Brexit and the sovereignty of parliament: a backbencher’s view

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Brexit is a constitutional, legal, and political challenge of a size the UK has not seen in decades and will have consequences that are both uncertain and long-lasting. In this post, Dominic Grieve offers his distinctive perspective on Brexit, discussing the concept of parliamentary sovereignty, the role of international courts in UK law, and the more troubling aspects of the Withdrawal Bill itself. 

The EU and the sovereignty of parliament

My Brexiter colleagues have in varying degrees signed up to the view that EU membership undermines the sovereignty of parliament in a manner which is damaging to our independence and our parliamentary democracy. This certainly fits in with a national (if principally English) narrative that can be traced back past the Bill of Rights 1688 to Magna Carta in 1215.  This narrative has proved very enduring; it places parliament as the central bastion of our liberties.

But it can also be used merely as an assertion of power, particularly when the executive has effective control over parliament. It is with that power that parliament enacted the European Communities Act 1972, which gave primacy to EU law in our country. It was parliament that chose to allow what is now the Court of Justice of the European Union (CJEU) to override UK statute law, so as to ensure our conformity with EU law in all areas in which it has competence.

The justification for requiring that supremacy was that without it, achieving adherence to the treaties and convergence between member states in implementing EU law would be very difficult. This was not an unreasonable argument; but it is hard to avoid concluding that the supremacy of EU law lies at the root of the feeling of powerlessness felt by sections of the electorate and reflected in the referendum result. This feeling has been encouraged by the habit of successive UK governments to hide behind decisions of the EU as a justification for being unwilling to address problems raised by its own electors. But where the lawyer and politician in me parts company with the views of my Brexiter colleagues is in the extent to which they appear oblivious to the extent to which parliamentary sovereignty is not – and never has been – unfettered. Continue reading

Are quotas for judicial appointments lawful under EU law?

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A recent report laid out recommendations for improving diversity in the judiciary, including a quota system for women and BAME candidates. Kate Malleson and Colm O’Cinneide explore the legality of such measures under EU law, and specifically whether the quotas could be brought in under EU employment law or EU gender equality law.

In April 2014 Sadiq Khan, Shadow Secretary of State for Justice, asked Karon Monaghan QC and Geoffrey Bindman QC to review the options for a future Labour Government to improve diversity in the judiciary. On November 6th their report, entitled ‘Judicial Diversity: Accelerating change’, was published. Starting from the premise that ‘[t]he near absence of women and Black, Asian and minority ethnic (BAME) judges in the senior judiciary is no longer tolerable’, it proposes a range of recommendations designed to speed up the glacial pace of change. Perhaps the most controversial of these is for the introduction of a quota system for women and BAME candidates. The report reviews the use of quotas in other UK institutions as well as their use in judicial appointments processes around the world, before addressing the question of whether such quotas would be lawful under EU law. This is a key question: EU law casts a long shadow in this context, as the Monaghan and Bindman report makes clear, given that any legislation enacted in Westminster to give effect to a quota system in the process of judicial appointments must conform to the requirements of EU law.

There are two stages involved in any legal assessment of the proposed quota measures under EU law. The first is whether holding a judicial office is classified as being ‘employed’. If the answer is no, then the question of their legality under EU law does not arise as appointments to judicial office will not fall within its scope of application. If the answer is yes, then the judicial appointments process will qualify as ‘access to employment’ which will bring it within the scope of Article 1 of the Recast Gender Equality Directive 2006/54/EC. This will mean that the use of positive action measures, such as quota systems, in the process of judicial appointment will have to conform to the restrictions on the use of such measures set out in the relevant case-law of the Court of Justice of the EU (CJEU).

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Selecting the Justices: Four suggestions

As the UK Supreme Court marks its fifth anniversary, Graham Gee and Kate Malleson reflect on how the process of selecting the Justices can be improved.

Earlier this month the UK Supreme Court celebrated its fifth anniversary. There has been a flurry of vacancies, retirements and new appointments during the Court’s first five years, with only four of the original Justices remaining on the bench. The next few years should (all being well) witness a period of relative stability on the Court, with the next mandatory retirement in 2016 (when Lord Toulson turns 70). A further flurry of appointments will follow in 2018, when five Justices reach mandatory retirement. The Court’s fifth anniversary is therefore an apt time to reflect on the process of selecting the Justices—and indeed we welcome the fact that the Court is currently conducting an internal review of the selection process.

The Court’s internal review has a relatively limited remit. It is largely concerned with the workings of the ad hoc selection commissions responsible for recommending to the Lord Chancellor candidates for appointment to the Court. Each commission enjoys some limited freedom to determine its own process, but within the parameters set out in statute. The Court’s review focuses on matters such as whether commissions should define merit, whether to interview candidates and whether candidates should make a presentation as part of the selection process. To tinker with the fine details of selection processes might seem a distraction when real and visible progress in securing diversity on our top court seems unlikely absent radical reforms such as gender quotas. There is some truth to this. In this blogpost, however, we suggest four changes to the workings of the commissions that would improve the way that our top judges are selected, even if falling short of the sorts of changes required to realise a genuinely diverse Supreme Court.

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The dragon roars? Welsh Devolution and the UK Supreme Court

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It is rare that news about Welsh devolution trumps Scotland. As we move ever closer towards a Scottish referendum on independence, we would be forgiven in thinking that relations with the Welsh Government are a far more sedate affair.

Last year, this illusion, if not blown wide open, received a sizeable dent. On 31st July, UK Attorney General, Dominic Grieve QC, referred what appeared to be a fairly innocuous bill to the UK Supreme Court (UKSC) amid concerns that Welsh Assembly had exceeded its constitutional remit by changing the powers of UK Ministers. The offending legislation, the Local Government Byelaws (Wales) Bill 2011, if left unamended, would have given the Welsh local authorities the power to make and enforce local byelaws – absolving them from approval and consent mechanisms shared with the Westminster Government in the Local Government Act 1972 and Government of Wales Act 2006. This would have been the first bill passed under new powers of primary legislation granted in 2011. It was also the first bill from either the Cardiff or Holyrood legislatures to be referred to the UKSC, hence its double constitutional importance.

The UK Attorney General’s complaint was not upheld by the UKSC. In a unanimous decision last November, the Court ruled the offending bill did not exceed the Assembly’s powers. This meant that the bill’s principal aims, to reform byelaw procedures to exclude Ministerial confirmation and to restate Wales’ general power to make byelaws (among others), stood. In particular, Lord Neuberger found clause 6, which effectively removed the separate need of Secretaries of State to confirm new byelaws, to be ‘incidental’ and secondary to the primary purpose of removing Welsh Minister’s confirmation. In addition, Lord Neuberger argued that the power conferred on the Welsh Executive in clause 9, which allows Welsh Ministers to regulate the number of byelaws and the bodies that make them, removed the Secretary of State’s function in the matter but made no further, disproportionate incursion.

The upshot of this case is not just historic, as noted above, but also highlights how the stakes of Welsh devolution have increased. In a 2011 referendum, 63.49% of Welsh citizens agreed to extend the ability of its national assembly to make laws in twenty new areas. Moreover, on 19th November 2012, Paul Silk, a House of Commons Clerk, recommended that the Welsh Government should have more tax-raising powers and be able to borrow to pay for new infrastructure. These signal substantial gains for a nation that is often viewed as the unequal, evolutionary partner of the 1999 devolution settlement.

Everything is not positive. As Devolution expert and Constitution Unit fellow, Alan Trench points out Cardiff was bruising for a fight in the 2012 UKSC case. Reminders of the changes that needed to be made to the bill by the Welsh Office were repeatedly ignored by the Welsh Executive. Moreover, it could also be argued that the Welsh Government would have won either way; lose and it bolsters complaints over the inadequacy of new powers, win and it establishes a favourable precedence in constitutional adjudication between Westminster and Cardiff.

To conclude, then, it would be naïve to characterise current Anglo-Welsh relations as somehow more harmonious when compared to Scotland. As shown in the UKSC case, tensions still simmer. Political anoraks are therefore well-warned. When the Silk Commission recommends new constitutional powers for Wales in spring 2014, the Welsh dragon may just roar again.

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