Category: The Union, Northern Ireland, Scotland, Wales

A close look at the law and policy of holding a Northern Ireland border poll – and how the law may shape what will be an essentially political decision

10th February 2024
This week Prospect posted something by me on the issue of a potential border poll in Northern Ireland.

Please click (and read!) here.

This post unpacks that Prospect post – a sort of “behind the scenes” perambulation of how that post came together – and a further discussion of the issues.

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The starting point is that a potential referendum in Northern Ireland has been in the news.

On one hand:

On the other hand:

The Sinn Fein quote was:

“What I firmly believe is – in this decade – we will have those referendums, and it’s my job and the job of people like me who believe in reunification to convince, to win hearts and minds and to convince people of that opportunity – part of which, by the way, will be really consolidating our relationship with Britain as our next door neighbour and good friend.”

Asked if she meant before 2030, Ms McDonald said “yes”.

The Prime Minister’s quote was:

Rishi Sunak has told Sinn Fein to focus on the “day to day” concerns of people in Northern Ireland rather than a referendum on Irish reunification.

The PM said “constitutional change” should not be a priority for the Irish nationalist party, after newly appointed first minister

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Now we will look at the relevant legislation – the Northern Ireland Act 1998.

There are two key provisions.

First, there is section 1, which should be read carefully:

(And legislative and literary purists will react pleasingly to that “But” at the start of the second sub-section.)

That section 1 needs to be seen in the context of, well, other sections 1s.

Here is section 1 of the Ireland Act 1949 – and look especially at sub-section1(2):

You will see at sub-section 1(2) what can be called the “consent” principle – though it would be for the then parliament of Northern Ireland to give that consent (which at the time would seem very unlikely).

By 1973 that parliament was suspended, and so the Northern Ireland Act 1973 switched the giving of consent to a majority of the people of Northern Ireland:

And as my Substack has set out at length before there had been such a border poll, just before the 1973 Act was passed.

The 1973 poll was heavily in favour of the union – and the nationalists largely boycotted the vote.

At the time the poll seemed pointless from a nationalist perspective, and it was also seen as a sop from the London government to the unionist majority.

However, sometimes, things change – and demographics change.

Those seeking the unification of the island of Ireland no longer see border polls as a necessarily unionist device.

Indeed, the roles are somewhat reversed: it is now the unionists that are wary of a border poll.

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Having set out that context, let us go back to the text of section 1 of the 1998 Act:

Here there is a declaration – and you will note similar wording was used in the 1949 and 1973 Acts. The use of a declaration is not new. And it really has to be a declaration (or affirmation) as it describes something as it stands, rather than providing for something new. Section 1 does not make Northern Ireland part of the United Kingdom – that status rests on other legal instruments.

The sub-section also repeats the requirement that consent is required for this declared status to change – and like the 1973 Act it then refers to a schedule to the Act.

But.

There is that second sub-section, beginning with a “But”.

And this is where it becomes interesting and departs substantially from previous legislation:

The word “shall” in that provision is highly significant.

For sub-section 2 creates an obligation. If the majority in such a poll supports unification, then the government of the United Kingdom has to bring forward the legislation that would make this so.

If you read carefully, however, you will note that the obligation only goes to putting legislation before parliament. It does not actually place an obligation on the government of the United Kingdom to ensure such legislation is passed. In this technical way, the supremacy of the Westminster parliament is maintained.

But if there was such a poll majority, it is difficult to see how the Westminster parliament would reject such legislation – though presumably some unionist and conservative MPs would oppose it, regardless of the “will of the people” on this one inconvenient occasion.

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So much for section 1 of the 1998 Act – for it is in the first schedule that the real excitement begins.

(Oh, for what it is worth, lawyers tend to call them sh-edules, not sk-edules when they are in legal documents, I do not know why.)

Here are the first two paragraphs of the schedule:

The two paragraphs are doing different things.

The first paragraph confers a discretion on the government of the United Kingdom (acting through the Secretary of State for Northern Ireland). The key word is “may”.

The Secretary of State may direct there to be a vote; or, then again, the Secretary of State may not do so. It is a choice.

On the face of it, it is an absolute discretion – the Secretary of State may direct as many such border polls as he or she would like. One poll a day, every day even.

But in invisible ink, so to speak, there are limits to be discretion that are implied by law.

The discretion has to be exercised in the public interest and for the purpose of section 1. And given it is part of a statutory scheme implementing the Good Friday Agreement, it would also be necessarily implicit that the discretion should be not be exercised in the selfish interests of the United Kingdom government in maintaining the union.

But those are very wide parameters, and the courts would not intervene if the paragraph 1 discretion is never exercised in favour of holding a border poll.

(If such a poll is held, however, and a majority is in favour of unification, that would mean section 1(2) applies and legislation would have to be brought forward.)

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Now let us look at the fascinating and significant second paragraph:

This is distinct to and separate from the discretion conferred in the first paragraph, for this paragraph imposes an obligation.

The government of the United Kingdom has to hold a border poll if the condition in that paragraph is met: the government of the United Kingdom cannot choose not to do so.

The condition is framed in wide terms and contains two elements, which I will call (A) and (B): the Secretary of State shall exercise the power under paragraph 1 if (A) at any time it appears likely to him [or her] that (B) a majority of those voting would express a wish that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland.

The first element (A) is about as wide as you can have as a ministerial discretion under public law (the law governing public bodies). This means a court will not intervene readily to gainsay what the Secretary of State considers to be the position.

But.

Element (B) limits that subjective discretion.

Consider the following: that there is, over a period of time, an accumulation of evidence that the nationalist parties are securing majorities both of the popular vote and of the seats on representative bodies, in successive elections, and especially for seats in the Assembly and the Westminster parliament. And that such support is not a blip but a sustained trend.

There will come a point – a tipping point – where it will be come impossible for a Secretary of State to plausibly maintain that it is unlikely that a majority would express a wish that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland.

It would become literally incredible.

At that point, the so-called Wednesbury doctrine (named after this case which my Substack has examined before) will apply.

The Wednesbury rule is that, as a matter of law, it is not open for a public law decision-maker to make a decision so unreasonable that no reasonable public law decision-maker would make it.

A refusal by a Secretary of State to direct that a border poll take place in certain circumstances would be Wednesbury unreasonable.

And that would then make it potentially a matter for the courts.

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The courts will not want to deal with it.

The courts will view this as a political question.

And the two judgments in the McCord litigation (here and here), where an application was made to make the government of the United Kingdom publish (and thereby abide by) a policy on when it would call a border poll, show that judges really REALLY do not want to get involved.

But.

The judges may not get to duck out of it, as much as they would like to do so.

For that second paragraph was placed on a statutory basis deliberately, so that it could have effect in a certain situation.

Here we need to look at the Good Friday Agreement.

The parties to that agreement, including the governments of the United Kingdom and Ireland, agreed the following:

Section 1 and Schedule 1 of the 1998 Act are both express parts of the Good Friday Agreement.

And the United Kingdom undertook to place the provisions on the statute book as part of their obligations under the agreement.

The sentiments behind the provisions could have been put in a mere political declaration, or a recital, or something else without any (real) legal effect – but no. The other parties to the Good Friday Agreement required the United Kingdom to place these provisions into law, and the United Kingdom freely accepted that requirement.

The other parties were wise to do so.

For by placing the obligation into legislation, a legal backstop was created where, if – if – the point was eventually reached where there was simply an abundance of evidence that a majority supported the unification of the island of Ireland, the United Kingdom could not maintain an unreasonable refusal to hold a border poll.

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Of course, in that extreme scenario, the judges may still wish not to get involved – and it is unlikely that the courts would grant a so-called mandatory order requiring the Secretary of State to direct a border poll.

But there would be no reason why the court could not grant a declaration saying instead that a refusal would be Wednesbury unreasonable.

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Another ground on which the courts may intervene is if the second paragraph was used by the government of the United Kingdom to cynically hold a snap border poll hoping that they would win, so as to gain the protection of the stipulation that another such poll could not be held within seven years.

Such a ploy would be in bad faith, and for a collateral purpose, and this would mean that a court could quash such an order.

Wednesbury and bad faith are among the very widest parameters in the public law of the United Kingdom – and they only apply in exceptional cases. But they are there, and this means that paragraph 2 of the schedule is not a law-free zone – as much as politicians (and judges) may want it to be.

There will be circumstances where nationalists can and will apply to the courts to enforce a provision freely agreed to and legislated by the British state. And so the government of the United Kingdom cannot just refuse a border poll forever, regardless of what happens in Northern Ireland.

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Of course, the condition in paragraph 2 may never be met. It may well be that the evidence never becomes that overwhelming and stark, and that support for unification (like support for independence in Scotland) never solidifies into an ongoing, sustained majority.

But that a condition is not (easily) met does not make it any less of a condition at law. The government of the United Kingdom knows it is there, and the nationalist community knows it is there.

It is no longer an absolutely free choice by the government of the United Kingdom whether there is a border poll or not.

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Holding a border poll for Northern Ireland is essentially a political matter.

And in the real world, it is a matter that will undoubtedly be decided by politics, and not by courts.

Yet it is not a situation where the law is entirely absent. The 1998 Act sets a longstop where, if a certain condition is ever met, a border poll has to be held – even if the United Kingdom does not want to do so – and that a majority in that poll for unification has to be respected.

And this is a key and express part of the Good Friday Agreement, that carefully crafted (and extraordinary) document which has had so many long-term effects on our polity.

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Going back to the quotes at the top of this post:

The suggestion is that Sinn Fein believes they will be able to show a sustained majority for unification within ten years; while the British government wants the political majorities in Northern Ireland to signify other day-to-day things, unconnected with the unification question.

You can see why, for both, these are the lines-to-take.

An objective of the nationalists is to create a “majority” situation where it would be unreasonable for a border poll not to be held; while an objective of the British government is to have a situation where a Secretary of State in good faith can reasonably believe that no such majority (yet) exists.

But if and when a political decision is made for the poll to take place, there will be some regard to the ultimate legal position under the first schedule to the 1998 Act.

As always: law shapes policy and politics; and politics and policy shape law.

And the policy and politics that shaped the extraordinary and consequential Good Friday Agreement (and the 1998 Act) in turn continue to shape the policy and politics of the United Kingdom.

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Beyond the bare “necessity” – the government’s supposed justification under international law for the Northern Irish Protocol Bill falls away

23rd February 2023

You may recall that the government of the United Kingdom, when it published the Northern Irish Protocol Bill also published a “legal position” in support of the Bill.

The purpose of that “legal position” was to provide a response to those troublesome sorts inside and outside the government who wanted to know if the proposals in the Bill would breach international law.

You may also recall that somehow it became known that the government’s external legal adviser – pleasingly known as the “Treasury Devil” – was not altogether comfortable with this legal position.

This all very exciting at the time – though like many things in our relentless post-Brexit politics, it now seems a long time ago.

The offered justification was the doctrine of legal “necessity”.

My post on this was “The bare “necessity” – how the legal position of the United Kingdom on the Northern Irish Protocol Bill makes no sense”.

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As far as can be worked out, this remains the government’s sole justification under international law for the proposals.

This in turn means that if this justification falls away, there will be no basis for the proposals in international law.

The Bill’s key provision which would enable the United Kingdom to breach the Northern Irish Protocol would be a breach of international law.

You may not care that is the the case – and you may just shrug or even go “hurrah”.

But that nonchalant or merry response does not take away from the breach of international law, and that is what the government wanted to pretend was not going to happen.

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The government now has a problem.

The Northern Ireland Bill’s lack of parliamentary progress evidences, if not demonstrates, a lack of urgency by the government.

Even the Bill’s supporters talk of it only as an option, to be used “if required”.

But something which is not urgent and optional cannot at the same time meet the international law test of necessity.

By their own (lack of) conduct the government has undermined the only argument they (said they) had.

And this is not just the view of a liberal legal blogger, but also that of a former Lord Chancellor and member of the cabinet during during Brexit, Robert Buckland:

Buckland avers in the magazine of the House of Commons itself:

“The Northern Ireland Protocol Bill has outlived its political usefulness and no longer has any legal justification. It is the proverbial dead letter.”

One may question if it ever really had any legal justification.

But even taking the government’s position at its highest, that purported justification has now gone.

What was a bare “necessity” argument is now just, well, bare.

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The seven ways the matter of Brexit and the island of Ireland can be ultimately resolved

21st February 2023

A few days ago I tweeted that there were only two ways the matter of Brexit and the island of Ireland can be ultimately resolved.

But that was wrong, there are seven.

By “ultimately resolved” I do not mean any of the work-arounds and quick-fixes being currently negotiated or proposed.

I mean instead that there is a situation where such work-arounds and quick-fixes are not needed, and that there is a settled and sustainable situation that means Brexit is not a problem.

These are the seven ways.

One: the European Union and/or the Single Market ceasing to exist.

This is highly unlikely.

Two: Ireland leaving the European Union and/or the Single Market.

This is also highly unlikely.

Three: the United Kingdom rejoining the European Union.

This is unlikely at least for a political generation – and it would require the European Union wanting the United Kingdom back, which given our ongoing political psycho-drama is difficult to envisage.

Four: Northern Ireland not sharing a Single Market with Ireland.

This is unlikely, as it would mean a trading border, and perhaps even border infrastructure, on the island of Ireland.  Some would say that such invisible and visible borders would be a breach of the spirit, if not the words, of the Good Friday Agreement.

Five: the United Kingdom as a whole sharing in the Single Market, even if formally outside the European Union.

This was the preference of some “liberal” Brexiters and it was also pretty much the (infamous) “backstop” position of the withdrawal agreement negotiated by Theresa May, the last-but-two of our recent prime ministers.  That agreement was voted down by Parliament and led to a change of Prime Minister.

Six: Northern Ireland sharing a Single Market with Ireland, but not the rest of the United Kingdom.

This is the current position under the Northern Irish Protocol, negotiated and promoted as an “oven-ready” agreement by Boris Johnson, the last-but-one of our recent prime ministers: the trade border down the Irish Sea.  This is not acceptable to the Democratic Unionist party and some government backbenchers.

Seven: a united Ireland.

This would at, a stroke, resolve the matter of Brexit and the island of Ireland.

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Given the first two options are literally incredible, the third is unlikely in the short-to-medium term, and the fourth is politically impossible, that leaves the final three.  As the fifth and sixth do not have settled political support, that leaves only the seventh.

In my tweet I thought the third and the seventh are now the only real options of resolving ultimately the matter of Brexit and the island of Ireland.

The others were unlikely-to-impossible or politically unacceptable.

Many of you will prefer the United Kingdom to re-join the European Union, or at least the Single Market; and my own first preference is for a united Ireland, with participation in the Single Market for Great Britain by means of a close association agreement.

But whatever your preference, the ultimate resolution has to be one of these seven.

And until and unless one is accepted, there will be an ongoing problem in the matter of Brexit and the island of Ireland.

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Imagine what would happen if – if – the Northern Irish Protocol issue is resolved

16th February 2023

The news is promising:

So let us think what would happen if – and it is an if – the Northern Irish Protocol issue is ever resolved.

(And some of you will doubt it ever will be.)

As it stands the focus of the post-Brexit relationship is Northern Ireland and the protocol.

The government of the United Kingdom is seeking to be able to break international law for the sake of doing something about the protocol.

The government is also telling its political and media supporters that it will withdraw from the European Convention on Human Rights as a distraction, it seems, from any compromise on the protocol.

Everything in UK-EU relations – at least on the United Kingdom side – appears to be governed by the protocol.

So imagine: what if that issue was no longer there?

What then?

The cynical will think that there would have to be a new issue for the governing party to rally support of Brexiters: that a new dispute with the European Union will be raise, even contrived, and off we will go again.

Maybe.

But there would also be the possibility of the pragmatists and realists to guide policy and move on to what needs to happen next: a sustainable basis for a close UK-EU relationship.

The preference of this blog (ever since the referendum result) has been for the United Kingdom to leave the European Union and to move quickly into the closest possible association agreement, with as much participation in the single market as the European Union will allow us and which the United Kingdom government can also get past its supporters.

Negotiations for such an ideal arrangement should ideally have started by now, and discussions need to start by the time the periodic review of the relationship begins under the withdrawal agreements.

A deal on the Northern Irish Protocol will enable this grown-up and sensible discussion to (finally) take place.

Ho, ho.

Of course, this side of a general election there is little prospect of the government openly seeking a closer relationship with the European Union.

But such a close relationship would necessarily require the Northern Irish Protocol to be practically settled first.

(By “practically settle” I mean that the tensions and frictions occasioned by the protocol have viable work-around solutions – for, as this blog has averred before, the ultimate issue of there being a post-Brexit trading border on the island of Ireland can only be solved by Irish unification – or by the United Kingdom rejoining the European Union.)

And there would then need to be a period where the United Kingdom approach to policy is – frankly – less crazy than seeking to break international law as leverage so as to get its way in a dispute.

United Kingdom policy and politics on Brexit would need to calm down for a while.

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Any deal in the coming weeks on the protocol between the United Kingdom and the European Union will also need to survive attacks from the Democratic Unionist Party and some of the government’s own backbenchers.

These attacks may delay the issue being practically resolved – but these attacks may be time limited in their potency.

But until such attacks do become politically impotent, it may be that practical resolution of the Northern Irish Protocol issue will happen, but not just yet.

We will have to wait.

(In the longer term, of course, the issue of there being a trading border on the island of Ireland probably will be resolved by Irish unification.)

And if the Northern Irish Protocol issue is practically resolved then we perhaps can have fresh and interesting conversations about our post-Brexit relationship with the European Union.

Gosh.

Imagine that.

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The resignation of the First Minister of Scotland

15th February 2023

Today the First Minister of Scotland announced her resignation.

And none of the extensive punditry that her announcement swiftly generated is as interesting and thought-provoking as her speech itself, which should be watched in full.

To say it is interesting and thought-provoking is not to take the content of the speech at face value.

But this post will focus on one juxtaposition.

The most able proponent of Scottish independence has resigned in part on the basis that she was becoming an impediment to independence.

The one passage that struck me – in this era of what this blog has previously described as the Three Ps – was this:

“But the longer any leader is in office, the more opinions about them become fixed and very hard to change. And that matters.”

She has a point: think of many politicians – Johnson, Trump, Corbyn – and you instantly also think of deep partisan lines, regardless of their actual positions on any particular issue.

If she is correct in this, then she is saying that she recognises herself as being the greatest barrier to the cause to which she is committed.

It would be as if Johnson refused to consider becoming Prime Minister again so as to help the United Kingdom find its best place in a post-Brexit world; or Trump standing aside because that would by itself make America great again; or Corbyn accepting that the Labour party is more electable without him.

And even if you are cynical and think there are other reasons for her resignation, it is still difficult to imagine many politicians with or near power voluntarily relinquishing their position, let alone for the cause they also promote.

The resignation may make little practical immediate difference as and when there is ever a further referendum for Scottish independence.

Very few if any people will, at that stage, base their vote on what Sturgeon did or said today.

But between now and then the debates over Scottish independence can proceed without being dominated by partisan views for and against one particular politician.

If only the debates over Brexit, the future of the United States, and the nature of the Labour Party could also be free from being dominated by partisan views for and against one particular politician.

Or any particular politician.

Imagine.

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This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

Is it, at last, time to say “good bye” to Thoburn and the idea of “constitutional statutes”?

 9th February 2023

Oh dear old Thoburn, what shall be done with you?

Thoburn, the mainstay of thousands of constitutional law essays and hundreds of learned articles, does yesterday’s Supreme Court decision mean you are now no more?

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Thoburn is the 2002 “metric martyrs” case which introduced into the then quiet, sedate world of constitutional law the exciting concept of “constitutional statutes”.

Until then all Acts of Parliament were regarded as being equal, none of them any more entrenched – enshrined – than any other.

But in Thoburn the judge said, in effect, that there was a class of super-duper statutes known as “constitutional statutes” and these statutes had super-duper qualities not available to more mundane everyday statutes.

Incredible, if true.

And so Thoburn became the recent constitutional law case any student or informed pundit had to have an opinion about.

But yesterday’s Supreme Court decision on the Northern Irish Protocol may mean the dictum in Thoburn are no longer to be taken seriously.

What will law students and pundits do?

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To understand what happened with the Thoburn case we have to go back to the Victorian doctrine of the supremacy of parliament.

This doctrine holds that no statute passed by the Crown-in-Parliament can be gainsaid by any court.

But in two case in the early 1930s about the Acquisition of Land (Assessment of Compensation) Act 1919 and the Housing Act 1925, the courts were presented with a situation where two statutes contradicted each other.

How should the courts deal with this situation?

The clever idea the courts came up with was “implied repeal” – and so the fiction adopted was that parliament in passing the later legislation knew about the earlier legislation, and so the (presumed) intent of parliament was to repeal the earlier legislation.

But as this repeal was not explicit in the later legislation, it would have to be an implicit repeal.

And this is how the interwar courts managed to disapply a piece of primary legislation, notwithstanding the heady doctrine of the supremacy of parliament.

(Of course, if no Act of parliament can actually be gainsaid by a court, then the courts should have just refused to choose between the two contradictory statutes and return the matter to Parliament to sort out – but the fig-leaf of the “intent” of parliament meant the courts could sort out the legislative mess parliament had created.)

And the legal rule from these case was that the later statute trumps – that is, implicitly repeals – the earlier statute when the two contradict.

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But in 2002 the court was faced with another seemingly awkward situation.

It was submitted in that case that the Weights and Measures Act 1985 somehow implicitly repealed the earlier European Communities Act 1973.

On the merits of the case, the court found that this was not the position.

But in a dictum – which was not about the point on which the case turned – Lord Justice Laws (and please none of the usual jokes about nominative determinism) went on a judicial frolic and speculated about implied repeal.

Could a later Act of Parliament really implicitly repeal the European Communities Act 1973, which – in turn – was the (then) basis for the laws of the European Union having effect in the United Kingdom?

On the basis of the 1930s cases then this would have to be the position, as the later statute trumps the earlier statute.

But.

As we now know, repeal of the European Communities Act 1973 would be a very complicated and far-reaching thing.

And so Lord Justice Laws posited a new category of statutes which would be immune from any implied repeal.

If there were any contradictions with an earlier “constitutional statute” then it would be the later statute that would be repealed, not the earlier one.

His dictum was as follows (which I have broke out into one-sentence paragraphs):

We should recognise a hierarchy of Acts of Parliament: as it were “ordinary” statutes and “constitutional” statutes.

The two categories must be distinguished on a principled basis. In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and State in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights.

(a) and (b) are of necessity closely related: it is difficult to think of an instance of (a) that is not also an instance of (b).

The special status of constitutional statutes follows the special status of constitutional rights.

Examples are the [sic] Magna Carta, the Bill of Rights 1689, the Act of Union, the Reform Acts which distributed and enlarged the franchise, the HRA, the Scotland Act 1998 and the Government of Wales Act 1998.

The ECA clearly belongs in this family. It incorporated the whole corpus of substantive Community rights and obligations, and gave overriding domestic effect to the judicial and administrative machinery of Community law.

It may be there has never been a statute having such profound effects on so many dimensions of our daily lives.

The ECA is, by force of the common law, a constitutional statute.

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This was exhilarating, provocative stuff.

And it was utter flapdoodle.

There was no basis for positing such “constitutional statutes” – either then or now.

They were invented just to get the courts out of the potentially tricky situation which the judges’ contrived solution to the problems in the 1930s had got themselves into.

The notion of “implied repeal” was now a reversible switch – and it was to be the judges who decided (and not parliament) whether it would be the earlier or the later legislation that would be “implicitly repealed” by the simple expedient of the judge perhaps dubbing one or the other of the Acts of Parliament a “constitutional statute”.

It was all rather daft, but you will see why it was like catnip to those with an interest in constitutional law.

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Anyway, the Laws dictum was relied on by the applicants in the recent Allister litigation on the legality of the Northern Irish Protocol, which eventually reached the Supreme Court.

The Supreme Court decision in that case is fascinating and it warrants a post by itself, especially on respect of the developing jurisprudence of the court on devolution.

But the Supreme Court was unimpressed by the Thoburn point.

The court described the submission (again broken up into one-sentence paragraphs):

On the hearing of this appeal, the appellants submitted that the Acts of Union were constitutional statutes so that the rights in the trade limb of article VI of His Majesty’s subjects of Northern Ireland being on the same footing in respect of trade as His Majesty’s subjects of Great Britain, could not be subject to repeal or to subjugation, modification, or suspension absent express or specific words in a later statute.

In support of that submission, the appellants relied on a line of authorities starting with Thoburn v Sunderland City Council [2002] EWHC 195 (Admin); [2003] QB 151 for the proposition that whilst ordinary statutes may be impliedly repealed constitutional statutes may not.

At para 63 of Thoburn, Laws LJ suggested that the repeal of a constitutional statute or the abrogation of a fundamental right could only be effected by a later statute by:

“express words in the later statute, or by words so specific that the inference of an actual determination to effect the result contended for was irresistible.”

The appellants submitted that the Acts of Union are constitutional Acts and that the rights to equal footing as to trade were fundamental rights so that there was no scope for implied repeal and by analogy there was no scope for implied subjugation, modification, or suspension.

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You will see that the Thoburn point has now been expanded beyond implied repeal and that “constitutional statutes” have various other super-duper legal protections.

The court held (again broken up into one-sentence paragraphs, and with my two comments interposed):

The debate as to whether article VI created fundamental rights in relation to trade, whether the Acts of Union are statutes of a constitutional character, whether the 2018 and 2020 Acts are also statutes of a constitutional character, and as to the correct interpretative approach when considering such statutes or any fundamental rights, is academic.

“Academic.”

Even if it is engaged in this case, the interpretative presumption that Parliament does not intend to violate fundamental rights cannot override the clearly expressed will of Parliament.

“Even if”

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Allister is not about implied repeal, so strictly speaking the Laws dictum in Thoburn may be said to not be applicable.

But the notion of “constitutional statutes” is plainly not taken seriously by this unanimous Supreme Court in an important devolution case engaging what Laws would have called many “constitutional statutes” , with a panel consisting of justices from Northern Ireland, Scotland, and Wales, as well as the court’s leading public law justice, Lord Sales.

For the Supreme Court, the content of the Acts of Union have no special entrenched legal status, and they can be amended, and so on, just as any other Act of Parliament.

The question of what would happen with a direct contradiction, as in the early 1930s has been sidestepped.

But the expedient of “constitutional statutes” as suggested by Laws in Thoburn seems to have been put back in its judicial box.

Or has it?

No doubt there will now be thousands more constitutional law essays, and hundreds more learned articles, to tell us whether the dictum in Thoburn is no more.

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Another weekend, another threat to leave the European Convention of Human Rights

6th February 2023

Here we go, again.

This was a news report in yesterday’s Sunday Times:

The content of the report itself does not quite amount to the “pledge” of the headline – but the content of the report is not without interest:

“The PM has been clear he wants to introduce legislation that meets our international obligations,” a source familiar with Sunak’s thinking said. “This bill will go as far as possible within international law. We are pushing the boundaries of what is legally possible, while staying within the ECHR. And we are confident that when it is tested in the courts, we will win.

“But if this legislation gets onto the statute book and is found to be lawful by our domestic courts, but it is still being held up in Strasbourg, then we know the problem is not our legislation or our courts.

“If that’s the case, then of course he will be willing to reconsider whether being part of the ECHR is in the UK’s long-term interests.”

Senior figures say the prime minister is prepared to deploy the nuclear option before the general election if the European court strikes down his plans. But that would put the government on a collision course with MPs and particularly the House of Lords, and it is highly unlikely it would happen before the election due in 2024.

The Tories would then put withdrawal from the ECHR at the heart of their manifesto, drawing a sharp dividing line between the Conservatives and Labour. The plan is proof, allies say, that Sunak shares the hardline instincts of the Tory right on immigration.

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What can we make of this?

Perhaps this is just a weekend frolic: a political source contriving something so as to get the weekend press coverage they want at the end of another difficult week.

If so, this would not be first weekend this has happened, and it probably will not be the last.

And in any case, the last part of the news report quoted is probably political bravado: the sound of an anonymous source getting increasingly excited by what they are imparting.

But the first part looks to me as if it may be tied to the circulation of internal government legal advice.

So with my former government lawyer hat on, let us look what could be the situation:

1. The government has a plan to deal with the boats and this plan requires legislation.

2. The government has obtained legal advice on that plan and perhaps even on the wording of the draft legislation.  This advice may be internal advice from the government legal service, and/or it could have been obtained from external specialist counsel.

3. That legal advice is that both the plan and the draft legislation may be compliant with the Human Rights Act 1998 which gives effect to the ECHR in domestic law and, if so, they will be upheld in the domestic courts.

4. However, that legal advice may also include the proviso that the ultimate  arbiter of the ECHR, the European Court of Human Rights in Strasbourg may take a different view – either on a final or on an interim basis.

5. A minister – perhaps the Prime Minister – has decided to proceed with the plan and the legislation on the basis of this legal advice.

If the above analysis is (roughly) correct then the politics of the situation may unfold as follows.

First, if the domestic courts and/or the Strasbourg court hold that the plan and/or the legislation is/are not compliant with the ECHR then it is not the government’s fault but that of the judges and the lawyers.

Second, if the the plan and the legislation is/held to be compliant then the government had won its showdown with the judges and the lawyers – by threatening to leave the ECHR the government has got the courts to cower.

In either scenario, the government will be beyond blame.

The politics of the situation would be, if the above is correct, a win-win for the government.

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But.

If the government does lose, and the courts hold that the plan and/or the legislation is/are held not to be compliant with the ECHR, what about the threat to leave the ECHR?

This is the bit which is not really thought-through.

As this blog has set out previously, the Good Friday Agreement requires the ECHR to be enforceable directly in the courts of Northern Ireland.

(The Human Rights Act 1998 currently does this for Northern Ireland, as well as for the rest of the United Kingdom – but it does not matter what legislation does it, as long as it is done.)

There is no obvious way that the ECHR can be enforceable directly in the courts of Northern Ireland if the United Kingdom is not a party to the ECHR.

Even attempts to carve out the jurisdiction of Northern Ireland from the rest of the United Kingdom – creating yet another legal(istic) border down the Irish Sea – are unlikely to work.

This is because Article 1 of the ECHR requires its signatories to secure to everyone within their jurisdictions the rights and freedoms set out in the ECHR – and so the United Kingdom cannot be a signatory for some parts of the United Kingdom and not others (emphasis added).

And unless the United Kingdom is the signatory, the ECHR cannot have legal effect so as to be directly enforceable in the courts of Northern Ireland.

The alternative possibility that Ireland still being a signatory to the ECHR could be used as the legal basis for giving direct effect to the ECHR in the courts of Northern Ireland would presumably be a non-starter with the unionist community.

In essence: if the United Kingdom leaves the ECHR then it would seem the United Kingdom will be in breach of express provisions in the Good Friday Agreement.

And all this would be in addition to the reaction of the United States of America to a breach of the Good Friday Agreement – especially as long as Joseph Biden is President.

It is impossible to see how withdrawal could be done without upset.

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Of course, some would say it is a pity that it is only the Good Friday Agreement that would prevent the United Kingdom government leaving the ECHR.

Surely there are better arguments against leaving than that?

But even if there are better normative points to make on behalf of the ECHR, the Good Friday Agreement would be a formidable structural obstacle to withdrawal.

And changing the Good Friday Agreement would probably need the consent of at least the Northern Irish in a referendum, if not that of the voters of Ireland too.

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And it appears that current Conservative backbenchers are underwhelmed by this threat, with one correctly using the technical legal term “willy waving”.

As Politico reports:

Enough of the willy waving: Playbook has seen texts exchanged in the “Home Group” of Tory MPs in response to the story over the weekend. Replying to a message from Jonathan Gullis, who had shared it approvingly, Doyle-Price said that “willy waving about leaving the ECHR will do zilch” and declared: “I have been a member of the Conservative Party for 36 years. This group leaves me cold. Upholding the law should never be a matter for debate for a Conservative. Our Home Office is crap. If the government wants to have a phone[y] war over the ECHR instead of sorting itself out it can do it without me.”

Everyone’s a critic: There was more backlash in the group from David Simmonds, who said that “the ECHR is not the issue here. By pretending it is, we are setting ourselves up for a fall as a UK court will take the same line,” and called for reform of the asylum system. Alicia Kearns agreed that “it’s exactly as David sets it out. We cannot tackle asylum claims when we haven’t given ourselves the legal grounding on coming here illegally.” Anna Firth said that while she was happy to be proven wrong, she thought Doyle-Price was “bang on the money” about the ECHR “rabbit hole.”

[…]

On the record: Bob Neill told the Financial Times that it would be “unbelievable” for the U.K. to put itself “in the same company as Russia and Belarus” by leaving the ECHR, while former justice sec Robert Buckland calls it “an undesirable state of affairs.”

 

*

What seems to have happened is that that a political castle was improvised this weekend on the mound of what probably is some fairly unexceptional legal advice about whether the government’s latest plan and draft legislation would survive legal challenge at home and in Strasbourg.

On the basis of that legal advice, politicians and their advisers appear to have rapidly gamed certain political tactics, free from any thought about the structural legal problems, as well as without realising the lack of backbench support.

This is not to say that the current governing party is not capable of putting departure from the ECHR in its manifesto and, if they are again returned, seeking to put that commitment into effect.

(Withdrawal from the ECHR is unlikely before the next general election, as it was not in the 2019 Conservative manifesto, and there would be not enough time to force it through the House of Lords.)

In this age of Brexit and Trump, no such political move can be discounted.

But it would not be easy.

And it would require considerably more thought and planning than the current anonymous briefings indicate has taken place.

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A look at Keir Starmer’s proposal for a “Taking Back Control” Bill

5th January 2023

Today the leader of the main opposition party in the United Kingdom gave a speech.

You can read a version of Keir Starmer’s speech on the Labour party website.

One part of it which seems possibly interesting from a legal perspective is a proposal for a “Taking Back Control” Bill.

This is what the speech said:

“So we will embrace the Take Back Control message. But we’ll turn it from a slogan to a solution. From a catchphrase into change. We will spread control out of Westminster. Devolve new powers over employment support, transport, energy, climate change, housing, culture, childcare provision and how councils run their finances.

“And we’ll give communities a new right to request powers which go beyond this.

“All this will be in a new “Take Back Control” Bill – a centrepiece of our first King’s speech. A Bill that will deliver on the demand for a new Britain. A new approach to politics and democracy. A new approach to growth and our economy.”

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This call for de-centralisation and devolution will face the two fundamental problems every such call has faced since the nineteenth century.

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The first problem for de-centralisation and devolution is the doctrine of the supremacy of the Westminster parliament.

This doctrine, which in good part was a Victorian innovation not known to earlier jurists, tells that all legislative power in our polity rests with the Crown-in-Parliament.

This means that no other body in the United Kingdom can legislate other than to the extent permitted by the Westminster parliament.

Recently this doctrine was illustrated by the Supreme Court decision on a reference by Scotland’s Lord Advocate.

In effect, the Scottish parliament is merely another statutory corporation, subject to the rule of ultra vires.

The Westminster parliament will not easily forego this legislative supremacy and – if we adhere to the doctrine of parliamentary supremacy – it may be impossible for the Westminster parliament to do so.

This means that any de-centralisation and devolution is at the Westminster parliament’s command: Westminster can grant this seeing autonomy, and Westminster can easily take it away.

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What we do have are numerous devolution and local government statutes, all defining and limiting what various authorities can and cannot do.

There is no real autonomy – even for the Scottish parliament.

No ability to do things despite what the Westminster parliament would like an authority to do.

Ambitious projects by local authorities – such as when the Victorian town of Birmingham (not even yet a city) went and bought and operated its own gas and water industries – would be impossible now.

That is real de-centralisation and devolution – doing things the centre cannot stop.

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The second problem for de-centralisation and devolution is in respect of policy and administration, rather than law.

It is the sheer dominance of HM Treasury in Whitehall and the public sector more generally.

For example, HM Treasury has a monopoly in respect of almost all fiscal and financial – that is, tax-raising and borrowing – powers.

(Even the Scottish parliament has limited autonomy to vary income tax rates and the Scottish government power to borrow money.)

And no public body has complete fiscal autonomy – and, indeed, many public bodies rely on central government for grants and financing.

It is unlikely that Whitehall will happily allow regional authorities and devolved administrations absolute power to raise taxes and borrow money.

*

And now back to the word “control”.

Unless regional authorities and devolved administrations have absolute power to raise taxes and borrow money, or to make rules and mount ambitions problems, then they do not have “control”.

Instead, “control” will stay – as it always does – with Westminster and Whitehall.

Westminster and Whitehall can extend the leash, but they can pull the leash back.

That is not “control”.

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Looking more closely at Starmer’s speech, it is not clear to whom this “control” is to be actually given.

Consider the following passages (emphases added):

“…the Britain that Labour can build. A fairer, greener, more dynamic country with an economy that works for everyone, not just those at the top. And a politics which trusts communities with the power to control their destiny.”

“Giving communities the chance to control their economic destiny. The argument is devastatingly simple.”

“It’s not unreasonable for us to recognise the desire for communities to stand on their own feet. It’s what Take Back Control meant. The control people want is control over their lives and their community.”

“We need to turbo-charge this potential, but Westminster can’t do that on its own, it can only do it with communities. That’s why Labour will give them the trust. The power. And the control.”

And so on.

There is noting specific here as to who will get this supposed “control”.

Will it be existing local authorities or new regional bodies?

Will it be new legal entities smaller than existing councils?

And – most importantly if this really is about “control” – what will happen if those “communities” want to do something which Westminster and Whitehall do not want them to do?

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Starmer did list some of the topics where there could be devolution of powers: “employment support, transport, energy, climate change, housing, culture, childcare provision and how councils run their finances”.

But devolution is not granting “control”, as there will be limits to what even the most ambitious local authority will be able to do in the face of any opposition from Westminster and Whitehall.

And there is also a respectable argument – which you may or may not endorse – than on issues such as transport and housing, there needs to be far less local autonomy, not more, so for us as to escape the ongoing blight of NIMBYism.

*

Starmer insisted in his speech that the “Take Back Control” will be turned from “a slogan to a solution”.

And it we missed the import of that rhetorical turn, Starmer then said it will be turned from “a catchphrase into change”.

(This is reminiscent of his predecessor Tony Blair’s wonderful statement once that “[a] day like today is not a day for soundbites, we can leave those at home, but I feel the hand of history upon our shoulder with respect to this, I really do.”)

But there is nothing in this speech which does go beyond slogans and catchphrases.

There is no substance to the supposed “controls” which are to be given “back”.

And there is nothing specific as to whom or what those “controls” are to be given.

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You may have Very Strong Opinions on de-centralisation and devolution.

You may welcome Starmer’s speech as a good and welcome signal of change.

You may oppose it as it may mean impediments to policies which may need to be directed at the national level.

But what one cannot say is that it tells us much, if anything, about how de-centralisation and devolution is to work in practice.

And it says nothing about how – at least in England – local authorities can break free from the real controls of Westminster and Whitehall.

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What is going to now happen with the Bill of Rights?

9th December 2022

You really would need a heart of stone not to laugh like a drain:

This blog has previously compared Dominic Raab’s quest to repeal the Human Rights Act with Captain Ahab’s quest to get Moby Dick.

And it would appear that Raab is going to fail, again.

It looks likely that his “Bill of Rights” – which was to repeal the Human Rights Act and to make it more practically difficult to rely on the European Convention on Human Rights  – will be dropped.

As it is, there has been no legislative movement on the Bill since 22 June 2022, which is now almost six months ago:

The Human Rights Act 1998 will still be there, and Dominic Raab may soon not be.

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But.

Those generally supportive of the Human Rights Act and the European Convention on Human Rights should not be tempted into complacency by the apparent dropping of the Bill.

There are many ways a canny government can subvert human rights protections – subtle, hidden ways.

All that has failed here is a loud and clumsy frontal attack.

In a way, such performative proposals are the easiest to deal with, as they often collapse from their own absurdity.

The Home Secretary Suella Braverman is also no friend of the European Convention on Human Rights, but she and her Home Office of lawyers will come up with less obvious proposals in upcoming legislation.

The convention itself is fairly safe as part of our domestic law, as the Good Friday Agreement expressly requires convention rights to be directly enforceable in the courts of Northern Ireland.

There is thereby little-to-no chance that the convention will be taken out of our domestic law.

And there now seems little chance that the Human Rights Act, which gives effect to the convention in our domestic law, will itself be repealed.

But in the two or so years before the latest date for the next general election – January 2025 – there is a great deal ambitious ministers can do try to do with more focused legislation.

So while we can afford a moment at this festive time of merriment to have a hearty cheer at the apparent failure of the Bill of Rights, we must stop the cheering when the Christmas decorations come down.

And be braced, braced for the new year.

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Comments are welcome, but they are pre-moderated and comments will not be published if irksome.

Centralisation is inevitable in the United Kingdom, unless there are radical reforms which no government will make

5th December 2022

The former prime minister Gordon Brown, on behalf of the opposition Labour party, has put forward proposals for de-centralising the state of the United Kingdom.

This is rather ironic in that Brown, as chancellor of the exchequer, was one of the most centralising ministers of modern times.

Under Brown the Treasury dominated Whitehall and the civil service generally, and it also sought to enforce discipline on the public sector generally.

(I know this, as I was a civil service lawyer at Brown’s Office of Government Commerce, which was one of the ways the Treasury sought to control and shape central and local government.)

Perhaps Brown has since had a conversion.

He was, after all, the politician who once gave away the powers of the Treasury in respect of interest rates to an independent Bank of England.

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But the problem of centralisation is bigger than Brown or any one politician.

Centralisation is the gravitational pull of the constitution of the United Kingdom.

The force can be bucked from time-to-time, but it will always be there.

In legal terms, the gravitational pull comes from the doctrines of the supremacy of parliament and the royal prerogative.

All public bodies, other than parliament and the crown, are subject to the ultimate control of law made by the crown-in-parliament.

Even the Scottish Parliament, as the Supreme Court recently decided, is effectively no more than a statutory corporation subject to a strict rule of ultra vires.

Local government bodies are in similar but worse positions.

In policy and political terms, a further gravitational pull comes from the Treasury.

The Treasury dominates public spending and public revenues.

No other public body is likely to be given absolute autonomy over spending and revenues.

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Politicians may go through the motions of de-centralisation, with a token development here and some well-meaning gesture there.

But the fundamental forces generated by the Westminster parliament and HM Treasury will not go away.

It would only be by devolution and regional settlements so radical that the powers of Westminster and Whitehall were vanquished forever that de-centralisation would be sustainable.

Self-denial would not enough – what would be needed would be constitutional self-destruction.

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This self-destruction is never going to happen – at least not easily.

Scotland and Wales are not going to be granted dominion status, like Australia or Canada, with their Parliament and Senedd being co-equal with Westminster’s assembly.

The regions are not going to be permitted to become like American states or German Länder, with powers that no central government can gainsay.

But without such radical constitutional surgery, the relentless force of centralisation will be there.

No United Kingdom government is going to freely give away its legislative power in parliament or its policy dominance with the Treasury.

And so we will just have tokens and gestures of de-centralisation again, only to fail; and then – in a few more years – these motions of de-centralisation will be repeated, and they will fail again.

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