Wednesday, 25 May 2011

Privacy and superinjunctions - some facts

Superinjunctions have been in the news again. A superinjunction comprises two injuctions rolled into one. First there is an injunction preventing some often truthful facts being publicised; secondly there is a supplementary injunction precluding the granting of the first injunction from being mentioned. They are most commonly seen in privacy cases, but can be issued in other cases (they featured in the Trafigura litigation, for example).

There have been claims and counter-claims about their constitutionality. Following the "outing" of a football player in Parliament by John Hemmings MP, some have claimed that a constitutional crisis is in the making. Professor Victor Bogdanor has been writing in the Times today, saying that Parliament ought to be subject to the "rule of law" (that is, the courts) by analogy with countries with written constitutions, whilst recognising that in the UK at present it is not.

This article does not express any views on the propriety of either superinjunctions, or of members of Parliament ignoring them. It attempts only to dispel or confirm some of the statements of fact (rather than opinion) which have been propagated about them.

Statement 1: John Hemmings can say what he wants, whatever the courts say or think about it

True, provided it is done in the course of proceedings in Parliament.

Article 9 of the Bill of Rights 1689 provides that "the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament". Claims that John Hemmings is in contempt of court are incorrect since the statement was made during a debate in the House of Commons. Only the House of Commons can sanction him, or otherwise, for his actions. So far neither the Committee of Privileges nor the Speaker has seen fit to recommend an inquiry into whether the House (by a resolution passed on the floor of the House) should sanction him.

Statement 2: In issuing superinjunctions, the courts are just doing what Parliament has told them to do in the Human Rights Act 1998

False on a strict analysis, but this is nuanced.

The Human Rights Act 1998 imports, with limitations, the European Convention on Human Rights into the law of England and Wales, Scotland and Northern Ireland. Article 8 of the Convention as so imported provides that "everyone has the right to respect for his private and family life, his home and his correspondence". This right to privacy is to be balanced with the right conferred by Article 10, which provides that "everyone has the right to freedom of expression". That balance is held by the courts, who are in the first instance (by virtue of the 1998 Act) the domestic courts of the UK, and in the last resort the European court at Strasbourg.

However, ostensibly the 1998 Act is only concerned with what is called "verticality", namely rights to be asserted against public authorities. It was not intended to act "horizontally", that is in proceedings between private individuals or bodies, and for that reason Article 13 of the Convention, giving the right to an effective remedy, is not a Convention right applied by the 1998 Act. That is reserved to Parliament for implementation and can in the absence of a judicial coup d'├ętat only be litigated by proceedings in the European court.

Plainly numerous privacy cases do involve injunctions against non-state bodies, and in particular all the notorious ones involve injunctions against the press.

The courts in England and Wales have for a number of years been establishing a law of privacy by extending the common law on confidentiality, which is judge made law. The courts have in effect taken the view that, since on matters concerning privacy and the state Article 8 now applies, it would be odd not to extend the common law on confidentiality in a similar direction when dealing with relations between private individuals or bodies. I explored this in my article on Privacy, human rights and horizontality.

Statement 3: The judiciary are creating a privacy law on the hoof

True, see the answer to 2 above.

However, this is mainly because Parliament has been silent on the matter. John Hemmings standing up in the House of Commons and asserting his immunity from an injunction of the High Court of England and Wales is not the same as Parliament passing a privacy enactment.

If politicians think that the judges should not be making privacy law, they should accept their responsibilities and make the law themselves. They have been ducking their responsibilities on this.

Statement 4: In countries with written constitutions, it is the courts and not the legislatures which have the final say on human rights

True up to a point, but (i) this is only up to a point, and (ii) it does not lead to the conclusion that proceedings in the UK Parliament should be subject to the jurisdiction of the courts.

In countries with written constitutions, the courts are not in fact normally the arbiters of the law of human rights as such, but arbiters on the legal effect of the constitution, and most constitutions say something about human rights, including freedom of expression. Given the breadth of most constitutional propositions, this gives substantial scope for invention by the courts having responsibility to interpret and apply them. Thus, the principles of freedom of expression in the first amendment of the US Constitution (also called the Bill or Rights) and in the European Convention are similar, but the conclusions reached by the respective judicial authorities about their effects are markedly different.

In countries with written constitutions the voters, the legislatures or both remain the final arbiters on fundamental norms, because constitutions can be amended by them. For an amendment, most constitutions require a significant majority of the legislature in favour (often 2/3rds) and some constitutions require this to be confirmed by a referendum of the electorate. The courts have to give effect to the constitution as it stands from time to time, not as they would like it to be; they are therefore not the ultimate masters of the law.

Here lies the difficulty with ever making the courts in the UK supreme on constitutional matters as our constitution currently stands, namely that there is no way, short of an Act of Parliament, to put them back in their places where they have erred on matters of public policy. Given a fundamental disagreement of principle between the judiciary, who are not elected, and Parliament, which is, under our constitutional arrangements it is inevitable that it is Parliament which must prevail.

Thursday, 12 May 2011

Responses to the SNP's victory

It looks from recent reports in the newspapers that the UK government is going to stick with the current Scotland Bill giving effect to the Calman Commission proposals as they stand. It seems uninclined to devolve the setting of corporation tax within Scotland, which was Alex Salmond's first demand following the SNP's election victory last week.

A number of members of the academic devolution community in Edinburgh and Cardiff have suggested that proposals for further financial devolution in Scotland are now inevitable and required from the UK government. Some in the Scottish Liberal party now appear to want the Liberal part of the coalition to argue for the implementation of the Steel Commission proposals for the introduction of federalism.

All these proposals in my view underestimate, or ignore, the dilemmas presented to the UK government by the need to keep a number of different balls in the air at the same time.

Federalism: the problem

The Steel Commission report, which can be viewed here, is emblematic of this weak thinking. It proposes a "federal solution" for the UK, but only explores what this would mean for Scotland. It completely fails to examine the consequences on the wider UK and disregards the point that a federal solution for the UK requires at least four to tango.

A federal solution cannot work if, as in the case of the bulk of the Steel Commission report, it treats Scotland as an item to itself.


More particularly, the problem which the Steel Commission report (and the academic devolution industry generally) ignores is the problem of England. The Steel Commission speaks of the "nations and regions" of the UK; but what does that really mean? A federal solution would require, if not federal institutions for England as a single federal unit, then federal institutions for each "region" of England. For a "federal" solution as commonly understood to work, England, or each region of England, would require its own government, and parliament with law making powers equivalent to those of the institutions for Scotland, Wales and Northern Ireland.

Whilst regional federalism within England is something which I support (I think England could quite successfully run itself as three federated regions, say the North, the Midlands and the South), it would require a vast amount of preparation, discussion and reflection within the whole of the UK over a prolonged period, and certainly for a longer period than the 5 years remaining before a referendum on Scottish independence. More particularly, people in England would need to be asked what they want rather than have it imposed on them. If a federated UK is to be instituted, they might want England to have a single parliament for the whole of England rather than regional parliaments: who knows?

Wales and Northern Ireland

In addition, the Commission ignores that while Scotland can stand on its own feet fiscally, certainly while North Sea oil lasts, Northern Ireland and Wales at present probably cannot.

How would funding for Wales and Northern Ireland be managed in the Steel Commission version of a federal UK, and how would Scotland contribute to those nations' federal funding?

No federalism: the problem

At present devolution in the UK is asymmetrical. Put shortly, England does not have it.

The Calman Commission avoids making the West Lothian question significantly impinge on matters of taxation by proposing taking the top 10% slice off the rate of UK income tax and giving the Scottish Parliament the power to decide how much of that 10% (or more) is to be met by income tax payers resident in Scotland. The effect of this is that the rate of income tax set by the UK parliament would directly affect, on a 1:1 basis, the amount of block grant received by the Scottish Government.

All those who argue for fiscal devolution in Scotland going further than this without having also mapped out a workable federal solution (and I include the Steel Commission in this category for the reasons mentioned above) come up against the point that both constitutionally and politically there is a point beyond which asymmetry cannot go. The Calman Commission judged that their recommendations approximated to that limit. In that, they are probably right.

Let us say Scotland were to become substantially autonomous on matters of taxation. Say, instead of receiving a hand out from the UK Treasury by way of block grant, the Scottish Parliament were to set and collect tax in Scotland, and make a contribution to UK expenditure on reserved matters such as defence and the benefit system (or, in the words of the Steel Commission, "the Scottish Parliament should have a general competence over taxes and charges, other than those taxes or portions of taxes specifically reserved to the United Kingdom Parliament"). The link between, say, income tax in Scotland and that in the rest of the UK would be broken.

That breakage would be extremely problematic. It elevates the West Lothian problem to the area of constitutional fundamentals, namely the link between representation and taxation. In particular, in my view (and I think most other people's view) it would be wrong in constitutional theory for members of Parliament for Scottish constituencies to fix rates of taxes to which their constituents could not be subject, and almost certainly politically unacceptable to the country as a whole.

So let us say we reach a situation where the UK government is dependent on its Scottish members for its majority. This does not often happen, but did happen in 1950 and 1974, and is sure to happen at some stage again. If and when it happens again, how would the UK government pass its own budget? And how would it pass other contentious legislation not affecting Scotland where it depends on its Scottish members or there is a back-bench revolt (dare I mention tuition fees in higher education again)?

Any constitutional arrangement which cannot offer a solution in such a case is simply unworkable. So called "devolution max" by itself is a non-runner, without adopting new constitutional structures to cater for it. From Alex Salmond's perspective, he is wise to offer this as a referendum option because of the disruption this would cause if implemented.

How is David Cameron going to square these circles? Properly thought out federalism which looks at the UK as a whole rather than just Scotland, which is likely to require 10 years of thought and consultation, is probably the only way to do it. However, the political class at Westminster are opposed to this (including Nick Clegg and the Liberals): federalism robs them of many of the things that interest them and in particular robs them of control of England. It goes against all the centrist instincts of those at Westminster. Furthermore, the political class in Edinburgh seem incapable of looking beyond Scotland.

So probably we will have guerrilla warfare between Alex Salmond and the UK government and stagger on to a referendum in Scotland, and you would not want to bet all your assets on him not at least succeeding on a supplementary "devolution max" ticket. And the Liberals will continue to try to look in two directions at once.

Wednesday, 11 May 2011

Independence, the Scottish Parliament and the Scottish Government

A number of articles have been placed in the blogosphere or have appeared in the newspapers about whether it is lawful for the Scottish Parliament to pass an Act for the holding of a referendum within Scotland on independence. Some of them have got it right and some of them have got it wrong.

In my view the correct position is that the Scottish Parliament can pass such an Act, but the pertinent point which few seem to have spotted is that the Scottish Government does not for the most part require an Act of the Scottish Parliament in order to hold the referendum, assuming it has got the cash to pay for it within the Scottish Consolidated Fund (a prerequisite whether or not there is an Act of the Scottish Parliament authorising the referendum).

Put more shortly, the holding of a consultative referendum to elicit the views of people in Scotland seems to me to exceed neither the Scottish Government's existing powers, nor the Scottish Parliament's powers to pass a "window-dressing" Act, but the result would only be consultative and the power to sever the union rests solely with the UK Parliament. A consultative referendum is political rather than legal in nature: it exerts political pressure but not legal sanction. (Of course, inaction by the UK Parliament on the matter in the event of a referendum result in favour of independence might lead to a unilateral declaration of independence.)

This article sets out why that is the case.

The Scottish Parliament

Any amendment of the Union with Scotland Act 1706 and the Union with England Act 1707 can only be made by the UK Parliament. By virtue of section 29 of the Scotland Act 1998, the Scottish Parliament may only make laws (that is, pass Acts) within its legislative competence, and:
"(2) A provision is outside that competence so far as any of the following paragraphs apply—

(a) it would form part of the law of a country or territory other than Scotland, or confer or remove functions exercisable otherwise than in or as regards Scotland,

(b) it relates to reserved matters,

(c) ..."
An Act amending the Articles of Union would arguably infringe paragraph (a) and certainly infringe paragraph (b), because paragraph 1 of Part 1 of Schedule 5 to the 1998 Act provides:
"1 The following aspects of the constitution are reserved matters, that is—

(a) ...,

(b) the Union of the Kingdoms of Scotland and England,

(c) the Parliament of the United Kingdom,

(d) ..."
At this point it is worth noting that the later provisions of Part 1 of the Schedule set out exceptions to the constitutional reservations (that is sets out constitutional matters which are devolved), one of which is relevant when it comes to looking next at the powers of the Scottish Executive, and is in these terms:
"2 (1) Paragraph 1 does not reserve—

(a) Her Majesty’s prerogative and other executive functions,

(b) functions exercisable by any person acting on behalf of the Crown, or

(c) any office in the Scottish Administration."

The Scottish Executive

The Scottish Executive is established by section 44 of the 1998 Act as follows:
"44 (1) There shall be a Scottish Executive, whose members shall be—

(a) the First Minister,

(b) such Ministers as the First Minister may appoint under section 47, and

(c) the Lord Advocate and the Solicitor General for Scotland.

(2) The members of the Scottish Executive are referred to collectively as the Scottish Ministers."
Since the SNP took power as the party with the most seats in the Scottish Parliament in 1997 the Executive has called itself the Scottish Government.

Sections 53 and 54 made provision for the transfer of ministerial functions from the UK government to the Scottish Government where relating to devolved matters, as follows:
"53 (1) The functions mentioned in subsection (2) shall, so far as they are exercisable within devolved competence, be exercisable by the Scottish Ministers instead of by a Minister of the Crown.

(2) Those functions are—

(a) those of Her Majesty’s prerogative and other executive functions which are exercisable on behalf of Her Majesty by a Minister of the Crown,

(b) other functions conferred on a Minister of the Crown by a prerogative instrument, and

(c) functions conferred on a Minister of the Crown by any pre-commencement enactment, but do not include any retained functions of the Lord Advocate.

54 (1) References in this Act to the exercise of a function being within or outside devolved competence are to be read in accordance with this section.

(2) ...

(3) In the case of any function other than a function of making, confirming or approving subordinate legislation, it is outside devolved competence to exercise the function (or exercise it in any way) so far as a provision of an Act of the Scottish Parliament conferring the function (or, as the case may be, conferring it so as to be exercisable in that way) would be outside the legislative competence of the Parliament."
The two devolved competencies of the Scottish Government (as executive) and the Scottish Parliament (as legislature) are therefore, as one would expect, tied together. The answer to the question "is holding a consultative referendum within devolved competence" is the same when speaking of either the Scottish Government or the Scottish Parliament.

So does the Scottish Government require new law, namely an Act of the Scottish Parliament, in order to hold the referendum? It seems to me that it does not because as mentioned above Scottish Ministers have acquired from UK ministers all the prerogative and other natural powers of the Crown, as well as statutory powers, with respect to matters within devolved competence. I covered earlier what the natural powers of the Crown comprise, but they would it seems to me include the power to hold a consultative referendum, assuming the money for it is voted in one of the annual Appropriation Acts.

The only legal requirement for obtaining legislative backing that I can forsee would arise if the Scottish Government considers it needs additional powers to compel relevant local authorities to make their premises and staff available for the count and to appoint returning officers. However, that is not to say that an Act of the Scottish Parliament may not be useful as political window dressing: it would show that the proposal has the consent of the majority of elected members as well as of the executive.

After the referendum

As mentioned above, the reason why I conclude that the holding of a consultative referendum is within devolved competence is that it is only consultative and has no direct legal sanction or effect. The wording proposed by the Scottish Government for the consultative referendum puts the question, whether the Scottish Government should negotiate a treaty with the UK government for Scotland to become an independent state.

One question arising from this is whether, after the negotiations which would follow a successful consultative referendum, a further referendum is required within Scotland approving the terms before the union is severed. The answer to this is that legally speaking it is entirely a matter for the UK Parliament when making the legislation repealing the Acts of Union. The Scottish Government says not, but the only influence that it could exercise on this is political and rhetorical. It seems doubtful that it would attempt a unilateral declaration of independence at this point, but that would be its only recourse if the UK government and UK Parliament were to press for a further post-negotiation referendum which the Scottish Government feared it might lose.

Of course, the relationships between England and Scotland may have become so damaged by the time the first referendum has passed and negotiations completed that the union may be beyond repair anyway, so making the question of a second referendum relatively insubstantial; and Alex Salmond would certainly be doing all he could to help the process of disrepair along. We do not yet know how far the patience of people in the remainder of the UK can be tested.

Sunday, 8 May 2011

The aftermath

A disappointment over the AV vote to be sure, but still some surprising outcomes from Thursday's elections.

First, the Tories increased the number of their councillors in England and the number of councils which they now control, which given that they are a party in government and already started from quite a high threshold is remarkable.

Even more remarkable is the result in Scotland.

The result in Scotland is principally the fault of the Scottish Labour party. In the last 20 years or so there has been an only partly concealed anti-Englishness about the politics they have espoused, to the point where they became blinded by their own propaganda, and this has now come home to roost. They spent their time running a campaign against "London" and the Tories, and then while busy pulling this straw man apart failed to notice the real enemy at their gates.

This raises a number of strategic dilemmas for the Labour party, both in Scotland and in the UK as a whole. The Tory-English bogeyman may work for Labour in UK elections in Scotland but it plainly doesn't work in Scottish elections, and they are going to have to come up with a new story which is more convincing than "vote SNP and you get independence". As it happens, whilst the odds are against Alex Salmond succeeding at a referendum, he is a very canny operator and success cannot be counted out. It will now be for him to start playing the grievance card in the period leading up to the referendum (which given a majority in the Scottish Parliament he is well placed to do), and hope to do so rather better than the Labour party's pitiful attempts in the past.

The referendum, if and when it comes, in my view will have a significant effect in England as well as in Scotland. It is difficult to predict how people in England will react to the sound and fury of the referendum going on to the north of them given that some of it will be about them. It is difficult to discuss Scotland's role in the Union without also discussing England's role in it, and Labour and the other unionist parties need to give thought to how arguments will play south of the border as well as in Scotland itself. More particularly, the UK Labour party are going to have to provide a new narrative for voters in England if they are going to recover their position there: otherwise those voters may want to remind them that they are no more to be taken for granted than are those in Scotland.

Altogether, we have a very interesting 4 or 5 years ahead of us; and the strategic headaches for Milliband Junior during that period are probably more intractable than the more transient ones at present bearing down on Nick Clegg.

Thursday, 5 May 2011

A dismal campaign

I have changed my mind during the run-in to the referendum today on introducing single transferable votes in single vacancy constituencies ("alternative voting"). This was not thanks to any arguments put forward by the Yes and No campaigns, but on my own reading, and some reflection on it.

What a dismal campaign it has been, full of half truths and froth. The Yes campaign began with the idea that they were going to win, and thought it only necessary to cement this by buying into the celebrity culture and parading a few half-knowns on their publicity material with platitudes that AV would modernise our politics. The No campaign were considerably more focused at the outset and just fought dirty. I feel a little sorry for the treatment of Nick Clegg in the admittedly well designed material put out recently by the No campaign which did, at last, alight on the main argument against AV, namely that it is more likely to give parties an exit route from their manifesto commitments.

That it should be Chris Huhne who raised this personal attack on Nick Clegg at cabinet on Tuesday adds particularly enjoyable irony, as he has been taking full advantage of Clegg's difficulties by positioning himself to displace him from the leadership of the party and appears already to have acquired and stored away the stiletto which will no doubt in due course be inserted between his colleague's shoulder blades. I have no particular love of the Liberal Party, who seem to me to be often composed of political chancers who are quite happy to hold as many incompatible views concurrently as they feel is necessary to obtain a vote: but nonetheless the way in which Nick Clegg's willingness to go into coalition, as it appears the country wanted after the last election, has been used against him in the campaign does seem somewhat unfair.

Amongst the ludicrous arguments the No campaign have come up with, and some people appear to have been persuaded by, is that AV infringes the principle of one person one vote. This is bogus: instead, AV enables a vote to be transferred from an unsuccessful candidate to one still in the running. It is in effect a more efficient (or at least cheaper) version of a run-off, where voters in an election get a second chance to choose between remaining candidates once the outriders are eliminated. This is indeed the system that the Tory party apply in choosing their leader: if the Tory leadership had been decided on the basis of first preference votes, David Davis would now be Prime Minister - David Cameron only won by picking up second preference votes in the second round. A more plausible argument against AV is that it treats second and third preferences (and so on) as being as valuable as first preferences, but that is true of any run-off system.

If no candidate has an overall majority of first preference votes, it seems to me to be reasonable that the successful candidate should be the least unsatisfactory one, and that is AV's main claim in its favour. It does mean that any MP will be more mindful of the views of all the voters in her constituency and not just concerned with pleasing her core vote as at present.

For election geeks, one last comment: I have read material claiming that AV and single transferable voting are different things. That is not the case. AV is a form of single transferable voting, albeit single transferable voting applied to single vacancy elections rather than multiple vacancy elections - the distinguishing feature of single vacancy STV (that is, AV) is that only the bottom candidates' votes are redistributed on elimination, rather than also those of any initial winning candidates: in single vacancy STV, the count is over once a candidate beats the 50% hurdle. One way of implementing proportional representation (which AV is not) is to apply STV to multi-vacancy constituencies; but there are other well known ways of implementing PR.