Can Jeremy Corbyn be kept off Labour’s leadership ballot?

This is the question in the minds of practically everyone in the Labour party today, as Angela Eagle announces her leadership challenge following MPs’ recent overwhelming vote of no confidence in the leader. The future of Labour politics and, in the short term, of British politics as a whole may rest on this technical—and ultimately legal—question.

My answer is yes, he can lawfully be kept off the ballot paper that goes out to Labour members—even though the rules framework as it stands entitles him to take part in the contest. I’d better explain.

What Labour’s rule book says

The first thing we need to do is look at Labour’s rule book. Here’s a fully up-to-date, 2016 version. Click at the bottom left if you want to see it in full screen view.

The key provisions are in Chapter 4, Clause II; and we’re particularly interested in Clause II(2)(B), which deals with the nomination stage of the process. It says

B. Nomination

i. In the case of a vacancy for leader or deputy leader, each nomination must be supported by 15 per cent of the combined Commons members of the PLP and members of the EPLP. Nominations not attaining this threshold shall be null and void.

ii. Where there is no vacancy, nominations may be sought by potential challengers each year prior to the annual session of Party conference. In this case any nomination must be supported by 20 per cent of the combined Commons members of the PLP and members of the EPLP. Nominations not attaining this threshold shall be null and void.

On the face of it, it seems clear that the rules make provision for two very different situations: first, where there’s a vacancy for the leadership and second, where there’s not. There’s quite often a vacancy for the Labour leadership, the last time being when Ed Miliband resigned. We are now, though, in the second situation because Jeremy Corbyn has very much not resigned. So the relevant provision is Clause II(2)(B)(ii). By the way, the convoluted and unsatisfactory nature of these rules will I think underline the point that legislation, drafted by professional legal drafters, is in comparison clear and concise.

In my view, Clause II(2)(B)(ii) can only be read as requiring that challengers are required to be nominated by 20% of MPs and MEPs, but that the incumbent leader being challenged does not.

Mark Henderson’s advice

This is also the conclusion reach by Mark Henderson of Doughty Street Chambers, whose advice you can read below (with the odd top or bottom of a page missed in photocopying).

If you’re seriously interested in this question you simply must read Mark Henderson’s advice, which deals with the question of interpretation of these rules in much more depth than I am able to here. His advice is very thorough and well reasoned, looking in detail at the approach the courts are likely to take to a contract such as this—and the rule book is indeed in law a contract between the members of an unincorporated association called the Labour party. I agree with Mark Henderson.

I’ll now turn to some of the arguments people are making in opposition to my view and Mark Henderson’s.

Inconsistent drafting

It’s quite true that the rules are badly drafted and include some apparent inconsistencies. For instance, clause II(B)(v) says

v. Valid nominations shall be printed in the final agenda for Party conference, together with the names of the nominating organisations and Commons members of the PLP supporting the nominations

which some people will contend means that all the candidates including the incumbent must be “nominees” meeting the 20% threshold—otherwise the incumbent’s name would not be printed in the conference agenda. And clause II(C)(x) which says

x. The votes cast for each nominee shall be recorded and published in a form to be determined by the NEC as soon as possible following any election

can also be argued to suggest that all the candidates must be nominees, otherwise no one could vote for the incumbent.

But there are problems with these arguments. As far as clause II(C)(x) is concerned, the word “nominee” is used only once in clause II(C), while the word “candidate” is used three times. “Nominee” can only be a drafting error when “candidate” was intended.

By the way, we know there are simple drafting boo-boos since clause II(B)(v) still refers only to “Commons members of the PLP” rather than reflecting the change to include MEPs. I don’t think anyone would seriously try to argue that this means only MPs’ nominations count towards the threshold, in spite of the clear wording of clause II(2)(B)(ii).

More importantly—and this deals with both clause II(B)(v) and clause II(C)(x)—there is no reason to think the incumbent is not and will not be a “nominee” even without having to reach the 20% threshold. It is only potential challengers who have to reach the 20% threshold under clause II(2)(B)(ii).

Other arguments that Corbyn must meet some threshold

I’ve heard three arguments in favour of a reading requiring Corbyn to reach some “nomination threshold” of either 15% or 20%. I want to quickly deal with them before turning to what I think the actual solution is.

The “Kinnock precedent”

The last time anyone challenged an incumbent leader when there was no vacancy was in 1988, when Tony Benn challenged Neil Kinnock, a futile challenge most in the Labour party thought an unwelcome irritant that the rules should never have been permitted. Some say that, because Kinnock needed nominations then, that’s a significant “precedent”, and that we must therefore read the rules now as requiring Corbyn, too, to reach a certain threshold.

The big difficulty with this argument is that 1988 has no precedent value whatever given that the rules have been changed since then. In 1988, the rules made no distinction between the “vacancy” and “no vacancy” situations, and the changes made since have clearly all been intended to make challenging an incumbent much harder. That’s not just the increase of the threshold to 20% (it was just 5% when Tony Benn challenged) but the insertion of the words “by potential challengers” in 2010. To use 1988 as a “precedent” is like trying to argue that MPs alone should take vote in the leadership election because that was what happened when Michael Foot won in 1980. It just doesn’t work.

The “vacancy argument”

Some have argued that in the current situation there is actually a vacancy, either because of the no-confidence vote or because the mere fact of a challenge creates a vacancy. Neither argument works.

If the mere fact of a challenge in itself created a vacancy, then you’d have the bizarre situation where Angela Eagle began needing 20% but then suddenly needed only 15% instead, under clause II(2)(B)(i), either the moment she announced her challenge or when she’d already got 20%. There would never be a “no vacancy” situation and clauseII(2)(B)(ii) would have no meaning. This is obviously wrong.

Nor does the no-confidence vote in itself create a vacancy. Clause II(2)(E)(v) explains what’s meant by a vacancy situation:

E. Procedure in a vacancy …

iv. When the Party is in opposition and the Party leader, for whatever reason, becomes permanently unavailable, the deputy leader shall automatically become Party leader on a pro-tem basis. The NEC shall decide whether to hold an immediate ballot as provided under E above or to elect a new leader at the next annual session of Party conference.

Jeremy Corbyn may be out to a vegetarian lunch but he’s not “permanently unavailable” and Tom Watson is not acting leader. We must conclude that there is no vacancy.

David Allen Green’s “timing only” argument

The most ingenious and best argument I’ve read against my view is (perhaps unsurprisingly) from David Allen Green:

This approach reads the two sentences

Where there is no vacancy, nominations may be sought by potential challengers each year prior to the annual session of Party conference


In this case any nomination must be supported by 20 per cent

as doing different things, the first only imposing a nomination time limit on potential challengers while the second applies to all nominations “in this case” of no vacancy.

It’s a clever argument but I don’t think it works. Why would a time limit be imposed only on potential challengers but not on the incumbent, if he needs a certain number of nominations too? If that were right, what would trigger the incumbent’s need to reach the threshold? A potential challenger reaching it first? In that case, the incumbent might have no time to gather nominations, or might have to do so at the drop of a hat. The mere announcement of a challenge? In that case, if neither a challenger nor the incumbent achieved the threshold, Labour would have no leader. I don’t think this reading of the rules is sustainable, and Mark Henderson takes a similar view.

David has set out his thoughts here. I disagree with his reading of the rules but I agree with him on three key points: that the rules are badly drafted; that it’s open to the NEC to fill any gaps; and that any challenge by Corbyn to a well-drafted and thought-through decision by the NEC to insist on equal requirements for all candidates is unlikely to succeed. The courts will indeed be slow to intervene—but only if the NEC’s own solution does not contradict the written rules.

How to ensure that Corbyn too must obtain nominations

I can now finally turn to how the NEC can solve this. One possible option is for the interpretative question to be referred to the NEC for a conclusive ruling; but the better route is for the NEC to actually vary the rules for the contest.

A conclusive ruling from the NEC

Chapter 1 clause X(5) of the rule book provides as follows:

5. For the avoidance of any doubt, any dispute as to the meaning, interpretation or general application of the constitution, standing orders and rules of the Party or any unit of the Party shall be referred to the NEC for determination, and the decision of the NEC thereupon shall be final and conclusive for all purposes. The decision of the NEC subject to any modification by Party conference as to the meaning and effect of any rule or any part of this constitution and rules shall be final.

One option, then, is for this dispute about the meaning of the rules somehow to be referred to the NEC, which could then decide that Corbyn needs to reach the 20% threshold. On the face of it, that decision would be the end of it, since the rules say it’d be “final and conclusive”. But two things worry me about this option.

First, what constitutes a “dispute”, and who has the power to refer? I’m not sure an argument on the internet or between two members in a pub is enough. Would some constituent part of the party (a constituency Labour party, say, or an affiliated trade union) need to be in dispute with another? Chapter 1 clause VIII(4) may suggest so. And who makes the referral decision? Can either refer unilaterally? This is important because if the referral were procedurally flawed, the subsequent decision might be ruled invalid by a court, and so not “final and conclusive” at all.

Even if the procedure is impeccable, if a court held that the NEC’s ruling was a perverse one, interpreting the rules unreasonably and contrary to their true meaning, it might well decide it was not a proper “decision” at all, and so, again, not “final and conclusive”. Public lawyers will immediately recognise this as Anisminic-style reasoning. I think variation is the safer, more sustainable option.

An NEC variation of the rules

The rules about leadership elections are all contained in Chapter 4, clause II, which begins in the following way:

Clause II.
Procedural rules for elections for national officers of the Party

1. General
A. The following procedures provide a rules framework which, unless varied by the consent of the NEC, shall be followed when conducting elections for Party officers.

It’s clear from this that the current rules as laid down in clause II do not automatically apply. They need not be followed if the NEC agrees to vary them. This, in my view, is how the NEC can best resolve things.

The NEC might say that the Labour party finds itself in an unprecedented situation following the overwhelming vote of no confidence in the leader. The rules make no provision for this situation, there is dispute about how the rules should apply and the NEC thinks them unsatisfactory for the purpose. There’s a danger that the procedures could become mired in court proceedings, something no member would want. Therefore, the NEC could say that it’s decided to vary the rules to ensure a fair, transparent, reasonable procedure that is secure from challenge.

The NEC could vary the procedure however it liked, so long as it was reasonable. The big question (assuming it wanted to require the no-confidenced incumbent to seek nominations) is whether the NEC would think it reasonable to treat the post-no confidence situation as akin to a vacancy; or whether it’d see the current situation as more like a “no vacancy” challenge.

If the NEC decided it was right to treat this situation like a vacancy, it might require Corbyn (or all nominees) to obtain a 15% nomination threshold—by my reckoning, 38 MPs and MEPs out of the 230 current Labour MPs and 20 MEPs. This would enable the NEC to say it had retained either the lower threshold for the incumbent leader or even a lower threshold for him as compared with challengers. It is of course more likely that Jeremy Corbyn would obtain 38 nominations than any higher number.

Alternatively, the NEC might decide the no-confidence vote means this is a special, unforeseen and unprovided for variant of a “no vacancy” situation, and that the leader and his challengers should be treated equally. That would require both them and him to reach a 20% nomination threshold—by my reckoning, 50 MPs and MEPs. It’d be harder for Jeremy Corbyn to satisfy this.

True, this route does involve the question of who can seek the NECs “consent” to the variation. It isn’t 100% procedurally safe. But there’s no more procedural risk than’s involved in a referral for an NEC decision, and variation is legally safer. Anisminic reasoning can’t touch it because a variation would not be predicated on an unreasonable or questionable interpretation of the rule book.


I don’t think Labour’s existing rules framework can reasonably be read so as to exclude Jeremy Corbyn from the coming leadership ballot of members. I agree with Mark Henderson. There is a real danger that trying to do so based on the existing rules framework set out in Chapter 4 clause II could be successfully challenged in court.

But the rule book gives the NEC power to vary that rules framework, and it would in my view be reasonable for it to do so in this unforeseen, unprovided for and disputed situation. If it does vary the rules to require the no-confidence incumbent to reach the same nomination threshold as his challengers, I doubt the courts would intervene.


Article 50, and UK constitutional law

If you’ve been following closely news about Britain’s EU referendum and its aftermath, you’ll probably have heard of article 50 of the Treaty on European Union which makes provision for a member state to leave the EU and lays down an extendable two-year period for a withdrawal agreement.


Here it is:

1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.

A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.

5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.


There’s some debate going on between lawyers and in the media on various legal questions about the article 50 process. Is the government legally obliged to “trigger” article 50? Can it legally do so without a Parliamentary vote? Can the EU take the view that the referendum itself “triggered” article 50? Can article 50 be circumvented, and the UK leave by some other legal means? Can the EU throw us out? Can the UK decide unilaterally when article 50 is “triggered”, if it ever is? I’ll tackle all these questions.


The EU Referendum Act 2015 creates no legal obligation on Her Majesty’s Government to leave the EU now, or ever. In a legal sense, the Act was binding in the sense that ministers had a duty to hold it; but the referendum is not binding in the sense that they must do anything about its result. The force of the result is political.  It follows that the UK can “trigger” it if and when it likes.


David Allen Green has written about what might in domestic constitutional terms represent a “decision to withdraw” from the EU. It seems to me that the really key step under article 50 is the notification that would (I agree with David on this) be made by some sort of formal communication from the UK government to the European Council, probably a letter from the UK’s Permanent Representative in Brussels to the European Council President, Donald Tusk. In my view the European Council must wait for this step. It cannot “look inside” British constitutional law and decide for itself when the UK has decided to withdraw. All it can properly do is recognise when a step is taken in EU law—that is, the article 50.2 notification if it ever comes.

That does not mean, however, that the UK can simply dictate the timetable, taking as long as it likes for talks and notifying under article 50 when it’s good and ready. That impression was given by Vote Leave, but it was always a naive idea. An elementary point about negotiations is that you can’t actually force anyone to bargain with you. The EU can, therefore, decide that it will only do so once an article 50 notification is made. Unsurprisingly, that seems to be an attractive stance in Brussels and other European capitals. The upshot is that the UK does, in practical terms, have to trigger article 50 if it wants to leave the EU.

What I imagine may happen in reality is that the EU enters into informal preliminary talks once a broad timetable is agreed, including a date for article 50 notification.


Not really. Vote Leave argued that the UK could leave under article 48 of the TEU or under article 54 of the Vienna Convention on the Law of Treaties. But either would require the consent of all other EU member states. The UK simply cannot insist on using them rather than article 50.

It is worth noting, though, that the UK could be thrown out of the EU by the other member states under article 60.2 of the Vienna Convention if it was guilty of a “material breach” of its treaty obligations—which, it’s important to realise, will apply after article 50 notification right up to the moment the UK actually withdraws. The relevant parts of article 60(2) and (3) read:

2. A material breach of a multilateral treaty by one of the parties entitles:

(a) The other parties by unanimous agreement to suspend the operation of the treaty   in whole or in part or to terminate it either:
(i) In the relations between themselves and the defaulting State, or
(ii) As between all the parties; …

3. A material breach of a treaty, for the purposes of this article, consists in:

(a) A repudiation of the treaty not sanctioned by the present Convention; or

(b) The violation of a provision essential to the accomplishment of the object or purpose of the treaty.

The European Union Law (Emergency Provisions) Bill promised by Vote Leave even before the UK negotiated its withdrawal might well constitute a material breach, given that it’d mean refusing to recognise the jurisdiction of the European Court of Justice. Being thrown out wouldn’t be very attractive, as it’d mean there’d be no agreement for instance about the protection of the rights of British companies and citizens elsewhere in the EU.


In terms of domestic constitutional law, the government may choose to ask Parliament to vote in favour of article 50 notification—but there is no legal or constitutional requirement on it to do so. Notification would be (in domestic law terms) be done under prerogative powers in relation to international affairs, rather than any statutory authority. The government can just go ahead and do it.

Nick Barber, Tom Hickman and Jeff King have ingeniously argued that government cannot do this alone because of the principles paid down by Coke CJ in the seventeenth century Case of Proclamations and more recently by the House of Lords in R v HomeSecretary, ex parte Fire Brigades UnionTheir argument’s interesting, but it won’t wash.

The European Communities Act 1972 (which imports EU law into our domestic legal system) would continue to apply unamended after article 50 notification, which would not therefore alter common law, or statute, or “the customs of the realm”. Nor would it create any criminal offence. The Case of Proclamations simply isn’t relevant.

Nor is the FBU case a precedent here. In that case, an Act of Parliament had laid down a detailed statutory scheme of compensation (as it happens, for people injured as a result of criminal offences; but that detail’s not important for our purpose). Parliament gave a government minister discretion about when to bring those provisions into force. The House of Lords ruled that this didn’t give the minister a legal duty to bring the provisions in; but it did mean he could not use prerogative powers to introduce a wholly different scheme instead of the one Parliament had laid down. The existence of the discretion granted by Parliament meant the prerogative was limited or ousted to that extent.

The situation as regards the European Communities Act 1972 and article 50 notification is very different to the situation in the FBU case, however. The ECA 1972 does not confer on ministers any similar kind of discretion to bring or maintain its own provisions in force, so there is no FBU-style statutory limitation on or “ouster” of the prerogative power to notify.

Nor would notification render the 1972 Act a “dead letter” or render it “nugatory”, as Barber, Hickman and King argue. On the contrary, it would remain fully in force until repealed by Parliament. It’s not even obvious that it’d be repealed on Britain’s eventual withdrawal since, at least according to what Boris Johnson has recently written, Britain might end up abiding by elements of the Agreement on the European Economic Area—which is one of the treaties having effects in our law under the 1972 Act. It’s simply not right to see article 50 notification as negating the 1972 Act, or as hindered by it.

What the House of Commons can do, if it doesn’t like government policy on article 50, is pass a motion of no confidence in the government which (depending on its precise terms) might force the government to resign or else bring about a general election, under the Fixed-term Parliaments Act 2011. Now may be the time to remind you that I wrote an e-book about that Act, which may be tested during the current crisis.


It’s up to the British government alone whether and when to “trigger” article 50. It may ask for Parliament’s approval, but isn’t legally required to. What Parliament can do is force the government to resign or force an election.

It’s not realistic to try to leave the EU in any other way—all we could do to circumvent article 50 would be to get ourselves thrown out without any agreement. And Britain can’t dictate the article 50 timetable. It can delay notification under article 50; but the EU can simply refuse to negotiate with Britain until notification.

Let’s see if it ever happens.

The draft EU (Voter Registration) Regulations 2016

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!

How to extend the referendum voter registration deadline

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.

Pannick and Lester on the “British Bill of Rights”

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.

2016-06-02T14:32:59+00:00Tags: , |

Why Michael Gove should drop his Bill of Rights plans

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 Allen 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.



Let’s have proper no-fault divorce

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.

2016-03-11T12:47:30+00:00Tags: , , |

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

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

2016-03-08T16:13:27+00:00Tags: , , , |

What Boris told us about the “sovereignty plan”

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.

What is Parliamentary sovereignty, anyway?

February 23 2016

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.

2016-02-24T18:33:52+00:00Tags: , , , |
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