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.
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.
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.
Over on Notes from North Britain there is some legal analysis of the SNP’s independence white paper. You can read it here.
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 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.
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.