The GULS Law Review

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Constitutional

An Analysis of the scope of reform of Freedom of Information legislation in Scotland and the rest of the UK

In this article, Christopher Lewis-Laverty, Diploma in Legal Practice Student and Editor-in-Chief of the Law Review, discusses the scope of reform of freedom of information legislation both in Scotland and the rest of the United Kingdom.

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An examination of Political constitutionalism being the dominant model for Westminster governance, whilst devolved governance is determined by legal constitutionalism

Within the current Westminster government, there have been vocal and much publicised concerns over the sovereignty of the Westminster Parliament. Some believe that the judiciary, both at the EU and the Council of Europe level, are encroaching on the Parliament's legislative authority. They subscribe to the view that political constitutionalism, as the classic model of Westminster governance, is under threat from the legal constitutionalism model which asserts the primacy of the judiciary.

In this article, John Henton argues that, with specific reference to both the European Communities Act 1972 and the Human Rights Act 1998, that political constitutionalsim remains the dominant model for Westminster governance while devolved governance is determined by legal constitutionalism.

 

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Social Justice By Civil Means: Protecting Legal Aid

This article written by Paul Cruikshank, Professional Diploma in Legal Practice, discusses the importance of legal aid.

Scotland in 2014 is not a good place to be poor. The UK Government’s welfare reform program has had a devastating effect on those who rely on social security to survive. The ‘under-occupancy charge’ (also known as the ‘Bedroom Tax’) has led to mounting rent arrears in Scotland, with tenants and housing associations suffering to the tune of £5.4 million.[1] The Scottish Government did nothing for a long time, and any support they have provided is due to run out in April 2015.

This initial inaction, and the uncertainty over future support, leaves a question mark over social housing provision in Scotland in the coming years. For those relying on housing benefit to meet their rent, mounting rent arrears, and so eviction, become very real threats. The most disadvantaged in society have become the most attacked, and they are those most in need of legal representation to protect their rights.

Yet, the nature of these things is that those most in need of a solicitor are those least able to afford one. While advice agencies (such as Citizens’ Advice Bureaux) can help some, sometimes there is no choice but to go to court. Scotland has had a system of legal aid in place for decades to ensure that everyone is able to fight for their rights, ensuring that the strength of your case, and not your size of your wallet, determines success.[2] However, we are now seeing the biggest threat to the Scottish system of legal aid for years.

In 2011, the Scottish Government launched a review of Scottish Legal Aid in the context of stretched budgets, the need for ‘efficiency’, and a reduction in the Scottish Legal Aid Board’s budget that year.[3] In November 2014, The Law Society of Scotland (hereafter ‘LSoS’) released its discussion paper to set out its view on how the system should change.[4] The LSoS suggested in their report that:

...the following areas being removed from the scope of civil legal assistance:
- Breach of contract
- Debt
- Employment law
- Financial only divorce
- Housing/heritable property
- Personal injury (with the exception of medical negligence)[5]

This proposal by the Scottish regulatory body should be disturbing to all those who hope to enter the profession. These changes would create major obstacles to the most vulnerable in our society accessing the court system and making their case effectively.

Consider the case I set out above: if civil legal aid was not available to those facing homelessness, who would be there to make their case? What about an expectant single-mother whose hours have been cut at just the right time so her employer doesn't have to pay her full Statutory Maternity Pay? Who represents her at the tribunal when she cannot afford to pay, and her knowledge of the law is not enough for her to go on? These are not academic hypotheticals, but real examples taken from my experiences as a CAB adviser. Both these cases would be removed from civil legal aid under the LSoS proposals. Those facing eviction; those seeking protection in the workplace; those fighting unfair debts (such as payday loans) could no longer expect support in finding a professional to fight their case if the LSoS proposal was adopted. How can this be a positive thing for Scottish justice? How can the LSoS justify this when they have a duty to promote fair access to justice?

According to the LSoS, legal provision in these areas could be:

‘…easily and properly be provided either by the advice sector

or on a private client basis through a range of funding options

including speculative fee agreements, loans for legal services,

and payment plans involving deferral or instalments.’[6]

This suggestion, while theoretically viable, ignores many practical issues that make these suggestions unworkable. Foremost among these is that the advice sector is already underfunded and overworked as it is.[7] Attempting to increase the scale of its representation work could break it. This ‘solution’ also overlooks the reality that law centres, which provide legal assistance to the most vulnerable, are already working on a shoestring budget, and speculative fee agreements (‘No win, no fee’) could decimate the already empty landscape.

With fees for Employment Tribunals and remission thresholds becoming harder and harder to meet, basic access to justice is hard enough for the least well-off in society. LSoS’s proposal to reduce this even further, extensively restricting the scope of civil legal aid will prevent all those unable to pay for their own lawyer being able to effectively make their case in court. It is also notable that it is those areas that affect the disadvantaged most (Housing, Employment, Debt etc.) that have entered the LSoS’s cuts-crosshairs. Whether by design or by oversight, these suggested cutbacks would disproportionately affect the poorest, those who should be supported most.

I am yet to enter the profession, but when I do, I want to fight for those who need someone to fight for them. But the work of Law Centres and the LSA can only go on if the funds are there to let it. Social Justice is neither easy nor cheap, but it is a cornerstone of the legal profession. Unless the future of Civil Legal Aid can be protected, the Civil Justice System in Scotland will become an unfair, unjust place for those without money - and it is the job of the profession, future lawyers (such as myself), and LSoS itself to make sure that does not happen.

 

[1] InsideHousing.co.uk, ‘Rent Arrears caused by Bedroom Tax up to £5.4m’, 11th April 2014. Available at: http://www.insidehousing.co.uk/rent-arrears-caused-by-bedroom-tax-up-to-54m/7003225.article (last accessed: 2/10/2014).

[2] This system is currently established and regulated under the Legal Aid (Scotland) Act 1987 and Legal Professional and Legal Aid (Scotland) Act 2007.

[3] Scottish Government, ‘A Sustainable Future for Legal Aid’ (Edinburgh, 2011); Available at: http://www.scotland.gov.uk/Resource/Doc/359686/0121521.pdf  (last accessed: 2/10/2014).

[4] Law Society of Scotland, ‘Legal Assistance in Scotland: Fit for the 21st Century - Discussion Paper’, Available at: http://www.lawscot.org.uk/media/391321/legal-assistance-in-scotland-discussion-paper.pdf (last accessed: 2/10/2014).

[5] Ibid. 39.

[6] Ibid.

[7] Third Force News, ‘Citizens Advice Scotland Tackling 1million Issues A Year’ (17th April 2017) available at: http://thirdforcenews.org.uk/funding-and-finance/news/citizens-advice-scotland-tackling-1m-cases-a-year (last accessed: 2/10/2014).

Time to stop asking the “West Lothian Question”?

This article considers why the “West Lothian Question” has once again hit the headlines this month in the aftermath of the Scottish independence referendum, and discusses the potential solutions and their motivations. 

Written by Marianne Wood, 4th Year LLB and sub-editor of the Constitutional Law portion of the Review.

 

 

It is often said that one of the greatest advantages of the UK’s uncodified constitution is its ability to adapt to the changing needs and expectations of society. From the late 1990s in particular, we have seen a constant evolution of the principles by which we are governed: from the abolition of hereditary peers in the House of Lords[1] and the creation of the Supreme Court[2], to devolution settlements for the home nations[3] and the incorporation of human rights into domestic law[4], the benefits of having a flexible “norme suprême” which can be altered by normal legislative procedure have been felt in many areas of governance. However, in the aftermath of the Scottish independence referendum, the need for more urgent and fundamental constitutional reform across the whole of the United Kingdom has become abundantly clear. As well as being an incredible victory for democracy, the unprecedented levels of political participation and interest sparked by the question of whether Scotland should be an independent country have reignited the debate over Britain’s constitutional future. In his speech on the morning after the historic vote, David Cameron echoed the sentiments of many: “We now have a chance—a great opportunity—to change the way the British people are governed, and change it for the better.”[5]

 

 

 

Many, then, were surprised to see that that since 18 September, the Government’s focus appears to have been not on the promised negotiations for a stronger devolution settlement for Scotland, but on an old constitutional anomaly: the so-called “West Lothian Question”.  First raised by MP Tom Dalyell in 1977[6], the situation whereby MPs from Scotland, Wales and Northern Ireland may vote on laws which apply only in England, while English MPs have no reciprocal influence, has been periodically topical over the last 20 years. In the face of the demands for greater fiscal and legislative autonomy for Scotland, it has once again come to the fore. With the prospect that Scottish policy will be increasingly able to be decided at regional level, there is a growing feeling in England that laws which affect only England should be decided solely by MPs representing English constituencies[7]. Does impending further devolution mean that the West Lothian Question finally “requires a decisive answer”[8]? Or is it an opportune distraction from the real issues requiring constitutional reform?

 

 

 

Since the issue was first highlighted, there have been those who questioned its actual significance.  According to former Lord Chancellor Irvine, “the best thing to do about the ‘West Lothian question’ is to stop asking it.”[9] All of the Westminster governments in the aftermath of devolution have also enjoyed a majority in England: only twice since 1998 have they had to rely on Scottish and Welsh MPs to push through legislation affecting England alone[10]. But while the West Lothian Question may be of limited practical importance, it is becoming of increasing democratic importance in terms of how the constitutional settlement is perceived. The fundamental principle whereby elected representatives are publicly accountable for the decisions they make is thwarted by the ability of non-English MPs to vote for legislation which does not affect their constituents. Our governing bodies can only function effectively if all sides are happy with the division of political power.

 

 

 

What, then, is the solution? Perhaps the most immediately obvious answer is the creation of an English Parliament to sit alongside Westminster. Although much lauded by the Liberal Democrats in recent years, this form of federalism is clearly unworkable: symmetrical devolution is not the answer in an asymmetrical political system such as the UK[11], not to mention the fact that regional governance in England was met with a “swingeing rejection [12] in 2004. The more logical solution, and that advocated by the Conservatives, is “English Votes for English Laws”, which would exclude Scottish, Welsh and Northern Irish MPs from voting on English matters. However this option is not with its disadvantages either. A separation of voting privileges at Westminster would undermine the collective responsibility[13] of Parliament for the actions it takes.  Constitutional expert Vernon Bogdanor has described the proposals as “a logical absurdity”[14]: a potentially bifurcated central government would lead to devolution becoming party-political.  Even the more refined approach put forward by Sir Malcolm Rifkind MP, and supported by the McKay Commission, of creating an English grand committee with which the government would have to negotiate when pushing through English legislation, would have the capacity to become deadlocked over fundamental policies such as taxation. In practice, laws affecting England, by far the largest component of the United Kingdom, can have a decisive financial and political influence on the other nations. Perhaps, as some academics as argued[15], the West Lothian Question is a constitutional anomaly that we should just accept as a feature of our incrementally developing constitution, as opposed to an issue which need to be solved.

 

 

 

In any case, the “English Votes for English Laws” debate is arguably a simplistic cover for what is, on closer inspection, a much more complex problem. It has been contended that the West Lothian Question is a convenient surrogate for a more serious post-devolution issue: financial fairness[16].  Traditionally, funds have been allocated among the regional governing bodies according to the Barnett Formula - a complex system which many feel results in a disproportionate allocation of resources in favour of the devolved parliaments and assemblies. The public unease is double edged: the procedural inequality of voting rights, and the more serious perceived financial inequalities created by the Barnett Formula, have been “conflated into a single alleged grievance”[17]. Yet Westminster are attempting to address both aspects with a single, politically-motivated solution. The sudden Conservative concern for the West Lothian Question seems to be borne out of  fear that Labour will secure a majority by virtue of its non-English MPs in 2015‘s general election, which looks to be closely fought. Constitutional change should be the result of negotiations between all parties, not a stop-gap measure to win votes or manipulate legislative procedure[18]. Any reform of the way English laws are voted upon should be in tandem with increased transparency of spending allocation within the UK, and, indeed, the British constitution as a whole.

 

 

 

The West Lothian Question cannot be seen as a stand-alone constitutional dilemma to be solved in isolation. All of the contended solutions involve the break-up of the Union in some way, whether it be the fracturing of the collective responsibility of the UK parliamentarians, or the creation of a devolved body for England. More fundamental constitutional reform is needed, and it should be given the due consideration required of such an important legal reorganisation. The sudden urgency attached to finding an answer to what is a long-standing problem is driven by party-political considerations and serves as a convenient surrogate issue for the Conservatives to get behind post-referendum.  It should instead be considered in conjunction with revised devolution settlements and the perceived financial inequalities that exist between the different governing institutions - if indeed it should be considered at all.  Whatever the outcome of the current debate, it would appear that the UK’s uncodified constitution, so often celebrated for its flexibility in times of change, has a lot of adapting to do in a very short space of time.

 

 

 



[1] House of Lords Act 1999

[2] Constitutional Reform Act 2005 s. 23-60

[3] Scotland Act 1998; Government of Wales Act 1998; Belfast Agreement 1998; St Andrews Agreement 2006.

[4] Human Rights Act 1998

[5] Statement by the Prime Minister David Cameron, 19/09/14. Full text at https://www.gov.uk/government/news/scottish-independence-referendum-statement-by-the-prime-minister (last accessed 15/10/14)

[6] Tam Dalyell MP, House of Commons, debate on devolution, 14 November 1977, Hansard source (http://hansard.millbanksystems.com/commons/1977/nov/14/scotland-bill - last accessed 10/10/14)

[7] The Mckay Commission, “Report of the Commission on the Consequences of Devolution for the House of Commons: Executive Summary”, March 2013, available at : http://webarchive.nationalarchives.gov.uk/20130403030652/http://tmc.independent.gov.uk/wp-content/uploads/2013/03/The-McKay-Commission_Executive-Summary_25-March-2013.pdf (last accessed: 15/10/14)

[8] Statement of the Prime Minister, supra note 5.

[9] House of Lords Debate, 25th June 1999, col. 1201

[10] Namely the setting up of foundation trusts in the English NHS in 2002; and the introduction of tuition fees in England in 2004

[11] Scottish Constitutional Futures Forum, “Adam Tomkins: A West Lothian Answer?” 28 March 2013 (available at http://www.scottishconstitutionalfutures.org/OpinionandAnalysis/ViewBlogPost/tabid/1767/articleType/ArticleView/articleId/1395/Adam-Tomkins-A-West-Lothian-Answer.aspx) (last accessed: 15/10/14)

[12] McKay Commission Report, supra note 7, para 70

[13] V. Bogdanor, “The New British Constitution”, (Hart Publishing, Oxford, 2009), p99

[14] V. Bogdanor, “Why English votes for English laws is a kneejerk absurdity, The Guardian 24/09/14 (available at http://www.theguardian.com/commentisfree/2014/sep/24/english-votes-english-laws-absurdity-separatist) (last accessed: 15/10/14)

[15] B. Winetrobe, ‘The West Lothian Dead End: Asking the Wrong Question after the Scottish Referendum’ U.K. Const. L. Blog (23rd September 2014) (available at http://ukconstitutionallaw.org) (last accessed: 15/10/14)

[16] Ibid.

[17] Ibid.

[18] Rowena Mason, “English votes plan is ‘most un-prime ministerial thing Cameron has done” The Guardian online edition (available at: http://www.theguardian.com/politics/2014/sep/22/ed-balls-english-votes-un-prime-ministerial-cameron) (last accessed: 15/10/14)

 

 

Was the Edinburgh Agreement pointless?

 Written by David Early (4th Year LLB)


The purpose of this article is to provide a commentary on the development of the Scottish independence referendum in the light of the Edinburgh Agreement[1] from both a legal and pragmatic perspective.

 Fundamentally, a referendum is a direct vote in which the electorate engages directly with the executive and are asked to either approve or reject a proposal put forward by the government of the day. Such a process is onerous and despite its effectiveness at communicating the will of the people, if applied regularly would undermine representative democracy. As such it is reserved for highly sensitive issues which it is felt more appropriate to ask the electorate directly.  Such referendums are expected to have a binding effect even if the process was only advisory as 


‘It would be difficult for Parliament to ignore a decisive expression of public opinion’[2]

without undermining democratic process.

Normally the use of a referendum would be within the mandate of the Scottish Government. However the current referendum proposed by the SNP is highly contentious due to the topic under discussion, namely the possible secession of Scotland from the Union.

The argument by pro-Unionists and constitutional lawyers such as Professor Adam Tomkins and Dr Cormac Mac Amhlaigh is that prior to the implementation of the Edinburgh Agreement Holyrood was operating outside of its political mandate by attempting to override Westminster’s legislative supremacy.

To understand this argument we must first examine the doctrine of supremacy. The term Parliamentary supremacy was first coined by constitutional theorist A.C Dicey. It provides:

‘Parliament…has under the English constitution, the right to make or unmake any law whatever: and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.’[3]

It confers unconditional legislative sovereignty to the Westminster Parliament and has been described as:

‘the dominant characteristic of our political institutions.’[4]

With the Act of Union in 1707 and subsequent merger of the Parliaments this doctrine has been applied north of the border despite there being no pre-existing concept.[5] The idealised Diceyan model is only true in an orthodox sense, and in true British style we have a number of exceptions.

Of note to us is the political impact of the Scotland Act 1998 which created a devolved parliament in Scotland and conferred exclusionary powers to legislate on non-reserved issues.[6] The significance of a devolved rather than federal system means Holyrood draws its power from Westminster’s constitutional supremacy rather than from its own sovereignty, and as such theoretically Westminster could repeal any of the devolved parliaments powers and legislation.

However, it presents an interesting constitutional conundrum as arguably this relationship of supremacy is a legal fiction. In reality it is unlikely that the UK would repeal the Scotland Act and abolish the devolved legislature due to significant political restraints on Westminster’s ability to exercise its supposed legal sovereignty.  For the purposes of this paper we shall not challenge orthodox constitutional theory and proceed upon the premise that the Westminster parliament remains sovereign.


From a legal perspective the key provision of the Scotland Act regarding the referendums legality was s29 (2(b)) and whether the referendum relates to reserved matters. This is a broad non-exhaustive provision and as such s29 (3) seeks to expand upon this subsection and provides that regard should be given to all relevant circumstances. Subsequent case law[7] provides that a purposive test should be adopted when considering what amounts to a reserved matter as laid out in Schedule 5. In this context we would examine the referendum through the perspective lens on the impact it would have upon

‘the Union of the Kingdoms of Scotland and England.’[8]

Clearly a legally binding independence referendum impacts the Union as it potentially ends it. As such the Scottish Government was acting ultra vires as it had no grounds upon which to hold such a referendum, with First Minister Alex Salmond misinterpreting his devolved political authority.

However as alluded to above, the legal supremacy of Parliament does not translate neatly into political supremacy. As an inherently political issue with far reaching nationalist consequences both sides of the border, the coalition government was manoeuvred by circumstance into conceding a modification of Schedule 5 under s30 (2) to amend the reserved matters in what was known as the Edinburgh Agreement, thereby providing a legal basis for the referendum deriving from its own authority and overturning its initial illegality.


This modification of the Scotland Act cannot be judicially reviewed under the Padfield[9] doctrine for a number of reasons. Firstly the argument for Padfield illegality is based upon the idea that the UK government is using s30 to subvert the purpose of the Scotland Act and undermine the Union. However, the Act only refers to matters concerning the Union which does not prohibit actions reducing it. Secondly the s30 order has to be passed by affirmative resolution meaning it embodies the will of Parliament which is supreme and overrides the previous government’s intent regardless.

 

So whilst we must accept that the referendum as it stands is legally binding as it has Westminster’s approval, it is by no means a just one. The Scottish Government has used political savvy and leverage at every turn to engineer what was an unlawful referendum. This can be evidenced throughout the run up to the referendum, from the selection of the date of the referendum to coincide with the 700th anniversary of Bannockburn to the manipulation of democratic process with the ad hoc inclusion of 16/17 year olds to the electorate in the hope of exploiting youthful ideology.[10] Such a view is supported by the Lord Advocate, chief legal advisor to the Scottish government, who refrained from contributing to the legality debate before publically announcing that both governments set aside the s29 argument for political reasons.[11]

However, as Westminster has given its assent, the referendum will go ahead regardless. But this leads us to the substance of this paper, was the Edinburgh Agreement necessary to procure a legitimate basis for the independence referendum?

Along with the Act of Union 1707, the Scottish people were entitled to maintain their own legal system and so a case may be made that the principle of Parliamentary supremacy may not be applicable in Scots law. Despite there having been no open challenge to the doctrine the issue was raised by Lord President Cooper in MacComick v Lord Advocate[12] who stated that:

'The principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish Constitutional Law'[13]

and that the Parliament of the United Kingdom could not

'Repeal or alter [certain] 'fundamental and essential' conditions'

of the Act of Union,[14] with such legislation being considered as constitutionally invalid. Specifically the intrusion of unrecognised English constitutional law into Scots law.

So we are presented with the two part argument that:

(1) as Scotland recognised no such doctrine of supremacy prior to the Union it is prima facie under no obligation to acknowledge Westminster’s authority-an inherently English convention[15]and
(2) if Scotland chooses to recognise this doctrine it must be an accessory rather than usurpation of Scots law to prevent it from contravening the Act of Union.

At present there exists no authority that any court may raise such an issue[16] but it provides an alternative avenue towards a legal basis for this referendum which circumvents Westminster’s authority.

The second case for ignoring Westminster is for Scotland to assert unilateral secession from the United Kingdom under the doctrine of self-determination of peoples as was attempted in Québec in 1995.[17] As Lenin explains:

'The right of nations to self-determination means only the right to independence in a political sense, the right to free, political secession from the oppressing nation… the logical expression of the struggle against national oppression in every form.'[18]

With Wolfgang Danspeckgruber,[19]describing its potency:

'No other concept is as powerful, visceral, emotional, unruly, and as steep in creating aspirations and hopes as self-determination.'

This right is enshrined in Article 1(1) ICCPR and ICESR- both of which have been ratified by a majority of the United Nations, and is accepted as a customary international law principle and is applicable to all peoples in a colonial situation. This right is divided into two aspects, external and internal self-determination. The former is primarily applicable to colonial situations as it relates to the territory of the state and its international relations with other states and the latter concerning the rights of peoples within a state to choose their political status via the participation and formation of their government. As such Scotland would argue a case falling within the remit of external self-determination. However, they must first qualify as a peoples in order to exercise this right. Unfortunately there is no clear objective consensus on what constitutes a ‘peoples’ although there are guiding characteristics such as ethnicity, shared history and a distinct culture.[20] As such the Scots as a subcategory of Britain’s are likely to claim recognition of themselves as a distinct ‘peoples’ and competently exercise their right to secede from the UK. However external self-determination is only permitted when there has been substantial abuse of human rights. As such it would be open to Holyrood to attempt to pursue an argument of self-determination but it would most likely be illegal under international law as the severity of Scotland’s ‘subjection’ does not amount to a significant enough oppression to warrant secession regardless of orthodox Leninist views.

 

In conclusion, whilst the referendum is now a binding legal decision post Westminster’s s30 order under the Edinburgh Agreement, the UK Government was under no obligation to submit to Holyrood’s demands as s29 clearly designates such an act to be ultra vires. Similarly the right to self-determination is inapplicable due to a lack of justification. So, had the coalition held firm the SNP would have only had a tenuous and previously untested constitutional argument to provide a legal basis to this referendum. In the face of these daunting odds the SNP did well to engineer such a concession from Parliament. Although this begs the question that if our current devolved government is willing to go to such lengths to manipulate the democratic and legal process, should we not consider what such a government would do with unbridled sovereignty?

 

 



[1] http://www.scotland.gov.uk/About/Government/concordats/Referendum-on-independence

[2] House of Lord Constitution Committee 12th report of 2009-10, HL 99, para 197

[3] A.V. Dicey Introduction to the Study of the Law of the Constitution (1885)

[4] Ibid.

[5] MacCormick v. Lord Advocate 1953 S.L.T. 255 the Lord President Cooper para 264

[6] S29 SA 1998

[7] Martin and Miller v. HM Advocate [2010] UKSC 10

[8] Schedule 5 part 1(b) SA 1998

[9] Padfield v Minister of Agriculture, Fisheries and Food [1968] A.C. 997

[10] http://www.youngscot.org/info/1407-votes-at-16

[11] http://www.bbc.co.uk/news/uk-scotland-scotland-politics-16638746

[12] 1953 S.L.T. 255

[13] MacCormick v. Lord Advocate 1953 S.L.T. 255 the Lord President Cooper para 264

[14] MacCormick v Lord Advocate 1953 SC 396 at p 411

[15] A.V. Dicey Introduction to the Study of the Law of the Constitution (1885)

[16] Ibid p263

[17] Secession of Quebec  [1998] 2 S.C.R. 217

[18] The Socialist Revolution and the Right of Nations to Self-Determination- Lenin- chapter 2

[19] Founding Director of the Liechtenstein Institute on Self-Determination

[20]  International and Comparative Law Quarterly/Volume 43/Issue 04/ October 1995, Robert McCorqudale Page 866

 

The Chagos Islanders Case

Written by John Stubbs (4th year LLB)

The Chagos Islands are a cluster of around sixty small islands and seven atolls located in the Indian Ocean. The islands were ceded to the United Kingdom by the Treaty of Paris in 1814, but were administered by the state of Mauritius. Slaves were given their freedom in 1835, and while some left, many remained on the islands for over a hundred years. These are the Chagossians or Ilois people, and are considered the islands' indigenous population.

In 1965 the islands were reconstituted as the British Indian Ocean Territory (BIOT), in preparation for Diego Garcia (the largest of the territory's islands) to be sold to the United States to serve as a military base in the region. Between 1967 and 1972 the indigenous people, numbering around 1,600, were treated 'abhorrently' by the British Government. They were left penniless for many years in slums in Mauritius – at the time a country with unemployment over 20% - after their evacuation by the British, before a token grievance settlement was reached with them.

In 2000, Olivier Bancoult, a native Chagossian, brought a judicial review claim against the Secretary of State for Foreign and Commonwealth Affairs for the initial 1971 ordinance for their people's removal.1 In it, Banhoult was successful in getting a judicial declaration that the BIOT Commissioner has acted ultra vires (outside his scope of authority) in allowing the 1971 ordinance. The judge also found that the Magna Carta applied to foreign nations, as it was 'the nearest approach to an irreplaceable fundamental statute' that England has ever had, as it ensured the King, and therefore Orders in Council, came underneath the authority of the law.

The British Government's response was immediate, with the Foreign Secretary stating on 3 November 2000 that he would accept the ruling and the government would not appeal. He also ordered a 'feasibility study' to examine the economic and social impact of resettlement of the Chagossians on the outlying islands. The study was published in June 2002, and came to the conclusion that 'it would be impossible for the Government to promote or even permit resettlement to take place' due to environmental and economic uncertainty over the viability of resettlement long-term, and that the Government had henceforth 'decided to legislate to prevent it.'2 In 2004, an Order in Council enacted the British Indian Ocean Territory (Constitution) Order 2004, section 9 of which gives that 'no person has the right of abode in the territory', as well as  introducing the British Indian Ocean Territory (Immigration) Order 2004, which effectively prohibits entry in the BIOT without a government-approved permit.

Mr Banhoult's response to these actions was to bring another action to the Court, claiming the Foreign Secretary's statement had created a legitimate expectation to the Chagossians which was destroyed by the 2004 Orders. He also brought the action in order to appeal against the validity of the offending section 9 of the Constitution Order. In the Divisional Court, Hooper LJ and Cresswell J supported Banhoult, claiming an Order in Council could be held judicially reviewable under Council of Civil Service Unions v Minister for the Civil Service,3 and that the section was irrational as it clearly did not consider the interests of the Chagossians despite its imposition as the island's Constitution by royal prerogative.

The judgment given in this appeal case was lengthy, diverse, and had important ramifications for the Chagossians. The two issues upon which the judges had to make reasoned decisions were, summarily, whether or not Orders in Council can be subject to judicial review by the Court, being classed as primary legislation and therefore as privileged as Acts of Parliament (and therefore supposedly unchallengeable), and the legality of the 2004 Order, particularly with respect to the aforementioned offending section 9. However, the decision is peppered with statements regarding the judicial/political mire of balancing human rights issues with national security and defense considerations and sympathetic statements regarding the plight of the Chagossians.

On the issue of the judicial review of Orders in Council, there was a general consensus between the judges that 'there was no reason why prerogative legislation should not be subject to review on ordinary principles of legality, rationality and procedural impropriety as any other executive action.'4 Lord Hoffman, in the leading judgment, highlights that 'an exercise of the prerogative lacks this quality [of representative scrutiny through Parliament]; although it may be legislative in character, it is still an exercise of power by the executive alone.'5 He goes further, referring to the aforesaid Civil Service6case, which provides a common law precedent that prerogative powers are not immune from judicial review. Referring to the treatment of the Chagossians and the use of Diego Garcia is a possible site of American extraordinary rendition, he stated that 'the idea that such conduct on British territory, touching the honour of the United Kingdom, could be legitimated by executive fiat, is not something which I would find acceptable.'7With support even from dissenting judgments, the view that Orders in Council are no longer immune from judicial review can now be considered an entrenched feature of constitutional law.

The legality of the Constitutional Order, including the much-debated section 9, was upheld by the Court but with vehement and vocal dissent. In upholding the Order's legality, Lord Hoffman contended that national security concerns and economic ramifications (especially considering the UN Charter article 73, which could result in indefinite British support for such a venture)  had to be considered by the Secretary of State, and that his decision to enact the Orders were in the interest of the entire United Kingdom and not just solely the Chagossians. Indeed, he goes as far as confirming that 'in the event of a conflict of interest [between possessions and the mainland], Her Majesty is entitled to prefer the interests of the United Kingdom'.8

Lord Rodger expanded upon his colleague's submissions, contending that, despite its origin being so archaic and the case upon which the Court should recognise precedent for it over two hundred years old, the Court must acknowledge the distinction between settled and conquered or ceded colonies. He states simply that 'when Parliament has not intervened to alter them, the rule of law requires courts to apply the established principles'. That a case so important to the people of the Chagos Islands can rest on principles unchanged from the era of British Imperalism did not sit well with many commentators. Adam Tomkins, an expert on the British constitutional monarchy, described the reliance on those principles as 'arcane' and expressed disappointment that, in the original case, Laws LJ had relied on such 'ancient and formal niceties'.9

Lord Carswell also reinforces earlier points and, despite acknowledging that 'the right not to be exiled could readily be regarded as fundamental',10 he rejected that it was an inalienable constitutional right, concurring with earlier statements that 'since the Crown has plenary legislative authority over a ceded colony, there appears to be no compelling reason why an Order in Council should not validly have the same effect in a Crown colony as an Act of Parliament would have in the United Kingdom.' He goes on further to address the Magna Carta issue raised in previous cases, contending that the basis of this claim on a statement from Lord Mansfield was dubious, in so far as that case concerned taxing authority, and not such important issues as the right to return. He instead says that there is no repugnance with English law, based on 'some vague unspecified law of natural justice'.11

The opposing opinions given on the legality of the Orders in Council with respect to section 9 are about as venomous as one could ever see in the House of Lords. Lord Bingham states:

 'The Crown has never had a prerogative power to prevent its subjects from entering the  
 Kingdom, or to expel them from it'
12

His conclusion therefore, in the face of the fact that this was not discussed by Parliament and was therefore entirely done in secret, is that 'there was no royal prerogative power to make an order in council containing section 9, and it is accordingly void.'13Not satisfied with this proclamation alone, Bingham continues and lists six individual and separate reasons why this was irrational and therefore void. His outrage at the Order's implementation is clear.

Lord Mance, in the longest judgment given in the case, takes an altogether more ideological tact in his dissenting opinion, and criticised the government and the Order in Council very openly. He firstly claims that the scope of the prerogative power of the Crown is less equal than that of an Act of Parliament. He submits that 'the right [of abode] is fundamental, and in the informal sense in which that term is necessarily used in a United Kingdom context, constitutional.' He develops this opinion, stating that 'the common law right to enter and remain within the United Kingdom remains unchanged in respect of those with British citizenship based on their connection with the United Kingdom'.14 He also heavily criticises the contention that real Chagossian natives are hard to establish, being originally from Mauritius or the Seychelles, claiming it is 'clear enough that there were at least hundreds of persons who could only properly be described as Chagossians'. He wraps up his judgment by proclaiming that 'the decision to enact section 9 of the BIOT Order 2004 was made without regard to relevant considerations and interests, and that, when regard is had thereto, no decision could rationally have been taken on the material available in the sense in which it was.'

These submissions clearly highlight the absolute divide between the country's most decorated legal minds on the section 9 issue, with some arguing a strictly formalist, lexically adherent approach and others preferring a more holistically inclusive and pro-Chagossian point of view. The judgment of Bancoult (No 2) has been heavily criticised as being a step back from the Civil Service case, which faced a similarly difficult political minefield as a backdrop for the case. However, it wasn't the judges that failed the Chagossians, or the House of Lords or appeal system in England either. Instead, it was the poor constitutional framework of the United Kingdom that has too many holes and gray areas in its framework that resulted in the protraction of an already decades-old campaign, and allowed the shadow of an irresponsible and unjust decision of a 60s British administration still in the final throes of its imperial dominance to stay unresolved. A hearing at the United Nations Human Rights Committee is now due this year – until then, the Chagossians' struggle continues.

An unabridged version of this discussion is available.


  1 R (on the application of Banhoult) v Secretary of State for Foreign and Commonwealth Affairs (No 1) [2000] EWHC Admin 413.

 

2 Allen, S., 2008. International law and the resettlement of the (outer) Chagos Islands. P8(3).

 

3Council of Civil Service Unions v Minister for the Civil Service [1983] UKHL 6.

 

4 Poole, T., 2010. The Royal Prerogative. International Journal of Constitutional Law. p8(1).

 

5R (on the application of Banhoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61, para 35.

 

6 [1985] AC 374.

 

7 [2008] UKHL 61, para 36.

 

8 Ibid, para 49.

 

9 Tomkins, A., 2001. Magna Carta: Crown and Colonies. P579.

 

10 [2008] UKHL 61, para 123.

 

11 Ibid, para 125. See also the Privy Council opinion from Liyanage v The Queen [1967] AC 259.

 

12 Ibid.

 

13 [2008] UKHL 61, para 71.

 

14 Ibid, para 151.