

(Manchester)      (Sussex)

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Paul Reid: Where now after ‘no’? A starter for 10.

paulIt is often said that one of the greatest characteristics of the United Kingdom’s unwritten constitution is its ability to evolve and adapt to change.  From the Prime Minister’s statement this morning, it appears that this 307year-old constitution has a lot of evolving to do in a very short space of time.  Perhaps a strength, or perhaps a weakness, of the constitution has been its ability to carry on whilst fundamental questions like the ‘West Lothian question’ have remained un-answered.  Those will now have to be answered and the period for doing so is said to be months not years.  That appears a tall order for a constitution that declared the intention to replace the House of Lords with an elected chamber over a century ago.  The inescapable questions that arise from the Scottish vote are many and touch all corners of the Union and almost all corners of the constitution.  Many blogs and other articles will be penned in the days, weeks and months ahead as the issues are discussed, debated and then (if the timetable holds) decided.  So here is a starter for ten (or rather, ten for a starter):

  1. “English votes on English laws” appears to be the presumptive answer to the West Lothian question.  That must be unobjectionable in principle but the practice appears more challenging.  You need only pause for a moment to recognise a number of difficulties: first, in a system of asymmetric devolution excluding the Scottish MPs cannot be the answer.  “English votes on English laws” must also call for the exclusion of Welsh MPs and Northern Irish MPs when the matter under debate relates to matters that have been devolved to those respective countries.  Thus the House of Commons has various different compositions with different consequences for the majority of the government of the day.  Secondly, the exclusion of non-English MPs works fine if the Bill before the House of Commons is exclusively English.  What about Bills which predominantly relate to the law of England but the odd clause has a Scottish (or Welsh, or Irish) element to it?  A third consequence flows from the a-symmetric nature of the current devolution arrangements: what is an “English only” issue is not clear.  Some form of harmonisation of the devolved powers would surely be necessary for this to be a workable long-term solution.
  2. The most obvious difficulty with “English votes on English laws” arises when the government relies upon non-English MPs to make up its majority.  At one level, this ought not to prevent the exclusion of non-English MPs: if the majority of English constituencies returned an MP from a given party, that party has a democratic claim to govern England.  But it presents significant practical difficulties: it would be unworkable in the context of the current House of Commons to have a one government for “English” matters and another government for “UK” matters.
  3. When Dr (now Lord) Reid was appointed Health Secretary questions were asked about the appropriateness of that appointment, representing as he did a Scottish constituency, given health had been devolved to the Scottish Parliament.  Is it now untenable to have a Scottish MP (or, with their respective spheres of devolution a Welsh or Northern Irish) appointed to a portfolio that has been devolved?  Again, that would appear unobjectionable in principle.  Perhaps a convention has emerged (or will soon emerge) to that effect?
  4. But what of the office of Prime Minister: could a Scottish MP now hold that office?  That must be open to doubt if “English votes on English laws” were to become a reality.  But it would surely be equally unacceptable to the other nations of the United Kingdom if the consequence of “English votes on English laws” resulted in a convention (at least) that the Prime Minister represent an English constituency.
  5. And what of the legislation that Parliament will pass when only composed of English MPs?  Is it the act of a sovereign legislature, beyond the challenge of the courts?  That is not the case for any other devolved legislature.  But if legal limits are to be imposed on this reformed parliament they will have to be clear and imposed by legislation and not changes to parliamentary procedure.  What of human rights?  Not a popular subject if the popular press are to be believed.  But each of the current devolved legislatures have their competence delimited by reference to the ECHR.  Will this new form of House of Commons be subject to similar limitation?  It would be a curious result if the English legislature was vested with the power to abridge the fundamental rights of those living in England in a way that other devolved legislatures were barred from.
  6. Does all this not lead necessarily to an English Parliament?  If so, does that not also require a separate English government?  Federalism?  Entrenchment of the broader devolution settlement so that it is formally put beyond the reach of the Westminster Parliament?  Given the overwhelming size of England how will be balance of power between the First Minister of England and the Prime Minister of the United Kingdom be struck?  Is that a matter to be resolved by convention or by law?
  7. Next, a point that I must credit to a non-lawyer friend of mine (an engineer in fact).  Looking at the ‘referendum map’ of Scotland it is largely red.  As I type this over my morning coffee it is 27-4 to ‘no’ on a count of the local authorities.  That appears a pretty decisive victory for the ‘no’ campaign.  Of course, look at the actual votes cast and we see that, across the country, the result is, with a bit of rounding, 55-45: a much closer contest.  That reminds us of the distorted results that a first-past-the-post system can produce.  If this were a two-horse election race, ‘no’ has won a landslide.  But the ‘yes’ vote, with a turnout in excess of 85%, has had more votes cast in its favour than any government that Scotland has ever elected!  Is the voting system to be part of the constitutional discussion that is about to take place?  If not, why not?
  8. If the electoral system is put on the agenda that should go hand-in-hand with finally completing reform of the House of Lords.  Whether elected, appointed or a mixture of the two, if we can solve the ‘West Lothian question’ in a matter of months then the ‘House of Lords question’ must also be capable of resolution.  Indeed, any truly comprehensive package of constitutional reform could not ignore it.
  9. And if we are to have a comprehensive package of constitutional reform, in fact, even the reforms mentioned by the Prime Minister this morning, will it be back to the polls?  The timetable envisages these reforms being concluded before the next UK general election.  The three main parties may well be agreed on the need for the reform.  But none of them have a mandate from the UK electorate for such wide-reaching reform.  Should the package of reforms not be put to the people for approval?  If that is to be done before the 2015 election, a referendum is the only vehicle for that.  Given the relatively trival matters that must now be submitted to a referendum under the European Union Act 2011, it seems hard to accept substantial and fundamental constitutional reform for the whole United Kingdom without asking the 96% of the population that did not vote in Scotland’s referendum whether they want that.
  10. If the process that has been started touches on so many areas of the constitution, is it responsible to do this in a matter of months.  Is this not the catalyst for a root and branch review of the constitution?  Everything should be on the table, not just the devolution settlement: electoral system, human rights, House of Lords and sovereignty (which necessitates resolving our stance on the EU).  That will take years but if the current system is ‘broken’ (to use the Prime Minister’s word) then it needs a proper repair and not yet another running repair.

 

Finally, I cannot resist a comment on the result.  Hopefully the analogy I am about to draw will not belittle too much the constitutional significance of what has happened in the last 24 hours.  But it seems to me apt.  It is often said that supporting the Scottish football team prepares you for anything.  I now think that is literally true.  The feeling I have this morning, having found myself in the minority of my countrymen, is reminiscent of the feeling I am all too often left with as I walk away from Hampden having just watched Scotland play one of the top footballing nations: weeks before the match victory is accepted to be impossible; but as the day nears a belief begins to build that we might pull off an unexpected result; but once the match has finished you walk away thinking ‘we almost got there’, ‘so proud of how we played today’, ‘that was always likely to be the result’, ‘at least we gave them a run for their money’ and, the consolation thought, ‘after a performance like that I am sure we will do it next time’.  Today feels the same, but without the consolation of next time to look forward to.  But, equally, the reaction of “no” voters I have spoken to reminds me of another common emotion of the Scottish football fan, this time having just played a so-called ‘lesser’ football nation: relief, ‘that was a bit close for comfort’, ‘we made that hard for ourselves’ and ‘we better improve going forward’.

Let’s hope that final emotion endures.  If the legacy of the referendum is that meaningful constitutional reform finally comes to the United Kingdom, then something really positive will have come from the vote.  Whether that can be done in the timescale promised is another matter.  Indeed, there is a good argument to take our time and do this properly.  But to finish the football analogy, all too often you arrive at Hampden for the next match after that ‘too close for comfort’ result to see the same players, in the same formation with the same tactics.  Memories can be short.  Hopefully the unreformed House of Lords can stand as a reminder of how momentum can be lost and the commitments made today are seen through to their conclusion.

Paul Reid is an Advocate with Ampersand Stable and a part-time tutor of Public Law at the University of Edinburgh

Suggested citation: P. Reid, ‘Where now after ‘no’? A starter for 10.’ , UK Const. L. Blog (19th September 2014) (available at http://ukconstitutionallaw.org).

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Alan Trench: What follows the referendum: the process of negotiating Scottish independence, or of delivering Devo More

Alan TrenchBack in May, I gave a lecture at the University of Ulster’s Belfast campus about what might follow the vote in the Scottish referendum. I’m afraid I’ve only now had the chance to tidy that up for wider reading. It’s available on the Social Science Research Network here, or can be downloaded directly HERE. The lecture as a whole is somewhat lengthy (around 10,000 words), so this post picks out the key points.

Perhaps the most important and novel part of the lecture is the second one, where I map out what would follow a Yes vote – the sort of steps needed, particularly on the rUK side to tackle the many uncertainties that will follow. This is a separate issue from that of the strengths of each party in the negotiation, discussed HERE earlier in the week.  This would call for a great deal of imaginative thinking, in the midst of a first-order constitutional crisis. In particular, it seems to me that:

  • The negotiating process needs to move with all due speed, to preserve the democratic legitimacy of both rUK as well as an independent Scotland. There is no good reason for rUK to seek to prolong the process, and plenty of reasons for it not to.
  • The 2015 UK General election presents grave problems for that – the time lost to campaigning in an election and briefing a possible incoming new government means it will be impossible to make a proper start in negotiations before June 2015, since even provisional agreements reached under the present government might lack support from the new one.
  • One option – which appears to be gaining some support, particularly among Conservatives – is to postpone the 2015 election. But the present government has already been in office for 4½ years, and has no mandate to negotiate something so important to rUK as Scottish independence.
  • A better option would therefore be to hold a general election early, before the end of 2014, so there was both certainty about the composition of the UK/rUK Government and that government had a political mandate for independence negotiations. This would need approval by a two-thirds majority in the Commons, under the Fixed-term Parliaments Act 2011.
  • Those negotiations will not be quick or straightforward – not just because of the difficulty or complexity of the issues to be considered, or how trade-offs might be made between issues, but because they are a matter for parliaments as well as governments. Parliaments will need to approve legislation giving effect to the final outcome, and in Westminster’s case also to authorise much of the necessary preparation on the Scottish side. There will need to be close co-operation between governments and their parliaments, both to ensure proper democratic control and accountability in the process and to simplify the process of approving the agreement at the end of it.
  • A special UK Parliamentary committee, probably mostly meeting in private to preserve the confidentiality of proceedings and negotiating positions, would be an important way of helping to accomplish that.
  • There would also be problems about the involvement of Scottish MPs and ministers in the independence process on the UK/rUK side. It would be contrary to the interests of the people of rUK for MPs sitting for Scottish seats to be involved in that process; as those negotiations affect first and foremost the people of England, Wales and Northern Ireland, only their representatives should be involved – whether in negotiating teams, Cabinet or Cabinet committees when considering independence-related matters, or when those are considered in Parliament. This is the West Lothian question on steroids.
  • The need to ensure a broad consensus of support within rUK for the agreement also means that the Opposition – whoever it may be at the time – will need to be involved in the process. In particular, figures from the Opposition should be included in the rUK negotiating team, and party leaderships kept abreast of all issues under consideration. Again, while this complicates the process of the negotiations, it will simplify the process of approving and implementing an independence agreement.

Much of this sits oddly with usual British constitutional practice. But a Yes vote would trigger extraordinary times, and a need for extraordinary measures to cope with an unprecedented and very difficult situation.

As far as a No vote is concerned, the lecture maps out the programme that was clearly being advanced by the Unionist parties in May, and advanced by the IPPR’s Devo More project: separate party policies, cross-party agreement on the key elements of that, early consideration of them following the referendum and implementation through endorsement in the 2015 election manifestoes. That process would clearly need to include the SNP as well as the pro-union parties, unless the SNP chose not to take part. Since I gave the lecture, the Scottish Conservatives have published their proposals in the form of the Strathclyde Commission report (and I have amended the text to reflect that). Subsequent developments have hardened the commitment of the parties both to the need for joint action and a clear timetable, as well as a Scottish-focussed process to agree the main features of ‘enhanced devolution’.

None of this is about simply ‘giving Scotland more powers’. It is about getting devolution right, so that it enables Scottish voters to have what they have wanted for more than a decade: extensive self-government within the Union. That will benefit other parts of the UK too, and not just by achieving a greater degree of constitutional stability. It will ensure that if Scottish taxpayers choose to spend more on devolved Scottish services, they bear the fiscal consequences of that; this would not be at the expense of taxpayers outwith Scotland.

There is, however, a clear need for that to be followed by a wider process covering the whole UK, and the best way to achieve that would be through a conference of members of the UK’s parliaments and legislatures; MPs, MSPs, AMs and MLAs. This is the idea underpinning the Strathclyde Commission’s recommendation for a ‘committee of the parliaments and assemblies’ . Through their election, these figures all clearly have a mandate and authority that other methods of selection would not give them.

Whatever happens on 18 September takes the UK into new and uncharted constitutional waters. It is important that everyone understands what is likely to follow, and what the world is likely to look like in a few months’ time.

 

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

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Debate: Jo Murkens: Scotland and the EU: A Comment

jo-mur1What would be the characteristics of an ‘independent’ Scotland? And what kind of a Member State would it be? Intriguingly, the pro-independence Yes Scotland campaign promises continuity on key issues, such as the currency, the Queen, and the European Union. In a recent paper, Sionaidh Douglas-Scott claims that the process of continuing EU membership for an independent Scotland will be ‘relatively smooth and straightforward’ – a claim that has been taken up by Yes Scotland. (Given the at best ambivalent and at worst antagonistic attitude of the UK, the promise of continuity is not necessarily good news for the European Union). The strength of this claim rests on Douglas-Scott’s preference for Article 48 TEU (the Treaty revision procedure) rather than Article 49 TEU (the Treaty accession procedure). In other words, she assumes that the EU would welcome Scottish independence with a simple and internal procedural change, rather than with an insistence on a cumbersome accession process.

There are two problems with using Article 48. First, it is the provision by which existing member states organise their relationships with non-Member States and international organisations. Unlike Article 49, it was not designed to bring about the institutional changes needed to accommodate a new Member State. Second, in his evidence to the House of Commons, Prof. Kenneth Armstrong exposes the ‘smooth and straightforward’ claim as fallacious by highlighting the risky nature of Article 48. For starters, the Scottish Government would have to rely on the UK government to initiate and manage the negotiation process. But in addition, Article 48 would create an opportunity for the UK government to hijack the process in order to renegotiate the UK’s own relationship with the European Union. Even assuming goodwill from the other Member States about the principle of membership of an independent Scotland, the UK’s renegotiation strategy in particular, and the negotiation process as a whole, may very well meet with fierce resistance. Far from being ‘smooth and straightforward’, Prof. Armstrong points to a danger that:

…the process [under Article 48] becomes lengthened rather than shortened. If it was a normal accession process under Article 49, there is every reason to believe it possible that the negotiation element could be conducted by the preferred date for independence. That would still leave open the ratification of that agreement, which might take several months, if not longer, to do.

Douglas-Scott’s paper is further marked by an absence of political context. She is correct to note that the EU is not the slave of public international law, and that it is capable of reacting in ‘pragmatic and purposive’ fashion to current affairs unregulated by the Treaties, as it did for example in 1990 when Germany unified. But she does not discuss the current politics of secession in the EU, which is very different from the situation in 1990. German reunification did not result in immediate Treaty change. East Germany acceded to West Germany, and Germany accepted the (unchanged!) Treaty rules relating to the institutions, the weighting of Council votes, and the allocation of seats in the European Parliament. From the perspective of the European Community in 1990, reunification did not change the way it operated and was, therefore, waved through.

By contrast, Germany, France, Italy, and Spain can have no interest in witnessing the diminution of the United Kingdom and in setting a precedent for other European secessionist movements. Experience shows that the international community as a whole shows an interest in the activities of states especially in cases of break-ups. Spain, Slovakia, Romania, Greece, Cyprus did not recognise Kosovo’s unilateral declaration of independence in 2008 in order not to set a precedent for separatists in their own countries.

That said, Douglas-Scott is correct to assume that there will be Member States who will be supportive of Scottish independence, especially if clear support for it was demonstrated in a referendum. If the United Kingdom resolves the matter in a procedurally fair and transparent manner, the attitude of the Commission and the other Member States may be positively influenced and Scotland’s application could be fast-tracked. The UK’s attitude may in turn depend on how Scotland behaves during the independence negotiations, and whether the negotiations have been conducted co-operatively and amicably, or the reverse.

Finally, an independent Scotland will not be fully compliant with the EU’s acquis communautaire. As Daniel Kenealy has noted, ‘Scotland is only compliant by virtue of being part of the UK and thus covered by the UK’s institutions and regulatory structures’. The loss of membership status following separation means that Scotland would no longer benefit from the UK’s derogation from the single currency and from the Common Travel Area (Schengen Agreement). An independent Scotland would not inherit the opt-outs the UK negotiated for the Treaty of Maastricht. The formal position is as follows. All Member States (except UK and Denmark, who secured opt-outs in the Maastricht Treaty) are expected eventually to join the Mechanism and to adopt the Euro. All the new Member States since 2004 are legally obliged to adopt the Euro at some future point, with no opt-out clauses. If Scotland wishes for membership to be ‘smooth and straightforward’, should it not better prepare itself to adopt the Euro and to sign up to Schengen?

In sum, Douglas-Scott’s reliance on Article 48 is far from persuasive on technical legal grounds (is it the correct legal basis to accommodate a new Member State?) as well as for strategic reasons (the negotiation process may well be dominated by the UK’s negotiating team pursuing its own agenda). But even if an independent Scotland’s continued membership in the EU were ‘smooth and straightforward’, Douglas-Scott provides no answer to the question as to what kind of member an independent Scotland would be (Europhile? Eurosceptic? Europhobic?) and what the terms of membership would be. Instead, her contribution perpetuates the language of continuity for membership and for citizenship which, given the UK’s often fractious relationship with the EU, is not necessarily a good thing. The outside observer is none the wiser as to the characteristics, indeed the meaning, of ‘independence’, and completely in the dark as to whether an independent Scotland would welcome the EU.

 

Dr. Jo Eric Khushal Murkens is an Associate Professor at the Department of Law of the London School of Economics and Political Science (LSE).

This posted originally appeared on the Verfassungblog, and is now reposted on this blog as part of a collaboration between UKCLA Blog and the Verfassungblog.

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Debate: J. H.H. Weiler: Scotland and the EU: a Comment

Joseph-H.H.-Weiler-avatar-1409860918-96x96The Scottish referendum on independence is upon us. At some levels it is an easier and ‘cleaner’ case than that of Catalonia: The United Kingdom, in a mature political decision, has allowed this referendum thus removing any objection from either a British constitutional perspective or from public international law.

The people of Scotland, many of them at least, resent ‘outside interference’ in what they consider their internal business – the exercise of a right to self-determination. It is indeed their business; but this does not mean that outsiders cannot, or should not, have a view and express that view driven by both prudential and normative considerations.

The issue of greatest concern outside Scotland and the United Kingdom concerns the future, or otherwise, of an independent Scotland within the European Union. Membership would not be automatic – I find the argument for automaticity based, as it has been by some, on the fact that the people of Scotland are citizens of the Union unpersuasive. Citizenship of the Union is predicated on being nationals of a Member State. And if Scotland becomes independent, her people, by their own sovereign decision, would no longer be nationals of a Member State. They are becoming independent from the United Kingdom. (Let me open a first parenthesis. In part the matter is one of framing: If, say, Belgium were to decide to split, it would not be nearly as clear which, if any, of the two – Wallonia, Flanders – would “remain” a Member State and which would have to accede. Perhaps neither.)

Be that as it may, there should be no legal impediment for Scotland to become a Member State if she satisfies the condition for Membership, political and legal, one of which is a unanimous decision of all Member States. On the technical side it should be a relatively easy accession, since the European legal acquis is part of the political and legal fabric of Scotland. The adjustments necessary will be, for the most part, of a technical nature. (A second parenthesis: It is said that for Scotland to accede she would first have to be an independent State i.e. forcing her into an interregnum of non-membership. That is why some lawyers suggest Scottish “accession” through Treaty amendment rather than through Accession. I think Treaty amendment is a circuitous way, and normal Accession is the correct route; but I do not think a real interregnum would be necessary. The would-be independent Scotland could negotiate her accession in her current status, go through all the European constitutional hoops save the final signature of the Act of Accession. That can be planned to take place, literally on the very same day that Scotland becomes formally an independent State. One would first complete the last formal act of independence – some piece of paper will be signed by, presumably the British Monarch and the Scottish authorities and immediately the Act of Accession could be signed. Scotland would be a non-Member State for the duration of it takes to sign those two pieces of paper. This is of course a short-hand for a fairly complex procedure but it could be done.)

The issue, therefore, is not legal but political. Should the Member States of the European Union embrace an independent Scotland? In an Editorial in EJIL some time ago I took a dim view of plans for Catalan independence – which earned me the ire of many. I do not think that any editorial I wrote provoked so much hate mail. I take a similarly dim view of the Scotland case. Make no mistake: I harbor great affection for Scotland and its people. My father admired them, as he did any small people living in the shadow of a giant and yet managing to preserve a keen and rich sense of distinct national identity. I also do not doubt their distinctiveness as a nation.

Why then this dim view? One consideration, not trivial, is prudential: I am convinced that Scottish independence coupled with simultaneous, or close to simultaneous, membership of the Union will provoke a domino effect among many nations and regions in Europe. Independence pure and simple is in many cases threatening and unattractive. There is a long list of candidates, in Spain, France, Italy and elsewhere who would be emboldened by the Scottish example. Feeding this frenzy for secession and independence in Europe is the premise that all these new States will somehow find a safe haven as Member States of the European Union. Absent that assumption, appetite for independence would be significantly muted the rough seas of “going it alone” far more threatening.

I do not believe that given the decisional structure of the Union, even on the most optimistic ideas for reform, it would be helpful for Europe to have a growing number of Member States. Saying Yes to Scotland would require saying yes at least to all other constitutionally lawful secessions.

But the main consideration is not prudential. I do not take the view, normatively speaking, that having a distinct national identity within a democratic State in and of itself justifies independence. It is simply ethically  demoralizing to see the likes of Scotland and Catalonia reverting to an early 20th Century post World War I mentality, when the notion that a single state could encompass more than one nationality seemed impossible – hence the special treaties on minorities which abounded in the breakup of the Ottoman and the Austro-Hungarian Empires. These arrangements were well intentioned but lacking in political imagination and eventually, let us not hide the ugly facts, feeding and leading to that poisonous logic of national purity and ethnic cleansing. Again, make no mistake: I am not suggesting for one minute that anyone in Scotland or Catalonia is an ethnic cleanser. But I am suggesting, that the “go it alone” mentality is associated with that kind of mindset.

More than any other country with which I am familiar, the current constitutional arrangements in the UK allow a full vindication of a Scottish cultural and distinct political identity. Scotland is not a Chechnya. So what is the case for independence? It is precisely that notion that having a distinct national identity justifies secession, a notion fueled in my view by a seriously misdirected social and economic egoism, cultural and national hubris and the naked ambition of local politicians.

But the reality is more mundane than this. I watched the televised debates. Most of the sparring was utilitarian: Will we better off, especially economically. More employment, yes or no. Better social network, yes or no et cetera et cetera. So this is what will ultimately decide things.

This runs diametrically contrary to the historical ethos of European integration. The commanding moral authority of the Founding Fathers of European integration – Schumann, Adenauer, de Gaspari and Jean Monnet himself – was a result of their rootedness  in the Christian ethic of forgiveness coupled with an enlightened political wisdom which understood that it is better to look forward to a future of reconciliation and integration rather than wallow in past historical rights and identity. There were, of course, utilitarian considerations, but they were not at the normative core. The European Union is struggling today with a decisional structure which is already overloaded with 28 Member States but more importantly with a socio-political reality which makes it difficult to persuade a Dutch or a Finn or a German, that they have a human and economic stake in the welfare of a Greek or a Portuguese, or a Spaniard. Why would there be an interest to take into the Union a polity such as an independent Scotland predicated on a regressive and outmoded nationalist ethos which apparently cannot stomach the discipline of a multinational nation? The very demand for independence from the UK, an independence from the need to work out political, social, cultural and economic differences within the UK, independence from the need to work through and transcend whatever gripes there might be, disqualifies morally and politically Scotland and the likes as future Member States of the European Union. Do we really need yet another Member State whose decisional criterion for Europe’s fateful decisions in the future would be “what’s in it for us”?

Europe should not seem as a Nirvana for that form of irredentist Euro-tribalism which contradicts the deep values and needs of the Union. Thus, the assumption of Membership in the Union should be decisively squelched by the countries from whom secession is threatened and if their leaders, for internal political reasons lack the courage so to say, by other Member States of the Union.

It would be hugely ironic if the prospect of Membership in the Union ended up providing an incentive for an ethos of political disintegration. There really is a fundamental difference to the welcoming into the Union of a Spain or a Portugal or a Greece or the former Communist countries emerging from ugly and repressive dictatorships and a Scotland, which is part of a functioning democracy which recognizes in word and deed the distinctiveness and wide and deep autonomy of Scotland and its people. In seeking separation Scotland would be betraying the very ideals of solidarity and human integration  for which Europe stands.

I hope the people of Scotland will  reject the seduction of separatism and tribalism. And if they do not – well, let us wish them, as I wished the Catalans, a Bon Voyage in their separatist destiny.

Joseph H.H. Weiler is President of the European University Institute (EUI).

This posted originally appeared on the Verfassungblog, and is now reposted on this blog as part of a collaboration between UKCLA Blog and the  Verfassungblog.

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