The merits of unelected accountability

This post introduces the concept of accountability as an important constitutional goal and sets up some of the key materials on the topic for more detailed reading. The post summarises some of the key arguments for non-majoritarian forms of accountability ie accountability outside the democratic process.

An initial commentary on the draft public services ombudsman bill

This post first appeared on the UKAJI blog site, December 20 2016, co-authored with Brian Thompson


The long awaited draft Bill on a Public Service Ombudsman (PSO) has been published by the Cabinet Office. The Bill implies that the intention is for the Act to be passed in 2017 (cl.33(5)), but the lengthy history of this proposal is such that we should remain sceptical as to its likely implementation date. Overall, the Bill represents a significant advance on the present but it is nevertheless a conservative model of the ombudsman enterprise when compared to its counterparts in the UK (eg see the Public Service Ombudsman Act (Northern Ireland) 2016) and elsewhere. As highlighted in an earlier post, the Government has not provided the ombudsman with full powers to seek out systemic maladministration or to drive better complaint-handling within public services.

Debates as to the merits of the Bill we will leave to a later discussion, but in this post we focus on selected aspects of the Bill which represent an advance on its predecessors.

Enhanced expectations of accountability

The template of the original Parliamentary Commissioners Act 1967 for many years withstood the test of time by virtue of its brevity (14 pages) and the flexible discretion it granted the Ombudsman. The draft Bill, by contrast, is three times as long (42 pages) and is significantly more prescriptive as to the use of the office’s discretionary powers. The explanation for this development lies in part in the need to bring together three existing ombudsman schemes, but it is also due to the long-standing need to address the various weaknesses in the institutional design of the current ombudsman network in (predominantly) England and the rising accountability expectations that surround the operation of ombudsman schemes in the 21st Century. Users, in particular, are increasingly vocal in demanding high service standards. The response to these pressures in each of the most recent ombudsman statutes in the devolved nations has been longer and more detailed foundational statutes (eg see Scotland (40 pages), Wales (62 pages) and Northern Ireland (60 pages)), and in the case of the PSO Bill a heightened emphasis on performance standards. The Bill, for instance, requires the PSO to issue a statement to the complainant if their matter is not completed with in 12 months of receipt (cl.14(9)).

In the PSO Bill, the starkest example of a trend towards legislative rigour can be found in its provisions for accountability. The new PSO will now be subject to a triple layer of formal external accountability. First, it will continue to be subject to judicial and National Audit Office oversight, plus other legal requirements such as under the Freedom of Information Act. Second, Parliamentary scrutiny will remain, albeit intriguingly through the Public Accounts Commission rather than a specialised select committee on public administration, as is currently the case. Further, the nature of this accountability relationship is no longer left to the full discretion of the PSO and Parliament to establish over time, because the Bill creates a third layer of accountability - a ‘Board of the Public Service Ombudsman’ whose ‘principal duty is to provide staff and other resources’ (cl.3(2)).

The fashion towards corporate governance models within the public sector has been growing, with this Bill bearing some similarities with the Budget Responsibility and National Audit Act 2011 in its introduction of a permanently established Board to oversee a constitutional watchdog. The Board’s constitution and role is described in some detail in Schedule 2 and includes a duty to ‘monitor the carrying out of the Ombudsman’s functions … with particular reference to the quality and efficiency of the service provided by the Ombudsman and the desirability of securing improvements in that service’ (Schedule 2, para. 23(1)). In turn, the Board must report to Parliament, including the submission of a triennial review (para.24(4)) and ‘a code of practice dealing with the relationship between the Ombudsman and the Board’ (Schedule 3, para.1(1)). Additionally, the Bill is much more prescriptive than earlier legislation on the information that must be supplied in the Annual Report of the office.

There is a debate to be had as to whether this structure of corporate governance is proportional for a body the size of the PSO and concerns will be raised as to the clash of responsibility between Ombudsman and the Board, in particular its Chair who is to be appointed in much the same way as the Ombudsman (Schedule 2, Part 2). If this Bill is passed, however, its contribution to resolving the ‘who guards the guardians’ question is likely to be its major legacy.

Limited moves towards raising complaints standards

The major innovation in the ombudsman sector in recent times has been the introduction of a complaint standards role for the Scottish Public Services Ombudsman in the Public Services Reform (Scotland) Act 2010. That Act grants the ombudsman a number of powers to promote good complaint handling amongst service providers. The Bill, by contrast, only requires the PSO to ‘provide information, advice and training’ (cl.27). This is a step forward in terms of existing law on the PHSO, and mirrors the work already undertaken by the Local Government Ombudsman (LGO), one of the schemes being integrated into the new PSO. Other than the requirement of public authorities to ‘have regard to applicable information’ (cl.27(4)), however, there are not the powers in the Bill to demand information from public authorities or to publicise failings that are to be found in the Scottish model (and replicated in Northern Ireland and proposed in Wales). The Bill does make it a legal duty for authorities to inform users of their right to complaint to an ombudsman (cl.28), although it does not make it a legal duty of those same authorities to consider complaints, as in the proposed Welsh Ombudsman bill (cl.34(2)).

The MP filter goes

Although MPs can still refer complaints on to the PSO, direct access for complainants to an ombudsman has finally been granted for all public service complaints within jurisdiction in the UK (cl.5). Further, enhanced flexibility on receipt of complaints is allowed in terms of form (ie cl.4 it is no longer necessary for complaints to be made in writing) and the facilitation of the referral of complaints from public authorities to the ombudsman, as already allowed for in the LGO scheme (Local Government Act 1974 s.26C), is translated across to all bodies under the jurisdiction of the PSO (cl.18).

Investigation

The Bill largely follows existing legislative arrangements in conferring powers of investigation on the PSO but tweaks the powers in certain key respects. For instance, cl.4(6) allows for the re-opening or investigating afresh a complaint. This new provision could be a response to the situation that has arisen in cases such as Cavanagh, Miller and JR55, in which midway through an investigation the ombudsman has expanded the focus of the inquiry beyond the grounds of the original complaint due to discoveries made during the initial investigation. To avoid the questions of legality that have arisen in these cases, the cl.4(6) process outlines one way to proceed, and builds in fairness by requiring consultation with the relevant parties (cl.4(7)).

Alternatively, the Bill provides the PSO with another means to extend investigations beyond the initial complaint, a route that may be of particular use where there is evidence of systemic maladministration impacting a number of potential complainants. There has always been an element of sleight of hand in the means that ombudsman schemes, particularly the PHSO, have previously entered into systemic investigations, especially large scale ones such as Equitable Life. Cl.13 confirms the legality of this practice by providing for the widening of an investigation after the complaint has been submitted (currently the LGO can rely on a similar clause, Local Government Act 1974, s.26D). Certain conditions have to be met to allow for the widening of the investigation, including that the ‘additional matter relates to facts which are the same, or substantially the same, as the facts to which the matter alleged in the complaint relates’ (cl.13(2)). For reasons of fairness we would recommend that the clause be amended to specify a duty of consultation as with cl.4(7).

As with UK practice generally, the grounds of investigation are not described in detail but are now universally held to include ‘failures in service’ and ‘failures to provide a service’, in addition to maladministration (cl.6(1)). This brings the current Parliamentary Ombudsman jurisdiction into line with the LGO and Health Service Ombudsman.

There is also an important clarification of the loosely specified current practice that the PSO can investigate independent providers, including ‘any service which it was, at the relevant time, the authority’s function to provide’ (cl.6(2)(c)). The importance of capturing independent health and social care providers is captured specifically in cl.6(2)).

Another common area of confusion in past case law, the overlap of responsibility between different dispute resolution providers, is subtly shifted towards the PSO in the Bill. Cl.7 largely mirrors existing provisions, but the PSO is allowed to commence an investigation even if an alternative remedy has been pursued (cl.7(2)) and even if it has not been completed (cl.7(3)).

Recognition of the growth of a highly flexible model of ombudsman investigation since the first UK ombudsman legislation in 1967 is provided for in cl.10, with the PSO instructed to consider the procedure ‘best suited to enabling the complaint to be dealt with as fairly, quickly, efficiently and cost effectively as possible’ (cl.10(5)). In turn, a responsibility is placed upon the Ombudsman herself to publish a statement ‘setting out, in general terms, the procedures that the Ombudsman expects to follow in carrying out investigations’. This move towards both flexibility and transparency is a sensible and appropriate way forward and goes some ways towards recognising the concerns that have been expressed in recent years that the deformalisation of the ombudsman process might lead to opaque justice.

Remedies

The Bill says nothing about the nature of the remedies that the PSO can recommend. Under the old model of ombudsman legislation this was the norm, but following the Supreme Court case of JR55 (for a commentary see here and here), this is an omission that needs rectification. JR55 concerned the legality of a Northern Irish ombudsman’s recommendation of financial compensation, with the court ruling that he had no lawful power to make such a recommendation. The ruling is ambiguous at various key points and the relevant scheme has been abolished, but the reasoning in the judgment suggests that it would be wiser for the legislature to clarify in advance the nature of permissible remedies, particularly in the field of health complaints. The danger of not making this point explicit is that any later attempt to make a financial recommendation will be challenged in the courts.

 

Statements

As with most recent ombudsman legislation, the Bill allows for a number of reporting requirements for the new PSO. Mirroring the practice that has evolved at the LGO, the PSO is required to produce a written statement whenever she decides (i) not to investigate; (ii) to discontinue investigation; or (iii) completes an investigation, including reasons. For the first time in UK ombudsman legislation, the language of findings and recommendations is used to describe how completed reports should be presented, aping current practice and the ruling in Bradley. The ruling in that case is also confirmed, insofar as recommendations must be considered but not necessarily implemented (s.14(8)). However, the Bill is silent on the interpretation of law, confirmed in Gallagher, that the findings of the LGO are binding on an investigated authority. The reasons for this maybe that the existing legal authority of ombudsman findings varies depending on the scheme involved, with a weaker test applying to the PO than the LGO. If and when this new Bill is enacted we can anticipate a fresh round of litigation revisiting this legal question unless the Bill is amended to clarify the point.

The PSO will have the power to issue a follow-up special statement when she is of the view that an identified injustice or hardship has not been remedied (cl.15), and this special statement may be further submitted to Parliament or to an elected local authority (cl.15(5)). This process mirrors current arrangements, but highlights another point, that at present the Bill does not contain a general requirement on authorities to notify the PSO when and how they have implemented the office’s recommendations. Although cl.15(2) provides for the PSO requesting such information under their discretion where recommendations are not implemented, this reporting duty should be a fundamental obligation on investigated authorities always – and further an overall performance statistic that should be reported on by the PSO on a regular basis as evidence of the effectiveness of the office. This oversight should be addressed when the Bill enters Parliament.

Additionally, under cl.16 the PSO will have the power to publish other reports which, as currently, will presumably capture broader lessons and insights from its investigatory work which are of public interest.

 

Devolution questions

There is no specific reference in the Bill to the status of the existing Parliamentary Ombudsman’s jurisdiction over complaints against Whitehall based bodies by constituents residing in Northern Ireland, Scotland and Wales but all such complaints will be dealt with by the PSO provided they come within the office’s jurisdiction. An element of leeway is contained within cl.19 which allows for the PSO to enter into joint investigations with the devolved ombudsman schemes where there is jurisdictional overlap, an arrangement that has become a common and necessary feature of ombudsman legislation.

Conclusion

Constitutionally, like its predecessors the PSO will remain an important independent watchdog, but will have considerably less autonomy due to the imposition of the Board. Also, one feature of the PSO’s future relationship is unclear: in those rare instances when the government resists the recommendations of the ombudsman will the office be able to reply upon the support of Parliament as in years past? With the role of the relatively low profile Public Accounts Commission so clearly defined as one of calling the PSO to account, it is unlikely it will switch to a support role when needed, and the PSO will have to look for asistance from a relevant subject committee and/or maintain a relationship with the Public Administration and Constitutional Affairs Committee.

Some residual uncertainty is inevitable and there is much to commend in the Bill. It serves as a template that could be expanded upon through the integration of other areas of public service, with provision already made for the transfer of social housing complaints at a later stage (cl.26) albeit that proposal is currently resisted in the Housing Sector. It may be that in the current context of austerity politics it is not realistic to load the new PSO with too many duties for lack of the realistic means to fulfil them. Nevertheless, the Bill is a classic product of Whitehall pragmatism and lacks a strong vision.

Compare for instance c.1(2) of the Bill:

The Ombudsman’s role is to investigate, on behalf of Parliament, complaints made by … members of the public ….

With the Ombudsman Act (Queensland) 2001 s.5:

The objects of this Act are—
(a) to give people a timely, effective, independent and just way of having administrative actions of agencies investigated; and 

(b) to improve the quality of decision-making and administrative practice in agencies.

Why is it that we cannot make such a bold commitment to administrative justice?

The judicial role in the constitution

The role of the courts in any constitutional set up is controversial. The strongest role for the court is one of the ultimate interpreter of the constitution, a role which for instance was famously adopted in the USA by the Supreme Court in Marsbury v Madison. Other courts have inferred the equivalent authority, as with the ECJ in the case of Costa v ENEL, in its authority over interpreting the Treaty of the EU. Of the many factors that led to the result of the referendum on membership of the EU, resistance to this judicial claim of authority was one element.

An introduction to the Political Constitution

This post introduces the concept of the political constitution in the UK context and references some of the key material for more detailed reading.

Some implications of Brexit for the constitution

Brexit is a landmark, and dramatic, event in British constitutional history. Countless words have already been penned on the subject, but much more will follow over the weeks, months and years to come because whatever happens next the long term impact of the 2016 referendum is profound for our understandings of how the UK Constitution operates. Without touching too much on the merits of Brexit, this post introduces some of the key constitutional issues that have been thrown up in light of Brexit, using hyperlinks to direct students to some of the leading contributions over the Summer of 2016.

Article 50 and the European Union Act 2011: Why Parliamentary Consent Is Still Necessary

Written with T.T.Arvind and L.Stirton. Originally posted on the UK Constitution Law Association website.

Since the referendum, there has been a lively debate about the process for invoking Article 50 of the Lisbon Treaty. Can Article 50 be invoked by the Prerogative, as Mark Elliott and Kenneth Armstrong have suggested? Will it require Parliamentary consent, as Nick Barber, Tom Hickman and Jeff King, Scott Styles, and Ewan Smith have argued? Will Parliamentary scrutiny suffice, as Adam Tucker suggests?

This post argues that the exercise of the prerogative without Parliamentary consent – as the Government appears increasingly set to do – runs the risk of triggering a full-blown constitutional crisis. This makes it imperative, both as a matter of constitutional law and established constitutional practice, that parliamentary consent is obtained before the process is invoked.

A PUBLIC SERVICE OMBUDSMAN: Consultation

This response contributed to a consultation process by the Cabinet Office on proposals for introducing a new Public Ombudsman Scheme. The response to the consultation (December 2015) can be found here.


 

Some introductory comments

1. I am an academic researcher working at the University of Sheffield with a long-standing interest in the field of administrative justice. As well as writing extensively on the ombudsman enterprise, I was a member of an independent evaluation panel for the Local Government Ombudsman in England in 2013 (External Evaluation of the LGO). In 2007 I was employed by the Parliamentary Ombudsman’s office to write a Parliamentary Paper on the scheme’s 40^th Anniversary, “The Parliamentary Ombudsman: Withstanding the test of time (Fourth Report of the Parliamentary Commissioner for Administration, HC 421 (2006-07)). In that report, amongst other things, I noted that there were strong arguments for merging aspects of the office with other ombudsman schemes.     

INQUIRY ON THE PUBLIC SERVICE OMBUDSMAN FOR WALES

This response contributed to a consultation process by the Finance Committee of the Assembly for Wales on the powers of the Pubic Services Ombudsman for Wales. The response to the consultation (May 2015) can be found here.

Some introductory comments

1. As well as writing extensively on the Ombudsman, I was a member of an independent evaluation panel for the Local Government Ombudsman in England in 2013 (External Evaluation of the LGO).

2. The administrative justice system, and indeed the civil justice system, in Wales and the UK is an evolving network of processes and institutions. It is also one in which less and less reliance can be placed on the courts and the structures and processes that support them to deliver universal ‘justice’.

3. Ombudsman schemes, and ADR more generally, have been exposed to criticism, and some aspects of that criticism are justified. But, the potential benefits of this model of dispute resolution are significant and, as the EU Directive on ADR emphasises, the trend towards ADR looks set to continue.

4. The ombudsman enterprise remains relatively young and the processes employed are still being refined. In particular, there is still work to do to raise the profile and robustness of ombudsman schemes.

5. Finally, the landscape within which the ombudsman operates is changing rapidly due to developments in information technology, the merging of the public and private sectors and the pressures of austerity politics.

6. With all these factors in mind, this review and set of proposals is a model of good practice in helping to strengthen the potential of the ombudsman to both resolve complaints and increase administrative justice.

Response to Consultation on the Draft Public Services Ombudsman (Wales) Bill

This response contributed to a consultation process by the Finance Committee of the Assembly for Wales. The response to the consultation (March 2016) can be found here.

 

Introduction

I am an academic who has researched and written on the ombudsman institution for over ten years. In the past I have acted as a consultant for the Parliamentary Ombudsman in the drafting of the Parliamentary Paper Withstanding the Test of Time, HC421 (2006/07) and as a member of the team that wrote An External Evaluation of the Local Government Ombudsman (2013: LGO Website).

General

Does the Bill improve the effectiveness of the role of the Ombudsman?

1.1 Yes. The draft Bill: (i) smooths out the process for submitting complaints and (ii) upgrades the ombudsman scheme by creating some new powers (eg own-initiative investigation, standards authority, and limited jurisdiction over private health care providers).

1.2 This upgrade is the direction of travel that all ombudsman schemes need to take if they are to become an accountability institution more capable of contributing proactively towards the improvement of public service delivery for the benefit of the user. Complaint-handling requires a multi-layered initiative, with the ombudsman at the top of the system dealing with the most intransigent and complex disputes, testing to see that complaints intelligence is properly recorded and assimilated, and providing expert advice as and where appropriate.

1.3 Without more intelligent tools to work with, an ombudsman scheme’s broader contribution will likely be sporadic and reactive, with the associated risk that gaps are left in the oversight of good complaint handling and systemic learning from complaints.

A Constitutional Solution to this Constitutional Crisis

Lindsay Stirton, Richard Kirkham and TT Arvind

On Thursday 23^rd June, the electorate voted, by a margin of 52% to 48% in a consultative referendum in favour of the United Kingdom leaving the European Union. The following day the Prime Minister announced his intention to step down as Prime Minister of the UK, albeit after a period of time. Explaining this decision, the Prime Minister said in his resignation statement

A negotiation with the European Union will need to begin under a new prime minister and I think it's right that this new prime minister takes the decision about when to trigger Article 50 and start the formal and legal process of leaving the EU.

What role should Parliament play in this process?  At one level, the question is one of whether triggering Article 50 can be done by executive act alone, or requires legislation or some Parliamentary procedure. The question is not a purely technical one as to which lever to push—if legislation is required then this might require the consent of the Scottish Parliament by means of a Sewel motion. Scottish First Minister Nicola Sturgeon is claiming this interpretation, though anticipates disagreement from the UK Government.

More fundamentally, what is the constitutional role of Parliament in the process of withdrawal?  Does the referendum mean that it must now remain a mute spectator to events as they unfold?  Or does the constitution require it to take a more active role in the process?

Is Legislation Required to Trigger Article 50?

Let’s start with the text of Article 50 of the TFEU itself. According to Art 50 (1):

 Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

David Allen Green does a good job of parsing this provision. It requires, first a decision, and secondly that this is taken in accordance with the Member State’s constitutional requirements. First, he says, a decision could mean any number of things.  

–        a decision by the Prime Minister in accordance with the “royal prerogative” (that is, in accordance with the legal fiction that the Prime Minister can exercise powers on behalf of the Crown);

–        as above, but the decision being made by the Prime Minister either in consultation with his or her cabinet, or after a vote of cabinet (or conceivably the same but with consulting the Privy Council instead);

–        a decision by the Prime Minster following a resolution or motion in either House of Parliament or by both houses;

–        a decision not by the Prime Minister but one embedded somehow in a new Act of Parliament (or a special statutory instrument or “order in council”), or a decision made in compliance with an existing statutory or similar regime; or

As Green points out, each of these would amount to a ‘decision’, but would each be in accordance with the UK’s constitutional requirements? Mark Elliott is right when he suggests that the mainstream view is that Article 50 can be triggered without the involvement of Parliament:

The general view, though, is that the Article 50 process — whereby the UK’s departure from the UK would be negotiated — falls to be triggered by the Government exercising its so-called prerogative powers to conduct foreign policy, rather than by Parliament enacting legislation. This means that when (or if) Article 50 is invoked, that could happen without any legislation being enacted by the UK Parliament. What this boils down to is that Brexit could become irrevocable (unless the EU agrees otherwise, it follows automatically two years after Article 50 is triggered) without the UK Parliament ever enacting any legislation to which the Scottish Parliament could object.

This view is challenged by Nick Barber, Tom Hickman and Jeff King. These authors argue that domestic legislation has become so suffused with EU law—it is implicit in the long title and the general scheme of the European Communities Act 1972 as amended that we should be a member of the European Union. Equally, they argue it is the plain intent of the European Parliamentary Elections Act 2002 that UK citizens should have the right to vote in European elections. For the executive to deny that would be to unconstitutional. To probe further, we have to delve into some constitutional first principles, as well as parsing the UK legislation in some detail.  

Traditionally, the power to conduct diplomatic affairs and to make treaties with other nations falls to the Crown under the Royal prerogative, the residual powers of Her Majesty, exercised on (Prime) Ministerial advice. However, prerogative power gives way in the face of statutory regulation. To clarify, the relationship between statute and prerogative is not like the relationship between statute and common law. In the latter case, while statute can amend the common law, the two can quite happily co-exist, so that many areas of law are a near-seamless co-mingling of statute and common law.

As far as the prerogative is concerned, the relationship with statute is somewhat different. The effect of legislation is not to amend but to displace prerogative. The prerogative power is then said to be in abeyance. That is to say, it is extinguished, but revives if Parliament later repeals its legislation.

It is an established principle of constitutional law—known as the de Keyser principle (after the case of Attorney General v de Keyser’s Royal Hotel [1920] AC 508) that if Parliament has conferred powers on the executive to undertake a certain act, then that act can only be done under statutory powers. To allow otherwise would be to defeat the purpose of legislating in the area. In particular, it would allow the Crown to circumvent any controls or limits that Parliament had enacted. As Lord Atkinson put it in de Keyser’s case:

[W]hen such a statute, expressing the will and intention of the King and of the three estates of the realm, is passed, it abridges the Royal Prerogative while it is in force to this extent: that the Crown can only do the particular thing under and in accordance with the statutory provisions, and that its prerogative power to do that thing is in abeyance. Whichever mode of expression be used, the result intended to be indicated is, I think, the same — namely, that after the statute has been passed, and while it is in force, the thing it empowers the Crown to do can thenceforth only be done by and under the statute, and subject to all the limitations, restrictions and conditions by it imposed, however unrestricted the Royal Prerogative may theretofore have been.

Any attempt to interpret the legislation governing the UK’s relation with this view should be read in light of this traditionally restrictive judicial attitude towards the limits of Royal prerogative in the face of controlling legislation. Barber, Hickman and King make much the same argument based on Case of Proclamations, (1610) 12 Co. Rep. 74 and Fire Brigades Union Case [1995] 2 AC 513.

We will not deal further with the application of the European Communities Act 1972 which has been addressed by Barber, Hickman and King in their post . However, it is worth emphasising that in addition to this legislation, Parliament has made further statutory provision regarding the exercise of the prerogative power to change rights arising under EU law. Section 2 (1) of the European Union Act 2011 specifies certain conditions which must be satisfied before a “treaty which amends or replaces TEU or TFEU” is ratified:

Treaties amending or replacing TEU or TFEU

(1) A treaty which amends or replaces TEU or TFEU is not to be ratified unless—

(a) a statement relating to the treaty was laid before Parliament in accordance with section 5,

(b) the treaty is approved by Act of Parliament, and

(c) the referendum condition or the exemption condition is met.

(2) The referendum condition is that—

(a) the Act providing for the approval of the treaty provides that the provision approving the treaty is not to come into force until a referendum about whether the treaty should be ratified has been held throughout the United Kingdom or, where the treaty also affects Gibraltar, throughout the United Kingdom and Gibraltar,

(b) the referendum has been held, and

(c) the majority of those voting in the referendum are in favour of  the ratification of the treaty.

(3) The exemption condition is that the Act providing for the approval of the treaty states that the treaty does not fall within section 4.

In constitutional terms, this section now forms the bedrock of the mechanism for ratifying changes in our relationship with the European Union.  The mechanism in envisages is one of dual consent.  The consent of the electorate through a referendum is necessary where Section 4 applies, but even there it is not sufficient.  Even where the popular will of the electorate has been made clear, the requirement for Parliamentary consent through an Act remains.  The 2011 Act does not in any way make the referendum result binding (in contrast with, for example Section 8 of the Parliamentary Voting System and Constituencies Act 2011).  The European Union Referendum Act 2015 does not alter this system of dual consent.  

We do not suggest that this means Parliament could or should ignore the will of the electorate.  However, the section empowers it to impose conditions and safeguards, be they procedural or substantive, on the manner in which the consequences of a vote in a referendum are dealt with.  This is a power it can and should exercise in the present situation.  We need not deal with Section 4 in detail. It states conditions under which a referendum is not required. But this does not affect the fact that legislation is contemplated for any amendment to the TFEU or TEU under Section 2.

Now strictly speaking, to trigger Article 50 is to make use of a provision of an existing treaty, rather than the creation of a new one. However, since the effect of would be to set in motion a process by which these Treaties would be changed, it is strongly arguable—drawing on the de Keyser principle—that Section 2 (1) implicitly restricts the exercise of the Royal prerogative to trigger Article 50. Article 50 anticipates not just the modification or amendment, but the complete annihilation of the treaty obligations of the TEU and TFEU. And Section 2 (1) clearly envisages that where such a modification is to be accomplished by Treaty then legislation is required. The question is whether the law restricts the ability of the Crown, by Royal prerogative, to trigger an automatic amendment to the Treaties which would have required legislation to accomplish had it been done by Treaty.

We think that it is quite likely that this would be the case. For one thing, Article 50 anticipates that following notification, a Member State seeking to withdraw from the European Union will enter into negotiations concerning a withdrawal agreement, and such an agreement would clearly be governed by Section 2 (1). It is not unrealistic to suggest that the alternative—that no agreement is reached, and that the Treaties would cease to apply after two years—is similarly governed.  Consider the consequences of the alternate reading.  Although Parliamentary consent to the withdrawal agreement would in theory be required under Section 2(1), a Parliamentary refusal to ratify the withdrawal agreement would in practice have no effect.  This is contrary to the letter and spirit of the constitutional mechanism set up by the European Union Act 2011 Act.  In our view, an executive action which ran the risk of producing such an outcome would arguably be unconstitutional.

In summary, one might say the following. While it is not unambiguously certain that legislation is required in order to trigger Article 50, to do so by any other means would be a constitutional quagmire. The Crown would effectively be in a position of compelling Parliament to legislate if legal chaos were to be avoided. Moreover, since Parliamentary consent (among other things) is required for any Treaty change, it should not be for the Crown acting without Parliamentary consent to accomplish by executive act that which cannot be done by Treaty.

It has long been constitutional practice to secure Parliamentary consent for matters where there was doubt about the scope of the prerogative. The grant of independence to conquered colonies is a classic example.  Invoking Article 50 should be no exception.

Legislative Consent of the Scottish Parliament

If legislation is required, or if the Government heeds our advice that even in the absence of a strict constitutional requirement, it would create unimaginable difficulties to proceed otherwise, then a second issue arises, namely whether the legislative consent of the Scottish Parliament is required. Of central importance is Section 29 of the Scotland Act 1998 which limits the competences of the Scottish Parliament, so that it must not legislate contrary to EU law. Again, Mark Elliot takes the view that (even apart from his opinion, discussed earlier) that legislative consent is not required, since the Sewel convention is precisely that—a convention.

Second, the Scottish Parliament cannot anyway “block” UK legislation on Brexit or on anything else. Certainly, it can withhold consent. But because, as explained above, the UK Parliament is sovereign and can do as it wishes, the absence of consent from the Scottish Parliament would not legally disable Westminster from enacting Brexit legislation. This is so because the “requirement” for consent is not a legal requirement at all: it is, ultimately, no more than a political expectation that the UK Parliament will respect the constitutional position of the Scottish Parliament by not riding roughshod over it in certain circumstances.

There is no thing that we would take issue with in this statement, but it misses one larger point. While it would be “legal” for the Westminster Parliament to legislate for Scotland in this way, in the sense that the courts would give effect to the terms of such legislation it would not (as Elliott acknowledges) be constitutional (eg see Murkens). It would not be possible to say that Brexit has been accomplished by an orderly constitutional process, but has instead been accomplished in defiance of constitutional procedure. It is worth recalling that the text of Article 50 speaks of Member States’ “constitutional requirements”, not merely “as prescribed by law” (to borrow the language of the ECHR). It might therefore be possible for a court—drawing on the approach of Attorney General v Jonathan Cape [1976] QB 752—to recognise the Sewel convention in deciding whether the requirements of Article 50 had been met.

The Way Forward

The legal uncertainties outlined above connect all too closely to the political crisis that the UK currently faces. Indeed, what we are left with is something profoundly unsettling, in which former cherished legal understandings based on Parliamentary sovereignty are in danger of being overwhelmed by a dangerously selective use of an appeal to popular sovereignty. Without some additional procedural route being created to confront this crisis head on, then the prospect of ongoing constitutional turmoil, to add to the economic and political turmoil that has already taken hold, is real. However, what we also have is a once in a life time opportunity to settle not just one, but possibly as many as three or four fundamental constitutional issues. Our proposal to address this problem is as follows:

(i)                As a matter of constitutional convention, whilst it might remain the authority of the PM under royal prerogative to trigger Article 50, it is not one that he is constitutionally obliged to trigger following an advisory referendum. Notably, Prime Minister Cameron declined to pull the trigger, but instead recognised the authority of the referendum by resigning.

(ii)              If Article 50 is to be triggered by the PM, it is an exercise that should only be undertaken once approval has been gained from the electorate through a referendum and Parliament. This reading is supported by the de Keyser principle and the precedent of the June 23 referendum.

(iii)            Parliament should consider itself strongly bound by—that is to say, it should act in utmost deference to—the outcome of the June 23 referendum vote but given that it remains constitutionally supreme it is entitled to lay out procedural conditions on what must happen before and after Article 50 is triggered.

(iv)            Those procedural conditions should include:

(a)  A requirement for the PM to submit his/her proposal for EU negotiation to the electorate before triggering Article 50. We are opened-minded as to whether this requires a General Election, and the need to address the Fixed Terms Parliament Act 2011, or a second referendum.

(b)  A requirement for certain consequences to follow should the response of the electorate continue to be to support the triggering of Article 50. One clear commitment that should be made is to delegate authority to the Scottish Parliament to stage a referendum on independence. Further commitments should be made in relation to Northern Ireland and Gibraltar. 

An alternative to (a) would be to provide for a second referendum once the withdrawal negotiations are complete, if the final withdrawal agreement deviated significantly from what the electorate were promised.  Parliament would, in the statute authorising the invocation of Article 50, set these threshold conditions, based on the promises made by the official campaign to leave the European Union.  If the referendum were to reject the proposals, the UK would remain a member of the EU.  The government would have to obtain the consent of the other EU members to this before commencing on withdrawal negotiations. 

In our view, such a provision will give Parliament a constructive constitutional role to play in the process. Given that the withdrawal negotiations will be led by politicians who campaigned for Brexit, there will be little fear of deliberate sabotage of the process.  At the same time, it will protect the expectations of those who voted for Brexit, and ensure that they have chance to respond if the conditions they were promised Brexit would secure are not in fact secured.

We are aware that a riposte to this proposal is that it disrespects the popular will of the electorate demonstrated by the results of the June 23 referendum. But the counter-argument is that such a fundamental shift in constitutional design as Brexit compels will not be stable unless the procedure is seen to be fair by the losers to the debate as well as the winners. Indeed, given that some of the most influential figures in the leave campaign now seem to have reneged on some of the commitments made during the campaign (e.g. immigration) then it is probable that even those who originally voted to leave the EU will be fundamentally dissatisfied with the eventual terms of the UK’s departure. They would be right to be dissatisfied, as they are failing to give due respect to the popular will expressed in the referendum.  This, we suggest, makes it necessary for Parliament to use the system of dual consent under Section 2(1) of the 2011 Act to ensure that the withdrawal process is adequately policed.  The suggestions we have outlined above will, in our view, accomplish that end.

 

One of the mantras of the leave campaign was ‘to take back control’. A first act of taking back control is to institute a process that allows all parts of the UK to take responsibility for the proposed design of the new constitutional order. Putting the process in place should be the duty of Parliament. If Brexit really is the will of people it is hard to see on what basis this proposal could be rejected.

The implications of JR55 for administrative justice

Richard Kirkham and Brian Thompson

This blog first appeared on the UKAJI website, 13 June 2016

 

Introduction

The case of JR55 was the first occasion in which a decision of a public services ombudsman scheme in the UK had been heard in the Supreme Court. Unfortunately for the ombudsman sector, it did not go well. This post does not offer a full analysis of the case (some further reflections are presented here), but instead focusses only on some of the potential implications for our understandings of the law around ombudsman schemes.