Monthly Archives: June 2012

Emily Burke: Same-Sex Marriage Legislation in Australia

There is a global trend towards the recognition of same-sex unions, with recent expressions of support from Prime Minister David Cameron, President Obama and the new French President Hollande. In the Australian Federal Parliament there are currently two bills in the House of Representatives and one in the Senate that would legalise same-sex marriage. When the Labor Party government last year amended its official policy platform to advocate for same-sex marriage, its members were ensured a conscience vote on the issue. However the Liberal-National Party coalition in opposition has rejected same-sex marriage reform, and a recent motion to allow a conscience vote for its National party members failed. The minor Greens Party and backbenchers from all sides continue to call for the leader of the opposition to allow coalition members the freedom of a conscience vote.

A committee of the House of Representatives completed its inquiry into the same-sex marriage bills in early June, but declined to support or reject the legislation as a committee. More recently, the Senate Legal and Constitutional Affairs Committee released the report of its separate inquiry. In the latter case, of the six voting members, four were in support of the bill (one Liberal-National, two Labor, and one Greens Senator). However the remaining two voting Senators, one Labor and another Liberal-National, each issued a strong dissent. There were 10 additional participating Senators on the committee, eight of which opposed the legislation.

The public debate over these issues has been intense, with the Senate Committee alone receiving an unprecedented 79,200 submissions – 46,000 of which were in support of same-sex marriage. The House of Representatives Committee received over 250,000 responses to their online poll, with a strong majority of 64% in favour of marriage equality.

Alongside the political debate as to whether same-sex marriage should be enacted, lies a legal one concerning whether such legislation is capable of being enacted by the Commonwealth Parliament. The bills would change the statutory definition of marriage, which is currently the ‘union of a man and a woman’, to be the ‘union of two people … voluntarily entered into for life.’

The dissenting Senators relied on the submissions of several lawyers to conclude that the constitutional foundation for such legislation is weak, and a referendum is ‘worthy of serious consideration’ to allow the public to decide whether or not same-sex marriage should be legalized.

This comment aims to examine the constitutional foundation upon which the Australian Parliament could legislate for same-sex marriage, and assess its strength. Is there a case for proceeding with a referendum before legislating on such an important question?

(1)  The Constitutional Validity of Same-Sex Marriage Legislation

Under section 51(xxi) of the Australian Constitutionthe Commonwealth Parliament has power to makes laws with respect to ‘marriage’ – a term that is not further defined in that document. The Commonwealth Parliament cannot determine the ambit of its own power by defining the constitutional meaning of the word ‘marriage’ through legislation. It is exclusively the role of the High Court to determine the constitutional limits of Parliament’s powers. However there have only been sparse indications from the High Courton whether the ‘marriage power’ can support legislation for same-sex marriage.

In the cases of Singh(2004)and Re Wakim(1999), Justice McHugh commented that at 1900, the time of the Constitution’s foundation, ‘marriage’ was seen as meaning a voluntary union for life between one man and one woman to the exclusion of all others. However, his Honour noted that ‘by reason of changing circumstances’, ‘marriage’ now means, or in the future may mean, a voluntary and permanent union between two people’.

This demonstrates the two different views that the High Court could take on the scope of Parliament’s power to legislate with respect to ‘marriage’. On one view, the permissible meanings of the constitutional provision are limited by the framers’ intentions – confining ‘marriage’ to only different-sex unions.

Alternatively, as Justice McHugh’s comments indicate, the High Court could conclude that the essential concept of marriage is a commitment of two people to a voluntary and permanent union – and in contemporary society, includes both heterosexual and homosexual conceptions of marriage. In this sense, the constitutional meaning of marriage may be said to have ‘evolved’ beyond the 1900 conception of marriage as exclusively heterosexual.

The ‘evolution’ of constitutional meanings using a distinction between its ‘essential’ and non-essential features is not uncommon. For example, section 80 of the Constitutionguarantees the right to trial by jury for Commonwealth offences on indictment. In Cheatle(1993)the High Court recognized that criminal juries in 1900 were constituted exclusively by males who satisfied some minimum property qualification. However, it was held that the ‘relevant essential feature or requirement of the institution was, and is, that the jury be a body of persons representative of the wider community’. As such, they held it would be ‘absurd’ to suggest that women and unpropertied persons would be excluded from juries, ‘in the more enlightened climate of 1993’. By analogy then, if the ‘essential concept’ of ‘marriage’ is the voluntary and permanent union between two people, it is not necessary or essential that they be of opposite sex.

Another important example is the evolving power of Parliament to legislate with respect to ‘intellectual property’ under section 51(xvii) of the Constitution. The High Court has held that the ‘essence’ of the intellectual property power is that it ‘authorizes the making of laws which create, confer and provide for the enforcement of intellectual property rights’. Thus Parliament is able to create ‘fresh rights’, and the boundaries of the intellectual property power are not to be ‘ascertained solely by identifying what in 1900 would have been treated as a copyright, patent, design or trademark’. (The High Court in Grain Pool(2000) cited with approval the analogy that the meaning of trademarks in 1900 provided a ‘centre’, around which to seek the full ‘circumference of the power’.)

Comparing the intellectual property power and marriage power highlights how the High Court must have regard to the development of the common law and legislation when determining the constitutional meanings of legal terms of art. Several submissions to the Senate Committee described the same-sex marriage bill as equivalent to Parliament expanding its power to legislate with respect to lighthouses (s 51(vii) of the Constitution) by statutorily defining ‘lighthouses’ to include schools. But this comparison overlooks the ‘vital distinction’ identified by Higgins J in the Trade Markscase between subject matters that are ‘concrete, physical objects [where] the boundaries of the class are fixed by external nature’, and those that are ‘artificial products of society, and dependent upon the will of society’. By way of example, his Honour explained that while ‘[t]he class ‘cattle’ cannot well be extended by man; the class ‘trade marks’ can be extended. Power to make laws as to any class of rights involves a power… to extend the class of those who may enjoy those rights.’ Thus it is a mistake to overlook the fact that marriage, not being a concrete object fixed by ‘external nature’, is an artificial legal construct inherently capable of expansion.

An additional consideration supporting the likelihood that the High Court would uphold a law providing for same-sex marriage is that Commonwealth legislation has a presumption of validity. As Dan Meagher and Margaret Brock have argued, this presumption should be at its strongest when the legislation considered raises ‘complex and intractable moral issues of this kind’.[i]

One concern raised by opponents of the bills is the possible conflict between the legalization of same-sex marriage and freedom of religion. Section 116 of the Constitution provides that the Federal Parliament cannot make any law ‘prohibiting the free exercise of any religion’. Currently section 47 of the Marriage Act 1961 (Cth) provides that there is no obligation imposed on an authorized celebrant, being a minister of religion, to solemnize any marriage. If bills legalizing same-sex marriage were passed, this exemption would be broad enough to ensure that no ministers would be obliged to solemnize same-sex marriage. Even so, to address the anxieties of religious groups, the Senate committee has recommended the insertion of ‘for avoidance of doubt’ provisions that expressly provide that such legislation does not limit the freedom for religious ministers to decline to solemnize same-sex marriages.

On balance therefore, it appears more likely than not that the High Court would find that same-sex marriage legislation was constitutional. However, the resolution of these issues may depend on when the issue goes to the High Court. There will be four new appointments over the coming years, including two within the next six months; and it is impossible to know for certain what methods of constitutional interpretation these justices will take.

(2)  A Referendum On Same-Sex Marriage?

Given the uncertainty over whether a bill legalizing same-sex marriage would be struck down by the High Court, should a referendum be called instead? The dissenting Senators in the Senate Committee stated that they

 believe it is profoundly unsatisfactory to erect such major law reform on so weak a constitutional foundation. In particular, the possibility that people might undertake marriage pursuant to such a law, only to have their ‘marriages’ struck down by the High Court, is a highly unsatisfactory way for the Parliament to proceed. The committee majority shows contumelious disregard for the interests of homosexual Australians by advancing such a risky and ill-advised course of action.

[The] Coalition senators are of the view that, given that a number of the submissions to the committee acknowledged that same-sex marriage raises significant social, religious and cultural issues and that section 128 of the Constitution provides a mechanism to enable the people to expand the specified powers set out in the Constitution, a referendum to enable the people to pronounce on the issue of same-sex marriage is worthy of serious consideration.

This position assumes that the legislation is indeed on very weak constitutional grounds, but also appears to misunderstand the relationship between the High Court, Parliament and the people. As the majority Senate report noted, the Parliament is elected to pass legislation, and acts within its constitutional right when it passes legislation ‘which it believes to be valid, and ultimately in our system it [is] left to the High Court to determine otherwise’ (quoting from the evidence of Professor John Williams). Australia has a long history of Parliament passing legislation where there is some doubt as to its constitutional validity. Parliament does not seek separate constitutional endorsement via referendum on each occasion such an enactment is passed.

The ‘risk’ that many people may enter same-sex marriages that will then be declared void can be addressed in other ways. As a test case is likely to be brought immediately after a same-sex marriage bill passes, Parliament could suspend the same-sex marriage provisions until the High Court decides the validity of that marriage, preventing any further persons from entering into same-sex marriages that might be subsequently voided should the Court confirm a want of power.

This appears to be the better course of action than a referendum considering: the likelihood that the legislation is indeed valid; the huge cost and time involved in holding referendums; and the actual interests and desires of Australians in the LGBTI community who wish to see the legislation passed in preference to a referendum being held. Other commentators and the majority report of the Senate Committee also noted that Australian proposals to amend the constitution are far more likely to fail than to succeed – for a variety of reasons that extend well beyond the merit of the proposals in question. To date, 44 referendums have been held, of which only 8 have been carried to effect change to the Australian Constitution.


Although there remain constitutional uncertainties over the scope of the marriage power, there are strong arguments in favour of the constitutionality of the same-sex marriage bills currently before the Australian Parliament. As marriage is governed by our civil and not religious laws, it is for Parliament to determine who can and cannot marry. Australian law can better balance freedom of religion with the separation of church and state, by providing that every person is entitled to marry the person of their choice, whilst ensuring that religious officials are not required to solemnise any particular marriage.

Emily Burke is an intern at the Gilbert + Tobin Centre of Public Law at the University of New South Wales

[i] Margaret Brock and Dan Meagher, ‘The Legal Recognition of Same-Sex Unions in Australia: A Constitutional Analysis’ (2011) 22 Public Law Review 266, 278.

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Andrew Le Sueur: Have you heard the one about Jimmy Carr, ‘The Guardian’ and a small British island?

There aren’t many good jokes about constitutions. In fact, I’m not sure there are any jokes about constitutions. Be that as it may, British comedian Jimmy Carr has  sparked a debate about the constitutional future of a small British island off the coast of France. Carr isn’t my cup of tea. I sat next to him on a flight to Jersey once; we didn’t talk and I find his humour too close to the snide and oily end of the comedy spectrum. But clearly my view’s not widely shared as he’s made lots of money and put some  into a tax avoidance scheme in Jersey. The prime minister said it was immoral, Jimmy’s been contrite, and Guardian readers are being asked in an online poll ‘Should Jersey have constitutional independence from the UK?’ At the time of writing (the poll is still open) 62.3 per cent of respondents say ‘yes’. Judging by readers’ comments, most would add ‘… and good riddance’.

What’s puzzling is that while independence talk is fast and frequent in the north of the Kingdom, in the southernmost part of the ‘British Islands’ (a legal term of art: see theInterpretation Act 1978, schedule 1) it’s sporadic and peripheral.

There aren’t many buses serving the rural parish in Jersey where my family has lived in since the 14th century, but I suspect a straw poll on the No.4 would reveal four reactions and an overall picture completely at odds with the Guardian poll.

(1) Don’t be silly! How can a 46 square mile island with a population of 100,000 become a sovereign state? That would be like ‘Passport to Pimlico’.

(2) No independence please, we’re British! There’s no doubt that Jersey is British, even if names of people and places are often in French (and these days, Portuguese and Polish). Some people fear that independence would undermine cultural, family and economic ties with the UK.

(3) That would be bad for business! Jersey’s economy is dominated by the finance sector. There are frequent skirmishes – OECD initiatives on harmful tax competition, EU pressures on ‘zero-ten’ tax policy, VAT low value consignment relief, Jimmy Carr. It is an industry that sells, among other things, the allure of constitutional stability and talk of change risks deterring customers.

(4) We don’t trust Jersey politicians and ‘the Establishment’! Some people argue that independence would remove the safety net of UK government’s longstop ‘good governance’ oversight of the island’s internal affairs.

It wouldn’t surprise me if nobody on the bus were in favour of independence. But times change and constitutional ideas that in one era are marginal can gain traction.

A Crown dependency

What is the current position? Jersey, along with the entirely separate island jurisdictions of Guernsey and the Isle of Man, are constitutionally speaking ‘Crown dependencies’. They enjoy (and have done for centuries) something along the lines of ‘devo max’ proposed for Scotland: the islands have full fiscal autonomy and are for almost all purposes internally self-governing. They have never been part of the UK. The Queen formally makes some senior appointments and the Crown is represented by a Lieutenant Governor, which many people think lends an air of dignity and ceremony to island life. From the island’s point of view, another benefit of the current set-up is that there is no need for any defence provision, diplomats, or other apparatus of statehood.

The Crown dependency relationship is not set in aspic. In recent years, the islands have collectively and individually asserted greater autonomy. In an interconnected world, the previous internal (leave it to the islands)/external (leave it to the UK) dichotomy doesn’t work as well as it did.

The islands were given a place at the table of the British-Irish Council (without much consultation I suspect) in 1999. The preamble to the States of Jersey Law 2005 captures the direction of travel as it recites ‘WHEREAS it is recognized that Jersey has autonomous capacity in domestic affairs; AND WHEREAS it is further recognized that there is an increasing need for Jersey to participate in matters of international affairs …’.  In 2007, the Jersey and the UK governments agreed a concordat (Framework for developing the international identity of Jersey). Jersey has been allowed sufficient international legal personality to sign international agreements with other countries (on double taxation and tax information exchanges). In 2010, the all-party UK House of Commons Justice Committee in their inquiry into Crown dependencies was supportive of greater autonomy and critical of meddling by the UK Ministry of Justice. Jersey and Guernsey have opened a representative office in Brussels and another is planned forLondon.

Against this background – which many in the island would see as the best of both worlds – there has been little appetite for independence. A few years ago, advised on constitutional issues by Sir Jeffrey Jowell QC, the Jersey government carried out a feasibility study about what independence would entail and how much it would cost, but this was presented as prudent contingency planning.

Sir Philip Bailhache (Jersey’s former Bailiff who stepped down from judicial office to stand in the 2011 election election, and who is now ‘foreign minister’) has shown tenacity in putting the idea of independence on the agenda of elite circles of lawyers and financiers – who listen politely but whom I sense are unconvinced of either the desirability or practicality of independence. Notwithstanding Guardian headlines, he says that he not advocating independence but rather calling for the continued evolution of Jersey’s relationship with the UK Government.

Constitutional politics of independence

It is difficult to know what ordinary people in Jersey think. Certainly, there is no grass roots independence movement. The politics of independence are strange. Unlike Scotland and Wales, nobody with left or green leanings in Jersey seems to have spotted the opportunities that severing the apron strings from London civil servants and UK ministers would bring. Most members of Jersey’s disorganised centre-right government in the party-less States, would probably rather the ‘I word’ was not used in public. Instead, the talk is of developing an international personality (described above) and standing up to the UK (whatever that means). Despite difficult economic times, the finance industry is doing well in Jersey at the moment (in 2011 there was a reported upturn in profits of just under £1.1 billion). With both the progressives and the pro-finance industry establishment politicians against independence, it’s unlikely we’ll ever find out what people on the No.4 to Trinity think.

The direction of travel

Evolution rather than revolution therefore seems to be the most likely course. I have two suggestions for further change to core aspects of constitution – the legislative process and arrangements for appointing judges – that are likely to irk both progressive and establishment thinking in Jersey (so they must be about right).

First: the grant of royal assent to legislation passed by the assembly of the States of Jersey should be patriated to the island. Currently, Laws are subject to a vetting process by a team (in these straitened times, probably of one) in the Ministry of Justice before being cleared for royal assent through the Privy Council. In its 2010 inquiry, the UK House of Commons Justice Committee was satisfied that the Law Officers’ Department in Jersey was more than capable of carrying out human rights audits of proposed new laws. Although I gather there’s subsequently been some streamline of processes in London, a more radical solution is needed: get rid of the London add-on to Jersey’s legislative process. The price to be paid for this, however, is that Jersey’s elected representatives would need to up their game and take an interest in ensuring that they are satisfied with ministers’ and law officers’ assurances on human rights compatibility are credible. Former Deputy Bob Hill failed in his attempts to involve Jersey’s parliamentarians in reviewing legislation through an official human rights scrutiny committee. This would need to be revisited.

Second: responsibility for appointing judges and the law officers of the Crown should be patriated. The UK Ministy of Justice currently has the final say on appointments of the most senior judiciary, and on their removal (the Home Secretary, the minister then responsible for Crown dependencies, removed Deputy Bailiff Vernon Tomes from office in 1992). What Jersey should have, in my view, is an independent judicial appointments commission (consisting of locals and expert outsiders) responsible for all judicial appointments. As well as signifying the autonomy of the island’s legal system, a judicial appointments commission would solve two problems. It is wrong as a matter of constitutional principle for one judge to appoint another: I would therefore remove the Bailiff’s power to appoint magistrates. On constitutional principle, I am also against judicial selection by election: jurats (the senior lay judges of fact in the Royal Court) are chosen by an electoral college of politicians and the legal profession in secret ballot.

À la préchaine.

Andrew Le Sueur is co-convenor of the UK Constitutional Law Group.

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Aileen McHarg: The Dog That Finally Barked: Constitutional Review under the Scotland Act

The reviewability of Acts of the Scottish Parliament (ASPs) at common law has, understandably, attracted considerable interest of late, on this blog and elsewhere.  However, the Supreme Court’s decision in AXA General Insurance Ltd v the Scottish Ministers [2011] UKSC 46 confirmed that the primary means of challenging ASPs is upon the grounds laid down in section 29 of the Scotland Act 1998, and there have in fact been several recent cases brought on statutory grounds which merit similar attention.

In comparative terms, the model of constitutional review – if it is appropriately so described – contained in the Scotland Act is a particularly strong one, permitting both pre- and post-enactment challenges; direct and collateral challenges; and inter-institutional and individual challenges.  Yet, as has frequently been observed, the courts have so far played a relatively limited role in policing the boundaries of the Scottish Parliament’s legislative competence.  Indeed, for the first decade after devolution, although there were a few cases, no legislation was found to be ultra vires, there were no inter-institutional challenges, and it was not until 2008 that any statutory ground other than breach of Convention rights was invoked (Logan v Harrower 2010 JC 1).

In the last few years, however, all this has started to change.  To begin with, the initial trickle of cases appears to be growing into a steady stream.  Whereas between 1999 and 2009 there were only nine reported cases in which legislative competence was in issue, since 2010, there have already been eleven such cases.

Secondly, in February and March of this year, the Scottish courts issued their first rulings that provisions were ‘not law’ in terms of section 29 of the Scotland Act.  Cameron v Cottam 2012 SLT 173 concerned section 58 of the Criminal Justice and Licensing (Scotland) Act 2010, which imposed a standard bail condition requiring the accused to participate in identification procedures and to allow prints, impressions or other bodily samples to be taken.  Because the condition was mandatory and therefore not necessarily justified in particular cases, the Court of Criminal Appeal held that it breached Article 5 of the European Convention on Human Rights (ECHR).  In Salvesen v Riddell [2012] CSIH 26, the Inner House of the Court of Session held that section 72 of the Agricultural Holdings (Scotland) Act 2003 was an unjustifiable interference with Article 1 Protocol 1 ECHR.  The 2003 Act abolished a form of agricultural tenancy – the limited partnership tenancy – which was used to prevent tenants gaining security of tenure, and replaced it with a statutory form of limited duration tenancy which gives tenants enhanced rights.  Following a wave of termination notices issued by landlords in anticipation of the legislation being passed, an anti-avoidance measure was inserted into the Bill which retrospectively cancelled the effect of such notices.  Giving judgment for the court, Lord Gill held that the provision went further than was justifiable for anti-avoidance purposes and was in fact punitive, motivated by the sponsoring minister’s view that the landlords’ action was immoral.  On the contrary, according to Lord Gill, there was nothing immoral in landlords exercising contractual rights to which tenants had agreed.

The third notable change is in the character of recent cases.  Although Convention rights remain the most popular ground of challenge, cases are at last emerging on other section 29 grounds.  The first to involve the devolved/reserved competence boundary was Logan v Harrower, which challenged the validity of section 45 of the Criminal Proceedings Reform etc (Scotland) Act 2007, which raised the maximum sentence available upon summary conviction in the Sheriff Court, insofar as it applied to road traffic offences, which are reserved under Schedule 5, Head E1 of the Scotland Act.  Although the challenge failed in the appeal court, it was essentially revived before the Supreme Court in Martin v HM Advocate 2010 SC (UKSC) 40.  The point at issue in both cases was a rather esoteric one, namely whether a general change to the criminal law, carried out for a devolved purpose, but which for reasons of consistency made changes to the law on reserved matters, and would therefore have been intra vires in terms of section 29(4), was nevertheless ultra vires because it altered a rule which was ‘special to a reserved matter’ in terms of Schedule 4 paragraph 2(3).  By a three/two majority, the Supreme Court in Martin held that the rule was not ‘special to a reserved matter’ because it merely altered the procedural route by which a particular sentence could be imposed, rather than the maximum sentence available for road traffic offences.  However, six months later, in Henderson v HM Advocate 2011 JC 96, the Crown had little option but to concede that a similar general sentencing provision – a power to impose an order for lifelong restriction created by section 1 of the Criminal Justice (Scotland) Act 2003 – should be read down so as not to apply to offences under the Firearms Act 1968.  Firearms is also a reserved matter (see Schedule 5 Head B4), and the effect of the impugned legislation clearly was to increase the maximum sentence available in such cases.

Another ASP which has had multiple challenges is the Tobacco and Primary Medical Services (Scotland) Act 2010, which, inter alia, bans displays of tobacco and smoking-related products (section 1) and cigarette vending machines (section 9).  In Sinclair Collis v Lord Advocate 2011 SLT 620, it was claimed that the section 9 ban breached both Article 1 Protocol 1 ECHR and Article 34 of the Treaty on the Functioning of the European Union (TFEU) (free movement of goods).  The Lord Ordinary rejected both challenges, holding that although it was not clear whether the vending machine ban fell within Article 34, it was in any case clearly a justified and proportionate restriction given its aim to protect public health, and that the same applied to the property rights challenge.  The attack was renewed in Imperial Tobacco v the Lord Advocate [2012] CSIH 9, this time on both provisions and on the grounds that they related to consumer protection, which is a reserved matter under Schedule 5, Heads C7 and C8, and modified section 6 of the Union with Scotland Act 1706, so far as it relates to freedom of trade, reserved by Schedule 4 paragraph 1(2)(a).  Imperial Tobacco is undoubtedly the most significant of the recent cases, since it is the first to involve a straightforward claim that an ASP has encroached upon reserved matters, and the Inner House’s decision contains important guidance on how such disputes are to be resolved.  In particular, the judges rejected the Lord Advocate’s argument, based on Robinson v Secretary of State for Northern Ireland [2002] UKHL 32, that, as a constitutional measure, the Scotland Act ought to be given a ‘generous and purposive interpretation’.  Although of constitutional significance, they insisted that the Scotland Act was not a constitution, but rather an Act of Parliament, and should therefore be interpreted in the same way as other statutes.  While statutes have to be interpreted in the light of their purpose, this requires specific evidence as to the background purpose, and in this case, since the purpose of Schedule 5 was simply to effect a division of powers between the Scottish and UK Parliaments, a purposive interpretation did not assist in determining where the dividing line was to be drawn.  Nevertheless, the court concluded that the tobacco bans were within competence: they were not consumer protection measures, and did not affect freedom of trade within the meaning of the Act of Union.

As to future challenges, litigation is widely anticipated in relation to the Alcohol (Minimum Pricing) (Scotland) Bill, again based on the claim that it is a disproportionate restriction on free movement of goods under Article 34 TFEU.  And the prospect remains of a challenge to the competence of the promised independence referendum, unless agreement is reached on an Order under section 30 of the Scotland Act to confer express power on the Scottish Parliament to legislate on this matter.  The independence referendum issue is, of course, also significant as the first instance of an open dispute between the Scottish and UK governments about the vires of proposed legislation.

Much more could be said about the decisions in these recent cases.  One might speculate, for example, as to the factors which led the courts to strike down the provisions in Cameron v Cottam and Salvesen v Riddell, without much show of deference in either case.  One could also explore the apparent differences in approaches to the interpretation of devolution statutes as between the majority and minority in Martin, or between the House of Lords in Robinson and the Inner House in Imperial Tobacco.  However, since both Salvesen v Riddell and Imperial Tobacco have been appealed to the Supreme Court, which is also due to give judgment in another case (ANS v ML) involving the compatibility of section 31(3)(d) of the Adoption and Children (Scotland) Act 2007  with Article 8 ECHR, further discussion might reasonably be postponed until these cases have been finally resolved.

There is, though, another question on which it is equally interesting to speculate: why is it that so many more, and more varied, challenges to the validity of ASPs have been raised in the last few years?  It has been suggested that the main reason for the previous relative lack of resort to the courts is because of robust internal policing of the boundaries of the Scottish Parliament’s legislative competence, both within the devolved institutions, and through inter-governmental negotiation, the latter assisted by political consensus between the Scottish and UK governments for most of the period since devolution.  There is undoubtedly some truth in this view, since there are strong supports within the Scotland Act for political resolution of vires concerns.  These include provisions for pre-legislative declarations by sponsoring ministers and the Presiding Officer that Bills are within competence (section 31), for pre-enactment references by UK and Scottish law officers to the Supreme Court (section 33), and, in some circumstances, for pre-enactment veto by UK ministers (section 35).  Provisions such as sections 30 and 104 which, respectively, enable UK ministers to confer additional powers on the Scottish Parliament and (inter alia) to make changes to reserved matters consequent upon ASPs, as well as the greater than anticipated use of Legislative Consent Motions to allow the UK Parliament to legislate on Scotland’s behalf, also point to a co-operative approach to the achievement of legally effective legislation.  Moreover, such inter-governmental co-operation does not appear to be particularly dependent upon political compatibility: the independence referendum apart, there is no evidence, as far as I am aware, of greater disagreement over competence issues between the SNP at Holyrood and the Conservative/Liberal Democrat coalition in London than there was under previous administrations.

Nevertheless, internal policing of the boundaries of legislative competence cannot be the sole reason why so few judicial challenges emerged in the early post-devolution period, nor can it explain why the rate of challenge has increased so dramatically.  There are at least three reasons why political mechanisms cannot be expected to eliminate all potential challenges: first, the government(s) may identify possible legal problems, but for political reasons decide to legislate anyway; secondly, they may identify potential grounds of challenge, but conclude that they are unlikely to succeed; thirdly, they may simply fail to identify relevant competence issues.  Given the complexity of the reserved/devolved boundary, the reach and intricacy of potential EU constraints, and the open-textured nature of Convention rights, it would seem, on the face of it, that there must remain substantial scope for individual challenges.

So what factors might explain the changing incidence of judicial challenges?  These might include:

    • Greater awareness of the possibilities for challenge on the part of potential litigants and/or their legal advisers;
    • Greater perceived receptiveness of the courts towards vires challenges;
    • Reduced financial or other barriers to litigation;
    • Increased financial or other incentives for potential litigants to challenge legislation;
    • Bolder use of its powers by the Scottish Parliament, particularly in ways that impinge upon powerful interests.

More detailed examination would obviously be needed to establish the relevance of these suggested factors, and to identify other significant considerations.  The likelihood is that different combinations of factors are at work in different cases, and there are of course inherent difficulties in trying to prove a negative – i.e., why challenges have not been brought.  Nevertheless, there is important empirical work to be done in gaining a fuller understanding of the incidence of vires challenges and their motivating causes.  In turn, this would provide a more nuanced appreciation of the practical significance of the Scottish Parliament’s bounded competence, and of the role of judicial enforcement of the devolution settlement as just one policing mechanism amongst others.

Aileen McHarg is Professor of Public Law at the  University of Strathclyde.

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Jack Simson Caird: The Justice and Security Bill and the House of Lords Constitution Committee

On Tuesday this week the Justice and Security Bill [HL] received its second reading in the House of Lords. Hayley Hooper and Tom Hickman have both commented on the constitutional significance of the Bill in earlier posts to this Blog. This post focuses upon the role of the House of Lords Constitution Committee in scrutinising the constitutional implications of the Bill. The Constitution Committee published its report on the Bill last Friday, following its usual procedure of reporting in time for second reading in the Lords. The report argues that key elements of the Bill ‘challenge’ two principles of the rule of law: open justice and natural justice [para. 9-10].  The report’s analysis and conclusions on the constitutionality of the Bill are likely to have a major impact upon the scrutiny it receives in the committee and report stages in the Lords. The last legislative proposal of constitutional significance to be introduced in the Lords was the Public Bodies Act 2011. The Constitution Committee’s analysis of that Bill made a major impact on the Lords’ scrutiny, which in turn resulted in parts of the Bill being radically rewritten (see para. 6-10 of the Committee’s Sessional Report 2010-2012). There is no guarantee that the Constitution Committee will be able to replicate this level of influence with the Justice and Security Bill [HL], however, there are a number of indicators from their report and the second reading debate which lead me to think that they might.

The Committee’s report on the Bill is unusually long, but its content follows a familiar pattern. It begins by setting out its constitutional verdict on the provisions which would extend the ‘closed material procedure’ to certain civil proceedings [para.9]. The provisions are described as ‘a constitutionally significant reform, challenging two principles of the rule of law: open justice and natural justice’ [para.10]. This is a significant choice of words. The Committee is effectively claiming that these legislative provisions do not adhere to the rule of law, a core principle of the United Kingdom’s unwritten constitution. The strength of this constitutional verdict makes it difficult for the Government to avoid, and peers will expect them, at the very least, to offer a well-reasoned response.

Effective constitutional interpretation requires well-reasoned evidence and the Committee’s verdict is supported by extensive analysis. This reasoning plays a key role in the supporting constitutionalism within the committee stage, as it explains to peers what amendments are needed to make the relevant provisions constitutionally acceptable. The first step in the Committee’s reasoning is to set to out the key differences between the law of Public Interest Immunity and the Closed Material Procedure [para. 7-10]. On the constitutionality of the latter they cite the words of Lord Dyson in Al Rawi v Security Service, who stated (at para. 14) that it ‘involves a departure from both the open justice and the natural justice principles.’ The Committee admits that these principles are ‘neither absolute or inflexible’, however, departure from these constitutional principles can only be accepted if sufficient compelling evidence is presented. One of the Committee’s most significant contributions to constitutionalism is that it facilitates a culture of constitutional justification within the legislative process, and this demand for ‘clear evidence’ is an example of this feature of their work.

The report then examines the constitutional significance of the CMP scheme proposed in the Bill, paying particular attention to the Government’s claim that it is designed to increase ‘fairness’. [para.13] The Committee argues the scheme has three basic flaws. The first is that the scheme gives only the Secretary of State the right to apply for a ruling that material be treated as closed [para. 18]. To create to such an imbalance in the equality of arms in civil proceedings when it is not strictly necessary to achieving the aims of the Bill is an unnecessary departure from a constitutional principle, and the Committee recommends that Clauses 6 and 7 should be amended to remedy this imbalance [para. 19].  The second flaw is that the procedure does not allow the courts to conduct a Wiley balancing exercise and the Committee complains that no evidence has been produced to show that this removal of a key constitutional safeguard would make civil proceedings on national security any fairer [para. 21-24].  They propose that the procedure should ensure that the courts balance the interest of national security against the risk to the fair administration of justice when considering whether to withhold evidence.  Further, they suggest that the courts should be able to consider whether material could be disclosed to the parties in private or in redacted form if they consider that the fair administration of justice requires it.  The third flaw is that the Bill gives the Secretary of State the exclusive discretion to decide between PII and CMP [para. 25-31].  They consider the choice between the two procedures to be a ‘case–management’ issue and therefore should be task for the courts rather than the executive.  Each of these examples of the application of constitutional norms to legislative provisions is vital to the facilitation of the amendment process within the committee and report stages. It is relatively certain that individual peers will table amendments during the committee stage to give effect to each of these instances of constitutional interpretation, and this process is a key driver of constitutionalism within the legislative process.

The second reading debate is often a good gage of the strength of feeling in the House of Lords towards the relevant Bill. The debate last Tuesday did not reach the heights of the second reading of the Public Bodies Bill and the Health and Social Care Bill, where the Committee’s concerns were both extremely prominent, however, there were nonetheless some telling signs that the concerns of the Committee will be addressed later in debate. One positive sign was the number of references to the Joint Committee on Human Rights’ comprehensive report on the Green Paper that preceded the Bill. In the debate Lord Lester of Herne Hill indicated that the JCHR intends to report again on the Bill before the report stage and will table amendments in Committee. Furthermore, the presence of Henry VIII clause means that the House of Lords Committee on Delegated Powers and Regulatory Reform is likely to report and table amendments [para. 32]. The involvement of all three of these committees is going to place pressure on the Government to make concessions, and this increases the chances that the Constitution Committee’s concerns will make an impact on the Bill. Together this triumvirate of committees form an additional de facto legislative stage for major constitutional bills, and when they are all involved on a Bill they represent a significant constitutional hurdle for Government legislation. Their value to constitutionalism is especially important, because there are individual peers, such as Lord Pannick (a member of the Constitution Committee), that have the legislative ability to give effect to their constitutional arguments in amendments. In his speech in the debate, Lord Pannick reiterated  the concerns of the Constitution Committee, and delivered the following scathing verdict:

‘On the case made so far by the Government, the provisions of Part 2 of the Bill regarding both CMPs and Norwich Pharmacal orders are, I suggest, unnecessary and unfair, and will undoubtedly damage the ability of the courts to give judgments that are fair and are seen to be fair.’

This speech indicates that Lord Pannick will devote his considerable legislative ability to the task of improving the Bill, and this is another reason to be optimistic that the Bill will be subject to significant amendment.

To end on a note of caution, each of the Ministers who introduced the Bill and summed up at the end of the debate did not make any specific commitments that the Government would seek to bring forward amendments to give effect to any of the concerns raised by the peers. However, the Home Office Minister Lord Henley’s statement that ‘I am sure that there are many things on which we will be able to get agreement’ is encouraging. The Constitution Committee’s conclusion on the Justice and Security Bill puts the Government in a difficult situation. If they wish to preserve the constitutional legitimacy of the Bill they have two options. They could amend the Bill to satisfy the Committee’s concerns. Alternatively, they could advance their own constitutional arguments to rebut those of the Constitution Committee. Although I imagine that the Government Legal Service is well equipped with constitutional expertise, I feel quite confident in predicting that this second option is beyond them.

Jack Simson Caird is a doctoral student at Queen Mary University of London.


Filed under UK Parliament

Grégoire Webber: Commons and Government: Some Tools of Opposition

Many things once said cannot now be said about the Westminster constitution. In times past, one could affirm with conviction that the government’s relations with the House of Commons were guided by the ability of the Commons to choose another government. The assembly which chooses our prime minister, Bagehot would write in 1867, can choose another at any time. It ‘electoral function’ is constant. Today, the willingness of the Commons to choose another government seems less potent, with party discipline in turn disciplining the judgment of Members of Parliament. With few exceptions, the electoral function of the Commons is paired with the electoral function of the citizenry: they choose on occasion of general elections. Does it follow that the parliamentary opposition is less potent in holding the government to account? Mindful of the distorting potential of any one example, recent events in the Parliament of Canada provide some avenues for reflection.

On 14 June 2012, the House of Commons sat for more than 22 consecutive hours. Near all of that time was devoted to recording report stage divisions on 157 motions to amend the government’s budget implementation bill, the Jobs, Growth and Long-term Prosperity Act (Bill C-38). The opposition was defeated on each one of the amendments, as it expected to be. So why did it insist on the amendments and persist in calling for division?

The opposition parties decried how the more than 400 pages comprising Bill C-38 contained various provisions having too little relation to the implementation of the Minister of Finance’s budget. A summary of the changes proposed in the bill include: (a) the creation of a new Act of Parliament, the Canada Environmental Assessment Act, which would modify the number of federal environmental assessments; (b) changes to the protection of fish habitats under the Fisheries Act; (c) raising the age of eligibility to qualify for old age security benefits; (d) reform of the unemployment insurance benefit system; (e) eliminating the office of the Inspector General within the Canadian Security Intelligence Service; and (f) amending the Immigration and Refugee Protection Act’s federal skilled-worker programme.

The opposition insisted that various measures warranted sustained parliamentary study and should be separated from the budget bill. The government disagreed, insisting on the importance and immediacy of the package of reforms. With the whips exerting their influence during committee study, no amendments to the bill were accepted by the government members holding a majority on the Standing Committee on Finance, the only House committee to review Bill C-38. The bill returned to the floor of the House and there the opposition parties looked to exert influence.

More than 871 motions to amend the bill were placed on the notice paper. The Speaker ruled that (a) ‘motions to delete clauses have always been found to be in order’, subject to minimising ‘the amount of time spent in the House on this kind of motion by grouping them as tightly as possible and by applying the vote on one to as many others as possible’ and (b) that motions to amend clauses of the bill submitted by members who had no opportunity to present amendments at committee stage were, ‘consistent with the current practice’, selected ‘except in the case where similar motions had already been considered by the committee and where all other procedural requirements have been met’. Of the 871 motions, the Speaker’s ruling resulted in 157 votes scheduled for report stage.

The House did not rise on 13 June 2012 and continued into the following day. True to the procedure of the House, the parliamentary calendar insisted that the 13th of June did not end at the 24th hour, but only at the 47th (in non-parliamentary terms: 11:44pm on 14 June 2012). In the 22-hour report stage marathon, 157 votes were taken on division, two MPs celebrated their birthdays, and various sleep deprivation tactics were employed to keep the government members alive to the need to rise when their turn on division arose. The presence of government members was especially important given the official opposition’s insistence that all amendments to the budget implementation bill, even to those parts not of a financial matter, should be considered a matter of confidence.

In the end, Bill C-38 passed report stage without amendment. On 18 June, the bill received third reading and, that same day, received first reading in the appointed Senate, where it is expected to receive quick passage. The government secured the passage of its bill through the House, as both it and the opposition knew it would. Why, then, the bother of 157 votes and lack of sleep?

Under the Westminster constitution, the opposition is constitutionally presumed to lose to the government and, with few exceptions, can hope for no greater a victory than a diminished majority for the government on division. When faced with a majority government, the tools available to the opposition are no longer to convince the House that another government should be preferred, but rather the following: argument and time. Opposition members can try to persuade the government or they can try to frustrate the government’s timetable.

The opposition will persuade the government when it has persuaded the public first, but then the influence belongs primarily to the constituents who lobby backbench MPs who in turn lobby their frontbench in caucus. The merits of arguments against the government’s proposals may fall on deaf ears across the isle, but they are made not so much to the prime minister and his cabinet, but to their supporters in the public.

In its use of time, however, the influence is entirely that of the opposition, though it may be encouraged by popular support or discouraged by its absence. Without doubt, the very presence of an opposition within the Commons delays government. Ivor Jennings reported how, between 1 and 7 September 1939, the UK Parliament ‘passed enough legislation to occupy two or three sessions, because the Opposition agreed not to oppose’. It follows that, because the constitution does not ask the opposition to agree not to oppose (save in emergency circumstances), the opposition is entitled to its time to criticise the government and to examine and comment on proposals brought before it. But how much time and for how long?

The answer turns on the relationship of the government to the opposition. Marathon sittings are not the norm and, so, one might surmise that they are called on only to signal other breaches of the norm. In this case, the opposition concluded that the government’s omnibus budget implementation bill has an abuse of the procedure of the House and a challenge to parliamentary scrutiny of the government’s legislative proposals. In turn, it denied that government access to the usual channels to facilitate the workings of the parliamentary calendar.

Had the government capitulated and redrawn its budget bill, it could have expected opposition support for timely passage of its budget, and perhaps, in turn, for timely passage of its other measures, but all at the expense of carrying through in an expedited manner reforms of its choosing.

What did the opposition achieve with its 22-hour marathon if not the defeat of the government or amendments to the bill? Within the chamber, it signalled to the government that, notwithstanding the government’s recently acquired majority within the House, the minority opposition would not stand idly by while the government pursues the business of governing. Perhaps emboldened by the knowledge that the government’s backbenchers will sustain the chamber’s confidence in the frontbench, the opposition will be searching in holding the government to account. Although omnibus budget implementation bills have been used in the past, the opposition can rightly be taken to question: what is to stop a government from including the all of the legislative measures outlined in the Speech from the Throne in a single budget bill and proroguing the chamber until the next speech and budget?

Beyond the chamber, the opposition successfully drew attention to the government’s (ab)use of parliamentary procedure, with much popular commentary and greater attention to the government’s budget and other measures than might otherwise have been received.

Whether the achievements of the opposition within and beyond the chamber will endure beyond a news cycle is open to question, but consider the following two thoughts in closing: (i) at the end of the 22-hour marathon, the official opposition showed no signs of defeat despite losing 157 divisions to the government—instead, the chant “2015” (being the year of the next federal election) ‘started in the upper reaches of the NDP backbench and soon cascaded into a common, deskthumping chorus just before midnight Thursday in the House of Commons’; and (ii) perhaps echoing the same message, albeit from the other side of the isle, several government backbenchers feared that their leadership had expended ‘substantial political capital’ in achieving in one budget bill what could have been achieved, without loss of political capital, in several over time.

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

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Dorota Leczykiewicz: The ‘national identity clause’ in the EU Treaty: a blow to supremacy of Union law?

The provision generally referred to as ‘the national identity clause’ is located Article 4(2) of the Treaty on European Union (TEU).  It says:

The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.

Article 4(2) replaces a more modestly formulated provision of Article 6(3) of the pre-Lisbon Treaty.  It is now situated between a provision laying down the principle of conferral (according to which competences not conferred on the Union in the Treaties remain with the Member States) and that laying down the principle of sincere cooperation. The full significance of the provision has not yet been explored in the case law. Three scenarios come to mind, in which the ‘national identity clause’ might prove significant. First of all, the clause may be invoked by the Member States challenging validity of an EU act, either independently or in conjunction with an argument based on the principle of subsidiarity. Here, it will relate to the question of when and how the EU should exercise its competences, especially those of a more general character, such as Article 114 TFEU, which enables the Union to adopt harmonising measures to improve the functioning of the Internal Market. Secondly, Member States may invoke national identity as a justification for a failure to fulfil obligations stemming from EU law. The Court of Justice, as an institution of the Union, will have to show respect to national identities by allowing national authorities to derogate from, for example, free movement provisions. Finally, Article 4(2) TEU could be seen as codification of the case law of national constitutional courts, who often claim that EU law supremacy is only conditional. Whether it is the protection of human rights or the preservation of the essential structures of national constitutionalism, they cannot, the argument goes, be overridden by EU law.

‘National identity’ case law

Looking at the case law (both of the Court of Justice of the EU and of national constitutional courts) we can see the use of the ‘national identity’ clause in all three contexts. In Spain v Eurojust Spain was challenging calls for applications issued by Eurojust, which demanded the submission of the application form in English. While Spain relied on the concern for the protection of their language independently, and not as part of their national identity, AG Maduro in his opinion did draw the connection, which indicates that national identity may be relevant for cases in which the validity of EU acts is at stake.

More interestingly, in two cases the Court of Justice confirmed that the ‘national identity clause’ may play an important role in the context of Member States’ derogations from EU law. In Sayn-Wittgenstein the Court had to decide whether an Austrian administrative decision correcting the surname of the applicant in the register of civil status by removing from it elements which referred to a title of nobility was compatible with EU law. The Court held that the matter fell within the scope of EU law because the applicant was an EU citizen who had exercised the right to free movement (she resided in Germany). Because of a confusion and inconvenience which were liable to arise from a divergence between the name she would use in Germany (which included the element referring to the tile of nobility) and the one she would have to use in Austria (deprived of that element) the decision of Austrian authorities was regarded to be an obstacle to free movement and thus in need of justification. In assessing this latter issue the Court held: ‘in the context of Austrian constitutional history, the Law on the abolition of the nobility, as an element of national identity, may be taken into consideration when a balance is struck between legitimate interests and the right of free movement of persons recognised under European Union law.’ It follows that Article 4(2) TEU was used as an element of the proportionality review in order to strengthen the claim that national authorities should enjoy a broad margin of administrative discretion where ‘the status of the State as a Republic’, as an element of Austrian identity, is at stake.

In  Runev-Vardyn,  the applicant challenged the spelling of her name adopted by Lithuanian authorities. The applicant was of Polish ethnicity and wanted her first name and surname to be spelt according to the rules of the Polish language. Her predicament was moreover deepened by the fact that her Polish marriage certificate used the Polish spelling for her husband’s and now also her surname. By changing the spelling also of her married name Lithuanian authorities made her bear a different name from that of the applicant’s husband. The Court of Justice held that EU law ‘[did] not preclude the competent authorities of a Member State from refusing, pursuant to national rules which provide that a person’s surnames and forenames may be entered on the certificates of civil status of that State only in a form which complies with the rules governing the spelling of the official national language, to amend the surname which one of its nationals had prior to marriage and the forename of that person, where those names were registered at birth in accordance with those rules’. However, the Court declined to rule conclusively on the question of whether Lithuanian authorities could be regarded to have breached EU law when they refused to amend the part of applicant’s name which she shared with the husband. If a violation was found, a question of justification would arise, and in this context the Court invoked the ‘national identity clause’ to point out that protection of the official national language by imposing the rules which govern the spelling of that language, constituted, in principle, ‘a legitimate objective capable of justifying restrictions on the rights of freedom of movement and residence provided for in Article 21 TFEU and [might] be taken into account when legitimate interests [were] weighed against the rights conferred by European Union law’. What is very interesting about this ruling is that the ‘national identity clause’ is held to possess a double function. First, it can act as an objective which prima facie justifies a restriction of an EU right (i.e. a derogation from an EU obligation imposed on the Member State). Secondly, the same concern may additionally play a role when the national court is balancing the concern in question against an EU right. This double function of the ‘national identity’ concern suggests that a reliance on it weighs very much in favour of national rules and against the right which an individual derives from EU law. If this is the case, and despite a seemingly more modest formulation used by the Court, the ‘national identity clause’ might actually have a trumping effect.

This goes in line with what AG Maduro observed in his opinion in Michaniki:

“The preservation of national constitutional identity can … enable a Member State to develop, within certain limits, its own definition of a legitimate interest capable of justifying an obstacle to a fundamental freedom of movement.”

However, he does not quite want to accord the ‘national identity clause’ the trumping effect which the Court’s ruling in Runevič-Vardyn suggests. He held:

“[R]espect owed to the constitutional identity of the Member States cannot be understood as an absolute obligation to defer to all national constitutional rules. Were that the case, national constitutions could become instruments allowing Member States to avoid Community law in given fields. Furthermore, it could lead to discrimination between Member States based on the contents of their respective national constitutions. Just as Community law takes the national constitutional identity of the Member States into consideration, national constitutional law must be adapted to the requirements of the Community legal order.”

‘National identity clause’ and constitutional conflict

So the tension remains. National constitutional rules and practices can be invoked as expressions of values forming ‘national identity’ but there are limits to when such arguments are going to be conclusive. The best illustration that the Court of Justice of the EU will indeed look for an appropriate scope for the application of the ‘national identity clause’, bearing in mind its, in practice, trumping effect, is a recent ruling in a UK case – O’Brien v Ministry of Justice. The applicant, a part-time judge employed on a fee-paid basis and a barrister, tried to rely on an EU Framework Agreement on part-time work to assert his right to retirement pension calculated as a proportion pro rata temporis of that which a full-time Circuit Judge would be entitled to if he had retired on the same date. The Lithuanian government argued that the effect of the ‘national identity clause’ is that EU law simply could not apply to the judiciary. The Court of Justice did not agree with this proposition. It held:

“[T]he application, with respect to part-time judges remunerated on a daily fee-paid basis, of Directive 97/81 and the Framework Agreement on part-time work cannot have any effect on national identity, but merely aims to extend to those judges the scope of the principle of equal treatment, which constitutes one of the objectives of those acts, and to protect them against discrimination as compared with full-time workers.”

The EU Court is clearly assuming the competence to decide when the application of EU law should be seen as affecting national identity. Arguably, once it is accepted that national identity is being affected, the trumping effect of Article 4(2) TEU will be activated.

What is slowly emerging from the case law is that the ‘national indemnity clause’ could contribute to the resolution of the constitutional conflict in the EU, but only in a partial way. As we know, the constitutional conflict in the EU concerns a series of issues, ranging from the acceptance of the principle of supremacy, its limits and the basis on which national courts should disapply conflicting national law,  to the discussion of who is the final arbiter of constitutionality in the EU, the Court of Justice of the EU or national constitutional courts. Finally, there is a difficult question of how standards of constitutional review are to be constructed. Should EU acts be reviewed in the light of national standards or should it absorb those standards and in this way preserve its supremacy over national law? A direct reference in the EU Treaty to ‘national identities’ and the imposition on the European Union an obligation to respect them should be seen as way of softening the edges of EU law in both ways. On the one hand, reliance on ‘national identities’ is grounded in EU law and the Court of Justice of the EU is very much in control when the argument will succeed. It allows the concern for national identity to play a role, but within the limits it delineates. The German Federal Constitutional Court, on the other hand, maintains that Article 4(2) TEU is recognition of a national constitutional court’s power to safeguard national constitutional identity by carrying out review of EU acts by that court (the Lisbon judgment). If an EU act does not respect national identities national courts will have the power to resist the obligations stemming for the state from the act. What ‘national identity’ encompasses will for this purpose be determined by the national (constitutional) courts. If so, supremacy of EU law may have suffered a serious blow.

Dr Dorota Leczykiewicz is Leverhulme Trust Early Career Fellow at the Faculty of Law and at Trinity College, University of Oxford.


Filed under European Union

Mike Gordon: What is the Point of Exceptional Circumstances Review?

A great deal of the controversy surrounding the recent case of Axa General Insurance Ltd v Lord Advocate [2011] UKSC 46, already much discussed on this blog, stems from the notion of ‘exceptional circumstances review’.  The Supreme Court’s decision that it has the authority as a matter of common law to reject Acts of the Scottish Parliament (ASPs) in exceptional circumstances raises a range of important constitutional questions:  is the Supreme Court’s interpretation of the Scotland Act 1998, and in particular section 29, compelling, or could the legislation be read to exhaust the possibility of common law limits on ASPs?  Is it normatively attractive for courts to arrogate to themselves the final say over the constitutionality of legislation enacted by a democratic legislature?  Is the power outlined by the Supreme Court in Axa only effective against the primary legislation enacted by devolved legislatures, or is the sovereignty of the UK Parliament also now threatened?

Doubtlessly other critical questions can also be identified, and yet, as important as these issues are, this post will focus on a more general matter.  Is the very notion of exceptional circumstances review, detached from some of the particularities of the UK constitution, a useful one?  Such an approach seems appropriate in light of Lord Hope’s comments in Axa that in developing such a power, the Supreme Court was in ‘uncharted territory’, with the issue therefore having ‘to be addressed as one of principle’ [48].

It might initially be objected that the point of exceptional circumstances review is obvious – it serves to prevent gravely iniquitous legislation from being recognised as law – rendering further reflection on its purpose essentially redundant.  Yet while we may all agree that the avoidance of bad law is a worthwhile objective, it is not at all clear that giving courts the authority to review legislation in exceptional circumstances is an effective way to achieve it.  Two particular issues with the concept can be discerned.

1)    What circumstances count as exceptional?

The very notion of exceptional circumstances is inherently vague, offering little indication as to the scope or content of the power claimed.  Even if we accept that such a power would be exercised only in genuinely exceptional situations (although as Jeffrey Goldsworthy and Mark Tushnet have both argued, it is in the nature of courts to seek to test the boundaries of a power once obtained, and in so doing expand its scope beyond what was originally envisaged), we will necessarily be reliant on judicial evaluations of exceptionality.  And while such judgments may well be contestable, perhaps the bigger problem is that they are likely to be difficult to predict.

If we return to Axa for a moment, the consideration there given to exceptional circumstances offers sparse guidance as to the situations in which the Supreme Court’s new authority will be invoked.  The rule of law is cited by both Lord Hope [51] and Lord Reed [149] as constituting the ‘ultimate controlling factor’ at the root of the court’s new power, but the deployment of such a disputed, fluid concept only serves to amplify, rather than cure, the already conspicuous uncertainty.  An alternative (or perhaps complementary?) foundation suggested by both judges is that of fundamental individual rights, yet even if an account of such rights could be agreed, little clarity is gained unless we can also establish the level of interference that will be unjustifiable.

Beyond Axa, other immutable values that require absolute protection might also be identified; Lord Steyn, for example, argues in R. (Jackson) v Attorney General [2005] UKHL 56 that ‘oppressive and wholly undemocratic legislation’ could not be tolerated [102].  Yet the difficulty persists in relation to this formulation too, for the truly critical problem is not in identifying appropriate abstract values, but that those values must remain abstract to attract broad acceptance.  Indeed, it is when we come to differentiate between those violations of the rule of law, or fundamental rights, or democracy that are tolerable, and those that are exceptionally intolerable, that consensus is liable to break down, with the corollary that the likelihood of judicial intervention becomes hard to foresee.

The uncertainty inherent in determining what is an exceptional violation of constitutional principle makes this power remote from ordinary citizens and inadequate for political decision-makers.  Citizens will find it a challenge to determine whether legislation that offends their conception of justice will be similarly received by the judiciary, making a decision to seek judicial review fraught with complexity.  Legislators and officials will glean little useful guidance as to how they should properly exercise their power from the underdeveloped premise that flawed legislation may be exceptionally struck down.  And with so little which is clear and certain settled in advance, any judicial decision to exercise, or not to exercise, this authority may appear arbitrary to aggrieved parties.  There is therefore little to recommend the cultivation of a power of exceptional circumstances review over the protection of fundamental values through some variety of Bill of Rights, regardless of how imperfect we might believe such rights instruments to be.

2)    Is this a legal power at all?

One potential response to what has been argued above is that such a power to reject legislation should only be used where there is no uncertainty.  The judicial exercise of such a power would, in other words, be justified where there existed comprehensive agreement as to the exceptional deficiency of some specific legislative act.  But how, in practice, would it ever be possible for the circumstances of such agreement to be satisfactorily established?

We might then, in contrast, question whether such a power which can only be imprecisely formulated is really a legal power at all.  This is not to claim that such a vague power is conceptually incapable of being considered legal, but to query whether the Supreme Court has actually articulated exceptional circumstances review as a legal doctrine.  It seems clear that this is a power designed not to be used.  It would be extremely difficult for courts to settle definitively the kind of constitutional crises in which an exceptional power to reject legislation could conceivably be invoked.  Would we really seek to challenge a genuinely fundamental repudiation of constitutional values through litigation?  Even if an expedited means of bringing legal proceedings were available, courts are simply not equipped to prevail over other institutions of government in brute constitutional conflicts, and would be unlikely to be able to provide any effective relief in times of severe political strife.  While this power remains unused, however, it also goes essentially unchallenged, and maintains a degree of relevance in constitutional discourse, even if this is only notional.

It might, then, be better to understand judicial assertions about exceptional circumstances review as an emanation of inter-institutional manoeuvring, rather than a claim about the power of the courts under the present constitutional order to reject legislative acts in crisis situations.  Courts as institutions lack a formal outlet through which they can encourage the legislature, or the government that controls it, to take rights, or the rule of law, or democracy, seriously.  Yet it is possible for the courts to communicate with the other institutions of government through their reported judgments, and a threat to establish a supervisory jurisdiction over legislative functions could be seen to have a similar effect as such encouragement.  In light of this, it is perhaps significant that the only specific example of exceptional circumstances offered both in Axa [51] and Jackson [102] is legislative action to oust or abolish the courts’ ordinary power of judicial review over administrative action, with the notion of the rule of law arguably used here as a conduit to protect the judges’ jurisdiction against encroachment by other institutions.  A court may purport, therefore, to be developing a jurisdiction to reject legislation in extreme situations, yet we can make sense of such endeavours without concluding that this is a power they do in fact possess as a matter of constitutional law.

Yet if judicial claims about the potential for exceptional circumstances review are simply a means of reemphasising the importance of a number of fundamental constitutional values to the other institutions of government, are they really of any great interest?  After all, when it is considered that these fundamental principles must already underpin the existing constitutional settlement, and be embedded to a substantial extent in constitutional practice, the judicial reiteration of their significance may appear to be a rather banal message, in contrast with the controversial means of its delivery.  Further, given the abstraction necessarily involved in their formulation, the invocation of such elementary principles, devoid of critical detail, will do little to assist with the resolution of the sort of difficult constitutional questions which must be confronted in mundane, as well as exceptional, situations.

What then, we might wonder, is the point of exceptional circumstances review?


Dr Mike Gordon is Lecturer in Public Law at the Liverpool Law School, University of Liverpool.

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