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Head of Legal | Legal comment from Carl Gardner

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 a divorce, you can get one quickly without having to accuse your partner of infidelity or unreasonable behaviour. This is the approach Ellie Cumbo took when we discussed last summer her Ground of Divorce and Dissolution Bill. It would bring in no-fault divorce for all. Notice that Ellie’s bill entirely replaces section 1 of the Matrimonial Causes Act 1973 with a single new, no-fault ground of divorce.

Bacon’s bill does not do that. It leaves section 1 of the 1973 untouched, and simply slots in a new section 1A, creating a new way of jointly petitioning for divorce. If a married couple are agreed and cooperative enough to apply jointly for divorce by this new route, then it will be granted to them on a no-fault basis. But that’s surely a very big “if”. It’s likely the great majority of divorces would be initiated unilaterally by one of the spouses, leaving him or her still having to establish infidelity or unreasonable behaviour.

Notice, too, that Bacon’s bill would also impose a new twelve-month waiting period on couples before their agreed no-fault divorce was made absolute. That must be to reassure traditionalists, but it means a couple who really both wanted a quick divorce would still have an incentive to use the old fault-based rules to get it—or even in some cases to wait till they’d been separated two years.

No doubt Richard Bacon’s bill is well judged politically, and represents the best that can be hoped for soon in terms of reform. You have to be very socially conservative to be alarmed by his proposal. If the new joint petition procedure proved popular, it might pave the way to a more thoroughgoing reform. There is often a very good argument for gradualism, and the sort of baby-steps reform Richard Bacon’s bill represents. But equally, the new process might rarely be taken up, and that might be used in future as evidence against the need for change.

I think people in England and Wales are ready for proper no-fault divorce of the sort Ellie Cumbo argues for—as ready as they were for civil partnerships, for instance, and as ready as they were for same-sex marriage. In 2016, no-fault divorce for everyone is no radical step but the obvious and genuinely moderate reform that it’s time we had. Richard Bacon’s bill seems to me as likely to delay that change as to advance it, and if I were an MP I’d be tempted to oppose it on that basis.

I don’t ascribe fault to Richard Bacon; but I think my sympathy with him may be irretrievable. Let’s have proper no-fault divorce.

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Carsten ten Brink | CreativeCommonsDoes 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, and a study in statutory interpretation.

It’s important from the outset to be clear that the judgment does not prevent the Ministry of Justice from phasing in a ban on smoking in prisons, as it plans to do. This Black case was a challenge by a prisoner who wants to take control of the timetable away from MoJ by establishing that the general ban on smoking in workplaces applies in all prisons.

Prisons—that is, old-fashioned public sector prisons run by the state—are managed by government under what are called “prerogative” powers: in other words, the state has an inherent legal power to run prisons, just as it does (for instance) to wage war. Justice Secretary Michael Gove does not need Parliament to lay down a smoking ban in prisons: he can make prisons smoke-free by changing prison rules or issuing prison service instructions. In any event, where the state owns and occupies prison buildings, it decides whether people can smoke there or not. Put all this together and you realise MoJ and prison governors can phase in a smoking ban prison by prison and cell by cell if need be, without the need for any legislation.

Indeed, legislation would be an irritant because it would lay down absolute, general rules that prison governors had to apply. In order to phase in a ban, MoJ would have to have made extensive, detailed exemptions for prisons which it would then have to lift one by one. What if a riot forced a governor to delay going smoke-free, or row the policy back? He or she would need to wait for the law to be changed.

Paul Black is a prisoner who’s not satisfied with the plan for a phased ban: he wants to establish a general legal right to be smoke-free in prison, a right that would be in place “yesterday” so to speak, under the Health Act 2006.

Section 3(2) of that Act enables ministers to make a special exemption for prisons. It’s clear that prisons are otherwise covered by the general ban, then, surely? Well, no. Parliament only intended to exempt private prisons, according to the Ministry of Justice, so that’s what the word prisons means. There’s no need to exempt traditional government-run prisons.

MoJ’s argument is based on a long-established constitutional rule that says Acts of Parliament are presumed not to bind the Crown—i.e. government departments like MoJ and the Prison Service. The rule has origins in constitutional history: I suppose it reflects some old conception of the separation of powers under which Parliament was assumed not to tread on the toes of the Crown. But it’s not an obscure doctrine that’s been hidden for centuries: it’s orthodox law. We just tend to forget about it because Parliament so often makes explicit provision for legislation to apply to government. For example, special provision gives employment rights to civil and armed servants of the Crown. There is no such explicit provision in Part 1 of the Health Act 2006.

But that’s not the end of the matter, because the Crown can be bound if the legislation necessarily implies that it is. As Mr Justice Day said in a Victorian era case, Gorton Local Board v Prison Commissioners , referred to in paras. 13 and 14 of today’s judgment,

In the absence of express words the Crown is not to be bound, nor is the Crown to be affected except by the necessary implication. There are many cases in which such implication does necessarily arise, because otherwise the legislation would be unmeaning. That is what I understand by “necessary implication”.

In a later case from the very end of the British Raj, Province of Bombay v City of Bombay (discussed 18-20), the Privy Council held that the “necessary implication” test is a high one, that should not be “whittled down”:

If … it is manifest from the very terms of the statute, that it was the intention of the legislature that the Crown should be bound, then the result is the same as if the Crown had been expressly named.

Does the Health Act smoking ban apply to prisons by necessary implication, then? Mr Justice Singh thought so in the Administrative Court (para. 49 of his judgment):

In my view, the beneficent purpose of the Act would be wholly frustrated if the Crown were not bound by it. In my view, it is clear from the terms of the statute, understood in context, that Parliament had decided that the time had come when the criminal law had to enter this area of social life; the time had passed when it could simply be left to action through the powers of employers, landowners and Government policy.

Furthermore, he said (para. 51)

the express reference to the possibility of an exemption being made in respect of prisons in section 3(2) of the Act is a statutory indicator that Parliament did envisage that, unless an exemption applied, prisons would be covered by the Act. Although there are currently 14 prisons in the private sector, and I am informed by the parties that there were about 10 private prisons in 2006, there is no indication in the statute that Parliament intended the reference in the Act to prisons to be confined to a small number of private prisons or indeed to draw any distinction between private prisons and state prisons in this context.

True, a separate section, section 23, explicitly applies a different bit of the Health Act to the Crown. Should the contrast lead us to conclude no such application was intended in the case of the smoking ban? No, said Singh J (paras. 69-70):

section 23 is to be found in another part of the Act, not in Part 1, with which the present case is concerned …

Secondly, in my judgment, section 23 is concerned to specify the exact way in which Chapter 1 of Part 3 is to bind the Crown … In my view, it was because Parliament wished to make those additional legal provisions clear that one finds section 23 in the Act.

Today the Master of the Rolls, Lord Dyson, has rejected that reasoning completely, and allowed MoJ’s appeal (para. 39):

I do not accept that the purpose of the Act would be wholly frustrated if Chapter 1 of Part 1 did not apply to the Crown. Although it is true that the 2004 White Paper (i) recognised the dangers of both active and passive smoking, (ii) noted a change in public attitude to smoking restrictions over recent years and (iii) expressed the desire to “shift the balance significantly” in favour of smoke-free environments, nevertheless it also stated that whether to ban smoking in certain establishments (including prisons) would need to be the subject of consultation. In other words, it acknowledged that it would not necessarily be appropriate to extend the smoking ban to all premises. Although the general aim of the Act was to shift the balance in favour of smoke-free environments, the Act did not require all premises to be smoke-free.

… In these circumstances, it is impossible to hold that, if Chapter 1 of Part 1 were not to apply to the Crown, the purpose of the Act would be wholly frustrated.

A key part of his reasoning was a pirnciple he drew from the older cases, that the government can be assumed to generally cooperate with Parliament’s wider policy on matters like public health (para. 40)—

the question is whether the statutory purpose would be wholly frustrated if the Crown were not bound. The case law shows that the courts are unwilling to answer this question in the affirmative in circumstances where it is to be expected that the Crown will act in the public interest so as substantially to meet the statutory objectives even if it is under no statutory obligation to do so.

As for section 23, he said (para. 42)

Section 23 demonstrates the recognition by Parliament of the need (or the desirability for clarity) of expressly stating when and how the parts intended to bind the Crown do so … the statement in section 23(1) that Chapter 1 of Part 3 binds the Crown is only explicable on the basis that the Crown would otherwise not be bound. That is a powerful pointer to the conclusion that, since there is no counterpart of section 23(1) in Part 1, the Crown is not bound by Part 1.

and as regards the exemption for “prisons” (para. 47)

I accept that, at first sight, it might seem odd to legislate only for private prisons, which represented only a small percentage of the prison estate. But there were private prisons for which the Act had to cater and the number of these might increase over time. More fundamentally, section 3(2) is of little significance as a statutory indicator when account is taken of the weight to be accorded to (i) the general rule that the Crown is not bound unless expressly or by necessary implication; and (ii) the effect of section 23 of the Act. In my view, section 3(2) does not suggest, still less indicate decisively, that the Crown is bound by Chapter 1 of Part 1.

This case is a fascinating study in statutory interpretation, showing how the meaning of legislation is neither obvious, nor determined simply by applying one or more simple “rules”. Parliament’s intention is found or constructed by a weighing of factors, including fundamental constitutional principles and the textual clues given by a reading of an Act as a whole. Exceptional lawyers such as Singh J and Lord Dyson MR may reach different conclusions.

It’ll be interesting to see what the Supreme Court makes of the case, if permission is given for an appeal. For what it’s worth, I think Lord Dyson must be right. In the meantime, Michael Gove can roll his own smoking ban; he needn’t light up Paul Black’s unwanted gift from the legislative shop.

Photo: Carsten ten Brink | CreativeCommons

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Boris MarrSince 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.

But what happened is still of interest, and we learned a little on yesterday’s Marr show from Boris Johnson. Here are his remarks, taken from the BBC transcript but edited to reflect precisely what he said (from 53’37” in the video; an audio recording is here):

BJ: … in the days leading up to that summit, and indeed during while the summit was going on, there was a huge effort going on, which I was actually involved in, to try to make sense of the so-called sovereignty clauses. And a huge intellectual effort went into creating this language by which we could somehow ensure that the—our courts, our Supreme Court, our House of Commons, could overturn judgments of the European Court of Justice if we felt, if Britain felt that they were in some way capricious or if they were going beyond the Treaty …

AM: Exceeding their powers.

BJ: Exceeding their powers. Exactly. And so finally we had some language that seemed to have some bite, and seemed to work. And I was very pleased with it, it went back to the—

AM: So at that moment might you have stayed in?

BJ: We went back to the government lawyers and the government lawyers said—just blew up. And they, you know, they said this basically voids our obligations under the 1972 European Communities Act, it doesn’t work, we can’t—and that is, I’m afraid, the reality. You cannot—you cannot express—

AM: That was the moment when you decided you had to go this way?

BJ: You cannot express the sovereignty of Parliament and accept the 1972 European Communities Act. There’s no way of doing both at the same time.

A number of interesting points arise from this. When Johnson talks about

the so-called sovereignty clauses

he surely can’t mean a special British opt-out proposed to other member states at EU level. Nothing along these lines was mentioned in President Tusk’s published proposals. So he must mean draft clauses for a Bill to be put before Parliament. He also seemed not simply to be talking about an early stage of policy work, where you’d be agreeing not on language but on the principles you were trying to achieve. He said

a huge intellectual effort went into creating this language

which makes you wonder: by whom? Was this something goverment lawyers were themselves tasked with? If so, the “clauses” would have been drafted by Parliamentary counsel, implying the project had advanced quite far. Johnson talked of his preferred language going back to government lawyers, which suggests they were involved at an earlier stage.

The alternative is that one or two politicians, perhaps helped by outside lawyers, simply drafted something themselves, perhaps after an initial policy discussion. Johnson explained that his idea was to

ensure that the—our courts, our Supreme Court, our House of Commons, could overturn judgments of the European Court of Justice if we felt, if Britain felt that they were in some way capricious or if they were going beyond the Treaty

but which did he mean? Should the Supreme Court or the Commons have this power? The plan can’t have been to give it to them both: that’d be an obvious recipe for confusion. And anyway, Parliament can already make whatever law it likes. So why couldn’t he say who the power would go to? This suggests muddled thinking.

Johnson said the power would be available where judges at the European Court of Justice were

going beyond the Treaty … Exceeding their powers.

But it’s hard to imagine how the ECJ could “exceed its powers” in the sense of ruling on a case it has no jurisdiction to hear, or imposing a fine it has no power to make. That basically never happens. He may have meant a situation where our courts think the ECJ has got EU law wrong, by interpreting the EU Treaties in too “federalist” a way.

The problem with that is that the entire EU legal order is based on the assumption that the ECJ, as the ultimate arbiter on EU law, “is always right”. All legal systems depend on this principle. Indeed there is case law from the ECJ (“case law” being a fundamentally British legal concept by the way, which has influenced EU legal thought over the years) telling us that a national Supreme Court breaches EU law if it fails to apply an ECJ ruling. So it’s no wonder Johnson tells us that

We went back to the government lawyers and the government lawyers said—just blew up.

Who were these lawyers? I wonder. If the government legal machine had done some drafting, it’s inconceivable that the Law Officers weren’t involved. In which case it may have been the Attorney General who “blew up”. But whoever the “government lawyers” were, they were basically right when

they said this basically voids our obligations under the 1972 European Communities Act, it doesn’t work

though even this has come out somewhat garbled. The legal obstacle isn’t, ultimately the 1972 Act, which can be amended. The obstacle is EU law itself. Britain can’t simply create a unilateral legal right to disobey the referee, while still playing the game. It’s a principle that would apply in just the same way if Britain were in the European Economic Area, and that applies in the World Trade Organisation, or the UN Convention on the Law of the Sea. But Johnson’s quite wrong, actually, to leap from that illogically to saying

You cannot express the sovereignty of Parliament and accept the 1972 European Communities Act

a remark that betrays a superficial understanding of Parliamentary sovereignty. Making EU law our own (which the 1972 Act does) doesn’t end Parliamentary sovereignty, any more than ratifying any other treaty does.

There was clearly some discussion—perhaps even a government draft—of clauses giving some new power (for instance) to the UK Supreme Court to depart from or question an ECJ judgment in exceptional circumstances, such as where it was thought Parliament cannot have intended EU law to change our constitutional fundamentals. That would be based in part on an (in my view misconceived) analogy with German constitutional law but also in part on reasoning by Supreme Court Justices themselves. Something along those lines could be ultimately compatible with EU membership, and might have been worked up within government.

Presumably, Johnson proposed giving that a stronger “bite” that was simply incompatible with EU law in principle, and that the PM could not agree. Talks must then have broken down, although Cameron still thought something could be announced after further work that would sway some referendum waverers. Now, even that seems to have been shelved.

What a remarkable episode.

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Albert_Venn_Dicey_in_academic_robes - Version 2As 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 this non-legal sense. That’s not Parliamentary sovereignty.

Parliamentary sovereignty is a much more specific doctrine in our constitutional law. It means there are no legal limits on the power of Parliament at Westminster to make law in our legal system; Parliament has unlimited legislative competence.

Parliamentary sovereignty is often associated with Professor A. V. Dicey (that’s him in the picture), who gave the classic definition in his Introduction to the Study of the Law of the Constitution:

The principle of Parliamentary Sovereignty means neither more nor less than this, namely, that Parliament … has, under the English constitution, the right to make any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.

Note the references to English law. It’s often said Parliamentary sovereignty isn’t part of Scottish constitutional theory, a point made in the Commons yesterday in what the Speaker called a “cerebral” and “high-minded” argument between the SNP’s Joanna Cherry QC and the Conservative, Alberto Costa.

There are two aspects to Dicey’s doctrine:

  • that Parliament can make any law whatever, and
  • that no one (including the courts) can override or set aside Parliament’s law.

When we say Parliament can make any law whatever, we really mean it. It’s a radical idea, that many law students find hard to believe at first.

Acts of Parliament can breach international law, for instance. The case students usually learn as authority for this is Mortensen v Peters, in which a Danish ship’s captain found international law did not help him in a criminal court. Contemporary proof is the fact that Parliament doesn’t let prisoners vote even though this breaches Britain’s international human rights law obligations. Parliament can ultimately lay down the law regardless of human rights; and (something that comes as a surprise to many people) the Human Rights Act 1998 allows it do so.

Nor is Parliament’s legislative competence limited in time. It can legislate retroactively, changing the legal consequences of past actions. The War Damage Act 1965 is the Act usually cited as proof, but the War Crimes Act 1991 makes the point just as well.

That Act also shows Parliament’s lawmaking power is unlimited in space: it can legislate for things done anywhere. This has very real-world applications, as shown by legislation against child sexual abuse committed abroad and against torture by officials of any nationality, anywhere in the world. It doesn’t mean authorities in any other country have to do anything. But people who break these laws can be tried here, by our courts.

All of this is in contrast to legislatures whose power is legally constrained, usually by a written constitution. In the United States, for instance, free speech is famously protected by the First Amendment to the Constitution, which says

Congress shall make no law … abridging the freedom of speech, or of the press …

Those first five words show us that Congress is not sovereign like Parliament. The US Constitution is a higher law, limiting its legislative competence. It follows that American judges review the constitutionality of Congress’s laws, and set them aside if they are in breach—something Dicey’s second principle tells us can’t happen in our own courts.

The big legal debate of modern times is whether Parliamentary sovereignty’s what it used to be, now that we’re in the EU. Laws made by the EU institutions don’t have effect in this country in their own right, but they take legal effect here because of section 2(1) of the European Communities Act 1972. Not only that: the EU law rule that EU law is supreme over national laws is also imported into our legal system by the notoriously obscure section 2(4), part of which says

any enactment passed or to be passed, other than one contained in this part of this Act, shall be construed and have effect subject to the foregoing provisions of this section

which means every Act of Parliament gives way (in the event of conflict) to EU law brought into our system by section 2(1).

The result of these provisions is that an Act of Parliament that conflicts with EU law must be disapplied by UK courts, as the Merchant Shipping Act 1988 was in the Factortame case. That was, in the early 1990s, breathtaking legal news. Dicey told us no one could override or set aside a law made by Parliament—not even the courts. Yet EU law means this now has to be done. The second limb of Parliamentary sovereignty seems no longer to hold.

Or does it? The real legal reason British judges disapplied the Merchant Shipping Act in Factortame was that the European Communities Act 1972 told them to. Without that 1972 Act, EU law would not be law in the UK at all and would not, in our legal system, have primacy. These things are true only because Parliament has willed it. So British judges did not act in right of themselves (so to speak) when setting aside the Merchant Shipping Act, or in right of EU law or of any higher principle: they were ultimately obeying Parliament’s self-denying ordinance. The whole legal story, from the incorporation of EU law (including the supremacy principle) to the suspension of the Merchant Shipping Act can be seen as an expression of Parliamentary sovereignty, not as a limitation on it. Its workings have changed a bit since Dicey, but reports of its death have been exaggerated.

This is the orthodox (and in my view correct) view of Parliamentary sovereignty today, and it’s the view declared in statute in 2011, wholly unnecessarily. Parliament can repeal the 1972 Act, with the result that EU law no longer applies in this country; or change its effect and reject a single EU law that it doesn’t like. If this were done while we were still in the EU, there’d no doubt be legal consequences in the European Court of Justice. But inside our own legal system, Parliament’s word would be law.

I’m a great fan of Parliamentary sovereignty, because of its democratic strength: it puts all constitutional power in our hands, unlike written constitutions that pay lip service to a mythical “People” but in truth empower judges.

The real danger to Parliamentary sovereignty isn’t Europe, but the gradual development of a hostile domestic judicial culture aiming to subject it to principles of higher “legality”. That’s why I fear any attempt to protect Parliamentary sovereignty by empowering judges.

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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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Julian Assange’s submission to the UN working group

February 4, 2016

We awoke to the extraordinary news that Julian Assange had announced he’d leave the Ecuadorian embassy in London tomorrow and submit to arrest if the UN working group on arbitrary detention turned down his complaint to them. Shortly afterwards, the BBC reported that the working group has come down in his favour. That would be […]

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Miranda: the Court of Appeal’s interpretation of “terrorism”

January 19, 2016

I’ve already criticised what I think is a fundamental contradiction undermining the Court of Appeal’s judgment in the Miranda case. But there’s another aspect of the judgment that I must mention, which may well be of more lasting importance. The power used to stop and question David Miranda is conferred by paragraph 2(1) of Schedule […]

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The self-contradictory Miranda appeal ruling

January 19, 2016

I’ve been following for some time David Miranda’s challenge to the lawfulness of his questioning at Heathrow airport in 2013. I wrote shortly after his detention; I covered his application for an injunction; I published his grounds for judicial review; I live-tweeted the judicial review hearing and analysed Lord Justice Laws’s judgment against Miranda; and […]

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The strange, slow death of the criminal courts charge

December 7, 2015

The criminal courts charge is, or was, one of the less well thought-through criminal justice reforms of recent years. Since April this year, courts have had a duty under section 21A of the Prosecution of Offences Act 1985 to impose a fixed charge “in respect of relevant court costs” on those convicted of offences. When […]

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