Author Archives: Constitutional Law Group

by | May 21, 2013 · 1:20 pm

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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by | May 16, 2013 · 7:29 am

News: CONREASON Project

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

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

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

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

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

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by | May 14, 2013 · 7:35 am

Paul Daly: Death, Democracy and Delegation

paul_daly_web

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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by | May 10, 2013 · 7:30 am

Tarunabh Khaitan: Caste as Race—A Welcome First Step

khaitan_tarunabhMy earliest memory of my encounter with the caste system is that of a ten year old growing up in my small hometown in Bengal. Playing with the neighbourhood kids, I spotted the familiar figure of Lakkhi—squatting over the open drain in the neighbourhood, cleaning it assiduously. Her back was turned to us, and thinking it would be a good idea to surprise her, I snuck close and playfully threw my arms around her. That innocent embrace invited immediate criticism from children not yet in their teens, taunting me for having touched an ‘untouchable’. I remember feeling ashamed of myself for having failed to imbibe the nuances of caste. It would take a good few years for me to realise that the real reason to be ashamed was not thinking about what Lakkhi felt at that time.

But caste is not something that exists only in the cities and villages in the Indian subcontinent. With the diaspora, caste has travelled around the world, the United Kingdom being no exception. Despite activist and academic demands, the then Labour government decided not to prohibit caste discrimination when it enacted the Equality Act 2010. Instead, section 9(5) of the Act permitted a Minister to amend the Act ‘so as to provide for caste to be an aspect of race’—a power that was never exercised. Section 97 of the recently enacted Enterprise and Regulatory Reform Act 2013 now requires the concerned Minister to amend the definition of ‘race’ in section 9(1) of the Equality Act to include ‘caste’. The new legislation also empowers the Minister to review the operation of the amended section 9(5) of the Equality Act and repeal it if necessary. The House of Lords would have preferred a more straightforward and permanent expansion of the definition of ‘race’ by Parliament directly, but compromised to persuade a cautious Commons.

The controversy illuminates a key aspect of the point of discrimination law. Discrimination law does not prohibit all distinctions between classes of persons that are unreasonable, arbitrary, or even wrongful. The Equality Act will not interfere with an employer’s refusal to hire a qualified applicant named Wendy because he disapproves of people whose first names begin with the letter ‘W’. Similarly, (unless a correlation with race can be established) eye-colour is not a protected characteristic on its own right. Nor is football club fandom. In order to be protected, the ground has to have some salience in a given society, a salience conferred upon it by its close connection with relative group disadvantage. Sex is protected because women are significantly more disadvantaged than men, and race is protected because blacks (and some other races) suffer pervasive disadvantage (it will take more than a blog post to explain why it may still be alright to protect men and whites anyway). Wendy is not protected because the letters of people’s names do not define any group that suffers (or is likely to suffer) pervasive and systemic disadvantage. The employer’s refusal to hire her is eccentric, arbitrary and wrong, and may even be illegal under certain circumstances—but not by virtue of discrimination law. It is unlikely that another employer will treat Wendy similarly.

The current controversy is really about whether caste is salient enough in this country to merit the protection of the Equality Act. In other words, the moot question is whether, in the UK, a dalit person—someone at the bottom of the caste hierarchy—is more like a woman or a black person or like Wendy. There has never been any doubt about the salience of caste in India. The first legal response in British India came early in the form of the Caste Disabilities Removal Act 1850. The Constitution of 1950 abolished untouchability, provided for dalit access to temples, prohibited caste discrimination and mandated affirmative action for ‘lower’ castes. Several statutes have been enacted after independence too. Of course, serious concerns over the design, implementation and impact of these measures remain. The point is that caste clearly satisfies the salience requirement in the Indian context, and this has been recognised by Indian law for over a century and a half. The question before the Westminster Parliament was whether it is also salient in the UK.

A government commissioned study reported in late 2010 that caste was a relevant feature in the lives of about 5% of the British population to make them potential victims or perpetrators of caste discrimination. It also found that caste was not specific to a particular religion, but affected all religious groups from the Indian subcontinent. The report identified evidence—mostly qualitative case studies—‘suggesting caste discrimination and harassment of the type covered by the Equality Act 2010’. Individual cases involving allegations of caste-related harassment in schools and workplace, denial of admission to a school, discrimination in recruitment and promotions by employers, and discrimination by health and social care workers were recorded. There were also cases of discriminatory treatment which would probably not be covered by the Equality Act, including segregated places of worship, caste-based voting behaviour and attempts to prevent inter-caste marriages.

The study recognised that although ‘a single case of caste discrimination or harassment proves that it exists … legislation to address a single case is rare. Therefore, if any cases of caste discrimination or harassment were identified, the study needed to provide some indication of whether these were isolated cases or not. Within this study, this could only be done qualitatively, drawing on the evidence in the literature, from discussions with interested parties and experts and from the qualitative interviews. Quantifying the extent of caste discrimination would require a representative survey.’ (11) This methodological limitation also meant that no evidence of indirect caste discrimination could be produced. The absence of concrete quantitative data was perhaps one reason why the government and the Commons dithered over the extension of the protection of Equality Act to caste.

Even the limited qualitative evidence unearthed by the 2010 study, along with plausible surmises based on the salience of caste in the subcontinent, caste’s close connection with cultural identity and the enthusiasm with which some migrant communities seek to preserve cultural distinction, suggest that caste-based discrimination is likely to be a significant phenomenon in certain sections of the South Asian population living in the UK. Furthermore, the web of personal, social and professional interactions and relationships is likely to be denser and stronger within a minority ethnic group living in a multicultural society. Caste discrimination can have a pervasive effect on many significant aspects of the life of a ‘low’ caste person living in a largely South Asian neighbourhood—where the local schools, workplaces, places of worship, shops, restaurants and hotels are likely to have a substantial South Asian presence—even though only 5% of the British population is potentially caste-conscious. To such caste-burdened individuals, it is little solace that the rest of the population is indifferent to caste. The relevant experiences of a dalit girl from Birmingham are far more likely to resonate with that of a black man in inner city London than to that of Wendy, wherever she might be from. The issue of caste discrimination in the UK highlights the need to protect even those characteristics that are salient only within particular sub-groups in a given society.

In the absence of good quantitative evidence, Parliament has done well to be guided by the available qualitative evidence and plausible surmises and prohibit caste discrimination (even if only tentatively and temporarily)—for the cost of inaction is likely to be greater. More concrete and comprehensive data is necessary to determine whether treating caste as an aspect of race is appropriate. It may turn out that our surmises were mistaken and the qualitative data inadequate. On the other hand, future research could buttress our commitment to deal with caste discrimination in the UK and require further action.

It may turn out that caste’s particular impact on the marital and religious lives of people requires a rethink of antiperfectionist liberal assumptions about the necessary distance between the state and certain areas of private life. Caste is likely to intersect with race and religion to a significant degree, and caste discrimination could be compounded by discrimination based on sex, disability and marital status. Although section 14 of the Equality Act recognises discrimination based on a combination of two grounds, it may not be adequate to capture the various ways in which caste interacts with other protected grounds. Given caste’s strong connection with an unprotected ground—vegetarianism—the law may need to consider whether distinctions based on food preference amount to indirect caste discrimination.

Instead of being an outlier among grounds protected by discrimination law, caste (like disability before it) may bring new insights to our understanding of the concept of discrimination—insights that may well benefit groups carrying the burdens of other forms of discrimination too.

 

Tarun Khaitan is a Fellow in Law, Wadham College, University of Oxford.

Suggested citation: T. Khaitan, ‘Caste as Race—A Welcome First Step’ U.K. Const. L. Blog (10th May 2013) (available at http://ukconstitutionallaw.org).

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by | May 9, 2013 · 11:58 am

Liz Fisher: Gov.Uk?

fishereAs some of you may have noticed, the UK government has a new website www.gov.uk which not only replaces the old Direct.gov site but also the individual government department and public body websites. Since late last year the 24 major government departments have been moving to this new platform. That move is now complete and smaller agencies and public bodies are now undertaking the shift. The new website won a Design of a Year Award in mid April with one of the judges describing it as ‘the Paul Smith of websites’ and another noting that ‘it creates a benchmark for which all international government websites can be judged on’ (BBC Report,  last accessed 9 May 2013).

I do not pretend to have any expertise in web design, information technology or anything like that, but I do think the new website is something that public lawyers should be thinking carefully about for three reasons. The first reason is that the shift to the new website raises a practical problem that many of us as scholars know too well – a consequence of the move is that some old web addresses are now defunct. In some cases, new links have been provided (and work seamlessly) but not in all. This is not a new problem and applies across the public and private sectors. It is a particular problem in relation to government websites because many government documents are web based and websites are now being cited as the way to find them. As a lecturer, author, and a journal editor the shift to the new platforms have caused all kinds of issues. Government websites are a major scholarly resource and yet there has been little discussion about that fact among public lawyers. Part of the debate of course needs to be about how these websites are stored and archived. Many documents have been shifted to the National Archives and a welcome development is that the British Library has since early April begun to harvest websites in the UK domain (British Library  last accessed 9 May 2013). But part of the debate also needs to be about how we as scholars cite and deploy such websites. Thus for example style guides for journals and scholarly works don’t often provide guidance on how to manage the fact that websites are likely to disappear. We as scholars need to have a conversation about these issues.

The second issue raised by the new website is about transparency. As I have written before on this blog (last accessed 9 May 2013), the Coalition government has had, and still has  a major policy about transparency,  but I’m afraid I haven’t found the new website very transparent at all. On the old website it was relatively easy to find documentation in relation to topics – that required clicking through a series of subheadings. As you did so, you not only found documents but also explanations of how the documentation fitted into the bigger legal and institutional perspective. These frameworks were not always perfect, but generally speaking they provided a good map of the activities of a government department. The new website is focused around ‘policies’ which don’t seem to have any logical order. The search tool works quite well, but provides no context for the documents you find. Thus you can produce a list of documents, but no explanation of how they relate to each other. Again, there are some exceptions to this (the page of biodiversity protection on the DEFRA website springs to mind (accessed 9 May 2013)

This relates to the third issue that the new website raises, and perhaps the most significant. As I have argued elsewhere (accessed 9 May 2013), the creation of an administrative transparency mechanism is really about building the architecture of public administration and a website is no exception. To paraphrase Harlow and Rawlings, behind every government department website is a theory of public administration. The theory behind this website is very much a ‘rational-instrumental’ one (Elizabeth Fisher, Risk Regulation and Administrative Constitutionalism (2007). The website’s focus on ‘policies’ and subsequent ‘actions’ taken pursuant to such policies means that a government department is largely conceptualised as a conduit for delivering an agenda set by the political party in government. Some of these policies are about specific reforms (planning for example), and other ‘policies’ are a continuance of a long entrenched complex regime (nature conservation). The overall impression however is that the role of public administration is to deliver the government’s particular strategy.  This approach raises an interesting question of how the website will need to evolve with a change in government. It also gives very little impression of the institutional structure of a government department or the way in which some policy areas develop incrementally over time from a variety of sources. The rational instrumental model of public administration has of course come to dominate understandings of UK public administration in the last three decades (David Faulkner, ‘Government and Public Services in Modern Britain? What Happens Next?’ (2008) 79 Political Quarterly 232) so the structure of the new website is not surprising. With that said, we should not let this website narrow our vision, and thus debate, about the nature and role of public administration.

I do appreciate that my response could be seen as akin to those people who get annoyed when the supermarket is rearranged and they can’t find where the eggs are anymore. Likewise, it is also clear tweaks and adjustments are being made. My overall point is not that change is bad, but in the information technology age, a government website really matters. It is a resource we regularly use that frames our understanding of what public administration does and what we should expect of it. The website maybe a marvel of design but I do wonder what kind of ‘benchmark’ it is which other ‘government websites can be judged on’. Whatever the case, we as public lawyers should be taking a keen interest in this new site and thinking about its role and nature, and its implications for the practice and study of public law.

Liz Fisher is  Reader in Environmental Law at Oxford University.

Suggested citation: L. Fisher, ‘Gov.Uk?’ U.K. Const. L. Blog (9th May 2013) (available at http://ukconstitutionallaw.org).

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by | May 4, 2013 · 8:11 am

Conference Announcement: Conference on the Teaching of Public Law

CONFERENCE ON THE TEACHING OF PUBLIC LAW IN ACADEMIA NOWADAYS

Manchester, 25th June 2013

Staff House, Sackville Street

Programme

9.30am onwards                Arrival/Registration/Tea and Coffee

10.15 am                                 Welcome

Prof Geraint Howells (Head of Manchester Law School)

Prof Robert Thomas (University of Manchester)

Dr Javier Oliva (University of Manchester)

10.30-noon                              Session 1: Overview of Public Law in academia nowadays

Prof David Feldman (Cambridge University)

Prof Dawn Oliver (University College London)

Prof Robert Thomas (University of Manchester)

Prof Rodney Brazier (University of Manchester)

Chair: Dr Richard Kirkham (Sheffield University)

Noon-1pm                                          Lunch

1pm-2.30pm                     Session 2: Methods of Teaching and Assessing Public Law

Prof David Mead (Essex University)

Prof Ian Cram (Leeds University)

Dr Mark Elliot (Cambridge University)

Dr Fiona Donson (University College Cork)

Chair: Dr Ann Lyon (Plymouth University)

2.30pm-2.45pm                                  Tea and Coffee

2.45pm-4.15pm                      Session 3: Relationship between Teaching and Research in Public Law: Research-led Teaching

Prof Andrew Le Sueur (Queen Mary, University of London)

Nick Barber (Oxford University)

Prof Kathryn Hollingsworth (Newcastle University)

Chair: Dr John Stanton (City University)

4.15-4.30pm                                       Final Discussion

Prof David Feldman (Cambridge University)

Prof Robert Thomas (University of Manchester)

Dr Javier Oliva (University of Manchester) HoH

Places on this conference are limited.  Those interested in attending should contact Javier Oliva: Javier.oliva@manchester.ac.uk. 

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by | May 2, 2013 · 8:15 am

Christina Eckes: One Step Closer: EU Accession to the ECHR

ChristinaThe final version of the draft accession agreement was concluded on 5 April 2013. It will allow the EU to become a contracting party to the European Convention on Human Rights (ECHR), arguably on more than equal footing with the other Contracting Parties, which are all States.

The EU’s accession to the ECHR is a long and on-going journey. Indeed, accession has been subject of political discussion since the 1970s. The early debate culminated in 1994 with the Court of Justice terminating all accession attempts under the old Treaty framework. However, the situation changed fundamentally on 1 December 2009 with the entry into force of the Lisbon Treaty. Accession has not only become possible, it has become an obligation. The conclusion of the draft accession agreement is an important step, but it is by no means the last. Next, the Court of Justice of the European Union will give its opinion on the compatibility of the accession agreement with EU law.

The EU’s Privileges Pre- and Post-Accession

Even before the EU’s accession, the ECtHR deals implicitly or explicitly with EU law more often than one would expect. To give the gist of the relevant case-law of the ECtHR: Member States retain responsibility for their acts, including those adopted within the context of EU law, but acts adopted by the EU institutions proper fall outside of the ratione personae of the Convention. For instance, as things stand at present Member States remain responsible for primary EU law as the consequences of a treaty, in the adoption of which they have been involved. It is, further, possible to bring an application against a (particular) Member State for implementing EU law, irrespective of whether that state has had any margin of discretion in implementing EU law. If the state has had no margin of discretion, a rebuttable presumption of equivalent protection applies which leads the ECtHR to exercise full judicial review only if the protection under EU law has proved in the case before it to be ‘manifestly deficient’ in the individual case (the Bosphorus presumption). The presumption of equivalent protection in Bosphorus has placed the EU for many years in a privileged position as compared to its Member States, even without being a party to the Convention. The ECtHR does not review the compliance with the Convention of EU Member States’ acts implementing EU law in the ordinary case. The accession agreement recognises the EU’s special position and in a different way codifies and institutionalises it, but it takes away the Bosphorus privilege.

A central concern in the negotiation of the draft agreement was the Court of Justice’s judicial autonomy and indeed even monopoly to interpret EU law.  The core threat of EU accession for the Court’s autonomy to interpret EU law emanates from two situations: first, the ECtHR might determine who the right respondent is in any given case; and second, the ECtHR might attribute responsibility to and apportion it between the EU and its Member States. In both events, the ECtHR would simply not be able fully to disregard the power division between the EU and its Member States – both in law and in practice. The complex and dynamic task division between the EU and its Member States could lead the ECtHR to offer an interpretation of substantive EU law binding on the Court of Justice. The EU is a compound legal order consisting of numerous international actors and the largest share of EU law is implemented or applied by national authorities. This means that it requires national support and involvement in order to become effective. As a consequence, if the ECtHR’s interpretation extends to who is responsible the potential challenge to the judicial monopoly, and ultimately the authority, of the Court of Justice is of a different quality than any potential challenge presented by the judicial authority of a national court. Furthermore, the authority of the Court of Justice depends much on the support of national courts. This becomes particularly apparent in the preliminary ruling procedure (Article 267 TFEU), under which most of the fundamental judicial decisions were taken that integrated the EU legal order. Ultimately, this discussion on the EU’s autonomy boils down to the question of how integrated and irreversibly interlocked the EU and national legal orders and judicial systems really are in the face of an external challenge, such as confirmation by a well-respected external judicial authority that the EU breaches human rights. Will such a finding of the ECtHR flare up resistance towards EU law by national courts or public opinion?

The co-respondent mechanism with the prior involvement procedure is aimed to protect the autonomy of the EU legal order and of the Court of Justice in particular. It stipulates that: ‘[w]here an application is directed against one or more member States of the European Union, the European Union may become a co-respondent to the proceedings in respect of an alleged violation notified by the Court if it appears that such allegation calls into question the compatibility with the Convention rights at issue of a provision of European Union law, including decisions taken under the TEU and under the TFEU, notably where that violation could have been avoided only by disregarding an obligation under European Union law.’ The Union has further made a declaration that it ‘will request to become a co-respondent to the proceedings’ if these requirements are met. Additionally, if the Court of Justice has not previously ruled on the matter, the agreement is that the ECtHR should request the Luxembourg Court to do so before giving its own ruling. The co-respondent mechanism permits the ECtHR to refrain from determining who the correct respondent is or how responsibility should be apportioned. Indeed, the draft agreement  declares joint responsibility of the respondent and co-respondent to be the common case: ‘If the violation in respect of which a High Contracting Party is a co-respondent to the proceedings is established, the respondent and the co-respondent shall be jointly responsible for that violation, unless the Court, on the basis of the reasons given by the respondent and the co-respondent, and having sought the views of the applicant, decides that only one of them be held responsible.’ This will for most cases unburden the Strasbourg Court from the task of assessing the distribution of competences between the EU and its Member States. However, it does not rule out the possibility that the ECtHR chooses to apportion responsibility in the individual case. Furthermore, while no High Contracting Party may be compelled to become a co-respondent, the Strasbourg Court may terminate the participation of the co-respondent. Both actions of the ECtHR imply a prior decision on how the responsibility should be apportioned or attributed. Hence, the co-respondent mechanism tries to strike a balance between not limiting the formal competences of the ECtHR but determining how these competences are usually exercised in practice. In any event, in view of the rather cautious approach of the Strasbourg Court in the past it can be expected that it will not meddle with the complex and dynamic division of powers between the EU and its Member States where this is not judged absolutely necessary.

The special position accorded to the Court of Justice should be seen both as accommodating the Court’s concern with its judicial autonomy and acknowledging the particularities of the EU legal order and the judicial power in the EU.  The classic division of tasks between the legislating EU and implementing Member State can for instance result in a situation where EU law is implicitly or explicitly challenged in Strasbourg in the context of an alleged violation through a national act of implementation before any Court at the EU level has been consulted. This also justifies involving a court at the EU level before ruling on the compliance of EU law with the Convention. It will certainly force the Court of Justice to deliver in the individual case, rather than being able to hide behind a general presumption of equivalent protection. After receiving the Court of Justice’s opinion, the Strasbourg Court will have to scrutinise and rule whether the Convention has been breached. It can only find the specific opinion either correct (offering equivalent protection; no violation) or incorrect (misinterpreting the Convention; violation). It cannot hide behind general considerations of the human rights protection in the EU legal order. The times of Bosphorus are over.

The (Un-)Likeliness of an Open Conflict

After accession, the ECtHR’s decisions will be formally binding on the Union as a matter of international law. This could in an extreme case result in a finding of non-compliance if the Court of Justice rejects an interpretation of the ECtHR of internal matters of EU law. Whatever status the Court of Justice will give rulings of the ECtHR after accession, it is difficult to see in practice how the Court of Justice could in a ‘Union of law’ follow an argument or give a ruling that openly clashes with the protection of human rights given by the ECtHR. This would be problematic both before and after accession, and irrespective of whether the EU is a party to the case. At the same time, the justification deficit would be much lower if the Court does not accept the ECtHR’s position on competence matters of internal EU law that has no substantive impact on human rights protection. We may conclude that the risk of a potential conflicting interpretation of the ECHR and the Charter would not increase through accession. With the co-respondent mechanism with the prior involvement procedure it will be lower than at present. Pre-accession it is conceivable that a national court delivers a decision based on a preliminary ruling of the Court of Justice and that this decision (after national remedies have been exhausted) is taken to the ECtHR which might decide that the country has violated the ECHR. The ECtHR’s ruling on the case could entail the conclusion that the preliminary ruling of the Court of Justice conflicts with the ECHR, without further involvement of the EU institutions.

The EU as an International Actor with Internal Tensions

Accession will advance the Union’s ambitions as an international actor separate from its Member States. The EU will become a ‘state-like´ party to the Convention in the sense that it will be ‘on equal footing with the other Contracting Parties’, which are all states. At the same time, the EU and, in particular its Court of Justice have been given an exceptional position within the Convention system. From the perspective of the EU, this primus inter pares position appears to be the best solution: having all the duties of states, but more rights and influence – both during the negotiations and before the Strasbourg Court. This special position is a recognition of the EU’s particularity and success as an integration organisation. At the same time, the discussion’s focus on the EU’s and the Court of Justice’s autonomy raises doubts about the EU’s maturity as an integration organisation. Accession will bring the test of whether the EU has reached the necessary maturity. Is it sufficiently integrated to join the ECHR on an equal footing as the other Contracting Parties, or will it become the victim of its own success because despite all integration it cannot endure the internal tensions that might result from joining an external human rights regime?

In the light of the Court of Justice’s far-reaching interpretation of the duty of cooperation and in the light of the Union’s new role in Strasbourg Member States will be subject to new European law constraints in relation to the ECHR. Furthermore, accession will substantively contribute to the on-going process in which European systems of human rights protection become increasingly interwoven and interlocked. It will allow the Court of Justice and the ECtHR to enter into a formal judicial discourse. Indeed, within the ever increasing scope of EU law, the Court of Justice will take the role of the national courts in international human rights discourse. However, it would be wrong to think that the Court of Justice and the ECtHR are the only two European courts. Both depend on the support of the national judiciary. Resistance towards external human rights constraints has flared up in several EU Member States, including the UK. Accession and the shift of the discourse from national courts to the Court of Justice is unlikely to have a calming effect. Indeed, the question of which public authority – Brussels, Strasbourg or the national capital – may decide the applicable standard will become even more controversial with accession.

An extended discussion of the EU’s accession to the ECHR was published in the Modern Law Review < http://www.modernlawreview.co.uk> in March 2013.

Christina Eckes is Associate Professor at the Amsterdam Centre for European Law and Governance, University of Amsterdam

Suggested citation: C. Eckes, ‘One Step Closer: EU Accession to the ECHR ‘ Const. L. Blog (2nd May 2013) (available at http://ukconstitutionallaw.org).

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by | April 29, 2013 · 1:34 pm

Eoin Carolan: An oligarchy of the self-interested or enthusiastic?: Open Public Services in the Big Society

EoinOpen Public Services and the Big Society

The coalition government’s programme of public service reform continues apace. The coming into effect of parts of the Health and Social Care Act 2012 on April 1st was the latest in a series of changes to the structure and delivery of public services through measures like the Localism Act 2011 or the Free Schools programme. As the White Paper on Open Public Services indicates, these individual changes form part of a broader plan to fundamental re-model how Britain’s government operates. The White Paper is clear that this reform programme is wide-ranging and ambitious. What is less clear from government pronouncements, however, is whether or how it is intended to ensure the democratic legitimacy and character of the proposed reforms.

While the Big Society’s moment in the political sun seems to have passed, the open public services agenda has plainly been influenced by the ideas that coalesced under that electorally-ambiguous banner. Most closely associated with Philip Blond’s ‘Red Toryism’ (reviewed here), the ‘Big Society’ was also the subject of a detailed and thoughtful work by Jesse Norman MP (reviewed here).

Blond and Norman’s work shares a similar diagnosis of the source of (what they regard as) Britain’s current malaise, and of the most effective remedies for the nation’s social and political ills. They both identify the interrelated rise of individualism and of a centralised and interventionist state as the root causes of social decline. Both bemoan the atomising effects of a system in which the state has destroyed all alternative sources of civic power so that it operates alone and unchecked in propagating the prescriptions of a centralised elite. Both also see the solution in a number of interrelated measures: reducing the powers and size of the state; encouraging social and economic entrepreneurship; and devolving power and responsibility from central government to non-state entities such as charities or community organisations.

The White Paper on Open Public Services substantially mirrors this Big Society vision of a connected and pluri-polar society in which the state shares authority with other civic organisations. Big Society values permeate the text: the identification of a top-down and prescriptive central government as the cause of government dysfunction; a desire to remove the state’s monopolistic or privileged position; and a commitment to achieve this by decentralising and disaggregating power.

This is reflected in the five principles which the document identifies as fundamental to reform:

  • Wherever possible, we will increase choice.
  • Public services should be decentralised to the lowest appropriate level.
  • Public services should be open to a range of providers.
  • We will ensure fair access to public services.
  • Public services should be accountable to users and to taxpayers

The first three principles, in particular, underscore the disaggregated character of the system. The White Paper actively encourages more fragmented systems of decision-making and service delivery. This reflects the core idea animating its programme of reforms – that decisions should not be taken by central government but by bodies that are closer to, directly responsive to, or controlled by the choices of the individual user.

Increased choice – and the logically prior principle of increased competition – are at the heart of the White Paper’s vision. According to it, “the job of government … is to create an open framework within which people have the power to make the choices that are best for them”. Critically, the document states that “the principles of open public service will switch the default from one where the state provides the service itself to one where the state commissions the service from a range of diverse providers”. As the more recent Open Public Services 2012 document summarises it, the reforms “mea[n] re-thinking the role of government – so that government at all levels becomes increasingly funders, regulators and commissioners” rather than direct service providers.

The presumption under the Big Society system is thus that services will not be provided by the state and that they will be provided by a range of different bodies. The White Paper appears to suggest that this will occur regardless of how effectively a service is being provided by a particular body, whether state-controlled or otherwise. For there to be choice, it would seem, there must always be competition between different providers. This emphasis on choice as the animating engine of service delivery is, if anything, intensified in the Open Public Services 2012. This repeatedly identifies user choice as the central focus of the reform agenda. Choice is seen as both a normative and an instrumental good.

The problem of choice

This raises the obvious question of whether the provision of choice should be both the primary goal and chief criterion of effective government action. There are various reasons to suspect that legitimate government must involve more than a basic guarantee of some level of choice. Ensuring that a citizen has the right to choose between expensive or inadequate alternatives does little, for example, to secure good government.

Similarly, confining the government’s role to the provision of choice leaves the end user primarily responsible for the ultimate outcome – thereby ignoring whether that user is offered an appropriate choice or is capable of making an effective choice.

Indeed, there are various issues where it would seem contrary to the broader public interest for service delivery to focus on satisfying user choice – such as creation and marking of school exams, or the dispensation of antibiotics for example.

It seems obvious that a focus on choice alone offers a peculiarly narrow image of government. The White Paper recognises that there are some limitations to a choice-oriented approach, noting that assistance may be necessary to ensure that some users or geographical areas have adequate choices open to them. It seems telling, however, that the measures intended to address these limitations treat them, in essence, as distortions in the market of choice: information deficits, market dominance, or skewed distributions.

Furthermore, the remedies prescribed are input-oriented devices that aim to cure those distortions. So-called voice mechanisms provide information which might not otherwise be factored into the market, while the various fairness supports identified in the document tend to operate by facilitating more effective market participation (either by information or curative incentives) by those who might otherwise be vulnerable consumers. In all instances, however, the processes of decision-making or service delivery remain primarily regulated by the discipline imposed by competition and user choice.

The basic unit of accountability under the Big Society system thus remains the individual user. From a democratic perspective, there is a clear danger that a system premised on responding to user demands will only to those users who articulate demands, or who articulate them in the most effective form. This is liable to distort the representative or democratic character of the system. As Schattschneider observed, “’the flaw in the pluralist heaven is that the heavenly choir sings with a strong upper-class accent. Probably about 90% of the people cannot get into the pressure system.

Devolving decision-making to third-party organisations creates a risk that power will in fact be exercised by those who are sufficiently motivated by self-interest or ideology to engage with the ‘choice’ process, with neither providing a truly representative reflection of the local community’s views. In this way, open public services may become an oligarchy of the self-interested or enthusiastic.

One of the core concerns for administrative law or regulation over recent decades has been to minimise the potential for self-interested actors to have undue influence over public decisions. Fears over regulatory capture are a commonplace in this literature. Yet, the notion of open public services seems to entirely ignore this issue, instead seeking to turn over the design and delivery of public services to anyone with the incentive or inclination to put themselves forward. As any user of Wikipedia (or anyone whose students use Wikipedia) will know, this type of open sourced project attracts not only those acting out of some benevolent sense of civic duty but also those who wish to further their own personal or ideological agendas. In many instances, it is the latter groups who have the greater incentive to succeed. This belies the easy assumption that an open public services Wikiocracy will lead to a more effective or democratic government.

A good example of this weakness is the role envisaged in the White Paper for what it describes as independent champions. On closer inspection, the notion that these ‘champions’ will enhance the democratic character of the system seems highly suspect. In fact, the idea seems directly contrary to democratic principles. The White Paper proposes, for example, that pressure groups such as HealthWatch or the Taxpayers Alliance should be entitled to a specific role in contributing to and monitoring service provision. Yet it does not seem to give any consideration to the question of why private groups with a specific policy position should have a preferred role in the governance process conferred upon them. In particular, the White Paper does not consider what obligations, if any, such bodies should meet in terms of membership criteria, representative character, political funding, donations policy or transparency.

This is especially concerning when concerns have previously been raised about the composition and background of one of the groups specifically identified in the White Paper.  The use of nominally ‘independent’ or ‘expert’ groups as the acceptable face of an ideological agenda is a well established practice in American politics. The White Paper not only makes this possible but seems, on one view, to actively anticipate it. Democratic accountability is not enhanced by privileging the input of the self-appointed.

This speaks to a fundamental dilemma at the heart of the Open Public Services and Big Society agendas: how can a system whose main selling point is its promise to get government out of the way nonetheless ensure the defence of minimum substantive values? There is a sense that supporters of these reforms trust that the system proposed includes self-executing safeguards of core values. The nature of these mechanisms varies. The government seem to believe in competition and choice, while others like Blond would seem to place more faith in the self-government of communities or active associations.

The primary objection, however, is that these solutions trust in assumptions about the likely behaviour of services users and of disaggregated groups that are neither evidence-based nor necessarily supported by anecdotal experience. Reposing faith in communities, for example, may be based on no more than the assumption that decision-making, like cheese or craftsmanship, is better when it is local – more organic, more authentic, more attuned to local tastes and culture. Although this may tap into powerful contemporary narratives and beliefs, Triesman’s work reminds us that such faith in localism may be naively misplaced:

 [T]he popularity of decentralization feeds off romantic images of life in small, usually rural communities …. The mystique of the Athenian polis combines with images of communal barn raisings, church picnics, summer hayrides and so on. Of course, such a view of small-town life is highly selective. Besides dancing around the Maypole, the New England townspeople found time to burn witches and pin scarlet letters onto adulterers.

 This illustrates how the ‘Big Society’ rests on what are, in essence, organisational caricatures about state and non-state bodies. The more mundane reality is that governance institutions, at all levels, have significant strengths and weaknesses. The tendency across most national systems towards checks and balances is a matter not only of constitutional principle but also of operational practice. To entrust significant decision-making powers to autonomous non-state units is potentially problematic from the perspective of both constitutional legitimacy and good government, reflecting a faulty assumption that grassroots involvement is always progressive.

What is needed is an approach which accepts the limits of these varying institutional forms and seeks instead to make use of their strengths rather than focusing on their weaknesses. Democratic experimentalism – by combining the delegation of power to local or non-state actors with robust systems of peer monitoring and empirical review – is one example of how the challenges identified by Big Society advocates might be met in a more effective and democratically-appropriate manner. While these alternatives may lack the ideological purity and simplicity of the Big Society model, the reality is that government is typically a messy and multi-faceted affair. In that regard, theories like democratic experimentalism that take comparative institutional analysis seriously seem more likely to produce effective outcomes than ones – like the Big Society – that seem premised on institutional caricatures and an antipathy to government.

Eoin Carolan is a  lecturer in law at University College Dublin

This is an abridged summary of a piece published in this month’s edition of Public Law.

Suggested citation: E. Carolan, ‘An oligarchy of the self-interest or enthusiastic?: Open Public Services in the Big Society’ U.K. Const. L. Blog (29th April 2013) (available at http://ukconstitutionallaw.org).

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by | April 25, 2013 · 3:30 pm

Jeff King: Deference, Dialogue and Animal Defenders International

jeff2In Animal Defenders International, the European Court of Human Rights upheld the British ban on political advertising in the broadcast media (s.321 Communications Act 2003), consistently with the judgments of the UK House of Lords and High Court, but in an apparent departure from its previous caselaw in the VgT (Verein gegen Tierfabrik v. Switzerland, no. 24699/94 ECHR 2001‑VI) case.  The key issue in the case was whether a blanket ban (or ‘general measure’) was a proportionate restriction of the freedom of expression, or whether some class of exception (a ‘case-by-case’ approach) for groups such as the NGO in this case ought to be recognized. I am in complete agreement with Jacob Rowbottom’s view on the correctness of the Court’s judgment and the desirability of a general ban.  In brief, the problem with making case-by-case or category-based exceptions for advocacy groups is that there is a risk of profusion of ‘non-profit’ groups that are in fact created and backed by well-monied interests, the unveiling of which becomes an impossible regulatory task in the shadow of constant litigation.  The focus of the present comment is on three further matters raised by the case that are of importance for British constitutionalism: the role of judicial restraint; the merit of rigorous human rights-based parliamentary scrutiny of legislative proposals; and the value of UK-Strasbourg dialogue.

Many academics have stepped into what is often called ‘the deference-debate.’ [*] One group, in which we find Murray Hunt, Aileen Kavanagh, Alison Young, myself, and I think to a more subtle extent Alan Brady, believe that there is a role for both the practice of judicial restraint, and also for a specific doctrine of judicial restraint, though none of us is generally skeptical of the judicial protection of human rights. On the other hand, we find Trevor Allan arguing a cogent case that a doctrine (e.g. a set of overtly recognized principles) of judicial restraint would be pernicious, that it will lead to excessive deference, and that any proper role for judicial restraint is already comprehended within the legal standards themselves – in legal concepts such as proportionality, Wednesbury reasonableness, fairness and so on.  For the unanimous judgment of the House of Lords in Huang v SSHD [2007] UKHL 11, Lord Bingham made the following finding, after summarizing a range of immigration-specific factors for consideration:

 The giving of weight to factors such as these is not, in our opinion, aptly described as deference: it is performance of the ordinary judicial task of weighing up the competing considerations on each side and according appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice. That is how any rational judicial decision-maker is likely to proceed.

 Who needs a doctrine, in other words? This largely agrees with the views of both Trevor Allan and Tom Hickman.  The problem though is that this view depends entirely on the judge having Lord Bingham’s intuitions about ‘appropriate weight,’ which are not as widely shared as we all would wish.  In Animal Defenders International, the Court split 9/8 and Rowbottom, the country’s leading legal expert on the matter, was himself convinced that Strasbourg would decide against the ban. The safe bet was on losing.

The substance of the majority’s decision gave enormous weight to the comprehensive examination of the issue within the legislative process (and in court thereafter):

 114. […] The Government, through the DCMS [the Department], played an important part in that debate explaining frequently and in detail their reasons for retaining the prohibition and for considering it to be proportionate and going so far as to disclose their legal advice on the subject (paragraphs 50-53 above). The 2003 Act containing the prohibition was then enacted with cross-party support and without any dissenting vote. The prohibition was therefore the culmination of an exceptional examination by parliamentary bodies of the cultural, political and legal aspects of the prohibition as part of the broader regulatory system governing broadcasted public interest expression in the United Kingdom and all bodies found the prohibition to have been a necessary interference with Article 10 rights.

115. It was this particular competence of Parliament and the extensive pre-legislative consultation on the Convention compatibility of the prohibition which explained the degree of deference shown by the domestic courts to Parliament’s decision to adopt the prohibition (in particular, paragraphs 15 and 24 above). The proportionality of the prohibition was, nonetheless, debated in some detail before the High Court and the House of Lords. Both courts analysed the relevant Convention case-law and principles, addressed the relevance of the above-cited VgT judgment and carefully applied that jurisprudence to the prohibition. Each judge at both levels endorsed the objective of the prohibition as well as the rationale of the legislative choices which defined its particular scope and each concluded that it was a necessary and proportionate interference with the applicant’s rights under Article 10 of the Convention.

116. The Court, for its part, attaches considerable weight to these exacting and pertinent reviews, by both parliamentary and judicial bodies, of the complex regulatory regime governing political broadcasting in the United Kingdom and to their view that the general measure was necessary to prevent the distortion of crucial public interest debates and, thereby, the undermining of the democratic process.

The Court here effectively endorses a notion of judicial restraint in deference to the substance and process by which the decisions were undertaken in this situation.  The very issue of the viability of an exception as an alternative to a blanket ban had been batted back and forth by several bodies during the legislative process (and insufficiently so by the Strasbourg court in previous cases, as the UK argued in this case). The majority judgment showed respect for that process and awareness of their own limitations in second-guessing it in a complex context, when the stakes are high.  (The concurring judgment of Sir Nicholas Bratza was even better on this and other points, but I pass over it here for a variety of reasons).

By contrast, the two dissenting judgments had no time for this.  The first group of dissenters quote the notorious court-sceptic JAG Griffith as authority for the implied point that the British courts defer too much to Parliament (Joint Dissenting Opinion of Judges Ziemele et.al., para.2), and then chastise the majority in the following terms:

“Nor does the fact that a particular topic is debated (possibly repeatedly) by the legislature necessarily mean that the conclusion reached by that legislature is Convention compliant; and nor does such (repeated) debate alter the margin of appreciation accorded to the State. Of course, a thorough parliamentary debate may help the Court to understand the pressing social need for the interference in a given society. In the spirit of subsidiarity, such explanation is a matter for honest consideration. In the present judgment, however, excessive importance has been attributed to the process generating the general measure, which has resulted in the overruling, at least in substance, of VgT, a judgment which inspired a number of member States to repeal their general ban -a change that was effected without major difficulties.”

 Both parts of this quote are misguided in my view. Dismissing the outcome because such a process can yield wrong results (obvious) is to miss the point that this process, on this issue, did deserve considerable weight for a range of substantive reasons. They include the fact that the interlocutors in that process had special knowledge of British politics, commercial media, and consumer habits, and studied the phenomenon at great length and in good faith. The second part of this quote states a claim that could be a highly material point – surely if the revoked ban had not led to problems elsewhere, then that supports the view that the blanket ban isn’t necessary.  But how do they know whether the ban has not in fact been pernicious there?  No evidence is given on this point, and we cannot assume no news is good news when we haven’t looked.  We do know that the impact of the Citizens United v Federal Communications Commission 558 U.S. 310 case in America, which struck down a not entirely dissimilar ban on ‘electioneering communications’ funded by corporations, has been terrible.   One study determined that the case accounted for 78% of campaign spending in the 2012 Presidential election.  (For a more nuanced view of its impact, see here).

The other dissenting judgment, of Justices Tulkens, joined by Judges Spielmann and Laffranque, at least addressed this issue:

 “17. The references to other systems in the context of that examination were brief and selective. The system most frequently referred to, as an example to be avoided, was that of the United States (paragraphs 37-54 of the judgment), but the latter country’s regulatory system is so different to that in issue here that the comparison strikes me as barely relevant.”

In this hubristic gesture, Judge Tulkens sweeps aside the virtually unanimous domestic agreement that it is both relevant and indeed persuasive.  What is brushed aside in the dissenting judgments more broadly include the views of the Neill Committee on Standards on Public Life, which visited several countries and reported at length to Parliament; the Joint Committee on Human Rights; the Independent Television Commission; the Joint Committee on the Draft Communications Bill; the Electoral Commission; and the unanimous opinion of the UK Parliament.  These bodies not only know local dynamics, but had greater subject-matter expertise and took more time for consideration. To offer only one illustration, the Neill Committee Report was 262 pages, and the Committee undertook visits to five countries, considered over 400 written submissions, and spent seventeen days taking evidence from 120 individual experts representing 75 organisations in public hearings held around Britain.  It also commissioned two relevant research studies, one of them analyzing freedom of expression jurisprudence.

I will not delve into the UK literature on judicial restraint here to show how the various factors adduced in that literature would counsel the right outcome here.  In brief, the relative expertise was greatly skewed towards the British institutions, both political and judicial; the exact human rights issue was the subject of protracted debate and litigation; the claimant group was not clearly politically marginalized or vulnerable to begin with (a point which is anyway not decisive here); and the cost of getting the issue wrong could be immense and irreversible (hence an impediment to much needed flexibility).  The principles of restraint and deference alluded to by the authors above all draw attention to these items and above all warn judges to resist the temptation to think that once human rights are in play, the judge decides in splendid isolation from policy or considerations of competence.   To those who think this is all obvious, the near miss in Animal Defenders International reminds us that it isn’t.

Having explored this much, I can deal briefly with my second and third points. The second concerns the value of parliamentary consideration of human rights issues.   I am presently engaged in research that examines parliamentary responses to section 4 declarations of incompatibility, and am struck by the incredible professionalism and rigour that is often (not always) found in this process. The JCHR in particular draws the direct attention of both houses to significant human rights implications of bills. It does so on the basis of advice from its legal advisor (presently Mr. Murray Hunt) and always in due consideration of the domestic and international law, as well as considerations of policy. It considers evidence submitted by a variety of NGOs and engages in extended correspondence with the Government on particular bills.  It is the interaction between this Committee, Government and Parliament, where the normative guidance set out in the jurisprudence of the courts unites with the participatory advantages and working flexibility of the legislative process. It may look revolutionary in the human rights context, but it is in fact a workaday illustration of a more widely acknowledged truth -  that pre-legislative scrutiny, as well as legislative scrutiny, is extremely valuable for helping to identify key issues before views ossify and legislative change becomes impeded by inertia and competition.  It can also potentially play a constructive role in litigation afterwards, either helping or harming a legal challenge to the Convention-compatibility of legislation (pace Article 9 of the Bill of Rights 1689 – on which see further the AHRC Report by Hunt, Hooper and Yowell, Parliament and Human Rights, pp.49-50).

The last point is that this case does represent precisely the merits of UK judges scrutinizing the state’s arguments in UK courts, in Convention-rights terms and with due consideration of Strasbourg jurisprudence, before the issue travels to Strasbourg for consideration there. The Strasbourg Court not only essentially adopted the reasoning of the UK courts, but in doing so it explicitly rowed back from its own jurisprudence (i.e. the VgT case). This is an entirely appropriate form of institutional dialogue, and shows maturity of judgment, the flip side of the much-maligned UK courts’ own willingness to apply rules laid down in Strasbourg.  The upshot of this is plain: a British Bill of Rights that acted as a substitute for the Human Rights Act 1998 would have destroyed that dialogue, and made the wrong outcome in Animal Defenders International more likely.

Jeff King is Senior Lecturer in Law at The  Faculty of Laws, UCL.

Suggested citation:  J. King, ‘Deference, Dialogue and Animal Defenders International’ U.K. Const. L. Blog (25th April 2013) (available at http://ukconstitutionallaw.org).

[*] Some important works in this vein include M. Hunt, ‘Sovereignty’s Blight: Why Contemporary Public Law Needs a Concept of Due Deference’ in Bamforth and Leyland, Public Law in a Multi-Layered Constitution (Hart 2003); A. Kavanagh, ‘Defending Deference in Public Law and Constitutional Theory’ (2010) 126 Law Quarterly Review 222 (see also her book Constitutional   Review under the UK Human Rights Act (CUP 2009) Part II; A. Young, ‘In Defence of Due Deference’ (2009) 72 The Modern Law Review 554; J. King, ‘Institutional Approaches to Judicial Restraint’ (2008) 28 Oxford Journal of Legal Studies 409, and Judging Social Rights (CUP 2012) Part II (elaborating four principles of restraint).  For the earliest statement of the best critique, see TRS Allan, ‘Human Rights and Judicial Review: A Critique of “Due Deference”’ (2006) 65 The Cambridge Law Journal 671, a position refined and enhanced in Professor Allan’s more recent (and forthcoming) work.  See also the nuanced position of Dr. Tom Hickman, Public Law after the Human Rights Act (Hart  2010) (accepting and outlining a role for ‘weight’ and guiding principles, but rejecting the idea of a doctrine).  Alan Brady’s Proportionality and Deference under the UK Human Rights Act (CUP 2012) integrates deference into the proportionality analysis in a manner that I believe has more in common with the doctrinalists than with Allan’s approach. Leadings treatise writers such as Paul Craig, Timothy Endicott and Jeffrey Jowell all recognize the role for judicial restraint but have largely steered clear of the question of whether any doctrine is necessary.

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by | April 22, 2013 · 10:41 am

Jacob Rowbottom: A surprise ruling? Strasbourg upholds the ban on paid political ads on TV and Radio

jacob-rowbottom-photoThe European Court of Human Rights has given its decision in Animal Defenders International , holding that the ban on political advertising on the broadcast media does not violate Article 10. I had been convinced that the Strasbourg Court, following earlier decisions in Switzerland and Norway, would come to the opposite conclusion – but I am relieved that they did not. The ban on political ads has been a crucial measure that has helped to keep the cost of politics down in the UK.  That said, it was a close shave. The ban was upheld by a majority of 9, with 8 dissenting. The decision was published earlier this morning, so what follows are my initial thoughts.

The approach of the majority stands in stark contrast to that in the US. While the US Supreme Court in Citizens United rejected arguments that corporate spending can distort the electoral process, the Strasbourg Court accepted the argument that ‘powerful financial groups’ can ‘obtain competitive advantages in the area of paid advertising and thereby curtail a free and pluralist debate’. Not only that, concerns about distortion are not limited to the electoral period:

‘While the risk to pluralist public debates, elections and the democratic process would evidently be more acute during an electoral period, the Bowman judgment does not suggest that that risk is confined to such periods since the democrafic process is a continuing one to be nurtured at all times by a free and pluralist public debate.’

This is an important element of the ruling, as it allows the state to take measures to tackle concerns about money in politics generally while staying within the requirements of Article 10.

The key area of debate was not the rationale of the measure, but the proportionality of the ban. The Court found that a partial ban on political advertising – for example allowing some issue advocacy – was unlikely to be workable, noting that such avenues were likely to be abused by ‘wealthy bodies with agendas’. Furthermore, the ban only applied to one type of media, and thereby leaving opportunities for alternative means to communicate, such as newspapers or social media.

Also significant was the fact that the ban had been considered by the UK on several different occasions, such as the Neill Report, in pre-legislative scrutiny and in court. This distinguishes it from cases such as Hirst, where a ban on prisoner voting rights had been maintained without any discussion. The Court thereby attached ‘considerable weight to these exacting and pertinent reviews, by both parliamentary and judicial bodies’.

But what about the previous decisions of the Strasbourg Court in relation to Switzerland and Norway? This I think was the biggest challenge facing the UK government when they were arguing their case. Most interesting here are comments from Judge Bratza who commented that the Court’s decision in VgT Verein:

‘did not do full justice to the purpose of the general prohibition in the legislation, which was to avoid leaving to individual judgment questions such as the wealth or influence of the individual, political party or association or the worthiness or morality of the polifical cause in question, with the attendant risks of discriminatory treatment.’

Consequently, he confessed ‘to entertaining certain doubts about the Chamber’s judgment in the case.’

By contrast, the dissenting opinion of Judges Ziemele, Sajo, Kalaydjiyeva, Vucinic and De Gaetano described the contrast with the Court’s earlier decisions as a ‘double standard within the context of a Convention whose minimum standards should be equally applicable throughout all the States parties to it.’ However, rather than being a double standard, the majority’s approach maybe an example of the way that dialogue with the UK shaped the ECtHR’s jurisprudence – or more cynically how the Court was influenced by the existing political tensions between the UK and Strasbourg.

The reasoning of that group of dissenting judges also shows a divide in the Court concerning its Article 10 jurisprudence. While the majority stressed the need for the ban to address distortion in public debate, those dissenters called it ‘well-intentioned paternalism’. Ziemele, et al emphasized Article 10 as primarily a negative right against state measures:

‘Promoting a right where it cannot be effective without additional State action is, according to our jurisprudence, appropriate, but is not a generally accepted primary ground for rights restriction. There is a risk that by developing the notion of positive obligations to protect the rights under Articles 8 to 11, and especially in the context of Articles 9 to 11, one can lose sight of the fundamental negative obligation of the State to abstain from interfering. The very initiative to legislate on the exercise of freedom in the name of broadcasting freedom, and in order to promote democracy in general terms, and for aims which may not necessarily fully conform to one or more of the legitimate aims of Article 10 § 2, remains problematic. The ban itself creates the condition it is supposedly trying to avert – out of fear that small organisations could not win a broadcast competition of ideas, it prevents them from competing at all. It is one thing to level a pitch; it is another to lock the gates to the cricket field.’

The final sentences attacks what it sees as a ‘level-down’ approach to political equality. Similarly, they went on to say:

‘Freedom of expression is based on the assumption that the speakers, not the Government, know best what they want to say and how to say it. Ideas can compete only where the speaker is in a position to determine, within the limits recognized by the Convention, which form of imparting ideas serves best the message.’

I think these criticisms are misplaced. TV is not a politics free zone, so I don’t think the gates are locked. It is just one type of transaction that is blocked. I think the state plays an important role in ensuring that the opportunities for communication are not skewed in favour of those with the deepest pockets. The case for the ban is not that people cannot decide for themselves, but that different groups should have equal opportunities to persuade people of the merits of their position.

The decision in Animal Defenders International has come as a surprise to me, but – and many will disagree with me on this point – it is a pleasant surprise. It is one in which the Strasbourg Court has moved away from its earlier jurisprudence and emphasized the importance of insulating political debate from the inequalities in wealth.

Jacob Rowbottom is a Fellow of University College, Oxford.

Suggested citation: J. Rowbottom, ‘A surprise ruling? Strasbourg upholds the ban on paid political ads on TV and Radio’  UK Const. L. Blog (22nd April 2013) (available at http://ukconstitutionallaw.org)

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