PhD Scholarships in Public Law 2013

The University of Glasgow has recently published the following advertisement:

Applications are invited for up to 2 Scholarships being offered by the College of Social Sciences to study for a PhD at Glasgow in the area of public law. The successful candidate(s) would have Professor Adam Tomkins, John Millar Professor of Public Law, as their principal supervisor. PhD students are particularly sought in areas that overlap with Professor Tomkins’ research interests, although proposals in any area of public law will be considered. Professor Tomkins’ current research interests include: national security law; counter-terrorism; the fundamentals of UK constitutional order; the constitutional role of the courts; freedom of information law; devolution in the UK; and the constitutional consequences of the Scottish independence referendum.

 

Further details on how to apply, etc here: http://www.gla.ac.uk/colleges/socialsciences/studentfundingopportunities/postgraduateresearch/#d.en.275305 

Is retrospective fast-track legislation constitutional … ?

… Especially when it reverses the result of a court decision which is itself under appeal to a higher court?

The House of Lords will debate the issues this afternoon. The HL Constitution Committee published a report on the matter this morning. You can read it here.

I will write this all up much more fully in the next few days.

 

The emergence of a devolution jurisprudence?

In late 2012 the UK Supreme Court decided two cases on the law of devolution. On the face of it each was quite separate from the other but the Court clearly saw them as being closely related and took the opportunity to develop some potentially important principles of devolution law. Each case was a challenge to the legislative competence of a devolved legislature. The first case was from Wales. The Attorney General referred to the Supreme Court the question of whether certain provisions of the Local Government Byelaws (Wales) Bill were within the legislative competence of the National Assembly. The second case was an appeal from the Court of Session in Edinburgh. Imperial Tobacco Ltd argued that certain provisions of the Tobacco and Medical Services (Scotland) Act 2012 were outwith the legislative competence of the Scottish Parliament. In each case the Supreme Court unanimously rejected the challenge and upheld the legislation.

Welsh Byelaws

The Attorney General’s reference concerned the first Bill passed by the National Assembly under the powers conferred upon it by the provisions of the Government of Wales Act 2006 (“GOWA”) that came into effect following the referendum in 2011 (see T&T pp 250-2). The Local Government Byelaws (Wales) Bill was intended to simplify procedures for making and enforcing local authority byelaws in Wales. The Attorney General referred sections 6 and 9 of the Bill to the Supreme Court. Section 6 removed the need for certain byelaws to be confirmed by the Welsh Ministers or the Secretary of State; section 9 provided that the range of byelaws in respect of which confirmation would no longer be required could be extended.

The legal challenge to section 6 centred upon Sched 7, Part 2, para 1 to GOWA, which provides that “A provision of an Act of the Assembly cannot remove or modify … any pre-commencement function of a Minister of the Crown”. For the Welsh Ministers, it was contended that section 6 was saved by Sched 7, Part 3, para 6(1)(b), which provides by way of exception that the rule just quoted does not prevent a provision of an Act of the Assembly removing or modifying a pre-commencement function of a Minister of the Crown if that provision is merely “incidental” or “consequential”.

When the equivalent provisions of the Scotland Act 1998 were examined by the Supreme Court in Martin v Most [2010] UKSC 10, the matter divided the Court three-to-two. In the Welsh Byelaws case, by contrast, the Court was unanimously of the view that the Welsh Ministers were correct that section 6 of the Local Government Byelaws (Wales) Bill was saved by Sched 7, Part 3, para 6(1)(b). Lord Neuberger gave six reasons for reaching this conclusion, of which the most important was that the primary purpose of the Bill could not have been achieved without the removal of the Secretary of State’s confirmatory powers. (The Secretary of State’s confirmatory powers were removed as regards byelaws made by local authorities in England by section 129 of the Local Government and Public Involvement in Health Act 2007.)

As for section 9 of the Bill, which was also found to be within the Assembly’s legislative competence, the Supreme Court relied on GOWA section 154(2). This section provides that a provision of an Act of the Assembly is, “if possible”, to be read “as narrowly as is required for it to be within competence”. Using this provision, section 9 was interpreted to mean that in the future the Welsh Ministers could remove the need for confirmation of byelaws only if the confirmation would have been for the Welsh Ministers and not the Secretary of State or – where it would have been for the Secretary of State – if the removal of the power was merely incidental or consequential.

Imperial Tobacco

The Tobacco and Primary Medical Services (Scotland) Act 2010, section 1, prohibited the display of tobacco products at the point of sale. Section 9 of the Act prohibits vending machines for the sale of tobacco products. Imperial Tobacco challenged the lawfulness of these provisions, arguing inter alia that they related to matters “reserved” to the United Kingdom Parliament under Sched 5 to the Scotland Act 1998. Their challenge was unsuccessful in both the Outer House and, on appeal, in the First Division of the Court of Session; it was equally unsuccessful in the Supreme Court.

The core of Imperial Tobacco’s argument was that sections 1 and 9 of the Act related to “the sale and supply of goods to consumers” and to “product safety”, both of which are expressly listed as matters reserved to the United Kingdom Parliament (by Sections C7 and C8 of Head C in Part II of Sched 5 to the Scotland Act 1998). Under section 29(3) of the Scotland Act, whether a provision of an ASP “relates to” a reserved matter is to be determined by reference to its purpose (having regard, among other things, to its effect in all the circumstances). The purpose of sections 1 and 9 was to reduce tobacco sales, on grounds of public health. The Supreme Court ruled that this purpose could not be said to have “anything to do with consumer protection”: the aim was to “discourage … sales of tobacco products, not to regulate how any sales are to be conducted so as to protect the consumer from unfair trade practices” (para 40).

A devolution jurisprudence?

In the course of the last 12-18 months there has been much academic and political argument about the proper interpretation of the UK’s various devolution statutes. The impetus behind much of the controversy was the dispute over whether the Scotland Act 1998 confers on the Scottish Parliament the competence to legislate on any sort of independence referendum. (My view remains that it does not.) That argument is no longer of any immediate practical concern, owing to the fact that the requisite legislative competence has now been conferred on Holyrood by an Order in Council made under section 30 of the Scotland Act. (An earlier post here dealt with the key developments up to March 2012; a forthcoming post will summarise developments since then.)

In both the Welsh Byelaws case and Imperial Tobacco the Supreme Court took the opportunity to set out its view of the proper legal interpretation of the devolution legislation. A starting point is to bear in mind the Court’s view that the three principal pieces of legislation – the Scotland Act 1998, the Northern Ireland Act 1998 and the Government of Wales Act 2006 – have both similarities in common and differences between them. Whilst, in some circumstances, it will be appropriate to read across from case law concerning one of these enactments to arguments about another of them, caution must always be exercised in doing so. Thus, while Lord Hope stated in the Welsh Byelaws case that “the essential nature of the legislatures that the devolution statutes have created in each case is the same” (para 81), Lord Neuberger in the same case warned that these are “different statutes, and one must therefore be wary of assuming that they have precisely the same effect, as context is so crucially important” (para 50).

One difference, it is now clear, is that while in Robinson v Secretary of State for Northern Ireland [2002] UKHL 32 (see T&T pp 88-90) the House of Lords ruled that the Northern Ireland Act, being a “constitutional statute”, should be interpreted “purposively and generously” the Supreme Court is highly reluctant to read this across into the interpretation of GOWA or the Scotland Act. In the Welsh Byelaws case Lord Neuberger stated that it was unnecessary for him to say anything about whether the approach in Robinson could or should inform the judicial interpretation of GOWA (para 69) but Lord Hope stated that describing a devolution statute as a “constitutional statute” was a matter of description only (i.e. that such a statute concerns matters of constitutional law) and could not be taken as a guide to the proper interpretation of the statute (para 80). Indeed, for Lord Hope, a devolution statute “must be interpreted like any other statute”. Lord Hope said the same thing in his judgment in Imperial Tobacco: “the description of the [Scotland] Act as a constitutional statute cannot be taken, in itself, to be a guide to its interpretation” (para 15). The First Division of the Inner House had reached the same conclusion in Imperial Tobacco, Lord Reed (now, of course, a Justice of the Supreme Court) making it plain that even if the political context of the Northern Ireland Act justified a more generous interpretation of its terms, no such argument could be made for the Scotland Act. Robinson v SSNI, it seems, while not being overruled, has been confined to its facts. The Court of Session and the Supreme Court alike have made it plain that Robinson v SSNI does not lay down a general rule as to the interpretation of the UK’s devolution legislation. This, in my view, is very much to be welcomed, not least because it sits much more comfortably with our long-standing precepts of the sovereignty of Parliament than does the rather awkward judgment in Robinson.

In Imperial Tobacco, Lord Hope stated that “it is unsatisfactory that there should continue to be room for doubt” on the matter of the proper interpretation of the Scotland Act 1998 (para 12). In order to clarify the matter, his Lordship set out three basic principles. First, “the question of legislative competence must be determined in each case according to the particular rules that have been set out in section 29 of and Schedules 4 and 5 to the 1998 Act” (para 13). Secondly, “those rules must be interpreted in the same way as any other rules that are found in a UK statute”. Devolution, he added, was designed to be “coherent, stable and workable” but these attributes, while proper to have in mind, do not amount to “a principle of construction” (para 14). That said, “the best way of ensuring that a coherent, stable and workable outcome is achieved is to adopt an approach to the meaning of a statute that is constant and predictable” (ibid). To return for a moment to the debate about Holyrood’s competence to legislate for an independence referendum, some commentators had suggested that cases about tobacco legislation could not be taken as reliable indicators of how the courts would interpret an ASP that, without a section 30 Order, purported to authorise an independence referendum. Lord Hope’s statement just quoted gives the lie to this: the Scotland Act 1998 and the rules contained within it as to the legislative competence of the Scottish Parliament will be interpreted and enforced by the courts with constancy and predictability – their interpretation will not wax and wane according to some fanciful notion of whether the ASP is concerned with important constitutional matters or not.

A final point to note in Lord Hope’s judgment in Imperial Tobacco is his summary of section 29 of the Scotland – this is his third basic principle. While section 29 “does not create a presumption in favour of competence”, it is none the less intended, “within carefully defined limits, to be a generous settlement of legislative authority” (para 15). Perhaps this judicious statement should be borne in mind amid the political clamour for more powers to be devolved to Holyrood?

Notable cases thus far in 2012

In addition to the cases on freedom of information and on freedom of assembly which I have discussed in their own blog posts in recent days, the following are among the more noteworthy cases in constitutional law in 2012 to date.

1. Assange v Swedish Prosecution Authority [2012] UKSC 22

From the perspective of constitutional law this decision is interesting less because of the notoriety of the claimant (Mr Julian Assange) and his online achievements (with WikiLeaks), and more because of what the Supreme Court says about the interpretation of the Extradition Act 2003 and the use to be made of EU and international law in its interpretation. This is a matter we consider in the book at pp 61, 79-80 and 356-9. At issue in Assange was whether the European Arrest Warrant (EAW) issued by the Swedish prosecution authority had been issued by a “judicial authority” within the meaning of the Extradition Act 2003. The question divided the Supreme Court 5-to-2, with the majority ruling that it had been and the dissentients ruling that it had not been (thus, Mr Assange’s extradition to Sweden was deemed to be lawful in the eyes of the majority). Parliamentary material arising from the Extradition Act’s passage through Parliament seemed to make clear that “judicial authority” had been intended to mean court, magistrate, or judge — and not prosecutor. Even without relying on any parliamentary materials, it might be thought that “judicial authority” in a UK statute would ordinarily mean a court, magistrate or judge. But the majority ruled that the UK statute, which had been enacted in order to give effect to the EU’s Framework Decision on the EAW, should if possible be interpreted consistently with the UK’s international obligations, including its obligations as regards the EAW (cf R v Lyons, cited at p 61 of the book). In the Framework Decision on the EAW, the majority ruled, the phrase “judicial authority” included not only courts and magistrates, but extended also to prosecutors. The same phrase in the UK statute must therefore have the same meaning. Lord Mance and Lady Hale dissented; for these Justices the meaning of “judicial authority” in the statute clearly did not extend to prosecutors and, in any case, the meaning of that phrase in the Framework Decision was obscure. The case is a fascinating example of the extent to which international and EU law may be used by our courts as aids to the interpretation of a UK statute.

2. R (Guardian News and Media) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420

An important case on freedom of speech, (a) illustrating the close relationship between common law reasoning and Article 10 ECHR in free speech issues and (b) focusing in particular on the right of access to information as an element of free speech — an element of free speech which the court rightly sees also as a component of the rule of law. In the case the Guardian newspaper was successful in arguing that it should have access to court documents relating to the extradition of two British citizens to the US in relation to bribery/corruption allegations involving the activities in Nigeria of a subsidiary of the US company, Halliburton. The documents were needed, claimed the Guardian, to facilitate its ongoing investigations into matters of bribery and corruption.

3. R (British Sky Broadcasting and others) v Chelmsford Crown Court [2012] EWHC 1295 (Admin)

Another free speech case. This time various media organisations successfully resisted a court order that had required them to disclose to the police video recordings they had made of the Dale Farm evictions. The police had wanted the recordings to enable them to identify a number of the people who had been involved in the evictions. Under the Police and Criminal Evidence Act 1984 the police may seek access to such material where they can show that it would be of “substantial value” to an investigation (PACE, Sched 1). Unfocused or scattergun requests by the police may not lawfully result in a court order that the material be produced. Here, the Administrative Court ruled that the “substantial value” test had not been satisfied and that the order of the lower court that the recordings be handed to the police had been a disproportionate interference with the media organisations’ right to freedom of expression under Article 10 ECHR.

4. Flood v Times Newspapers [2012] UKSC 11

More free speech, this time the Supreme Court (overruling the Court of Appeal) applying in the newspaper’s favour the Reynolds “responsible journalism” defence in an action for defamation in connection with the reporting of allegations of police corruption (on Reynolds, see pp 793-4 of the book). Flood breaks no new ground — it is an application of Reynolds and Jameel — but it is another interesting example of the delicate balancing exercise that courts must undertake in litigation concerned with fundamental rights.

5. R (Calver) v Adjudication Panel for Wales [2012] EWHC 1172 (Admin)

A final free speech case. In this one a Councillor was successful in arguing that his censure for breaching a Community Council Code of Conduct was a disproportionate interference with his freedom of expression. The Code required Councillors to show “respect and consideration” for others. Cllr Calver wrote a blog on which he posted comments critical of certain of his colleagues. The court ruled that while much of what was posted was unattractive, the political nature of the remarks meant that the claimant’s free speech rights needed to be accorded considerable weight and that his censure in respect of them was disproportionate.

6. R (National Secular Society) v Bideford Town Council [2012] EWHC 175 (Admin)

A town councillor (supported by the National Secular Society) objected to the saying of prayers as a formal item of Council business. The claimant argued, among other matters, that a local authority had no legal power to itemise the saying of prayers on the agenda of its meetings. On this point the claimant was successful, the court ruling that the terms of section 111 of the Local Government Act 1972 could not render the matter lawful (on this provision, see p 273 of the book). The decision encouraged the Secretary of State (Mr Eric Pickles MP) to bring into force earlier than he had planned section 1 of the new Localism Act 2011 (on this provision see also p 273 of the book).

7. R (Williams) v Surrey County Council [2012] EWHC 867 (QB)

Section 149 of the Equality Act 2010 provides for a “public sector equality duty” (PSED), requiring public authorities to pay “due regard” to the need to eliminate discrimination and to advance equality of opportunity. The PSED is arising with increasing frequency as a matter in litigation. An example is Williams, where it was successfully argued for the claimant that Surrey CC had failed to discharge its PSED in its decision to make certain changes to its library service. As local authorities are faced with growing pressures on their budgets, it may be that we will see a glut of case law featuring arguments that the PSED has been breached in these circumstances.

 

Freedom of Assembly

The final chapter of the book — on liberty and the constitution — closes with an examination of freedom of assembly. The year 2012 has seen a series of cases decided on this topic. None has transformed the law, but several are worthy of note.

In the section on common law powers and breach of the peace (pp 823-31) we include an extract from Austin in the House of Lords (pp 827-31) and we note that the claimant, who had been unsuccessful in the Lords, had taken her case to the ECtHR in Strasbourg. Well, she lost there as well, the Grand Chamber ruling in March 2012 that the infamous police “kettling” operation at Oxford Circus in May 2001 did not breach Article 5 ECHR. Agreeing with the House of Lords, the ECtHR held that the particular facts of the case disclosed no “deprivation of liberty” within the meaning of Art 5. Accordingly, the Court did not consider any question of justification (see para 67 of the Court’s judgment). For a penetrating critique of the ECtHR’s judgment, see this excellent blog post by David Mead.

At p 831 we note that the decision[s] in Austin do not mean that kettling will always be a lawful police tactic. That must be right: but the only case we could cite as an example of kettling being ruled unlawful (Moos and McClure) has since been overturned on appeal. In January of this year the Court of Appeal ruled, contrary to the judgment of the lower court, that the Metropolitan Police’s use of kettling with regard to protests in the City of London in 2009 were not unlawful (see R (McClure and Moos) v MPC [2012] EWCA Civ 12). The Court of Appeal had the following to say (at para 94):

We have concluded that a decision to contain [i.e. to kettle] a substantial crowd of demonstrators, whose behaviour, though at times unruly and somewhat violent, did not of itself justify containment, was justifiable on the ground that containment was the least drastic way of preventing what the police officer responsible for the decision reasonably apprehended would otherwise be imminent and serious breaches of the peace …

The Court accepted that kettling should not be undertaken “unless it was absolutely necessary” but ruled none the less that it may be adopted where it is reasonably believed that a breach of the peace is imminent, that there are no less intrusive means of crowd control that will prevent the breach of the peace, and where it is otherwise reasonable and proportionate (para 95).

The McClure and Moos case arose out of policing in London on the same day as Ian Tomlinson was killed after having been assaulted by a police officer (his death is noted at p 831 of the book). The officer in question was tried for manslaughter but was acquitted by the jury in July 2012.

Finally on common law powers and breach of the peace, to be noted is the recent first-instance decision of the Divisional Court in R (Hicks and others) v MPC [2012] EWHC 1947 (Admin). This case concerned a series of arrests and other police actions taken in Greater London on the day of the Royal Wedding (29 April 2011). The campaign group Republic organised a “Not the Royal Wedding” alternative event on that day, which took place at Red Lion Square. Other groups were also suspected by the police of seeking to hold protests: a key issue for the police was that such protests and alternative events would not be permitted to disrupt the Royal Wedding. A central issue in the case was whether the Metropolitan Police operated a policy (or a practice on the ground) of equating “intention to protest” in London on the day in question with “intention to cause unlawful disruption”, thereby adopting an impermissibly low threshold of tolerance for lawful protest, resulting in a series of unlawful arrests. The court (Richards LJ and Openshaw J) found that there had been no such policy (or practice) and that the particular arrests and other police activity complained of in the case were not, on the facts, unlawful. Other arrests on the day in question, not part of the Hicks and others claims, had been recognised by the police as having been unlawful and were settled with out of court compensation agreements. At least some of those arrests held in Hicks and others to have been lawful seem to stretch the concept of the “imminence” of a breach of the peace quite some distance. The court found them to be within the limits of the law as set out in Laporte (see pp 824-7 of the book), but in at least some instances the application of Laporte to the facts may strike some readers as questionable.

There is one last case from 2012 to note on freedom of assembly. This case does not concern common law powers and breach of the peace, but the extent of the right to assemble on the highway. This matter is considered at pp 836-42 of the book, where DPP v Jones and Hall v Mayor of London are discussed. To these cases we must now add City of London v Samede [2012] EWCA Civ 160. In this case the Court of Appeal upheld the lawfulness of orders made by a lower court the effect of which was to break up the camp that had been set up outside St Paul’s Cathedral in the City of London from October 2011 until February 2012. This camp was associated with the Occupy movement that had seen similar camps set up in cities across the world (notably in the US). As in Hall, the judgment in Samede sought to set down something of the limits of the right to use the highway as a location for sustained public protest. At para 49 the Court ruled that, notwithstanding that the protestors’ rights under Articles 10 and 11 ECHR are undoubtedly engaged,

it is very difficult to see how they could ever prevail against the will of the landowner, when they continuously and exclusively occupying public land, breaching not just the owner’s property rights … but significantly interfering with the public and Convention rights of others, and causing other problems (connected with health, nuisance, and the like), particularly in circumstances where the occupation has already continued for months, and is likely to continue indefinitely.

Freedom of Information

The Freedom of Information Act 2000 (FOIA) is starting to come of age (it is discussed at pp 560-65 of the book). Like the Equality Act 2010, FOIA can make a powerful case to be a “constitutional statute” of the first rank of importance, even if most lawyers would not yet see it in the same terms as the Human Rights Act, the European Communities Act or the Scotland Act. True, FOIA has not yet demanded a great deal from our appeal courts, but the relative absence of leading appeal court case law and the relative importance of the regime established by the statute, should not be confused for one another.

FOIA has its critics. Tony Blair’s extraordinary views are recorded at pp 564-5 of the book. And FOIA has its myths: as is the case for some of those who seek the reform of the Human Rights Act, so too are some of those who question the wisdom of FOIA prone to exaggerate the dangers which the Act is said to have generated.

FOIA, passed in 2000, came fully into force only in 2005. Over the summer the Justice Select Committee in the House of Commons published a valuable report examining FOIA’s achievements — and drawbacks — to date. (This is a good example of Parliament undertaking the task of post-legislative scrutiny.) The report is balanced and well informed: it is an impressive document. It concludes that FOIA “has been a significant enhancement of our democracy” (para 241). Its most interesting chapter is Ch 6, on “policy formulation, safe spaces and the chilling effect”. In this chapter the report addresses what, politically, have been the most pressing challenges to FOIA to date, challenges which raise difficult and important constitutional and legal questions.

These challenges focus on section 35 of FOIA and, to some extent, also on section 36. Sections 35 and 36 provide for two of the Act’s various exemptions. Neither is an absolute exemption: both are subject to the Act’s “public interest” test (in section 2: this is explained at p 562 of the book). Section 35 provides that information relating to “the formulation or development of government policy” or to “ministerial communications” is exempt from disclosure (if it meets the public interest test); section 36 provides that information the disclosure of which “would, or would be likely to, prejudice the maintenance of the convention of the collective responsibility of Ministers of the Crown” is likewise exempt.

In a series of cases the Information Commissioner and/or the Tribunal have ruled that information should be disclosed notwithstanding that it relates to the formulation of government policy or that it concerns collective Cabinet decision-making. In these cases the Commissioner and/or the Tribunal have ruled that the public interest in disclosure outweighs the public interest in maintaining a “safe place” for the candid and confidential discussion and development of government policy.

Four times now ministers have exercised their veto to override such decisions of the Commissioner/Tribunal (the first of these four occasions is recorded at p 563 of the book). The most recent such occasion came in May 2012 when the Secretary of State for Health (Rt Hon Andrew Lansley MP) vetoed the publication of a risk register that had been prepared by his Department in respect of his highly contested reforms to the health service in England (see now the Health and Social Care Act 2012). The first three exercises of the ministerial override (or veto) concerned section 36 and the safeguarding of collective ministerial responsibility; Andrew Lansley’s use of the power was the first occasion on which it has been exercised in respect of section 35. The Tribunal had ruled that such was the public interest in the NHS reforms that the risk register should be disclosed. The Secretary of State disagreed and gave reasons to the House of Commons explaining his decision. The Information Commissioner presented a report to Parliament on the affair, in which the judgment of the Tribunal and the opinion of the Secretary of State are summarised. The Information Commissioner was clearly of the view that the Tribunal was correct and that the Secretary of State was wrong to use his veto in this instance, not least because he was able to point to other instances in which risk registers had been disclosed without their disclosure having caused any apparent diminution in the candour of officials’ work for or advice to ministers.

Within government there are appear to be three (related) concerns about the interpretation and application of the public interest test in the context of section 35 of FOIA. The first is that the position is uncertain: sometimes the Commissioner/Tribunal will rule that the public interest favours disclosure; other times they will rule that it does not. What is needed, in the opinion for example of Lord O’Donnell (former Cabinet Secretary and Head of the Home Civil Service) is clarity on the matter. The second is that the Commissioner/Tribunal are ordering disclosure in too many cases in which the architects of FOIA had imagined that disclosure would not be ordered. This was the thrust of Jack Straw’s evidence to the House of Commons Justice Committee (Mr Straw was Home Secretary at the time of FOIA’s passage through Parliament). Mr Straw suggested to the Committee that the section 35 and section 36 exemptions should be recast as absolute exemptions (and therefore no longer subject to the public interest test). The third is that the consequence of these concerns is that there is a “chilling effect” in government: officials are less open and less candid (at least on paper and by email) than they were formerly, for fear that their work will not remain confidential. On this view, the “safe space” in which officials need to work requires to be both safer and larger, in order to ensure that the quality of government decision-making does not diminish.

The Justice Committee considered these views carefully and in detail in Ch 6 of its report and concluded that they could not be shown to require amendment to the Freedom of Information Act. For the Committee, the ministerial veto was enough of a guarantee that the “safe space” would be preserved (see para 198). The Committee noted that FOI requests are far from the only means by which the Government may have to disclose information it would rather keep secret: the proliferation of public inquiries has also seen the Government forced to release all manner of information that would not, without the inquiry, have been made public. The Committee stated as follows (paras 200-1):

We are not able to conclude, with any certainty, that a chilling effect has resulted from the FOI Act … We do not recommend any major diminution of the openness created by the Freedom of Information Act

Two questions remain apt for discussion. First, when there are competing public interests, some of which push in favour of disclosure and others of which pull in favour of non-disclosure, how can we decide which outweigh the others? And secondly, who should decide this? An independent tribunal, or a minister (responsible, as he is, to Parliament)? Is it a matter of legal judgment, or a question ultimately of political judgement? FOIA gives the last word to the minister. Should it? Jack Straw told the Justice Committee that any other arrangement would have meant that FOIA would never have been passed: his Government would have dropped it (see para 169 of the Committee’s report).

 

 

House of Lords Reform

This is the first of a series of updating posts I will place on this page in the coming days.

Perhaps the major constitutional event of the summer was the announcement by the Prime Minister in August that the Government’s House of Lords Reform Bill would be dropped. The Bill was introduced into the House of Commons in June 2012 and passed its second reading in July, after two days of debate. The Bill would have reformed the composition of the House of Lords such that, after a series of transitional periods, it would eventually have been composed of 360 elected members, 90 appointed members, 12 bishops and any additional ministerial members. Elected members would have been elected for one term only, but that term would have lasted for the lifetime of three Parliaments (i.e. 15 years). House of Lords elections were to take place according to the open list system (in Great Britain) and according to the single tranferable vote system (in Northern Ireland). The Bill contained no provision seeking to alter the powers or functions of the House of Lords; the provisions of the Parliament Acts 1911 and 1949 would have remained in force; and the Government was insistent that the relationship between the two Houses of Parliament (Lords and Commons) would be unaffected by the reforms proposed to the Upper House’s composition.

The Government had published a Draft Bill on House of Lords reform in 2011 (this is noted at pp 34 and 660 of the book). The key differences between the proposals in the Draft Bill and those in the 2012 Bill are that in the former the proposed size of the reformed House was 300 members (compared with 450 members in the Bill) and that in the former it was proposed to use the STV system for the whole of the United Kingdom. Both the Draft Bill and the 2012 Bill shared the features that the Government saw no necessary link between reforming the House’s composition and reforming its powers, functions, or relationship to the Commons. The Draft Bill was the subject of withering attack by a Joint Select Committee appointed to undertake pre-legislative scrutiny (see HL 284/HC 1313 of 2010-12). An unofficially published minority report subjected the Government’s proposal to even more sustained assault.

Within the Coalition, appetite for Lords reform was clearly greater in the Liberal Democrat party than in the Conservative party. While the Bill received its second reading in the Commons in July, it was clear that any “programme motion” designed to timetable the Bill’s further passage in that House would fail. Backbench Tory MPs wanted to be able to talk the Bill out and to use the weapon of parliamentary time to make life exceptionally difficult for the Government. The Opposition, in principle in favour of Lords reform, was prepared to sit back and watch Tory and Lib Dem MPs tear into one another — certainly, Labour was not about to help out Lib Dems in need of overcoming Tory resistance to reform. The Government announced that it would withdraw its programme motion and the Prime Minister undertook to his beleaguered Deputy to try to rally Tory backbenchers behind the Bill over the summer. When in August it became clear that he could not do this, he pulled the plug on the Bill.

There are two immediate consequences. The first is that the Liberal Democrats have indicated that they are to withdraw their support for the redrawing of constituency boundaries and for the redcution in the size of the Commons from 650 to 600 MPs (on which, see the Parliamentary Voting System and Constituencies Act 2011). Political commentary suggests that, far from accelerating the break-up of the Coalition, this will actually bind it tighter, as the electoral experts seem to be of the view that it would be harder for the Conservatives to win an overall majority of seats at the next election if the Commons remains at 650 constituencies. We shall see …

The second immediate consequence is that House of Lords reform is dead, at least for the remainder of this Parliament. We got closer to it this time around than we have done at any point since the House of Lords Act 1999 was passed. As documented at pp 659-60 of the book, we’ve had endless rounds of White Papers and Draft Bills, but not since the 1999 Act had we actually had a Government Bill formally introduced into Parliament. A huge block of parliamentary time had been assigned to debating House of Lords reform (in both Houses). Much of this time is now free. Meanwhil, not much remains of the Government’s constitutional reform programme. The Electoral Registration and Administration Bill, which is currently in the House of Lords (having been passed by the Commons) is about it, at least for the time being.

Why is House of Lords reform so difficult? Sometimes we have over-hasty constitutional reform in the UK without adequate scrutiny (see my January 2012 post here on process and reform). Sometimes we have the opposite — too much talk and not enough action. House of Lords reform is the classic example. One of the difficulties is that the legitimacy of the House of Lords — and the legitimacy of proposals to reform it — depends on how you look at it. Looked at as the Government did from the perspective of composition without regard for powers and functions, and you see only the case for change. But, looked at from the perspective of what the House of Lords actually does (and should do), you see much more of the case against. For House of Lords reform to progress, what is surely needed is a dispassionate analysis of what we want from a second chamber and of how we think we might be able to get that from a second chamber whose members are elected rather than appointed.

What we want from a second chamber is surely very close to what we have now: namely, effective, informed and expert scrutiny of legislation. How can we ensure that this precious achievement is not compromised by the introduction into the Lords of a long overdue dose of democracy? After all, whatever you think of the House of Commons (and of the urgency with which proposals for its reform ought to be considered!), the one thing you cannot say of it is that it routinely delivers effective, informed and expert scrutiny of legislation.

 

 

 

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.