Monthly Archives: July 2012

Paul Daly: Taking Statutes Seriously

Drawing on English, American and Canadian material, I develop in A Theory of Deference in Administrative Law: Basis, Application and Scope (CUP, 2012) a unique approach to judicial review of administrative action. Animated by a desire to inspire change rather than wholesale implantation, I elaborate a comprehensive theoretical approach which is not tied to any particular jurisdiction. Bringing the intractable ultra vires debate to a friendly resolution was not a goal of mine (though useful sources of inspiration sprung from the debate). Nevertheless, I realized to my surprise that I might have something of relevance to say. Resolving the dilemma at the heart of the debate was beyond me: I baldly assume that judicial review is legitimate and thereby dodge the central dilemma entirely. But my approach to substantive review has something to say to both sides of the ultra vires debate. First, let me outline my approach. Second, let me amplify its implications for the ultra vires debate.

The Basis of Curial Deference in Administrative Law

I have two arguments here, one based on the delegation of authority by legislatures to administrative decision-makers, the other based on what I call practical justifications for curial deference. My delegation argument is that because the legislature has delegated (or granted – nothing turns on the terminology) variable degrees of power to administrative decision-makers, courts must also follow a variable approach in order to give effect to legislative intent. A uniform approach to judicial review would be inapposite in an era of many and varied administrative decision-makers with many and varied powers. If the same standard of review were to be applied, then the legislative choice to delegate varying degrees of power would be undermined. With such varying levels of power and such different administrative decision-makers, it would be contrary to legislative intent to apply the same standard of review across the board. Not, I hasten to add, legislative intent in some sort of literal, ‘voices in the air’ sense. Rather, legislative intent as evidenced in individual statutes and the statute book as a whole.

My practical justifications argument also flows from an obligation to take statutes seriously and runs as follows. Just as a variable standard of review would be necessary if the legislature directed courts to develop and implement one, reference to the reasons whydelegation took place would also be necessary if the legislature directed it. If reasons which explain the delegation of power can plausibly be inferred from a proper consideration of the relevant statutory provisions, then it can be argued that they influenced the legislative decision to delegate power to a body other than a court, and are thus factors that a reviewing court ought to consider. I identify four: expertise, complexity, democratic legitimacy and procedural legitimacy; as with delegations of power, these vary from statute to statute. The judicial task in this context is to ascertain by reference to the statute, and the statute alone, what plausibly can be taken to have influenced the legislative decision to delegate power.

Taking statutes seriously, then, leads to the conclusion that the intensity of judicial review ought to vary. How variable standards of review are implemented may vary from jurisdiction to jurisdiction: England has its super-, sub- and plain-vanilla Wednesbury unreasonableness, for example. I urge courts to employ a general conception of unreasonableness. To simplify greatly, what is unreasonable will be determined in individual cases by application of considerations drawn from the rule of law and principles of good administration. Where do judges get the authority to do this? On my account, a consideration of individual statutes and the statute book at a whole will suggest that courts should develop variable standards of review. Variable standards of review have to be implemented somehow. Unreasonableness, given its central importance in administrative law and its pliability, is as good a tool as any. In other words, taking statutes seriously opens up space for judges to apply the rule of law and principles of good administration.

The Ultra Vires Debate

For many years the orthodox English position was that the ultra viresprinciple was the keystone of judicial review. The legislature delegated authority within certain parameters which the courts would police, thereby giving effect to the intentions of the legislature: the judiciary was faithfully imposing on the executive limitations laid down by the legislature in statutes. However, as the ‘common law’ theorists pointed out, in reality judges were fashioning principles of good administration. They were doing so of their own volition, independent of legislative intent, and the ultra viresprinciple was merely a ‘fig-leaf’. Defenders of the orthodox position, although agreeing that the ultra viresprinciple was a fig leaf, considered it a vital one, hiding the immodesty of the courts’ challenge to parliamentary sovereignty. For, if courts were fashioning independent principles of good administration, these were, surely, fetters on the sovereignty of Parliament.

Nonetheless, the orthodox account remained deficient. The ultra viresprinciple needed to be re-conceptualised to accommodate the intentions of Parliament and the creative role of the courts in developing principles of good administration. Grasping the nettle, the defenders of orthodoxy argued that Parliament, save where it clearly indicates otherwise, intends to legislate in conformity with the rule of law and must to be taken to legitimate the courts’ role in developing the principles of good administration. As Mark Elliott explained:

While the details of the principles of review are not attributed to parliamentary intention, the judicially-created principles of good administration are applied consistently with Parliament’s general intention that the discretionary power which it confers should be limited in accordance with the requirements of the rule of law.

Because descriptive accuracy is sacrificed for theoretical consistency, even its supporters had to admit that this ‘modified ultra viresdoctrine’ was formal and conclusionary in nature. But if the ultra viresprinciplecan be relied upon to justify any decision reached by a reviewing court, the judicial obligation to give effect to legislative intent may be dissolved in an elixir of judicial creativity. For the ‘common law’ theorists, the development of judicial review is almost entirely divorced from legislative intent. Only where the legislature affirmatively specifies grounds or standards of judicial review is legislative intent said to be relevant. Judicial review would develop, on this approach, in splendid isolation from statutory language, limited only by some variant on the following principle proposed by Paul Craig: it must ‘reflect the considered judgment of the courts at that time that this was the best reading of the rule of law’.

My approach to legislative intent charts a middle course between two extremes: the common lawyers discount statutory provisions save for those extremely rare instances in which the legislature affirmatively specifies clear rules for the conduct of judicial review; and the traditionalists identify legislative intent with doctrines developed by judges. In fact, once it is accepted that judicial review is legitimate, legislative intent can play an important role in shaping the general principles of judicial review, suggesting, in particular, the development of variable standards of review. The principles of good administration need not be marginalised and will be relevant to determining whether or not a decision survives the appropriate standard of review. Following my approach, the fundamental insight of the common law theorists – that it is for judges to develop the general principles of judicial review – is incorporated, but the judicial role is relocated in such a way as to give more prominence to legislative intent, thus avoiding what Elliott described as the ‘substantial implausibility which is involved in the assertion that the complex principles of good administration simply spring from Parliament’s legislative silence’.

In short, legislative intent need not be treated as marginal, or as an empty vessel into which judicial review doctrine can be poured. Taking statutes seriously is thereby a ‘third way’ of approaching the ultra vires debate.

Paul Daly is a member of the Faculty of Law at the Université de Montréal. He can be reached at He blogs at

Suggested citation: P. Daly, ‘Taking Statutes Seriously’ UK Const. L. Blog (26 July 2012) (available at

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Anitta Hipper: In Hungary’s Footsteps: Different Victor, Same Strategy

On January 1, 2012 with an amended Constitution in place, a once praised EU accession candidate, Hungary, proved that rule of law and consolidated judicial institutions are not at all irreversible. A new shift of power allowed Viktor Orbán, the Hungarian Prime Minister and the FIDESZ government to silence the Hungarian Constitutional Court, one of the strongest and most active Courts in Central and Eastern Europe.

It does not come as surprise, when Romania, considered by EU officials a laggard in fulfilling EU’s conditions for membership, goes along the same path as Hungary, by depriving the Romanian Constitutional Court of its powers. Unlike Hungary, which was considered a role model in Central and Eastern Europe due to its independent and efficient judiciary, Romania remained a concern for the EU despite considerable progress in reforming its judiciary as its political system is plagued by a chronic lack of consensus, with personalized institutional appointments and a judiciary that was not allowed to reach the same level of independency from the executive as in Hungary. Furthermore, skeptics of Romania’s readiness to join the EU both from the political praxis and academia were proven right when Monica Macovei, a disputed Minister of Justice at home, but considered a reformist force by Brussels, was dismissed from her office after the country joined EU in 2007.

Since Romania’s application for EU membership on June 1995, the judiciary suffered from continuous institutional redesign and personnel change according to the interests of successive governments. An overly rapid legislative process relied upon a ‘copy and paste’ method of transplanting Western legislative and institutional models and complex reform packages into the Romanian legal system.  These were adopted by subsequent governments in a hasty manner, using votes of confidence and emergency ordinances.  This eliminated the possibility of critical discussion and limited the chances of building political consensus over the quality of the reforms.

The instrumentalization and politization of the judiciary is not a novelty in Romania, which has remained trapped in this legacy since Communism. In the current political crisis, rule of law institutions are kept hostage in order to prepare the political battle between the Prime Minister Ponta and the now suspended President Traian Basescu. The tense relationship between the Prime-Minister and the President Basescu has been repeatedly put to the test due to Romania’s unclear semi-presidential system and Basescu’s desire to be an ‘active’ president.  This escalated into an open conflict on 27 June 2012, when the Romanian Constitutional Court was called to decide if the President or the Prime Minister has the right to represent Romania at the European Council’s meetings. The RCC decided in favor of President Basescu. Prime Minister Ponta’s accusations that President Basescu had overstepped his powers and influenced the judiciary triggered a vote in the Parliament in which the leftist Social Liberal Union (USL) succeeded in suspending the President and requiring a referendum to be held on 29 July 2012. According to Article 96 (1), the Chamber of Deputies and the Senate may decide the impeachment of the President of Romania for high treason, in a joint session, based on the votes of at least 2/3 of the number of deputies and senators (Romanian Constitution 2003). In the vote on President Basescu, the measure of impeachment was overwelmingly decided with 256 of the votes for and 114 against.

According to Article 95, the president may be suspended only after consultation of the Constitutional Court (RCC). The RCC’s consultation role has been changed from a simple advisory one in 2010 (due to an amendment to Article 95 proposed by Dan Sova, a Social Democrat senator) into an obligatory consultation. Accordingly, the RCC’s consultation on the constitutionality of the Parliament’s law and ordinances transformed the RCC into a last institutional filter on the decision of the impeachment of the President. The amendments envisaged by USL intended to remove this filter by depriving the RCC of its right to rule on the constitutionality of the Parliament’s decisions and amended through an emergency ordinance (EO 38/4 July 2012) on 5 July 2012 the Law on the organization and functioning of the Constitutional Court (Law 47/1992).

While according to the Constitution, amendments to complex and fundamental laws such as the Law on the organization and functioning of the Constitutional Court are prohibited from being passed through emergency of ordinance, the USL has succeeded in limiting the independence of the rule of law through several measures:

1. The replacement of the People’s Advocate Gheorge Iancu (the Ombudsman) with a former counselor of the president Iliescu, Valer Dorneanu. The Romanian Ombudsman acts as an institutional filter that could stop the emergency of ordinance to impeach the president, as he has the right to notify the Constitutional Court to adjudicate on the constitutionality of laws of the government before their promulgation by the Parliament (Art. 146a Romanian Constitution 2003);

2. The replacement of the President of the Senate, Vasile Blaga (National Liberal Party) with Crin Antonescu. According to Art. 98 (1), the president of the Senate serves at the interim President (Constitution of Romania 2003). Hence through the successful suspension of President Basescu, and the replacement of Blaga, as of July 3rd 2012 Romania has a new interim president, the President of Senate, Crin Antonescu.

3. The replacement of Roberta Anastase, the President of the Chamber of Deputies.

4. The Romania’s National Ethics Committee has been disolved, while still debating charges of plagiarism against Prime Minister Ponta. Ponta has been accused of plagiarism  by a scientific journal, which claimed that more than half of his PhD thesis consists of copied pasted work.

Further, the removal of President Basescu occurred through an emergency ordinance, which changed Art. 10 of the Law 3/2000 on the referendum law, and loosened the impeachment procedures of the president. The previous provision of half plus one of all voters registered on permanent electoral lists has been changed to half plus one of those who are voting on the referendum day set on July 29, 2012 to be sufficient for a valid referendum.

On July 10, 2012 the RCC declared the decision  to impeach the president constitutional, but maintained the provision that half plus one of all registered voters on electoral lists (around 9 million voters) as valid, supporting the previous position, opening a gate for Basescu on July 29 2012 to become reelected. The RCC, while admitting the constitutionality of the removal of both presidents of the Parliament, Blaga and Anastase, defended its right to decide upon the constitutionality of the Parliament’s laws and ordinances by stating that “the legislative solution that excludes the Parliament’s decisions from the constitutional control and impacts on values and constitutional principles is unconstitutional”.

Is Romania following in Hungary’s footsteps?  According to Prof. Scheppele, as Ponta did not take over the presidency and the RCC yet, as opposed to Hungary, where the Constitution has been already rewritten and the institutions silenced, there is still a chance that the RCC will survive these attacks. There is no doubt, however, about the speed of the political crisis and the fact that the USL’s legislative proposals are severe violations of the Constitution. On the other side, the increasingly unpopular President Basescu considered an active veto-player in political battles is not at all uninvolved in the political crisis and in the fight over the institutions. The call for normality intensifies, as Romanian experts argue that the political struggle between the government and the opposition is causing massive damage to the quality of Romanian democracy and its international credibility as the constant institutional redesign and misuse of the judicial institutions for political purposes continues.

Anitta Hipper is a PhD candidate at the International Relations Department, University of Freiburg. 

A version of this post originally appeared in the Verfassungsblog, and it is reposted here with thanks. 

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Nick Barber: House of Lords Reform: A Look in the Long Grass.

The fall of the Coalition’s proposals for reform of the House of Lords has not come as much of a surprise.  In terms of constitutional reform, the House of Lords has graduated from a running sore to a running joke.  Constitutional lawyers can barely muster the strength to read the latest in the never-ending cycle of soon-to-be-defeated proposals.

That is not to say that the apparent death of the Draft Bill should be regretted.  Like all recent attempts to reform the Lords, it proposed a combination of elected and appointed members.  But even by the low standards of hybrid models, it was a particular stinker of a proposal.   There was plenty to object to in the Bill.

The process by which the members of the Lords would have been elected was complicated and opaque.  Voters could choose between voting for an independent candidate, or for a party, or for a party candidate.  The constituencies would have very large – perhaps dividing the country into twelve or so units – and multiple members would have represented each territory.  The system by which the votes cast would have translated into representatives was far from simple. To add to the complexity, a different electoral system would have applied to Northern Ireland, and a further, distinct, mechanism would have been invoked when a vacancy arose.

The appointed element would have consisted of not one but three separate categories.  There would have been regular appointees, Bishops, and ministerial members.  The inclusion of Bishops in the proposal was surprising.  Predictably, the mechanism by which Bishops would gain admissions to the Lords was convoluted.  Five Bishops got to sit as of right, but another seven would have been selected by the Church – presumably through a process to be determined by some Synod or other.  This statutory restraint is curious: it allows a body that is supported by only a portion of the population unfettered latitude to determine the manner of selection of some members of the state legislature.

The ‘ministerial members’ category was included to maintain the power that the Prime Minister currently possesses to appoint Ministers from outside of the Commons by putting them in the Lords.  The Prime Minister would have been limited to appointing eight Ministers to the Lords under this provision, but when they ceased to be Ministers they would stay on in the Lords, and the Prime Minister could then appoint a new ministerial member. It was hard to see what would limit the proliferation of ex-ministers of this type in the House: the shelf-life of Ministers can be very short.  One possible answer to this conundrum – proposed by Joint Committee on the House of Lords Reform Bill – was to allow ministerial members to sit in the Chamber but not vote.  This proposal, which sounds a bit like a payoff to a joke, was not adopted in the final version of the Draft Bill.  The category of ministerial members has the potential to confer a significant power of patronage on the Prime Minister and could significantly affect the balance of members in a reformed Lords.

Members of the Chamber would have been appointed for up to 15 years – a surprisingly long length of time.  Having served, they would not be permitted to stand for the Lords again, and, for four years, would not be permitted to stand for the Commons.  These restrictions would have ensured an independence of mind on the part of members of the Lords, but would have given the electorate little leverage to hold their representatives to account.  These members would have little incentive to maintain connections with the communities that voted for them.  It is interesting to speculate about the type of person who would be attracted to an office of this type.  They would have to be interested in politics – probably, their election would require the support of a political party – but not interested in a long-term political career.

These oddities were generated by the two contrary impulses that characterise Lords reform – and which have ensured that no proposal has secured consensus over the last century.  First, there is broad recognition of the value of a scrutinising second chamber.  The House of Lords does a good job, but it does a good job because it contains many who are not politicians but are rather experts in different areas of life.  Set against this, there is a reflex insistence that the Chamber must be elected.  The more or less articulated belief is that all elements of the legislature require some sort of democratic mandate.  In short, reformers want to keep the Lords as an expert apolitical revising chamber, whilst simultaneously reducing the expertise it possesses and politicising it.

It is this dilemma that may explain the otherwise peculiar failure of Labour to reform the Lords over their long period in office.  Whilst politicians feel constrained to argue for election to the Lords in public, in private many of them worry that this would destroy what is valuable in this institution.  Their actions often fall short of their words.

So what is to be done?  I have a few modest proposals.

For the time being, the push for an elected second chamber should be abandoned.  Far from being a rejection of democracy, an embrace of an appointed second chamber should be seen as a way of upholding democratic values.   All constitutions need elected bodies to determine the policies of the state, but it is a mistake to think that the more elected bodies a system has the more democratic it becomes.  Having too many elected bodies can harm democracy. In order to be a successful democratic body, the legislature must continue to engage with those who have chosen its members, even in between elections.  Voters must correspond and interact with their representatives.  If there are too many such bodies, citizens will become uncertain about which bodies they should engage with, and, as civic virtue is a finite commodity, may tire of the process.

In addition, democracy requires an effective legislature, one that can accomplish things.  Not only must the democratic institution speak for the people, it must also be able to act on their behalf.    A standing danger of Lords reform is that an elected second chamber will become too activist, and will prevent the Commons from setting the policies of the state.  If Parliament becomes deadlocked, the state will no longer be governed democratically; indeed, it will not be governed at all.  This question was considered with some care by the Joint Committee on the House of Lords Reform Bill.  This Committee warned that including statutory provisions to preserve the primacy of the Commons ran the risk of the judiciary intervening in the running of Parliament.  On the other hand, using conventions to shore up the relationship depends on the continuing willingness of the institutions to respect this balance.  The Committee’s proposal – the agreement of a concordat between the Houses – relies, at its base, on convention.  As the Committee recognises, it may prove hard to maintain this concordat over time as an elected Lords grows in confidence.

Lovers of democracy should be wary of making the second chamber elected.  Forty years ago a strong argument could have been made that this was needed; that the Commons was too powerful.  This argument is no longer attractive.  The Commons is hemmed in on all sides.  There are other democratic institutions – at the devolved and European level – that effectively check what the Commons can do.  And the courts now have a limiting role, too, using European Law and the Human Rights Act to shape and, sometimes, restrict Parliament’s statutes.  At present there is no need for another elected body in the constitution.

This is not to say that the Lords cannot be improved – but these improvements should go with the grain of the current body, making it work better as an appointed revising chamber.  The easiest, and most obvious, reforms would be to remove the hereditary peers and Bishops from the chamber.  Having an hereditary element is indefensible and, with the possible exception of 95 or so aristocratic grumblers, their removal would not be controversial.  The Bishops should also not sit as of right, though a number might properly return as appointed members.  Whilst the Church of England provides much harmless entertainment – and, in its discussion of gender roles and sexuality, a fascinating glimpse of the moral debates of a bygone age – it is hard to see why it should have privileged access to the legislature.

Attention should then turn to the process by which members of the Lords are appointed, a mechanism that was significantly improved by the last Labour government.  This should be crafted in order to fulfil the aims of the Lords as a scrutinising and revising chamber.  So, members should be appointed because of their capacity to undertake this task, and not because of their services to a political party.  An appointed chamber gives a chance to ensure that independent expertise is present in the system and, also, that groups which are not properly represented in the Commons are given a voice.  Addressing this question should be the focus of the next thrust of Lords reform.

Nick Barber is a Fellow of Trinity College, Oxford.

Suggested citation: N. W. Barber, ‘House of Lords Reform: A Look in the Long Grass’ UK Const. L. Blog (12 July 2012) (available at


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Paul Bernal: The Draft Communications Bill and the ECHR

The Draft Communications Data Bill was published on the 14th June. It had been much anticipated, particularly by privacy advocates, and dubbed the ‘snooper’s charter’, a nickname that seems eminently appropriate. That it could pose a threat to privacy has already been discussed at some length. That it poses a threat to other human rights may not be quite so obvious: that is the subject of this blog.

 A ‘Snoopers’ Charter’?

The Bill grants powers to the Home Secretary (or another cabinet minister) to order the gathering and retaining of any ‘communications data’ by ‘telecommunication operators’. The key point here is that the intention is to gather and retain all the data: this is universal surveillance, with the limitations and controls only over access to the data. The data will be required to be held for 12 months, and access will be controlled through a system of safeguards which effectively mean that ‘designated senior officers’ will need to approve requests for data – though precisely what constitutes as ‘designated senior officer’ remains unclear. Much is made of the fact that the ‘contents’ of communications are not to be gathered and retained, but only the ‘traffic data’ – who you are communicating with, how, when and so forth – but as shall be discussed below, this is not nearly as significant an exclusion as it might seem.

The terms ‘communications data’ and ‘telecommunication operators’ are defined very broadly – and therein lies the fundamental challenge of the bill. It could cover conventional telecommunications – anything from pigeon-post to email – but, as it is written and intended, it could also cover almost any activity on the internet. When you visit a web page, for example, you send a ‘communication’, via your internet service provider (‘ISP’) to the server where the web page is held, and a ‘communication’ is sent back to you: the contents of the web page itself.

The idea behind this very broad definition is that it will not just cover conventional emails and so forth, but all the other varied forms of communications used on the internet – from instant messaging to Twitter and Facebook messages, commenting on blogs and so forth, and indeed any new forms of communication that arise. The implications, however, are immense: it means that all of our online life can and will be recorded and potentially made available for scrutiny and use.

This has human rights implications beyond the obvious-seeming intrusions into our private correspondence – one part of Article 8 of the European Convention on Human Rights (ECHR) – into our private lives themselves, and further, upon Articles 9, 10, 11 and 14 of the convention.

Article 8: Respect for Private and Family Life, Home and Correspondence

On the surface, it might appear that ‘communications data’ relates to the ‘correspondence’ part of this Article – and indeed communications like telephone calls, emails, text messages, tweets and so forth do fit into this category – but internet communications data has a much broader impact upon the ‘private life’ part of the Article. Web-browsing data, for example, can reveal far more intimate, important and personal information than might be immediately obvious. It reveals which websites are visited, which search terms are used, which links are followed, which files are downloaded – and also when, and how long sites are perused, using what kind of computer, phone or other device and so forth. When all the other data that is being gathered under the terms of the Bill – from traditional communications data like email, text messages and phone calls to music listened to on Smartphones, geo-location data etc – is added to this mix, aggregated and analysed, the potential becomes even greater.

This data can reveal habits, preferences and tastes – and can uncover, to a reasonable probability, religion, sexual preferences, political leanings etc. It can dig deep into our personal lives. We use the internet to establish and support personal relationships, to find jobs, to bank, to shop, to gather the news, to decide where to go on holiday, to concerts, museums – or football matches. Some use it for education and for religious observance – checking the times and dates of festivals and so forth, or details of dietary requirements. There are few areas of our lives that remain untouched by the internet – and those areas are reducing all the time.

Analysis and profiling

What is more, analytical methods through which more personal and private data can be derived from browsing habits have already been developed, and are continuing to be refined and extended, most directly by those involved in the behavioural advertising industry. Significant amounts of money and effort are being spent in this direction by those in the internet industry – it is a key part of the business models of Google, Facebook and others. It is already advanced – but we can expect the profiling and predictive capabilities to develop further both in scope and in accuracy in the future.

This is not profiling in the conventional ‘psychological’ form, based on educated guesses and theoretical associations: it is mathematical profiling, based on correlations determined by comparisons of massive amounts of data. Profiling like this doesn’t make judgments – and as a consequence has the potential to be far more accurate than the more conventional kind. And, importantly, the techniques and technologies developed to profile for advertising can be applied just as easily to other forms of profiling, whether they be political, religious, ethnic, or any other kind.

What this means is that by gathering, automatically and for all people, ‘communications data’, we would be gathering the most personal and intimate information about everyone. The Bill is not about gathering a small amount of technical data that might help in combating terrorism or other crime – it is about universal surveillance and ultimately profiling. That ‘content’ data is not gathered is of far less significance – and that focusing on it is an old fashioned argument, based on a world of pen and paper that is to a great extent one of the past. The surveillance and profiling enabled by the Bill is something new, and something that impacts not only on our private lives, but on many other aspects of our human rights.

Article 9 – Freedom of thought, conscience and religion

This kind of profiling is what brings Article 9 into play: it can be possible to determine (to a reasonable probability) individuals’ religions and philosophies, their languages used and even their ethnic origins, and then use that information to monitor them both online and offline.

Although it would certainly be a stretch to suggest that such profiling might allow a profiler to know what someone’s thinking, that, effectively, is its aim, and it may well get significantly closer to achieving that aim than we realise. What is more, the profiling techniques – and the databases upon which those profiling techniques are based – are improving all the time. From the perspective of the profiler, precise accuracy may not be crucial: a reasonable probability may be all that is needed. From the perspective of those being profiled, the situation is very different – and problems may arise from both accurate and inaccurate profiling. A real ‘dissident’, for example, may be located and imprisoned by an accurate profile, while an ‘innocent’ may be unfairly punished by an inaccurate profile. Either way, the consequences can be disastrous.

Article 10 – Freedom of Expression

Though the connection between freedom of expression and privacy may not be obvious – indeed, the two may appear at times to be in conflict – for freedom of expression to function properly there must be a degree of privacy.

Two examples demonstrate how works. The first is the Nightjack saga. Nightjack was a blogger, a police ‘insider’ – and in order to get his stories out into the world, he needed to be able to protect his identity. He needed to be able to control who knew what about him – and the kind of surveillance envisaged by the Communications Data Bill could have put that at risk. When his identity was revealed – through a sorry tale of computer hacking and mismanagement at the Times – it meant that Nightjack effectively ceased to exist. Freedom of expression was curtailed through a lack of privacy.

The second, more gruesome example, comes from Mexico. Over the last few years at least four Mexican bloggers have been brutally killed by the drug cartels about whom they have been writing. Precisely how they were discovered and their identities revealed is not clear, but the kind of tools that the Communications Data Bill could provide would have made it possible – and the idea that giving such tools to the Mexican police would mean that they wouldn’t get into the hands of the drugs cartels would be naïve to say the least.

It is not just in these kinds of situations that privacy is crucial for free expression: there are many more, from those dissenting against oppression to those threatened by abusive spouses, to whistleblowers and so forth. Without a reasonable expectation of privacy, many of these would simply choose not to speak out – as Jo Glanville of Index on Censorship has argued, privacy is essential for free speech to thrive.

Article 11 – Freedom of Assembly and Association

The internet offers previously unimaginable tools for groups – and for ‘assembly’ and ‘association’ of all kinds. Online communities have developed – using services like social networking, instant messaging, message boards and so forth – and ‘real world’ groups have used the same tools to facilitate their ‘real world’ meetings and communications. In this way, the internet can often be seen as a force for ‘good’, for ‘democracy’ and so forth. Many commentators have suggested that the internet played a key role in the Arab Spring – and though its role has probably been exaggerated, the internet was certainly used by many of those organising the resistance in Tunisia and Egypt in particular.

However, when communications (and in particular the internet) are used to organise meetings, to communicate as groups, to assemble both offline and online, internet surveillance can become significant and potentially dangerous. Meetings can be monitored or even prevented from occurring, groups can be targeted and so forth. Oppressive regimes throughout the world have recognised and indeed used this ability – in Tunisia, for example the former regime hacked into both Facebook and Twitter to attempt to monitor the activities of potential rebels.

It is not, however, just in extreme situations like that of a political uprising that internet surveillance comes into play. Authorities in the UK, for example, might argue that it would be right to monitor social media during a riot – and with some justification. But what about a peaceful protest? And then what about those organising a protest, before the event? How about a trade union? It is easy to make a decision on an extreme case – but the grey areas come into play much more easily than might be obvious, and the temptation for authorities to use tools once they’re there might well be too hard to resist. When newer technologies like geo-location data – knowing where people are in real time, through their mobile phones’ GPS systems – are taken into account, they might become irresistible.

Article 14 – Prohibition of Discrimination

Not only can surveillance and profiling enable discrimination – it can even potentially automate it. As discussed above, it may be possible to determine almost any kind of detail about a person online through profiling – their age, religion, nationality, ethnic origin and so forth. A key difference about the internet from ‘real world’ situations, however, is that decisions and options available to a person may be automatically controlled on the basis of that profiling – and the person involved may never even know what is happening. A website could be set to assess the profile of the person visiting and change the options displayed dependent on any aspect of that profile – this kind of ‘personalisation’ is one of the ideas being most actively developed by the big players on the internet at the moment. The downside is that this ‘personalisation’ could easily be used in discriminatory ways – offering different prices to people of different religions, for example, or making certain options simply not appear if the profile suggests a user is of a particular race. The idea of a ‘whites-only website’ becomes at least a theoretical possibility.

This may seem like an Orwellian nightmare – but it is becoming a practical proposition. A recent exposé of the Orbitz hotel-booking website showed that their system was filtering out those who use Apple Macintosh computers and offering them more expensive hotels to book. Discrimination according to the computer used may be legal – and even acceptable – but it indicates what is possible, and the potential for misuse is clear.

‘Necessary in a democratic society’?

Of course the Articles referred to above are subject to the usual qualifications – that they can be interfered with as ‘necessary in a democratic society’ for national security, economic well-being, prevention of disorder and crime, health, morals etc. That, ultimately, is the rub. In what way, and to what extent, is internet surveillance ‘necessary’ in a democratic society?

That is the question that needs to be answered. Internet surveillance can interfere significantly with the rights of individuals – not just with their privacy but with freedom of expression, with freedom of assembly and association and with freedom from discrimination. Given this, the bar should be very high in terms of the ‘need’ for that surveillance – and proper evidence needs to be presented and scrutinised before that ‘need’ is accepted. To date, the evidence provided has been scanty at best.

Dr. Paul Bernal is a lecturer in the UEA Law School and a member of media@UEA. He blogs at: and tweets as @paulbernalUK.

Suggested citation: P. Bernal, ‘The Draft Communications Bill and the ECHR’ UK Const. L. Blog (11 July 2012) (available at


Filed under Human rights

Commission on a UK Bill of Rights Publishes Second Consultation Paper

The Commission on a UK Bill of Rights has today published a second Consultation Paper.

The Commission is seeking further views from the public on whether or not we need a UK Bill of Rights, and if so, what the form and content of any such Bill might be.

Commenting on the release of the consultation paper, the Chair of the Commission Sir Leigh Lewis said:

‘I am pleased that the Commission has today published this second Consultation Paper, in order that we can seek further views on the issues relating to a UK Bill of Rights.  With less than six months until we must make our recommendations we want to hear from as many individuals and interested parties as possible. This Consultation Paper offers a further opportunity for people and organisations to have their say and is part of a wider programme of consultation and engagement by the Commission.’

The second consultation paper can be found here. 

The deadline for responses is 30 September 2012.


Filed under Human rights

Se-shauna Wheatle: The Residual Powers of the Court

There has, justifiably, been much debate about the implications of the judgments of the Supreme Court of the United Kingdom in R (Jackson) v Attorney General [2005] UKHL 56, [2006] AC 262 and AXA General Insurance Ltd v The Scottish Ministers [2011] UKSC 46, [2011] 3 WLR 871. What is perhaps the most constitutionally significant aspect of these judgments is the court’s professed residual power to review legislation on common law grounds. The term ‘residual power’ is the coinage used by Lord Reed in a seminar conducted at Balliol College, Oxford, on May 2, 2012. The very labelling of the power as residual is significant because it evokes questions about the source of the power and the frequency with which it be deployed. The label ‘residual’ suggests that the power is not to be located in the text of a statute. This is rather basic, but is of course, one source of controversy surrounding the very assertion of this residual power. The fact that it is not located in a statutory text raises questions as to the democratic legitimacy of the power; it also heightens concerns about the scope of such a power and about the wisdom of permitting judges to delineate the scope of that power. Beyond the question of legitimacy lie further questions about the implications of the judgments in Jackson and AXA with respect to the definition and application of the purported residual power to review legislation. I will first distinguish the residual powers asserted by judges in the two cases, discuss whether the vagueness of the residual powers poses a problem, and end with a note on the precedential impact of the judgments.

1.     The Purported Residual Powers of the Court

Two residual categories have been identified by the Law Lords in these two cases. The first of these is ‘exceptional circumstances review’ as outlined by Lord Steyn in Jackson and Lord Hope in AXA. This category of review may arise where a statute violates the rule of law and the court is required to invalidate the statute because of its duty to protect the rule of law. The second is where review can be justified on the principle of legality as outlined by Lord Reed in AXA. The latter branch of residual power is potentially more limited than the former in at least two senses. It is conceptually more limited in that, though Lord Reed invokes the rule of law in support of this power, it is based more specifically on the principle of legality. For Lord Reed, then, the court’s residual power to invalidate legislation rests on the presumption of legality, which ‘means not only that Parliament cannot itself override fundamental rights or the rule of law by general or ambiguous words, but also that it cannot confer on another body, by general or ambiguous words, the power to do so.’ This is a restatement of the principle of legality as articulated by Lord Steyn in Reg. v. Secretary of State for the Home Department, Ex parte Pierson [1998] AC 539 and Lords Steyn and Hoffmann in R v Secretary of State for the Home Department, ex p Simms [2000] 2 AC 115. Secondly, legality-based power is of more limited scope in its applicability. Insofar as it allows courts to disapply or invalidate legislation, it appears to only be applicable to subordinate legislatures because Lord Reed’s reasoning on the principle of legality is that Parliament cannot, by general or ambiguous words, confer on another body the power to override fundamental rights or the rule of law [152-153].  The principle is therefore quite potent as applied to legislation of a subordinate legislature because it would allow the court to invalidate a statute or statutory provision as outwith the powers of that legislative body. As applied to a sovereign Parliament such as the UK Parliament, the principle allows for (creative) interpretation of Acts of Parliament but not outright judicial rejection of such legislation. By contrast, the power identified by Lord Steyn in Jackson and Lord Hope in AXA has the potential to be much broader, encompassing the potential for review of legislation enacted by the UK Parliament.

2.     Vagueness: Problem? What Problem?

Commentators have rightly indicated that the residual categories (particularly ‘exceptional circumstances’ review based on the rule of law) suffer from a vagueness problem. The vagueness arises in at least two areas. The first is the lack of clarity as to what constitutes ‘exceptional circumstances’. This in turn raises questions as to the rule of law values which would have to be threatened and as to degree of threat to such values which would provoke the court’s intervention. The second area of vagueness is that it is unclear what action or intervention such a threat might provoke from the courts. Will the court’s intervention appear in the form of extremely creative (re)interpretation of statute, disapplication of a statute in a particular case or invalidation of a statute? The vagueness inherent in the exceptional circumstances category may be defended on the ground that as a residual power, there must be uncertainty in its formulation. Yet, it is not entirely convincing that a residual category must necessarily be vague. A residual power could be formulated to permit the court’s intervention only in circumstances where legislation seeks to abolish judicial review, thereby interfering with access to the courts. This was one of the examples given by Lord Steyn in Jackson [102] and it is conceivable that exceptional circumstances review could be limited to exceptional possibility. The problem is that Lord Steyn did not limit the circumstances to such cases nor did he provide a definite indication of the scope of ‘exceptional circumstances’. It is arguable that the judges have quite deliberately left the category vague in order to allow flexibility for the court to develop the category as it sees fit and to craft what it deems to be an appropriate response to circumstances it has not, and perhaps could not have foreseen. Perhaps more importantly, Lord Reed in the seminar at Balliol College, took the view that it was ‘not a problem’ that the content of the ‘rule of law’ and ‘fundamental rights’ which underlie both categories of residual power are vague. In his view, this may encourage authorities to be more careful. This argument in defence of the vagueness of the scope of the residual powers emphasizes the inter-institutional dialogue that is at play in AXA and Jackson.

3.     Inter-Institutional Dialogue and Setting Precedents

It has been accurately observed that some of the obiter dicta in Jackson were a direct response to the proposed Asylum and Immigration (Treatment of Claimants etc.) Bill, which would have sought to oust judicial review of decisions of the court, even where those decisions were alleged to be in breach of natural justice. One could therefore be tempted to relegate these judicial pronouncements to the realm of inter-institutional dialogue and as mere warning shots directed at the government and Parliament. This, however, does not mean that we must not take the judges seriously. AXA is proof of the need to take the assertion of residual powers of the court seriously and of the need to debate the practical implications of the purported residual powers of the courts and to interrogate the normative justification for such powers. It is true that the actual judgment in AXA was limited to finding that the Supreme Court had power to review Acts of the Scottish Parliament on the common law grounds identified by the judges, however, this in itself is a significant development which was based, in part, on the dicta in Jackson regarding the power to review Acts of the UK Parliament.  Further, Lord Hope’s judgment in AXA, with which the other Law Lords concurred, stated that ‘[t]he question whether the principle of the sovereignty of the United Kingdom Parliament is absolute or may be subject to limitation in exceptional circumstances is still under discussion.’ [50] Out of inter-institutional dialogue, the roots of dramatic precedent may spring up. We should not discount the role of persuasive precedent in developing the law, particularly the ‘uncharted territory’ of constitutional law which arose for discussion in these two cases.

It remains to be seen exactly how these judgments will affect the development of constitutional theory and practice. The issues raised in this piece, and others that have been discussed elsewhere, must be addressed. The judgments are, at least, one step in grappling with the tension that may arise between parliamentary sovereignty and other constitutional principles.

Se-shauna Wheatle is a DPhil Candidate at Balliol College, and Lecturer in Law, Exeter College, University of Oxford.


Filed under Human rights, Judicial review, Judiciary

Conor Gearty: Liberty and Security

The contemporary discussion about secret trials in the UK echoes earlier controversies about TPIMs, control orders, detention without charge, special advocates, the use of torture – the list seems depressingly endless. Defenders of the rule of law and of human rights appear permanently on the back foot these days, desperate just to stay in the game and having long given up any notion of making the running themselves.  For most of those working in the field (whether as lawyers, activists or scholars), the goal is survival not success.

Why should this be the case?

What has made it so difficult to argue positions that – until really quite recently – were taken largely for granted?

I have been thinking hard about this over the past few months as I have been finalising Liberty and Security, a book to be published later this year (or early next) by Polity Press.  It is about the shape that these words ‘liberty’ and ‘security’ have taken through time and from place to place, how much they have been realised and for how many, and what their standing is today.  In reflecting on these questions I have, I believe, stumbled upon an unattractive global trend, which in the book I call ‘neo-democracy’.

I want to use this short post to explain what I mean by this and – hopefully – start a discussion.

The key to understanding ‘liberty’ and ‘security’-  and therefore to identifying how these words work today – is to see that while their core meaning is not hard to work out, it is the reach of the benefits that each word so powerfully evokes that truly matters.

-       It is the ‘for how many’ issue that mainly concerns me: to whom are liberty and security to be extended?

-       Is it to be to all or just the few?

-       If it is to be to all, is it to be through community, state, non-state, regional or international action?

-        If guaranteed for all, how practical in their reach do these theoretical commitments prove themselves to be?

I think that the central arguments over liberty and security have really always been about this issue of remit rather than of meaning.

My book argues for a particular approach, one that regards the benefits of liberty and security as being rightfully available to all, and thereby capable of reaching (being required to reach) the many rather than the few.  It does not argue the ethic of such a perspective from first principles. Instead it rather takes the moral desirability of universality for granted – as most societies now say they do (whatever about how they truly act). Viewing liberty and security in this all-inclusive way shapes how I approach both the past work these words have done and the present-day reach that (I say) should be consistently accorded to them.

This is not as easy as it looks.

Saying is not doing. A different approach is reflected in the growing presence of walls in divided societies, blatant efforts by the ’haves’  to shut out not only the sight of the ‘have-nots’ but also any opportunity the unlucky many might have to glimpse what a better future would look like.  Israel’s ‘partition fence’ might be the most well-known of these but it is by no means the only one: see  And when where there are no physical walls, our neo-liberal society has increased embraced metaphorical walls even while it has ostentatiously embraced the virtues of the level playing field.

And important bits of our shared history might be on the side of the neo-democrats.

If we look to the past, neither ‘liberty’ nor ‘security’ has been routinely understood in the broad terms for which I argue. Indeed the primary understanding of liberty and security in the pre-democratic era was always narrowly selective as to who was to benefit from the opportunities afforded the one and the safety delivered by the other.  It was only when the radically egalitarian idea of community self-government took hold on a national scale that liberty and security found themselves open to being wrenched out of their elitist corrals and offered to all.

Democracy gave the universalist reading of liberty and security an entry point and strong support but it could not by itself deliver effortless supremacy for the reach that this approach affords these words.  This was because (as I argue in the book) the democratic victory was itself incomplete, a freedom for all that was invariably not forged afresh but rather tentatively grafted onto a pre-existing society that had been designed for the few.

Old elite readings of liberty and security persisted into the democratic era, jostling for space with their egalitarian interlopers.

This takes me to the central argument in the book, the one that I wanted to flag up in this post.

Around the world we are drifting towards a post-democratic (‘neo-democratic’) model of government.  This is a polity that increasingly wears democratic clothes as a disguise rather than a proud necessity. So we see these old, pre-democratic meanings of the terms returning into popular use, underpinning and explaining readings of liberty and security which remain apparently universal but are now falsely so – words that hide inequality and unfairness by seeming to reach all when in fact in their practical impact they are tailored to the few.

It is not just the so-called emerging democracies that are in reality neo-democratic in this sense: increasingly it is places like the US, the UK and even the UN itself.  Former authoritarian states are reaching up to neo-democracy while the old democracies are stooping down.  They are meeting in the middle, in virtual democracy: this is the world of secret trials, special advocates and so on.

My book argues that we should recover the universal in liberty and security, restoring the egalitarian thrust that drove the turn to democracy that was such an important feature of the evolution of universal freedom.  Such a move has two important allies in its quest to impose its version of the truth, two large-scale movements that have had a beneficial impact across the world.

The first, the rule of law, predates the democratic turn but complements it, maintaining that everyone must be subject to the same laws and (just as critically) that the maker of any given law should not at one and the same time be its authoritative interpreter.

The second, the human rights movement, is of more recent origin (at least insofar as we understand the idea today); the very way that its self-description dedicates itself to all humans reveals the commitment shown by human rights to an egalitarian vision of the world, one in which we all should have a right to the freedoms that were once assumed to be the privilege of the few.   And human rights today also reaches beyond the protection of liberty (narrowly defined) to encompass rich readings of human security, the sort which democratic government once made popular. It is about much more than this or that law, just as it is not about selfish choices masquerading as entitlements – it is about universal freedom.

The neo-democratic turn in contrast wants us to regard democracy, the rule of law and human rights in this sense as outmoded. It wants us to see these ideas  as ‘old hat’, incapable of coping with the challenges of the modern global world, the rise of extremism, climate change, the movement of capital, population growth, refugees, etc.  The proponents of neo-democracy (conscious and unconscious) are happy to see the terms ‘liberty’ and ‘security’ contaminated by misuse, forsaken by those who should love them most as creatures of illusion and hypocrisy.

True liberty and security – that is liberty and security for all and not just the already empowered few – depends on recovering the finest meanings of these terms and then using them as offensive weapons against the onward surge of the over-privileged minority whose ideal world would see liberty and security as their exclusive preserve alone.  They must be resisted. It is time to get back on the front foot.

Conor Gearty is Professor of Human Rights Law, LSE, and a Barrister at Matrix Chambers.


Filed under Human rights, Judiciary, UK Parliament