Here are the draft regulations that will (if approved by resolutions of both Houses of Parliament this morning) extend the voter registration deadline for the EU referendum. Thanks to Rich Greenhill for alerting me to their being online. Click on the bottom left of the viewer to see the draft in fullscreen view—you’ll find some detailed technical comments from me.

As I suggested yesterday the draft regulations amend Schedule 1 para. 4 of the “Conduct Regulations” with the effect of delaying the registration deadline. How they do the trick is not quite obvious on the face of it—nowhere do you see a reference to the 9th of June—because of the (I think unnecessarily) complicated way electoral legislation works. But they modify the application to the referendum of sections 13AB (I missed this in my hurried post yesterday) and 13B of the Representation of the People Act 1983 so that where the 1983 Act mentions “the appropriate publication date” (of the electoral register, that is) and “the fifth day before the date of the poll” it means “20 June 2016”. It’s a complex business (as I tried to explain yesterday) but this does indeed have the effect of extending the deadline by two days. The 20 June is (counting back from the 23rd) the third day before the date of the poll, so you can see how the draft allows registration officers two more days to complete their tasks.

Two technical legal points are worth making. First, the amendment if and when made will be the law as from the beginning of today (because regulations take effect at the start of the day they come into force) but * ** is not drafted retrospectively so as to change the law as from the beginning of 8 June. That means government lawyers are not concerned (as I was) about leaving any arguable “gap” during which some applications for registration were in a legal sense “out of time”. They must be of the view that shoving back the deadline makes all recent applications now in time, regardless of what the legal position was on 8 June. On reflection I think they’re right; while the loose end would have been automatically tied had this amendment been made yesterday, it’s not legally risky enough to be worth tying up today by something obviously retrospective.

Second, the key power being used to make this amendment is in section 4(1) of the EU (Referendum) Act 2015, which is a wide power by regulations to apply the 1983 Act to the refendum with modifications. The power includes (because of section 14 of the Interpretation Act 1978) a power to amend the modifications that have already been made—which is exactly what’s being done today.

That leads me to the legal challenge that apparently Arron Banks is considering, apparently on the basis that the draft is “unprecedented” and “unconstitutional”. It’s a very weak legal argument.

He’s relying on a misunderstanding of the legal concept of precedent, which does not mean (as many non lawyers think) that something’s lawful if it’s been done before, and unlawful if hasn’t. The doctrine of precedent is purely about the extent to which a legal ruling in a court case in the past governs what a court must do today. So the fact that extending the deadline mid-campaign may be “unprecedented” is legally irrelevant. As for the claim that it’s “unconstitutional”, well, we have no higher constitutional law. This is not a legal argument either.

Banks may be getting at an argument that section 4(1) of the EU (Referendum) Act 2015 can’t be interpreted as permitting mid-campaign changes. But nothing in the wording of section 4 implies a “no mid-campaign changes” rule, and as we’ve seen, there is a clear power to amend. Banks must ask judges to read his limitation in. I find it very hard to imagine judges interpreting the legislation as though Parliament in 2015 thought “Ministers must have wide power to adapt electoral law to the referendum” but that “If a problem with a government website arises mid-campaign that could stop people voting, ministers’ otherwise wide power does not extend to solving the problem”. I think it’s a hopeless argument, and I expect soon to hear no more of this legal challenge.

 

*On reflection, I’ve realised the regulation will not be in effect as from the start of today. That’s because they’re said (in regulation 1) to come into force when they are made, which does not specify a day, and so does not attract the rule, under section 4 of the Interpretation Act 1978, (read with section 23(1)) that regulations take legal effect at the beginning of the day on which they come into force. We won’t know what time the amendment is actually signed (and therefore made) by a minister; but won’t be able to apply the “start of the day” rule. Oddly, therefore, it won’t be quite clear how the amendment applies in time. I doubt this matters for any practical purpose, though.

**But Rich Greenhill points out to me that some instruments do actually tell us what time they were made and came into force. Maybe this will be one of them. You learn something every day!

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In response to the overloading of the website where people could register to vote in the coming EU referendum, government is apparently considering how it can extend the deadline (which expired at midnight) by a day:

Mr Cameron said people should continue to register on Wednesday, saying the government was working urgently with the commission to “make sure those who registered today and who registered last night will be able to vote in the EU referendum”.

I rarely criticise legislation: I know how hard it is to draft successfully, and how well it’s drafted by and large. The legislation in this area is seriously opaque, however—so much so that it’s hard even for someone like me (who loves trawling through and cross-referencing the small print in regulations) to work out exactly why June 7 was regarded as the deadline in the first place. The problem is that government makes legal provision for a referendum like this not by drafting bespoke legislation but by a complicated technique of applying to the referendum, with modifications, the already complicated (and often amended) legislation that governs ordinary elections.

The ordinary legislation is section 13B of the Representation of the People Act 1983; the power to apply section 13B with modifications is in section 4(1)(b)(i) of the European Union (Referendum) Act 2015; and the government did exactly this in Schedule 1, para. 4 of the European Union Referendum (Conduct) Regulations 2016. If you’ve followed that last link you’ll see exactly how opaque this all is. I think the 7 June deadline is arrived at by adding the five day period set out in section 13B(5) of the 1983 Act and the five day period in regulation 29(4) of the Representation of the People (England and Wales) Regulations 2001 plus the day on which the electoral register is published, all of which must be between the day of the deadline and the day of the referendum itself. Both 5-day periods refer to working days because of section 13B(6), which applies for these purposes section 119(1)(b) and (2). Phew.

All that convolution doesn’t normally matter much because it’s councils, government and the Electoral Commission that have to make sense of it all: they, not the man and woman in the street, are the “users” of this legislation. Nor does it mean amending the law to add a day would be a very complex undertaking. We know the five day period in section 13B of the 1983 is part of the problem, and that we have power to apply any provision in that Act with modifications, so we can simply amend Schedule 1, para. 4 of the European Union Referendum (Conduct) Regulations 2016 to change the reference to five days, so that it’s only four days instead—so allowing one more day. The only real question is whether that’s enough time in practical terms for registration officers to do what they need to do, not any huge legal question.

True, section 9(2) of the 2015 Act requires our amendment to be laid before Parliament in draft and voted through by both Houses. But both Houses are sitting today, and could make time for this; and the normal Parliamentary procedures (such as the usual requirement for a scrutiny committee to report on the draft before the House of Lords votes on it) are not legally required and can, where there’s urgency, be dispensed with. The system can move very quickly when it must.

As it happens, under the Interpretation Act 1978, an Act takes legal effect at the beginning of the day on which it comes into force (a rule that also applies to regulations because of section 23(1)) with the result that an amendment passed by both Houses and made by ministers by midnight at the end of today would actually be the law as from midnight at the beginning of today. Legally, there’d be no “gap” period in which any registration application was out of time, and no room for technical legal quibbles arising from that. More obviously retrospective legislation might be required to remove all doubt, if the amendment were made later than today.

Would the amendment spark a dramatic legal challenge from one side of the campaign or the other, risking a postponement of the referendum? I doubt it very much indeed. There’s no doubt Parliament has granted power to make such an amendment, which would therefore not be ultra vires; it could hardly be called unreasonable since the problem was caused by an unforeseen technological glitch; and there would be no unfair procedure in making it. In my view a claim that the minister making the amendment was biased (the Chancellor of the Duchy of Lancaster, Oliver Letwin, made the original regulations) would be utterly hopeless. EU law is irrelevant, and no human rights are involved either. There are, in other words, no real legal arguments on which a challenge could be made.

Even if someone were rich and daft enough to try a judicial review, I’ve no doubt the courts would deal with it very quickly, and have no truck with an application to delay the referendum.

Whether the government should do this is a separate matter, of course; were I the PM, I think I’d do so only after obtaining both official campaigns’ public consent. But that’d be my way of seeking political, not legal, cover. I’m confident government could, anyway, make the change with negligible legal risk. Let’s see if it does.

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Lords Pannick and Lester have form for writing together on human rights, and today Pannick writes on the subject in the Times, while Lester comments in The Brief.

Pannick makes fun of the long delay in producing its “Bill of Rights”:

the Chilcot inquiry into the Iraq War, and the assessment of the case for a third runway at Heathrow airport, are each the impetuous and hot-headed rush to judgment of men and women in an unseemly hurry compared to the lengthy deliberations of the Conservative party on human rights.

He thanks Adam Wagner for pointing out that

it is now ten years since David Cameron’s first proposed to replace the Human Rights Act with “a modern British bill of rights”. As leader of the Opposition he gave a speech at the Centre for Policy Studies on June 26, 2006, recognising that “there are huge difficulties and subtleties involved in drafting such a text”. It was, he said, “not a process that can be rushed”. Rushed it has not been.

That’s no surprise, says Lord Pannick:

There is of course a good reason for the delays in coming forward with concrete proposals for a British bill of rights. It is easy to express political platitudes and to pander to popular prejudice. It is much more difficult to produce coherent policies that would improve the present state of the law.

Perhaps, he says

after the referendum, the government’s proposals will finally be published.

Maybe. But as I wrote recently, Theresa May’s call for withdrawal from the European Convention on Human Rights itself may doom the proposals politically.

Lord Lester characteristically defends the Human Rights Act:

We have a good system. Unlike the rest of Europe, we do not empower our courts to strike down Acts of Parliament that are unconstitutional. What we have is more subtle and in keeping with our parliamentary tradition; all three branches of government – legislative and executive and judicial – share responsibility for respecting human rights. The courts have declaratory powers

Conservatives in particular should study what he says. They have long underestimated the HRA, which is itself an intelligently constructed, moderate British Bill of Rights that fits well into our traditional constitution, and represents reform at its best. Lester, like me, clearly hopes its planned repeal may not happen:

The House of Lords EU select committee concluded that there was a “forceful case” for a rethink. Ruth Davidson, leader of the Scottish Conservatives, openly disagrees with Cameron’s government on human rights. The much-trumpeted Bill of Rights was scarcely mentioned in the Queen’s Speech. It has become what Alice saw in Wonderland – a grin without a cat.

Let’s hope it disappears altogether.

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Today the House of Lords EU committee has published its report on “The UK, the EU and a British Bill of Rights”. It’s quite a wide-ranging report covering for example the respective scope of the ECHR and the EU Charter of fundamental rights, the enforcement of each in national law, and the impact of any Bill of Rights on EU cooperation. But its most important conclusions are on the necessity and desirability of a British Bill of Rights at all.

The British Bill of Rights, it says (Chapter 3, para. 45)

as outlined by the Secretary of State appeared a far less ambitious proposal than the one outlined in the Conservative Party manifesto

and (para. 46)

The proposals the Secretary of State outlined did not appear to depart significantly from the Human Rights Act—we note in particular that all the rights contained within the ECHR are likely to be affirmed in any British Bill of Rights. His evidence left us unsure why a British Bill of Rights was really necessary.

The committee concludes (para. 47) that

If a Bill of Rights is not intended to change significantly the protection of human rights in the UK, we recommend the Government give careful thought before proceeding with this policy.

What’s more, the committee looks in Chapter 8 at the difficulty a UK-wide Bill of Rights would face given the likely refusal of legislative consent by the Scottish Parliament, the opposition of the Welsh Assembly (whose attitude is unlikely to have changed after the recent election), the likely political row it’d trigger in Northern Ireland and the concerns of the Irish government. It concludes (para. 183)

The difficulties the Government faces in implementing a British Bill of Rights in the devolved nations are substantial. Given the seemingly limited aims of the proposed Bill of Rights, the Government should give careful consideration to whether, in the words of the Secretary of State, it means unravelling “the constitutional knitting for very little”.

None of these concerns are new: the devolution difficulties are known (see what Mark Elliott and David Alan Green have written) and the gradual dilution of the government’s plans has also been clear to see. Still, the committee’s report confirms and gives authority to the case against change.

Incidentally, in chapter 6 the committee considers and unsurprisingly rejects the idea of the German Constitutional Court as a model for Britain. Nonetheless I expect this unkillable weed of an idea will continue to be sown, even though it’d wipe out our native constitutional flora.

We’re still promised a consultation this year on whatever remains of the Bill of Rights plan; but surely all the logic of policy and politics says the idea should be shelved.

First, the committee is right: this is becoming a mouse of a policy, that’s likely to achieve little anyway. Even the more radical noises made by the previous Lord Chancellor were more sound and fury than substance. It’s not worth giving the SNP a new grievance to use against Ruth Davidson, for instance, and no Unionist can relish the idea of disturbing the relatively settled position in Ireland.

Conservatives have already essentially won the human rights “debate” in Britain and in Europe, and it’s unlikely we’ll soon see another row like the one over prison votes. The horse is safe behind the stable door, and needs no fancy new lock. But only withdrawal from the European Convention on Human Rights—the extreme option now favoured by Theresa May—could absolutely guarantee no new conflict with Strasbourg. If one breaks out, as things stand Tories can moan about “Labour’s Human Rights Act”, and they’ll be right: it is Labour that brought it in.

If, though, “Labour’s Human Rights Act” is replaced by “the Tory Bill of Rights” there would only be Tories to blame for any human rights aggro. The Conservative party would “own” human rights, and it’d do no good to claim “the Bill of Rights isn’t at fault” any more than it helped Labour to say—rightly—that Abu Qatada wasn’t kept in Britain by the Human Rights Act. So relabelling the Human Rights Act with a few tweaks would be a political blunder for Conservatives. If a few changes are needed to the Human Rights Act, it’d be far shrewder to package them as amendments, not as an entirely new and Tory human rights settlement.

Nor can human rights policy unite Conservatives. Now Theresa May is calling for withdrawal from the Convention a “British Bill of Rights”, which occupies much the same place in Tory thinking as David Cameron’s EU renegotiation, would settle nothing. The Conservative row about human rights would just go on anyway. It’s not worth Michael Gove spending political energy on legislation that even his own party might want to repeal within a year or two, whose passage would inflame Tory Eurodivision at a time when Eurohealing will surely be in order (however we vote in June), and that would unite Labour when it desperately needs things to unite around.

Conservative human rights policy can’t be settled until after the coming leadership contest, so it’s obvious the party should hold off on legislation till then. If Theresa May succeeds, she’ll face the frightening problem of how to withdraw from the ECHR while keeping the UK together, and Northern Ireland calm. Any other leader could reassess what if anything could be gained by a Bill of Rights.

Michael Gove’s most sensible policy now is to quietly drop Bill of Rights plans. It’s also the most conservative policy, with a small or a big C.

 

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Let’s have proper no-fault divorce

March 11, 2016

MPs are due today to debate the principle of Richard Bacon MP’s No-fault Divorce Bill. What’s interesting about this bill is how very unradical it is. When we talk about “no fault divorce” most of us mean taking any notion of fault out of the divorce process altogether so that when you decide you want […]

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Gove can roll his own smoking ban:
R (Black) v Justice Secretary

March 8, 2016

Does the smoking ban in public places apply to prisons? No, the Court of Appeal has said, in a judgment today. The ruling doesn’t lay down any “groundbreaking” precedent (it has no wider legal effect beyond determining that the smoking ban doesn’t apply) but is a fascinating reminder of an old-school principle of constitutional law, […]

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What Boris told us about the “sovereignty plan”

March 7, 2016

Since I wrote about David Cameron’s “sovereignty plan”, it seems to have been forgotten. It’s clear the idea was aimed at keeping politicians in the Remain camp, and has failed. @carlgardner I understand it is an utter mess, and that it is hoped we all forget it ever happened.#journalism — David Allen Green (@DavidAllenGreen) February […]

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What is Parliamentary sovereignty, anyway?

February 23, 2016

As we await David Cameron’s sovereignty plan this week, it might help to explain what we mean by “Parliamentary sovereignty”. When we talk about Parliamentary sovereignty, we don’t mean a general notion of political sovereignty—a nation’s right to be recognised as a state, and its rulers’ power within its borders. All states have sovereignty in […]

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Cameron’s sovereignty plan: what to hope for, and what to fear

February 21, 2016

David Cameron’s EU deal has been published. But there’s a missing piece of his jigsaw: a “sovereignty plan” that he hoped would reassure waverers like Boris Johnson. On today’s Andrew Marr show, the Prime Minister hinted at what this plan might be (from 49 minutes 10 seconds into the programme; a sound recording is here). […]

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The UN working group’s Assange opinion

February 5, 2016

Here’s the opinion of the UN working group on arbitrary detention, which has concluded that Britain and Sweden have arbitrarily detained Julian Assange. It calls on both countries to release him, and pay him compensation. UN Working Group on Arbitrary Detention Assange Opinion (PDF) UN Working Group on Arbitrary Detention Assange Opinion (Text) I wondered […]

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