Una Doherty appointed as part-time Legal Assessor

Ampersand’s Una Doherty has been appointed as a part-time Legal Assessor to the General Teaching Council of Scotland (“GTCS”). Legal assessors act as independent legal advisers to the GTCS’s Fitness to Teach panels, and ensure that the proceedings before the panels are conducted in accordance with the law and the procedural rules.

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Paul Reid: How Fixed Is a Fixed-term Parliament?

However unexpected the Prime Minister’s call for a general election may be, and however appropriate it may, or may not, be (see Jeff King’s discussion here), it invites the Fixed-Term Parliaments Act 2011 to operate as it was designed: if two-thirds of the House of Commons resolves that there should be an early general election (for whatever reason) then there shall be an early general election. Whether MP’s should vote for such a motion is a question of politics; but the law is operating as it should do. And if an election does take place on 8 June, the next again UK general election will be on 5 May 2022 (and the five-year cycle continues thereafter). But holding a UK general election in June 2017 raises two interesting points when set in the context of the fixed-term parliament arrangements in Scotland. First is the date of the next UK general election (which will be 5 May 2022). Under the 2011 Act, where an early general election is called, the 5-year clock is more or less reset: hold the election before first Thursday in May and the next election is on the first Thursday in May in the fourth calendar year after the election; hold it after and it is the fifth calendar year following the election (s.1(4) of 2011 Act). In other words, holding an “early” general election breaks the planned cycle of general elections. Contrast that to what happens where there is an early election under the Scotland Act: unless that “extraordinary” general election takes place within six months of a planned “ordinary” general election it has no effect on the four-year cycle of elections (s.3(3) of the 1998 Act). Even then, the four-year cycle continues as planned. For example, if an extraordinary general election was held in the February before a planned ordinary general election, the next general election would still take place on the first Thursday in May four years after the election (just that parliamentary session would be 4 years and 3 months long). But the fixed cycle more or less continues. It is not clear why the Westminster model resets the clock whereas the Holyrood model does not. It appears to be just another one of those anomalies that arises from the piecemeal way in which the constitution has been changed. But from what was said by the Prime Minister, it seems very unlikely that she would have sought an election in June 2017 if, as would be the case under the Scottish system, it would not have reset the five-year period and the May 2020 election would have proceeded as planned. Second is the date of the next Scottish Parliamentary election. It was due to be held on 7 May 2020 (four years after the previous election: Scotland Act 1998, s.2(2)). That clashed with the scheduled UK general election with the result that the Scottish Parliament was given the power to vary the date (Scotland Act 1998 (Modification of Schedules 4 and 5) Order 2015). That power has been exercised by the Scottish Parliament: Scottish Elections (Dates) Act 2016. Under that Act, the next Scottish Parliamentary election will take place on 6 May 2021 (s.1(2)). That is, for the second successive session, the Scottish Parliament’s four-year “fixed” term will be extended to a fifth year. And that, obviously, only deferred the problem until 2025 when both polls would have again been scheduled for the first Thursday in May. Of course, the 2016 Act is now entirely unnecessary because there will be no clash in 2020 and the Scottish election could have taken place as “planned”. But it is on the statute book and it must be extremely unlikely that it will be repealed now the clash will be avoided. So, the next Scottish general election will take place on 6 May 2021 (even if a snap election were to be called in Scotland at any time before 6 November 2020, 6-months before the planned election). The previous extension of the Scottish Parliament’s four-year “fixed” term was made by the s.4(2) of the Fixed-Term Parliaments Act 2011 so as to avoid the 2016 clash of dates (which simply gave rise to the anticipated 2020 clash of dates). Assuming things return to normal, and Westminster and Holyrood revert to their five and four-year cycles, respectively, the next clash should not take place until May 2037. Although that is some time off, it may be that there is now a convention that where the dates clash, the life of the Scottish Parliament is extended by a year. That, of course, simply delays the problem for one parliamentary cycle rather than solving it: delay the 2037 Scottish election until 2038 and then there is a clash in 2042 (and so on and so on…). But all of that assumes there are no further early UK general elections. And the term fixed by the Fixed-Term Parliaments Act looks rather more flexible than it did a week ago.

The fixed-term regime that is in place for both Westminster and Holyrood could only ever be a holding position, with date clashes being inevitable. So far, that has seen the Scottish Parliament slowly moving to a five-year term as clash-after-clash with Westminster elections was deferred for another few years (incidentally, it was never clear why a five-year term was picked: it was the maximum under the Parliament Act 1911 and it is longer than many other European legislatures). One consequence of this snap election is that the cycle of repeated clashes has been deferred for 20 years. In that time, hopefully, a longer-term solution can be found. Such a solution would seem to require the parliamentary cycles of Westminster and Holyrood to be aligned and the rules on the consequence of an “early” or “extraordinary” general election to be harmonised. But with everything else that is going on, I rather expect this particular wrinkle of the constitution will be left un-ironed until it next raises its head, which should be some time in the mid-2030’s. Or, of course, perhaps what we have just witnessed is the (de facto) revival of the Prime Minister’s prerogative as to the timing of elections (who else would be likely to credibly propose a motion for an early general election?) and the result of the Fixed Term Parliaments Act 2011 will not be so much to fix the term of Parliament but simply to require the Prime Minister to get endorsement of her decision from the House of Commons. And if that is so, it is a reminder that the UK constitution remains very much a political constitution. Paul Reid, Advocate. Paul Reid is a member of Ampersand Stable and part-time tutor of Public Law at the University of Edinburgh. – See more at: http://www.ampersandstable.com/evoke/news/668/view#sthash.mpfwtD1W.dpuf

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Paul Reid: Time to Give the Sewel Convention Some (Political) Bite?

Ampersand advocate Paul Reid writes:

Constitutional conventions are, the Supreme Court has confirmed, just that: conventions. The courts are “neither the parents nor the guardians” of such conventions; “merely observers” (para.146). The Sewel Convention “has an important role in facilitating harmonious relationships” between Westminster and the devolved legislatures but it is not for the court to “police” its operation (para.151). Embodying the convention in statute apparently does not turn it into law; it simply recognises it as “effectively” a permanent part of the devolution settlement (para.148). Given the devolution legislation was designed to provide a settlement that was “coherent, stable and workable” (Imperial Tobacco [2012] UKSC 61 at para.14) there ought not to be any great need for a policeman. Immediate fallout from the judgment, however, tends to suggest that the Sewel Convention is doing anything but facilitating such a relationship: the First Minister’s commitment to a vote at Holyrood in any event, and with it also being said that the case for another independence referendum is becoming “ever clearer”, “stable” is certainly not an obvious descriptor of the current devolution settlement (let alone “coherent” or “workable”).

The current controversy surrounding the Sewel Convention does not detract from the sound rationale for its existence and that is reflected in its hitherto unqualified acceptance in both London and Edinburgh. If policing it is to be left to the politicians (as the general orthodoxy would have suggested even before the Supreme Court’s decision), then the current dispute suggests that the convention should be armed with some other political teeth. For example, just as a Minister must certify that a Bill is compatible with Convention rights when introduced, a Minister could be required to certify whether a Bill includes matters on which consent should be sought from a devolved institution. That may, as here, be controversial. If the Minister were to answer that question “yes”, the Speaker could then be required to seek that consent unless the Minister certified that it should not be sought. Such a certification would no doubt call for an explanation.  Such a procedure could be introduced by revising the Standing Orders. Ordinarily obtaining such consent would be entirely uncontroversial but where the UK Government wished to proceed without the consent of the devolved legislature (such as here, where consent would be unlikely to be given), the Government would be forced to face the political price of that decision (and to explain it) at the earliest stage.

There may be other solutions. However, accepting the Sewel Convention as an important element of the devolution settlement, designed to ensure a harmonious relationship within a stable and workable constitutional settlement, there seems now to be a case to have some structure by which its operation is policed. The court may simply be an observer, watching on as the children fight.  But something should be in place to try and avoid, or at least minimise, such fights in the future if we are to maintain anything that resembles a harmonious, coherent, stable and workable devolution settlement.

Paul Reid is an advocate with Ampersand Stable and member of the Edinburgh Centre for Constitutional Law 

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Ampersand Seminar “The Constitution After Brexit and where we go now”

This seminar will explore the implications of the UK Supreme Court’s judgment (handed down on 24th January 2017) in the landmark case of (R) Millar v .Secretary of State for Exiting the European Union [2017] UKSC 5.

Chaired by Jane Smith – Aidan O’Neill QC, Douglas Ross QC and Paul Reid will consider the constitutional implications for the UK as well as the consequence for devolution.

Registration and refreshment from 4pm to 4.30pm with the event set to start at 4.30pm sharp.   This event will qualify for 1.5 hours of certifiable CPD.

To register, please visit the Ampersand events site here.

Numbers are strictly limited, allocated on a first come first serve basis, and open to practising solicitors. Attendance is free of charge.

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R (Miller & Anor) v Secretary of State for Exiting the European Union & Ors [2017] UKSC 5

The UK Supreme Court confirms (by a majority of 8:3) that an Act of Parliament is needed before Article 50 can be triggered and Sewel Convention is not a legal obligation and devolved legislatures do not have power to veto Article 50, in the landmark case of R (Miller & Anor) v Secretary of State for Exiting the European Union & Ors [2017] UKSC 5.

The full judgment can be viewed here and the press summary here.

Ampersand’s Aidan O’Neill QC acted for interveners the Independent Workers Union of Great Britain (IWGB) and Douglas Ross QC the Scottish Government, who were also interveners

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