Monthly Archives: December 2013

Tarunabh Khaitan: Koushal v Naz: The Legislative Court

khaitan_tarunabhIn Koushal v Naz—the case being touted as one of its worst judgments—a two-judge bench of the Indian Supreme Court has overturned a 2009 decision of Delhi High Court which had struck down the criminalisation of sodomy by s 377 of the Indian Penal Code 1860 as unconstitutional. In doing so, it has recriminalized every Indian who has ever had oral or anal sex (irrespective of the gender of the person they had it with, and irrespective of consent).

Many commentators have already pointed out the spectacular lack of constitutional and judicial aptitude, understanding of human rights and compassion in the judgment (see these excellent commentaries by Vikram Raghavan, Gautam Bhatia, Pratiksha Baxi, Mayur Suresh, Siddharth Narrain, Arghya Sengupta, and Shreya Atrey among others). In this post, I will focus on the deeper structural and institutional decline of which this judgment is a painful symptom. If Koushal were read simply as the failure of a couple of judges to get the law right, India would miss a rare opportunity to treat the root causes of the malaise.

Koushal represents two structural failures of the Indian Supreme Court, at least one of which has sometimes been commended as a great success by some Indian and foreign commentators. The first structural failure, one that many progressives see as a model for how the judiciary should be organised, is the near-total abandonment by the Supreme Court of the principle of separation of powers, and its transformation into a populist, legislative court of governance. The second failure, one that flows from the first failure, is the Court’s routine dereliction of its duty to give reasons for its decisions and the Indian legal academy’s failure to hold it accountable for this dereliction. Let me explain both of these failures in turn, and how they have facilitated the decision in Koushal.

Failure I: Judiciary as a Counter-majoritarian Institution

In Koushal, the Court could barely conceal its disdain when it described lesbians, gays, bisexuals and transgendered people as ‘a miniscule fraction of the country’s population’ [43] with ‘so-called rights’ [52]. This may seem bizarre to those of us who believe that one of the primary functions of constitutional courts is the protection of vulnerable minorities. Clearly, a ‘miniscule’ minority should be of particular concern to a counter-majoritarian institution.

The Court’s position is easier to fathom if understood in the context of its history following the authoritarian Emergency imposed in India in the mid-70s by Indira Gandhi. During the Emergency, a scared Court agreed to the suspension of Habeas Corpus. After the deeply unpopular Emergency was lifted and the country returned to democracy, the Court started to reinvent itself to gain institutional legitimacy. This reinvention was, however, not in terms of pitting itself against the representative organs of the state, but by competing with these organs. The process, which began in the ‘80s, only intensified in the ‘90s which saw an end to one-party-dominance in politics. Coalition politics and weak legislatures remain a feature of Indian politics to this day. The Court, in the meantime, became a populist institution of governance—stepping in to fill the void left by an increasingly dysfunctional Parliament. In a country where the majority of the population suffers significant disadvantage, majoritarianism can often become aligned with ‘progressive’ politics. A majoritarian Court continued to play to the gallery and wrecked havoc on the principle of separation of powers. As it laid down detailed guidelines, took up cases without any litigant, appointed commissioners, created policy, and micro-managed implementation, it was cheered on by civil society, while meek politicians barely managed occasional squeals of disapproval. Its occasional retrogressive missteps were brushed aside as aberrations, and the Indian Supreme Court, regularly invoking its popular Public Interest Litigation jurisdiction, came to be seen as a model of progressive judiciary by many people in India, and outside India.

It should not surprise us that this majoritarian populist institution found it impossible to respect the ‘so-called’ rights of a ‘miniscule’ minority. Of course, Indian courts have sometimes stood up for minority rights. So has the Indian Parliament. What matters is the self-image the Court has been allowed to cultivate, which overwhelmingly determines its institutional course of action. This self-image is not that of a counter-majoritarian institution correcting the excesses of democracy, but one that is acutely conscious of the reception of its judgments by the people (such consciousness extends only to the outcome of a case, not its reasoning). Under this model, if representative bodies did a good job of representing the people, the courts would be unnecessary. The Court is a political actor, which wants to be judged as politicians are judged. Its legitimacy rests on popular acceptance, not constitutional mandate.

This political context explains, rather than complicates, how the bench in Koushal suddenly discovers the joys of separation of powers. The Court first extends the presumption of constitutionality to a pre-constitutional colonial law by suggesting that the democratic Parliament has ‘adopted’ it by failing to amend it! [28, 32]. It specifically mentions a 2013 legislation amending the law dealing with sexual assault as proof that ‘the legislature has chosen not to amend the law or revisit it’, ignoring completely the fact that there was no need for Parliament to do so after the Delhi High Court had read down s 377 to exclude private sex between consenting adults from its ambit. That the 2013 legislation was enacted after the hearing in Koushal was concluded, thereby affording no opportunity to the parties to challenge its use by the Court, is another matter.

This ostensible deference to democratic will is an opportunistic fig leaf of a populist Court with little more than contempt for the representative institutions of democracy. In an act of concluding magnanimity to the legislature, the final sentence of the judgment grants it permission to consider the ‘desirability and propriety of deleting section 377’ [56]. The fact that it thought such a clarification was necessary tells us that this is not a Court deferential to the legislature—this is a Court with unhesitant pretensions of being the legislature.

Failure II: The Duty to give Reasons

A key feature of adjudication is the public articulation of reasons after hearing principled submissions by the parties involved, on the basis of which a judge arrives at her decisions. In this respect, adjudication differs from voting, which allows a decision-maker to decide without having to articulate her reasons (or even without having any reasons). The Indian Supreme Court in Koushal fails to respect this fundamental judicial duty at so many levels that it is difficult to escape the conclusion that the Court seems to be voting, not adjudicating. The following factual inaccuracies, unsupported conclusions, and omissions in the judgment are particularly noteworthy in this regard:

    1. The Court records the Government of India’s position on the case as one defending the criminal provision under review [7]. This, despite the fact that the Government had chosen not to appeal the High Court ruling, and its top lawyer—the Attorney General of India—had clearly told the bench that the Government supported the High Court’s decriminalisation of adult consensual sex. Remarkably, the Court describes the Attorney General as ‘amicus’ [21], forcing him to publicly clarify that he had very much represented the Government’s official position in the case.
    2. The Court found itself able to ignore the voluminous material placed before it to conclude that there was no evidence to show that ‘homosexuals, gays, etc., are being subjected to discriminatory treatment either by State or its agencies or the society’ [40].
    3.  Long-standing precedent is clear that Article 14 (right to equality) of the Constitution requires every legal classification to be based on an intelligible differentia and have a rational nexus with a legitimate state objective. The Court, while repulsing the Article 14 challenge, finds it sufficient to say that the classification between ‘[t]hose who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature’ is intelligible [42]. It wastes no ink trying to identify the state objective being pursued, or asking whether the measure has any nexus with that objective.
    4. Even this half-hearted attempt to give reasons is not made when rejecting the Article 15 (right against discrimination) challenge. No reasons whatsoever are provided [44].
    5. The way the Court deals with the challenge under Article 21 (the right to life and liberty) is even more curious. After devoting several paragraphs quoting established precedents on Article 21 [45-50], the Court makes no specific finding with respect to Article 21! After these block quotations, the Court moves seamlessly to simply assert that the use of s 377 to ‘perpetrate harassment, blackmail and torture’ is ‘neither mandated by the section nor condoned by it’ [51]. How the preceding six paragraphs setting out the established doctrine under Article 21 help the Court reach this conclusion, and how this conclusion repels the Article 21 challenge, is anybody’s guess.

The judgment seems to have been written carelessly, perhaps even in a hurry—the hearing in the case concluded in March 2012, and the judgment was delivered in December 2013, on the day before the senior judge on the bench was due to retire. A cavalier attitude to its duty to give reasoned judgments is not uncommon in the Indian Court’s jurisprudence. Although unfortunate, this is hardly surprising. The Court has a total strength of 30 judges, who usually sit in benches of 2. In 2011 alone, they decided some 47,000 admission matters (the Court sets aside two days every week to hear admission applications!), of which 9,070 were admitted for regular hearing. The main reason for this staggering docket, apart from the size of the country, is its remarkably liberal invocation of its ‘special leave’ jurisdiction, which allows review petitions from any court or tribunal in the country to be placed directly before the Supreme Court (Article 136, Constitution). A direct approach to the top Court deprives it of the benefit of the considered views of the courts below, and should be allowed very rarely. The pressure of its workload also results in the constitutional requirement that any constitutional case involving a substantial question of law must be heard by at least five judges (Article 145) being routinely ignored (including in Koushal). Only 0.12% of all cases disposed of by the Court between 2005 and 2009 were decided by a bench of five judges or more.

Given such volume, what is surprising is the respectable number of cases where Indian judges do manage to give reasoned judgments. The fragmentation of the Court into small benches deciding thousands of cases every year had led to a situation where even a conscientious judge would find it next to impossible to respect stare decisis. For less conscientious judges, the opportunity to cherry-pick precedents is limitless.

Furthermore, the academy simply cannot keep up with the judicial assembly line. Academic criticism is the real check on judicial power in a democracy. In the Indian context, academics are forced to focus on the outcome of the cases alone—only a handful of cases (like Koushal) that really stand out receive proper academic attention. This reinforces the judicial belief that all they need to do is to make the outcome generally palatable; all else will probably be ignored. Thus, the judges decide as if they were politicians, and they are judged as if they were politicians—based not on how they reason but on the way they vote.

Conclusion

The outrage that this judgment has inspired amongst politicians, activists and academics in India presents an opportunity to rethink the fundamental structural weaknesses of the Indian Supreme Court. Most of the recent debate on the reform of the Court has focussed on changing the appointment system of judges (currently, the Court appoints its own judges!) and dealing with the lack of diversity in the judiciary. While who gets to be a judge is an important issue, unless these structural infirmities are addressed, even Herculean judges cannot change the situation very much. The Court needs to reaffirm its central counter-majoritarian purpose in a liberal democracy. It must do less and do it well. It must stop voting and stick to adjudicating.

Dr. Tarunabh Khaitan is Hackney Fellow in Law at Wadham College, Oxford.

Suggested citation: T. Khaitan, ‘Koushal v Naz: The Legislative Court’ U.K. Const. L. Blog (22nd December 2013) (available at http://ukconstitutionallaw.org).

Postscript: Some readers have emailed to ask about the possibility of review. Although this is a judgment of the highest court of the land, because of the proliferation of 2-judge bench rulings, the Court has had to invent two further review stages to challenge its own judgment–a (rarely invoked) review jurisdiction and then a (very rarely used) ‘curative’ jurisdiction. The  government has been the first of the parties to seek review.  Other petitioners are expected to follow suit. How the Court will react remains to be seen.

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Mike Gordon: Constitutional Reform under the Coalition Government

mike-gordon-pictureThe Government’s response to the House of Commons Political and Constitutional Reform Committee’s (PCRC) report Do we need a constitutional convention for the UK? is in many ways a rather unremarkable document (Cm 8749, November 2013).  The PCRC’s report (Fourth Report of Session 2012-13, HC 371) was published on 28th March 2013, and concluded that there was ‘a need to consider both how the increasingly devolved parts of the Union interact with each other, and what we, as residents of the UK, want the Union to look like going forward’.  As a result the PCRC suggested that the Government ‘consider, among other options, preparations for a UK-wide constitutional convention, including decisions about its form and organisation, and the process of calling for evidence’, which would be held in the aftermath, and regardless of the result, of the Scottish independence referendum in September 2014.

The qualified nature of this suggestion stemmed from the fact that there were ‘a range of very different opinions’ as to the necessity and/or desirability of holding a constitutional convention for the UK among the witnesses who provided evidence to the PCRC’s inquiry, and the absence of unanimity among Committee members about the recommendations which ought to be made to the Government.  Yet it is most unlikely that even had the PCRC offered a resounding and unreserved endorsement of a need for a constitutional convention urgently to be convened that an alternative response from the Government would have been prompted from that which was actually received.  For the Government concluded that there was not a strong case to hold a constitutional convention at this time (para 4.3) as there was a lack of public demand (para 2.2), and it had alternative pressing priorities; in particular, the need to focus on ensuring the recovery of the UK economy (para 1.3).

So far, so unsurprising – lack of public interest and scarcity of resources being used to justify (politely) a government declining to engage in a potentially elaborate exercise in constitutional reform.

What is of interest, then, in the Government’s response?  Two things might be considered worthy of note.  First, the Government does not reject the argument that a constitutional convention should be held in principle. It does not, in other words, argue that a constitutional convention is not a potentially useful mechanism through which constitutional reform could be pursued in (or to) the UK.  The Government accepts that ‘there may be situations in which a constitutional convention is needed’ (para 4.1), and while declining to comment specifically on the possible composition of such a convention, the important principle that the public should be the ‘driving force’ in such an undertaking is accepted (para 2.1).

Of course, future governments will not necessarily be bound by the position taken by the Coalition.  But the response of the Government, taken together with the assessment of the matter carried out by the PCRC, does seem to recognise that future significant constitutional reform to or within the UK may need to be the result of a process that is more inclusive and reflective than might have been experienced previously.  This is not to say that some (perhaps much?) constitutional reform cannot still be government-led – as the Government’s response indicates, ‘context is crucial’ (para 1.4).  Instead, it is to acknowledge the availability of the constitutional convention as a tool of constitutional reform in the UK, and thus the possibility of broader engagement with the future shape and substance of the constitution than a model in which it is (broadly, albeit with input from other actors and groups) for the UK Government to determine, and the UK Parliament to implement, the quantity and quality of modifications to the existing settlement.

The second matter of interest in the Government’s response to the PCRC report is not about the process of constitutional reform, but the attitude to reform which is evident in the document.  Constitutional reform is explicitly said to be ‘important’ (para 4.1), and much more time is spent in the response detailing the programme of constitutional reform that the Coalition Government has engaged in during its time in office than actually addressing the need (or lack thereof) for a constitutional convention.

The central motif for this programme of reform is presented as ‘decentralisation’, something understood to accommodate both further devolution of power to Northern Ireland (the transfer of policing and justice functions in 2010, with the prospect of additional fiscal powers being devolved currently under consideration), Wales (the 2011 referendum leading to the devolution of ‘full law-making powers’ in the subject areas originally covered by the Welsh settlement, with the commitment to accept many of the Silk Commission’s recommendations on future financial powers for Wales) and Scotland (the extensive devolution of fiscal power under the Scotland Act 2012, and the prospect of further devolution if Scotland remains a part of the UK after 2014), in addition to shifting power away from Westminster to local government in England.

Whether it is right to describe this redistribution of power to local government as a ‘historic shift’ (para 3.24), or whether all the examples cited can really be understood to form part of a programme of constitutional reform (for example, ‘creation of enterprise zones in 24 cities and wider Local Enterprise Partnership areas that provide significant tax breaks’?) can be debated elsewhere.  What is clear is that the Government wants to present itself as having a pursued an extensive, but also coherent, reform agenda.  Examples of constitutional change which do not fit into the overarching decentralisation narrative are either sidelined (the Parliamentary Voting System and Constituencies Act 2011 and Fixed-term Parliaments Act 2011 are mentioned in passing in para 3.11, despite the significance of the latter, and the intentions – if not the results – of the former) or left out (European Union Act 2011Succession to the Crown Act 2013Crime and Courts Act 2013?).  Perhaps it would be too much to expect the failed attempts to reform the House of Lords to be acknowledged, but the result is that a full impression of the (significant) reforming aspirations of the Coalition is not achieved by attempting to organise its programme around the notion of decentralisation.

Is this of great importance?  Is it not the prerogative of each government to try to make what it has achieved as consistent and rational as possible?  And the notion of decentralisation has not been freshly invoked for the purposes of this response – indeed, the Coalition agreement Our Programme for Government of May 2010 spoke of ‘a determination to oversee a radical redistribution of power away from Westminster and Whitehall to councils, communities and homes across the nation’ in the foreword, in addition to highlighting the importance of decentralisation itself in section 4 on Communities and Local Government (although interestingly the principle is not mentioned in section 24 on Political Reform).

Yet it can be seen to tell us something important about the attitude of the Government to reform.  That governments have been interested in pro-actively engaging in constitutional reform has been clear since the New Labour Government which first took office in 1997.  As Rodney Brazier has demonstrated, prior to this attempts at constitutional reform were generally ad-hoc and reactive (see Constitutional Reform, 2008, 3rd ed. OUP).  However, successive New Labour administrations engaged in reform not because it was required by extenuating circumstances, but because it was seen to be desirable in its own right.  The Coalition Government has continued to seek pro-actively to reform the constitution in a range of areas, but the attempts made to explain and justify what has been done in the response to the PCRC also seem to go further.  They appear to be presenting a range of reforms as part of a systematic plan, with decentralisation of power the overriding objective.   Constitutional reform is here presented as being pro-active and systematic, taking us further than ever before from the pre-New Labour paradigm.  Whether this programme of reform is systematic, or is simply being represented as such with a particular purpose in mind, is not something that needs to be conclusively determined here.  What matters is that the Government is seeking to portray it as such.

It would be to read too much into a relatively straightforward response to a Select Committee inquiry to view this as some kind of dramatic step forward.  But the attitude to constitutional reform which underpins this response is, in my view, important.  It shows that the shift in approach to constitutional change initiated by New Labour has not only continued under the Coalition, but arguably developed further.  Reform should not just be pro-active, but will also ideally be coherent, and justified by reference to common underlying principles.  Gordon Brown’s The Governance of Britain (Cm 7170, July 2007) may have been a more dramatic statement of such intent, but ultimately disappointed.  The present Government’s representation of its efforts to reform the UK constitution in response to the PCRC seems to confirm that this attitude has taken root (although disappointments still remain).  Ultimately, we may then hope that trying to talk about constitutional reform in a more coherent and systematic way will eventually lead us to practice constitutional reform in a more coherent and systematic way too.

The Government’s response to the PCRC may therefore be unremarkable on the face of it.  Yet those who are interested in changing methods and attitudes to reform of the UK constitution may find that, beneath the surface, there is some evidence of progress.

Dr Mike Gordon is Lecturer in Public Law at Liverpool Law School, University of Liverpool.

Suggested citation: M. Gordon, ‘Constitutional Reform under the Coalition Government’    UK Const. L. Blog (18th December 2013) (available at http://ukconstitutionallaw.org)

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Aileen McHarg: A Tale of Two Constitutions?

aileenLast week, I spent two days in London, accompanying a group of Constitutional Law students on a trip to the Westminster Parliament, the Supreme Court and the Scotland Office.  The trip was part of a final year research project shadowing the House of Commons Political and Constitutional Reform Committee’s Inquiry into The Constitutional Role of the Judiciary if There Were a Codified Constitution.  The students had extraordinarily privileged access to ministers, MPs and peers, to Supreme Court justices, and to leading academics and members of the Scots and English Bars.  It was a hugely valuable and enjoyable experience for students and their teachers alike.

However, what struck me very forcibly while I was in London was the disconnect between constitutional debates at Westminster and those in which we are currently engaged in Scotland.  Whilst the Political and Constitutional Reform Committee was discussing the implications of a written constitution which most people to whom we spoke regarded as wholly hypothetical, here in Scotland we are facing the real prospect of constitutional codification in the event of a yes vote in next year’s referendum.  Given the state of the opinion polls, it may be unlikely that this will in fact happen.  But the important point is that, unlike for the UK, there are conceivable circumstances in which Scotland could soon have written constitution.  Nevertheless, the Scottish situation appears to have played no part in the Committee’s inquiry, nor does there seem to be much awareness of the fact that the judiciary already plays a strong constitutional role in relation to the Scottish Parliament and other devolved legislatures.

We see a similar constitutional disconnect when it comes to the European Union.  While all the talk in Scotland is of whether we could remain a member of the EU in the event of independence, Westminster is currently debating a Bill (The European Union (Referendum) Bill 2013-14) which will pave the way for a referendum on whether the UK should remain a member.

Of course, the independence referendum and its implications have not been wholly ignored at Westminster.  The Scottish Affairs Committee has published a steady stream of reports   on what it insists in calling ‘separation’ for Scotland, and on 5 December the House of Lords held a short debate on the Scottish Government’s independence White Paper, in which various speakers called for a full debate and/or the establishment of a joint Parliamentary committee to examine the White Paper fully.

The tone of these interventions from Westminster is, however, almost unremittingly hostile to independence.  For most Westminster politicians, the idea of independence for Scotland would appear to be so preposterous that only a fraud or a fool could support it.  For instance, in a report published shortly before the White Paper, the (notoriously partisan) Scottish Affairs Committee came close to accusing the Scottish Government of lying: “The Committee believes that the present Scottish administration, in relation to separation, is strongly motivated to present a selective and biased account of the facts.” (at para 11)  Similarly, in the recent House of Lords debate, Lord Forsyth of Drumlean gleefully related the fact that the title of the White Paper – Scotland’s Future –is an anagram of “fraudulent costs” (at col 397).  For Lord Foulkes of Cumnock, the White Paper was “650 pages of continuous fiction” (at col 400), while for Lord Steel of Aikwood it was a “bogus prospectus of a bogus independence” (at col 401).  The only note of dissent in the debate came from Lord Purvis of Tweed who, while not in favour of independence, nevertheless considered that the UK was in need of reform.

It is easy to dismiss this kind of stuff as just good political knockabout.  And it might also be argued that, if the independence debate is not taken more seriously at Westminster, it is the fault of the Scottish Government for insisting that it is a matter for the people of Scotland alone (indeed, even at Westminster, few non-Scots voices are heard).  Yet, how could it be otherwise?  While independence for Scotland undeniably has implications for the United Kingdom as a whole, and the terms of independence must assuredly be negotiated, as a matter of principle the right of a minority to seek self-determination cannot be dependent on the will of the majority.  More pragmatically, the tone of the Westminster debates indicates there would be no possibility of the independence case receiving a fair hearing.

In fact, the tone of the debate at Westminster is not merely distasteful but, by failing to do justice to the seriousness of the debate in Scotland, or to make the positive case for the union that undoubtedly exists (see, eg, Jim Gallagher’s speech  at Glasgow University in October), it seems to me to pose a threat to the continuation of the UK – perhaps not in the short term, but taking a longer view.  The degree of constitutional disconnect between Scotland and the rest of the UK, as represented by Westminster, contributes to a growing sense that these are two separate polities with different constitutional trajectories.  While voters in Scotland may well conclude that, for now, remaining in the union is the less risky of the two constitutional futures on offer, this looks less like being a ringing endorsement of the union than a pragmatic – and therefore contingent – calculation.

I may, of course, be wrong.  Once the referendum is over and if (when?) the no side prevails, these constitutional trajectories may reconverge in a mutual commitment to a reconfigured union.  For instance, the Political and Constitutional Reform Committee has called for  a constitutional convention to be set up after the referendum to consider the relationship between the union and its constituent parts.   Gordon Brown has also recently advocated  the adoption of a written constitution which would guarantee the powers of the Scottish Parliament. There is no reason in principle why such a constitutional settlement could not accommodate a diversity of constitutional visions, both institutional and substantive.  Equally, it could accommodate multiple polities, where people have multiple political identities and owe multiple political allegiances, so long as there is mutual commitment to the union and mutual toleration of diversity.

It is, however, precisely that mutual commitment and toleration that is in question here.  The latest British Social Attitudes Survey showed that, in 2012, while some 65% of those living in Scotland had some form of dual Scottish and British identity, if forced to choose between them, 69% opted for a Scottish identity, while only 20% chose a British identity – the latter figure having been in long-term decline since 1979 when it stood at 40%.  In this context, it is highly problematic that Westminster politicians prefer to disparage Scots’ aspirations for greater autonomy than to consider in a positive way how these might be accommodated.

In such an atmosphere of weak commitment to the union and intolerance of diversity, the prospects for a UK-wide constitutional settlement appear wholly unrealistic – more likely further to expose rather than to resolve the deep constitutional divisions between the constituent parts of the UK.  The hostility to the idea of a UK Bill of Rights from Scotland, Wales and Northern Ireland provides a foretaste of what would be likely to occur (Commission on a Bill of Rights, A UK Bill of Rights: the Choice Before Us, ch 9.  Much more probable is some further piecemeal adjustment of Scotland’s governance arrangements, which leaves their asymmetries under-theorised and their underlying tensions intact, if not more pronounced.  By failing to ask the fundamental questions about the relationship between the UK and its constituent parts, the union may be able to muddle through for a while longer.  However, unless and until these questions are satisfactorily resolved, Scotland’s place in the union will continue to be uncertain.

Aileen McHarg is Professor of Public Law at the  University of Strathclyde.

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

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Events: UK Constitutional Law Group events in January 2014

There are three UK CLG events in January 2014.

Annual General Meeting and short conference 17 January

On Friday 17 January  2014 the UK CLG will hold an Annual General Meeting at which proposals for developing the Group will be discussed. The AGM will be followed by a short conference consisting of two sessions. All members who have paid subscriptions for 2013 are encouraged to attend the AGM; the short conference is open to all. 

Venue: Keeton Room, UCL, Bentham House, Endsleigh Gardens, London WC1H 0EG.

12.30: Refreshments will be served.

1.00-2.00 pm:  the AGM (papers will be circulated in early January)

Conference:  2.00 – 4. 15 pm

Session 1 Nicholas Barber will lead a discussion on ‘Key constitutional themes of 2013’

Session 2 Merris Amos will present a paper on, ‘Dialogue between the UK courts and the European Court of Human Rights’. Further speakers to be confirmed.

4.15 – 5 pm Drinks

Book Launch and Discussion: Accountability in the Contemporary Constitution (OUP) 20 January

Bamforth and LeylandMonday 20 January 2014, 6-8 pm (you are welcome to arrive from 5.30 pm)

Venue: Faculty of Business and Law, London Metropolitan University, City Campus, 16 Goulston Street, London E1 7TP. Goulston Street is in close proximity to Aldgate East and Aldgate underground stations.

UK Constitutional Law Group members are invited to the launch of  Accountability in the Contemporary Constitution, edited by Nicholas Bamforth and Peter Leyland. The event is in association with Oxford University Press, London Metropolitan University and the Global Policy Institute. RSVP essential:  j.kingmalik@londonmet.ac.uk

The event chaired by Mr Justice Bean will include a brief introduction from the editors and feature Professor Mark Tushnet (Harvard Law School) who will speak on the subject of constitutional accountability.

Oxford University Press will be selling copies of the book on the evening at a special discounted price.

Talk:  Margit Cohn on ‘Non-Statutory Executive Powers in Five Regimes: Assessing Global Constitutionalism in Structural-Institutional Contexts’ 30 January

Thursday 30 January 2014,  6.00-7.30 pm

margit_cohnVenue: Room 1.2, School of Law, Queen Mary, University of London (Lincoln’s Inn Fields Campus), 67-69 Lincoln’s Inn Fields London WC2A 3JB

Margit Cohn of the Hebrew University of Jerusalem will present a talk entitled ‘Non-Statutory Executive Powers in Five Regimes: Assessing Global Constitutionalism in Structural-Institutional Contexts’.

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Cormac Mac Amhlaigh: Once More Unto the (Public/Private) Breach …: s. 6 of the Human Rights Act 1998 and the Severability Thesis

cormacTwo interesting recent blog posts dealt with the meaning of public and private under  s. 6 of the Human Rights Act 1998.  They were motivated by injunction proceedings in the High court whereby the Olympic Delivery Authority, (ODA) the body charged with the logistics and infrastructure of the London Olympic Games, had sought injunctions to restrain protestors from entering and occupying land which was to be developed as part of the Olympic site.  The main issues emerging from this case discussed in the two posts was whether the ODA constituted a ‘core’ or ‘hybrid’ public authority under s. 6 HRA; whether it could itself enjoy human rights to defeat or counter any human rights obligations it may hold in its capacity as a ‘hybrid’ body exercising public functions; and where the ‘centre of gravity’ for determining the human rights obligations of hybrid bodies lay under the Act; under the  s. 6(3)(b) ‘public function’ test or the definition of ‘private act’ under s. 6(5).

In this post, I wish to contribute to the discussion on the third point by highlighting a common essentialist fallacy in approaches to the meaning of ‘public’ under the HRA which leads to circular, question-begging conclusions.  This essentialist fallacy is problematic on its own terms but also has a bearing on the relationship between s. 6(3)(b) HRA and s. 6(5) HRA.  Avoiding the essentialist fallacy requires reading the term ‘private acts’ under s. 6(5) within the context of public functions under s. 6(3)(b) and as such, the post concludes that s. 6(5) cannot stand alone as a ground for determining the human rights obligations, or immunities, of hybrid bodies.

The Severability Thesis

Perhaps the main point of disagreement between the two previous posters on this topic was the question of the relationship between s. 6(3)(b) and s. 6(5) HRA.  As is well known, s. 6 creates a legal obligation on public authorities to act compatibly with the rights contained in the ECHR, and s. 6(3)(b) extends the meaning of public authority to ‘any person  certain of whose functions are functions of a public nature’.  s. 6(5) furthermore states that ‘In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private’.  This has resulted in a classification of two types of body which are subject to human rights obligations under the act:  ‘core’ and ‘hybrid’ bodies. (See Lord Nichols, para.11 in Aston Cantlow PCC v. Wallbank [2003] UKHL 37).  Defining the human rights liabilities of hybrid bodies, moreover, raises the question of what can be called a ‘severability thesis’; that is, whether s. 6(5) is severable from s. 6(3)(b) such that it constitutes a separate head of analysis for determining the human rights liabilities of particular hybrid bodies.   If it is not severable, s. 6(5) simply serves to compliment an analysis of the functions of hybrid bodies by simply reinforcing the ‘hybridity’ of the body in order to distinguish it for ‘core public authorities’.  As such, the notion of ‘private acts’ under s. 6(5) is assimilated into a broader analysis of the ‘publicness’ of the functions of a hybrid body under s. 6(3)(b).    If the two provisions are severable, then a two-stage test to assess the human rights liabilities of hybrid bodies is necessarily; firstly to determine whether the hybrid body undertakes ‘functions of a public nature’ and then a further analysis to determine the ‘privateness’ of the act which was taken pursuant to the public function.    Moreover, as well as adding another limb to the test of the human rights liabilities of hybrid bodies, the severability thesis also, significantly, shifts the ‘centre of gravity’ on the human rights liabilities of hybrid bodies from s. 6(3)(b) and the definition of ‘public functions’, to s. 6(5) and the definition of private ‘acts’, where s. 6(5) and not s. 6(3)(b) provides the ultimate litmus test to determine the human rights liabilities of these bodies.  On this analysis, even if a hybrid body is not deemed to be discharging a public function under s. 6(3)(b), it can still be caught if it is found that the nature of the act which caused the alleged human rights violation was public and vice versa.

The severability thesis was a significant point of disagreement between the two previous posters.   David Mead seemed persuaded by the severability thesis, claiming that s. 6(5) can be read narrowly to warrant an independent analysis on the question of the ‘privateness’ of the act which is separate from ,and can defeat, the analysis for ‘public function’ under s. 6(3)(b) relying on statements from the Court of Appeal in Weaver in support.    Alexander Williams, on the other hand, explicitly refuted the severability thesis, arguing that the centre of gravity of the human rights liabilities of hybrid bodies lies with s. 6(3)(b) and not s. 6(5).  Evidence of this, he argues, can be found both in the failed attempt by Elias LJ in Weaver to apply the two-stage test implicit in the severability thesis, as well as Parliament’s intention in drafting the provision.

Beyond the blogosphere, the severability thesis has gained some traction from the bench, not least from one of the leading cases on s. 6; YL v. Birmingham City Council.  In this case, Lord Scott, for example, argued that:

“[t]he effect of [s. 6 HRA] is that an act (or an omission) of a private person or company that is incompatible with a Convention right is not unlawful under the 1998 Act … unless the person or company has at least some “functions of a public nature”; but even if that condition is satisfied the private person or company will not have any liability under the 1998 Act if the nature of the act complained of was private.” (para. 23, Emphasis Added).

  In the same case, Lord Neuberger found that :

“In my view, both as a matter of ordinary language and on a fair reading of [s. 6], there is a difference between “functions”, the word used in s. 6(3)(b) and “act[s]”, the word used in section 6(2) and (5) […].  The former has a more conceptual, and perhaps less specific, meaning than the latter.  A number of different acts can be involved in the performance of a single function.  So, if this appeal succeeds, a proprietor … would be performing a “function”, which, while “of a public nature”, would involve a multitude of acts, many of which would be private … a hybrid public authority is only bound by section 6(1) in relation to an act which is (a) is not private in nature and (b) is pursuant to or in connection with a function which is public in nature.” (para.  129, Emphasis Added)

The two-stage test to determine the liabilities of ‘hybrid bodies’ is clear from this latter judicial endorsement of the severability thesis; firstly it must be ascertained whether the function being discharged was a ‘public’ one within the meaning of s. 6(3)(b), and secondly, it must be determined that the impugned act which gave rise to the alleged human rights violation was not private.  Furthermore, this two-stage test, as Lord Neuberger noted, requires a distinction between functions and acts.  This means, as Elias LJ noted in Weaver, that:

“ …  Not all acts concerned with carrying out a public function will be public acts.  Conversely, it is also logically possible for an act not to be private act notwithstanding that the function with which it is most closely connected is a private function, although it is difficult to envisage such as case.  Such situations are likely to be extremely rare.” (para. 28).

In the remainder of this post I will join the side of those arguing against the severability thesis by showing how it relies on a problematic essentialist fallacy which is best avoided.

The essentialist fallacy

            The essentialist fallacy relates to the notion that concepts such as ‘public functions’ or ‘private acts’  have some natural referent in the real world betraying certain essential properties which automatically determines their public or private character.  That is that whether something  (e.g. a relationship, an act, function etc.) is to be deemed public or private relates to the ‘essential nature’ of the thing itself which is in some sense self-evident.  The fallacy was alluded to, albeit obliquely, by Lord Neuberger in YL when he noted that:

            “Any reasoned decision as to the meaning of s. 6(3)(b) risks falling foul of circularity, preconception, and arbitrariness. The centrally relevant words, “functions of a public nature”, are so imprecise in their meaning that one searches for a policy as an aid to interpretation.  The identification of the policy is almost inevitably governed, at least to some extent, by one’s notions of what that policy should be, and the policy so identified is then used to justify one’s conclusion.” (para. 128).

 As I have argued elsewhere, it affects other areas of the HRA, however for current purposes I will focus on its expression with respect to the question of the relationship between s. 6(3)(b) and s. 6(5) HRA.   In Aston Cantlow, in determining the potential human rights liabilities of a Parochial Church Council suing landowners for the cost of repairs of the chancel of a local parish church, several of the bench fell foul of the essentialist fallacy with respect to question of the nature of the acts which constituted the alleged human rights violation.  Having considered the functions of the Parochial Church Council, for example, Lord Hope argued that the nature of the act was that of ‘seeking to enforce a civil debt’ (para 64) which was a ‘matter of private law’ (para. 71).  In the same decision, Lord Hobhouse found that the act in question was  ‘the enforcement of a civil liability’  (para. 89).  Such liability, moreover, was one which ‘arises under private law and which is enforceable by the PCC as a civil debt’. (para. 89).  These considerations were part of the basis of the finding that the act in question was a private one which contributed to the finding that the PCC did not hold human rights obligations under s. 6.   Similarly in YL, Lord Scott, looking at the nature of the act which gave rise to the litigation against a privately owned and run care home by a resident who was being evicted, argued that:

 “the service of a notice terminating the agreement under which YL was contractually entitled to remain in the care home, the notice was served in purported reliance on a contractual provision in a private law agreement.  It affected no one but the parties to the agreement.  I do not see how its nature could be thought to be anything other than private.”  (para. 34).

  In the same case, Lord Neuberger found that:

“[t]he liability of Southern Cross to provide Mrs. YL with care and accommodation in the present case similarly “arises as a matter of private law“.  That is illustrated by the fact that Mrs. YL (or her relatives were) free to choose which care home she went into, and took advantage of that right by selecting a care home more expensive than Birmingham was prepared to pay for … the services provided in this case are very much of a personal nature, as well as arising pursuant to a private law contract between Southern Cross and Mrs. YL”  (para. 168).

In these examples, we can see essentialist fallacy at work.  For each of their Lordships,  the nature of the acts in question, namely the enforcement of a civil debt and a notice to terminate a contractual agreement, were governed by private law and therefore were, by implication, private acts within the meaning s .6(5).  There is therefore a loose and fluid equation of meanings of ‘privateness’ between different contexts. However no explanation or justification of what private law constitutes, nor how this matters for the determination of ‘private acts’ under s. 6(5) HRA is proffered.  It is presented as intuitive or somehow ‘self-evident’.  This is problematic as, it leads, as Lord Neuberger himself acknowledged, to circularity.  To claim, as their Lordships have done, that the enforcement of a civil debt or the enforcement of a contractual provision is inherently private and therefore a ‘private act’ under s. 6(5) is simply to beg the question.  This circularity, moreover, runs the risk of subjectivity in determining ‘privateness’ under the Act as well as, perhaps more problematically, as Neuberger noted, arbitrariness.

It could, of course, be argued that it is relatively common knowledge that contracts between private parties involving the purchase of land or a tenancy agreement are examples of private acts par excellence given that they form the core of what most people would consider private law as a field of law.  Therefore we can reason by analogy that they would fall under the definition of ‘private acts’ under s. 6(5).   However, this reasoning by analogy is not unproblematic.  Firstly, resistance to the classification of   the enforcement of a civil debt for chancel repairs as a naturally and inherently private act came from within the court itself in  Aston Cantlow.   Lord Scott, for example, argued that ‘chancel repair obligations’ in the case had an ‘unmistakable public law flavor to them’. (para. 131)  Secondly, privateness, including privateness in the law, is neither natural nor self-evident but is necessarily context dependent.  Sometimes even prima facie naturally or intuitively private branches of law such as property law can be public.  A good example of this is the US Supreme Court Case of Shelly v. Kramer (334 U.S. 1 (1948)) where the Court found that the enforcement of a racially discriminatory restrictive covenant over land – surely the most intuitively private branch of law; property law – was considered to be a public act in the form of a ‘state action’ given the fact that, in the final analysis, it was ultimately enforced by a Court, which can (and indeed in the HRA is) considered a public authority.  On this logic, then, all private law can conceptually enjoy a public character given that it will ultimately be enforced by a public body, a court.  Thus the essentialist fallacy erroneously assumes an ‘essence’ of publicness or privateness in the law which is imminently contestable.

The essentialist fallacy also conflicts with the ‘sui generis’ nature of publicness and privateness under s. 6.   Academic commentary and the Courts themselves have warned against the importation of conceptions of publicness or privateness from other areas of law into the HRA in order to determine the human rights liabilities of core and hybrid  bodies under the act.  For example,  Lord Nicholls in Aston Cantlow noted  that:

“The word “public” is a term of uncertain import, used with many different shades of meaning:  public policy, public rights of way, public property, public authority (in the Public Authorities Protection Act 1893), public nuisance, public house, public school, public company.  So in the present case the statutory context is all important.  As to that, the broad purpose sought to be achieved by section 6(1) is not in doubt.  The purpose is that those bodies for whose acts the state is answerable before the European Court of Human Rights shall in future be subject to a domestic law obligation not to act incompatible with Convention rights.”  (para. 6, Emphasis Added).

There are numerous other admonitions, both judicial and academic, against importing conceptions of the ‘public’ from, for example, bodies subject to judicial review, ‘emanations of the state’ under EU law, The Race Relations Act 1976 or the Freedom of Information Act 2000, in order to determine the concept under s. 6 HRA.  (See generally, D. Oliver, ‘The Frontiers of the State:  Public Authorities and Public Functions Under the Human Rights Act’ (2004) Public Law, 476.) This has to do with specific purposes of the HRA itself; to ensure the enforcement of human rights ‘at home’ rather than at Strasbourg.  If this is the case, then, importing ‘naturalistic’ understandings of ‘privateness’ from personal intuition or political preference, or from designations of publicness or privateness with different taxonomic or pedagogical purposes, is particularly problematic.

So what has all of this to do with the severability thesis and the relationship between s. 6(3)(b) and s. 6(5) HRA which was the subject of the dispute between the two previous posters?  Well, if it is the case that the essentialist fallacy is to be avoided, and it is argued that there are many good reasons why it should be, we should be sensitive to the contextual nature of ‘publicness’ and ‘privateness’ under s. 6 HRA.  Avoiding the essentialist fallacy, therefore, requires recognizing that the meaning of ‘publicness’ and ‘privateness’, as Lord Nicholls above suggested, is context-dependent. These terms have no independent meaning outside of the specific legal context within which they appear. Against this backdrop, the relevant context which can give meaning to the term ‘private acts’ under s. 6(5) is that of the public function under s. 6(3)(b) pursuant to which the particular (putatively private) act was taken.  The nature of the act itself under s. 6(5), given that it is not inherently public or private, will always be conditioned by the function which governed the act.  Thus, as Elias LJ himself discovered in Weaver when attempting to apply the severability thesis, s. 6(3)(b) and s. 6(5) are relational such that the finding of a public function under the former will have a bearing on ‘privateness’ of the act under the latter. In this sense, they are two sides of the same coin.

 Cormac Mac Amhlaigh is Lecturer in Public Law at the University of Edinburgh and a visiting Fellow at the Faculty of Law, University of Copenhagen.

   

Suggested citation: C. Mac Amhlaigh,  ‘Once More Unto the (Public/Private) Breach …:  s. 6 of the Human Rights Act 1998 and the Severability Thesis’   UK Const. L. Blog (13th December 2013) (available at http://ukconstitutionallaw.org)

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Alan Trench: Implementing Silk in Wales: An Update.

alan-trenchThe UK Government has now published its proposals for the implementation ofthe Silk Commission’s Part 1 report, following its announcement at the beginning of November (and so managed to get its response in just before the anniversary of the publication of the Commission’s report).  The Wales Office’s news release is here and the paper itself, Empowerment and responsibility: devolving financial powers to Wales, is here. (Note for government documentation trainspotters: this isn’t a Command paper to be formally laid before Parliament, and certainly not a white paper or even green paper.  This contrasts with bothLabour and Coalition responses to Calman, and again suggests either that the UK is not taking Wales as seriously as it did Scotland, or that this is a response framed in some haste.)

Unsurprisingly, the paper largely confirms the key elements of the deal announced by the UK Prime Minister and Deputy Prime Minister, previously discussed HERE: devolution of two small land taxes, devolution of 10 points of income tax, but only after a referendum.  It confirms that, as for Scotland, aggregates levy may be devolved, but only once outstanding EU state aids issues are resolved, and that air passenger duty will not be.

The paper does clarify some important issues.  First, the ‘lockstep’ will be maintained; the same Welsh rate of income tax must be maintained in relation to each tax UK tax rate (standard, higher, 45 per cent).  The idea that the Welsh Government should have the power to set different rates for each band – carefully advanced by both the Holtham and Silk Commissions – is dropped.  This move is justified on the ground that devolution of the power to set different rates ‘could distort the redistributive structure (or progressivity) of the income tax system and could potentially be detrimental to the UK as a whole’ (para 2.12).   This aspect of the Calman proposals has been advanced despite its rejection by both Welsh commissions that considered the point.

Second, the paper confirms that business rates should be fully devolved.  This was part of the Silk recommendations, and has been separately endorsed by the Welsh Government following the Morgan review.  It was, however, left out of the Cameron/Clegg announcement, perhaps by oversight. If so, that has now been remedied.

Third, the Welsh Government’s borrowing powers will be introduced immediately, but will also be limited to the devolved tax base.  This implies some limited borrowing capacity when SDLT and landfill tax are devolved, but with significant powers only becoming available if income tax is devolved.  But there is also what appears to be a separate additional commitment to provide some early access to capital borrowing to fund the M4 improvement works.

At the same time, the paper is silent on some other issues.  It does not say who should be able to call the referendum on the new income tax power, only that ‘the model in the Government of Wales Act 2006 worked well in terms of the referendum on legislative powers’.  That would imply that the power should be vested in the National Assembly, but exercisable only a) on the proposal of the Welsh Government and b) by a two-thirds majority.

The paper also has little to say on the question of how the cut in the block grant to allow for the devolved relate of income tax might be made – it just talks of a ‘corresponding’ reduction in the block grant.  This vexed issue – again, the subject of detailed consideration in the Holtham Commission report and adopted for Scotland as part of the deal to secure passage of the Scotland Act 2012 – is a striking omission.  Moreover, the issue of how the cut in the block grant will interact with that (which I discussed in the summer HERE) is glossed over; all the paper does is refer to the October 2012 agreement as ‘robust arrangements …. [which] provide a firm basis for the devolution of income tax’ (para. 2.16).

The paper also offers relatively little on the Silk recommendations regarding information about the financial arrangements for devolution, which remain opaque.  (For example, HM Treasury has apparently updated the population figures used to calculate consequential payments under the Barnett formula following the 2013 Spending Round, but has still not published the new ones.)  It also offers little on institutional arrangements for the new powers, other than to note that ‘Additional costs incurred in implementing and administering these new devolved powers will be the responsibility of the Welsh Government, as set out in the Statement of Funding Policy’ (para. R29, p.18).  It also fails to offer a version of the ‘no detriment’ provision for Scotland, to ensure there was no harm on devolved funding arising from changes in UK tax policy that had knock-on effects on devolved tax revenues.

This raises three sets of concerns about the UK proposals.  First, what is proposed for Wales is largely the Calman package as enacted for Scotland. GivenDanny Alexander’s comments before the Silk Commission was even established, why did anyone need to bother with the whole Silk Commission process, if the UK Government’s intention was simply to apply the Calman model from the outset and not take into account the changes to that which the Silk Commission recommended?  If the main factors influencing UK Government policy were inter-departmental and inter-party bargaining at Westminster, members of the Commission might have reason to wonder why they had to spend so much time and effort to help the UK Government end up with what starts to look rather like a pre-ordained outcome.

Second, where the UK Government proposes changes from the Scotland Act 2012 implementation of the Calman model, they are subtractions from that rather than additions or variations to fit Welsh circumstances.  It is unclear why Calman should be applied when it comes to matters like the income tax lockstep but not the ‘no detriment’ principle or the provisions about introducing new taxes.  If Calman is the model, should it not be applied consistently save when there is a good reason to do otherwise?

Third, the UK Government proposes to pass on the additional costs of the new arrangements to the Welsh Government’s resources.  This does follow a Scottish precedent, and shares a problem of principle that arose with Scotland: why should the UK Government’s policy to promote financial accountability of the Welsh Government which is not something sought by the Welsh Government be paid for by that government?  If this policy is intended to implement a UK Government not Welsh Government policy objective, why should the UK Government not bear the costs?  In a Scottish context, there was at least a dubious if implicit rationale for doing so – Scotland is generously funded through the Barnett formula arrangements and has financial room for manoeuvre.  That is not the case for Wales, and no good reason has been given for the UK Government’s approach.  Indeed, given the Welsh Government’s scepticism about financial accountability and concern about the absence of ‘fair funding’, would it not be in the UK Government’s interest to offer it some sort of incentive to sign up, not increase the burden of doing so.  As it stands, the UK proposals simply invite the Welsh parties to ask why Welsh services should be further under-funded to pay for such a UK Government policy.

Alan Trench is Professor of Politics at the University of Ulster. 

This post originally appeared on the Devolution Matters blog, and is reposted with thanks.

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Se-shauna Wheatle: Maurice Tomlinson v Television Jamaica Ltd: Horizontal Rights Application in Jamaica

seshauna-studio-copy1For more than twenty years Jamaica was engaged in the process of amending the Chapter of Fundamental Rights enshrined in the Constitution of Jamaica 1962. The culmination of that project was the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act 2011, which ushered in substantial changes in the application of rights (including explicit provision for horizontal rights application) and the scope of rights (for example, designing some of the equality provisions to exclude equal protection on the ground of sexual orientation). As the first case to test the terms of Jamaica’s new constitutional rights arrangements arising under the Charter, Maurice Tomlinson v Television Jamaica Ltd v Others, is of historical import. The case is significant for its assessment of the issues of horizontal rights protection, freedom of expression, and the position of gay persons under the Charter.

Tomlinson, who is a gay Jamaican and was formerly Legal Advisor to Aids-Free World, submitted a proposed Public Service Announcement (PSA) to the two major television stations in Jamaica (Television Jamaican Ltd and CVM Television Ltd). The video message encouraged tolerance towards, and respect for, the human rights of gay men in Jamaica. The stations refused to air the video, whereupon Tomlinson filed a claim in the Supreme Court of Jamaica, a court of first instance in Jamaica which has original jurisdiction in constitutional cases and is of equivalent jurisdiction to the High Court of England and Wales. Tomlinson sought declarations that the stations’ refusal constituted breaches of his right to freedom of expression under section 13(3)(c) of the Charter, and freedom to disseminate information and ideas through the media under section 13(3)(d) of the Charter. He also sought these declarations against the Public Broadcasting Corporation of Jamaica, though it was accepted during argument that as the PBCJ was a statutory body, it was limited by the terms of its statute which barred it from airing paid advertisements. The court unanimously dismissed the claim against all three defendants.

Horizontality Under the New Charter

Some of the most interesting and potentially impactful parts of the judgments delivered by the three judges of the Supreme Court concern the issue of the application of horizontal rights protection under the Charter. The Charter expressly provides for the first time that the rights and freedoms under the Charter are binding on private persons as well as the state to the extent that they are applicable in light of the right and duty under consideration. Thus, section 13(5) states:

A provision of this Charter binds natural or juristic persons, if, and to the extent that, it is applicable taking account of the right and the nature of any duty imposed by the right.

In his judgment Justice Sykes articulates an equality-based view of horizontal rights protection, stating that Jamaica copied the horizontality section in the Final Constitution of South Africa, ‘a country with significant inequality between social groups’ and that that section ‘was, perhaps, seen as a way of addressing that inequality through judicial decision on the scope and meaning of the Bill of Rights’. [191]. Indeed, constitutional scholars Stuart Woolman and Dennis Davis have argued that the inclusion of horizontal application in the South African Constitution gives recognition to the fact that power wielded by private bodies can undermine justice and that ‘inequalities in social power’ undermine the autonomy of individuals. While Justice Sykes identified horizontality as a means of addressing inequality, the Jamaican Supreme Court’s approach to horizontal protection in the Tomlinson case pays little attention to the context of inequality that surrounded the case. Justice Sykes held that the stations did not interfere with the claimant’s right to freedom of expression since the Constitution ‘does not give any private citizen … the right to use another private person’s property to disseminate his message by any technological means available.’ [311] Accordingly, he held that it was not necessary to balance the rights of the rights and responsibilities of the claimants and defendants. Justice Paulette Williams J, on the other hand, balanced the claimant’s rights to freedom of expression and the defendants’ rights to freedom of expression and held that to grant the declarations sought by the claimant would prejudice the rights of the defendants, and that since the claimant has a corresponding duty to uphold the defendants’ rights, the ‘horizontal application … is not applicable’. [98]

The judges did not sufficiently address the special position of the first and second defendants (Television Jamaica Ltd and CVM Television Ltd) as the two major television stations in Jamaica, commanding the vast majority of the market share in televised media, and their resulting dominant position in determining what is televised in Jamaica. The Court also failed to address the context of societal and structural inequalities that confront Jamaican gay men, such as the claimant. These shortcomings in the judgment are all the more striking given the emphasis placed by the members of the court on the section of the South African Constitution from which section 13(5) of the Jamaican Charter draws its influence and much of its language. The corresponding horizontality section of the South African Constitution has been said to embrace a conception of liberalism which recognizes that ‘the real issue regarding the application of fundamental rights is …about how all kinds of power are distributed throughout a polity and what that means for the lives of individuals and the associations that inhabit the larger political community.’ Despite repeated references to the South African provision and the suggestion that it was conceived in an ethos of equality, the Jamaican Court did not take sufficient notice of the context of power distribution that arose in the case before it.

A difficult issue that arises in this area is how courts should approach a conflict between the rights of private citizens. This became central to the Tomlinson case because the defendants, as media companies, also asserted their right to freedom of expression. The approach adopted by Williams J was to balance the claimant’s rights against those of the defendants. The Charter provides some guidance as to how to resolve such a conflict, section 13(2) of the Charter stating that the rights are guaranteed, ‘save only as may be demonstrably justified in a free and democratic society’. This textual guarantee ought to be a guide to determining whether a limitation of rights was justified, irrespective of whether that limitation occurred as a result of an act of the state or an act of a private party. Yet, Williams J appeared to reject the use of this section to resolve conflicting rights as between private parties, referring to the decision of the Constitutional Court of South Africa in Khumalo v Holomisa. In Khumalo the Constitutional Court balanced the media’s right to freedom of expression against the constitutional value of human dignity in determining whether the law of defamation applicable to the private parties in the dispute before the Court was consistent with the Constitution. While referring to the judgment in Khumalo, Williams J failed to note that the Khumalo Court did not actually engage with this question of whether the general limitations clause was applicable in a case of conflicts between rights. Further, the section of the Khumalo judgment that addresses horizontality has been criticised for being ‘cursory’ and there have been more recent judgments from South Africa which shed light on the horizontal application of rights and the conflict between the rights of citizens. These cases were not referred to in Williams J’s judgment. These more recent judgments are particularly interesting because they contain suggestions that the requirements in the limitations clause are relevant to cases of conflict between rights of private parties. Whichever conclusion Williams J arrived at, it would have been useful, in light of the fact that this was the first Jamaican case to raise these issues, for the judge to engage in a more comprehensive analysis of this issue.

Williams J concluded that while balancing the rights of the claimant and the defendant, the court must not tip the balance in favour of one as this would suggest that one party’s right was greater than the other. [94]-[97]. She held that to make the declarations sought against the television stations would prejudice their rights and freedoms, so the claim must be dismissed. She further held that ‘the horizontal application … is not applicable as the claimant has the duty to uphold the corresponding rights of the 1st and 2nd defendants.’ This invites a final observation on Williams J’s decision. While she ostensibly rejects the suggestion that the scale must be tipped in favour of one side, her decision actually does tip the balance in favour of the television stations, while undermining the rights of the claimants. Her denial of this result reflects a mistaken notion that preserving the status quo (that the PSA is not aired) is to refuse to choose, when in fact that preservation of the status quo is a rather demonstrative choice on the part of the court.

This case is of historical import in Jamaica and the Commonwealth Caribbean, and the issues that arose will no doubt be tested when the case is appealed. It is to be hoped that the appellate courts will engage in a more thorough and contextual analysis of some of the contested questions that arise in the field of horizontal rights application.

Se-shauna Wheatle is a Research Associate in Public Law at Durham University.

Suggested citation: S. Wheatle, ‘Maurice Tomlinson v Television Jamaica Ltd: Horizontal Rights Application in Jamaica’ U.K. Const. L. Blog (10 December 2013) (available at http://ukconstitutionallaw.org).

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