I won’t be posting anything further on this blog. If you want to follow my irregular musings on law, politics and the British constitution, follow Notes from North Britain and, if you’re on Twitter, you can find me @ProfTomkins. Set up initially as a blog about the Scottish independence referendum, I’m now going to use Notes from North Britain as a site for all my various interventions in the blawgosphere, whether they’re focused on Scotland or on any other aspect of the UK’s constitutional debates. Meanwhile, do follow Public Law for Everyone and the UK Constitutional Law Association blogs. Both are terrific sources.
A fixed-term hung Parliament?
With three days to go the general election the polls haven’t moved in weeks. The major parties are neck and neck on about 33% of the vote each, with the other 33% being shared between the Lib Dems, Ukip, the SNP and the other smaller parties. It’s going to be close and it could go either the Tories’ or Labour’s way. I have no idea who’s going to win, and I make no prediction. But, for the sake of argument, let us suppose that the result is something like this: Conservatives 290 seats; Labour 270; SNP 45; Lib Dem 25; Others 20.
If this were the result, the Conservatives and LDs could between them command 315 seats. Still a handful shy of a working majority. Add the DUP to the mix and you get to about 324: just enough once you discount the Speaker and the Sinn Fein MPs (who do not take their seats).
On the same result Labour plus the Lib Dems would command 295 seats. Add the SNP to the mix and that would rise to 340: a comfortable majority but one reliant on SNP votes.
On these figures neither a Conservative-led nor a Labour-led government will be secure. It is hard to see either lasting the five-year term until the next scheduled general election, in May 2020. A change of administration during the 2015-20 parliament, and/or an early general election before 2020, would seem more likely than not were the result this week to be close to the one set out here.
This post seeks to explain the constitutional rules that govern (1) the formation of a new administration in circumstances such as these and (2) the survival of that administration for the remainder of the five-year term. This involves analysis of two key documents: the Cabinet Manual and the Fixed-term Parliaments Act 2011. Neither existed at the time of the last general election, although the Cabinet Manual was in preparation then and one chapter of it had been published in draft. The Cabinet Manual is the civil service’s understanding of the key rules, conventions and practices of government (including government formation). It has no formal status in law but may be regarded as an authoritative statement. It is not legally binding, but a very good reason would be needed to depart from it, in my view. The Fixed-term Parliaments Act 2011 is an Act of Parliament. It is the law of the land, and remains as such unless and until a future Parliament amends or repeals it. To act contrary to it would be to act unlawfully.
The rules of government formation
First of all, it is important to bear in mind what we voters are doing at a general election. We are not electing a government. We are electing a House of Commons, out of which and from which a government will be formed. It may well be that most voters will cast their votes on the basis of who they want to be Prime Minister, but the truth is we are not electing the PM (unless you live in Witney or Doncaster North). We are electing representatives for our constituencies. Those representatives will collectively determine who holds office: that is their job as MPs, not ours as voters.
If a party wins an overall majority of seats in the House of Commons it is axiomatic that the leader of that party becomes Prime Minister and is invited by Her Majesty the Queen to form an administration. If Labour win more than 320 or so seats Mr Cameron will resign as Prime Minister with immediate effect and Mr Miliband will be in 10 Downing Street by mid-morning on 8 May. So much is straightforward.
But all the polls indicate that there will be a hung parliament: i.e. a House of Commons in which no one party has an overall majority of seats. The constitutional rule in these circumstances is that the leader who can command the confidence of the House forms a government. That confidence can be formally tested only when the House meets, but in 2010 this did not take place until 12 days after the general election had taken place. Thus, the government is usually formed before the House of Commons meets.
Government formation in these circumstances depends, first, on the parliamentary arithmetic (how many seats does each party have) and, secondly, on negotiations between the parties. Those negotiations are designed to see if some combination of parties can work together to propose a policy platform that would be likely to command a majority in the House. Working together can take a variety of forms, from formal coalition (as in 2010-15) via “confidence and supply agreements” to much more informal suck-it-and-see vote-by-vote deals. (A confidence and supply agreement is when a minor party agrees to support a major party in any motion of confidence and as regards the passing of its budget. Under such an arrangement there is no formal agreement on other matters of legislation or policy.
The incumbent Prime Minister may remain in office during the period of negotiations. He is under no duty to remain in office: no Prime Minister may be compelled to remain in office if he has concluded that he should properly depart. But, likewise, he is under no duty to resign. Gordon Brown did nothing wrong in not resigning until five days after the 2010 general election: he was perfectly entitled to remain in office during that time to see whether he could form an agreement with other parties. Mr Brown resigned as PM when it became clear to him that he could not do so and that Mr Cameron was better placed to try and form an administration.
On the other hand, an incumbent Prime Minister should not seek to cling to office once it has become clear that he is unlikely to be able to form an administration that can command the confidence of the House of Commons.
All three leaders of the major parties acted perfectly properly in 2010, the last time a hung parliament was elected.
From the above it can be seen that it is not true that the largest party gets to go first; still less that it has an automatic right to form a government. Earlier in the election campaign Scottish Labour made claims to this effect. They were wrong to do so. It is true that on every occasion since 1924 the largest party has (as a matter of fact) gone on to form a government, but there is no constitutional rule that this must be so. Indeed, the very first Labour government (of 1924) would have broken this rule! The constitutional rule is that the government must command the confidence of the House of Commons. In my scenario above, of Labour 270 + LD 25 + SNP 45 = 340, a Labour-led government could well command the confidence of the House, despite Labour being a smaller party than the Tories.
Would such a government be illegitimate, as some English voices on the centre-right have claimed in recent days? From a constitutional perspective the clear answer is No, it would not. Personally, I cannot see how SNP MPs could take office as ministers of the British Government when their core aim is to break Britain up by removing Scotland from the UK (how can you govern a place you want to break up?). But this is a personal view, not a constitutional rule and, in any case, neither the Labour party nor the SNP are proposing this sort of deal: were a minority Labour (or Lab/LD) government propped up by the SNP, we are told that this would be without the SNP playing a role in government (that is, it would be a suck-it-and-see, vote-by-vote arrangement, not a coalition). There is the world of difference between having separatist MPs in the House of Commons and having separatist ministers taking office in the British Government.
With all this in mind, what should happen if the result on Friday morning is something like the scenario I started with: Con 290, Lab 270, SNP 45, LD 25, Others 20? What should happen is that the Prime Minister remains in office and seeks support from other parties (presumably the LDs and the DUP) that would mean he could command the confidence of the House of Commons. Only if (or when) it became clear that such support would not be forthcoming should we expect him to resign.
The implications of the Fixed-term Parliaments Act 2011 (FTPA)
Before the FTPA was passed a parliament was elected for a maximum term (of five years) but it was for the Prime Minister to decide within that term when the next general election should be called. The Act removes this power from the PM. An early general election may occur now only if one of two things happens: either that the Commons passes a motion stating “that this House has no confidence in Her Majesty’s Government”; or that the Commons passes by a two-thirds majority a motion “that there shall be an early parliamentary general election”. The second motion is unlikely unless both Government and Opposition agree that an early general election is in their parties’ and the public interest.
A no confidence motion requires no two-thirds majority of MPs: as in any other parliamentary vote a bare majority of the votes cast is sufficient. The effect of a no confidence motion being passed is not that there will be an immediate general election. Rather, the Act stipulates that there will be a 14-day period for the parties (both governing and opposing) to seek to form a new administration that can command the confidence of the House. Only if no such administration is formed within this window will there then be a dissolution and a fresh election.
The FTPA breaks two matters that had previously been linked: confidence and supply, and resignation and dissolution. Let me explain each.
It had formerly been thought that were a government to be defeated on its Queen’s Speech (i.e. the outline of its legislative programme, presented to Parliament at the beginning of each session) or on its budget, such a defeat would amount to a loss of confidence and would lead to the government resigning and to a general election. Under the FTPA this is no longer the case. It is clear under the Act that only a motion using the words “that this House has no confidence in her Majesty’s Government” is a vote of confidence. No other vote, no matter how important, is a vote of confidence, unless it includes these words. Thus, were a government now to lose a vote on its Queen’s Speech, or were a government now to fail to get its budget through, this would not of itself mean that the House had lost confidence in the government.
This is why the SNP leadership considers that they can prop up a Labour-led government whilst, at the same time, defeating that government on its budget until it introduces a budget that accords with the SNP’s wishes. However, the SNP leadership is mistaken.
Their mistake lies in their having overlooked the distinction between resignation and dissolution. Under the FTPA the Prime Minister has lost his power to call an early general election: the PM can no longer directly control the timing of the dissolution of Parliament. But, as I noted above, no-one may compel a Prime Minister to remain in office. Suppose that a Labour-led minority government is struggling to pass its budget in the face of SNP resistance. There is nothing to stop Mr Miliband going to the House to say that, if his budget is not passed, he will resign on behalf of the government and advise the Queen that the Leader of the Opposition should be invited to form a government. If the PM does this the SNP would have to support Labour’s budget or usher in a new Tory government. That new Tory government may well not last long: if it could not gain the confidence of the House it could suffer defeat on a motion of confidence and we would be into the 14-day period provided for by the Fixed-term Parliaments Act. None the less, the FTPA does not give to a minority bloc of even 45 SNP MPs quite the strong hand that the SNP leadership imagines. For sure, the parliamentary arithmetic at the end of the week could allow the SNP to cause chaos and wreak havoc, but the Fixed-term Parliaments Act is not a legislative licence for the tail to wag the dog.
Other commentaries on the formation and government and the Fixed-term Parliaments Act which I have found useful include Lord Norton’s article in (2015) Parliamentary Affairs and these blog-posts by Mark Elliott and Carl Gardner.
Confusion and Retreat: the Supreme Court on Devolution
The Supreme Court’s devolution jurisprudence has ebbed as well as flowed. It may be that the high-water mark was left by Robinson v Secretary of State for Northern Ireland  UKHL 32 and AXA General Insurance v Lord Advocate  UKSC 46 and that, since these cases, the tide has been receding.
Robinson remains an extraordinary decision, in which by the narrowest of margins a majority of the law lords ruled that an unlawful election was lawful, in order to keep Northern Irish devolution afloat and so as to prevent the DUP and Sinn Fein from obtaining office. Along the way, Lords Bingham and Hoffmann waxed lyrical about the Northern Ireland Act 1998 being “in effect a constitution” (rather than an ordinary statute) which should be interpreted “generously and purposively” rather than in accordance with the common law’s normal standards of statutory interpretation (para 11). Lord Hutton, dissenting strongly from this approach, reminded the judges that “the Northern Ireland Assembly is a body created by a Westminster statute and it has no powers other than those given to it by statute” (para 54). The reasoning of the majority in Robinson has not been followed in subsequent Supreme Court case law and, whilst the decision has not been overruled, it is perhaps best understood as having been confined to its facts.
Much of AXA focused on the meaning and application of the right to property in Article 1 of Protocol 1 of the European Convention on Human Rights (“A1P1”) but the constitutionally interesting dimension of the case lies elsewhere, in the Court’s analysis of the question whether Acts of the Scottish Parliament (“ASPs”) may be subject to common law judicial review. We know that section 29 of the Scotland Act 1998 limits the legislative competence of the Scottish Parliament: but is s.29 an exhaustive list of the grounds on which an ASP may be challenged, or could a petitioner also argue that an Act of the Scottish Parliament is unreasonable or irrational? The Supreme Court ruled that an ASP could not be challenged as if it were the decision of an ordinary public body (thus, ordinary common law judicial review would not apply to an ASP) but that if an ASP was violative of the rule of law the courts would step in to rule it unlawful (even if was otherwise within competence under s.29). Lord Hope arrived at this conclusion via an analysis which in certain respects placed Holyrood legislation and Westminster statutes on the same constitutional plane, describing the Scottish Parliament as “self-standing” and ruling that ASPs within competence enjoy “the highest legal authority” (para 46). Lord Hope supplied no authority for these propositions (perhaps because there is none) and did not explain what he meant.
The first indication that the courts would be more inclined to draw back from these grand statements than to build on them came in the decision of the Inner House of the Court of Session in Imperial Tobacco v Lord Advocate  CSIH 9. This decision was handed down in February 2012, when the academic battle was at its most intense over whether the Scottish Parliament had the legislative competence to pass an Act that would authorise the holding of an independence referendum. Lords Reed and Brodie went out of their way in Imperial Tobacco to distance judicial interpretation of the Scotland Act 1998 from what Lords Bingham and Hoffmann had said about the Northern Ireland Act in Robinson: the Scotland Act is “not a constitution”, they each ruled, but an Act of Parliament (at paras 71 and 181). There was no authority for the Scotland Act to be interpreted any more generously or purposively than any other statute: there was no international agreement such as the Belfast Agreement underlying the Scotland Act and what was said in Robinson about constitutional statutes and the like was “not readily applicable” in the case of Scotland (para 182 (Lord Brodie); see also Lord President Hamilton at para 14). Even though section 101(2) of the Scotland Act provides that an ASP “is to be read as narrowly as is required for it to be within competence, if such a reading is possible, and is to have effect accordingly” Lord Brodie ruled that there is “no basis for suggesting that the Scotland Act should be construed with a view to finding that a provision which has been enacted by the Scottish Parliament is within competence rather than outside of it” (para 183).
By the time the Supreme Court handed down its decision in Imperial Tobacco ( UKSC 61) the Edinburgh Agreement had been signed, in which the Scottish and UK Governments agreed that in order for the Scottish Parliament to legislate for an independence referendum a section 30 order would first be made so that the legality of the referendum could be placed beyond doubt. This removed the possibility that Holyrood might try to claim that it had the legislative competence to trigger the break-up of Britain. The Supreme Court dealt with what it called “the interpretation issue” coolly. Lord Hope, for a unanimous Court, noted that “it is unsatisfactory that there should continue to be room for doubt on this matter” but did not note that the doubt had been created by House of Lords and Supreme Court case law (para 12). He then set out three rules, as follows. First, that the question of competence must be determined in each case according to the particular rules contained in the devolution legislation; Parliament defined these rules “while itself continuing as the sovereign legislature of the United Kingdom” (para 13). Secondly, that “those rules must be interpreted in the same way as any other rules that found in a UK statute” (para 14). The devolution legislation, said Lord Hope, was designed to create a system that is “coherent, stable and workable” (ibid). The best way of ensuring this is to adopt an approach to interpretation that is “constant and predictable” (ibid). Thus, the Court will take the same approach whether the subject-matter of the legislation is the sale of tobacco or the break-up of Britain. Thirdly, Lord Hope said, “the description of the Act as a constitutional statute cannot be taken, in itself, to be a guide to its interpretation” (para 15). Like Lord Brodie (but without citing s.101(2)) Lord Hope said that there is no “presumption in favour of competence” and concluded that the Scotland Act “was intended, within carefully defined limits, to be a generous grant of legislative authority” (ibid). Since Imperial Tobacco the Supreme Court has ruled that the same principles apply as to the interpretation of the competence of the Welsh Assembly ( UKSC 43 at para 6; see further below).
Despite the deep political disagreements caused by Scotland’s independence referendum, neither Scottish nor Northern Irish devolution have been marked by legal disputes between the governments of the United Kingdom. The core devolution case law from these jurisdictions has come from challenges brought by private parties, such as AXA, Imperial Tobacco, the Scotch Whisky Association and, most recently, the Christian Institute and the Family Education Trust. This is not the case in Wales. The United Kingdom Government has referred to the Supreme Court two Bills passed by the National Assembly (both challenges failed:  UKSC 53 and  UKSC 43). The latter of these may represent the high-water mark of Welsh devolution. It concerned a Bill that made provision for agricultural wages. The Attorney General argued that this was outwith competence as it related to remuneration for employment, which he said was a matter reserved to Westminster. The Counsel General (on behalf of the Welsh Ministers) argued that the Bill was within competence, as it concerned agriculture, which under the Government of Wales Act 2006 is devolved to the Assembly. The Supreme Court ruled that the Bill could be characterised in either way. Under the Government of Wales Act 2006, section 108, a Bill is within competence if it relates to one or more of the subjects listed in Schedule 7. As agriculture is one such subject, the Bill in question was held to be lawful and within competence: the Court noted that s.108 does not provide that a Bill is within competence if it relates to a devolved matter only and cannot be characterised as relating also to a reserved matter.
On 9 February 2015 the Supreme Court handed down its latest decision on the law of devolution:  UKSC 3. Again, the case is from Wales. The Recovery of Medical Costs for Asbestos Diseases (Wales) Bill was referred to the Supreme Court by the Counsel General: not because he thought it was outwith competence (he argued that it was within competence) but because he knew that the vires of the Bill was in any event going to be challenged by insurance companies. Rather than endure years of litigation going up through the judicial system, he referred the matter directly to the Supreme Court for a ruling. Not that the Supreme Court was particularly speedy in deciding the matter: the case was heard in May and judgment took nine months. One can readily see why: like Robinson v SSNI we have another three-to-two split. And the only Welsh judge in the case, Lord Thomas, dissented (as Lord Hutton, the only Northern Irish judge in Robinson, also dissented).
The Bill, which was a private member’s bill in the Assembly, sponsored by the Labour AM Mick Antoniw, made employers liable to the Welsh Ministers for the costs to the Welsh NHS of treating their employees’ asbestos-related diseases (where the exposure to asbestos had occurred during the course of employment). The bill additionally required employers’ insurance contracts to be read as if they covered such liability. In other words the bill transferred the costs of medical treatment for certain industrial diseases to be transferred from the taxpayer (i.e. from the Welsh NHS) to employers and their insurers. Section 2 of the bill concerned employers; section 14 concerned insurers. Lord Thomas (with whom Lady Hale agreed) would have held that section 2 was within competence and was compatible with the right to property in A1P1 but that section 14 was drafted with unnecessary breadth that made it incompatible with A1P1. Lord Mance (with whom Lords Neuberger and Hodge agreed) ruled that the bill was outwith competence in that it did not relate to devolved matters and that both sections 2 and 14 were incompatible with the right to property in A1P1. There were no concurring judgments – we have only the two judgments of Lords Mance and Thomas.
It is convenient to consider the dissent first. Under section 108 of the Government of Wales Act 2006 the Assembly has competence to legislate if a bill relates to one or more of the subjects listed in Schedule 7. The “organisation and funding” of the NHS in Wales is listed in Schedule 7. Lord Thomas noted that “funding” could mean the raising of funds or the mere allocation of funds. He ruled that it meant the former (para 83) and that, accordingly, the Assembly has in principle the “competence to enact legislation that makes provision for charging for services by way of the treatment and long term care of those with asbestos-related diseases provided that the moneys so raised are used exclusively for the Welsh NHS” (para 95).
As for A1P1 Lord Thomas ruled that there were two questions arising: did the legislation pursue a legitimate aim, and was a fair balance struck between the demands of the general interest of the community and the protection of the right to property. This second question, he said, “can properly be described as the issue of proportionality” (para 105). On the first question Lord Thomas stated that making the wrongdoer (i.e. the employer) pay rather than the public as a whole “is clearly an objective on which different views can reasonably be held” but that it was “in every respect pre-eminently a political judgment in relation to social and economic policy on which it is for the legislative branch of the State to reach a judgment” (para 108). On the question of proportionality Lord Thomas stated that “great weight” should be accorded to the judgment of the legislature (para 118), just as would be the case were the Court considering an Act of the UK Parliament. Lord Thomas emphasised this last point in a series of paragraphs (119-122) concluding that each of the democratically elected assemblies and parliaments of the United Kingdom “must be entitled to form its own judgment about public interest and social justice in matters of social and economic policy within a field where, under the structure of devolution, it has sole primary legislative competence” (para 122). He acknowledged that the courts would not necessarily defer to a local authority to the same extent, but cases such as Belfast City Council v Miss Behavin’ Ltd  UKHL 19, he said, concerned “the judgment of a municipality, not a legislature enacting primary legislation” (para 123).
Lord Mance took a markedly narrower approach, both as regards reserved/devolved matters and as regards A1P1. As to the former his starting point (at para 25) was a dictum of Lord Walker’s in the Scottish case of Martin v Most  UKSC 10 that the expression “relates to” (in s.29 SA and s.108 GoWA) indicates “more than a loose or consequential connection”. There is a difficulty, however, in reading across what is said about section 29 of the Scotland Act as if it applies equally to section 108 of the Government of Wales Act. Of course, there are parallels between the three different devolution schemes in force in Scotland, Wales and Northern Ireland: as Lord Hope noted in the first case the UK Government referred to the Supreme Court on Welsh devolution, “the essential nature of the legislatures that the devolution statutes have created in each case is the same” ( UKSC 53, para 81). Equally, however, Lord Neuberger remarked in the same case that they are “different statutes” and that even where the same words are used in each one must be “wary of assuming that they have precisely the same effect, as context is so crucially important when interpreting any expression …” (ibid, para 50).
The words “relates to” do not have the same effect in section 29 of the Scotland and section 108 of the Government of Wales Act. If an Act of the Scottish Parliament relates to a reserved matter listed in Schedule 5 to the Scotland Act it is outwith competence. On the other hand, an Act of the Welsh Assembly must relate to a devolved matter listed in Schedule 7 to the Government of Wales Act in order to be within competence. This is the difference between the “reserved powers” model used in Scotland and the “conferred powers” model used in Wales: the former lists those powers reserved to Westminster (but not those devolved to Holyrood) whereas the latter lists those powers devolved to Cardiff Bay (but not those reserved to Westminster). Thus, the effect of interpreting “relates to” as indicating “more than a loose or consequential connection” in Scotland is that the competence of the Scottish Parliament is treated generously: an ASP must have more than a loose connection with a reserved matter before it may be held on that ground to be outwith competence. However, the effect of interpreting “relates to” in this way in Wales is the opposite, and diminishes the legislative competence of the Assembly: an Act of the Assembly risks being held ultra vires unless the Assembly can show that it has more than a loose or consequential connection with a subject listed in Schedule 7.
Applying this approach to the matter before him, Lord Mance ruled that “rewriting the law of tort and breach of statutory duty by imposing on third persons … liability towards the Welsh Ministers to meet the costs of NHS services” was, at best, only loosely connected to the organisation and funding of the NHS and was therefore outwith the Assembly’s competence. He contrasted the matter with prescription charges, where there is a direct connection, as users are directly involved with and benefitting from the service in question (para 27).
As for A1P1 Lord Mance ruled that “rewriting historically incurred obligations” retrospectively to impose the recovery of hospitalisation costs on those whose breach of tortious or statutory duty caused them to be incurred requires “special justification”. As none was shown, he ruled that the right to property had been breached – apparently as regards both employers and their insurers (para 66). Lord Mance conceded that the recovery of such costs “could be thought” to be a perfectly appropriate legislative policy and “would no doubt have been proportionate if introduced in relation to future exposure to asbestos and future insurance contracts” (ibid). It was the retrospective nature of the bill that offended against A1P1, in the judgment of the majority.
Whereas, for Lord Thomas, the Court should give the same “great weight” to the judgment of the Welsh Assembly as it would to that of the United Kingdom Parliament, for Lord Mance, the Court should give “weight” to the Assembly’s judgment whilst remembering that “it is the court’s function, under GoWA, to evaluate the relevant considerations and to form its own judgment” (para 67). Lord Mance noted (at para 56) that, in the light of article 9 of the Bill of Rights, there is “perhaps … a relevant distinction between cases concerning primary legislation by the United Kingdom Parliament and other legislative and executive decisions”. Again, the contrast with Lord Thomas is stark: the minority see all the UK’s legislatures in similar terms, distinguishing them from local authorities: the majority see Westminster as constitutionally distinct and suggest fewer differences between devolved legislatures and local authorities.
Completely absent from Lord Mance’s judgment is any echo of what Lord Hope had said in AXA about how “elected members of a legislature … are best placed to judge what is in the country’s best interests as a whole”, about the “advantages that flow from the depth and width of the experience of [a legislature’s] elected members”, and about “the mandate that has been given to them by the electorate” (AXA, para 49). Yet AXA, too, was a case in which insurance companies complained that legislation passed by a devolved legislature was incompatible with their Convention rights under A1P1. In AXA Lord Hope said that “the democratic process is liable to be subverted if, on a question of political or moral judgment, opponents of an Act achieve through the courts what they could not achieve through Parliament” (ibid). It is worth noting that Lord Mance gave a short judgment in AXA in which he agreed with Lord Hope, stating that he was in essential agreement with all his reasoning (para 85).
The Welsh legislation struck down in the most recent Supreme Court decision is certainly distinguishable from the Scottish legislation the lawfulness of which was upheld in AXA. As Lord Mance noted in AXA, when the relevant insurance policies were taken out, “there was no certainty whatever how the law might treat claims for pleural plaques if and when they ever emerged” (para 95). In the Welsh case, by contrast, there is clearly a more manifest retrospective effect. Even if this justifies the outcomes of the cases being different from one another, however, it surely does not justify the majority’s approach to deference, to weight and to proportionality being so starkly at odds with the approach taken by the Supreme Court in AXA.
How are we to read the evident differences between AXA and the Welsh asbestos reference? If the drawing back from Robinson seen in Imperial Tobacco was undertaken (as I believe it was) in the shadow of Scotland’s independence referendum, can the same be said of the move from the expansionist jurisprudence of AXA to the much more restrictive approach of the majority in the Welsh asbestos reference? I do not know. It may be that there is nothing more to the disagreement between majority and minority than a difference of outlook as to property rights between commercial lawyers (Lords Neuberger, Mance and Hodge) and others – reminiscent, perhaps, of the three-to-two split in YL v Birmingham City Council  UKHL 27? If so, why were more Justices not added to the panel? Had Lords Kerr and Reed been included, for example, would they have sided with Lord Mance or with Lord Thomas? We shall never know, but that we are even asking such a question suggests that something has gone awry with the Supreme Court’s devolution case law. “Coherent, stable and workable” it is not: that much is for sure.
Legal analysis of the SNP’s independence white paper
Over on Notes from North Britain there is some legal analysis of the SNP’s independence white paper. You can read it here.
The Supreme Court’s welcome attack on the Court of Justice
The UK Supreme Court’s judgment in the HS2 case marks the year’s first big constitutional case. The case was brought by campaign groups hostile to (or otherwise critical of) the Government’s plans for a new high-speed rail-link between London, the Midlands, the north of England and (perhaps, one of these days) Scotland. (In a stroke of unintended irony I read the judgment on a Virgin Pendolino yesterday travelling from Euston to Glasgow, a journey which at the moment takes about four and a half hours.) The claim was that the Government’s chosen means of implementing HS2 were incompatible with EU law governing the “environmental impact” of planning decisions. A panel of seven Justices of the Supreme Court was unanimous in holding that there was no breach of the EU directives and that, in the circumstances, there was no need for the matter to be referred to the Court of Justice in Luxembourg for a preliminary ruling.
The case raises questions of UK constitutional law principally for the reason that the Government’s chosen means of implementing HS2 is via legislation. As such, the case could be seen as a legal challenge to the appropriateness of legislative procedure at Westminster. This should immediately cause constitutional eyebrows to be raised: it is provided in the Bill of Rights 1689, article 9, that “debates or proceedings in Parliament ought not to be impeached or questioned in any court …” (see T&T 161-4) and case law on the sovereignty of Parliament (including numerous cases concerned with the building of railways) has several times reinforced the point (see T&T 62-3). Yet, counsel for the claimants appears wholly to have overlooked this. As Lord Reed made plain in his judgment in the case (para 78), the constitutional problem posed by the case was not mentioned in argument until it was raised by the Supreme Court itself. This is astonishing, and it is the second time in recent months that the Court has had to remind the country’s leading public law QCs that our public law has domestic principles and authorities which need to be considered alongside (and sometimes instead of) the European doctrines on which counsel have founded their arguments (cf Osborn v Parole Board  UKSC 61).
In the event, the Court ruled that it was not necessary for it to “impeach” parliamentary proceedings in order for it to reach the conclusion that there was, on the facts, no breach of EU law. It left for another day the question of whether the Court would have the power to do so were it necessary in order to determine whether EU law had been complied with. It was made clear, however, that were the matter to arise in the future, it would be “resolved by our courts as an issue arising under the constitutional law of the United Kingdom” (Lord Reed at para 79). This is another healthy reminder that EU law has effect in the UK only by virtue of an Act of the UK Parliament (see further the European Union Act 2011, section 18). That Act of the UK Parliament — the European Communities Act 1972 — cannot necessarily be taken have authorised the “abrogation” of “fundamental principles” contained in the UK’s “constitutional instruments or recognised at common law” (Lords Neuberger and Mance, para 207). For the UK courts to reach the conclusion that EU law may apply in the UK even at the expense of such a fundamental constitutional principle would require careful and detailed argument.
Thus, the Supreme Court’s ruling in HS2 is an important contribution to the jurisprudence on the relationship between UK constitutional law and the law of the European Union. On this aspect of the case, there is much to be said. But instead of saying it myself I commend the expert analysis published by Dr Mark Elliott, on his blog: here.
What I want to do in the remainder of this post is to focus on an aspect of the case Dr Elliott does not discuss: namely, the Supreme Court’s attack on the Court of Justice.
The attack comes principally in the judgment co-authored by Lord Neuberger, the President of the Court, and Lord Mance. All the other Justices on the panel expressly agree with the Neuberger/Mance judgment. There are supporting statements in the judgment of Lord Reed. Again, all the other Justices on the panel expressly agree with Lord Reed.
But for certain decisions of the Court of Justice (“CJEU”) the issues in the HS2 case would never have arisen. The directives themselves pose no challenge to the lawfulness of the Government’s processes for implementing HS2. That challenge arises only by virtue of the ways in which the directives have been interpreted — that is to say, wilfully misinterpreted — by the CJEU. The so-called “strategic environmental assessment” directive (“SEA directive”) requires that certain “plans and programmes … required by legislative … provisions” are subject to environmental assessment. The Government’s HS2 project is not “required” by legislation, although it is regulated by legislation. In a series of cases the CJEU has interpreted the word “required” in the SEA directive to mean “regulated”, thus extending its scope significantly.
A related directive — the “environmental impact assessment” (“EIA”) directive — excludes from its scope “projects the details of which are adopted by a specific act of national legislation, since the objectives of this directive, including that of supplying information, are achieved through the legislative process”. In a series of cases the CJEU has held that the word “since” in this directive means “provided that”. This alters the meaning of the directive so that in law it means close to the opposite of what it says in fact: it is not that “projects set out in legislation are excluded from the directive’s scope because the legislative process means that the requirements of the directive are in any event satisfied”, but that “projects set out in legislation are included within the directive’s scope unless the legislative process can be shown to satisfy the requirements of the directive”. Again, the result is significantly to extend the directive’s reach.
Lord Reed says of the CJEU’s rulings that they employ “what might diplomatically be described as a purposive interpretation” (para 81). Later in his judgment he talks of the CJEU’s “exegesis” of the text of the directives. An exegesis is a gloss: it’s is not an interpretation of text but a discourse upon a text. It’s not construing the meaning of words set down by the legislative process: it’s changing those words so that they are held to mean something which they do not say. In short, this is not interpretation, it’s re-legislating.
The Court of Justice has been doing this for years and years and years. It famously adopts a “teleological” approach to the development of EU law. It seeks not to keep Member States to the letter of the law but to keep them within the spirit of a legal system which is governed above all by the mantra of “ever closer union”. Whether we look at the law of remedies and the enforcement of EU law (from direct effect to state liability), at the law of citizenship or, increasingly now, at the law relating to national security, we see EU law on the march, with the Court of Justice in the lead. I have long since thought this was hugely problematic and in their HS2 judgment, the UK Supreme Court have been more outspoken in their condemnation of it than I can recall the UK’s top court ever having been before.
Lords Neuberger and Mance remind us of the “constitutional basis” of EU legislation, of the institutions that collectively make it, and of the fact that those institutions represent national governments (the Council of Ministers) and include a democratic element (European Parliament). They state that “it is at the heart of the … Union’s legitimacy that decisions reached by the Council of Ministers, in conjunction with the European Parliament, are given effect” (para 164). Lords Neuberger and Mance amplify their point with reference to the “fundamental principle of European law” — legal certainty. They quote the CJEU’s own words about the importance of this principle: “in particular, that rules should be clear and precise, so that individuals may ascertain unequivocally what their rights and obligations are and may take steps accordingly” (para 165). This is not a uniquely European principle, of course. Lord Bingham was in good company among British jurists to have placed it at the heart of his conception of the rule of law (at T&T 98 we record how Lord Bingham noted that this precludes “excessive innovation and adventurism by the judges”).
Having set out these basics, Lords Neuberger and Mance proceed to analyse step by step the ways in which the CJEU wilfully changed the meanings of the SEA and EIA directives so that, as we saw above, they have come to “mean” in law that which they do not in fact say. The work of Lords Neuberger and Mance is a devastating assault on the way in which the Court of Justice manipulates European law “in the interests of a more complete regulation” at the EU level and in ways which “the European legislature clearly did not intend” (para 189). The clear implication is that this is both illegitimate and contrary to the CJEU’s own stated principle of legal certainty.
There was nothing in the SEA or EIA directives themselves which threatened any norm of the UK constitutional order. But, as extended by the CJEU, those directives came to pose a direct threat to the separation of powers and to parliamentary sovereignty in the sense that it is not for the courts to engage in “close scrutiny of the operations of Parliamentary democracy” (para 202). What underpins the European Union is “the principle of mutual trust” (ibid). Likewise, what EU law relies upon is “the co-operative relationship” between the CJEU and national courts such as the Bundesverfassungsgericht and the UK Supreme Court. The UKSC’s stern words for Luxembourg are designed to remind the Court of Justice of these basic principles.
Not before time, in my view.
The powers of Parliament
The powers of select committees are back in the news, owing to ongoing controversies about energy pricing, the so-called “plebgate” affair, and the like.
What select committees do, and how they do it, are matters which are critical to a proper understanding of the ways in which Parliament performs its constitutional job of holding ministers and officials to account.
So here are three recent sources, which may help readers navigate their way through the issues.
First, a blog post by an MP who is a member of the Commons Public Accounts Committee: here.
Secondly, a pamphlet published last year on the legal powers of Commons select committees: here.
Finally, the most recent word from the Commons Liaison Committee, which is the Committee in the Commons that takes the lead on matters relating to the powers, effectiveness and resources of select committees in that House: here.
All of the above are focused on the committees in the Commons, but remember that the House of Lords also has a series of powerful select committees, and that committee work is a core component too of the functioning of the devolved legislatures.
A fourth source has been pointed out to me — for which many thanks. It is chapter 3 of a report published earlier this year on parliamentary privilege. The report can be found here.
For once, it’s Wales that sets the devo pace
I don’t normally do cross-overs from my political blog on the Scottish independence referendum onto this blog, but public law students in all parts of the UK (and, indeed, elsewhere) may be interested in last week’s big Government announcement in Cardiff. You can read my take on it here.
This month in the constitution
In UK constitutional law this month we’ve seen two important decisions from the Supreme Court and a series of highly critical reports from parliamentary committees on what is probably the most significant Government Bill (from a constitutional point of view) in this session of Parliament. This post summarises each.
1. On the relation of common law to Convention rights
Osborn v Parole Board  UKSC 61 concerns an elementary aspect of the rules of natural justice, otherwise known as the duty to act fairly: namely, when does fairness require that a public body hold an oral hearing before deciding a matter? (On the duty to act fairly, see T&T pp 699-710.) Oftentimes fairness will not demand an oral hearing, but sometimes it will. In Osborn the Supreme Court ruled that “it is impossible to define exhaustively the circumstances in which an oral hearing will be necessary” but that, in the case of the Parole Board at least, the two most important factors are “the facts of the case” and “the importance of what is at stake”. Where there is a dispute as to the facts, or where assertions as to the facts require explanation in order to test their credibility, an oral hearing will be necessary. The purpose of an oral hearing, we further learn, is not merely to assist the Parole Board in its decision-making, but is also to reflect parties’ legitimate interests in being able to participate in decisions having important implications for them, where the party has “something useful to contribute”. Naturally, a body such as the Parole Board should “guard against any temptation to refuse oral hearings as a means of saving time, trouble and expense”.
All of this is rather axiomatic and, as ever with the “rules” of natural justice, the principles are easier to state than to apply. What is of interest, however, in the judgment of the Court is the way the matter is framed. The claimant’s argument in the litigation — that the Parole Board had acted unfairly in his case — was focused on his Convention rights (Article 5(4) of the Convention: see T&T p 753). Lord Reed, giving the judgment of the Court, stated baldly but correctly that this approach “does not properly reflect” the relationship between domestic law and Convention rights (para 54). It was an “error”, said Lord Reed, to “suppose that because an issue falls within the ambit of a Convention guarantee, it follows that the legal analysis of the problem should begin and end with Strasbourg case law” (para 63). One should, on the contrary, begin with the principles of domestic law. There is a double message here. Advocates preparing cases for argument should take care to base their submissions on domestic and common law claims where they can, resorting to arguments based on Convention rights only where necessary. But, at the same time, politicians and other commentators who consider that all their irritations with human rights or public law are the fault of the Human Rights Act and the ECHR should think again. The common law, Lord Reed reminds us, is more than capable of being a robust and potent source of protection for our fundamental rights (see paras 58-62 and the case law cited therein).
In considering the domestic legal principles of fair hearings, Lord Reed took the opportunity to clarify three matters. First, the role of the court in a natural justice case is not to review on Wednesbury grounds whether the procedure adopted by the decision-maker was reasonable: it is to determine for itself whether a fair procedure was followed (and not merely to review the reasonableness of the decision-maker’s judgment of what fairness required) (para 65). Secondly, the purpose of procedural fairness is not merely to help achieve better decisions (an instrumental purpose), but is also intrinsically valuable in terms of (a) “avoiding a sense of injustice” that a party may otherwise feel (para 68) and (b) promoting the rule of law (para 71). Thirdly, Lord Reed made the point that the costs of not holding oral hearings may be greater than the costs of holding them (para 72).
2. On prisoners’ right to vote
R (Chester) v Secretary of State for Justice and McGeoch v Lord President  UKSC 63 is one of those curious cases which both parties lost. Chester and McGeoch are convicted murderers, serving long terms of imprisonment, who claimed that their disenfranchisement whilst incarcerated breaches various rights of theirs. They sought remedies in the face of the Government’s “continuing delay” in implementing the ECtHR’s infamous decision in Hirst in 2005 that the UK’s rules as to prisoner disenfranchisement violate the right to vote, a right which the Strasbourg Court has read into Article 3 of the First Protocol to the Convention (“A3P1”) and which that Court has extended to prisoners. (On Hirst and related matters see T&T pp 80 and 283.) The claimants also sought to argue that European Union law was engaged (and breached) in that they had rights under the EU Treaties to vote in local, devolved and European elections. A panel of seven Supreme Court justices was unanimous in ruling that the claimants were entitled to no fresh relief under the HRA/ECHR, that there was no breach of EU law in either of their cases, and that no reference on the points of EU law should be made to the Court of Justice in Luxembourg. A resounding failure, then, for the claimants and their legal teams.
On the other hand, however, the Government did not get want they wanted either. The Government’s case was argued by the Attorney General himself. He urged that the Supreme Court should decline to follow the ECtHR’s judgments in Hirst and Scoppola v Italy (2013) 56 EHRR 19 and should rule that, under the HRA, Convention rights do not include the right of a convicted prisoner to vote in elections. The current UK Government are of the view that the ECtHR was wrong in Hirst. Their predecessors in office shared this view. But the Supreme Court refused the Attorney General’s invitation to depart from Hirst. Lord Mance, giving the lead judgment, gave the following reasons.
In Horncastle (T&T pp 768-9) and in Pinnock (T&T pp 769-70) the Supreme Court made plain that it will not always follow where Strasbourg has led. In Chester and McGeoch, Lord Mance indicated that the purpose of the domestic courts occasionally departing from Strasbourg authority is to engage Strasbourg in dialogue “in the confidence that the reasoned expression of a diverging national viewpoint will lead to a serious review of the position in Strasbourg” (para 27). But “there are limits to this process”, particularly where (as here) there are not one but two recent judgments of the Grand Chamber on the point at issue. In such circumstances it would have to involve “some truly fundamental principle of our law or some most egregious oversight or misunderstanding” for a domestic court not to follow Strasbourg authority. The Attorney General had sought to argue that Hirst and Scoppola did not constitute a “clear and consistent line of decisions”; that in Hirst especially the ECtHR had “failed to respect” the UK’s wide margin of appreciation (para 30); that Parliament had considered the matter in detail and had concluded overwhelmingly that the law should not be changed (see the Commons debate of February 2011, references in T&T at p 283); and that in any event the ECtHR had mischaracterised the nature of the UK’s ban on prisoner voting (para 33). Lord Mance described these as “forceful submissions” (para 34) but held nonetheless that the Court should follow Hirst: it would “exaggerate” the matter, he said, to regard prisoner voting as going to some “fundamental substantive or procedural aspect of our law” (para 35). Such a fundamental matter would have to be at stake before the court could justify departing from Strasbourg authority.
Of importance in Chester and McGeoch was the fact that, even if Parliament amends the law to allow some convicted prisoners to vote, it will surely not amend the law — and will surely not be required by European human rights law to amend the law — so as to extend the franchise to all convicted prisoners. Those convicted of the most serious offences, and those sentenced to the longest terms of imprisonment, will continue to be disenfranchised. This will include murderers such as the two claimants in this case. For other, lesser, offences and in respect of other, shorter, sentences, Lady Hale said that “the arguments for and against … are quite finely balanced” (para 91). On the one hand, she could “see the logic of the Attorney General’s argument, that by deciding an offence is so serious that it merits a custodial penalty, the court is also deciding that the offence merits exclusion from the franchise for the time being” (para 92). On the other hand, she declared that she had “some sympathy for the view of the Strasbourg court that our present law is arbitrary and indiscriminate” (para 98). With this latter sentiment Lord Clarke agreed (paras 109-10).
Lord Sumption offered a different perspective. First of all, and quite refreshingly, he pointed out that “the present issue has nothing whatever to do with the protection of minorities”. “Prisoners,” he said, “belong to a minority only in the banal and legally irrelevant sense that most people do not do the things which warrant imprisonment by due process of law” (para 112). Secondly, he sought to unpick the notion that the UK’s ban is arbitrary. The argument here is that you may be sentenced, for example, to a 28-day term of imprisonment. If that term is in January 2015 you will not be disenfranchised, as there is no election at that time. But if it is in May 2015 you will be, as the next UK general election will occur that month. Of this alleged arbitrariness, Lord Sumption was dismissive. He said: “I decline to regard it as any more significant than the fact that [the term of imprisonment] may coincide with a special anniversary, a long anticipated holiday or the only period of fine weather all summer” (para 115). Whether these analogies are apt, however, may be open to doubt. Voting may be a basic right, whereas the enjoyment of anniversaries, holidays or good weather clearly is not.
Leaving this to one side, on the critical issue of whether the Court should follow the line set down in Hirst, Lord Sumption was clear. Referring to section 2 of the HRA (T&T p 766), Lord Sumption said:
“In the ordinary use of language, to ‘take into account’ a decision of the ECtHR means no more than to consider it, which is consistent with rejecting it as wrong. However, this is not an approach that a UK court can adopt, save in altogether exceptional cases. The courts have for many years interpreted statutes and developed the common law so as to achieve consistency between the domestic law of the UK and its international obligations, so far as they are free to do so. In enacting the HRA 1998, Parliament must be taken to have been aware that effect would be given to the Act in accordance with this long-standing principle. A decision of the ECtHR is more than an opinion about the meaning of the Convention. It is an adjudication by the tribunal which the UK has by treaty agreed should give definitive rulings on the subject. The courts are therefore bound to treat them as authoritative … unless it is apparent that [the ECtHR] has misunderstood or overlooked some significant feature of English (sic) law or practice …” (para 121).
Here, the matter (prisoners’ right to vote) could not be regarded as a significant, fundamental or exceptional feature of UK law. Thus, there was no justification for departing from Strasbourg’s authority.
Importantly, this is despite the fact that for Lord Sumption Strasbourg authority on the matter is odd, curious and wrong. Offering a forensic examination of the holdings in Hirst and Scoppola, Lord Sumption summarised the ECtHR’s position as follows:
“the Strasbourg Court has arrived at a very curious position. It has held that it is open to a Convention state to fix a minimum threshold of gravity which warrants the disenfranchisement of a convicted person. It has held that the threshold beyond which he will be disenfranchised may be fixed by law by reference to the nature of the sentence. It has held that disenfranchisement may be automatic, once a sentence above that threshold has been imposed. But it has also held that even with the wide margin of appreciation allowed to Convention states in this area, it is not permissible for the threshold for disenfranchisement to correspond with the threshold for imprisonment. Wherever the threshold for imprisonment is placed, it seems to have been their view that there must always be some offences which are serious enough to warrant imprisonment but not serious enough to warrant disenfranchisement. Yet the basis of this view is nowhere articulated” (para 135).
Without the decisions in Hirst and Scoppola, Lord Sumption would have held that “the question how serious an offence has to be to warrant temporary disenfranchisement is a classic matter for political and legislative judgment, and that the UK’s rule is well within any reasonable assessment of a Convention state’s margin of appreciation”.
There is much to be welcomed in Lord Sumption’s judgment, but there is one error in it which he should not be making. At para 130 he talks of the HRA having incorporated provisions of the ECHR into “English law”. The HRA is a UK statute, not one which pertains only to England and Wales. At para 137 he says of the Grand Chamber in Hirst and Scoppola that it did not overlook or misunderstand any principle of “English law”. The Representation of the People Act 1983, with which the ECtHR was concerned in Hirst, is a UK statute, not one which pertains only to England and Wales. And at para 138 he says that given the circumstances of Hirst and Scoppola, it would not be legally defensible for “an English court” to say that A3P1 has a meaning different from that set out by the Strasbourg court. Yet the appeals which the Supreme Court were deciding in Chester and McGeoch were appeals from both the English Court of Appeal and the Court of Session in Edinburgh. Sumption is a Justice of the United Kingdom Supreme Court, which is a court not only of English law. He should learn when to use the phrase “English law” and when not to. Perhaps Lords Reed and Hodge could give him some coaching?
Be that as it may, the decision of the Supreme Court in Chester and McGeoch leaves the law as the Court found it. The unwelcome, unwise and unnecessary ruling in Hirst is left intact; EU law is kept firmly away from the agonies of prisoners’ right to vote in the UK; no definitive UK judicial statement is offered as to whether (or which) convicted prisoners should be enfranchised; the matter is left for Government and Parliament. On that front, the Government’s Draft Voting Eligibility (Prisoners) Bill, published in November 2012, continues its detailed and time-consuming (foot-dragging?) pre-legislative scrutiny before a specially convened Joint Committee in Parliament. If you can bear it, watch this space, as the saga grinds on.
3. The Lobbying and Third-party Campaigning etc Bill
The legislative load in the current session of the UK Parliament includes several Bills on critical matters of public policy, but very few that touch on aspects of constitutional law. The Care Bill, the Financial Services (Banking Reform) Bill, the Children and Families Bill, and the Anti-Social Behaviour, Crime and Policing Bill, among others, are each highly significant in policy terms. But there are few provisions in these Bills that directly affect our constitutional affairs or arrangements. One current Bill of which this cannot be said is the Transparency of Lobbying, Third-party Campaigning and Trade Union Administration Bill. As well as amending aspects of trade union law, this Bill does two things of constitutional importance. It introduces a register of consultant lobbyists, and it significantly extends the scope of third-party political campaigning that will fall to be regulated by the Electoral Commission. (Third-party campaigning means campaigning by organisations other than political parties and by people other than candidates in elections.) Both the lobbying provisions, and the provisions on third-party campaigning, are controversial.
As to the former, there has been pressure for some years that the business of lobbying should be regulated and made as transparent as possible. The Bill takes tentative steps in this direction, but it really does not go very far. In-house lobbyists are left unregulated and, as the Bill stands, there will be no statutory requirement that lobbyists adhere to any code of conduct (a number of voluntary codes are in place at the moment). There is a sense that in these respects the Bill may be a missed opportunity.
More worryingly, there is grave concern that the provisions on third-party campaigning may inappropriately and disproportionately inhibit freedom of political expression. Charities, as well as trade unions, fear that they will be unwittingly caught in the newly extended regulatory framework, rendered unable to make their customary contributions to public and civic life. In part, this is because the Bill has been horribly rushed. Several provisions of the Bill have not been thought through, and there is a strong sense throughout Westminster that aspects of the Bill have been driven not by the public interest but by an unsavoury partisanship.
For these reasons, the House of Commons Political and Constitutional Reform Committee, the Joint Committee on Human Rights and the House of Lords Constitution Committee have each published highly critical reports on the Bill. At the time of writing this post, the Bill has completed its Commons stages and is about to commence its Lords stages. Once again we will be looking to the Upper House to ensure that the Government’s legislation is fit for purpose, fair and lawful.
New law student? Who to follow on Twitter, and which blogs to read
This is an invaluable guide for new law students, by Mark Elliott of the Faculty of Law at Cambridge: how to get the best out of twitter and law blogs.
Anyone who is just starting a Law degree will know that there can be a lot of reading involved. It might therefore seem counterintuitive to suggest that you should supplement the traditional sources — textbooks, articles, cases and so on — that lecturers and tutors will recommend with such things as tweets and blog posts. However, such additional resources, used wisely, can help to bring the subject to life — not least by demonstrating connections between what you are reading about in textbooks and what is going on in the real world.This is true no doubt of many areas of Law, but is, I think, particularly true of Public Law: the area in which I work, and which is the concern of this blog.
Staying up to date with the sort of information accessible via blogs and Twitter is not just about being aware of the latest case or development…
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What’s been happening to the British constitution: an overdue update
It is too long since I have posted updates on this blog. In preparation for the new teaching year, which is about to start, what follows is a summary of the leading developments in British constitutional law and practice in 2012-13. They are presented here in the order in which they would appear in Turpin and Tomkins (hereafter, T&T).
1. Ongoing debate and confusion about Bill of Rights reform
Labour’s great constitutional reforms of the 1997-2001 Parliament are coming under increasing pressure. The imbalanced way in which devolution was delivered for Scotland (see #3 below) and ongoing rows about the Freedom of Information Act (see #2 below) are part of this, but top of the bill comes the ever more bitter wrangling about the Human Rights Act. Does this legislation over-privilege liberty at the expense of tradition, authority or security? Does it give too much power to the judges? Are ministers and Parliament unreasonably constrained? These questions are being raised particularly loudly on the Conservative benches in the House of Commons, as well as in the press. The questions are not going to go away, not least because of the spectacular (and widely predicted) failure of the Bill of Rights Commission to address them properly. The report is so woeful that I won’t post a link to it here (Google it if you must); there is a brilliant commentary on the report by Dr Mark Elliott (University of Cambridge) at  European Human Rights Law Review 137 — you really don’t need to read anything else on this sorry little episode.
Two of the highest profile disputes about human rights in recent years have been the saga of prisoners’ right to vote (see T&T p 283) and the deportation of Abu Qatada (see here). The former continues to rumble on — an important judgment is expected on this matter from the UK Supreme Court in about October — and meanwhile a parliamentary committee continues to examine the matter in detail. The latter was solved, after a Treaty was agreed between the UK and Jordan, enabling the Secretary of State in July 2013 to deport Abu Qatada to Jordan without breaching human rights law.
2. Evans v Information Commissioner  UKUT 313
This is my favourite case from 2012, and not just because I was in it. This was the case brought under the Freedom of Information Act 2000 by the Guardian newspaper against seven Government departments, seeking access to correspondence between ministers and HRH The Prince of Wales. The Guardian wanted to see the extent of the Prince’s notorious “lobbying” of politicians. Access was denied and the newspaper took the matter to the Information Rights Tribunal. Because of the complexity and sensitivity of the matter, the case was heard by the Upper Tribunal, chaired by a High Court judge (Walker J). The constitutional conventions pertaining to the Heir to the Throne became central to the legal argument in the case. Expert witnesses were brought in to assist the Tribunal on these matters: Professor Rodney Brazier (University of Manchester) for the Government departments, and me for the Guardian. The Guardian won the case.
In its judgment the Tribunal examined in detail the various public interest factors which mitigated either in favour of or against disclosure, the analysis being presented in the framework of what the Tribunal understood the constitutional / conventional position to be. The judgment repays careful reading, both for its treatment of constitutional conventions and for its analysis of the public interest.
What happened next also matters, however, for the Attorney General exercised his power under FOIA s.53 to veto the Tribunal’s decision. This is a “safety valve” in the freedom of information legislation which allows ministers exceptionally to have the last word in determining what is in the public interest. The Attorney General’s exercise of the veto was unsuccessfully judicially reviewed. As well as the decision of the Tribunal, the AG’s statement of reasons as to why he was using the veto power and the Divisional Court’s judgment upholding the Attorney’s decision also repay careful reading. They will tell you much about: the relationship of law to constitutional convention; the constitutional position and powers of the Monarchy; the reasons why Prince Charles is a constitutionally controversial figure; the curious relationship of judicial to ministerial decision-making authority under the Freedom of Information Act; the meaning of that difficult phrase “the public interest”; and much else besides. You could teach an awful lot of most universities’ constitutional law courses from these sources alone! (And, for a bit of fun, look up David Aaronovitch’s account of the Brazier v Tomkins arguments in the Times, 18 October 2012, p 27).
3. Scotland etc
Where to start? On 18 September 2014 a specially extended electorate in Scotland will vote in a referendum on the question of whether Scotland should be an independent country (“specially extended” because the franchise will extend to minors: 16- and 17-year olds will be permitted to vote; prisoners will not be permitted to vote). Polls consistently show that the answer will be No, but the polls have been wrong before and informed opinion in Scotland is that it will be closer, perhaps a great deal closer, than the polls currently suggest. If there is a Yes vote, Scotland will become an independent State, leaving the United Kingdom and ending the Union with England that dates back to 1707. Were this to happen it would be the most traumatic constitutional event to afflict Britain in more than a century. I am not neutral on this — how could you be? — and should you wish to do so you can read some of my many musings on why the Unionist position should prevail on a separate blog, here.
From a UK constitutional point of view, perhaps the most interesting question is what should happen next (if the polls are to be believed), after a No vote in the referendum. Two fault-lines have emerged in the devolution “settlement” of 1997-99: first as regards the imbalances of the Scottish Parliament’s powers and secondly as regards the centre and the consequences of Scottish devolution for England. Briefly, on the first, while the Scottish Parliament has very considerable powers to spend money (and to make law), it has rather limited powers to raise money. We have extensive legislative devolution in the UK (not only in Scotland, of course) but little fiscal devolution. One of the main arguments following any No vote in the referendum will be over the extent to which the Scottish Parliament’s responsibilities for the raising of money should match its legislative and spending powers. On the second, while the basic devolutionary principle of home rule has now been accepted by all the UK’s main parties, the consequences for England and for the UK as a whole have not been. In part this is about money (the Barnett formula, and all that) — and this aspect could be made to go away if fiscal devolution takes off — but in part it’s also about the famous West Lothian Question, also known as “English votes for English laws”. On this, the March 2013 report of McKay Commission was excellent: you can read more about this here.
4. Britain and the European Union
The Conservative party’s agony over Britain’s EU membership continues. In January 2013 the Prime Minister undertook that if his party won the forthcoming 2015 general election he would seek to renegotiate the terms of the UK’s membership of the EU and then to put the result of such renegotiation to an in/out referendum. Under the leadership and direction of the Foreign Office the Government has commenced the publication of a long series of analysis papers, reviewing the current distribution of competences between the UK and the EU: you can read the first papers in the series here. No-one seems very sure what the Labour party’s position is on this matter at the moment; the Liberal Democrats are committed to the UK’s continuing membership of the EU; and the SNP wants an independent Scotland to become a Member State of the EU. Meanwhile, argument continues over the extent to which the UK should opt into or out of the EU’s various measures in the area of justice and home affairs (the most controversial of these is the European Arrest Warrant): for an overview of the issues, see here.
5. Individual ministerial responsibility
In October 2012 the Secretary of State for Transport announced that the competition to award the franchise for the West Coast mainline had been cancelled because of “significant” flaws in the procurement and tendering process. The cancellation of the process cost the public purse in excess of £50 million. A number of officials were suspended and subjected to disciplinary proceedings and the Government’s position was that the lessons to be learned were principally for civil servants rather than ministers. Yet the Transport Select Committee found that the flaws in the process were due to “failures of governance, assurance, and policy and resourcing” (para 8). These matters fall squarely within the scope of ministerial responsibility (see T&T pp 573-91), yet no minister resigned over the matter.
By contrast, the Chief Whip, Andrew Mitchell, was forced to resign from the Government in October 2012 over remarks allegedly made the previous month when he was reported to have lost his temper with a police officer guarding the gates of Downing Street. The Public Administration Select Committee was highly critical of the way this affair was investigated.
Neither episode fills one with confidence that the conventions of individual ministerial responsibility are operating effectively: that sense is only compounded when the two episodes are examined alongside one another. What is really more important: swearing at a police officer (if this is indeed what occurred) or overseeing the waste of more than £50 million of public money?
6. Collective ministerial responsibility
The extent to which coalition government is putting a strain on the constitutional rules pertaining to the collective responsibility of Government to Parliament has arisen in a number of contexts since 2010. This will be the subject of the House of Lords Constitution Committee’s major policy inquiry in 2013-14: the Committee’s call for evidence sets out the issues in summary form.
7. The civil service
For how long will the well-established values of the British civil service remain? Since the mid-nineteenth century the civil service has been permanent, politically neutral, objective and appointed on merit on the basis of open competition (see T&T pp 439-49). Ministers come and go; and are partisan. Civil servants remain to serve whichever minister is appointed to the Department; and must serve with equal loyalty ministers from all political parties. The structure of accountability that we have built on the basis of these foundations is that civil servants are responsible to their ministers; and ministers are responsible to Parliament. But this does not always work. If a civil servant (rather than a minister) wastes public money (see #5 above), for example, should Parliament not be able to question that civil servant directly? Increasingly, the House of Commons Public Accounts Committee does just that, including when it rather aggressively questioned officials from Her Majesty’s Revenue and Customs (HMRC) over certain matters pertaining to tax deals apparently struck with large corporations. When this occurs, it places strain on the traditional constitutional position that it is ministers, and not officials, who are responsible to Parliament. (HMRC may be an unusual case, however, in that there is no responsible minister: we want our tax affairs administered objectively, and so ministers are kept out of it.) The House of Lords Constitution Committee published a detailed report on the accountablity of civil servants in November 2012.
At the same time the Government launched its Civil Service Reform Plan. The Reform Plan contains proposals to extend ministers’ influence over the appointment of the most senior civil servants. Will this politicise the civil service, reducing its ability to serve governments of all colours? Or is this a necessary step towards achieving greater harmony, and therefore greater efficiency, in the co-operation which is needed between ministers and their most senior officials? For the expert verdict of the Institute for Government, which has followed this matter closely, see here.
8. National security law
One of the case-studies of liberty and the British constitution presented in T&T ch 11 is national security law. There have been significant developments in national security law in 2012-13, the most important being the passage and coming into force of the Justice and Security Act 2013. This legislation does three things. First, it makes modest reforms to the Intelligence and Security Committee, the committee which scrutinises the work of the UK’s security and secret intelligence services. Secondly, it extends the availability of closed material procedure and special advocates. And thirdly, it provides that the courts’ Norwich Pharmacal jurisdiction, famously deployed in the Binyam Mohamed case as a means of seeking access to sensitive national security information (pertaining to Mr Mohamed’s torture) can no longer be used in “sensitive” cases (as defined in the Act). (On Binyam Mohamed, see T&T pp 105-7.) This last reform may not be as controversial as might first have been thought, however, owing to the fact that in Omar the courts had in any case ruled that the approach taken in Binyam Mohamed was erroneous.
The extension of closed material procedure and special advocates is hugely controversial. On the one hand, it may enable more sensitive national security cases to be tried than would otherwise have been possible. On the other hand, however, the use of closed material procedure marks a significant inroad into what the UK Supreme Court has held is the fundamental common law principle of open justice. This is a complex subject, on which the leading judicial sources are Al Rawi v Security Service  UKSC 34 and Bank Mellat v HM Treasury (No 1)  UKSC 38. For an extended analysis, see my article on the Justice and Security Act posted on SSRN here.
9. Freedom of expression
Another of the case-studies of liberty and the British constitution presented in T&T ch 11 is freedom of expression. In the book we note that in 2008 the House of Lords upheld the restrictions imposed in the United Kingdom on political broadcasting (party political broadcasts and the like) — see the Animal Defenders International case. In April 2013, by a wafer thin nine-votes-to-eight majority, the Grand Chamber of the European Court of Human Rights agreed that the UK legislation was not in breach of Article 10 of the Convention. The opposite conclusion had been expected in a number of quarters but would have caused a row between London and Strasbourg that would make the fuss about prisoners’ right to vote look like a ripple in a teacup.
Finally, some things to look out for in the coming months:
- More fun and games with prisoners’ right to vote, as the UK Supreme Court hands down what could become a leading judgment on the matter
- A big fight on the Lord Chancellor’s plans to reform legal aid; a lesser fight also on his plans to reform judicial review in English law
- The Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Bill, which is set to have a stormy passage through Parliament
- Provisions in the planned Immigration Bill designed to qualify the way courts and tribunals have been ruling on aspects of the human rights of persons subject to immigration control (e.g. in the context of the deportation, post-sentence, of what the media like to call “foreign criminals”)
Finally finally, you can now follow me on Twitter @ProfTomkins. Not everything I tweet concerns constitutional law, but quite a lot of it does.
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