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UK Constitutional Law Association by Constitutional Law Group - 2d ago

This week’s event announcement is below.

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“Remaking the UK Constitution”

22-23 February 2019

Bonavero Instituteof Human Rights at the University of Oxford

The Bonavero Institute of Human Rights at the University of Oxford, The Bingham Centre for the Rule of Law, and The Constitution Unit at University College London are jointly hosting the conference “Remaking the UK Constitution” at the Bonavero Institute on 22nd and 23rd February 2019.  The Directors would very much like to invite you to attend the same, and if possible, circulate the invite within your institution.

Please find the formal invitation and a conference programme HERE (pdf). Please RSVP HERE.

Additionally, funding for travel and accommodation is available for doctoral students (MPhil or DPhil) working in the fields of constitutional reform or implications of Brexit or in fields closely related to the conference. Students must be based outside Oxford in order to be eligible. In order to be considered for funding, please fill in this form.

Please do not hesitate to get in touch should you have any queries.

We look forward to hearing from you.

Warm Regards,

Kate O’Regan, Director, Bonavero Institute of Human Rights, University of Oxford

Murray Hunt, Director, Bingham Centre for the Rule of Law

Alan Renwick, Deputy Director, Constitution Unit, University College London

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A key public law discussion in recent months concerns the vast number of statutory instruments (SIs) government is using to implement Brexit. Initially, it was said by government that c.800-1,000 SIs were required. That estimate has now been revised down to c.600 (while the estimated number of SIs has decreased the size of individual SIs has also increased). This aspect of the Brexit process is worthy of study for multiple reasons, perhaps most notably because of the level of democratic scrutiny that will be (realistically) provided. In this post, we introduce one aspect of Brexit SIs that, we argue, is worthy of close attention by public lawyers: the deletion of administrative functions.

Assume, delete, or coordinate?

In the UK, we are governed by a complex set of structures which exist across a range of layers. Government exists on the local, devolved, national, supranational level etc. Administrative functions—in the forms of powers and duties—exist throughout these levels. In respect of these functions, Brexit represents a process of redistributing powers and duties from the EU to domestic administrative bodies (or that is at least what is expected).

The key choice for government vis-à-vis any administrative function presently held by the EU is effectively three-fold: delete the function; assume the function on the national level (either on behalf of the UK or through the devolved nations); or continue to co-ordinate with the EU in the administration of the function. While each of these three options raise important questions of law and administration, we are concerned here with the range of administrative powers and duties government is choosing to simply ‘delete’ via SI in the course of the Brexit process.

What is being deleted?

We are already seeing some administrative functions effectively deleted. They range in their apparent significance from minor to potentially very serious. There are also partial deletions, e.g. where a power is to be assumed on the national level but requirements about how a power should be exercised are removed.

Finding examples is not an easy task: the explanatory notes attached to SIs do not necessarily explain this type of change and the content of the SIs typically makes little sense unless it is placed within the wider legislative jigsaw of which it is a piece. The following examples serve as illustrations of a wider pattern.

  • In the Consumer Protection (Amendment etc.) (EU Exit) Regulations 2018, BEIS removed access to online dispute resolution for UK consumers by revoking Regulation (EU) No 524/2013 of the European Parliament and of the Council of 21 May 2013 on online dispute resolution for consumer disputes.
  • The Explanatory Note to the Social Security Coordination Regulations, relaid in January 2019, states they have removed the requirement on the UK to make provisional payments to a claimant in the UK while a dispute is being resolved between the UK and EU member states relating to which state has the social security obligations to make payments.
  • The Equality (Amendment and Revocation) (EU Exit) Regulations 2018 retain Regulation 4(1) of the Equality Act 2010 (Amendment) Regulations 2012 which provides for the Treasury to publish a report from time to time reviewing whether women and men are receiving equal treatment in access to insurance services in the UK. However, the amending regulations removed regulation 4(3), which stated that the insurance services report must set out the objectives to be achieved by the Equality Act’s regulatory system as regards insurance services, and whether those objectives were being achieved.

There are also some trends in deletion we are observing that cut across multiple SIs and different policy areas. For instance, we are observing the deletion of articles in EU Regulations that require effective, dissuasive, and proportionate penalties. For instance, Article 5(8) of Council Regulation (EC) No. 2173/2005 provides for member states to impose effective, proportionate, and dissuasive penalties for breaches of the EU timber importation licensing scheme. This article has been deleted by the Timber and Timber Products and FLEGT (EU Exit) Regulations 2018 with no alternative penalties regime or in fact any reference to penalties inserted into Council Regulation (EC) No. 2173/2005. The justification for the removal is unknown because its removal is not recorded in the accompanying explanatory note. Similarly, Article 36(3) of Regulation (EU) No 1380/2013 of the European Parliament and of the Council on the Common Fisheries Policy is removed by the Common Fisheries Policy (Amendment etc.) (EU Exit) Regulations 2018. Article 36(3) states ‘Member States shall adopt appropriate measures for ensuring control, inspection and enforcement of activities carried out within the scope of the CFP, including the establishment of effective, proportionate and dissuasive penalties.’ Again, this omission was not noted in the explanatory note to the regulations. In an entirely different sector, the Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019 omits an EU law requirement for the imposition of effective, proportionate, and dissuasive penalties for the illicit manufacture of drug precursors. The explanatory note makes no reference to the removal of this Article, despite references to penalty provisions elsewhere in the explanatory note.

Why is deletion worthy of analysis?

SIs which, as part of the Brexit process, delete administrative functions presently held by the European Union constitute a subject worthy of analysis for multiple reasons. By the end of the process, the State may well have been redefined, with aspects of its responsibilities carved out as functions transferred from the EU to the UK are deleted. There are various—potentially very significant—practical implications of this, as demonstrated by the examples we have offered above. From a wider perspective, however, this category may also reveal something important about the difference between the governing styles and priorities of the European Union and the UK. Alternatively, it could be said that the deletion of functions may just be a government under pressure taking an easier route. If that is true, it will tell us something about the Brexit reform process and the quality of the SI legislative process in scrutinising such choices. Finally, if the category of deleted functions is large, we may find reasons to be sceptical of any suggestion—which Richard Rawlings raised the prospect of in an important recent report—that the Brexit process may lead to the ‘filling back in’ of the UK state that was, in part, ‘hollowed out’ by the transfer of power to the European Union in recent decades.

Alexandra Sinclair is a Research Fellow at the Public Law Project. She is leading on the SIFT Project, which, in partnership with the Hansard Society, is tracking qualitative trends in Brexit SIs.

Dr Joe Tomlinson is Lecturer in Public Law at King’s College London and Research Director at the Public Law Project.

(Suggested citation: A. Sinclair and J. Tomlinson, ‘Deleting the Administrative State?’, U.K. Const. L. Blog (7th Feb. 2019) (available at https://ukconstitutionallaw.org/))

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On the 10 December 2018 we launched the findings of our research project funded by Joseph Rowntree Charitable Trust (JRCT) about the next steps for a Northern Ireland Bill of Rights. The 10 December 2018 was symbolic as it marked both the 10th anniversary of the Northern Ireland Human Rights Commission’s (NIHRC) advice to the British Government (as mandated under the Belfast Agreement/Good Friday Agreement-the B/GFA) and the 70th anniversary of the Universal Declaration of Human Rights.

To help promote debate and progress the Bill of Rights, this project produced a draft model Bill of Rights based on the NIHRC’s 2008 advice. The idea was to turn the NIHRC’s recommendations into something that looked like draft model legislation. The report notes five key findings and makes 10 recommendations. It should be read in the context of the current human rights and equality crisis in Northern Ireland.

The publication of a draft legislative model Bill produced several responses. First, the draft model Bill was welcomed by participants as a meaningful contribution. Second, most participants felt that the draft model Bill did not go far enough regarding certain rights/areas and noted that the NIHRC’s advice was submitted 10 years ago. As such, while much of the advice remains persuasive and holds, and the extent to which the NIHRC included a full range of rights is impressive, the advice was also the subject of disagreement. It was, however, a compromise document then and there are areas where further thought is needed, including for example, women’s rights, including reproductive rights; stronger provisions on children’s rights; a stronger equality provision, with particular emphasis on disability and the need to protect younger people; refugee rights; and marriage equality. Although the report notes that there has been public comment about the extent of the advice, we believe this has clouded and obscured the voices of those who still believe the advice never went far enough. The advice was and remains a compromise.

A third finding is that Brexit has created a receptive environment for putting the Bill of Rights centre stage, to help ensure there is a legal framework in Northern Ireland that will assist in clarifying and underpinning social, economic and citizenship rights, among other things. In light of Brexit, the draft model Bill therefore needs to be updated and augmented to reflect the changing particular circumstances in Northern Ireland. The following rights/issues were highlighted during our discussions (some of which are impacted by Brexit): citizenship equality; freedom of movement; equivalence of rights on the island of Ireland; EU citizenship rights; and voting rights. The report also highlighted that close attention should be paid to all aspects of the B/GFA mandate when taking this work forward. The focus on the term ‘particular circumstances’ of Northern Ireland should not distract from the other aspects of the remit, for example, the need to consider ‘international instruments and experience’.

Several participants also referred to another significant source of rights protection under threat, namely the European Convention on Human Rights (ECHR) and the Human Rights Act 1998 (HRA). The British Government has committed to repeal the HRA and replace it with a British Bill of Rights; it has even referred to possible withdrawal from the ECHR. While such a threat has been delayed due to Brexit, it appears to be only temporary, and this raises the spectre of a further lowering of the threshold of rights protection and further undermining the B/GFA. The final key finding is that Brexit, combined with the repeal of the HRA and possible withdrawal from the ECHR, simply increases the need for an inclusive and comprehensive Bill of Rights.

The report then shows how a Bill of Rights could be one ‘solution’ to the plethora of current rights and equality challenges, and makes a number of recommendations including, the need for the Bill of Rights process to be acknowledged and celebrated as a significant contribution towards fostering a robust human rights culture in Northern Ireland.  As envisaged in the B/GFA the advice submitted by the NIHRC, and all associated contributions towards the creation of a Bill of Rights should inform the next steps. There is no need or desire to start from a blank page.

The report also notes that the failure to give effective domestic legal force to the concept of equal citizenship and the rights/equality components of the peace process has disturbing, ongoing and underreported consequences. It has contributed more than is often acknowledged to the societal and other pressures on the power-sharing institutions. This is what we term a ‘formalisation failure’ with respect to core concepts; the pursuant unwillingness of statutory and other institutions to intervene has left major principles of the peace process to be fought out in the political arena, with familiar and predictable outcomes. The attempt by the NIHRC to confront this trend, in its advice, has never been adequately recognised.

The Bill of Rights should be taken forward as Westminster legislation in the way provided for in the NIHRC’s advice (HRA plus). This should not prevent preparatory initiatives that seek to build momentum or provide clarification. Any such work must commence from completed documentation and not be a further exercise in prevarication, obstruction and delay. This fact is also no impediment to the Assembly and Executive advancing specific human rights and equality goals within the context of this overriding constitutional framework. In particular, the Northern Ireland Assembly and Executive should be proactive and imaginative in their work of ‘observing and implementing’ existing international human rights obligations.

The British and Irish Governments have a responsibility as co-guarantors of the B/GFA, to address this outstanding element of the B/GFA. The British Irish Intergovernmental Conference (due to meet again in Spring 2019) provides a formal setting for such work. We accept that there are competing views about the status of the process, and how it might be taken forward. However, our view is that it is a reasonable expectation, flowing from a generous and purposive reading of the B/GFA (and subsequent developments), that a Bill of Rights enacted at Westminster would be the final outcome. In other words, we agree with those who believe this is an outstanding legacy issue that requires urgent attention.

Finally, the report acknowledges that the process, since inception (officially launched on 1 March 2000) has been marked by a lack of cross-community party political consensus. That remains a major obstacle to progress, and will present a formidable challenge to, for example, any new ad hoc Assembly Committee (referred to in the leaked draft ‘agreement’ document) that is established. It was apparent throughout, however, that unionist/nationalist divisions did not always neatly map on to the views of individuals and communities. If a new political process can unlock progress and break the current stand-off then it can be tentatively welcomed, but questions will remain about how it will be structured, how participation will be ensured and, perhaps of most significance, how an acceptable outcome will be delivered.

We share the view, heard often in our discussions, that we should be ambitious for human rights and equality in Northern Ireland and that the time is right to re-open this conversation. For this to happen both the British and Irish Governments, as co-guarantors of the B/GFA, must adhere to and fulfil their international obligations to ensure the progression and the eventual implementation of a Northern Ireland Bill of Rights.

Dr Anne Smith, Transitional Justice Institute/School of Law, Ulster University

Professor Colin Harvey, Queen’s University Belfast

(Suggested citation: A. Smith and C. Harvey, ‘Where Next for a Bill of Rights for Northern Ireland?’, U.K. Const. L. Blog (6th Feb. 2019) (available at https://ukconstitutionallaw.org/))

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The Supreme Court recently handed down its decision in R (Hallam) v Secretary of State for Justice [2019] UKSC 2. It is an important and complex judgment, featuring seven separate judicial opinions and running to over 200 paragraphs. The central question was whether certain provisions of UK law concerning compensation for miscarriages of justice were compatible with the right to a fair trial under Article 6 of the European Convention on Human Rights (ECHR). Answering this required consideration of whether the provisions of the Convention were engaged at all in such cases. To confound matters, a previous Supreme Court authority – R (Adams) v Secretary of State for Justice [2011] UKSC 18; [2012] 1 AC 48 (“Adams”) – had answered “no”, but a more recent Grand Chamber decision of the Strasbourg Court – Allen v United Kingdom (app. no. 25424/09), judgment of 12 July 2013 [GC] (“Allen”) appears to have said “yes’. The Supreme Court, then, was faced with a choice: follow its own precedent or follow Strasbourg?

Section 2(1) of the Human Rights Act 1998 requires that domestic courts, including the Supreme Court, must “take into account” relevant Strasbourg jurisprudence. Much has been said on this ambiguous obligation, but the broad position is reflected in the famous Ullah principle, which mandates that the UK courts “keep pace with the Strasbourg jurisprudence as it evolves over time” (Ullah v Special Adjudicator [2004] UKHL 26; [2004] 2 AC 323, [20]). As Lord Rodger once put it: where “Strasbourg has spoken, the case is closed” (Secretary of State for the Home Department v AF [2009] UKHL 28; [2009] 3 WLR 74, [98]). Thus, the Supreme Court has abandoned precedents regarding respect to evictions by public landowners and differential treatment of prisoners in light of subsequent contrary rulings by the European Court.

Of course, as is well known, the obligation to “take into account” relevant jurisprudence does not translate into an absolute obligation to mirror all Strasbourg cases – the Supreme Court in particular has a level of discretion when deciding whether to follow Strasbourg authority. In Hallam, a majority of judges (5-2, with Lords Reed and Kerr dissenting) opted to exercise that discretion, choosing to follow domestic precedent notwithstanding the contrary European case law. The justifications provided for doing so are numerous and varied, as different judges place emphasis on different arguments. What follows is a sketch of at least six possible routes, all of which feature to some degree in Hallam, which might allow a judge to avert Strasbourg authority. The first three are now established in the case law; the latter three are much more novel (and potentially controversial).

Options 1-3

I. Inapplicability on the facts

The first way of wrangling out of Strasbourg precedent is, ingeniously, to avoid treating it as precedent in the first place. There is an element of this in Hallam; one of the arguments Lords Mance ([70]) and Lloyd-Jones ([137]-[138]) put forward is that the findings in Allen are confined to that case’s own facts and circumstances, and thus not binding in the apparently different circumstances before them in Hallam. But this approach was disavowed by the majority of the court, who (rightly) saw Allen as directly applicable in the case, and clearly at odds with the established position (see, e.g. Lady Hale at [77] and Lord Wilson at [92]).

II. Weak authority

Another route might be to suggest that an alleged authority does not, in fact, reflect Strasbourg’s true position, or that the corpus of case law forms an inconsistent, or incomplete picture. The court in Horncastle [2009] UKSC 14; [2010] 2 WLR 47 famously declared that it would only follow ECHR case law which was “clear and constant” ([14]). Allen is a judgment of the Grand Chamber, a distinction which has previously been considered to carry more authoritative weight (e.g. Horncastle, [120]; Poshteh [2017] UKSC 36; [2017] AC 624, [36]-[37]).Yet despite this, the majority of judges in Hallam attempt to paint Allen as a weak, unreliable authority; the Strasbourg position is described as “not settled” (Lord Mance, [73]), “evolving” (Lady Hale, [79]) and “inconsistent” (Lord Hughes, [126]). The minority, however, disagree; Lord Reed describes Strasbourg’s position as being backed up by “numerous Chamber judgments over the course of decades” ([175]). Indeed, it is difficult to portray a 136-paragraph Grand Chamber case, much less one which specifically addresses the position in the United Kingdom, as anything other than a definitive pronouncement.

III. Horncastle doctrine

A third option is to invoke the doctrine espoused in the Horncastle case: that is, decisions of the European Court can be departed from on those occasions where it misunderstood, misapplied or outright failed to consider some fundamental facet of UK law. In addition to Horncastle itself, the Supreme Court has drawn attention to such apparent misunderstandings in the case of Poshteh (see especially [36]), as did the Court of Appeal McLoughlin [2014] EWCA Crim 188; [2014] 1 WLR 3964. Elements of this route are also apparent in the case at hand. Lord Mance hints at the idea that Strasbourg has misunderstood the true domestic situation, suggesting that Strasbourg focused too heavily on the language of the statute rather than the reality of the law in practice ([58]). Yet, this too is questionable; as the minority suggest, it is doubtful that the high bar of the Horncastle doctrine – that an “egregious oversight or misunderstanding” is needed (per Lord Mance in Chester v Secretary of State for Justice [2013] UKSC 63; [2014] 1 AC 271) – has been surpassed here.

Options 4-6

In Pinnock [2011] UKSC 6; [2011] 2 All ER 586, Lord Neuberger suggested that, when the Strasbourg Court takes a position that is out of step with that of the domestic courts, absent the above three exit routes, “it would be wrong for this court not to follow that line” ([48]). Yet, the Court in Hallam relies on at least three more justifications for such a departure.

IV. Irrelevant to outcome

The first is put forward by Lady Hale. Although she agrees with the minority in that the European position is clear, constant and authoritative, and that it differs from the domestic position, she nonetheless refuses to modify that domestic position because she feels that the same eventual outcome – no success for the applicant – would result. Thus, it does not matter to her whether Article 6 is engaged or not, as it would not be breached on the facts. Whilst certainly pragmatic, and not necessarily unprecedented (elements of this approach can be found in her judgment in Re Northern Ireland Human Rights Commission [2018] UKSC 27), it is a novel approach. It is not clear that her conclusion – that there will not be a breach of article 6 on the facts – is as obvious as she perhaps suggests (see, e.g. Lord Wilson at [92]-[93]). In any case, coming to such a conclusion on the facts does not justify a refusal to adjudicate upon the applicability of article 6 (although, regrettably, this is something the European Court itself does on occasion: see e.g. Vo v France (app. no. 53924/00), judgment of 8 July 2004 [GC]).

V. Poor reasoning

An interesting theme throughout the majority judgments is that Strasbourg’s reasoning in Allen is poor. Lord Mance criticises the European Court for being incoherent and vague ([46], [77]) as well as for failing to sufficiently engage with previous Supreme Court authorities ([38]), and even suggests its citation of authorities is flawed ([44]). Lord Hughes laments what he views as a repeated failure to espouse the underlying principles behind the case law ([109]). Lord Wilson is perhaps most critical of all, suggesting Strasbourg’s reasoning reflects “hopeless and probably irretrievable confusion” akin to “a boat which, once severed from its moorings, floats out to sea and is tossed hopelessly this way and that” ([85]). Whilst Strasbourg’s quality of reasoning has been targeted a number of previous cases (see Horncastle ([105]) and Poshteh ([35]); and the opinion of Lord Hughes in Police Commissioner v DSD [2018] UKSC 11, [114] and [125]), Hallam represents the strongest example of that ground acting as a justification in and of itself for departing from Strasbourg.

VI. Strasbourg is wrong

A final reason for departing from Strasbourg – and perhaps the most controversial one – might be that its position is simply incorrect. The charge here is not that Strasbourg’s position is inconsistent, or unclear, or poorly reasoned, but that it is simply wrong. Although substantive criticism of this kind is not uncommon in previous cases where the Supreme Court has departed from Strasbourg authority (see e.g. Horncastle, [91]; DSD, [129]), as Lord Wilson points out, the court has never previously relied on this route explicitly ([90]). Indeed, in a number of cases, judges have expressed clear reservations about the European position but went on to adopt it anyway (see e.g. Lord Mance in DSD, Lord Rodger in Cadder v HM Advocate [2010] UKSC 43; [2010] 1 WLR 2601).

Hallam, then, seems to be the first case in which at least some judges justify a departure from clear, constant Strasbourg case law on the grounds that they simply disagree strongly with it. Lord Mance, for example, confesses that for him it is “not easy to understand” why the Strasbourg Court would adopt such its position ([40]). It is decried as unfair and unjust (Lord Hughes, [126]; Lord Wilson, [86]), and it is alleged that it produces unjustifiable case outcomes ([38]). Lord Wilson, again, is the most direct, and directly calls Strasbourg’s position “wrong” ([90]). For him, this is the primary reason which justified the departure.

Conclusion

Hallam clearly moves a number of steps away from the comparatively timid position set out in Horncastle a decade ago. But unlike in that case, the judges in Hallam all seem to pull in slightly different directions, making its significance more difficult to evaluate. Additionally, whilst the conditions in Horncastle (roughly overlapping with Options 1-3 here) have never seriously been doubted, the more intriguing justifications espoused by certain members of the court were robustly criticised by the dissenting judges. Lord Reed said this:

“I find it difficult to accept that this court should deliberately adopt a construction of the Convention which it knows to be out of step with the approach of the European Court of Human Rights, established by numerous Chamber judgments over the course of decades, and confirmed at the level of the Grand Chamber, in the absence of some compelling justification for taking such an exceptional step. For my part, I can see no such justification” ([175]).

Such a pronouncement reflects the orthodox view, and a very sensible one. But that view seemingly no longer commands a majority. Hallam, at best, generates significant uncertainty regarding the relationship between domestic courts and Strasbourg. At worst, it opens the door to a potential watering down of human rights protections, at a time when scepticism over both European influence and human rights more generally appears to be becoming more prominent.

Lewis Graham, Cambridge University

(Suggested citation: L. Graham, ‘Hallam v Secretary of State: Under What Circumstances Can the Supreme Court Depart from Strasbourg Authority?’, U.K. Const. L. Blog (4th Feb. 2019) (available at https://ukconstitutionallaw.org/)

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UK Constitutional Law Association by Constitutional Law Group - 2w ago

This week’s event announcements include:

  1. The Putney Debates 2019 – ‘The Courts: Friend or Foe?’, 1-13 March 2019
  2. Call for papers – Workshop on Constitutionalism and Disagreement, IVR 2019, 7-13 July 2019
  3. Call for papers – Workshop on Alternatives to Liberal Constitutionalism: Popular, Political, Deliberative, IVR 2019, 7-13 July 2019

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The Putney Debates 2019  The Courts: Friend or Foe?

13-14 March 2019, St Mary’s Church, Putney

Since the EU Referendum, the courts have been called upon time and again to make politically charged judgments to break the constitutional impasse. They have been branded ‘Enemies of the People’ and fêted as defenders of centuries-old constitutional principles in equal measure. 

Now, as the UK approaches the most significant change to its constitutional settlement for decades, the Oxford Foundation for Law, Justice and Society revisits for the third time the historic Putney Debates, to ask:

What role do we want for our judges in the 21st Century?

The 2019 Putney Debates will be chaired by the renowned legal commentator Joshua Rozenberg and the founder of the New Putney Debates Professor Denis Galligan.

Join us as we revisit this landmark debate on the nature and terms of the UK’s democratic future. 

Full details and registration at: www.PutneyDebates2019.co.uk. A flyer for the event can be found below.

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Call for Papers – IVR 2019 – Workshop on Constitutionalism and Disagreement

Between 7 and 13 July 2019, in Lucerne (Switzerland), upon the occasion of the IVR Conference 2019, we are organizing a special workshop on ‘Constitutionalism and Disagreement’. The workshop will examine the way in which liberal constitutionalism deals with disagreement as well as addressing normative questions about how contemporary challenges ought to be met. Do we need to modify the traditional virtues of toleration and civility? Are the accounts of public reason-giving found in theories of deliberative democracy adequate to cope with the demands of the current moment? If not, with what do they need to be supplemented? Might some of the current attacks on the liberal order possess the potential to open up possibilities that had been foreclosed by liberal conceptions of constitutionalism? These and related questions will be addressed from perspectives drawn from political, legal and moral theory (for a more detailed description of the workshop, please see HERE).

This call for papers intends to select one or two papers for the workshop. Submissions are particularly encouraged from early career academics (especially women). We kindly ask interested participants to submit an abstract (around 300-500 words) as well as the provisional title of the presentation, to f.oliveiradesousa@maastrichtuniversity.nl or a.g.latham@swansea.ac.uk, until March 1st.

We are happy to clarify any further information you might have in relation to the workshop by email. Please circulate to whomever you think might be interested.

Felipe Oliveira de Sousa (Maastricht) and Alex Latham (Swansea) (convenors)

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Call for Papers – IVR 2019 – Workshop on Alternatives to Liberal Constitutionalism: Popular, Political, Deliberative

Liberal constitutionalism is traditionally associated with limitations to majoritarian power. Put in J.S. Mill’s wording, “the people … may desire to oppress a part of their number; and precautions are as much needed against this as against any other abuse of power”. Constitutions are, under this view, the foremost example of such precautions.

Yet, as powerful as this conception has been in shaping scholarship, constitutional practices and institutional arrangements, it has met with opposition from sundry perspectives, under different labels. Some speak of popular, others of political constitutionalism. Moreover, recent developments in democratic theory show an increasing interest in deliberative constitutionalism. Finally, we are currently witnessing the rise of illiberal or populist forms of constitutionalism. It is presently not clear, however, if scholars championing these alternatives are talking with each other or past each other.
With this in the background, this workshop seeks to answer some of the following questions: what are the differences, if any, among these alternatives to traditional accounts of constitutionalism? Are they conceptual in nature, or normative? Do they endorse different principles? To the extent that they do, are they compatible to each other? How? Do they justify different institutional arrangements? If so, which?
We welcome abstracts of papers answering these and other related questions. We will also invite participants to contribute with their presented papers to an edited book we aim to publish after the workshop.

Procedure:
1. Abstracts of up to 300 words and a CV should be submitted to both convenors by February 15th, 2019. Email them to: a.cannilla@reading.ac.uk and donaldemerson.bellohutt@kuleuven.be.
2. Full versions of accepted papers should be submitted to the convenors by May 31st, 2019.

Ana Cannilla (Reading) and Donald Bello Hutt (KU Leuven) (convenors)

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On 6 December 2018, the Committee of Ministers of the Council of Europe closed the supervision of the prisoners’ voting rights cases against the United Kingdom (UK) and adopted final resolution CM/ResDH(2018)467. Thirteen years after Hirst v United Kingdom (No.2) (2006) 42 EHRR 41 (Hirst) was made final, the protracted prisoner voting stalemate is over. Case closed. Or is it?

This post provides an overview of the background context to the prisoners’ voting rights clash and assesses the Government’s administrative amendments to prisoners’ voting rights. This post will contend that the amendments are disappointing and inadequate. At the domestic level, the amendments bypassed Parliament’s involvement and at the supranational level, the Committee of Ministers’ approval of the amendments undermines the effectiveness of rights protection. It will be argued that the amendments fail to satisfy the case law of the European Court of Human Rights (ECtHR) on prisoner voting. The issue of prisoners’ voting rights therefore remains open in the UK.

Background Context

In the UK prisoners are disenfranchised upon incarceration in accordance with section 3 of the Representation of the People Act 1983 (RPA 1983). The prisoner voting ban does not include those imprisoned for contempt of court, default of a sentence,  unconvicted mental patients and prisoners on remand. In Hirst the Grand Chamber held that the UK’s ‘general, automatic and indiscriminate’ ban on prisoners’ voting, violated Article 3 of Protocol 1 (A3P1) to the European Convention on Human Rights (ECHR) [82] , [85].

The general antipathy in the UK towards enfranchising prisoners is encapsulated by David Cameron’s assertion that the thought of giving prisoners’ the right to vote made him ‘physically ill’ (HC Deb 3 November 2010, vol 517, col 921). Therefore, despite the UK’s obligation under Article 46(1) of the ECHR to abide by judgments of the ECtHR, the UK’s compliance with Hirst proved elusive and a constitutional clash between the UK and Strasbourg ensued.

The ECtHR’s approach to prisoners’ voting rights was reaffirmed in subsequent cases. In Greens and MT v United Kingdom (2011) 53 EHRR 21  (Greens and MT) the ECtHR held the UK’s non-compliance sustained the violation of A3P1 [110]. The ECtHR applied the pilot judgment procedure, suspending pending applications and the UK was given six months to introduce legislation [120] , [122]. In Scoppola v Italy (No 3) (Scoppola) (2013) 56 EHRR 19 as the third-party intervener, the UK Government challenged the Grand Chamber’s judgment in Hirst. However, the Grand Chamber resolutely reaffirmed the principles established in Hirst [96].

Despite the general hostility towards prisoners’ voting rights, the Government made some attempts to comply with the judgment in Hirst. For example, in 2012 the Ministry of Justice published the Voting Eligibility (Prisoners) Draft Bill and in 2013 the Joint Committee examined the Draft Bill and published a report which recommended that legislation should be introduced, allowing prisoners serving sentences of 12 months or less to vote. However, due to domestic opposition the proposals were not implemented and the uneasy stalemate continued. At the supranational level, the pressure on the UK to comply intensified, as in subsequent prisoners’ voting rights cases the ECtHR consistently restated the judgment in Hirst. Additionally, in 2015 the Committee of Ministers adopted an interim resolution  (CM/ResDH(2015)251) and expressed concern that the UK had failed to comply with Hirst. The Committee of Ministers called upon the UK to continue to engage in a high level dialogue to facilitate compliance with the judgment.

The Administrative Amendments

Ultimately, the enhanced dialogue between the UK and the Committee of Ministers proved productive. On 2 November 2017, the former Secretary of State for Justice, David Lidington, announced in the House of Commons that the Government intended to introduce ‘administrative changes’ to prisoner voting, with the important qualification that ‘the bar on convicted prisoners in custody from voting’ was preserved (HC Deb 2 November 2017, vol 630, cols 1007 –1008). Lidington stated that first, when an offender is sentenced to a term of imprisonment, the sentencing judge will be required to ‘make it clear’ that the prisoner would be disenfranchised. Second, prison service guidance would be amended to enable offenders released on temporary licence to vote. Lidington clarified that this amendment will enable ‘up to one hundred offenders’ to vote, but importantly, ‘none of them will be able to vote from prison’. This would primarily include prisoners serving short sentences, deemed eligible for release on temporary licence. Lidington concluded that the proposed measures complied with the judgment in Hirst ‘in a way that respects the clear direction of successive Parliaments and the strong views of the British public’ on prisoner voting.

The immediate response to Lidington’s announcement in the House of Commons was generally positive; Robert Neill MP praised David Lidington ‘on having grasped the nettle’ and Cheryl Gillan MP stated it represented an ‘elegant and sensible solution’. However, Kerry McCarthy MP noted that the change was ‘a tiny concession from the Government’ and still resulted in the deprivation of rights. Conversely, reflecting the pervading rancour that underpinned the prisoner voting clash, Philip Davies MP argued that the amendment would be ‘about as popular with the general public as finding a rattlesnake in a lucky dip’ and that the ECtHR was composed of ‘unelected, unaccountable pseudo-judges’ (HC Deb 2 November 2017, vol 630, cols 1008-1013).

On 2 November 2017, the UK Government submitted an action plan (DH-DD(2017)1229) to the Committee of Ministers, which included the proposals presented by Lidington in the Commons. Notably, the action plan added that prison guidance would be amended to make it clear that prisoners released on Home Detention Curfew can vote. Having reviewed the UK’s action plan, the Committee of Ministers announced in December 2017, that due to ‘the wide margin of appreciation’ the proposed measures satisfied the requirements established in the ECtHR’s case law and ‘strongly encouraged the authorities to implement the proposed measures as soon as possible’ (CM/Del/Dec(2017)1302/H46-39). In September 2018, the UK submitted an action report (DH-DD(2018)843) which confirmed that the UK had implemented the amendments. In December 2018 the Committee of Minsters adopted a final resolution and closed the supervision of Hirst.

Compatibility with Domestic Constitutional Principles

Lidington repeatedly emphasised that there was no change in the law, rather it was an administrative amendment to prison service guidance:

‘Labour, coalition and Conservative Governments have all taken the view that UK laws are a matter for elected lawmakers in the United Kingdom and have not enacted any change to legislation. The Conservative Government continue to believe that convicted offenders who are detained in prison should not vote’.  (HC Deb 2 November 2017, vol 630, col 1007)

Therefore, the Government cunningly avoided legislative change to the RPA 1983 and in doing so, ensured that the administrative amendments circumvented Parliament’s involvement. However, currently the RPA 1983, and as subsequently amended by the RPA 2000, does not specify that prisoners released on temporary licence are permitted to vote. Surely this should have been introduced by way of legislative amendment to the RPA 1983? Arguably, the Government capitalised on Parliament being preoccupied with other matters, such as the immensely challenging and time-consuming issues concerning Brexit. Nonetheless, due to the divisive context of prisoner voting, an amendment, however small, should have been legislative and subject to scrutiny by Parliament. The amendments are steeped in irony, as throughout the protracted prisoner voting clash, the ECtHR’s judgments on prisoners’ voting rights were criticised for failing to respect parliamentary sovereignty and democracy (HC Deb 10 February 2011, vol 523, col 501). Yet, these amendments undermine the very principles that have been lauded as fundamental. It seems that at times parliamentary sovereignty is deployed as a rhetorical device, a label which can be conveniently applied to advance the political agenda. It is submitted that this may provide evidence that a central reason for the prisoner voting clash was to safeguard the UK’s sovereignty as a state from European influence, rather than to uphold parliamentary sovereignty.

The administrative amendments illustrate how the prisoner voting clash raises questions regarding the appropriate division of power between institutions and their respective roles. In a move which was unforeseen, the executive succeeded in removing a highly contentious issue from Parliament’s scrutiny, which is perhaps a presage of growing executive power. Domestic courts also wrestled with the issue of prisoners’ voting rights. For example, in Smith v Scott [2007] CSIH 9 the court took a strong stance and made a declaration of incompatibility that section 3(1) RPA 1983 was incompatible with A3P1 [56]. However, no action was taken to remedy the declaration of incompatibility, which exposed tensions between the courts and the elected branches. In R (Chester) v Secretary of State for Justice and another; McGeoch v Lord President of the Council and another [2013] UKSC 63 [2014] AC 271  the Supreme Court declined to issue a second declaration of incompatibly, as the issue was under ‘active consideration’ by the UK Parliament [39]. Prisoner voting was firmly held to be in Parliament’s remit. Yet how would the Supreme Court view the administrative amendments? As noted, the Court adopted a deferential approach on the basis that Parliament was considering the issue. Therefore, if this issue is litigated again, it is questionable whether the Supreme Court will deem the Government’s amendments as satisfactory.

European Compliance?

This solution has been dressed up as the magic bullet that will end the intractable prisoner voting clash. Therefore, do the amendments demonstrate that the UK’s general malaise towards enfranchising prisoners has subsided? At first glance, the UK’s amendments could be regarded as positive, the UK has finally complied with its obligations under Article 46(1) ECHR. However, upon analysis, it is questionable whether the amendments comply with the judgment in Hirst. Instead, the amendments reveal how the malaise towards enfranchising prisoners persists.

In Hirst the Grand Chamber stated that although ‘the margin of appreciation is wide, it is not-all embracing’ and the RPA 1983 was disproportionate as it ‘remains a blunt instrument’ arbitrarily and indiscriminately disenfranchising prisoners, falling ‘outside any acceptable margin of appreciation, however wide that margin might be’ [82], [76]. However, under the administrative amendments prisoners continue to be indiscriminately disenfranchised, the RPA 1983 has not been amended. Therefore, it is highly questionable that providing ‘up to one hundred’ extra prisoners with voting rights would have been the compliance envisaged by the ECtHR, as the RPA 1983 still ‘remains a blunt instrument’. Further, in Greens and MT the ECtHR held that the UK ‘must introduce legislative proposals’ [115]. In Scoppola, the ECtHR stipulated that states can either ‘leave it to the courts to determine the proportionality of the measure […] or to incorporate provisions into their laws defining the circumstances in which such a measure should be applied’ [102]. Therefore, it is clear that the ECtHR considered that legislative amendment was required. Although states have a wide margin of appreciation, this minor administrative amendment does not appear to be a solution envisaged by the ECtHR.

Nevertheless, the Committee of Ministers approved the Government’s amendments and held that the measures satisfied the ECtHR’s case law on prisoners’ voting rights. However, as noted above, it seems questionable that the ECtHR would regard these amendments as satisfactory. The Committee’s approval appears incongruous with the ECtHR’s case law on prisoners’ voting rights. Could this be used to support arguments that the Strasbourg Court erred in finding that the prisoner voting ban violated A3P1 in the first place? Was it correct that the ban was held to be a blanket ban? The Committee’s endorsement of the amendments could dent the cogency of the ECtHR’s judgment in Hirst, as the amendments are so minor that the ban in the RPA 1983 remains intact and it could be questioned whether the RPA 1983 was correctly found to be disproportionate.

Despite this, as the ECtHR consistently reinforced Hirst in subsequent prisoners’ voting rights cases, the ECtHR’s position is clear and it is regrettable that the Committee regards this minor administrative amendment as compliance. It is arguably disconcerting that the institution responsible for ensuring the execution of the ECtHR’s judgments seems to have capitulated in this way. Although the Committee of Ministers repeatedly criticised the UK, ultimately the Committee hid behind the wide margin of appreciation. Arguably, this is an indication of institutional weariness. Alternatively, there might be other influencing factors. For example, arguably the climate of Euroscepticism and objections to supranational rights enforcement, forced the Committee to adopt a more deferential approach. However, this deferential approach could have detrimental consequences to the effectiveness of the ECHR and could hinder the protection of rights. Arguably, the Committee of Ministers’ acceptance of minimum compliance from a state can be just as damaging to the ECHR as failing to comply. For example, during the prisoner voting clash, concern was expressed that other states would be encouraged to follow the UK’s recalcitrant example. Whilst the Committee of Ministers did not condone the delay, the approval of the amendments might expose a chink in its institutional amour, which could be exploited by other states – demonstrating that delay can pay off, the potency of the ECtHR’s judgments can be diluted and legislative amendment avoided.

It is unlikely that this proposal will be a solution, as it seems an inevitability that this issue will litigated by UK prisoners in the ECtHR at some point in the future. If such a case arises, it will be interesting to see how the ECtHR considers the Committee of Ministers’ endorsement of the UK’s amendment, it is possible that a future clash will arise.

Conclusion

Overall, the amendments highlight the UK Government’s aversion towards prisoners’ voting rights, as the Government shirked its obligations by opting for minimum compliance. Therefore, it is not an elegant and sensible solution. Not only do the amendments undercut the UK’s democratic processes, but the right to vote and the protection of rights more generally are also undermined. It is an assault on the values to which democratic states ascribe and a hollow victory for the protection of rights. It raises a plethora of questions regarding the appropriate institutional divisions of power and roles of institutions in rights based decision making. At the European level, the robustness of the Committee of Ministers can be doubted. It is unlikely that the issue of prisoners’ voting rights in the UK is closed. The door to future litigation remains open.

Elizabeth Adams is a Ph.D. Candidate at the University of Liverpool.

(Suggested citation: E. Adams, ‘Prisoners’ Voting Rights: Case Closed?’, U.K. Const. L. Blog (30th Jan. 2019) (available at https://ukconstitutionallaw.org/))

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In a post on this blog yesterday, Andrew Denny argued that I was wrong to suggest that a money resolution, with Crown recommendation, would be needed under the Standing Orders of the House of Commons for a  provision of a Bill for the purpose of securing the postponement of the expiry of the UK’s Article 50 notification or the revocation of that notification (“a postponing or revoking provision”).

He accurately sets out the standing orders and my argument from the paper, written for Policy Exchange, in which I made the suggestion. That argument is that any postponing or cancelling provision would involve (as the published Bills for securing a postponement do) a provision for the postponement or cancellation of “exit day” (within the meaning of the European Union (Withdrawal) Act 2018). That, in turn, would mean the postponement or cancellation of the repeal of section 2(3) of the European Communities Act 1972, which is set by section 1 of the 2018 Act for exit day, that is, currently, for 29th March 2019.

Section 2(3) of the 1972 Act is the provision under which the payment of financial obligations to the EU and other related EU payments are charged directly on the Consolidated Fund. Postponing or cancelling its repeal would mean that the payments would fall to be charged directly on that Fund for longer than the existing law passed by Parliament would authorise. The inevitable prolongation of the financial burden on the public revenues would need money resolution cover.

His contrary argument rests on the proposition that section 2(3) is currently in force and that expenditure resulting from any Bill that delayed or removed the possibility of its repeal would already be authorised by section 2(3) of the 1972 Act, and so by whatever money resolution supported the Bill for that Act. He also points out that no order has yet been made to bring section 1 of the 2018 Act into force.

This contrary argument is clearly misconceived for the following reasons.

First, the fact that no order has been made to bring section 1 of the 2018 Act into force is irrelevant in determining its legal effect for financial resolution purposes. Any provision removing the potential to let the repeal take effect on 29th March 2019, or making new provision requiring or allowing it to take effect on a later date, itself creates a greater potential for expenditure and, under the way the rules have always been applied, would be sufficient to create the need for a money resolution.

The legal status quo against which the test of whether a provision of a Bill has a potential for giving rise to a new charge on the public revenues is not confined to the statute law that is already in force. It includes everything that has been enacted and could be brought into force in future.

There is, however, an even more convincing reason why that fact is irrelevant in this case. Section 1 is not just a provision that may be brought into force. It is a provision that must be brought into force by a defined time. There is a clear legal duty for the Government to bring section 1 of the 2018 Act into force before “exit day”, which (unless delayed under the power in section 20(4) of that Act) means 29th March 2019. The duty is unequivocal and derives from the House of Lords decision in the “FBU case” [1995] 2 AC 513. In that case it was held that the Government is not entitled to exercise a commencement power in a way that would frustrate the statutory intention of Parliament. In this case, the wording of section 1 of the 2018 Act makes it absolutely clear that the intention is that (subject only to section 20(4)) the repeal must come into force on 29th March 2019.

It follows that existing law provides “a speeding bullet” that removes section 2(3) of the 1972 Act from the statute book on 29th March 2019, subject only to the power for which the 2018 Act already provides in section 20(4). Andrew Denny concedes that a money resolution would be required if the authorisation given by section 2(3) and the money resolution used for that were “time-limited”. Time limiting that authorisation is exactly what section 1 of the 2018 Act does; and section 1 is the law enacted by Parliament. A postponing or revoking provision would extend the time-limit either for a fixed period or indefinitely.

Replacing a power for the Government to postpone the repeal with a duty to secure its postponement or cancellation, or giving effect to a postponement directly in a new statutory provision for which a Bill is required, would require new money resolution cover. It has always been the case that the creation of a duty to pay money out of public revenue requires a money resolution irrespective of whether it can be shown that there is already a power to make the payment.

It may be, though, that Andrew Denny has a different argument in mind. While section 2(3) has been in force, it has usually been construed for the purposes of financial procedure as “dynamic”, in the sense of being intended to apply to all payments to which it applies – even those arising by virtue of future UK legislation about the EU, such as that passed in connection with the accession of new members. The argument has been that it is the change at the EU level that has increased the expenditure, not the legislation to implement it. The inference that has been drawn is that section 2(3) originally contemplated the possibility of future EU level changes with an impact on the payments to which it related. For that reason, money resolution cover has not always been required for legislation with the theoretical effect of increasing expenditure under section 2(3) as a result of incorporating EU obligations into law. Section 2(3) expressly covers treaty obligations to make payments irrespective of whether they have been incorporated into UK law. So, the incorporation, it was said, did not trigger the charge on the public revenues.

The question could arise that the argument also applies in the case of a postponing or revoking provision because the new obligations could be said to arise from the continuation of membership, not any change to UK law.

This suggestion, though, is quite clearly wrong, because it disregards the fact that Parliament has already enacted the repeal of section 2(3) of the 1972 Act. Section 2(3), and its original money resolution cover, cannot possibly be construed as having contemplated its continuation in force after the date for its own repeal had been set, so as to cover expenditure arising from a future Bill postponing or cancelling that repeal. That is an argument that would have to “pull itself up by its own bootstraps”.

Nor can the charge on the public revenues resulting from postponing or cancelling the repeal of section 2(3) of the 1972 Act possibly be said to be attributable to the EU level change (continued membership), rather than to the proposed change in domestic law to the meaning of “exit day”.

The fallacy in the argument is easily demonstrated by asking what would happen if the 1972 Act were repealed from 29th March 2019 but the UK’s membership of the EU extended to e.g. 31st December 2019. There might be treaty obligations to make EU payments during the extension, although there would be no recognition for them as EU obligations in UK law. Nevertheless, the repeal of section 2(3) of the 1972 Act would still stop any payment obligations there were from being a charge on the Consolidated Fund. Any obligation to make payments that survived at the EU level could only be paid out of annually voted sums. They would not, and could not, be treated as charged on the Consolidated Fund. The continuation of membership would not revive a charge on the Fund, because the 1972 Act (including s.2(3)) would not be in force. Only postponing the repeal of the 1972 Act can cause the payments to be charged on the Fund; and it has always been the case that money resolution cover is essential for any provision that sums that would otherwise fall to be met out of annually voted moneys should be charged directly on the Consolidated Fund.

This article is not about whether it would or would not be a good idea to try to postpone or cancel the expiry of the UK’s Article 50 notification. It is about whether, if you have rules that support a fundamental constitutional principle, you should construe them consistently with the way they have always previously been understood, or whether you should construe them “creatively” to produce a more congenial result. My own belief is that the latter course is a route to chaos.

Sir Stephen Laws KCB, QC (Hon) was First Parliamentary Counsel 2006-2012 and is a Senior Research Fellow at Policy Exchange.

(Suggested citation: S. Laws, ‘Why a Money Resolution with Queen’s Recommendation Is Required for a Bill for the Postponing or Cancelling of “Exit Day”’, U.K. Const. L. Blog (29th Jan. 2019) (available at https;//ukconstitutionallaw.org/))

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Introduction

The on-going constitutional laboratory experiment that is Brexit has now turned to the question of whether a bill proposed by a backbench MP can be passed into law against the express opposition of the Government.  This scenario gives rise to a number of issues, including whether Parliamentary rules in the form of its standing orders, will need to be amended to enable this.  A number of commentators, including on this blog, have even considered the question of whether in those circumstances, ministers could advise the Queen to refuse Royal Assent to such a bill.  One of the most eminent of these, Sir Stephen Laws, has argued here such a situation might arise if the Speaker endorsed “… an attempt to bypass the financial Standing Orders and allowed a Bill to pass that contravened them”, a situation he describes as “potentially horrific”.

In particular he considers that legislation to produce a postponement or cancelation of the repeal of section 2(3) the European Communities Act 1972 – which makes provision for the UK’s financial obligations to the EU – would result in significant financial impact on the public purse.  Under existing standing orders, such a change in law, he argues, would require a resolution of the House recommended by the Crown.  A similar argument has been made by Joe Armitage and most recently by Vernon Bogdanor.

This post does not attempt to grapple with the wider issues around Royal Assent or whether it is in fact constitutionally proper for Parliament to seek to overrule the Executive in this manner.  Instead it focuses on the narrow (but nonetheless important) issue of whether a bill which has as its objective an extension or cancellation of the Article 50 Notice would in fact require a money resolution sponsored by the Government under existing standing orders.  The conclusion set out below is that no such resolution would be required.

Section 2(3) of the 1972 Act

The relevant wording of section 2(3) of the 1972 Act is as follows:

(3) There shall be charged on and issued out of the Consolidated Fund or, if so determined by the Treasury, the National Loans Fund the amounts required to meet any EU obligation to make payments to the EU or a member State … .

The payments made pursuant to this provision are categorised as Standing Services, as they are exempt from the usual requirement for expenditure to be voted on annually, as Parliament has, by this provision, permanently authorised such payments.  Under section 1 of the European Union (Withdrawal) Act 2018, section 2(3), and the rest of the 1972 Act, is repealed on exit day, currently 29 March 2019.  It is worth noting that section 1 is not yet in force, and will only come into force on such date as a Minister of the Crown specifies by regulations.

The Financial Standing Orders

The Standing Orders in question are SO 48 and 49:

Recommendation from Crown required on application relating to public money.

 

48. This House will receive no petition for any sum relating to public service or proceed upon any motion for a grant or charge upon the public revenue, whether payable out of the Consolidated Fund or the National Loans Fund or out of money to be provided by Parliament, or for releasing or compounding any sum of money owing to the Crown, unless recommended from the Crown.
Certain proceedings relating to public money. 49. Any charge upon the public revenue whether payable out of the Consolidated Fund or the National Loans Fund or out of money to be provided by Parliament including any provision for releasing or compounding any sum of money owing to the Crown shall be authorised by resolution of the House.

These provisions are somewhat dense, but in brief SO 49 requires for these purposes that an enactment creating new and continuing expenditure must be authorised by a resolution of the House (a so-called “money resolution”), and SO 48 stipulates that any such resolution must first be recommended by the Crown.

Erskine May describes the requirement set out in SO 48 as a “…long-established and strictly observed rule of procedure, which expresses a principle of the highest constitutional importance, that no charge on public funds or on the people can be incurred except on then initiative of the Crown” (Page 716).  Sir Stephen Laws in the above-mentioned paper justifies this principle as follows (page 7):

The electoral system itself, so far as it is a means of holding the Government accountable to the public, depends crucially on the ability of the public to hold the Government responsible for how it has used the principal lever of government – the use of public money. Removing that responsibility would undermine the whole UK constitutional system.

Is there a need for a money resolution for a bill seeking to extend or cancel the Article 50 Notice?

Sir Stephen Laws’ argument is as follows:

It follows that any legislation to produce a postponement of the repeal [of section 2(3)], or its cancellation, will revive that provision (if only temporarily) and so be changing the law in a way that potentially carries a very substantial financial burden on the exchequer. It may be that the expenditure would continue under the proposals for a transition period, but there is no legislation for that yet in place and it cannot be taken into account.

The problem with this argument is that it overlooks the actual words of SOs 48 and 49.  They refer to the authorisation of, or a motion for, “a charge on the public revenue”.  Here, the charge on the revenue permanently authorising the payments to the EU was created by section 2(3) of the 1972 Act, which would have been authorised at the time by the appropriate monetary resolution put forward by the Crown.  Until such time as the repeal of section 2(3) (and the rest of the 1972 Act) comes into effect, that charge remains in place.  That charge does not need to be “revived” as it has not yet been removed.  So a bill seeking the extension or cancellation of the Article 50 Notice would not need to create a “charge upon the public revenue” under SO 48 or 49 as the repeal of section 2(3) has not yet come into effect and so payments to the EU can continue pursuant to the pre-existing charge.  Similarly, the authorisation for such charge given by the money resolution proposed by the Crown at the time also remains in place and so no further authorisation is required.

This interpretation is supported by Erskine May’s view of the requirements of SOs 48 and 49 (page 746):

Standing Orders Nos 48 and 49 apply in cases where a proposal involves a ‘charge upon the public revenue’ (see p 712). In practice, this is interpreted to mean a proposal for new or increased expenditure, which is not already covered by legislative authorisation.

In this case, the expenditure is not new – it is on-going currently – and it is already covered by legislative authorisation in the form of section 2(3) and its accompanying money resolution.  The fact that that section is currently scheduled for repeal does not alter the fact that it remains in force at this point in time.  Any payments to the EU would still cease (subject to any separate transitional provisions) if and when section 2(3) was repealed on a delayed exit day, as the authorisation for such payments flows from section 2(3), not from any legislation extending that deadline.

The position would have been different had the original charge and its accompanying authorisation been time limited: Erskine May is clear that any extension to such a time period would require authorisation by a money resolution (page 750).  But that is not the case here, as the original charge and its authorisation were indefinite.  If and when the repeal of that charge and authorisation pursuant to section 1 of EUWA comes into effect, any further payments (including pursuant to any transitional arrangements) would of course require a fresh money resolution as this would be “new expenditure”.  But for the moment, it should be possible to rely on the existing indefinite authorisation to continue the status quo.

Conclusion

In the current febrile environment, any route which could avoid an issue blowing up into yet another constitutional crisis should be welcome.  In this situation, the way through should be to regard a bill seeking to delay or extend the Article 50 deadline not as an usurpation of the Government’s control over legislation having a financial impact, but instead as simply operating under an existing authorisation pursuant to the 1972 Act.

The author would like to thank Jack Simson Caird for his comments on the original idea for this article.

Andrew Denny is a partner in Allen & Overy LLP’s London office and head of the firm’s UK Public Law Group. All opinions are his own.

(Suggested citation: A. Denny, ‘Would a Bill Seeking an Article 50 Extension Require a Money Resolution Proposed by the Government?’, U.K. Const. L. Blog (28th Jan. 2019) (available at https://ukconstitutionallaw.org/))

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Dear UKCLA members,

Thank you for your support in 2018, which has been a successful year for the Association. Your membership provides support for the blog, for the events we hold and also for the joint activities we carry out with other organisations that promote constitutional debate. A full membership gives vitality to the Association.

I would like to invite all members to renew their membership for 2019. The method of payment has changed and is no longer payable through the UCL on-line store. You will receive an email from the Membership Secretary providing details of how to pay directly to the Association bank account. Any further guidance or questions can be directed via email to the Membership Secretary, Dr Javier Oliva (Manchester University) at javier.oliva@manchester.ac.uk.

Sebastian Payne

President UK Constitutional Law Association

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Introduction

As is well known, the Government’s Withdrawal Agreement was voted down in Parliament last week by 230 votes in a ‘meaningful vote’ mandated under s 13(1) of European Withdrawal Act 2018 (‘EUWA’). This led to the Opposition tabling a formal vote of no confidence in the Government under the Fixed-term Parliament Act 2011 (‘FTPA’). This is the first formal no confidence motion tabled for a quarter of a century. The motion was defeated by 325 votes to 306 votes. The survival of the Government despite the rejection of the central plank of its programme has led one leading commentator to describe the Government as ‘in office without being in power’.

For some MPs, notably the ERG group of backbench Conservative MPs, the rejection of the Withdrawal Agreement is unproblematic. This is because, as a matter of law, Parliament gave its approval to Brexit when it passed the European Union (Notification of Withdrawal) Act 2017 and confirmed that approval when it legislated in the EUWA for the United Kingdom to leave the European Union on 29 March 2019. From a strictly legal perspective, Brexit will happen on that date by automatic operation of law unless the law is changed and extension is agreed with the EU27. This would happen with or without a deal.

It is clear that, from a purely political perspective, there is no majority in Parliament for an automatic exit from the EU without a deal. The Prime Minister has stated repeatedly that there are only three options in her view: 1) Approval of the Withdrawal Agreement 2) No Deal 3) No Brexit. Part of her pitch to MPs before the ‘meaningful vote’ was that if it was voted down, Brexit could be stopped by MPs opposed to leaving the EU. As an aside, nothing in this post should be read as an endorsement by the author of any of the three options, or any other options.

No Brexit

There is considerable evidence that a plan either to delay or to suspend the Brexit process by changing the law is indeed being formed. On the Andrew Marr programme, Hilary Benn claimed that far from being ‘plotters’, MPs who were taking steps to prevent a No Deal exit were simply ‘doing their job’.

Some MPs have taken advice from clerks of the House on a bill that would prevent a No Deal exit. A number of potential draft bills have been published, for example the European Union (Withdrawal) (No. 2) Bill, from Nick Boles MP, which would mandate the Government to seek an extension of the Article 50 process to 31 December 2019. Yvette Cooper MP has proposed another.

Under normal circumstances, any such bill would have no chance of passing into law because the Government controls the business of the House of Commons and could prevent any such bill from being passed. However, backbench MPs have the power to change the rules laying down the procedures of the House of Commons, which are governed by a series of Standing Orders, if they can secure enough votes from MPs to make those changes.

Standing Order 14

The rule that government business must be given priority was instituted in the House of Commons over a century ago following a previous example of serious political disagreement in parliament in the 1880s. Standing Order 14(1) is unequivocal.

Save as provided in this order, government business shall have precedence at every sitting.

This rule reflects an important and basic constitutional principle which is that parliament must have its say but the government must get its way. It is the government that runs the country, not parliament. We have a system of parliamentary government, not a system of parliamentary rule. Conversely, the government is severely constrained by the fact that it must always retain the confidence of parliament. This dynamic relationship is at the heart of the political constitution of the UK. The dynamism is reflected in the fact there can be changes, even significant changes, in the extent to which the House of Commons exerts itself over the executive.

The Dominic Grieve amendment

Following another amendment last week, the Government returned to the House of Commons on Monday 21 January to table a ‘neutral’ motion under s 13(6) EUWA following the defeat of its deal under s 13(1) EUWA. One leading backbench MP, Dominic Grieve QC, has proposed an amendment to the motion that would alter Standing Order 14 such that any

Motion in connection with the United Kingdom’s withdrawal from the European Union in the name of at least 300 Members of the House elected to the House as members of at least five parties and including at least 10 Members elected to the House as members of the party in Government shall stand as the first item of business.

Further, the amendment requires that any such Motion shall be proceeded with until it concludes notwithstanding any other Standing Orders.

The effect of the amendment to Standing Order 14

If the amendment passes, then a door potentially opens to a backbench bill that might be piloted through the House of Commons as long as it is ‘in connection with the United Kingdom’s withdrawal from the European Union’. Stephen Laws has argued that further procedural changes of other Standing Orders would be necessary, however, to get it through.

If such legislation is eventually passed by Parliament, it could result in significant changes such as mandating the Government to seek an extension from the EU27, legislating for a second referendum or mandating the Government to revoke the Article 50 notification which the CJEU recently held was possible in EU law without agreement of the EU27 in the case of Wightman.

One useful side effect of these discussions on changing the law is that it now appears to be generally agreed that it is not possible to revoke the Article 50 notification without fresh legislation as I argued a year ago on this blog, and as was also argued more recently by others. I also argued recently on this blog that seeking an extension could be done using the royal prerogative. If a statute mandated the government to seek an extension, that would obviously put the relevant prerogative into abeyance to that extent.

Whilst much attention is naturally being focused on the machinations that could lead to a backbench bill being passed through the House of Commons, much less attention is being paid to the other two stages through which a Bill must pass to become law. The second stage is that it must be approved by the House of Lords. The chances of the House of Lords delaying or blocking such a bill seem low.

Royal Assent

The third stage of legislation is normally a formality. It is that the Crown must agree to the legislation through the prerogative of Royal Assent. After all, the sovereign body in the United Kingdom is not Parliament, it is the Crown-in-Parliament. As every first year law student knows, the last time Royal Assent was refused was in 1708 under Queen Anne when the Scottish Militia Bill was rejected on the advice of ministers, according to Munro (54). In 1914, George V very nearly withheld his assent to the Irish Home Rule Bill but was persuaded not to, again on ministerial advice.

The general rule is that prerogatives are exercised by the monarch on the advice of the government, and in particular the Prime Minister. At first sight, therefore, it might appear that all of the work done by backbench MPs might be to no avail because even if they manage to pilot a bill through the House of Commons and the House of Lords, the Government could simply advise the Queen to refuse Royal Assent to the bill.

Anne Twomey states that in relation to royal assent ‘the predominant academic view… is that the Sovereign… must act upon the advice of responsible ministers’ (The Veiled Sceptre 622-3). She uses the example of where a new government that has the confidence of the House and ‘objects to a bill passed… by a defeated predecessor… then its advice to refuse assent to a bill should be accepted’ (624). Elsewhere she argues that where a ‘serious error is discovered in the bill’ then refusal of assent may properly be advised (643).

Twomey is therefore crystal clear that the ministerial power to give advice on royal assent has not fallen into desuetude (30-35). Royal assent is not an exception to the general rule that prerogatives are exercised on advice. Munro agrees, arguing that the more accurate ‘formulation’ may be: ‘the Crown cannot refuse assent except on advice’ (82).

Twomey gives examples of the fact that the ‘Sovereign has… frequently and recently refused assent to bills passed by the legislatures of British colonies’. Even the British Government has advised refusal – and recently. It prepared to advise the Sovereign to refuse royal assent for a bill from New South Wales in 1980 which forced the NSW Government to let it lapse to prevent a formal refusal (638). Royal assent is not automatic.

Adam Tomkins is unequivocal on the central point.

If the monarch were given clear and firm Prime Ministerial advice that she should withhold her royal assent to a Bill which had passed through the Houses of Parliament, it seems to be the case that the monarch should follow that advice. (Public Law, 63-64)

Rodney Brazier argues that the ‘only circumstances in which the withholding of royal assent might be justifiable would be where the Government itself were to advise such a course’ (de Smith & Brazier Constitutional and Administrative Law 127). Brazier’s says elsewhere (LQR 2013) that ministers might advise the Queen to refuse assent where ‘a private member’s bill had passed both Houses, perhaps on a free vote but which ministers opposed’. Twomey suggests that this scenario is ‘more likely to arise in a hung Parliament’ (624).

Twomey also points out that Lindell ‘has given some of the closest attention to this issue’ and he makes the important point that in the end parliament ‘can move a vote of no confidence’ if assent is refused. Further, Lindell ‘recognises the potential clash between’ representative and responsible government but

concluded that “the Australian Constitution embodies only a particular form of representative government known as responsible government”. The implication appears to be that where they conflict the elements of responsible government override those of representative government (625). (Emphasis in original)

Twomey makes clear that, in her view, the confidence of parliament is key, arguing that ‘ministers must maintain their status as responsible to Parliament in order to be entitled to give that advice’ (625). This must be right. The doctrine of confidence is one of the absolutely core doctrines of the UK political constitution.

Much of the academic analysis of this issue is tinged with some unreality, as Brazier points out, because it is so difficult to envisage a situation where a bill could pass through two Houses without government approval. Truly, Brexit is the constitutional gift that keeps on giving.

Counter-arguments

On the other hand, Twomey raises questions of the distinction between representative government and responsible government. The legitimacy of MPs is a function of the former (through representative elections). The legitimacy of ministers is a function of the latter (through ministerial responsibility to parliament). Normally there is no tension between the two but when there is a clash, she points out that ‘in the case of a hung Parliament, if a bill of significant importance were passed against the wishes of the government, doubts would arise about the responsibility of ministers and whether they were entitled to advise the refusal of consent’ (624).

Nick Barber, writing presciently on this blog in 2013, suggests that in an era of regular minority governments and the FTPA, refusal of royal assent could one day be a live issue. Barber connects royal assent to the representative government narrative.

But does this reason justify the inclusion of royal assent within the group of prerogative powers that are exercised on ministerial advice?  It is hard to see that it does.  Now the convention is operating against democratic values, rather than upholding them… In short, when presented with a bill that has passed through Parliament in a proper manner, the duty of the Monarch is to give assent – irrespective of the advice of her Ministers.  There is no room for discretion.

Twomey herself suggests that the Queen could disregard the government’s advice on a bill it disagreed with because ‘the government is no longer responsible, due to its defeat on what must be regarded as an important legislative measure… and the head of state is not obliged to accept the advice of ministers who have ceased to be responsible’ (646). Mark Elliott agrees.

Twomey also says the likelihood of this kind of scenario arising is ‘slim’ because those who passed the bill ‘could vote no-confidence’ in such a government. Such a scenario would be unlikely ‘unless it was clear that no alternative government could be formed and a dissolution was undesirable’ (647). It is difficult to see how these kinds of criticisms could apply to the current government which has just had its mandate from parliament confirmed when it won the recent no confidence motion.

Constitutional thin ice

It is astonishing to be living at a time when the Government could conceivably advise the Queen to exercise a prerogative that has not been used for 300 years. Furthermore, it could only happen if the House of Commons voted to suspend rules of procedure that have been in place for nigh on 150 years. We live in interesting times. It is worth pointing out, however, that even in the UK the issue of executive veto is not confined to ancient law. It will be recalled that the assent of the Crown is built into the UK devolution regimes.

The UK parliament has long been a predominantly policy-influencing legislature. The USA system, by contrast, has a predominantly policy-making legislature coupled with an executive veto. This is a further reason why the moves by backbench MPs to propose and pass bills should perhaps cause us to raise a constitutional eyebrow. The UK legislature appear currently to be edging closer to setting policy rather than influencing policy and is thereby in danger of testing the limits of long-standing and accepted constitutional norms. This may precipitate ripple effects analogous to the executive veto in the USA.

There has been far too much talk of a ‘constitutional crisis’ in the Brexit debate so far but as the exit deadline looms, it may be that a genuine crisis may yet occur. The Queen must not be drawn into the political realm by being forced to decide whether to accept ministerial advice to refuse royal assent to a bill. As Twomey points out, ‘reserve powers’ usually operate in the background and ‘operate as an incentive to appropriate behaviour by politicians’ (32). She quotes MacKinnon as describing them as ‘like a fire extinguisher – often never used but there in an emergency’ (33). It is to be hoped that these incentives prevent the Queen being put into a potentially awkward constitutional position. This approach must be the starting point for the relevant political actors.

Conclusion

Although Twomey makes clear that the majority of academic opinion believes that royal assent can be refused on ministerial advice, there is not a consensus on what should happen when these kinds of exceptional circumstances occur.  A clash between representative and responsible government raises deep questions of constitutional theory. Are ministers temporary and junior delegates of a supreme parliament or is parliament’s role simply to clothe ministerial policies in legitimating legal garments? The questions connect to the contested status of royal assent and whether it is a legislative power that is triggered by successful passage of a bill through the two Houses or an executive power effectively in the hands of the government.

Where the Queen’s duty lies in these circumstances is contested. The better view is probably that she must follow the ministerial advice. The Queen could not legitimately be criticised for following the advice of a Government that has the confidence of Parliament. All criticism ought to be directed at her Government which is democratically accountable to Parliament and whose constitutional role is to absorb such criticism instead of the monarch.

The Queen could, however, be criticised for not following such ministerial advice. Whom could disappointed elected MPs hold to account if the Queen failed to follow formal ministerial advice in the exercise of a royal prerogative? Bearing the brunt of criticism that would otherwise be directed at the monarch is possibly the most ancient function of ministers. Removing that possibility would breach norms that have stood for centuries and would be a genuine failure of democracy and accountability.

It is suggested that elected politicians must strive to avoid the scenario contemplated in this post from happening in the first place and it is to be hoped that a negotiated solution can be found in the House of Commons to ensure that even the possibility of a genuine constitutional crisis is avoided.

The author would like to thank Paul Craig, Stephen Laws, Carl Gardner, Colm O’Cinneide and Alison Young for their helpful comments on a previous draft. The usual disclaimer applies.

Robert Craig is an AHRC doctoral candidate and part time tutor in law at Durham Law School, Durham University and at LSE, Department of Law.

(Suggested citation: R. Craig, ‘Could the Government Advise the Queen to Refuse Royal Assent to a Backbench Bill?’, U.K. Const. L. Blog (22nd Jan. 2019) (available at https://ukconstitutionallaw.org/))

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