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A long walk off an abbreviated pier?

On 10^th October 2016, David Davis, Secretary of State for Exiting the European Union, said: “The [G]reat [R]epeal Bill is not what will take us out of the EU, but what will ensure the UK statute book is fit for purpose after we have left.”[1]

Ahead of this ‘Great Repeal Bill’, the Government has now published its ‘Article 50’ or ‘Brexit Bill’.

Properly styled, the European Union (Notification of Withdrawal) Bill 2016-17, it consists of just two clauses. As clause 2 provides only the short title, the ‘Article 50’ Bill is, essentially, comprised of just one substantive clause:

A BILL

TO

Confer power on the Prime Minister to notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.

BE IT ENACTED by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

1. Power to notify withdrawal from the EU

(1) The Prime Minister may notify, under Article 50(2) of the Treaty on European Union, the United Kingdom’s intention to withdraw from the EU.

(2) This section has effect despite any provision made by or under the European Communities Act 1972 or any other enactment.

2. Short title This Act may be cited as the European Union (Notification of Withdrawal) Act 2017

Oddly, the Government’s short ‘Article 50’ Bill uses only the abbreviation ‘EU’ in the long title and its one substantive provision.

This is unlikely to cause any practical difficulty in reality. Everybody knows what the ‘EU’ is after all. But you never know. Think Donald Rumsfeld’s ‘unknowns’.[2] Equally, important issues can go unsaid, dropping unnoticed down gaps between the constitutional floorboards. Discussing the important HS2 case (judgment , January 22, 2014), Lord Reed says, “But the most remarkable feature of the case of all was that none of the parties proposed to address the Supreme Court on [the constitutional principles governing the relationship between Parliament and the courts].”[3]

The most authoritative text, Cross [on] Statutory Interpretation (1995 at p.126) notes that changes can be made to the long title of the Bill prior to enactment. But it’s interesting to consider whether any difficulty might arise were it not clear whether an abbreviated term affords sufficient clarity should the abbreviation not be expanded by amendment leaving scope for legal argument.

This use of an abbreviation in the Article 50 Bill is, perhaps, given a little additional colour because the terminology employed to label the current European Union has not always been consistent. Professor Jo Shaw (2003, p.325) notes that, comparatively recently, precise and/or uniform terminology, in the context of ‘European law’, was not common and was, indeed, rife with scope for conceptual overlap. Indeed in their commentaries, ‘many observers and scholars… conflate ‘Europe’ with ‘European Union’ (Shaw, 2003, p.326).

“Perhaps your name is Shortribs, or Sheepshanks, or Laceleg?” (Rumplestiltskin)

Edward & Lane (2013, pp.435-436) discuss the issue of terminology within the styling of labels relating to a most fundamental aspect of the European Union. The ‘Common Market’ was undefined in the EEC Treaty but can be understood, say Edward & Lane (2013, p.435) as “a customs union plus: a customs union is concerned with the free movement of goods, a common market is concerned traditionally with the free movement of goods and the free movement of the factors of their production, that is, capital and labour”. Lord Cockfield was the architect of the internal market in 1985 which manifested in the Single European Act.

We might pause, momentarily to note that, despite being labelled an ‘Act’, the Single European Act is a Treaty. So no scope for doubt or confusion there!

Edward & Lane continue (2013, p.436) regarding the position subsequent to Lord Cockfield’s important initiative: “Yet confusion abounded. The internal market was sometimes called the internal market, or sometimes the ‘single internal market’, and both were frequently used interchangeable for common market.”

Let’s return to our abbreviated term. It was only in 1993, as a result of the Maastricht Treaty, that the term ‘European Union’ was first used formally in EU law. The Treaty of Lisbon, which entered into force on 1^st December 2009, added some clarity and certainty to the terminology. But even it has its own niches of doubt. This is illustrated in text of the Lisbon Treaty where, for example, under Horizontal Amendments[4] is found:

A. HORIZONTAL AMENDMENTS

 2)  Throughout the Treaty:

 (a)  the words "Community" and "European Community" shall be replaced by "Union" and any necessary grammatical changes shall be made, the words "European Communities" shall be replaced by "European Union", except in paragraph 6(c) of Article 299, renumbered paragraph 5(c) of Article 311a. In respect of Article 136, this amendment shall apply only to the mention of "The Community" at the beginning of the first paragraph.[5]

Anyway there seems no cause for concern. The miller’s daughter, who became Queen, was able to guess Rumpelstiltskin’s name in just three days.

"Is your name Conrad?" "No." "Is your name Harry?"  "No."  "Perhaps your name is Rumpelstiltskin?"

The Westminster Parliament has five days.

Cross (1995, p.124-5) says: “If the sole cause of doubt is a disparity between the otherwise clear and unambiguous words and a title, preamble, heading or side-note, the judge must disregard his notes and apply the otherwise clear and unambiguous words.”[6] Cross therefore concludes (1995, p.128): “It is the unambiguous words of a section which will prevail over the long title”.

Article 50, itself is clear by comparison with the UK Government’s Article 50 Bill: “The third paragraph of Article 50 of the Treaty on European union (TEU) states: The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification… unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.”

However, in the one substantive provision, of the Article 50 Bill, section 1, only the abbreviation ‘EU’ is used again. So a court, seeking to interpret this abbreviation, would have little help through the one substantive provision of the Government’s future ‘Article 50’ Act.

One listed amendment for the Article 50 Bill - noting that “exit date” means the date on which the United Kingdom ceases to be a member of the European Union – seems superfluous. Debate related to the amendments will be interesting not least to understand why some have been tabled.

Oddly the Short title of the Article 50 Bill employs the unabbreviated term ‘European Union. Does that assist a court seeking to interpret the meaning? Cross (1995, pp.30-31) says not really. “As it is contained in the body of the Act and is, like the long title and preamble, subject to amendment during the Bill’s passage through Parliament, one might think that the short title should be treated in the same way as a guide to interpretation. However, its sole purpose being to serve as a brief identifying label, it is by no means as helpful as the long title or preamble.”

“Accuracy may be sacrificed to brevity”

However Cross does point to Scrutton LJ’s consideration, in Re Boaler [1915] 1 KB 21 (at 40-41), suggesting helpful use of the short title for interpretation in some circumstances. Scrutton LJ also noted: “[T]he short title being a label, accuracy may be sacrificed to brevity”.

What of abbreviations in long titles of other statutes in the same field?

The long title of the European Union Act 2011 did not employ any abbreviation:

“An Act to make provision about treaties relating to the European Union and decisions made under them, including provision implementing the Protocol signed at Brussels on 23 June 2010 amending the Protocol (No. 36) on transitional provisions annexed to the Treaty on European Union, to the Treaty on the Functioning of the European Union and to the Treaty establishing the European Atomic Energy Community; and to make provision about the means by which directly applicable or directly effective European Union law has effect in the United Kingdom.”

The European Union Act 2011 Act contains a significant amount of detail. That detail accommodated amendments in debate. The Government’s tactic of minimising substantive content in the ‘Article 50’ Bill may be its ‘Achilles Heel’.

The battle for amendments may prove to be the Trojan Horse with consequences both legal and political. The political consequences, not least, as a result of the UK Supreme Court’s decision relating to legislative consent motions in devolved parliaments and talk of a future referendum on independence for Scotland. The Secretary of State for Scotland, David Mundell has, interestingly, indicated that a legislative consent motion will be appropriate in the subsequent Great Repeal Bill according to today’s ‘i’ newspaper.

 Section 18 of the European Union Act 2011 providing just one example of the detail required in a, not unrelated, Bill states:

“Status of EU law dependent on continuing statutory basis Directly applicable or directly effective EU law (that is, the rights, powers, liabilities, obligations, restrictions, remedies and procedures referred to in section 2(1) of the European Communities Act 1972) falls to be recognised and available in law in the United Kingdom only by virtue of that Act or where it is required to be recognised and available in law by virtue of any other Act.”

In an interesting journal article, Professor Feldman looks at Section 18 of the 2011 Act when discussing the increase in legislation that is promissory, declaratory, aspirational, and politically rhetorical. Such legislation, Feldman convincingly explains, can be considered distinct from a statute that is ‘law-bearing’:^[7] Indeed the UK Supreme Court, in Miller & Dos Santos 2017, viewed s.28(8) of the Scotland Act 1998 as an example of a provision that was not 'law-bearing' but, instead, imported something of political rhetoric into the statute.

“Declaratory legislation generally attempts to encapsulate in legislative form what is said to be already the law or, sometimes, the constitution. The legislation may be directed towards a contested point of law, seeking to resolve it in a particular direction, as in the European Union Act 2011, section 18: 'Directly applicable or directly effective EU law (that is, the rights, powers, liabilities, obligations, restrictions, remedies and procedures referred to in section 2(1) of the European Communities Act 1972) falls to be recognised and available in law in the United Kingdom only by virtue of that Act or where it is required to be recognised and available in law by virtue of any other Act.' One may question whether an assertion of this kind can actually resolve the contest over the question, which ultimately depends as much on EU law as on UK law.”

If a detailed provision like section 18 of the European Union Act 2011 may not clarify the legal position, what chance for its concise cousin in section 1 of the ‘Article 50’ Bill?

Politics can certainly flavour even choice of short title. W. A. Wilson[8] (1984, p. 87) notes that the Housing (Scotland) Act , “was called for political reasons”, the Tenants’ Rights Etc. (Scotland) Act 1980. Professor Wilson also notes that, “the interpretation section is vital” (1984, p.89). There is no interpretation clause in the Article 50 Bill.

The long title of the European Union Referendum Act 2015 was short but clear and, again, did not abbreviate:

“An Act to make provision for the holding of a referendum in the United Kingdom and Gibraltar on whether the United Kingdom should remain a member of the European Union.”

As Cross says (1995, p.124): “If… [a judge] is to fulfil his [or her] duty of reading the whole Act, when it is necessary to do so in order to determine whether there is an ambiguity, he must look at the long title [amongst other parts of the Act which surround or introduce the Act]”.

The UK Supreme Court’s judgments provide some interesting insight.

To quote Lord Hope (at paras. 13-14) of Imperial Tobacco Limited (Appellant) v The Lord Advocate (Respondent) (Scotland) [2012] UKSC 61: “As Lord Atkin said in Gallagher v Lynn [1937] AC 863, 870, an Act may have a perfectly lawful object but may seek to achieve that object by invalid methods… The best way of ensuring that a coherent, stable and workable outcome is achieved is to adopt an approach to the meaning of a statute that is constant and predictable. This will be achieved if the legislation is construed according to the ordinary meaning of the words used.”

Might an abbreviation be an ‘invalid method’?

The long title of the Immigration Act 1971 was of value in R (on the application of Munir and another) (Appellants) v Secretary of State for the Home Department (Respondent) [2012] UKSC 32 (at para. 25, per Lord Dyson).

Again in AXA General Insurance Limited and others (Appellants) v The Lord Advocate and others (Respondents) (Scotland) [2011] UKSC 46 the UK Supreme Court (at paras. 13 & 27) uses the long title of the Damages (Asbestos-related Conditions) (Scotland) Act 2009 and the long title of the Scotland Act 1998 (at para. 145).

Why such a rush?

The Explanatory Notes[9] for the Article 50 Bill state: “Why is fast‐tracking necessary? The judgment of 24 January 2017 required the Government to complete an additional (and unexpected) step before the formal process of leaving the European Union can commence.  Completing this step through the normal Bill timetable would cause considerable delay to commencing the formal exit process, making it impossible to do so before the end of March 2017. This would further generate uncertainty as to the timetable for our exit from the European Union.”

As the Bookmakers’ odds and even the most hopeful Brexit campaigner will testify, it was the result of the EU Referendum that was unexpected. To say that the UK Supreme Court judgment could not have been anticipated is stretching credulity.

Moreover the Article 50 process could have been expedited (thus avoiding the need for fast-tracking the Bill’s passage) had the Government not prevaricated in the first instance with its unnecessary move to trigger Article 50 using prerogative power.

Blaming the UK Supreme Court’s judgment for the delay is like an MP blaming traffic in the Westminster corridors should they miss an important vote having paused to finish their cup of tea long after hearing the Division Bell. It might not be beyond the bounds of possibility that the delay after the EU Referendum result was manufactured partly in order to curtail debate on Article 50.

This may all just be an exercise in wasteful pedantry. After all, Rumpelstiltskin aside, can there be any importance in a name?  When the cry went out on the Cyclops’  island: "Whose fault is it?" Polyphemus cried back: "Nobody's”.

https://www.supremecourt.uk/cases/docs/uksc-2016-0196-judgment.pdf

When the UK Supreme Court hands down its judgment today at 9.30 am https://www.supremecourt.uk/live/court-01.html  the President of the Court, Lord Neuberger, may give the court’s opinion himself or he may select one of his fellow Justices to explain the judgment on behalf of the Court.

The oral delivery will reiterate the essential facts and issues and the distilled arguments of Counsel and then offer the Court’s determination as to the correct legal position in light of their assessment of the merits of the various legal arguments presented in debate through early December 2016. The Court will then adjourn.

The explanation of the Court’s judgment is likely to last several minutes – possibly noting the progress of the matter through the Queen’s Bench and, most importantly, the UK Supreme Court’s determination as to which arguments and on which issues have proved persuasive – the Respondents’ (Miller, Dos Santos and interveners) or those of the Appellants (the UK Government).

One of the justices will have written the lead opinion and there may well be written concurring judgments providing scope for some individual nuances within a determination with overall coherence.

There may be an indication as to which Justices have, seriatim, provided the Court’s reasoning in written form relating to the various arguments raised in debate. Professor Alan Paterson’s leading text book on the UK Supreme Court (Final Judgment: The Last Law Lords and the Supreme Court, 2013) sets out (p.95), amongst other illuminating information on the practice of the Supreme Court, a table of Justices’ written judgments between 2009-13.

For instance, one of the two Scottish judges will likely provide a judgment providing a specialized response to the Lord Advocate’s submissions relating to scope for a Holyrood legislative consent motion. The two Scots Justices are, almost undoubtedly, likely to concur on the issue along with other Justices – very possibly unanimously – holding, it seems very probable, that the Advocate General’s counter arguments, on behalf of the UK Government, have been most persuasive on the point.

While the Court may, in terms, expressly restate the Separation of Powers and the proper and respective functions of Judiciary, Legislature and Executive (possibly using one or both terms explicitly) it will be interesting to see if there may be any view as to the degree of Parliamentary scrutiny that might be deemed appropriate in light of the Government’s intervening pronouncements. Might scope for a White Paper be mentioned?

The recent (January 2017) UKSC judgment in Ramatullah (No.2) relating to the narrow definition applied to the Doctrine of Crown act of state (albeit in that instance the judgment operating in the Government’s favour) might, logically and consistently, it could be argued, be mirrored in a similarly narrow definition of Crown Prerogative in the context of the Brexit case (yet in that instance not in the Government’s favour).

The UKSC website states that the judgment is to be published in its authoritative, detailed and written, form, “on the Supreme Court website as soon as the judgment summary has been delivered”.

UK Supreme Court Website:

https://www.supremecourt.uk/index.html

The Court seems to have in focus the fact that there has been no clear indication prior to the EU Referendum of the anticipated constitutional exit route in any detail. It may be that the Court will hold that this may be unfortunate but is a matter for the Parliament not the courts. However the scope of the Prerogative is justiciable so this legal aspect will certainly be addressed.

Lord Reed sought to clarify the debate asking Mr Eadie if the view was that purely domestic legislation (such as the Dangerous Dogs Act which seems to have become the default example to illustrate the point) could not be affected by the Prerogative. (The Prerogative not being applicable to purely domestic legislation but rather international treaty). That would contrast with the position if EU law had implemented a Dangerous Dogs Directive as Lord Sumption and Lady Hale noted. In that (Directive) instance the Prerogative could, argued, James Eadie on behalf of the Government’s stance in favour of using the Prerogative, properly be used - as the matter would then stand on the international plane where the use of the Prerogative is accepted. On this view, the European Community Act 1972 (the 1972 Act) could be viewed as transitory, a conduit in place only as long as UK membership subsists. The suggestion, in favour of using the Prerogative, is that the Executive exercises control over the Treaty obligations which pass through the conduit that is the 1972 Act.

An ingenious argument but will it convince the Court?  The justices’ probing questions bear no discernible relation to their ultimate considered opinions but the broad flavor of discussion so far does seem to point to a significant majority, at least, of the Eleven holding against Mr. Eadie on the question as to whether or not the Prerogative power was the appropriate constitutional mechanism in the circumstances.

The HS2 case shows that the Courts will uphold central constitutional principles and parliamentary sovereignty as against any perceived incursion from EU law. It would seem in conformity with that approach to uphold parliamentary sovereignty as against the Executive.

It all likely boils down to the distinction between what is law (and justiciable), what is a matter for politics (and thereby non-justiciable) and the respective role of the Court in relation to the Executive and Legislature.

The Lord Advocate of Scotland, James Woolffe QC, draws his submissions in the ‘Brexit’ case[1] towards a close looking at Section 28 of the Scotland Act 1998 (the 1998 Act).

The Lord Advocate encapsulated his overall position; within which S.28 would be raised: “Fundamentally I say this case is about who has the power to change the law of the land”.

Subsection 8 of Section 28 is a fresh ‘stitch’ - added with distinctive new thread - to the existing tapestry of the 1998 Act.  

S.28 of the 1998 Act provides:

“Acts of the Scottish Parliament.

(1) Subject to section 29, the Parliament may make laws, to be known as Acts of the Scottish Parliament…

 (7) This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland.

(8) But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.”

Subsection 8 was added (23.5.2016) by the Scotland Act 2016 (c. 11), ss. 2, 72(7).

Lady Hale noted that the interpretation of the words, “with regard to”, would require to be differentiated from the words, “relate to”. Lady Hale may have had in mind a point she made in a recent public lecture[2] where she said:

“…[I]t is not possible to divide ‘devolved’ and ‘reserved’ matters into precisely defined watertight compartments: some degree of overlap is inevitable. So, when deciding whether an Act of a devolved Parliament ‘relates to’ a particular subject, whether reserved or devolved, the court has to divine what it is really about. “

The Lord Advocate’s argument likely depends upon the UK Supreme Court taking the view that the ‘different conceptual language’ used in subsection 8 of the 1998 Act means that the Court should construe the impact of the triggering of Article 50 as falling within the same category as those instances where a legislative consent motion has previously been used.[3]

Lord Sumption, similarly to Lady Hale, noted that new subsection 8 was distinctive from some other provisions in the Scotland Act 1998 as it was declaratory of a political position. Its juridical effect might depend upon the political position adopted.

Therefore, whether or not this fresh stitch will offer any significant strength to the argument that the Brexit process requires a legislative consent motion may depend upon the UK Supreme Court’s view as to whether or not it is justiciable in the context of the current debate.

As the Court might well take the view that the triggering of Article 50 TEU is, essentially, a political question, it may not consider the matter legal and justiciable.

It is likely that a legislative consent motion will not be considered appropriate in that light.

Lord Panick’s point, aired before the UK Supreme Court this afternoon, that the EU Referendum was merely advisory (the advisory-only nature of the EU Referendum, though not found on the face of the EU Referendum Act 2015, was, in fact, explicit in Ministerial response to a Commons amendment put by Mr. Salmond) seems to be an insurmountable constitutional obstacle for the Government’s argument that the Prerogative Powers can be imposed on the justification that the EU Referendum result accords the Government popular authority to trigger Article 50 TEU without Parliamentary debate on the matter.

The Court has made it abundantly clear that, whilst conscious of the intensity of political debate (amongst the Public and what may occur in Westminster), the justices will determine the issues on the basis of legal argument alone. The Government’s argument seems set to fail but the justices will be at pains to provide a judgment that leaves no left-overs so as to liberate from any legal ambiguity the inevitably tense political debate that will occur regardless of the decision. This determination to ensure no loose threads are left dangling seems to be reflected in the probing questions coming from the bench of eleven looking to snip away any discernible frayed edges.

UK Sovereignty and the EU illuminated by watery analogy.

“…none to dispute sovereignty with me lord of the manor”

Sovereignty is a concept that is context-sensitive. This characteristic of sovereignty makes it a fluid notion that can fill both the champagne flutes and the beer glasses of debate.[1] It is a liquid concept capable of floating on diverse intellectual streams of thought.[2]

With interpretations of sovereignty that are antithetical, an apparently logical conclusion would be that such opposing accounts must be irreconcilable. However even conflicting interpretations of sovereignty can have validity. That is so because of the fluid nature of the concept.

In the fifth century BC, the Greek philosopher Heraclitus said that you could never step into the same river twice. Because fresh and different waters flow, even in the same river, the impression of each particular instant is unique. Each individual can give an accurate description of that particular moment. So where a reasoned interpretation of sovereignty is provided, based on a rational assessment of the concept at any particular time, it may therefore conflict with other interpretations - yet still remain valid.[3]

What river could be more fitting to use in analogy of sovereignty, for a discussion of a concept that will eventually[4] wash heavily against the walls of the Westminster parliament, than the Thames? Indeed there seems to be a number of coincidental affinities between the River Thames and the concept of parliamentary sovereignty.

One such is that in the very same year that the naval vessel The Thames was launched, A.V. Dicey’s seminal work on parliamentary sovereignty was published. Dicey’s notion of the sovereignty of Parliament ‘from a legal point of view’ is  that ‘Parliament could make or unmake any law whatever’ and that ‘no person or body could override or set aside the legislation of parliament’ this being  [in 1885] ‘the dominant characteristic of our political institutions’.[5] The vessel The Thames was scuttled by its subsequent South African purchasers just as Sir Ivor Jennings view on sovereignty partly scuppered Dicey’s traditional theory of sovereignty some decades after Dicey’s death. Yet Dicey, himself, had reviewed his concept of sovereignty well before Jennings.

Dicey’s Introduction to the 8th edition of the Law of the Constitution, written in 1914, states: “The present edition, therefore, of the Law of the Constitution, is in substance a reprint of the seventh edition; it is however accompanied by this new Introduction whereof the aim is to compare our constitution as it stood and worked in 1884 with the constitution as it now stands in 1914”. Dicey concluded, of course, that law and opinion in the early 20^th century had seen wholesale change requiring that he significantly revise his original conception of sovereignty in that Introduction.

Though its 1885 form is scuppered, Dicey’s concept of parliamentary sovereignty persists as a sound theory in UK constitutional law just like the hull of a scuppered vessel like The Thames no doubt remains displaying its essential form (Jennings did, after all, confirm Dicey’s essential notion).

Equally it should be borne in mind that ideological perspective impacts upon conceptions such as sovereignty. In his Preface to the 9^th edition of A.V. Dicey’s Introduction to the Study of the Law of the Constitution, constitutional expert Professor E.C.S. Wade says, “It is questionable whether any writer upon the subject of the constitution can entirely eliminate his own political predilections.” Dicey’s main critic, Sir Ivor Jennings, identifies Dicey’s politics as those of a Palmerstonian Whig.[6]  Ideological predilections, therefore, can impact on politically-charged conceptions such as sovereignty and free movement of workers. A strictly legal focus can assist in understanding the proper position of such notions in law.

So, bearing in mind that sovereignty is a concept that can be understood as a fluid concept, subject to change and ideological perspective like Heraclitus’ river, the accession of the UK to the EEC on 1^st January 1973 under the European Community Act of 1972, represents a significant moment in the changing nature of UK sovereignty. Indeed something of a tidal surge.  Prior to the formal accession of the UK to the EEC on the 1st January 1973, the EEC had built up a significant body of law. This is known as the acquis communitaire.

At the moment of UK accession the acquis communitaire was imbibed into the mainstream of UK law. Landmark CJEU case law such as Van Gen den Loos v Nederlandse Administratie der Belastingen [1963] ECR 1, which created the principle of direct effect in EEC/EU law, and Costa v ENEL [1964] ECR 585, unequivocally declaring the supremacy of EEC/EU law, drifted into UK law on the 1^st January 1973 on a current that carried the acquis communitaire with it.

In HP Bulmer ltd. & another v. J Bollinger SA & others [1974] 2 All ER 1226, Lord Denning said: “[W]hen we come to matters with a European element, the treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back. Parliament has decreed that the treaty is henceforward to be part of our law. It is equal in force to any statute. ” Lord Neuberger recently  noted[7] that Lord Denning subsequently, ‘warmed to warmed to his theme, observing that:

“[T]he flowing tide of Community law is coming in fast. It has not stopped at high-water mark. It has broken the dykes and the banks. It has submerged the surrounding land. So much so that we have to learn to become amphibious if we wish to keep our heads above water.”[8]

Thus Dicey’s notion of sovereignty was significantly dissolved within the context of these fresh EEC/EU waters.

What Lord Denning described as an ‘incoming tide’ of EEC/EU law reached a high tide mark in R v. Secretary of State for Transport, ex parte Factortame ltd (No2) [1991] 1 AC 603 (HL) when a case concerning domestic maritime legislation saw a Spanish fishing vessel cast a shadow down the Thames that reached Westminster.[9]  In Factortame , UK legislation, the Merchant Shipping Act 1988, was successfully challenged on the ground that its provisions violated aspects of the EEC Treaty (now found in TFEU Arts. 26 and 46). This conflicted with Dicey’s legal view of sovereignty that, ‘no person or body could override or set aside the legislation of parliament’.

However in the HS2 case in January 2014,[10] the UK Supreme Court began to erect something like the Thames Barrier to moderate the ‘tide of EU law’ by providing a judicial bulwark (albeit largely obiter) around fundamental constitutional principles.[11] Lord Reed says of HS2: “This seems to me to be the court’s most significant decision on EU law, and arguably on constitutional law”.[12]

It is a paradox that the quiet authority of the UK Supreme Court in HS2 was addressing the concerns relating to sovereignty that, in no small measure, contributed to a referendum result that moves the UK towards ending its EU membership. (That is compounded by the fact that the rights of free movement under the European Economic Area (EEA), that essentially mirror EU free movement rights for persons,  are something a post-EU UK has aspired to).

Yet the notion of EU law dissolving sovereignty can be considered from a different, more constructive, perspective which views the impact of EU law as akin to the fertility brought to alluvial land as a result of flooding. Lord Neuberger thinks so noting:

‘Despite the fact that Lord Denning was one of the three or four most influential common law judges of the 20th century, it seems to me that that notion, like his memorable image of the common law being submerged by an inexorable tide of European law, rests, I suggest, on a misunderstanding… the common law is the product of many different sources, and all the better for that. It has always developed as a synthesis, or, if you prefer, as a discriminating magpie, picking up and often improving the best from other legal systems. The development of the common law, in the light of its recent reception of EU and European Convention law is therefore entirely in keeping with its historical traditions.”

Moreover any conception of sovereignty as a notion importing ideas of traditional autonomy is questionable in a modern context. David Cameron made this point from the Despatch Box during the EU Referendum debates. For who can really say, “none to dispute sovereignty with me lord of the manor”?[13]

In the campaigning ahead of the 2005 UK General Election, discussion of the European Union was notable by its almost complete absence. The EU seemed to be perceived as a topic that could seriously damage any of the party campaign bandwagons in 2005.

Sometimes what is not said can provide scope for analysis as much as what is actually said.

It is not quite so surprising that the issue of the European Convention on Human Rights (ECHR) has been blown into the long grass as the 2016 EU referendum debate progressed. A referendum, unlike a General Election, is, after all, largely a single-issue debate (albeit there were many associated issues affected by the dominant question of EU membership).

But, given that the EU and the ECHR have, so often in popular debate, been intermingled, the silence on the topic of the ECHR during the EU referendum debate has been deafening.

It is almost certain that Prime Minister Theresa May will follow the stance she has clearly adverted to in the recent past and look to ‘rebalance’ the relationship between the European Court of Human Rights (ECtHR) and the UK Supreme Court.[1] In April 2012 the new Prime Minister Mrs May indicated her position concerning the Strasbourg Court, a move, “to ensure that the European Court operates appropriately and in a way that reflects its original intentions.”[2]

As at 11.30am on Thursday 14^th July, Chris Grayling has yet to have any future role in Mrs May’s Cabinet announced. Given the proximity of his position to that of the Prime Minister as regards the ECHR and the ECtHR (see earlier post ‘But will Hrunting Bite?) Mr Grayling might well be a good fit as a new Secretary of State for Justice. However Mr Grayling was closely associated with the most recent incumbent Mr Gove, who, seeming to have stepped into the ultimately ill-fated shoes of Sir William Stanley[3] in place of Boris Johnson, has just been sacked. [Indeed at 11.51 Liz Truss, previously Secretary of State for Environment, Food & Rural Affairs, is appointed as Secretary of State for Justice].

It is often helpful to consider the backgrounds of the various political architects who will shape the law ahead.

Mr Grayling’s position is relatively clear. What of  Amber Rudd who will replace Theresa May at the Home Office? Secretary of State for Energy and Climate Change for the last few years; there appears to be little evidence of the new Home Secretary’s stance on the ECHR.

However, in February 2011 Amber Rudd supported a motion tabled by Conservative MP David Davis (now appointed Minister for ‘Brexit negotiations’) and Jack Straw (previously Labour Justice Secretary). Her support for this Motion hints at her likely stance regarding the European Convention on Human Rights (ECHR) – or at least the European Court of Human Rights (ECtHR) interpretation of the signatory states’ obligations under the Strasbourg Convention relating to the rights of prisoners. That Motion defied the European Court of Human Rights’ ruling that held the UK’s blanket prohibition on prisoner voting to be a breach of the ECHR.[4]

That means that the new Home Secretary’s stance on the ECHR and the ECtHR accords with that of the new Prime Minister.

The likelihood is that the new Prime Minister will, in the near future, look to address her concerns about the ECtHR’s widening interpretation of the scope of the ECHR through a shift in constitutional law. Chris Grayling (if appointed as Justice Secretary in place of Michael Gove) and Amber Rudd will reflect the Prime Minster's own stance.

However whether the government would be inclined to rebalance the UK’s obligations under the ECHR at the same time as it negotiates Brexit with the EU will be a question of political timing. The Government may opt to deal with Brexit first as ECHR rebalancing may affect wider negotiations.

An interesting difference between Professor Vernon Bogdanor and Bill Cash on the means by which to exit EU membership.

Professor Bogdanor points towards the appropriate legal mechanism, to Article 50 of the Lisbon Treaty, which sets out the exit process (a door not yet opened by any member state).

Chair of the EU Scutiny Committee Bill Cash (an excellent legal authority in the field as is Professor Bogdanor) suggests avoiding Article 50 i.e. use UK autonomy from an early point though actually postponing

Professor Bogdanor believes a second referendum is not a viable option in political terms though it would be in law should parliament approve a further popular decision for some reason.

The question of Scottish distinctiveness may not be certain as there is a significant minority in favour of the Leave vote in Scotland.

Interestingly both Bill Cash and a Glastonbury reveler pointed to principle as the basis for their (opposing) viewpoints regarding the referendum. In this case it has not been "the economy stupid" that has been the predominant determining factor in voters' minds.

Economic factors will, certainly, loom large from this point onwards however.

That much is certain.

Will the economy loom sufficiently large so as to require a reconsideration?

That, or wider social issues as a factor, may not be beyond the bounds of possibility.

One useful way to assist understanding of a new and unfamiliar subject is to draw a parallel with things that are known, familiar and analogous to illuminate the novel concept.

Fowler’s Dictionary of Modern English Usage[1] (4^th edition, 2015) says:

“It [i.e. analogy] should properly be used in contexts involving definite comparisons that justify the notion of analogy… In practice, however, it does not always manage to keep its distance from the more general word similar”.

So, using a familiar concept to draw a parallel with a complex notion such as sovereignty can assist an understanding of concepts that can, otherwise, seem elusive.

Analogy can also be used in an academic answer to demonstrate knowledge and understanding to an examiner.

Having mulled over the notion of sovereignty, it seems that there is something of an illustrative affinity between the nature of sovereignty and the characteristics of a river.[2]  A subsequent post will try to unpack the concept of sovereignty using a river by way of analogy.

Given that parliamentary sovereignty subsequently arises as a distinctive type within the wider, pre-existing, notion of sovereignty, it seems eminently sensible to use the very river that washes against the Westminster Parliament where that distinctive form of sovereignty was first to emerge.

Touring London with journalist Blanchard Jerrold in the late 1860s and early 1870s, the artist Gustav  Doré illustrated their joint perspective on the city with a number of pictures including one of Father Thames sitting on the river’s bank with a lion.

Whether or not Doré uses the lion consciously as a symbol of sovereignty the creature has long and often been incorporated into the Royal Coat of Arms in England and Scotland. The Royal Coat of Arms is found in both Parliament and court rooms across the United Kingdom.  The terms of heraldry arguably reflect the role of both court and parliament relative to the concept of sovereignty – in heraldic terminology the lions are said to offer ‘support’.

What might the EU Referendum result mean for UK constitutional law in a European context?

In an interesting discussion on the BBC’s Daily Politics programme on Thursday 19^th May (hyperlink below – the discussion starts at 17 mins 30) the Leader of the House of Commons, Chris Grayling, offered some intriguing, albeit somewhat faint, illumination into the Government’s position with regard to a proposed Bill of Rights replacing the Human Rights Act 1998.  Though only barely discernible, wrapped as it was in rather opaque terms, it does, at least, offer some foggy bearing as to the Government’s policy path regarding human rights law.

What made the Daily Politics conversation particularly engrossing is that Mr Grayling’s enigmatic account regarding a Bill of Rights may, arguably, sit like something of a cuckoo’s egg within the wider political nest of eggs representing the current debate concerning the UK’s membership of the EU.

That cuckoo’s egg analogy is, perhaps, useful here as it reflects a common misconception as between European Union (EU) law, on the one hand, and the law of the European Convention on Human Rights (ECHR) on the other hand. The distinction between the law of the EU & the law of the ECHR is fundamental - yet it often deceives even considered scrutiny due to similarities which can suggest, erroneously, that the two are one and the same. Like a cuckoo’s egg ECHR law has a different nature when compared to the law of the EU (ECHR & EU law are, in fact, completely distinguishable) yet the two are, all too often, mistakenly perceived to be identical because of some overlapping characteristics.

Chris Grayling is a member of the ‘Brexit’ campaign which stance, as with any policy preference, perhaps imparts equal portions of heat and light, into the Daily Politics conversation. Certainly the mix of fractured political & contentious legal afforded intriguing glimpses into the depths of a simmering cauldron within the current EU membership debate.

With this BBC iplayer resource only available for a relatively short period, of less than a month, the essentials of the conversation are transcribed here. The Government’s subsequent policy can, later, be measured, to an extent, against the hints and glimpses into the policy position given here prior to its publication. That might, at least, illuminate the pre-legislative process relating to the domestic development of human rights law.

Mr. Grayling said that he “expected legislation” replacing the current Human Rights Act 1998 to result “soon… in the not too distant future” - though after a process of consultation. The Government, Mr. Grayling continued, would, “bring forward detailed proposals [relating to a new Bill of Rights to replace the Human Rights Act 1998]… have a broad discussion about them; for example with the devolved administrations and then we’ll move on to legislation’. So the process envisages Government proposals, consultation/discussion then legislation. Human rights in the context of devolution would arise again; as the conversation closed.

Mr. Grayling continued with, what might well have been, a clearly considered phrase; “it’s about rebalancing the relationship between our courts and the European court”. So a ‘rebalancing’ as between the powers of the UK Supreme Court & the Strasbourg Court in the field of human rights seems to be what the Government has in mind. The cliché ‘evolution not revolution’ therefore seems to be applicable in the field of domestic human rights development when viewed through the prism of Government policy.

The Daily Politics’ Jo Coburn asked how clear change could result in this field, “unless we leave the European Convention on Human Rights?”

Mr. Grayling responded; “there’s a number of ways in which you can strengthen the powers of our courts but you’re going to have to wait for the consultation document to see that I’m afraid.”

The impressive interviewer Jo Coburn looked to decode this enigmatic response: “Well I’ll be intrigued, I can’t really see how that works, we’ve spoken to so many people; you can’t actually change the supremacy of those courts - those European courts (Andrew Neil nodding in agreement here) - unless the UK leaves the European Convention on Human Rights, which is perhaps what’s going to be proposed?”

Mr. Grayling, no doubt consciously elusive, replied that he was not going to announce the Government’s proposals at that moment and again repeated that the publication of the Government’s plans would need to come after the consultation.

Tenaciously pressing Mr. Grayling on the issue of complete Convention severance, Jo Coburn continued: “Do you accept that that [i.e. leaving the ECHR] is what would have to happen in order for UK courts to be supreme over [the] European court [in Strasbourg]”?

It’s worth pausing here to contemplate the idea of complete severance. No doubt some continuing inter-relationship between the U.K. Supreme Court & the Strasbourg court would persist even if the U.K. did opt to remove itself entirely from Convention obligations; there is just too much jurisprudential proximity between the two forums. It’s arguably a little like the Moon & the Earth still being subject to each other’s significant gravitational influence regardless of their physical separation. Even if practically removed, the one from the other, the mutual orbit of the two bodies means that there would be a permanent relationship between the two.

 Moreover, discussion of complete severance as between Strasbourg & domestic law may well be a ‘red herring’ in the broad scheme of things anyway; given recent glimpses into Government thinking and, as importantly, hints as to the standpoint of the Justices of the UK Supreme Court on the matter.

Government policy seems to point towards a strengthening of the powers of the UK Supreme Court (merely, yet, paradoxically, with enormous significance, adjusting the current power relationship with the courts in both Strasbourg and Luxembourg) which will neither require complete Convention severance nor an end to the UK’s membership of the EU. The paradox can be understood by considering the significant impact that can result where the direction of a mountain brook is diverted resulting in a marked change in the topography downstream. A seemingly innocuous change in the approach of the UK Supreme Court could have disproportionate – indeed Herculean - leverage.

To the Government’s move towards a rebalancing in the field of human rights can be added the fact that some, at least, of the current formidable UK Supreme Court Justices (Lord Neuberger, Lady Hale, Lord Sumption & Lord Reed certainly spring to mind) have provided some clues as to a like-minded judicial inclination towards buttressing core domestic constitutional principles (such as article 9 of the Bill of Rights 1689) from any future adverse erosion resulting from ECHR and EU law. Seeking solutions from the common law, in place of automatic recourse to EU or ECHR law, will be a significant part of this new judicial bulwark designed to bolster the constitutional pillars of domestic law against what Lord Denning, in Bulmer v Bollinger 1974 Ch 401 described as the ‘incoming tide’ of European law.

The HS2 case (22^nd January 2014 UKSC 3) certainly provides striking obiter remarks concerning scope for a judicial bulwark regarding EU law. Lord Reed, at para. 111 of HS2, drawing on the example of courts in other EU member states that may, very likely, act as a template for the UK Supreme Court’s approach says: “There is… much to be said for the view, advanced by the German Federal Constitutional Court in its judgment of 24 April 2013 on the Counter-Terrorism Database Act, 1 BvR 1215/07, para 91, that as part of a co-operative relationship, a decision of the Court of Justice should not be read by a national court in a way that places in question the identity of the national constitutional order.”

Such judicial movement would seem to dovetail neatly with that of the Government into an imposing policy bond redefining domestic law in the face of European influence. What is interesting is the question; have the courts actually been endeavouring to pre-empt the Government’s anticipated ‘rebalancing’ exercise? Free of the influence of the populist influences that shackle many Governments in policy-making, the judiciary can operate serenely – like a passing swan - while Governments furiously flap beneath the surface like the swan’s feet. The only trouble with the analogy is that it is the furious flapping that is most readily visible. It may be that the Justices are conscious that it may require the force of reinvigorated common law together with renewed emphasis of the principle of Parliamentary sovereignty properly to rebalance the relationship between domestic and European law.

These most informative glimpses into wider judicial thought, discernible in obiter statements & judicial lectures, will be considered in greater detail in a separate post (Cracking the Enigmatic Code 2 of 2) drawing, amongst others, from an illuminating symposium on human rights held at the University of Strathclyde in Spring of 2014, in honour of Lord Hope of Craighead, with insightful contributions from Lords Neuberger, Sumption and Reed.  

Change in the relationship between the U.K. Supreme Court and both European courts (Strasbourg & Luxembourg) would represent something of a tectonic shift – that is particularly so when the relationship between domestic law and EU law is considered.

Sometimes what is not said can be as interesting as what is said. There was no mention at all, in the Daily Politics discussion, of the Court of Justice of the European Union (CJEU).

Yet, as will be noted in the subsequent post, Lord Reed has described the CJEU as the ‘Elephant in the Room’ in the context of human rights. Now, bearing in mind the caution, above, about the cuckoo analogy – human rights and EU law should be conceptually separated in any debate - that makes Lord Reed’s input seem all the more intriguing. However that’s for later; set, ‘the Elephant in the Room’, aside for the moment.

Back to the redefined powers of the U.K. Supreme Court: While legal boundaries will be significantly realigned after this tectonic shift, the broader landscape of the law in a European context will, essentially, continue to look familiar. A ‘Bremain’ vote in the EU Referendum will certainly make for a more familiar legal landscape than a ‘Brexit’ result.

So, to reiterate, a likely ‘rebalancing’ (as opposed to complete severance) is discernible as a workable (indeed likely) approach in the development of both significant inter-court relationships; on the one hand, between the U.K. Supreme Court and the Strasbourg Court relative to the law of the ECHR but also, on the other hand, the relationship between the U.K. Supreme Court and the Court of Justice in Luxembourg relative to EU law.

The ability of domestic law to address concerns resulting from Strasbourg decisions is significant, though not astonishing. Under section 2(1)(a) of the Human Rights Act 1998, in interpreting Convention rights, U.K. Courts need only, ‘ take into account any judgment, decision, declaration or advisory opinion of the European Court of Human Rights.”

The Government’s efforts to address any perceived threat to domestic law from Strasbourg is rather like Beowulf shielding King Hrothgar’s Hall from Grendel. What is certainly more notable, indeed perhaps heroic, is that domestic law should, like Beowulf, don princely headgear, grasp famed sword Hrunting, and seek to tackle the Court of Justice of the European Union (this ‘powerful other one’ as Seamus Heaney describes Grendel’s Dam in his translation of Beowulf). But will Hrunting bite or will the fabulous powers of that heirloom fail? Perhaps only when another ancient heirloom, the common law, is wielded will any perceived ‘grim embrace’ of the Court of Justice of the European Union be loosened?

Of course, the EU Referendum result will impact on the exact nature of any rebalancing exercise.

Back to the televised discussion and Mr. Grayling replies to Jo Coburn’s question on complete ECHR severance: “Well we’ve set out plans (here Mr. Grayling rather hesitates in his choice of words, perhaps being cautious not to disclose too much - yet not miss the opportunity to flag the importance of the topic) to change the whole nature of human rights laws in this country, to make our courts stronger, but the detail you’re going to have to wait for I’m afraid”.

Still seeking clarification, Jo Coburn asks: “So it would make our courts supreme over [the] European court [at Strasbourg]?”

“The aim is to make our courts much more the influencing point when it comes to human rights law in this country” replies the cabinet minister.

Here Andrew Neil joins in seeking clarification from Mr. Grayling: “The question Jo asked was supreme, that’s the key word, are you aiming to make our courts supreme?”

Chris Grayling: “In our manifesto… you’ll see we talked about our Supreme Court having the final say, but you’ll have to wait for the details”

Jo Coburn: “It [the U.K. Supreme Court] would have the final say then over a European court… to be clear…?”

Chris Grayling (seeming to become a little uncomfortable as the atmosphere becomes tense): “Well I’m not going to air the details today.”

Jo Coburn: “Well it’s not a detail, it really is quite binary”

Chris Grayling: “Well I’m going to leave that for Michael [Gove] when he announces the consultation package, you’ll see the details of what’s being proposed then.”

It’s always useful to inform your learning with an understanding and awareness of any partisanship in advocacy to allow you to arrive at a reasoned and objective position in any debate. Of course you should adopt whatever stance you, personally, feel most drawn to - based on reasoned and diligent research - but to come to a well-considered position, it’s useful to be conscious of any possible bias colouring the information that you are researching.

Here it’s worth remembering that the issue is being considered amidst a debate within the U.K. that includes a passionate, sometimes rather fractious, split within the Westminster Parliament and the Government itself. Mr. Grayling and Mr. Gove are prominent Cabinet members, the organising mind of the Government. Sir Ivor Jennings (in Cabinet Government, 1959, p.228) considers the cabinet to be analogous to, ‘the board of directors… the directing body of the national policy… able to forward that policy by reason of its control of the House of Commons’. Both Mr. Gove and Mr. Grayling are supporting the ‘Brexit’ campaign - advocating that the UK exit the EU. In this instance, the doctrine of collective cabinet responsibility is suspended so Cabinet Ministers are free to advocate an individual position on EU membership.

As a reminder, ‘collective cabinet responsibility requires that each member of Cabinet, and all the government Ministers and Parliamentary private Secretaries, are bound by the decision of the Cabinet’ (Hilaire Barnett, Constitutional & Administrative Law, 2016, p.213).

Some Government plans preceded the intensity of the EU debate. In a public lecture in August 2014, ‘The role of judges in human rights jurisprudence: a comparison of the Australian and UK experience’, Lord Neuberger, currently President of the UK Supreme Court, said: “[T]he Conservative Party appear to be seriously considering whether to take away this power [i.e. the power under section 4 of the Human Rights Act 1998 to declare a statute to be incompatible with the ECHR], or at least to modify it, if they win next year’s General Election. Like the Victorian Charter, the HRA is under political review.’ Note that ‘modification’ and ‘rebalancing’ could be considered political synonyms.

Back to the Daily Politics and Andrew Neil asks if he can check something quite important.

Andrew Neil: “The European [Convention] on Human Rights is written into the Scottish devolution settlement, it’s part of the devolution settlement. You cannot change that, you can’t come out of it without the permission of the Scottish Parliament, which, I think, you will know as well as I, you won’t get. So you’re just going up a cul-de-sac here”.

At this point it is useful to pause and consider Andrew Neil’s point. Here this undoubtedly outstanding political journalist could, perhaps, have clarified one aspect of his question – at least in so far as the law is concerned. Not concerning the incorporation of the Human Rights Act 1998 into Scots law. That actually took effect in Scotland in 1999 - a year ahead of England & Wales.  Andrew Neil was certainly on the mark regarding the intermingling of the Human Rights Act 1998 and the devolution settlement.

However, in law, the Westminster Parliament can assert its sovereign legal authority over Holyrood by e.g. implementing legislation against the will of the Holyrood Parliament. Section 28(1) of the Scotland Act 1998 provides: ‘Subject to section 29, the Parliament may make laws, to be known as Acts of the Scottish Parliament’. (Section 29 then provides: ‘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’). However section 28(7) of the Scotland Act 1998, importantly, manifests the continuing sovereignty of the UK Parliament in law in the devolution arrangement: ‘This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland’. In theory, that could include Westminster legislation removing the Human Rights Act 1998 from its position in the devolution arrangements – substituting a new Bill of Rights in its place. The complexity of that undertaking, alone, would make that a very difficult undertaking. (Holyrood discussed the EU Referendum on Thursday morning, 26^th May 2016. The point will, no doubt, be raised).

That statement of constitutional law, with Westminster sovereign in law, is juxtaposed, it seems at first sight incongruously, with the concept of sovereignty in a political sense. That political element significantly moderates the strictly legal position. McFadden & Lazarowicz (2010, p.10) clearly identify, amongst other things including the impact of EU law on sovereignty, the distinction between sovereignty in its legal sense & sovereignty in a political context:

‘The sovereignty of the UK Parliament has undoubtedly been modified by our membership of the European… [Union] but, as far as domestic or national law is concerned, the doctrine remains firmly in place. Thus, any parliament or assembly created by the UK Parliament is a subordinate body… It may not only be overruled by the UK Parliament, it may even be abolished by it. Of course, this is legal theory and account has to be taken of practical politics. If the Scottish Parliament remains a relatively popular institution, no government at Westminster would want to incur the wrath of the Scottish electorate by interfering with the Scottish Parliament without good cause.’ (The Scottish Parliament: an Introduction, 2010).

Let’s return to the Daily Politics.

Chris Grayling (now with a confidence that might suggest that the matter has been deeply considered and given iron-clad confirmation by Government counsel) addresses Andrew Neil’s point on human rights protection being woven into the Scotland Act 1998: “Well, what’s written into the devolution settlement in the Scotland Act is the wording of the Convention [i.e. the ECHR]. We have never said that we want to walk away from the principles of the Convention. The issue is, that over a lengthy period of time, the courts have moved away from where we believe that human rights laws should be, they’ve moved away from the original spirit of the Convention. Our document, when it comes out, will seek to address that”.

Jo Coburn (smiling): “Right. Well, as I say, we’ll be picking through that with a fine tooth-comb”

Chris Grayling (chuckling): “I’m sure you will”.

As a ‘segway’ into a subsequent post considering the views of the U.K. Supreme Court Justices on the relationship between the U.K. Supreme Court & the courts in Strasbourg and Luxembourg, here is an extract from Lord Sumption’s lecture in Kuala Lumpur in November 2013, ‘The Limits of the Law’, which reflects the point mentioned by the Leader of the House of Commons in the Daily Politics discussion above that the Strasbourg court has moved away from the original spirit of the Convention, yet demonstrates Lord Sumption’s ‘noble courtesy’ - Seamus Heaney’s words again - in respecting his peers and predecessors by supporting the original principles of the Strasbourg Convention:

“The text of the Convention is wholly admirable. It secures rights which would almost universally be regarded as the foundation of any functioning civil society: a right to life and limb and liberty, access to justice administered by an independent judiciary, freedom of thought and expression, security of property, absence of arbitrary discrimination, and so on. Nothing that I have to say this evening is intended to belittle any of these truly fundamental rights. But the European Court of Human Rights in Strasbourg stands for more than these. It has become the international flagbearer for judge-made fundamental law extending well beyond the text which it is charged with applying. It has over many years declared itself entitled to treat the Convention as what it calls a “living instrument”. The way that the Strasbourg court expresses this is that it interprets the Convention in the light of the evolving social conceptions common to the democracies of Europe, so as to keep it up to date. Put like that, it sounds innocuous, indeed desirable. But what it means in practice is that the Strasbourg court develops the Convention by a process of extrapolation or analogy, so as to reflect its own view of what rights are required in a modern democracy. This approach has transformed the Convention from the safeguard against despotism which was intended by its draftsmen, into a template for many aspects of the domestic legal order… [T]he frame of mind underlying the case-law of the European Court of Human Rights is symptomatic of a much wider phenomenon, namely the resort to fundamental rights, declared by judges, as a prime instrument of social control and entitlement”.

Rebalancing is a sufficiently malleable term as to be applicable whatever the outcome of the EU referendum. That may be why it has been employed. The Conservative Party Manifesto (2015, p.62) is also somewhat equivocal, noting, again rather enigmatically, that the Government will, ‘break the formal link between British courts and the European Court of Human Rights’. The Government are explicit in stating they will remain faithful to the basic principles of human rights but reverse the mission creep that has meant human rights being used for wider purposes (2015, p.74).

If the EU Referendum result is for ‘Brexit’, the legal landscape will have settled sufficiently to reinforce the concept of Parliamentary Sovereignty to reinvigorate the concept both in a legal and political sense, at least to an extent, from its present dissolved form; barely discernible as a soluble tint in a cocktail of solvents ranging from international law to devolution. What practical utility will be gained from a defibrillated concept of sovereignty may, however, be questionable in a dynamic, global, environment. Yet the conundrum is that the roots of sovereignty remain, a persistent perennial firmly embedded in the constitutional bedrock of the UK.

If the EU Referendum result is in favour of ‘Bremain’, the rebalancing exercise will require more than just a re-emphasis of sovereignty. It is certainly possible that, on its own, a domestically reinvigorated concept of Parliamentary Sovereignty will, like Hrunting, fail. Only by recourse to that other ancient heirloom, the common law, can any perceived grim embrace of European law be loosened.

The Daily Politics discussion:

http://www.bbc.co.uk/iplayer/episode/b07ch8jj/daily-politics-19052016

Daily Politics 19/05/2016

Jo Coburn and Andrew Neil are joined by cabinet minister Chris Grayling and TUC General Secretary Frances O'Grady to discuss the latest developments at Westminster. First shown: 12pm 19 May 2016. Available for 23 days.

Seamus Heaney’s translation of Beowulf (Part 2):

https://www.youtube.com/watch?v=Zsxxg5P-DnY

The Daily Telegraph website's analysis of the Queen's speech states:

"David Cameron will use the Queen's Speech today to push ahead with a British Bill of Rights in a bid to assert the "supremacy" of UK courts in the run up to the EU referendum. 

The Government will today announce a consultation to be held after June's EU referendum aimed at giving British judges the final say on cases involving human rights. 

It will recommend that Britain should remain a member of the European Convention of Human Rights in a move which is expected to provoke a split at the top of the Conservative government".

http://www.telegraph.co.uk/news/2016/05/18/what-to-expect-from-the-queens-speech/ (Telegraph online Accessed 18/05/16)

So it is there, clearly & explicitly, the U.K. Supreme Court's powers will be enhanced (likely to ring-fence significant constitutional facets as discussed in the HS2 case) but discussion won't begin (properly) until after the result of the E.U. referendum.

The debate on the Queen's Speech relating to this significant matter will certainly be worth attention.

The State Opening of Parliament, for the session 2016 – 2017, takes place tomorrow, 18^th May 2016 with the Government’s legislative programme being outlined in the Queen’s Speech.

http://www.parliament.uk/about/how/occasions/stateopening/

Press speculation regarding the Queen’s Speech tends to support the view (Taking a punt on A.V. Dicey? 19^th February 2016) that the Government will enhance the powers of the U.K. Supreme Court to ring-fence aspects of domestic law that have significant constitutional standing.

The Independent includes the following hint regarding the content of the Queen’s Speech:

“There will be consultation on a new British bill of rights, which would replace the Human Rights Act. This would assert the supremacy of the UK courts – but would still incorporate the European Convention of Human Rights to which Britain is a signatory. We would also still accept the court in Strasburg as the ultimate arbiter of UK human rights”.

http://www.independent.co.uk/news/uk/politics/the-queen-s-speech-six-laws-that-are-about-to-radically-change-a7031866.html

(Independent online, accessed 17^th May 2016).

It will be interesting to see to what extent any focus on human rights extends to the ring-fencing of U.K. sovereignty (a post or two on sovereignty to follow) in the context of E.U. law – whether expressly or implicitly.