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)

 

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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/

 

 

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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.

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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).

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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).

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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

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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.

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