Monthly Archives: April 2013

Eoin Carolan: An oligarchy of the self-interested or enthusiastic?: Open Public Services in the Big Society

EoinOpen Public Services and the Big Society

The coalition government’s programme of public service reform continues apace. The coming into effect of parts of the Health and Social Care Act 2012 on April 1st was the latest in a series of changes to the structure and delivery of public services through measures like the Localism Act 2011 or the Free Schools programme. As the White Paper on Open Public Services indicates, these individual changes form part of a broader plan to fundamental re-model how Britain’s government operates. The White Paper is clear that this reform programme is wide-ranging and ambitious. What is less clear from government pronouncements, however, is whether or how it is intended to ensure the democratic legitimacy and character of the proposed reforms.

While the Big Society’s moment in the political sun seems to have passed, the open public services agenda has plainly been influenced by the ideas that coalesced under that electorally-ambiguous banner. Most closely associated with Philip Blond’s ‘Red Toryism’ (reviewed here), the ‘Big Society’ was also the subject of a detailed and thoughtful work by Jesse Norman MP (reviewed here).

Blond and Norman’s work shares a similar diagnosis of the source of (what they regard as) Britain’s current malaise, and of the most effective remedies for the nation’s social and political ills. They both identify the interrelated rise of individualism and of a centralised and interventionist state as the root causes of social decline. Both bemoan the atomising effects of a system in which the state has destroyed all alternative sources of civic power so that it operates alone and unchecked in propagating the prescriptions of a centralised elite. Both also see the solution in a number of interrelated measures: reducing the powers and size of the state; encouraging social and economic entrepreneurship; and devolving power and responsibility from central government to non-state entities such as charities or community organisations.

The White Paper on Open Public Services substantially mirrors this Big Society vision of a connected and pluri-polar society in which the state shares authority with other civic organisations. Big Society values permeate the text: the identification of a top-down and prescriptive central government as the cause of government dysfunction; a desire to remove the state’s monopolistic or privileged position; and a commitment to achieve this by decentralising and disaggregating power.

This is reflected in the five principles which the document identifies as fundamental to reform:

  • Wherever possible, we will increase choice.
  • Public services should be decentralised to the lowest appropriate level.
  • Public services should be open to a range of providers.
  • We will ensure fair access to public services.
  • Public services should be accountable to users and to taxpayers

The first three principles, in particular, underscore the disaggregated character of the system. The White Paper actively encourages more fragmented systems of decision-making and service delivery. This reflects the core idea animating its programme of reforms – that decisions should not be taken by central government but by bodies that are closer to, directly responsive to, or controlled by the choices of the individual user.

Increased choice – and the logically prior principle of increased competition – are at the heart of the White Paper’s vision. According to it, “the job of government … is to create an open framework within which people have the power to make the choices that are best for them”. Critically, the document states that “the principles of open public service will switch the default from one where the state provides the service itself to one where the state commissions the service from a range of diverse providers”. As the more recent Open Public Services 2012 document summarises it, the reforms “mea[n] re-thinking the role of government – so that government at all levels becomes increasingly funders, regulators and commissioners” rather than direct service providers.

The presumption under the Big Society system is thus that services will not be provided by the state and that they will be provided by a range of different bodies. The White Paper appears to suggest that this will occur regardless of how effectively a service is being provided by a particular body, whether state-controlled or otherwise. For there to be choice, it would seem, there must always be competition between different providers. This emphasis on choice as the animating engine of service delivery is, if anything, intensified in the Open Public Services 2012. This repeatedly identifies user choice as the central focus of the reform agenda. Choice is seen as both a normative and an instrumental good.

The problem of choice

This raises the obvious question of whether the provision of choice should be both the primary goal and chief criterion of effective government action. There are various reasons to suspect that legitimate government must involve more than a basic guarantee of some level of choice. Ensuring that a citizen has the right to choose between expensive or inadequate alternatives does little, for example, to secure good government.

Similarly, confining the government’s role to the provision of choice leaves the end user primarily responsible for the ultimate outcome – thereby ignoring whether that user is offered an appropriate choice or is capable of making an effective choice.

Indeed, there are various issues where it would seem contrary to the broader public interest for service delivery to focus on satisfying user choice – such as creation and marking of school exams, or the dispensation of antibiotics for example.

It seems obvious that a focus on choice alone offers a peculiarly narrow image of government. The White Paper recognises that there are some limitations to a choice-oriented approach, noting that assistance may be necessary to ensure that some users or geographical areas have adequate choices open to them. It seems telling, however, that the measures intended to address these limitations treat them, in essence, as distortions in the market of choice: information deficits, market dominance, or skewed distributions.

Furthermore, the remedies prescribed are input-oriented devices that aim to cure those distortions. So-called voice mechanisms provide information which might not otherwise be factored into the market, while the various fairness supports identified in the document tend to operate by facilitating more effective market participation (either by information or curative incentives) by those who might otherwise be vulnerable consumers. In all instances, however, the processes of decision-making or service delivery remain primarily regulated by the discipline imposed by competition and user choice.

The basic unit of accountability under the Big Society system thus remains the individual user. From a democratic perspective, there is a clear danger that a system premised on responding to user demands will only to those users who articulate demands, or who articulate them in the most effective form. This is liable to distort the representative or democratic character of the system. As Schattschneider observed, “’the flaw in the pluralist heaven is that the heavenly choir sings with a strong upper-class accent. Probably about 90% of the people cannot get into the pressure system.

Devolving decision-making to third-party organisations creates a risk that power will in fact be exercised by those who are sufficiently motivated by self-interest or ideology to engage with the ‘choice’ process, with neither providing a truly representative reflection of the local community’s views. In this way, open public services may become an oligarchy of the self-interested or enthusiastic.

One of the core concerns for administrative law or regulation over recent decades has been to minimise the potential for self-interested actors to have undue influence over public decisions. Fears over regulatory capture are a commonplace in this literature. Yet, the notion of open public services seems to entirely ignore this issue, instead seeking to turn over the design and delivery of public services to anyone with the incentive or inclination to put themselves forward. As any user of Wikipedia (or anyone whose students use Wikipedia) will know, this type of open sourced project attracts not only those acting out of some benevolent sense of civic duty but also those who wish to further their own personal or ideological agendas. In many instances, it is the latter groups who have the greater incentive to succeed. This belies the easy assumption that an open public services Wikiocracy will lead to a more effective or democratic government.

A good example of this weakness is the role envisaged in the White Paper for what it describes as independent champions. On closer inspection, the notion that these ‘champions’ will enhance the democratic character of the system seems highly suspect. In fact, the idea seems directly contrary to democratic principles. The White Paper proposes, for example, that pressure groups such as HealthWatch or the Taxpayers Alliance should be entitled to a specific role in contributing to and monitoring service provision. Yet it does not seem to give any consideration to the question of why private groups with a specific policy position should have a preferred role in the governance process conferred upon them. In particular, the White Paper does not consider what obligations, if any, such bodies should meet in terms of membership criteria, representative character, political funding, donations policy or transparency.

This is especially concerning when concerns have previously been raised about the composition and background of one of the groups specifically identified in the White Paper.  The use of nominally ‘independent’ or ‘expert’ groups as the acceptable face of an ideological agenda is a well established practice in American politics. The White Paper not only makes this possible but seems, on one view, to actively anticipate it. Democratic accountability is not enhanced by privileging the input of the self-appointed.

This speaks to a fundamental dilemma at the heart of the Open Public Services and Big Society agendas: how can a system whose main selling point is its promise to get government out of the way nonetheless ensure the defence of minimum substantive values? There is a sense that supporters of these reforms trust that the system proposed includes self-executing safeguards of core values. The nature of these mechanisms varies. The government seem to believe in competition and choice, while others like Blond would seem to place more faith in the self-government of communities or active associations.

The primary objection, however, is that these solutions trust in assumptions about the likely behaviour of services users and of disaggregated groups that are neither evidence-based nor necessarily supported by anecdotal experience. Reposing faith in communities, for example, may be based on no more than the assumption that decision-making, like cheese or craftsmanship, is better when it is local – more organic, more authentic, more attuned to local tastes and culture. Although this may tap into powerful contemporary narratives and beliefs, Triesman’s work reminds us that such faith in localism may be naively misplaced:

 [T]he popularity of decentralization feeds off romantic images of life in small, usually rural communities …. The mystique of the Athenian polis combines with images of communal barn raisings, church picnics, summer hayrides and so on. Of course, such a view of small-town life is highly selective. Besides dancing around the Maypole, the New England townspeople found time to burn witches and pin scarlet letters onto adulterers.

 This illustrates how the ‘Big Society’ rests on what are, in essence, organisational caricatures about state and non-state bodies. The more mundane reality is that governance institutions, at all levels, have significant strengths and weaknesses. The tendency across most national systems towards checks and balances is a matter not only of constitutional principle but also of operational practice. To entrust significant decision-making powers to autonomous non-state units is potentially problematic from the perspective of both constitutional legitimacy and good government, reflecting a faulty assumption that grassroots involvement is always progressive.

What is needed is an approach which accepts the limits of these varying institutional forms and seeks instead to make use of their strengths rather than focusing on their weaknesses. Democratic experimentalism – by combining the delegation of power to local or non-state actors with robust systems of peer monitoring and empirical review – is one example of how the challenges identified by Big Society advocates might be met in a more effective and democratically-appropriate manner. While these alternatives may lack the ideological purity and simplicity of the Big Society model, the reality is that government is typically a messy and multi-faceted affair. In that regard, theories like democratic experimentalism that take comparative institutional analysis seriously seem more likely to produce effective outcomes than ones – like the Big Society – that seem premised on institutional caricatures and an antipathy to government.

Eoin Carolan is a  lecturer in law at University College Dublin

This is an abridged summary of a piece published in this month’s edition of Public Law.

Suggested citation: E. Carolan, ‘An oligarchy of the self-interest or enthusiastic?: Open Public Services in the Big Society’ U.K. Const. L. Blog (29th April 2013) (available at http://ukconstitutionallaw.org).

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Jeff King: Deference, Dialogue and Animal Defenders International

jeff2In Animal Defenders International, the European Court of Human Rights upheld the British ban on political advertising in the broadcast media (s.321 Communications Act 2003), consistently with the judgments of the UK House of Lords and High Court, but in an apparent departure from its previous caselaw in the VgT (Verein gegen Tierfabrik v. Switzerland, no. 24699/94 ECHR 2001‑VI) case.  The key issue in the case was whether a blanket ban (or ‘general measure’) was a proportionate restriction of the freedom of expression, or whether some class of exception (a ‘case-by-case’ approach) for groups such as the NGO in this case ought to be recognized. I am in complete agreement with Jacob Rowbottom’s view on the correctness of the Court’s judgment and the desirability of a general ban.  In brief, the problem with making case-by-case or category-based exceptions for advocacy groups is that there is a risk of profusion of ‘non-profit’ groups that are in fact created and backed by well-monied interests, the unveiling of which becomes an impossible regulatory task in the shadow of constant litigation.  The focus of the present comment is on three further matters raised by the case that are of importance for British constitutionalism: the role of judicial restraint; the merit of rigorous human rights-based parliamentary scrutiny of legislative proposals; and the value of UK-Strasbourg dialogue.

Many academics have stepped into what is often called ‘the deference-debate.’ [*] One group, in which we find Murray Hunt, Aileen Kavanagh, Alison Young, myself, and I think to a more subtle extent Alan Brady, believe that there is a role for both the practice of judicial restraint, and also for a specific doctrine of judicial restraint, though none of us is generally skeptical of the judicial protection of human rights. On the other hand, we find Trevor Allan arguing a cogent case that a doctrine (e.g. a set of overtly recognized principles) of judicial restraint would be pernicious, that it will lead to excessive deference, and that any proper role for judicial restraint is already comprehended within the legal standards themselves – in legal concepts such as proportionality, Wednesbury reasonableness, fairness and so on.  For the unanimous judgment of the House of Lords in Huang v SSHD [2007] UKHL 11, Lord Bingham made the following finding, after summarizing a range of immigration-specific factors for consideration:

 The giving of weight to factors such as these is not, in our opinion, aptly described as deference: it is performance of the ordinary judicial task of weighing up the competing considerations on each side and according appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice. That is how any rational judicial decision-maker is likely to proceed.

 Who needs a doctrine, in other words? This largely agrees with the views of both Trevor Allan and Tom Hickman.  The problem though is that this view depends entirely on the judge having Lord Bingham’s intuitions about ‘appropriate weight,’ which are not as widely shared as we all would wish.  In Animal Defenders International, the Court split 9/8 and Rowbottom, the country’s leading legal expert on the matter, was himself convinced that Strasbourg would decide against the ban. The safe bet was on losing.

The substance of the majority’s decision gave enormous weight to the comprehensive examination of the issue within the legislative process (and in court thereafter):

 114. […] The Government, through the DCMS [the Department], played an important part in that debate explaining frequently and in detail their reasons for retaining the prohibition and for considering it to be proportionate and going so far as to disclose their legal advice on the subject (paragraphs 50-53 above). The 2003 Act containing the prohibition was then enacted with cross-party support and without any dissenting vote. The prohibition was therefore the culmination of an exceptional examination by parliamentary bodies of the cultural, political and legal aspects of the prohibition as part of the broader regulatory system governing broadcasted public interest expression in the United Kingdom and all bodies found the prohibition to have been a necessary interference with Article 10 rights.

115. It was this particular competence of Parliament and the extensive pre-legislative consultation on the Convention compatibility of the prohibition which explained the degree of deference shown by the domestic courts to Parliament’s decision to adopt the prohibition (in particular, paragraphs 15 and 24 above). The proportionality of the prohibition was, nonetheless, debated in some detail before the High Court and the House of Lords. Both courts analysed the relevant Convention case-law and principles, addressed the relevance of the above-cited VgT judgment and carefully applied that jurisprudence to the prohibition. Each judge at both levels endorsed the objective of the prohibition as well as the rationale of the legislative choices which defined its particular scope and each concluded that it was a necessary and proportionate interference with the applicant’s rights under Article 10 of the Convention.

116. The Court, for its part, attaches considerable weight to these exacting and pertinent reviews, by both parliamentary and judicial bodies, of the complex regulatory regime governing political broadcasting in the United Kingdom and to their view that the general measure was necessary to prevent the distortion of crucial public interest debates and, thereby, the undermining of the democratic process.

The Court here effectively endorses a notion of judicial restraint in deference to the substance and process by which the decisions were undertaken in this situation.  The very issue of the viability of an exception as an alternative to a blanket ban had been batted back and forth by several bodies during the legislative process (and insufficiently so by the Strasbourg court in previous cases, as the UK argued in this case). The majority judgment showed respect for that process and awareness of their own limitations in second-guessing it in a complex context, when the stakes are high.  (The concurring judgment of Sir Nicholas Bratza was even better on this and other points, but I pass over it here for a variety of reasons).

By contrast, the two dissenting judgments had no time for this.  The first group of dissenters quote the notorious court-sceptic JAG Griffith as authority for the implied point that the British courts defer too much to Parliament (Joint Dissenting Opinion of Judges Ziemele et.al., para.2), and then chastise the majority in the following terms:

“Nor does the fact that a particular topic is debated (possibly repeatedly) by the legislature necessarily mean that the conclusion reached by that legislature is Convention compliant; and nor does such (repeated) debate alter the margin of appreciation accorded to the State. Of course, a thorough parliamentary debate may help the Court to understand the pressing social need for the interference in a given society. In the spirit of subsidiarity, such explanation is a matter for honest consideration. In the present judgment, however, excessive importance has been attributed to the process generating the general measure, which has resulted in the overruling, at least in substance, of VgT, a judgment which inspired a number of member States to repeal their general ban -a change that was effected without major difficulties.”

 Both parts of this quote are misguided in my view. Dismissing the outcome because such a process can yield wrong results (obvious) is to miss the point that this process, on this issue, did deserve considerable weight for a range of substantive reasons. They include the fact that the interlocutors in that process had special knowledge of British politics, commercial media, and consumer habits, and studied the phenomenon at great length and in good faith. The second part of this quote states a claim that could be a highly material point – surely if the revoked ban had not led to problems elsewhere, then that supports the view that the blanket ban isn’t necessary.  But how do they know whether the ban has not in fact been pernicious there?  No evidence is given on this point, and we cannot assume no news is good news when we haven’t looked.  We do know that the impact of the Citizens United v Federal Communications Commission 558 U.S. 310 case in America, which struck down a not entirely dissimilar ban on ‘electioneering communications’ funded by corporations, has been terrible.   One study determined that the case accounted for 78% of campaign spending in the 2012 Presidential election.  (For a more nuanced view of its impact, see here).

The other dissenting judgment, of Justices Tulkens, joined by Judges Spielmann and Laffranque, at least addressed this issue:

 “17. The references to other systems in the context of that examination were brief and selective. The system most frequently referred to, as an example to be avoided, was that of the United States (paragraphs 37-54 of the judgment), but the latter country’s regulatory system is so different to that in issue here that the comparison strikes me as barely relevant.”

In this hubristic gesture, Judge Tulkens sweeps aside the virtually unanimous domestic agreement that it is both relevant and indeed persuasive.  What is brushed aside in the dissenting judgments more broadly include the views of the Neill Committee on Standards on Public Life, which visited several countries and reported at length to Parliament; the Joint Committee on Human Rights; the Independent Television Commission; the Joint Committee on the Draft Communications Bill; the Electoral Commission; and the unanimous opinion of the UK Parliament.  These bodies not only know local dynamics, but had greater subject-matter expertise and took more time for consideration. To offer only one illustration, the Neill Committee Report was 262 pages, and the Committee undertook visits to five countries, considered over 400 written submissions, and spent seventeen days taking evidence from 120 individual experts representing 75 organisations in public hearings held around Britain.  It also commissioned two relevant research studies, one of them analyzing freedom of expression jurisprudence.

I will not delve into the UK literature on judicial restraint here to show how the various factors adduced in that literature would counsel the right outcome here.  In brief, the relative expertise was greatly skewed towards the British institutions, both political and judicial; the exact human rights issue was the subject of protracted debate and litigation; the claimant group was not clearly politically marginalized or vulnerable to begin with (a point which is anyway not decisive here); and the cost of getting the issue wrong could be immense and irreversible (hence an impediment to much needed flexibility).  The principles of restraint and deference alluded to by the authors above all draw attention to these items and above all warn judges to resist the temptation to think that once human rights are in play, the judge decides in splendid isolation from policy or considerations of competence.   To those who think this is all obvious, the near miss in Animal Defenders International reminds us that it isn’t.

Having explored this much, I can deal briefly with my second and third points. The second concerns the value of parliamentary consideration of human rights issues.   I am presently engaged in research that examines parliamentary responses to section 4 declarations of incompatibility, and am struck by the incredible professionalism and rigour that is often (not always) found in this process. The JCHR in particular draws the direct attention of both houses to significant human rights implications of bills. It does so on the basis of advice from its legal advisor (presently Mr. Murray Hunt) and always in due consideration of the domestic and international law, as well as considerations of policy. It considers evidence submitted by a variety of NGOs and engages in extended correspondence with the Government on particular bills.  It is the interaction between this Committee, Government and Parliament, where the normative guidance set out in the jurisprudence of the courts unites with the participatory advantages and working flexibility of the legislative process. It may look revolutionary in the human rights context, but it is in fact a workaday illustration of a more widely acknowledged truth –  that pre-legislative scrutiny, as well as legislative scrutiny, is extremely valuable for helping to identify key issues before views ossify and legislative change becomes impeded by inertia and competition.  It can also potentially play a constructive role in litigation afterwards, either helping or harming a legal challenge to the Convention-compatibility of legislation (pace Article 9 of the Bill of Rights 1689 – on which see further the AHRC Report by Hunt, Hooper and Yowell, Parliament and Human Rights, pp.49-50).

The last point is that this case does represent precisely the merits of UK judges scrutinizing the state’s arguments in UK courts, in Convention-rights terms and with due consideration of Strasbourg jurisprudence, before the issue travels to Strasbourg for consideration there. The Strasbourg Court not only essentially adopted the reasoning of the UK courts, but in doing so it explicitly rowed back from its own jurisprudence (i.e. the VgT case). This is an entirely appropriate form of institutional dialogue, and shows maturity of judgment, the flip side of the much-maligned UK courts’ own willingness to apply rules laid down in Strasbourg.  The upshot of this is plain: a British Bill of Rights that acted as a substitute for the Human Rights Act 1998 would have destroyed that dialogue, and made the wrong outcome in Animal Defenders International more likely.

Jeff King is Senior Lecturer in Law at The  Faculty of Laws, UCL.

Suggested citation:  J. King, ‘Deference, Dialogue and Animal Defenders International’ U.K. Const. L. Blog (25th April 2013) (available at http://ukconstitutionallaw.org).


[*] Some important works in this vein include M. Hunt, ‘Sovereignty’s Blight: Why Contemporary Public Law Needs a Concept of Due Deference’ in Bamforth and Leyland, Public Law in a Multi-Layered Constitution (Hart 2003); A. Kavanagh, ‘Defending Deference in Public Law and Constitutional Theory’ (2010) 126 Law Quarterly Review 222 (see also her book Constitutional   Review under the UK Human Rights Act (CUP 2009) Part II; A. Young, ‘In Defence of Due Deference’ (2009) 72 The Modern Law Review 554; J. King, ‘Institutional Approaches to Judicial Restraint’ (2008) 28 Oxford Journal of Legal Studies 409, and Judging Social Rights (CUP 2012) Part II (elaborating four principles of restraint).  For the earliest statement of the best critique, see TRS Allan, ‘Human Rights and Judicial Review: A Critique of “Due Deference”’ (2006) 65 The Cambridge Law Journal 671, a position refined and enhanced in Professor Allan’s more recent (and forthcoming) work.  See also the nuanced position of Dr. Tom Hickman, Public Law after the Human Rights Act (Hart  2010) (accepting and outlining a role for ‘weight’ and guiding principles, but rejecting the idea of a doctrine).  Alan Brady’s Proportionality and Deference under the UK Human Rights Act (CUP 2012) integrates deference into the proportionality analysis in a manner that I believe has more in common with the doctrinalists than with Allan’s approach. Leadings treatise writers such as Paul Craig, Timothy Endicott and Jeffrey Jowell all recognize the role for judicial restraint but have largely steered clear of the question of whether any doctrine is necessary.

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Jacob Rowbottom: A surprise ruling? Strasbourg upholds the ban on paid political ads on TV and Radio

jacob-rowbottom-photoThe European Court of Human Rights has given its decision in Animal Defenders International , holding that the ban on political advertising on the broadcast media does not violate Article 10. I had been convinced that the Strasbourg Court, following earlier decisions in Switzerland and Norway, would come to the opposite conclusion – but I am relieved that they did not. The ban on political ads has been a crucial measure that has helped to keep the cost of politics down in the UK.  That said, it was a close shave. The ban was upheld by a majority of 9, with 8 dissenting. The decision was published earlier this morning, so what follows are my initial thoughts.

The approach of the majority stands in stark contrast to that in the US. While the US Supreme Court in Citizens United rejected arguments that corporate spending can distort the electoral process, the Strasbourg Court accepted the argument that ‘powerful financial groups’ can ‘obtain competitive advantages in the area of paid advertising and thereby curtail a free and pluralist debate’. Not only that, concerns about distortion are not limited to the electoral period:

‘While the risk to pluralist public debates, elections and the democratic process would evidently be more acute during an electoral period, the Bowman judgment does not suggest that that risk is confined to such periods since the democrafic process is a continuing one to be nurtured at all times by a free and pluralist public debate.’

This is an important element of the ruling, as it allows the state to take measures to tackle concerns about money in politics generally while staying within the requirements of Article 10.

The key area of debate was not the rationale of the measure, but the proportionality of the ban. The Court found that a partial ban on political advertising – for example allowing some issue advocacy – was unlikely to be workable, noting that such avenues were likely to be abused by ‘wealthy bodies with agendas’. Furthermore, the ban only applied to one type of media, and thereby leaving opportunities for alternative means to communicate, such as newspapers or social media.

Also significant was the fact that the ban had been considered by the UK on several different occasions, such as the Neill Report, in pre-legislative scrutiny and in court. This distinguishes it from cases such as Hirst, where a ban on prisoner voting rights had been maintained without any discussion. The Court thereby attached ‘considerable weight to these exacting and pertinent reviews, by both parliamentary and judicial bodies’.

But what about the previous decisions of the Strasbourg Court in relation to Switzerland and Norway? This I think was the biggest challenge facing the UK government when they were arguing their case. Most interesting here are comments from Judge Bratza who commented that the Court’s decision in VgT Verein:

‘did not do full justice to the purpose of the general prohibition in the legislation, which was to avoid leaving to individual judgment questions such as the wealth or influence of the individual, political party or association or the worthiness or morality of the polifical cause in question, with the attendant risks of discriminatory treatment.’

Consequently, he confessed ‘to entertaining certain doubts about the Chamber’s judgment in the case.’

By contrast, the dissenting opinion of Judges Ziemele, Sajo, Kalaydjiyeva, Vucinic and De Gaetano described the contrast with the Court’s earlier decisions as a ‘double standard within the context of a Convention whose minimum standards should be equally applicable throughout all the States parties to it.’ However, rather than being a double standard, the majority’s approach maybe an example of the way that dialogue with the UK shaped the ECtHR’s jurisprudence – or more cynically how the Court was influenced by the existing political tensions between the UK and Strasbourg.

The reasoning of that group of dissenting judges also shows a divide in the Court concerning its Article 10 jurisprudence. While the majority stressed the need for the ban to address distortion in public debate, those dissenters called it ‘well-intentioned paternalism’. Ziemele, et al emphasized Article 10 as primarily a negative right against state measures:

‘Promoting a right where it cannot be effective without additional State action is, according to our jurisprudence, appropriate, but is not a generally accepted primary ground for rights restriction. There is a risk that by developing the notion of positive obligations to protect the rights under Articles 8 to 11, and especially in the context of Articles 9 to 11, one can lose sight of the fundamental negative obligation of the State to abstain from interfering. The very initiative to legislate on the exercise of freedom in the name of broadcasting freedom, and in order to promote democracy in general terms, and for aims which may not necessarily fully conform to one or more of the legitimate aims of Article 10 § 2, remains problematic. The ban itself creates the condition it is supposedly trying to avert – out of fear that small organisations could not win a broadcast competition of ideas, it prevents them from competing at all. It is one thing to level a pitch; it is another to lock the gates to the cricket field.’

The final sentences attacks what it sees as a ‘level-down’ approach to political equality. Similarly, they went on to say:

‘Freedom of expression is based on the assumption that the speakers, not the Government, know best what they want to say and how to say it. Ideas can compete only where the speaker is in a position to determine, within the limits recognized by the Convention, which form of imparting ideas serves best the message.’

I think these criticisms are misplaced. TV is not a politics free zone, so I don’t think the gates are locked. It is just one type of transaction that is blocked. I think the state plays an important role in ensuring that the opportunities for communication are not skewed in favour of those with the deepest pockets. The case for the ban is not that people cannot decide for themselves, but that different groups should have equal opportunities to persuade people of the merits of their position.

The decision in Animal Defenders International has come as a surprise to me, but – and many will disagree with me on this point – it is a pleasant surprise. It is one in which the Strasbourg Court has moved away from its earlier jurisprudence and emphasized the importance of insulating political debate from the inequalities in wealth.

Jacob Rowbottom is a Fellow of University College, Oxford.

Suggested citation: J. Rowbottom, ‘A surprise ruling? Strasbourg upholds the ban on paid political ads on TV and Radio’  UK Const. L. Blog (22nd April 2013) (available at http://ukconstitutionallaw.org)

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James Lambert: Law Via the Internet Conference 2013

J LambertWhy is an international conference on free access to law being hosted this year in Jersey (population 90,000 and British Crown Dependency)?

It is 11 years since the declaration on Free Access to Law was signed in Montreal  and the Free Access to Law Movement was founded.  Since then the movement has grown to include organisations from more than 50 countries, and recent Law Via the Internet (LVI) conferences have been hosted by members in Africa, Asia and North America.  Now, for the first time, LVI comes to the British Isles.

The Jersey Legal Information Board  has been a member of the Free Access to Law Movement since 2008 and is proud to host LVI2013, where the over-arching theme will be “Free Access to Law in a Changing World”.  But where does Jersey’s pedigree, in the free access to law context, come from? The Jersey Legal Information Board (JLIB) was established in 1999 under the chairmanship of the Island’s chief justice.  As a direct provider of legal information, JLIB is almost unique in being a government sponsored agency.  JLIB’s Vision is for Jersey’s legal system “to be, and be recognised as, the global best for a small jurisdiction”. Historically, JLIB has played a major role in ensuring that the Island’s statutes and case law have been made available online to Jersey’s legal profession, and to prospective investors and regulators worldwide.  More recently, there has been a strategic shift towards making the law more widely and freely accessible to all, and to support this process, JLIB has been a member of the Free Access to Law Movement for the last 5 years.

One of many issues regularly debated by the Free Access to Law Movement, and a particular problem that afflicts Jersey as a small island jurisdiction, is the issue of balancing public interest and open justice with the privacy of the individual, which will be a major theme of this year’s conference.

The principle of open justice is regarded as being of constitutional significance.  In the past, when judgments remained in practical obscurity, there were few privacy issues (the effort required to extract them from the Court archives exceeded the desire to view them).  However, now that they are published on the Internet, Googling a name has become a pastime for the idle or inquisitive.  JLIB has received complaints from people who committed serious offences as young adults, were sent to prison, but now 10 or 12 years later are trying to get their lives back on track.  They feel haunted by the publication of judgments which can be read by prospective employers, people who would like to settle old scores, or people they meet in the street.  This is especially significant to a small island population.

Neither the Data Protection Law nor the Rehabilitation of Offenders Law in Jersey restrict the publication (in full) of judgments on the JLIB website.  However, it would not be unreasonable to apply a process of redaction (or ‘pseudonymisation’) to protect the identity of victims and witnesses involved in criminal cases.

JLIB has addressed this issue by working with the courts, the Children’s Service and the Data Protection Commissioner to agree a protocol for when a judgment should be redacted or indeed retained in a restricted area of the website to which access is limited to the legal profession and the judiciary.  These include:

  • Criminal cases involving under-18s – redacted.
  • Criminal case victims and witnesses – redacted.
  • Trust cases involving minors – redacted.
  • Sexual assault case victims – redacted and restricted access.
  • Public Law Children cases – redacted and restricted access.
  • Adoption cases – redacted and restricted access.

Statute law already prevents the identification of victims of sexual assault, under-18s in criminal or public law children proceedings, and adopted children.  The above protocol therefore reflects and exceeds existing statutory requirements, and is included in a set of guidelines which have been shared with other Free Access to Law Movement members.

Balancing of interests involves an examination on a case by case basis, and balancing the need for judicial accountability with the need for the privacy of the individual.  However, the stated view of Jersey’s judiciary and over-riding principal is that justice must be seen to be done.  Public trust and confidence in the justice system would be jeopardised if judicial hearings were routinely held in private.  There is also a need for open and public hearings to satisfy the public or community catharsis.

Since the Arab Spring, there has been an increasing interest in free access to law in countries where the rule of law is only starting to be established.  Publicly available free access to law is seen as essential in the move towards establishing democracy, respect for human rights, and the creation of a market economy.  Most people in these countries are very familiar with mobile technology, with expectations of receiving information, legal or otherwise, via the Internet.  For the first time, therefore, the conference will include a track entitled ‘Online legal information – starting from scratch’ followed by a practitioners workshop.

The conference is already attracting global interest from places as far afield as Japan, Vanuatu, New Zealand, Namibia, Australia, Zimbabwe, USA, Canada, Mongolia – not to mention many jurisdictions closer to home.  The Conference takes place on 26-27th September 2013, and further details can be found here.

James Lambert is Director of Services in the Jersey Court Service.

Suggested citation: J. Lambert, ‘Law Via the Internet Conference 2013’ ,  UK Const. L. Blog (12 April 2013) (available at http://ukconstitutionallaw.org).

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Kate Malleson: Is the UK the only OECD country that does not have excellent women lawyers fit for our highest courts?

malleson photo 2010Readers will be forgiven for not noticing, but on 8 April 2013 Lord Justice Hughes and Lord Justice Toulson were sworn in as Justices of the UK Supreme Court.

Their appointment, together with that of Lord Hodge (who will succeed Lord Hope when he retires in October 2013), leaves the Court rock bottom of the list Supreme Courts of the 34 OECD (Organisation for Economic Co-operation and Development) countries when it comes to the gender composition of bench. Fifteen new judges been appointed to the court since 2009 when the court opened its doors. All have been male.  Lady Hale remains the only woman ever appointed to the highest court in the land.

It is now well established that there are many barriers to women reaching the higher ranks of the judiciary: from the unreconstructed working arrangements of the legal profession and the bench to the wider social context of the gendered division of labour around caring responsibilities. But all of these barriers are equally present in other countries which have done so much better than us in appointing women to their judiciaries.

Numerous detailed proposals for reform have been put forward in the UK over the last 20 years for encouraging greater diversity on the bench. All of them are necessary but they are not sufficient.  What Adam Wagner has described as an ‘attack of the clones’ continues. In fact, in the last two appointment rounds – though which five Supreme Court Justices were appointed – just one woman sat on the appointing committee.

Ultimately, to change the composition of an institution of power such as the judiciary and to allow in those who are not drawn from the same background as the traditional recruits requires political will. Not just from politicians, but from all the key stakeholders, in this case the judges and the legal profession.

In Northern Ireland after the Good Friday agreement was signed there was political will to change the composition of the bench, in that case to include those from the catholic community. It would no longer have been acceptable for the majority catholic community to be tried by an almost exclusively protestant bench. Quietly and effectively the change was made within a few years. The same political will is evident in countries such as Canada which have transformed their Supreme Court composition in terms of gender. The latest round of appointments to the UK Supreme Court shows that the same political will is lacking here.

The claim – evidenced by these appointments – that after 30 years of women entering the legal profession in large numbers and almost a decade after the first woman was appointed to the House of Lords – we still don’t have enough highly talented women to appoint to the bench is simply incredible. Do we really believe that we are the only country in the OECD that does not have excellent women lawyers fit for our highest courts? They may not look identical to the men who have traditionally been appointed, but they are there. It is time for the discussions, the official reviews and the hand-wringing to stop. It is time for some of these excellent women to be put on the bench where they belong.

Kate Malleson is Professor of Law at Queen Mary, University of London. Equal Justices Initiative is a forum for bringing together academics, practitioners, judges and policy-makers to work towards gender parity on the bench.

Suggested citation: Kate Malleson, ‘ Is the UK the only OECD country that does not have excellent women lawyers fit for our highest courts? ’ ,  UK Const. L. Blog (11 April 2013) (available at http://ukconstitutionallaw.org).

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Craig Prescott: The Union, Constitutional Change and Constitutional Conventions (and English Regionalism?)

Craig

Last week, the House of Commons Political and Constitutional Reform Committee published their report, Do We Need A Constitutional Convention For the UK? (HC 2012-13  371). It is an interesting document, mainly because its very existence shows that the idea of a constitutional convention is becoming more mainstream within Westminster. But the report raises many questions, not all of which are fully answered. The central thrust of the report is that considering the raft of changes made to the constitution since 1997, particularly devolution, ‘it is time to conduct a comprehensive review so that the Union can work well in the future’ (para 111), and that this review should take the form of a ‘constitutional convention to look at the formal constitutional structure of the UK’. Matthew Flinders in his evidence provides the rationale for undertaking such a review now, stating that

 ‘the constitutional fault-lines that have always existed within the Westminster Model have arguably grown into significant gaps – possibly even chasms – as a result of recent reform. The old constitutional rules and understandings through which politicians and the public made sense of the political sphere no longer seem to apply. Moreover a number of issues on the political horizon – not least a planned referendum on Scottish independence – are stretching the constitutional elasticity of the Westminster Model to breaking point.’ (para 33).

Whilst ultimately leaving the issue open, the Committee suggest that the convention would have a particular focus on the relationship between the ‘different elements of the UK and how it functions as a whole’, but the English Question, ‘the fact that England…outside London does not have its own devolved settlement – must be addressed first’ (para 113).  The concern of the Committee is the asymmetrical nature of devolution, and the ‘gaping hole’ of England. Whilst the timing of these things is perhaps never ideal, especially at the moment with so many issues in flux, it is unfortunate that the Committee published its report without considering the proposals of the McKay Commission on the ‘West Lothian Question’ – the most manifest pressure on the constitution that asymmetrical devolution creates. (The McKay Commission has been discussed by Mark Elliott.)

Strengths & Weaknesses

The report should be welcomed as a rare example in British constitutional debates – politicians thinking ahead. The Scottish referendum, to be held on 18th September 2014, will increase the pressure on the union, whatever its result. If the vote is yes, then a substantial part of the Union will withdraw and if the vote is no, ‘devo-max’ has been promised, but will place the unitary nature of the Union under more strain. The problem with this example of future cartography, is that it is unclear what the issues will be. The consequences to the rest of the Union of a Scottish withdrawal will remain elusive until the terms of that withdrawal become clearer. Likewise, ‘Devo-max’ is still a slippery concept. Much may depend on the result of the referendum. If independence is soundly defeated, then pressure for significant change could be less than it currently appears.

These uncertainties lead to the Reports main weakness: namely, it is difficult to provide examples of the sort of issues that a UK wide constitutional convention on the future of the Union could resolve. The firmest proposal that the report makes is to consider the devolution of financial powers to English local government, but it is not clear that a uniform settlement is needed across all the devolved institutions and English local government, which would be the real value of a UK-wide constitutional convention. Indeed, the report is rather sanguine about the prospect of federalism, which would be a logical rationale for a UK-wide convention (paras 48 – 53).  As Alan Trench states,  what ‘is vital for Wales is of much less importance  in eastern England. To the extent there is a ‘Scottish’, ‘Welsh’ or ‘north-east English’ interest in the Union, each of these different’

Alternatively, a UK convention could be a more technical exercise that ‘tidied up the loose ends of devolution’, which would see how the relationship between the different institutions could be improved (see John McCallister MLA, para 35). If this is the case, there seems little to be gained with a constitutional convention over the more traditional method of a Commission to consider these technical issues. Commissions have been used extensively as the main driver of change in devolution, with the Richard Commission directly led to the Government of Wales Act 2006, the Calman Commission led to the Scotland Act 2012 and the Silk Commission in Wales is ongoing.

If the desire is for a technical tidying up of devolution arrangements, this does not appear to fit with the use of constitutional conventions so far. The international use of conventions has so far developed into two categories. Firstly, they are used to devise a new constitution for a state (such as in Iceland), or, conventions are used to discuss a particular issue (for example the Citizen’s Assemblies on Electoral Reform in British Columbia and Ontario). The proposal of the Committee somehow falls in-between these two categories. As a convention would be an experimental device in the UK, and no convention has been held in a political unit the size of the UK some care should be taken for a convention not to be too novel.

For this reason, there seems to be a greater argument for a constitution convention on House of Lords Reform (a point made in written evidence by Michael Gordon and Brian Thompson of University of Liverpool). This would be consistent with the use of conventions abroad, and fulfills the rationale behind a convention, which is to increase the range of ‘inputs’ into the constitutional change process beyond the government of the day to not only other political parties but to those who will be subject to the new constitutional structure – the people. The use of conventions reflects these twin needs. Parties across the political spectrum need to have confidence in the viability of a constitutional structure to foster stability, and that the people can confer legitimacy on new constitutional structures, to the extent that sections of the public are willing to accept perceived negatives decisions from the new structure. If a convention is to merely tie up the loose ends of asymmetric devolution, a convention is not necessarily required to fulfill these twin needs.

The Real Issue: The Process of Constitutional Change

The real issue that lurks in the background of the Committee’s report is not really the structure of asymmetric devolution, but an increasing dissatisfaction with the process of constitution change, which created the situation in the first place (this was considered by the House of Lords Constitution Committee in its report, The Process of Constitutional Change (HL 2010-12 177). The main problem is that despite all the changes enacted since 1997, there has never been a holistic look at how the changes affected the constitution as a whole. Indeed, shortly after the 1997 General Election, the incoming Labour Government rejected the very idea of a White Paper discussing its constitutional change agenda in an overarching fashion. No Minister was given overall responsibility for the constitutional reform agenda and the idea of a declaratory White Paper ‘embracing, describing and linking the whole rolling process’ was decided against (Peter Hennessy, The Prime Minister – The Office and Its Holders Since 1945 (Penguin 2000)).

This approach has now started to reveal its flaws – the issues surrounding the sustainability of a post 2015 Government relying on Scottish seats for its majority are vividly described here. The suggestion for a constitutional convention is ultimately delayed a reaction to this, but could be addressed at the wrong target at the wrong time. If anything, a constitutional convention considering asymmetric devolution should have been convened before devolution was enacted.

Conventions and English Regionalism

To this extent, the report is on safer ground when suggesting a ‘pre-convention’ or forum to consider English local government. Perhaps the Committee should have gone further and suggested a full-blown convention for English local government. It would comply with the rationales for a convention indicated above. However, the idea of regionalism is rejected outright in the report on the grounds that there is no appetite for another layer of politicians (para 14). This perhaps can be explained in the context of the poor public finances and the lingering shadow of the MP expenses scandal making the prospect of more politicians an unlikely one. But the Committee is at risk of falling into the same trap as the current and   previous Governments who viewed the rejection of Local Mayors and Regional Assemblies as a rejection of the very idea of regionalism.

Yet this is not necessarily case. The one occasion a robust scheme was proposed in England, it was comprehensively approved in a referendum – in London. Whilst this could be due to the particular characteristics of the capital, there is some support for similar structures outside London. During the May 2012 referendum on an elected Mayor in the City of Manchester, opinion polls showed more support support for a Mayor across the Greater Manchester area on the London model, than the Mayoral proposal on offer which was rejected

One of the advantages of a constitutional convention is that it is an opportunity for some fresh thinking on issues which have proved beyond resolution by the more regular constitutional change mechanisms. This is another reason that makes House of Lords reform is a prime candidate for a convention. By increasing the ‘inputs’ into the process, it allows for options that have fallen outside the purview of politicians to be considered. For example, the Calman Commission through its public engagement processes found that the role of the Crown Estate in Scotland was a far more important issue for people than politicians’ realised. Conventions also allow for the thorough consideration of issues, something that was lacking in the years following the 1997 General Election. It just could be that a constitutional convention held on a regional level could be the way to bring English regionalism fully to life. At least this way, it could be put to the people.

However, holding a constitutional convention on such an issue necessitates making certain choices. The decision at which level to hold an English constitutional convention, (at Local, Regional or England-wide level) could be viewed as impliedly prejudging the conclusion of the convention. If it is held on a England-wide level, is that precluding a more local solution? Does the holding of a convention on a regional level preclude the option of devolution to the North of England? (The Hannah Mitchell Campaign Organisation  are campaigning on this very issue.)  When the demos and territorial scope of an institution are itself up for discussion, the creation of a convention itself needs to be very carefully considered (Stephen Tierney, Constitutional Referendums (OUP, 2012). This is where the Committee’s idea of a pre-convention could be useful. An example can be drawn from New Zealand, where the Constitutional Advisory Panel is currently engaging with the public by asking for the views of the public of possible areas of the constitution that they feel may need change It could be that a similar sort of process could be useful to frame an English constitutional convention.

Composition

The other main choice is the composition of a convention. There are three elements that could be reflected. Politicians are the most obvious element, as they work daily within the existing constitutional structure and have a direct interest in any new constitutional structure. But this direct interest is also self-interest, as change is rarely desirable amongst those already in positions of power. A barrier to English regionalism is that both Westminster and local councils could see regional institutions as a new competing powerbase.  For this reason, expertise is the second element, as the assumptions and interests of politicians can be challenged. Expertise clearly includes experts from academia and public policy, but it can also be more broadly defined to include representative groups such as business organisations, trade unions and religious institutions. This element can also bring different perspectives on the issue, including international comparisons. The Australian Constitution Convention in 1998, held to consider whether to retain the Queen as Head of State combined these two elements, with half being politicians elected onto the convention, and the other half being appointed experts. The final element is the people themselves. In principle this is consistent with the rationale of holding a convention, in that public involvement allows the people to confer legitimacy onto a new constitutional structure. Also, if the proposals are to be put to the broader electorate in a referendum, then people may have a greater degree of trust in the proposal, if members of the public have been involved in devising the proposal. Usually, representation of this element has been through (largely) random selection, as in the Citizens’ Assemblies on Electoral Reform in British Columbia and Ontario.

The Citizens’ Assemblies in British Columbia and Ontario both saw their proposals falter in referendums (although in British Columbia 57.7% supported the proposal, but it was short of the 60% threshold). This raises two questions. Firstly, whether a convention with different elements in its composition would have arrived at a proposal, which would have proved more appealing to a greater portion of the electorate. Or, whether you have to accept that however a convention is composed, sometimes the issue is too intractable for it to be resolved on that occasion. The second question is that if proposals are to be put to a referendum, then as much focus should be attached on the rules and conditions of the referendum as there is on the convention that frames the question.

Public Interest 

Short of an Ackerman-esque major ‘constitutional moment’, the perennial difficulty with constitutional change is the limited desire amongst the general public for constitutional change and debate. Experiments aimed at increasing engagement with politics in general have been met with limited success. For example, the 25% turnout at the open primary in Totnes before the 2010 election did not ‘indicate a zealous public chomping at the bit to get involved’ (Ruth Fox, ‘Engagement and Participation: What The Public Want and How Our Politicians need to Respond’, 62 Parliamentary Affairs 673). The Hansard Society’s Annual Audit of Political Engagement consistently shows that around 50% have little interest in politics. However, a convention would be entirely new to British politics and its novel nature, could spark a greater level of interest, particularly if it tapped into the prevailing dissatisfaction with politics and involved members of the public.

Iceland’s Constitutional Council provides an interesting example of a particularly high level of public engagement (the report discusses Iceland in paras 24-27). After a National Forum of 1,000 citizens discussed themes for a new constitution, the Constitutional Council, was created with 25 citizens elected to draft the new constitution. An interesting feature of the Council’s method was its use of the internet to engage with the public. The Council posted draft articles on the internet and social media, inviting public comment and then posted redrafts taking account of the comments received. Council meetings were broadcast on the television and internet. After being approved in a non-binding referendum, the constitution is awaiting ratification. Whilst there are major differences between Iceland and the UK – Iceland’s population is around 320,000, compared to the UK’s 60 million, elements of the three-stage process of a general meeting, elections and engagement could be a useful process for future reform mechanisms. The method of using the internet to allow discussions of draft articles is particularly interesting as it would allow the broader public to scrutinise proposals. For more on Iceland see Thorvaldur Gylfason, ‘From Collapse to Constitution: The Case of Iceland’, CESifo Working Paper No. 3770

The Future?

Finally, the report makes an interesting hint. It suggests that the use of a convention with an open remit could struggle to reach conclusions (para 81). This is almost certainly correct. If a convention with an open remit to consider the issue of the relationship between the devolved institutions would struggle, it raises the issue of how appropriate a convention would be to codify the UK constitution. Given the complexity of such a task, it could be that the best use of the convention method would be not to have one convention, but several conventions. Each convention would consider a different aspect of a codified constitution, possibly operating with other procedures, where appropriate, and all being subject to one overarching body co-ordinating the whole process. It must be noted that  having several conventions or bodies, whilst logical, could have difficulties in engaging the public across the different procedures, bodies and conventions. Clearly, this is a consideration for another time, particularly as the Committee is considering this very issue, with its inquiry into Mapping the Path to Codifying or Not Codifying the UK Constitution.

Conclusion

By offering something new to the constitutional change process, constitutional conventions have a potential role in resolving constitutional issues, which have eluded the more traditional methods. The Reports main value is in identifying constitutional conventions as a method for constitutional change that should be pursued. However, the report has possibly approached the issues in the wrong order. Conventions need to be examined first, and it needs to be establish how conventions can be used as a sound and viable process in the UK. Only then can you consider for which issues a convention would be appropriate. House of Lords reform is clear case, as the ordinary processes of constitutional change have broken down time and time again. The future of the Union and the English Question are two further candidates, but it is too early to be definitive about this. Wait until 19th September 2014.

Craig Prescott is a Teaching Assistent and Ph.D student at the School of Law, University of Manchester.

 Suggested citation: C. Prescott, ‘The Union, Constitutional Change and Constitutional Conventions (and English Regionalism?)’ UK Const. L. Blog (3rd April 2013) (available at http://ukconstitutionallaw.org)

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Dawn Oliver: Parliamentary Sovereignty in Comparative Perspective

oliver

I Parliamentary sovereignty in other countries

 In this post I defend the absence of judicial strike down powers in the UK by exploring the ways in which other countries besides the UK manage to function well as liberal democracies without courts enjoying strike down powers, and looking at some of the negative aspects of the USA system, which is sometimes held up as a model to which the UK should look.

A doctrine of parliamentary sovereignty in the particular sense that the courts will give effect to legislation passed by the Parliament on any subject matter, even if it is ‘unconstitutional’, is not unique to the UK. It applies in common law based New Zealand which – like the UK – does not have a formally entrenched written constitution (though a 75% majority in a referendum is required to certain aspects of the electoral system). It also applies in some of our Northern European neighbours, notably Finland, Sweden and the Netherlands.

New Zealand

Politics in New Zealand resembles that of the UK in a number of respects, including the development of constitutional conventions of political restraint in relation to the constitution and the cultivation of good relations between the courts, the Parliament and the executive (M. Palmer ‘Open the door and where are the people’ The white population of New Zealand is relatively homogeneous and cohesive. Special measures – the Treaty of Waitangi – protect the Maori.

The New Zealand Parliament enacted a Constitution Act in 1986 which describes the country’s constitutional arrangements but leaves the traditional doctrine of parliamentary sovereignty broadly in place. The principal purpose of the 1986 Act was to patriate the New Zealand constitution by breaking its links with and dependence on the United Kingdom’s legal system.

The constitutionality of laws in New Zealand, not being protected by American-style judicial review, is promoted in a range of informal ways. In 1986 Minister of Justice, later Prime Minister, Geoffrey Palmer established a non-statutory Legislation Advisory Committee. The Committee is serviced by the Ministry of Justice and generally meets every six weeks. Its terms of reference are as follows:

(a) to provide advice to departments on the development of legislative proposals and on drafting instructions to the Parliamentary Counsel Office;

(b) to report to the Attorney General on the public law aspects of legislative proposals that the Attorney General refers to it;

(c) to advise the Attorney General on any other topics and matters in the field of public law that the Attorney General from time to time refers to it;

(d) to scrutinise and make submissions to the appropriate body or person on aspects of Bills introduced into Parliament that affect public law or raise public law issues;

(e) to help improve the quality of law-making by attempting to ensure that legislation gives clear effect to government policy, ensuring that legislative proposals conform with the LAC Guidelines and discouraging the promotion of unnecessary legislation.

Its members include the President of the Law Commissioners, academics, practising barristers, judges and parliamentary counsel and civil servants. While it has no delaying power and it is open to the government to ignore its reports, it is assumed to have an effect upstream in government during the preparation and then the parliamentary processing of bills. It is very rare for the New Zealand Parliament to pass laws that would be regarded as ‘unconstitutional’. I shall return to lessons that may be drawn from the New Zealand approach in due course.

Sweden, Finland and the Netherlands

Doctrines of parliamentary sovereignty in the sense that the courts may not hold an act passed by the primary legislator to be invalid as being ‘unconstitutional’ also operate among some of our Northern European neighbours (see Jaakko Husa‘ Guarding the Constitutionality of Laws in the Nordic Countries: A comparative perspective’ in 48 American Journal of Comparative Law, 2000, p. 345). Practice in these non-common law, small country jurisdictions may seem of little relevance to the UK, but we share a number of important and influential characteristics with them which can cast light on how they, and the UK, manage quite well without constitutional review by the courts.

There is very little American or German style ‘judicial review’ of legislation in Sweden: judicial review is only permitted if the conflict with the Constitution or another higher law is ‘clear’ or ‘manifest’ (see Thomas Bull ‘Judges without a Court:  Judicial Preview in Sweden’ in T. Campbell, K. D. Ewing and Adam Tomkins The Legal  Protection of Human Rights: Sceptical Essays, Oxford, Oxford University Press, 2011;  Lars-Goran Malmberg in X. Contiades, ed. Engineering Constitutional Change: A Comparative Perspective on Europe, Canada and the USA, Abingdon, Routledge, 2012); in Finland there is none (see Jaakko Husa The Constitution of Finland, Oxford, Hart Publishing, 2011; Tuomas Ojanen ‘Constitutional amendment in Finland’ in Contiades ed, above; M. Suksi ‘Finland’ in Oliver and Fusaro, How Constitutions Change, Oxford, Hart Publishing, 2011; Kaarel Tuori in T. Campbell, K. D. Ewing and Adam Tomkins The Legal Protection of Human Rights: Sceptical Essays, above). These countries rely substantially on pre-legislative, abstract scrutiny – preview – of bills by special parliamentary committees: for instance the important and highly regarded Constitutional Committee of the Finnish Parliament; and, in the case of Sweden, on the work of its extra-parliamentary legislative committees in preparing proposals for legislation, and its Law Council, an official independent body similar to the French Conseil d’état or the New Zealand Legislation Advisory Committee, which scrutinises and reports on bills.

The Netherlands also lacks judicial review of Acts for constitutionality by the courts: this is forbidden by article 120 of the Constitution (see C A J M Kortmann and P P T Bovend’Eert The Kingdom of the Netherlands: An Introduction to Dutch Constitutional Law, Boston, Kluwer Law and Taxation Publishers, 1993). The Netherlands system relies on its Council of State to ‘control’ [scrutinise] and report on bills before they are passed. Its parliamentary committees are weak.

Each of the ‘preview’ bodies in these three countries includes lawyers in its membership – judges, academics or practitioners – and in some respects they adopt formal procedures which resemble those of the courts: hence the phrase ‘judicial preview’ may be applied to them, though they are none of them ‘courts’. In summary, each of these countries has developed a system of constitutional preview involving extensive consultation about and expertly advised non-partisan scrutiny of legislative proposals at a number of stages in the legislative process which has proved effective in preventing the making of ‘unconstitutional’ laws.

Despite the restrictions on or absence of judicial review for constitutionality only seldom, if at all, are laws passed which seriously conflict with constitutional principles in these countries. (Readers may be thinking that ‘seldom’ is not as good as ‘never’; and why does only ‘serious’ conflict matter? Perfection is unachievable in these matters. Is it the fact that bad laws of a constitutional nature have never been passed and given effect by the courts under their written constitutions in countries with judicial review? Surely not. (I shall consider the position on this issue in the United States briefly below.) On the other hand the Netherlands is a monist system and thus treaties, including for instance human rights treaties, have direct legal effect and give rise to rights that individuals may enforce in the courts. Thus there is in practice a form of judicial review of provisions in Acts which a court in the Netherlands may ‘disapply’ in case of incompatibility with treaty provisions, some of which are ‘constitutional’ in nature.

Sweden and the Netherlands, like the UK, are constitutional monarchies: they have evolved continuously over at least two centuries gradually subjecting the exercise of formerly wide powers by the head of state and government to legal and conventional constraints. The Constitution of Sweden dates from the Instrument of Government, 1809. The Constitution of the Netherlands as an independent state and monarchy dates back to 1814. Finland was part of Sweden until it became a Russian Grand Duchy – similar to a monarchy – of Russia in 1809. The Finnish Constitution of 1917-1919 was drafted on the assumption that the country would be a monarchy or German Grand Duchy, but this became impossible after the defeat of Germany in World War I and Finland turned to electing a President who enjoyed some powers of a King. Thus although the Finnish Head of State is a President the country has retained some of the traditions of continuity that constitutional monarchies possess ( see Seppo Hentila in The Parliament of Finland (Helsinki, The Parliament of Finland, 2000) pp. 35-45; Jaakko Husa,  above.)

Each of these countries has a parliamentary executive, thus allowing constitutional traditions and conventions of responsible and responsive government to evolve and regulate the relations between the parliament and the executive in ways that are not possible in non-parliamentary, presidential systems; each has a fairly homogeneous population most of whose members share senses of common identity and common interests. Where, as in the Aland Islands of Finland, a population has a separate identity, special arrangements for their protection have been made. These countries have fairly consensual political traditions (see for instance Arend Lijphart, The Politics of Accommodation: Pluralism and Democracy in the Netherlands, 2nd edn. , Berkeley: University of California Press, 1975, on The Netherlands), and there are cultures of non-partisan approaches to constitutional matters or political traditions of pragmatic compromise: these tendencies may be reinforced by the fact that each uses a system of proportional representation in elections. The Finnish Constitutional Committee and the Swedish and Netherlands Councils of State act in quasi-judicial ways, taking advice from lawyers, often academics, and  evidence, formulating their opinions in terms of constitutional legality, and generally adopting non-political positions.

Where a non-partisan approach to constitutional matters does not exist in a substantial section of the population of a state, where for instance a population is seriously divided on class, racial, sectarian, tribal or religious grounds, non-partisan politics, especially in relation to minorities and constitutional matters, may be impossible: experience in Northern Ireland, with its divided unionist and nationalist communities, in the middle of the twentieth century illustrates the point. In such countries there may well be a need for a judicially enforceable Constitution –and/or international agreements to resolve conflicts – as are provided for by the Northern Ireland Act 1998 and the Belfast Agreement (Cm 3883, 1998).

The UK shares many characteristics with New Zealand, Sweden, Finland and the Netherlands including evolution of constitutional arrangements over many years and parliamentary executives.  Of course, the UK does not have a tradition of consensual party politics or coalition government. This may be due to the first past the post electoral system and to the fact that British politics retains elements of a class system, which in turn are reflected in some of the policies of the main political parties: class is less important in New Zealand and our Northern neighbours than in the UK. The UK does however, I suggest, have cultures and traditions that are hostile to partisan, and in favour of non-partisan, constitutional politics – again, Northern Ireland has been an exception: there consociationalism now provides a new form of consensus politics. But among the general public and in opposition parties opposition to partisanship in constitutional politics is deeply embedded in Great Britain.

It is broadly agreed and understood among Westminster parliamentarians and among the general public that constitutional change should not be brought about with a view to benefiting the party or parties in government or their supporters; rather constitutional changes should promote honestly held views about the public interest and where the balance between individual rights and conflicting public interests lies. Allegations of partisanship are of course made, especially by opposition parties and the critical press, when constitutional changes are under consideration. But Governments proposing change in the UK will never admit to partisanship: if they were to do so this would attract general public disapproval.

Partisan party political considerations no doubt influence the priority given to some proposals for constitutional change over others: commitments by the Labour government that was elected in 1997 to devolution to Scotland and Wales were no doubt influenced by fear of the Scottish National Party and Plaid Cymru winning over Labour voters if no such promise was made. That consideration does not however of itself detract from the merits of devolution, which are based in senses of shared national and regional identities and desires for government in these areas to promote general interests within each territory and for public servants to prioritise the interests of their populations, and not sectional interests.

This non-partisan understanding about constitutional change in the UK may exist because each government is an opposition in waiting and each opposition party is a government participant in waiting. The electoral system operates so that there are regular changes of government. It is not therefore in the interests of either government or opposition parties to concede a right to the others to use their power in relation to the constitution for party political advantage without any public interest justification. The terms of such debates take for granted that constitutional change should be non-partisan.

To sum up, nowadays the systems in New Zealand, Sweden, Finland and the Netherlands, and in the UK, include informal procedures, legal and political cultures and traditions which enable their constitutional arrangements to function reasonably well and generally without discriminating against parties and classes of people – without judicial strike down powers.

II Countries in which the courts may disapply or strike down legislation: the case of the USA

As is well known doctrines of parliamentary sovereignty in the specific sense that the courts will apply Acts passed by the Parliament regardless of their wisdom, workability or constitutionality do not apply in many countries with written and entrenched constitutions: the Constitution itself may contain clauses which limit the legislator’s power to make certain laws, for instance laws which interfere with federal principles or constitutionally protected human rights, or the independence of the judiciary either forever (eternity clauses, as in the German Basic Law) or unless and until the text of the Constitution is amended in accordance with special procedures such as two thirds majorities in the legislature and assent by three quarters of the states (as in the USA), referendums (as in Switzerland) and so on. And in those countries the courts – either all courts, or a Constitutional or Supreme Court – may disapply (in a concrete case) or strike down (for universal effect) legislation passed by the legislator/Parliament which breaches the Constitution: the USA and Germany are well known examples of countries in which a strike down power exists, but this is the case in very many liberal democracies.

The USA

The USA is an interesting example of how a system based on the common law has evolved differently from that of New Zealand and the UK and its Northern European neighbours. The USA was formed in a revolution and rejected the hereditary monarchy; it introduced instead an elected, rather monarchical, Presidency many of whose powers are very broad and ill-defined in the Constitution, legally controlled to an extent by Congress and by judicial review by the Supreme Court – but not, politically, by conventions. Other presidential powers are so constrained by Congress, in which the President may not have a majority, that it becomes almost impossible for even the most basic new laws to be passed without protracted political wrangling.

Why is this not the case in the UK – and in New Zealand and Canada and other Commonwealth nations? (s ee for instance T. Kahana ‘Canada’, M. P. Singh ‘India’, and P. Rishworth ‘New Zealand’ in Oliver and Fusaro, eds, above). In these countries conventions have evolved over time to deal with the fact that the Crown was not subject to judicial review – individual ministerial responsibility to Parliament being the most significant of these conventions. No such evolution took place in the USA because, the system being presidential rather than parliamentary, no confidence relationship exists between the President and Congress, and because all the ground rules are assumed to be contained in the Constitution and the decisions of the Supreme Court: in this respect the USA is a highly positivist system. The fact that the USA took a different and ‘non-conventional’ route from that taken by the UK and many Commonwealth countries and many other constitutional monarchies may go some way to account for the development of constitutional judicial review in the USA and in other states with executive presidencies, and for its absence in the UK and its legally related cousins.

The positivist approach and the absence of political conventions that constrain the exercise of executive power may also account for the fact that neither party political nor constitutional politics in the USA are consensual: the Constitution itself has been subject to political manipulation, the appointments to the Supreme Court have become politicised, and many executive and Supreme Court decisions on constitutional issues are wide open to allegations of political partisanship. Given that the United States Supreme Court’s constitutional judicial review jurisdiction is commonly looked to as an example to be followed by the UK, we should bear in mind that America is very different from the UK in many respects. It is not a parliamentary system. It is federal while the UK is a union state:  it is essential in a federation that the states are judicially protected against encroachment on their powers by the federal institutions. By contrast the devolution arrangements in the UK specifically preserve the UK Parliament’s sovereignty. America’s political culture is even more aggressive than that of the UK and far less civil in its political and legal affairs: incivility is recognised as a problem in the USA (see for instance Susan Herbst, Rude Democracy: Civility and Incivility in American Politics,  Philadelphia, Temple University Press, 2010; Dr Leslie Gaines-Ross ‘Incivility is harming America’s reputation’ at http://reputationxchange.com/2011/06/21/incivility-is-harming-americas-reputation/) whereas it is not – so far – seen to be a real problem in UK politics and legal practice.

The US Supreme Court has of course a positive record in relation to the Constitution, in particular human rights, in some areas, including the desegregation of schools (Brown v Board of Education 347 US 483 (1954)), and abortion (Roe v Wade 410 US 113 (1973). American arrangements are not, however, by any means watertight guarantees of human rights or good government (see generally T. Campbell, K.D. Ewing and A. Tomkins The Legal Protection of Human Rights: Sceptical Essays, above), and this should be borne in mind by those arguing for the adoption of constitutional review in the UK. No system is watertight. The USA Constitution and the Supreme Court’s role in interpreting and upholding the Constitution, and the political and public cultures there have not prevented the following:

a)     Slavery (abolished by the Thirteenth Amendment, 1865; compare the ending of slavery throughout the British Empire by Act of Parliament in 1833, and its ending at common law in Somersett v Steuart (1772) 20 St Tr 1 (England) and Knight v Wedderburn  (1778) Moor 14545 (Scotland)).

b)    Racial segregation (upheld by the Supreme Court  in Plessy v Ferguson  163 US 537 (1896), but later declared unconstitutional by the Supreme Court in Brown v Board of Education 347 US 483 (1954); the move to constitutionally required integration came with the Supreme Court decision in Green v School Board of New Kent County  391 US 430 (1968)).

c)     Discrimination (phased out in a series of Civil Rights Acts in 1964, 1965 and 1968).

d)    The denial of voting rights to slaves (ended by the Fifteenth Amendment, 1870, which guaranteed the right to vote without regard to race) and women (the Nineteenth Amendment, 1920, completed the extension of the franchise to women, providing that the right to vote could not be denied ‘on account of sex’).

e)     Denial of many labour rights (Lochner v New York 198 US45 (1905)).

f)     Prohibition (established by the Eighteenth Amendment in 1920, ended by the Twenty First Amendment in 1933).

g)     The race based gerrymandering of district boundaries (found to be unconstitutional by the Supreme Court in Gomillion v Lightfoot 364 US 339 (1960); see also Miller v Johnson 515 US 900 (1995) and Hunt v Cromartie 532 US 234 (2001). Partisan gerrymandering continues).

h)    The widespread use of the death penalty,

i)      The upholding of unfair campaign financing practices (Buckley v Valeo 424 US 1 (1976); Citizens United v Federal Election Commission 558 U.S. 310 (2010)).

j)      Resolution by the top court of a major presidential election dispute in favour of the candidate who received fewer votes than his opponent, reinforcing the incentives for a President to pack the Supreme Court with sympathetic judges (Bush v Gore 531 US 98 (2000)).

k)    Detention of suspects without trial off-shore for lengthy periods.

Such problems should be borne in mind by those encouraging the UK and its courts to adopt US style judicial review, especially if they are encouraged to do so unilaterally and without a mandate in the form of legislation passed by Parliament or the adoption of a written constitution for the UK. A move to judicial review of legislation in the UK could well undermine the positive pro-constitutionalism, non-partisan aspects of the political and governmental culture.

III Concluding remarks

Of course other countries with entrenched written constitutions and Constitutional or Supreme Courts exercising judicial review of Acts may have different experiences of the workings of their arrangements. Such a system works well in Germany, for instance. But each has its own history and political and legal cultures. These should not be overlooked when fundamental changes to the British arrangements by virtue of unilateral and thus irreversible assumption of a strike down power by the courts is contemplated or argued for. Hints by some of the judges in Jackson v. Attorney General ([2006] 1 AC 262) to the effect that the courts may exercise a reserve power to refuse to give effect to a provision in an Act that was contrary to the rule of law should ring alarm bells. If the UK were to adopt an entrenched written constitution providing for a Supreme or Constitutional Court with strike down powers the controversies about such powers would not go away. But at least the Court could point to the Constitution as granting it that power. Our current courts cannot point to any such legitimating source: they should not assume such a power.

Dawn Oliver is Emeritus Professor of Constitutional Law at University College London. 

 Suggested citation: D. Oliver, ‘Parliamentary Sovereignty in Comparative Perspective’ UK Const. L. Blog (2nd April 2013) (available at http://ukconstitutionallaw.org)

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