Monthly Archives: October 2012

Jacob Rowbottom: Campaign Lies and the First Amendment

It is now a tradition that during an America presidential election year, commentators shall declare the campaigns to be the ‘nastiest’ and ‘dirtiest’ ever. It is difficult to know whether such a claim is true of the 2012 election, as tough campaigning has a long history in the USA (as a NY Times article from last month explains). There is, however, no doubt that candidates at all levels of the American system have engaged in and been subject to some fierce attack messages (a recent Campaigns and Elections article provides some notable examples). Yet negative messages do not breach campaign ethics. Strong criticism of parties and candidates is part of the cut and thrust of elections. The real problem arises when electoral messages turn out to be false – and a quick viewing of websites such as FactCheck.org show the doubts about the truth of some campaign messages in the current American election.

Given the seemingly free exchange of robust (and sometimes brutal) campaign communications, it may surprise some readers that several US states have laws that prohibit certain false statements about candidates during an election campaign. These are the American equivalents of British law that led to Phil Woolas being forced out of his seat following the 2010 general election (s.106 of the Representation of the People Act 1983). For example, the key state of Ohio has laws prohibiting knowingly or recklessly false statements being published about a candidate. It employs a combination of administrative remedies (through an Election Commission finding or a fine) and criminal penalties (as a last resort). Despite the presence of such a law, a recent article in the Cleveland Plain Dealer casts doubt on the effectiveness of these measures.  Much the same can be said about its British counterpart.

A bigger constitutional question is whether such laws are consistent with the right to freedom of speech under the First Amendment. This is something I considered briefly in an article for OJLS published over the summer. On my reading, the US case law was ambiguous. The US Supreme Court has not addressed the issue directly. Previous statements from the Supreme Court point in different directions, with some emphasizing the importance of political expression and others stressing that knowingly false statements have no value. Since my article was finalized, the Supreme Court’s decision in June in US v Alvarez sheds more light on this issue and drops some hints as to how the Court might approach false campaign statement laws.

Alvarez did not concern campaign communications, but a statute called the Stolen Valor Act, which made it a criminal offence to falsely claim to have been awarded ‘any decoration or medal authorized by Congress for the Armed Forces of the United States’. The issue for the Court was whether the First Amendment protected false statements. A majority of the court decided that while lies can be prohibited in some circumstances, falsity alone does not preclude First Amendment protection. In his plurality opinion, Justice Kennedy thought the system of free speech is self-correcting and that the normal ‘remedy for speech that is false is speech that is true.’ Applying strict scrutiny, he found the Stolen Valor Act to be unconstitutional. In a concurring opinion, Justice Breyer reached the same conclusion, but applied a less intense standard of intermediate scrutiny.

The government relied on a number of cases, including New York Times v Sullivan (1964) to support the Stolen Valor Act. The ruling in Sullivan famously protects those making statements about public figures from defamation actions. However, the Sullivan ruling still allows defamation actions to be brought when malicious (ie knowingly or recklessly false) defamatory statements are made about public figures. One reading of Sullivan is therefore that knowingly or recklessly false statements can be restricted – even on political matters – without raising First Amendment concerns. The argument is of interest as many of the American campaign speech laws have been drafted to conform to this reading of Sullivan, prohibiting only those false statements about candidates that are made with ‘actual malice’.

The Supreme Court in Alvarez, however, rejected this reading. The basic thrust of Justice Kennedy’s reasoning is that defamatory statements normally fall outside the First Amendment. The public figure defence in Sullivan is a way of softening that exclusion to give breathing space for political speech. On this view, Sullivan merely deprives the malicious speaker of the public figure defence and in such cases restores the normal position that defamatory statements fall outside the First Amendment. While I am still thinking through the implications of this reasoning, it means that the Supreme Court now treats the Sullivan rule on malicious statements as specific to defamation and does not deal with false statements more generally.

Alvarez also provides some indication of how campaign speech laws might be treated. In a recent analysis of the decision, Prof Rick Hasen, a leading US election lawyer, notes that there is ‘unanimous skepticism of laws targeting false speech about issues of public concern.’ For example, Justice Breyer, in a concurring opinion, said that controls on ‘false statements about philosophy, religion, history, the social sciences, the arts, and the like’ would risk suppressing true as well as false statements, and that such controls could call for strict scrutiny. He went on to say:

‘In the political arena a false statement is more likely to make a behavioral difference (say, by leading the listeners to vote for the speaker) but at the same time criminal prosecution is particularly dangerous (say, by radically changing a potential election result) and consequently can more easily result in censorship of speakers and their ideas.’

Breyer’s remarks suggest that it would be difficult to tailor a control on false campaign speech in a way that would not chill some true expression and that such controls could also be open to abuse by prosecutors and adjudicators.

Justice Alito offered a dissenting opinion, stating ‘false statements of fact merit no First Amendment protection in their own right’. While he thought the Stolen Valor Act should be upheld, he too hinted that laws prohibiting false campaign speech might fall foul of the First Amendment. Even though false statements have no intrinsic value, Alito reasoned that this should not be the end of the question. Restrictions on false statements of fact can still have a chilling effect. For this reason, restrictions on certain types of false speech may still be afforded some ‘instrumental constitutional protection’. Like Breyer, Alito thought that in relation to ‘philosophy, religion, history, the social sciences, the arts, and other matters of public concern’ it would be ‘perilous to permit the state to be the arbiter of truth.’ The dissenters also argued that such a power ‘opens the door for the state to use its power for political ends’.

These statements are only indications of where the Court might go and do not address the campaign speech issue directly. These initial sentiments of the US Supreme Court stand in contrast to the position of the British courts following Woolas, which concerned the British law on false electoral statements. In that case, Thomas LJ stated that Article 10 of the European Convention ‘does not extend to a right to be dishonest and tell lies’ and that this is applies to lies about the ‘political position of a candidate’ as well as those about a candidate’s ‘personal character’. Thomas LJ argued that dishonest statements in an election campaign ‘are aimed at the destruction of the rights of the public to free elections’ and thereby relied on Article 17 to exclude any protection under the European Convention. The British approach appears to give the government a free hand in restricting dishonest campaign messages.

Ultimately, the issue is a difficult one and the British and the emerging American approaches show two different paths. My feelings on this are mixed, as I think the campaign lies do pose a substantial harm to the electoral process and in some cases it cannot be remedied with ‘more speech’. At the same time, I have serious reservations about allowing courts or agencies to determine the truth of campaign messages. In any event, I think false statement laws have limited effect and can only ever be enforced in a small number of cases.

It remains to be seen what will happen in the USA. Prof Hasen concludes in his paper that following Alvarez ‘we are likely to see more false campaign speech in elections, including some brazen lies.’ Just as Citizens United unleashed new channels for money to enter politics, Alvarez could open the door for more lies to enter campaign debate. Yet you may ask whether protecting dishonest campaign speech would really make such a difference. Given the limited enforcement of the existing state laws, the removal of the campaign speech laws may not in practice be such a great change from the status quo. If campaigners under the current rules feel free to mislead and lie, what difference will it make if those laws are struck down? The significant development would be the recognition of constitutional right to tell lies in elections, which might be taken as a signal for people to eschew certain campaign ethics. If that happens, then maybe the next election cycle really will be nastiest and dirtiest ever.

Jacob Rowbottom is a Fellow of University College, Oxford.

Suggested citation: J. Rowbottom, ‘Campaign Lies and the First Amendment’  UK Const. L. Blog (30th October 2012) (available at http://ukconstitutionallaw.org)

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Roger Masterman: The Prince, the Attorney-General, the Section 53 Certificate and the pretence of political neutrality

The Freedom of Information Act, which came into force on 1 January 2005, provides under s.53 for a power of ministerial veto.  Section 53(2) provides that:

‘[a] decision notice or enforcement notice … shall cease to have effect if, not later than the twentieth working day following the effective date, the accountable person in relation to that authority gives the Commissioner a certificate signed by him stating that he has on reasonable grounds formed the opinion that, in respect of the request or requests concerned, there was no failure [to satisfy the statutory ‘right to know’].’  

Ministers are under s.53, effectively given a power to determine that the requirements of the Freedom of Information Act should, in certain instances, not apply.  The inclusion of the Ministerial veto in the Freedom of Information Act was, perhaps unsurprisingly, the most controversial of the changes to the access to information regime introduced between publication of Your Right to Know in 1997 and the enactment of the statute in 2000; in a damning critique in the 5th edition of The Changing Constitution, Austin concluded that the veto power ‘undermines any credibility to the claim that the Act creates a legally enforceable individual right of access’ and amounted to ‘a fraud on democratic accountability.’  The saving grace – as Hazell and Busfield-Birch have recorded – has been that the veto power has, compared with similar measures overseas, been used relatively infrequently (‘Opening the Cabinet Door: Freedom of Information and Government Policy Making’ [2011] PL 260, 283).  To date, Ministers have overridden disclosure orders relating to Cabinet minutes concerning the 2003 invasion of Iraq, relating to Cabinet Sub-Committee meetings on devolution (twice) and relating to a risk assessment of proposed NHS reforms.

On 16 October 2012 the Attorney-General issued a further certificate under s.53, overriding (predictably in the light of amendments to the Freedom of Information Act made in the Constitutional Reform and Governance Act 2010) the decision of the Upper Tribunal in Evans v Information Commissioner [2012] UKUT 313 (AAC).  Evans – a decision covered in Hayley Hooper’s earlier post on this blog – concerned a request made under the Freedom of Information Act by journalists to a number of government departments seeking disclosure of ‘advocacy correspondence’ between the Prince of Wales and those departments.  The Upper Tribunal found that the correspondence should be disclosed on the basis that it would be ‘in the overall public interest for there to be to be transparency as to how and when Prince Charles seeks to influence government’ [4].  This post makes some observations relating to the reasons provided by the Attorney-General for deployment of the Ministerial veto in this instance.

In his statement of reasons explaining the use of s.53, the Attorney-General began by sketching the principles governing the relationship between the Monarch, governments and Ministers.  It is, he outlined:

‘a vital feature of the constitutional settlement that the Sovereign cannot be seen to favour one political party above another, or to engage in political controversy.  Without that preservation of political neutrality, the constitutional balance that allows for governments to be elected within the framework of inherited monarchy could be preserved.  Nor would it be possible for the Sovereign to fulfil his or her symbolic function as representative of the State.’ ([6])

This balance, as the Attorney-General continued, was by convention regulated by the constitutional trade-off that the Monarch utilises prerogative powers on Ministerial advice and, in turn, enjoys the right to ‘be consulted, to encourage, and to warn the government ([6]).’  A further convention – the education convention – extends to the right of the heir to the throne to be ‘instructed in the business of government’ ([8]).  The Attorney-General’s issue of the certificate relies on an interpretation of this particular convention that was rejected by the Upper Tribunal.

The Upper Tribunal found that ‘advocacy correspondence’ fell outside of the scope of the so-called education convention ([163]).  The Attorney-General disagreed, suggesting that such correspondence ‘enables the Prince of Wales better to understand the business of government; strengthens his relations with Ministers; and enables him to make points which he would have a right (and indeed arguably a duty) to make as Monarch’ ([9]).  Correspondence falling within the scope of the education convention should, the Attorney-General concluded, be protected by confidentiality ([10]).

In stressing the need for confidentiality, the Attorney-General highlighted the risk that, through disclosure, the Prince of Wales came to be viewed ‘as disagreeing with government policy’, adding that ‘any such perception would be seriously damaging to his role as future monarch, because he forfeits his position of political neutrality as heir to the throne, he cannot easily recover it when he is King.  Thus in this context, confidentiality serves and promotes important public interests ([10]).’

This account does not provide a convincing justification for the exercise of the ministerial override.  The public interest in non-disclosure seems to have been interpreted by the Attorney-General as a public interest in maintaining the appearance of the political neutrality of the Prince of Wales.  Perhaps maintenance of this appearance might have been of some value, had the Prince of Wales’ cause advocacy not been so widely commented upon, and had the Prince not been recorded as seeing his constitutional role as ‘seeking to make a difference’ of some undefined sort ([6]).  It is not the willingness of the Attorney-General to seek to uphold the confidentiality of personal correspondence merely relating to the Prince’s ‘deeply held personal views and beliefs’ ([12]) that is problematic here.  Rather, it is the fact that it is seemingly conceded on all fronts that those ‘deeply held personal beliefs ‘ were deployed in an attempt, or attempts, to influence governmental decision-making.  As a result of this ministerial veto, we will perhaps never know whether or not those interventions have had, or will have, any material effects in practice.

The reasons for issuing the veto seek to defend these interventions on educative grounds.  The assertion of the Attorney-General that the correspondence comprises ‘part of the [Prince’s] preparation for kingship’ ([15]) however clearly sits uneasily with the ‘advocacy’ objectives underpinning the correspondence.  It seems highly disingenuous to claim that letters from the Prince ‘urging a particular view upon Ministers’ ([5]) should be portrayed as a necessary component of the right of the heir to the Throne ‘to be instructed in the business of government’ ([8]) – all the more so when it is recalled that such instruction is defended as preparation for holding an office which ‘cannot be seen to favour one political party above another, or to engage in political controversy’ ([6]).  On this latter point, it should be noted that the Upper Tribunal found the contention that the ‘advocacy correspondence’ to be in the public interest as ‘good preparation’ for ascending to the throne to be ‘divorced from reality’ ([170]).

Having stressed the right of the Prince of Wales to ‘urge’ his ‘personal and deeply held views and convictions’ upon Ministers under the protection of confidentiality, the Attorney-General makes the following, matter-of-fact (and slightly surprising), assertion: ‘the Prince of Wales is party-political neutral ([10] emphasis added).’  The Attorney-General continues, ‘it is highly important that he is not considered by the public to favour one political party or another’ ([10]).  I suspect I am not alone in thinking that there would be better ways to maintain an appearance of political neutrality than preserving as apparent constitutional right the unfettered ability of the heir to the throne to confidentially lobby the government.  Regardless, while the technical point regarding party-political bias might be sustained – or at least, cannot now be disproven – it is far less clear that there has been no ‘engagement in political controversy’ whatsoever on the part of the Prince.  Why otherwise would the Attorney-General feel the need to concede that disclosure of the ‘advocacy correspondence’ ‘would potentially have undermined [the Prince’s] position of political neutrality’ ([12])?

In short, the Attorney-General asks us to buy into the idea of political neutrality while at the same time turning a blind eye to potentially political (and/or controversial) interventions made under protection of confidentiality and defended as serving (debatable) educative function.  All things told, this episode, while offering a tantalising glimpse into an area now covered by an absolute exemption, otherwise only casts light on a central weakness of our Freedom of Information regime, and a government co-opted into perpetuating continued (and intolerable) uncertainty over the political influence of the monarchy.

Roger Masterman is Reader in Law at Durham University.

Suggested citation: R. Masterman, ‘The Prince, the Attorney-General, the Section 53 Certificate and the pretence of political neutrality’  UK Const. L. Blog (22th October 2012) (available at http://ukconstitutionallaw.org)

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News: IACL website

The website of the International Association of Constitutional Law (IACL) has had a make-over: see here. Paid-up subscribers to the UK Constitutional Law Group (which is the British section of the IACL) automatically become members of the IACL. If you would like to support the work of the UKCLG, and have not yet paid for your 2012 subscription, please consider joining (details here). Funds are used to pay the UKCLG institutional membership fee to the IACL and to cover the costs of running this blog. Any queries about the IACL should be sent to Andrew Le Sueur (contact details here), who serves on the IACL executive committee.

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Jeff King: Down with Pirates

In this post, I argue against protest voting for fringe parties that mock the conventional party systems.  To some it may look liberal and progressive, but it in fact offers a false and faddish mirage of progressive action that is liable to have precisely the opposite effect.  It  encourages dropping out of a viable party-system at a time that joining in is exactly what’s needed.

There has been a surge of such protest voting in Europe in the last few years. The most notorious example has been the rise of the ‘Pirate Party’ in Germany, a party that originated in Sweden in 2006 .  They have won seats in Nordrhein-Westfalen, Germany’s largest state (Land).  They also won 15 seats on the Berlin city council on 18 September 2011. And it is feared they will enter the Bundestag in the next federal elections, having won 2% of the 5% of votes needed in the September 2009 election.  Similarly, the comedian Beppe Grillo has led a party in Italy known as the Five Star Movement, which has taken a range of offices across the country. In my view, this is all a good joke gone bad.  Politics is no laughing matter.  We need parties that are serious, warts and all.  Why so?

1.         Parties offer collective intelligence and collective action

Modern government is extremely complex.  Adopting policies on taxation, fiscal policy, employment strategies, and managing a legislative programme requires a lot more than gut-feelings about right and wrong.  It requires comprehension of vast quantities of information, and mechanisms for processing it that are delegated and fragmented. It requires organisation.  Indeed this is a key reason for the rise of political parties in the first place.

The Pirate Party proposes to rely on ‘liquid democracy’ where it would consult the preferences of its members (see http://www.piratenpartei.de/mitmachen/arbeitsweise-und-tools/liquid-feedback/ or http://www.pirateparty.org.uk/wiki/Liquid_democracy).  They run software called ‘liquid feedback,’ which generates real-time party member preferences on all policy issues confronted.  This idea is related to a much wider problem of using direct democracy techniques in modern governance.  Shall we take a straw poll on the present need for quantitative easing?  Yes, me neither.

This is why we have representative democracy, and the division of labour required within political parties to have policy formed by people who know how to read the dense bits of the broadsheets. They then coordinate with each other to produce a coherent global political platform that reflects the general political principles of the party.   True, that coordination and discipline may provide cover for inertia and elite access, but it also comprises vast networks of interests and channels for careful negotiation, deliberation, and the discipline required to prioritise and carry forward public policies on crucial issues.

‘Liquid democracy’ threatens to replace that with gut feelings fuelled by a cyberbalkanised media landscape.

2.         Parties offer channels for compromise

Compromise sounds dirty. And since Weber coined the phrase ‘politics is the art of compromise’, politics has a dirty image as well.  Some even accuse politicians of acting ‘politically’!

The criticism is wholly misguided, however.  We compromise in life all the time. We do so in families at the grocery store, on holidays, and at the film shop.  And we also do so in national politics, in most areas of policy.  Compromise is about mutual accommodation. Entire political systems – consociational, those in perpetual coalitions, and many others – are founded upon the harmonious effects of effective compromise (see Bellamy; Braybrooke, below).  Compromises are only ‘dirty’ or ‘rotten’ (see Margalit, below) if they unjustifiably violate someone’s rights, or harm the common good or welfare by comparison with the alternatives.

The Pirates are likely to undermine parties’ capacity to compromise on the right issues, and grandstand as the champions of truth and integrity in the process. It can promote a bunker mentality and gridlock in legislative bargaining.  Some argue that public grandstanding (as opposed to hard bargaining) has destabilised constitution building at critical junctures in some countries’ development (see Jon Elster, “Forces And Mechanisms In The Constitution-Making Process” (1995) 45 Duke L J 364). At any rate, it will be interesting to see how the Pirate Party’s idealism evaporates if ever it would be given power over a public budget. It will then need to take collective decisions and assign someone to speak definitively with one voice for the Party.   When the decisions are big, someone, ultimately, has to hold the conch.

3.         Parties do offer avenues for change and protest

The constant refrain is that political parties do not offer choice.  Well, choice for what?  In Germany, voters can choose – and do – between five parties that span the entire political spectrum, from extreme right, to neo-liberal, to Christian Democrat, to Green, Social Democrat, to the farther left.  It is ironic in fact that these protest parties have proliferated in countries with proportional representation.

Perhaps there are some issues that these parties are not taking seriously?  Well obviously piracy isn’t one of them, but we shouldn’t let the costumes eclipse the fact that the movement includes serious and intelligent people with real policies and new ideas on offer.  The Pirate Party characterises itself as a social-liberal or centrist party, its link to the broader political agenda. But that declared orientation leaves unanswered the obvious question of why it should be seen as different from the Social Democratic Party or Green Party.  The big idea in the Pirate Party is greater Internet freedom. Is that the big single issue worthy of a new political party?  No doubt it is important, but the idea that it should eclipse jobs, monetary stability, equality for women and climate change (the Greens get a hall pass) frankly beggars belief.

Even in the realm of media regulation, it pales in importance next to the impact of concentrated media ownership, and the decline of print media and conventional investigative journalism, fuelled by the rise of blogging, tabloids, and online titillation posing as news.  If Pirates want to take radical action on media policy, try paying for a newspaper subscription.

There may in fact be a more troubling fact afoot.  It would be interesting to ask the Pirate Party how many of its members were in fact members of any other political party in their lifetimes.  (The Pirates’ Wikipedia page reports that two former Bundestag members of other parties have joined the Pirates, one of whom, Jörg Tauss, has since left for non-political reasons).  Have they tried for change from within, or merely recoiled from the business suit?

Party membership has plummeted in Britain, to take one example.  In 1957, one in eleven in Britain were members of a political party, whereas presently the figure has sunk to one in  eighty-eight.  (See generally, ‘The future of parties’ (2005) 59 Parliamentary Affairs 499 (special issue)).  And let’s not even ask about trade union membership.

Is it because these parties themselves no longer offer choice?  Hardly.  Within all the parties, discrete camps jockey for position within the party before, during and after leadership contests.  To say that this is mere ‘politics’  – a battle royale of type-A will-to-power personalities – is to deliver a crude and uninformed picture of politics.  Really, what else are they supposed to do?

And there is choice even in the most mainstream parties. In the UK, the Tories teeter between highly conservative backbenchers who want to scrap the Human Rights Act 1998, withdraw from the EU and the European Convention on Human Rights, and a more pragmatic frontbench that wants to keep the Coalition alive and focus on slashing public spending and reorganising the welfare state.  In the Labour Party, the dispute between Brown and Blairites, and between Ed and David Milliband, was rightly understood as more than personality politics – it was a contest between left and right tendencies in the party.  In neither party is the result a winner-takes-all victory, either.  The claims of the losing side remain present at all times, because if entirely ignored they can fester and destabilise the party in government or opposition, whether by backbench revolt or leadership coup.

So there are avenues for change within political parties.  But one needs to join a party and vote.  Of course, in any big party with a diverse membership, people will disagree about policy. To turn one’s back on the parties is ignore the need to act collectively to create change on the issues that are crucial, and to take other people’s wishes seriously.  That’s serious business, and costumes aren’t welcome.

Jeff King is Senior Lecturer, Faculty of Laws, University College London. (The author extends his appreciation to Caroline Daly for research assistance, and apologies to Steffi Metzler).

Suggested citation: J. King, ‘Down with Pirates’  UK Const. L. Blog (20th October 2012) (available at http://ukconstitutionallaw.org) 

Further Reading

R. Bellamy, Liberalism and Pluralism: Towards a Politics of Compromise (London & New York: Routledge, 2002).

D. Braybrooke, ‘The Possibilities of Compromise’ (1982) 93 Ethics 139-50 (reviewing the Pennock and Chapman volume below).

J.P. Day, ‘Compromise’ (1989) 64 Philosophy 471-85.

A. Margalit, On Compromise and Rotten Compromises (Princeton University Press, 2009).

M. Nachi (ed), ‘Compromise: Exploring Theory and Practice’ (2004) 43(2) Social Science Information (special issue).

 J.R. Pennock & J.W. Chapman,  Nomos XXI: Compromise in Ethics, Law, and Politics (New York: New York University Press, 1979).

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Mike Gordon: Time for a Citizens’ Assembly on Lords Reform?

After the collapse of the coalition government’s House of Lords Reform Bill in August, the UK Parliament’s upper chamber remains resolutely unreformed.  The substance of this most recent attempt to complete the process of reform which commenced with the first Parliament Act in 1911 has been examined in detail by a Joint Committee on the Draft Bill, in recent contributions to this blog, and elsewhere.  For some, although certainly not all, the demise of the Bill is not to be lamented, yet the reasons for this vary substantially.  Almost every element of the Bill has been criticised by someone, somewhere, with it being surprisingly difficult to identify a key overriding deficiency of the proposed reform (although clause 2, which provided that nothing in the Bill would affect the primacy of the House of Commons is perhaps the leading contender for most frequently considered flaw).  The failure of this attempt at reform thus had an air of inevitability about it, fulfilling the prophecies of the many commentators who confidently predicted that the Bill would not attract sufficient support to progress through Parliament.

The primary purpose of this post is not, however, to reconsider the merits and/or demerits of the Reform Bill.  The innovations proposed in the Bill have already been thoroughly evaluated, perhaps with the exception of the sheer length of time the government’s reform plan would have taken to implement, with three new intakes of elected members envisaged over the course of three general elections.  Indeed, a staggered transition to the new arrangements, with reform of the Lords potentially incomplete until 2025, would in my view have engendered unnecessary uncertainty in relation to the legitimacy of the interim chamber(s), and unduly delayed the development of a distinct political culture and working practices appropriate to the reconfigured house.  And, of course, a three stage process would have left future governments with two convenient opportunities to ‘pause’ reform prior to its conclusion, potentially transforming interim arrangements into a more enduring state of affairs as is almost traditional in relation to the Lords.

Nevertheless, the purpose of this post is to suggest a way forward.  While it has been argued that this most recent proposal represented a once in a generation chance to reform the House of Lords, this seems likely to have been rhetoric rather than reality.  Lords reform has already proved to be an issue of remarkable resilience, remaining a matter of debate for over a century.  All three major UK political parties now accept that the Lords is in need of reform, and committed to bringing about change in their 2010 manifestos (distinguishing this issue markedly, for example, from the also failed attempts to reform the voting system for elections to the House of Commons).  Further, the possibility of Lords reform being re-employed as a bargaining chip between potential coalition partners cannot be discounted.  This is especially the case in an era when a pluralist approach to politics, filtered through a first-past-the-post voting system designed to cater for two parties, leaves the prospect of future hung parliaments more rather than less likely.

Yet even if a need for reform of some kind is accepted in principle, have politicians, academics and other interested parties reached the point of fatigue with respect to the detail of reform of the House of Lords?  The volume of material produced might suggest not, yet as the failed proposals, committee reports, and academic commentaries mount up, it becomes ever more difficult to see how progress which is satisfactory to a large enough contingent can be achieved.  Appeals to international experience cannot in and of themselves offer a clear way forward, due to the diversity evident when the composition and powers of elected second chambers around the world are compared.  How might we move, then, from the wealth of solutions that we presently have, to decide definitively how to put the upper house in order?

One way in which this objective might be achieved is to focus on the methodology of constitutional reform, rather than the substance of the reform itself.  In circumstances of disagreement about the desirability of competing visions of a reconfigured House of Lords, the major political parties could together commit to resolve this disagreement by democratic means.  The Joint Committee on the Draft Bill proposed that a shift to an elected House of Lords was of such constitutional significance as to require that a referendum be held to approve the change.  Yet the three main political parties could go further, and commit to convene a citizens’ assembly after the next general election to settle the issue of Lords reform decisively.

Citizens’ assemblies have been used in a number of countries in recent years to assess options for specific constitutional reforms, and make recommendations which can then be put to the general public for further consideration, and potentially, approval at a referendum.  Citizens’ assemblies were established in Canada to consider electoral reform at a provincial level, in British Columbia in 2004 and Ontario in 2006, with referendums subsequently held (two in the case of British Columbia) giving the electorate the opportunity to accept or reject the assemblies’ proposals.  The Canadian assemblies were comprised of citizens selected at random from the electoral register, with adequate representation of geographical regions, men and women, and aboriginal people ensured.  Further, at a national level, a Civic Forum on electoral reform was convened in the Netherlands in 2006, which was also composed of randomly selected citizens.  This Civic Forum was, however, tasked with making recommendations to the Dutch government, rather than directly to the people via a referendum, in contrast with the two Canadian assemblies (on these citizens’ assemblies generally see G. Smith, Democratic Innovations: Designing Institutions for Citizen Participation (CUP: 2009), Ch 3).

Similar methodology is also imminently to be used in Ireland, where a constitutional convention, with two-thirds of the members to be citizens selected at random, is to be established to consider a number of specific constitutional issues (including the reduction of the Presidential term of office to five years, reducing the voting age to 17, and reviewing the Dáil electoral system) and report to the Houses of the Oireachtas.  Interestingly, for present purposes, the convention will not consider reform of the Irish Seanad, with a referendum on abolition of the upper house instead to be held in the latter half of 2013.

Finally, and most boldly, in Iceland citizens were chosen to form a Constitutional Council to draft a new revised constitution for the state in the aftermath of the 2008 financial crisis.  Following a larger National Assembly held in 2010, which involved a significant number of randomly selected citizens reflecting on the core values underpinning the Icelandic constitutional settlement, a smaller group of 25 citizens were tasked with producing a new constitution, relying extensively on the internet to canvass the views of members of the wider public.  These citizens were selected originally via an election to a Constitutional Assembly, distinguishing this example from those considered above, but this was subsequently invalidated by the Icelandic Supreme Court on technical grounds, leading to the formal appointment by the government of the same ‘elected’ individuals to a Constitutional Council (on the process of reform in Iceland generally see T. Gylfason, ‘From Collapse to Constitution: The Case of Iceland’ CESIFO Working Paper No. 3770, June 2012, at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2034241).  Having been considered by Althingi, the Icelandic Parliament, six questions relating to the draft constitution will now be put to a referendum of the people of Iceland in a matter of days, on 20th October 2012.

This necessarily brief sketch is intended simply to demonstrate that citizens’ assemblies (whether comprising of members selected at random or by election) can be, and increasingly have been, employed to consider both specific and general constitutional conundrums.  Such assemblies can be tasked with assessing a variety of alternative solutions, drawing on appropriate expert support and the views of the general public, and ultimately making recommendations for evaluation and approval in the polity at large.  The virtues of such citizen-led deliberation are that it enables a broader range of perspectives to be considered in a public space designed for informed reflection, while enhancing the authority and legitimacy of the proposals developed, which are untainted by any general disillusionment with professional politicians.  As such, and perhaps crucially in relation to the problem of the House of Lords, a citizens’ assembly could be used to bypass deadlock or intransigence among political elites, and provide fresh impetus for constitutional reform.

Of course, the utility of citizens’ assemblies should not at this stage be overstated; they are not necessarily a panacea for all constitutional ills, and while such mechanisms have obvious classical democratic origins, are only gradually re-emerging as a tool which can be used for the implementation of contemporary constitutional reform.  Further, the use of a citizens’ assembly to develop proposals for reform does not guarantee that successful reform will actually be the result, as the Canadian examples clearly demonstrate.  In light of this, the result of the imminent Icelandic referendum will be of great interest to those who find the idea of citizens’ assemblies attractive in principle.

Nonetheless, in relation to Lords reform in the UK, a citizens’ assembly could potentially offer a very useful democratic solution to a problem politicians have been unable to resolve, as well as a normatively appealing way of increasing popular engagement with constitutional issues in its own right.  And if the key objection to the continued existence of the House of Lords is its undemocratic nature, it would be apt for the future of the upper chamber to be settled by a group of UK citizens, potentially subject to the approval of the entire electorate at a referendum.  The time seems right for the UK to experiment with such an approach to constitutional change, and convene a citizens’ assembly to try to solve the problem of Lords reform once and for all.

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

Suggested citation: M. Gordon, ‘Time for a Citizens’ Assembly on Lords Reform?’   UK Const. L. Blog (17th October 2012) (available at http://ukconstitutionallaw.org)

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Hayley J. Hooper: Keep Calm and Carry On?

ON SEPTEMBER 18, 2012 the Upper Tribunal allowed an appeal, reversing decisions of the Information Commissioner relating to the release of “advocacy correspondence” between Prince Charles in his capacity as Heir to the Throne, and seven government departments. The information was originally requested by Guardian journalist Rob Evans and related to a time period between 2004 and 2005. In a piece written by Evans on October 12, 2012 in the Guardian it was reported that the “advocacy correspondence” where Prince Charles allegedly argued for changes in government policy in line with his personal viewpoint had become known as the “black spider memos” in reference to the Prince’s style of handwriting. The information requests have occupied the tribunals’ service for close to four years.

The decision in Evans v Information Commissioner [2012] UKUT 313 (AAC) is something of a novelty in several respects. First, this is likely to be one of the last decisions of its kind because as of January 19, 2011 communications between public authorities and the Heir to the Throne are now the subject of an absolute exemption under the Freedom of Information Act 2000 due to an amendment made by the Constitutional Reform and Governance Act 2010. Secondly, the decision of the Upper Tribunal created the unusual situation whereby a judicial body had to adjudicate on the scope of several constitutional conventions as they related to the Heir to the Throne.  Thirdly, it presents an opportunity to begin debating the proper conception of the public interest in knowing information about the activities of the Heir to the Throne in relation to his preparation for Kingship, and his role in public life generally.

This decision is not to be confused with other the recent FOI decision concerning Prince Charles in his capacity as head of the Duchy of Cornwall. On August 21, 2012 The Information Commissioner decided that information relating to Prince Charles’ legislative veto in relation to the Duchy of Cornwall was not exempt from disclosure under section 42(1) of the Freedom of Information Act 2000, which relates to “legal professional privilege”.

In view of this, this blog post has several aims. I begin by explaining the use of freedom of information law in the context of the case. In the next section I discuss the constitutional position of the Prince of Wales as the Heir to the Throne. Thereafter, I will consider the Upper Tribunal’s discussion of the scope of the relevant constitutional conventions. Finally, I will scrutinise the different consideration given to the concept of the “public interest” by the Upper Tribunal and Parliament in the 2010 Act.

 Exemptions under the Freedom of Information Act 2000

There are two types of exemption from the general right of access to information held by public authorities in the Freedom of Information Act 2000. The first is the “absolute exemption” which prevents to the disclosure of the information under any circumstances. Absolute exemptions historically included communications with the Sovereign, and since January 19, 2011 such an absolute exemption has also applied communications with the Heir to the Throne by virtue of section 37(1). The second type of exemption is a “qualified exemption”. Such an exemption refers to information ordinarily immune from disclosure unless it can be overridden by a public interest test. The public interest test in section 2(1)(b) places a duty on a public authority to decide whether “in all the circumstances of the case, the public interest in maintaining the exclusion of the duty to confirm or deny outweighs the public interest in disclosing whether the public authority holds the information”. Exemptions of this type apply for example to information relating to law enforcement (section 31), legal professional privilege (section 42), prejudice to the effective conduct of public affairs (section 36), environmental information (section 39), and commercial interests (section 43).

The relevant contested provisions before the Upper Tribunal in the Freedom of Information Act 2000 were section 37 and section 40, and section 41. Prior to being amended by the 2010 Act, section 37 imposed an absolute exemption from disclosure upon communications with the Sovereign entitled “Communications with Her Majesty, etc. and honours”. The 2010 Act extended this protection to similar communications with the Heir to the Throne. Section 40 is also an absolute exemption relating to personal information as defined by the Data Protection Act 1998. Section 41 also exempts absolutely information provided in confidence.   In respect of the Environmental Information Regulations 2004, the Department for the Environment, Food, and Rural Affairs DEFRA relied upon Regulation 12(5)(f) and Regulation 13 which related to  the interests of the person supplying the information and personal data, respectively. The Upper Tribunal did not decided whether Prince Charles’ communications amounted to personal data, and concluded that the environmental regulations contained a presumption in favour of disclosure that the Tribunal found no reason to depart from.

 The Constitutional Position of the Prince of Wales as Heir to the Throne

It should be noted that none of the parties to the litigation contended that Prince Charles’ activities of “advocacy” to government ministers was at any time or would be unconstitutional. The tribunal decided that there was no established constitutional position for the Heir to the Throne. However, it was noted by Counsel for Mr Evans that Prince Charles’s self-perceived role has been described on his behalf as representational, “drawing attention to issues on behalf of us all” and “representing views in danger of not being heard”. For an account of the Prince of Wales’ activities vis-à-vis his role as Heir to the Throne, the Tribunal drew heavily upon a 1995 article in Public Law by the expert witness for the seven government departments, Rodney Brazier, entitled “The Constitutional Position of the Prince of Wales”. In the 1995 article, Brazier pointed to several features of the Prince of Wales’ activity which were, in his view, “novel” or “surprising”. These included the fact that Prince Charles had arrogated for himself the right to communicate directly with Ministers on affairs of government. Also, Professor Brazier’s 1995 piece pointed out that the Prince was insisting upon enjoying the same rights as the incumbent Monarch in respect of the “tripartite convention”.

 Relevant Constitutional Conventions

Writing in 1984, Marshall wrote that the “major purpose of the domestic conventions is to give effect to the principles of governmental accountability that constitute the structure of responsible government.” All parties to the action agreed that there were three conventions which the case engaged. Both sides agreed upon Sir Ivor Jennings’ tripartite test for the existence of a constitutional convention. In The Law and the Constitution (5th ed., 1959) Jennings suggested that a constitutional convention exists if (i) there are precedents underpinning it, (ii) the parties to the relevant practice consider themselves to be bound by it, and (iii) there is a reason for the existence of the convention. Three constitutional conventions were deemed relevant to the dispute. These were the “Cardinal Convention”, which mandates that the Monarch acts on the advice of Ministers. The second was the “Tripartite Convention” which Bagehot famously described  in The English Constitution as being the Sovereign’s right to “…be consulted, the right to encourage, [and] the right to warn”. However, neither side advanced the proposition that either of these conventions applied to Prince Charles at the stage in question – when he was neither King nor Regent.

The tribunal remarked that the third convention, “the education convention”, had been regarded until now “as little more than a footnote.” This convention stated that the Heir to the Throne is entitled to be educated in the business of government. The seven government departments representing Prince Charles’ interests also argued that the scope of the education convention covered “advocacy correspondence” and required absolute confidentiality to ensure its proper operation. The Upper Tribunal ruled that the confidentiality of the education convention did not extend to advocacy correspondence. In so ruling, the Tribunal also rejected the seven departments’ contention that the advocacy correspondence merited additional protection over and above “routine” confidential correspondence because it fell within the scope of a constitutional convention.

Argument about the education convention revolved around the “admittedly new contention” advanced by the seven departments “that the education convention has been extended so that it covers all correspondence between government and the heir to the throne.” The Upper Tribunal rejected this contention, stating that “in the public examples that we have seen, the plain facts are that what Prince Charles is doing is not prompted by a desire to become more familiar with the business of government, and simply is not addressing what his role would be as king.” The conclusion of the Tribunal was that inclusion of “advocacy correspondence” within the education convention would involve “a massive extension” of that convention for which no good reason had been advanced. Moreover, the disclosure of advocacy communication would be a general benefit to the operation of the education convention because “[it] will focus the minds of the parties on the important principle that the education convention does not give constitutional status to advocacy communications.” So, because the “advocacy correspondence” fell outside of the scope of the education convention, the interest in maintaining confidentiality under that convention was not engaged.

 Differing approaches to the Public Interest of The Upper Tribunal and Parliament

The Upper Tribunal was rightly conscious of the politically charged subject matter of the case, noting in its introductory remarks that:

 “[some] will be horrified at any suggestion that correspondence between government and the heir to the throne should be published. They fear, among other things, that disclosure would damage our constitutional structures. Others may welcome such disclosure, fearing among other things that without it there will be no real ability to understand the role played by Prince Charles in government decision-making.”

 Therefore, it was common ground that the legal questions in the case revolved around one issue – the issue of disclosure – and whether or not any breach of confidence or privacy that disclosure involved would be in the public interest. The Tribunal, I think quite properly, made clear that it was not seeking “to weigh the benefits of a constitutional monarchy over those of a republic.” In this respect it successfully approached the issue in their intended manner – “dispassionately”.

The Tribunal is also to be commended for its extensive treatment of the question of public interest, which ran to twenty-one pages and covered eight separate aspects. Reference was also made to the Nolan Principles on Public Life for the purposes of general guidance. The aspects of the public interest identified were: (1) the promotion of good governance, (2) Royalty, government, and constitutional debate, (3) understanding Prince Charles’ influence, (4) the education convention and preparation for Kingship, (5) the public perception of Prince Charles, (6) chilling effects on frankness in communication between Prince Charles and Ministers, (7) maintaining confidences and preserving privacy, (8) and finally an attempt was made to take a general perspective on the overall balance. The Tribunal concluded that all eight aspects contained facets which, on balance, pointed towards disclosure in the public interest.

In the course of its evaluation of the public interest in maintaining confidences the Tribunal noted that there was a strong interest in maintaining confidentiality, following the test laid down in Prince of Wales v Associated Newspapers [2006] EWCA Civ 1776, but in view of their detailed consideration of the seven factors, that the “inherent weighty public interest in the maintenance of confidences” cited by the Information Commissioner was vital, it was outweighed by the public interest in disclosure. In respect of the overall balance the Tribunal made clear that it was not persuaded that correspondence between ministers and Prince Charles warranted “greater protection from disclosure than would be afforded to correspondence with others who have dealings with government in a context where those others are seeking to advance the work of charities or to promote views.”

Whilst the Upper Tribunal should be commended for its diligent evaluation of the public interest in respect of the areas it covered, the outgoing New Labour government, supported by Parliament were of the view that the public should simply “Keep Calm and Carry On”. Jack Straw, the Minister sponsoring the Bill during a Commons debate on March 2, 2010, claimed that there was a “lacunae” in the original Freedom of Information Act and that:

“We are blessed in this country by a constitutional monarchy of the highest standards. Whatever turmoil there might have been in our body politic, above it all, and held in continuing high respect, is the position of the sovereign… it is of great importance that we protect the political impartiality of the monarchy, the sovereign’s right and duty to counsel, to encourage and to warn the Government and the right of the heir to the throne to be instructed on the business of government in preparation for the time when they assume the monarchy.”

The former Government Minister’s position reminds the reader of Bagehot’s description of the “dignified” portion of the constitution. Bagehot, writing in the Victorian-era, opined:

“The use of the Queen, in a dignified capacity, is incalculable. [The] best reason why Monarchy is a strong government is, that it is an intelligible government. The mass of mankind understand it, and they hardly anywhere in the world understand any other.”

During the same debate Tony Wright MP (Lab) expressed the opinion that: “The question is whether such communications-after all, the amendment that we are being asked to consider is, in a sense, the Prince Charles amendment…”, and furthermore that government should have to make the case for “giving away a public interest test virtually in perpetuity”. Wright developed his case with reference to the example of homeopathic medicine:

“Let us consider homeopathy, which most sensible people think is not entirely supported by evidence. Suppose that Prince Charles, the heir to the throne, were to weigh in to the debate, giving heavy support to the idea that resources should be devoted to homeopathy. If a Government then decided to start allocating resources to homeopathy, people would be entitled to know that that act of lobbying had been extremely successful. We would want to know about it if it had come from any other source.”

However, since January 2011 Parliament has enacted a legal prohibition upon access to such information, and the only explicit justification offered by the sponsoring Minister was that this was the original intention of the Freedom of Information legislation, and protection of the Heir to the Throne had simply been overlooked by the draftsman. Despite this, there are many hypothetical examples above and beyond support for alternative medicine that would legitimately give rise to a public interest in disclosure. The overall conclusion of the Upper Tribunal is instructive:

“The media interest in Prince Charles’s interaction with ministers is substantial. It seems to us that this is not a factor which in itself necessarily favours disclosure. What is relevant is that there is a real debate, generating widespread public interest, on a matter which goes to the heart of our constitution. Sensationalism merely for the sake of it will not generally be in the public interest.”

The Tribunal noted that the 2010 Act represented “a change in legislative policy”. Such a change in policy is something parliament is constitutionally absolutely entitled to carry out. However, it is regrettable that such a fundamental change occurred in the course of a Bill which contained a laundry list of constitutional amendments, resulting in only a fleeting consideration of its potentially wide-ranging impact upon the operation of government. Bagehot’s seminal work first appeared in 1867. It now seems decidedly at odds with our information society that parliament should expect the people to remain ignorant of the persons and factors which might influence government policy.

Hayley J. Hooper is Lecturer in Law at Trinity College, Oxford.

Suggested citation: H. J. Hooper, ‘Keep Calm and Carry On?’   UK Const. L. Blog (16th October 2012) (available at http://ukconstitutionallaw.org)

Editor’s note: this post was revised on 25th October 2012.

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Event: invitation to the 2012 ‘Public Law’ lecture, Thursday 6 December 2012 at 6.30 pm

Professor Neil Walker on Our Constitutional Unsettlement

6.30pm, Thursday 6 December 2012

Arts Two Building,  Queen Mary, University of London,  Mile End Road, London E1 4NS

Please book online here. This is a CPD accredited event. This event will be followed by a drinks reception to which all attendees are invited. #QMpubliclaw

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News: Scottish Referendum Question Appears to be Resolved.

The debate over the legality of a Scottish referendum appears to be over.  The media are reporting that the Scottish and Westminster governments are on the verge of agreement, using a section 30 order to mandate the Scottish Parliament’s referendum legislation.  The Scottish Parliament will get to set the question, the timing, and be able to determine whether 16 and 17 year olds get to vote.  The Westminster government, in its turn, has ensured that there will be a single question on the ballot paper – no devo-max or devo-plus.  Each side avoided a long and costly battle through the courts, which will please the taxpayer and disappoint lawyers.

 The conclusion of the question over the legality of the referendum does not end the constitutional questions surrounding the vote.  Whether the vote is won or lost, further constitutional issues will be raised by the decision.  If Scotland votes for independence, a complicated and, probably, protracted process of negotiation will be required between Scotland and the remainder of the UK.  It would be helpful if the parameters of this process – both the way it would be undertaken and the issues that it would have to resolve – were canvassed before the vote.  Scotland would also need to produce its own constitution prior to formal independence.   Again, the process by which this new constitution would be created merits reflection.  If, on the other hand, Scotland votes against independence, there would need to be some constraint over the frequency of such referendums in the future.  It would be profoundly destabilising for the Union if independence referendums were held every couple of years.  Once more, there would be an advantage to clarifying this issue before the vote is held.

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Mark Elliott and Christopher Forsyth: A right to administrative justice?

In its second consultation paper, the Commission on a Bill of Rights asks whether a UK bill of rights should contain a right to administrative justice. This is a question that should be approached with considerable caution. It is not self-evident that inclusion of administrative justice in a bill of rights would protect administrative justice more fully or more securely than the law does at present. After all, it can confidently be said that the legal systems of the UK already recognise a right to administrative justice. The right is a strong one, in that it is embedded deep within the common law constitution and reflects a wide range of principles of good administration that condition the relationship between the individual and the state. Against this background, it is necessary to ask what, if anything, a textual right to administrative justice would add. The risk, we will argue, is that it may well add needless layers of complexity and uncertainty while making little by way of a positive contribution. Indeed, it might hamper the development of the law by the judiciary.

The scope of a right to administrative justice: lessons from South Africa

We begin with a comparative glance at the right to administrative justice protected by the South African Constitution 1996. This illustrates some of the difficulties that can readily arise. Given the very poor record the South African courts during the apartheid years in subjecting to law the executive’s exercise of its far reaching administrative powers, it was inevitable that when the moment for constitutional reform came there was a strong political will to subject the executive to the rule of law. What eventually emerged in the final constitution was section 33 which provides that “Everyone has the right to administrative action that is lawful, reasonable and procedurally fair” and that “Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons”.

It is plain that the concept “administrative action” plays a crucial part in determining whether section 33 is engaged or not.  If the action in question is not “administrative” the protections of section 33 do not apply. The interpretation of the phrase “administrative action” in section 33 is assisted by the Promotion of Administrative Justice Act, 3 of 2000 (PAJA). This was enacted to give effect to the section 33 right, and contains a long and complicated definition of “administrative action”. The result of these provisions has been that the concept of “administrative action” has moved to the centre stage in South African administrative law. As Professor Cora Hoexter, a leading expert on South African administrative law, remarks: “the concept of administrative action [has become] the focus of administrative law jurisprudence to an extent that had not been anticipated. What had previously been a non-issue in our administrative law became its most noticeable feature. The threshold administrative action enquiry soon took up far more space in the law reports than any other issue.”

What this means is that the energies of counsel and judges were diverted into the rather formalistic question of whether a particular action constituted “administrative action”, and away from the far more important question of what fairness required in the circumstances.  The law in South Africa has become more complicated and uncertain; it is not clear that the constitutionalisation of the right to administrative justice has improved matters. Some of the difficulties in South Africa derive from deficiencies in the drafting of the PAJA, but clearly the issue is one of principle.  A line needs to be drawn between those exercises of power which do engage the right to administrative justice and those exercises of power that do not. Inevitably disputes will arise around that boundary line. And that creates the danger that the precise course of the boundary line rather than the substantive issues of justice and fairness will come to dominate the law.

Of course one answer to this difficulty would be to make the boundary line clear. Article 41 of the EU Charter of Fundamental Rights, for instance, provides for a right to good administration but only in relation to matters dealt with by “the institutions, bodies, offices and agencies of the Union”. The “institutions, bodies, offices and agencies of the Union” is a relatively clear and well defined concept. But there is no similar clear boundary to the reach of public power in the UK; that boundary is notoriously ill defined and has often caused difficulty. When public bodies exercise private powers and private bodies exercise public powers, where does “administrative action” start or finish? The well known difficulty in determining whether a particular body is a “core” public authority, a “hybrid” public authority or not a public authority at all in terms of section 6 of the Human Rights Act 1998 is simply an example of this uncertainty, yet is has a vital effect on the reach of the HRA. The bottom line is that the boundary between public and private power is not easy to draw in the UK context – and as the experience with section 6 of the HRA shows, locating that boundary is a task that is not necessarily aided by the existence of a statutory text.

Symbolism, status, clarity

But if these difficulties of reach were overcome, might the inclusion of a right to administrative justice add clarity to the law within the boundary? This depends in part upon the form of any bill of rights. If the bill of rights were drafted in the loose and lofty language generally characteristic of such texts, it would be unlikely to add anything meaningful to, or clarify, the existing jurisprudence.  But even a more detailed text might achieve little in this regard, given that so many of the principles of good administration are highly sensitive to the statutory and factual context of individual sets of circumstances. A further point to bear in mind is that an attempt to codify the principles of good administration in a reasonable amount of detail might risk inhibiting the development of an area of law that owes so much to the creativity of the judiciary.

What purpose, then, might be served by the inclusion of a right to administrative justice in a bill of rights? A right to administrative justice, or to good administration, in a bill of rights might be of symbolic significance. For example, it might be considered to be evidence of the seriousness with which the right is taken. Indeed, if a bill of rights were to be adopted, the omission of a right to good administration might (rightly or wrongly) be perceived as indicating its relative lack of importance. But the extent of any such advantage – or, perhaps more accurately – avoidance of disadvantage would need to be weighed carefully against the potential complications identified above.

Allied with, but distinct from, the point about symbolism is the matter of the status of any right to administrative justice. It may be thought that the inclusion of such a right in a bill of rights would result in its enjoying an enhanced status. On this view, inclusion would not merely signify, in symbolic terms, the importance attached to the right: it would also ascribe to it, in some concrete way, a status exceeding that which it presently possesses. However, whether this would be the case turns upon two main factors.

The first concerns a presently unknown matter: viz the constitutional status that a bill of rights would itself have. At present, it is entirely unclear what status any bill of rights would have – and how and to what extent such a statutory text would protect the rights contained in it. Would rights be protected interpretatively, as is the case at present in relation both to Convention rights (under the HRA) and common law constitutional rights? Or would a bill of rights somehow confer a higher level of protection – and, if so, what form would that take? The uncertainty that exists in relation to this matter can be regarded as a significant flaw in the process undertaken by the Commission. Asking whether a given right – be it a right to administrative justice or some other right – should be included in a bill of rights and, if so, what the content of that right should be is somewhat meaningless unless there is already some sense, in the first place, of what inclusion would mean in practice.

The second factor concerns the present status of the “right” to good administration. The effect of enshrining such a right in a bill of rights necessarily turns not only upon the mode and strength of protection provided for by the statutory text, but also upon the existing status of the right. Subject to the point made in the following paragraph, it is only by comparing these two statuses that an assessment can be made of the likely effect of including the right in a bill of rights. In fact, the right to administrative justice, as it currently exists, has an unusually — perhaps unique — constitutional status. At the very least, it can be said – on the strength of cases such as Anisminic Ltd v Foreign Compensation Commission– that it does not yield in the absence of crystal clear contrary provision in primary legislation. And it is questionable – as, for instance, certain dicta in R (Jackson) v Attorney-General indicate – whether it yields even in those circumstances. On this view, inclusion in a bill of rights may not enhance — and might, subject to a point made in the following paragraph, conceivably diminish — the status of right.

A final point should be noted. It concerns the relationship between any bill of rights and common law constitutional rights – another area of uncertainty that contributes to the vacuum within which the consultation process has taken place. Politicians who advocate repeal of the Human Rights Act – whether or not coupled with the enactment of a (weaker) bill of rights – implicitly assume that getting rid of the HRA would, at a stroke, surgically remove the Convention rights from domestic law. But this misconceives the parallels – and somewhat osmotic relationship – between HRA/Convention rights on the one hand and common law rights on the other. Just as the HRA has not – and, one view at least, could not – revoke common law rights, so it is unlikely that such rights would – or, arguably, could – be disturbed by a bill of rights. This point is of significance for two reasons. It adds weight to the argument about complexity, in that any textual right to administrative justice would not be exhaustive; existing grounds of review (in their current and potentially future, evolved forms) would remain available. At the same time, the likely relationship between existing rights and a bill of rights means that including within the latter a right to administrative justice may well leave intact the existing constitutional security of judicial review, given that any statutory right would sit alongside, and would not eclipse, the courts’ existing powers.

Where, then, does this leave us? A blandly expressed right to good administration in a bill of rights would be unlikely to do much damage, and its omission from a catalogue of rights might create a misleading impression as to its fundamental importance. But any attempt to lay down the principles of good administration in detail, or to define with precision the reach of the right, might well add needless layers of complexity and uncertainty while making little by way of a positive contribution.

Mark Elliott is Reader in Public Law at the University of Cambridge. Christopher Forsyth is Professor of Public Law and Private International Law at the University of Cambridge. This post is an expanded version of the relevant part of the Cambridge Centre for Public Law’s response to the most recent consultation paper issued by the Commission on a Bill of Rights.

Suggested citation: M. Elliott and C. Forsyth, ‘A Right to Administrative Justice?’   UK Const. L. Blog (10th October 2012) (available at http://ukconstitutionallaw.org

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Helen Fenwick: What’s Wrong with s.2 of the Human Rights Act?

It’s rare for a section of an Act of Parliament to arouse as much ire as s2 does, or for it to be asked to play such divergent roles by various commentators.  S2 HRA provides that a court or tribunal ‘determining a question that has arisen in connection with a Convention right must take into account’ any relevant Strasbourg jurisprudence. So at face value the intention was that the judges could not ignore it, but did not need to follow it.  Further, the term ‘relevant’ implies that if there is no relevant jurisprudence, the court should determine the question re the right by other means.

But as is of course well known, the obligation to take the jurisprudence into account was rapidly transformed by the judiciary into an obligation akin to being bound by it if it was clear and constant, although as the President of the Supreme Court has said (in his oral submission to the JCHR, HC 873-ii, 15 November 2011, Answer to Question 64), that might have occurred in any event; if the words “take account of” had not been included the jurisprudence might have been given greater weight (Answer to Question 64). Some of the significant decisions will be mentioned, to indicate the stance being taken to s2. Lord Slynn in R (Alconbury)(at [26])found thatcourts should follow any clear and constant jurisprudence of the European Court of Human Rights (at [26]). In R (on the application of Ullah) v Special Adjudicator, in the context of s2, Lord Bingham followed that finding, on the basis that: “While [Strasbourg]…case law is not strictly binding, it has been held that courts should, in the absence of some special circumstances, follow any clear and constant jurisprudence of the Strasbourg court (at [20]; his Lordship relied on the above para in Alconbury). In Manchester City Council v Pinnocka nine member panel of the UK Supreme Court unanimously accepted that the Strasbourg case law in question was ‘now… unambiguous and consistent’ and that it was therefore right for English law to follow it (see also Ambrose v Harris). In B and another v Secretary of State for Justice ([2012] 1 W.L.R. 2043, para 60) the principle that settled jurisprudence should be followed was reaffirmed, although Parliament’s intention that the legislation should be ECHR-compatible was also viewed as important

The Court in R (on the application of Quila) v SSHD, declined to follow the elderly Strasbourg case of Abdulaziz v UK, but on the basis that there was no ‘clear and consistent jurisprudence’ to follow (per Lord Wilson [43]). On the other hand, in R v Horncastle, in the context of Article 6, the Supreme Court considered that departure even from clear jurisprudence was exceptionally acceptable under s2 HRA, as s2 originally intended (see also R v Spear [2003] 1 AC 734). The Supreme Court decided that the European Court’s decision (Al-Khawaja) insufficiently appreciated or accommodated particular aspects of the domestic process, and determined that in those rare circumstances it could decline to follow the decision, as it did. The domestic provisions in question, the Court found, struck the right balance between the imperative that a trial must be fair and the interests of victims in particular and society in general; the Strasbourg test did not strike the right balance since it gave a higher value to Article 6 standards than those provisions did, and therefore was not applied. The UK at the time of Horncastle was appealing the Strasbourg decision in question to the Grand Chamber, and the result in the Grand Chamber (Al-Khawaja and Tahery v UK 15.12.11 (Applications nos. 26766/05 and 22228/06)) later largely vindicated the Supreme Court’s stance, an interesting instance of dialogue between the two in action.

Where there is no clear jurisprudence to follow or the Court has relegated, or is likely to relegate, a matter to the state’s margin of appreciation, the majority in the Supreme Court recently decided in Ambrose v Harristhatin such circumstances the intention behind s2 was not that the domestic court should outpace Strasbourg. Lord Hope, giving the leading judgment, said, “Lord Bingham’s point, (from Brown v Stott 2001 SC (PC) 43, 59 and from Ullah [2004] UKHL 26, [2004] 2 AC 323, para 20) with which I respectfully agree, was that Parliament never intended to give the courts of this country the power to give a more generous scope to those rights than that which was to be found in the jurisprudence of the Strasbourg court. To do so would have the effect of changing them from Convention rights, based on the treaty obligation, into free-standing rights of the court’s own creation” (at [19]).

The roles s2 is expected to play

So what’s the problem with the interpretation that has been imposed on s2 and what should it be doing? Various divergent opinions have been offered in 2011 and 2012 from politicians and judges. According to Dominic Grieve (European Convention on Human Rights – current challenges 24.10.11, at Lincoln’s Inn, London) it’s in effect a rogue section; it’s out of control, a section gone mad. It needs to be drastically reined in, not just returned to its original conception since it has gone far too far in allowing Strasbourg decisions to re-shape domestic law. But among supporters of the HRA, there is a polarisation of opinion, between those who want the section to be used as it was originally intended – the “take into account only” group and in the opposing camp the “mirror principle” group. The mirror metaphor is often used to indicate that s2 requires the domestic courts to ‘mirror’ Strasbourg’s approach – to adopt the approach Strasbourg has adopted and to hold back if it has not spoken on an issue, since its approach cannot be mirrored.

But this question and the terms used require further elaboration. This blog will identify 3 models. Adhering to the first (‘anti-mirror principle’) model are HRA-supporters who want the judges to depart from Strasbourg where there are good reasons to do so, such as that basis of the domestic law in question (such as balancing the rights of suspects and of victims) have not been fully appreciated by Strasbourg. Obviously the position is not that the Strasbourg jurisprudence, if relevant, potentially dispositive, clear, consistent, should just be ignored; it must be taken into account, but clearly that suggests that it need not be followed. Those in this camp also want the domestic judges, since under this model they are not anchored to Strasbourg, to ‘outpace’ its jurisprudence – which tends to mean according an extended ambit to a Convention right even where Strasbourg has not yet spoken, or not spoken clearly as to such extension. Members of that camp include the original architect of the HRA, Lord Irvine as he indicated in a recent lecture (“A British Interpretation of Convention Rights” [2012] P.L. April 237) Lord Hoffman, and most academics writing on the subject (see for example Francesca Klug and Helen Wildbore).

Adhering to the second (‘partial or semi-mirror principle’) model are those who consider that the domestic courts’ judgments should sometimes outpace Strasbourg, but if Strasbourg has spoken, they should normally follow suit; departure should be entirely exceptional. Baroness Hale, speaking extra-judicially, appears to place herself in that camp (an address, ‘Argentoratum Locutum: Is Strasbourg or the Supreme Court Supreme?’ delivered on 1.12.11 as the Human Rights Law Centre Annual Lecture 2011, University of Nottingham), and her judgment in Re G (below) in particular adopts that stance. At the risk of a gross over-simplification it is suggested that most academics and some judges, but mainly – not always – speaking extra-judicially, are in the first or second camps. For example, Lord Kerr in the recent Ambrose judgment adopted the second position.

Supporters of the third (‘full mirror principle’) model consider that the domestic courts’ judgments should not outpace Strasbourg and should mirror those where Strasbourg has spoken, with exceptional departure. The third camp appears to include the President of the Supreme Court (Answer to Question 67) and most of the senior judges, according to their judgments (in particular the well-known comment of Lord Rodger in AF(No3), ‘Strasbourg has spoken, the case is closed’) as indicated in the cases mentioned above. Sir Phillip Sales recently articulated this position extra-judicially. Some, such as Lord Hoffman in particular, have been at times very reluctant members of this camp, as he made clear in AF (no 3).

What are the merits of the three models? They will be considered in relation to the two key questions to which s2 gives rise, as follows.

Should the Supreme Court go beyond Strasbourg?

Members of the first camp would obviously say yes. So would members of the second – when there is no clear and constant jurisprudence to follow. Both camps on this point find that the judges need not be curtailed by the particular point Strasbourg has reached, or by the operation of the margin of appreciation doctrine, in striking out on their own in a determination to create expansive interpretations of Convention rights (see eg Masterman), and in the process creating a more exciting, creative and imaginative domestic human rights’ jurisprudence.

At first glance it might appear that such creativity is in practice only likely to arise in the less politically difficult areas of human rights’ law. Where has it occurred post-HRA? Various examples come to mind. In the cases of Re G and of Campbell the House of Lords gave a more expansive interpretation to Article 8 than Strasbourg at the point in question had done. But Re G concerned the question whether an unmarried couple should be subjected to an absolute bar to adoption in favour of married couples (in the case in question the adoption of the mother’s own child as part of an unmarried couple). Campbell of course concerned the question whether Article 8 ECHR applied via s6 HRA to a private body which had invaded the privacy of Naomi Campbell. In Campbell the Lords, broadly speaking, answered yes, to the question posed, but domestic and Strasbourg case-law was nearly at the point of recognising that that should be the case, at the time, in any event. In Re G the House of Lords found unsurprisingly that Ireland was discriminating on grounds of marital status in relation to Art 8 – due to an absolute ban on adoption by unmarried couples – even though no Strasbourg decision had clearly established that marital status was a protected ground of discrimination under Art 14. That was relatively uncontroversial since Northern Ireland was clearly out of line with the rest of the UK. Neither decision was in a highly sensitive area of executive decision-making.

On the other hand, a decision in such an area, countering the argument that domestic judges are over-deferential in such areas, is R (Limbuela) v Secretary of State for the Home Department. The same can be said of EM (Lebanon) which has certainly attracted strong censure from Grieve, and its effects, according to the current Home Secretary, are to be reined in via legislation on family immigration. A and others also arguably falls into the category of judgments that have out-paced Strasbourg as regards the reasoning on the deogation, and of course it cannot be seen as a decision outside the politically difficult areas.

A member of the third camp might counter by relying on the various decisions in which Strasbourg has had to ‘correct’the House of Lords or Supreme Court, in furtherance of an argument that the judges should be anchored to Strasbourg via s2 because on the whole Strasbourg shows a greater determination to hold the executive to account.Gillan v UK departed from the interpretation of Article 8 adopted in R (on the application of Gillan) v Commissioner of Police for the Metropolis 2006 UKHL 122006 UKHL 122006 UKHL 12. A v UK upheld a higher due process standard than the previous House of Lords’ decision in Secretary of State for the Home Department v MB ([2008] AC 440) had done in relation to Article 6. A v UK was then absorbed directly into domestic law via ss2 and 3 HRA in AF No3 ([2009] UKHL 28). In R (S) v Chief Constable of the South Yorkshire Police and R (Marper) v Chief Constable of the South Yorkshire Police the claimants sought judicial review of the retention by the police of their fingerprints and DNA samples on the grounds inter alia that the practice was incompatible with article 8 of the European Convention on Human Rights. The majority of the House of Lords held that the retention did not constitute an interference with the claimants’ article 8 rights, but they unanimously held that any interference was justified under article 8(2). The ECtHR disagreed: S and Marper v United Kingdom. Similarly, the Strasbourg judgment in the Qatada case (Othman v UK (2012) 55 EHRR 1) departed from the House of Lords’ findings (in RB (Algeria) and OO (Jordan) v SSHD in which it was found that Qatada could be deported)as regards Article 6, taking a more expansive view of the Article 6 requirements.

But those decisions might support adherence to the second model – ie partial acceptance of the mirror principle as in AF, but don’t fully support its acceptance in a context where Strasbourg has not yet spoken. It should also be pointed out that reliance on the third model tends to preclude a dialogic stance – ie dialogue between the domestic courts and Parliament is stifled, and between the domestic courts and the Strasbourg Court. For example, Lord Neuberger said in Manchester City Council v Pinnock that following all Strasbourg decisions ‘would destroy the ability of the court to engage in the constructive dialogue with the European court which is of value to the development of Convention law’ ([2010] 3 WLR 1441 at [48]). Although judgments on this model contain some potential dialogic elements (see Ambrose v Harris [2011] 1 W.L.R. 2435; Lord Kerr’s dissenting judgment could potentially influence Strasbourg (see para 60). See also Sir Phillip Sales ‘Strasbourg jurisprudence and the Human Rights Act: a response to Lord Irvine’ P.L. 2012, Apr, 253 at 264), it is harder for any dialogue in any real sense to occur.

Should the Supreme Court follow clear and constant Strasbourg jurisprudence even where it disagrees with it?

The second and third camps would clearly say yes, with some exceptions, while reiterating that judges are not bound by Strasbourg. In other words, domestic judges should follow the mirror principle in trying to resolve the issues in a case before them in order to ‘Strasbourg-proof’ the case: if the applicant would probably win at Strasbourg they should win domestically. Baroness Hale has said on this: ‘it is more a question of respect for the balances recently struck by the legislature than a question of the extent of our powers. One reason for this is that an aggrieved complainant can always go to Strasbourg if she disagrees with our assessment, but the United Kingdom cannot’ (Human Rights Law Review (2012) 12 (1): 65-78 at 72). That would appear to avoid the institutional imbalance that might otherwise occur. But that argument does not take account of the fact that governments have methods open to them which victims do not, to seek to influence the interpretation and application of the ECHR, via the European institutions. For example, the UK’s Chairmanship of the Council of Europe allowed it at Brighton in 2012 to seek to increase the margin of appreciation member states enjoy.

Overall it does not appear that the senior judges espouse the mirror principle out of a conviction that the Strasbourg jurisprudence is of superior quality to their own. Sale argues that rule of law principles of certainty and predictability support the principle, which of course does not mean judges simply follow Strasbourg in all circumstances. But his position could be attacked on the basis that the Strasbourg jurisprudence is not always of high enough quality to satisfy such principles.

The idea that the interpretation of the ECHR should be uniform throughout the member states supports the stance of the second and third camps in answer to this question. But it does not support that of the third in relation to refusing to out-pace Strasbourg, since inevitably uniformity cannot be achieved at the point in question. Acceptance of the full or partial mirror principle might also appear to mean that Article 46 ECHR, binding states to accept Strasbourg decisions, is satisfied. But Art 46 is directed to states and does not necessarily mean that the judges have the responsibility for ensuring that Strasbourg rulings are implemented.

The first camp would obviously say no to the question posed. But clearly, that model must encompass acceptance that a ruling clearly or probably contrary to clear and constant Strasbourg jurisprudence might well lead to a successful application to Strasbourg, which would mean that the HRA had failed to achieve its aim of avoiding delay, leaving human rights’ breaches to subsist for significant periods. The eventual Strasbourg ruling could be reacted to by the executive; s10 HRA includes provision to do so.  In other words, a trialogue between the judges, Strasbourg and the executive could occur. But for, at best, a significant period of time that would be of little value to the applicant, and those in his or her position.

The first camp could however point to other disadvantages of the use of the mirror approach in relation to clear Strasbourg jurisprudence. It creates an idea of alien European human rights’ standards being imposed by a distant court on the UK, and allows the domestic judges to displace responsibility for challenging the government onto Strasbourg. Strasbourg is already in a difficult position, partly due to its immense case-load and back-log of cases, and so is vulnerable to attack and a certain amount of reining in.  The Conservative government had a go at such reining in, no doubt partly as a result of the A v UK and Qatada judgments, recently, at Brighton at the high level conference in 2012 on the future of the Court. The declaration that emerged, originally intended from the Conservative perspective to create enhanced subsidiarity, was not on the whole radical (although of course the devil will be in the details to be worked out).  But it is arguable that the Court has recently shown a tendency, perhaps in anticipation of what might occur at Brighton and what might occur in future, to seek to appease member states, and Britain in particular, by less confrontational judgments (eg HamzaBabar Ahmed and others v UK (App nos 2402/07, 11949/08, 36742/08, 66811/09 and 67354/09) and also recent refusal (25.9.12) of leave to appeal to the Grand Chamber).

Pragmatically, it could be argued that placing a stronger emphasis on the ability of domestic judges to depart from Strasbourg could be part of a project of saving the HRA. Or if that is viewed as over-stating the position – of maintaining the idea that the HRA was never intended to disturb Parliamentary sovereignty. It is fairly clear why it is the case that de-emphasising s2’s current ability to place curbs on Parliament’s decisions might to an extent neuter objections to the HRA. Those objections, mainly from Conservatives, largely rest on anger at its ability to facilitate European interference with Parliament’s decisions.

Emphasising the dialogic opportunities that exist – creating in Baroness Hale’s words  ‘an even more lively dialogue with Strasbourg in future’ (Human Rights Law Review (2012) 12 (1): 65-78 at 78) – could be viewed as part of that project or, more positively, of demonstrating that a new Bill of Rights is unnecessary.  It is reasonably clear that if instead the judges merely implement a Strasbourg judgment, as in the most obvious example – AF No3, such a dialogue is not promoted. As Lord Irvine said in his lecture: ‘A Court which subordinates itself to follow another’s rulings cannot enter into a dialogue with its superior in any meaningful sense’. Such subordination tends to mean that the domestic judges remain outside any process of development of a European jurisprudence to which they contribute a fresh voice.

Conclusions

Objections to departure from Strasbourg where it has spoken appear far less strong than objections to outpacing Strasbourg where it has not, or where its voice is unclear. So it is important to disentangle the two approaches – as under the second model. Clearly, one consequence if the judges were to move towards this position, and away from Ambrose, is that while HRA-sceptics favour a return to s2’s original conception in relation to instances in which Strasbourg has spoken, they are hardly likely to welcome furtherance of the other aim of the anti-mirror principle camp where it has not – to develop a vibrant domestic human rights’ jurisprudence. Such a development would probably only hasten the repeal of the HRA, if a Conservative government was elected in 2015.

The second camp might usefully consider what ‘out-pacing’ or ‘going beyond’ Strasbourg means, and whether that terminology is helpful. It is usually assumed that it means giving an expansive interpretation to a Convention right, where Strasbourg has not yet accepted that interpretation, as in Re G. But it might also mean adopting a ‘balancing’ approach that Strasbourg might not accept, as occurred in effect in A v UK as compared to MB. On the other hand, that approach may already be taking root at Strasbourg (Al-Khawaja and Tahery v UK Applications nos. 26766/05 and 22228/06) appears to indicate such a tendency, as does Austin v UKand the Hamza case – above). I have previously suggested on this blog that Strasbourg shows signs more recently of acquiescence in such an approach. That could be viewed as an appeasement approach, emerging in part via dialogue with the UK courts.

As a final thought – arguably, the words “take account of” in s2 should go – they create a fig-leaf for the judges to hide behind since they create an impression they don’t fulfil. If s2 was repealed, and nothing was said in the HRA about the stance that should be taken to the Strasbourg jurisprudence, it’s quite probable that the current interpretations of s2 would barely change: but its repeal would say to the Supreme Court – we want you to sort this out, in detail in a suitable case – to enumerate the types of situation in which departure from Strasbourg should occur. Alternatively, and a better solution in theory – Parliament could deal with this by amendment to s2 instead of ducking it as it did in the first place.

 Helen Fenwick is Professor of Law at The University of Durham.

 

Suggested citation: H. Fenwick, ‘What’s Wrong With S.2 of the Human Rights Act? ’   UK Const. L. Blog (9th October 2012) (available at http://ukconstitutionallaw.org

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