Monthly Archives: November 2011

Gordon Anthony: Axa – A view from Northern Ireland

It is a little over 6 weeks since the Supreme Court delivered its long-awaited ruling in Axa General Insurance v Lord Advocate [2011] UKSC 46. Although the ruling was of primary importance to Scottish law – see, for instance, its liberalisation of the rules on title and interest/standing – the challenge to the Damages (Asbestos-related Conditions) (Scotland) Act 2009 that had been enacted in the face of Rothwell ([2007] UKHL 39) was of considerable interest in Northern Ireland too. This was not just because the Northern Ireland Assembly had enacted parallel legislation in 2011, but also because it was expected that the Supreme Court would address complex constitutional questions about the nature of the powers of the three devolved legislatures. When it finally did so, the Court made clear that the devolved legislatures are not legally sovereign but that they are, nevertheless, democratically legitimated bodies that will attract only very limited judicial scrutiny outside the terms of their constitutive Acts.

The central issue in the case was whether the Damages (Asbestos-related Conditions) (Scotland) Act 2009 was ultra vires section 29(2)(d) of the Scotland Act 1998  by reason of being a disproportionate interference with the Article 1 Protocol 1 ECHR rights of the appellant insurance companies. The appellants’ submissions on this point failed because the Supreme Court was of the view that the legislation had been introduced to remedy a social injustice and because, in those circumstances, a court should interfere with the “public interest” choice of a legislature only where the choice is “manifestly unreasonable”. This, in turn, might have been dispositive of the case as it was noted that a further challenge based upon common law irrationality would inevitably fail if the Convention threshold of manifest unreasonableness could not be met (see para. 42 of Lord Hope’s judgment). However, rather than leave the matter there, the Court took the opportunity to elaborate upon the nature of the common law limitations that can apply to Acts of the Scottish Parliament. It is in that context that Axa is most relevant to Northern Ireland.

The Court developed two main points about the common law. The first was that common law irrationality does not lie as a ground for review of Acts primarily because of the constitutional nature of the Scottish Parliament. While Lords Hope and Reed emphasised that the Scottish Parliament is not legally sovereign in the sense that the Westminster Parliament is, they equally emphasised that the broader design of the Scotland Act 1998 entails that the powers of the Scottish Parliament cannot easily be compared to those of other recipients of delegated powers. Lord Hope thus said at paragraph 46 that the Scottish Parliament is a “self-standing democratically elected legislature. Its democratic mandate to make laws for the people of Scotland is beyond question”; and Lord Reed similarly noted that “(w)ithin the limits set by section 29(2) … its power to legislate is as ample as it could possibly be: there is no indication in the Scotland Act of any specific purposes which are to guide it in its law-making or of any specific matters to which it is to have regard” (para. 146). Against that background, it was thought that it would be inappropriate for unelected judges to use common law irrationality (or unreasonableness or arbitrariness) as a means to second guess the preferences of a democratically elected Parliament (albeit that Lord Mance was less absolute in his conclusions: see para. 97).

The second point was that the common law could be expected to intervene where the Scottish Parliament legislated in such a way as to threaten the rule of law as the cornerstone of the UK constitution. For Lord Hope, this was something that could occur where executive dominance of a legislature might allow a government to introduce legislation purporting to “abolish judicial review or diminish the role of the courts in protecting the interests of the individual”. Referring to Lord Hailsham’s famous words in The Dilemma of Democracy and Lord Steyn’s comments in Jackson, his Lordship noted the increasing influence of a single party in Holyrood and said that “the rule of law requires that the judges must retain the power to insist that legislation of that extreme kind is not law which the courts will recognise” (para. 51). Lord Reid likewise identified values that he thought the Scottish Parliament could not abrogate, where he took as his starting point the interpretive presumption that prohibits recipients of power from acting contrary to common law fundamental rights save where the Westminster Parliament has expressly authorised that outcome. On this basis, his Lordship said that the Scotland Act 1998 is legislation “for a liberal democracy founded on particular constitutional principles and traditions … [Westminster] cannot be taken to have intended to establish a body which was free to abrogate fundamental rights or to violate the rule of law” (para. 153).

So, what does this all mean for the Northern Ireland Assembly? Certainly, the Supreme Court’s recognition of the need for heightened caution when courts are engaged in common law review complements earlier Northern Ireland jurisprudence on the legality of Orders in Council made under the Northern Ireland Act 2000 (the Act, now repealed, applied when the Northern Ireland Assembly was suspended). Such Orders are the constitutional equivalent of Acts of the Assembly, and the Northern Ireland courts refused to become involved in review processes that would have led them to consider the underlying policy of particular Orders (see, for instance, Re Carter’s Application [2011] NIQB 15). Axa, in that sense, has provided indirect confirmation that the Northern Ireland case law was correctly decided and that the courts were right to refuse to strain democratic principle.

In contrast, the understanding that the Assembly is not legally sovereign is essentially unremarkable, largely because debate in Northern Ireland has long been concerned more with ideas of political sovereignty and the so-called “consent” principle that underpins the Belfast Agreement of 1998.  According to that principle – which finds legal expression in section 1 of the Northern Ireland Act 1998 – Northern Ireland is to remain as a part of the UK for so long as a majority of its electorate wishes it do so. However, while that situates the Northern Ireland Assembly within the UK’s constitutional structures, section 1 also provides that the Westminster Parliament will legislate to give effect to a majority electoral decision that Northern Ireland should cease to be a part of the UK and should form part of a United Ireland (see, too, Article 3 of the Irish Constitution, 1937). The Northern Ireland Act 1998 has therefore never really been regarded as something that can/should sustain a legally sovereign legislature, even if the Act has been described as a “constitutional statute” (see Robinson v Secretary of State for Northern Ireland [2002] UKHL 32). It has instead been viewed as an Act that accommodates a delicate political accord that may later place Northern Ireland in a different sovereign setting altogether.

More complex is the position in respect of executive dominance and fundamental rights. Taking first the peril of executive dominance, the Northern Ireland Assembly is already characterised by such dominance given the consociational model of governance that defines the Belfast Agreement and Part III of the Northern Ireland Act 1998. That said, such dominance is several steps removed from the kind that concerned Lords Hailsham and Steyn, as the Northern Ireland Executive presently comprises Ministers from five political parties who must work together within a framework of elaborate checks and balances (both as apply to the Executive and within the Assembly). While it is, of course, theoretically possible that the Executive could pilot legislation that would seek to abolish judicial review, this would require a level of political co-operation on a controversial issue that would escape all previous experience in Northern Ireland, not to mention the checks and balances. To return to Lord Hope’s observation about the increasing influence of a single party in Holyrood, the absence of any related dynamic in the Northern Ireland Assembly perhaps limits the reach of his point about executive dominance. Indeed, it might even be said that legislation to abolish judicial review in Northern Ireland could be enacted only in the highly improbable circumstance that almost all parties to government simultaneously opted to jettison the rule of law.

Lord Reed’s comments on fundamental rights do, however, have a more immediate resonance in Northern Ireland, as the Robinson case had earlier established the importance of interpreting the devolution Acts in the light of the values that they embody (Robinson was concerned the interpretation of provisions on the election of the First and Deputy First Ministers: Lord Reed referred to the case at para. 153). So will this lead to the development of a more nuanced body of case law on the values of democracy, equality and rights that are generally said to inform devolution in Northern Ireland? Probably not, as the fuller thrust of Axa points away from ready judicial engagement with the legislative choices of the Assembly save to the extent that they are argued to contravene section 6(2)(c) of the Northern Ireland Act 1998 (the equivalent provision of section 29(2)(d) of the Scotland Act 1998). That said, ongoing political debate about the future of the Human Rights Act 1998 does suggest, at its most extreme, that the Act might be repealed and replaced with one or more of a number of Bills of Rights. In that event, sections 6(2)(c) and 29(2)(d) would become redundant on their current terms and they would have to amended to accommodate any new rights reality. Should that reality leave constitutional gaps, Axa’s potential for common law intervention might quickly be realised.

 

Gordon Anthony is Professor of Public Law at Queen’s University Belfast

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Phil Larkin and Alexander Horne: report on October’s parliamentary privilege seminar

A seminar on parliamentary privilege, held jointly by the Study of Parliament Group and the UK Constitutional Law Group, took place in Parliament on 12 October, with talks given by three noted authorities: David Howarth (Department of Law, University of Cambridge, and former MP), Anthony Bradley QC (Emeritus Professor of Law, Edinburgh), and Nigel Pleming QC. The session was chaired by Sebastian Payne of the UK Constitutional Law Group and was kindly sponsored by Sir Alan Beith MP, the Chairman of the Justice Select Committee. The talks focussed on the place of parliamentary privilege in recent controversies, including the prosecution of MPs for fraudulent expenses claims and the arrest of Damian Green MP in 2008.

David Howarth spoke on the case of R v Chaytor, which saw three former MPs, including David Chaytor, prosecuted for false expenses claims. As a preliminary issue, the defendants claimed that the criminal proceedings were inappropriate as the expenses system was covered by parliamentary privilege. Parliamentary privilege, Howarth argued, had three different meanings: contempt of Parliament; the sphere of Parliament’s exclusive cognisance or jurisdiction; and Parliamentarians’ statutory immunities. In terms of contempt of Parliament, the purpose of privilege is to protect the House from matters that might obstruct it in the performance of its functions or damages its authority (set out in chapter eight of Erskine May) and it protects parliamentarians from undue outside pressure. The purpose of privilege (in terms of Parliament’s jurisdiction) is to safeguard its operations from incursion by the courts in areas where they are not qualified or democratically authorised to judge upon (this raises the question of who is authorised to speak for the House: in the Chaytor case, the “view of the House” was taken as, at various points, the Speaker, the Clerk, the Standards and Privileges Committee or vague references to “House authorities”). The purpose of privilege as statutory immunity is as set out in article 9 of the Bill of Rights and cannot be waived by the House. In David Howarth’s opinion, the Supreme Court concentrated on the final component of privilege without sufficient regard for the other two. In particular, he suggested that there had been an incursion by the Court into the scope of Parliament’s exclusive jurisdiction with its claims that pay and expenses were not a matter that was in the exclusive cognisance of the House. In support of its view, the Supreme Court made reference to the absence of a view from Parliament itself that the expenses system was within its exclusive jurisdiction. In Mr Howarth’s view, this exploited Parliament’s lack of political capital in the face of the widespread anger the case generated to make a grab for jurisdictional territory. He said, “a constitutionally literate Crown team would have referred the matter to the House for a decision”. This would not necessarily have got the Members off the hook, but Parliament could have (explicitly) formed the view that this was a matter that ought to have been dealt with through the criminal courts.

Anthony Bradley QC spoke on the Damian Green affair, which raised questions about the interface between parliamentary privilege and the criminal law that were not before the Supreme Court in the Chaytor case. In 2008, Mr Damian Green MP, then Shadow Immigration Minister, was arrested over leaks of official Home Office material highlighting shortcomings in existing immigration policy. Police raided Green’s office on the parliamentary estate, having been admitted by the then Serjeant at Arms. Professor Bradley commended the excellent account of the whole affair given in the report by the Menzies Campbell committee. He said that the affair was too serious to be regarded as a “comedy of errors” and noted some ambiguities in the way the Police and Criminal Evidence Act 1984 (PACE) related to Parliament and material which might be subject to privilege. It seemed that the police were far from clear about the scope of parliamentary privilege in this case, and it was now accepted that errors had been made by the Cabinet Office, the police, the Serjeant at Arms (who admitted the police to the Parliamentary estate and permitted the search of Green’s office), the Clerk of the House, and Speaker Michael Martin. Bradley argued that there remain serious doubts about the extent to which warrants under PACE apply on the Parliamentary estate. Ultimately, he contended, there is a worrying lack of clarity surrounding the Speaker’s jurisdiction and authority, despite the Speaker’s protocol of 8 December 2008. He suggested that legislation should be considered to clarify the situation. He commented that in most of Europe elected representatives receive some degree of protection from the criminal law – the UK would not for a moment wish to confer a general immunity from the criminal law, but we could well consider, for example, provisions in the German Basic Law that make clear the authority of the President of the Bundestag and give protection to members regarding information and documents given in confidence to them in their capacity as members of the Bundestag.

Nigel Pleming QC also reviewed the Chaytor case. It was, he said, “regrettable” that the voice of Parliament was absent in the matter. Article 9 of the Bill of Rights states that “That the freedom of speech and debates or proceedings in parliament ought not to be impeached or questioned in any court or place out of parliament”. Yet should the “proceedings” of Parliament be taken to include more general business as well as proceedings in the chamber? The Register of Members’ Interests, for example? Decisions of the Speaker? Or claims to the Fees Office? The case advanced on behalf of the MPs was that the pay and allowances scheme was entirely a creation of the respective Houses of Parliament and, on that basis, a fraudulent expenses claim would constitute (and should be treated as a case of) lying to the House, made in the course of proceedings in Parliament.

All three speakers were agreed that the scope of parliamentary privilege and authority of its scope is unclear at the moment. But all were uneasy with the decision and justification in the Chaytor case, which had failed to deal properly with the intent and spirit of parliamentary privilege.

Dr Phil Larkin and Alexander Horne

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Stephen Tierney: The Scotland Bill before the Scottish Parliament

The Scotland Bill, which intends to implement the Calman Committee report , is currently before the Scottish Parliament for consideration under the Sewel convention. It is being assessed by a specially convened Committee of the Parliament which is considering whether or not Holyrood should give another Legislative Consent Motion.

The Bill completed its Committee stage in the House of Commons on 15 March 2011 and its Report and third reading stages by 21 June. The engagement of the Scottish Parliament comes before the House of Lords addresses the Bill. In the Lords it will be possible to table further amendments, some of which may well result from the current Scottish parliamentary process.

The convention issue is an interesting one. The Sewel Convention of course that requires that any change to the devolved powers of the Scottish Parliament or the Scottish Government should ordinarily pass through Westminster only once the consent of the Scottish Parliament has been obtained. The first thing to note is that the Scottish Parliament’s Scotland Bill Committee is now in its second incarnation. The Bill was published on 30 November 2010 by the coalition Government. The Committee was first established on 7 December 2010 and considered the Bill during the term of the last Scottish Parliament when it was chaired by Labour’s Wendy Alexander. This committee reported in March 2011 and based on this report the Scottish Parliament then agreed to pass a ‘Legislative Consent Motion’, ‘supporting the general principles’ of the Bill but inviting the UK Government and the UK Parliament to consider amendments and proposals contained in the report of the Scotland Bill Committee. It also asked to see any amendments made to the Bill with a view to debating them in a further legislative consent motion before the Bill was passed for Royal Assent. This was interesting because it introduced the idea of a qualified LCM.

Following the May 2011 Scottish parliamentary election and the return of an overall SNP majority the committee was reconstituted with a very different composition and the new Committee is reconsidering the whole issue of whether or not to give another LCM. In his speech to the Scottish Parliament on 18 May 2011, the First Minister, Alex Salmond MSP, called for ‘improvements’ to the Bill. He specifically outlined six areas for further improvement: borrowing powers, corporation tax, the Crown Estate, excise duties, digital broadcasting and a stronger say in European policy. On 13 June 2011, the UK Government announced proposals to amend the Scotland Bill, and it is with a complex mix of the published Bill, plus additional provisions proposed both from Whitehall and the Scottish Government that the Committee is concerned.

The Committee is coming to the end of its deliberations and intends to report in December 2011. The main focus of public interest in the Bill is on tax and borrowing powers, but there are also a number of constitutional matters that lawyers might want to look out for.

Highlights include:

Clause 15 which will rename the Scottish Executive as the Scottish Government. This has become the commonly used term and the provision will formalise this change. The ‘Scottish Government’ was a title adopted by the Scottish Labour. The Bill accepts that the new usage has become so established that it needs to be recognised in law.

Clauses 4 and 5 will enable the Scottish Parliament to decide respectively on the number of deputy presiding officers and how to constitute the Scottish Parliament Corporate Body. These are intended to make the workings of the Parliament run more smoothly; as such they are uncontroversial.

Clause 6 proposes to amend Section 31(1) of the Scotland Act to extend the duty to anyone introducing a bill within the Scottish Parliament to certify that the bill is within competence. This duty presently only applies to ministers. In other words, a statement roughly equivalent to a s19 statement under the Human Rights Act will now be required even of backbench MSPs introducing a Bill into Holyrood.

Clause 7 aims to provide the  Secretary of State for Scotland with the power to refer only particular provisions within bills rather than the entire Bill (as present under section 33 of the Scotland Act 1998) to the Supreme Court prior to Royal Assent. This would allow the other provisions in the Bill to come into force.

Clause 10 will amend section 30 of the Scotland Act to allow changes to the catalogue of reserved matters in Schedules 4 and 5 by Order in Council as necessary or appropriate. In effect this will allow these powers to be changed temporarily. At the moment extensions of powers cannot be limited in time. This issue arose from the Somerville case which led to a speedy amendment of the Scotland Act to see off some of the possible consequences of that case.

Clause 16 again builds upon Somerville and the Convention Rights Proceedings (Amendment) (Scotland) Act 2009 passed subsequent to this. The idea is that there should be consistency between the time bar period for devolution issues under the Scotland Act and the time bar period under the Human Rights Act 1998.

Clause 23 proposes to extend further powers to UK Ministers to implement international obligations. It provides that a regulation made by UK Ministers, implementing an international obligation, can have effect throughout the UK, irrespective of whether or not it deals with matters which are within devolved competence.

Clause 17 is a recently introduced measure which will do two things. First it will amend section 57(3) of the 1998 Act so that acts or failures to act of the Lord Advocate in prosecuting any offence, or as head of the system of criminal prosecutions in Scotland, are not rendered ultra vires by virtue of section 57(2) of the 1998 Act. This is in line with the recommendations of various reviews of how the existing law has led to countless legal challenges against the Lord Advocate for any defects in the criminal justice system.

Second, Clause 17 addresses the important and controversial issue of appeals to the Supreme Court from the High Court of Justiciary, Scotland’s highest criminal court. Traditionally there has been no right of appeal in Scots criminal matters to the Judicial Committee of the House of Lords or the Supreme Court. The Scotland Act complicates this of course since ‘devolution issues’ arising even in criminal cases are able to go to the Supreme Court, as they were the JCPC. The Bill proposes to introduce a fairly wide ranging right of appeal. The Lord Advocate has responded on behalf of the Scottish Government with a more limited right of appeal based upon the McCluskey report which considered this matter; this seeks to confine appeals to constitutional issues and would require the ‘certification’ of the High Court of Justiciary that the matter is of ‘general public importance’.

We await to see if a compromise on this and other matters can be reached which will lead to the Committee, or at least a majority of its members, recommending that the Parliament pass a Legislative Consent Motion – even of a qualified nature.

Stephen Tierney is Professor of Constitutional Theory at the University of Edinburgh and constitutional adviser to the Scottish Parliament Committee on the Scotland Bill. 

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Derek O’Brien and Se-shauna Wheatle: The Commonwealth Caribbean and the Uses and Abuses of Comparative Constitutional Law

The practice of judges engaging in a transnational judicial conversation about constitutional rights, by referring to the judgments of international human rights courts and other constitutional courts when interpreting their own domestic Bills of Rights, has been commented upon in detail by comparative constitutional law scholars, such as Christopher McCrudden and Anne-Marie Slaughter[1]. It still remains, however, a highly contested practice. Supporters of this practice, such as Vicki Jackson, argue that such transnational judicial conversations enhance understandings of core concepts, such as equality and human dignity, while critics, such as Justice Antonin Scalia, complain that they aid result-oriented reasoning as judges use comparative law selectively depending upon the result that the court wishes to reach. The scope for judges in the Commonwealth Caribbean, (which term includes the judges of the Judicial Committee of the Privy Council (JCPC), and the judges of the Caribbean Court of Justice in the case of those countries that have ratified its appellate jurisdiction – Guyana, Barbados and Belize) to engage in a transnational judicial conversation when interpreting their own domestic Bill of Rights has, however, been severely restricted by the inclusion in their Independence Constitutions of general and partial savings law clauses.

General savings law clauses (which are to be found in the Constitutions of Jamaica, Trinidad and Tobago, Barbados, The Bahamas and Guyana) afford immunity from constitutional challenge to all laws that were in force at the time of Independence. It has thus been, effectively, pointless for judges in these  Commonwealth Caribbean states to invoke jurisprudential developments in international human rights law (such as Dudgeon v UK (1982) 4 EHRR 149 and Tyrer v UK (1978) 2 EHRR 1)  and other national courts (such as Lawrence v Texas 123 S. Ct. 2472 (2003))  when determining the constitutionality of pre-independence laws; including laws that provide for the death penalty for murder, judicial flogging or the criminalisation of sexual relations between men. Notwithstanding changing judicial attitudes toward such laws elsewhere, the JCPC confirmed in Boyce v The Queen [2004] UKPC 32; [2004] 3 W.L.R. 786 that when interpreting the Constitutions of the Commonwealth Caribbean judges were bound by the inclusion of general savings law clauses and could not rely on judicial developments elsewhere when determining the constitutionality of pre-independence laws.

Partial savings law clauses (which are to be found in the Constitutions of Antigua and Barbuda, Barbados, The Bahamas, Belize, Jamaica, Guyana, St. Lucia) preserve all forms of punishment that were authorised as lawful prior to independence. These clauses have been tested most frequently in cases concerning the constitutionality of the death penalty. Originally, it was thought that these clauses precluded any possible challenge to the constitutionality of the death penalty on the ground, for example, that it violated the guarantee against torture and inhuman and degrading treatment or punishment. However, in a series of judgments, beginning with its landmark decision in Pratt and Morgan v. AG (Jamaica) [1994] 2 A.C. 1 the JCPC found a way of circumventing these partial saving law clauses by insisting that their effect is confined to authorising descriptions of punishment for which the court may pass sentence.  Accordingly, they do not prevent an applicant from arguing that the circumstances in which the executive intend to carry out the sentence, including, in that case, prolonged delay, may violate the right not to be subject to inhuman or degrading treatment or punishment. In Lewis v AG Jamaica [2000] 3W.L.R. 1785 the JCPC added that in extreme circumstances account might also be taken of the conditions under which a condemned prisoner was being held in determining whether the execution of the death sentence would violate the guarantee against torture and inhuman and degrading treatment or punishment. And finally, in Queen v Hughes [2002] 2 A.C. 259, the JCPC held that a pre-independence law, which prescribed a mandatory death penalty for the offence of murder, was not saved by the partial saving laws clause in the Constitution of St Lucia on the ground that the clause only saved existing laws to the extent that such laws authorise the infliction of the death penalty: they could not save an existing law which prescribed a mandatory death penalty, since this requires the infliction of the death penalty.

In each of these cases the JCPC supported its decisions by reference to the growing body of comparative and international jurisprudence condemning, for example, delay in the carrying out the death penalty (including judgments of the Supreme Courts of Zimbabwe and India as well as the judgment of the ECtHR in Soering v UK (1989) 11 E.H.R.R. 439)andthe imposition of a mandatory death penalty for murder, which had been held to be arbitrary and inhuman by both the United State Supreme Court (Woodson v State of North Carolina 428 U.S. 280 (1976) and the Supreme Court of India (Mithu v State of Punjab [1983] 2 S.C.R. 690). These developments were, however, viewed with the utmost dismay by Commonwealth Caribbean governments and a number have, accordingly, responded by seeking to further immunise the operation of the death penalty and to prevent constitutional challenges based on judicial developments in other jurisdictions, including the above.

The first Government to act was Barbados, which, in 2002, amended its Constitution to ensure that prisoners who had been sentenced to a mandatory death penalty, who had suffered delay in the carrying out of their execution, or who were held in inhuman or degrading prison conditions, would not be able to mount a constitutional challenge on the grounds that their right not be subject to torture or inhuman or degrading treatment or punishment had been violated.[2] In 2011, the Government of Trinidad sought and narrowly failed to secure an amendment to its Constitution (Trinidad Constitution (Amendment) (Capital Offences) Bill 2011) which would have gone even further than this by additionally precluding a constitutional challenge on the ground that the warrant for the execution of the sentence of death had been read to the condemned man on more than one occasion.

Most recently, the Jamaican Government has amended its Bill of Rights by replacing it in its entirety with a new Charter of Rights and Freedoms. While the Charter seeks to expand rights protection in certain areas, it also seeks to prevent its judges from entertaining constitutional challenges to laws that authorise the death penalty for capital crimes, that criminalise consensual sexual relations between adult men, or which discriminate on the grounds of sexual orientation. With respect to the death penalty, the Joint Select Committee (JSC) which had been appointed by the Government to approve the terms of the draft Charter explicitly acknowledged the developments in other jurisdictions, such as South Africa (State v Makwanyane 1995 (6)BCLR 665 (CC)) and Tanzania (Mbushu v Republic (1995) 1 LRC 216), where their judges had been allowed to engage in an extensive discourse about the constitutionality of the death penalty, but recommended the retention of the partial savings law clause in the new Charter to ensure that this question remained outwith the jurisdiction of Jamaican judges and the judges of the JCPC, which continues to be Jamaica’s final court of appeal. The Charter also expressly precludes constitutional challenges based on delay in carrying out the death sentence or the physical conditions or arrangements under which the condemned person is detained.

As noted above, the Charter is not only concerned with the operation of the death penalty. It also seeks  to preclude the possibility of jurisprudential developments elsewhere resulting in a challenge to the constitutionality of laws that criminalise consensual sexual relations between adult men, or which discriminate on the grounds of sexual orientation. This concern is particularly relevant in light of growing international pressure repeal to anti-sodomy laws. This pressure recently appeared in the form of a report of the Commonwealth Eminent Persons group, which recommended the repeal of anti-sodomy laws in the 41 Commonwealth countries where such laws remain on the statute books. While the Jamaican Government could not have been aware of the report, since the Charter was drafted long before the publication of the report, it is clear that the Government was aware of the possibility that the Charter might conceivably be used as a ground for challenging the constitutionality of such laws. Indeed, the prescience of the Jamaican Government is amply demonstrated by the recent announcement of the Human Dignity Trust (HDT) that it plans to intervene to support a constitutional challenge to the anti-sodomy law in Belize initiated by a Belizean gay rights activist. (see a report in The Guardian). In order to foreclose the possibility of such a challenge being mounted in Jamaica the Charter includes a general saving laws clause which provides that nothing contained in or done under the authority of any law in force immediately before the commencement of the Charter, relating to, inter alia, sexual offences, shall be held to be inconsistent with or in contravention of the provisions of the Charter. Thus, on the basis that it was in force before the commencement of the Charter, section 76 of the Offences Against the Person Act which criminalises sexual activity between men appears to be immune from constitutional challenge.

Concerned also that, in the alternative, the guarantee of equality contained in section 13 (2) (i) of the Charter might provide a ground for mounting a constitutional challenge to other laws, including post-Charter laws, that discriminate on the basis of sexual orientation, the JSC expressly rejected a proposal to include the term ‘sex’ as a prohibited ground of discrimination, for fear that it might be interpreted to include sexual orientation. . Thus, the Charter instead opts for the much clumsier term, ‘being male or female.’ Finally, and for good measure, the Jamaican Government has sought to repel the potential influence of judicial developments with regard to same-sex marriage elsewhere. For example, in, Goodridge v Mass. Dept. of Health 798 N.E. 2d 941, in which the Massachusetts Supreme court legalized same sex-marriages within that state, Halpern v Ontario 65 O.R. (3d) 161, in which the Court of Appeal of Ontario held that the opposite-sex requirement for marriage in that state was unconstitutional, and Minister of Home Affairs v Fourie (2006)  (3) BCLR 355 (CC), in which the Constitutional Court of South Africa held that the exclusion of same-sex couples from the common law definition of marriage was unconstitutional. Accordingly, section 18 of the Charter provides that no law which restricts marriage as limited to one man and to one woman shall be held to be inconsistent with the Charter.

Conclusion

To paraphrase Joseph Jaconneli, the effect of the saving laws clauses of the Independence Constitutions of the Commonwealth Caribbean was to ‘crystallise’ their Bills of Rights. This may originally have been justified on the ground that in the immediate post-independence period the saving laws clauses guaranteed legal stability by ensuring that existing laws were not subject to constitutional challenge. It is, however, now nearly half a century since the first countries in the region gained independence and the retention of these saving laws clauses can no longer be justified by reference to the need for stability. Instead, it is clear from the examples of Barbados, Trinidad and Jamaica, that Commonwealth Caribbean governments are all too aware of the developments that have been taking place in international human rights law and in constitutional courts around the world, but do not want their judges to be able to rely on these developments when interpreting their own Bills of Rights.  In the case of Jamaica, which is the only country to date to undertake a wholesale review of its Bill of Rights, the Government has seized the opportunity, not for the purpose of removing the offending savings laws clauses, but instead to further insulate existing laws relating to the operation of the death penalty and sexual orientation by placing them beyond judicial scrutiny and thus beyond the reach of comparative constitutional law.

Derek O’Brien is Principal Lecturer, Law School, Oxford Brookes University.
Se-shauna Wheatle is a DPhil Candidate at Balliol College, and Lecturer in Law, Exeter College, University of Oxford.
 

[1]             Christopher McCrudden, ‘A Common Law of Human Rights: Transnational Judicial Conversations on Constitutional Rights’ (2000) 20 OJLS 499; Anne-Marie Slaughter, ‘Judicial Globalization’ (2000) 40 Va. J. Int’l L. 1103.

[2] Constitution (Amendment) Act 2002

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News: Ministry of Justice consultation on judicial appointments and diversity

The Ministry of Justice has this morning published a consultation paper “Appointments and Diversity: A Judiciary for the 21st Century” (CP19/2011). It seeks views on

  • transferring the Lord Chancellor’s decision-making powers to the Lord Chief Justice of England and Wales for appointments either below the High Court or the Court of Appeal
  • requiring the Judicial Appointments Commission of England and Wales to consult the Lord Chancellor at an early stage of senior appointments in England and Wales
  • making the Lord Chancellor part of the selection panels for the Lord Chief Justice of England and Wales and for the President of the UK Supreme Court, and making other changes to the composition of panels
  • removing the Prime Minister from the process (an entirely formal role)
  • encouraging more diverse applicants by creating part-time judicial roles in the High Court and Court of Appeal and making use of the tie-break provision in the Equality Act 2010
  • reducing the number of Judicial Appointment Commissioners.

Meanwhile, the House of Lords Constitution Committee is continuing with its inquiry into judicial appointments.

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Christine Bell: Bills of Rights and Devolution: From the Universal to the Particular.

‘To produce one Bill of rights may be regarded as a misfortune.  To produce eight, looks like carelessness’.

This blog picks up on Nicholas Barber’s blog of September 11, 2011.  There he sketched the complicated options for taking a human rights case with respect to the Human Rights Act, the European Convention on Human Rights and the European Court of Justice.  He opined: whilst one bill of rights shows caution, three suggests panic.’

In this blog I examine the complications of the similar ‘disorder of legal orders’ (to use Neil Walker’s great phrase), emerging on the domestic rights front.  A stochastic set of Bill of Rights initiatives and Human Rights Act devolution dilemmas are driving multiple processes of reform in different directions, towards a wonderfully chaotic panoply of unintended consequences.

From three to eight?

 Within the UK three Bills of Rights processes are in train, in addition to Nicholas Barber’s three.

4. A Northern Ireland Bill of Rights.  The Belfast / Good Friday Agreement provided for a bill of rights in Westminster legislation providing for ‘rights supplementary to those in the European Convention on Human Rights, to reflect the particular circumstances of Northern Ireland, drawing as appropriate on international instruments and experience.’ (See further, advice given by Northern Ireland Human Rights Commission and post by Colin Harvey earlier this year).

5. An all-Ireland Charter of Rights.  This was to be considered in a joint initiative of the Northern Irish and Republic of Ireland Human Rights Commissions as also required by the Belfast/Good Friday Agreement, and underwritten by a British-Irish Treaty, although little progress has been made.

6. A UK Bill of Rights.  As provided for by the coalition  government, a Commission has been tasked with investigating a UK Bill of Rights with terms of reference that are remarkably similar to the NI Bill of Rights process namely, to fashion ‘add-ons’ to the ECHR to form a UK Bill of Rights. (And without complicating things too much, even should this come to nothing AXA General Insurance Limited and others v The Lord Advocate and others (Scotland), [2011] UKSC 46 offers the prospect of building ‘rule of law’ judicial review which, in theory, could begin re-incorporating a range of rights were the HRA dismantled see Adam Tomkins’ blog on the case.)

7. Scottish Rights for Scotland. Regarding a seventh rights framework, we could further add the outcome of a process, one suspects still to run, in Scotland, regarding when and how rights frameworks should apply in this devolved context.  The Scottish Human Rights Commission talk of a ‘National Human Rights Action Plan’ rather than a bill of rights (and opposes a UK Bill of Rights, preferring the Human Rights Act).  Meanwhile, the Scottish government has focused serious and sustained attention on how to limit the UK Supreme Court’s HRA review of criminal cases – this jurisdiction having resulted as anomalous  by-product of the shift of Privy Council ultra vires jurisdiction to the UK Supreme Court (see Walker Report 2010, Advocate General Expert Group Report 2010, McCluskey Report 2011, and Scotland Bill).  At present proposals are limited to a new appeals mechanism involving a reference procedure for cases involving convention rights, but underlying this reform lurks continuing pressure for a distinctive Scottish human rights regime policed by Scottish courts.  Such impetus is likely to be galvanized if – as they must – UK Bill of Rights proposals require amendment of the Scotland Act 1998 (where the definition of ultra vires incorporates the Human Rights Act).  SNP rhetoric with reference to the UK Supreme Court decision of Cadder v Her Majesty’s Advocate [2010] UKSC 43 appears to lean towards mediating and limiting the direct application of European Court of Human Rights’ jurisprudence in Scotland.  However, SNP’s independence agenda suggests a more extensive rights regime to perhaps include socio-economic rights.  Scotland’s devolved governments have repeatedly taken a different path to England and Wales with regard to socio-economic issues and the recently produced independence document of the SNP talks of new constitutional rights protection for Scotland and provides socio-economic commitments with a ‘rights’ flavour, all of which have relevance to ‘independence lite/devo-max’ outcomes as well as fully blown independence.

8. Welsh rights for Wales? For number eight we must turn to Wales where it is easy to imagine that with the Welsh Parliament which has recently increased its powers, moving towards its own bill of rights (see Liberal Democrat community bill of rights proposal), or national action plan for Wales.  The equality duty in the Equality Act 2010 already has a distinctive Welsh dimension and indicates that devolved diversity in rights is already with us but where equality is concerned has managed to come in under the radar (Northern Ireland of course also having an already-differentiated equality duty, and conditioning the powers of the NI Assembly not just on the HRA but on equality).

Although I too paraphrase Oscar Wilde I should make it clear that I do not view bills of rights negatively.  However, I would view as misfortune a single UK bill of rights, which watered down the Human Rights Act and negated ten years of Bill of Rights debate and a sensible proposal in Northern Ireland.  And the UK Bill of Rights process does seem somewhat careless and unfortunate from whatever political point of view one comes from.  Seized on by the Conservative Party apparently to limit judicially protected rights, to ‘get out’ of unpopular ECHR and HRA rulings,  and perhaps even strengthen the (UK) union, the terms of reference they cobbled together in coalition contemplate extending EHCR rights and show little thought to devolution, much less any evaluation of whether a bill of rights process will be a force for unity or galvanize (already existing) commitments to devolved rights regimes.  Were I an anti-HRA/ECHR conservative I would view such this result as very careless.

Plus, it all seems a quite careless anyway.  The Commission is to consult on ‘which rights’, but not on process or enforcement; has a mandate and membership which ‘forgets’ devolution, does not mention or draw on expertise of identical devolved initiatives, and then tacks on a few devolved ‘advisors’ using a mysterious appointments process; apparently uses ‘polarized views on Bills of Rights’ as its key membership criteria; is given an almost non-existent website (buried as a section of the ‘Justice’ department); establishes a once-off time-limited written consultation process with no education dimension and little public purchase (despite lack of public ‘ownership’ being a key rationale for moving from the Human Rights Act, see  Grieve); and manifests its divisions on its first, less controversial, task of advising the government on reforms to the European Court of Human Rights, where the Commission’s official advice was supplemented/counteracted by a letter to Ministers from the Chair, both of which were then unilaterally denounced in the press by one of the members (see  UK Human Rights Blog).  Whew.

Lost in this Bill of Rights mess, it is easy to miss the quite fundamental underlying negotiations that beget and sustain the mess.  Two key negotiations in particular are worth noting.

Plural rights for constitutional pluralism, or rights hierarchy for a unitary state?

One submerged negotiation is over a unitary or pluralist conception of the UK current constitutional arrangements.  For better or worse, the UK seems to be tracked into a process of incremental constitutional reform that includes on-going negotiation of devolution, and on-going negotiation of rights frameworks and the balance between legislature and judges at both national and devolved levels.  It is unreaslistic to expect such a process to deliver order, a common rights framework, and a neat rights hierarchy from devolved regions and courts, to the ‘UK’ and the UK Supreme Court, all embraced by a ‘we the people’ consensus. The current ‘Bills of Rights’ debates are  a by-product of incremental piece-meal reform, but also expose the limitations of such a process.  It is difficult to draft ‘we the people’ documents and broker foundational political compromises as to centre v. periphery, legislatures v judges, through processes that pretend to be minor tinkering at the edges.  We are indeed a big and complex society or even constellation of societies, and we need a ‘big conversation’.

Navigating the Universal and the Particular

The second negotiation is one over where and how universal human rights are best fashioned and applied.  All efforts to implement international human rights standards into domestic law and practice involve an attempt to provide for a particular application of universal rights.  The general wording of international human rights standards and the jurisprudence of their implementation bodies all leave considerable room for translating the universal into the particular.  In the translation, however, arguments arise as to what constitutes ‘translation’ and what constitutes re-writing.

Underlying the debate as to where and how to protect rights as between European, UK-wide and devolved fora, is a political debate as to who it is will really uphold ‘universal values’ in a locally appropriate way, and who has an agenda to ‘particularize’ rights to their own imperialist/ partisan political image.  Thus conservative politicians charge the ECHR as foreign and imperialist in terms of a European paradigm, and assert a UK Bill of Rights as a legitimate ‘more appropriate’ alternative.  However, proponents of the HRA suspect a conservative particularist/imperialistproject at play in the UK Bill of Rights debate, and an attempt at ‘watering down’ or even jettisoning the ECHR for narrow political gain.

Meanwhile, the regions (and others) also charge the process as an imperialist conservative party and unionist project from an internal perspective; while attempts to construct differentiated regional rights provision are counter-alleged by the centre to be ‘too locally driven’, not ‘proper rights’, or not rights which can be delivered to devolved regions alone (see Labour government response to Northern Ireland Bill of Rights Advice).  Behind these counter-charges lies the suggestion that devolved rights agendas also hide imperialist ambitions, this time of devolution nationalists.

Reframing the issue

So what do I say to this?  First of all, I point it out to clarify debates.  But to go further I suggest that the following are useful to bear in mind.

1. Attempted imposition of ‘neat’ rights hierarchies will not make the difficulties of ‘what rights,  where?’ go away.  What is is, and it would be a mistake to assume that a constitutional default position exists.  Let’s embrace the negotiation which is an important one over where and how best to protect rights, and what the relationship is and should be between all the UK’s courts and legislatures.  If this is the debate let us be honest and explicit about it rather than pretending it can be ‘won’ by setting up or running a circumscribed process.

2.     We can never assume or take for granted who best protects  and develops universal human rights.  There is a tendency to think and argue that universality lies in a similar hierarchy to courts of appeal and legislatures themselves, and that we move from more particularized to more universal as we move from local, to national, to regional, to international legislatures and courts.  However, international law makers, courts and tribunals can have their own agendas just as surely as national ones.  While it is true that the expression of rights is likely to move from the more specific to the more generalized and abstract as we move from local to national to international, this does not necessarily equate to a movement from the particular to the universal.

3.     Judges best win jurisdiction over issues by the ways in which they reason from the universal to the particular, rather than by asserting a place in a legal hierarchy.  If local courts are to take themselves seriously and clamour for jurisdiction, they must show themselves capable of engaging with and reaching to universal values when they decide particular cases.  There is a difference between local application of universal values, and ignoring those values or seeking to attenuate them.  Similarly, international judges have most power to affect the implementation of rights where they take local context seriously.  The universal and particular are linked – and a court’s legitimacy in the arena of rights often depends on how it frames its decision in terms of navigating between the two.

4.     Most esoterically, but perhaps most importantly, the difficulty of navigating the universal and the particular is always with us.  Translating the universal to the particular, and using the particular to build, apply, and even establish the universal is an eternal dialectic.  Constant challenge and negotiation is less a problem, and more an important part of how we actually negotiate and come to understand values as universal in the first place.

5.     Therefore we should be suspicious of a priori claims to the Universal as linked automatically to the ‘level’ of the rights initiative, and seek to understand how challenge and counter-challenge work.  That is the end to which this blog has been written, and so I close.

Christine Bell is Professor of Constitutional Law at the University of Edinburgh.


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Seminar: Turkey’s New Constitution

Thursday, 17 November 2011, 7:00-8:30 pm, Room U8, Tower 1, LSE, Portugal Street, London. WC2A 2AE
LSE Contemporary Turkish Studies Conference

“Turkey’s New Constitution”

Speakers:

James Dingemans Q.C. (Barrister (3 Hare Court Chambers) & Deputy High Court Judge),

Levent Gönenç (Professor of Constitutional Law, Ankara University, Ankara),

Levent Köker (Professor of Law, Atılım University, Ankara)

Chair: Can Yeğinsu (Barrister, 4 New Square Chambers, and Director of The Global Rule of Law Forum)

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Seminar: Devolution After Axa

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Paul Bernal: To block or not to block is not the question…

On the 26th October, the subject of website blocking was in the news in two apparently very different ways. Firstly, as a result of the ‘Newzbin2’ court case in July ([2011] EWHC 1981 (Ch)), BT was given 14 days to block access to the Newzbin website ([2011] EWHC 2714 (Ch)) a membership-based website that provides access to potentially copyright-infringing material such as ‘pirated’ movies, music and games. Secondly, the Internet Watch Foundation (IWF) the organisation that provides lists of websites containing child sex abuse content so that Internet Service Providers (ISPs) can block them, celebrated its 15th anniversary. On the surface these may simply sound like two good things, scarcely related to each other, and nothing much to do with constitutional law – but are they? Or, more pertinently, should they be?

For some of us who work in what is loosely described as ‘cyberlaw’, neither event is particularly to be celebrated, and the links between them are clear and significant. In their different ways they highlight the need for more thought – and more action – in how we consider the internet from a legal perspective, and how we consider the rights of those increasing numbers of people who use the internet. What’s more, as the internet is now effectively intrinsic to how most of us function in our society, the rights that we have online are becoming critical supports to our rights in the ‘real’ world – so to look properly at our real rights, we need to consider our online rights more carefully.

The Internet Watch Foundation

The IWF is a registered charity, which works in partnership with ISPs, the police, the government and the public. As set out on their website, the “…IWF was established to fulfil an independent role in receiving, assessing and tracing public complaints about child sexual abuse content on the internet and to support the development of website rating systems.” A hotline was set up so that people could report websites to the IWF, which were then ‘assessed’ by the IWF: effectively “a ‘notice and takedown’ service to advise ISPs in partnership with the Police Services in the UK to effect its removal.”

The precise nature of the service provided by the IWF has been a subject of much debate by academics and others. From a pragmatic perspective, however, they do just what they say: receive tips, assess websites, and if they believe the websites infringe the law in respect of child sexual abuse content, they ‘blacklist’ the sites. This blacklist is provided to UK ISPs – and almost all the UK ISPs use it. BT, one of the biggest of the ISPs, implements the blacklist using a system called ‘cleanfeed’. From a user’s perspective, using normal browsing methods they cannot get access to blacklisted sites – thus preventing, as intended, users from getting access to child sexual abuse content.

Newzbin2

The original Newzbin website appeared to be intended to facilitate the sharing of copyright-infringing material – and in March 2010 Newzbin Ltd was found guilty of deliberately indexing copyrighted content (Twentieth Century Fox Film Corporation & Anor v Newzbin Ltd [2010] EWHC 608 (Ch)). Newzbin initially shut down as a result, but relaunched as ‘Newzbin2’ in June 2010, this time hosted in the Seychelles. Further legal action followed, resulting, eventually, in the order in July 2011 for BT (in its ISP role) to block access to the Newzbin site. The method by which BT should implement this block was suggested to be the cleanfeed system through which, as noted above, it currently implements website blocking for the blacklist provided by the IWF.

So what could be wrong?

The IWF, though it performs what looks like a simple public service, has been criticised for a lack of accountability, transparency and consistency. If a website is blocked, the provider of that website is not automatically informed and their opportunities to challenge that blocking are very limited. The best know example of this happened in 2008 when the Wikipedia page for the rock band the Scorpions’ 1976 album ‘Virgin Killer’ was reported to the IWF because of the image of an apparently pre-pubescent and near naked girl on the album cover. The IWF added it to the blacklist. Wikipedia complained, and found the response limited to say the least. As they put it:

 “When we first protested the block, their response was, ‘We’ve now conducted an appeals process on your behalf and you’ve lost the appeal.’ When I asked who exactly represented the Wikimedia Foundation’s side in that appeals process, they were silent.”

After significant pressure from Wikipedia and others, the IWF reversed their stance and allowed access to the page again – but at the date of writing this blog, there is still no transparent system of appeals, and no apparent sign of one being considered.

When the Newzbin case is added to the equation, the issues raised by this lack of accountability and transparency become more significant. To move from blocking assessed child sexual abuse content to blocking for copyright infringements is quite significant – and the potential chilling effect of the judgment should not be discounted. The BPI took little time in trying to start this ball rolling by suggesting to BT on November 4th that they should block The Pirate Bay on the basis of Newzbin 2. When the contentious Digital Economy Act, (currently under Judicial Review) and the even more controversial Anti-Counterfeiting Trade Agreement (ACTA) (which has worldwide scope and is currently finding its way through the European Parliament) are added to the equation it’s not just legally proven copyright infringements that could trigger blocking, but suspected copyright infringements.

What else might people want to block? Site associated with ‘terrorism’? Certainly. Sites that might incite violence or unrest? The response to the summer riots makes that seem entirely possible – but we should remember the uncomfortable parallels between the methods of control attempted by the now-ousted governments of Tunisia and Egypt – and indeed the current governments of the likes of Syria and China – to the policies suggested by David Cameron and others in the immediate aftermath of the summer riots.

To block or not to block is not the question

There are not many who would against the need for rights-holders to be able to defend their rights any more than they are arguing in favour of a right to publish or consume child sexual abuse content. To block or not to block is not the question – it’s more a question of when and how to block. The process is crucial. We need transparency and accountability. We need due process. We need a proper balancing of rights. In order that we are able to find a proper balance, and a ‘proportionate’ way to protect the rights-holders from having their rights infringed, and indeed to protect children (and adults) from extremes such as child sexual abuse content, more coherent, intelligent and clear thought needs to be put in.

The starting point has to be to get a greater understanding of the nature and role of the internet in today’s society. The internet has changed significantly in the fifteen years since the foundation of the IWF – and so, importantly, has the way that people use it. We’re no longer either ‘users’ or ‘providers’ of information on the internet: we’re contributors, collaborators, discriminators – and we’re conduits for content ourselves. How many twitter users have tweeted interesting links or content to others? We don’t use the internet just as a system of communication, a source of information or as a method of self-publicising – pretty much every activity we do in the real world can be integrated with the online world, from shopping to interaction with government, to work and our social lives. The trend towards that integration is unlikely to slow any time soon – if anything, it appears to be accelerating with the increased prevalence of smartphones and the ubiquity of social networks.

Rights on the internet

This trend has been effectively acknowledged by the increasing acceptance of a ‘right to access’ the internet – the UN, for example, pushed the idea in the report in August 2011 by UN Special Rapporteur Frank La Rue. If we have the right to access the net, then we need to think about what rights we have once we’re on the net. There are many related rights that need to be considered, from privacy and freedom of expression to access to information – and such rights as freedom of association and assembly and even freedom of religion have their online aspects too.

These rights can be complex and apparently in conflict – but isn’t it time that we thought about them in a more integrated and coherent way? We ‘need’ the internet in more ways than before, ways that make it a much bigger thing to cut off internet access or to censor or control what we can see. In the opinion of many – myself included – rights to access, to free expression and to privacy need to be given more weight than they currently are given, particular in relation to intellectual property rights, and even, contentious as it may seem, to the need to combat the producers and consumers of child sexual abuse content. 

Paul Bernal is a lecturer in the UEA Law School and a member of media@UEA. He blogs at The Symbiotic Web Blog (link to http://symbioticweb.blogspot.com/) and tweets as @paulbernalUK.

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Peter C. Oliver: Constitutional Conventions in the Canadian Courts

Most constitutional law textbooks across the Commonwealth include in the section on constitutional conventions lengthy extracts from the Canadian case, Re Amendment of the Constitution of Canada, often referred to as the Patriation Reference.  Given that constitutional conventions are enforced not by courts but by the political process, conventions are rarely discussed in the law reports.  Courts occasionally recognize constitutional conventions in order to discuss intelligently the way the contemporary system of democratic responsible government works, but they do not accede to a party’s attempt to win a court battle by requesting that the court enforce a convention. Even in the well-known case of Jonathan Cape ((1975) 3 All ER 484, [1976] QB 752), the Attorney General would not have made any progress if he had only argued the convention (of collective ministerial responsibility); the success of his argument, so far as it went, was founded on the equitable doctrine regarding breach of confidence, with the convention supporting the factual finding of a confidential circumstance.

What was different about the Patriation Reference?  And what effect has that case had on the way Canadian courts view the justiciability of constitutional conventions? Readers of this blog may be aware that Canada has just lived through a period of minority government in which the Prime Minister’s decisions to prorogue and dissolve Parliament were hotly debated.  Political actors who were critical of the Prime Minister’s actions sought out any and all means thwarting him.  An organization called Democracy Watch, for example, challenged the 2008 dissolution of Parliament in court on the basis of both law (fixed election legislation) and convention.  Later in 2008, critics called for a Supreme Court of Canada advisory opinion regarding the Prime Minister’s controversial decision to avoid a vote of non-confidence by asking the Governor General to prorogue Parliament.

Canadian courts have so far resisted these and other calls for them to enforce constitutional conventions.  However, their resolve is not as clear and firm as it could be.  Since 2000, both the Supreme Court of Canada and the Federal Court of Canada have produced judgments (in the context of ordinary litigation rather than in an advisory role) in which the existence or non-existence of conventions is discussed in some detail, including analysis of whether Jennings’ three-part test (first adopted in the Patriation Reference) has been met. One cannot help but wonder what will happen if, as seems inevitable, a constitutional convention is eventually made out in the context of future litigation. Will the court say that it is merely recognizing the convention not enforcing it, and that, accordingly, the remedy is by way of declaration not injunction?  That would seem to misunderstand the way in which law is enforced in this day and age, especially where the government is a party: a mere declaration of the law is invariably all that is required.  Or will the court re-discover the essentially political nature of the question and declare it non-justiciable?  To do so, it would have to revisit not only the Patriation Reference which first opened up conventions to judicial consideration, but also the Secession Reference and similar Supreme Court of Canada cases which have opened up the use of principles in the fashioning what is sometimes referred to as the common law Constitution. After all, all conventions are underpinned by a principle (e.g. the democratic principle) according to Jennings’ three-part test cited in the Patriation Reference (at p. 888). What is to stop the principle, and the principle-inspired jurisprudence of the Supreme Court of Canada, from being used to transform convention into law?  How did we get from the Patriation Reference to here?

Prior to the Patriation Reference, it was as rare in Canada as it was and is elsewhere in the Commonwealth to see conventions discussed in judgments.  A number of factors help explain what happened in 1981. First, as is well known, Canada, unlike countries (e.g., U.S.A., Australia) which hold to a stricter version of the separation of powers, permits advisory opinions (or references).  The Canadian Supreme Court Act sets out in the widest terms imaginable (see s. 53) the sorts of questions that can be put before the Court. The constitutionality of these provisions was confirmed in the Secession Reference. Secondly, although the Supreme Court Act provides few hints in this direction, the Court reserves a discretion to refuse to answer questions, often on the basis of non-justiciability.  Justiciability is a question of the courts’ proper role, but it is also a question of the courts’ relevant expertise.  As it happens, any judge who wishes to understand a constitution in the British tradition must understand constitutional conventions.  As the majority on the conventional question put it in the Patriation Reference (pp. 883-4): Constitutional Law = the conventions of the constitution + the law of the constitution.  While determinations of the precise present state of a convention might be beyond most judges’ ken, most judges could be said to have considerable knowledge in this area nonetheless.  A conclusion of non-justiciability would perhaps have to come from the Court’s sense of its proper role vis-à-vis other institutions rather than from considerations of relevant expertise. Thirdly and finally, the stakes in 1981 were very high: Canada had struggled for fifty years to come to agreement on a new amending formula to replace the United Kingdom Parliament as its ultimate constitutional amendment procedure. A first referendum on Quebec’s future in the federation had just been held one year earlier.  And clearly a majority of judges of Supreme Court of Canada judges felt that they had to weigh in.

The problem with courts weighing in regarding constitutional conventions was already apparent in 1981.  When the Court determined that, as a matter of the law of the constitution, United Kingdom Parliament legislation amending the Canadian constitution was legally unobjectionable, that was in principle sufficient to justify Prime Minister Trudeau’s attempt to patriate the constitution over the objections of eight out of ten provinces.  However, when the court also stated that, as a matter of the conventions of the constitution, a substantial degree (p. 905) of provincial consent was required, the distinction between law and convention quickly faded. To all but the most informed, formalistic observers, the Court had spoken authoritatively, and it had to be followed, sending Trudeau and the provinces back to the negotiation rooms (from which they emerged, Quebec dissenting, with the compromise that became the Canada Act 1982, the Constitution Act, 1982 and the Canadian Charter of Rights and Freedoms.)

Staying for the moment with the Patriation Reference, we might want to note the way in which the judges who signed the majority reasons regarding the conventional side of that matter proceeded. They clearly felt that they had to answer the question, for the reasons that I have already set out and no doubt for other reasons.  However, the provinces opposing what they viewed as federal unilateralism asked for more than the Court was willing to give.  The provinces argued that constitutional amendments affecting provincial interests required the consent of all provinces, that is, unanimous consent. The majority may have felt that a convention pitched at such a high level was not clearly established.  It opted instead to pitch the convention at a level which could be clearly established, that is, a substantial degree of consent (which all observers assumed to be more than the existing two-province consent but less than unanimous consent).  Was the Court effectively saying that only a convention of at least substantial consent could be clearly established, but that there was an ongoing, evolving political discussion as to whether more was required, including unanimous consent?  If the Court wished to say this, it did not communicate it clearly, with the result that most observers assumed that the Supreme Court of Canada’s finding regarding convention was authoritative in the exclusionary or pre-emptive sense which Joseph Raz describes regarding law proper: the Court’s pronouncement effectively replaced the many discussions in the political arena regarding the political (i.e., conventional) morality of the pre-1982 amendment process.

Even though, as a rule in Canada, the law as stated in advisory opinions is followed by courts in ordinary litigation, there was no initial spate of litigation in which parties sought to vindicate in court their particular take on a constitutional convention.  After all, even as the Supreme Court of Canada had set out a constitutional convention in the advisory Patriation Reference, it had reiterated the orthodox rule regarding the fact that conventions are not enforced by courts (p. 880).  And the Court has never disavowed the orthodox rule.

What has changed since 1981, however, is the Court’s general jurisprudential approach.  When the Court spoke in 1981 of the law of the constitution, for example, it spoke from an essentially positivist perspective.  It was referring in the main to legislation, British and Canadian, and case law interpreting that legislation. By the mid-1990s, Canadian courts had adopted a principle-inspired method based, in part, it would seem, on the anti-positivist theories of Ronald Dworkin.  Where the law of the constitution leaves a gap (or, as Dworkin might say, presents a hard case), the Canadian courts are now less shy to fill the gap with the principle-inspired common law of the constitution. This begs the question whether the principles which underlie each and every constitutional convention can now be used to facilitate the gradual conversion of the conventions of the constitution into the law of the constitution.

I argue that the Canadian courts should ensure that this does not happen.  And yet if a principle-inspired legal method provides the tools to convert conventions into law why not?  In my view, the answer can be found in the preamble to the Constitution Act, 1867, which states that Canada has a Constitution “similar in principle to that of the United Kingdom”.  That phrase in the preamble signaled that while some parts of the Constitution were as of 1867 written, equally important elements remained mostly unwritten.  Or put another way, that while some parts of the Constitution were designed to be judicially enforced, other important elements were designed to be politically enforced.  With regard to the latter, one thinks of constitutional conventions, including those establishing responsible government, parliamentary privilege, and the very idea of parliamentary sovereignty.  The Canadian constitutional system has evolved, of course – it is a “living tree” – but the political Constitution is still an important part of our democratic constitutional set-up. The Constitution Act, 1982 replaced the pre-1982 conventions regarding constitutional amendment and limited parliamentary sovereignty, but it did not eliminate the important role of conventions, responsible government, privilege and parliamentary supremacy and the political Constitution as a whole.

Accordingly, the main reason why the courts should not use the principles underlying conventions to convert conventions into law is that there is no gap to fill.  That which appears to be a hard case is only so if one focuses exclusively on the law of the constitution.  If one considers together the conventions and the law of the constitution, the political and the legal constitution, then it is clear that judges should respect political means of enforcement rather than use the principles underlying conventions as a means of converting rules of political enforcement into rules of judicial enforcement.

Part of the difficulty here lies perhaps in lawyers’ general preference for text over practice.  Conventional rules, and much of the political constitution, look like a gap or an empty space from the perspective of the text-based legal constitution.  However, if we imagine a case where conventions are written down for ease of reference, but where it is clearly intended that enforcement remain political rather than legal, the courts would view the interpretation and enforcement of those rules as non-justiciable rather than view them as a gap or a hard case requiring conversion into new legal rules of the common law constitution by means of principle-inspired jurisprudential method.  The same approach should apply even where the conventions are not written down, until such time as a decision is made to convert conventions into law (as occurred regarding the conventions of constitutional amendment in Canada).

An additional source of concern, from my perspective, is that the Supreme Court of Canada has, with respect, turned the meaning of “a Constitution similar in principle to that of the United Kingdom” on its head.  I have already stated that, in my view (and in the view of constitutional historians and the Supreme Court of Canada itself prior to 1982) that phrase was intended as a reminder of the ongoing existence and importance of the political part of the Constitution.  In a number of important cases in the 1990s (see, e.g., the Provincial Judges Reference, para.104 and the Secession Reference, para. 53), the Court used the same phrase in the preamble as an “invitation” to the courts to fill perceived gaps in the Constitution using principles such as constitutionalism and the rule of law, democracy, federalism, the protection of minorities and judicial independence.  In fact, the Court seemed intent on finding a textual basis for its use of unwritten principles.  Unfortunately, the preamble text it used was itself a reminder of the importance of political as opposed to judicial enforcement of constitutional rules.  This is not to say that the Court should not use principles to fashion its decisions – that is a debate for another day. Rather, the point that I am trying to make is that the Court should refrain from using the very principle that underpins a conventional rule, and the very phrase from the preamble of the Constitution that is intended to recognize the ongoing importance of political enforcement of these constitutional rules, to create new parts of the common law constitution.

I have noted that the Supreme Court of Canada has already, with respect, (mis)used the phrase “a Constitutional similar in principle to that of the United Kingdom” to justify a principle-based approach to developing the common law of the Canadian constitution. Is there any sign, however, that the Canadian courts wish to go further, that is, to convert conventions into legal rules using the same method?  The signs are mixed, in my view.  In two cases in 2000-1 (Public School Boards’ Association of Alberta v Alberta (Attorney General), [2000] 2 SCR 409, paras 30 and 38; Ontario English Catholic Teachers’ Association v Ontario (Attorney General), [2001] 1 SCR 470, paras 26 and  63 et seq), the Supreme Court of Canada allowed parties in ordinary litigation to state a constitutional question regarding, inter alia, a constitutional convention.  In other words the parties were attempting to win their case by a number of means, one of which could have involved a declaration involving a constitutional convention.

One might have expected the court to simply refuse to answer the question.  It is one thing to ask a court to recognize a convention as part of the factual context necessary to understanding the legal dispute, and quite another to try to win the case on the basis of a convention.  Instead, after a reminder of the fact that conventions are not enforced by courts, the Supreme Court of Canada then went on to discuss Jennings’ test for constitutional conventions first set out in the Patriation Reference.  In my opinion, this gives potential litigants the impression that, if the convention can be made out in a future case, the Court might be willing to issue a declaration to that effect, though clearly it would refuse to award an injunction.  As I stated earlier, if that impression is right, then there is cause for concern.

Since 2000-1, conventions have continued to rear their head from time to time in litigation.  Following the Supreme Court of Canada’s ambiguous lead, the lower courts have not always felt able to refuse to discuss the granting of a declaration regarding a constitutional convention.  (See, e.g., Pelletier v Canada (Attorney General), 2007 FC 342, para 6,  and Pelletier v Canada (Attorney General) 2008 FCA 1, para 18 et seq;  Conacher and Democracy Watch v Canada (Prime Minister), 2009 FC 920, paras 2, 10-15, 30-47, 65-72; Conacher and Democracy Watch v Canada (Prime Minister), 2010 FCA 131, paras 5-6, 12, )  Instead, they have often restated the non-enforceability rule, but then gone on to discuss, sometimes in considerable detail, whether the convention is made out (applying Jennings and the Patriation Reference).  It seems to me that the courts’ approach to constitutional conventions needs to be more clearly thought through in advance of the day when a declaration regarding a credible constitutional convention is sought in ordinary litigation.  It seems inevitable that if the courts signal that they are willing to grant declarations, parties which have the financial means to litigate will seek to lift their cases out of the ongoing and evolving discussion in political forums by seeking discussion-stopping victory in the courts.

Accordingly, I would recommend the adoption of the following guidelines at least in so far as treatment of conventions by courts in Canada is concerned.  I would be interested to hear how constitutional lawyers in other jurisdictions view these suggestions.

  1. In the context of ordinary litigation, courts should refuse parties’ requests, by way of declaration or other remedy, to rule on the existence or non-existence of a constitutional convention in order to determine the legal outcome of the case.
  2. In the context of ordinary litigation, in which (consistent with 1.) the dispute turns on something other than the existence or non-existence of a constitutional convention, courts may sometimes find it necessary in the course of their reasoning to describe (or recognize) a well-established constitutional convention in order to sensibly account for our constitutional arrangements.
  3. In the context of a reference case (advisory opinion), the court should accept requests to rule on the existence or non-existence of a constitutional convention, only to the extent that the conventional rule is, in the court’s view, clear and well-established.  If the convention itself is in flux, or if the question relates to a peripheral aspect of the convention which is likewise still in flux, then the courts should regard the question as non-justiciable, both because of the courts’ lack of expertise regarding evolving political dynamics, and because of the need to maintain a proper balance between the judicial and political parts of the constitution.
  4. In the context of a reference case (advisory opinion), the court should perform an important educative function in explaining that many constitutional conventions, and the political parts of our constitution in general, are in constant evolution, and that the public’s democratic responses to perceived breaches of convention are critical to that political process.

These comments and recommendations are offered on the thirtieth anniversary of the Patriation Reference and on the fortieth anniversary of the publication of Constitutional Theory by my supervisor and good friend, the late Dr Geoffrey Marshall.

Peter Oliver is a Professor of Law at the Faculty of Law, University of Ottawa and the author of The Constitution of Independence: The Development of Constitutional Theory in Australia, Canada and New Zealand (OUP, 2005).  He was formerly Professor of Law at King’s College London.  The author was Scholar in Residence in the Constitutional and Administrative Law Section, Public Law Sector, Justice Canada in 2005-6 during which time he completed a research contract looking into the meaning  of the 1867 preamble phrase “A Constitution similar in principle to that of the United Kingdom”.  In 2006-7 he was Special Advisor, Legal and Constitutional Affairs at the Intergovernmental Affairs Secretariat of the Privy Council of Canada, and he has continued to act in that capacity from time to time from 2007 to present.  He has not advised on the issues discussed in this piece. The views expressed here are the author’s own and should not be taken to represent the views of the Intergovernmental Affairs Secretariat or of the Government of Canada.

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