Banning smoking in the streets of Paris …

Photo by Paul Gaudriault on Unsplash

If anyone or anything wanted to ban smoking in the streets of Paris, you would think that (logically), this would be a matter for the French National Assembly or even Paris City Council (Conseil de Paris).

… And you would be quite correct.

You might be thinking what relevance does this have to Scots or indeed English law?

The supremacy of Parliament (or its limits)

The constitutional lawyers amongst the Blog readership, however, might guess where I’m going with the title. When studying the area of Westminster parliamentary sovereignty many, many years ago, I was struck by the words of Sir Ivor Jennings QC, a very famous British constitutional lawyer.

Jennings was explaining that the Westminster Parliament, as the supreme law making body in the UK, had the power to pass any law – even making it unlawful to smoke cigarettes or cigars in the streets of Paris. Now Jennings fully appreciated that this was a slightly absurdist statement; that wasn’t his point (to which I shall return shortly).

Would our French neighbours obey such an Act of the Westminster Parliament? They would not; quite rightly recognising that such a law lacked any legitimacy in their eyes.

So, what was Jennings driving at when he uttered his remark about the scope of the law making powers of the Westminster Parliament? He was recognising that Parliament could pass any law that it wished irrespective of how absurd it was or how unlikely it was to be obeyed in practice.

The English have placed great emphasis on the notion of parliamentary sovereignty. This principle, of course, can be challenged. The American colonists who participated in the protest popularly known as the Boston Tea Party in 1773 were directly challenging Westminster parliamentary supremacy. Several years later, with the successful conclusion of the American Revolution, it would be the new legal order of the United States of America that would supplant the British parliamentary tradition and thus make it a matter of history.

In 1919, Irish Republicans refused to send Members of Parliament to take their seats at Westminster following the UK General Election of 14 December 1918. Instead 27 Sinn Fein MPs chose to sit in Dáil Éireann (effectively an embryonic Irish National Assembly) in Dublin. Highly unconstitutional in British eyes; yes but it spelled the beginning of the end for Westminster parliamentary sovereignty in 26 of the 32 counties comprising the Island of Ireland.

More recently, in 1965, the White minority Government of the former British colony of Southern Rhodesia (under the leadership of Premier Ian Smith) declared independence unilaterally from the mother country. There was very little that the Westminster Parliament and British Government could do to prevent this situation. The Rhodesian Government would ultimately be brought crashing down to earth because of the armed struggle of the Black majority liberation movement. This would eventually lead to independence and majority rule for the territory (to be known as Zimbabwe).

Brexit

To return to Sir Ivor Jennings, his remarks about smoking in the streets of Paris were brought home to me today when reading about the remarks made by Simon Coveney, the Irish Deputy Prime Minister and Foreign Minister about Brexit.

Mr Coveney was being asked about the implications of the European Union (Withdrawal Agreement) Bill – introduced in the House of Commons by UK Prime Minister Boris Johnson shortly after his Conservative Party won the General Election of 12 December 2019.

This Bill will has just passed through the Commons and will now go on to the House of Lords (where it will pass) and receive the Royal Assent in the next week or two. The exit of the UK will happen by 31 January 2020.

Mr Coveney was not taking exception to this development: in fact he was pointing out some hard realities for the British Prime Minister. The easy part of Brexit will have been completed, but the harder part remains: concluding a trade deal between the UK and the EU by the British Government’s self-imposed deadline of December 2020. Needless to say, but this has not been accepted by the remaining 27 EU member states.

Mr Coveney noted that a provision of the European Union (Withdrawal Agreement) Bill (currently Clause 33) prohibits the UK Government from extending negotiations with the EU 27 in order to obtain a trade agreement if one is not concluded before the end of 2020:

“I know that Prime Minister Johnson has set a very ambitious timetable to get this done. He has even put it into British law, but just because a British parliament decides that British laws say something doesn’t mean that that law applies to the other 27 countries of the European Union and so the European Union will approach this on the basis of getting the best deal possible – a fair and balanced deal to ensure the EU and the UK can interact as friends in the future. But the EU will not be rushed on this just because Britain passes law.”

Conclusion

When Sir Ivor Jennings made his oft quoted remark about parliamentary legislative powers, he was acknowledging the theoretical supremacy of Westminster. I also believe that he used the particular example of banning smoking in the streets of Paris to demonstrate the clear limits of Westminster supremacy: practical and political realities will often combine to frustrate the will of Parliament.

In speaking today in the terms that he did, the Irish Deputy Prime Minister clearly recognises this reality.

Does the UK Government?

A link to an article on the Sky News website about Simon Coveney’s remarks can be found below:

http://news.sky.com/story/eu-will-not-be-rushed-in-post-brexit-talks-irish-deputy-simon-coveney-warns-11907060

Copyright Seán J Crossan, 12 January 2020

Pansexual

Photo by Sharon McCutcheon on Unsplash

A person’s protected characteristics in terms of the Equality Act 2010 seems to be the theme of the Blog today.

Sexual orientation is a protected characteristic in terms of Sections 4 and 12 of the Act. Most people these days are familiar with the following definitions in terms of an individual’s sexuality: e.g. heterosexual, homosexual (gay/lesbian) and bisexual.

What about a person who declares themselves to be pansexual?

According to Stonewall, the group which campaigns on behalf of the LGBTI community, this term refers to a person ‘whose romantic and/or sexual attraction towards others is not limited by sex or gender.’ Stonewall also makes the point that bisexual individuals can declare themselves to be pansexual.

An interesting story appeared in today’s British media about pansexuality. Layla Moran, Liberal Democrat MP and possible contender for the leadership of that Party, has declared herself to be pansexual. She is the first Member of the Westminster Parliament to define her sexual orientation in this way. Previously, she would have declared herself as heterosexual.

Andrew Adonis, Labour member of the House of Lords and former UK Government minister tweeted his reaction to the story:

The point that Adonis was trying to make is that it shouldn’t have been a story. As a society, the UK has supposedly become more tolerant and progressive towards people with different sexual orientations.

Ms Moran admitted herself that the decision to be open about her sexual orientation had caused friends and colleagues to worry that this might harm her career – and her aspiration to be the next or future leader of the Liberal Democrats. So much for a more tolerant and progressive society …

Explaining her reason for going public about her sexual orientation, Ms Moran stated that:

… I feel now is the time to talk about it, because as an MP I spend a lot of my time defending our community [LGBTI] and talking about our community. I want people to know I am part of our community as well.”

A link to the story in Pink News can be found below:

https://www.pinknews.co.uk/2020/01/02/layla-moran-liberal-democrats-mp-coming-our-pansexual-girlfriend-exclusive-interview/

You can also find below a link to the Sky News website where an individual discusses what pansexuality means to them:

https://news.sky.com/story/not-restricted-by-gender-or-sex-what-pansexuality-means-to-me-11900619

Copyright Seán J Crossan, 3 January 2020

Civil partner? I do!

Photo by Jason Leung on Unsplash

As of today (31 December 2019), heterosexual couples in England and Wales will be able to enter civil partnerships as an alternative to marriage.

This change does not yet extend to Scotland: the Scottish Government has introduced its own Bill to introduce civil partnerships for heterosexual couples.

An info graphic showing the current progress of this Bill in the Scottish Parliament (Stage 1) can be seen below:

When the Labour Government of Prime Minister Tony Blair originally introduced civil partnerships across the UK (as a result of the Civil Partnerships Act 2004) such legal unions were open to gay and lesbian couples only.

It was the first time in the history of Scots and English family law that gay and lesbian couples were entitled to enter a legally recognised relationship.

Fast forward a decade or so and we now have same sex marriage in Scotland, England and Wales – but not yet Northern Ireland (although the clock may be ticking here on this issue). Admittedly, same sex couples can enter civil partnerships in Northern Ireland, but since the Republic of Ireland made same sex marriage legal in 2015, pressure has been mounting for change in the North.

The case which started the ball rolling was Steinfeld and Keidan v Secretary of State for Education [2016] EWHC 128 (Admin).

In Steinfeld and Keidan, an unmarried, heterosexual couple brought a claim for unlawful less favourable treatment against the UK Government on the basis that the law (contained in the Civil Partnership Act 2004) discriminated against them by forcing them to enter marriage as opposed to their preferred option of a civil partnership arrangement. The couple had strong “ideological objections” to marriage (irrespective of whether it took a religious or civil form) and argued, amongst other things, that the failure by the United Kingdom to give them the option of entering a civil partnership was a potential breach of their Article 8 rights (the right to privacy and family life) in terms of the European Convention on Human Rights. The ban on civil partnerships for heterosexual couples was also a potential breach of the Equality Act 2010 in the sense that it represented direct discrimination on grounds of a person’s sexual orientation. 

Initially, the English High Court rejected the challenge brought by Steinfeld and Keidan, whereupon the case was allowed to proceed to the English Court of Appeal. Although expressing sympathy for Steinfeld and Keidan’s predicament, the Lord Justices of Appeal refused to overturn the ban (see Steinfeld and Keidan v Secretary of State for Education [2017] EWCA Civ 81).

The couple were then given leave to appeal to the UK Supreme Court.

On 27 June 2018, the Supreme Court issued its decision: R (on the application of Steinfeld and Keidan) (Appellants) v Secretary of State for International Development (in substitution for the Home Secretary and the Education Secretary) [2018] UKSC 32.

Lord Kerr gave the leading judgement (with which his fellow Justices concurred) and allowed Steinfeld and Keidan’s appeal:

I would allow the appeal and make a declaration that sections 1 and 3 of CPA [Civil Partnership Act 2004] (to the extent that they preclude a different sex couple from entering into a civil partnership) are incompatible with article 14 of ECHR taken in conjunction with article 8 of the Convention.

Following the Supreme Court’s decision, the UK Government of former Prime Minister Theresa May initiated steps to amend the Civil Partnership Act 2004 in respect of the law for England and Wales.

A link to an article about the change to the law in England and Wales on the Sky News website can be found below:

Civil partnerships: First mixed-sex couples celebrate union http://news.sky.com/story/civil-partnerships-first-mixed-sex-couples-celebrate-union-11898759

Related Blog Articles:

https://seancrossansscotslaw.com/2019/10/04/a-very-civil-partnership/

https://seancrossansscotslaw.com/2019/02/20/love-and-marriage/

https://seancrossansscotslaw.com/2019/02/08/the-gay-cake-row/

Copyright Seán J Crossan, 31 December 2019

Law or high politics?

Photo by Element5 Digital on Unsplash

Both is the answer to the question posed by the above Blog title.

And to what does the question refer? The British General Election results of Thursday 12 December 2019.

But before I venture some thoughts about what last Thursday’s results might mean for IndyRef2, I’d like to go back to the UK General Election of 1992. It may be instructive to remember the words of Jim Sillars, a then prominent Scottish Nationalist politician and Westminster Parliamentarian:

We have not yet resolved the paradox of when Scotland votes for the Labour Party and England votes for the Tories [the Conservative Party].’

Returning to the events of the General Election just past, Sillars’ remarks can be easily updated to read what happens when Scotland votes for the Scottish Nationalist Party, but England votes for the Conservatives?

Like all good questions, there is no easy answer to it. Yes, Boris Johnson MP is now the Prime Minister of a Conservative Party majority UK Government. Brexit will now almost get done (excuse the poor English – not mine).

And yet, there may be trouble ahead.

As predicted, the UK Government has restated its opposition to Indyref2.

Yesterday, during Sophy Ridge’s Show on Sky News, Michael Gove MP, a senior UK Cabinet Minister, rejected the idea of a second independence referendum (please see the link below):

http://news.sky.com/story/michael-gove-absolutely-rules-out-second-scottish-independence-referendum-11887189

Nicola Sturgeon MSP, First Minister of Scotland quickly responded by stating that Scotland ‘cannot be imprisoned’ within the UK:

https://www.bbc.co.uk/news/av/election-2019-50801743/nicola-sturgeon-scotland-cannot-be-imprisoned-in-uk

So this is where law and high politics collide.

Firstly, what’s the legal position?

The last Referendum on the question of Scottish Independence (held on Thursday 18 September 2014) too place because the then UK Government and Parliament gave their consent. This constitutional arrangement became known as the Edinburgh (St Andrew’s) Agreement of 15 October 2012 and operated under the auspices of Section 30 of the Scotland Act 1998.

Secondly, what’s the political position and where does the Scottish Government go from here?

This is about the political long game and the Scottish Government is attempting to shame the UK Government into giving it the right to hold a second referendum.

Scotland’s First Minister is pointing to her democratic mandate from the Scottish electorate after the SNP increased its share of Westminster parliamentary seats from 35 to 48. Any refusal on part the UK Government to approve another referendum can and will be portrayed as a deliberate denial of the Scottish people’s fundamental democratic rights.

I often have to remind my students that when we elect a Parliament, we are appointing legislators (law makers) – as well as politicians.

Mr Johnson is clearly political master of all he surveys …

… for now at least.

Both Governments are clearly playing to their respective constituencies and it will be interesting to see if a greater impetus for Scottish independence begins to build north of the border.

The next Scottish parliamentary elections in May 2021 will provide some idea of the strength (or weakness) of the pro-independence cause.

Currently, despite the SNP’s electoral successes last Thursday night, Nicola Sturgeon and her Government certainly have the weaker hand, but in a political poker game of high stakes (the survival or dissolution of the 300 year old union between Scotland and England), high politics may well yet overcome dry, legal arguments.

As the German statesman, Otto von Bismarck noted:

Politics is the art of the possible.’

The old statesman also remarked:

Politics is not a science, as the professors are apt to suppose. It is an art.’

Who will be the more artful politician: Nicola Sturgeon or Boris Johnson? Time will tell.

Related Blog articles:

A step closer? Indyref2?

https://seancrossansscotslaw.com/2019/06/02/a-step-closer-indyref2/

Bring it on! (or Indeyref2?)

https://seancrossansscotslaw.com/2019/04/26/bring-it-on-or-indyref2/

Copyright Seán J Crossan, 16 December 2019

Private Member’s Bills

Photo by Chris Flexen on Unsplash

One of the key advantages that individual Members of the Scottish Parliament have over their counterparts at Westminster is the ability to introduce and pass legislation. True, individual Westminster MPs can sponsor a Private Member’s Bill in the hope that it might became an Act of Parliament, but the vast majority of these types of Bills run out of parliamentary time or some other procedural hurdle. I shall return to the problems facing Private Member’s Bills at Westminster later in this blog.

An interesting example of a Member’s Bill being introduced to the Scottish Parliament was reported last week. Monica Lennon, a Labour MSP, introduced the Period Products (Free Provision) (Scotland) Bill on 23 April 2019.

A link to how BBC Scotland covered the story can be found below:

Scotland’s ‘period poverty’ bill officially lodged at Holyrood

The aims and objectives of this Bill are set out in its accompanying Explanatory Notes:

“The aim of the Bill is to ensure that all who menstruate can have reasonably convenient
access to period products, free of charge, as and when they are required.”; and

“The Bill will:

• place a duty on Scottish Ministers to ensure that period products are made available
free of charge on a universal basis;
• require education providers to make period products available free of charge in on-site
toilets; and
• enable Scottish Ministers to place a duty on other specified public service bodies to provide free period products.”

This is a measure which commands popular support across the Chamber at Holyrood and amongst the wider Scottish public, so there is every chance that Ms Lennon’s Bill will eventually become an Act of the Scottish Parliament.

In common with Westminster, a draft law or Bill introduced in the Scottish Parliament must complete various procedures in order to become part of Scots law. It is likely that Ms Lennon’s Bill will undergo some amendments – this is typical for most draft legislation.

All Scottish Parliament Bills – no matter their origin – must be accompanied by Explanatory Notes and a Policy Memorandum detailing the rationale behind the draft legislative proposals and what impact these will have on a range of issues such as human rights and equal opportunities.

The Explanatory Notes will also contain a Financial Memorandum detailing the likely costs of the draft law on the Scottish Government and local authorities. Finally, there must be a statement from the Presiding Officer that the Bill is within the legislative competence of Parliament.

A statement of legislative competence is extremely important because Scottish legislation can be subject to challenge before national courts and European courts. An example of a successful legal challenge to the powers of the Scottish Parliament occurred as a result of the Scotch Whisky Association’s request for a judicial review (preliminary ruling) before the Court of Justice of the European Union in relation to the Alcohol (Minimum Unit Pricing) (Scotland) Act 2012.

A link to Ms Lennon’s Bill and its accompanying documents can be found by clicking on the link below:

https://www.parliament.scot/parliamentarybusiness/Bills/111383.aspx

An infographic can be seen below which shows the current progress of the Bill:

The above infographic shows that the Bill is still at the first of the three legislative stages in the Scottish Parliament. Unless and until it successfully completes the other stages, it cannot become an Act of the Scottish Parliament.

Private Member’s Bills at Westminster

Although individual MPs can sponsor Bills in the House of Commons, this method of law making is fraught with difficulties – even if the proposed measure enjoys considerable support.

A recent example of a Private Member’s Bill falling foul of procedural technicalities in the House of Commons was the Voyeurism (Sexual Offences) Bill (introduced on 6 March 2018 by Wera Hobhouse, a Liberal Democrat MP). The text of the Bill can be read by accessing the link below:

https://publications.parliament.uk/pa/bills/cbill/2017-2019/0174/18174.pdf

This Bill aimed to make ‘upskirting’ a specific criminal offence in England and Wales (it was already a criminal offence in Scotland). This issue had received a lot of public support due to the efforts of Gina Martin, who had been the victim of ‘upskirting’ when attending a music festival in August 2017. When Ms Martin reported the matter to the Police, she was astonished to learn that there was no specific offence covering such behaviour under the criminal law of England and Wales.

A video covering Gina Martin’s campaign can be found below:

https://www.youtube.com/watch?v=4KoNwtQaQ-o

Unfortunately, the Bill was derailed by the efforts of Sir Christopher Chope (a Conservative MP sitting for the Christchurch constituency) who used a procedural mechanism to object to the Bill thus ensuring that it could not make any further progress in the House of Commons.

Following a public uproar, Sir Christopher later attempted to justify his intervention in an exclusive interview with the Bournemouth Echo newspaper:

https://www.bournemouthecho.co.uk/news/16296117.christchurch-mp-christopher-chope-i-do-support-upskirting-ban/

The UK Government recognising that such a Bill commanded considerable support both publicly and in Parliament, reintroduced the Bill as an Executive Bill and the measure was finally passed as the Voyeurism (Sexual Offences) Act 2019.

Despite formidable parliamentary obstacles at Westminster, Private Member’s Bills do become law occasionally – the Abortion Act 1967 and the Sexual Offences Act 1967 are often cited as the two most high profile examples of such Bills becoming Acts of the Westminster Parliament. That said, these measures received support from the UK (Labour led) Government of the day, otherwise there would have been little chance of legislative success.

At Westminster, the Executive (the UK Government) historically controls the parliamentary timetable in the House of Commons and the Prime Minister and other ministerial colleagues will prioritise the Bills which they wish to see passed into law. This can mean that there is very little time left over in the parliamentary business timetable for Private Member’s Bills – no matter how worthy they may be.

Since the General Election of May 2017, of course, the UK Conservative led Government has not enjoyed a majority in the House of Commons and has struggled accordingly to pass contentious legislation (Brexit Alert! anyone?).

Conclusion

I remember attending an event at the University of Strathclyde in 2014 when the Right Honourable John Bercow MP, the Speaker of the House of Commons addressed staff, students and invited guests. The audience was given the opportunity to put questions to Mr Bercow. One of the questions which I posed was that, given his reputation as a reforming Speaker of the Commons, could he learn anything from the practices of the Scottish Parliament? In particular, I wanted to know if he favoured greater involvement of individual MPs and parliamentary Committees in the legislative process at Westminster? He was clearly interested in looking at these matters and admitted that Westminster could learn from the practices of the devolved parliaments and assemblies in Northern Ireland, Scotland and Wales.

It remains the case, however, that it is much more likely that an individual MSP at Holyrood – such as Monica Lennon – has a far greater chance of sponsoring a Bill and seeing it to completion, thus, ensuring meaningful, legislative change. This is something that many of her counterparts at Westminster will simply not be able to achieve.

Postscript

The Independent reports that, as of 26 September 2019, 4 men have been convicted of ‘upskirting’ in England and Wales under the Voyeurism ((Sexual Offences) Act 2019.

A link to the story can be found below:

https://edition.independent.co.uk/editions/uk.co.independent.issue.260919/data/9120536/index.html

The BBC News website also carries a story about the fourth man to be convicted of this offence – a lawyer no less:
Copyright Seán J Crossan, 29 April & 26 September 2019

Bring it on! (or IndyRef2?)

Photo by Andrew Buchanan on Unsplash

Well, there you have it: Scotland’s worst kept political secret. First Minster, Nicola Sturgeon announced this week at Holyrood that she wishes to bring legislation forward to hold a second, Scottish Independence referendum sometime in 2021.

The trouble is that this is a matter reserved to the Westminster or UK Parliament in terms of the Scotland Acts 1998 and 2016 i.e. it is a constitutional matter. In other words, the UK Parliament must agree to any request from the Scottish Parliament to hold another referendum. The referendum of 2014 was permitted because the then UK Prime Minister, David Cameron agreed to it. This was known as the Edinburgh Agreement signed by representatives of both the Scottish and UK Governments on 15 October 2012. Under Section 30 of the Scotland Act 1998, a legislative instrument (known as an Order-in-Council) was drafted permitting the referendum to proceed on terms agreed by both Governments.

Fast forward 5 years from the last independence referendum and it would seem that any permission from the UK Government, let alone the UK Parliament is most unlikely. In fact, David Liddington MP, Prime Minister Theresa May’s de facto Deputy, hit back almost immediately in response to Ms Sturgeon’s announcement to state that permission for a referendum would not be forthcoming.

Now, Mr Liddington is correct in strict legal terms. The future territorial integrity of the United Kingdom is a matter reserved to the national parliament at Westminster – not a local parliament such as Holyrood.

And yet … this is where politics rather than strict legal interpretations might come into play. The current UK Government ‘led’ by Theresa May is weak, divided, obsessed with Brexit and lacking a majority in the House of Commons. It has a limited shelf-life. This is an administration which no longer speaks with any real authority on the great political questions of our age (and that’s just the opinion of most Conservative MPs).

Mr Liddington’s refusal may well come back to haunt the Conservatives both in Scotland and nationally. Expect Ms Sturgeon to make maximum political capital here by saying that this is a deliberate attempt to thwart the political will of the Scottish people. At the last UK General Election (8 June 2017), the Conservative Party made impressive gains in the number of Scottish Westminster seats. Since then, with the mishandling of Brexit, continuing opposition to an independence referendum might mean that these electoral advances could be undermined, even reversed. It’s by no means certain that a future Jeremy Corbyn led UK Government (not a foregone conclusion) will favour a second independence referendum. There are many factors that still have to be played out here.

Ms Sturgeon (or one of her Ministers) could introduce a Referendum Bill to Holyrood, but would this be a credible legal move? Almost certainly not: Holyrood’s Presiding Officer would (rightly) be under huge pressure to declare the Bill as not having the necessary legislative competence in terms of the Scotland Acts. The Bill would have tremendous symbolic power and would almost certainly fire up independence supporters who are itching for IndyRef2.

Never mind the legal arguments, expect the action to take place on the political front.

Please find below a number of links to articles discussing the prospect of IndyRef2:

https://wingsoverscotland.com/a-plan-of-little-action/#more-109725

Nicola Sturgeon calls for indyref2 by 2021 Holyrood elections

Scottish independence: UK government ‘will not grant indyref2 consent’

Copyright Seán J Crossan, 26 April 2019