Monthly Archives: March 2012

Jeffrey Goldsworthy: Parliamentary Sovereignty’s Premature Obituary

At the end of a long review of my book Parliamentary Sovereignty, Contemporary Debates (CUP, 2010, hereafter PS), Vernon Bogdanor concludes that I have “suffered one of the worst fates that can befall a philosopher”: I have “become the prisoner of a doctrine” – that of parliamentary sovereignty (“Imprisoned by a Doctrine: The Modern Defence of Parliamentary Sovereignty” (2011) Oxford Journal of Legal Studies 179, hereinafter Bogdanor ). Apparently, self-imposed mental barriers prevent me from perceiving how the British constitution has changed.

What are Bogdanor’s reasons for this conclusion?

First, he puzzles over my claim that at present Parliament “cannot” limit its own substantive powers: is the impossibility a logical or contingent one? Since it cannot be a logical impossibility, he infers that I must mean that “it would be perfectly possible for Parliament to pass immutable laws but there are very good reasons why, as a matter of fact, it has never done so.” On this view, my “conception is a utilitarian one”, and is open to refutation “were it to be shown that the consequences would not necessarily be undesirable.” (Bogdanor,183) But this rests on a misunderstanding of my position. It is true that I believe there are good reasons of political morality for Parliament not being able to limit its own substantive powers, which I discuss in my book (PS, 7, 53-5, 116, 125-9).  But I maintain that Parliament cannot lawfully limit its own substantive powers, because there is currently a fundamental legal rule (a rule of recognition) to that effect, whose existence is constituted by its being generally accepted by legal officialdom. That rule can be changed, but only by a change in official consensus, and not by Parliament acting unilaterally (116, 137-8). That is what I mean by “cannot”.

Secondly, Bogdanor believes that Parliament’s sovereignty has been limited by the European Communities Act 1972 (“EC Act”) (Bogdanor, 182).  He acknowledges my suggested interpretation of the somewhat cryptic Factortame judgment, as construing the EC Act as imposing a kind of “manner and form” requirement that Parliament must use explicit language in order to legislate inconsistently with applicable EC law and with that Act (184). (He does not mention that I also offer two other, alternative interpretations of the judgment that are equally consistent with parliamentary sovereignty as I define it. (PS, 289-90, 296-8)) But he prefers the alternative view put forward by counsel in the Thoburn case, which he says “deserves more consideration than it has so far received.”(Bogdanor, 184)  According to this view, the EC Act altered Britain’s fundamental rule of recognition with the effect that Parliament cannot unilaterally derogate from EC law. Consequently, “national courts would have to apply EC law in preference to inconsistent national law”(185).  “If that is so”, he says, the EC Act limits Parliament’s substantive power. (186)

I freely acknowledge that this is a possible interpretation of the Factortame judgment, as I did in my book where I attributed it to Paul Craig (PS 287).  There, I said that if Parliament can legislate inconsistently with applicable EC laws only if it first enacts legislation withdrawing Britain from the EC, “then the EC Act would have subjected Parliament’s lawmaking power to a limitation of substance”, which “could not be explained in terms of a mere requirement as to the form of British legislation.” (287-8) However, I argued that this interpretation was implausible because “it is the business of the government and Parliament, not the courts, to decide whether or not Britain should abide by its treaty commitments.” (287) In other words, if Parliament were to pass a law that explicitly contradicts applicable EC law, but without withdrawing Britain from the EC, and therefore violates Britain’s treaty commitments, that would be its business, not the courts’. They do not have legal authority to enforce treaty commitments in the face of a statute to the contrary. Nor is there much evidence that, on this point, there has been the requisite change in official consensus for the rule of recognition to have changed, as Bogdanor suggests it has (Bogdanor, 184).  My argument then proceeded on that basis.

It is, of course, possible that the courts would take the opposite view, preferred by Bogdanor. But the fact that I offer reasons for disagreeing with a view that he thinks “deserves more consideration than it has so far received” (184) hardly suggests that I am imprisoned by a doctrine in the sense that I am unable to see beyond it. Nor does the fact that it is a possible view prove that it is the correct one, or that if Parliament’s substantive power have been limited in this respect they must be limitable in other respects as well (186). That is precisely what is in contention.

Thirdly, Bogdanor suggests that Parliament has also succeeded in limiting its substantive powers by enacting what he calls “binding” referendum requirements in s.1 of the Northern Ireland Act 1998 and ss.2-4 of the European Union Act  (‘EU Act’) (187-8). But neither of these referendum requirements strikes me as “binding” Parliament in the requisite sense. This is because they are not self-entrenched: they can be repealed or amended by ordinary legislation, without any referendum being held (PS, 144). I emphasized the importance of self-entrenchment in PS (at 144), and in my written evidence to the House of Commons European Scrutiny Committee, which Bogdanor refers to (The EU Bill and Parliamentary Sovereignty, HC 633-II (7 December 2010), Ev 31, para 10; Bogdanor, n38).  It might be argued that they are binding on Parliament until it repeals or amends them (Bogdanor, 189).  But that argument would invite two responses. First, if Parliament were to legislate inconsistently with these requirements – for example, by legislating for the ratification of a treaty covered by s. 2 EU Act without any referendum first being held as required by that section – it is very likely that the referendum requirement would be regarded as repealed pro tanto by implication. That conclusion follows from the principle established in McCawley v R [1920] AC 691 (PC). But say I am wrong about this, and the courts were to hold that Parliament must follow a two-step rather than a one-step procedure, and expressly amend or repeal such requirements before legislating inconsistently with them. My second response is that this would amount to a requirement that Parliament must expressly amend or repeal such requirements, rather than doing so by implication (through the enactment of inconsistent legislation). According to my theory, a requirement that Parliament must expressly repeal or amend a provision is merely a requirement as to form, and not as to substance. This is not a minor, incidental aspect of my theory: it is central to it, and is discussed at length in my book (PS 179-82, 195, 289-90). It forms part of my argument that the EC Act, as construed in Factortame, is consistent with parliamentary sovereignty. Thus, a referendum requirement is perfectly consistent with my conception of parliamentary sovereignty, provided that it is not self-entrenched and can therefore be repealed or amended, whether impliedly or expressly, by ordinary legislation.

Bogdanor continues his discussion of referendum requirements by confusing (as many British writers do) two different arguments that attempt to justify them, which in my book I distinguish: the manner and form argument, and the reconstitution argument (Bogdanor, 189-190; see PS, 139, 155-60, 167, 171-73 and 198-99). The reconstitution argument construes referendum requirements as changing Parliament’s composition, by making the electorate part of Parliament for particular purposes. That is quite different from arguing that Parliament has subjected itself to a requirement governing the procedures or forms by which it must legislate. Bogdanor argues against the reconstitution argument (as I do), but then seems to assume that he has refuted the manner and form argument (Bogdanor, 189-90). Then follow sweeping claims: that Parliament in the EU Act has partially renounced its sovereign power to legislate; that since it has done so on that topic, it could do so on others as well; and therefore that it could gradually bind itself to a whole new constitution. But as I have shown, all this rests on a misunderstanding of the extent to which Parliament has already been able to bind itself. In statutes like the Northern Ireland Act and the EU Act it has not bound its substantive powers in any constitutionally significant sense.

Fourthly, Bogdanor argues that the judges have limited Parliament’s powers: it cannot protect Ministers or public authorities from judicial review, by conferring unfettered discretions or enacting ouster clauses (191).  He asserts that Padfield and Anisminic make this “clear”, although he later says that “there is no case which allows one to confirm this interpretation.” (191, 192) I discuss Anisminic in my book, in a passage that Bogdanor does not mention (PS 285-6). All I can do is repeat what I said there: the House of Lords justified its decision on the orthodox ground of presumed legislative intention, and even if this was a “noble lie”, “the fact that a lie is felt to be required indicates that the judges themselves realise that their disobedience is, legally speaking, illicit” (PS, 286).

Fifthly, Bogdanor argues that if Parliament were to enact a statute subverting the foundations of the rule of law, it is possible that the judges would refuse to obey it. He refers to recent events and judicial statements (such as in the Jackson case) as possibly portending that outcome. It would shatter the official consensus on which (he and I both agree) the doctrine of parliamentary sovereignty has rested, and could lead to a constitutional crisis in which Parliament and the judges disagree about ultimate legal authority (Bogdanor, 193).  His conclusion is that, since the question of what Parliament “can” do depends on the reaction of the courts, and we cannot predict what their reaction would be, it is impossible to say that Parliament “can” enact such a statute (193, 194).

Here again, Bogdanor is confusing what Parliament “can” or “cannot” do in a practical sense, with what it can or cannot do in a legal sense. I would say the following, to any judges who think that if Parliament were to enact a statute subverting the rule of law, they should hold the statute to be invalid.

“There is no basis in the constitution as it currently stands for you to do this: the long accepted rule of recognition gives Parliament sovereign lawmaking power. Therefore, you would be attempting to bring about constitutional change, so that what Parliament can legally do today, it could no longer legally do.

You can attempt such a change, but you cannot plausibly claim legal authority to do so by invoking the theory of “common law constitutionalism” – the theory that parliamentary sovereignty is a doctrine of the common law, which the judges created and can therefore unilaterally modify or repudiate. I have refuted that theory, and judicial support for it in Jackson’s case (such as in the judgment of Lord Steyn) is therefore based on demonstrable falsehoods. Obiter dicta that can be shown to be false should be accorded no authority.

There is no other basis in the constitution for your claiming authority unilaterally to change the constitution in this way. That does not mean you cannot successfully initiate such a change, but it does mean that the political branches of government must be persuaded, inveigled, bamboozled, or bluffed into acquiescing in it. But what if they are not? What if they resent and resist your efforts to change the constitutional rules that were previously accepted, and take strong action to defeat it, possibly including the impeachment of ‘over-mighty judges’? That might be regrettable, but if you tear up the consensus that currently supports the fundamental rules of the system, you are hardly well placed to complain if it is replaced by a power struggle you are ill-equipped to win. In the absence of consensus, your own legal authority as well as Parliament’s would be up for grabs. (This passage is adapted from PS, 55)

 It might nevertheless be a good idea, before such a statute is enacted, for you to hint that you might refuse to obey it. The political branches may be just as concerned as you about the dangers of a constitutional crisis, and they might back down and decide not to enact it (as they did in 2003 when a sweeping ouster clause was withdrawn after protests by senior judges). But no matter how you couch such a threat, do not confuse in your own minds what would amount to judicial disobedience of the law, with the judicial exercise of constitutional authority. One of the practical restraints on Parliament’s exercise of lawmaking power is the possibility that it might not be obeyed. In an extraordinary case judges, like ordinary citizens, might be justified in disobeying a valid statute – and a fortiori, in hinting that they might disobey it. But it simply does not follow that it would be a good idea to abandon the doctrine of parliamentary sovereignty. What would replace it? A rule that the judges can subject Parliament’s authority to whatever limits they see fit (perhaps under the vague label “the rule of law”)? Remember that hard cases make bad laws. It would be better to retain the doctrine of parliamentary sovereignty, subject to the possibility of civil or even official disobedience in extraordinary situations, than to attempt to replace it with a rule of judicial supremacy capable of imposing fundamental constitutional changes on the nation.” (See also J. Goldsworthy, The Sovereignty of Parliament, History and Philosophy (OUP, 1999), 267-71)

Sixthly, Bogdanor argues that the concept of parliamentary sovereignty is of little value in analysing what Parliament can or cannot do. Indeed, the concept creates puzzles that would dissolve if it were abandoned (Bogdanor, 193-4).  He recommends that we simply ask what rules govern Parliament’s composition, powers and procedures; whether they impose formal or substantive limits on legislation; how they are determined; and how they can be changed. The concept of sovereignty, he claims, plays no constructive role in answering these questions (194).

It was one of the purposes of my book to answer most of these questions. It is not clear to me whether Bogdanor disagrees with my answers, or with the way I use the concept of parliamentary sovereignty in arriving at or expressing them. For example, I reject the theory of “common law constitutionalism”, and in his book The New British Constitution (Hart, 2009) he seems to agree with me (at 82-3).

I am extremely sceptical about Bogdanor’s claim that the doctrine of parliamentary sovereignty is now useless for theoretical or practical purposes. For centuries, it has been generally understood that Parliament has sovereign lawmaking authority. This meant that there were no substantive limits to its authority, and it could not subject itself to such limits except by abdicating its authority with respect to territories capable of being excised from its jurisdiction. On the other hand, there was some uncertainty about its ability to subject itself to binding rules as to the procedure for or the form of legislation. A crucial question is: to what extent have recent developments changed these understandings?

A minimalist approach to answering that question, which I favour, construes somewhat cryptic developments, such as the effect of the EC Act as interpreted in Factortame, as altering previous understandings only to the minimum extent that is necessary to accommodate those developments. Factortame can be construed as using the EC Act as a very strong rule for interpreting later statutes, or alternatively, as imposing a binding rule as to the form of later statutes (PS 287-98). The minimalist approach leaves intact as much of the previous understanding as possible, for a number of reasons. An established rule of recognition is constituted by a consensus among legal officials, which it would be dangerous to construe as having radically changed unless there is reasonably clear evidence of the change. To the extent that an established rule of recognition remains unchanged, there is greater certainty about the allocation of constitutional authority, compared with a fluid situation in which it is regarded as having been repudiated but not yet replaced by any clear alternative. Uncertainty about such matters is more likely to cause conflicts between the branches of government. In addition, both of the major theoretical alternatives to orthodox (“continuing”) parliamentary sovereignty (“self-embracing” parliamentary sovereignty, and common law constitutionalism), which authorise either Parliament or the Supreme Court unilaterally to limit Parliament’s substantive powers, could in principle lead to very undemocratic constitutional change (116, 137-140).

Alternatively, a maximalist approach of recent developments can be taken, according to which the doctrine of parliamentary sovereignty is now dead, if not yet buried. But if so, what has replaced it? The problem is that if Parliament is no longer sovereign, almost everything is up for grabs. Bogdanor’s suggestion that we simply ask what Parliament can and cannot now do strikes me as naive. There is no strong evidence that orthodox parliamentary sovereignty has been supplanted by either of the usual alternative theories. As previously noted, Bogdanor does not seem to embrace common law constitutionalism, the theory that it is up to the courts in developing “the common law” to decide what limits Parliament’s powers. Does he, then, embrace the theory of self-embracing sovereignty, the idea that Parliament can limit its own powers in any way it chooses? He would not, of course, approve of the term “sovereignty”, which he does not find useful. But he might still endorse the idea that Parliament has the power to limit its own powers (Bogdanor, 183), notwithstanding the dangers of that idea (PS, 116, 137-138).

Can Parliament – in the legal sense of “can” – limit its substantive powers, such as by enacting a fully binding, self-entrenched, referendum requirement? I say it cannot – unless the rule of recognition is changed. This is a possibility I discuss: indeed, I suggest that if a binding referendum requirement were enacted only after being itself approved in a referendum, this would help to justify and fortify a change in the rule of recognition (PS 139-140). As I put the point in my written evidence to the House of Commons European Scrutiny Committee (to which Bogdanor refers),

“To make it more likely that, in this scenario, the judges would enforce the earlier statute prohibiting the future enactment of legislation without a referendum first being held, that statute should itself be put to a referendum. The support of a majority of voters for such a referendum requirement would greatly add to the strength of the case in favour of its future enforcement notwithstanding Parliament’s later change of mind, indicated by its attempt to legislate without complying with that requirement. This is because obtaining the support of the voters for a requirement that their support be required in the future overcomes a principled objection to the imposition of a referendum requirement by ordinary legislation. The objection is this: if an earlier Parliament can use ordinary legislation to implement its preferred policies, why should a future Parliament not have the same liberty? To put it another way, why should the later Parliament be bound by the expression of a will that has no higher authority than its own will? This is the main justification of the orthodox view that Parliament cannot bind itself. But if a referendum requirement is enacted with the support of a majority of voters in a referendum, the objection is overcome. A future Parliament could then be said to be bound, not by an earlier will of no higher authority than its own will, but by an earlier will that does have such a higher authority – the expressed will of the people.” (The EU Bill and Parliamentary Sovereignty, HC 633-II (7 December 2010), Ev 31, para 11; Bogdanor, n38.)

 I am surprised to be accused of having argued myself into a blind alley – becoming imprisoned by the doctrine of parliamentary sovereignty – when I have suggested how, in this way, the doctrine could most legitimately and effectively be superseded. But, until a new constitutional settlement is clearly endorsed by the people, it would in my opinion be dangerously destabilizing to declare that parliamentary sovereignty is dead.

Jeffrey Goldsworthy is a Professor of Law at Monash University 

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Arthur Dyevre: The Czech Ultra Vires Revolution: Isolated Accident or Omen of Judicial Armageddon?

On the face of things, the CCC’s judgment, by declaring an EU act, namely a ruling of the Court of Justice, ultra vires, constitutes a momentous and unprecedented display of judicial defiance. To my knowledge, no domestic court has ever taken this step before in a final judgment on the merits; and certainly not in so explicit a manner. In recounting the background of the case and the sequence of events that led to the CCC’s decision, Jan Komarek points to a number of intriguing aspects of the case. One, which has already been highlighted in connection with the Melki case, is the difficulty for the CJEU to avoid alienating domestic judges when it is dragged into domestic judicial politics by way of the preliminary ruling mechanism. Here, however, my primary interest is in the significance and implications of the CCC’s decision for the EU multi-level legal system. In a non-hierarchical court system, where courts at the upper echelon do not have the power to strike down the decisions of courts at the lower level, judicial cooperation appears to be essential to the effectiveness of the higher-level law. So, by defying the authority of the Court of Justice in such blatant fashion, the CCC’s judgment may be viewed as striking a terrible blow to the authority of EU law. Doomsayers may see it as the first event in a chain reaction that will ultimately bring down the whole constitutional edifice of EU law. From now on, every domestic judge will assume that she can safely ignore EU law whenever she sees fit. Still, while there is no gainsaying that judicial defiance at domestic level may potentially raise major problems, I would nonetheless suggest, borrowing insights from game theory and international relations, that this judgment is more likely to remain an isolated event. An all-out war with the CJEU is not in the long-term strategic interest of any domestic court. Hence there is a fairly good chance that, one way or another, the CCC will soon come to its senses and will repudiate a decision that seems to be driven by anger rather than by reason. If it wants to remain a player in the multi-level judicial game, the CCC should take a closer look at the German Federal Constitutional Court (GFCC), which has so far proved a more thoughtful strategic player in its relations with the CJEU.

Of Hawks, Doves and Chicken

Of the classical game forms found in the game-theoretic literature, the one that seems to best approximate the conflictual relations between the CJEU and national courts such as the GFCC and the CCC is the game of Chicken. Most people, presumably, know it from the classical presentation where two drivers head for the same single lane bridge from opposite ends, with the last to swerve counting as the winner. The same game, with the same payoff structure, is also known as the Hawk-Dove game. There two players compete over a resource and have to decide whether to fight (play Hawk) or to acquiesce (play Dove). For each player, the best outcome is, of course, when she plays Hawk and the other player plays Dove, while the worst outcome sees both players choosing to play Hawk. This game form has been widely used in international relations to analyse crisis situations. What strategy should a country adopt, knowing that it will incur severe losses if it acquiesces to the demands of its neighbour but knowing at the same time that a war would be even more costly? I see several reasons why this approach also constitutes an appropriate way to model judicial interactions in the EU legal system. First, jurisdiction is a rivalrous good. Assuming that courts want to expand – or at least preserve – their jurisdiction, courts on opposite sides of a jurisdictional dispute, like the two players in a Hawk-Dove game, have opposite institutional interests. When one court expands its jurisdiction, it normally does so at the other’s expense. (More powerful domestic courts have obviously more to lose, which would explain why the mighty GFCC has been at the forefront of the judicial resistance to integration.)

Second, analogous to the players in a Hawk-Dove game, the courts perceive, or should perceive, the disastrous consequences that would ensue, should both pursue a strategy of defiance. For the CJEU, a single case of overt non-compliance by an influential domestic court may set a dangerous precedent, damaging its authority as well as the effectiveness of EU law. But putting a threat of non-compliance to execution may attract problems to domestic courts, too.  A ruling that comes to be regarded as detrimental to the country’s interests and membership in the EU may trigger adverse political reactions. Legislators may decide to punish the unruly court by rolling back its jurisdiction, changing its rules of procedure, appointing new judges, etc. On that score, it is worth remembering that a group of respected German academic lawyers reacted to the GFCC’s ruling on the Lisbon Treaty – which stopped short of holding the Treaty unconstitutional but was nonetheless regarded as articulating a strongly Eurosceptic position – by calling on legislators to amend the Federal Constitutional Court Act (Bundesverfassunggerichtsgesetz). The proposed amendment would have required that the GFCC send a reference for a preliminary to the Court of Justice before entering any judgment on the ultra vires character of an EU act. Had it become law, the amendment would certainly have dealt a severe blow to the GFCC’s institutional standing. More generally, despite the growing anti-EU sentiment among their voters, government parties in the Member States, even the more Eurosceptic ones, usually agree about the fact of EU membership. This entails that domestic courts can ill-afford to make decisions that would imperil their country’s full membership in the supranational club. In my view, this fact places an upper limit on the level of defiance of domestic judges. The doctrines of direct effect and supremacy are now part – though not necessarily in the form expounded by the CJEU in its jurisprudence – of the “acquis communautaire”. Thus, unless the government parties wish to leave the EU, a court that blatantly defies it will face a political backlash. This is why the decision of the Czech constitutional judges looks daft. As the GFCC understood early on, going to war should always be the ultima ratio.

Bluff and Brinkmanship in the Judicial Cold War

In the situation we are concerned with, the courts’ strategic choice mirrors the one faced by the players in a Hawk-Dove game. Assuming that a constitutional crisis is a worse outcome than a jurisdictional loss, a domestic court’s best response to a dovish CJEU is hawkish judicial expansion or reassertion, but its best response to a hawkish Court of Justice is judicial restraint. Hence it is easy to see to that each court would ideally be the Hawk and have the other be the Dove. Yet strategic decision-making – again, as in the standard formulation of the Hawk-Dove game – is rendered difficult by the fact that the courts do not have a dominant strategy – i.e. a strategy that remains the best whatever strategy the other court happens to choose. This difficulty is further compounded by the iterative character of judicial interactions in the EU court system. We’re not dealing with a one-shot game but with repeated interactions.

Now, when we repeat a game indefinitely many different equilibriums are possible. But if the players are allowed to communicate about their future choices, they may be able to use communication so as to induce an equilibrium more favourable to their interests. A country’s leader may thus want to signal hawkishness and announce he is ready to go to war. Similarly, a court may hint that it is ready to risk a constitutional crisis to force the other to acquiesce to its jurisdictional demands. The resolve of the judges just as that of the leader may be impossible to establish with certainty. But credible enough the signal may well work. This I would argue is the game the GFCC has been playing ever since its first Solange decision. On numerous occasions, the German Court threatened to disapply EU legislation if found to be ultra-vires or to violate basic human rights. Yet it has never put its threat to execution. To many legal scholars, this is proof that the GFCC is a dog that barks but never bites. But in fact this may be a sign of its success in countering the CJEU’s activist impulses. Without ever setting aside a single EU act, the Karlsruhe court may have managed to set limits on the European Court’s jurisdictional expansion. Perhaps it was bluff all along (the judicial Hawk was in reality a judicial Dove). But if bluff it was, it seems to have worked, at least some of the time. The Court of Justice’s human rights jurisprudence is often presented as a response to Solange. The GFCC’s decision on the Lisbon treaty, meanwhile, invites comparison with the Cuban missile crisis. By designating its most Eurosceptic judge, Udo di Fabio, as rapporteur and by issuing an opinion with strong sovereigntist overtones, the GFCC may have successfully emulated President Kennedy’s cautious firmness with the Soviet Union. Having made its voice heard, the Honeywell ruling was then similar to the Kennedy’s decision to withdraw nuclear warheads from Turkey: a face-saving exit for the CJEU that would ease and bring tensions back to a more manageable level.

Conclusion

I do not mean to say that the GFCC is always a force for good in the EU legal system. Its role in the ongoing debt crisis, where it seems to serve as pre-commitment device for the German government in negotiations with other Member States (“We can’t accept this because our constitutional court will say no”), is, for my money, highly objectionable on normative grounds. So too is the declaration of its President, Andreas Vosskuhle, that the German Constitution “hardly admits of more integration”, whose subtext seems to be “We, the Court do not want to see more integration”. But this is not my point. Rather my point is that thoughtful domestic judges, even if they take a sceptic view of integration, should first seek negotiations with the judges in Luxembourg before even thinking about pressing the big red button. Those who fear a judicial Armageddon will find some comfort in experiments that have shown that the iterated Hawk-Dove game (in its Snowdrift variant) leads to consistently higher levels of human cooperation than other iterated games such as the iterated Prisoner’s Dilemma. As with superpowers during the Cold War, the threat of mutually assured destruction seems to provide human beings with a strong incentive to cooperate. Let’s hope judges are human beings too.

Arthur Dyevre is Senior Research Fellow at the Max Planck Institute for Comparative and International Public Law in Heidelberg

This post originally appeared in the Verfassungsblog, and is reposted here with thanks. 

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ALBA event: Government in the Age of Coalition, 14 March 2012

  Constitutional and Administrative Law Bar Association

 Government in the Age of Coalition: The Workings of the British Constitution and the Cabinet Manual

 Speakers: Lord (Peter) Hennessy, Lord (Gus) O’Donnell, & Andrew Blick

 Chair: Lady Justice Arden

 14 March 2012, 17.45-19.15

Bingham Room (formerly the Spy Room), Gray’s Inn

 1½ CPD points (Law Society and Bar Council) have been applied for. There is no charge for attending. All welcome and no advance registration required. Attendees are encouraged to arrive early, as spaces are limited. 

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Mark Elliott: The draft Brighton Declaration, the Human Rights Act, and the Bill of Rights debate

As Noreen O’Meara has already posted, a draft of the Brighton Declaration concerning reform of the European Court of Human Rights (ECtHR) has leaked into the public domain. Of course, that draft may well turn out to be substantially different from the final text, which will reflect whatever consensus (if any) is reached at the High Level Conference on the Future of the European Court of Human Rights in April 2012 – billed by the UK Government as the “flagship event” of its chairmanship of the Council of Europe’s Committee of Ministers. It is nevertheless worth considering what the implications would be if the present draft were adopted: their potential significance, it will be argued, is considerable, and close scrutiny of their merits (or otherwise) is therefore warranted.

Noreen O’Meara’s post provides an excellent overview of and commentary on the present version of the text. This post, however, will focus on a narrower set of issues. In it, I will suggest that the draft Declaration, if implemented, would have the potential to reduce the extent to which the European Convention on Human Rights (ECHR) operates as a concrete restriction upon the legal freedom of state parties. This, in turn, would have implications for both the practical impact of the Human Rights Act 1998 (HRA) and the debate concerning the possibility of replacing it with a “UK Bill of Rights”. In order to develop this argument, it is necessary to begin with some observations about the HRA.

The Human Rights Act: legal and political constitutionalism; national and international law

The HRA, in two related senses, performs distinctive and important “bridging functions”. First, on the horizontal (national) plane, it operates as an interface between legal and political notions of constitutionalism. By leaving the doctrine of parliamentary sovereignty undisturbed, the Act preserves Westminster’s domestic legal capacity to contravene the ECHR. At the same time, however, the HRA reduces the political scope for exercising legislative supremacy in such a way, not least by requiring courts to use the Convention as a benchmark by which to assess Acts of Parliament (as well as other forms of legislation and administrative action) and authorizing them to issue declarations of incompatibility when legislation is found wanting.

Second, on the vertical plane, the HRA creates a site of interaction between national law and politics, on the one hand, and international law, on the other. One of the defining features of the HRA is that it is not as such constitutive of rights, in the sense of creating or enshrining them in domestic law. Rather, the Act is a conduit whereby the Convention rights are given effect in UK law in a variety of ways and subject to certain limitations – including, most obviously, the capacity of the Westminster Parliament, as matter of national law, to override Convention rights by means of sufficiently clearly worded legislation. As such the HRA implicitly acknowledges, but makes no explicit attempt to resolve, the tension between the legally binding nature of the Convention rights as a matter of international law and the legal freedom of the sovereign UK Parliament to override those rights as a matter of national law.

It is in the interaction of its horizontal and vertical bridging effects that the potency of the HRA lies: the political pressure exerted by a legal judgment that yields a declaration of incompatibility is attributable in part to the fact that, for all that such a declaration is non-binding in terms of national law, it identifies a breach by the UK of norms that are binding upon it in international law. This helps to explain why, for instance, declarations of incompatibility routinely result in remedial legislative action – and why, therefore, the HRA is a more powerful constraint than its status as a non-supreme law bill of rights might be taken to suggest.

The role of the European Court of Human Rights

On this analysis, the success (judged from the perspective of those who welcome rights-based legal restraint of political authority) of the HRA model lies in the way it enables norms that are binding in international law to penetrate the domestic sphere, thereby eroding the distinction between the legal and political realms erected by the orthodox notion of legislative supremacy. This analysis of the HRA is, however, heavily contingent upon certain assumptions about the nature and legal status of the Convention rights themselves. In particular, it presupposes that those rights are characterized by a certainty and precision that gives them real bite. And this, in turn, requires the existence of a mechanism whereby the (inevitably) vaguely-worded text of the Convention may be imbued with specific meaning. In this way, then, the role of the ECtHR is crucial to the HRA model. By standing as the ultimate and authoritative adjudicator upon the meaning of the ECHR, the Court imbues the Convention rights with a legal crispness and practical force that international human rights norms do not inevitably possess.

For example, compare the International Covenant on Civil and Political Rights (ICCPR). While the Human Rights Committee monitors the implementation of the Covenant by state parties, it cannot be said to perform an adjudicative role equivalent to that of the ECtHR. I have argued elsewhere that this may help to explain the differential impact of New Zealand’s Bill of Rights Act 1990 (BORA) and the UK’s HRA. The BORA and the HRA are superficially similar, in that both seek to give greater effect to international human rights instruments – the ICCPR and the ECHR respectively – while neither equips courts to invalidate or set aside incompatible primary legislation. Yet lawmakers in New Zealand are substantially more willing than their British counterparts to enact or maintain legislation that is (in the view of the courts or the Attorney-General, who has a formal compatibility-reporting role under the BORA) incompatible with relevant human rights norms. Part of the reason for this may well be that judicial (or other) views as to compatibility in New Zealand possess less impact because they do not – in the way that a declaration of incompatibility under the HRA does – anticipate the likely outcome of legally binding supranational adjudication. In that way, the ICCPR rights, as they pertain in New Zealand, are softer in nature – and so more susceptible to legislative infringement. Put another way, while the BORA serves as an interface between legal and political modes of constitutionalism at the horizontal level, it does not serve a vertical bridging function equivalent to that of the HRA because of institutional differences between the international human rights regimes to which the two pieces of legislation relate.

The draft Brighton Declaration

Against this background – as I have suggested in a previous post on this blog and, with colleagues, in a submission to the Commission on a UK Bill of Rights – the scope for reforming the HRA, or for replacing it with a Bill of Rights, is limited: the Convention rights are binding upon the UK, and their meaning and application are policed by the ECtHR. However, the position would be different if the Brighton Declaration, in its current form, were implemented. This is so because, for three interlocking reasons, it would reduce the capacity of the ECtHR to invest the Convention rights with precise legal content and to secure their practical application.

First, the Declaration emphasizes that national authorities have primary responsibility for securing the Convention rights, in that the Court’s role is “subsidiary”. The margin of appreciation doctrine is also emphasized to an extent that outstrips its present role in the Court’s jurisprudence: each state party, according to the Declaration, enjoys a “considerable” margin (generally, it is implied, not just in particular contexts) and the Court’s role is to “review decisions taken by national authorities” to ensure that that margin is not exceeded. It therefore appears that cases that got as far as the Court would, under the Declaration, be less likely to result in a judgment adverse to the state party. In that sense, the Convention rights would be rendered less concrete, or less demanding.

Second, the Court’s role would, in some cases, change. At present, the Court determines the meaning of the relevant provisions of the Convention and applies them to the factual matrix of the case. Such judgments are binding under Article 46(1). They also result in concrete pronouncements by the Court about the compatibility of domestic law with Convention norms, thereby in effect fixing national authorities with an obligation to amend such law in order that they may fulfill their duty under Article 1 to “secure to everyone within their jurisdiction” the Convention rights. However, the present text of the Declaration envisages that the Court should be enabled to deliver “advisory opinions”. Under this system, “point[s] of interpretation” could be referred by national courts to the ECtHR, the latter’s role being to “give its opinion on the point of interpretation” while “leaving it to the national court to apply this to the facts of the case”. Such opinions would harness neither Article 46(1) nor Article 1: they would “not be binding”, and nor (given the limitation of the Court’s role to the interpretation of the Convention) would they result in any concrete pronouncement about the compatibility of the relevant national law (or practice). And although the advisory opinion regime would not replace, but would rather sit alongside, the right of individual petition, the Declaration enters a significant caveat: that when such an opinion is “applied” by the national court, the individual concerned “should ordinarily have no further right to make an application to the Court on the same matter”.

Third, fewer cases would reach the court at all. If implemented, the Declaration would result in changes to the admissibility criteria. Article 35 would be amended “to make clear that”, absent exceptional circumstances, an application is inadmissible “if it is the same in substance as a matter that has been examined by a national court taking into account the rights guaranteed by the Convention”. Exceptional circumstances would be those in which a national court had “clearly erred”, and those in which the case raised “a serious question”, concerning the interpretation or application of the Convention rights.

Such changes to the ECHR regime and the Court’s role within it would have potentially significant implications for the operation of the HRA. As explained above, the relative potency of the HRA is attributable in large part to the shadow which the prospect of binding supranational human rights adjudication casts over the domestic notion of parliamentary sovereignty. The HRA enables that orthodoxy to be at once both formally retained and substantively disrupted. But that is possible in the first place only because domestic courts’ non-binding judgments foreshadow the (strong) possibility of binding judgments by the Strasbourg Court. The three features of the draft Brighton Declaration mentioned above each reduce the probability of such judgments being rendered.

Consider, for instance, a situation in which a domestic court issued a declaration of incompatibility under s 4 of the HRA. Under the regime envisaged in the draft Declaration, the force of such a declaration would probably be less than at present. If the declaration of incompatibility were issued following an advisory opinion by the Strasbourg Court, it would, at least in some circumstances, be open to the Government to contend that that Court might not have concluded (had the matter reached it otherwise than via the advisory route) that domestic law or practice was incompatible with the Court’s interpretation of the Convention. Moreover, the individual concerned would presumably be unable decisively to challenge that view because once the Strasbourg Court had issued an advisory opinion that had been applied in domestic legal proceedings – which it would have been – the Court’s door would be closed. Even if the proposed advisory jurisdiction were not in play, a declaration of incompatibility’s potency would potentially be diminished by the proposed revisions to the admissibility criteria: since the matter would already have been examined by a national court (in proceedings culminating in a declaration of incompatibility), an application to the ECtHR would, absent exceptional circumstances, be inadmissible. And underpinning all of this would be the renewed emphasis on the ECtHR’s subsidiary role and the “considerable” width of the margin of appreciation. The upshot of these changes, then, would be to render the Convention rights less concrete in a way that would doubtless be attractive to a Government that wished to ignore a domestic declaration of incompatibility. Put simply, there would be greater scope than there presently is for the Government to argue that the ECtHR might not see things in the same way as the domestic court, while enjoying the luxury of a procedural regime that reduced the likelihood of the ECtHR pronouncing upon the issue either at all or in a manner sufficiently decisive to remove the scope for advancing such an argument.

The Bill of Rights debate

The debate (such as it is) concerning the replacement of the HRA with a “UK Bill of Rights” is very substantially constrained – whether or not politicians are prepared to admit it – by the simple fact that whatever domestic human rights legislation does or does not say, the text of the ECHR remains the legal bottom line for as long as the UK is a state party to it. Once that point is appreciated, the scope for “reform” of the HRA is very limited – unless it is accompanied by change at the ECHR level. Viewed thus, the draft Brighton Declaration assumes the form of the missing piece of the bill-of-rights debate jigsaw. If the role of the ECtHR were diminished in the way envisaged by the Declaration, the Convention rights themselves would taken on a less obviously prescriptive character. Lighter-touch review by a harder-to-access Court some of whose judgments would become non-binding would render the content of the rights more contestable. As a result, the Convention regime’s capacity to imbue the HRA with real legal bite would be reduced. Alternatively, the features of the new regime could be harnessed more explicitly by means of a reworked bill of rights. For instance, national courts might be required to take account of the UK’s “considerable” margin of appreciation, bearing in mind that – at least according to paragraph 17 of the draft Declaration – the doctrine is based not just on the cultural dislocation of the ECtHR as an international court, but also on the democratic credentials of elected legislatures. National courts might also be legislatively encouraged – or required – to use the advisory opinion mechanism, thereby reducing the prospect of binding judgments rendered by the ECtHR in cases brought by means of individual petition.

For those who regard the HRA as a legislative straight-jacket that undermines Parliament’s ability to legislate in the public interest, the possibilities raised by the draft Brighton Declaration, and the scope they may in turn afford for the weakening of the HRA model, will doubtless be attractive (if modest) ones. Even for those who are less skeptical about the enforcement of human rights via the ECHR/HRA mechanism, there is reason to welcome aspects of the draft Declaration. Certainly, it is right that the process of enhancing the Court’s capacity to manage its caseload should be taken forward. And ECHR/HRA enthusiasts might equally welcome the recognition in the draft Declaration of the need to be sensitive to the fact that the Strasbourg Court should not claim a monopoly of wisdom when it comes to determining the meaning of the Convention text. It should, however, be recognized that the “streamlining” measures proposed by the draft Declaration would have real consequences for the Court’s substantive role, not just the way it operates at a procedural level.

As an interface between the domestic and ECHR legal systems, the HRA’s potency turns, to a large extent, on the nature of the Convention regime. And as a bridge between the realms of (human rights) law and (legislative) politics, the HRA’s capacity to facilitate the disruption of the latter by the former depends, in large part, upon the obligatory character of the transnational regime for which the Act serves as a conduit. Reform of the ECHR and its associated machinery along the lines envisaged in the draft Brighton Declaration would, of course, have implications across Europe. But it possible to assert, without undue parochialism, that it might have particular significance in the UK, where the Convention serves – and, the “bill of rights debate” notwithstanding, is likely to continue to serve – as the closest approximation there is to a constitutional bill of rights. Against that background, the Brighton process deserves the sort of scrutiny that would – in any country with a “normal” constitution – accompany a proposal to amend the constitution itself. It may very well be that none of the aspects of the present draft that are discussed above will find their way (at least in their current form) into the final version of the Declaration. It is important, however, that those arguing for the inclusion of those aspects of the draft – including, presumably, the UK Government – are required to face up to, and defend, their potential implications.

Mark Elliott is a Senior Lecturer in Law at the University of Cambridge

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Noreen O’Meara: Reforming the European Court of Human Rights: The Draft Brighton Declaration

Efforts to reform the European Court of Human Rights are defining the UK’s chairmanship of the Council of Europe, a six-month term which comes “once in a generation”.  With the docket and adjudicatory problems affecting the Strasbourg court well-known, the UK is seeking to build on previous recent efforts to streamline practices at the Court, most notably measures agreed at high-level conferences at Interlaken (2010) and Izmir (2011).

In contrast with the public and sound-bite infused speech in which Prime Minister David Cameron outlined the UK’s motivations for using its chairmanship to advance reform of the European Court of Human Rights last month, the Draft Brighton Declaration was finally leaked yesterday (first in French, later in English), following its transmission to High Contracting Parties last week.  The Draft Declaration will be subject to intense negotiations in the lead-up to the Brighton Ministerial Conference on 18-20 April 2012.  Indeed, there will be much to discuss: the draft, informed by discussions within the Council of Europe, puts (almost) everything in relation to the Court’s adjudicatory role, and national courts’ relationship with it, on the table.  A sign, perhaps, that the government appreciates the limited prospects of securing unanimous agreement on many of the aspects covered by the Draft.  Nevertheless, the proposals raised by the Draft Declaration make interesting reading, particularly in light of the ECtHR’s Preliminary Opinion of the European Court of Human Rights adopted on 20 February 2012.  This post focuses on a select few.

Proposals on subsidiarity?

The most prominent feature of the Draft Declaration is its emphasis on ‘subsidiarity’.  In his recent speech, David Cameron emphasised strengthening subsidiarity, promising proposals “pushing responsibility to the national system” in order to “free up the Court to focus on the worst, most flagrant human rights violations”.

The Draft seeks to do this via a range of methods.  First, paragraph 19(b) calls for the enhancement of the principles of subsidiarity and the margin of appreciation “by their express inclusion in the Convention”.  As Antoine Buyse has noted, it is unclear what impact, if any, including these principles would have in practice.  It would be trite to recount the extensive case law showing that the Strasbourg judges are conscious of and respect the principle of subsidiarity.  Most recently, and in the UK context, the Grand Chamber’s judgment in Al-Khawaja on the use of hearsay evidence showed a clear example of dialogue in action between the UK Supreme Court and ECtHR.  Interestingly, the Draft mentions a range of ways in which this dialogue could be enhanced, though judgments, the work of the Steering Committee for Human Rights and though Government influence on amending Rules of Procedure of the Court.

Secondly, a raft of measures are suggested in Section A aimed at strengthening national systems through their implementation of the Convention.  Some proposals are laudable (internal checks on compatibility of legislation with the ECHR (para 12(c)(i) and (ii)); new domestic remedies where appropriate (para 12(c)(iv); greater training for public officials (para 12 (c)(vii) and (viii)).  There is much scope for rationalising domestic human rights adjudication in the jurisdictions of High Contracting Parties.  However, it is surprising that more is not made of the remedies point (perhaps being a subtle reference to the inappropriate “small claims court” sound-bite in Cameron’s speech).  Making better provision for remedies at the national level may well avoid recourse to Strasbourg for many claimants.  But what about the appropriateness of remedies awarded by Strasbourg?  Is ‘just satisfaction’ just?  The absence of a consideration of remedies at both national and ECtHR levels is an odd omission—deferred for future consideration in the longer-term (para 42(e)(iii)).

Thirdly, measures which tie subsidiarity in with jurisdiction and docket control.  The Draft’s proposed ‘advisory opinion’ mechanism (para 19(d)) would allow highest national courts to refer questions to Strasbourg, and allow national courts to apply the opinions provided to the facts of the case. Presumably modelled on the preliminary reference system in the EU legal order, this human rights version looks, at first glance, a neat way of clarifying “the respective roles of the Court and national judicial systems” (the UK government’s express motivation – para 19(d)) and of engaging highest national courts even more deeply in a human rights dialogue with Strasbourg.  However, the mechanism is couched in language which could harm both comity and access to justice.  Its terms are currently loose: the mechanism itself would be an opt-in; highest national courts would have (seemingly) unfettered discretion to refer; advisory opinions delivered by Strasbourg would be non-binding; and above all, litigants would “not ordinarily” have recourse to the ECtHR in the same proceedings following a national court’s application of an opinion to the facts.  This initiative may prove workable (with more robust terms) but would do little to alleviate the Court’s docket.  Transposing a version of the preliminary reference mechanism to a purely human rights context requires more thought.  As such, the ECtHR has indicated that it will issue a ‘reflection paper’ on the merits of an advisory opinion mechanism in due course.

Taking a sledgehammer to crack admissibility?

The measures which may attract debate in inverse proportion to their likelihood of being accepted are the Draft’s proposals on admissibility.  The Draft attacks the admissibility problem two-fold.  The first suggestion would reduce the deadline for making an application to the ECtHR from six months to either two/three/four months from the date domestic remedies have been exhausted.  The sledgehammer approach may not impact litigants in a jurisdiction where they are likely to be promptly advised of the merits or otherwise of making an application to Strasbourg, and where support from NGOs may be forthcoming.  Across the High Contracting Parties, this is not the norm.  Moreover, simply cutting the deadline to two, three or four months is easier than enquiring into the working practices at the Court in terms of its handling of admissibility (see Ben Jones’ assessment and Andrew Tickell on mythbusting admissibility).  On this specific point, however, the ECtHR will prove welcoming: its latest observations indicating that it may be possible to reduce the six-month time limit “considerably” having regard to time-limits in place in national jurisdictions.

Perhaps most controversially, the Draft proposes rendering applications stemming from cases considered by national courts inadmissible unless (i) the national court “erred” in interpreting Convention rights; or (ii) the application “raises a serious question” relating to the interpretation or application of the Convention (para 23(c)).  This stretches far beyond simply making efficiency changes in Strasbourg, or efforts to transform the relationship between national courts and the European Court of Human Rights.  This could change the character of the Strasbourg court, and potentially strikes at the heart of what the court is meant to offer and achieve: access to justice for the adjudication of human rights violations.  Reforms adopted must not indirectly dilute the accountability of states.  There are possible risks to judicial comity and access to justice in the proposals as currently framed.  However, this is a debate the Strasbourg court rightly wants to have – its observations expressly encourage the High Contracting Parties to “identify solutions” relating to admissibility and docket control.

Overall impression

Whilst certain other reform measures (particularly those relating to the appointment of judges, and support for the Council of Europe’s work in implementation of the Convention) are logical and may have mileage, the overall impression at this early stage of negotiations is somewhat underwhelming.  Opportunities to make recommendations regarding resources, and address remedies (comprehensively) appear to have been missed.  Given the enthusiasm for reforming the court—and reaffirming support for the strong ECtHR which citizens need—it is a shame that many of the suggestions, at least in their draft form, either lack rigour or appear misplaced.  To that end, the ECtHR’s own pre-Brighton observations adopted on 20February also offer some pragmatic suggestions tailored to specific types of cases.

Notwithstanding some shortcomings, this is a varied road-map for reform: its thematic range and hard-line attitude in favour of promoting human rights adjudication in national courts may do no harm in shaking up the debate on the future role and practice of the European Court of Human Rights.  It’s a debate which, building on agreements at Interlaken and Izmir, may finally be maturing.  It will be interesting to see how much of the Draft Declaration survives April’s Brighton Conference, and how the current proposals will evolve.

Noreen O’Meara – Lecturer in Law, University of Surrey; Doctoral researcher, Queen Mary, University of London

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