Monthly Archives: May 2013

Noreen O’Meara: Reforming the European Court of Human Rights through Dialogue? Progress on Protocols 15 and 16 ECHR

noreenMuch progress has been made following the agreement of the Brighton Declaration on reforms to the working practices of the European Court of Human Rights (ECtHR).  The Brighton Ministerial Conference in April 2012 prompted renewed reflections on the role and legitimacy of the ECtHR itself.  In the UK, the timing of the Conference coincided with highly politicised debate over Strasbourg’s prisoner-voting case law and the sanctity of subsidiarity; debate which tended to overshadow practical concerns about the ECtHR’s capacity to exercise its constitutional and adjudicatory functions.  One year on, this post provides an update on progress made pursuant to the Brighton Declaration with a particular focus on proposals to extend the Court’s advisory jurisdiction under draft Protocol 16 ECHR.

Protocol 15 ECHR: Practical Solutions?

While the docket of the ECtHR has begun to fall over the past year (having peaked at approximately 159,000 pending cases in early 2012), there is no shortage of applications.  Strategies have been adopted in recent years to alleviate the Court’s caseload under Protocol 14 ECHR and via changes to the Court’s working methods.  The increased use of the single-judge procedure, for example, and the increased competences provided to three-judge committees are changes which seek to impact on the volume of manifestly inadmissible or repetitive cases.  The corollary increase in power accorded to the Court’s Registry (which plays a vital but powerful role in filtering out apparently unmeritorious cases en masse) merits further scrutiny.  The significant delays involved in introducing reforms (Protocol 14 ECHR remained open for signature for six years before its entry into force in June 2010) are partly to blame for the slow progress in this area.  It will take more time for these changes to radically impact on the Court’s caseload, which remains unsustainable.

Many of the practical changes suggested in the Brighton Declaration were relatively unambitious.  Protocol 15 ECHR, adopted by the Committee of Ministers of the Council of Europe on 16 May 2013, comprises a collection of reforms deriving from the Brighton negotiations.  The most eye-catching of these is the reduction of the time-limit to apply to the ECtHR under Article 35(1) ECHR from six months to four.  This move was supported by the Court in its Preliminary Opinion pre-Brighton, which indicated that the Court was open to a significant reduction to the time-limit.  Protocol 15 ECHR also provides for references to subsidiarity and margin of appreciation to be added to the preamble to the Convention.  The new recital reads: ‘Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention’.  As noted above, debate on the principle of subsidiarity and the doctrine of the margin of appreciation was a feature in the lead-up to the Brighton Conference.  While the addition of a new recital clearly stems from the agreement at Brighton, and will provide a further point of reference for the Court, it is (in my view) hardly likely to make a meaningful substantive impact on the Court’s adjudication, in practice.

Other procedural aspects covered by Protocol 15 ECHR include an adjustment to the ‘significant disadvantage’ criterion, which was a key concern for NGOs at the Brighton Conference.  The Protocol rectifies an apparent anomaly introduced by Protocol 14 ECHR by deleting the words ‘and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal’ from Article 35(3)(b) ECHR.  This adjustment will widen the Court’s scope to reject applications.  Furthermore, parties will no longer be able to object to the relinquishment of jurisdiction over a case from the Chamber to the Grand Chamber under Article 30 ECHR.  This innovation is welcome as a streamlining measure – indeed, para 25(d) of the Brighton Declaration encouraged States Parties to refrain from raising objections to the relinquishment of jurisdiction pending the adoption of Protocol 15 ECHR.  Finally, in a measure which may enhance the perceived independence of judges and reduce turnover of the Court’s membership, the Protocol scraps the current compulsory retirement age (70) and introduces a requirement that candidates for judicial office must less than 65 years of age when their nominations are received by the Parliamentary Assembly.  This reform will only apply to elections taking place after the entry into force of Protocol 15 ECHR.  As ECtHR judges are elected to serve a nine-year term, this measure effectively raises the maximum retirement age to 74.  Food for thought for any states reviewing rules on retirement ages for national judges…

Draft Optional Protocol 16 ECHR: Extending the Court’s Advisory Jurisdiction

The proposal to extend the ECtHR’s limited advisory jurisdiction powers to enable highest national courts to seek advisory opinions is in the process of being agreed via Draft Protocol 16 ECHR.  Whilst this initiative was tabled at the Brighton Conference, it had been mooted and discussed in Council of Europe (CoE) circles with increasing frequency since the Wise Persons’ report in 2006.  Indeed, the roots of this initiative can be traced back decades to the adoption of Protocol 2 ECHR.  This proposal gained sufficient support to be included in the Brighton Declaration and has progressed through the drafting stages.  The resulting draft optional Protocol is currently being considered by the Committee of Ministers, which will take account of the ECtHR’s Opinion on Draft Protocol 16 (adopted by the plenary court on 6 May 2013), and the Parliamentary Assembly’s Opinion (anticipated at the end of June 2013 – draft version adopted on 27 May 2013) when deciding whether to adopt the draft Protocol.

Characterized as ‘the protocol of dialogue’ by Judge Spielmann, Draft Protocol 16 ECHR permits ‘highest national courts and tribunals’ to request non-binding advisory opinions on ‘questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the Protocols thereto’ (Article 1(1)).  Such questions should arise in concrete cases, avoiding abstract review (Article 1(2)) – the Court’s latest Opinion emphasising the absence of any role for the ECtHR in reviewing facts or adjudicating on national proceedings (at para 8).  Highest national courts and tribunals competent to request advisory opinions should be nominated by Contracting Parties, with the surprisingly flexible gloss that such nominations may be changed ‘at any later date’ (Article 10).  The admissibility of requests and delivery of opinions would be a task undertaken exclusively by the Grand Chamber of the Court: admissibility handled by a 5-judge panel, the delivery of opinions by the Grand Chamber itself (Article 2(1)-(2)).  After disagreement on the question of whether reasons for declining to deliver advisory opinions (evident in the Court’s Reflection Paper (para 21) and on the part of the drafting group), the Protocol provides that decisions declining requests for advisory opinions should be motivated with reasons (Article 2(1)).  It would have been odd for a Protocol aimed at enhancing dialogue between courts not to require the ECtHR to provide specific reasons to requesting courts.  The Court’s Opinion (at para 9) suggests that it has now been persuaded by the benefits of this approach, in the interests of promoting ‘constructive dialogue’ (echoing Lord Neuberger’s phrase in Pinnock).  Such reasons will, the Court observes ‘normally not be extensive’.

Assuming that this proposal will be adopted (a politically unsafe assumption, but for the purposes of this post a convenient one) its impact and reach will be limited by its adoption via an Optional Protocol.  Draft Protocol 16 ECHR will enter into force after ratification by 10 Contracting Parties (Article 8(1)).  The Court has consistently supported the optional nature of the proposed procedure.  Without a potentially long wait for ratifications by states supporting this initiative, this may offer scope for interesting early opinions on aspects of the Convention and its Protocols which are of greater (substantive) interest than opinions deliverable under the current restrictive regime (Article 47 ECHR).  The early opinions sought by highest national courts pursuant to the Court’s expanded jurisdiction could prove to be a good indicator of what national courts perceive as being particularly problematic issues.  The submission of questions relating to jurisdictional issues, apparent inconsistencies in Strasbourg jurisprudence, or alleged restrictive approaches to the margin of appreciation doctrine could (hypothetically) emerge as questions which are the subject of advisory opinions, as well as more obvious questions relating to the compatibility of national law with the Convention.  Early experiences with this procedure could inspire or dissuade further Contracting Parties in ratifying the Protocol, and impact on nominated courts’ preparedness to engage with it.

There is much to be said for designing a system which actively reinforces dialogue between the ECtHR and highest national courts, facilitating sound interpretation and application of Convention rights at national level.  However, aspirations for this procedure as a ‘platform for dialogue’ which will additionally impact on the Court’s voluminous docket seem utopian.  A reduction in the Court’s docket of pending contentious cases will not materialise in the long-term unless serious consideration is given to the Grand Chamber’s capacity to handle this procedure.  There is an obvious risk that it could generate more litigation without achieving the desired knock-on effects of reducing contentious cases.  Moreover, the scope for overlap between the Court’s advisory jurisdiction and its contentious case law is real (were the delivery of an opinion to trigger, rather than prevent, applications).  Though the Court ‘endeavours to speak with one voice’ when delivering an advisory opinion (ECtHR Opinion, para 11), the scope for the delivery of separate opinions provided by Article 4(2) could contribute to uncertainty and lead to further applications. The need for expeditious delivery of advisory opinions, as accepted by the ECtHR in its Opinion (para 13), whilst at the same time avoiding delays to pending contentious cases could be a big ask. The Grand Chamber rarely delivers more than two-dozen cases per year: the last thing it needs is more.

Though the Court’s attitude towards extending advisory jurisdiction appeared somewhat muted in its Preliminary Opinion, the latest Opinion fully subscribes to the Protocol’s aims.  Political support for this kind of reform has been patchy over the years; CoE reports and proceedings have variously recorded states’ support and opposition for this proposal.  It remains to be seen whether the Committee of Ministers approves Draft Protocol 16 by consensus, or whether a more complex vote is needed.  If Protocol 16 ECHR is approved, the UK, in its traditional schizophrenic approach to this issue – supportive of reform, but sceptical of actually being involved – is not expected to be at the front of the queue to ratify.  The UK Supreme Court may be shielded from engaging with this procedure for some time yet.

A year ago I viewed the Brighton Declaration with a mix of relief and concern.  The final Declaration succeeded at neutralising the more political features of earlier draft versions, but it did so without proposing radical, efficient measures to speed up the delivery of justice.  The fundamental appeal of an initiative such as the extension of advisory jurisdiction under Protocol 16 ECHR will prove hollow if it fails to meet its objectives: promoting dialogue on one hand, whilst over-burdening the Grand Chamber and potentially lengthening the adjudicatory time for other contentious cases.  For as long as the ECHR system views the right of individual petition as something too precious to erode – balancing constitutionalist and adjudicatory roles as if on a tightrope – it seems idealistic reforms will continue to influence the kind of Court it strives to be.

[Extended analysis of draft Protocol 16 ECHR is provided in K. Dzehtsiarou and N. O’Meara ‘Advisory Jurisdiction and the European Court of Human Rights: A Magic Bullet for Dialogue and Docket-Control?’ Legal Studies (forthcoming, 2014).]

Noreen O’Meara is a Lecturer in Law at the University of Surrey

Suggested citation: N. O’Meara, ‘Reforming the European Court of Human Rights through Dialogue?  Progress on Protocols 15 and 16 ECHR’  UK Const. L. Blog (31st May 2013) (available at http://ukconstitutionallaw.org).

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Derek O’Brien: The Basic Structure Doctrine and the Courts of the Commonwealth Caribbean

derek-obrien-33The basic structure doctrine, as first expounded by the Indian Supreme Court in the early 1970s in Kesavanand Bharati v Kerala (A.I.R. 1973 SC 1461), asserts that the law-making powers of a legislature are not unlimited in as much as they do not extend to altering the ‘basic structure’ of the constitution. Some 40 years later the same doctrine has been invoked in two cases by the Supreme Court of Belize to strike down amendments to the Constitution of Belize. In both cases the legislation amending the Constitution had secured the special majority in the House of Representatives required by the Constitution, but was nevertheless struck down by the Supreme Court on the grounds that the legislation violated the basic structure of the Belize Constitution. The cases are of interest not only because they are the first, and so far the only, examples of the basic structure doctrine being invoked by a Commonwealth Caribbean court, but also because they offer a valuable insight into how a dispute between the courts and the executive with regard to the implied limits on a legislature’s law-making powers might play out.

In the first case, Bowen v Attorney General BZ 2009 SC 2, a group of landowners sought to challenge the constitutionality of the Belize Constitution (Sixth Amendment) Bill 2008 (the Sixth Amendment). This was intended to enable the Government to exploit the recent discovery of oil in the country. Clause 2 of the Sixth Amendment thus sought to disapply the protection afforded by s. 17(1) of the Constitution to the owners of :

‘petroleum minerals and accompanying substances, in whatever physical state located on or under the territory of Belize…the entire property and control over which are exclusively vested, and shall be deemed always to have been so vested, in the Government of Belize.’

The purported effect of the legislation would thus have been to deny to the owners of any such interests in land the right to apply to the courts for compensation in the event of being arbitrarily deprived of such interests by the State.

Lawyers for the Attorney General argued that since the Sixth Amendment had been approved by the special three quarters majority required by s.69 of the Constitution there could be no challenge to its constitutionality. Chief Justice Conteh, however, disagreed. In his view the law-making powers of the Belizean Parliament are not unlimited in as much as the Belizean Parliament cannot ‘legitimately’ make laws that are contrary to the ‘basic structure’ of the Constitution itself. In the Chief Justice’s view, the basic structure comprised not only the fundamental rights guaranteed by Chapter II of the Constitution, but also the principles, ideas, beliefs and desires of the people of Belize as enshrined in the Preamble of the Constitution, which include, among other things, respect for the rule of law and the right of the individual to the ownership of private property. The Chief Justice also had regard to the principle of the separation of powers, which had previously been recognised by the Judicial Committee of the Privy Council (JCPC) into be a basic feature of the structure of the Westminster type Constitutions adopted by Commonwealth Caribbean countries upon independence (Hinds v The Queen [1977] AC 195) . This principle would be violated if the citizens of Belize were to be denied access to the courts for compensation for the arbitrary derivation of their property by the State.

But what about the approval of the legislation by a special majority of the National Assembly? Was this to count for nothing? In the Chief Justice’s view, s.69 was a mere ‘manner and form’ requirement, no more than a ‘procedural handbook’[101], and was certainly not determinative of the constitutionality of legislation enacted by Parliament. Quite apart from the formal procedures laid down by s.69, any prospective amendment of the Constitution had to conform to the Constitution’s normative requirements as captured by section 68, which provides that all laws enacted by Parliament must be ‘subject to the Constitution’[105] – [107]. Any other view would entail subordinating the supremacy of the constitution in favour of parliamentary supremacy, for once the required majority for an amendment is obtained then absolutely no constitutional provision would be beyond alteration or revocation [120].

Following the judgment in Bowen, the Government amended clause 2 of the Sixth Amendment to provide that nothing in the amended s. 17 would affect the rights of the owner of any private land beneath which any petroleum deposits are located to receive royalties from the Government (For an account of the fall out from the ‘Bowen’ litigation see Prime Minister Belize v Vellos [2010] UKPC 7).  As we shall see, however, this did not mean that the Government was prepared to accept the limitations placed on the Belizean Parliament’s law-making powers by the Supreme Court in Bowen.

In the second case, British Caribbean Bank Ltd v AG Belize Claim No. 597 of 2011, the applicant had originally challenged the constitutionality of the Belize Telecommunications (Amendment) Act 2009 (TCA 2009), the purpose of which had been to enable the Government compulsorily to acquire the properties, rights and interests held by the applicants in Belize Telemedia Ltd, a major provider of telecommunications services in Belize. Though the challenge to the constitutionality of the legislation had been dismissed at first instance it had been upheld by the Court of Appeal on the grounds, inter alia, that the TCA 2009 was contrary to the right to property under s.17(1) of the Constitution in so far as it did not prescribe the principles on which reasonable compensation was to be paid for the acquisition of the applicant’s property within a reasonable time.

In response to the Court of Appeal’s judgment the Government secured the enactment of the Belize Telecommunications (Amendment) Act 2011 (TCA 2011), which sought to address some of the problems with the TCA 2009 that had been identified by the Court of Appeal.  At the same time, and in order to put the renationalisation of the telecommunications industry beyond doubt, the Government also secured the enactment of the Belize Constitution (Eighth) Amendment Act 2011 (the Eighth Amendment). The Eighth Amendment not only sought to disapply the ‘supreme law’ clause of the Constitution to ‘a law to alter any of the provisions of this Constitution which is passed by the National Assembly in conformity with s.69 of the Constitution,’ but also expressly declared that ‘the provisions of [s.69] are all-inclusive and exhaustive and there is no other limitation, whether substantive or procedural, on the power of the National Assembly to alter this Constitution.’ As the Prime Minister frankly admitted, this was in direct response to the judgment of the Supreme Court in Bowen (See A Fiadjoe, ‘Legal Opinion on the Ninth Amendment Bill of Belize)Additionally, the Eighth Amendment added a new Part XIII to the Constitution, the effect of which was, firstly, to define the meaning of ‘public utilities;’ secondly, to vest majority ownership and control of all public utility providers in the Government; and, thirdly, by s.145(1) and (2), to declare that the Government’s acquisition of such public utilities was duly carried out for a public purpose.

A challenge to the constitutionality of the Eight Amendment was, however, upheld by the Supreme Court, which concurred with the judgment of Chief Justice Conteh in Bowen in concluding that the National Assembly is not legally authorised to make any amendment to the Constitution that would remove or destroy any of the basic structure of the Constitution of Belize [45]. Since the cumulative effect of the Eighth Amendment was to preclude the Court from determining whether the arbitrary deprivation of property by the Government was for a public purpose, the Eighth Amendment offended the principle of the separation of powers and the basic structure doctrine of the Constitution. To this extent the amendments to the Constitution were unlawful, null and void.

Though the basic structure doctrine has now been prayed in aid by the Belize Supreme Court on two occasions, it has not yet been endorsed by any higher court in the region; an appeal to the Caribbean Court of Justice against the Court of Appeal’s refusal to award consequential relief to the applicants following its original judgment in British Caribbean Bank Ltd v Belize having been stayed pending the challenge to the TCA 2011. It is, as a consequence, difficult to predict whether the basic structure doctrine is likely to be taken up by other courts in the region. Potentially, at least, it is a very interesting jurisprudential development in a region where governments seem to be increasingly willing to amend their country’s constitution with a view to depriving their courts of the right to review the constitutionality of actions of the executive when implementing the death penalty even if they violate the right not to be subject to torture or inhuman or degrading treatment or punishment and to preserve legislation which criminalises homosexuality (See, for example, Jamaican Charter of Fundamental Rights and Freedoms).

However, the basic structure doctrine represents a significant departure from over a century’s worth of jurisprudence on the powers of legislatures, like those of the Commonwealth Caribbean, which are empowered by their constitution: to ‘make laws for the peace, order and good government ’ of their country. The plenary nature of the power thus granted was recognized by the JCPC in a series of historic decisions at the close of the nineteenth century, such as Riel v The Queen (1885) 10 AppCas 675, in which Lord Halsbury rejected the contention that a statute was invalid if a court concluded that it was not calculated as a matter of fact and policy to secure ‘peace, order and good government.’ The basic structure doctrine is also very difficult to reconcile with the following dicta of Lord Diplock in Hinds:

Where…a constitution on the Westminster model represents the final step in the attainment of full independence by the peoples of a former colony or protectorate, the Constitution provides machinery whereby any its provisions, whether relating to fundamental rights and freedoms, or to the stratum of government and the allocation to its various organs of legislative, executive or judicial powers, may be altered by those peoples through their elected representatives in the Parliament acting by specific majorities, which is generally all that is required (at 214).

Judicial attitudes towards constitutional review of legislation have, however, changed dramatically since Lord Diplock’s judgment in Hinds. In addition to the further development of the basic structure doctrine by the Indian Supreme Court, the South African Constitutional Court has asserted its power to review the content of constitutional amendments if they violated certain implied limits, (Premier of Kwazuly Natal v President of South Africa CCT 36/95) and the High Court of Australia has recognized that its Parliament’s law-making powers are subject to limitations which may be implied ‘in and from the text of the Constitution’(Nationwide News Pty Ltd v Willis (1992) 108 ALR 681 at 701-722). Even in Britain, in the absence of a codified constitution, a theory of common law constitutionalism has emerged, which is reflected in the dicta of a number of their Lordships in the case of Jackson v Attorney General [2005] UKHL 56 to the effect that the British Parliament, which has traditionally been regarded as legislatively supreme, may be subject to certain implied constitutional limits. As Lord Steyn remarked:

In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the House of Lords may have to consider whether this is a constitutional fundamental which even a sovereign Parliament cannot abolish [102].

It is, of course, one thing to pronounce hypothetically on the possibility of striking down legislation which infringes an implied constitutional limit: it is quite another to do as the Supreme Court of Belize has done and to strike down legislation to amend the constitution which has the support of no less than three quarters of the National Assembly. The challenge to representative democracy by the Supreme Court in these two cases could not be clearer. It is worthwhile noting, however, that, notwithstanding the radical nature of the Supreme Court’s decision in both cases the Government has not sought to appeal against either judgment and may be assumed, therefore, to have accepted ultimately that there are, indeed, some implied limits on the legislature’s power to amend the Constitution, irrespective of the support for the legislation that the Government may have been able to garner in Parliament.

Derek O’Brien is Principal Lecturer, Law School, Oxford Brookes University.

Suggested citation: D. O’Brien, ‘The Basic Structure Doctrine and the Courts of the Commonwealth Caribbean’  UK Const. L. Blog (28th May 2013) (available at http://ukconstitutionallaw.org).

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Filed under Caribbean, Comparative law, Judicial review

Richard Ekins: Defying the law: a reply to Daly

RichardEkins_profileI’m grateful to Paul Daly for bringing to my attention the Irish High Court’s Fleming decision and the Ménard Report.  However, I think he is wrong to censure the former (at least, as harshly as he does) and to laud the latter.

Should the High Court have granted the application to order the Director of Public Prosecutions (DPP) to promulgate an offence-specific policy, with a view to providing ‘foreseeability and accessibility’?  That is, should the High Court have followed Purdy, in which the House of Lords made just such an order (in relation to a different DPP of course)?  Daly implies as much, saying that the High Court had to ‘twist away from Purdy’ and saying elsewhere that ‘the High Court wriggled out of Purdy in unconvincing fashion’.  But the decisions of the House of Lords do not bind the Irish High Court and Purdy is not at all persuasive.  No need then to wriggle out, for the decision should instead just be flatly rejected.

The House of Lords ordered the DPP to promulgate an offence-specific policy in order to guide Ms Purdy in determining whether her husband would be likely to face prosecution if he were to assist her in committing suicide, the relevant act of assistance being the act of helping her to travel to Switzerland in order to there be assisted in committing suicide.  The rationale for the Lords’ decision was that the ban on assisted suicide constituted an interference with Ms Purdy’s private life, per Art 8(1), which interference had to be in accordance with law if it was to satisfy the demands of Art 8(2).  Their Lordships held that the DPP’s code, which framed the exercise of the discretion to prosecute, formed part of the law in question.  As law-abiding persons need guidance as to the legal consequences of their actions, so Art 8(2) required the DPP issue an offence-specific policy.

However, there was never any lack of clarity in the law governing assisted suicide.  Section 2(1) of the Suicide Act 1961 unequivocally proscribed the acts in question (assisting a person to travel to a jurisdiction to commit suicide).  Contra Jeremy Waldron the proviso in s 2(4) that no prosecution was to be brought without the DPP’s consent did not entail that the ban on assisting suicide was unclear or in need of specification.  Rather, this provision, like the 130 or so other equivalent provisions found elsewhere in the law, authorised the DPP to exercise a supervisory control over which prosecutions were to be brought.  The House of Lords ordered the DPP to promulgate an offence-specific policy to help a would-be law breaker in calculating the risk of prosecution.  Thus, Purdy privileges a very odd conception of the law-abiding person.  In truth, a law-abiding person is one who does his or her duty and does not commit offences; the odds of detection and prosecution are irrelevant to him or her.  That is, citizens should do what the law says they should, rather than estimate their chances.

The legal duty was always entirely clear: do not assist suicide.  In granting the application, the court sought to help people decide whether to flout their legal duty, which aims are contrary to the rule of law.  John Finnis makes out this critique of the Purdy decision with illuminating care, first in his ‘The Lords’ Eerie Swansong: A Note on R (Purdy) v Director of Public Prosecutions’, and then in more detail (replying in part to Waldron and considering the DPP’s interim and final policy promulgated in the wake of the Purdy decision) in a paper entitled, ‘Invoking the Principle of Legality against the Rule of Law’, published in my edited collection Modern Challenges to the Rule of Law (LexisNexis, 2011) and, more accessibly, in [2010] New Zealand Law Review 601.

Prosecutorial guidelines are not a specification of the criminal law, providing that, whatever the substantive criminal law may say, some acts are not truly criminal at all.  They are guidelines for prosecutors, not for law-abiding citizens, for whom the criminal law itself is the relevant guide.  It would be unsound to move to stop a prosecution on the grounds that the prosecutor had not followed the guidelines in question; the guidelines are not a de facto defence on which to block a criminal charge.  The DPP does not flout the rule of law if he or she changes the guidelines with immediate effect, such that they apply to cases where the alleged offending predates the guidelines.  Indeed, that a person relies on guidelines to flout the criminal law is itself a reason to prosecute, for the act would involve brazen defiance of – by virtue of calculating disdain for – the criminal law.  And for this reason, if ordered to promulgate offence-specific guidelines the DPP should aim to reserve the option to prosecute any offence, such that the guidelines do not encourage law-breaking.

What of the Ménard Report?  As Daly outlines it, the report’s recommendation seems to me to defy federal criminal law and to flout the constitutionally mandated separation of powers.  I make no prediction as to whether the stratagem would succeed, but take Daly’s own scepticism about its prospects to be telling.  The stratagem should fail because it is flatly unconstitutional and contrary to the rule of law.  It remains somewhat unclear then why Daly lauds the report’s approach, in contrast to the Irish High Court’s approach (refusing to order the DPP to undermine the criminal law).  The reason seems to be that it is ‘the only means to give effect to the desire of the population to permit assisted suicide.’  However, the people of Quebec are not entitled to permit assisted suicide.  The constitution makes the Parliament of the people of Canada as a whole responsible for decision on point.

The merits of assisting suicide aside, which I think irrelevant to the present discussion, there seems much to commend the Irish High Court’s refusal to be party to an effort to undermine the rule of law, and little to be said for the Ménard Report’s apparent attempt to flout the constitution of Canada and federal criminal law.

Richard Ekins is a Fellow of St John’s College, Oxford.

Suggested citation: R. Ekins ‘Defying the law: a reply to Daly’ UK Const. L. Blog (23rd May 2013) (available at http://ukconstitutionallaw.org)

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Dorota Leczykiewicz: Melloni and the future of constitutional conflict in the EU

leczykiewicz_dorotaConstitutional conflict is a leitmotif of the relationship between EU law and national law. Courts of EU Member States are under a dual obligation of loyalty. On the one hand, they need to apply and respect their own laws, but on the other, they also need to ensure effectiveness of norms of the EU legal order. In the event of conflict, the principle of supremacy of Union law tells them to disapply conflicting national rules. Member States’ courts to a large extent accept that obligation, although they usually exclude from its ambit conflicts between EU law and state constitutions. For this reason, the best tactic for the Court of Justice of the EU is to avoid situations where EU law would require from national courts to act in violation of the state constitution. The Court of Justice has developed various techniques to deal with such instances of potential constitutional conflict. The controversial issue may be brought outside the scope of EU law (Grogan), EU law may be recognised to protect the same constitutional right and to the same far-reaching extent (Omega Spielhallen), or the principle of respect for national identity, as laid down by Article 4(2) of the Treaty on the European Union, may be used to allow national norms to remain applicable even when they undermine effectiveness of an EU norm (as I discuss here). In a recent judgment in the Melloni case(Case C-399/11, Judgment of 26 February 2013) the Grand Chamber of the Court of Justice of the EU decided not to use any of these techniques. Instead an EU Framework Decision was held to prevail over the Spanish Constitution.

Mr Melloni, while present in Spain, was facing trial for a bankruptcy fraud before an Italian court. A Spanish court authorised his extradition to Italy but in the same time released him on bail. Mr Melloni fled and never appeared before the Italian court. The trial took place in his absence, although in the presence of lawyers that Mr Melloni had himself appointed. Mr Melloni was convicted. The decision was upheld by all levels of Italian judiciary. Some years later Mr Melloni was arrested by the Spanish police. In 2008 a European Arrest Warrant was issued by the Italian court requesting Spanish authorities to surrender Mr Melloni. The Spanish court authorised the surrender, after which Mr Melloni lodged a petition for a constitutional protection before the Spanish Constitutional Court. He claimed that if he was surrendered to Italy Article 24(2) of the Spanish Constitution guaranteeing the right to a fair trial would be violated. The right to a fair trial, as protected by the Spanish Constitution, entailed that he should not be surrendered without Spain imposing on Italy a condition that he would be able to challenge the result of his Italian trial, a possibility which did not exist under Italian law.

The right to a fair trial

Melloni may be read as a case concerning merely the scope of the right to a fair trial. Should Mr Melloni have a possibility to ask for a retrial in Italy? Does the fact that he chose his lawyers and was represented by them during a trial from which he was absent justify his surrender to Italy to execute a custodial sentence even if he was unable to ask for a retrial? The European Arrest Warrant (EAW) Framework Decision (2002/584 as amended by Framework Decision 2009/299), on the basis of which Mr Melloni’s surrender would take place, does offer some protection to the right to a fair trial. It provides that the executing judicial authority may refuse to execute the European arrest warrant issued for the purpose of executing a custodial sentence if the convicted person did not appear in person at the trial. This discretion is however excluded in three sets of circumstances, including when the person was summoned in due time and informed that a decision might be handed down if she did not appear for the trial, or she had given a mandate to a legal counsellor to defend her at the trial and was so defended. In these circumstances, the national court is under an obligation to execute the European arrest warrant and is not allowed to impose any additional conditions. In comparison, the Spanish Constitutional Court interpreted Article 24(2) of the Spanish Constitution to mean that extradition to countries which allow convictions in absentia without making surrender conditional upon the convicted party being able to challenge the conviction would be ‘an ‘indirect’ infringement of the requirements deriving from the right to a fair trial’. It follows that the protection offered by the Spanish Constitution is broader than that offered by the EAW Framework Decision. It is also worth noting that the Spanish Constitutional Court made no attempt to interpret Article 24(2) restrictively so as to avoid conflict with EU law. The direct incompatibility between the Spanish Constitution, as interpreted by the Spanish Constitutional Court, and the EAW Framework Decision meant that Spanish authorities had no way of reconciling their obligations stemming from EU law, on the one hand, and national law, on the other. The limits of the principle of EU law supremacy were to be tested once again.

Supremacy and fundamental rights, yet again…

The conflict between the EAW Framework Decision and the Spanish Constitution led the Spanish Constitutional Court to ask the Court of Justice of the EU for interpretation of obligations of national courts under EU law. Three points should be made here. First, the EAW Framework Decision harmonises exhaustively the grounds on the basis of which recognition of decisions of courts of other Member States following a trial at which the person concerned did not appear in person may be refused. Secondly, the right to a fair trial is in the EU legal order a ‘fundamental right’, now guaranteed also by the Charter of Fundamental Rights (Article 47). Thirdly, the Charter includes a provision according to which ‘Nothing in the Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law … and by the Member States’ constitutions’ (Article 53).

The Court’s judgment in Melloni is clearly motivated by the desire to protect the EAW regime and its effectiveness. The Charter right to a fair trial is interpreted narrowly to ensure that the regime is compatible with it. The objective of the EAW Framework Decision, which is the improvement of mutual recognition of judicial decisions, is held to justify the restrictions imposed on national courts’ competence to refuse the execution of a European arrest warrant in a situation where the person being surrendered is unable to apply for a retrial. Yet, this conclusion is reached by the Court without any proportionality review, which raises questions as to compatibility of the Court’s reasoning with Article 52(1) of the Charter. The standard of protection of the Charter right to a fair trial is in this context the same as that defined in the Framework Decision. National constitutions are denied any role in the interpretation of the Charter right. According to the Court, national authorities and courts can apply national standards of protection of fundamental rights, a possibility envisaged by Article 53 of the Charter, only is so far as ‘the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of EU law [were] not thereby compromised’. This means that EU secondary law prevails over state constitutions. Whenever application of national constitutional standards would affect effectiveness of an EU act national courts have to refrain from using them. Member States’ courts are effectively prohibited from ‘casting doubt on the uniformity of the standard of protection of fundamental rights as defined in that framework decision’.

The future of constitutional conflict

The significance of the Melloni judgment should not be underestimated. While its immediate effects could be restricted to the particular EU legislative act in question, the judgment sends a very worrying message about the way in which the Court of Justice sees its role as a constitutional review court. The starting assumption of the Court is not only that the EU legislator has respected fundamental rights but also that the scope of protection of fundamental rights, including those recognised in the Charter, should be determined on the basis of an act of secondary law. If this method was applied more broadly, an EU act could never be found invalid for breaching fundamental rights. The judgment in Melloni is also a step towards the centralisation of standards of fundamental rights protection in the EU, at least in areas where Member States’ authorities are implementing EU acts. When such assiduous centralisation leads to the lowering of protection which national courts are allowed to offer further instances of constitutional conflict are only a matter of time.

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

Suggested citation:  D. Leczykiewicz: Melloni and the future of constitutional conflict in the EU U.K. Const. L. Blog (22nd May 2013) (available at http://ukconstitutionallaw.org).

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Alison L. Young: Fact/Law – a Flawed Distinction?

young_alison-l2If prizes were awarded to ‘Distinctions in English law’, then a good contender for the ‘lifetime achievement’ award would be the distinction between ‘law’ and ‘fact’. Whilst adventurers have their Swiss Army knife, and the Dr has his sonic screwdriver, lawyers have the multi-purpose malleable ‘law/fact’ distinction which is just as capable of opening or closing avenues of review, or providing a deus ex machina ‘get out of jail free’ card – or so a perusal of two recent decisions of the Supreme Court might have us believe.

On the 13th March, the Supreme Court delivered its judgment in HMRC v Aimia Coalition Loyalty Limited [2013] UKSC 15 concerning VAT payments on the nectar card reward scheme. The nectar card reward scheme relied on a series of transactions. If company B wished to join the scheme, it would contract with Aimia to supply points to customers, C, buying goods and services from B. Aimia would agree to redeem these points to C. In order to do so, Aimia contracted with other companies supplying goods and services, D, to pay for the goods and services supplied by D to C when C used their points rewarded to them from buying goods from B. B would pay Aimia for the points it issued and Aimia would pay VAT on this transaction. In addition, Aimia pays D an amount per point to enable D to supply the goods and services to C using their points. VAT would be paid on these transactions too. Just to confuse matters further, in practice customers would often redeem their points with the company that had supplied the points in the first place – in other words B and D were often the same person, though need not be. The question arose as to whether Aimia could deduct the VAT it paid on transactions with D from the VAT due from transactions with B.

The issue in Jones (by Caldwell) v First Tier Tribunal [2013] UKSC 19, decided by the Supreme Court on 17th April, concerned a tragedy far-removed from the complex tax arrangements of loyalty schemes. Jones was seriously injured when the vehicle he was driving was involved in a collision with an articulated lorry. The collision was caused when a man, H, ran out from near a car parked on the hard shoulder into the path of the lorry. The lorry driver braked, but was unable to avoid hitting and killing H. In the process of braking hard, the rear end of the lorry had swung into the path of Mr Jones’s vehicle. Acting through his mother, Mr Jones applied for compensation from the Criminal Injuries Compensation Authority (CICA). Compensation would only be due if the injuries suffered by Mr Jones were due to a ‘crime of violence’. If H had committed a ‘crime of violence’ then Mr Jones would be able to obtain compensation from the CICA. If not, then tragic and devastating as Mr Jones’s situation would remain, he would not be able to obtain compensation from the CICA.

In both cases the issue on which the case turned can be expressed fairly easily. Is Aimia paying D for services received from D to Aimia, and can therefore deduct this VAT, or is Aimia merely a third party to the contract between D and C and so cannot deduct the VAT? Was Mr Jones seriously injured because H had committed a crime of violence when he ran out on to the road? In both cases, whether this issue, or elements contributing to its determination, was on of law or ‘law’ or ‘fact’ would also be determinative. In Aimia the VAT implications of the nectar card loyalty scheme had a long history. The case had been referred to the Court of Justice of the European Union (CJEU) under Article 267 (TFEU) by the House of Lords in 2008. When hearing the reference, the CJEU had joined the case with another that also concerned VAT issues from loyalty card schemes – Baxi v HMRC. The CJEU concluded that payments from companies like Aimia, who facilitated loyalty schemes, were consideration payments as regards contracts to which they were third parties and, as such, VAT could not be deducted. It would appear, therefore, that the outcome in the Supreme Court is straightforward. If the CJEU concludes that Aimia cannot deduct VAT then the national court must also conclude that Aimia cannot deduct the VAT, after all, in the words of Lord Carnwath in Aimia, ‘Luxembourg has spoken’ [2013] UKSC 15 [120]-[123]. However, things are not always as they seem. Lord Carnwarth was not expressing his opinion as part of the majority, but in dissent. The majority, however, did not reach their conclusion by deliberately defying the CJEU. Rather, their conclusions rested on an interpretation of the scope of their obligations to follow a preliminary ruling of the CJEU. Article 267 TFEU distributes differing tasks to domestic courts and the CJEU. Whilst the CJEU determines the issue of European Union law, it is for the domestic courts to apply this determination of the law to the facts. The majority in Aimia concluded that the ‘law’ was fairly clear and that the real issue here was how the law applied to the distinct factual arrangements in the nectar card loyalty scheme. Although the preliminary reference in Aimia was joined to that in Baxi, the majority felt that the two schemes differed on their facts. Baxi involved schemes where A contracted with B to administered loyalty schemes by B to its customers. In effect, C received points from B and redeemed them for goods and services from B, the scheme being administered by A. The nectar card scheme in Aimia was different. C received points from B and redeemed them to obtain goods and services from a range of companies, sometimes this would be B, but it need not be from B and could be from D, E, F etc. This difference in facts meant that the Supreme Court was not bound by the conclusion of the CJEU that VAT could not be deducted.

In Jones, appeals from the first tier tribunal to the upper tribunal, and from the upper tribunal to the courts, can only be for  issues of ‘law’ and not for ‘fact’ (and, post Cart, not all appeals on matters of ‘law’ from the upper tribunal will be heard by the Court of Appeal).  When determining whether H had committed a crime of violence, there was the need to determine the legal definition of a crime of violence and to determine whether the facts about H’s conduct satisfied the legal definition. When H walked into the road, leading to a chain of events that caused Mr Jones’s injuries, had he committed grievous bodily harm under section 20 of the Offences Against the Person Act 1861 and, if so, would this be a crime of violence? Problems arose as to whether H had the requisite mens rea. The Supreme Court concluded that whether section 20 of the Offences Against the Person Act 1861 was a ‘crime of violence’ was an issue of ‘law’, deciding in addition that the section 20 offence was clearly a ‘crime of violence’. Whether H had the requisite mens rea was a question of fact. Lord Hope and Lord Carnwarth, with whom the rest of the Court agreed, went further, concluding that the distinction between ‘fact’ and ‘law’, at least in these circumstances, was best understood pragmatically. For Lord Hope, ‘[a] pragmatic approach should be taken to the dividing line between law and fact, so that the expertise of tribunals at the first tier and that of the Upper Tribunal can be used to best effect. An appeal court should not venture too readily into this area by classifying issues as issues of law which are really best left for determination by the specialist appellate tribunals.’ [2013] UKSC 19 [16]. Lord Carnwarth, referring to the decisions of Lord Hoffmann in Moyna v Secretary of State for Work and Pensions [2003] UKHL 44 and Lawson v Serco [2006] UKHL 3, quoted from his own academic commentary on these judgments to conclude that ‘the division between law and fact … is not purely objective, but must take account of such factors as ‘expediency’ or ‘policy’ [2013] UKSC 19 [46]. For Lord Carnwarth, these factors of policy and expediency include ‘the utility of an appeal’, the ‘relative competencies’ of the tribunal of fact and the reviewing court and must have regard to the ‘development of the law in the particular field.’ [2013] UKSC 19 [46]. Although not wishing/needing to give a full account, it was clear that, for Lord Carnwarth, the definition of a ‘crime of violence’ was ‘a task primarily for the tribunals, not the appellate courts’ [2013] UKSC 19 [47]. For Mark Elliott, Lord Carnwarth’s approach, where an error of law is nevertheless deemed to be an error of fact in order to ensure that it is not subject to appeal, demonstrates that the distinction between law and fact, ‘appears to be positively liquified’.

However, the question remains whether it is the distinction between law and fact that is flawed, or the use to which we put the distinction. There are ‘facts’ about the nectar card scheme that, though complex, nevertheless are ‘facts’ about the series of contractual relationships underpinning the loyalty scheme. The difficulty in Aimia was in determining how the VAT Directives would apply to these facts once determined. There are ‘facts’ about H’s behaviour which, though tragic, are nevertheless ‘facts’ and whether a difference in facts was sufficient to distinguish the preliminary ruling of the CJEU on the VAT implications of loyalty schemes. The difficult in Jones was that it would not be possible to determine some of those facts – nobody could ask H about his state of mind when he took the tragic decision to walk onto a busy carriageway.  In both of these scenarios, if errors were made, logically they could only be errors as to the facts, or as to the definition of the law. To use a more simple example, if legislation enabled clothing allowances to be paid to tall public law academics, then an error would have been made if the clothing allowance was paid to the author of this blog post. This error could either be a factual error of a legal error. Either my height was measured incorrectly (maybe I learnt from my daughter and stood on tiptoe, or found a dodgy tape measure) or the legal definition of ‘tall’ applied to my correctly recoded height was wrong (how can anyone a couple of inches below average height be considered ‘tall’?).

But to recognise this is to miss the deeper issue. We are concerned about the facts of loyalty card schemes and of the scope of application of VAT Directives because we need to ascertain the amount of VAT owed by Aimia to HMRC. We want to know the facts about what happened on one tragic day because we want to know if the injuries caused to Jones were caused by a crime of violence and so should give rise to compensation from the CICA.  To answer these questions does require an assessment of facts and an ascertainment of legal definitions and errors can be made with regard to both. But nothing is ever that simple. We can define legal terms with varying levels of precision. Often our definitions will refine themselves and become more precise when ascertained against the backdrop of particular facts. I am not ‘tall’, but if for some reason public law academics tended to be shorter than other academics, such that all public law academics were below average height, maybe I would be a ‘tall’ public law academic and therefore could receive the extra clothing allowance even if our abstract refinement of ‘tall’ would not include those below average height.  The definition of ‘tall’ depends on your comparison and so may well be more contextually sensitive than the definition of a ‘crime of violence’.

It may be easy to determine whether a legal or factual error was made. In Aimia the facts about the nectar loyalty scheme were subtly different from the other loyalty schemes in Baxia. Yet the preliminary reference dealt with them in the same manner. The ‘error’, therefore, was ‘factual’. However it may be difficult to know whether the refinement of the scope of a legal definition is best understood as the determination of precision that arises from a clear understanding of the factual background, or whether this process of refining the legal definition is a process of abstract reasoning about the law. Do we determine the precise meaning of a ‘crime of violence’ by looking at the range of possible crimes that could give rise to claims before the CICA to ascertain its meaning against this factual backdrop, or do we refine its meaning by reasoning in the abstract, thinking more generally about what is meant by a ‘crime of violence’?  The nectar card loyalty scheme may be factually distinct, but is this distinction such that it is no longer covered by the law as interpreted by the CJEU?

Yet the law treats the distinction as providing simple and straight forward answers to conclusions as to the relative powers between multi-levels of tribunals and courts. The CJEU interprets the law and domestic courts apply the law to the facts. Tribunals are better at fact-finding, courts are more specialised at determining the law. Whilst this may be accurate as an assessment of whether an appeal to a court from a tribunal is better able to correct a legal or factual ‘error’, it is less accurate when assessing whether the refinement of a legal definition requires input from those with expertise in the specific factual background or those with expertise in abstract legal analysis. This suggests, in turn, that it is not the distinction that is liquefied, but its application. Whilst it may reflect assumptions as to the relative expertise of tribunals or courts to correct a factual or legal error, the assumption that the refinement of legal definitions is always or is better done through a process of abstract legal analysis fails to reflect the way in which some legal definitions can only be, or may be better refined through an analysis of the context in which they are applied. Therefore, the refinement of some legal definitions may be better performed by those with relative knowledge and expertise of this context.

Where does this leave the law/fact distinction? It is not capable of clearly pigeon-holing issues into those that should be resolved finally by the courts or by tribunals. But this does not mean that it is defunct and, for the purposes of English administrative law, should be replaced by a return to the equally malleable, though some would argue more theoretically justifiable, distinction between jurisdictional and non-jurisdictional errors. Maybe the law/fact distinction can provide a prima facie means of determining whether courts should or should not correct earlier assessments of tribunals, with expediency and pragmatic considerations applied, where necessary, to recognise areas where legal definitions require more contextual refinement which may best be performed by those with particular expertise in a specific area of the law. This in turn may mean that these issues are not corrected by the courts – either through being classified as errors of ‘facts’ that cannot be so corrected, or through maintaining their classification as errors of ‘law’ but modifying the stringency with which they are reviewed. There may also be arguments in the opposite direction, where we are concerned about a lack of independence of the original decision-maker requiring more detailed control by courts as an independent and impartial tribunal.

I would go further and argue that it is time to reassess the relationship between administrative bodies, tribunals and courts. Despite the deceptively straightforward wording and interpretation of article 267 TFEU, the inter-relationship between domestic courts and the CJEU is far from straight-forward. The complexities of this inter-relationship sometimes leads to the facilitation of dialogue and the development of complimentary principles and sometimes appears like nothing more than defiance (I’ll leave it to the reader to classify the response of the Supreme Court in Aimia to the preliminary reference of the CJEU). A re-assessment of the relative roles of tribunals and courts post the Tribunals and Courts Enforcement Act 2007 can hopefully allow for the flexibility that leads to greater co-operation, although the wording of the Act which only allows a right of appeal from the first tier tribunal to the upper tribunal, or from the upper tribunal to the Court of Appeal on a point of law may well require judicial sleights of hand to facilitate this objective.

Alison L. Young is a Fellow of Hertford College, University of Oxford.

Suggested citation: A. L. Young, ‘Fact/Law – a Flawed Distinction?’  U.K. Const. L. Blog (21st May 2013) (available at http://ukconstitutionallaw.org).

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News: CONREASON Project

As part of the Schumpeter CONREASON Project, based at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg, we are conducting an online expert survey on judicial attitudes towards European law and European integration in the European Union. The survey focuses on supreme and constitutional courts and their doctrinal response to the legal integration process. The survey targets all those who are potential experts in the EU legal integration process: academics, judges, law students, etc.

The online questionnaire takes only a few minutes to complete. You can choose on which court you wish to report and even take several surveys in case you want to report on more than one court.

To take the survey just click on the link below, which will take you to the survey page of the CONREASON Project Website:

http://www.conreasonproject.com/expert-survey.html

Please feel free to contact us (conreason@mpil.de) for questions and remarks regarding the questionnaire. Feedback is welcome.

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Paul Daly: Death, Democracy and Delegation

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Decisions on when to end one’s life are unquestionably of the greatest intimacy. Yet there is a clear public interest in ensuring that these decisions are carefully regulated to ensure the safety of the vulnerable. Accordingly, quite what legal framework should govern end-of-life-decisions — if, indeed, there should be any framework at all — is a contested question.

Recent developments in Ireland and the Canadian province of Québec offer a new angle on the question. An interesting contrast can be perceived between the decision taken by the Irish High Court in Fleming v. Ireland, [2013] IEHC 2, and the “Ménard report” commissioned by Québec’s Parliament. In Fleming, the High Court dismissed as undemocratic guidelines which would structure the discretionary power to prosecute. Whereas the Ménard report concluded that prosecutorial guidelines would be the only way to give effect to the Québec Parliament’s desire to legalize assisted suicide within defined parameters.

In Fleming, the High Court, and subsequently the Supreme Court ([2013] IESC 19), upheld the provisions of the Criminal Law (Suicide) Act, 1993 against constitutional challenge. One aspect of the case — which was not appealed to the Supreme Court — was whether the Director of Public Prosecutions could be obliged to issue guidelines explaining the factors to be taken into consideration in deciding whether or not to prosecute the offence of assisted suicide.

As I have explained elsewhere, the High Court did not follow the decision of the House of Lords in Purdy v. Director of Public Prosecutions, 2009 UKHL 45. There, the House of Lords addressed a materially identical prohibition on assisted suicide which left discretion to prosecute in the hands of the Director of Public Prosecutions. The failure to set out in published guidelines the considerations which would be weighed in the balance in deciding whether or not to prosecute was held to violate the legality principle of the European Convention on Human Rights: the necessary foreseeability and accessibility were lacking. Significant contortions were required for the High Court to twist away from Purdy and towards its ultimate (quite odd) conclusion that the Director of Public Prosecutions has no power at all to issue guidelines (a fact which doubtless came as a shock to the Director of Public Prosecutions, who issued a set of general guidelines several years ago).

More remarkable still was another conclusion: that it would be undemocratic for the Director of Public Prosecutions to issue guidelines. This conclusion rested on Article 15.2 of the Irish Constitution. As judicially interpreted, this provision has functioned as a “non-delegation” clause. Sweeping grants of discretion to administrative decision-makers are unconstitutional. Principles and policies must be specified in the governing legislation. In the High Court’s view, requiring the Director of Public Prosecutions to issue guidelines would violate the democratic principle of Article 15.2:

It seems clear to this Court that the effect of any direction requiring the Director to issue guidelines of the kind now sought by the plaintiff would infringe these basic constitutional principles. While the plaintiff asserts that she is seeking no more than a statement of factors which would influence the decision of the Director whether or not to prosecute, the reality of course is that, for her own very good reasons, she wishes to know that the Director will not in fact prosecute in her case. Whatever the stated objective of seeking guidelines may be, there can be no doubt but that the intended effect of obtaining such relief would be to permit an assisted suicide without fear of prosecution. No amount of forensic legerdemain can alter that fact. For, absent such effect, one is driven to ask what practical purpose or value lies in seeking such guidance? There is, in truth, none. It follows therefore that in this context ‘effect’ is every bit as important as ‘object’…Once guidelines may be characterised as having the effect of outruling a prosecution, they must be seen as altering the existing law and must therefore fall foul of Article 15.2 of the Constitution…

This conclusion is implausible. The High Court was presented with two options: maintain the status quo, or order guidelines. The status quo involves essentially unreviewable decisions taken behind closed doors in the office of the Director of Public Prosecutions. As a rule, reasons are not given (although a pilot project has been mooted).

Guidelines would involve (possibly) public consultation and (certainly) release to the public of the factors considered relevant in deciding to prosecute. The publication of guidelines could foment public debate. If public opinion were to pitch decisively one way or another, the Irish Parliament could always intervene to more carefully delineate the Director of Public Prosecutions’ discretion. It is very difficult to see how the status quo is more democratic than a world with guidelines. And this is quite apart from the benefits to affected individuals of increased foreseeability and accessibility.

Indeed, the High Court recognized that the Director of Public Prosecutions was bound to take some factors into account in exercising prosecutorial discretion. It suggested that the U.K. guidelines should be taken into account, as well as factors laid out by a Canadian judge. But it did not explain how taking into consideration guidelines developed in another jurisdiction and factors identified by a foreign judge would be more democratic than ordering the Director of Public Prosecutions to issue guidelines.

Of course, this was probably just about as much as the plaintiff could hope for, in the absence of an order striking down the Act altogether. Not appealing was probably prudent, even though the High Court’s reasoning was questionable.

The contrast with the Ménard report is stark. Québec operates in a different legal environment. In Canada, criminal law is the domain of the federal government and s. 241 of the Criminal Code prohibits assisted suicide. This prohibition was (narrowly) upheld by the Supreme Court of Canada in Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519. More recently, it was struck down by a British Columbia trial court (Carter v. Canada (Attorney General), 2012 BCSC 886), a decision which is under appeal and is likely to wend its way to the Supreme Court of Canada. This process could take some time, however, and the ultimate outcome is uncertain.

In the meantime, Québec is anxious to find some means of giving effect to a policy of permitting assisted suicide, within carefully defined parameters. The process that culminated in the Ménard report began in 2009. A special commission was struck and set about sounding public opinion. Its recommendations were adopted unanimously by the Québec Parliament in 2012. Subsequently, the three authors of the Ménard report were tasked with providing a legal framework in which the recommendations could be implemented.

The path taken in the Ménard report is interesting, though unlikely to survive constitutional challenge.

In the division of powers set out in Canada’s Constitution Act, 1867, criminal law falls in the domain of the federal government, but health care is indisputably a provincial concern. Accordingly, Québec could certainly pass legislation regulating end-of-life care. But in doing so, it could not impede federal criminal prohibitions. Legislation legalizing, or seeking to legalize, assisted suicide would be plainly unconstitutional.

The ingenious suggestion in the Ménard report is to capitalize on the provincial power over “administration of justice”. Although criminal offences in Canada are set out in the federal Criminal Code, provincial attorneys general are responsible for prosecution. Prosecutorial discretion is, moreover, reviewable only in very limited circumstances.

Accordingly, the Ménard report suggests (albeit without being clear on the precise means of implementation) that Québec could introduce guidelines cabining prosecutorial discretion. These would not be binding and thus would not displace the federal prohibition on assisted suicide. They would seek to regulate provincial discretion, not to undermine federal law. Something similar to the U.K. guidelines is envisaged.

The contrast with the Irish position is stark. Where the Irish High Court rejected guidelines as undemocratic, in Québec, guidelines are proposed as the only means to give effect to the desire of the population to permit assisted suicide.

That is not necessarily to say that the approach taken in the Ménard report will be successful. The precise means of implementation are left unclear by the authors, but would have to be carefully calibrated. The slightest misstep would take Québec into the exclusively federal territory of criminal law. Moreover, given the generous Canadian approach to standing, the courts are unlikely to be impressed by an argument based on the unreviewability of prosecutorial discretion. A general challenge to the existence of such guidelines, on the basis that the provincial attorney general simply had no authority to issue them, would probably receive a sympathetic hearing.

Any Québec attempt to liberalize the rules on assisted suicide is likely to run into significant constitutional difficulties. In Canada, federal law is paramount over provincial law.  Provincial laws (or actions) which frustrate the purpose of federal laws are inoperative. And of course, the very purpose of the provisions — binding or not — envisaged by the Ménard report is to frustrate the operation of the federal prohibition on assisted suicide.

Whatever its ultimate fate, the Ménard report’s orientation is preferable to that of the Irish High Court. Legislators cannot foresee every eventuality. A legitimate response is to vest discretion in administrative actors. Once this has been done, however, decision-making with a public aspect is preferable (from a democratic point of view) to decision-making behind closed doors. Moreover, published guidelines can provoke popular debate and legislative reaction, thereby playing a democracy-enhancing role. Even if the Ménard report proves legally flawed, it has highlighted the democratic potential of administrative guidelines.

Paul Daly is a member of the Faculty of Law at the Université de Montréal. He can be reached at paul.daly@umontreal.ca. He blogs at administrativelawmatters.blogspot.com.

Suggested citation: P. Daly, ‘Death, Democracy and Delegation’  U.K. Const. L. Blog (14th May 2013) (available at http://ukconstitutionallaw.org).

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