High Court’s Article 50 judgement is best outcome for all

For the first time in a while, I woke up to headlines that gave me a glimmer of hope that not all has completely gone to the dogs:

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I took the time to read through the full judgement (PDF), which is something of a master class in British constitutional law and statutory interpretation; full of exactly the points that I and other legal commentators have been making since the EU referendum was announced relating to British Parliamentary sovereignty.

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Specifically, the judgement superbly outlines and solidifies limits on the Royal Prerogative, which is a power oft-criticised for its vast, unchecked reach, and past abuses.

“The powerful constitutional principle is that the Crown should not have power to vary the law of the land by the exercise of its prerogative powers.”

Essentially, the judgement was that based on the Diceyan principle of Parliamentary Sovereignty; that it is the British Parliament who must give the Article 50 notification; not the Government via the Royal Prerogative.

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Despite the strong, and reasoned nature of the judgement, the response from those who voted to leave has been almost unbelievable, with Conservative MPs declaring that the Government should not be bound by unelected judges (which is literally, the entire basis of the rule of law), and that the decision to require Parliament’s involvement is ‘disgraceful’.

Dictionary definition of contradiction in terms.
Dictionary definition of contradiction in terms.

To be clear: today’s judgement was not about whether or not we leave the EU; instead, it simply re-asserted the sovereignty of the British Parliament, which is exactly what the leave campaign was arguing had been lost in the first place. If Parliament does decide to completely refuse to trigger Article 50, then that would arguably be a disgrace. The referendum was held, and the outcome should be respected; something that I have repeated time and again on this blog. However, Parliament should be involved.

The UK voted to leave the EU, yes, but the kind of exit was never specified. We were faced with the prospect of having the most extreme form of severance possible, thrust forward at the whim of an unelected Prime Minister. Instead, now we have Parliament involved in determining the kind of exit.

The Government argued in it submissions that Parliament would most likely have the chance to vote on any deal that was reached with the EU before it was implemented, and that it wasn’t necessary to have Parliamentary approval to trigger Article 50. The Court quite sensibly rejected this notion, on the basis that by the time any such vote came around, there is the real chance that the time limit imposed by the European Treaty would run out, and leave us with no rights or compromises.

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By all means, get angry if Westminster completely refuses to ever trigger Article 50, but to be outraged at the principle that the British Parliament should be involved in the implementation of one of the most significant political processes of our lifetime is plainly just nonsensical. To reiterate: today’s question isn’t about whether or not Article 50 should be triggered, but who has the power to do it – on behalf of the people.

Of course, all of this is subject to a final appeal to the Supreme Court, so we will see what happens in the next leg.

I’ll wrap up with this text, taken from the Fire Brigades Union case, and quoted in today’s judgement:

R v Secretary of State for the Home Department ex parte Fire Brigades Union [1995] 2 AC 513
R v Secretary of State for the Home Department ex parte Fire Brigades Union [1995] 2 AC 513
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No, the Scottish Parliament isn’t Sovereign

Today I came across an article published on CommonSpace.scot by a guy called Anthony Barrnett, founder of opendemocracy.net. Entitled ‘Why the EU vote is an English, not British, reckoning’, it discusses the upcoming EU referendum, and the potential implications, with a particular look at the Scottish element.

It seemed like a good read, but before I got too far into it, there was this section:

Scotland has its own sovereign parliament. I emphasise sovereign, The Vow opens by saying that the Scottish Parliament is ‘permanent’. Gordon Brown, who oversaw the formulation of The Vow, was fully aware of the explosive constitutional consequences of this term.

It means that Westminster’s sovereignty no longer extends to Scotland. Now, suppose this sovereign parliament is confronted with the circumstances you describe. I’m not saying they are likely, but if indeed the referendum is as close as the polls currently suggest (not that I believe in them) then it is possible that there will be a vote for Brexit.

As a supporter of Scottish independence, I am all for strengthening the position of our Parliament wherever possible. However, that doesn’t extend into flights of fantasy. To that end, I feel compelled to clarify a few things in response.

On permanence

The formal statutory recognition of the Scottish Parliament as ‘permanent’ was undeniably symbolically important, but in reality it did little to impact the actual constitutional position. In fact, arguably this is precisely why Gordon Brown promised to make this change in the infamous vow; it sounds great rhetorically, without having any substantive practical effect.

The reason for this is pretty straightforward. Despite placing the Sewell Convention ‘on a statutory footing’, the British Parliament still retains ultimate sovereignty. If Westminster were to decide tomorrow that the Scottish Parliament should be abolished, passing an Act to that effect, there is nothing legally that would prevent them from doing so. No Parliament can bind another (or itself) through legislation (following Dicey’s Doctrine of Parliamentary Sovereignty). For this reason, the following clause (taken from the Scotland Act 2016) seems noble, but ultimately without any effective enforcement:

it is declared that the Scottish Parliament and the Scottish Government are not to be abolished except on the basis of a decision of the people of Scotland voting in a referendum

For some time there was a theory that certain Acts of Parliament have come to be entrenched with such constitutional importance that they have taken on a special status, and that their repeal could potentially be resisted by rebellious judges, should Parliament dare to attempt it. Examples of these include the European Communities Act 1972 (ECA), the Human Rights Act 1998, and the Scotland Act 2016. However, given the political developments over the past 5+ years, (not to mention the referendum that we are in the middle of) it should be clear that this is not the case. For more reading on that particular point, see this article on the UK Constitutional Law site.

Of course, should Westminster seek to abolish the Scottish Parliament, the fallout would likely be astronomical, but that does not mean that they do not hold the legal power to do so. Holyrood could well be permanent, but if so, it is only through the protections of the will of the Scottish people: not the law.

On Sovereignty

Scotland has its own sovereign parliament. I emphasise sovereign.

Given that the Scottish Parliament is not permanent in any legal sense, then it naturally cannot possibly be sovereign. By definition, if another body ultimately has the legal authority to bring your existence to an end, then you do not hold sovereignty.

To illustrate this further, s.29(1) of the Scotland Act 1998 states:

an Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament

going on to explain that this includes [the Parliament] having: ‘no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights.’ In other words, it is legally impossible for the Scottish Parliament to bring about any law or action that is incompatible with the European Convention on Human Rights. Note, that this restriction doesn’t apply to the Parliament in Westminster. Why? Because Westminster is sovereign, and Holyrood is not. A sovereign Parliament cannot be legally bound in this way. Whilst Westminster can willingly choose to restrict its sovereignty by entering into international treaties and accepting the corresponding obligations, that does not mean that sovereignty is relinquished, and it does not have the restriction imposed by a third party.

Another grand statement included in the CommonSpace article is this:

It means that Westminster’s sovereignty no longer extends to Scotland.

What a wonderful thought! I am not sure how the author has come to this conclusion, as they don’t expand on this further in the article, but as it stands, it is completely inaccurate.

Again, whilst convention may dictate that the Westminster Parliament will not legislate in areas which fall within the competence of the Scottish Parliament, that does not mean that they are unable to do so. In fact, the whole nature of the Scottish Parliament is based on the granting of powers from Westminster. The only legal authority that the Scottish Ministers have is that derived from the sovereignty of the British Parliament; ‘a creature of statute’.

So whit?

Why does this matter? It matters because if the Scottish Parliament was sovereign, then we would be an independent, sovereign country – exactly what those of us who voted ‘Yes’ in 2014 were fighting for. That simply isn’t the case, and perpetuating disinformation does a disservice to us all. So no Anthony, sadly the Scottish Parliament is not sovereign. Yet.

 

The Tories, Human Rights, and Scotland

Ever since they climbed into power on the shoulders of the Lib Dems, the Conservative Government has been threatening to do any number of the following:

  • Defy the judgements of the European Convention of Human Rights (ECHR)

  • Repeal the Human Rights Act 1998 (HRA)

  • Withdraw from the ECHR entirely

Aside from point one, where we saw the disgusting braying of mis-guided MPs as Westminster voted not to give (any) prisoners the ability to vote – thus racking up penalties against taxpayers in the process – these stated aims have so far been tempered by the unwillingness of the Lib Dems (or anybody else) to support them.

Now we hear that if the Conservatives win a majority in Parliament next year, that they will move to do some, or all of the above. Of course, we’re not entirely sure yet, as they haven’t seen fit over their entire term in power to begin to explain what a so-called ‘British Bill of Rights’ might look like. Plenty has been written on the lunacy of these plans by those far more able and influential than I, so I won’t spend time going over the same ground. However, one of the more interesting (and perplexing) possibilities that has been floated is the power and possibility of the Scottish Government blocking any removal of human rights obligations in Scotland, even if the situation is different in the rest of the UK. As the prolific blogger PeatWorrier commented:

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A few people have been discussing this possibility already, so it’s worth having a look at this in a bit more detail. Firstly, it’s important to know why the Tories are so hell-bent on attacking the conception of human rights as we know it.

Why do the Tories hate human rights so much?

The newspaper headlines will paint a story of pragmatic and concerned Conservatives who wish to deport ‘murderers, terrorists and rapists’, or stop them from having the vote. The notion of human rights as some sort of whiny legal set of technicalities akin to the dreaded ‘health and safety’ or ‘political correctness gone mad’ is presented, and almost always accompanied by sensationalist examples of people claiming that perfectly reasonable behaviour is infringing upon their rights. That these arguments don’t actually fall under the gambit of the HRA or the ECHR is irrelevant, so long as the words ‘human rights’ are in there somewhere, it’s enough to send Daily Mail readers everywhere into a frenzy-induced spell of foaming at the mouth.

However, there are two real main reasons why the Tories hate human rights. These are:

  • A dogged, and overblown sense of British sovereignty (the word British is important)

  • The inability to push through decisions whilst in Government because of the restrictions imposed upon them by the HRA and ECHR

This isn’t about any one example that we have seen over the past few years.

It isn’t about giving the prisoners the vote, or not being able to deport ‘that guy with the hook’, or even Christian Bed & Breakfast owners. This is about the Conservative Government’s ideological position – a uniquely British sense of entitlement based on a fundamental Diceyan view that nobody can over-rule a decision of the Westminster Parliament – not even Parliament itself.

This view is not without merit, and the positives of which are regularly put forward in arguments posited against the ‘meddling’ of the European Court of Human Rights (ECtHR) in Strasbourg. The theory is that Parliament is voted for by the British people, and so that Parliament should be sovereign at any one time, not bound by the decisions of any other body, including previous Parliaments.

However, whilst this idea of Parliamentary sovereignty sounds grand and principled, and no doubt served the Empire very well in times gone past (thank you very much), it is almost certainly no longer the case. As proponents of the Union were quick to declare during the debate on Scottish independence: ‘now is not the time to fragment communities and cause division, we are better together.’ What they failed to mention of course is that the British idea of Parliamentary sovereignty is incompatible with the idea of collective governance, or supranational jurisdiction. That is the real threat to the international bonds that tie us to other countries through trade and mutual obligations – not the independent status of a country itself.

Scotland Can’t Keep the HRA or ECHR Alone

The two possibilities opened up by the Conservatives lately are:

  • The UK would ‘negotiate’ changes to the relationship with the ECHR, so that decisions of the ECtHR would merely be ‘advisory’ rather than binding to Westminster and British courts

  • Failing the above, the UK would seek to withdraw from the ECHR completely, and establish a ‘British Bill of Rights’

It’s safe to say that the chance of the first scenario happening is slim to none, so we’ll focus on the second.

To quote from the Scotsman article mentioned above:

But if the opinion of Scotland’s elected representatives at Holyrood is to keep the Human Rights Act and its final court in Strasbourg, would Mr Cameron really be prepared to override that opinion?

The suggestion is that if the UK were to withdraw from the ECHR completely, that somehow Scotland could retain the current system separately. This ignores how the system actually works in practice.

Scotland and the ECHR: 

For the avoidance of any doubt, Scotland is not an internationally recognised state, nor a (separate) member of the European Council. It would be impossible for Scotland to remain part of the ECHR if the UK was to pull out. We had our chance for this to be a possibility, and we voted no. Equally, Scotland would have no special say over any other British region in whether or not the elected Westminster Government decided to remove the UK from the ECHR.

Scotland and the HRA: 

The Human Rights Act is written in to the fabric of the Scotland Act 1998 (which brought about the creation of the Scottish Parliament). As a creature of statute, the Scottish Parliament cannot pass laws that are incompatible with the Human Rights Act 1998, and are required to make a statement effectively recognising this before a law is passed on for Royal Assent. This is part of the reason why it has been suggested that Scotland should be ‘consulted’ before doing away with the HRA. Whilst this makes for an interesting political confrontation between the Scottish Parliament and Westminster over the type of country we might want to live in, it doesn’t seem clear how exactly Scotland could be consulted, or have any sort of say in the possible repeal of the HRA.

Accountability: 

Technically, the obligations contained within the HRA could be transposed into an Act that only applied to Scotland. This would require Scottish public authorities to act in a manner which is compatible with the ECHR rights, and allow individuals to bring actions against them where their rights were breached. However, it is at this point that things begin to fall apart.

The force of the ECHR comes from the ECtHR in Strasbourg. This greater authority that exists at a level above member states is necessary to protect people from decisions of their governments. Whilst the conversation in Scotland isn’t framed this way at present, it would be difficult to see where this force would come from should Scotland retain some form of HRA separately to the rest of the UK.

For example, if a human rights claim was raised against a decision of the Scottish legal system, who would hear the case? As already explained, Scotland would not be a signatory, and so recourse to the ECtHR would not be possible. There would be no appeal to courts elsewhere in the UK either, as (god forbid) they don’t have jurisdiction, and they would be ill-equipped to do so in any event – given that they would be operating in a completely different rights based framework.

Whilst a commitment to the operation of human rights in Scotland could be adopted, and enforced by the Scottish Parliament, it would lack the necessary accountability to operate in anything but a shadow of the form that currently exists.

This renders the proposition completely unworkable.

I believe that it is right for the Scottish Government to defend the HRA, and our continued membership of the ECHR – this is something that we all need to do. However, to suggest that Scotland could somehow operate the European human rights framework separately from the rest of the UK is fanciful.

For a more detailed legal look at this topic, see this post on the UK Human Rights blog.