Monthly Archives: September 2013

Roger Masterman: A Tale of Competing Supremacies

rogerIn a recent interview in The Spectator, Lord Chancellor and Secretary of State for Justice, Chris Grayling MP, was given another opportunity to recite the now characteristic Tory Siren call relating to the European Convention on Human Rights and the Strasbourg court.  In the piece, Grayling bemoans the “utterly unacceptable” and “almost unlimited” ability of the European Court of Human Rights to determine “what it thinks are human rights matters” arguing that:

“We have to curtail the role of the European Court of Human Rights in the UK, get rid of and replace Labour’s Human Rights Act.  We have to make sure that there is a proper balance of rights and responsibilities in law.”

The precise means of achieving these objectives, it seems, remain works in progress (with complete withdrawal from the Convention system still one possible outcome).  But one thing seems clear; in effecting the necessary reforms the “supremacy” of the UK Supreme Court must – Grayling claims – be restored.  Grayling is recorded as having said the following:

“I want to see our Supreme Court being supreme again.  I think people want to see the Supreme Court of the United Kingdom being in the United Kingdom and not in Strasbourg.”

Though Grayling’s hyperbole is entertaining (does anyone seriously think that we are governed from Strasbourg other than after reading occasionally inaccurate reports as to the location of the Court of Justice of the European Union? (and even then?!)), it would be glib (albeit correct) to point out that the Supreme Court has never actually been “supreme”.  The UK Supreme Court is not, and nor has it ever been, a constitutional court possessing a final and definitive authority over questions of law that is binding on the other arms of government and immune from override via the ordinary legislative process.  A Lord Chancellor who holds office by virtue of the same Act (s.2, CRA 2005) which established the jurisdiction of the Supreme Court (part III, CRA 2005) should, of course, be assumed to appreciate this (though some would argue that the same assumptions could not necessarily be made in respect of other key provisions of that Act – s.1, CRA, say).

But even were the Human Rights Act done away with and the UK’s membership of the European Convention system ended, would the UK Supreme Court be rendered “supreme”?

The UK Supreme Court is at the apex of the United Kingdom’s judicial structure with general jurisdiction as the final appellate court in matters other than those falling within the remit of the High Court of Justiciary in Edinburgh.  It is “supreme” therefore in the sense that it stands at a pinnacle of the domestic judicial hierarchy and – as argued in a recent piece in Public Law ([2013] PL 800) – it exercises a significant constitutional role displaying a number of the characteristics of explicitly constitutional courts elsewhere.  But the Supreme Court’s “supremacy” needs also to be appreciated in the light of a number of other considerations.

First among these is the (competing? complementary?) supremacy of Parliament.  While we might be able to say with confidence that a Supreme Court decision in a particular area represents a definitive reading of the requirements of the law, we can also say that Supreme Court decisions – including those dealing with questions of individuals’ rights – are susceptible to changes in primary legislation.  As Lord Bingham noted in the House of Lords in Re McFarland:

“Just as the courts must apply Acts of Parliament whether they approve of them or not, and give effect to lawful official decisions whether they agree with them or not, so Parliament and the executive must respect judicial decisions whether they approve of them or not, unless and until they are set aside.”

In reality there is some circularity to claims of supremacy made on behalf of courts or Parliament.  Neither can realistically be asserted without qualification of some sort, but the bare fact is the effects of judicial decisions of the apex court (eg YL v Birmingham City Council) can be amended by primary legislation (eg Health and Social Care Act 2008, s.145).

While the idea of the unbounded legal power associated with Parliamentary supremacy may have lost some of its lustre, it undoubtedly remains an important conditioning factor of constitutional practice for actors across the branches of government.  For many, it remains the “bedrock” of the constitution (Bingham, at [9]).  Yet – to muddy the waters further – even if we accept the legislative supremacy of Parliament we need also to be mindful that it acts as camouflage for the legal supremacy of the House of Commons over the House of Lords and the practical precedence of government business in the House of Commons.

The contest for supremacy does not end here; the Supreme Court currently operates within the context of the jurisdictions of the European Court of Human Rights and the Court of Justice of the European Union.  It is the former that has been most clearly the subject of the Conservatives’ ire in recent times, though the latter through which the Supreme Court is most clearly subordinated to an external source of law claiming supremacy over national laws.  As is now well-appreciated – particularly in the light of the decisions such as Horncastle – the Supreme Court is not obliged to give effect to decisions of the European Court of Human Rights in quite the same way as it must apply directly-effective provisions of EU law.  The supremacy “lost” to the European Court of Human Rights (decisions of which – at risk of sounding like a broken record – need only to be “taken into account”) is of a different order to the supremacy asserted by the Court of Justice of the European Union over national authorities.  It seems unusual then, that the target of Grayling’s indignation is the supposed denial of supremacy caused by the non-binding influence of decisions of the European Court of Human Rights, rather than the more realistic (though perhaps equally problematic) assertion that legal competence has been ceded in some way to the Court of Justice.  (This is not to suggest that the UK’s position within the EU is not perceived as being problematic – indeed Grayling’s Spectator interview alludes to an intended “renegotiation” of the UK’s relationship with the EU – rather that the legal competence of the Court of Justice has been less the subject of recent attack than that of the European Court of Human Rights, despite its greater coercive influence).

All things told this is a slightly long-winded way of saying three things: (i) that the so-called “supremacy” of the UK Supreme Court over questions of rights is a straw figure set up to demarcate a legal non-problem as a political battle-ground and (ii) that the establishment of a legally “supreme” UK Supreme Court would be every bit as constitutionally problematic as the apparent problem to which it is the mooted solution and (iii) that attempting to explain institutional relationships in the language of legal supremacy increasing offers little other than incoherence.

 Roger Masterman is a Professor of Law at Durham University.

 Suggested citation: R. Masterman, ‘ A Tale of Competing Supremacies’ UK Const. L. Blog (30th September 2013) (available at http://ukconstitutionallaw.org)

 

2 Comments

Filed under Human rights, Judiciary

Conference Announcement: Constitutional Law Discussion Group at Edinburgh Law School

The Constitutional Law Discussion Group (CLDG) at Edinburgh Law School aims to provide a structured forum for the discussion of topics relevant to constitutional law and theory. We hold fortnightly meetings, attended by doctoral students and staff, mainly from the law school, but also political science and other departments.

Meetings of the CLDG typically last for one hour, with the usual format a 20-minute presentation and 40 minutes of Q&A with the audience, followed by an informal reception. However, we are open to different formats (e.g. slightly longer presentations).

We wish to invite PhD students and postdoctoral scholars conducting research on constitutional law and constitutional theory to present at the CLDG next semester (January-May 2014).  The open dates (always a Tuesday, at 3pm) are:

21 January   |   4 February   |   4 March   |   18 March   |   6 May   |   20 May

Presenters are not required to circulate a paper in advance, but may do so. Please note that we ordinarily cannot cover travel or accommodation expenses for speakers.

***

Past event topics have included:

- constitutional pluralism

- the autonomy of the Basque country

- a bill of rights for Britain

- emergency and the American constitution

- the Leveson report

- Iraqi constitutionalism

- the new Basic Law of Hungary

- constitution-making in democratoc transitions

- official language and the British constitution

Presenters have included, and this year will include, a mix of doctoral students and established academics, including PhD students at Edinburgh law school and other law schools in the United Kingdom and Europe, as well as professors and lecturers at Edinburgh, and other universities in Europe, Canada, the United States, Argentina and Brazil.

If you would like to present, to informally discuss a possible presentation, or to be added to our mailing list, please contact us at cldg@ed.ac.uk.

For more information on the CLDG and past events, visit our website: http://blogs.sps.ed.ac.uk/cldg/

 

 

1 Comment

Filed under Uncategorized

News: Crowd Sourcing the UK Constitution

ConstitutionTeamThis is a major initiative being undertaken by LSE Law Department and the LSE’s Institute of Public Affairs (IPA) together with Democratic Audit UK and LSE Public Policy Group.  The project has already begun with the launch of a dedicated web site:

http://blogs.lse.ac.uk/constitutionuk/introduction/

Please do have a look – this sets out the values and principles that it is proposed should underpin any such venture.  The site will, it is hoped, generate discussion and debate before our live launch in LSE on 8 October.  At this meeting, various guests including Professor Carol Harlow, Richard Gordon QC and former Home Secretary David Blunkett will interact with interested members of the public in debating and discussing these values and principles.  The audience will then vote on what should be the fundamentals of any such constitution.  In the weeks after this, the various provisions of the constitution will be fleshed out via  series of blog commentaries and public participation.  The first phase of the project will come to an end with the holding of a CONSTITUTIONAL CARNIVAL in the Spring of 2014.  Phase two will involve a more formal process of deliberation which will however also entail public engagement and build on the energy that it is hoped phase one will have engendered.  The ultimate goal of the project is to produce a finalised constitution to be launched on the eve of the 800th anniversary of the signing of Magna Carta (23 June 1215).

Further details are given on the front page of the website:

Professor Conor Gearty, Director of the IPA and Professor and Human Rights Law, explains the reasoning behind the project:

The UK has no constitution, or as every first year law student learns, it has no constitution written down in one grand document. Rather it has laws, conventions, practices, activities scattered all over the place that constitutional lawyers then gather together and describe as the UK constitution.

This is unusual, to put it mildly.

Sure there is a reason for it. Britain has never suffered the sort of defeat in war or other upheaval that produces a new constitution and nor has it ever had to free itself of colonial rule – it was always the coloniser. When it did have a revolution in the 17th century, constitutions were not yet in fashion. Today, pretty well everywhere else has a written document that captures what a place is about (or at least pretends to be about) and sets out how power is dispersed (or supposedly dispersed). You don’t have to be a democracy to have a constitution – look at Belarus, and China. Nor do you need to be a Republic – both Belgium and Sweden have monarchs, for example.

Not having a constitution is problematic as well as peculiar.

The country reels from crisis to crisis. Failing banks, economic collapse, controversial wars, MPs’ expenses hit and there is no clear idea of what the country stands for, what principles and values matter to it, and therefore how best to tackle the various problems that it confronts.

Some of the gaping holes in our thoughts are specifically constitutional:

  • What should we do about the EU?
  • Is immigration a problem?
  • Does the House of Lords make sense?
  • Do we really want the Prince of Wales to be our king?
  • Who are we anyway?

Many experts have tried to draft a constitution. We have had the Great and the Good going after this Holy Grail for centuries, meeting in their ancient college rooms, talking to themselves, reporting to their peers, dividing on this and that, invariably cancelling each other out.  Where they have managed to agree (usually on something pretty small) they have floundered on this or that special interest or insuperable institutional barrier. Meanwhile Europe, which has a constitution to all intents and purposes, takes more and more from Westminster while Scotland threatens to grab its bit of land and wander into independence. Some parts of England agitate for their own regional assemblies. Where does all this leave Wales? Not to mention the once endemically violent Northern Ireland?

The status quo is no longer an option. As we approach the 800th anniversary of Magna Carta, surely we can do better than a bunch of medieval barons managed to pull off in Runnymede in June 1215?

If Britain (or is that the UK?) needs a constitution, the question is not mainly what should be in it. Rather it is:

Who should write it?

The answer is THE GENERAL PUBLIC.

2 Comments

Filed under Constitutional reform

Alison L. Young: Prisoner Voting: Human or Constitutional Right?

young_alison-l2As is well known, in Hirst v UK (No 2) the Grand Chamber of the European Court of Human Rights concluded that Section 3(1) of the Representation of the People Act 1983, which removed the franchise from prisoners, was a disproportionate restriction of the right to vote found in article 3 of the First Protocol to the European Convention on Human Rights. After two consultation papers, further judgments from the European Court of Human Rights, a declaration of incompatibility from the Scottish courts, a series of criticisms from the Committee of Ministers of the Council of Europe and the Joint Committee of Human Rights, a change of Government and a House of Commons debate, the Voting Eligibility (Prisoners) Draft Bill was proposed and is currently being scrutinised by a Joint Select Committee. To add to the mix, we are awaiting judgment on the latest discussion of the issue by the UK Supreme Court, in R (Chester) v Secretary of State for Justice and McGeogh v Lord President of the Council, heard on 10 June, not to mention the adjourned case of Firth v United Kingdom.

This post will comment on one argument made by the Rt Hon David Davis MP and the Rt Hon Jack Straw MP, both in their contributions to the House of Commons debate on prisoner voting and in the oral evidence submitted to the Joint Select Committee on the Draft Bill. Their argument does not concern the merits, or otherwise, of prisoner voting, examining instead whether the issue should be determine by the European Court of Human Rights, or by the Westminster Parliament. Their claim is not a mere assertion of the sovereignty of the Westminster Parliament over the European Court of Human Rights. Rather, they argue that there are sound constitutional reasons for the Westminster Parliament to determine whether prisoners should vote. They argue that the European Court of Human Rights has taken a creative approach, going beyond an interpretation that focuses on the intentions of the authors of the European Convention on Human Rights. In doing so, the Court has gone beyond its constitutional ambit, in particular because there is no ability for any form of democratic response to the decisions of the European Court of Human Rights. Jack Straw, in particular, draws on Lord Hoffmann’s 2009 lecture to the Judicial Studies Board. Lord Hoffmann argued that the European Court of Human Rights was not suited to take decisions as to the way in which different rights should be balanced, or the application of general broad provisions of rights to very specific situations.

There are two issues here. What is the proper constitutional ambit of the European Court of Human Rights as a ‘European’ as opposed to a ‘national’ institution and what is its constitutional ambit as a ‘court’ as opposed to a ‘legislature’? The answer to this question appears to depend upon the nature of the right in question. The argument is that the European Court is constitutionally suited to decided broad or abstract rights, but specific applications of rights are more suited to national courts. The more a specific application of a right requires a balancing of different rights, or an assessment of different rights and principles, the more the issue is suited to resolution by legislatures. The European Court of Human Rights deals with abstract, fundamental ‘human’ rights. National courts and legislatures deal with how rights are applied to specific situations, or how rights and principles are balanced. This is a form of ‘constitutional’ right – assessing what ‘constitutes’ the specific application of a right according to the legal and constitutional principles prevalent in that national community.  We need to unpack these issues to see whether they form a sound basis for dividing power between the ECtHR and national courts and legislatures.

An overly creative approach?

Has the European Court of Human Rights been overly creative when assessing whether prisoners should be allowed to vote? Difficulties emerge when we try and apply this latent distinction between ‘human’ and ‘constitutional’ rights by looking at the distinction between broad rights and their specific application. Not only is it easy for this to collapse into a mere matter of degree, but the classification of the right may depend upon your particular focus. For example, if we are examining the issue as one of ‘the right of prisoners to vote’ then the issue becomes one that is more specific constitutional right and therefore for national courts. If we are examining the ‘right to vote’ then the issue concerns a broad human right, with the exclusion of prisoner voting needing to be justified as an exception to this broad right, a matter for the European Court of Human Rights to determine. If the justification of the restriction of the right to vote for prisoners depends upon the need to balance other rights and interests then this becomes a matter for national legislatures. As all appear to be sensible accounts of determining whether it is contrary to the ECHR to disenfranchise some or all prisoners, it becomes reasonable to argue whether the issue should be determined by the ECtHR, national courts or national legislatures or a combination of all three. It is hard to regard the ECtHR, therefore, as being overly creative.

Does a different picture emerge when we focus on the extent to which a specific application of a right requires a balancing exercise, weighing up different rights or balancing rights and interests? This distinction can be just as difficult to apply in practice. Does prisoner disenfranchisement depend upon the proper interpretation of the Convention right to vote, suited to the European Court of Human Rights, or does it depend upon a delicate balance of rights and interests and hence is more suited to national legislatures? If there is any consensus that emerges from cases examining prisoner disenfranchisement, it is that the right to vote is seen as a ‘core’ or ‘fundamental’ right, but that the issue of whether prisoners should vote requires a delicate balance of the right to vote against other rights and interests. This is illustrated, for example, in paragraph 84 of Hirst v UK (2). The European Court of Human Rights made it clear that its role was limited “to determining whether the restriction affecting all convicted prisoners in custody exceed[ed] any acceptable margin of appreciation, leaving it to the legislature to decide on the choice of means for securing the rights guaranteed by Article 3 of Protocol No. 1”. This assessment was repeated in paragraph 85 of the Scoppolla decision.  It is an approach running through the case law on prisoner voting in Canada, Australia and South Africa, as well as in the approach of the Court of Appeal in Chester. Here the courts do not grant a ‘margin of appreciation’ to signatory States, recognising their different constitutional and social cultures, instead granting a ‘wider discretionary area of judgment’ to the legislature. Again, it is hard to conclude here that the European Court of Human Rights has exceeded its proper constitutional role when deciding cases on prisoner disenfranchisement. Prisoner disenfranchisement is a complex and contestable issue. It is reasonable to disagree both as to whether those who commit serious enough offences should not be allowed to vote and, if so, how serious the offence need be to result in disenfranchisement. Many decisions are decided in favour or against the disenfranchisement of certain prisoners by a narrow majority of judges. The only certainty that seems to emerge is that blanket bans, disenfranchising all prisoners, are a disproportionate restriction on the right to vote. This conclusion is reinforced when we look at the outcome in the Scoppolla case. Here an Italian law removed the right to vote from prisoners convicted of a specific series of offences, or those sentenced to terms of three years or more, and removed the right to vote permanently from those sentenced to life sentences or terms of five years or more, subject to a procedural right for the individual to apply for his right to vote to be returned. The court concluded that this was not contrary to Article 3 of the First Protocol. The Italian law was not a blanket ban and it was within the margin of appreciation for the Italian government to regulate prisoner voting in this manner, the ban on voting relating to the serious nature of the offences committed.  There are cases where it is much clearer that the European Court of Human Rights has taken a creative approach than the cases on prisoner disenfranchisement.

Lack of a democratic override?

Let us assume that it was clear that the European Court of Human Rights had been too creative. Jack Straw’s argument is that creative judicial interpretations are far less dangerous in legal systems where there is the opportunity for a democratic correction by the legislature if courts provide too creative an interpretation of rights. The specific example he provides is that of a democratic override in the US, where an overly creative interpretation of the US constitution by the courts can be corrected by Constitutional amendment. If this is all that is required, then it is arguable that the ECHR does provide for a democratic response in a similar manner. The ECHR is a Treaty. Its provisions can be amended by those who have signed up to the Treaty. It may also be easier in practice to modify the Treaty establishing the ECHR than it is to amend the US Constitution.

It may be that Jack Straw has provided a particularly weak example; maybe he would have been better relying on the provisions of the Human Rights Act 1998. But, even if we require more of a democratic override than its mere theoretical possibility, Treaty amendment is not the only way in which democratic input can be given. First, it is possible for the United Kingdom government to appeal decisions to the Grand Chamber of the European Court of Human Rights, as it did in Hirst (2) When presenting its argument to the Grand Chamber, reference can be made to the legislative debate. The same opportunity occurs when the UK government makes representations to the court in cases against other States. The UK government made submissions to the Grand Chamber in Scoppolla v Italy. In doing so it referred to the House of Commons debate on prisoner voting. This was also referred to by the Court in its judgment. The Grand Chamber also does not decide issues in a vacuum. It is aware of the reaction of other legislatures, as well as on-going negotiations between the Committee of Ministers of the Council of Europe and the Governments of the Signatory States.  These may be a predominantly ‘governmental’ as opposed to a ‘legislative’ responses. But the way to correct this is through domestic arrangements, ensuring more legislative engagement with and accountability over Governmental responses and interventions.

Need for democratic override?

The strongest argument in favour of a democratic override is the recognition that the European Court of Human Rights may make mistakes. If prisoner disenfranchisement can reasonably be seen as an issue about the proper scope of the human right to vote, or a specific application of this broad right to a particular constitutional background which may or may not require a balancing of complex social rights and interests, then there is no wonder that there will be disagreement as to whether the Court is being too creative. But does this correction need to be by a legislature? First, if the issue is one of the application of a human right to a specific legal or constitutional situation, then  any correction needed may be better coming from national courts than national legislatures. We can see this when we look at one of the examples Lord Hoffmann n his 2009 lecture, Al Khawaja and Tahery v UK. Lord Hoffmann criticised the judgement of the European Court of Human Rights as too creative. The judgment was also criticised, and ultimately not followed in the Supreme Court decision of Horncastle, as the decision appeared to be based on a misunderstanding of the common law. In the appeal of Al Khawaja before the Grand Chamber, the Government relied on this misunderstanding, and the Grand Chamber referred to the judgment of the Supreme Court in Horncastle. The Grand Chamber  looked specifically at the broader provisions of English law and referred to the approach of other common law jurisdictions to this issue. It concluded that there had been no breach of the Convention with regard to the reliance on hearsay evidence in the conviction of Al Khawaja, but that the Convention had been breached with regard to its specific application to Tahery.  Second, there is no guarantee that the legislature is better placed to balance social rights and interests than the courts, particularly in areas as sensitive as prisoner disenfranchisement. The recent legislation removing the franchise from prisoners in New Zealand provides an interesting example here. Legislation was enacted to impose a blanket ban on prisoner voting, despite the statement of the Attorney General to the legislature that this would be contrary to the New Zealand Bill of Rights Act 1990 and to New Zealand’s human rights obligations in international law.  The legislation was enacted by a narrow majority and it is probably uncontroversial to remark that the arguments presented in favour of the Bill were not a prime example of the merits of democratic debate as a means of protecting rights.

Constitutional or Human – does it matter?

Regardless of whether we categorise the right of prisoners to vote as a ‘human’ or a ‘constitutional’ right, its resolution is complex. We can reasonably phrase the issue as one of the limitation of a fundamental human right, or as the specific constitutional right whose determination involves the balancing of complex social, moral and political philosophies. But, maybe in doing so we are hiding a more challenging issue. Problems arise because the right may be constituted by the values formed by reasoned reflection by the judiciary as to the content of fundamental rights and an assessment of whether the reasons provided for restricting a right hold water combined with a reasoned reflection of the legislature to balancing broader social and moral principles. Or it may just constitute what people think intuitively, or how they feel about granting the right to vote to prisoners – whether that be physically sick or otherwise.   The more the joint select committee continues to focus on obtaining informed advice, and the more the courts provide detailed reasoned for their conclusions, the more the potentially creative interpretations of the European Court of Human Rights can be corrected. Perhaps more importantly, the more we can ensure that the ‘constitutional’ right of all/some/no prisoners to vote will be worthy of the name.

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

Suggested citation: A. L. Young, ‘Prisoner Voting: Human or Constitutional Right?’  U.K. Const. L. Blog (27th September 2013) (available at http://ukconstitutionallaw.org).

5 Comments

Filed under Human rights, Judicial review, UK Parliament

Nick Barber: Can Royal Assent Be Refused on the Advice of the Prime Minister?

Nick1There is a very good article in the most recent edition of the Law Quarterly Review.  It is by Rodney Brazier, and is concerned with the nature and mechanics of royal assent.  It is a fascinating read, and, as with all Brazier’s work, characterised by a dry wit.  There is, however, one claim, made almost in passing, that I think is mistaken.  Brazier addresses the question of when, if ever, a monarch could properly refuse to give assent to legislation.  He rightly concludes that it is almost impossible to imagine situations in which assent should be refused, but leaves open the possibility that it might be appropriate for the Monarch to refuse assent if advised to do so by her Ministers.  In suggesting that royal assent could be refused on ministerial advice Brazier is not alone.  The assertion has also been made by Geoffrey Marshall in Constitutional Conventions, and Adam Tomkins in Public Law – and may, for all I know, have been made by others, too.   On the other hand, Anne Twomey (in an article in Public Law in 2006) argued that the issue remains open, and gives a number of examples, mostly from Australia, which suggest the Monarch need not accept the advice of her Ministers to refuse assent.  So which position is correct?  If the Prime Minister (or the Cabinet, collectively) advised the Queen to refuse to give her assent to legislation, what, constitutionally, should she do?

Before I set about answering this question it might be worth explaining why I think it is important.  It sounds like a piece of constitutional arcana: the chances of the issue arising seem remote, given that the Prime Minister is Prime Minister because he or she normally has the support of the Commons.  But it could become very important very quickly.  The days when one party dominated the Commons seem, for now, to be over.  It is easy to imagine a minority government facing legislation they disliked, or to imagine MPs stuck in an unwanted coalition becoming increasingly willing to defy the party whips.  The Fixed-term Parliaments Act makes it less likely that such a vote would trigger the resignation of the government, but the Prime Minister might still seek to use the royal veto to stop the bill becoming law.  The issue might also become important if there was an attempt to codify the constitution.  If the convention was included in our new, written Constitution, how should it be expressed?  Would the Constitution effectively give the power to the Prime Minister to veto legislation?     But finally, as well as potentially important, the question is also interesting: it turns on the interpretation of a convention, and forces us to consider what criteria a successful interpretation would meet.

Interpreting conventions is a tricky business. Sir Ivor Jennings famously asserted that there were three elements to a convention: there were precedents, the actors involved must believe themselves to be bound by a rule, and there must be good reasons for the rule.  Geoffrey Marshall advanced a similar understanding of conventions, but did so more pithily: conventions are, wrote Marshall  ‘…the rules that the political actors ought to feel obligated by, if they have considered the precedents and reasons correctly’ (at p. 12, and also here at p. 39).

I have explored the nature of conventions at great length in The Constitutional State.  For our present purposes, though, the question turns on the role that a reason plays in our understanding of a convention.  It is only once we have identified a reason for the convention that we can start to interpret it.

Now, some hard-nosed political scientists would argue that interpretation is impossible, partly because they would reject the inclusion of a requirement of a ‘reason’ within the definition of a convention.  All we – we as academics – can do is describe the actions and beliefs of those within the political community.  It is not for us to seek to resolve uncertainties around the rule by trying to interpret it.  There is certainly some merit to this position.  After all, one of the core features of a rule is that it has an existence separate from the reasons that may underpin it.  A rule can exist, and continue to shape behaviour, even if the reasons for it have disappeared or, indeed, never existed in the first place.  It would seem unnecessarily confusing if, when providing an account of the British constitution, we refused to recognise a convention that those acting within the system followed just because we could not see a reason for their adherence to the rule.

Does this mean that consideration of the reasons for a convention fall beyond the capacities of those seeking to understand the constitution?  First, the line between the descriptive and the evaluative is notoriously hard to draw.  Even the driest account of a constitution needs to pick and choose to a certain extent.  A description of the British constitution that resolutely refused to select between competing interpretations of its rules would be worthless – radically undermined by the inclusion of crazy understandings of the constitution.  And it would also be incomplete.  A good description of a convention should try to identify why the rule is valuable.  Part of this can be done by looking at why those following the convention think it is valuable – if they have given any thought to the matter – but the further question of whether they were correct in their beliefs would remain open.  A good account of a convention would also address this issue.

A second explanation for why we – that is, those who read a blog of this type – should try to identify a good reason for a convention is that we are part of the constitutional community that contains the rule.  The political pressure that secures obedience to convention comes from our community. Our understanding of the convention may, then, affect how those in power understand the rule.  It would be hubristic to suppose Her Majesty is an avid reader of this blog, but we can be fairly certain that her office will have filed a copy of Professor Brazier’s article in some drawer, waiting for the day when there is a dispute over the exercise of royal assent.  Whilst the conclusions of an anthropologist, studying the rain-dance of an Amazon tribe, will not affect the practice she studies, the conclusions of a constitutional lawyer on the meaning of a convention may well help shape how those following a convention understand the rule.  This influence brings responsibility: we have an obligation to our community to identify bad or pointless conventions and, also, to explain why good conventions are worth having.

The correct understanding of the convention of royal assent requires us, as Ronald Dworkin would say, to put the rule in its best light.  If we are able to identify a good reason for the rule we can – sometimes – then resolve ambiguities or uncertainties around the rule by reference to this reason.  What, then, is the reason for the convention on royal assent?

Those who argue that the Queen should accept the advice of her Ministers do not explain at any length why they adopt this interpretation of the convention.  Perhaps the best explanation of their understanding is that they group the convention on royal assent along with the rest of the conventions surrounding the prerogative powers.  Practically all of the Queen’s prerogative powers are now exercised on the advice of Ministers, normally the Prime Minister.  The prerogative can be used to appoint ministers, declare war, annex territory, sign treaties, and many other things besides.  That the Queen no longer has any discretion about the exercise of these powers is important because it upholds democratic government.  Ministers are accountable to Parliament and, ultimately, to the electorate, for the ways they use these powers.  In the words of Walter Bagehot , a republic has insinuated itself beneath the folds of a monarchy.

But does this reason justify the inclusion of royal assent within the group of prerogative powers that are exercised on ministerial advice?  It is hard to see that it does.  Now the convention is operating against democratic values, rather than upholding them.  Rather than supporting parliamentary government, it would undermine it.  The point of the convention on royal assent is to uphold the primacy of the democratic element of the constitution in the making of law.  But just as it would be undemocratic to allow one person – the Monarch – to veto legislation, so too it would be undemocratic to give this power to the Prime Minister.  In short, when presented with a bill that has passed through Parliament in a proper manner, the duty of the Monarch is to give assent – irrespective of the advice of her Ministers.  There is no room for discretion.   On its best interpretation, this is what the convention requires: if the Monarch were to accept the advice of her Prime Minister on this issue, she would be acting unconstitutionally.

Nick Barber is a Fellow of Trinity College, Oxford, and University Lecturer in Constitutional Law. 

Suggested citation: N. W. Barber, ‘ Can Royal Assent Be Refused on the Advice of the Prime Minister?’   UK Const. L. Blog (25th September 2013) (available at http://ukconstitutionallaw.org).

10 Comments

Filed under UK Parliament

Conference Announcement: Public Law Conference – Call for Papers

publiclawconf%20pic15 – 17 September 2014

University of Cambridge

In September 2014 the Faculty of Law in the University of Cambridge will host a major international conference on public law. It will be the first in an ongoing series of biennial conferences. The theme of the inaugural Public Law Conference is Process and Substance in Public Law. The conference will bring together scholars, judges and practitioners from a range of public law fields and a variety of common law jurisdictions. The intention is that the Public Law series will become established as a pre-eminent forum for the discussion of public law matters in the common law world.

Academics and doctoral students are invited to submit proposals to present papers addressing the conference theme, broadly construed. Without intending to be prescriptive, examples of topics that would fall within the theme include the interrelationship between legal procedures and substantive law, procedural aspects of substantive obligations, substantive aspects of procedural obligations, the interrelationship between procedural and substantive obligations, various types of processes such as processes regulating constitutional relationships, constitutional reform, and the resolution of grievances, as well as governmental and parliamentary processes. The focus of the conference is on common law jurisdictions.

Proposals will be considered by the conference convenors and Advisory Board on the basis of academic merit and fit with the conference theme. Abstracts of no more than 500 words should be submitted to the convenors at publiclawconference@law.cam.ac.uk as soon as possible, and by 31st December 2013 at the very latest. Those accepted to present papers will be required to submit full written papers by 30th June 2014 and to register for the conference in the ordinary way.

Our confirmed speakers include leading public lawyers from a range of common law jurisdictions, including Prof Mark Aronson (UNSW), Prof Julia Black (LSE), Prof Peter Cane (ANU), Prof David Dyzenhaus (Toronto), Prof David Feldman (Cambridge), Prof Carol Harlow (LSE), Prof Robert Hazell (UCL), Prof Cora Hoexter (Witwatersrand), Lord Justice Laws (England & Wales Court of Appeal), Prof Janet McLean (Auckland), Prof Jerry Mashaw (Yale), Prof Tony Prosser (Bristol), Prof Richard Rawlings (UCL), Prof Cheryl Saunders (Melbourne), Prof Maurice Sunkin (Essex), and Prof Mark Walters (Queen’s Ontario).

We are grateful to our principal sponsor, Hart Publishing Ltd, for their generous support of the conference. It is our intention to publish with Hart Publishing Ltd an edited collection of the best papers from the conference.

Conference registration is now open. To register and for more information on the conference please visit our website: www.publiclawconference.law.cam.ac.uk. To receive updates on the conference you can follow us on Twitter at @PublicLawConf or subscribe to our email list here: www.publiclawconference.law.cam.ac.uk/contact-us.

We look forward to welcoming you to Cambridge in September 2014.

Professor John Bell, Dr Mark Elliott, Dr Jason Varuhas (Convenors)
Mr Philip Murray (Assistant Convenor)
Centre for Public Law, Faculty of Law, University of Cambridge

Leave a comment

Filed under Uncategorized

News: New Comparative Constitutional Law Resource

constituteAn important new resource for those interested in constitutions is now freely available online.  Constitute is a website that contains the constitutional texts of just about all modern states.  They can be searched by country or topic.

The front page of the site tells us:

Constitute allows you to interact with the world’s constitutions in a few different ways.

  • Quickly find relevant passages. The Comparative Constitutions Project has tagged passages of each constitution with a topic — e.g., “right to privacy” or “equality regardless of gender” — so you can quickly find relevant excerpts on a particular subject, no matter how they are worded. You can browse the 300+ topics in the expandable drawer on the left of the page, or see suggested topics while typing in the search bar (which also lets you perform free-text queries).
  • Filter searches. Want to view results for a specific region or time period? You can limit your search by country or by date using the buttons under the search bar.
  • Save for further analysis. To download or print excerpts from multiple constitutions, click the “pin” button next to each expanded passage you want to save. You can then view and download your pinned excerpts in the drawer on the right.

USE OF DATA

The content of constituteproject.org is provided under a Creative Commons Attribution-ShareAlike 3.0 Unported License (which allows you to make free use of information from the site, as long as you provide attribution to the Comparative Constitutions Project, and that any subsequent distribution is under a similar license). The data that power the site are architected and maintained according to principles of the semantic web; for more information on this data and other ways to interact with it, see the Comparative Constitutions Project website.

WHICH CONSTITUTIONS ARE REPRESENTED IN CONSTITUTE?

Currently Constitute has every constitution that was in force in September of 2013 for every independent state in the world. Soon we will include data and text for a version of every available constitution ever written since 1789.

WHO IS BEHIND CONSTITUTE?

Constitute was developed by the Comparative Constitutions Project. It was seeded with a grant from Google Ideas to the University of Texas at Austin, with additional financial support from the Indigo Trust and IC2. Engineering and web-design support are provided by Psycle and the Miranker Lab at the University of Texas

The following organizations have made important investments in the Comparative Constitutions Project since 2005: the National Science Foundation (SES 0648288), the Cline Center for Democracy, the University of Texas, the University of Chicago, and the Constitution Unit at University College London.

2 Comments

Filed under Comparative law

Neil Walker: The Receding Tape

NeilAnd so the countdown begins. But the countdown to what? Twelve months from now we should know the result of the referendum, but just how significant a marker will that be on Scotland’s constitutional journey?

One popular view – for many less a reasoned view than a deep-rooted assumption – maintains that the referendum will be decisive and conclusive of Scotland’s future constitutional shape and status. The contemporary history of the Scottish national debate began with Winnie Ewing’s by-election success in Hamilton in 1967, continued through the abortive devolution referendum of 1979, and reached a new pitch with the successful plebiscite of 1998 and the election of the new Scottish Parliament in 1999. According to the conventional narrative, this long Scottish constitutional ‘moment’ is now drawing to an end, the independence referendum scheduled for September 2014 its final act. And despite some early mutterings from the side-lines about the inclusion of a third ‘devo-max’ option on the ballot paper, that final act  will consist of a straight choice between ‘yes’ or ‘no’, ‘out’ or ‘in’.

But why should we conclude that the availability of a  straight choice to stay or leave – the first such choice offered the Scottish people in over three centuries of Union, will settle matters once and for all? There are at least three arguments supporting this position. The first has to do with the vagaries of constitutional history. As we were reminded by the Political Studies Association’s recent decision to honour Cameron and Salmond in recognition of the two Ministers’   diplomatic achievement in signing the Edinburgh Agreement, the referendum was hard won. It took 40 years of political momentum-building, the platform and profile  of the Scottish Parliament, some unlikely  and unanticipated electoral arithmetic at the 2011 Scottish elections, the flexibility  of Britain’s unwritten constitution, a gradual yet  unprecedented groundswell  of democratic opinion in  favour of exercising the national ‘right to decide’, and a strategic calculation on both political sides that there would be no  obviously better time in the foreseeable future to hold a ballot,  to bring us to the point where a constitutionally unimpeachable referendum could be delivered.  With the clock now ticking down it is easy and tempting to think that there is something natural and inevitable about this final act, but the combination of circumstances that has brought us to this point is actually highly contingent, and unlikely to be repeated any time soon.

The second reason why the referendum is widely viewed as a cue for closure has to do with political culture. It is almost inconceivable that a ‘yes’ vote would be reversed, but a clear ‘no’ vote, too, would likely blight the prospects of a re-run for a generation or longer. Arguably ever since Winnie Ewing ‘reconvened’ the Scottish Parliament in 1999, and certainly since the first minority SNP administration of 2007, Scottish politics has been in a state of high constitutional alert.  The referendum itself has provided an all-consuming focus since early 2012, with every political act and deed from then until now, and doubtless from now on until our date with destiny next year, carefully weighed and dissected for its constitutional content or implications. If, as is undoubtedly true, there are already signs of constitutional fatigue in the political parties, in the media, in civil society and on the streets a year ahead of the vote, then we can only imagine how things will feel after another 365 days of increasingly intense engagement and polarised debate. More generally, 2014 feels like the end of a political era. A generation of Scottish politicians who cut their teeth on the devolution battles of the 1970s and who were fully formed by the class and nation-polarising politics of the Thatcher years now supply many of the senior players in the referendum drama. For them, this is undoubtedly the endgame. It is the destination towards which their political career has long been heading.  Whatever the result next year, it will be the last time many of the key actors will muster for constitutional battle.

A third reason for believing we are headed towards a constitutional denouement next year is a basic one of principle. Even in an unwritten constitution like ours, constitutional decisions are ‘second-order’ political decisions. That is to say, they are decisions about how to take other decisions.  They decide ‘who’ should decide ‘what’ and ‘how’. They provide the foundations without which ‘first-order’ programme politics on matters such as the economy, jobs, welfare, the environment and defence are not possible and without which our everyday legal rules and institutions are not viable. Like all foundations, they require to be reasonably secure. They have to be seen to be  legitimate, as broadly accepted and as beyond challenge except in special circumstances and in accordance with occasional and extraordinary procedures of contestation over the basic terms of political life As such an extraordinary procedure, the referendum cannot be allowed to become  a ‘neverendum’, everyone is agreed.  It has to be a ‘ once in a lifetime’ or a ‘once in a generation ‘ event – to quote the public pronouncements of the Scottish Secretary and the First Minister respectively to mark today’s pre-anniversary – not just because the opportunity might not arise again, and not only because of the exhaustion of a political culture, but also because normal political life might otherwise become unsustainable.

These arguments have much to commend them. And as the comments of the Scottish Secretary and the First Minister suggest, they have been taken on board by both sides. No doubt, moreover, these views will be expressed with ever greater stridency in the months ahead, as both Better Together and Yes Scotland seek to impress upon us the historical seriousness of what is at stake in the referendum and the importance of voting the right way. No doubt, too, once the nationalists publish their White Paper later this autumn setting out in detail what they understand the terms of independence to be, this clarity of principle will begin to be matched by a more transparent sense of the detailed implications.   Independence will cease to be an abstract and free-floating idea. It will instead begin to look like a substantive blueprint. And this will serve to reinforce a sense of the debate as a binary choice, with all outstanding questions on matter such as monetary union, EU membership, NATO membership and welfare citizenship either folded into the binary choice or postponed to another day. In other words, as the event draws nearer the ‘politics of the event’ will inevitably take over. The event will be nothing if not eventful, and its anticipation will bring with it its own powerful sense of dramatic closure.

Yet there is another side to this story, one that receives less attention but which demands some modification of the above picture. In the first place, we simply cannot assume that the decisive referendum will produce a decisive result. Most polls suggest a lead of 10-15% for Better Together, with around one in five still undecided. Not only does that leave the final outcome uncertain, it also raises the very real prospect of a close result, or at least one in which the losing side polls more than 35-40% of the vote. In these circumstances, the defeated side is not simply going to go away and lick its wounds. Instead, we should expect two things. First, alongside the main win-lose campaign, over the next year there will be shadow, spin-doctored campaign over the significance of defeat. At least some nationalists, not to mention the two out of five voters in the recent ICM poll who say they would vote No but would like the Scottish Parliament to become primarily responsible for taxation and welfare benefits in Scotland, will seek to interpret a narrow or respectable defeat as a mandate to insist that the Unionist parties come good on their promise to take further devolution seriously. Inevitably, this will open up new battle lines over how much further devolution is enough, over what constitutional process is required to deliver this, and over what constitutional options remain in the wings in the event of failure to build a winning consensus around the new proposal.

Equally, however, a narrow Yes vote would leave all sorts of constitutional questions unresolved. Much has been made of the tight timetable for constitutional changeover envisaged by the Scottish Government in their White Paper on Scotland’s Future. The plan is to have an early post-vote set of agreements in place between Edinburgh and London with a view, first, to providing  Edinburgh with  a ‘constitutional platform’ to act with much of the authority of an  independent state in the transitional period and, secondly,  to securing a final timetable for the negotiation and conclusion other agreements that will form part of a final independence settlement as early as March 2016. Outstanding questions for that final settlement will include the  division of financial and other assets and liabilities such as military bases and overseas assets, the transfer to Edinburgh of political authority over institutions previously controlled from London, and the content of the cooperative arrangements that the peoples of Scotland, England, Wales and Northern Ireland would continue to share – presumably  from matters as mundane as the issue of driving licenses to those as consequential as currency union and the future of a common welfare system. At the same time, Edinburgh would be in negotiation with the European Union and many other international organisations over the terms of new or continuing membership, all the time bearing in mind that the Scottish government should be careful not to over-commit itself since, under its own commitment, the mature constitutional form and purpose of the new Scotland should await the deliberations of a post-independence constitutional convention. Obviously, there is much scope in such a complex and ambitious timetable for the UK government of whatever political colour, complete with a fresh general election mandate in 2015, to be more or less obstructive or co-operative, more or less generous in its understanding of how it must deliver the terms and consequences of Scottish independence. And undoubtedly, its attitude would in some measure be influenced by the outcome of the referendum vote and the strength of the mandate for independence delivered.

My purpose in outlining these possibilities, however, is not simply to indicate that everything will not be done and dusted next September, but to point to a wider sense of constitutional open-endedness. Today, in a nutshell, we live in a world where independence is not what it used to be. While the state remains the focus of political organisation, it is now merely first among equals. In place of a universal and uniform template of sovereign statehood, we have a highly differentiated mosaic of legal and political capacities. In place of an idea of internal sovereignty as comprehensive and monopolistic, authority is now typically partial and distributed amongst various political sites and levels – state, sub-state, regional and global. And in place of mutual exclusivity as the default condition of external sovereignty, we have overlap, interlock and mutual interference and dependence. This picture of complex interdependence is perhaps nowhere more vivid than in Europe. The prospect of Scottish independence, like the reality of UK independence, has to be viewed against a backdrop of the existence of the EU as a  supranational  economic polity of 28 states, the broader current of the Council of Europe as a standard bearer in human rights, the growing influence of the United Nations in peace and security, powerful global regimes in areas as diverse as climate change, nuclear non-proliferation and international trade, and a strong constitutional tradition of federalism and quasi-federalism  in states as diverse as Spain, Belgium, Germany and, of course, the United Kingdom  itself.

Many of the uncertainties which will attend the implementation of the referendum decision, and, indeed, that are affecting the very terms on which independence is sought and fought over during the campaign, arise precisely from this set of factors. EU membership is clearly one, with the continuing uncertainty over Scotland’s pathway to membership, but also over whether a Conservative-led Britain would stay in, and if so on what terms. The nature of a Scottish currency is another, whether part of a common area with sterling or resituated inside the Eurozone. Defence, is another still, with membership of NATO and the retention of a nuclear capacity a key fault-line of debate. Internal security, too, is an area where public goods are increasingly transnationally located; hence the controversy over an independent Scotland’s relationship to the Area of Freedom, Security and Justice in the EU and to the Schengen zone.  In these and many other areas, the choice is not between freedom and dependence, but a complex algorithm involving a multi-level trade-off between autonomy of voice in smaller units and the pooling of influence in larger units. What is more, these sorts of instrumental considerations are also reflected at the level of identity politics. When commentators say that the Scottish independence debate will not be won or lost at the level of cultural identification they speak a fundamental truth. The majority of us have mixed identities – a fact that the nationalists do well to respect with their endorsement of ‘Englishness’ and ‘Britishness’ as cultural categories with which they wish to engage. This both reflects and reinforces a sense that our constitutional and political status is not written indelibly on the cultural landscape but is highly and variably influenced at the margins by more concrete questions of costs and benefits.

All of this speaks, in the longer term, to a more fluid picture. However hard the race is run over the next year, and however concentrated the runners remain on the finishing line, all will not be won or lost on September 18th 2014, or indeed in the months and years immediately following that. If we try to stand back from the fray, we see instead a longer struggle, and a constantly receding finishing tape. For in a multi-part Europe and complexly interdependent world, the balance of interest and identities is such that it is difficult to conceive of any long-term scenario in which the various parts of the mosaic co-articulate in a settled matter.

This is not to say that our referendum is anything other than the political event of its generation. It is that event, and it should be treated as such. And the necessary virtue of constitutional foundations does, I repeat, demand as much security of our second-order rules as we can manage to achieve and to sustain. Yet we should not mistake any of this for constitutional finality. The lesson of the post-war globalizing world is that constitutional events are rarely conclusive and never self-contained, but feed into an on-going process of complex multi-sourced influence. And this is never more true than when we are concerned with the constitutional politics of sub-state identity, as the local example (still strangely neglected in many referendum discussions) of Britain and Ireland so vividly illustrates.  The one thing we can be certain about when we have finished counting the votes a year from now, therefore, is that the constitutional future will still look far from certain.

 Neil Walker is Regius Chair of Public Law and the Law of Nature and Nations at the University of Edinburgh.

This post originally appeared on the Scottish Constitutional Futures  Forum Blog, and is reposted here with thanks.

1 Comment

Filed under Scotland

Gavin Phillipson: ‘Historic’ Commons’ Syria vote: the constitutional significance (Part I)

gppDoes the recent vote in the House of Commons on military action against Syria have real constitutional significance? Is it the final piece of evidence that there is a constitutional convention that the consent of the House of Commons must be sought before armed force is used?  If so, should anything be done to concretise and clarify this Convention? And what is the broader constitutional significance of this episode in terms of the evolution of controls over the prerogative power and its significance for the evolving separation of powers in the UK?

The first part of this post, below, sets out to provide some preliminary answers to the first two questions above. The second part, to be published later on this blog, deals with the third and fourth.

The facts

Rocket attacks launched in Eastern Ghouta, Syria, on 21 August used a deadly chemical agent (since confirmed as the nerve agent sarin), causing widespread civilian casualties; suspicion almost immediately fell on the Syrian government as the likely guilty party. The Cameron government then became one of those, along with France and the US, pressing hardest for a military strike against Syria, to punish the regime and deter any further use of such weapons. David Cameron recalled Parliament specifically to allow MPs to debate and vote on a Resolution approving the use of military action in principle on 29th August. Following negotiations with the Labour leader, Ed Milliband, Cameron agreed that, even following the assumed passage of that resolution, a second resolution would be put to the House, authorising the actual use of military force: the Government Resolution put to the House specifically provided for such a later Resolution. However, Labour nevertheless put down an Amendment to the Resolution, setting out a more restrictive set of criteria to be satisfied before any military action was taken. Notably, before the debate took place, the Government published both a summary of the Joint Intelligence Committee’s reasons for believing that the Syrian regime was most likely to be have been the perpetrator of the chemical attack and the Attorney General’s (brief) statement of reasons for believing that an armed intervention by the West would be lawful under international law.

The Labour amendment was defeated, but, in a shock result, the Government Resolution was also voted down,  by 285 to 272. Immediately after the result was announced by the Speaker, the Prime Minister, in response to a question from Ed Milliband, pledged that the Government had ‘got the message’ that the House did not support military action and would ‘act accordingly’. In all subsequent public statements, Ministers made clear that the vote meant a complete change in Government policy: the UK would not now take part in any armed attack on Syria. Commentators were quick to hail the result as ‘historic’ and ‘unprecedented’ in modern times, with some asserting that one had to go back to the 19th Century to find a comparable precedent.

The constitutional basics: three norms.

It is important to note that, when it comes to the use of armed force, there are not one, but two conventions in play, one very old, the other (if it exists) very new. Throw into the mix the archaic but hugely important source of  Executive legal authority known as the Royal Prerogative, and it’s no surprise that even seasoned political commentators have struggled to explain the significance of the Syria vote to their audiences. As Jeremy Paxman said, rather fretfully on Newsnight that evening: ‘What’s this about the Royal Prerogative?’ So to rehearse the basics briefly, there are three norms in play:

(1) the Queen holds the legal power to command the armed forces, through the Royal Prerogative.

(2) But by a well established convention, this power is exercised on her behalf by the Prime Minister/the Cabinet.

(3) By a second, emerging convention, it seems now to be the case that the House of Commons must be consulted before action is taken (unless urgent action is required).

That one of the most important powers any government has – to used armed force – is governed in the UK by a legal source that is both archaic and undemocratic and by two non-legal norms, one of which is of very recent pedigree and still perhaps open to doubt, says much about the nature of our ‘unwritten’ constitution.

Does the second convention exist?

History up to Iraq 2003.

Up until very recently, the lack of any necessity to seek approval from, or even consult with Parliament before committing the country’s armed forces to conflict, whether in a formal state of war or not, has been one of most remarkable features of the executive’s prerogative powers. Brazier put it well:

How odd – perhaps bizarre – it is that the approval of both Houses of Parliament is required for pieces of technical, and often trivial, subordinate legislation, whereas it is not needed at all before men and women can be committed to the possibility of disfigurement or death (R. Brazier, Constitutional Reform, 2nd edn, 1999, p 123).

Despite the absence of any legal requirement to consult Parliament, has there been a practice of doing so, or a convention that this should occur? Surprisingly, again, the historical answer has been no. Brazier notes that in the cases of the Suez crisis, the Falklands Conflict, and the Gulf War of 1991, no attempt was made to seek formal parliamentary approval before committing forces to war. To these can be added the deployment and use of the RAF in Bosnia in the 1990s by the Major Government, and the prolonged campaign of air strikes against the targets in Kosovo and Serbia authorised by the Blair Government, neither of which were the subject of formal parliamentary approval. The long campaign in Afghanistan – far more costly in lives than either of the Yugolsav campaigns – was likewise started twelve years ago (in October 2001) without such approval and long continued without it. The newly formed Backbench Business Committee (of which more later) held a debate and a vote on a substantive motion on the presence of British forces in Afghanistan on 8th September 2010, but this was almost ten years after the relevant action began. The debate was on the substantive motion “That this House supports the continued deployment of UK Armed Forces in Afghanistan” and was agreed on division by 310 to 14. However, since this vote took place so many years after troops were initially deployed, it cannot be seen as setting any meaningful precedent for consulting Parliament before or even shortly after military action is taken.

Some Ministers have claimed therefore that David Cameron has been the first Prime Minister to give the House of Commons a say on military action; however, this is mistaken, as will appear when we look at the two recent precedents.

The two previous precedents: Iraq and Syria

It was not until the Iraq war in 2003 that the Government decided that a formal vote should be held in Parliament before committing troops to that particular battle, and this was done more as a matter of political necessity than out of a sense of constitutional obligation. Nevertheless, this dramatic parliamentary debate in March of that year, which saw the resignation of Robin Cook from the Government, and a massive Labour rebellion, rapidly assumed significance as a precedent for the future. Blair’s statements to Parliament before the vote about consulting the Commons were carefully equivocal; while saying, “I cannot think of a set of circumstances in which a Government can go to war without the support of Parliament”, he steadfastly refused to give an undertaking that he would consult Parliament before undertaking military action against Iraq (see e.g. his Oral Evidence to the Liaison Committee, 21 January 2003). The way he framed it at one point, ‘ I have never had any difficulty at all with Parliament either being consulted and informed or expressing its view’ (ibid) hardly seemed to conceive of Parliament’s role as a crucial one. Moreover, very shortly before the crucial debate, the Attorney General, in answer to a Parliamentary Question, said bluntly:

“The decision to use military force is, and remains, a decision within the Royal Prerogative and as such does not, as a matter of law or constitutionality, require the prior approval of Parliament” (19 February 2003, emphasis added).

In other words, the attitude of the Blair Government seemed to be that while it was permitting a vote (and would respect its outcome, as a matter of political necessity) it did not normatively admit to the existence of a convention that it was bound to do so.

It is useful at this point to recall Jenning’s classic three fold test for the existence of a Convention:

 First, what are the precedents; secondly, did the actors in the precedents believe that they were bound by a rule; and thirdly, is there a reason for the rule? (The Law and the Constitution, (5th ed, 1959), at 136).

There certainly seems to be a clear ‘reason for the rule’ in this case: to allow the Commons to perform its constitutional role as a check upon the executive, ensuring democratic scrutiny of a vitally important decision. However, it seems very hard to argue that in this instance the Government actors believed themselves to be ‘bound by a rule’; this weakens the normative value of the Iraq precedent. In response it may be noted that this point throws up something of a paradox about Jenning’s three-fold test. Precedents are necessary to establish a convention, but, in order to count as a full ‘normative’ precedent, those engaging in the action must have believed themselves to have been bound by a (presumably) already-existing rule. But since it was the occasion itself which helped create the rule (by being the first precedent establishing it) it is hard to see how it would have been possible for the actors in that first case to have considered themselves to bound by a rule which did not then exist. Strictly applied, therefore, this criterion would therefore appear to prevent any first precedent being established.[i] To avoid this difficulty, we might conclude that Jenning’s second criterion may properly be waived in relation to the first, or foundational precedent.

Whether this argument is accepted or not, the simple fact is that the 2003 vote has been treated by subsequent constitutional actors as a precedent, as we shall see. Such is the power of the vivid example.

It was the Libya conflict in 2011 that saw the most significant progress toward the establishment of at least a basic convention of consultation. While the option of imposing a “no fly zone” in Libya via NATO air assets was under active consideration, Sir George Young for the Government stated in the House of Commons on 10 March 2011:

 A convention has developed in the House that before troops are committed, the House should have an opportunity to debate the matter… As with the Iraq war and other events, we propose to give the House the opportunity to debate the matter before troops are committed.

The promised debate duly took place on 21 March 2011. The motion, a substantive one, approving the use of UK armed forces to enforce UN Security Council Resolution 1973, by protecting civilians and enforce the No Fly Zone, was approved by a vote of 557 to 13. Notably also, the Government’s belief in the existence of such a convention was confirmed by the Cabinet Secretary, Sir Gus O Donnell, who wrote to the Commons Political and Constitutional Reform Committee in March 2011, stating that:

 “the Government believes that it is apparent that since the events leading up to the deployment of troops in Iraq, a convention exists that Parliament will be given the opportunity to debate the decision to commit troops to armed conflict and, except in emergency situations, that debate would take place before they are committed.”

Note how the Government treats the Iraq case as the foundational precedent. The Cabinet Manual was published the same year and the relevant para states:

In 2011, the Government acknowledged that a convention had developed in Parliament that before troops were committed the House of Commons should have an opportunity to debate the matter and said that it proposed to observe that convention except when there was an emergency and such action would not be appropriate (Cabinet Office, 2011, 1st ed, para 5.38).

The Libya episode then was perhaps more significant than that of Iraq in 2003 in that in this instance, the Government granted a debate because it believed that a convention required it to do so. As a precedential action it thus fulfilled all three of Jenning’s criteria, as Iraq had not. However, in terms of the substantive content of the emerging Convention, Libya is not a fully satisfactory precedent for one simple reason: the debate took place after military action had already started. The debate was held on 21 March. However, action had in fact started two days earlier: on 19 March, Royal Navy submarines had fired cruise missiles at Libya, as had RAF Tornados on the night of 19th-20th March, while on the 20th, Tornados flew an offensive mission over Libya (although not in the end bombing their targets due to intelligence of a risk of killing civilians). Despite the Government’s statement above, then, it did not appear to regard itself as bound to obtain the assent of Parliament before commencing military action and did not in fact do so. Hence it does not unequivocally support such a norm.

The significance of the Syria vote

Given, then, the two previous precedents and the fact that the current Government had stated its view that a convention already existed, what was the significance of the Syria vote? On one level it may be seen as simply providing a third precedent, which clearly satisfied all three of Jenning’s tests, and thus as the final piece of evidence required to establish firmly the existence of the convention. But beyond this simple but important role it has three particular points of significance, as follows:

(1) The Government was defeated and, as a result, publicly reversed its policy. This is the most obviously distinctive feature of the Syria episode. On one level of course, this may be seen simply as a matter of brute political chance, of the parliamentary arithmetic, and not as having normative significance. What it did though, was display in the most vivid and dramatic way that the Government did indeed accept an obligation not to use armed force if the House of Commons voted against such action. Government Ministers subsequently repeatedly spoke of the Government not being in a position to take action in the face of the vote. While it was said that Tony Blair would have withdrawn British forces from the Gulf had the vote gone against him in March 2003, that outcome of course did not transpire. The actual event of the Government publicly revoking its previously – and publicly-declared – foreign policy has tremendous importance in displaying to Britain and the world the practical force of the Commons ‘no’ vote. This establishes beyond doubt that such votes in the Commons are not just a matter of form (like say the Royal Assent to legislation), but that they amount to a real veto. In short, the Commons has shown both that it now has real teeth and that it is not afraid to use them.

(2) The debate was held before the use of any armed force (in contrast to the vote on Libya). While this was also the case in Iraq, in that case there had been a major deployment of armed forces, including thousands of personnel, to the Gulf (and limited air operations by the RAF under the same government several years earlier in the ‘Desert Fox’ action). It is, of course, far harder, politically, for Parliament to vote against such a proposal when troops have already been deployed in a neighbouring country and war is imminent, as in the case of Iraq. Such a vote would be likely to force the prime minister to resign, as Tony Blair was prepared to do had he lost the vote on the Iraq war, something that is likely to deter a negative vote by MPs from the governing party. Holding the vote well in advance of the armed forces going into action, as opposed to doing so on the eve of action, or it has already started, gives Parliament far more of a real choice: MPs voting against action cannot be accused of undermining the morale of the already-deployed or in-action personnel (‘our boys’ as the tabloids will inevitably start calling them). The point then is that, in the Syria example, Parliament was given a real choice without the pressure of a major deployment having already taken place.

(3) The Government published its legal advice on the lawfulness of military action. This may be contrasted both with the Iraq episode, in which the Government notoriously refused to publish to Parliament the AG’s advice (which itself had changed) and with the later proposals of the Brown Government for a parliamentary resolution setting out the terms of the Convention (see later post on this). This may establish a precedent-within-a-precedent requiring disclosure on the crucial issue of legality.

It may now be said with some confidence, therefore that, following the Syria episode, a constitutional convention exists to the effect that the Government must, before, commencing any military action, permit a debate and vote in the House of Commons and abide by its result, subject to a narrow exception exists where truly urgent action is required.

In Part II of this post, to follow, I consider whether this situation has now resolved the long-standing democratic deficit in this area, or whether further reform is needed; I examine in particular the option of a resolution, approved by both Houses, setting out the terms of the new convention.

 Gavin Phillipson is a Professor of Law at Durham University.

Suggested citation: G. Phillipson, ‘ ‘Historic’ Commons’ Syria vote: the constitutional significance (Part I)’  UK Const. L. Blog (19th September 2013) (available at http://ukconstitutionallaw.org).


[i]  An exception could apply to instances like the well known ‘Sewell Convention’, in which the Government announces a new convention and declares itself bound by it, before then proceeding to act in accordance with it. In such an instance, the rule may be considered to have come into being, before the first compliance with it, so that the actors in the first precedent could indeed consider themselves bound by – and cite – the rule when acting. However, even in such instances some purists argue that in such a case the announcement does not create the Convention itself (which can only be created by a web of precedents) but merely amounts to a statement of intention to create a convention. In any event, our war powers example does not fall within this category of a pre-announced rule.

1 Comment

Filed under UK Parliament

Mark Elliott: Justification, Calibration and Substantive Judicial Review: Putting Doctrine in its Place

mark1To observe that substantive judicial review—and the notions of proportionality and deference in particular—constitute well-trodden ground would be to engage in reckless understatement. And that, in turn, might suggest that there is nothing more that can usefully be said about these matters. Yet the debate in this area of public law remains vibrant—and for good reason. Like the controversy about the foundations of judicial review in which many public lawyers engaged energetically over a decade ago, the controversy about substantive review is ultimately a manifestation of underlying disagreements concerning the nature, status and interaction of fundamental constitutional principles, including the rule of law, the separation of powers and the sovereignty of Parliament. It is hardly surprising, then, that questions about the intensity of review and (what amounts to the reverse side of the same coin) deference remain under active discussion long after the debate was ignited by the entry into force of the Human Rights Act 1998.

Doctrine

Although the debate about substantive review is in fact a reflection of deeper theoretical and normative controversies, one of its hallmarks is actually an emphasis on doctrine. Much has been said, for instance, about what form the doctrinal contours of substantive review should take now that proportionality is relatively well-established in domestic law. Should the reasonableness and proportionality doctrines co-exist, or can—and should—we make do only with the latter? As is well known, the late Michael Taggart (to the surprise of some) argued strongly in favour of the retention of Wednesbury alongside proportionality, advocating a “bifurcated” public law in order to accommodate such doctrinal diversity. Considerable attention has been paid too to the question whether deference—to the extent that it is appropriate at all—should be characterized as a doctrine in its own right, or whether it (or the thinking that animates it) is better conceived of as something that internally shapes the application of the proportionality doctrine. And proportionality itself is the site of doctrinal debate, in relation both to its structure and the nature and relationship between the various sub-tests—rational connection, necessity, fair balance, and so on—of which it consists.

There is nothing inherently wrong with the fact that such matters have been (and continue to be) debated. Indeed, I have contributed to some of these debates myself, and I have certainly not undergone a Damascene conversion that makes me doubt the value of doctrine in administrative law (or generally). Doctrinal clarity is highly desirable, and debate which serves to clarify doctrine is therefore to be welcomed. There is, however, a risk that an undue focus upon doctrine may ultimately prove to be a distraction, with the doctrinal trees serving to obscure the normative wood. A related risk is that over-emphasizing doctrine may yield a legal architecture whose rigidity is unwarranted. The bifurcation thesis is arguably a case in point. It envisages a bright-line distinction between two realms of public law which are respectively the doctrinal preserves of proportionality and reasonableness. The former (on this scheme) is concerned with the protection of individual rights, the latter with public wrongs. The former is a structured form of review, whilst the latter is unstructured. The former constitutes an intensive form of review, the latter a relaxed one. And the former safeguards norms that are important in a way that those in play in the latter context are not. The difficulty is that these doctrinal distinctions map onto the normative terrain of public law only in a highly approximate way. They capture something of what is going on, but the bluntness of such tools diminishes their usefulness.

Justification

A better starting point, I think, is another insight offered by Taggart, according to which public law is increasingly about the enforcement of a “culture of justification”. In fact, public law has always, at some level, been about justification. Whatever one’s stance (if any) in relation to the debate about the foundations of judicial review, it is hard to deny that the ultra vires doctrine institutionalizes the justificatory demands of the rule-of-law principle of legality. On that view, the legitimacy of executive action is determined by reference to the empowering statute, action undertaken beyond the bounds set by the legislation being legally unjustified and so unlawful. It follows that the ultra vires doctrine has always called for exercises of administrative authority to be justified by reference to positive law.

What has changed, however, is that the set of criteria by reference to which governmental action must be justified is generally taken to be increasingly rich. No longer is it sufficient that executive action respects only the boundaries that can be traced in any direct way to the explicit or implicit terms of the relevant legislation: to withstand judicial scrutiny, it must also conform to the demands of the legitimate expectation principle, fundamental constitutional rights, and so on. These changes, in turn, track the transition from thinner to thicker prevailing understandings of the rule of law (and help to explain why the ultra vires doctrine was increasingly perceived as an inadequate foundation for judicial review). The constant in all of this is the requirement that exercises of administrative power be justifiable by reference to law: but what the law requires is taken to have become increasingly demanding.

Against this background, several questions need to be posed about the notion of justification. Most obviously, it is meaningless to ask whether a given decision or policy is justified unless we articulate the standards against which the measure is to be evaluated. At the very least (leaving third-source considerations to one side for present purposes) there will be a need to demonstrate positive legal authority. But if particularly valuable norms, such as the rights or legitimate expectations of the individual, are impinged upon then the sufficiency of any justification may fall to be assessed against additional, more demanding criteria. It is also important to be clear about two further matters. First, when we say that a decision must be justified by reference to a given benchmark, what does that really mean? It presumably means something more exact (and, normally, something less) than that the court has to be satisfied that it too would have proceeded in the way that the administrator did. The nature of justification is, in this sense, tied up with considerations about the standard of review—which, in turn, relates back to an assessment of the normative significance of the value impugned by the decision and hence the appropriate scale of the decision-maker’s justificatory burden. Second, even once the issue of the standard of justification, or review, has been settled, questions will arise about whether that standard has been met—which, in turn, triggers questions about the court’s role in evaluating the quality of any justifications offered by the decision-maker.

It is in the interaction of these sets of considerations—encompassing the normative values that give life to substantive review as well as the nature of justification and allied questions concerning the proper judicial role—that we find the seeds of a mature approach to substantive judicial review. If—in contrast to arguments that place doctrine centre-stage—this sounds less than neat, then that is because a degree of messiness is unavoidable in this sphere. What substantive review amounts to in any given case is a question that cannot satisfactorily be answered by resort to any neat scheme of categorization.

My argument is that it is necessary to move beyond a doctrinal focus which results (depending upon one’s preferences) in either a bifurcated approach or one wedded to a specific doctrine (e.g. proportionality), and to concentrate instead on calibrating substantive review by reference to the normative and institutional considerations which ought properly to shape it. I readily acknowledge that this approach may sometimes—perhaps often—produce outcomes that do not, at least superficially, differ radically from the position that would obtain according to the conventional wisdom. I am certainly not suggesting that the courts invariably, or even often, get it wrong. The difference, however, is one of emphasis. The aim is to secure a framework that is better equipped to enable the courts to get it right, and one that is shaped from the bottom up by the relevant normative and institutional factors. Doctrine should be the servant of such considerations, not a procrustean bed into which they have to be shoehorned.

This approach calls for a distinction to be drawn between two types of “deference”. The meaning of that term, and the proper place (if any) of the concept, are of course contested. One reason for this is that deference, as it has come to be deployed within the substantive-review debate, has assumed a somewhat chameleonic character. This has become an obstacle to understanding.  I have argued elsewhere that an adequately structured approach to proportionality review demands proper disaggregation not only of that doctrine’s various limbs but also of the distinct bases—most notably institutional competence and democratic legitimacy—on which deference may be appropriate. It is, however, necessary to go further, by recognizing not merely the different grounds upon which deference might be warranted, but also the different senses in which deference may interact with the idea of justification. To put the matter more concretely, in any substantive-review case, two quite different things necessarily have to happen (albeit that the court may not always confront this distinction in a methodical and explicit way). And those two things raise two distinct sets of questions concerning deference.

Starting-point deference and the burden of justification

First, the court will have to determine what should constitute the operative standard of justification in the particular circumstances of the case. What, in other words, should be the justificatory burden under which the decision-maker is placed, and which will have to be discharged if the decision is to be found by the reviewing court to be lawful? The proportionality versus rationality debate captures something of this matter—but only in a rudimentary fashion. On the face of it, asking whether a decision is proportionate is different from—and subjects the decision-maker to a more demanding justificatory burden than—asking whether it is merely rational. However, just as proportionality and rationality are distinguishable, so are distinctions—justificatory gradations—concealed within those concepts. The “sub-Wednesbury” and “super-Wednesbury” notions have long been evidence of this in relation to the rationality doctrine, as also is the more recently-developed “cogent reasons” concept. The point is obvious too in relation to proportionality, which can be (and is) deployed in more and less demanding ways. For instance, the requirement that a given measure be a “necessary” means of advancing a legitimate aim does not always mean what it says, in that the necessity criterion does not invariably rule out every option save that which is the least restrictive of the compromised right or other norm.

The upshot is that courts have at their disposal a broad range of justificatory standards. And the fact that particular labels—strict proportionality, cogent reasons, super-Wednesbury, and so on—can be attached to those standards does not alter the fact that they exist as multiple points on a spectrum that necessarily shade into one another, as opposed to cleanly-demarcated silos. In terms of how this point maps on to doctrinal considerations, there is no particular objection to labels such as “reasonableness” and “proportionality” provided that they are acknowledged merely to be broad indicators of the particular justificatory standard being applied in the given case. They can only, however, reflect a conclusion that has been drawn about the appropriate standard of review based upon an assessment of the specific features of the case itself: and they can only, for the reasons given above, describe in very approximate terms what is really going on. While, therefore, I am not arguing for (or against) a wholesale rejection of the conventional nomenclature of substantive, it is necessary to bear in mind that its casual use may serve to obscure more than it illuminates.

An obvious difficulty with the approach sketches above is that it risks collapsing into multiplicity of single instances, thereby depriving the law of any tangible structure or predictability. The solution, however, lies not in a retreat into rigid categorization—far less bifurcation—but in an attempt at calibration which exposes and harnesses the relationship between underlying normative considerations and administrative law’s doctrinal superstructure. The key factor which drives, and which ought to drive, considerations about the operative standard of justification is the normative significance of the value impacted by the impugned decision: the more significant the norm at stake, the more closely it warrants judicial examination. However, once we recognize the insufficiency of bald distinctions between (for example) rights and non-rights cases, it becomes necessary to engage with the underlying questions concerning the significance of different norms in a more thoroughgoing manner.

This, in turn, calls for an explicit ordering of norms by reference to which the operative standard of justification falls to be set. Such an ordering is already implicit—albeit in a sometimes-crude form—in the courts’ jurisprudence, “rights” cases, for instance, generally resulting in the imposition of a heavier burden of justification than (to adopt Taggart’s terminology) “wrongs” cases. For the reasons sketched above, however, this kind of ordering is insufficiently granular. Not all rights cases exert the same degree of normative pull, some rights—as well as particular manifestations of a single right—being more normatively compelling than others. Equally, it does not follow that cases that are not about rights are all as unimportant as one another (thus calling for a uniformly low standard of justification) or, for that matter, necessarily less important (as a category) than rights cases (as a category).

Another way of looking at this is by reference to the other—that is, the deference—side of the substantive-review coin. Subject to the by-now inevitable warnings about the difficulties associated with the notion (or at least the language) or deference, it is clear that some approaches to review—some standards of justification—are necessarily more deferential than others. For instance, asking whether a decision is barely rational is inherently more deferential—in the sense of being less demanding, and therefore less likely to result in the decision-maker’s view being overturned—than asking whether it is strictly necessary and proportionate. In this way, some approaches to review have a form of deference hard wired into them in a way that others do not.

Any substantive-review case must therefore begin with the court determining what, if any, level of starting-point deference should be exhibited. Thinking about the matter in this way may be helpful for three reasons. First, making a decision about (this form of) deference—or, the flip-side of the same coin, setting the operative standard of justification—must, of practical necessity, be confronted by the reviewing court at the outset of its inquiry. Whether the impugned measure is justified cannot sensibly be decided unless, in the first place, the operative standard of justification has been determined. Second, questions about the standard of justification, or starting-point deference, fall to be examined by reference to a relatively abstract conception of the nature and importance of the norm that is compromised by the impugned decision, rather than by reference to case-specific considerations pertaining to the court-administrator relationship or the interaction of the impugned norm and the specific measure that conflicts with it. Third, characterizing this matter as starting-point deference serves to distinguish it from a second form of deference that is considered below.

Deference in adjudication

Earlier in this post, I said that in any substantive-review case, the court must undertake two distinct tasks, the first of which—determining the operative standard of justification—engages what I have called starting-point deference. The court’s second—and logically subsequent—task is to decide whether the burden of justification imposed upon the decision-maker at the first stage has been discharged. Has the measure being challenged by the claimant been shown to be rational, or supported by cogent reasons, or strictly necessary, or proportionate in the sense of striking a fair balance between the interests of the right-holder and society, or justified by reference to whatever other standard the court deems appropriate in the circumstances of the particular case?

When the court rolls up its sleeves and begins to confront questions of this nature, considerations about the intensity of review—and deference—necessarily shift from the abstract to the particular. The setting of the burden of justification (or of the starting-point level of deference) is undertaken on the basis of an all-other-things-being-equal assessment of the nature and importance of the compromised norm. The reality, however, is that all other things are often not equal, such that the court’s analysis of whether the operative standard of justification has been met may need to be moderated by reference to considerations of adjudicative deference. Starting-point deference is then about determining the onerousness of the decision-maker’s justificatory burden; adjudicative deference, in contrast, is relevant when the court is determining whether that burden has actually been discharged.

For instance, courts are often called upon to determine whether it is necessary to restrict a right to a given extent in order to realize a competing policy aim—an assessment that may involve the making of challenging predictions about the relative expediency of other, less-restrictive potential measures. The court may exhibit adjudicative deference—in recognition of the fact that it may be less well placed than the decision-maker to perform this sort of assessment—by ascribing a degree of respect the decision-maker’s view as to the relative expediency of the various possible measures that were open to it. (By extension, the court should also be prepared to ascribe appropriate weight to the view of other expert parties or interveners, but should only ascribe weight to anyone’s expert view in circumstances where such expertise has actually been brought to bear on the problem at hand.)

The court may also have to decide whether a measure, even if it is necessary, strikes a fair balance between the interests of the right-holder and those of society more generally. This question reduces, at least to some extent, to a value judgment, the acceptability of the balance struck between two incommensurable variables being impossible to determine unless those variables are first invested with values that are inherently contestable. In the light of this, adjudicative deference that ascribes weight to the decision-maker’s view—in recognition, where relevant, of its democratic credentials—may well be warranted.

I recognize that these claims about the appropriateness of adjudicative deference (particularly on democratic grounds) are themselves controversial, and—having examined these matters at length in another piece—I need not address them in depth here. In any event, the thrust of my present argument is principally concerned not with the interstices of adjudicative deference, but with the point that it is distinct—and should be distinguished—from starting-point deference. The former can be thought of as the pragmatic counterpart to the abstraction of the latter: as something which shapes the on-the-ground assessment of whether the normatively-warranted burden of justification has been discharged. Viewed thus, the nature and intensity of substantive review in any given case is a function of the interoperation of the notions of starting-point and adjudicative deference, rather than something that can be described in the preconceived doctrinal terms of Wednesbury or proportionality.

An obvious objection to this analysis is that it openly acknowledges that the practical reality of substantive judicial review may fall short of that which is called for by the normative pull of the right or value lying at the centre of the dispute, as adjudicative deference blunts the scrutiny which the court, at the outset, has found to be appropriate. From another perspective, however, this approach helps to expose—and demands that we confront—the interaction of the array of factors that have the potential to influence substantive review. It does not, in any event, follow that the relationship between starting-point and adjudicative deference is necessarily a one-way street, according to which the latter can serve only to blunt the scrutiny that is called for by the former. For instance, circumstances might arise in which the normative force of the impugned value is regarded as sufficiently compelling to reduce the purchase of adjudicative-deference factors such as institutional competence and democratic legitimacy. Indeed, precisely this notion is evident in the distinction between absolute and qualified rights, the normative pull of the former being so great as to undercut the scope for adjudicative deference. But, as with other bright-line distinctions, the qualified/absolute rights division is merely a manifestation of underlying considerations that are capable of exerting subtler effects. The purpose of distinguishing between starting-point and adjudicative deference is not, then, to erect a new bright-line doctrinal distinction in the place of those that I have already criticized. Rather, the purpose of the distinction (such as it is) is to facilitate more sophisticated—and transparent—engagement with the interlocking considerations that, whether acknowledged or not, are inevitably in play when questions of substantive review are examined.

What this amounts to, therefore, is an attempt to avoid the difficulties (as I see them) that inhere in both the bifurcation thesis and the view which holds that Wednesbury should be jettisoned now that proportionality is firmly a part of the public-law landscape. Neither approach can adequately capture the complexity of what is—or ought to be—going on in cases of this sort. (It has, of course, been pointed out that proportionality’s advance could be accommodated by conceiving of it in almost-infinitely flexible terms—which, to an extent, is correct. But to construct proportionality in such a way would render it so open-textured as to be largely meaningless. In reality, this thesis clings formally to the doctrine-led model whilst largely emptying the doctrine of content; as a result, it begins to collapse into precisely the kind of approach I am advocating.)

I am not, however, arguing that there is no place for doctrine in this area: I am, after all, proposing not one but two doctrines (as they might fairly be described) of deference. The tools of starting-point and adjudicative deference, however, are intended to enable the calibration of substantive review in a manner that is properly sensitive to the constitutional, institutional and normative considerations that underlie the debate in this area. Such an approach is preferable to one which seeks to effect either the doctrine-led bifurcation of public law or its colonization by a single (but potentially empty) doctrine of substantive review such as proportionality. This is not, then, about ridding this branch of administrative law of doctrine—it is about putting doctrine in its proper place.

Mark Elliott is Reader in Public Law at the University of Cambridge. This post reflects some initial thoughts that I have been developing for the purpose of a longer piece on which I am currently working. 

Suggested citation: M. Elliott, ‘Justification, Calibration and Substantive Judicial Review: Putting Doctrine in its Place’  UK Const. L. Blog (17th September 2013) (available at http://ukconstitutionallaw.org)

1 Comment

Filed under Judicial review