Tag Archives: Constitutional Statutes

Ann Sherlock: Supreme Court ruling on Welsh legislation.

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

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

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

The Assembly’s legislative competence

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

The Bill under review

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

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

The Court’s ruling

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

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

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

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

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

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

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

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

General comments

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

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

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

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

 

Ann Sherlock, Centre for Welsh Legal Affairs, Aberystwyth University

 

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

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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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Adam Perry and Farrah Ahmed: Are Constitutional Statutes ‘Quasi-Entrenched’?

AdamFarrahThe Supreme Court issued its decision in H v Lord Advocate (pdf) in 2012. The decision has been virtually ignored by constitutional scholars, but we believe it may be of great constitutional significance. In this post we explain why, starting with some background about constitutional statutes.

Commentators have lately considered how constitutional statutes should be interpreted (for example Tarunabh Khaitan on this blog), and what exactly makes a statute ‘fundamental’ or ‘constitutional’ (for example David Feldman in the latest issue of LQR). A third issue, and our focus here, is how a constitutional statute can be repealed.

In the well-known 2002 case of Thoburn v Sutherland City Council, Laws LJ (with whom Crane J agreed) claimed that a constitutional statute is susceptible to implied repeal in a much narrower range of circumstances than an ordinary statute. At first Laws LJ put the point categorically: ‘Ordinary statutes may be impliedly repealed. Constitutional statutes may not’. Some commentators took this statement to reflect Laws LJ’s considered view. But he immediately explained that, under some conditions, even constitutional statutes can be repealed by implication. The test is whether there are ‘express words’ or ‘words so specific that the inference of an actual determination to effect [the repeal of a constitutional statute] … was irresistible’.

Initially there was intense academic interest in Thoburn. Ultimately, though, Thoburn was a decision of the Administrative Court, and leave to appeal had been denied. Also, Laws LJ’s remarks on constitutional statutes were obiter. When no higher court gave its approval, Thoburn began to seem like an outlier.

That brings us to H, the first clear judicial statement about the implied repeal of a constitutional statute since Thoburn. The proceedings in H were complicated, so what follows is a simplification.

The United States made a request under the Extradition Act 2003 for the extradition of H and BH on charges relating to the manufacture of methamphetamine. H and BH were a husband and wife who at the time were living with their children in Scotland. They argued that their extradition would violate their Article 8 right to respect for family life. The Scottish Ministers issued an extradition order anyway. H and BH appealed to the High Court of Justiciary, and their appeal was dismissed. They then sought to appeal to the Supreme Court.

According to the Extradition Act, a decision of the Scottish Ministers made under that Act could only be appealed against under that Act. And the Extradition Act did not provide a right of appeal to the Supreme Court from the High Court of Justiciary. However, the Scotland Act 1998 provided a right of appeal to the Supreme Court from the High Court of Justiciary on a ‘devolution issue’. Section 57(2) of the Scotland Act prohibits the Scottish Ministers from acting inconsistently with any of the convention rights, and whether the Ministers have violated s 57(2) is a devolution issue. There was therefore the possibility of a conflict between the Extradition Act and the Scotland Act.

Under the doctrine of implied repeal, in the event of a conflict, the Extradition Act, as the later statute, would take priority over the Scotland Act. The Supreme Court would then lack the jurisdiction to hear the appeal. Although none of the parties in H actually contended that the Supreme Court lacked jurisdiction, the Court considered the issue anyway due to its ‘general public importance’.

Lord Hope, with whom the other judges agreed on the issue of competency, concluded that the Court had jurisdiction to hear the appeal. The reason was that, properly interpreted, the two statutes were consistent. They provided ‘parallel’ remedies. Such is the ratio of H on this issue.

What interests us is Lord Hope’s obiter dictum. The crucial passage comes when Lord Hope comments on what would have happened had the Extradition Act and the Scotland Act conflicted. He says (at [30], emphasis added):

It would perhaps have been open to Parliament to override the provisions of s 57(2) so as to confer on … [the Scottish Ministers] more ample powers than that section would permit in the exercise of their functions under the 2003 Act. But in my opinion only an express provision to that effect could be held to lead to such a result. This is because of the fundamental constitutional nature of the settlement that was achieved by the Scotland Act. This in itself must be held to render it incapable of being altered otherwise than by an express enactment. Its provisions cannot be regarded as vulnerable to alteration by implication from some other enactment in which an intention to alter the Scotland Act is not set forth expressly on the face of the statute.

It is difficult to think how Lord Hope could have been clearer: the Scotland Act can only be expressly repealed; it cannot be impliedly repealed; that is because of its ‘fundamental constitutional nature’. Lord Hope never qualifies these claims. He never suggests that there are conditions under which the Scotland Act can be impliedly repealed.

Ultimately the Court in H went on to dismiss the appeals, and to uphold the extradition order against H and BH.

We believe that Lord Hope’s dictum matters for two main reasons. First, whereas Thoburn was a decision of the Administrative Court, H is a Supreme Court decision. On the issue of competency, it was unanimous. After Thoburn, constitutional scholars waited for a higher court to give its views. Now the Supreme Court has.

Second, whereas Thoburn said that a constitutional statute can be impliedly repealed by a particularly clear implication, H says that the Scotland Act cannot be impliedly repealed – no exceptions. In this respect, H is more radical than Thoburn.

These considerations alone suggest that H deserves greater attention than it has received thus far (Stephen Dimelow mentions H in a recent LQR article, ‘The Interpretation of Constitutional Statutes’, but in passing).

H may be significant for a third reason, too. Lord Hope says that the Scotland Act cannot be impliedly repealed due to its ‘fundamental constitutional nature’. Other statutes are also fundamental and constitutional in nature (e.g., the Human Rights Act, other devolution legislation). By Lord Hope’s reasoning, these other statutes should also be incapable of implied repeal.

Overall, H suggests that courts in the future will take a new approach to the Scotland Act. They will not treat that Act as exempt from express repeal – as ‘entrenched’ in the full sense of the term – but they will treat it as exempt from implied repeal – as ‘quasi-entrenched’. They are likely to treat other constitutional statutes as quasi-entrenched, too.

The quasi-entrenchment of the Scotland act raises a number of interesting questions. What is the legal or constitutional basis of its quasi-entrenchment? Is the idea that there cannot be a later statute which implies that the Scotland Act is repealed? Or is it that Parliament does not have the power to bring about the repeal of that Act by implication? Or something else? Unfortunately Lord Hope does not say. We consider the possibilities in a separate working paper.

Adam Perry is a Lecturer in Law at the University of Aberdeen.

Farrah Ahmed is a Senior Lecturer in Law at the University of Melbourne. 

Suggested citation: A. Perry and F. Ahmed, ‘Are Constitutional Statutes ‘Quasi-Entrenched’?’ UK Const. L. Blog (25th November 2013) (available at http://ukconstitutionallaw.org)

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Scott Stephenson: The Constitutional Significance of Statutory Repeal: How Far Can Parliament Turn Back the Clock?

stephenson_scottThe current system for human rights protection in the UK is once again under siege. In the last week, statements were made indicating that the Conservative Party’s manifesto for the next election would include major reforms to current arrangements. Chris Grayling, Justice Secretary and Lord Chancellor, declared that a future Conservative Government would repeal the UK Human Rights Act 1998 ‘and start[] again’, suggesting that it would be replaced by alternative legislation. Theresa May, Home Secretary, announced that the manifesto would include a promise to withdraw the UK from the European Convention on Human Rights.

In response, Mark Elliott, Conor Gearty and Adam Wagner wrote that these proposals might not have the effect that many people assume they would. Some of their arguments concern the ineffectiveness of partial reform—removing one element of the scheme for human rights protection but not both. In this post, I focus on their comments that relate to reform at the domestic level—repeal of the UK HRA followed by either no replacement law or a statute that confers markedly reduced powers on courts.

Mark Elliott and Conor Gearty raise two points about repeal of the UK HRA. First, the UK HRA has expanded the protection of rights at common law. As is well known, prior to the UK HRA many rights were recognised at common law and courts developed rules and principles to give effect to them. The principle of legality is one example, which provides that ‘[f]undamental rights cannot be overridden by general or ambiguous words’. These rights, rule and principles would not only subsist after repeal but also operate in an expanded guise. Mark Elliott states that the UK HRA has accelerated the protection of rights at common law by ‘produc[ing] a kind of alchemy, leading judges to discover what was already implicit in the common law while simultaneously augmenting the common law.’ Enactment of the UK HRA has fostered an awareness of rights throughout the British legal system that repeal is unlikely to mollify: ‘To assume … that repealing the HRA or even withdrawing from the ECHR would rid domestic law of the foreign influences that have supposedly tainted it in recent years betrays a naïve misunderstanding of the nature of our common law constitution.’ This awareness will be reflected in the direction and pace of common law development.

Second, repeal of the UK HRA may prompt courts to employ alternative, more controversial, means of protecting rights. British judges have occasionally suggested that a court might decide to disapply or invalidate a statute in exceptional circumstances. In R (Jackson) v Attorney General, Lord Hope stated that the principle of parliamentary sovereignty ‘is no longer, if it ever was, absolute … It is no longer right to say that its freedom to legislate admits of no qualification whatever.’ The UK HRA has, as Mark Elliott and Conor Gearty note, reduced the need for courts to contemplate this issue with respect to human rights. Judges are supplied with a range of remedial powers to address executive and legislative actions that violate rights, obviating the need to turn to the common law to respond such as through a power of invalidation. Furthermore, Conor Gearty observes that ‘some judges might even be emboldened to strike down acts of parliament for breach of human rights, something that the current legislation specifically prohibits and so would be easier with the Human Rights Act off the scene.’ Thus, repeal of the UK HRA might, depending on what replaces it, re-agitate this controversial, untested realm of constitutional law by removing two defusing factors: the provision of statutory remedies and the prohibition on invalidation.

These comments underscore that enactment and repeal are substantively different acts—one is not the mirror image of the other. Putting the doctrine of implied repeal to one side (see Factortame and Thoburn), the UK HRA was deliberately designed not to disturb the power of express repeal. Unlike the human rights instruments of most countries, it is not constitutionally entrenched and is therefore capable of express amendment and repeal through the ordinary law making process. Yet here we see the UK HRA opening a gulf between constitutional form and substance—even if Parliament complies with the constitutional procedure for repeal, the substantive rights are not necessarily withdrawn if courts incorporate them into the common law. Parliament can attempt to abolish common law rights by express enactment, but this may only raise another set of constitutional constraints. Courts may either impede their ouster using the same techniques they have with privative clauses or invoke the second scenario mentioned above (statutory invalidation).

More importantly, the issue raises the question of how courts should interpret a legislative decision to repeal. Not all statutes are alike. Lord Justice Laws has said (in the context of implied repeal) that ‘[w]e should recognise a hierarchy of Acts of Parliament: as it were “ordinary” statutes and “constitutional” statutes.’ The UK HRA is undoubtedly a statute of this stature, even beyond the matter of implied repeal. British courts, for instance, took s 3(1) of the UK HRA to constitute a ‘strong adjuration’ to develop a markedly more expansive principle of legality, thereby augmenting the judiciary’s constitutional role.

By extension, does this mean that not all repeals are alike? If the enactment of a statute can affect the common law, should courts take the repeal of a statute, especially one that is constitutional, as an indication of how they should develop the common law in future cases? Should courts interpret a legislative decision to repeal the UK HRA as a similarly ‘strong adjuration’ to abandon the more expansive principle of legality? After all, courts could, if the UK HRA were repealed, continue to interpret statutes in the same manner and even continue to issue informal declarations of incompatibility. But if enactment of the UK HRA amounted to a legislative decision to transfer greater responsibility to courts for the protection of rights, should its repeal be understood as a reversal of that transfer of responsibility? Should the response of courts differ if repeal is accompanied by a good faith effort on the part of Parliament to increase its capacity and willingness to protect rights, for example, by strengthening the Joint Committee on Human Rights or reforming the House of Lords?

While such questions are speculative at this point in time, they raise weighty issues of constitutional law. The prospect of repeal invites us to consider the interaction between statute and common law, the difference between entrenched and unentrenched human rights instruments, the bi-directionality of law—whether it is possible for the legislature to give with one hand and take away with the other and whether that is the appropriate frame of reference for human rights—and the scope and limits of legislative power to direct and modify the role the judiciary performs in society.

 

Scott Stephenson is a Fox International Fellow at Cambridge University and a J.S.D. Candidate at Yale University

Suggested citation: S. Stephenson  ‘The Constitutional Significance of Statutory Repeal: How Far Can Parliament Turn Back the Clock?’ UK Const. L. Blog (7th March 2013) (available at http://ukconstitutionallaw.org)

 

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Tarun Khaitan: The ‘constitution’ as a Statutory Term

Constitution. A word that readers of this blog use and encounter frequently in academic, judicial and political discourse. It is one thing, however, for academics, politicians, or even judges to invoke ‘the constitution’, quite another for Parliament to do so in legislation. As that (other) great jurist Salmond once explained, unlike judgments, ‘one of the characteristics of enacted law is its embodiment in authoritative formulae. The very words in which it is expressed—the litera scripta—constitute part of the law itself.’ To use Salmond’s metaphor, ‘Case law is gold in the mine—a few grains of the precious metal to the ton of useless matter—while statute law is coin of the realm ready for immediate use.’ For this reason, words are usually employed in statutes with great care. On their precise meaning and scope—as determined by judicial interpretation—hang significant legal rights and duties.

With able research assistance from Mr Tom Pascoe who helped filter out hundreds of other uses, I have found the following statutory references to the term ‘constitution’ or its cognates which use the term to signify the British constitution (or the constitutions of England or Scotland, before the political union of these countries).

1. In the short title of the statute:

      – Constitutional Reform Act 2005

      – Constitutional Reform and Governance Act 2010

2. In the Preamble/Introductory Text:

            – Coronation Oath Act 1688

            – Claim of Right Act 1689 [enacted by the Scottish Parliament]

            – Heritable Jurisdictions (Scotland) Act 1746

            – Statute of Westminster 1931

3. In Substantive Sections:

            – Criminal Libel Act 1819 [s 1]

            – Internationally Protected Persons Act 1978 [s 1(5)(a)]

            – Fire and Rescue Services Act 2004 [s 5D(2)]

            – Constitutional Reform Act 2005 [s 1]

            – Legislative and Regulatory Reform Act 2006 [s 3(2)(f)]

            – Legal Services Act 2007 [s 1(1)]

            – Localism Act 2011 [s 6(2)]

4. In Schedules:

            – Scotland Act 1998 [Schedule 5, Part 1, Para 1]

            – Equality Act 2010 [Schedule 3, Part 1]

            – Appropriation Act 2011 [Schedule 2, Part 2, Para 1] – Similar references are found in almost every Appropriation Act since 1996.

Thus, there are at least fifteen statutes which use the term in the relevant sense. In the seventeen years since 1996, at least ten statutes making explicit references to the British constitution have entered the statute books (counting the annual Appropriation Acts only once). Compare this to a mere five statutory references in the three hundred and eight years between 1689 and 1996. It seems, therefore, that the rate at which the legislature is using the term in statutes since 1996 is about thirty-six times the rate at which it did so between 1689 and 1996!

An important implication for this burgeoning usage is that, in the absence of any statutory definition and little guidance, it falls upon judges to determine the meaning and scope of what the constitution of the UK is. Notice that at least some of these statutes, while making references to the constitution, do not refer to the legal aspects of the constitution alone. So, in the appropriate case, judges may be called upon to determine what is the scope of the political constitution. What’s more, at least under the Legislative and Regulatory Reform Act, the Localism Act and the Fire and Rescue Services Act, they will not only determine the scope of the (political and legal) constitution, but also protect it against Executive legislation. Readers who are interested in a classification of these statutory usages and further details on these and other significant implications of such usage may be interested in the full article here.

Finally, if anyone can point to a statute that uses the term in the relevant sense and is not on this list, I will be very grateful.

Tarun Khaitan is a Fellow and Tutor in Law, Wadham College, Oxford

Suggested citation: T. Khaitan, ‘The ‘constitution’ as a Statutory Term’   UK Const. L. Blog (7th October 2012) (available at http://ukconstitutionallaw.org

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Tarun Khaitan: How to interpret Constitutional Statutes?

Most of us will be aware of the famous remarks of Lord Justice Laws in Thoburn v Sunderland City Council (2002) that constitutional statutes are immune from implied repeal, and therefore somewhat entrenched against Parliament. The issue of the entrenchment of the UK constitution against non-sovereign legislatures, such as the devolved legislatures and the European Union, has received relatively less attention.

In this post, I will highlight a purpose other than that of entrenchment for which certain statutes are being characterised as ‘constitutional’. In the following cases, the devolution statutes, namely the Scotland Act 1998, the Northern Ireland Act 1998, the Government of Wales Acts 1998 and 2996, have been so characterised in order to justify the adoption of special interpretive approaches towards these statutes.

At least two broad, and apparently inconsistent, interpretive rules can be seen to be emerging. On the one hand, we have cases which suggest that constitutional statutes, like canonical constitutional codes in other jurisdictions, should be interpreted in a generous and purposive manner. On the other hand, some judges have held that constitutional statutes require literal interpretation, with especial fidelity to the text. Their argument is that Parliament has chosen a precise set of words while being fully cognisant of the constitutional importance of the Bill under consideration. As such, they call for strong judicial deference.

The most famous case adopting the first position is the judgment of the House of Lords in Robinson v Secretary of State for Northern Ireland (2002). The case concerned the validity of the election of the First Minister and his Deputy by the Northern Ireland Assembly two days after a six-week deadline prescribed by the Northern Ireland Act 1998 for such election. A majority in the House of Lords upheld the election as valid. Lord Bingham, speaking for the majority, held that:

The 1998 Act does not set out all the constitutional provisions applicable to Northern Ireland, but it is in effect a constitution. So to categorise the Acts is not to relieve the courts of their duty to interpret the constitutional provisions in issue. But the provisions should, consistently with the language used, be interpreted generously and purposively, bearing in mind the values which the constitutional provisions are intended to embody. [11]

He suggested that the purposes of the Northern Ireland constitution included ensuring ‘that there be no governmental vacuum’, attempting ‘to end decades of bloodshed’ and facilitating ‘participation by the unionist and the nationalist communities in shared political institutions … [which] had to have time to operate and take root.’[10] The rationale for the six-week deadline, Lord Hoffmann explained in his concurring opinion, had ‘been to induce a willingness to compromise on the part of the members of the Assembly by the prospect of having to fight a new election.’[28] Giving the requirement of the deadline a rigid interpretation to invalidate the election held after it had passed, he argued, would be contrary to the most fundamental purpose of the Belfast Agreement which the 1998 Act was clearly seeking to implement: ‘namely to create the most favourable constitutional environment for cross-community government.’[30]

Lord Hoffmann’s reliance on the Belfast Agreement is particularly interesting. He justified this reliance by suggesting that the Agreement, along with the political context surrounding it, formed ‘part of the admissible background for the construction of the Act just as much as the Revolution, the Convention and the Federalist Papers are the background to construing the Constitution of the United States.’[33] In doing so, he borrowed from the interpretive traditions usually applied in the context of short, general and vague constitutional texts, citing the paradigm example of constitutionalism of this variety, namely the United States.

In Imperial Tobacco Limited (2010), Lord Bracadale expressly followed this ‘purposive and generous’ approach in Robinson to hold that ‘The court should endeavour to find in the Scotland Act a constitutional settlement which is coherent, stable and workable.’[3]

Similarly, the High Court in R (Governors of Brynmawr Foundation School) v The Welsh Ministers (2011) also cited Robinson to hold that the Government of Wales Acts (1998 and 2006) were constitutional statutes, and therefore ‘in applying the rules of statutory construction in order to determine the scope of the powers conferred on the Welsh Ministers or the Assembly by GOWA 2006, the court will take into account its constitutional status.’[73] Mr Justice Beatson adopted a generous approach and held that ‘Given the constitutional status of GOWA 2006, the court is reluctant to read implied limitations into it by reference to legislation which is not of a “constitutional” nature.’[87]

Apparently endorsing this approach, the Supreme Court said recently in AXA General Insurance v The Lord Advocate (2011) that ‘The carefully chosen language in which [certain provisions of the Scotland Act] are expressed is not as important as the general message that the words convey. The Scottish Parliament takes its place under our constitutional arrangements as a self-standing democratically elected legislature.’ [46]

On the other hand, there are cases which, while they agree that a special interpretive approach is warranted for constitutional settlements contained in devolution statutes, adopt an interpretive approach that is quite the opposite of the one just described. Thus, in Mills v HM Advocate (No 2) (2001) the High Court of Justiciary said that

‘There is also, in our view, force in the argument that the particular and detailed provisions dealing with devolution issues are part of the constitutional settlement embodied in the Scotland Act and that requirement should not therefore be avoided or circumvented. If the effect of the provisions is that appeals are open to the Privy Council on matters involving questions of Scots criminal law, that, in our view, must simply be accepted. It does not provide any reason to reject the argument based on the plain terms of the legislation.’ [19]

Soon after Mills, the Privy Council held in “R” v HM Advocate [2002] that ‘The Scotland Act is a major constitutional measure which altered the government of the United Kingdom’.  In this case, Lord Rodger suggested that when Parliament had consciously enacted ‘a constitutional settlement of immense social and political significance’, courts must be especially deferential: they ‘must loyally give effect to the decision of Parliament on this sensitive matter, even if – or perhaps especially if – there are attractions in a different solution’.[155]

Unlike the first set of cases, these two cases suggest that the proper way to interpret constitutional statutes is to do so literally rather than purposively. Indeed, they demand a literal application of even the mundane or ordinary provisions contained in constitutional statutes (after all, not all provisions in a constitutional statute are ‘constitutional’). The rationale seems to be that Parliament has in its wisdom settled these mundane details while being sensitive to the constitutional nature of the overall project. This context implies that the importance of the overall project rubs off to some extent on all provisions contained in a constitutional statute. The room for judicial manoeuvre is small, and a literal interpretation that is warranted. The second set of cases seems to better recognise that UK style constitutional statutes (at least those containing the devolution settlements), although ‘constitutional’, remain statutes. They are drafted differently from canonical constitutional codes, and tend to be very detailed, delving into the minutiae of governmental functioning.

One may think that these two interpretive approaches can be reconciled with each other, inasmuch as they (one may argue), apply to different types of constitutional provisions. On this argument, one could say, that a generous and purposive interpretive approach is appropriate for provisions which are framed in a general and vague language, or which embody broad legal principles normally found in preambles to constitutions and Bills of Rights. On the other hand, a literal approach is best for those constitutional provisions which embody a detailed rule where the scope for indeterminacy is minimal. Such a distinction is surely plausible, except that it cannot be supported on the facts of the cases described above. The provision being interpreted in Robinson was fairly clear, specifying a fixed time period within which the elections of the Ministers was to take place. Indeed, most of the aforementioned cases dealt with relatively precise and detailed provisions in constitutional statutes. Which of these two approaches ultimately finds favour with the courts remains to be seen.

Tarunabh Khaitan is a Fellow in Law, Christ Church, Oxford.

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Gordon Anthony: Axa – A view from Northern Ireland

It is a little over 6 weeks since the Supreme Court delivered its long-awaited ruling in Axa General Insurance v Lord Advocate [2011] UKSC 46. Although the ruling was of primary importance to Scottish law – see, for instance, its liberalisation of the rules on title and interest/standing – the challenge to the Damages (Asbestos-related Conditions) (Scotland) Act 2009 that had been enacted in the face of Rothwell ([2007] UKHL 39) was of considerable interest in Northern Ireland too. This was not just because the Northern Ireland Assembly had enacted parallel legislation in 2011, but also because it was expected that the Supreme Court would address complex constitutional questions about the nature of the powers of the three devolved legislatures. When it finally did so, the Court made clear that the devolved legislatures are not legally sovereign but that they are, nevertheless, democratically legitimated bodies that will attract only very limited judicial scrutiny outside the terms of their constitutive Acts.

The central issue in the case was whether the Damages (Asbestos-related Conditions) (Scotland) Act 2009 was ultra vires section 29(2)(d) of the Scotland Act 1998  by reason of being a disproportionate interference with the Article 1 Protocol 1 ECHR rights of the appellant insurance companies. The appellants’ submissions on this point failed because the Supreme Court was of the view that the legislation had been introduced to remedy a social injustice and because, in those circumstances, a court should interfere with the “public interest” choice of a legislature only where the choice is “manifestly unreasonable”. This, in turn, might have been dispositive of the case as it was noted that a further challenge based upon common law irrationality would inevitably fail if the Convention threshold of manifest unreasonableness could not be met (see para. 42 of Lord Hope’s judgment). However, rather than leave the matter there, the Court took the opportunity to elaborate upon the nature of the common law limitations that can apply to Acts of the Scottish Parliament. It is in that context that Axa is most relevant to Northern Ireland.

The Court developed two main points about the common law. The first was that common law irrationality does not lie as a ground for review of Acts primarily because of the constitutional nature of the Scottish Parliament. While Lords Hope and Reed emphasised that the Scottish Parliament is not legally sovereign in the sense that the Westminster Parliament is, they equally emphasised that the broader design of the Scotland Act 1998 entails that the powers of the Scottish Parliament cannot easily be compared to those of other recipients of delegated powers. Lord Hope thus said at paragraph 46 that the Scottish Parliament is a “self-standing democratically elected legislature. Its democratic mandate to make laws for the people of Scotland is beyond question”; and Lord Reed similarly noted that “(w)ithin the limits set by section 29(2) … its power to legislate is as ample as it could possibly be: there is no indication in the Scotland Act of any specific purposes which are to guide it in its law-making or of any specific matters to which it is to have regard” (para. 146). Against that background, it was thought that it would be inappropriate for unelected judges to use common law irrationality (or unreasonableness or arbitrariness) as a means to second guess the preferences of a democratically elected Parliament (albeit that Lord Mance was less absolute in his conclusions: see para. 97).

The second point was that the common law could be expected to intervene where the Scottish Parliament legislated in such a way as to threaten the rule of law as the cornerstone of the UK constitution. For Lord Hope, this was something that could occur where executive dominance of a legislature might allow a government to introduce legislation purporting to “abolish judicial review or diminish the role of the courts in protecting the interests of the individual”. Referring to Lord Hailsham’s famous words in The Dilemma of Democracy and Lord Steyn’s comments in Jackson, his Lordship noted the increasing influence of a single party in Holyrood and said that “the rule of law requires that the judges must retain the power to insist that legislation of that extreme kind is not law which the courts will recognise” (para. 51). Lord Reid likewise identified values that he thought the Scottish Parliament could not abrogate, where he took as his starting point the interpretive presumption that prohibits recipients of power from acting contrary to common law fundamental rights save where the Westminster Parliament has expressly authorised that outcome. On this basis, his Lordship said that the Scotland Act 1998 is legislation “for a liberal democracy founded on particular constitutional principles and traditions … [Westminster] cannot be taken to have intended to establish a body which was free to abrogate fundamental rights or to violate the rule of law” (para. 153).

So, what does this all mean for the Northern Ireland Assembly? Certainly, the Supreme Court’s recognition of the need for heightened caution when courts are engaged in common law review complements earlier Northern Ireland jurisprudence on the legality of Orders in Council made under the Northern Ireland Act 2000 (the Act, now repealed, applied when the Northern Ireland Assembly was suspended). Such Orders are the constitutional equivalent of Acts of the Assembly, and the Northern Ireland courts refused to become involved in review processes that would have led them to consider the underlying policy of particular Orders (see, for instance, Re Carter’s Application [2011] NIQB 15). Axa, in that sense, has provided indirect confirmation that the Northern Ireland case law was correctly decided and that the courts were right to refuse to strain democratic principle.

In contrast, the understanding that the Assembly is not legally sovereign is essentially unremarkable, largely because debate in Northern Ireland has long been concerned more with ideas of political sovereignty and the so-called “consent” principle that underpins the Belfast Agreement of 1998.  According to that principle – which finds legal expression in section 1 of the Northern Ireland Act 1998 – Northern Ireland is to remain as a part of the UK for so long as a majority of its electorate wishes it do so. However, while that situates the Northern Ireland Assembly within the UK’s constitutional structures, section 1 also provides that the Westminster Parliament will legislate to give effect to a majority electoral decision that Northern Ireland should cease to be a part of the UK and should form part of a United Ireland (see, too, Article 3 of the Irish Constitution, 1937). The Northern Ireland Act 1998 has therefore never really been regarded as something that can/should sustain a legally sovereign legislature, even if the Act has been described as a “constitutional statute” (see Robinson v Secretary of State for Northern Ireland [2002] UKHL 32). It has instead been viewed as an Act that accommodates a delicate political accord that may later place Northern Ireland in a different sovereign setting altogether.

More complex is the position in respect of executive dominance and fundamental rights. Taking first the peril of executive dominance, the Northern Ireland Assembly is already characterised by such dominance given the consociational model of governance that defines the Belfast Agreement and Part III of the Northern Ireland Act 1998. That said, such dominance is several steps removed from the kind that concerned Lords Hailsham and Steyn, as the Northern Ireland Executive presently comprises Ministers from five political parties who must work together within a framework of elaborate checks and balances (both as apply to the Executive and within the Assembly). While it is, of course, theoretically possible that the Executive could pilot legislation that would seek to abolish judicial review, this would require a level of political co-operation on a controversial issue that would escape all previous experience in Northern Ireland, not to mention the checks and balances. To return to Lord Hope’s observation about the increasing influence of a single party in Holyrood, the absence of any related dynamic in the Northern Ireland Assembly perhaps limits the reach of his point about executive dominance. Indeed, it might even be said that legislation to abolish judicial review in Northern Ireland could be enacted only in the highly improbable circumstance that almost all parties to government simultaneously opted to jettison the rule of law.

Lord Reed’s comments on fundamental rights do, however, have a more immediate resonance in Northern Ireland, as the Robinson case had earlier established the importance of interpreting the devolution Acts in the light of the values that they embody (Robinson was concerned the interpretation of provisions on the election of the First and Deputy First Ministers: Lord Reed referred to the case at para. 153). So will this lead to the development of a more nuanced body of case law on the values of democracy, equality and rights that are generally said to inform devolution in Northern Ireland? Probably not, as the fuller thrust of Axa points away from ready judicial engagement with the legislative choices of the Assembly save to the extent that they are argued to contravene section 6(2)(c) of the Northern Ireland Act 1998 (the equivalent provision of section 29(2)(d) of the Scotland Act 1998). That said, ongoing political debate about the future of the Human Rights Act 1998 does suggest, at its most extreme, that the Act might be repealed and replaced with one or more of a number of Bills of Rights. In that event, sections 6(2)(c) and 29(2)(d) would become redundant on their current terms and they would have to amended to accommodate any new rights reality. Should that reality leave constitutional gaps, Axa’s potential for common law intervention might quickly be realised.

 

Gordon Anthony is Professor of Public Law at Queen’s University Belfast

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Alison L. Young: Fixed-Term Parliaments and Neurath’s Ship

The UK constitution could be compared to Neurath’s ship. Unlike other countries, the UK cannot point to a single defining moment when a constitution was definitively ‘launched’, its provisions set out in one document named ‘Constitution’. The UK’s constitution has evolved over time, building on and replacing the ‘old timbers’ of statutes, common law, conventions, non-legally enforceable rules, prerogative powers, practices and principles that make up our more loosely constructed (and some would argue leaking) constitution. In one sense, the recently enacted Fixed-Term Parliaments Act 2011 is a small timber replacement; just another piece of legislation that regulates constitutional matters by providing for fixed-term Parliaments. However, it also raises more fundamental issues. Just as it may be difficult to determine when a series of small changes has provided Neurath with a new ship, the Fixed-Term Parliaments Act 2011 may be part of a series of small incremental changes that is modifying the fundamental nature of the UK constitution.

On its face, the legislation appears to be modest. It fixes the date of the next general election as 7 May 2015 (section 1(2)) and fixes the terms of future Parliaments to five years (section 1 (3)). Parliament is automatically dissolved 17 working days before the election date (section 3(1)), replacing the prerogative power of the Monarch to dissolve Parliament (section 3(2)). The fixed five-year term can be extended for up to 2 months by a standing order made by the Prime Minister, approved by affirmative resolution of both Houses, with the Prime Minister being required to set out the reasons for the delay in the standing order (sections 1(5), 1(6) and 1(7)). This is designed to enable flexibility should polling day coincide with national or other emergency situations – e.g. as was the case with the foot and mouth crisis in 2002.

There are also two ways in which Parliament can be dissolved before the end of the five-year fixed term. First, the House of Commons, by a two-thirds majority, may pass a motion “That there should be an early parliamentary election” (section 2(1) and 2(2)). Second the House of Commons, acting by a simple majority, may pass a motion “That this House has no confidence in Her Majesty’s Government” which is not followed, within 14 days, by the passing of a second motion, again by simple majority, “That this House has confidence in her Majesty’s Government” (Sections 2(3), 2(4) and 2(5)). In both of these instances, the date for the general election is determined by a proclamation of Her Majesty, on advice from the Prime Minister (Section 2 (7)), Parliament dissolving 17 working days before the date set (section 3(1)).

Sections 4 and 5 of the Act resolve the difficulties arising from the coincidence of the date for the next general election for the Westminster Parliament falling on the same day as the date fixed for elections to the Scottish Parliament and the National Assembly for Wales, moving the date for these elections to 5 May 2016. In addition, the Prime Minister is required to make arrangements for a committee, the majority of whose members must belong to the House of Commons, to carry out a review of the consequences of the Act. The committee, if it finds it appropriate, may recommend the repeal or amendment of the Act, publishing its findings. The arrangements for the committee are to be made no earlier than 1 June and no later than 30 November 2020.

The justification for the legislation, as presented by the Deputy Prime Minister, also appeared to be uncontroversial. Prior to its enactment the power to dissolve Parliament was a prerogative of the Crown. In practice, this meant that the Prime Minister was able to determine the date at which general elections were held, provided that this was within five years from the last general election. As such, the Prime Minister could use this power to time the general election when it would be more likely that the Prime Minister’s government would be re-elected. A fixed term removes this power. It aims to enhance democracy, transferring a power of the Prime Minister to the House of Commons. Democracy may also be enhanced through the codification of votes of no confidence. This may be used both to vote out a Government which has lost the confidence of the House of Commons, but could also be used to require a motion to approve a newly-formed Government. This may give an extra layer of democratic legitimacy when the leadership of a political party changes, leading to the replacement of one Prime Minister with another, where there is a major cabinet reshuffle, or where coalition Governments are formed. However, the two-thirds majority required to call an earlier election may be nigh on impossible to obtain. In addition, the Monarch still retains her power to prorogue Parliament (section 6(1)). This may leave open the possibility of the Prime Minister responding to losing a vote of no confidence by requesting the prorogation of Parliament, ensuring that a different Government cannot be formed and obtain the approval of a vote of confidence within 14 days, thus forcing a general election.

However, even if there is general agreement surrounding the desirability of enhancing the powers of the House of Commons vis-à-vis the power of the executive, there was still a degree of controversy surrounding the provisions of the Act. Is five years too long? Five years may have been the maximum length of Parliament but, even if the face of more recent longer terms, it is by no means the average length of modern Westminster Parliaments. Moreover, research carried out by the Constitution Unit demonstrated the preference for shorter terms in most other legislative chambers and strongly advocated a four-year fixed term. Despite this, an amendment to move to four year terms was defeated.

Are fixed-term Parliaments a good idea generally, or are they merely required for a coalition Government? This issue led to deadlock, with the House of Lords proposing a ‘sunset’ clause requiring both the House of Commons and the House of Lords to renew the legislation after each general election. The deadlock between the two houses  was finally resolved through the insertion of the requirement to arrange for a committee to review the Act in 2020 (the Parliament Act 1911-1949 procedure could not be used, given the provisions in the legislation enabling the life of Parliament to be extended to more than five years).

More fundamentally, the Act has deeper constitutional implications. First, it is further evidence of the codification/legalisation of the UK constitution? The prerogative power of the Monarch to dissolve Parliament is replaced by a legally regulated power; the consequences of votes of no confidence are no longer regulated by constitutional convention but by statute. This raises the issue as to whether these matters will be regulated by the courts, or whether the courts would regard these issues as non-justiciable being the subject of parliamentary privilege. Second, the Act was referred to in debates as a ‘constitutional’ statute. As such, should it be interpreted differently by the courts than other statutes (Robinson v Secretary of State for Northern Ireland); be incapable of being impliedly repealed (Thoburn v Sunderland City Council); or should it have been enacted differently from other, ordinary legislation, perhaps requiring White and Green papers and greater pre-legislative scrutiny, or even a different voting mechanism, as in the two-thirds voting requirement for the motion for an earlier general election (see  House of Lords Constitution Committee Report The Process of Constitutional Change, 15th Report of 2010-2012)? Third, there are implications for parliamentary sovereignty. Dicey’s conception of sovereignty clearly requires that all statutes are equal, but the increasing recognition of ‘constitutional statutes’ would suggest that some statutes are more equal than others. The reference in the title to Parliaments as opposed to Parliament and the rejection by the House of Commons of the ‘sunset’ clause clearly indicates an intention that this legislation binds future Parliaments. However, there are no provisions specifically preventing Parliament from enacting legislation to amend or overturn the Act. Moreover, it may be possible for Parliament to repeal the Act by implication; enacting legislation to dissolve Parliament, or providing for an earlier election. Is the Act further evidence of a challenge to the accuracy and normative justification of ‘Parliamentary Sovereignty’ as a fundamental feature of the UK Constitution?

More fundamentally, it calls into question the way in which our constitution is formed. The Act modifies the definition of Parliament and the way in which it votes. Does or should Parliament have the power to redefine itself If so, than Neurath’s ship really would have been replaced. As with most aspects of the UK constitution, only time will tell. But perhaps a better understanding of the provisions of the Act is to see this as a step towards, as opposed to the accomplishment of, a definitive shift to fixed-term Parliaments. Not only does the Act itself require a committee to investigate whether the Act should continue in force, but also, should its principles be ignored, the courts will be called upon to resolve the perceived constitutional crisis. To interpret the Act as a further example of the way in which Parliament may bind its successors my remove this essential checking function of the court, replacing its ability to assess legal and political realties with an obligation to interpret a statutory provision according to the will of Parliament (however difficult this may be to ascertain). This may damage the flexible, evolving nature of the UK constitution, as well as granting far greater powers to Parliament than Dicey’s theory may have originally intended.

Alison L. Young is a Fellow at Hertford College, Oxford.

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