Beyond Brexit: Towards a British Constitution

vb_image_70x90Brexit is a major constitutional change. It creates considerable constitutional uncertainty, but also opportunity. It could prove Britain’s constitutional moment. Vernon Bogdanor argues that just as joining the EU fundamentally altered the UK constitution, so Brexit could, by exposing the very nakedness of Britain’s uncodified arrangements, prove a catalyst for a written constitution.

During the period of membership of the European Communities/European Union, the UK was subject to a written or codified constitution, which was entrenched. Brexit is a process rare if not unique in the modern world, involving as it does disengagement from a codified to an uncodified system. It is just possible indeed that Brexit will lead to a codified constitution for the United Kingdom that would bring us into line with virtually every other democracy in the modern world.

At a seminar at King’s College, London shortly after the 2016 EU referendum, Takis Tridimas, a professor of European Law at King’s said that the result represented the most significant constitutional event in the UK since the restoration of the monarchy in 1660, since it showed that on the issue of Europe, the sovereignty of the people trumped the sovereignty of Parliament. Of course, from a legal point of view, the referendum was merely advisory, but the government committed itself to respecting the result and the outcome was seen by the majority of MPs as decisive. Since June 2016, therefore, both government and parliament have been enacting a policy to which they are opposed. That is a situation unprecedented in our long constitutional history. Europe, therefore, has been responsible for the introduction of a new concept into the UK constitution, the sovereignty of the people. On this issue, the people have in effect become a third chamber of Parliament, issuing instructions to the other two. The sovereignty of Parliament is now being constrained not by Brussels, but by the people.

The effects of the European Communities Act on the UK constitution

The main constitutional consequence of our EU membership was to restrict the sovereignty of parliament. Parliamentary sovereignty must be distinguished from national sovereignty, with which it is often confused. National sovereignty is engaged whenever a country signs a treaty. It is not an absolute, it can be pooled or shared with other countries, and it is a matter of political judgement how far it should in fact be shared. But parliamentary sovereignty – the notion that Parliament can enact any law it chooses – is not like that at all. It is an absolute. One either has it or one does not. One can no more be a qualified sovereign than one can be a qualified virgin. Continue reading

Federal reforms in Austria: is now the time to overcome gridlock?

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The promise of ‘change’ was key for the Austrian Christian Democrats’ landslide victory in last year’s general elections. Recent sub-state polls, however, have perpetuated the influence of incumbent governors – and their power to veto the new government’s plans to reform Austria’s federal system. Patrick Utz analyses the links between current electoral dynamics, the country’s corporatist heritage and the potential for federal reforms in Austria.

When in October 2017 the Christian Democrat ÖVP and their 31-year-old leader, Sebastian Kurz, won their first federal elections in 15 years, they did so based on the promise of profound ‘change’. This vaguely defined agenda first materialised when Kurz formed a coalition with the far-right Freedom Party (FPÖ), which brought the long-standing ‘Grand Coalition’ between Social Democrats (SPÖ) and Christian Democrats to an end.

A central element of the new coalition agreement is an administrative reform, which may have far-reaching implications for the country’s federal structure. Unsurprisingly for a state that has been described as a ‘federation without federalism’, the promised reforms will most probably lead to further centralisation at the expense of the nine constituent Länder. Rather than the direction of change, the puzzling question about Kurz’s plans is whether they will occur in the first place.

Deadlock through informal vetoes

Austria’s peculiar system of cooperative federalism, along with the country’s strong corporatist tradition has long been immune to noteworthy changes. In spite of the Länder’s very limited self-rule and quasi-negligible formal mechanisms of shared-rule at the centre, regional political elites have long been able to have their say in federal decision-making. The most visible mechanism of these informal forms of regional interference is the ‘Conference of Governors’: a regular gathering of the nine Länder’s heads of government with no legal status but with very effective veto powers concerning federal legislation. Subtler forms of political influence, particularly through party-internal channels, might have been an even more powerful tool in the hands of regional elites. Continue reading

Monitor 68: A constitution in flux

The latest issue of Monitor, the Constitution Unit’s regular newsletter, was published today. The issue covers all of the major UK constitutional developments over the past four months, a period that has seen the EU (Withdrawal) Bill pass from the Commons to the Lords; the failure of talks in Northern Ireland; and a significant government reshuffle. Abroad, Ireland is considering a permanent constitutional change and Japan has seen a constitutional first as its current emperor confirmed he is to abdicate. This post is the opening article from Monitor 68. The full edition can be found on our website. 

The UK is experiencing a period of deep constitutional uncertainty. In at least four key areas, structures of power and governance are in flux. Screenshot_20180308.210141 (1)

The first of these, of course, is the nature of the UK’s future relationship with the European Union, to which the Brexit negotiations will shortly turn. The degree to which the UK continues to pool its sovereignty with other European countries depends on the form of that relationship: how far, and on what issues, the UK continues to adhere to EU rules, align closely with them, or follow its own separate path. Theresa May set out her most detailed proposals yet in a speech at Mansion House on 2 March, advocating close alignment outside the structures of the EU Single Market and Customs Union. On 7 March, the President of the European Council, Donald Tusk, published draft guidelines for the EU’s position. As before, this emphasises ‘that the four freedoms of the Single Market are indivisible and that there can be no “cherry picking.”’ What deal will emerge from the negotiations is entirely unclear.

The government’s preferred path will face stiff resistance in parliament too. In late February Jeremy Corbyn signalled that Labour wants a UK–EU customs union (an issue also central to the conclusions reached by the Citizens’ Assembly on Brexit). Consequently the government now risks defeat on an amendment to the Trade Bill pursuing the same objective, tabled by Conservative backbencher Anna Soubry. Beyond that, an amendment to the EU (Withdrawal) Bill passed in the House of Commons in December guarantees that the deal between the UK and the EU agreed through the Brexit negotiations will need to be endorsed by an Act of Parliament in the UK. Brexit’s opponents are increasingly vocal and organised, and occupy a strong position in Westminster. The odds remain that Brexit will happen, but that isn’t guaranteed. Continue reading

Unison v Lord Chancellor: the things that landmark constitutional cases are made of

On Wednesday the UK Supreme Court ruled court fees for claims before employment tribunals, introduced by the coalition government in 2013, to be illegal. Christina Lienen argues that this judgement is likely to join the ranks of landmark constitutional decisions, given its characterisation of the UK constitution as founded in common law and therefore in the hands of judges rather than politicians.  

On Wednesday, in a single majority judgement, the United Kingdom Supreme Court (‘UKSC’) declared the recently introduced court fees for claims before employment tribunals and employment appeal tribunal to be unlawful. In this post it is argued that Unison v Lord Chancellor [2017] UKSC 51 promises to join the ranks of constitutional landmark decisions owing to (i) the autochthonous choice of legal sources and particularly the reliance on common law constitutional rights, and (ii) the unequivocal commitment to the rule of law. Their significance is underpinned by the vigorous scrutiny with which the arguments on both sides were examined as well as by the quashing remedy given.

The facts and the law

The law in question is the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013, SI 2013/1893 (‘the Fees Order’), adopted by the Lord Chancellor in the exercise of his statutory powers. Under the rules, a claim can cost a single claimant between £390 and £1600. In September 2014, Unison issued a claim for judicial review seeking to have the Fees Order quashed on the grounds of effectiveness and discrimination, mainly on the basis of European Union law, although partial reference was made to some domestic authorities and judgements by the European Court of Human Rights. The Supreme Court went down the common law route instead, asking whether the fee order was ‘unlawful under English law’. Lord Reed’s judgement is endorsed by all members of the panel, with Lady Hale writing a separate judgement on the issue of discrimination, which is not considered at great length in the majority judgement.

The autochthonous choice of legal sources and common law constitutional rights

The constitutional magic of the judgement happens in paragraphs 64 to 104. By saying that ‘the right of access to justice is not an idea recently imported from the continent of Europe, but has long been deeply embedded in our constitutional law’ [64], Unison echoes the jurisprudence on common law constitutional rights that was shaped powerfully by other UKSC judgements, including notably Osborn v Parole Board [2013] 61 UKSC, A v British Broadcasting Corporation [2014] UKSC 25, Kennedy v The Charity Commission [2014] UKSC 20, and also Rhodes v OPO (by his litigation friend BHM) and another [2015] UKSC 32 and Beghal v Director of Public Prosecutions [2015] UKSC 49. Similar to those cases, Unison displays an emphasis on (a) the historical foundation of these rights by reference to Magna Carta [74], (b) intellectual authority by reference to Sir Coke’s seminal Institutes of the Laws of England, which address the right of access to the courts [75], and (c) case law from the first peak of common law constitutional rights in the 1980s and 1990s, prior to the passing of the Human Rights Act 1998 [76-80]. Particular attention is paid to the Court of Appeal decision in R v Lord Chancellor, ex p Witham [1998] QB 575, which is used as precedent.

Importantly however, Unison goes further than these authorities. In contrast to Osborn, it not only puts the common law centre-stage by making it the starting point of the legal analysis but also implies, in the context of this right at least, the sufficiency of the common law [89]. Furthermore, in contrast to A v BBC, this judgement is more consistent as both the law and the application of the law to the facts is common law based rather than ECHR or EU law based, thereby mirroring the approach in Rhodes. Finally, citing R v Secretary of State for the Home Department, ex p Leech [1994] QB 198 and R (Daly) v Secretary of State for the Home Department [2001] UKHL 26, Lord Reed says that ‘even where primary legislation authorises the imposition of an intrusion on the right of access to justice, it is presumed to be subject to an implied limitation’, thereby bolstering the authority of the common law and the discretion of the courts in the face of explicit statutory human rights abrogation [88]. This last point is closely connected to the court’s commitment to a rich notion of the rule of law.

Lord Reed does not refer to his judgements in Osborn, A v BBC and the like, but instead spends considerable time discussing judgements from the first wave of common law constitutional rights. Perhaps this means that the substantive constitutional right in question, here access to the courts, is considered more pertinent than the underlying power of the courts to develop these rights. None of the younger judgements engage the right of access to the courts. Or perhaps the fundamental question as to the power of the courts to locate constitutional rights at common law and to enforce them against legislation was being avoided.

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