Political and Constitutional Reform CommitteeWritten evidence submitted by Professor Chris Himsworth, University of Edinburgh

A. Introduction

1. I am the Professor of Administrative Law at the University of Edinburgh and also the UK member of the Group of Independent Experts which has a responsibility for advising on the European Charter of Local Self-Government (“the Charter”) for the Congress of Local and Regional Authorities of Europe, an organ of the Council of Europe. On this occasion, I write in an entirely personal capacity to offer a few comments largely directed towards the Committee’s Question 7 which asks about the value of codifying the relationship between central and local government and whether, to achieve that, the Charter should be placed on a statutory footing. My principal purpose in intervening is to draw attention to some of the issues to be confronted in placing the Charter “on a statutory footing” or, as this process has been described elsewhere in evidence submitted to the Committee, giving the Charter a “statutory basis”, “enshrining” it in UK law, giving it a “constitutional status” or “incorporating it into the UK constitution”. Such proposals raise difficult questions in a UK constitutional context, with, at some points, that complexity heightened by the introduction of devolution under the Acts of 1998. Even if the Committee’s focus were to be entirely concentrated on the position in England, legislation on the Charter would, at the very least, have to take into account its devolutionary impact. In section B, I mention some of the perceived attractions of the heightening of the legal or constitutional status of the Charter. In section C, I sketch some of the problems to be confronted. In section D, I offer some concluding thoughts. Throughout, my tendency is to point to legal and technical aspects rather than to add further to the general political debate in this area.

B. The Perceived Attractions

2. For the purposes, therefore, of this paper, I shall assume that, as a part, at least, of a project to strengthen the position of local government, the Charter’s status might usefully be enhanced. Currently the Charter has the status of an international treaty whose terms, in consequence of the United Kingdom’s ratification in 1998, the UK has an obligation to uphold. Although the Charter offers the opportunity (Article 12) to states, on ratification, to limit the extent of their commitment to its substantive terms, the United Kingdom did not take advantage of that facility1. The Charter (rather like the ECHR) does not itself insist on its being given any particular legal status within ratifying states2 . That status depends (a) upon the application of the general law of ratifying states as to the status of international treaties, and (b) measures deliberately taken to “incorporate” the Charter into the constitution or the law. As a “dualistic” state, the United Kingdom’s legal systems do not automatically recognise the terms of international treaties as a source of law. Lacking a written constitution and the will so far to incorporate the Charter into statute, the Charter does not have that status at present. UK courts do not recognise it as a source of law—in contrast with many other European states. Courts in many states (on the “monistic” model) do give the Charter an automatic status as a source of law and many too—especially those in central and eastern Europe—have, in effect, adopted provisions of the Charter into their constitutions or into statutes. Among western European states, France gives an automatic status to the Charter, as an international treaty, and has also incorporated Charter-inspired language into its constitution.

3. Two further points on the current legal status of the Charter in the UK. One is that the Charter does itself require (Article 2) that the “principle of local self-government shall be recognised in domestic legislation, and where practicable in the constitution”. The assumption in the United Kingdom (and some other countries) is that such recognition is implicitly made in the statute law which creates local authorities and determines the conditions under which they operate. It has, since ratification, been the claim of UK governments that all Charter terms are honoured in existing legislation. Secondly, the lack of formal recognition of the Charter as a source of law by UK courts does not mean that no account can be taken of it. It may be assumed (as, for instance, with the ECHR in the years before the Human Rights Act 1998) that the courts can, in circumstances of ambiguity in statutory interpretation, use the Charter as an interpretative aid, although in perhaps the only case in which the Charter has been directly invoked, it was given pretty short shrift3.

4. Against this background of weak formal recognition, the case for enhancement is readily made by those who would strengthen the position of local government. The Charter will, in any event, retain its binding status in international law and the United Kingdom will remain subject to the monitoring process by the Congress of Local and Regional Authorities4—there is no Charter equivalent to the European Court of Human Rights—and the Charter will remain available, as in the recent national debates, as a source of reference in the political process. But the attractions of a more directly legally enforceable status appear undeniable. The Charter offers terms to which the United Kingdom is already committed and it, therefore, seems (rather like the ECHR before it) to be a rather obvious source of an (off-the-peg) legal code. It offers the possibility of avoiding devising a home-grown set of prescriptions.

C. Some Difficulties

5. It seems to me that those who may, in principle, be charitably disposed towards the strengthening of local government and local authority rights in general probably have three inter-related problems in mind when they consider Charter incorporation in the United Kingdom. In large measure, these arguments would apply equally to other non-Charter-related projects to adopt a code.

6. In the first place, there is, in a UK context, the well-recognised problem of “entrenchment”—as identified in the Committee’s Question 3. The absence of a written constitution with a “higher law” status denies us the otherwise obvious route to incorporation by constitutional amendment. Equally, the United Kingdom’s reliance instead on the retention of a legislatively supreme Parliament largely denies a capacity for the achievement of legislation with “entrenched” status. Although a different status was achieved for the European Communities Act 1972, the case for asserting an enhanced status for any other legislation is profoundly weaker5. That, however, is a difficulty uniquely associated with the status of the UK Parliament itself. In respect of the devolved territories of the United Kingdom, the UK Parliament could readily “entrench” legislative provisions against amendment by the devolved legislature.

7. Secondly, there is a question of legislative technique. In the United Kingdom, as opposed to many other states, we have no tradition of general declaratory legislation. Statutes are a vehicle for promulgating rules—although sometimes these rules may be in quite general terms and may require bodies to observe principles in the exercise of their powers. Statutes rarely promulgate general principles. Nor do they lay down principles according to which other statutes should be interpreted. A simple enactment of the Charter would be a strange beast in the UK statute book.

8. Thirdly, and closely related, is the general reluctance in UK practice to confer broad interpretative powers on the judiciary. It is well-known that the terms of the Charter are quite general at many points and often hedged about with qualifying language such as “within the limits of the law” and “normally”. Of course, any legislative language is vulnerable to judicial interpretation and the relatively general language of some EU provision and the terminology of the ECHR has produced a need for judges to take on a broader interpretative role but a traditional antipathy to these developments (especially as applied in a politically fraught area such as central-local relations) is widely retained.

D. Some Concluding Thoughts

9. If this note has had a rather cautious (and some may say rather pessimistic) tone to it, that has been deliberate. There are no obvious or easy routes to placing the Charter “on a statutory footing” and especially with some degree of permanence in a UK context. On the other hand, were there a will to do so, in circumstances short of the general adoption of a written constitution for the United Kingdom, it should not be regarded as beyond the limits of the constitutional imagination6 to achieve something in this field.

10. The Human Rights Act has been mentioned. That provides a recent and innovative model for the “incorporation” of an international treaty whose terminology is as general in its terms as that of the Charter. It is recognised as an Act of the UK Parliament which, in some respects, squared the circle of ensuring that administrative acts but also past and future legislation should be read subject to its terms and yet also preserving the legislative supremacy of Parliament. On the other hand, that Act sought to protect the rights of individuals rather than the much more problematic rights of local authorities; it invoked the jurisprudence of the European Court of Human Rights to assist its interpretation; and it was launched after a long period of anguished deliberation about how best to incorporate the Convention and with the manifesto support of an incoming government. These are not conditions easily replicated for the Charter. And, on the more technical front, much thought would be required before it could be decided how many of the core features of the Human Rights Act could satisfactorily be transposed into Charter legislation. It is not, however, at all inconceivable that, perhaps without the legislative “incompatibility” aspects of the Human Rights Act, such a model appropriate for transposition could be devised, with, at least, the effect of establishing bench marks for administrative action. There would be a need for the combination of a serious re-evaluation of the case for a “statutory footing”; a reconsideration of the more traditional objections outlined in C above; and a review of the options technically available.

17 December 2010

1 But, under Art 13, it avoided Charter application in Northern Ireland.

2 Although Art 11 does require that local authorities have a right of recourse to a judicial remedy to secure “respect for such principles of local self-government as are enshrined in the constitution or domestic legislation”.

3 See Shrewsbury and Atcham BC v Secretary of State for Communities and Local Government [2008] 3 All ER 548.

4 See, in relation to the UK, Congress Recommendation 49 (1998).

5 Despite the efforts of LawsLJ to extend the notion of “constitutional statutes” more broadly in Thoburn v Sunderland City Council [2002] 4 All ER 146.

6 We live in imaginative times. The draft “Cabinet Manual” was published two days ago. Perhaps unsurprisingly, however, in its chapter on Relations with the Devolved Administrations and local government, no reference is made to the Charter. Nor, it seems, even less surprisingly, is there a reference to the Charter in the Localism Bill or its explanatory notes published yesterday.

Prepared 28th January 2013