Monthly Archives: November 2013

Chintan Chandrachud: Beyond Ghaidan and Back: the Supreme Court of India on Rights-Compliant Interpretation

 ChintanGhaidan v Godin-Mendoza remains the leading case on rights-compliant interpretation under section 3 of the UK Human Rights Act 1998. In Ghaidan, the majority on the House of Lords held that even when the meaning of a statute seems clear, courts can depart from parliamentary intention to read legislation in a European Convention-compliant manner. Lord Nicholls emphasised that ‘the particular form of words’ used would not be determinative in ascertaining whether or not section 3 could be invoked.

The Supreme Court of India, on the other hand, has been careful over the years in ascribing to itself an interpretive power which is narrower than the Ghaidan variety. The Court consistently held that it would not distort or depart from statutory language where its plain meaning was clear. Then came Namit Sharma v Union of India (which I will, for reasons that will be self evident later, refer to as Sharma I). This was a case involving a challenge to some of the provisions of the Right to Information Act 2005 – a revolutionary law that seeks to increase transparency in the functioning of public authorities. The Act provides for the appointment of central and state information commissioners to monitor compliance. It requires commissioners to be ‘persons of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance’. The petitioner in Sharma I contended that these eligibility criteria were arbitrary and vague, and violated the right to equality under article 14 of the Constitution. In his argument, since the commissioners performed functions of a judicial nature, Parliament transgressed constitutional boundaries by failing to specify that they should possess judicial experience.

The Supreme Court’s judgment in Sharma I was remarkable. The Court considered that the provisions of the Act, as they stood, were unconstitutional. But rather than striking down the relevant provisions, it sought to interpret them so as to fall within constitutional parameters. The Court stipulated that since the commissioners performed quasi-judicial functions, they should predominantly be persons who have a judicial background and experience in adjudication. If some experts from other fields were appointed as commissioners, they should only make decisions as part of a two-member bench, along with a commissioner having judicial experience. The Act established a ‘High Powered Committee’, consisting of political leaders from the government and the opposition, for the appointment of commissioners. The Court went on to radically modify the process of appointment of commissioners, holding that since they perform quasi-judicial functions, the judiciary (more specifically, the Chief Justice of India/Chief Justice of the relevant state) should also be consulted in the appointment of commissioners with judicial experience.

This judgment clearly transgressed the dividing line between interpretation and amendment and went far beyond what even British courts, armed with the section 3 mandate, would do following the Ghaidan dictum. In Ghaidan itself, the House of Lords recognised that it would refrain from interpreting a statutory provision in a manner inconsistent with a ‘fundamental feature’ of the statute. By insisting that commissioners should consist of (and perhaps more remarkably, be appointed by) judges, the Court undermined Parliament’s intention of ensuring that a diversity of viewpoints are represented in the quest for increasing transparency and access to information. If the Court arrived at the conclusion that the absence of a robust judicial role in the composition and appointment of commissioners rendered the provisions of the Act unconstitutional, the appropriate response would have been to strike them down.

Understandably, Sharma I was received with disfavor both within the government and outside it. The government filed a petition asking the Supreme Court to reconsider its judgment, claiming that it was based on an ‘error apparent on the face of the record’. In Union of India v Namit Sharma (Sharma II), the Supreme Court agreed with the government, holding that its previous decision was an ‘encroachment’ of Parliament’s domain and ‘contrary to the principles of statutory interpretation’ recognised by the Court. So presumably, the Court hastily retreated back to its original position on interpretation.

But what was most interesting about Sharma II is the remedial path taken by the Court. Despite having similar misgivings about the eligibility requirements for commissioners as the Sharma I bench, the Court declared the relevant provisions constitutionally valid, only choosing to mention that it hoped that ‘persons with wide knowledge and experience in law will be appointed’. So why did the court refuse to invoke the power to strike down the Act? The explanation might be rooted in the nature of the strike down power. The invalidation of the relevant provisions of the Act would probably have led to the unenforceability of the entire statutory regime. How comfortable would the Court have been striking down a statute which formed part of the United Progressive Alliance government’s ‘common minimum programme’ and which was considered a hallmark of parliamentary democracy? In contrast, a British Court in the same situation would probably have made a declaration of incompatibility knowing that the statutory scheme would not be disturbed until Parliament responded. If the Supreme Court of India could issue a declaration of incompatibility, would it have done so instead of reluctantly upholding the constitutionality of the statute? Sadly, this question will remain in the realm of speculation.

Chintan Chandrachud is a PhD Candidate at Sidney Sussex College, University of Cambridge

Suggested citation: C. Chandrachud, ‘Beyond Ghaidan and Back: the Supreme Court of India on Rights-Compliant Interpretation’  UK Const. L. Blog (29th November 2013) (available at http://ukconstitutionallaw.org)

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Gavin Phillipson: “Historic” Commons’ Syria vote: the constitutional significance. Part II – the way forward

gppIn Part I of this blog post I set out in detail the reasoned case for my opinion that, following the Syria vote in August 2013, there is a constitutional Convention 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 where truly urgent action is required.’ The question I address in this post is whether this situation has now resolved the long-standing democratic deficit in this area, or whether further reform is needed, and if so, what form that should take.

There are three basic options for reform. First, and most radically, the prerogative could be abolished and replaced by legislation, a War Powers Act, setting out the lawful powers of the government to use armed force, and the procedures to be followed whereby Parliament may authorise it in specific cases. In replacing a prerogative power by a statutory one, this would follow the model used in relation to the prerogative of dissolution in the Fixed Term Parliaments Act 2011. Second, the prerogative could be retained, but supplemented by a legal obligation to consult Parliament on the use of force – the model used for the recent codification of the ‘Ponsonby’ rule in Part 2 of the Constitutional Reform and Governance Act 2010.  The Foreign Secretary, William Hague, made a rather surprising pledge during the Libya debates that “we will enshrine in law for the future the necessity of consulting Parliament on military action” (HC Deb, 21 March 2011, col. 799). However, since then, the Government has shown no appetite for pursuing this pledge, and successive governments and parliamentary committees have come out against this option, including most recently a report this year by the Constitution Committee of the House of Lords (2nd of 2013-14), discussed further below. That then leaves what seems to be the only currently realistic option: that the existing/emerging Convention be placed on a firm basis and concretized by means of a House of Commons resolution, setting out in a definitive and authoritative text the terms of the relevant Convention. The rest of this post considers the case for such a resolution and makes some preliminary suggestions about its possible content.

The core of the case for a Resolution

The arguments for a resolution are three-fold and may be summarised as the arguments from (1) clarifying the existing Convention, (2) guaranteeing its integrity; and (3) enhancing the separation of powers. As to the first, as the Constitutional and Political Reform Committee has said: ‘There is an urgent need for greater clarity on Parliament’s role in decisions to commit British forces to armed conflict abroad’ (8th Report of 2010-12, para 6). Despite the new Syria precedent, it is submitted that this argument still applies, in that many aspects of the Convention remain uncertain, and some may even still dispute its existence.  The House of Lords Constitution Committee in its 2013 report, rightly commented that, ‘The decision to use armed force overseas is one of the most momentous a Government can make’ and immediately went to note that ‘At present…there is no standard process by which Parliament becomes involved’ (para 1). A resolution would both end any uncertainty as to the existence of a Convention, and also serve to clarify – at least to some extent – its terms. Parliament’s constitutional role in relation to a matter of such high importance should not be left in doubt any longer.

Second, there is the argument based on preserving the integrity of the Convention. As Adam Tomkins observed about the adoption of parliamentary resolutions in 1997 setting out the terms of the Convention of Ministerial Responsibility:

No longer is ministerial responsibility merely an unwritten constitutional Convention… It is now a clear parliamentary rule, set down in resolutions by both Houses of Parliament… The government acting on its own cannot now change the terms [of this Convention] in the way that the Conservative government did throughout its period in office. (The Constitution after Scott: Government Unwrapped (1998), p. 62).

In other words, once a Convention is given concrete form through embodiment in a parliamentary resolution, it may not be unilaterally altered by the government of the day as a way of easing, should they become irksome, the constraints that conventions impose on government action. Passing such a resolution places the content of the Convention in the keeping of Parliament – the body responsible for checking the executive – rather than with the executive itself. In turn this deals with a key weakness of Conventions generally: that those bound by them are often responsible for defining and redefining their content, and may use that power to water down or even emasculate the norm that is meant to bind them.

The final argument is related, and like the second, ultimately derives from the separation of powers. Were Parliament to set down the terms of this Convention it would serve an important symbolic function: it would assert that the Convention is not merely a matter of executive obedience to a self-created rule, but of compliance with a norm authoritatively and formally affirmed by Parliament. Compliance would become not merely a matter of what we might call the Executive’s internal morality, but rather an aspect of the formal set of checks and balances exercised by the legislature as against the executive. This would greatly strengthen its perceived normative force.

There might seem therefore to be a clear case for a parliamentary resolution in this area, as previous Committees, including the Public Administration (10th Report of 2007-08, para 79) and Political and Constitutional Reform Committees (8th Report of 2010-12, para 6) both found. Surprisingly, however, as noted above, the House of Lords’ Constitution Committee has recently come out against such a course of action, something that is contrary to what seemed to be the Committee’s previously expressed position (15th Report of Session 2005-06, paras 85-93 and 108-110). What then are the Committee’s arguments against it in its 2013 Report?

The views of the House of Lords Constitution Committee against formalisation of the convention.

  1. It is important to note that the Committee is not opposed to the Convention it believes ought to and does exists in this area. The Report states clearly:

in an area as important as the use of armed force abroad, the norm should be that the Government provide Parliament with the opportunity to exercise prospective oversight of executive decision-making (para 38).

The Report added that it was:

inconceivable that the Prime Minister would either refuse to allow a Commons debate and vote on a deployment decision, or would refuse to follow the view of the Commons as expressed by a vote (para 67).

Why then did the Committee come out against formalising the Convention in a resolution? As an initial point, it may be noted that it is not always easy to tease out the Committee’s specific arguments against a parliamentary resolution, because the report also discusses the possibility of a legal requirement to consult Parliament and the Committee does not always distinguish clearly between the two: paragraphs 48–61 of the Report discuss the case for and against both types of ‘formalisation’ of Parliament’s role, and this is not conducive to the clearest analysis.

Perhaps the Committee’s key objection was that legislation or a resolution would have to set out in detail when Parliament’s consent was required and this could cause major definitional problems: a definition of ‘armed conflict’ might be needed, which could be problematic and even then, the Committee said, there can be ‘grey areas between military and diplomatic engagements’; moreover, there would be the question of whether operations involving Special Forces alone would require permission (paras 51-52). There are five linked responses to this line of argument. First, with respect, the line between diplomacy and use of force is surely not as grey as suggested; no example was giving of when undertaking military action might be seen as ‘really diplomacy’. Second, even if there could be de facto grey areas (such as the deniable deployment of Special Forces), while this might matter greatly in relation to a legal obligation to seek the consent of Parliament, it would matter far less (if at all) in relation to a Resolution. This is because, third, a Resolution could overcome this difficulty either (a) by specifically exempting any operation involving only Special Forces, as recommended in the Brown Government’s Governance of Britain proposals (para 217), (b) leaving it to the Prime Minister to decide when the consent of the Commons was required, or (c) allowing the Commons, by vote, to decide when to trigger the requirement for resolution (see further below). Either of the latter two routes would wholly solve the problem that troubled the Committee, and yet neither were discussed, despite the fact that the latter was the suggestion of one of its witnesses, Lord Mayhew, discussed in its 2006 Report (para 92).

Moreover, fourth, even if a definition retained some area of ambiguity, were a situation to arise in which a Prime Minister wished to authorise some kind of military action, and genuinely considered that it fell outside the terms of the Resolution, then he or she could simply proceed to order that action and rely on persuading the House of this at the relevant time. If, in the event, the House was not so persuaded, then neither the government, nor the armed services would be at risk of any legal consequences as result; rather the Prime Minister would face only the possibility of formal censure by the House. And fifthly, of course, this risk of censure already applies under the current Convention. No-one is clear now about exactly what situations the Convention covers so that exactly the same problem (lack of clarity as to when a Commons’ vote was required) could arise now as under a resolution. The difference is that a resolution would be bound to clarify at least some of the current uncertainty and thus (contrary to the Committee’s view) would necessarily improve the current position in that respect.

In short, the crux of the argument here is that the Committee appeared to think that lack of certainly would only matter under a resolution. However, since the same or a higher degree of lack of clarity arises under the current situation, this does not amount to an argument against a resolution.

The Committee’s other arguments against codification-by-resolution were similarly unpersuasive. Thus, the Committee said:

 ‘In some instances Parliament might want to grant consent subject to constraints on the type of action that may be undertaken. This could harm military effectiveness and limit commanders’ freedom of manoeuvre’ (para 57).

This however is beside the point: since there is already a Convention that Parliament be consulted, Parliament could already grant its consent in this way. This objection is thus irrelevant to the question whether the already existing Convention should be formalised. Whether this happens or not, in any future case of proposed military action, the terms on which any consent might be granted would be set down in the specific government motion put down for approval in the House. The issue the Committee raises is to do with the terms upon which Parliament should grant its consent to military action – as it must already do – and has nothing to do with the issue under discussion, which is whether or not the existing Convention should be formalised.

The Committee also argues that there is a need to maintain flexibility – for example, in leaving it to the Prime Minister alone to decide how and when, in the course of an unfolding international situation, to seek Parliamentary approval (para 58). Again, however, this is a non-sequitur. This concern relates to a substantive issue, regarding the content of any resolution – it does not address the issue of whether a resolution is desirable or not in the first place. If the Government and others believe that any conventional obligation to consult Parliament should leave maximum flexibility in the hands of the Prime Minister, then the resolution can be drafted that way – and indeed there is a model in the draft resolution proposed by the Brown Government: Governance of Britain, pp. 53-56. In the same way, the other matters about which the Committee expressed concerns – whether intelligence information and/or legal advice as to the lawfulness of use of force should be disclosed (para 52) – are likewise substantive issues. The resolution could – again, as in the draft Brown resolution– leave all such questions in the hands of the Prime Minister. Or it could specify that the legal advice itself – or the gist of it – must be disclosed. Again, the Committee’s arguments here go to the question of how the resolution ought to be drafted, not whether there ought to be one. As before, the Committee seemed to think that, because there could be disagreement over the precise content of the resolution, it would be better not to have one at all. But this is surely wrong-headed. It is precisely because of the fact that there is at present some disagreement over the terms of the emerging convention (e.g. as to whether legal advice should be disclosed) that such questions should be resolved one way or the other in a resolution, so that the position is clear.

In other cases, the Committee simply overstates the rigidity that a resolution would bring. For example, it notes:

The House of Commons has secured a commitment from the Government that any decision to arm the Syrian National Coalition should be taken only after the Commons has voted on the matter. Provision of arms to a conflict such as that in Syria was not a scenario envisaged by previous proposals for formalising Parliament’s role, yet a process has been crafted by which the House of Commons will have its say. This demonstrates the benefits of flexibility (para 62).

The suggestion seems to be, that, had a resolution been passed, limiting the Convention to instances in which the Government planned to take military action, that somehow the Commons could not have secured the commitment to a vote before arming the rebels. This however is clearly not the case: the commitment was secured because many MPs felt strongly about the issue and were able to pass a Commons motion. This could happen in future, regardless of whether any resolution on consultation over force were passed. A resolution requiring a vote before using military force does not preclude votes on other issues, should the House wish to hold them.

The Committee then puts forward a fifth argument, which unwittingly undercuts many of its other objections. This is that formalisation is unnecessary, because the Government is bound to seek the consent of the Commons anyway (paras 59 & 62-64). First of all this takes no account of the points made above, that the Resolution has the triple benefits of clarification, preserving the Convention’s integrity and affirming it as not merely a rule self-created by the Executive. But second, by acknowledging that the government must seek the consent of the Commons already, the Committee implicitly accepts that many of the things that it fears could come about only as a result of a resolution could in fact happen regardless of any such resolution. At present, when such a debate and vote happens, an Opposition amendment could be passed, which would tie the military’s hands; at present uncertainties could arise over the disclosure of intelligence and legal advice and in relation to the appropriate time when approval should sought – indeed whether approval should be sought at all in particular cases when swift, or even secret action is thought necessary.

In short the Committee’s report seems bedevilled by a straightforward confusion: between the question of whether there is or ought to be a Convention at all, and the quite separate issue of whether that Convention should be clarified and formalised. Most of the Committee’s concerns were to do with the first issue, not the second. Even when dealing with the second issue, the Committee failed to note that the ambiguities it identified all arise under the current situation; in other places the Report simply exaggerated the extent to which codification would inevitably bring undesirable rigidity.

If one were therefore minded to reject the view of the Constitution Committee as unpersuasive, what is the best way forward?

The way forward: how should a resolution be drafted?

Given that the previous Brown Government brought forward a detailed proposal on this issue, which has never been implemented, one might be tempted to look back to the model set out in Governance of Britain. However, any such temptation should be resisted. The scheme set out therein appeared to be designed to allow for the appearance of a liberalising reform, while in reality maintaining maximum governmental control over the process. The proposal was for the approval of the House of Commons to be sought by way of debate and vote before committing the armed forces to conflict. However, there were numerous important caveats. First of all, as is generally agreed to be necessary, the government could decide to waive the requirement in cases of urgency or where surprise military action was required (para 216). This is only sensible; however, there was no requirement for retrospective approval of a decision to use armed force in such cases: the government would simply inform the House without, seemingly, permitting either debate or vote (para 218).

Second, it would be entirely for the prime minister to decide (a) when in the process of the build-up to conflict to seek approval from Parliament (para 223); and (b) what information to give Parliament on the background to the situation and the government’s reasons for wishing to use armed force (para 221). In relation to the former, 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. As discussed in Part I of this post, 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; and this is likely to deter a negative vote by many MPs belonging to the governing party. Therefore leaving the timing of the vote in the hands of the Prime Minister simply invites them to time the vote in a way that puts maximum pressure upon their own side to vote yes.

As to the latter issue – what information Parliament should be supplied with – given the huge controversy over the completeness and accuracy of the information given to Parliament in the run-up to the Iraq war, the suggestion of leaving this matter entirely within the Prime Minister’s discretion seems perverse. In particular, the Brown Government proposed that the Attorney General’s advice on the legality of the proposed use of force would not be revealed (para 222) – despite the intense controversy over this point in relation to the Iraq war and calls for such advice to be revealed in full on future occasions. Moreover, it was proposed that the Prime Minister could decide not to provide any information, if to do so would, in his or her opinion, ‘prejudice . . . the United Kingdom’s international relations’ (p. 53, Annex A, para 3(11)(a)). In short, the Prime Minister, in deciding how to present the case for war to Parliament, would, as the Public Administration Select Committee pointed out, be left entirely judge in his or her own case:  there was to be no independent element at all in the process (10th Report of 2007–08, paras 72-74). In short, the proposed reform was of the most timid and executive-friendly nature.

My own view therefore would be that, while a proposed resolution could usefully draw upon some of the basics of the draft in Governance of Britain, the following changes should be made:

    • The timing of the debate and vote should not be left to the Prime Minister. The resolution should provide that a debate and vote should take place as soon as reasonably practicable after the Government had formulated a policy in favour of military action, and except in cases of genuine urgency, before the deployment of military forces and well before the outbreak of hostilities.
    • Either the A-G’s full legal advice should itself be disclosed to Parliament, or as the Public Administration Committee recommended, at the least a ‘genuinely full and frank statement of the legal basis for a conflict decision’ (ibid, para 78) should be provided.
    • The Prime Minister should provide to Parliament as full an account as possible of the factual case for the use of force. Where any part of the case depended upon intelligence that it was genuinely necessary to keep secret, it could, as previously suggested, be shared on a confidential basis with the Intelligence and Security Committee, which could then report on whether it shared the Prime Minister’s view that the evidence justified the use of force.
    • Where a case of genuine urgency required the use of force without Parliament’s consent, then such approval should be sought retrospectively, within a set period of time, e.g. seven or 14 days.
    • There should be no exception for the requirement to seek the Commons’ assent simply on the basis that the House was not then sitting. For such an important matter, the House should be recalled, as with the Syria vote (except, as with all votes, in a case of genuine urgency).
    • If it was felt that there was real difficulty in coming up with drafting that made it clear when the obligation to consult Parliament applied, then Lord Mayhew’s suggestion above could be adopted: the resolution could provide that the Commons would trigger the application of it to a particular conflict decision by motion. Alternatively, the resolution could include a definition of when the obligation applied but supplement it by a clause stating the obligation would also apply in any case where the Commons voted by motion that it should.
    • The Resolution, once passed, should then be underpinned by changes to the Standing Orders of the House, as Sebastian Payne has suggested, in order to reinforce its binding force on the executive.

There are indications that the Coalition Government is divided on the issue and has no plans at present to bring forward a Resolution: its response last month to the Constitution Committee’s Report made clear that it had still not decided how to proceed. There is however, nothing in principle to stop the House of Commons, via the Political and Constitutional Reform Committee, which is shortly to report on this issue, taking the initiative by bringing forward a text of its own for consideration by the Lords or adoption by the Commons. Now that the Back Bench Business Committee can schedule time for a debate and vote, there is no need for the Commons simply to await action from the government. Even if the Committee’s resolution was not eventually adopted by the Commons, such action would be likely to provoke the Government into bringing forward its own resolution without further delay. Given the critical importance of proper parliamentary accountability for conflict decisions, it is high time for Parliament in this area to take control of its own destiny. 

 Gavin Phillipson is a Professor of Law at Durham University.

Suggested citation: G. Phillipson, ‘ ‘Historic’ Commons’ Syria vote: the constitutional significance. Part II – the Way Forward’  UK Const. L. Blog (29th November 2013) (available at http://ukconstitutionallaw.org).

The author has given evidence to the Political and Constitutional Reform Committee, and this post largely reproduces that evidence, which was first published on the Committee’s web pages.

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John Stanton: The road from Gettysburg. Are we nearly there yet?

johnLast Friday, much was made of the 50th anniversary of John F Kennedy’s assassination in Dallas, 22 November 1963. The 35th President of the United States, ‘JFK’ oversaw, inter alia, the Cuban Missile Crisis, the early days of the Space Race and played a key part in America’s ongoing relations with the Soviet Union. It is only fitting, therefore, that his untimely and brutal demise be respected half a century down the line. Whilst not necessarily of comparable significance, however, last week also saw another key anniversary for the US Presidency. 19 November marked the 150th anniversary of Abraham Lincoln’s famous Gettysburg Address and it is on this that I focus here.

By no means the longest speech of Lincoln’s presidential career, the Address, delivered amidst the toils of Civil War, was key in reaffirming the importance of equality. It is the last few words of that speech, however, that have perhaps endured with greatest prominence:

‘… we here highly resolve that these dead shall not have died in vain — that this nation, under God, shall have a new birth of freedom — and that government of the people, by the people, for the people, shall not perish from the earth’ (Abraham Lincoln, Gettysburg Address, 19 November 1863)

Since that time, in the UK as well as in America, the importance of giving individuals democratic opportunity to have their say and to select representatives has become an indelible feature of executive and legislative processes. With this in mind, it is the purpose of this piece briefly to consider the extent to which ‘government of the people, by the people, for the people’ can adequately be said to apply in the UK system 150 years after Lincoln’s famous statement.

Elections and referenda are perhaps the most widely prominent ways in which citizens have the opportunity to get their views across and input into a process of decision and policy-making. Issues with both, however, pose serious questions as to the effectiveness of the modern democratic process.

Elections have raised perennial concerns relating to low turnouts, with recent General Elections attracting little more than 60 – 65% of the UK population, and I am far from the first to note the consequent effect this can have in terms of appropriate representation. Disenchantment, disengagement and general apathy are often cited as contributory reasons behind such poor attendance at the ballot box, with citizens often feeling that their votes have no effect on the outcome or the process.

In a somewhat different vein, referenda seem to be rather in fashion at the moment. Little more than two and a half years after (just 42% of ) the country turned out to decide on a change to the Alternative Voting System, attention this last week has focused on the referendum due 18 September 2014 as regards Scottish Independence, and wider governmental deliberations have considered in recent times the potential for a referendum in 2017 relating to ongoing membership of the European Union.

At the local level as well, this mechanism for public consultation has a broad base. The Localism Act, for example, makes provision for referenda in three different instances, adding to the opportunities that exist elsewhere. As Baroness Hanham noted during Localism Bill’s progression through the Lords and just a month prior to Royal Assent,

Not only are there the council tax referendums, there are the right-to-build referendums and the neighbourhood planning referendums. Those complement the provisions for referendums which are already open to councils to carry out on governance. Any council may carry out parish polls and informal polls which are to do with its services and functions. (Baroness Hanham, HL Deb 10 October 2011, vol 730, col 1412).

In terms of legal and political foundations, therefore, referenda enjoy a certain prominence in the UK system. Though useful in gauging public opinion, however, their potential role as a vehicle for citizen-led governance is perhaps countered too greatly by the fact that decision and policy makers enjoy the luxury of framing the terms of the question put to the public vote and are, thereafter, not bound by its result.

On the interpretation, therefore, that Lincoln’s words allude to according free and equal citizens democratic opportunity to involve themselves in and lead forward governance and decision-making affecting their daily lives, the extent to which this can be said to ring true in the UK 150 years later is, to say the least, rather questionable. Elections fail to attract a sufficiently significant proportion of the country, and referenda – whilst very much in favour at the moment – seem to offer democratic opportunity on government’s own terms.

‘Government of the people’ – yes. ‘Government for the people’ – perhaps. ‘Government by the people’ – not really.

John Stanton is a lecturer in law at City University, London.

Suggested citation:  J. Stanton, ‘The road from Gettysburg. Are we nearly there yet?’  UK Const. L. Blog (28th November 2013) (available at http://ukconstitutionallaw.org).

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News: Scottish White Paper

The White Paper on Scottish Independence was published yesterday.  It can be accessed online, or those within the United Kingdom can request a hard copy by emailing:

referendumwhitepaper@scotland.gsi.gov.uk;

or by phoning 0300 012 1809.

Copies for individuals in the UK will be free, while bulk and overseas orders will attract a charge of £10 plus postage and packing.

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Helen Fenwick: Prisoners’ Voting Rights, Subsidiarity, and Protocols 15 and 16: Re-creating Dialogue With the Strasbourg Court?

helen1This blog does not intend to rehearse the merits of the prisoners’ voting rights saga. In principle it is hard to muster reasons providing a basis for banning prisoners from voting: other rights related to the democratic process, such as association and free expression, may necessarily be somewhat circumscribed by the fact of imprisonment (although probably less so in the internet age than previously), but that is not the case in relation to voting, and so the near-absolute ban, based as it is on the idea of ‘civic death’, has little to commend it. However, the merits of the case have been put forcefully by other writers (such as Colin Murray), by Liberty and by the Prison Reform Trust. The purpose of this blog is to note that while this issue has assumed ‘totemic importance’ in relation to national sovereignty (as the Justice Secretary Chris Grayling put it) it would be utterly misjudged to allow it to derail the whole ECHR project as far as a range of states are concerned (see eg Dominic Grieve on this point: Col 511-512). However, such derailment may be precisely what a range of actors may be hoping for, regardless of their views on the disenfranchisement of prisoners, while others may consider that diminution of the influence of the ECHR in some other states is a price Parliamentarians and some voters would be willing to pay to prevent Strasbourg’s interference in democratic determinations as to the democratic process in Britain. Contrary to those views, this blog will argue that the prisoners’ voting rights saga graphically illustrates the need for sensitive and subtle use of the concept of subsidiarity and reliance on a dialogic approach, in an increasingly nationalistic Europe. I argue that there are two ways forward which could put an end to this saga without creating an appearance of outright defiance of the ECHR, and that dialogue and subsidiarity might still have a part to play in so doing.

Subsidiarity and dialogue

The notion that Strasbourg should pay greater attention to the concept of subsidiarity and should promote dialogue with national authorities, especially the higher national courts, has recently gained greater currency. As I have noted elsewhere on this blog, a number of aspects of the Izmir, Interlaken and Brighton declarations (see here) were aimed at creating greater subsidiarity within the judicial process. At the same time, a number of judges have expressed their preference for viewing the interaction between Strasbourg and the UK courts as a dialogue within which both parties seek to find an acceptable balance between the rights of the applicants and countervailing considerations (for example, Lord Neuberger, Baroness Hale, and Sir Nicholas Bratza).

The Interlaken Declaration stated: ‘The Conference, acknowledging the responsibility shared between the States Parties and the Court, invites the Court to … take fully into account its subsidiary role in the interpretation and application of the Convention…[and] invites the Court to… avoid reconsidering questions of fact or national law that have been considered and decided by national authorities, in line with its case law according to which it is not a fourth instance court’ (Point 9). The Brighton declaration emphasised subsidiarity and use of dialogue: ‘The Conference therefore: a) welcomes the development by the Court in its case law of principles such as subsidiarity and the margin of appreciation, and encourages the Court to give great prominence to and apply consistently these principles in its judgments; (b) Concludes that, for reasons of transparency and accessibility, a reference to the principle of subsidiarity and the doctrine of the margin of appreciation as developed in the Court’s case law should be included in the preamble to the Convention’ (Point 12), as has now occurred in Protocol 15. The declaration further ‘welcomes and encourages dialogue, particularly dialogues between the Court and the highest courts of the States Parties’ (Point 12(c)). Subsidiarity is linked to a dialogic approach in the sense that if the Strasbourg Court perceives itself as providing a level of protection of rights that is subsidiary to that provided domestically, then it needs to pay close attention to national views as to the form of protection that the right should receive nationally and to their context, especially where such views demonstrably take account of key Convention principles at stake in the particular instance, in particular that of proportionality.

In developing some ideas on this subject, I am taking the prisoners’ voting rights saga as a currently highly significant example, to ask whether it represents a failure of the dialogic approach, and whether a similar stand-off might be avoided in future if both dialogue and subsidiarity receive greater emphasis at Strasbourg and domestically. Such emphasis might have been anticipated in this context, given the exceptionally qualified nature of Protocol 1 Article 3, the broad exceptions to the right accepted by the Strasbourg Court, its relativistic approach to it, as discussed below, and the lack of consensus on this matter in the various member states. I intend to consider whether the formal mechanisms introduced in June 2013 under new Protocols 15 and 16 ECHR will play much role in enhancing subsidiarity or dialogic opportunities, or whether informal mechanisms already under development are more significant, although there may be no necessary opposition between the two: formal and informal mechanisms may inter-react. By ‘informal mechanisms’ is merely meant mechanisms that may exist under the banner of the tags of ‘margin of appreciation’ or ‘the concept of subsidiarity’ but which need further delineation and  definition, relying on the Strasbourg jurisprudence.

Further, if the Court adheres to the concept of subsidiarity which is also intended to be linked to a dialogic approach, then might it be said that the decision triggering the prisoners’ saga, Hirst, could have been better explained, and thereby failed to adhere fully to the principles embedded in the concepts of subsidiarity and of dialogue?  Might it also be argued, bearing such concepts in mind, that in the light of the findings in Scoppola as to limitations on enfranchisement of prisoners deemed compatible with Protocol 1 Article 3, that there is room for an eventual very restrained response to Hirst at Westminster (possibly more restrained than that under the second option under the current draft Bill on prisoners’ voting) which the Strasbourg Court might well find persuasive even if it represented minimal adherence to the principle laid down in Scoppola. 

Emphasis on subsidiarity and on dialogic changes under new Protocols 15 and 16 ECHR

Protocol 15 provides: ‘Article 1 At the end of the preamble to the Convention, a new recital shall be added, which shall read as follows: “Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention”.’

Protocol 16 makes provision for advisory opinions, to be sought from the Grand Chamber which will be non-binding on the state, and which must be sought in the context of a case before a domestic court or tribunal (to adhere to the in abstracto prohibition). The state in question must designate the court/tribunal able to seek such opinions (Article 10). Presumably in the UK it would be the Supreme Court. A question might arise as to the judicial response to such opinions; obviously they would be technically non-binding (s2(1)(a) HRA),  but the Supreme Court might view itself as being in a fairly difficult position if it decided to disregard such an opinion, in finding against the applicant in a Convention case. Would the Strasbourg Court then view the Supreme Court as having refused to listen to it, meaning that as the dialogue had broken down, the Court would be less likely to be influenced by the Supreme Court decision than if no advisory opinion had been sought?  If so, reluctance to seek advisory opinions might emerge, meaning that Protocol 16 could in fact encourage anti-dialogic tendencies in the UK. That issue could be of relevance in this current saga in future if the Supreme Court eventually had to adjudicate on claims from prisoners excluded from any new redrawn legislative scheme determining which categories of prisoners could vote.

Enhancing subsidiarity and dialogue?  

O’Meara in this blog argued recently that these changes under the two new Protocols will enhance dialogue. I suggest that their effects should not be over-stated, and that it is more important to examine the factors that may impel the Court to listen to the domestic authorities. What are they?  Below, examples are drawn from the prisoners’ voting rights saga where possible on the basis that some opportunities for dialogue arose, but dialogue was not established.

Democratic legitimacy given to ECHR balancing mechanisms

In Hirst v UK (No 2) the key problem, the Grand Chamber considered, was that Parliament in passing the Representation of the People Act 2000 had given no appearance – it found – of listening to Strasbourg:

“78. The breadth of the margin of appreciation has been emphasised by the Government who argued that, where the legislature and domestic courts have considered the matter and there is no clear consensus among Contracting States, it must be within the range of possible approaches to remove the right to vote from any person whose conduct was so serious as to merit imprisonment.

79. As to the weight to be attached to the position adopted by the legislature and judiciary in the United Kingdom, there is no evidence that Parliament has ever sought to weigh the competing interests or to assess the proportionality of a blanket ban on the right of a convicted prisoner to vote.”

As the dissenting judges in Hirst pointed out, there is a contradiction between the Court’s consistent case-law to the effect that Article 3 of Protocol No. 1 leaves a wide margin of appreciation to the Contracting States in determining their electoral system, and its categorical finding that a general restriction on voting for persons serving a prison sentence “must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be” (para 82).  The dissenting judges noted that in Py v France (cited in Hirst at [46]) the Court stated:

 “Contracting States have a wide margin of appreciation, given that their legislation on elections varies from place to place and from time to time. The rules on granting the right to vote, reflecting the need to ensure both citizen participation and knowledge of the particular situation of the region in question, vary according to the historical and political factors peculiar to each State. The number of situations provided for in the legislation on elections in many member States of the Council of Europe shows the diversity of possible choice on the subject. However, none of these criteria should in principle be considered more valid than any other provided that it guarantees the expression of the will of the people through free, fair and regular elections. For the purposes of applying Article 3, any electoral legislation must be assessed in the light of the political evolution of the country concerned, so that features that would be unacceptable in the context of one system may be justified in the context of another”.

The dissenting judges in Hirst argued that the Grand Chamber was adopting an “evolutive” or “dynamic” interpretation of Protocol 1 para 3. If so, they found that according to its own case law it should have founded itself on “a sufficient basis in changing conditions in the societies of the Contracting States, including an emerging consensus as to the standards to be achieved” (see Hirst, Joint Dissenting Opinion of Judges Wildhaber etc para 6). Such a consensus was hard to discern (Hirst para 33).

The Grand Chamber did not fully explain why the UK’s scheme was deemed to fall so clearly outside the state’s margin of appreciation. Was it found so to fall due to the apparent failure of Westminster to engage sufficiently with Protocol 1 para 3 during Parliamentary debate, or on the basis that no possible Parliamentary articulation of the reasons for coming to the determination that was reached could have been viewed as satisfying the provision? If so, the lack of such articulation would be irrelevant, but the Court could have given greater consideration to the ways in which the UK could have met its obligations in relation to the demands of proportionality under para 3.

Judicial pronouncements in senior domestic courts

In Hirst v UK the Grand Chamber said: “It is also evident from the judgment of the Divisional Court that the nature of the restrictions, if any, to be imposed on the right of a convicted prisoner to vote was generally seen as a matter for Parliament and not for the national courts. The court did not, therefore, undertake any assessment of the proportionality of the measure itself” (para 80).

In other words, no domestic court pronouncement on the issue of proportionality was available, to guide the Strasbourg Court. In other contexts, a number of examples can be found in which, where such guidance was available, and where the consideration of the right in question was fully embedded in the judgment, the Court allowed itself to be guided towards a position in harmony with that taken by the national Court, even where that meant departing from its own previous judgment.

For example, in Von Hannover No 2 the Court did not depart from the decision of the German Federal Constitutional Court  in finding that a photograph non-consensually taken, and making no contribution in itself to a matter of public interest, had not created a breach of Art 8 due to its publication, a finding of doubtful compliance with its findings on the same point in Von Hannover no 1. In A v UK the Court was clearly influenced as to the width of the margin of appreciation to be conceded to the UK by the findings of the House of Lords in A and others as to the proportionality aspect of Article 15. In Austin v UK, as I have pointed out elsewhere, the Court in effect followed the House of Lords’ decision in respect of balancing societal concerns against liberty under Article 5, disregarding its own findings on a similar point in A v UK.  In Al-Khawaja, as others have pointed out (for example Baroness Hale), the Grand Chamber was guided by the Supreme Court in Horncastle in reaching the decision on the scope of Article 6, which was contrary to its decision in the Chamber on the issue.

Failure of dialogue and the future of the Strasbourg Court?

Obviously dialogue is not dependent purely on the proper operation of the margin of appreciation doctrine as an aspect of subsidiarity. But operating that doctrine properly provides more space for dialogue. By ‘properly’ is meant – consistently, as the Interlaken declaration pointed out, and on the basis of clearly enunciated principles. Such principles include acceptance that if, under the Strasbourg jurisprudence, a state has an exceptionally wide margin of appreciation on a particular matter, it should not be found to have over-stepped that margin unless the European consensus on the issue has changed (for example, as occurred in Goodwin).

It is fairly obvious that the voting rights’ saga does represent a failure of dialogue. It may be said that the Court in Scoppola did try to effect some form of compromise between the UK position and the one it had taken in Hirst. However, that process cannot be viewed as dialogic since the two positions are fundamentally incompatible – there cannot be a dialogue that merely destroys the basic principle underlying voting rights, adopted by the Court. Two bodies at loggerheads cannot engage in dialogue. That failure can be broken down into a number of stages. First the Westminster Parliament, in passing the Representation of the People Act 2000, did not debate the question of balancing prisoners’ voting rights against countervailing considerations in a way that – in the Court’s later view – comported with the provisions of Protocol 1 para 3, even though the Act was accompanied by a statement of compatibility under s19 HRA. Had Parliament started from the standpoint that there is a human rights-based case for prisoners to vote, but that exceptions had to be made, and had given consideration to express adherence to the principle of proportionality in the legislation, it is still unlikely that Hirst would have gone the other way in terms of outcome since the Court would still have found that Parliament had made too little effort to give legal effect to the principle it had discussed. Given the outcome in the 2000 Act, it would have been impossible for the Westminster Parliament to demonstrate to the Court’s satisfaction that acceptance of the principles underlying Protocol 1 para 3 was genuinely embedded in the Parliamentary process, and so the choice made by the UK would still have fallen outside its margin of appreciation. However, the Court could have ‘listened’ to Westminster in the sense that its judgment might have created more leeway for the UK in terms of future options to make change more palatable to the British public – as it in effect then did in Scoppola. Second, as discussed, the Court did not facilitate future dialogue between itself and Westminster in Hirst in the sense of failing to discuss ways in which Parliament could maintain its substantive restrictions on prisoners’ voting rights while putting in place a procedure able to give sufficient legal recognition to those rights (as Italy was later found to have succeeded in doing).

Could Parliament and the Strasbourg Court now extract themselves from this stand-off by a more subtle and sophisticated operation of the ECHR mechanisms of dialogue and subsidiarity that are to hand? Two ways forward are apparent. If in debating the draft Voting Eligibility (Prisoners) Bill  Parliament speaks in the language of para 3 – in other words, acknowledges that prisoners have a right to participate in the free expression of the opinion of the people in the choice of the legislature which may be furthered by allowing some prisoners to vote, but could also be furthered in other ways (eg contacting MPs, writing to newspapers), it could then consider which exceptions to that principle should be maintained in order to further the aims the government has stated that the current prohibition is pursuing. If Parliament was prepared to vote for the second option under the draft Bill that would create an enlargement of the category of convicted prisoners who can vote that would arguably comport with the key finding from Scoppola since the restriction would not be general, automatic and indiscriminate (as recently reiterated in Soyler v Turkey and Gladkov v Russia).

Such a restriction could be viewed as falling within the UK’s margin of appreciation as delineated in Hirst, and as emphasised due to the change to the preamble effected by Protocol 15. It would arguably not be arbitrary – not for the reasons given by Lord Sumption in the recent Supreme Court decision in Chester that a prisoner might equally miss a spell of fine weather by being in prison (para 115), but because if the restriction can be viewed as rationally connected to the aims in question, then its impact on a particular prisoner who happens to miss a general election due to his/her release one day after it has occurred, is an inevitable result of operating any restriction (including those compatible with Protocol 1 para 3), and is also a result of not instituting a more far-reaching ban, affecting the prisoner after release. A prisoner under the Italian legislation upheld in Scoppola could be disenfranchised for life if serving more than 5 years; a prisoner serving 3 years could be banned for 5 years. (There are also US precedents for barring prisoners from voting after release – for example, Kentucky and Virginia). A wider range of prisoners would be disenfranchised than in Italy but that was not the key issue in Scoppola. That option would effect a fairly minor change, bearing in mind that some convicted prisoners can vote at present. It would obviously avoid the taking of the step whereby Parliament had deliberately voted to disregard a judgment of the Strasbourg Court, which would be unprecedented in the member states. That result would however be unpalatable to many, including the majority of the British public. (A recent Yougov poll indicated that the public generally do not accept that prisoners should vote). So the question, obviously, is whether Parliament would accept it.

Secondly, if the current draft Bill was modified, and the Parliamentary vote eventually takes place in, say, 2016, a modified version of the second option under the current Bill might gain public and Parliamentary acceptance – in a less forensic atmosphere. Would voters in the UK accept a new system whereby there was a much clearer link between seriousness of offence and disenfranchisement, so that certain prisoners serving longer sentences were disenfranchised even after release, while those serving very short sentences were not disenfranchised at all? For example, prisoner enfranchisement could apply to those serving any sentence of up to six months and could be dependent on the circumstances of the offence in question. Obviously that would mean that judicial consideration of enfranchisement would occur at the point of sentencing in relation to offenders in that category, meaning that the UK had in that respect exceeded the minimum demands of Scoppola (para 99). The key point for Strasbourg is obviously that there must be a real engagement of the state’s infrastructure with this issue (not necessarily at the judicial level), even if substantively there was little widening of prisoner enfranchisement as a result. Balanced discussion of the matter in the media, taking account of the value to society of rehabilitating persons in the latter group, would aid in public education on this matter and promote a more nuanced public response, but large sections of the media appear to view the whipping up of public hatred of the Strasbourg Court, using this issue as the focal point, as of greater concern.

At the present time, Parliament has been presented with an option in the draft Bill – maintaining the current prohibition – that is incompatible with the Convention as interpreted by the Court. Whatever Parliament eventually does, the fact that the government has brought the incompatible option forward at all is telling. At the same time Strasbourg has reactivated 2,281 prisoners’ voting rights cases against the UK awaiting judgment (see Firth and 2,353 others v UK in March 2013). The compensation they could be awarded (although clearly it would vary from individual to individual) is rising steadily since post-Hirst a number of them have already missed a number of elections and they could miss the 2015 General Election. It might appear that both sides are placing pressure on each other to back down, in a reversal of a dialogic stance, although there is almost certainly no apparent route by which the Court could do so. There is no political process at the international level which could be utilised. If Parliament eventually takes the ‘incompatible’ option, but there is a full debate as to the basis for the degree of disenfranchisement, taking full account of Hirst and Scoppola, it is conceivable, in accordance with the notion of enhanced subsidiarity which appeared to underlie the Brighton declaration, that the Court might in future view that option as in fact compatible with para 3. Conceivable but highly improbable. From an anti-European standpoint that would obviously be a welcome result.

Conclusions

The conclusion of this piece is that the mechanisms for dialogue and subsidiarity are already present – the UK and the Court need to learn to operate them more effectively and sensitively – although that may be too late in relation to prisoners’ voting rights. Protocol 15 does not add much, it is suggested, to that process in formal terms, but may aid in impelling the Court to take a more cautious or nuanced approach to issues of this nature (taking a Scoppola-type of stance rather than a Hirst one), and to paying greater attention to consistency in its operation of the margin of appreciation doctrine. Parliament might more readily recognise that the UK’s margin of appreciation might be more fully triggered in respect of a particular decision only if a full balancing analysis has occurred in the Parliamentary process. Protocol 16 might be of value in allowing the Court to talk to the Supreme Court at an earlier stage in potential conflicts. It is also arguable, albeit controversially, that Protocol 16 should have made provision for advisory opinions to be sought by national legislatures (and should therefore have made an exception to the in abstracto principle). Clearly, this message is unlikely to gain much purchase amid the current anti-ECHR rhetoric of a number of senior Conservatives; the project of manipulating popular perceptions of the ECHR is unlikely to be furthered by avoiding stand-offs with Strasbourg. But there are a number of possible outcomes of the 2015 general election within which such rhetoric would be politically difficult, meaning that putting more effort into fostering a dialogic approach could be valuable.

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

Suggested citation: H. Fenwick, ‘Prisoners’ Voting Rights, Subsidiarity, and Protocols 15 and 16: Re-creating Dialogue With the Strasbourg Court?’   UK Const. L. Blog (26th November 2013) (available at http://ukconstitutionallaw.org)

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Adam Perry and Farrah Ahmed: Are Constitutional Statutes ‘Quasi-Entrenched’?

AdamFarrahThe Supreme Court issued its decision in H v Lord Advocate (pdf) in 2012. The decision has been virtually ignored by constitutional scholars, but we believe it may be of great constitutional significance. In this post we explain why, starting with some background about constitutional statutes.

Commentators have lately considered how constitutional statutes should be interpreted (for example Tarunabh Khaitan on this blog), and what exactly makes a statute ‘fundamental’ or ‘constitutional’ (for example David Feldman in the latest issue of LQR). A third issue, and our focus here, is how a constitutional statute can be repealed.

In the well-known 2002 case of Thoburn v Sutherland City Council, Laws LJ (with whom Crane J agreed) claimed that a constitutional statute is susceptible to implied repeal in a much narrower range of circumstances than an ordinary statute. At first Laws LJ put the point categorically: ‘Ordinary statutes may be impliedly repealed. Constitutional statutes may not’. Some commentators took this statement to reflect Laws LJ’s considered view. But he immediately explained that, under some conditions, even constitutional statutes can be repealed by implication. The test is whether there are ‘express words’ or ‘words so specific that the inference of an actual determination to effect [the repeal of a constitutional statute] … was irresistible’.

Initially there was intense academic interest in Thoburn. Ultimately, though, Thoburn was a decision of the Administrative Court, and leave to appeal had been denied. Also, Laws LJ’s remarks on constitutional statutes were obiter. When no higher court gave its approval, Thoburn began to seem like an outlier.

That brings us to H, the first clear judicial statement about the implied repeal of a constitutional statute since Thoburn. The proceedings in H were complicated, so what follows is a simplification.

The United States made a request under the Extradition Act 2003 for the extradition of H and BH on charges relating to the manufacture of methamphetamine. H and BH were a husband and wife who at the time were living with their children in Scotland. They argued that their extradition would violate their Article 8 right to respect for family life. The Scottish Ministers issued an extradition order anyway. H and BH appealed to the High Court of Justiciary, and their appeal was dismissed. They then sought to appeal to the Supreme Court.

According to the Extradition Act, a decision of the Scottish Ministers made under that Act could only be appealed against under that Act. And the Extradition Act did not provide a right of appeal to the Supreme Court from the High Court of Justiciary. However, the Scotland Act 1998 provided a right of appeal to the Supreme Court from the High Court of Justiciary on a ‘devolution issue’. Section 57(2) of the Scotland Act prohibits the Scottish Ministers from acting inconsistently with any of the convention rights, and whether the Ministers have violated s 57(2) is a devolution issue. There was therefore the possibility of a conflict between the Extradition Act and the Scotland Act.

Under the doctrine of implied repeal, in the event of a conflict, the Extradition Act, as the later statute, would take priority over the Scotland Act. The Supreme Court would then lack the jurisdiction to hear the appeal. Although none of the parties in H actually contended that the Supreme Court lacked jurisdiction, the Court considered the issue anyway due to its ‘general public importance’.

Lord Hope, with whom the other judges agreed on the issue of competency, concluded that the Court had jurisdiction to hear the appeal. The reason was that, properly interpreted, the two statutes were consistent. They provided ‘parallel’ remedies. Such is the ratio of H on this issue.

What interests us is Lord Hope’s obiter dictum. The crucial passage comes when Lord Hope comments on what would have happened had the Extradition Act and the Scotland Act conflicted. He says (at [30], emphasis added):

It would perhaps have been open to Parliament to override the provisions of s 57(2) so as to confer on … [the Scottish Ministers] more ample powers than that section would permit in the exercise of their functions under the 2003 Act. But in my opinion only an express provision to that effect could be held to lead to such a result. This is because of the fundamental constitutional nature of the settlement that was achieved by the Scotland Act. This in itself must be held to render it incapable of being altered otherwise than by an express enactment. Its provisions cannot be regarded as vulnerable to alteration by implication from some other enactment in which an intention to alter the Scotland Act is not set forth expressly on the face of the statute.

It is difficult to think how Lord Hope could have been clearer: the Scotland Act can only be expressly repealed; it cannot be impliedly repealed; that is because of its ‘fundamental constitutional nature’. Lord Hope never qualifies these claims. He never suggests that there are conditions under which the Scotland Act can be impliedly repealed.

Ultimately the Court in H went on to dismiss the appeals, and to uphold the extradition order against H and BH.

We believe that Lord Hope’s dictum matters for two main reasons. First, whereas Thoburn was a decision of the Administrative Court, H is a Supreme Court decision. On the issue of competency, it was unanimous. After Thoburn, constitutional scholars waited for a higher court to give its views. Now the Supreme Court has.

Second, whereas Thoburn said that a constitutional statute can be impliedly repealed by a particularly clear implication, H says that the Scotland Act cannot be impliedly repealed – no exceptions. In this respect, H is more radical than Thoburn.

These considerations alone suggest that H deserves greater attention than it has received thus far (Stephen Dimelow mentions H in a recent LQR article, ‘The Interpretation of Constitutional Statutes’, but in passing).

H may be significant for a third reason, too. Lord Hope says that the Scotland Act cannot be impliedly repealed due to its ‘fundamental constitutional nature’. Other statutes are also fundamental and constitutional in nature (e.g., the Human Rights Act, other devolution legislation). By Lord Hope’s reasoning, these other statutes should also be incapable of implied repeal.

Overall, H suggests that courts in the future will take a new approach to the Scotland Act. They will not treat that Act as exempt from express repeal – as ‘entrenched’ in the full sense of the term – but they will treat it as exempt from implied repeal – as ‘quasi-entrenched’. They are likely to treat other constitutional statutes as quasi-entrenched, too.

The quasi-entrenchment of the Scotland act raises a number of interesting questions. What is the legal or constitutional basis of its quasi-entrenchment? Is the idea that there cannot be a later statute which implies that the Scotland Act is repealed? Or is it that Parliament does not have the power to bring about the repeal of that Act by implication? Or something else? Unfortunately Lord Hope does not say. We consider the possibilities in a separate working paper.

Adam Perry is a Lecturer in Law at the University of Aberdeen.

Farrah Ahmed is a Senior Lecturer in Law at the University of Melbourne. 

Suggested citation: A. Perry and F. Ahmed, ‘Are Constitutional Statutes ‘Quasi-Entrenched’?’ UK Const. L. Blog (25th November 2013) (available at http://ukconstitutionallaw.org)

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Philip Murray: Natural Justice at the Boundaries of Public Law

PhilipThe intention of this post is a simple one: to assess the ways in which natural justice arguments have historically been raised in private law proceedings. By “natural justice” I mean those common law principles requiring a fair procedure and an unbiased tribunal when powers are exercised. Ordinarily, of course, natural justice arguments arise in judicial review proceedings against public bodies in the Administrative Court or Upper Tribunal, usually when those bodies are exercising a statutory power. But to what extent can it be argued that a private body, in its private relations with private individuals, has acted unlawfully by making decisions in a procedurally unfair manner?

Initial clarity

Until around the late 1920s, the law was pretty clear on when natural justice principles could be invoked in private law proceedings. An important distinction was made between proceedings in equity and proceedings at common law. In equitable proceedings for a declaration or injunction, natural justice principles could be invoked when the plaintiff wished to challenge the exercise of trust powers and other fiduciary powers. At common law, the action would invariably be brought for damages, although from 1883 a declaration could also be sought. Natural justice arguments at common law would arise primarily on the basis of a breach of contract, normally with some sort of implied term being read into the contractual relationship between the plaintiff and defendant requiring certain principles of natural justice to be followed. Natural justice arguments would occasionally arise in proceedings founded on the tort of conspiracy, too, though the limited circumstances in which conduct amounting to conspiracy could be established minimised reliance on this tort.

With regard to proceedings in equity, it is clear that there need not be a contractual relationship between the parties for natural justice arguments to be invoked. The rules of natural justice were conceptualised as freestanding equitable principles governing the exercise of powers. This can be seen most clearly in the case of Dawkins v Antrobus (1881) 17 ChD 615. In that case, the plaintiff had been expelled from the Travellers’ Club under a rule of the club that allowed a majority of members to expel a member who conducted himself in a manner that brought the club into disrepute. The plaintiff challenged his expulsion in the Chancery Division, seeking an injunction and declaration on the ground that insufficient notice of the charge made against him had been given. These arguments were not the primary concern of Sir George Jessel MR at first instance, but they were considered in detail in the Court of Appeal. The judgment of Brett LJ is especially clear in setting out when natural justice principles could be invoked. Brett LJ envisaged three ways in which the decision of the club members to expel the plaintiff could be looked at: (i) to see whether they had acted in accordance with the rules of the club; (ii) to see whether those rules themselves complied with the requirements of natural justice; and (iii) to see whether their conduct, though within the four corners of the rules properly interpreted, could nonetheless be described as mala fide (at 630). More importantly, natural justice arguments would not just be relevant in the second type of challenge. Even if the rules accepted amongst the members of the club were, in principle, compatible with the rules of natural justice, natural justice principles could also be invoked when considering whether the members’ conduct was bona fide. In particular, Brett LJ said that “there would be a denial of natural justice if a decision was come to without [the plaintiff] having an opportunity of being heard” (630, see also Cotton LJ at 634 and 636).

The possibility of seeking an injunction or declaration in equity for breach of freestanding principles of natural justice thus coincided with, but was conceptually distinct to, the possibility of bringing an action at common law for damages on the basis of some express or implied term in a contract between the parties. These were two distinct areas of case law: the conceptual bases of the natural justice principles (“equity”/“contract”) and the remedies that were available (injunction and declaration / damages and declaration) were very different.

Blurring the lines

The clear picture outlined above came to be muddied in the middle decades of the twentieth century. In a series of cases the courts came to emphasise the necessity of a contract in all private law proceedings in which natural justice principles were invoked, regardless of whether those proceedings were for damages (or, more frequently, a declaration) at common law or for an injunction or declaration in equity.

The case law started to become confused in Maclean v The Workers’ Union [1929] 1 Ch 602. In that case, Maugham J, sitting in the Chancery Division, emphasised that where a contract between the parties set out procedural rules governing the parties’ exercise of their powers, then the courts could not invoke standalone natural justice requirements to supplement the rules the parties had themselves agreed (at 623-625).

The approach in Maclean still preserved the possibility of invoking freestanding natural justice principles in (very rare) cases where there was no form of contractual agreement between the parties. However, the effect of Maugham J’s decision was to make natural justice principles subservient to, and subject to ouster by, contractual agreements. This approach might have been justifiable on the basis of freedom of contract: private parties should be free to dispense with any procedural protections the law would ordinarily impose on their dealings, if that is their intention. But given the sort of body against whom these private law natural justice claims were being brought – bodies like trade unions and sporting regulators, who exercised, through contract, some sort of de facto monopolistic control over less powerful individuals – there was always a degree of artificiality in such reasoning.

Nonetheless, the law’s preference for a contractual approach to natural justice continued to dominate. The highpoint in this came in Byrne v Kinematograph Renters Society Ltd [1958] 1 WLR 762. An injunction and declaration were sought in the Chancery Division against the decision of the defendant, a limited company established to protect film distributors, that its members should no longer supply films to the plaintiff’s cinemas. It was argued that this decision was made on the basis of an unfair procedure. It was accepted by the plaintiff at trial that there was no contract between himself and the defendant. Nonetheless, it was argued that natural justice arguments could be invoked in proceedings in equity. This argument was rejected by Harman J who said, “the existence of some contract is essential”. The possibility of introducing natural justice principles in equity where there was no contract between the parties was thus emphatically rejected.

Beyond contract

The problem with the exclusively contract-based approach to natural justice arguments, as established in Byrne, was that contracts between private individuals seldom set out elaborate requirements of fair procedure to govern the relationships of the parties to the contract. The possibility of bringing an action for breach of an express term was, therefore, practically non-existent. Actions based on implied terms requiring fair procedures were equally fraught with difficulty. The criteria under which the law allowed for the implication of contractual terms meant that such terms would be implied rarely: it would be unusual for the extensive requirements of natural justice to satisfy the “officious bystander” or “business efficacy” tests. The role of natural justice arguments outside the judicial review process was thus much restricted by Maugham J’s judgment in Byrne.

The limitations of the law of contract fuelled two important dissenting judgments of Denning LJ in Russell v Duke of Norfolk [1949] 1 All ER 109 and Abbott v Sullivan [1952] 1 KB 189, both in the Court of Appeal. Both of these cases involved actions for breach of contract. Yet in both cases Denning LJ objected to the limited, contract-focussed approach the majority judges took when addressing natural justice arguments. Denning LJ, manipulating the boundaries of law and equity, called for a generous reliance on the principles of natural justice across the law, basing his approach on Dawkins v Antrobus.

Eventually Lord Denning was given the opportunity of vindicating this approach in the important case of Nagle v Feilden [1966] 2 QB 633. A decision of the Jockey Club to refuse the plaintiff a horse trainer’s licence simply on the grounds of her gender was challenged on the basis that it was against public policy, and thus unreasonable. Because this was a case where the plaintiff had applied for a licence, rather than one where the plaintiff was deprived of a licence she already had (cf. Russell v Duke of Norfolk), it could not be said that there was any contract between the parties through which “public law” principles like natural justice or unreasonableness could be mediated. However, while Lord Denning MR accepted that a contract had to be alleged where a claim was brought for damages for breach of contract, he expressly said that principles of natural justice, unreasonableness, and so on could be invoked irrespective of contract where a declaration was sought. Looking back over the previous case law, he saw the invocation of contracts as often being “fictitious” (646). The true ground in these cases, he said, was “a man’s right to work”: that right could be protected by the law, independent of any implied term in a contract.

Lord Denning MR affirmed his approach five years later in Enderby Town FC Ltd v Football Association Ltd [1971] 1 Ch 591. That case, and Nagle v Feilden, were accepted by Megarry V-C in McInnes v Onslow-Fane [1978] 1 WLR 1520 – an ordinary private law claim for an injunction – as establishing that courts are “entitled to intervene in order to enforce the appropriate requirements of natural justice and fairness” (1528), even where, as in McInnes itself, there was no contract between the parties.

The modern law

Nagle v Feilden and McInnes v Onslow-Fane thus recognised the continued possibility of invoking natural justice arguments in private law proceedings even where no express or implied contractual term bound the parties to respect those principles. While Hoffmann LJ, obiter, doubted the correctness of Nagle v Feilden in R v Jockey Club, ex parte Aga-Khan [1993] 1 WLR 909 (at 933), the non-contractual basis of natural justice principles outside the judicial review process has nonetheless continued to be recognised in the subsequent case law. In Modahl v British Athletic Federation Ltd (No 2) [2002] 1 WLR 1192, Latham LJ expressly recognised the continued applicability of the Nagle v Feilden approach. This was re-affirmed at first instance in Bradley v Jockey Club [2004] EWHC 2164 (QB) (per Richards J at [35]). As Jonathan Morgan has recognised in his excellent survey of the modern case law and its application to sports governing bodies, the approach in Nagle v Feilden is still to be regarded as “good law” (Morgan, “A mare’s nest? The Jockey Club and judicial review of sports governing bodies” [2012] LIM 102, at 106).

All of this as a useful reminder to both public and private lawyers that public law principles have life outside the strict confines of the judicial review process. Yet given the importance of the possibility of natural justice arguments being raised outside judicial review, it is unfortunate that the circumstances in which they might be introduced are still so ambiguous.

A number of important question marks still hang over this area of the law. In particular, a question remains as to the scope of the principle in Nagle v Feilden. In Bradley v Jockey Club, for example, a question was raised as to whether the Nagle v Feilden approach should be considered as one instance of the common law doctrine against unreasonable restraints of trade, or whether it had a broader application in line with the approach taken in equity, as typified by Dawkins v Antrobus. At first instance, Richards J noted that a number of cases decided after ex parte Aga Khan had rationalised Nagle v Feilden on a restraint of trade basis (see Stevenage Borough FC Ltd v Football League (1996) 9 Admin LR 109, Newport Association FC Ltd v Football Association of Wales Ltd [1995] 2 All ER 87, and Mondahl (No. 2)). Indeed, such an analysis would be at one with Denning LJ’s emphasis of a common law “right to work” in that case, though we might see this “right” as simply one of the many common law principles that engage and shape the broader application of the rules of natural justice. Richards J refused to settle this point exactly in Bradley: he said that it was “unnecessary to get caught up in the subtleties” (para [35]) and that it was sufficient to note that “even in the absence of contract the court has a settled jurisdiction to grant declarations and injunctions in respect of decisions of domestic tribunals that affect a person’s right to work”. If we can see Nagle v Feilden as a natural successor to the line of cases exemplified by Dawkins v Antrobus, then the case allows for a ready reliance on natural justice principles outside judicial review. If, however, it is to be conceptualised simply as an aspect of the restraint of trade doctrine, its scope is much more limited.

There are other questions, too. What of the comments in earlier cases, like Maclean, that the non-contractual approach to natural justice arguments can only be relied on in the absence of any contract setting out procedural requirements? This approach was not emphatically dealt with in Nagle v Feilden, Bradley, and other cases. Indeed, in cases where the contractual route is preferred (where, for example, a claimant is seeking damages), in what circumstances, if at all, will it be proper to imply contractual terms requiring the principles of natural justice to be respected?

The potential of this area of law to develop as a dynamic corollary to judicial review is great, and its significance ought not to be underestimated. The on-going ambiguity is, however, regrettable. It is hoped that the courts will clarify the law in this area one day soon.

Philip Murray is a Fellow of St John’s College, Cambridge, and can be followed on Twitter: @DrPhilipMurray.

 Suggested citation: P. Murray, ‘Natural Justice at the Boundaries of Public Law ‘  UK Const. L. Blog (21st November 2013) (available at http://ukconstitutionallaw.org).

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Call for Papers: The Preliminary Reference to the Court of Justice of the European Union By Constitutional Courts

A seminar in memory of Gabriella Angiulli

Organised by the Centro di Studi sul Parlamento, LUISS Guido Carli of Rome,
in co-operation with the Centro interdipartimentale di ricerca e formazione sul diritto pubblico europeo e comparato, University of Siena

28th & 29th March 2014

Venue: LUISS Guido Carli, Rome, Italy Conveners: Maria Dicosola, Cristina Fasone, Irene Spigno

In an age of globalisation of markets, policies and law, European integration is undergoing an extraordinary expansion. This process, far from involving only the harmonisation of national legislation according to common principles, underpins the transformation of the nature of European constitutional systems. According to many distinguished scholars, in fact, a multilevel system of sources and courts is re-defining the boundaries of European Law, which now has an inherent constitutional dimension.

Within this framework, the phenomenon of the so-called ‘dialogue’ between domestic and European courts is particularly relevant. The ‘dialogue’ should be ‘taken seriously’ in so far as it is having a broad impact on the protection of the fundamental rights of individuals. Among the tools of cooperation between European Courts, the preliminary reference to the Court of Justice of the European Union (CJEU) by Constitutional Courts is crucial.

This issue was the topic of the PhD thesis chosen and assigned, in 2009, to Gabriella Angiulli, to whom the conference is dedicated. Gabriella Angiulli, who passed away in March 2013, was a PhD student at the University of Siena and a Teaching Assistant at LUISS Guido Carli, where she graduated with a dissertation in Comparative Public Law in 2008.

The scholars participating in the conference include Thomas Beukers (European University Institute), Francesco Cherubini (LUISS Guido Carli), Monica Claes (Maastricht University), Melina Decaro (LUISS Guido Carli), Tania Groppi (University of Siena), Nicola Lupo (LUISS Guido Carli), Giuseppe Martinico (Centro de studios políticos y constitucionales-Scuola superiore Sant’Anna, Pisa), Oreste Pollicino (Bocconi University), Robert Schütze (Durham Law School), who have already confirmed their presence.

On the first day of the conference, Friday 28th March, to be held entirely in English, the morning session will be devoted to an analysis of the relationship between Constitutional Courts of the Member States, the CJEU, and the European Court of Human Rights. The afternoon session will consist of a workshop of young scholars (PhD Students and Post-doctoral Researchers), based on the morning presentations. The second day of the conference, held in both Italian and English, on the morning of Saturday 29th March, will deal with the Italian Constitutional Court’s attitude towards the preliminary reference proceedings.

The organisers invite the submission of paper proposals on the case-law of one or several Constitutional Courts in the EU Member States issuing preliminary references, or on a specific decision, or set of decisions, of Constitutional Courts on a particular subject ‒ e.g. the constitutional identity of Member States ‒ raised by preliminary references and rulings. Abstracts on Constitutional Courts that have not yet issued a preliminary reference are also welcome, possibly describing the relevant case-law in which a request for preliminary reference has been raised and why the tool has not been used.

ABSTRACT SUBMISSION PROCEDURE: Those interested in presenting a paper on this topic, in particular PhD Students and Post-doctoral Researchers, are invited to submit an abstract (max. 500 words) and their CV by 22nd December 2013 at preliminaryreference@gmail.com. Applicants will be notified of the results of the selection process by 10th January 2014. The deadline for submitting papers at preliminaryreference@gmail.com is 28th February 2014. Meals during the days of the conference and accommodation (one or two nights) will be provided for the paper givers.

Subject to a blind peer-review process, the papers submitted may be published in the LUISS School of Government Working Paper Series: http://sog.luiss.it/it/ricerca/working-papers.

For additional information, please contact Maria Dicosola (mdicosola@luiss.it), Cristina Fasone (cristina.fasone@eui.eu), or Irene Spigno (spigno@unisi.it).

 

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Mark Elliott: Where next for the Wednesbury principle? A brief response to Lord Carnwath

MarkIn his recent annual lecture to the Constitutional and Administrative Law Bar Association, Lord Carnwath spoke to the title: “From judicial outrage to sliding scales—where next for Wednesbury?” In this post, I outline some of the key points made in the lecture and offer some critical commentary on the approach to substantive judicial review commended by Carnwath.

Much of the lecture is devoted not to a positive account of how substantive review ought to work, but to a critique of approaches to the reasonableness doctrine that are discernible in current and prior jurisprudence. For instance, Carnwath rejects the formulation of the unreasonableness—or irrationality—principle advanced by Lord Diplock in the GCHQ case (Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374).  As is well known, in that case Lord Diplock said that a decision would be irrational—and so unlawful—if it were

so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.

However, Carnwath argues that the Diplock formulation of irrationality fails to supply judges with a suitable conceptual toolkit by which to determine whether a decision is flawed on substantive grounds:

[I]t is hard to see how “outrage” can ever be an appropriate or acceptable part of the judicial armoury? And why “logic”? The hallmark of a sound administrative decision, surely, is not so much logic, as informed judgment, which may take account of all sort of “illogical” factors such as political considerations and a democratic mandate? And how do “moral standards” come into this formulation? There may be many ways in which the conduct of public authorities can be morally objectionable— perhaps bribery, nepotism, even maintaining a public brothel? Such activities may be illegal, but not because they are “irrational”, still less because judges find them outrageous.

Next, Carnwath considers, and rejects, the anxious-scrutiny test which achieved a certain prominence in the late 1980s and 1990s, as a means of injecting a (modest) degree of backbone into pre-Human Rights Act substantive review cases touching upon fundamental rights. An early articulation of the notion of anxious scrutiny is contained in Bugdaycay v Home Secretary [1987] AC 514. It concerned the right to life, although the anxious-scrutiny test was later rolled out across a broader range of rights. In Bugdaycay, Lord Bridge said:

[T]he court must, I think, be entitled to subject an administrative decision to the more rigorous examination, to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines. The most fundamental of all human rights is the individual’s right to life and when an administrative decision under challenge is said to be one which may put the applicant’s life at risk, the basis of the decision must surely call for the most anxious scrutiny.

Carnwath rightly indicates that “anxious scrutiny” is a protean concept: “anxiety”, he says, “is descriptive of a state of mind, not of a legal principle”. Certainly, it has not always been clear exactly what it is that anxious scrutiny attaches to. Does it imply that the court will merely look at the evidence more carefully when ascertaining whether the normal Wednesbury principle is satisfied? Or that some more demanding threshold of reasonableness is being applied? That the anxious-scrutiny test leaves these questions to some extent unresolved is a legitimate criticism – but one which hints at a deeper need for a more throughly-developed conception of what is, and what should be, going on in substantive-review cases. As I argue below – and in more detail elsewhere – the beginnings of such a conception can be supplied by an appreciation of different senses in which an overarching notion of justification operates in this area.

Later in his lecture, Carnwath turns his attention to the notion of “variable intensity” review: the idea that, as Laws LJ put it in R v Education Secretary, ex parte Begbie [2000] 1 WLR 1115:

Fairness and reasonableness (and their contraries) are objective concepts; otherwise there would be no public law, or if there were it would be palm tree justice. But each is a spectrum, not a single point, and they shade into one another. It is now well established that the Wednesbury principle itself constitutes a sliding scale of review, more or less intrusive according to the nature and gravity of what is at stake …

Carnwath takes issue with the suggestion that the intensity of review should be determined by reference to the “nature and gravity of what is at stake”:

[T]ake two notorious examples of minimal review: the Nottinghamshire case (local authority finances), and Puhlhofer (housing the homeless). Neither was lacking in gravity: the first raising issues of national importance about the relationship of national and local financial competence; the latter, in a quite different way, touching on the basic need to have a roof over one’s head. In restricting the scope of review, the courts were making judgments, not about relative gravity or importance, but about relative competences, and about allocation and definition of relative responsibilities within a prescribed statutory framework.

These remarks suggest a conflation of what I have termed “starting-point deference” and “adjudicative deference”. The former is concerned with the burden of justification the decision-maker is to be subjected to—a consideration that ought properly to be informed by the normative fundamentality of the value upon which the public decision is alleged to impact. The latter concept—adjudicative deference—is concerned with the rigour with which the court will review whether the burden of justification has been discharged. It is in relation adjudicative deference that considerations such as institutional competence can properly enter into play. But the fact that such considerations may sometimes operate does nothing to detract from the fact that the initial allocation of the justificatory burden can (and should) be informed by what is normatively placed at stake by the impugned administrative decision.

Following his criticism of other approaches, Carnwath endorses the attempt of Sir Jeffrey Jowell to ascribe greater structure to the notion of unreasonableness. Jowell observes that decisions are likely to be judged to be unreasonable when they: disclose particular characteristics, such as being illogical; lack a rational connection with the evidence; exhibit unduly uncertain or excessively vague reasoning; place too much or too little weight on a legally-relevant consideration; result from the application of a policy that amounts to a fettering of discretion; result from ignorance of or a mistake concerning a material fact; breach the rule of law, a legitimate expectation or the principle of consistency; or are unduly harsh. Carnwath says:

I like that analysis. The important question is not whether the decision is beyond the range of reasonable responses, but why? The reason must be found either in the statute, expressly or by implication, or in some other general but separately identifiable principle of the common law. I like it also because it accords to my own experience of the development of administrative law over the 45 years or so of my professional career. The judges have been like sculptors chipping away at the relatively formless block bequeathed to them by Lord Greene, in order to carve out some more practical and specific tenets of the law such as can be applied to real cases. General judicial theorising even at the highest level should not always be taken too seriously. Much more important is what the courts have actually decided – particularly those where the challenges have been successful, and where the reasoning has stood the test of time.

Carnwath is right when he says that the key question is not whether a decision is unreasonable, but why it is unreasonable. He does not, however, develop that insight sufficiently. A court is entitled to ask whether an administrative decision is reasonable—in the sense of being justified—when, in the first place, that decision prima facie compromises a value (including a right) that is worthy of protection. The heavy lifting must therefore be done by a more-developed conception of what those values are, and of what their normative significance is relative to one another. Attempting to reduce substantive review to a catalogue of single instances, for all that it may bring the appearance of greater clarity and certainty to this area of administrative law, fails to grapple with the underlying need for a normative ordering of the values that warrant judicial protection. What is actually called for is a greater sense of the underlying principles and the theoretical framework in which they sit, not a retreat into pragmatism.

That Carnwath is advocating such a retreat is placed beyond doubt by the startling frankness exhibited in the closing section of the lecture:

In 19 years as a judge of administrative law cases I cannot remember ever deciding a case by simply asking myself whether an administrative decision was “beyond the range of reasonable responses”, still less whether it has caused me logical or moral outrage. Nor do I remember ever asking myself where it came on a sliding scale of intensity. My approach I suspect has been much closer to the characteristically pragmatic approach suggested by Lord Donaldson in [R v Take-over Panel, ex parte Guinness plc [1990] 1 QB 146], by way of a rider to what Lord Diplock had said in [GCHQ]: “the ultimate question would, as always, be whether something had gone wrong of a nature and degree which required the intervention of the court and, if so, what form that intervention should take”. If the answer appears to be yes, then one looks for a legal hook to hang it on. And if there is none suitable, one may need to adapt one … Generally we [judges] should look to the academics to do the theorising, and to put our efforts into a wider context. That way, we can decide the cases, and then they can tell us what we really meant, so that we can make it sound better next time.

These comments betray a highly pragmatic approach—also exhibited by the Supreme Court, and by Lord Carnwath’s judgment in particular, in R (Jones) v First-tier Tribunal [2013] UKSC 19—that places the doctrinal integrity of administrative law at risk. It is impossible to ask whether something “has gone wrong” such as to require judicial intervention unless one first has a worked-out conception of the types of “wrong” with which judges can properly be concerned, and of the normative significance that is properly to be ascribed to particular “wrongs” (which might include, but will not be limited to, the infringement of “rights”).

Of course, the nature of the common law is that principle often emergences inferentially, via the incremental process of deciding individual cases—and there is nothing wrong with that. It would be naïve to suggest that judges should not put finger to keyboard until they have developed their own all-encompassing theory of (administrative) law. There is, however, a balance to be struck between gut instinct and principled analysis. The concern raised by Carnwath’s approach in his ALBA lecture and his judgment in Jones is that it risks treating the conceptual apparatus of administrative law as something which does little more than confer a doctrinal veneer upon judgments that are ultimately taken upon other grounds. On one view, such an approach is refreshingly honest, and to be welcomed for that reason. On another view, however, it evidences a relentless pragmatism that risks reducing administrative law to a vehicle for dispensing palm-tree justice.

“Theorising” is not just for academics, and nor is theory merely an ex post framework of scaffolding to be erected so as to confer a specious conceptual stability upon extant judicial decisions. Carnwath’s view that judges should “make better use” of academic analysis is welcome, but his perception of what that should actually reduce to in practice is arrestingly insubstantial. Real engagement between judges and academics – and between judicial reasoning and legal theory – must transcend relying upon the latter as a means of making the former “sound better”.

Mark Elliott is Reader in Public Law at the University of Cambridge. This post first appeared on his blog, Public Law for Everyone

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Danny Nicol: Doctor Who and the Constitution

dannyThe BBC’s longest-running drama series Doctor Who is currently celebrating its 50th anniversary.  Doctor Who might seem rather distant from matters of constitution and law.  In fact questions of politics, law and the constitution continually arise in Doctor Who stories.    Each new planet on which the Doctor’s time-and-space machine, the Tardis, materialises, has a different constitutional story to tell.  And a series which purports to be about distant epochs, far-flung planets and bizarre monsters, is often really about Britain, its politics and its law.

To instance a few issues constantly raised in the show:

  •  The question of constitutional globalisation looms large.  At one stage – the late 1960s and early 1970s – Doctor Who’s writers assumed that a shift from national to supranational governance would be fundamentally progressive.  Accordingly Doctor Who stories constantly denigrated the British state and upheld international endeavour as the way forward.  The show deployed intergalactic law as an extended metaphor to the same effect.   This position radically shifted in the post-2005 show, abandoning the knee-jerk hostility to national institutions and displaying a constitutional patriotism borne of disillusionment with supranational governance.
  • The issue of war crimes and their relationship to British foreign policy also features prominently.  The legitimacy of the Doctor’s interference on other planets is always in question, but this questioning intensifies markedly in the post-2005 “new show”.  Time and again the Doctor’s right to judge between good and evil is challenged.  This coincides with Britain’s intervention in Iraq and Afghanistan and the seeming immunity of British and American leaders from prosecution for war crimes.
  • The programme engages repeatedly with the issue of corporate power.  The power of private companies was strikingly ignored in the programme’s early years.  Later, however, the theme became pervasive.  Again, this reflected change in Britain, where the neoliberal nature of globalisation has fostered the development of the transnational corporation and has handed constitutional-law rights to corporations.  Critiquing Britain’s relentless shift towards privatisation and contracting-out, Doctor Who frequently imagines situations in which powerful private companies go beyond their business role and essentially become the State itself, infringing the most basic rights of the individual.  The show also persistently links such “corporation-states” with imperial expansion.

In the interdisciplinary spirit of the age, the Doctor’s adventures merit academic attention, including from scholars in the fields of law and politics.  To this end, Westminster Law School is organising a symposium on the programme’s legal and political aspects:

http://www.westminster.ac.uk/law-society-popular-culture/news/symposium-announcement-and-call-for-papers-the-politics-and-law-of-doctor-who

an-unearthly-child-the-doctor-barbara-susan-and-ianThrough allegory, Doctor Who provides not only a reading of the state of Britain but an underlying normative critique of the country’s governance.  This is a good thing, because we live in an era of political convergence in which differences between the British political parties have significantly narrowed.  This has contributed to a lack of incisive critique of the political and legal status quo outside the academy.  The same spirit has to some extent seeped into academia, leading to a “flattening” of criticism.  Against this backdrop, thoughtfully-written, multi-authored programmes such as Doctor Who can contribute to providing the more critical voices presently lacking.  It is to be hoped that Doctor Who – besides entertaining millions of people in Britain and worldwide – continues for years to come to contribute to the political and legal controversies surrounding our permanently-contested national identity.

Danny Nicol is Professor of Public Law, University of Westminster.

Suggested citation: D. Nicol, ‘Doctor Who and the Constitution’  UK Const. L. Blog (18th November 2013) (available at http://ukconstitutionallaw.org).

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