Category Archives: UK Constitution

03.29.15
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The Black Spider Letters – Part IV

This is the final in a series of four blog posts looking at the Supreme Court’s decision in R (Evans) v HM Attorney General.  The first post went through the background to the case, the second post focused on the Court’s decision in respect of section 53 of the FOIA and the third post looked at the Court’s decision in respect of Regulation 18(6) of the EIRs.

This was a significant decision for a number of reasons.  It significantly restricts section 53 of the FOIA and in essence makes it virtually impossible for the Executive to make use of it.  While this might seem, on the face of it, really good for transparency; it comes with a serious warning.  In 6 weeks time the UK will have a new Government and undoubtedly one of the first things that this new Government will want to do is address the decision of the Supreme Court in this case.  The current Government, which may be in its final hours, has previously hinted at making changes to the FOIA that would have a devastating effect on the effectiveness of FOI in the UK.  While addressing this issue the Government might be tempted to make other changes to FOI at the time.

While I fundamentally disagree with the principal that the Executive should be able to veto a decision made by the judiciary in respect of a cause in which it was a party, we do live in a system where Parliament has supremacy.  It is clear that Parliament intended that the Executive should be able to, in certain cases, veto a decision by the Tribunal that information should be disclosed.  For that reason, I disagree with the interpretation given to section 53 by Lords Neuberger, Kerr and Reed.  I find the position of Lord Mance and Lady Hale more in keeping with the intentions of Parliament.  It is my opinion that they struck the right balance between the intention of Parliament and the Rule of Law given the system in the UK and the wording of the statute.

The Regulation 18(6) issue is more problematic for the Government, and here I do think that the 6 Justices of the Supreme Court who held that Regulation 18(6) was incompatible with EU law got it correct.  The wording in Article 6 of the Directive clearly does not envisage the situation where the Executive, who will be the public body holding the information in question, is able to veto the decision of the Court.  It also seems clear from the wording of the Directive that it being open to a requester to judicially review the decision of the Executive to issue a certificate is not sufficient to comply with the review requirements therein.  Part of being a member of the European Union is to accept that EU law has supremacy, in passing the European Communities Act the UK Parliament agreed to have EU law take precedence over Acts passed by it.  Ultimately the UK Parliament is still supreme and would only need to repeal the European Communities Act (which would also necessitate the UK leaving the European Union, but that’s a whole other blog) in order to deal with the Supreme Court’s decision in respect of Regulation 18(6).

What is the impact for Scotland?  The decision in R (Evans) v HM Attorney General is technically not binding upon the Scottish Courts.  Section 41(2) of the Constitutional Reform Act 2005 makes it clear that decisions of the Supreme Court on appeal form Courts in one part of the United Kingdom are “to be regarded as the decision of a court of that part of the United Kingdom”; there is an exemption to this which is not relevant here. Therefore, only decisions issued by the Supreme Court in Scottish cases are considered binding in Scotland (although in cases from other parts of the UK will be highly persuasive on the Scottish Courts).  As this was a case on appeal from England in respect of FOIA and the EIRs, it is only binding on the Courts in England and Wales.

Section 52 of the Freedom of Information (Scotland) Act 2002 (FOISA) provides the First Minister a similar power to that contained in section 53 of the FOIA in respect of decision notices served on the Scottish Administration.  The wording in section 52 is almost identical to that in section 53.  The main difference is around timescales, in that the First Minister has longer than the accountable person under FOIA to issue a certificate.  So, section 52 of FOISA is probably in a precarious position following the decision of the Supreme Court.

The Scottish legislation could face further hurdles that the UK legislation did not due to the constitutional position of the Scottish Parliament.  The Scottish Parliament is a creature of Statute, it has only those powers which are given to it by the UK Parliament and cannot do anything which exceeds those powers.  Section 29(2)(d) of the Scotland Act 1998 provides that no Act of the Scottish Parliament may be incompatible with the rights in the European Convention on Human Rights as given effect to by the Human Rights Act 1998.  There could be a viable challenge to section 52 under Articles 6 (the right to a fair trial) and 10 (freedom of expression).  If it were to be found that the Scottish Administration being able to veto the decision of the Commissioner and/or the Courts was incompatible with either or both of those Rights then section 52 would have no effect as it would be outside of the Scottish Parliament’s legislative competence.  It would be much harder for the Scottish Parliament to get round that, and it would probably require the UK Parliament to legislate on its behalf.

Regulation 17(2)(e) of the Environmental Information (Scotland) Regulations 2004 (the Scottish EIRs) has the same effect as Regulation 18(6) of the EIRs in that it applies section 52 of FOISA to the Scottish EIRs.  However, like the EIRs, the Scottish EIRs are designed to implement the 2002 Directive into domestic law.  The supremacy of EU law is further underlined by the Scotland Act 1998, which provides in section 57(2) that the Scottish Ministers have no power to make subordinate legislation (which the Scottish Regulations are) which is incompatible with EU law.  I don’t think that the Scottish Courts would find differently from the Supreme Court in respect of section 52 being incompatable with EU law when related to requests under the Scottish EIRs.  In the event that the Scottish Ministers appealed to the Supreme Court it seems unlikely that it would conclude differently (although it should be noted that at least one Justice would have found that Regulation 18(6) did not violate EU law).

Because of the timing of the Supreme Court’s decision, it means that there is little that can be done to prevent disclosure of the information that the Upper Tribunal decided should be disclosed.  The UK Parliament has now prorogued and dealing with the Supreme Court’s decision will require primary legislation. Parliament will be dissolved as soon as we hit 30 March; that means all of he seats will become vacant and there will be no MPs to pass legislation.  The deadline for the Government to comply with the Supreme Court’s decision expires before the election. Therefore, it seems almost inevitable that we will get to see the contents of these letters.

It should be noted that FOIA has been amended to make the correspondence from the Prince of Wales subject to an absolute exemption.  However, that does not affect the position under the EIRs.  The exceptions under the EIRs are different from the exemptions under the FOIA, although they broadly enable the same types of information to be withheld.  What this means though is that it is possible that further letters written by the Prince of Wales which relate to environmental matters may be disclosed in the future.

It is also worth noting that FOISA has not been amended to make the equivalent exemption in respect of correspondence with the Monarch, the heir to the throne or the next in line (i.e. The Queen, Prince Charles and Prince William) an absolute one.  It had been proposed by the Scottish Government, but was dropped.  Therefore, the full range of correspondence between the Prince of Wales and the Scottish Ministers is theoretically obtainable under FOISA and the Scottish EIRs, subject to the public interest test.

02.03.15
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West Lothian, EVEL and fudge

The ‘West Lothian Question’ continues to rage on following the Independence Referendum last year, and it has been exacerbated by the Smith Commission.  What is the solution?  A clear majority of Scots voted to remain part of the United Kingdom, whatever you believe about why people voted in that way is irrelevant; that is the situation we are in.

The Conservative Party has outlined a policy to deal with the West Lothian question which is, quite frankly, entirely unworkable.  Trying to police exactly when Scottish MPs can and cannot vote on particular laws will be almost impossible.  Even in devolved areas, legislation passing through Westminster can have a direct impact on Scotland (and not just via the Barnet Formula).  Often, there will be parts – or even just a few sections – in a Bill passing through Westminster that extend to Scotland.  It is entirely ridiculous to suggest that Scottish MPs should not be able to vote on legislation directly affecting their constituents, simply because the bulk of it deals with a devolved area.  It would be a nightmare if you started removing those sections from Bills and putting them in separate Bills – you’d effectively be doubling the work of the UK Parliament.

It gets even more complicated when it comes to Cabinet positions.  Will a Scottish MP be prevented from being Prime Minister because that would have them setting the agenda in devolved areas for England?  What about Home Secretary?  Policing is devolved to Scotland, but that is only part of the Home Secretary’s responsibilities: immigration and national security remain two of most significant elements of that role which are not devolved.  What about Secretary of State for Health: the NHS is devolved, but the regulation of the health professionals (for example) is not.  When it comes to Transport, much of that is devolved; however, there are areas (particularly around regulation) which are not.  The list could go on.  If it is not to apply to Cabinet positions, then why not?  Is there any real difference between setting the policy that the legislation seeks to enact.  What does this do for Collective responsibility in the Cabinet?

Then there is the Committees proposal:  how will that actually work in practice?  Will Scottish MPs be prevented from sitting on certain committees?  Simply excluding them for the committee stages for certain Bills would be a nightmare situation.  The make-up of committees is determined according to the make-up of the House of Commons.  It could mean that Committees no longer represent the make-up of the Commons when you start excluding certain members from the Committees. Committees could become completely farcical; especially when it comes to Bills that include bits applicable to Scotland – would those MPs be allowed to participate in the Committee then?  If not, why not?  Will it mean that Committee sessions will have to stop and start frequently?

Moreover, this could not possibly apply only to Scottish MPs: what about MPs elected to represent Northern Irish constituencies or Welsh constituencies?  The West Lothian question, as it is known, also applies to those situations.  It certainly does appear as though the proposal put forward by William Hague would exclude those MPs as well as Scottish ones, but undoubtedly the reporting focusses on Scottish MPs.  However, if you do extend this rule to Northern Irish and Welsh MPs as well things would become even more complicated and much more messy – the devolution settlements for Northern Ireland, Scotland and Wales are all very different.  There are things which Scotland has (and will soon have responsibility for) which Northern Ireland and Wales do not, equally Northern Ireland has responsibility for matters that Wales and Scotland do not.  As for Wales, from memory, it currently has the poorest devolution settlement; but it has responsibility for issues that its MPs vote on in the Commons for England.  The same issues then arise with the Cabinet as discussed above.  Keeping track  it all will become nothing short of a nightmare!

In short, the proposal by the Conservative Party is a fudge (and an utterly terrible one at that!).

So, what is the answer?  There is no going back to the pre-1999 situation; that much is certain.  The legislative bodies for Northern Ireland, Scotland and Wales are here to stay.  The only real answer is to move towards a more federal structure.  There needs to be an entirely separate English legislative body and the powers of the national legislative bodies (those being the Welsh Assembly, Northern Irish Assembly, Scottish Parliament and the newly created English one) would have to be aligned so as not to have the ridiculous situation we currently have of different national legislative bodies having different areas of competence.

Whenever the question of an English Parliament is raised there are often cries of “we don’t need more MPs”; that’s probably true.  However, if you were creating a separate legislative body for England with its own members, the number of MPs required in the UK Parliament would be significantly less: there would be absolutely no need for there to be 650 people elected to the House of Commons.  They could easily represent much larger constituencies because they would be dealing with far fewer matters than is currently the case.  Overall, there might be a slight increase in the number of elected representatives to ensure fairness, but that shouldn’t stop us from moving in that direction.  It’s certainly not a quick fix, but it is a far fairer and much better solution that the fudge announced by William Hague today.  Yes, it will take time and yes there will be a financial cost to it in the short term (a separate English legislative assembly would likely need its own place to meet – unless you abolish the Lords and have it sitting in there), but really this should have happened in 1998!

What exactly this would look like is a conversation that would have to be had.  All parts of the UK would have to work together to work out what should be handled by the National legislative bodies and what should remain handled by Westminster.  There are obvious things that would need to be handled at a UK level such as Foreign Affairs, Defence, National Security, Immigration and the currency.  There may well be other areas where it would be beneficial to be handled at a UK level, but unless we have the conversation we will never know.

It was clear that whatever the result of the independence referendum in Scotland that there would be significant constitutional change in the UK; that remains the case and it is both a conversation and a process that we cannot walk away from; we certainly cannot try and fudge it!