The Scottish Question — All the Developments, January-March 2012

The dominant constitutional story of the first quarter of 2012 has been the ongoing and unresolved argument over Scotland’s constitutional future.

In this post I summarise all the key developments.

1. Political background

Our story starts back in May 2011 when the Scottish National Party (SNP), led by Alex Salmond, won an unprecedented overall majority of seats in the Scottish parliamentary election. The electoral system devised for the Scottish Parliament was supposed to prevent majorities. In the previous elections (of 1999, 2003 and 2007) this worked: from 1999-2007 the Scottish Government was a coalition of Labour and Liberal Democrat, and from 2007-11 the Scottish Government was an SNP minority administration.

The SNP is in favour of independence for Scotland. It wishes to see an end to the Union of 1707 and for Scotland to leave the United Kingdom, becoming an independent state. The Labour, Liberal Democrat and Conservative parties are all opposed to this policy: in this (loose) sense, they are all Unionist parties (although this label applies comfortably only to the Conservative party: the Liberal Demcrats are really federalists, and the Labour party, while being strongly in favour of maintaining the Union, has come to think of itself as a Unionist party only recently). Nonetheless, I shall refer to all three parties as Unionist: such has now become common practice in Scottish political commentary.

The SNP’s policy of independence was never likely to be realised in the 2007-11 Parliament because there was a Unionist majority in the Scottish Parliament: the SNP administration was a minority government. This was the key change brought about by the results of the May 2011 election: there is now an SNP majority in the Scottish Parliament.

The SNP’s election manifesto for 2011 promised that there would be a referendum on Scottish independence during the lifetime of the present Parliament (which will have a five year term, running until 2016).

2. Legislative competence

Many constitutional and legal questions arise as a result of this. The first is whether the Scottish Parliament has the legislative competence under the Scotland Act 1998 to pass an Act that would authorise such a referendum. On this question, legal opinion is split. The UK Government insists that the Scottish Parliament does not have such legislative competence. The Scottish Government disagrees. The House of Lords Constiution Committee agrees with the UK Government. So do I. So does Lord Pannick QC (the Times, 19 January 2012), Iain Jamieson (the Scotsman, 20 January 2012), Aidan O’Neill QC and Prof Alan Page of Dundee Law School. But some of my colleagues in Scottish law schools prefer a different view. The House of Lords Constution Committee considered this view and explained why it should be rejected.

In this post I will not rehearse these arguments in detail. The previous paragraph is full of links that will take you directly to the relevant documents, where the arguments can be studied at length. All I will do here, on this issue, is to offer an outline.

The argument that the Scottish Parliament does not have the legislative competence to pass an Act triggering a referendum on independence is founded on the Scotland Act 1998. Section 29 of that Act provides that Acts of the Scottish Parliament (ASPs) are “not law” if they relate to reserved matters (or if they are otherwise outside competence). The Union of the Kingdoms of Scotland and England is expressly listed in Schedule 5 to the Act as a reserved matter. Any referendum on independence would relate to the reserved matter of the Union: any ASP that sought to trigger such a referendum would therefore relate to a reserved matter and would, for that reason, be outside competence and “not law”.

The counter-argument relies on two main points to seek to undermine this conclusion. First that under section 29(3) the question of whether a provision “relates to” a reserved matter is to be determined “by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances” (emphasis added). The purpose of an ASP that triggered a referendum on Scottish independence might be simply to test the opinion of the people of Scotland as to whether or not they would prefer independence, and its legal effect might be zero: a positive result in a referendum that was in reality no more than an opinion poll could not, of itself, change the law. The second counter-argument is that the bare words of section 29 and Schedule 5 should be interpreted “generously and purposively”, given that the Scotland Act is a “constitutional statute”, and given the instruction in section 101(2) of that Act that provisions of an ASP are “to be read as narrowly as is required” in order that they fall within competence. This aspect of the counter-argument relies on dicta of the House of Lords in Robinson v Secretary of State for Northern Ireland [2002] UKHL 32, considered in the book at pp 88-91.

Each element of the counter-argument is questionable. As to the first, is it not effectively met by the simple words of the SNP’s own manifesto from 2011, in which it was written (at p 28) that a yes vote in the referendum “will mean that Scotland becomes an independent nation”? Thus, the purpose of the referendum is not to test opinion, but to make a decision as to whether – or not – Scotland should leave the UK and become an independent state; and the effect of any yes vote in the referendum will be to deliver independence, a decision that has ample legal effects. As to the second element of the counter-argument, this cannot survive the judgment (handed down on 2 February 2012) of the First Division of the Inner House of the Court of Session in Imperial Tobacco v Lord Advocate [2012] CSIH 9. The First Division was unanimous that Robinson should be distinguished and that a “generous” or “purposive” approach to the interpretation of section 29 and Schedule 5 would not make it more likely that matters would be read as falling within competence. The reasoning of the court is summarised at paras 15 and 24-29 of the report of the House of Lords Constitution Committee.

3. The section 30 solution

The UK Government has no desire to use the law to prevent the Scottish Government from having its referendum. On the contrary, it wants to do precisely the opposite. That is, it wishes to use the law to enable the Scottish Government to stage the referendum that it clearly has a political mandate now to hold. Under section 30 of the Scotland Act 1998, the Crown may by Order in Council make amendments to the list of reserved powers contained in Schedule 5 to the Act. No such section 30 order can come into force until it has been approved by both Houses of the UK Parliament and by the Scottish Parliament.

On 10 January 2012 the UK Government published a consultation paper entitled Scotland’s Constitutional Future (Cm 8203). It contained a draft section 30 order that would confer on the Scottish Parliament the legislative competence to pass an ASP triggering a referendum.

The Scottish Government gave a mixed reaction to the draft section 30 order. They reacted angrily to that fact that, as they saw it, the UK Government was trying to dictate the terms on which the referendum could be held. In particular, argument broke out between the two Governments over the following matters: the date of the referendum (the UK would prefer 2013; the Scottish Government would prefer the autumn of 2014); the franchise (the Scottish Government wants 16- and 17-year olds to be eligible to vote in the referendum; the UK Government wants an existing franchise to be used, such as the franchise for Scottish parliamentary elections); the extent to which (if at all) the Electoral Commission should oversee the referendum (the Electoral Commission oversaw both the referendums held in 2011, but it is a UK body, not a bespoke Scottish body); and the question(s) to be asked on the referendum: should the referendum be confined to a question about independence, or should a second question also be asked about whether Scottish devolution should be enhanced (or maximised), substantially increasing the powers of the Scottish Parliament whilst keeping Scotland within the Union (see further on this issue below).

The Scottish Government set out its views in a consultation paper of its own, published on 25 January 2012 and entitled Your Scotland, Your Referendum. The Scottish Government’s consultation will not close until May. The UK Government’s consultation closed in March and its results are due to be published in April.

4. Where are we now?

At the same time as all of this has been happening, the Scotland Bill has been making its gradual way through the House of Lords. This is an important but generally overlooked Bill, which will implement many of the recommendations of the Calman Commission (see pp 229-31 of the book). Included within the provisions of the Bill are significant clauses that will enable the fiscal powers of the Scottish Parliament to be extended without the need to resort to further primary legislation at Westminster. This is important not least because enhancing the fiscal powers of the Scottish Parliament is one element of “devo-plus”, which is preferred by some commentators as a superior alternative to independence. Whether “devo-plus” should go beyond the powers contained in the Scotland Bill and, if so, how far beyond the Scotland Bill “devo-plus” should go are open questions around which there is precious little consensus at the moment either in Scotland or in Government.

Between “devo-plus” and independence there lies yet another alternative for Scotland: so-called “devo-max”, also referred to in some quarters as “full fiscal autonomy”. As I write this, “devo-max” is the preferred policy of no political party, albeit that there are some in the SNP who consider that it may be another useful stepping stone on the route to independence. Indeed, it is sometimes referred to as “independence-lite”.

5. And where next?

To date there has been no agreement between the two Governments on any draft section 30 order. Most of the disagreements can be relatively easily dealt with. It may well be, for example, that the UK Government will drop its objections to the timing of the referendum and to the extension of the franchise to 16- and 17-year olds. Likewise, it may well be that the Scottish Government will drop its objections to the Electoral Commission having the power to oversee the referendum. The real sticking point may be over the question: not the precise wording of the question, but this issue of whether there should be just the one question on independence or also a second question on some variant of devo-plus or devo-max.

The House of Lords Constitution Committee considered this question and concluded that this would be inappropriate (see paras 33-45 of its report). I wrote a personal submission to the UK Government’s consultation exercise (which you can read here: AT response to HMG on Scotland), in which I argued at some length that the referendum must be concerned only with independence. Arguments about the future development of devolution need to be dealt with, but they need to be dealt with separately and in a different way from arguments about independence.

Clearly, we have not heard the last of these arguments yet. This is set to be the big constitutional question of 2012.

 

National Security Case Law: A Continuing Trend

On 17 January 2012 the European Court of Human Rights (ECtHR) handed down its judgment in Othman (Abu Qatada) v UK. In a unanimous ruling the Court held that the UK could not lawfully deport Abu Qatada to his native Jordan, overturning the House of Lords (who had unanimously come to the opposite conclusion in RB (Algeria) v Secretary of State for the Home Department [2009] UKHL 10, [2010] 2 AC 110, noted briefly at p 788 of the book). The House of Lords had themselves overruled the Court of Appeal; and the Court of Appeal had overruled the Special Immigration Appeals Commission (SIAC). Thus, the Court of Appeal and the ECtHR ruled in Abu Qatada’s favour; whereas SIAC and the House of Lords ruled against him. As all of this suggests, the matter of law at the heart of the case is not an easy one.

The issue is this: under what circumstances may a state that is bound by the European Convention on Human Rights (ECHR) be required not to deport an individual to a country that is not bound by the ECHR where the individual concerned will face a trial that would fall short of the standards set by Article 6 (the right to a fair trial)? The ECtHR has ruled before that, as a possibility, there may be such circumstances but until its decision this week it had never found them to exist in fact. (Indeed, the ECtHR first identified the principle at issue here in Soering v UK in 1989, but in the 22 years following that judgment the Court had not once found that an expulsion would be in violation of Article 6.)

Abu Qatada has been convicted twice in Jordan, both times in his absence, for various serious terrorist offences. He alleges that part of the evidence against him had been obtained under torture. The UK sought nonetheless to deport Abu Qatada to Jordan, having first agreed a Memorandum of Understanding with the Jordanian authorities that Abu Qatada himself would not be subjected to treatment contrary to Article 3 ECHR (thus complying with the well-known principle in Chahal v UK: see p 780 of the book, and see further Tooze [2010] PL 362).

In RB (Algeria) the House of Lords recognised that ECtHR authorities suggested that a deportation would not be lawful where the deportee would face in the receiving country a trial that amounted to a “flagrant denial of justice”, or a “flagrant breach of Article 6″ or, as the Court of Appeal had put it, a “complete denial or nullification of the Convention right”. Their Lordships also recognised that the Jordanian proceedings to which Abu Qatada would be subject would be unlikely to meet the standards of Article 6. They ruled, however, that the departures from those Article 6 standards would not be so serious as to satisfy the tests of flagrant denial. The Court of Appeal had ruled that, for Abu Qatada’s deportation to be lawful, a “high degree of assurance” would be required that evidence obtained by torture would not be used in the proceedings. For the House of Lords, this was setting the bar too high. Lord Phillips ruled, for example, that the principle that the state must stand firm against permitting the use of evidence obtained under torture “applies to the state in which an attempt is made to adduce such evidence” but “it does not require this state, the United Kingdom, to retain in this country to the detriment of national security a terrorist suspect …” (para 153; see to similar effect Lord Hoffmann at paras 197-201).

In its judgment in Abu Qatada the ECtHR first clarified the test (“flagrant denial of justice”) and then, for the first time, applied it in favour of an applicant. As to the former the Court said this (paras 260-1):

A flagrant denial of justice goes beyond mere irregularities or lack of safeguards in the trial procedures such as might result in a breach of Article 6 if occurring within the Contracting State itself. What is required is a breach of the principles of fair trial guaranteed by Article 6 which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that Article.

In assessing whether this test has been met, the Court considers that the same standard and burden of proof should apply as in Article 3 expulsion cases [such as Chahal]. Therefore, it is for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if he is removed from a Contracting State, he would be exposed to a real risk of being subject to a flagrant denial of justice. Where such evidence is adduced, it is for the Government to dispel any doubts about it.

Applying this test to the facts of the case, the Court ruled as follows (paras 263-7):

The central issue in the present case is the real risk that evidence obtained by torture of third persons will be admitted at the applicant’s retrial … Gäfgen v Germany (2010) reflects the clear, constant and unequivocal position of this Court in respect of torture evidence. It confirms [that] … in the Convention system, the prohibition against the use of evidence obtained by torture is fundamental …

The Court considers that the admission of torture evidence is manifestly contrary … to … Article 6 … It would make the whole trial not only immoral and illegal, but also entirely unreliable in its outcome. It would, therefore, be a flagrant denial of justice if such evidence were admitted in a criminal trial.

That there was a real risk that if he was deported to Jordan Abu Qatada would face a trial at which evidence obtained by torture would be used therefore meant that it would be contrary to Article 6 ECHR for the UK to deport him.

The UK now has three months to decide whether to refer this judgment to the Grand Chamber.

Two comments fall to be made about this decision.

The first is: where does this case leave their Lordships’ controversial ruling in A (No 2) (see p 747 of the book)? Recall that in this case the House of Lords had strongly condemned the use of torture evidence but that by a 4:3 majority the Law Lords decided that such evidence should be excluded only if it was established, on a balance of probabilities, that it was obtained by torture. Recall further that the three Law Lords in the minority on this point were scathing about it (see p 747). (A (No 2) is a judgment based on the common law; not on Convention rights.) In Othman (Abu Qatada) v UK the ECtHR commented on this question, saying the following (para 274):

The Court does not consider that the balance of probabilities test, as applied by the majority of the House of Lords in A (No 2), is appropriate in this context. That case concerned proceedings before SIAC to determine whether the Secretary of State’s suspicions that an individual was involved in terrorism were correct. Those proceedings were very different from criminal proceedings where, as in the present case, a defendant might face a very long sentence of imprisonment if convicted. In any event, the majority of the House of Lords in A (No 2) found that the balance of probabilities test was for SIAC itself to apply: an appellant before SIAC had only to raise a plausible reason that evidence might have been obtained by torture. Therefore, the Court does not regard A (No 2) as authority for the general proposition that, subject to a balance of probabilities test, evidence alleged to have been obtained by torture would be admissible in legal proceedings in the United Kingdom, least of all in criminal proceedings.

With respect, not all of this reasoning is persuasive. In at least one sense, the SIAC proceedings in A and in A (No 2) were not so different from criminal proceedings where a defendant may face a long term of imprisonment: after all those SIAC proceedings were concerned with a scheme of indefinite detention without trial (under the Anti-terrorism, Crime and Security Act 2001, s 23). Abu Qatada himself, of course, was one of the claimants in A (No 2): he was one of the men subjected to the internment regime that was impugned by the House of Lords in its famous Belmarsh judgment. Further, it is not clear that the ECtHR has correctly understood the application of the balance of probabilities test in A (No 2). In RB (Algeria) Lord Hoffmann noted (at para 202) that the effect of the Court of Appeal’s decision in Abu Qatada’s case was that the Jordanian court would be perpetrating a flagrant denial of justice if it did not exclude evidence which would be admissible before SIAC! Thus, it may well be that, on analysis, the decision of the ECtHR in Abu Qatada does a great deal more damage to the House of Lords’ approach to the admissibility of torture evidence in A (No 2) than the Strasbourg court was prepared to admit. If I am right about that, hurrah for Strasbourg.

The second comment to make about Othman (Abu Qatada) v UK is hinted at in my title: this is but the latest decision of the Strasbourg court in a national security case from the UK in which the ECtHR has overturned the House of Lords: MB was effectively overturned in A v UK (as their Lordships recognised in AF (No 3)); Gillan was next; then Al Skeini and Al Jedda; and now Abu Qatada. This is quite a list. It makes for sobering reading for anyone who thinks that human rights are safe in the UK, even in our highest courts. Strasbourg may still get it badly wrong from time to time, but my word do we still need it. Strasbourg was right, and the House of Lords wrong, in all five of these national security cases.

The Process of Constitutional Change

We consider the story of British constitutional reform at the end of chapter 1 (pp 24-47). To this story must now be added a further set of references. Of growing concern during the period of reform has been the issue of the fairness of the process. Too many times it looked (at least to some) that the Government of the day was “playing politics with the constitution”, changing it to suit its needs rather than because what it was seeking to do was genuinely in the national interest. This concern came to the fore in 2003-05 with the sorry saga of the aborted abolition of the post of Lord Chancellor; it surfaced again in 2009-10 as the Brown Government first delayed and then, at the last minute, radically amended its Constitutional Reform and Governance Bill (see p 30); and the arguments were rehearsed yet again when the Coalition rushed out its first round of constitutional reforms, with the Fixed-term Parliaments Bill (now Act) and the Parliamentary Voting System and Constituencies Bill (ditto) seeming to have more to do with coalition compromises than with principled, consultative constitutional reform.

In the light of its strong criticisms of each of these Bills/Acts, the House of Lords Constitution Committee launched an inquiry into what it called The Process of Constitutional Change. Its report (15th report of 2010-12, HL 177) was published in July 2011; the Government response (Cm 8181) was published in September; and both were debated in the House of Lords on 7 December 2011.

The report reiterated various of the criticisms of recent practice (paras 23-49) and made a series of recommendations designed to ensure that in the future best practice would be adhered to. The Committee proposed that ministers should, upon the introduction of a new Bill, explain formally what its constitutional implications were and, if there were any, what processes had been undertaken in developing the Bill (had there been prior public consultation, or pre-legislative scrutiny, or even a referendum, etc) (paras 65-105). This, it was felt, would focus the ministerial mind on questions of due process (as well as on substance) and would help to facilitate more effective parliamentary scrutiny of the process of constitutional change.

These proposals — which were hardly revolutionary — were unceremoniously shot down by the Government, who refused to countenance the idea that any distinction should be drawn between constitutional law-making and law-making in any other field. There was no case, in the Government’s view, for thinking any more carefully about legislation affecting the constitution than legislation affecting any other area of public policy.

While some Peers indicated a degree of sympathy with the Government, a large majority of those who spoke in the debate on 7 December supported the Constitution Committee both in terms of its diagnosis of the problem and as regards its proposed solutions. Despite the Government’s rather uncompromising stance, it may yet be that the Committee has set out a blueprint for at least what should be done. Further measures of constitutional reform are likely to be forthcoming in the 2012-13 session of Parliament. We shall see how closely (if at all) they adhere to the processes recommended by the Committee.

 

 

Update on Legislation

The last ten weeks of 2011 were a relatively quiet time in terms of major constitutional developments. The beginning of 2012, by contrast, has started with a real bang, and is witnessing a dispute between the UK and the Scottish Governments that could well set much of the constitutional agenda for the next three years. I will say more about this in another post in the next few days.

First, there are two matters from the end of 2011 that I want to update. This post concerns legislation. The next post will concern an under-reported development with regard to the process of constitutional reform.

Three Bills referred to in the book have now been passed (this is in addition to those Bills noted below last October). The newly enacted measures are the Localism Act 2011, the Public Bodies Act 2011 and the Terrorism Prevention and Investigation Measures Act 2011. A word now on each.

Section 1 of the Localism Act has now enacted the form of words (quoted from clause 1 of the Bill) that we cited at p 273 of the book. The question posed at p 273 and the comment made at p 276 still apply: i.e., whether the new s 1 will mean the end of the ultra vires principle or whether it will mean only a qualification to that principle; and to note while the Act liberalises local authorities to some extent, at the same time it confers a range of fresh powers on the Secretary of State. The former will be determined in due course by case law. One further provision of the Localism Act 2011 to note is section 25, which concerns the law of bias (or predetermination) in the context of local authorities. Case law on this matter is set out in chapter 10 (p 696). Section 25 would appear to make it harder than is suggested in the case law to argue that a decision of a local authority should be quashed for reasons of predetermination.

The Public Bodies Act 2011, as prefigured at p 436, effects very considerable reforms to arms-length bodies (or quangos). As predicted in chapter 2 (pp 129-30) the legislation was substantially amended during its passage through Parliament in the light of the extensive criticisms of the Bill that were voiced by the select committees that examined it. For example, a number of the procedural safeguards now legislated for in section 10 of the Act were not contained in the Bill as it was first introduced.

Finally, the Terrorism Prevention and Investigation Measures Act 2011 (the TPIMs Act) will, when it is brought fully into force, repeal the Prevention of Terrorism Act 2005; and thus TPIMs will replace control orders in the panoply of the UK’s counter-terrorism measures. The ministerial statement that announced this is reproduced at p 787 of the book.

Cabinet Manual now Published

The Cabinet Manual has now been published. For the full text, see here.

We commented on an aspect of the Draft Cabinet Manual at pp 187-9 of the book, in our consideration of constitutional conventions. (The Draft of the full Cabinet Manual was published in December 2010 and was put out to public consultation.)

The Cabinet Manual is an extremely important and very useful document. The published version is a very significant improvement on the earlier Draft. The document is now fully referenced and is much clearer as to its aims and effect. It does not seek to establish or to change any constitutional rules or practices: it seeks rather to describe a range of pre-existing constitutional rules and practices as seen from inside the Executive. It is, as it were, the Government’s official interpretation of the constitution.

Among the most important passages of the Cabinet Manual are the paragraphs that set out the principles of Government formation in the event of a hung Parliament (paras 2.7-2.17). The relevant passage from the December 2010 Draft Cabinet Manual is extracted at pp 188-89. The newly published Cabinet Manual improves on that passage in two ways, as follows:

1. The Draft had included as a footnote Nick Clegg’s suggestion that “whichever party has won the most votes and the most seats … has the first right to seek to govern”. This was a statement of his party’s policy (in 2010) and was not reflective of constitutional practice. It has been removed from the Cabinet Manual as published. This is to be welcomed.
2. The Draft had stated that the “incumbent Prime Minister is not expected to resign until it is clear that there is someone else who should be asked to form a government …”. Few commentators considered that this was constitutionally accurate, and the rule as stated in the Cabinet Manual is now as follows: “it remains a matter for the Prime Minister … to judge the appropriate time at which to resign …” (para 2.10). Again, this is to be welcomed.

The House of Lords Constitution Committee was one of three parliamentary committees to publish a report on the Draft Cabinet Manual: see here. (Additional reports were published by the Political and Constitutional Reform Committee and by the Public Administration Committee.) While the Constitution Committee’s report was seen as being rather critical, it is to be noted that almost all of its conclusions and recommendations have been acted upon in the Cabinet Manual as now published. In its new, improved version, the Cabinet Manual will be an invaluable source for all students of the British Constitution.

 

Liam Fox and the Ministerial Code

The report of the Cabinet Secretary into the allegations concerning the Rt Hon Dr Liam Fox MP, who last week resigned as Secretary of State for Defence, has now been published on the Cabinet Office website. See further here.

The report is an example of the constitutional rules pertaining to ministerial behaviour being enforced. The rules, as we describe in chapter 3 of the book, are conventional in character (rather than legal). But as the case of Dr Fox illustrates, this does not mean that they cannot be effectively and speedily enforced.

The Cabinet Secretary’s report is worth reading as an example of what we say in Ch 3 about the enforcement of constitutional conventions; it is likewise worth reading alongside what we say about the conduct of Ministers in Ch 6 (pp 396 ff); and alongside what we say about ministerial responsibility and resignations in Ch 9 (pp 573 ff).

 

 

AXA in the Supreme Court: Is the Sovereignty of Parliament Doomed?

The UK Supreme Court has handed down its decision in AXA General Insurance v Lord Advocate [2011] UKSC 46. The case raises critically important questions for the whole of the UK, and also some significant points of concern in Scotland. But please do not read this as a Scottish case only, or as a case which only the Scots need to worry about.

Earlier judgments in the case are summarised at pp 236-7 of the book. What the Supreme Court has ruled now supersedes what the Court of Session had ruled, and the extract on p 237 from the judgment of the Lord Ordinary now needs to be read subject to what the Supreme Court have said.

Introduction

The Damages (Asbestos-related Conditions) (Scotland) Act 2009, an Act of the Scottish Parliament, provided that pleural plaques and certain other asbestos-related conditions were actionable in Scotland for the purposes of damages in the law of personal injury. In 2007 the House of Lords had ruled in a series of English appeals that pleural plaques did not constitute recoverable damage for the purposes of the law of negligence (see Rothwell [2007] UKHL 39). AXA and other insurance companies challenged the Act of 2009 both on common law and on Convention rights grounds.

The challenge was unsuccessful in both the Outer House and the Inner House of the Court of Session (see [2010] CSOH 2, 2010 SLT 179 and [2011] CSIH 31, 2011 SLT 439, respectively). AXA’s appeal to the Supreme Court was likewise unsuccessful, a seven-strong panel of Justices ruling unanimously that the appeal should be dismissed. Substantive judgments were given by both the Scots on the panel: Lord Hope and Lord Reed. Lords Brown and Mance gave short concurring judgments, and Lords Kerr, Clarke and Dyson agreed with both Lords Hope and Reed. (Lord Reed is a Senator of the College of Justice — i.e., a judge of the Court of Session; he is one of two such judges to have sat in the Supreme Court since Lord Rodger (who died in June) was taken ill. Lord Rodger’s chair at the Court is formally vacant, but it has been advertised and it will no doubt be filled soon.)

Three issues of law arose on the appeal to the Supreme Court: (i) was the Act of 2009 violative of AXA’s Convention right to property under Article 1 of Protocol 1 to the ECHR (“A1P1″)? (ii) could an Act of the Scottish Parliament (“ASP”) be judicially reviewed under common law grounds of review and, if so, was the Act of 2009 irrational? (iii) did a number of individuals diagnosed with having pleural plaques have title and interest (i.e., standing) to be joined to the action as respondents?

The case is constitutionally significant for what the courts have said about the second issue. But before we get to that, let’s get the first and third issues out of the way.

A1P1

On the first issue the Supreme Court agreed with the Court of Session that the answer was no: A1P1 was engaged but it was not violated here. There was a legitimate aim for the interference with property, and the interference was proportionate. Property lawyers or other experts in property rights may have more to say about this, but the reasoning of the Supreme Court on this issue struck me as unremarkable.

Standing (of interest mainly to Scots lawyers)

On the issue of standing the Supreme Court changed Scots law. In England and Wales a party has standing to seek to judicial review if that party has “sufficient interest” in the matter. As we report at pp 712-3 of the book the courts in England and Wales have tended to interpret this requirement liberally and flexibly in recent years, such that it has become much rarer than it once was for parties to lose a case solely because they lack standing. In Scots law, by contrast, the test has been whether a party has “title and interest”. This test comes directly out of private law. It has tended to be applied rather strictly by the Scottish courts, so that there have been instances in recent years of claims falling at this hurdle in Scotland which would not have fallen at this hurdle in England and Wales (examples are given by Lord Hope at para 59 and by Lord Reed at para 166).

Both Lords Hope and Reed call time on all this and rule that the old phrase “title and interest” should no longer be applied in judicial review. The implication is that Scots law should more clearly and more closely resemble English law in this regard. Lord Reed goes so far as to suggest that “sufficient interest” should be the test in Scotland (para 171). Lord Hope says that a party should be required to show that he or she is “directly affected” (para 63). Whether this amounts to two ways of saying the same thing, or whether there is a difference of substance between Lord Hope’s formulation and that of Lord Reed is a matter that the Court of Session will no doubt have to address in the years to come.

Before we leave this point, it is worth noting that this is the second time this year that the Supreme Court has overturned an old and long-standing aspect of the Scots law of judicial review (the previous example was the overruling of Watt v Lord Advocate in Eba v Advocate General, on which see my posting of 29 July). In both instances the effect has been to further the harmonisation of the law north and south of the border; in both instances it is Scots law that is brought into line with English law, and not the other way around.

Judicial Review of Legislation (of interest to ALL UK lawyers)

And now to the heart of the case, from a constitutional point of view.

Section 29 of the Scotland Act 1998 provides that an Act of the Scottish Parliament (“ASP”) “is not law” if it is outside legislative competence or if it is incompatible with Convention rights or with EU law. The question posed in AXA was whether section 29 provides an exhaustive list of the grounds on which an ASP may be challenged in legal proceedings, or whether it is additionally possible to argue that an ASP may be unlawful on common law grounds of judicial review (i.e., illegality and irrationality, as defined by Lord Diplock in the GCHQ case). On the one hand the Scottish Parliament is a creature of statute with limited powers, just like many other public bodies whose actions and decisions are subject to judicial review. On the other hand, the Scottish Parliament is a Parliament, not an ordinary public body, it is democratically elected, and it has the power to make law, indeed to make Acts which, like Acts of the UK Parliament, require the Royal Assent before they come into force (see Scotland Act, s 28). Moreover, the legislative power of the Scottish Parliament includes the power to amend or repeal Acts of the UK Parliament, as long as this is within legislative competence. And, of course, Acts of the UK Parliament are not subject to common law judicial review on grounds of illegality or irrationality.

Or are they?

In AXA the Court of Session ruled that ASPs are potentially subject to judicial review on grounds of illegality or irrationality but only in the extreme circumstances that bad faith, improper motive or manifest absurdity could be shown (and no such thing could be shown here). This is the force of the Lord Ordinary’s opinion, as extracted at p 237 of the book; and the First Division of the Inner House agreed with this line.

The Supreme Court has taken a different approach. The key passages are paras 42-52 of Lord Hope’s judgment, and paras 135-54 of Lord Reed’s judgment. These passages repay close and careful attention. It is worth repeating that the other (English) Justices on the panel agreed with what Lords Hope and Reed said in these passages (with one (immaterial) qualification given by Lord Mance at para 97).

For Lord Hope, ASPs are in principle amenable to the supervisory jurisdiction of the Court of Session at common law (that is, they are in principle subject to judicial review) (para 47). Case law on the extent to which delegated legislation that has been approved by Parliament is subject to judicial review is of only limited help in the context of ASPs, according to Lord Hope: rather, he said, “we are in this case in uncharted territory” (para 48) and the issue therefore has to be addressed as one of principle. And while “the dominant characteristic of the Scottish Parliament is its firm rooting in the traditions of a universal democracy” (para 49), the “guiding principle”, for Lord Hope, was (as he had said in Jackson — see p 92 of the book) “the rule of law enforced by the courts”, this being “the ultimate controlling factor on which our constitution is based” (para 51).

Lord Hope states that, in the context of reviewing legislation, the courts should “intervene, if at all, only in the most exceptional circumstances” (para 49) but what is fascinating about his analysis of the circumstances in which the courts should intervene is that he does not seek to rely on the distinction between a sovereign Parliament (such as Westminster) and a non-sovereign Parliament (such as Holyrood). Rather, he emphasises what the UK and the Scottish Parliaments have in common. On the one hand they have in common “the depth and width of the experience of [their] elected members” (para 49), which is why judges should intervene only in extremis. But on the other hand they have in common “a government that enjoys a large majority” and whose party “dominates” (para 51), which is why the judges should reserve the right to intervene to quash legislation that, for example, sought to abolish judicial review or to “diminish the role of the courts in protecting the interests of the individual” (para 51). Lord Hope goes on: “Whether this is likely to happen is not the point. It is enough that it might conceivably do so. 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). What is to be noted about this reasoning is that it is not expressed to apply solely to Acts of the Scottish Parliament. It is expressed to apply to legislation generally including, apparently, to Acts of the UK Parliament.

And, as anyone who watched the Home Secretary’s speech earlier this month to the Conservative Party conference well knows, at least some Ministers in the current UK Government are clearly contemplating legislation designed to “diminish the role of the courts in protecting the interests of the individual”. We all know that the Human Rights Act is under review and, indeed, under threat.

Now, having said all this, Lord Hope does make it clear that, as he understands the rule of law, it is in conflict with the sovereignty of the UK Parliament and he also makes it clear that in this case the Court does not have to resolve that conflict, because it is concerned with legislation of the Scottish Parliament, and not with an Act of the UK Parliament. So here “the rule of law does not have to compete with the principle of sovereignty” (para 51). Nonetheless, Lord Hope has offered a clear steer that in the event of any such future conflict, he may well side with the Lord Steyn view in Jackson and not with the Lord Bingham view.

In conclusion, Lord Hope ruled that ASPs are not subject to judicial review at common law on grounds of irrationality, unreasonableness or arbitrariness. But rather than qualifying this conclusion, as the Court of Session had done, by reference to bad faith etc, Lord Hope qualifies it by reference to his general conclusions as to the principle that the rule of law means that judges should not recognise as law any legislation that seeks to abolish judicial review or to diminish the role of the courts in protecting the rights of the individual.

Lord Reed did not roam as freely into the terrain of the sovereignty of (the UK) Parliament as did Lord Hope. He confined himself to the issues arising on the facts of the case more strictly. But on the core issue of the amenability of ASPs to common law judicial review, Lord Reed was in broad agreement with what Lord Hope said. Thus, he agreed that, within the scope of its competences, the Scottish Parliament has plenary law-making power (para 146); he agreed that competent ASPs do not have to be passed for specific purposes or with regard to any specific circumstances (para 147); he agreed that this distinguishes ASPs from the acts and decisions of ordinary public bodies and that the ordinary principles of judicial review (as regards proper purposes, relevant considerations, and the like) “generally have no purchase” as regards ASPs (para 147); but he also agreed that if an ASP “offended against fundamental rights or the rule of law” then such legislation ought to be subject to common law judicial review (para 149). According to Lord Reed, the Scotland Act 1998 was not passed in a vacuum: rather, Parliament “legislated for a liberal democracy founded on particular constitutional principles and traditions. That being so, Parliament 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). There was no suggestion of that in this case, so the common law challenge failed.

 

 

 

 

 

 

A curiosity about the separation of powers

One development over the summer months raises a curiosity about the separation of powers.

Suppose the Government loses a case. The Government is convinced that the judge has made an error and has misunderstood or misapplied the law. Naturally, the Government appeals. While the appeal is pending, however, the Government decides that the point of law at issue in the litigation is so important, or so pressing, that we really cannot wait for an appeal. Instead, emergency legislation is needed to reverse the court’s judgment.

Would such a course of action be constitionally appropriate, or would it violate (or bring into question) the separation of powers between adjudication on the one hand and legislation on the other?

This is no hypothetical. It happened in May-July 2011. In May 2011 the High Court made a decision concerning the maximum period of pre-charge detention under the Police and Criminal Evidence Act 1984, s 41 (“PACE”). The Court interpreted s 41 of PACE in a wholly novel way, reversing the effect of 25 years of policing practice. There was an appeal, which was sent directly to the Supreme Court (bypassing the Court of Appeal). The appeal was set to be heard on 25 July. Meanwhile, the Government introduced the Police (Detention and Bail) Bill, which it proposed to fast-track through both Houses of Parliament before the summer recess. The Bill would have the sole effect of reversing the High Court’s judgment, and of returning the interpretation of s 41 of PACE to that which had been accepted before the High Court’s decision.

The Bill was duly passed and it came immediately into force, whereupon the appeal to the Supreme Court was withdrawn (the point having become moot).

The House of Lords Constitution Committee published a short report on the Bill, raising the question of whether it was appropriate in the light of the separation of powers for the Government to invite Parliament to legislate in these circumstances. The Government saw no constitutional objection, and defended itself by saying that parliamentary sovereignty meant that Parliament could make or unmake any law whatsoever, including one that was designed to reverse the effect of a lower court ruling that was itself on appeal to the Supreme Court.

What do you think? A violation of the separation of powers, or a vindication of the sovereignty of Parliament? If the Government is correct, does this mean that it never needs to appeal a first-instance decision that goes against it, because it can simply invite Parliament to legislate to reverse the court’s ruling? Surely not: yet what would be the means of stopping a Government behaving like this if it chose to do so?

Update on Legislation

On pages 33-34 (in Ch 1) we identify a number of Bills before Parliament that seek to reform aspects of the British Constitution. A number of these Bills have now been passed and are therefore Acts of Parliament. These include the Fixed-term Parliaments Act 2011 and the European Union Act 2011.

Both measures were hotly contested in Parliament and aspects of them were resisted by the House of Lords but, in both cases, the legislation has been enacted in accordance with the Government’s wishes. The Fixed-term Parliaments Act contains a provision (s 7(4)) requiring a review of the Act to take place in 2020. Conceding this was the Government’s way of resisting an amendment that had been passed by the House of Lords (but rejected by the Commons) that would have subjected the entire Act to a “sunrise” clause. That is to say, that the Act would have had effect after the 2015 election only if Parliament positively so resolved. There is no such clause in the Act as passed.

On the European Union Act 2011, see also pp 342-3 (in Ch 5 of the book). The “sovereignty” clause that had caused so much fuss in the House of Commons was re-worded during the Bill’s passage, but the differences are (I think) technical: in any event see now s 18 of the Act.

The other measures mentioned on p 34 remain before Parliament: that is, the Public Bodies Bill, the Scotland Bill, and the Protection of Freedoms Bill. We can expect the Public Bodies Bill and the Protection of Freedoms Bill to be enacted before the end of the current parliamentary session (i.e., before the middle of March 2012); but the further passage of the Scotland Bill may be subject to the views of the Scottish Parliament, as well as of the Westminster Parliament, and its future is not quite so certain. More on this here as developments unfold, no doubt …

Another Bill before Parliament of relevance to British Government and the Constitution is the Terrorism Prevention and Investigation Measures Bill. This is the legislation designed to replace control orders (under the Prevention of Terrorism Act 2005: see pp 784-87 in Ch 11) with new measures of executive control, to be known as TPIMs. TPIMs are “control orders lite”; the similarities between control orders and TPIMs are much more significant than the differences. Both the House of Lords Constitution Committee and the Joint Committee on Human Rights have published reports rather critical of the TPIMs Bill, arguing that the reforms to control orders are insufficient; but there appears to be little political appetite in either House for the recommendations these committees have advocated to be taken further. If anything the Bill is likely to be amended so that TPIMs will resemble control orders even more closely!

 

 

Cart and Eba: the scope of judicial review clarified

This note updates references in the book to R (Cart) v Upper Tribunal and to Eba v Advocate General for Scotland. The book (p 711) deals with the decisions of the Administrative Court and of the Court of Appeal in Cart, and of the Court of Session in Eba. Both were appealed to the Supreme Court, whose decisions in the two cases neatly solve the problems that these important cases had thrown up.

The issue in the cases is the scope of judicial review as regards the Upper Tribunal (on the scope of judicial review, see pp 710-11 of the book; on the Upper Tribunal see p 711). As reported in the book, the Court of Appeal (in Cart) and the Court of Session (in Eba) had taken diametrically different views on this question, in each case explained (in part) by the different jurisdictional histories of judicial review in English law and in Scots law. The Court of Appeal ruled that unappealable decisions of the Upper Tribunal could be judicially reviewed only in exceptional circumstances; the Court of Session considered that the right to seek judicial review in Scots law could not be so restricted.

The Supreme Court was able to hear argument simultaneously in both the English and the Scottish appeals (unlike the lower courts, which could focus only on one jurisdiction). In its judgments in the cases the Supreme Court has tried to steer a middle path between the excessively restrictive views of the Court of Appeal and Administrative Court, on the one hand, and the more liberal view of the Court of Session, on the other. What is at stake here is the attempt to balance two important principles of public law: first, the rule of law and, secondly, the recognition by generalist courts that particular matters of public administration are better left expert tribunals. As Lady Hale summarised it at para 33 of Cart, two principles need to be reconciled: the relative autonomy which Parliament has invested in tribunals; and the constitutional role of the court as the guardian of legality and due process. The rule of law would suggest that judicial review should not be restricted, but the principle that the expertise of tribunals should not be undermined would suggest that judicial review should be limited. The Supreme Court considered that the Court of Appeal had shown too much regard for tribunals’ autonomy and too little for the rule of law; and that the Court of Session had veered too far in the opposite direction.

The middle path unanimously adopted by the Supreme Court in both Cart and Eba avowedly aligns the availability (or scope) of judicial review in this context with statutory criteria governing the availability of appeals. Thus, judicial review will be available in respect of an otherwise unappealable decision of the Upper Tribunal either where the appeal raises an important point of principle or practice, or where there is some other compelling reason. Lady Hale said this of the path the Supreme Court was adopting:

It would recognise that the new and in many ways enhanced tribunal structure deserves a more restrained approach to judicial review than has previously been the case, while ensuring that important errors can still be corrected. It is a test which the courts are now very used to applying. It is capable of encompassing both the important point of principle affecting large numbers of similar claims and the compelling reasons presented by the extremity of the consequences for the individual.

Agreeing with Lady Hale, Lord Dyson added the following remark:

the scope of judicial review should be no more (as well as no less) than is proportionate and necessary for the maintaining of the rule of law … In my view … unrestricted judicial review of unappealable decisions of the [Upper Tribunal] is neither proportionate nor necessary for maintaining the rule of law.

The judgment of the Supreme Court in Eba was given by Lord Hope, who ruled that the approach set out by Lady Hale and Lord Dyson in Cart should be adopted also in Scotland, reminding the Court of Session that it “should be slow to interfere with decisions that lie within the expertise of specialist tribunals” (para 47).

There are two further points to note about Cart and Eba. The first is that the Supreme Court accepted that there was no attempt to oust the jurisdiction of the court in the Tribunals, Courts and Enforcement Act 2007, the legislation that had created the Upper Tribunal (ouster of judicial review is considered at p 714 of the book).

The second point, important for Scots lawyers, is to note that Watt v Lord Advocate was overturned by the Supreme Court in Eba. Watt v Lord Advocate is cited at p 669 of the book as authority for the proposition that the old distinction between intra vires and ultra vires errors of law continued to be important in Scotland long after it had been abandoned in England (owing to Anisminic). Lord Hope in Eba ruled (at para 34) that “the time has come for it to be declared that … Watt v Lord Advocate is incompatible with what was decided in Anisminic” and that “there is, in principle, no difference between the law of England and Scots law as to the substantive grounds on which a decision by a tribunal acts within its jurisdiction may be open to review”.

The Supreme Court did terrific work in Cart and Eba, proving its great value as a United Kingdom court. It took a hard look at both English and Scots law and made them (1) compatible with one another when they had threatened to grow apart in a way that would have generated significant problems, and (2) better. The result achieved by the Supreme Court is an improvement on what both the Court of Appeal and the Court of Session had ruled.

Take note, Mr Salmond?