Monthly Archives: September 2011

Douglas Edlin: The Substance of Things Hoped For.

One reason that the film V for Vendetta resonated so powerfully with Americans was its presentation of such a plausibly dystopian future history.  The US might descend into chaos, but England would endure, because that is what England does.  As Roger Allam declares with utter conviction in his character Lewis Prothero’s gripping catch phrase in the film: “England prevails!”

The England that prevailed in the film was a fascist oligarchy.  The England that actually prevails, however, is a much more interesting form of government.  A constitutional democracy without a written constitution, the English government can occasionally strike an American as something that could exist only in a film.  Yet there it is.  And there it has been.  The endurance of the English constitution challenges several assumptions of the American constitutional mind: (1) that a legally unlimited legislature will abuse its power; (2) that a written constitution is the best protection against abuses of government power; (3) that a bill of rights is the best guarantee of individual rights; (4) that judicial review means voiding the effect and existence of government acts that violate the constitution.

We can easily imagine some slightly timid American, who has just heard about the English constitutional system for the first time, venturing a question: “Pardon me, but, what happens over there when Parliament violates English constitutional principles?”  This is the traditional response: “Oh, Parliament would never do that.”  Then the American finds herself waiting for a smile.  But the smile never comes.  So now the American is feeling a bit uneasy and somewhat emboldened, so she replies, in a very friendly but slightly more urgent tone: “No, seriously, what HAPPENS if Parliament DOES do that?”  And then she receives the same patient rejoinder: “You simply must understand, Parliament would never do that.”

The American’s discomfort is easy to understand.  The US government was famously conceived and framed on the assumption that government cannot be trusted, so its power must be divided and diluted and thereby controlled.  And, of course, the US government was created in a deliberate effort to avoid the perceived problems of the British system of government.  Americans needed to write down what the government could not do, because they could not trust the government not to abuse its power without these written limitations.  The writtenness of the US Constitution reflects this lack of faith.  In contrast, the enduring unwrittenness of the UK constitution reflects, in a meaningful sense, the presence of faith.  Britons don’t need to write down what Parliament cannot do, because they can trust that Parliament will not abuse its power: “Parliament would never do that.”

Please don’t misunderstand me.  Parliament has sometimes passed legislation that Britons find detestable.  But imagine saying to an American, “Congress legislates responsibly in the best interests of the American people.”  A likely reaction would be laughter (or outrage).  If you said the same to a Briton about Parliament, I don’t think you would hear laughter.  Just look at the difference in the titles each legislature gives to its legislation and the differences in approach and self-perception and public reception become so evident.  (Compare, for example, the Anti-Terrorism Crime and Security Act of 2001 in the UK with the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 in the US.)  Now, this may seem a small difference.  I believe it is actually a very revealing one.  Electoral politics in the US has become polarized to such a degree that the arguments tend to be about defining the problem (or denying its existence) rather than differing solutions, because winning elections is the goal of the process rather than having the opportunity to address the policy issue in accordance with a party’s view of the public interest.  So the title of the legislation itself becomes a partisan statement rather than a simple declaration of the issue addressed by the statute.  If we get the government that we deserve, then perhaps Americans have no one to blame but themselves.

Or perhaps the blame belongs to the framers of the US Constitution.  What if they did not assume that government could not be trusted?  What if they had a little faith?  Then what would the US constitution say?  What would they have felt the need to write down?  Would they have chosen to write a Constitution at all?

Nevertheless, Americans are proud of their written Constitution, especially after it was amended to eliminate slavery and to provide equal protection, but they do not generally trust the officials who populate the institutions their Constitution created.  (Of course, they elect most of those officials, but let’s not talk about that right now.)

Americans’ pride in their Constitution stems importantly and inescapably from the fact that it is written.  In his famous decision in Marbury v. Madison (1803), which is commonly held to establish American-style judicial review in the US, Chief Justice John Marshall based his reasoning on the written nature of the Constitution: “Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.  This theory is essentially attached to a written constitution, and is consequently to be considered, by this court, as one of the fundamental principles of our society . . . It is emphatically the province and duty of the judicial department to say what the law is . . . Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law . . . would subvert the very foundation of all written constitutions . . .”

In other words, the Constitution is a law.  As such, it is the business of courts to interpret the written Constitution and to enforce it when a statute is deemed to violate it.  That is what it means for courts to be courts and that is what it means for the Constitution to be a constitution.  At least, that is what these things mean in the US.

Americans’ faith in their Constitution is doctrinal, as a source of legal rules that they can read and enforce in court.  The meaning of their Constitution is determined primarily by the decisions of judges, because through their interpretations of the written text the Constitution exercises its force in the people’s lives.  And since the US Constitution is deliberately difficult to amend, its development is entrusted principally to the judges who articulate its meaning.

Britons’ faith in their constitution is functional, as a conventional dynamic of institutional relationships.  The meaning of their constitution is demonstrated primarily in the operation of its Parliament, because self-regulated and theoretically unbounded legislative power is the foundational principle of the UK constitution.  The English constitution is written in deeds not words.  In continuing to function as it has functioned, the British Parliament demonstrates the enduring value of the English constitution.  And since English constitutional rights are unentrenched, Parliament can alter them whenever and however it chooses.  So constitutional development is entrusted primarily to the legislators whose enactments define and redefine the meaning of English constitutional rights.

Of course, this is an oversimplification, but perhaps a useful one.  To be sure, English courts have played a significant role in defining the meaning and values of the English constitution.  And this role has increased in recent years, and can be expected to expand further with the creation of the Supreme Court of the United Kingdom.  But so long as parliamentary sovereignty remains the fundamental doctrine of the English constitution, constitutional development will belong primarily to Parliament.

In the end, though, the UK and US constitutions are aspirational.  The US Constitution is aspirational in allowing Americans to imagine what their government might be, if only their institutions functioned as they could, if only Americans had faith in them.  The UK Constitution is aspirational in allowing Britons to imagine what their constitution might say, if it were written in a manner that expressed their faith in the customs and traditions from which their institutions evolved.

Grounded on the assumption that Americans cannot trust government, and written down to define what its institutions can and cannot do, the US Constitution helped Americans to have faith in the document as a protector of their rights from a government they cannot trust.  By acting in a manner that respects the rights of Britons, the UK government continues to function in a manner that reflects and justifies their faith in the English constitution.

All of this leads me back to questions that have fascinated me for some time.  Does the US have judicial review (in the American sense) because Americans cannot trust their government or do Americans not trust their government because they have judicial review?  Does the UK not have judicial review (in the American sense) because Britons can trust Parliament or can Britons trust Parliament because they do not have judicial review?

And this leads me back to V for Vendetta.  Constitutions exist to ensure that those disturbing scenes of government failure in the film – anarchy in the United States and fascism in England – remain fictional.  The film highlights the concerns reflected in each nation’s constitutional system.  When faced with a national crisis, which constitution seems most likely to protect the nation’s values and citizens?  Will a crisis force the nation to choose between protecting its values or its citizens?  Without a written constitution, what is there to prevent the English government from descending into totalitarianism?  Might an attempt to preserve the provisions of the written constitution prevent the US government from protecting its citizens and allow the United States to descend into chaos?  Which constitution, unwritten or written, stands the best chance of preserving values and protecting citizens while preventing fears from becoming facts?

Ultimately, I think, the answer to these questions is a matter of faith.

Douglas Edlin is an Associate Professor and Chair at the Department of Political Science, Dickinson College, Carlisle, Pennsylvania.


Filed under Comparative law, UK Parliament

Grégoire Webber: Australia: Parliamentary review of Victoria’s Charter of Human Rights and Responsibilities

On 19 April 2011, the Scrutiny of Acts and Regulations Committee of the Parliament of Victoria was tasked with reviewing the first four years of the Charter of Human Rights and Responsibilities Act 2006. The joint committee of the Legislative Council and Legislative Assembly was composed of four government members and three opposition members. On 14 September 2011, the Committee tabled its Final Report and recommended that the Charter be retained, but that the power of judicial review undergo important change. This report comes at a time of great moment for the Charter, which was reviewed in the High Court of Australia for the first time in the challenging decision of Momcilovic v The Queen [2011] HCA 34.

Victoria’s Charter is an instance of the ‘new commonwealth model of bills of rights’. A member of Parliament who introduces a government or private member’s bill must lay before Parliament a statement of the bill’s compatibility with the Charter (s. 28). In addition, the Scrutiny of Acts and Regulations Committee must consider the compatibility of and report on every bill before Parliament.

Once a bill is enacted into law, the Charter provides that all statutory provisions must, ‘so far as it is possible to do so consistently with their purpose’, be interpreted in a way that is compatible with the Charter (s. 32). The Supreme Court and Court of Appeal are empowered to declare that the interpretation of a statutory provision, even guided by s. 32, is inconsistent with the Charter. Without affecting the validity of the statutory provision, such declarations nevertheless require the responsible Minister to prepare a written response to the declaration and provide a copy of that response to be laid before each House of Parliament and published in the Government Gazette (s. 37). Either in response to a declaration or otherwise, the Parliament of Victoria ‘may expressly declare in an Act that that Act … has effect despite being incompatible with’ the Charter (s. 31).

The Charter provides for two parliamentary reviews, after four and eight years (s. 44). The September 2011 committee report is the fruit of the first of those reviews.

Addressed by the report are the following points, which the Charter requires the reviewing parliamentary committee to address:

  • whether additional human rights should be included (Recommendations 1 and 2: consideration should be given whether to include additional rights contained in the International Covenant on Civil and Political Rights, but not other rights);
  • whether the right to self-determination should be included (Recommendation 3: no, but programmes to foster improved outcomes for Victoria’s indigenous peoples should continue to be developed);
  • whether regular auditing of public authorities to assess compliance with human rights should be made mandatory (Recommendation 4: no);
  • whether further provision should be made with respect to proceedings that may be brought or remedies that may be awarded in relation to acts or decisions of public authorities made unlawful because of the Charter (Recommendations 5-8: internal complaints procedures, including access to Ombudsmen, should be strengthened, but no changes should be made to more formal legal proceedings).

Interesting as the recommendations in reply to these questions are, the report merits attention for a series of other recommendations pursued by the committee and of special interest to the ongoing review of the Human Rights Act 1998.

The committee recommended that the provision empowering Parliament to enact an ‘incompatibility’ declaration be repealed, primarily on account of its redundancy: the absence of a judicial power to invalidate legislation renders the need for an express declaration of incompatibility unnecessary (Recommendation 21). Redundancy also motivated the committee’s recommendation that the judicial interpretation provision be either repealed because it tracks ‘common law principles of statutory interpretation’ or, to similar effect, ‘redrafted in a manner that … clarifies that it is limited to traditional approaches’ (Recommendation 24). In short, the British courts’ approach to interpretation under the Human Rights Act 1998 was rejected.

Public lawyers will also be interested in Recommendation 31 pertaining to judicial declarations of incompatibility (s. 36), as are also mandated under the Human Rights Act 1998 (UK):

If Charter s. 36 is retained, then [the committee] recommends that consideration should be given to amending it to give an independent non-judicial body (such as [the Victorian Equal Opportunity and Human Rights Commission]) the functions of identifying statutory provisions that the Supreme Court has interpreted in a way that limits a human right and forwarding those provisions to a parliamentary committee (such as [the present committee]) for reporting to the Parliament, as well as to the Minister responsible for the statutory provision.

In short, the power to declare statutory provisions incompatible with the Charter could be removed from the judicial arena and awarded to another body.

Of great significance was Recommendation 32, which provided that, if the conduct of public authorities remains subject to judicial review under the Charter, the Charter be amended to state that ‘except where a statute expressly provides otherwise, nothing in Charter … creates in any person any legal right, gives rise to any civil cause of action or affects the rights or liabilities of a public authority’.

In the concluding chapter of the report, the committee reviewed three possible options for reform:

  • the Charter and judicial review under the Charter be maintained, subject to the recommendations in the report;
  • the Charter be maintained but judicial review under the Charter cease; or
  • the Charter be repealed.

A minority of the committee recommended the first option; a majority the second. Neither recommended the status quo.

Grégoire Webber is Lecturer in Law at the London School of Economics and Political Science.

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Filed under Comparative law, Human rights

Dawn Oliver: Review of H. Gommer, A Biological Theory of Law: Natural Law Theory Revisited (2011, Create Space/Amazon, Seattle, 179pp)

Given the growth of work in psychological explanations of law in many fields, a book by a Dutch scholar, Hendrik Gommer, A Biological Theory of Law: Natural Law Theory Revisited is of particular interest. Gommer’s thesis is based on the fact that there are links between the properties in genes and basic notions in law. Genes are stable, can replicate, and require nutrients, reciprocity and room to grow.  The same is true of individuals and of groups. Just as genes cooperate, so individuals in society cooperate. The genetic structures of our brains contribute to the development of emotions, morals, rules, and eventually, in large communities, laws.  Those laws optimise the reproduction of the genes of members of the community whose laws they are.

The applicability of this approach is obvious in many areas of law, notably family law and criminal law, in which much work is already being done. But it is also applicable in public or constitutional law, where it opens up scope for much new research. Liberal democracies protect the interests of the public group or community, balance them with those of individual members, and meet the natural concerns of individuals for justice, both for themselves and their kin and for other members of their community. Because we need to cooperate with others in order to reproduce successfully – that is why we are social animals – our brains enable us to do so – by means of emotion. We develop rules, which may or may not be explicit and formal, to facilitate cooperation and to deter uncooperative behaviour. These rules may be experienced by individuals as ‘normative’ and ‘ethical’ but this experience, and the anger that is generated by breaches of them – by untrustworthy behaviour, cheating, free riding – are genetically rooted, emotional, fitness promoting: the products of evolution. Recognition of this fact helps to explain and understand rules.

The relevance of this approach for public lawyers and legal theorists is illustrated by the following passage in A Biological Theory of Law (at p. 108).

‘Only states in which the interests of individual citizens are in balance with group interests will be stable sufficiently. If the state suppresses too much the interests of individual citizens, it undermines itself. From the standpoint of this theory, it is largely irrelevant whether the laws are realized democratically. The point is that the law is in the interest of (the largest possible part of) the public, and that free-rider behaviour at all levels is prevented as much as possible. An oligarchy suffices, but needs to be checked if defending the interests of citizens. Otherwise, oligarchs will be tempted by free rider behaviour. Whether this control is carried out by direct election, or for example, by judges who guard the interests of citizens, is of less importance. However, it is clear that the more ‘checks’, the smaller the chance of free rider behaviour, and the more ‘balances’. From this perspective, it is not a dogmatic separation of powers, but control and sanctions for those who abuse their power that are important.’

The most difficult part of Gommer’s thesis to understand is the introductory, scientific material on the fractal structures of molecules and genes.  A fractal is a large structure which has the same structure as its micro-scale version. Gommer uses fern leaves to illustrate his point. The fractals in our genes, Gommer suggests, generate social structures. Gene interaction does not only generate individual persons, it also creates a community of individuals, which can be thought of as a single creature as well as a collection of individuals. Our thoughts too are part of a fractal generated by our genes which can be recognised, for instance, in the system of law.

Despite its novelty and complexity the scientific basis for the thesis is clearly explained and, I find, convincing.

Thus biology is about the centrality of genes rather than of individuals. This is one of the most important insights offered by biology and evolutionary theory. Whereas legal and moral theorists have sought to explain law in terms of the centrality of the individual, the drivers – Gommer uses the term ‘generators’ – that predispose people towards particular behaviour  are  our genes.

Gommer argues that although many philosophers of law and even sociobiologists are reluctant to agree that norms can be justified by biological mechanisms and prefer to think of them only as ‘out there’ in a non-material world, a world of reason or of God, recognition of the biological aspects to law – that law finds its cause in nature – is necessary if we are to take a major step forward in the integration of biology, psychology, sociology, anthropology and law. The thesis amounts to a new ‘natural law’ theory, the natural element being molecular and genetic. This is not to deny the significance of the content of what natural law exponents may consider to be ‘out there’ theory, only to draw attention to its ‘in here’ roots in innate human psychology which can enable us to understand human behaviour, morals and laws.

Having summarised the scientific basis for his thesis, Gommer takes the subject forward by engaging with much of the economic and philosophical literature on law, morality, justice, democracy. He challenges for instance the assumptions of economists that human behaviour is essentially rational. He stresses the importance of emotion to human behaviour. He considers how the theories of Aquinas, Bentham, Cicero, Descartes, Durkheim, Dworkin, Grotius, Hart, Hobbes, Hume, Kelsen, Locke, McIntyre, Mill, Moore, Rousseau, Westerman and others stand up to a biological analysis of law, and he shows where their thinking does not tally with biological and other evidence about human nature.

In the epilogue Gommer engages eloquently with critics of his approach, including those who worry that a biological approach reduces all beautiful feelings, thoughts and creations to ‘a  heap of molecules’ and denies the importance of God. He rejects this. ‘If we feel love, love is as real as these molecules. A beautiful picture will stay a beautiful picture’. Much religious teaching, he states, is fully in accordance with biological theory. For instance ‘Religion and biology are all about the essence of our existence, about how we can find happiness, peace, cooperation, and justice. Religion is a way to expand the in-group, and it enhances our reproduction.’

The focus on the in-group throughout the book is illuminating: for instance, much anti-social behaviour is due to the fact that those affected by it are considered by the perpetrators to be out-group members – and the victims of anti-social behaviour may respond in kind by treating the perpetrators as ‘out-group’: this is a form of ‘tit for tat’ response which can, in a small community, be effective in bringing the ‘wrong doer’ back into cooperation; but it may be less effective in large populations.

Gommer shows that biology explains a lot of laws in all kinds of states. He notes that authoritarian legal systems and states will lack stability because of the senses of injustice and resentment of free-riding by rulers that will be generated among their populations. Life in a group always requires individual sacrifice, and a ruler who does not make any sacrifice for the group does not consider himself to be a member of it. His ‘subjects’ will also probably not consider him to be a member of their group, or else they consider him to a delinquent member – a cheat or free rider in the group.   A system in which the rulers are part of and rule in the interests of the people is more likely to be stable and its members and their genes are more likely to reproduce successfully in the long run.

It is clear that biology is not the only direct driver of rules. Culture also does so. We are biologically capable of developing culture: our genes generate brain structures that enhance imitation and memory, both essential to the transmission of cultures. Thus there are also biological influences in cultures. But some cultures, seen from outside, do not appear to be adaptive: they do not promote the successful replication of genes through sociality. Some cultures are remnants of earlier periods when economic, environmental and other conditions were different and in which they may have been adaptive; they may be less so in changed conditions. Some cultures may be adaptive in the minds of those who follow them but not to outsiders. Suicide bombing is an example: if a suicide bomber believes that his reward for martyrdom will be access to seventy-two virgins in paradise, the belief is clearly extremely adaptive. If a suicide bomber believes that his kin will benefit if he is a martyr, that also is adaptive. Both beliefs if true would ensure the replication of his genes. To outside observers who do not share these beliefs the traditions are obviously not fitness promoting.

Legal systems that are considered to be immoral, illiberal, unjust by the outside commentator may be well designed to promote the interests of the ruler’s group  – the people whom s/he considers to belong to his or her community – and may well do so very effectively. One-party states, where laws promote the interests of the party group and not of the whole population, provide an example.

This in-group out-group consciousness – which is inherent in all of us and may well be adaptive in some situations – is, it seems to me, the crucial factor which can explain how many very different legal systems function and why some do not adopt the ‘out there’ standards which many moral philosophers and legal theorists argue for and which may in fact be ‘in there’ for those who see all or most fellow humans as part of their group. In a broadly liberal democracy the elites and the general population consider that virtually all members of the population ‘belong’. Indeed, the prevalence of that attitude is, in my view, essential to and a precondition for the effective operation of a liberal democratic system and a peaceful society. A sense that certain people – e.g. women, immigrants, adherents to strange religions and ideologies – do not ‘belong’ explains much discrimination and it also weakens the system itself. A topic that cries out for further research is just why some individuals in some populations consider all members of the population to ‘belong’ and why in some populations that is not the case. It may well reflect senses of insecurity within sub-groups in the population – forming negative stereotypes of ‘others’ serves to reinforce group solidarity. It may be a hangover from earlier conditions, economic, environmental, health related, whatever, in which segments of a population acted adaptively – in the interests of the successful reproduction of members of their group – in discriminating against others and sub groups within the population.   If – but only if – the whole of the population of the world came to consider that they all belonged to the same significant group would there be no more injustice, discrimination, tyranny. Gommer explores this possibility in a visionary part of the book.

I write as a humanist:  an important point about Christianity, at least in its more liberal interpretations, is that in the minds of its adherents all human beings, whether Christians or not, do indeed belong to the one group of which God is the Father and Christ a brother – that is the species Homo Sapiens. This is what the Good Samaritan parable is about. The use of kinship terminology in Christianity may foster a sense that all humans are genetically related and should cooperate with one another in order to promote the replication of the genes that they, as kin, share. But not all religions or all Christian sects are so inclusive: in a diverse population whose members adhere to religions that do not consider all humans to ‘belong’ and actively subscribe to that element of their faith, this may be an obstacle to the development of liberal democracy, indeed to a world order free of injustice and tyranny. In a population in which there is broad acceptance that all human beings living in the territory belong to the same group – Homo Sapiens, British, American, whatever - the tenets of classical liberal democracy should be able to operate on the ground. It is when that sense of common group or community membership is absent that liberal democratic standards are unlikely to work. I find the insight from biological sciences, anthropology and other psychological disciplines, that in-group out-group dimensions exist and affect the attitudes of members of the elites and of the general public, and thus the content of laws, extremely illuminating: it provides at least a partial explanation of some of the factors which affect the functioning of liberal democratic systems.

No doubt many traditional legal and moral theorists – and many religious people- will find this book disturbing, reductionist and challenging. Many will question the positive contributions of religion to happiness, peace, cooperation and justice. These are not reasons not to read the book. It provides many important and intelligent insights into law and human behaviour.

Gommer does not engage with all the issues raised by biological explanations of law: he does not deal with free-will, determinism and criminal responsibility, for instance. But the instinct of individuals and groups to ostracise or punish people for anti-social behaviour is strong and, at least when it evolved, it served to uphold the social order on which we all depend. Whether it continues to do so in modern conditions is a subject worth exploring. I do not consider the omission of these topics to be a criticism of the book, however: the work is an introduction to the biology of law and opens up many areas for research by specialists.

It is difficult to do justice to Gommer’s thesis and to the literature with which he engages in this short paper. But it is clear that biological and psychological approaches are at the new cutting edges of public law scholarship and of legal theory: Some public law scholars in the UK are currently pursuing biological and psychological approaches. They  include Nick Barber in The Constitutional State (2010) in which he sees the state as a social institution, and Conor Gearty in ‘Against Judicial Enforcement’ in Conor Gearty and Virginia Mantouvalou, eds, Debating Social Rights (2011) in which human rights are seen as based on human predispositions to empathise with others. More public lawyers and legal theorists should work in this area.  For those who are looking for a change from what are sometimes to my mind rather sterile, even mystifying, debates about what are conceived to be ‘out there’ values such as democracy, sovereignty, rights, justice, rationality and the rule of law, here is a fertile new ‘in here’ approach which casts those ostensibly ‘out there’ values in a new and less mysterious light. Gommer’s book would be a very good place to begin.

Dawn Oliver is Emeritus Professor of Constitutional Law at University College London. 

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Alison L. Young: Fixed-Term Parliaments and Neurath’s Ship

The UK constitution could be compared to Neurath’s ship. Unlike other countries, the UK cannot point to a single defining moment when a constitution was definitively ‘launched’, its provisions set out in one document named ‘Constitution’. The UK’s constitution has evolved over time, building on and replacing the ‘old timbers’ of statutes, common law, conventions, non-legally enforceable rules, prerogative powers, practices and principles that make up our more loosely constructed (and some would argue leaking) constitution. In one sense, the recently enacted Fixed-Term Parliaments Act 2011 is a small timber replacement; just another piece of legislation that regulates constitutional matters by providing for fixed-term Parliaments. However, it also raises more fundamental issues. Just as it may be difficult to determine when a series of small changes has provided Neurath with a new ship, the Fixed-Term Parliaments Act 2011 may be part of a series of small incremental changes that is modifying the fundamental nature of the UK constitution.

On its face, the legislation appears to be modest. It fixes the date of the next general election as 7 May 2015 (section 1(2)) and fixes the terms of future Parliaments to five years (section 1 (3)). Parliament is automatically dissolved 17 working days before the election date (section 3(1)), replacing the prerogative power of the Monarch to dissolve Parliament (section 3(2)). The fixed five-year term can be extended for up to 2 months by a standing order made by the Prime Minister, approved by affirmative resolution of both Houses, with the Prime Minister being required to set out the reasons for the delay in the standing order (sections 1(5), 1(6) and 1(7)). This is designed to enable flexibility should polling day coincide with national or other emergency situations – e.g. as was the case with the foot and mouth crisis in 2002.

There are also two ways in which Parliament can be dissolved before the end of the five-year fixed term. First, the House of Commons, by a two-thirds majority, may pass a motion “That there should be an early parliamentary election” (section 2(1) and 2(2)). Second the House of Commons, acting by a simple majority, may pass a motion “That this House has no confidence in Her Majesty’s Government” which is not followed, within 14 days, by the passing of a second motion, again by simple majority, “That this House has confidence in her Majesty’s Government” (Sections 2(3), 2(4) and 2(5)). In both of these instances, the date for the general election is determined by a proclamation of Her Majesty, on advice from the Prime Minister (Section 2 (7)), Parliament dissolving 17 working days before the date set (section 3(1)).

Sections 4 and 5 of the Act resolve the difficulties arising from the coincidence of the date for the next general election for the Westminster Parliament falling on the same day as the date fixed for elections to the Scottish Parliament and the National Assembly for Wales, moving the date for these elections to 5 May 2016. In addition, the Prime Minister is required to make arrangements for a committee, the majority of whose members must belong to the House of Commons, to carry out a review of the consequences of the Act. The committee, if it finds it appropriate, may recommend the repeal or amendment of the Act, publishing its findings. The arrangements for the committee are to be made no earlier than 1 June and no later than 30 November 2020.

The justification for the legislation, as presented by the Deputy Prime Minister, also appeared to be uncontroversial. Prior to its enactment the power to dissolve Parliament was a prerogative of the Crown. In practice, this meant that the Prime Minister was able to determine the date at which general elections were held, provided that this was within five years from the last general election. As such, the Prime Minister could use this power to time the general election when it would be more likely that the Prime Minister’s government would be re-elected. A fixed term removes this power. It aims to enhance democracy, transferring a power of the Prime Minister to the House of Commons. Democracy may also be enhanced through the codification of votes of no confidence. This may be used both to vote out a Government which has lost the confidence of the House of Commons, but could also be used to require a motion to approve a newly-formed Government. This may give an extra layer of democratic legitimacy when the leadership of a political party changes, leading to the replacement of one Prime Minister with another, where there is a major cabinet reshuffle, or where coalition Governments are formed. However, the two-thirds majority required to call an earlier election may be nigh on impossible to obtain. In addition, the Monarch still retains her power to prorogue Parliament (section 6(1)). This may leave open the possibility of the Prime Minister responding to losing a vote of no confidence by requesting the prorogation of Parliament, ensuring that a different Government cannot be formed and obtain the approval of a vote of confidence within 14 days, thus forcing a general election.

However, even if there is general agreement surrounding the desirability of enhancing the powers of the House of Commons vis-à-vis the power of the executive, there was still a degree of controversy surrounding the provisions of the Act. Is five years too long? Five years may have been the maximum length of Parliament but, even if the face of more recent longer terms, it is by no means the average length of modern Westminster Parliaments. Moreover, research carried out by the Constitution Unit demonstrated the preference for shorter terms in most other legislative chambers and strongly advocated a four-year fixed term. Despite this, an amendment to move to four year terms was defeated.

Are fixed-term Parliaments a good idea generally, or are they merely required for a coalition Government? This issue led to deadlock, with the House of Lords proposing a ‘sunset’ clause requiring both the House of Commons and the House of Lords to renew the legislation after each general election. The deadlock between the two houses  was finally resolved through the insertion of the requirement to arrange for a committee to review the Act in 2020 (the Parliament Act 1911-1949 procedure could not be used, given the provisions in the legislation enabling the life of Parliament to be extended to more than five years).

More fundamentally, the Act has deeper constitutional implications. First, it is further evidence of the codification/legalisation of the UK constitution? The prerogative power of the Monarch to dissolve Parliament is replaced by a legally regulated power; the consequences of votes of no confidence are no longer regulated by constitutional convention but by statute. This raises the issue as to whether these matters will be regulated by the courts, or whether the courts would regard these issues as non-justiciable being the subject of parliamentary privilege. Second, the Act was referred to in debates as a ‘constitutional’ statute. As such, should it be interpreted differently by the courts than other statutes (Robinson v Secretary of State for Northern Ireland); be incapable of being impliedly repealed (Thoburn v Sunderland City Council); or should it have been enacted differently from other, ordinary legislation, perhaps requiring White and Green papers and greater pre-legislative scrutiny, or even a different voting mechanism, as in the two-thirds voting requirement for the motion for an earlier general election (see  House of Lords Constitution Committee Report The Process of Constitutional Change, 15th Report of 2010-2012)? Third, there are implications for parliamentary sovereignty. Dicey’s conception of sovereignty clearly requires that all statutes are equal, but the increasing recognition of ‘constitutional statutes’ would suggest that some statutes are more equal than others. The reference in the title to Parliaments as opposed to Parliament and the rejection by the House of Commons of the ‘sunset’ clause clearly indicates an intention that this legislation binds future Parliaments. However, there are no provisions specifically preventing Parliament from enacting legislation to amend or overturn the Act. Moreover, it may be possible for Parliament to repeal the Act by implication; enacting legislation to dissolve Parliament, or providing for an earlier election. Is the Act further evidence of a challenge to the accuracy and normative justification of ‘Parliamentary Sovereignty’ as a fundamental feature of the UK Constitution?

More fundamentally, it calls into question the way in which our constitution is formed. The Act modifies the definition of Parliament and the way in which it votes. Does or should Parliament have the power to redefine itself If so, than Neurath’s ship really would have been replaced. As with most aspects of the UK constitution, only time will tell. But perhaps a better understanding of the provisions of the Act is to see this as a step towards, as opposed to the accomplishment of, a definitive shift to fixed-term Parliaments. Not only does the Act itself require a committee to investigate whether the Act should continue in force, but also, should its principles be ignored, the courts will be called upon to resolve the perceived constitutional crisis. To interpret the Act as a further example of the way in which Parliament may bind its successors my remove this essential checking function of the court, replacing its ability to assess legal and political realties with an obligation to interpret a statutory provision according to the will of Parliament (however difficult this may be to ascertain). This may damage the flexible, evolving nature of the UK constitution, as well as granting far greater powers to Parliament than Dicey’s theory may have originally intended.

Alison L. Young is a Fellow at Hertford College, Oxford.


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Gavin Phillipson: Constitutional Principles and the Human Rights Act: Moving Beyond One-Way Street Approaches

 I’ve been thinking recently about the relationship of the Human Rights Act with the existing principles of the UK constitution – themselves not always easy to pin down or agree upon of course. I realise that I’d unconsciously taken the view, in some of my previous writings, that this relationship operated as a basically one-way street: it was about, and only about, how far the HRA transformed the existing constitution. And as one of the enthusiasts for the HRA, I’d been eager to argue for that effect to be of maximum possible extent.  But increasingly recently I’ve been wondering – and have started to write about – the opposite question: how far the HRA itself must be read in the light of pre-existing constitutional principles. And my thought so far is that this question not only tends open up what we might crudely call a ‘legal v political constitutionalism’ divide in scholarship, but that it poses something of a paradox for that divide too.

Under the traditional UK constitution, the key principles were the political accountability of the Executive branch to Parliament, and of the sovereign Parliament to the people, while the judges were confined to a modest role in policing a narrow, formal conception of the view of law, in the shadow of parliamentary supremacy. So how far has the HRA changed this? A very large question of course, not to be tackled in a single article, let alone a single blog post, but what I want to point out here is how approaches to this question – including how it is posed – cannot help but fall into – or open up – the legal-political constitutionalism divide I’ve mentioned. I think we can sketch two basic contrasting views, which of course bear directly upon not only a range of specific interpretive issues raised by the HRA, but also the assessment of the overall significance of the Act. These interpretive issues, all of which are keenly contested, include in particular, (a) the role of judicial deference in reviewing decisions of the elected branches, (b) the extent to which the courts can re-define the meaning of legislation to conform with the Convention rights, and (c) how far courts have an obligation to develop protection for those rights even in the sphere of private common law (the ’horizontal effect’ debate). But the difference between the two views is not simply the different answers they give to these specific questions, although they do tend to give different ones; from it also follows two sharply opposing analytical perspectives through which the interface between the HRA and traditional constitutional principles is itself approached. (Before going any further I must add the rider that these two contrasting approaches are relatively crudely sketched here and that there are many important nuances I would have acknowledged (at least in footnotes!) are thereby glossed over. In particular, some judges and scholars have taken rather minimal readings of the HRA seemingly for ‘small c conservative’, rather than political constitutionalist reasons) .

Under the first view, associated with the school referred to variously ‘as liberal normativists’ or ‘legal constitutionalists’, the HRA amounts to a hugely significant re-orientation of the UK constitution away from its traditional majoritarian basis. On this view, the HRA, despite its relative weakness as a merely statutory ‘Bill of Rights’, formally subject by its provision to parliamentary supremacy, marks a signal change in the judges’  previous ‘procedural’ role, and a major re-balancing of the three arms of government in favour of the judiciary. In turn, under this view, the interpretation of the HRA itself should be driven by the overriding objectives of ensuring maximal protection for, and further development of, the Convention rights and be strongly informed by the Convention’s implicit requirement that questions concerning rights are primarily for judicial determination, as they are at Strasbourg.

It is well known that, particularly in relation to the three interpretive issues mentioned above, the Act allows for a degree of judicial choice between the use of what may be crudely termed its ‘pro-rights’ provisions (s 6(1), 3(1) in particular) and  its ‘pro-majoritarian’ aspects (s 6(2), 3(2)) and 4) – and thus gives rise to a sliding scale of judicial power. Under the rights-driven interpretative approach, the dial of judicial power is generally turned to the maximum. The result is that the judicial role becomes elevated to such an extent as to give rise to what has been referred to as a ‘bi-polar sovereignty’, with the rule of law and protection of fundamental rights given equal or near-equal status with the supremacy of Parliament to which they were previously so firmly subordinated. Under this view, then, the HRA plays a major road in re-conceptualising – even transforming – the UK constitution.

In sharp contrast, under the second view, associated with the ‘political constitutionalist’ school, the HRA has a much narrower role and a primarily practical one: it is there simply to give British citizens access, in domestic courts, to the rights that previously only Strasbourg could enforce. In turn this means that, when assessing and interpreting the HRA, instead of asking how far the Act should change our view of the constitution, such a view instead assumes that traditional constitutional principles must shape our view of the HRA. Such views tend to stress the continuing operation of what can be termed ‘the constitutional constraint’ on judges, represented by the separation of powers and the primacy of Parliament’s democratic role. Under this view, the courts must grant considerable deference to the elected branches of government, continue to develop the common law only incrementally, and take particular care to ensure that ‘interpretation’ of legislation never tips over into effectively re-writing it.  Conor Gearty has been particularly active in arguing for this viewpoint.

While remaining broadly on the ‘legal’ rather than ‘political’ shores of constitutional scholarship, I have started to perceive more of a need to consider the ‘fit’ of the HRA within the existing constitution, particularly where its provisions are ambiguous. For example, in a forthcoming article with my colleague Alex Williams at Durham, ‘Horizontal Effect and the Constitutional Constraint’ (MLR, 2011), we argue that the horizontal effect puzzled posed by the HRA cannot ultimately be solved simply by consideration of the provisions of the Act itself or even of the Convention rights. Rather, given the paradox set up by section 6(1) and (3)’s inclusion of judges within those public authorities bound to act compatibly with the Convention rights taken together with the Act’s presumably deliberate silence on private law and common law, we must turn to existing constitutional principles governing the role of the judiciary, which (we argue) provide the ‘constitutional constraint’ of incrementalism; this supplies the necessary definition of and limitation upon the judicial role in developing common law compatibly with the Convention rights.

Of course, in the end, either view is incomplete on its own.  To focus only on how the HRA changes the constitution misses the inevitable question of how far the constitution governs how we approach the HRA in the first place. But, equally, to argue that interpretation of the HRA’s provisions must be governed by traditional principles is a very partial view: first it leads one into the kind of doctrinal messes we’ve seen when judges have tried to water the section 6(1) head of judicial review down into a muddled kind of heightened Wednesbury; but second, of course, going too far in reading down the plain terms of the HRA – an Act of Parliament – risks disrespect to Parliament’s sovereignty – the first principle of the traditional constitution.  And this leads us to the possible paradox I mentioned at the beginning of this essay. Those who, through interpretation of the HRA, seek to turn down its dial of judicial power are in the end appealing to principles of the UK constitution – the separation of powers, and a particular view of parliamentary democracy – and asserting that Parliament cannot change these things; rather, legislation like the HRA which seemingly seeks to do so finds itself in turn simply re-interpreted by those principles. (An example would be the way that their Lordships in Bellinger read the limits of the interpretative obligation imposed by section 3(1) HRA in the light of the limits to the judicial role prescribed by the constitutional background as they saw it).  The paradox I sense, then, goes something like this: enthusiasts for the Act – ‘true blue Convention lawyers’ as Gearty once dubbed us – essentially rely on parliamentary sovereignty in order to assert that Parliament can, and has, transformed the traditional constitution through enacting the HRA – and yet are often not major fans of that doctrine. Conversely, those ‘political constitutionalists’ who resist such an expansive reading of the Act’s constitutional significance seem to rely in doing so on Parliament’s inability to change certain constitutional fundamentals; and yet it is the political constitutionalists who, broadly speaking, are most supportive of a traditional view of parliamentary sovereignty, under which any and every principle other than the basic sovereignty of parliament itself is open to change by Parliament. I can think of various possible ways of debunking this seeming paradox myself but am eager to see what readers have to say.

It seems obvious that the solution to the polarity of the ‘two views’ on this issue I’ve sketched above is a more sophisticated reading of the relationship I’m considering, whereby the HRA is both interpreted through existing constitutional principle while viewed as simultaneously starting to change those principles over time. It certainly seems to me that one’s overall constitutional leanings are always going to condition how one perceives the relative balance between those two contradictory tendencies. In the absence of a formal mechanism for constitutional change in the UK, analysing and justifying the process and direction of such change is always going to be a murky and contested business.

Gavin Phillipson is Professor of Law at the University of Durham. Some of the above thoughts will be fleshed out in a forthcoming chapter in Leigh and Masterman, The UK’s Statutory Bill of Rights:  Constitutional and Comparative Perspectives (2012, British Academy).

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Andrew Le Sueur: McGonnell and the Bailiffs of Jersey and Guernsey 11 years on

Lawyers and legal academics from outside the Channel Islands tend to know only three things about the legal systems of Jersey and Guernsey. One is that islands have deployed their constitutional status as Crown Dependencies to develop into major offshore finance centres.  Another is that they have a continuing connection with the pre-revolutionary customary laws of Normandy. And, third, that each island (they are separate jurisdictions) has a ‘bailiff’—a snippet of knowledge in circulation thanks largely to the European Court of Human Rights eleven year old ruling in McGonnell v United Kingdom.

Richard McGonnell wanted to convert a flower packing shed next to his commercial glasshouses into living accommodation but was refused planning permission under the island’s detailed development plan (‘DDP6’) and was subsequently prosecuted when he went ahead regardless. In 1995 the Royal Court of Guernsey dismissed his appeal: the presiding judge was the Bailiff who five years previously (as the then Deputy Bailiff) had been the presiding officer at the sitting of the Island’s parliament when the development plan had been debated. Five years later Strasbourg ruled:

“The Court thus considers that the mere fact that the Deputy Bailiff presided over the States of Deliberation when DDP6 was adopted in 1990 is capable of casting doubt on his impartiality when he subsequently determined, as the sole judge of the law in the case, the applicant’s planning appeal. The applicant therefore had legitimate grounds for fearing that the Bailiff may have been influenced by his prior participation in the adoption of DDP6. That doubt in itself, however slight its justification, is sufficient to vitiate the impartiality of the Royal Court, and it is therefore unnecessary for the Court to look into the other aspects of the complaint.”

What have been the consequences of this ruling?

Mr McGonnell and his business moved on to pastures new … in Kenya where he continues to grow flowers and carry out charitable work through the Rotary Club. Interviewed for the Guernsey Press in 2003 (in an article entitled “Local grower brings down Lord Chancellor”), he is reported as saying “I have been proved justified in my actions. A lesser person, or one who had something to lose, may not have gone all the way and succumbed to the bully boy tactics of the Guernsey States”.

It is doubtful that Mr McGonnell’s litigation can be credited as single-handedly bringing an end to a 1,400-year old office of state in the United Kingdom. Equally Lord Irvine of Lairg’s assertion in a PQ shortly after the ruling that “The position of the Lord Chancellor is unaffected by this case” is, with hindsight, an understatement of its impact. It seems likely that the McGonnell ruling was a driver in the decline of the Law Lords’ participation in parliamentary debates and it was part of the constitutional backdrop to Tony Blair’s intention in 2003 to abolish the office of Lord Chancellor and the subsequent debates over remodelling the post.

McGonnell’s waves have also been felt closer to its original Channel Island home. The dual role of Seneschal as President of the legislature (Chief Pleas) and judge in Sark (population 600) was dealt an ECHR Article 6 knock-out blow in the English Court of Appeal in litigation brought by the Barclay brothers (and was not resuscitated by the subsequent appeal to the UK Supreme Court).

The curiosity of the Strasbourg ruling is that while it changed Mr McGonnell’s life, played a role in reshaping the British constitution and killed off the traditional office of Seneschal in Sark, in both Guernsey and Jersey the role of Bailiff has continued largely unchanged. The Bailiffs remain presiding officers of the islands’ respective parliaments and regularly sit as judges as well as continuing to have executive and ceremonial roles as chief citizens.

How come? The practical legal answer is straightforward. The McGonnell ruling did not oblige constitutional change to be made: it required only that a judge does not sit in a case concerning a piece of legislation in respect of which the judge had a role during the legislative process. Looking at Jersey, there are a number of people who can preside over the legislature in addition to the Bailiff (the Deputy Bailiff, Greffier (clerk) or an elected member) and there several members of the judiciary able to sit in the Royal Court instead of the Bailiff (the Deputy Bailiff and part-time Commissioners, who include people of the stature of Jonathan Sumption QC). In practice, boxing and coxing can avoid an infringement of McGonnell.

The judiciary, court administration and lawyers have adopted a relaxed approach. In May 2010 ––ten years on from the Strasbourg ruling––Jersey Bailiff Mr Michael Birt told a committee of inquiry (see below) “we probably need to improve our systems to be very compliant with McGonnell and that one probably ought to keep a running list of those statutes where I have presided so at least I could invite the parities to consider whether they wanted to object or not”. It is possible to identify post-McGonnell litigation in which the Bailiff was presiding in the legislature in respect of legislation on which he later was called on to consider judicially. For example, in Moran v Deputy Registrar of the Parish of St Helier [2007] JRC 151 the issue was whether a child born to unmarried parents could be registered in the father’s family name or whether customary law permitted only the mother’s name. The then Bailiff had to consider the Marriage and Civil Status (Forms, Registration and Fees)(Jersey) Order 2002, which had been tabled in the legislature when he was presiding. Neither the parties nor the court raised any McGonnell point, notwithstanding that the high profile case turned in part on whether the Registrar’s practice was compatible with Convention rights under the Human Rights (Jersey) Law 2000.

In the political arena outside the island’s courts both islands have undergone constitutional reforms over the past 10 years, though in different directions. Jersey embraced ministerial government in 2005 while Guernsey has retained a more consensual, committee-based system of government.  Each island has, however, created a Chief Minister as the elected head of government. (Jersey’s is currently Senator Terry Le Sueur, who is not related to me). So far, in both islands the office of Bailiff has weathered the storm of these changes as well as the McGonnell ruling.

In Guernsey, there has been little debate about the office of Bailiff. In Jersey, by contrast, the need or otherwise to reform the office of Bailiff has been the subject of political controversy. At the prompting of Jersey’s indefatigable human rights champion Deputy Bob Hill, a committee of inquiry was set up. Chaired by Lord Caswell, it reported in December 2010. The Carswell report and an accompanying legal opinion by Rabinder Singh have satisfied practically nobody in either island. The report recommended that the Jersey Bailiff’s role in the legislature should be replaced by an elected speaker, though in addition to his judicial role, the Bailiff “should continue to be the guardian of the constitution and the conduit through which official correspondence passes” (between the Jersey government and the UK government). People opposed to change see this as a curate’s egg. Those calling for reform see it as not going far enough. In neighbouring Guernsey, the Bailiff said the report was “very, very thinly argued indeed”. The Singh opinion also pleased just about nobody: he said that “there is no reason in law why the present constitutional arrangements in respect of the Bailiff should be altered. However, the trend suggests that the tide of history is in favour of reform and that the legal position will be different in 10 years time”. No steps to implementing the Carswell report recommendations will be taken until after Jersey’s October general election; it is on the cards that the new States of Jersey assembly will reject them.

So the office of Bailiff continues in the Channel Islands. There is a twist in the tail. Sir Philip Bailhache, who for almost 20 years held successively the posts of Solicitor General, Attorney General, Deputy Bailiff and Bailiff stepped down from office in 2009, when he was appointed as a Commissioner and continued to sit part-time in the Royal Court. In July 2011 he resigned from the bench – in order to stand in the October 2011 election for one of the four vacant senatorial seats. His platform is constitutional reform, though not to the office of Bailiff. While in other jurisdictions moves from judicial bench to elected office are not the norm, in Jersey there are precedents. The island’s magistrate resigned and was elected to the States in 2008 and is currently the Home Affairs Minister. And in 1993, Vernon Tomes topped the polls and was elected to the legislature a year after he was dismissed as Deputy Bailiff by the UK Home Secretary.

The interface between law and politics in the islands is far more subtle, complex and interesting than a casual reader of the McGonnell judgment might imagine.

 Andrew Le Sueur is director of studies at the Institute of Law, Jersey and professor of public law at Queen Mary, University of London.

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Patrick O’Brien: Judicial Independence and the Irish Referendum on Judicial Pay

If all goes to plan, this week the wording of a new amendment to the Irish Constitution will be finalised. The amendment is designed to permit reductions to the pay of judges and will be voted on in a referendum on 27th October. The reason for the amendment is well known: the Irish government has no money. In the midst of a general financial crisis, the pay of other state employees has been significantly reduced through levies. Thus far judges have been exempt because of Article 35.5 of the Constitution, which is unambiguous: ‘The remuneration of a judge shall not be reduced during his continuance in office.’ The exemption of judges from a general pay cut was never going to be politically palatable and so a halfway house solution was arrived at two years ago a scheme was set up whereby judges could voluntarily forego a portion of their salary in line with the cuts to salaries of other public servants. Uptake of this scheme was, not surprisingly, quite slow although by January of this year a significant majority (125 out of 147 judges had signed up to the scheme. When it came into office earlier this year, the new government promised to proceed with a referendum to facilitate formal reductions to judges’ pay. This pledge was popular and the amendment is virtually certain to be approved in the referendum.

The core of the new provision (assuming no further amendments) will be Article 35.5.3:

“Where, before or after the enactment into law of this section, reductions have been or are made by law to the remuneration of persons belonging to classes of persons whose remuneration is paid out of public money and such law states that those reductions are in the public interest, provision may also be made by law to make reductions to the remuneration of judges.”

If passed, the government proposes to reduce the salary of senior judges by 31%. The judiciary are, by all accounts, unhappy about this proposal and let this be known by a memorandum released in July (much to the annoyance of the Minister for Justice, who insisted that it be removed from the Court Service website – an interesting incident for what it suggests about relations between politicians and judges). The judges’ document, available here:, was at pains to point out that the judges did not oppose a pay cut as such, but pointed (amongst other things) to the threat to judicial independence created by the possibility of a reduction to judicial pay.

From the way the new Article 35.5.3 is constructed we can surmise that the drafters are trying to manage a difficult juggling act. They want on the one hand to achieve a legitimate mechanism by which reductions in judicial remuneration may be achieved. On the other hand, they want to avoid the challenge to judicial independence that arises if judges’ remuneration can be used as a means of influencing their decision-making. This is a sensible way to approach the problem. If judicial independence is about anything at its core, it is about protecting judges from the kind of very personal worries – around personal pay and conditions, threats to the person and to family, etc – that might create a risk that they would be afraid to make unpopular decisions.

The drafters’ chosen solution is that a reduction in judicial pay must be coupled to a reduction in public sector pay more generally done ‘in the public interest’. Unfortunately because the wording of Article 35.5.3 is rather loose it is not clear that this is what it actually does. The phrase ‘persons belonging to classes of persons whose remuneration is paid out of public money’ seems unnecessarily vague and obtuse. It could mean almost anything. The putative ‘public interest’ test is also too vague. One would hope that most actions taken by the state should be done in the public interest, but the ‘public interest’ concerns that apply to reducing the pay of a civil servant, for example, are not likely to be the same kind of public interest concerns that apply to a judge. Yet as the wording stands it seems that it is the former standard that must be engaged when reducing the pay of judges.

What else could have been done? Three suggestions:

  1. Nothing. In the O’Byrne case ([1959] IR 1) the Supreme Court applied a purposive interpretation to the meaning of Article 35.5, concluding that a requirement that judges pay income tax was not an attack on judicial independence. It might have been something of a stretch for a court that has become more literalist in recent decades, but it could reasonably be argued that a general reduction in the pay of everyone (not just judges) in emergency conditions is not a reduction to the pay of a judge for the purposes of Article 35.5.
  2. A ‘One-Shot’ amendment. The amendment could simply provide for a once-off reduction to judicial pay, leaving the existing Article 35.5 in place.
  3. Just Word it Better. Why not simply state that judges are not exempt from general pay cuts affecting all public servants but nor may they be specially selected for pay cuts, either individidually or as a group? Why not create an independent means for determining what judicial pay should be?

As it stands, the amendment is a classic example of hard cases making bad law. The new Article 35.5 closely addresses a very specific situation but has uncertain application outside of it. It is a shame that a threat to judicial independence in Ireland, even a minor one, should be created just because of bad drafting.

Patrick O’Brien is a Research Associate at the Constitution Unit, University College London. 


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Colm O’Cinneide: Equality: A Constitutional Principle?

In 1994, Jeffrey Jowell published a paper in that year’s volume of Current Legal Problems entitled ‘Is Equality a Constitutional Principle?’ ((1994) 7 Current Legal Problems 1). The question mark in the title was significant. It indicated that the status of equality in UK public law was very much open to question. Seventeen years on, it is worth revisiting this issue. Can equality now be described as a ‘constitutional principle’? If so, what legal weight is attached to the idea of equality? Does UK public law provide effective protection against inequality, in particular discrimination based on ‘suspect grounds’ such as race or sex?

It is clear that equality constitutes a core value of the UK constitutional order, just as it is for every other democratic state. As Baroness Hale pithily put it in Ghaidan v Godin-Mendoza [2004] UKHL 30, [132], ‘democracy is founded on the principle that each individual has equal value’. The rule of law is based on a similar assumption that individuals should enjoy equality of status. The entire constitutional structure of the UK is thus predicated on respect for the formal equality of citizens, even if women and ethnic, religious and other minorities have in practice been subject to serious discrimination.

However, despite its central importance within the UK’s constitutional scheme of values, equality has been accorded what is at best an uncertain and ambiguous status in common law adjudication. For decades, it was unclear whether discriminatory behaviour by public authorities could constitute grounds for successful judicial review. Furthermore, courts often gave a narrow interpretation to anti-discrimination legislation, on the basis that it carved out exceptions to established common law principles such as freedom of contract and association.

Nevertheless, increased social acceptance of the need for strong legal protection against discrimination began to shift attitudes, and public law doctrine began to evolve in response. Jowell’s 1994 article argued that it was possible to read a series of judicial review decisions dating back to Kruse v Johnson [1898] 2 QB 91 as establishing the existence of a ‘common law principle of equality’ which constituted part of the wider public law doctrine of rationality and prohibited unequal treatment based on ‘distinctions which were not properly justified’ or which ‘ultimately [force] the citizen to relinquish her or his sense of equal worth’. Subsequent judicial dicta gave some qualified support to this argument: see for example Lord Hoffmann’s comments in Matadeen v Pointu [1999] 1 AC 98 at [8]. In Gurung v Ministry of Defence [2002] EWHC 2463 (Admin), McCombe J. concluded that unjustifiable distinctions based on racial or ethnic distinctions would be ‘irrational and inconsistent with the principle of equality that is the cornerstone of our law’ and held that the exclusion of Gurkha soldiers from the scheme of compensation payments awarded to former Japanese prisoners of war was irrational. Blake J. in R (Limbu) v Secretary of State for the Home Department [2008] EWHC 2261 (Admin) similarly was of the view that this ‘common law principle [of equality] is an important instrument whereby it can be determined whether a discretionary public law decision is rational’.

However, the status and exact content of this equality principle remains uncertain. Lord Hoffmann in Matadeen expressed concern about its ‘banality’, while it remains unclear what if anything it adds to the existing case-law on irrationality. It appears as if decisions based on clearly discriminatory criteria will fall foul of rationality review. Beyond that, it seems to add little to existing public law controls on the behaviour of public authorities. Jowell’s argument that the equality principle could be extended to cover situations where a denial of dignity, respect or ‘equal worth’ was at issue appears not to have been taken up by the courts.

The status of equality as a common law principle thus remains qualified at best. However, the gap this has left in public law regulation has to a large extent been filled by legislation. The Equality Act 2010 in codifying a complex set of anti-discrimination enactments dated back to 1964 prohibits public authorities discriminating in the performance of their public functions, unless specifically authorised to do so by primary legislation. This is backed up by the requirements of the EU equality directives and the jurisprudence of the European Court of Justice, which obviously take precedence over UK primary legislation within their field of application.

Furthermore, the 2010 Act also imposes a general positive duty on public authorities to give ‘due regard’ to the need to eliminate discrimination and promote equality of opportunity in how they perform their functions. This duty has been interpreted by the courts as essentially procedural in nature, but has had some effect in cases such as R (Kaur) v London Borough of Ealing [2008] EWHC 2062 (Admin) in steering how public authorities engage with issues of equality and discrimination.

Furthermore, Article 14 of the ECHR as incorporated into UK law by the Human Rights Act 1998 prohibits public authorities discriminating against individuals ‘in the enjoyment of their Convention rights’. This is a famously circumscribed right: it only comes into play when where the facts in question fall within the ‘ambit’ of one or more of the other ECHR rights. Furthermore, interesting differences in approach appear to exist between how the UK courts and the European Court of Human Rights apply Article 14. UK courts have tended to adopt a narrow interpretation of what comes within the ‘ambit’ of other Convention rights and apply a light touch review in Article 14 cases except where ‘suspect’ grounds of discrimination such as race, sex and sexual orientation are at issue: the key decision in this respect remains that of the House of Lords in R (Carson) v Secretary of State for Work and Pensions [2006] 1 AC 173. In contrast, the Strasbourg Court has adopted a wider approach to the ‘ambit’ question and also engages in a more interventionist form of review: in particular, it is more willing to apply Article 14 to a wider range of status-based discrimination. The difference can be striking, as for example illustrated by the recent decision in Clift v UK, Application no. 7205/07, Decision of 13 July 2010 where the Strasbourg Court adopted a very different approach to that of the House of Lords in the same case.

Nevertheless, despite its inherent limitations and these contrasting judicial approaches, Article 14 has come to serve as a general legal guarantee of equal treatment. If the UK were to sign and ratify Protocol 12 to the Convention, it would incorporate a freestanding equality guarantee similar to the US Equal Protection Clause or Article 3 of the German Basic Law into its legal system. This would widen protection against discrimination still further: however, for now, it remains unclear as to what this would add to the existing requirements of Article 14 taken together with domestic and EU anti-discrimination legislation.

Individuals are therefore protected against discrimination in UK law through a combination of overlapping legislative, human rights and common law standards. Added together, they provide a set of legal guarantees of equal treatment which is broadly comparable in outline to that offered in other European and North American jurisdictions. However, the protection offered under many of these legal provisions remains patchy or uncertain. Furthermore, where this protection is best developed, it is usually the result of legislative intervention or the jurisprudence of the European courts. The ‘home-grown’ common law standards remain relatively underdeveloped. As such, it may be premature to speak of equality as constituting a well-established ‘constitutional principle’: rather, it is better to describe it as an important democratic value that is protected by a complex web of overlapping European and domestic legal standards, but whose scope and content remain very much open to debate.

Colm O’Cinneide is a Reader in Law at University College London.  


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Stuart Lakin: I’m Afraid That There’s Just No Escaping it: Public lawyers Must Also Be Legal And Political Theorists.

Many of the public lawyers who visit this blog will have been fed on a very strict diet during their public law studies.   For some, just about every meal will have consisted of Dicey’s theory of Parliamentary sovereignty and the ultra vires theory of judicial review (with the odd acidic mouthful of some heretical challenges to those theories); for others (the lucky ones) those same base ingredients might occasionally have been seasoned with a sprinkling of Jennings, Wade and even Blackstone.    Public law – much like land law or contract law – was served up as a body of reasonably clear and well-ordered rules to be ‘read and inwardly digested’.  (There ends the over-stretched gastronomic metaphor).

No doubt I exaggerate, but the public law scholarship in universities and journals today certainly seems to have moved a long way from the rather arid scholarship of yesteryear.   The dominant themes are now human rights, democracy, dialogue, deference, pluralism, constitutionalism, republicanism and so on.  Dicey et al have of course not been forgotten, but their work must now seen against this backdrop.     To put this point differently, Dicey’s theory is no longer the unquestionable orthodoxy in the public law discourse; it is just one (contentious) theory among many about how we should understand the British constitution.

I want to use this short paper to say something about the significance of the shift in public law (by which I mean constitutional and administrative law) thinking just described.     My title gives the game away.   My argument is that the public lawyer – whether judge, lawyer, academic or student – must now be be a fully signed-up legal and political (and perhaps even moral) theorist.    It is no longer an option – in fact it really never was an option – to say “oh, I don’t do theory” or “I only do doctrinal public law”.     Whether we like it or not, every view we hold about public law presupposes a theory about the nature or point of law and political authority.   The modern public law discourse demands that we spell out our different theoretical commitments.

Let me first explain my argument in a fairly abstract and general way.   I’ll then work through a few prominent areas of public law in order to illustrate my point.

Public lawyers are interested in questions about the relationship between the state and the individual (and the relationship between different branches of the state).    As lawyers, our focus tends to be on courts.   We ask whether courts do or should give effect, say, to the intentions of Parliament and/or common law principles and/or constitutional rights/principles and/or general principles or morality, efficiency, diplomacy or whatever.    Very often we disagree deeply about the answer to this type of question.    Two theorists might offer radically different interpretations of the same judgment/statute or set of judgments/statutes.   Indeed, this is standard fare of judges and practising lawyers.

On the surface, these types of disagreements are nothing more than the lawyer’s bag of tricks: a range of strategies for securing the desired result in a legal dispute; worse still, they are seen as abstract, conceptual disagreements about what judges really do.   But dig a bit deeper and one finds a complete philosophy of law and the state buried beneath these different positions.   Let’s take a short example.   A theorist who contends that judges should give effect to constitutional rights/principles might be committed (whether explicitly or implicitly) to a variety of different legal and political theories.   They might hold, the extreme natural law view that law is identical to the principles of ideal justice, and that the state may only exercise power in accordance with those principles; or they may hold a more mainstream natural law theory that positive law should aspire to, and be evaluated against, certain fundamental goods/principles, and that the state exists to further such goods/principles; or they may support a ‘soft’ version of legal positivism that moral content may be incorporated into positive law, and that the state exists to promote co-ordination and certainty; or they may support a ‘hard’ version of legal positivism that judges may have a legal duty to apply moral principles, and that the state functions to provide authoritative guidance to individuals.

Whichever theory one adopts – and however one understands that theory – there is no escaping the fact that some such theory must underpin our views on public law (and every other area of law for that matter).     In that case, a full defence of our public law views must involve a defence of our preferred theoretical position against other theoretical positions.    At this point, the public lawyer might have to confront an additional layer of philosophical complexity.    As soon as we start talking about one theory being better than another, or a public lawyer preferring one theory to another, there is bound to be a loud chorus of disapproval from the moral subjectivists among us (“there is no right answer to questions about law and the constitution; it’s all about personal opinion” or “what gives you the right to say that your constitutional theory is better than mine?”)    Suffice it so say for present purposes that the subjectivists may be correct (if being ‘correct‘ is permitted!), but their view is not ‘correct’ by default.   Subjectivists, like objectivists, have to offer a positive defence of their theoretical view of truth – along with a positive defence of their substantive views about public law.

I do hope that I haven’t managed to put anyone off public law with the above.   My aim, it should be emphasised, is not to convert law degrees into philosophy degrees, or law journals into philosophy journals.   It is the more modest aim to get judges, lawyers, academics and students thinking more directly about the theorists and theories that shape their views about public law.    If nothing else, a more philosophically enriched public law world is a more interesting world.  If I have managed to carry any of you with me to this far, then it may help to offer a few illustrations of the (inextricable) links between public law, legal theory and political theory.

Parliamentary sovereignty (PS)

Is Parliament sovereign?    It obviously isn’t enough to answer “yes, because Dicey said so”.    What types of theories count in favour of, and against the sovereignty doctrine?   Some public lawyers seem to derive PS from the work of John Austin and Hans Kelsen: there must be an ultimate source of law at the apex of the legal system.   Other public lawyers argue that PS is the Hartian ‘rule of recognition’ in the UK: it is the standard that most officials accept.  Others might argue that Parliament is the Hobbesean Leviathan.   Others argue that PS is false because Austin, Kelsen and Hart were all wrong.   They were wrong a) because the powers of Parliament must be justified by a range of legal rights and principles; or b) because Parliament is just one of a plurality of different – and equally authoritative – sources of law.

Is Parliament sovereign?   It depends…

The Rule of Law (RoL)

What does the RoL mean?  Is the RoL a formal or substantive principle?    It isn’t sufficient to opt for a the latter conception on the (spurious) basis that substantive theorists champion human rights where formal theorists sanction lawful tyranny.    The overwhelming majority of RoL theorists of all persuasions believe that individuals have certain moral rights.  The RoL debate is about a) whether some or all of those rights are legal rights; and b) whether or when judges are under a duty to give effect to those legal/moral rights.    That takes us into jurisprudential debates about the function of law (and the role of judges).     If it is argued that the point of law is to enable co-ordination, certainty, predictability and protected expectations, then it follows that laws needs to be readily identifiable, accessible, clear and so forth (as formal theorists maintain).   If, on the other hand, one argues that the point of law is, say, to create the conditions of equal treatment, then it follows that law needs to be infused with principles of fairness and justice (as substantive theorists maintain).      Public lawyers need to nail their colours to one or other mast, and explain why they have done so (or they might just deny that there are two masts!).

What does the RoL mean?  Is the RoL a formal or substantive principle?  It depends…

Judicial Deference

Do judges defer to the opinion of officials (on the grounds, say, of institutional expertise or democratic legitimacy) in public law adjudication?      Most theorists would agree that there must be a division of labour between different branches of government.   The deference debate concerns whether that division of labour is governed by law or by an autonomous extra-legal doctrine of deference.   In other words, when a judge gives special weight to the view of a minister or other official, is the judge giving effect to a legal duty, or is the judge disregarding the law in favour of a competing value (say, of institutional comity?)     These questions take us once again into jurisprudential debates about the point of law and the role of judges.   If it is argued that there are correct answers to most or all questions of law, and that judges are ordinarily under duty to give effect to the law, then the idea of deference is nothing more than the set of legal principles that determine the powers of institutions (a legal principle of the separation of powers if you like).   If, on the other hand, it is thought that it is a contingent matter whether judges have a duty to give effect to the law (as opposed to some other value), then there may well be space for an autonomous , extra-legal, doctrine of judicial deference.

Do judges defer to the opinion of officials (on the grounds of, say, institutional expertise or democratic legitimacy) in public law adjudication?   It depends…

Some Closing Thoughts

I shall not try to extend, repeat or summarise my argument above.   Instead, I’ll just recommend a couple of articles that make my argument far better than I have made it myself.    First, the famous article by Lon Fuller (Fuller, Lon L. (1949) “The Case of the Speluncean Explorers” 62:4 Harvard Law Review, pp. 616-45).  For those of you who are unfamiliar with this article, it offers a very engaging and witty account of how different judges conceive of law and adjudication differently.   More, recently, I would recommend Paul Craig’s excellent article ‘Public law, political theory and legal theory’ [2000] PL 211-39 at 217-222.   Craig suggests that theoretical arguments have sometimes been eclipsed by descriptive arguments in the past.   He suggests that public law should emphatically be about the former type of argument.

Finally, I recommend that you all read the complete works of Kant, Dworkin, Raz, Hart, Fuller, Finnis and all the other greats before you open another public law judgment!!!

Stuart Lakin is a Lecturer in Law at the University of Reading



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Next UKCLG meeting: 12 October on Parliamentary Privilege

There is a joint event between the Study of Parliament Group and UK Constitutional Law Group 

on Parliamentary Privilege

Wednesday 12 October 2011 at 6 pm

Committee Room 17, House of Commons

The event is sponsored by Sir Alan Beith MP, Chairman of the Justice Select Committee
Confirmed speakers: Anthony Bradley, David Howarth and Nigel Pleming QC

RSVP. UKCLG  members who wish to attend are asked to contact Sebastian Payne to book a place Spaces are limited and will be allocated on a first come, first served basis. Attendees without a House of Commons pass are asked to arrive in good time, as there may be queues at security. There will be a  reception after the seminar.

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Filed under Events, UK Parliament