Tag Archives: Devolution

by | March 26, 2013 · 4:57 pm

Mark Elliott: Devolution, the West Lothian Question, and the nature of constitutional reform in the United Kingdom

mark1Earlier this week, the McKay Commission published its Report on the Consequences of Devolution for the House of Commons. The Commission’s terms of reference required it to determine “how the House of Commons might deal with legislation which affects only part of the United Kingdom, following the devolution of certain legislative powers to the Scottish Parliament, the Northern Ireland Assembly and the National Assembly for Wales”. In other words, the Commission was established to do that which Lord Irvine of Lairg (in)famously counselled against: viz to tackle the West Lothian Question. (Irvine reportedly said that the best thing to do about that question was to “stop asking it”.) There are various ways in which the question can be framed. The Commission, for its part, took the central issue to be the possibility that “MPs from outside England could help determine laws that apply in England, while MPs from England would have no reciprocal influence on laws outside England in policy fields for which the devolved institutions would now be responsible”.

The notion of reciprocity—or, more accurately, the lack of reciprocity that is a function of the UK’s asymmetric model of devolution—has always been at the heart of the West Lothian Question. Viewed more broadly, the fact that the West Lothian Question has arisen and remained unanswered for so long is reflective of a typically British approach to constitutional reform—one that treats the constitution as a work-in-progress, and which accepts disjointedness and inelegance as the price of pragmatism and speed. Within that tradition of constitutional reform, loose ends are an inevitable result of an underlying reluctance to confront big-picture questions. The McKay Commission’s approach to the West Lothian Question is of a piece with this dominant approach to constitutionalism in the UK, in that it proposes a practical solution that leaves the some fundamental questions unanswered.

The Commission’s guiding principle—and where that principle did not lead it

The Commission is clear that doing nothing should not be regarded as a viable option. In doing so, they rightly reject the view (advanced by Vernon Bogdanor in evidence to the Commission) that because England has a de facto predominance in the UK, it has “no need to beat the drum or blow the bugle”. Bogdanor argues that if England seeks to exploit its inherent dominance, it may strain the Union to “breaking point”. But this overlooks the potentially fissiparous effect of leaving the West Lothian Question hanging and thereby stoking a sense of disempowerment. This is a sphere in which perception matters: and the risk is that England may perceive itself to be (as Richard Rawlings, “Concordats of the Constitution” (2000) 116 LQR 257, put it) “the spectre at the feast”.

Instead, the Commission concludes that: “Decisions at the United Kingdom level having a separate and distinct effect for a component part of the United Kingdom should normally be taken only with the consent of a majority of the elected representatives for that part of the United Kingdom.” The Commission recommends that this principle be adopted by means of a resolution of the House of Commons. The question then became how this guiding principle should be given practical effect.

One obvious issue is that the “separate and distinct effect” formulation is undeniably vague. As Brigid Hadfield, “Devolution, Westminster and the English Question” [2005] PL 286, put it, “What … is an English law? If it cannot be defined with sufficient precision, then non-English MPs cannot fairly be precluded from voting on it.” By advocating the vaguer “separate and distinct effect” formulation, the Commission implicitly acknowledges that the matter is a complex one in relation to which judgement would have to exercised, rather than something that can be reduced to a clear-cut formula. But acknowledging complexity is not the same thing as resolving it, and the application of the “separate and distinct” criterion would doubtless excite controversy. Such definitional difficulties are not good reasons for shelving attempts to resolve the West Lothian Question (on the ground that it is all too difficult), but there is clearly further work to be done here.

Leaving to one side the inevitable questions of categorisation, how does the Commission propose that its guiding principle should be implemented? It rejects the creation of a separate English legislature, arguing that it might have a destabilising effect and would likely require wholesale constitutional reform. What, though, of the more modest proposal that only MPs representing English constituencies (or MPs representing English and Welsh constituencies) should be allowed to vote on laws likely to have a “separate and distinct effect” upon England (or upon England and Wales)?

The Commission rejects this option too. Its reasons for doing so are largely pragmatic. In particular, it fears that different “classes” of MPs would be created, and that the possibility of “deadlock” would arise: a Government might enjoy a majority in Parliament as a whole whilst lacking an outright majority of English MPs. Such a scenario is alien to the standard modus operandi of the UK system, in which (typically) a single party has an overall majority such that the Executive is able to drive its business through Parliament with (at least a degree of) impunity. In any event, the flip-side of the “deadlock” problem is arguably more profound. It concerns the dual functions ascribed to the post-devolution UK Parliament, whereby it is required to sustain not only the UK Government but also the de facto English Government. This is the sort of big-picture issue that the McKay Commission fails squarely to confront—a point that I develop below.

The Commission’s key proposals

Having rejected an English Parliament and “English votes for English laws” (along with various other options), the Commission concludes that its guiding principle should be implemented (first) by giving a voice to English (or English and Welsh) MPs in relation to relevant Bills, and (second) by making it politically difficult—but not impossible, either as a matter of law or parliamentary procedure—to enact relevant Bills in the absence of majority support on the part of relevant MPs.

As to the first point, the Report says that “views from England
(or England-and-Wales) should be known before a final decision is made about something with a separate and distinct effect”. The Commission identifies a range of ways in which this might be achieved. One possibility is modelled on “legislative consent motions” whereby, under the Sewel convention, the consent of a devolved legislature may be sought to the enactment of UK legislation encroaching upon devolved competence. The McKay Commission envisages that an analogous procedure might be used in relation to UK legislation liable to have a “separate and distinct” effect upon England (or England and Wales), the suggestion being that a Grand Committee consisting of all MPs representing relevant constituencies would render an opinion (by means of a resolution) as to whether the (relevant parts of the) Bill should be proceeded with. Other options identified by the Commission include debating a motion “expressing
 an opinion on that part of a bill relating separately and distinctly to England (or England-and-Wales)”, and the committal of relevant Bills to specially-constituted Public Bill Committees in which the party balance would reflect that which obtained in England (or England and Wales) rather than in the whole House. The Report does not express a firm conclusion as to which of these options should be taken forward; it identifies further questions that would need to be resolved, and suggests that the Government should put its preferred options to the House of Commons, and that a Select Committee should subsequently advise the House on points of detail.

So much for a distinctive English (or English and Welsh) “voice”. What if that voice (by a majority) opposes a Bill or relevant parts of it? Here, the Commission is very clear that MPs representing English (or English and Welsh) constituencies should not have a power of veto. It therefore rejects a “double-lock” procedure, under which it would be necessary, where relevant, to secure the approval not only of a majority of all MPs but also the approval of a majority of English (or English and Welsh) MPs. This reflects the Commission’s view that once the views of MPs representing particularly affected parts of the country have been heard and considered, “the UK majority should prevail, not least in order to retain the UK Government’s accountability at election time for decision-making during its time in office”.

However, at the same time as rejecting a “double-lock”, the Commission proposes a “double-count” procedure. This would involve making public not just the names of MPs who voted for and against the Bill, but also the constituencies they represent—with a view to determining whether relevant Bills (or provisions) attracted the support of a majority of MPs representing relevant constituencies. Although no legal or procedural consequences would ensue if a majority of the latter type were not secured, the Commission envisages that “if a government was seen to have failed to attract the support of a majority of MPs from England (or England-and-Wales) for business affecting those interests, it would be likely to sustain severe political damage”. The intention, therefore, is to disincentivise the use of MPs from unaffected (or less affected) parts of the country to push through legislation against the wishes of the majority of MPs representing particularly affected parts of the UK, whilst stopping short of preventing such a practice.

In preferring double-count over double-lock, the Commission cites its own guiding principle—that decisions “should normally be taken only with the consent of a majority of the elected representatives for that part of the United Kingdom” (emphasis added). The Commission’s defence of this position rests upon the principle of reciprocity. Devolved legislatures’ wishes with respect to incursions by Westminster into areas of devolved competence are normally respected (via the use of legislative consent motions under the Sewel convention), but are not necessarily respected (because Westminster could, at least in theory, override their wishes by asserting its legislative supremacy, which is undiminished by devolution).

By the same token, while English (or English and Welsh) MPs should be able to object to UK legislation likely to have “separate and distinct” effects upon England (or England and Wales), they should not thereby be able to veto such Bills. Instead, the consequences of oibjecting—like the consequences of a devolved legislature refusing to endorse a legislative consent motion—should play out on the political stage. The essence of the proposal, therefore, is to place (for these purposes) the group of MPs representing English (or English and Welsh) constituencies in a position vis-à-vis the (full) Westminster Parliament that is analogous to the position that devolved legislatures occupy in relation to Westminster. And, as the Commission notes, the analogy would likely be extended by the emergence of a constitutional convention corresponding to the Sewel convention. (It is worth noting in passing that the likely prescriptiveness of such a convention would mean that a double-lock requirement might well obtain in effect if not in form, just as the UK Parliament’s capacity unilaterally to interfere in devolved affairs is rendered essentially notional by the Sewel convention.)  

The bigger picture

The analogy outlined above is persuasive as far as it goes—but, arguably, it does not go far enough because it takes insufficient account of two sets of distinctions and the relationship between them. First, there is the distinction between the twin roles performed by all Westminster-style legislatures: viz legislating, on the one hand, and determining the composition of and sustaining the Executive, on the other. Second, there is the distinction between the way in which the Westminster Parliament, on the one hand, and the devolved legislatures, on the other, discharge those roles. The McKay Commission’s focus is upon the way in which the Westminster Parliament discharges its first—i.e. legislative—function. But there is insufficient consideration of the second function—i.e. determining the composition of and sustaining the Executive.

The analogy between devolved legislatures and Westminster breaks down because, unlike the former, the latter has to determine the composition of and sustain a Janus-like Executive: one that functions both as the Government of the United Kingdom and as the Government of England. Within this distinction is concealed the West Lothian Question writ large. As conventionally framed, the West Lothian Question is concerned with micro-level (albeit important) questions concerning Parliament’s legislative function and its exercise in relation to individual Bills. But a macro-level question also arises. Because the Westminster Parliament must sustain not only the UK Executive but also the de facto English Executive, no amount of finessing of the procedure whereby legislation is enacted can get around the possibility that elections to the UK Parliament may yield an Executive that does not accurately reflect the wishes of voters in England (as refracted through Parliament as an electoral college). Indeed, the 2010 election is a case in point, in that the Conservative Party won an overall majority of English but not UK constituencies.

It is in this sense that the McKay Commission might be said to have failed fully to grasp the nettle. The underlying issue that is never fully grappled with is that the post-devolution Westminster Parliament is required to perform a set of functions that may be in tension with one another. And this raises questions about our constitutional architecture more profound than those addressed by the Commission. It does not, of course, follow that that particular nettle should be grasped. As noted at the outset of this post, a certain degree of messiness is an unavoidable byproduct of the approach that characterises constitutional reform in the UK—and history teaches that the results of that approach do not necessarily yield a constitution lacking workability or public acceptance.

Viewed thus, the McKay Commission’s proposed solution to the West Lothian Question is of a piece with the type of constitutionalism that generated the question in the first place. It provides a partial, practical workaround to a problem created by a disjointed set of constitutional changes. Whether all of this showcases the merits of the UK’s highly pragmatic approach to constitutional reform or reflects a failure to confront difficult and fundamental questions is a matter of perspective. In any event, the McKay Commission’s Report shows that Lord Irvine was wrong; the West Lothian Question needed to be asked, and we could do a lot worse than answer it by implementing the Commission’s proposals. It is likely, however, that the concern underpinning Irvine’s reluctance to engage with the question derived from his recognition that once one begins to pick away at the loose edges of the constitution, it may quickly begin to unravel. It follows, then, that while asking the West Lothian Question is not unwise, thinking about it too hard might well be discomforting.

Mark Elliott is Reader in Public Law at the Faculty of Law, University of Cambridge. 

Suggested citation: M. Elliott, ‘Devolution, the West Lothian Question, and the nature of constitutional reform in the United Kingdom’  UK Const. L. Blog (26th March 2013) (available at http://ukconstitutionallaw.org)

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by | June 26, 2012 · 12:21 pm

Aileen McHarg: The Dog That Finally Barked: Constitutional Review under the Scotland Act

The reviewability of Acts of the Scottish Parliament (ASPs) at common law has, understandably, attracted considerable interest of late, on this blog and elsewhere.  However, the Supreme Court’s decision in AXA General Insurance Ltd v the Scottish Ministers [2011] UKSC 46 confirmed that the primary means of challenging ASPs is upon the grounds laid down in section 29 of the Scotland Act 1998, and there have in fact been several recent cases brought on statutory grounds which merit similar attention.

In comparative terms, the model of constitutional review – if it is appropriately so described – contained in the Scotland Act is a particularly strong one, permitting both pre- and post-enactment challenges; direct and collateral challenges; and inter-institutional and individual challenges.  Yet, as has frequently been observed, the courts have so far played a relatively limited role in policing the boundaries of the Scottish Parliament’s legislative competence.  Indeed, for the first decade after devolution, although there were a few cases, no legislation was found to be ultra vires, there were no inter-institutional challenges, and it was not until 2008 that any statutory ground other than breach of Convention rights was invoked (Logan v Harrower 2010 JC 1).

In the last few years, however, all this has started to change.  To begin with, the initial trickle of cases appears to be growing into a steady stream.  Whereas between 1999 and 2009 there were only nine reported cases in which legislative competence was in issue, since 2010, there have already been eleven such cases.

Secondly, in February and March of this year, the Scottish courts issued their first rulings that provisions were ‘not law’ in terms of section 29 of the Scotland Act.  Cameron v Cottam 2012 SLT 173 concerned section 58 of the Criminal Justice and Licensing (Scotland) Act 2010, which imposed a standard bail condition requiring the accused to participate in identification procedures and to allow prints, impressions or other bodily samples to be taken.  Because the condition was mandatory and therefore not necessarily justified in particular cases, the Court of Criminal Appeal held that it breached Article 5 of the European Convention on Human Rights (ECHR).  In Salvesen v Riddell [2012] CSIH 26, the Inner House of the Court of Session held that section 72 of the Agricultural Holdings (Scotland) Act 2003 was an unjustifiable interference with Article 1 Protocol 1 ECHR.  The 2003 Act abolished a form of agricultural tenancy – the limited partnership tenancy – which was used to prevent tenants gaining security of tenure, and replaced it with a statutory form of limited duration tenancy which gives tenants enhanced rights.  Following a wave of termination notices issued by landlords in anticipation of the legislation being passed, an anti-avoidance measure was inserted into the Bill which retrospectively cancelled the effect of such notices.  Giving judgment for the court, Lord Gill held that the provision went further than was justifiable for anti-avoidance purposes and was in fact punitive, motivated by the sponsoring minister’s view that the landlords’ action was immoral.  On the contrary, according to Lord Gill, there was nothing immoral in landlords exercising contractual rights to which tenants had agreed.

The third notable change is in the character of recent cases.  Although Convention rights remain the most popular ground of challenge, cases are at last emerging on other section 29 grounds.  The first to involve the devolved/reserved competence boundary was Logan v Harrower, which challenged the validity of section 45 of the Criminal Proceedings Reform etc (Scotland) Act 2007, which raised the maximum sentence available upon summary conviction in the Sheriff Court, insofar as it applied to road traffic offences, which are reserved under Schedule 5, Head E1 of the Scotland Act.  Although the challenge failed in the appeal court, it was essentially revived before the Supreme Court in Martin v HM Advocate 2010 SC (UKSC) 40.  The point at issue in both cases was a rather esoteric one, namely whether a general change to the criminal law, carried out for a devolved purpose, but which for reasons of consistency made changes to the law on reserved matters, and would therefore have been intra vires in terms of section 29(4), was nevertheless ultra vires because it altered a rule which was ‘special to a reserved matter’ in terms of Schedule 4 paragraph 2(3).  By a three/two majority, the Supreme Court in Martin held that the rule was not ‘special to a reserved matter’ because it merely altered the procedural route by which a particular sentence could be imposed, rather than the maximum sentence available for road traffic offences.  However, six months later, in Henderson v HM Advocate 2011 JC 96, the Crown had little option but to concede that a similar general sentencing provision – a power to impose an order for lifelong restriction created by section 1 of the Criminal Justice (Scotland) Act 2003 – should be read down so as not to apply to offences under the Firearms Act 1968.  Firearms is also a reserved matter (see Schedule 5 Head B4), and the effect of the impugned legislation clearly was to increase the maximum sentence available in such cases.

Another ASP which has had multiple challenges is the Tobacco and Primary Medical Services (Scotland) Act 2010, which, inter alia, bans displays of tobacco and smoking-related products (section 1) and cigarette vending machines (section 9).  In Sinclair Collis v Lord Advocate 2011 SLT 620, it was claimed that the section 9 ban breached both Article 1 Protocol 1 ECHR and Article 34 of the Treaty on the Functioning of the European Union (TFEU) (free movement of goods).  The Lord Ordinary rejected both challenges, holding that although it was not clear whether the vending machine ban fell within Article 34, it was in any case clearly a justified and proportionate restriction given its aim to protect public health, and that the same applied to the property rights challenge.  The attack was renewed in Imperial Tobacco v the Lord Advocate [2012] CSIH 9, this time on both provisions and on the grounds that they related to consumer protection, which is a reserved matter under Schedule 5, Heads C7 and C8, and modified section 6 of the Union with Scotland Act 1706, so far as it relates to freedom of trade, reserved by Schedule 4 paragraph 1(2)(a).  Imperial Tobacco is undoubtedly the most significant of the recent cases, since it is the first to involve a straightforward claim that an ASP has encroached upon reserved matters, and the Inner House’s decision contains important guidance on how such disputes are to be resolved.  In particular, the judges rejected the Lord Advocate’s argument, based on Robinson v Secretary of State for Northern Ireland [2002] UKHL 32, that, as a constitutional measure, the Scotland Act ought to be given a ‘generous and purposive interpretation’.  Although of constitutional significance, they insisted that the Scotland Act was not a constitution, but rather an Act of Parliament, and should therefore be interpreted in the same way as other statutes.  While statutes have to be interpreted in the light of their purpose, this requires specific evidence as to the background purpose, and in this case, since the purpose of Schedule 5 was simply to effect a division of powers between the Scottish and UK Parliaments, a purposive interpretation did not assist in determining where the dividing line was to be drawn.  Nevertheless, the court concluded that the tobacco bans were within competence: they were not consumer protection measures, and did not affect freedom of trade within the meaning of the Act of Union.

As to future challenges, litigation is widely anticipated in relation to the Alcohol (Minimum Pricing) (Scotland) Bill, again based on the claim that it is a disproportionate restriction on free movement of goods under Article 34 TFEU.  And the prospect remains of a challenge to the competence of the promised independence referendum, unless agreement is reached on an Order under section 30 of the Scotland Act to confer express power on the Scottish Parliament to legislate on this matter.  The independence referendum issue is, of course, also significant as the first instance of an open dispute between the Scottish and UK governments about the vires of proposed legislation.

Much more could be said about the decisions in these recent cases.  One might speculate, for example, as to the factors which led the courts to strike down the provisions in Cameron v Cottam and Salvesen v Riddell, without much show of deference in either case.  One could also explore the apparent differences in approaches to the interpretation of devolution statutes as between the majority and minority in Martin, or between the House of Lords in Robinson and the Inner House in Imperial Tobacco.  However, since both Salvesen v Riddell and Imperial Tobacco have been appealed to the Supreme Court, which is also due to give judgment in another case (ANS v ML) involving the compatibility of section 31(3)(d) of the Adoption and Children (Scotland) Act 2007  with Article 8 ECHR, further discussion might reasonably be postponed until these cases have been finally resolved.

There is, though, another question on which it is equally interesting to speculate: why is it that so many more, and more varied, challenges to the validity of ASPs have been raised in the last few years?  It has been suggested that the main reason for the previous relative lack of resort to the courts is because of robust internal policing of the boundaries of the Scottish Parliament’s legislative competence, both within the devolved institutions, and through inter-governmental negotiation, the latter assisted by political consensus between the Scottish and UK governments for most of the period since devolution.  There is undoubtedly some truth in this view, since there are strong supports within the Scotland Act for political resolution of vires concerns.  These include provisions for pre-legislative declarations by sponsoring ministers and the Presiding Officer that Bills are within competence (section 31), for pre-enactment references by UK and Scottish law officers to the Supreme Court (section 33), and, in some circumstances, for pre-enactment veto by UK ministers (section 35).  Provisions such as sections 30 and 104 which, respectively, enable UK ministers to confer additional powers on the Scottish Parliament and (inter alia) to make changes to reserved matters consequent upon ASPs, as well as the greater than anticipated use of Legislative Consent Motions to allow the UK Parliament to legislate on Scotland’s behalf, also point to a co-operative approach to the achievement of legally effective legislation.  Moreover, such inter-governmental co-operation does not appear to be particularly dependent upon political compatibility: the independence referendum apart, there is no evidence, as far as I am aware, of greater disagreement over competence issues between the SNP at Holyrood and the Conservative/Liberal Democrat coalition in London than there was under previous administrations.

Nevertheless, internal policing of the boundaries of legislative competence cannot be the sole reason why so few judicial challenges emerged in the early post-devolution period, nor can it explain why the rate of challenge has increased so dramatically.  There are at least three reasons why political mechanisms cannot be expected to eliminate all potential challenges: first, the government(s) may identify possible legal problems, but for political reasons decide to legislate anyway; secondly, they may identify potential grounds of challenge, but conclude that they are unlikely to succeed; thirdly, they may simply fail to identify relevant competence issues.  Given the complexity of the reserved/devolved boundary, the reach and intricacy of potential EU constraints, and the open-textured nature of Convention rights, it would seem, on the face of it, that there must remain substantial scope for individual challenges.

So what factors might explain the changing incidence of judicial challenges?  These might include:

    • Greater awareness of the possibilities for challenge on the part of potential litigants and/or their legal advisers;
    • Greater perceived receptiveness of the courts towards vires challenges;
    • Reduced financial or other barriers to litigation;
    • Increased financial or other incentives for potential litigants to challenge legislation;
    • Bolder use of its powers by the Scottish Parliament, particularly in ways that impinge upon powerful interests.

More detailed examination would obviously be needed to establish the relevance of these suggested factors, and to identify other significant considerations.  The likelihood is that different combinations of factors are at work in different cases, and there are of course inherent difficulties in trying to prove a negative – i.e., why challenges have not been brought.  Nevertheless, there is important empirical work to be done in gaining a fuller understanding of the incidence of vires challenges and their motivating causes.  In turn, this would provide a more nuanced appreciation of the practical significance of the Scottish Parliament’s bounded competence, and of the role of judicial enforcement of the devolution settlement as just one policing mechanism amongst others.

Aileen McHarg is Professor of Public Law at the  University of Strathclyde.

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by | January 10, 2012 · 4:41 pm

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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by | November 28, 2011 · 5:26 pm

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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by | April 17, 2011 · 12:03 pm

Aileen McHarg: Axa General Insurance Ltd. v. The Lord Advocate

The Inner House of the Court of Session has handed down its much-anticipated judgment in  Axa General Insurance Ltd. v. The Lord Advocate [2011] CSIH 31.  Probably the most important decision on the validity of devolved legislation to date, it concerns whether Acts of the Scottish Parliament (ASPs) are subject to review on common law grounds in addition to the specific grounds set out in the Scotland Act, and resolves a conflict of authority in the Outer House on this point.  The case was brought by four insurance companies in respect of the Damages (Asbestos-Related) (Scotland) Act 2009, which provides that pleural plaques and certain other asbestos-related conditions constitute non-negligible personal injury which is actionable under Scots Law.  The Act was passed in response to the House of Lords’ decision in the English case of  Rothwell v. Chemical Insulating Co. Ltd. [2008] 1 AC 281, which held that damages were not recoverable, since although evidence of exposure to asbestos, pleural plaques do not in themselves produce any harmful symptoms nor do they contribute to the development of other, harmful, asbestos-related conditions.  As well as claiming a breach of Article 1 Protocol 1 (A1P1) of the European Convention on Human Rights (ECHR) (a challenge based on Article 6 was not renewed on appeal), the insurance companies argued that, in reversing Rothwell, the Damages Act was irrational at common law.  The Inner House unanimously agreed with the Lord Ordinary (Lord Emslie) that the Act was not invalid on either ground.  However, they took a different view on the availability of common law grounds in principle.  The case also makes important rulings in relation to title and interest to bring, and more unusually to defend, challenges to ASPs.

Title and Interest

The respondents argued that the petitioners were not ‘victims’ in respect of the A1P1 challenge, nor did they have sufficient title and interest in respect of the common law challenge.  The Inner House rejected both contentions.  On the former point, since the insurance companies were in practice the ones who would bear the costs of actions based on the 2009 Act, they were sufficiently directly affected by it to be classed as ‘victims’ under Art 34 ECHR.  On the latter, the court considered that a broad approach to questions of title is appropriate in matters of public law.  In passing legislation, the Scottish Parliament has a duty to members of the public to act in conformity with the law.  Hence, following Wilson v IBA 1979 SC 351, individual members of the public who are adversely affected by legislation are entitled to challenge it, provided that they can qualify interest to do so.

On the other hand, the Inner House upheld the petitioners’ objection to the decision to allow eight individual sufferers from pleural plaques to enter the process as respondents, on the basis that being a beneficiary of legislation does not confer title and interest to defend it against a challenge to its validity.  Rather, the appropriate contradictor is the promulgator of the legislation or their representative, in this case the Lord Advocate, and other interested parties should enter the process as interveners.

Article 1, Protocol 1

The Inner House accepted that the petitioners’ property rights, in the form of their capital assets, were engaged by the legislation, although they rejected the claim that the ‘immunity’ from suit conferred on them by Rothwell itself counted as an asset.  They also accepted, unlike Lord Emslie, that there had been an ‘interference’ with the petitioners’ property in terms of A1P1.  However, they had no difficulty in finding that the interference was justified.  The petitioners argued that, in granting damages to the ‘worried well’, the legislation served no legitimate public interest, and that placing the costs of such a policy on insurance companies imposed a disproportionate burden on them.  Not surprisingly, the court rejected both arguments.  The Scottish Government and Parliament were entitled to take the view that the Rothwell decision amounted to a social injustice, and that the anxiety caused by confirmation of exposure to asbestos was a matter worthy of monetary compensation.  Moreover, the decision to place liability on employers and their insurers rather than, for example, setting up a public compensation fund was not disproportionate.  Insurers take the risk that the law might develop in ways adverse to their interests, and A1P1 does not always require that compensation be paid in order to justify interference with property rights, especially in cases where the state is concerned to rectify what it sees as a social injustice as between categories of its citizens.

Common Law Grounds

In Adams v. The Scottish Ministers 2003 SLT 366, Lord Nimmo Smith held that ASPs were a form of legislation which was sui generis, but which had more in common with primary than secondary legislation, and hence could be challenged only on the grounds set out in the Scotland Act.  In Axa, at first instance, Lord Emslie disagreed.  Although accepting Lord Nimmo Smith’s characterisation of ASPs, he took the view that all statutory bodies were subject to control by the courts at common law, unless there was something in the governing statute to exclude review, which was not the case here.  ASPs could therefore be challenged on the full range of common law grounds, including irrationality, albeit the intensity of review would be limited.  Drawing an analogy with cases involving subordinate legislation which had been subject to Parliamentary approval, irrationality challenges would not be available ‘short of the extremes of bad faith, improper motive or manifest absurdity,’ which standard was not met in this case.

The Inner House in Axa steered a middle course between these two positions.  While the judges agreed that ASPs are essentially in the nature of primary legislation, much more proximate to Acts passed at Westminster than to subordinate legislation, even that subject to Parliamentary approval, there is nothing in the Scotland Act which gives ASPs the status of Acts of the UK Parliament.  The recognition that ASPs are sui generis thus called for a new approach to their review.  The traditional grounds of common law review are not, without modification, apt for them.  While, illegality review is available, in terms of breach of the limits on legislative competence set out in the Scotland Act, ASPs are not apt for review for procedural irregularity, nor for irrationality, even in its extreme sense.  But this does not mean that the Court of Session could never strike down ASPs on common law grounds.  In particular, if a case were made out on grounds of ‘bad faith’ or ‘improper motive’, which are not truly aspects of irrationality, the court might well hold itself entitled to intervene.  Similarly if the Scottish Parliament were to take an exceptional measure of the kind contemplated by Lord Steyn in R (Jackson) v. Attorney General [2006] 1 AC 262 it might be challengeable at common law.

Again, however, no such exceptional case was made out here.  Indeed, the court went out of its way to emphasise that, even if an irrationality challenge had been available, it would have failed.  Although, they said, the House of Lords’ reasoning in Rothwell might in retrospect seem compelling, it was not inconceivable that the decision might have gone the other way.  Indeed, for a significant period prior to the decision, insurers had de facto accepted liability for pleural plaques, and this was something that the Scottish Parliament was entitled to take into account as a matter of political judgment.

Conclusion

On the substantive validity of the Damages Act, the Inner House is surely correct.  The insurance companies have declared their intention to appeal, in the apparent belief that their arguments will be viewed more sympathetically by the Supreme Court than by the Scottish courts. (See the discussion here.) However, this seems unlikely, as to strike down the Act would be tantamount to saying that legislation is not permitted to alter the common law of negligence.  On the issue of principle, the Inner House’s approach is interesting.  While the decision is welcome to those of us who have argued that the Scottish Parliament is not just another statutory body, and that ASPs are properly to be regarded as primary legislation,* it provides further evidence that primary legislation is not per se immune from judicial review.  Notwithstanding the court’s claim to be adopting an approach tailored to the sui generis nature of ASPs, it appears to have been strongly influenced by the developing theory of common law constitutionalism, and in particular the House of Lords’ decision in Jackson, which is quoted from at length.  The decision rejects, for instance, the relevance of arguments based on the reviewability of Acts of the pre-Union Parliament of Scotland or of colonial legislatures.

Given the doctrinal and theoretical importance of this issue, the prospect of an appeal to the Supreme Court is probably a good thing.  Nevertheless, it will mean further delay in meeting claims from pleural plaques sufferers, some of whom may die in the meantime.  This underlines the real objection to loose judicial talk in cases such as Axa and Jackson about the possibility of striking down legislation in extreme cases.  The danger is not so much that an extreme case will ever materialise (although, as Mullen has argued, there is always a risk, once the possibility of review is admitted, that the threshold for intervention will be lowered in future).  Rather, leaving the door to the courts open just a chink encourages speculative challenges which give the powerful another route by which to promote their political interests.  Sometimes delaying implementation, or even frightening off the opposition, might be as good as a substantive victory.  In other words, judicial sabre-rattling may change the way the political game is played, even if battle is never actually joined.

*   See, e.g., A McHarg ‘What is Delegated Legislation?’ [2006] PL 539; T Mullen ‘The Axa Insurance Case: Challenging Acts of the Scottish Parliament for Irrationality’ 2010 SLT 39; A Page ‘The Scottish Parliament, Pleural Plaques and the Court’ 2010 JR 139.

Aileen McHarg is a Senior Lecturer in Law at the University of Glasgow.

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