Tag Archives: Referendums

Stephen Tierney: The Scottish Constitution After Independence

stierneyAccording to the Scottish Government White Paper issued this week, Scotland’s Future, an independent Scotland will have a new written constitution (this repeats the commitment contained in the Scottish Government’s earlier White Paper of March). The intention is to replace Westminster parliamentary supremacy with the ‘sovereignty of the people of Scotland’ since, the Government claims, popular sovereignty has historically been ‘the central principle in the Scottish constitutional tradition.’ While this latter claim may be questionable, the commitment to a written constitution does promise a significant constitutional break with the Westminster tradition and a new constitutional culture for Scotland.

In this blog I will briefly discuss three matters:

    • When will the proposed constitution be drafted and promulgated?
    • What will it contain?
    • How will it be drafted?

When will Scotland have a new constitution?: The short answer is, we don’t know exactly. The task of drafting a new constitution will not commence until after the Scottish Parliament elections scheduled for 5 May 2016, some six weeks after Independence Day, set for 24 March. The White Paper does not offer a view as to how long the drafting process is likely to take and therefore we have no provisional date for the eventual promulgation of a new constitution.

What will it contain?: There is something of a tension between the substantive constitutional proposals put forward in the White Paper and the process by which it will be drafted.

The Scottish Government offers a fairly extensive list of what it thinks the constitution should contain, and a number of these provisions are key to its vision for independence. For example:

    • equality of opportunity and entitlement to live free of discrimination and prejudice
    • entitlement to public services and to a standard of living that, as a minimum, secures dignity and self-respect and provides the opportunity for people to realise their full potential both as individuals and as members of wider society
    • protection of the environment and the sustainable use of Scotland’s natural resources to embed Scotland’s commitment to sustainable development and tackling climate change
    • a ban on nuclear weapons being based in Scotland
    • controls on the use of military force and a role for an independent Scottish Parliament in approving and monitoring its use
    • the existence and status of local government
    • rights in relation to healthcare, welfare and pensions
    • children’s rights
    • rights concerning other social and economic matters, such as the right to education and a Youth Guarantee on employment, education or training

Another proposal is that Scotland would remain a constitutional monarchy ‘for as long as the people of Scotland wish us to be so’. In relation to a number of these proposed rights, such as the opportunity of education, training or employment and rights to welfare support and health care, there is no commitment that these would be legally enforceable by courts but rather the more vague suggestion that they will be ‘questions of social justice at the forefront of the work of Scotland’s Parliament, government and public institutions.’

But in any case, since the Government does not propose to draft the constitution itself, each of these is merely a proposal for consideration. As we turn to the proposed process by which the constitution will be drafted we find that there is no guarantee that any of these commitments will in fact find their way into a new constitution.

Drafting the Constitution: A Scottish Constitutional Convention? The White Paper provides that, following the elections of May 2016, a constitutional convention will be established to ‘prepare the written constitution’. But how can it be so sure? There is no guarantee the SNP will win the 2016 elections and another party or parties forming the government at that time may have different views about this.

The Scottish Government seeks to deal with this by way of some form of constitutional guarantee or entrenchment: ‘The constitutional platform, along with the refreshed Scotland Act, will be the founding legislation of an  independent Scotland and will not be subject to significant alteration pending the preparation of a permanent constitution by the constitutional convention’. It is stated in the White Paper that, during the transitional stage between the referendum and Independence Day on 24 March, legislation will be passed placing a duty on the Scottish Parliament elected in 2016 to establish a constitutional convention. It is not clear by whom this legislation will be passed although it does seem that the goal is either for concurrent legislation of the UK and Scottish Parliaments or for the Westminster Parliament to transfer power to the Scottish Parliament for this purpose. Even so, this raises an interesting question as to whether the 2016 Parliament would be bound by such legislation. There would of course be no written constitution in place to restrict its powers. Would it be bound by the sovereignty of Westminster? Surely not, as the newly elected Parliament of an independent country. This issue is worthy of more detailed consideration in due course and important lessons may well be found from comparative cases.

Assuming that the Scottish Parliament does assume the role as convener of a constitutional convention in 2016, what will this convention look like? Perhaps not surprisingly at this stage the White Paper offers little in the way of detail. But all the same important questions remain to be asked. We are told that the convention will be ‘open, participative and inclusive’ and that the new constitution ‘should be designed by the people of Scotland, for the people of Scotland’. But is the proposed convention likely to be a genuinely popular process?

In one passage the White Paper states: ‘International best practice and the practical experience of other countries and territories should be considered and taken into account in advance of the determination of the process for the constitutional convention. In the last decade, citizen-led assemblies and constitutional conventions have been convened in British Columbia (2004), the Netherlands (2006), Ontario (2007) and Iceland (2010). Since 2012, Ireland has been holding a citizen-led constitutional convention to review various constitutional issues.’ From a number of these examples it is clear that citizens can be engaged directly and in meaningful ways in drafting important constitutional provisions. But is this what the White Paper proposes? In fact this passage is juxtaposed with the suggestion that the constitutional convention ‘will ensure a participative and inclusive process where the people of Scotland, as well as politicians, civic society organisations, business interests, trade unions, local authorities and others, will have a direct role in shaping the constitution.’

This raises the question: will the process really be a popular and meaningful engagement with citizens, or will it be a largely elite-led event, like the Scottish Constitutional Convention from 1989-1995? Will in fact the new constitution be drafted by elites – politicians, civic society organisations, business interests, trade unions and local authorities? If so, is this satisfactory? After all, of these groups only politicians are elected by the citizens of Scotland. To whom are the other organisations accountable and in what ways? Who would select members of these groups to sit on the convention, on what basis, and with what degree of decision-making power would they be vested? The reference to ‘civic society organisations’ introduces a risk that pressure groups with fixed agendas and well-oiled activism machinery could hijack the process, arguing persuasively for the entrenchment in the new constitution of their own particular priorities, priorities which may not have the support of a plurality of citizens.

Such an approach to constitutional drafting runs counter to some of the other examples cited in the White Paper. The Citizens’ Assemblies in British Columbia and Ontario, for example, were composed of citizens selected randomly from the electoral role. This was a direct attempt to take constitutional decision-making out of the hands of elites, be they politicians or members of the fabled ‘civil society’.

Another question is: what power will such a convention, whether popular or elite, have? The White Paper says it will ‘prepare’ the constitution. Does that mean it will have the authority to present a final version of the constitution for ratification? Or would its role be advisory only, subject to change by the Scottish Parliament?

It seems that the convention is intended to have real determining power. That the Scottish  Government can only ‘propose [certain matters] for consideration’ by the constitutional convention suggests that the convention will have control over the inclusion or exclusion of all of the Government’s goals outlined above, including the personality of the head of state. However, there seems to be one exception here. According to the White Paper the convention will itself be limited in its remit by at least one substantive precondition: ‘Key equality and human rights principles, including the requirements of the European Convention on Human Rights (ECHR), would be embedded in the written constitution.’ This seems to be a non-negotiable commitment which the convention could not override. In other words, the convention will not be able to give effect to the ECHR in a way comparable to sections 3 and 4 of the Human Rights Act 1998, leaving the last word to the Scottish Parliament, a power which Westminster currently enjoys. There is also the suggestion that legislation during the transition period will give the ECHR the same legal force for reserved matters as it already has for devolved matters. Both these transitional arrangements and the constitutional pre-commitment on the ECHR in turn make the supremacy of judges over the new Scottish Parliament in the human rights area another de facto pre-commitment. Of course it may be that a constitutional convention or citizens’ assembly would come to the view that this is good for Scotland, but surely that should be left to this process to determine?

Finally, how would the constitution be promulgated? Would it simply need the ratification of the Scottish Parliament, or would there be a referendum? The White Paper does not say, but given the growth in referendums within our constitutional practice it seems inconceivable that such a momentous constitutional development, intended to declare the sovereignty of the Scottish people, could take place without the express authorship of the people expressed in a referendum.

Stephen Tierney is Professor of Constitutional Theory at the University of Edinburgh and Director of the Edinburgh Centre for Constitutional Law.  He is currently ESRC Senior Research Fellow under the Future of the UK and Scotland programme. I am grateful to Katie Boyle for research assistance in writing this blog.

Suggested citation: S.Tierney, ‘The Scottish Constitution After Independence ’  (2nd December 2013) (available at http://ukconstitutionallaw.org).

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John Stanton: The road from Gettysburg. Are we nearly there yet?

johnLast Friday, much was made of the 50th anniversary of John F Kennedy’s assassination in Dallas, 22 November 1963. The 35th President of the United States, ‘JFK’ oversaw, inter alia, the Cuban Missile Crisis, the early days of the Space Race and played a key part in America’s ongoing relations with the Soviet Union. It is only fitting, therefore, that his untimely and brutal demise be respected half a century down the line. Whilst not necessarily of comparable significance, however, last week also saw another key anniversary for the US Presidency. 19 November marked the 150th anniversary of Abraham Lincoln’s famous Gettysburg Address and it is on this that I focus here.

By no means the longest speech of Lincoln’s presidential career, the Address, delivered amidst the toils of Civil War, was key in reaffirming the importance of equality. It is the last few words of that speech, however, that have perhaps endured with greatest prominence:

‘… we here highly resolve that these dead shall not have died in vain — that this nation, under God, shall have a new birth of freedom — and that government of the people, by the people, for the people, shall not perish from the earth’ (Abraham Lincoln, Gettysburg Address, 19 November 1863)

Since that time, in the UK as well as in America, the importance of giving individuals democratic opportunity to have their say and to select representatives has become an indelible feature of executive and legislative processes. With this in mind, it is the purpose of this piece briefly to consider the extent to which ‘government of the people, by the people, for the people’ can adequately be said to apply in the UK system 150 years after Lincoln’s famous statement.

Elections and referenda are perhaps the most widely prominent ways in which citizens have the opportunity to get their views across and input into a process of decision and policy-making. Issues with both, however, pose serious questions as to the effectiveness of the modern democratic process.

Elections have raised perennial concerns relating to low turnouts, with recent General Elections attracting little more than 60 – 65% of the UK population, and I am far from the first to note the consequent effect this can have in terms of appropriate representation. Disenchantment, disengagement and general apathy are often cited as contributory reasons behind such poor attendance at the ballot box, with citizens often feeling that their votes have no effect on the outcome or the process.

In a somewhat different vein, referenda seem to be rather in fashion at the moment. Little more than two and a half years after (just 42% of ) the country turned out to decide on a change to the Alternative Voting System, attention this last week has focused on the referendum due 18 September 2014 as regards Scottish Independence, and wider governmental deliberations have considered in recent times the potential for a referendum in 2017 relating to ongoing membership of the European Union.

At the local level as well, this mechanism for public consultation has a broad base. The Localism Act, for example, makes provision for referenda in three different instances, adding to the opportunities that exist elsewhere. As Baroness Hanham noted during Localism Bill’s progression through the Lords and just a month prior to Royal Assent,

Not only are there the council tax referendums, there are the right-to-build referendums and the neighbourhood planning referendums. Those complement the provisions for referendums which are already open to councils to carry out on governance. Any council may carry out parish polls and informal polls which are to do with its services and functions. (Baroness Hanham, HL Deb 10 October 2011, vol 730, col 1412).

In terms of legal and political foundations, therefore, referenda enjoy a certain prominence in the UK system. Though useful in gauging public opinion, however, their potential role as a vehicle for citizen-led governance is perhaps countered too greatly by the fact that decision and policy makers enjoy the luxury of framing the terms of the question put to the public vote and are, thereafter, not bound by its result.

On the interpretation, therefore, that Lincoln’s words allude to according free and equal citizens democratic opportunity to involve themselves in and lead forward governance and decision-making affecting their daily lives, the extent to which this can be said to ring true in the UK 150 years later is, to say the least, rather questionable. Elections fail to attract a sufficiently significant proportion of the country, and referenda – whilst very much in favour at the moment – seem to offer democratic opportunity on government’s own terms.

‘Government of the people’ – yes. ‘Government for the people’ – perhaps. ‘Government by the people’ – not really.

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

Suggested citation:  J. Stanton, ‘The road from Gettysburg. Are we nearly there yet?’  UK Const. L. Blog (28th November 2013) (available at http://ukconstitutionallaw.org).

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Paul Kildea: Australia’s abandoned local government referendum

photo-paul-kildeaIt is almost forgotten now, but Australians were recently set to vote in a referendum on the constitutional recognition of local government. Had it gone ahead, the referendum would have been the first since the republic poll in 1999, and potentially would have seen the first amendment to the Constitution in 36 years.

But the planned referendum was effectively cancelled when Prime Minister Kevin Rudd announced in August that the federal election would be held on 7 September, a week earlier than anticipated. A combination of constitutional and electoral rules prevented the local government poll from running sooner than 14 September, and so it had to be abandoned. This was a huge disappointment to local government, compounded by the fact that the referendum is unlikely to run under the new conservative Liberal-National government led by Prime Minister Tony Abbott.

Given no votes were cast, analysis of the abandoned referendum naturally turns to questions of process. Now that the push for local government recognition has ended in a whimper, is there anything that we can learn from its failure? This question matters more than it usually might, as the Abbott government has indicated that it will run a referendum of its own in the coming years – on the constitutional recognition of Aboriginal and Torres Strait Islander peoples. Advocates of that reform will be hoping that the government can learn from the mistakes of the past three years. In particular, they will hoping for something different when it comes to public engagement in the process, and campaign funding.

Before turning to these process issues, it is worth sketching some background to the local government reform that didn’t quite make it to the people. The proposal was to amend section 96 of the Australian Constitution to allow the federal (ie, national) government to give funding directly to local government bodies, rather than having to go through the States. Canberra has been making direct payments to local councils for decades, but the constitutional validity of this practice was cast into doubt by recent High Court decisions in the Pape and Williams cases.

Advocates of the reform proposal argued that existing and future spending programs on essential services like road maintenance would be vulnerable to challenge unless the Constitution was altered. Local government also saw the referendum as a way to enhance its status in the eyes of the community. Opponents argued that the reform was unnecessary, given the ability of the federal government to fund councils indirectly through the States. And they viewed it as a means of enhancing central power at the expense of the States.

It is perhaps not surprising that debate about these issues never quite captured the public imagination. What was on the table was a technical amendment and, notwithstanding attempts by local government to link it to everyday concerns like road safety and local parks, encouraging citizens to take an interest was always going to be a challenge.

The cause was not helped by the fact that little groundwork had been done to educate and involve the public in the process. In 2011 the government appointed an expert panel to conduct community consultations, but gave it insufficient time and resources to do the job properly. In total the Panel held six consultations, attracting just 127 participants, most of whom were local council representatives. The chair of the expert panel, James Spigelman, later noted that the consultations ‘did not attract much in the way of public response’. It is fair to say that most Australians would have heard about local government recognition for the first time in May 2013, when the government announced its intention to hold the referendum.

It is interesting to speculate whether or not the Australian people would have approved the proposed constitutional amendment, irrespective of the absence of public engagement. An Australian Financial Review/Nielsen poll taken in May found that 65 per cent of voters supported it, but a Morgan poll in June registered support at just 47 per cent. The historical record suggests little cause for optimism: since 1901, Australians have voted ‘Yes’ in just 8 of 44 referendums.

The Gillard government no doubt had this historical record in mind when it made what was the most controversial announcement of the referendum campaign. On 17 June 2013, Local Government Minister Anthony Albanese announced that the government was going to make available $10.5 million to assist both supporters and opponents of local government recognition in promoting their arguments to the community. Albanese explained, however, that this funding was to be allocated on an unequal basis, with $10 million going to the Australian Local Government Association (to prosecute the Yes case) and just $500,000 to opponents of constitutional change.

Equal campaign funding is widely considered to be an element of good referendum practice. The Venice Commission, for instance, endorses ‘a neutral attitude by administrative authorities’ towards campaign funding in its Code of Good Practice on Referendums. But, as a result of legislative amendments made by the Parliament earlier this year, the government was free to distribute its funding as it wished.

Albanese justified the disparity on the basis that it was in line with the level of support that the proposed constitutional amendment had received in Parliament. Indeed, the proposal had attracted broad cross-party support, garnering roughly 95 per cent of votes in Parliament. An unspoken motivation might have been to ‘load up’ the Yes case in advance of the possible launch of well-financed No campaigns run by State governments.

Whatever the rationale, the decision to allocate promotional funding unequally backfired. Tony Abbott (then the Opposition Leader) accused the government of trying to ‘buy’ the referendum result, saying that ‘argument, not money, should determine the outcome’. Conservative MPs, already divided on the merits of local government recognition, were upset by the funding announcement and it was soon reported that it had placed bipartisan support in jeopardy. This was not an insignificant development, as no referendum in Australia’s history has succeeded without bipartisan support. Had the referendum proceeded, this cooling of support may have proved decisive.

The Gillard government’s approaches to public engagement and funding are each understandable in the context of a government trying to push through a rather technical reform that was never going to attract much in the way of public interest. But the constitutional recognition of Aboriginal and Torres Strait Islander peoples requires a different approach.

Unlike local government recognition, Indigenous constitutional recognition is not, at heart, a technical issue. It raises emotional questions around racial discrimination, reconciliation and cultural identity. Broad public engagement, and intensive consultations with Indigenous peoples in particular, are essential to the legitimacy of the process.

Fortunately, the Gillard government oversaw a nationwide consultation process on the issue in 2012 that attracted large numbers of participants and submissions. It also funded a campaign group, Recognise, which has helped to maintain momentum on the issue through initiatives like its Journey to Recognition. This has provided a solid foundation for public involvement that the local government referendum never had.

The challenge for the Abbott government will be to build on this. A joint parliamentary committee has been tasked with further consultation, but it is unclear what form this will take. As time passes, the case for another round of broad-based consultations becomes stronger. And mass engagement remains elusive, pointing to the need to actively raise awareness and understanding.

On campaign funding, the local government example demonstrates that the credibility of the process can be damaged where funds are allocated in a highly disproportionate way. This lesson is particularly important with respect to Indigenous constitutional recognition, given the complexity of the proposed reforms and the strength of feeling about the issues. Another ad hoc funding arrangement that favours the government’s position could impair trust in the process.

Having said that, equal funding may not be the most desirable approach on this issue. Should a broad community consensus develop around a particular suite of reforms, the government may not wish to spend millions of dollars supporting a No case that has little public support. But if the government would like some flexibility in how it spends promotional funds, it should obtain Parliament’s agreement to this well in advance of any future referendum. This will prevent a funding controversy flaring up mid-campaign like it did in 2013.

The push for constitutional recognition of local government has stalled, but Indigenous recognition need not share the same fate. Most of the attention in the coming years will naturally be on the substance of reform proposals. But, with the abandonment of the local government referendum in mind, Australia’s political leaders must also take time to build a fair and credible process that is underscored by popular ownership.

Dr Paul Kildea is a Lecturer in the Faculty of Law at the University of New South Wales, and Referendums Project Director at the Gilbert + Tobin Centre of Public Law

Suggested citation: P. Kildea, ‘Australia’s abandoned local government referendum’  UK Const. L. Blog (29th November 2012) (available at http://ukconstitutionallaw.org).

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Jo Eric Khushal Murkens and Peter Jones: Salmond and Cameron order a dog’s dinner at the EU café

jo-mur1 peterCountries that are used to referendums on constitutional matters use them sparingly. The UK has no such constitutional requirement, but faces the possibility of having to deal with two such referendums within the spate of a few years. The first referendum could see Scotland break away from the United Kingdom, the second could see the United Kingdom (which by then may or may not include Scotland) break away from the European Union.

The common issue to both Alex Salmond and David Cameron is political sovereignty. They both want more of it; Salmond wants to claim it from the UK, Cameron wants to claim it from the EU. In that narrow sense, they are both nationalists; Salmond a Scottish one, Cameron a British one. Both also want, they claim, to be good European citizens but have to contend with the problem that the European club they want to be members of has rules which conflict with their visions of the idealised club they imagine it should be. And the promotion of this idealised vision to their voters leads them both to political positions which are incoherent.

For the SNP which was, until the advent of devolution in 1999, a minority fringe party, the ‘Independence in Europe’ policy was never subjected to serious examination. It was not much more than a political slogan used in political debate to counter the separatist charge levelled by opponents. The most that was done to develop this policy was to locate sympathetic European luminaries who gave the SNP helpful quotes asserting that upon independence, Scotland would move seamlessly into EU membership. It became an article of SNP faith that Scotland would be warmly welcomed into the happy European family, effectively countering ‘separatist’ accusations. So cemented into SNP ideology is this belief that Nicola Sturgeon, deputy first minister, told the Scottish Parliament’s European and external relations committee in December 2007: ‘It is the clear view of the Scottish National Party and the [Scottish] government that Scotland would automatically be a member of the European Union upon independence.’

The automaticity proposition founders on the rather obvious point that while the people and territory of Scotland may already be in the EU, the Scottish government is not. And the Scottish government being in the EU requires its votes in the European Council and other entitlements to be written into EU treaties which can only be done with the unanimous consent of all other member states.  This remains the case. The SNP, however, refuses to acknowledge this point because it raises the vision of Scotland being outside the EU and having to bang on the door begging to be allowed in out of the cold, bringing the separatist bogey back into play.

The battle against the separatist charge has had to be fought on another front – within the UK. Unionists have alleged that independence will mean that families with members on either side of the border will become fragmented, that they and commercial trade will have to negotiate border controls at Berwick and Gretna Green, that Scotland will lose access to popular BBC shows such as East Enders and Strictly Come Dancing and so on. To counter this, the SNP has devised a new strategy – that while the political union of the UK will come to an end, the social and civil union will continue and prosper. Thus families will be just as united and able to jointly celebrate such things as the Queen’s birthdays and anniversaries as she will still be the titular head of state in an independent Scotland.

Harsh economic realities, however, have forced the extension of this soft unionism into harder areas. The stresses and strains that the Euro currency is under have made it as unattractive to Scots as it is to the English. The SNP, because of the more prosaic reality that some 60 per cent of Scottish trade is with the rest of the UK and that it makes no sense to erect a currency barrier to that trade while tearing one down to benefit the 20 per cent of Scottish trade that is with the Eurozone, decided some time ago that an independent Scotland would stick with sterling as its currency until such time as there are economic benefits to joining the euro, which would only occur after a referendum.

The travails of the euro and the proposed deeper integration remedies, however, demonstrate that such a currency union would erode Scotland’s fiscal independence. Proposed tax changes and government budgets would have to come under the tutelage of the, with independence, foreign institutions of the UK Treasury and the Bank of England. Various unionist politicians, such as Treasury chief secretary Danny Alexander and former chancellor Alistair Darling, have argued either that the UK government simply could not countenance such an arrangement, or that the arrangements would be so restrictive as to nullify the claimed gains from political independence.

The SNP’s counter to this has been to assert a rather crude truth, that as sterling is a fully tradeable currency, the UK cannot stop Scotland from unilaterally adopting the pound. This, however, looks unsatisfactory from the point of view of independence. It leaves monetary policy, the determination of interest rates, and the operation of quantitative easing in the Bank of England’s hands. The SNP also claim, rather more vaguely, that the fiscal stability pact necessary to a currency union need not be so restrictive when, in fact, the lesson of EU struggles to stabilise the euro point to tighter rather than looser centralised fiscal controls.

This puts Salmond in the odd position of being, simultaneously, a Scottish nationalist, a European federalist, and a British unionist. He wants Scotland to have untrammelled use of its own credit card to dine at the same time in the British and European restaurants, but refuses the table d’hôte menu and insists on picking from two à la carte menus which neither chefs seem willing to offer.

Cameron is in only a slightly less strange place. He wants to trade heavily on his British nationalism with his domestic audience but waves his European unionism when on the other side of the English Channel. Both audiences are, however, able to see what is being presented to the other and thus he runs the high risk of undermining his message to one by his contrary calls to the other.

In his speech on the EU on 23 January 2013, David Cameron set out his intention to renegotiate the UK’s relationship with the EU and put the terms of that changed membership to the British people in an in/out referendum by the end of 2017, subject to the Conservatives winning an outright majority in the general elections in 2015. His speech received global attention and a mixture of praise (‘agree that the EU needs to be reformed’) and criticism (‘disagree with the language of unilateral negotiations and the threat of withdrawal’). Much of the commentary, indeed much of the speech itself, is based on the dubious premise that the UK is a major player in the European Union.

On one level, the UK undoubtedly sits at the top table: it has the third largest population and the third largest economy in the EU. However, the UK already has differently negotiated relationship with the EU than the other member states. It gets a significant rebate on its financial contributions to the EU budget; it has external borders with other EU member states; it has its own currency; it did not sign the fiscal stability treaty which requires budget prudence and introduces a debt brake for the 17 Eurozone states; and it will not (unlike 11 Eurozone states) impose a financial transaction tax which is designed to discourage speculative trading. Moreover, the UK limited the justiciability of the Charter of Fundamental Rights and the way in which it may be interpreted. And its red-lines approach at the IGC in 2007 means that the UK can itself decide (by 31 May 2014) whether to implement all the European measures on police and justice (which will be subject to the jurisdiction of the CJEU) or whether to opt out of all the measures and then adopt individual measures on an ad hoc basis (subject to the consent of the other member states). (Although how exactly the latter option ‘cuts red tape’ is anyone’s guess).

If this isn’t à la carte, then what is? What more does Cameron want to renegotiate? No one knows, and no one has yet produced a checklist, although the government will be working on one until the autumn of 2014. For the time being, the Working Time Directive, the European Arrest Warrant, and a better deal on fisheries keep coming up in debate. Is it realistic to argue that powers in those areas can be returned to the member states? The practical options are the following. Either the UK tries to tackle the matter from above by reducing the law-making powers of the EU institutions (that option would require a treaty change and the unanimous agreement of the other member state which is, currently, unrealistic). Or the UK tries to negotiate a better ‘deal’ for itself (e.g. through opt outs and protocols that are attached to the Treaty). But is it credible that the other member states would grant the UK special treatment when every member state is subject to aspects of EU law of which it disapproves and would dearly like to roll back the frontiers of European law and policy? So neither option seems workable.

On a more fundamental level it seems baffling that British Euroscepticism would appear to hinge on a handful of powers that need to be ‘repatriated’. It doesn’t, and it is ludicrous to suggest that the Europhobes in the Conservative party will be placated if junior doctors work longer, and UK nationals who are wanted on charges abroad cannot be extradited (whereas, of course, UK nationals who have committed a crime in the UK but fled to another EU member state will immediately be brought back home). On fishing, where the real issue is depleted stocks through overfishing, the Commission is already transferring decision-making powers to the member states in an attempt to decentralise fishing policy and tailor it to local conditions. As Douglas Alexander put it: ‘The gap between the minimum the Tories will demand and the maximum the EU could give is unbridgeable’. These are not the fundamental issues, and any self-respecting Europhobe will not rest until the UK has exited the Union and re-attached itself to the single market like a dingy to a supertanker.

So if Cameron’s speech does not stand up to scrutiny from a European perspective, maybe its intended target was closer to home. Almost all foreign and domestic observers noted that the speech was driven primarily by domestic party politicking (UKIP) and internecine party struggles (Bill Cash). Cameron is trying to unify a fractured party in the run-up to the general elections in 2015, and UKIP and the Tory backbenchers forced his hand. But even domestically Cameron may have dealt himself a bad hand. The offer of a referendum on renegotiated membership after the next general election is subject to two known unknowns: i) the outcome of the 2015 elections; ii) the outcome of the negotiations. It is presently far from clear whether he will be successful with respect to either or both.

Until then Cameron will be seeking, not so much nouvelle cuisine as cuisine impossible, just like Salmond: untrammelled UK access to the European single market restaurant, refusal of the table d’hôte menu and insistence on the à la carte menu which is not on offer. And then he will have the nerve to ask for a rebate (i.e. other member states subsidising his dining) when presented with the bill.

Conclusion

Cameron’s policy on the EU is just as incoherent as the SNP’s policy on continuing EU membership on current terms. Cameron assumes he will win the next election, just as Alex Salmond assumes that Scotland will automatically be an EU member state. Cameron claims that he can walk into the room and negotiate a new deal (‘I am an optimist, not a pessimist’, Cameron responded to a question on this issue by a journalist after his speech). Salmond claims that he can secure Scotland’s place in Europe on current terms, i.e. by inheriting the UK’s opt outs on the Euro currency and the Schengen free travel area, which is illusory.

Moreover, a referendum (if one is to be had) needs to set out two clear choices before the referendum. The in/out referendum on the EU or the Yes/No referendums on Scottish independence do not offer sufficient alternatives. What will come after EU membership? A free trade (all pay and no say) agreement with the EU like Norway? The Commonwealth? The USA? NAFTA? The global market? Splendid isolation?

Likewise, Salmond promises continuity when any EU lawyer, politician, and bureaucrat will tell him that there is no automatic right to membership of the European Union. So, what if membership is not automatic? Will Scotland stay outside the EU? Have its application fast-tracked? Join the queue of applicant states? He also promises currency continuity within a skeletonised British union, when there are an array of economists and Treasury politicians past and present saying it either will not work or will render the gaining of political independence pointless. So what will happen then? Freelance use of the pound? Enforced joining of the euro? Invention of a Scottish currency?

The à la carte menus offered by both are, in reality, dogs’ dinner.

Jo Eric Khushal Murkens, Department of Law, London School of Economics and Political Science

Peter Jones is a freelance journalist, writing on Scottish current affairs for The Economist, the Times and The Scotsman. He is also, with Jo Murkens, a co-author of Scottish Independence: A Practical Guide, EUP 2001.

Suggested citation: J. E. K. Murkens and P. Jones: ‘Salmond and Cameron order a dog’s dinner at the EU café’ Const. L. Blog (31st January 2013) (available at http://ukconstitutionallaw.org)

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News: Scottish Referendum Question Appears to be Resolved.

The debate over the legality of a Scottish referendum appears to be over.  The media are reporting that the Scottish and Westminster governments are on the verge of agreement, using a section 30 order to mandate the Scottish Parliament’s referendum legislation.  The Scottish Parliament will get to set the question, the timing, and be able to determine whether 16 and 17 year olds get to vote.  The Westminster government, in its turn, has ensured that there will be a single question on the ballot paper – no devo-max or devo-plus.  Each side avoided a long and costly battle through the courts, which will please the taxpayer and disappoint lawyers.

 The conclusion of the question over the legality of the referendum does not end the constitutional questions surrounding the vote.  Whether the vote is won or lost, further constitutional issues will be raised by the decision.  If Scotland votes for independence, a complicated and, probably, protracted process of negotiation will be required between Scotland and the remainder of the UK.  It would be helpful if the parameters of this process – both the way it would be undertaken and the issues that it would have to resolve – were canvassed before the vote.  Scotland would also need to produce its own constitution prior to formal independence.   Again, the process by which this new constitution would be created merits reflection.  If, on the other hand, Scotland votes against independence, there would need to be some constraint over the frequency of such referendums in the future.  It would be profoundly destabilising for the Union if independence referendums were held every couple of years.  Once more, there would be an advantage to clarifying this issue before the vote is held.

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Emily Burke: Same-Sex Marriage Legislation in Australia

There is a global trend towards the recognition of same-sex unions, with recent expressions of support from Prime Minister David Cameron, President Obama and the new French President Hollande. In the Australian Federal Parliament there are currently two bills in the House of Representatives and one in the Senate that would legalise same-sex marriage. When the Labor Party government last year amended its official policy platform to advocate for same-sex marriage, its members were ensured a conscience vote on the issue. However the Liberal-National Party coalition in opposition has rejected same-sex marriage reform, and a recent motion to allow a conscience vote for its National party members failed. The minor Greens Party and backbenchers from all sides continue to call for the leader of the opposition to allow coalition members the freedom of a conscience vote.

A committee of the House of Representatives completed its inquiry into the same-sex marriage bills in early June, but declined to support or reject the legislation as a committee. More recently, the Senate Legal and Constitutional Affairs Committee released the report of its separate inquiry. In the latter case, of the six voting members, four were in support of the bill (one Liberal-National, two Labor, and one Greens Senator). However the remaining two voting Senators, one Labor and another Liberal-National, each issued a strong dissent. There were 10 additional participating Senators on the committee, eight of which opposed the legislation.

The public debate over these issues has been intense, with the Senate Committee alone receiving an unprecedented 79,200 submissions – 46,000 of which were in support of same-sex marriage. The House of Representatives Committee received over 250,000 responses to their online poll, with a strong majority of 64% in favour of marriage equality.

Alongside the political debate as to whether same-sex marriage should be enacted, lies a legal one concerning whether such legislation is capable of being enacted by the Commonwealth Parliament. The bills would change the statutory definition of marriage, which is currently the ‘union of a man and a woman’, to be the ‘union of two people … voluntarily entered into for life.’

The dissenting Senators relied on the submissions of several lawyers to conclude that the constitutional foundation for such legislation is weak, and a referendum is ‘worthy of serious consideration’ to allow the public to decide whether or not same-sex marriage should be legalized.

This comment aims to examine the constitutional foundation upon which the Australian Parliament could legislate for same-sex marriage, and assess its strength. Is there a case for proceeding with a referendum before legislating on such an important question?

(1)  The Constitutional Validity of Same-Sex Marriage Legislation

Under section 51(xxi) of the Australian Constitutionthe Commonwealth Parliament has power to makes laws with respect to ‘marriage’ – a term that is not further defined in that document. The Commonwealth Parliament cannot determine the ambit of its own power by defining the constitutional meaning of the word ‘marriage’ through legislation. It is exclusively the role of the High Court to determine the constitutional limits of Parliament’s powers. However there have only been sparse indications from the High Courton whether the ‘marriage power’ can support legislation for same-sex marriage.

In the cases of Singh(2004)and Re Wakim(1999), Justice McHugh commented that at 1900, the time of the Constitution’s foundation, ‘marriage’ was seen as meaning a voluntary union for life between one man and one woman to the exclusion of all others. However, his Honour noted that ‘by reason of changing circumstances’, ‘marriage’ now means, or in the future may mean, a voluntary and permanent union between two people’.

This demonstrates the two different views that the High Court could take on the scope of Parliament’s power to legislate with respect to ‘marriage’. On one view, the permissible meanings of the constitutional provision are limited by the framers’ intentions – confining ‘marriage’ to only different-sex unions.

Alternatively, as Justice McHugh’s comments indicate, the High Court could conclude that the essential concept of marriage is a commitment of two people to a voluntary and permanent union – and in contemporary society, includes both heterosexual and homosexual conceptions of marriage. In this sense, the constitutional meaning of marriage may be said to have ‘evolved’ beyond the 1900 conception of marriage as exclusively heterosexual.

The ‘evolution’ of constitutional meanings using a distinction between its ‘essential’ and non-essential features is not uncommon. For example, section 80 of the Constitutionguarantees the right to trial by jury for Commonwealth offences on indictment. In Cheatle(1993)the High Court recognized that criminal juries in 1900 were constituted exclusively by males who satisfied some minimum property qualification. However, it was held that the ‘relevant essential feature or requirement of the institution was, and is, that the jury be a body of persons representative of the wider community’. As such, they held it would be ‘absurd’ to suggest that women and unpropertied persons would be excluded from juries, ‘in the more enlightened climate of 1993’. By analogy then, if the ‘essential concept’ of ‘marriage’ is the voluntary and permanent union between two people, it is not necessary or essential that they be of opposite sex.

Another important example is the evolving power of Parliament to legislate with respect to ‘intellectual property’ under section 51(xvii) of the Constitution. The High Court has held that the ‘essence’ of the intellectual property power is that it ‘authorizes the making of laws which create, confer and provide for the enforcement of intellectual property rights’. Thus Parliament is able to create ‘fresh rights’, and the boundaries of the intellectual property power are not to be ‘ascertained solely by identifying what in 1900 would have been treated as a copyright, patent, design or trademark’. (The High Court in Grain Pool(2000) cited with approval the analogy that the meaning of trademarks in 1900 provided a ‘centre’, around which to seek the full ‘circumference of the power’.)

Comparing the intellectual property power and marriage power highlights how the High Court must have regard to the development of the common law and legislation when determining the constitutional meanings of legal terms of art. Several submissions to the Senate Committee described the same-sex marriage bill as equivalent to Parliament expanding its power to legislate with respect to lighthouses (s 51(vii) of the Constitution) by statutorily defining ‘lighthouses’ to include schools. But this comparison overlooks the ‘vital distinction’ identified by Higgins J in the Trade Markscase between subject matters that are ‘concrete, physical objects [where] the boundaries of the class are fixed by external nature’, and those that are ‘artificial products of society, and dependent upon the will of society’. By way of example, his Honour explained that while ‘[t]he class ‘cattle’ cannot well be extended by man; the class ‘trade marks’ can be extended. Power to make laws as to any class of rights involves a power… to extend the class of those who may enjoy those rights.’ Thus it is a mistake to overlook the fact that marriage, not being a concrete object fixed by ‘external nature’, is an artificial legal construct inherently capable of expansion.

An additional consideration supporting the likelihood that the High Court would uphold a law providing for same-sex marriage is that Commonwealth legislation has a presumption of validity. As Dan Meagher and Margaret Brock have argued, this presumption should be at its strongest when the legislation considered raises ‘complex and intractable moral issues of this kind’.[i]

One concern raised by opponents of the bills is the possible conflict between the legalization of same-sex marriage and freedom of religion. Section 116 of the Constitution provides that the Federal Parliament cannot make any law ‘prohibiting the free exercise of any religion’. Currently section 47 of the Marriage Act 1961 (Cth) provides that there is no obligation imposed on an authorized celebrant, being a minister of religion, to solemnize any marriage. If bills legalizing same-sex marriage were passed, this exemption would be broad enough to ensure that no ministers would be obliged to solemnize same-sex marriage. Even so, to address the anxieties of religious groups, the Senate committee has recommended the insertion of ‘for avoidance of doubt’ provisions that expressly provide that such legislation does not limit the freedom for religious ministers to decline to solemnize same-sex marriages.

On balance therefore, it appears more likely than not that the High Court would find that same-sex marriage legislation was constitutional. However, the resolution of these issues may depend on when the issue goes to the High Court. There will be four new appointments over the coming years, including two within the next six months; and it is impossible to know for certain what methods of constitutional interpretation these justices will take.

(2)  A Referendum On Same-Sex Marriage?

Given the uncertainty over whether a bill legalizing same-sex marriage would be struck down by the High Court, should a referendum be called instead? The dissenting Senators in the Senate Committee stated that they

 believe it is profoundly unsatisfactory to erect such major law reform on so weak a constitutional foundation. In particular, the possibility that people might undertake marriage pursuant to such a law, only to have their ‘marriages’ struck down by the High Court, is a highly unsatisfactory way for the Parliament to proceed. The committee majority shows contumelious disregard for the interests of homosexual Australians by advancing such a risky and ill-advised course of action.

[The] Coalition senators are of the view that, given that a number of the submissions to the committee acknowledged that same-sex marriage raises significant social, religious and cultural issues and that section 128 of the Constitution provides a mechanism to enable the people to expand the specified powers set out in the Constitution, a referendum to enable the people to pronounce on the issue of same-sex marriage is worthy of serious consideration.

This position assumes that the legislation is indeed on very weak constitutional grounds, but also appears to misunderstand the relationship between the High Court, Parliament and the people. As the majority Senate report noted, the Parliament is elected to pass legislation, and acts within its constitutional right when it passes legislation ‘which it believes to be valid, and ultimately in our system it [is] left to the High Court to determine otherwise’ (quoting from the evidence of Professor John Williams). Australia has a long history of Parliament passing legislation where there is some doubt as to its constitutional validity. Parliament does not seek separate constitutional endorsement via referendum on each occasion such an enactment is passed.

The ‘risk’ that many people may enter same-sex marriages that will then be declared void can be addressed in other ways. As a test case is likely to be brought immediately after a same-sex marriage bill passes, Parliament could suspend the same-sex marriage provisions until the High Court decides the validity of that marriage, preventing any further persons from entering into same-sex marriages that might be subsequently voided should the Court confirm a want of power.

This appears to be the better course of action than a referendum considering: the likelihood that the legislation is indeed valid; the huge cost and time involved in holding referendums; and the actual interests and desires of Australians in the LGBTI community who wish to see the legislation passed in preference to a referendum being held. Other commentators and the majority report of the Senate Committee also noted that Australian proposals to amend the constitution are far more likely to fail than to succeed – for a variety of reasons that extend well beyond the merit of the proposals in question. To date, 44 referendums have been held, of which only 8 have been carried to effect change to the Australian Constitution.

Conclusion

Although there remain constitutional uncertainties over the scope of the marriage power, there are strong arguments in favour of the constitutionality of the same-sex marriage bills currently before the Australian Parliament. As marriage is governed by our civil and not religious laws, it is for Parliament to determine who can and cannot marry. Australian law can better balance freedom of religion with the separation of church and state, by providing that every person is entitled to marry the person of their choice, whilst ensuring that religious officials are not required to solemnise any particular marriage.

Emily Burke is an intern at the Gilbert + Tobin Centre of Public Law at the University of New South Wales


[i] Margaret Brock and Dan Meagher, ‘The Legal Recognition of Same-Sex Unions in Australia: A Constitutional Analysis’ (2011) 22 Public Law Review 266, 278.

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Filed under Australia, Human rights

Law Commission: Consultation on Elections and Referendums

Bringing electoral law up to date

In a consultation opening today, the Law Commission is asking which of the rules governing elections and referendums should be reviewed as part of its electoral law reform project. Electoral law in the UK is spread across 25 major statutes. It has become increasingly complex and fragmented and, according to the Commission, needs to be simplified, modernised and rationalised in order to benefit the electorate, administrators, and candidates.

The last century has seen a steady increase in the numbers and types of election. Today, we may be asked to vote – at the same time – for a range of representatives. We could be casting votes for our local mayor, police and crime commissioner and councillors at the same time we are selecting our MP, MSP or Northern Ireland, Welsh or London AMs and our MEPs. Each of these election types comes with its own set of rules and systems, and combining them into one election event introduces yet more layers of electoral laws.

Public confidence in electoral administration needs to be reinforced. The Law Commission’s consultation is asking all those involved in setting up, managing, participating and voting in elections to tell them which areas of the legislative framework are not working and should be reviewed.

Frances Patterson QC, Law Commissioner, says:

“Elections are the principal mechanism by which citizens exercise their democratic rights. The price we pay as a democracy when the electoral process loses credibility is high and potentially catastrophic. An electorate that has no confidence in the process by which its democratic representatives are chosen may ultimately give no credence to the choices that are made. 

“It is clear that electoral law is in need of reform. Inconsistencies and ambiguities risk undermining the credibility of our electoral process; the sheer volume, fragmentation, and complexity of rules compound that risk. We are asking the questions, where in this vast and complex legislative framework do the problems lie? And should that framework be simplified and rationalised?”

The Commission expects that, with agreement from Government, responses to its consultation will lead to a detailed examination of specific aspects of electoral law and proposals for reform that will also be opened for consultation following the 2014 elections. The Commission hopes that the proposals and consultation will be UK wide, being conducted in partnership with the Scottish and Northern Ireland Law Commissions and in collaboration with the Welsh Assembly Government.

The Commission’s consultation paper, “Electoral Law in the United Kingdom”, and information on how to respond are available on http://www.lawcom.gov.uk

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Filed under Constitutional reform