The Society of Legal Scholars (SLS) has been experiencing technical problems in circulating its call for papers for the 2014 Annual Conference, Nottingham. The Civil Liberties and Human Rights Section’s call can be found at http://sections.legalscholars.ac.uk/call-for-papers/call.cfm?id=29. Submissions should be made to Dr Alexander Williams at firstname.lastname@example.org. Please be advised that the advertised deadline of 20th March has been altered to 5pm, March 28th, and that this will be reflected on the SLS’s website soon.
Author Archives: Constitutional Law Group
Obvious developments to report on include two significant reviews of New Zealand’s constitutional and electoral arrangements:
- the Electoral Commission’s independent review of the MMP electoral system; and
- the Constitutional Advisory Panel’s consideration of constitutional issues.
But, sadly, neither of these look likely to led to any real change – at least in the short-term.
The one other development worthy of mention – mandatory legislative disclosure requirements designed to improve the quality of legislation – was introduced without fanfare but perhaps has greater potential for influence.
Some brief comments on the first two, along with a more detailed explanation of the latter, follow.
A Review of MMP: sensible suggestions forestalled
The Electoral Commission completed its review of the MMP electoral system and proposed a number of – in my view, sensible – tweaks to the electoral system that has been running for nearly 20 years in New Zealand. Amongst other things, it proposed changing the thresholds for the entitlement to party list seats (reducing the party vote threshold from 5%-4% and removing the controversial one electorate seat threshold). It also dismissed concerns about some features of MMP that had caused some public disquiet (dual electorate/list candidacy and list MPs contesting by-elections).
But any reform stalled – with the government indicating that it would not be actively progressing the recommendations, in the absence of parliamentary consensus or wide-spread agreement. Consensus or wide-spread agreement was, of course, unlikely. Changing the thresholds would be the death-knell for some smaller parties, and consequently would probably hamper the governing National party’s prospects of garnering a majority coalition at the next election. (On the stale-mate, see Geddis, “Stop Wasting Our Time” and Johannson, “National quiet on MMP changes”.) An opposition Labour MP recently had his Member’s Bill seeking to implement some of the review’s recommendations drawn from the ballot; however, it looks unlikely his Bill will have the numbers to pass.
Despite an independent review, political self-interest continues to present a barrier to updating and reforming the MMP electoral system in the light of years of practice and experience.
B The constitutional review: a long conversation, beginning not ending
The Constitutional Advisory Panel also reported on its consideration of constitutional issues – or, rather, “The Constitutional Conversation”. Unsurprisingly it lacked tangible recommendations for reform.
The independent panel had been charged with considering a range of important constitutional issues, including a written constitution, term and composition of parliament, human rights protections, the Treaty of Waitangi and other issues relating to Crown-Māori relations.
The process of wide-spread public engagement by the independent panel was impressive, and stirred up quite a lot of activity and debate about matters constitutional. (Even, for example, a two-day workshop I was involved in, where 50 young people drafted a new constitution from scratch!) Over 5,000 submissions from a wide-range of people and groups were received.
But the Panel’s final report tended to only recount the (divided) public opinion on the issues, rather than generating concrete suggestions for reform. Firm recommendations were quite limited and process orientated:
- the continuation of the constitutional conversation generally;
- the inevitable call for greater civics education;
- further work and consultation in relation to particular issues; eg, the role and status of the Treaty of Waitangi, a longer parliamentary term, and, notably, strengthening the NZ Bill of Rights Act (including socio-economic rights; entrenchment; enhanced judicial remedies).
Given the mammoth task the Panel was charged with, the diluted response was perhaps not unexpected. The government’s response to the report is due later this year.
C Legislative Disclosure Requirements: unheralded but significant
Modest in nature, but perhaps with significant potential, one other initiative is of some constitutional interest. In the middle of last year, Cabinet quietly issued a circular on new vetting and disclosure requirements for government legislation (CO(13)3).
“The government wants to ensure that its policies get translated into legislation that is robust, principled and effective. … The requirements draw on existing expectations about what makes good legislation to:
- bring attention to specific features of a piece of proposed legislation and/or the key processes through which it was developed and tested;
- make this information publicly available in an accessible and cost-effective way; and
- thereby facilitate greater and more effective scrutiny of that legislation by Parliament and the general public.
The increased provision of information, and scrutiny of that information, is expected to improve legislative quality over time by increasing the attention given to follow good practices during the development of legislation.”
The regime builds on other legislative vetting, such as the regulatory impact analysis and reporting on consistency with the NZ Bill of Rights Act and seeks to pull together information useful to those scrutinising legislation. It includes a mixture of the elaboration of the policy objectives, disclosure of testing and analysis, and explanation of consistency with a range of standards and norms. (Compare some of the recent work proposing legislative standards for Westminster: eg, House of Commons PCR Committee “Ensuring standards in the quality of legislation” and Caird, “A Code of Constitutional Standards”.)
The norms and standards which trigger disclosure are pretty well-established and, in a large part, echo the Legislative Advisory Committee’s long-standing Guidelines on the Process and Content of Legislation. Disclosure statements, prepared by departments based on a set template, are expected to explain the policy background, set out details of consultation and testing, and report on the following matters:
- consistency with New Zealand’s international obligations
- consistency with the government’s Treaty of Waitangi obligations
- consistency with the New Zealand Bill of Rights Act 1990
- creation, amendment or removal of offences, penalties and court jurisdictions
- privacy issues
- compulsory acquisition of private property
- charges in the nature of a tax
- retrospective effect
- strict liability or reversal of the burden of proof for offences
- civil or criminal immunity
- significant decision-making powers
- powers to make delegated legislation
- other unusual provisions or features.
Disclosure statements must be made publicly available, through a central repository, when the relevant Bill is introduced into Parliament, and later amended, if any substantive amendments are subsequently made to the Bill (see www.legislation.disclosure.govt.nz). Initially deployed under a Cabinet circular, the government’s intention is that the disclosure regime subsequently be enacted in legislation.
The disclosure regime has its genesis in a number of failed efforts to enact aggressive and enforceable legislative standards, driven mainly by the small, right-wing ACT party which is presently a member of the coalition government. It proposed a Regulatory Standards Bill, which would have seen the courts being given some powers to enforce prescribed standards (an interpretative direction similar to those found in human rights legislation, as well as an express power to issue declarations of inconsistency). However, the proposal proved controversial, particularly the loaded legislative standards proposed and judicial enforcement (see eg Ekins, “Regulatory Standards in New Zealand; Treasury, “RIS: “Regulating for Better Legislation”; Thwaites and Knight, “Administrative Law Through a Regulatory Lens”). A compromise was eventually reached where improvements would instead be made at the departmental and parliamentary level. From that came this enhanced and comprehensive vetting and disclosure regime.
Will the disclosure regime improve things though? Time will tell.
There is some reason to be optimistic. Anecdote and intuition suggest that pre-parliamentary legislative vetting pays dividends (although it is difficult to measure). And, like regulatory impact statements and Bill of Rights consistency-reports, disclosure statements will provide politicians and interested parties with ammunition against problematic legislative provisions. Witness, already, disclosure statements being deployed a number of times in the critique of Bills by parliamentarians and commentators.
But one weakness is that the disclosure regime is not directly interwoven into the parliamentary process or given institutional support within Parliament itself. Its impact would be stronger if, for example, a specialist select committee was charged with assessing compliance (much like the non-partisan and respected work of Regulations Review Committee in relation to delegated legislation). Otherwise, whether the disclosure regime improves the quality of legislation will depend whether it is taken seriously by parliamentarians and the extent to which it melds itself into the constitutional culture. Or whether it becomes merely a perfunctory, “tick-box” exercise. We will see.
Dean Knight is a Senior Lecturer in the Faculty of Law, Victoria University of Wellington, New Zealand.
(Suggested citation: D. Knight, ‘Report from New Zealand: MMP Review, Constitutional Review, and Legislative Discloure’ U.K. Const. L. Blog (10th March 2014) (available at: http://ukconstitutionallaw.org/)).
On Friday 28 February Dan Byles’ Private Member’s Bill on Lords reform completed its Commons passage. It is now in the Lords, and will be sponsored by David Steel. The bill, which allows retirement from the Lords and expulsion of non-attendees and serious criminals, has been presented as a small, uncontroversial “housekeeping” measure. But as already argued in an earlier blog post, as currently drafted it would in fact introduce a very major change that would alter the Lords fundamentally, and in very undesirable ways.
I will not repeat the basic arguments in my earlier post, which is still available to read (see here). But it urged an amendment at Commons report stage, to ensure that those allowed to depart the Lords (through retirement or expulsion for non-attendance) cannot immediately run for the House of Commons. Such calls were made throughout the bill’s Commons passage, but have been resisted by ministers. This is both puzzling and very worrying. It is puzzling because a ‘cooling off’ period before those departing the Lords could run for the Commons has been included in numerous earlier proposals, from the Wakeham Royal Commission to the Clegg bill (both of which are quoted in my previous post). It is worrying for reasons that I will now spell out, somewhat more forcefully than before. In the rest of this post I summarise the problem, reflect on what the Lords should do, and end on responses to some points that have been made against the change that I propose – all of them unconvincing.
The bill as drafted (clause 4(5)(b)) explicitly allows departing Lords members to run for the Commons. The problem that this creates applies not to existing peers, who presumably gave up any Commons ambitions when accepting their life peerage. It relates instead to new members appointed after the bill has passed. One of the weaknesses of the debates to date (on which more below) is that they have focused too narrowly on the likely short-term effects, in terms of how many current peers may depart – and insufficiently on the long-term effects, in terms of future appointments. But while there may be small, short-term gains through allowing a few peers to retire, the effects of the bill in the longer term would be far larger, and potentially extremely damaging to the Lords.
To illustrate, let us consider three possible candidates for the Lords once the bill has passed:
- Candidate A has served two terms as an MP, and is appointed to the Lords in 2015 after narrowly losing his seat. He badly wants to regain his constituency, and spends much of the next five years working there, maintaining a constituency office and regularly campaigning door-to-door.
- Candidate B has fought several Commons seats unsuccessfully in the past, and after missing out again in 2015 is rewarded with a seat in the Lords. But she still yearns after a Commons career, so seeks reselection as soon as possible, and uses the Lords to try and raise her local profile above that of the incumbent local MP.
- Candidate C is appointed to the Lords in 2015 after many years working as an adviser to his party leader. From there he starts looking for a Commons constituency, and uses Lords speeches primarily to broadcast his suitability as a future MP, and maybe even a future leader.
Candidates A, B and C are not so very different to many who have been appointed to the Lords in the past – indeed, around 60% of current party peers are either former parliamentary candidates or MPs. The key difference is that such people currently have to weigh up carefully whether they still want a Commons career. Those in doubt will turn down any offer of a peerage; those accepting one will set other ambitions aside. I do not see candidates A, B and C as bad people who are doing anything underhand or inappropriate; it is understandable that they should see the Lords as a useful temporary resting place. Nor would their party leaders be acting improperly; indeed, it is easy to see how and why leaders would embrace these new patronage powers. The point is that the bill as it stands fundamentally changes the calculus both for those offered seats in the Lords, and for those doing the appointing. Unless the route from Lords to Commons is explicitly ruled out, people will understandably conclude that it is fine to use it. If the bill passes in its current form, please have no doubt: these changes are certain to occur.
It should hopefully already be clear what effect this would have on the Lords. Many members would become far more preoccupied with constituency business and campaigning than with parliamentary scrutiny work; many would watch far more carefully what they said, in order to appeal to the media, local voters and their party leaders; in seeking to make Lords debates more eye-catching, they would make those debates more politicised. In addition, many members would become short-term occupants of the Lords, staying only a few years before another career could be developed – with a consequent loss of long-term thinking. Should this be considered fanciful, look (as set out at greater length in my previous post) at Ireland, and more recently Canada. In Ireland chamber-hopping is absolutely the norm, and Senators (despite not being directly elected) spend much of their time on local campaigning work. Only last month I acted as an adviser to the Irish Constitutional Convention, where this problem with their parliament was much lamented.
The Byles bill has been presented as a small “tidying up” measure, but these changes would be fundamental, and major. For hundreds of years (with a couple of exceptions, discussed below) members have been able to move from Commons to Lords but not the other way around. The bill would thus change centuries of British tradition, and the consequences need very careful thinking through. It could be argued to the bill effectively ends life peerages in all but name: allowing members to depart the chamber when they wish, at any age and after any period of service. But members can de facto already do this if they really wish, simply by ceasing to turn up. The one thing that they cannot do is run for the Commons. Perhaps some see advantages in changing these historic arrangements; but if so they should make a positive case for change, out in the open, and subject to proper scrutiny. This has absolutely not happened so far.
During the passage of the Byles bill through the Commons, concerns about these matters were raised repeatedly, particularly by Conservative backbencher Jacob Rees-Mogg. In response, at second reading last October Dan Byles said that, “That is the sort of detail that I would be more than happy to discuss… and we could consider whether some small amendment might be made in Committee” (col. 1005). When a ‘cooling off’ period was specifically suggested, so that departing peers had to wait several years before running for the Commons (as was provided in clause 41 of the Clegg bill), Byles said that “I would be interested to look into whether a time bar solution could be achieved” (col. 1055). Hence it was reasonable to assume that the problem would be resolved by government-backed amendments at committee stage – but it was not. At report stage last week the concerns were repeated. Rees-Mogg proposed amendments (particularly amendment 21) to deal with them, arguing that it was “fundamentally undesirable” (col. 558) for the Lords to become a base for aspirant MPs. Dan Byles responded that “we all agree that we would not want the House of Lords to become a training ground for a seat in the House of Commons” (col. 560). Stephen Twigg, speaking for the opposition frontbench, described this as “a serious issue” and “a risk” (col. 561). The minister likewise said that “We do not want to see the House of Lords become a nursery for the Commons where young hopefuls start their careers” and claimed to “fully understand” the concerns expressed (col. 562). Nonetheless no amendment was made. Despite pressures both behind-the-scenes and in the chamber, ministers had resisted changes to resolve the problem.
These developments demonstrate in part the weakness of the private members’ bill process. The bill had its second reading and report stage on ill-attended Fridays, with little media attention. Its sole committee session lasted a mere 38 minutes. There was no pre-legislative scrutiny, no call for evidence, no opportunity for witnesses to appear, and consequently no outside group engagement. The limited time available also led to great resistance to amendments. This was worse for the Byles bill for most PMBs, due to fears that any Commons amendments would make its Lords passage more difficult. Those in the Commons were warned to stick rigidly to the contents of David Steel’s previous bill on the topic, which had passed the Lords in 2012-13. Steel’s bill had also failed to include a ‘cooling off’ period, but it was a similarly fragile creature, with fears at the time that any amendments would derail it. Yet everyone knew that its prime purpose was as a spur to government action; and once government gets involved, Private Members’ Bills inevitably get tidied up. Now, however, the original Steel bill is being treated as a kind of revered text, which cannot be altered. The deafness to argument which is occurring over this bill is a classic recipe for bad policy-making, and even for policy disaster. On such an important matter it is essential for reasoned amendments to be properly debated and considered.
So the Lords is now left in a dreadful position. Typically when a bill leaves the Commons with outstanding problems, the Lords provides the forum for them to be carefully discussed and sorted out. It would be a terrible irony if this norm was broken with respect to a policy that concerns – and indeed threatens – the House of Lords itself. But the government claims that any Lords amendments will kill the bill, due to lack of time for these to be considered in the Commons. I am reliably advised by Commons clerks that this is not actually true – while there are no Private Member’s Bill Fridays left, several tricks could be used to get necessary Lords amendments through the Commons by May if the government wants the bill. The Lords therefore should carefully consider possible amendments to deal with the problem.
- Inserting clause 41 of Nick Clegg’s bill of 2012, which would require a ‘cooling off’ period of 4 years (which could be amended to a longer period). This seems the preferable and least contentious solution.
- Simply removing subclause 4(5)(b), which provides that those departing the Lords are not disqualified from “being, or being elected as, a member of that House [i.e. the House of Commons]“. This would retain the current absolute bar on future candidacies – which probably goes too far, and could create legal uncertainty.
- Restricting retirement provisions to current peers, not new entrants. Also problematic, as pressures for retirement would recur and require further legislation. Would also need to apply to provisions for expulsion by non-attendance, otherwise this creates a loophole.
- Restricting these same provisions to those aged over 65 (as was suggested by Jacob Rees-Mogg’s unsuccessful amendment 3 at Commons report stage for the first of the provisions). This too would be a reasonable long-term solution.
Any of these amendments would resolve a weakness highlighted by MPs and therefore be unlikely to face Commons opposition. If the Lords does amend the bill, and the government does not deploy the tactics available to get it through the Commons, it is ministers not peers who would be culpable for killing the bill. If the bill is not amended in one of these ways, my reluctant advice to peers would be to resist it.
It pains me greatly to have to suggest this latter outcome, even as a possibility. I have long argued for the next small steps on Lords reform, both publicly (e.g. here and here) and behind-the-scenes. Allowing retirement would clearly be a beneficial next step. But a conspiracy of silence to get a flawed version of retirement onto the statute book is clearly a bad idea, and the threats in the bill as it stands are far too great. I began research in this area 16 years ago precisely in order to offer objective, evidence-based advice on Lords reform. That evidence tells me that any gain from the bill as is will be relatively small, while its long-term consequences will be huge and negative. Opening up a direct route from Lords to Commons, which has been closed for centuries, would be a major constitutional and political change. If this bill is truly about “housekeeping”, then using one of the amendments above to maintain something similar to the status quo is essential.
Finally (in a post which is already far too long) the really committed may want to hear some of the arguments which have been made against the ‘cooling off’ period, and why I believe that they are wrong:
Argument 1: Peers have been able to leave the Lords and run for the Commons before, under the 1963 and 1999 Acts.
Response: these changes occurred in very different circumstances, and only ever extended to those who had inherited their seats in the Lords (i.e. entered by accident of birth) not those who had themselves been appointed. Hereditary peers of “first creation” were not covered by the 1963 Act, while the 1999 Act was a one-off exodus. Neither implied any change to the type of people appointed.
Argument 2: The ‘cooling off’ period proposed in other packages has been in the context of election to the second chamber, not appointment.
Response: This is simply untrue. The Wakeham Royal Commission (as quoted in my previous post) was particularly strong on this point, despite proposing a largely appointed house.
Argument 3: Once in the pleasant environment of the Lords, few people will feel motivated to depart for the Commons.
Response: I believe that this argument is naive, and too influenced by feelings among some current peers. It is important to remember that those now in the Lords have – by definition – renounced the option of a future Commons career. But the bill allows people who feel very differently to be appointed, and their party leaders will be tempted to do so. It is undeniable that a Commons career remains a desirable to many people active in politics, for example promising a salary, access to senior ministers, and a chance at a cabinet career. Indeed a majority of current party peers have run (successfully or unsuccessfully) for the Commons in the past.
Argument 4: Introducing a cooling off period would deny democratic rights to people to run for the Commons.
Response: In fact, a bill with a cooling off period (of say 4, 5 or 10 years) would significantly increase freedoms beyond what they are now. Life peers have been barred since 1958 from running for the Commons (and likewise, aside from exception 1 above, this has always applied to hereditary peers). Few have complained about this restriction.
Argument 5: There is no time in the Lords to consider amendments, given that the second reading is occurring so late (28 March).
Response: It is very unfortunate that the sponsors of the bill chose a late second reading date, seemingly to procedurally block the opportunity for amendments. The Companion to Standing Orders does set down minimum time periods between stages (e.g. 14 days between second reading and committee stage), but these are only ‘recommended’, and it is not unusual for them to be breached by agreement of the usual channels. If an amendment is put down, a committee stage will be required to debate it, and one can be provided.
Argument 6: It would be better to get this bill through, and if a problem occurs to then legislate to correct it afterwards.
Response: This is a very dangerous suggestion. Once the legislation is on the statute book there is absolutely no guarantee that it can be changed. A “corrective” PMB in the next session could easily die, or indeed be blocked by ministers. Then once the route from Lords to Commons has been opened post-2015, it would probably prove impossible close it again: such legislation would appear critical of particular individuals who have taken this route, or of their party leaders; party leaders will anyway by then have adjusted to the enhanced patronage that the bill provides. Far better not to take the risk - even if this means waiting for a better safeguarded retirement provision in a future bill
Dr Meg Russell is Deputy Director of the Constitution Unit, and Reader in British and Comparative Politics at UCL. She is author of The Contemporary House of Lords: Westminster Bicameralism Revived (Oxford University Press, 2013) and Reforming the House of Lords: Lessons from Overseas (Oxford University Press, 2000), and has acted as adviser to the Royal Commission on Reform of the House of Lords, the House of Lords Appointments Commission, the Leader of the House of Commons, and various parliamentary committees.
REPOSTED WITH THE KIND PERMISSION OF THE CONSTITUTION UNIT BLOG.
Suggested citation: M. Russell, ‘The Byles/Steel bill – unless amended – holds grave dangers for the Lords’ Constitution Unit Blog (5th March 2014) (available at http://constitution-unit.com) OR M. Russell, ’The Byles/Steel bill- unless amended – holds grave dangers for the Lords’ U.K. Const. L. Blog (5th March 2014) (available at http://ukconstitutionallaw.org/).
THIS ARTICLE IS REPOSTED WITH THE KIND PERMISSION OF THE LONDON REVIEW OF BOOKS:
In 1916 the secretary of the Anti-German Union, Sir George Makgill, a Scottish baronet of extreme right-wing views, brought judicial review proceedings to remove from the Privy Council two wealthy Jewish philanthropists, Sir Ernest Cassel (who had actually converted to Catholicism) and Sir Edgar Speyer, on the ground that, although both were British subjects, they were not British-born.
A full court of the King’s Bench, presided over by the chief justice, Lord Reading, was assembled to hear the claim. It was opposed on behalf of the Crown by the attorney-general, F.E. Smith. Although the High Court, and subsequently the Court of Appeal, rejected it, the case is of continuing interest for more than one reason. The courts at both levels accepted that the prerogative power of the monarch to appoint whom he chose to be a privy counsellor was subject to judicial review, and that it was arguable – though incorrect – that it did not extend to appointing counsellors who were not British by birth. As a preliminary issue, however, the attorney-general submitted that the claim should fail because Makgill lacked standing to bring it: only the attorney-general himself, as guardian of the public interest, Smith argued, could bring such a question before a court of law.
The chief justice disagreed. Makgill, he said, ‘appears to have brought this matter before the court on purely public grounds without any private interest to serve, and it is to the public advantage that the law should be declared by judicial authority. I think the court ought to incline to the assistance, and not to the hindrance, of the applicant in such a case.’ There was longstanding authority to support this approach to what is nowadays known as public interest litigation. A claimant will ordinarily have standing because he or she has a personal stake in the outcome; but there are cases, of which Makgill’s was one, where an arguable breach of the law by the state itself has no identifiable victim. Here the courts have for centuries been willing on occasion to hear an applicant who has nothing personally to gain. As long ago as 1789 Chief Justice Kenyon said in relation to such a claim: ‘I do not mean to say that a stranger may not in any case prefer this sort of application; but he ought to come to the court with a very fair case in his hands.’ In 1835 the presiding judge of the Court of Exchequer added: ‘It has been the practice, which I hope never will be discontinued, for the officers of the Crown to throw no difficulty in the way of any proceeding for the purpose of bringing matters before a court of justice, where any real point of difficulty that requires judicial decision has occurred.’ This was why in Makgill’s case one of the judges said: ‘The process is enforced for the benefit of the community, and is the only available remedy if the office [of privy counsellor] is either abused or usurped.’
The preparedness of the High Court to consider whether the state has abused its powers at the instance of an applicant who has nothing personally to gain is one of the modern cornerstones of the rule of law. It is not an open door: for every individual or NGO that secures permission to apply for judicial review in the public interest, there are a good many turned away. Some are considered to be busybodies, like the Anglican vicar who wanted to stop the ordination of women in Wales. Others are genuinely disinterested but lack what Lord Kenyon called ‘a very fair case’. But where, as also happens, an NGO or a concerned individual calls attention to what appears to be a real and serious abuse of government power, albeit one that does not directly affect them, the courts may call on the executive to explain itself and may intervene if the explanation does not stand up.
In all such cases the court has to determine whether the particular claimant has what the law calls a ‘sufficient interest’ in the subject matter of the claim. The phrase itself is deliberately elastic, calling on occasion for a complex judgment, in recognition of the fact that the public importance of an issue may sometimes be sufficient to compensate for the absence of a personal motive for litigating it, and that it is for the judges to work out who is entitled to be heard issue by issue.
In September 2013, in the wake of a consultation paper which proposed among other things to choke off judicial review by reducing the availability of legal aid for it, Chris Grayling as secretary of state for justice and lord chancellor (two distinct offices now merged, in Gilbertian mode, in one person) published a further consultation paper dealing specifically with the judicial review process. The paper proposed to restrict the meaning of a sufficient interest to a ‘direct and tangible interest’ in the outcome: in other words, to wipe out two or more centuries, in the course of which the courts have adjusted the gateway of judicial review to meet the needs of the rule of law (which Grayling’s oath of office commits him to respect) by according standing not always to those acting for private advantage but occasionally in the public interest.
The blinkered attitude to public interest litigation was visible in the paper’s treatment of the 1995 Pergau Dam case. The facts of the case were startling. The foreign secretary, Douglas Hurd, was proposing, for overtly political reasons, to go ahead with a subvention of £316 million to Malaysia for a hydroelectric project which the government’s Overseas Development Administration had advised would be uneconomic, an abuse of the overseas aid programme and ‘a very bad buy’. The High Court held that the rule of law, the importance of the issue, the probable absence of challenge from any other source, the nature of the breach of legality and the prominent and responsible character of the World Development Movement combined to give it a sufficient interest. On the substantive issue, the court held that the statutory power to provide assistance for the purpose of promoting development did not include promoting unsound development, which this incontrovertibly was. They struck down the decision. There was no appeal. It later became known that the foreign secretary had not sought the advice of his own lawyers, which would have been that the proposed funding was illegal.
Could it be seriously contended that it would have been better had the WDM not been allowed to bring the issue before a court, leaving more than £300 million of public money to be squandered? It seems it could be. The consultation paper cited the Pergau Dam decision as a prime example of challenges which ought not to happen, especially (I am not making this up) since such challenges are ‘relatively successful compared to other judicial review cases’. The paper displayed no awareness at all that this aspect of the law of standing has a long history and a principled purpose, not to supplant or embarrass ministers, but to ensure, first, that government functions within the law and, second and just as important, that within the law government retains full freedom of action.
Instead Grayling’s paper fudged the two distinct meanings of ‘public interest’. It proclaimed the principle ‘that Parliament and the elected government are best placed to determine what is in the public interest’ with the evident purpose of suggesting that judges have been usurping this function; but the paper failed to cite a single case (and I know of none) in which a court has substituted its view of the public interest for that of a minister. The reason is that public interest litigation does not mean litigation about what is in the public interest: it means litigation brought in the interest of the public as a whole in seeing the law upheld. The fallacy that public law can be limited to the vindication of private rights and interests was exposed in the consultation paper’s own recognition that the Aarhus Convention, to which the UK is a party, requires the preservation of public interest access to the courts on environmental issues; but the paper was blind to the fact that there are numerous other kinds of issue to which precisely the same logic applies.
The history of such litigation includes not only Makgill’s malign effort but the interventions of the Child Poverty Action Group; Greenpeace; the actors and scholars who tried to save the remains of the Globe Theatre from demolition; the GPs who saved a local hospital in Hillingdon from closure; the National Federation of Self-Employed and Small Businesses seeking to enforce the taxation of casual print-workers; and a considerable number of private individuals concerned with the legality of official action or inaction. The power of the courts to intervene where an arguable misuse of power affects the public as a whole is, as Lord Reed said in the Supreme Court recently, an aspect of their function (and, one might add, that of the Lord Chancellor) of protecting the rule of law. Departments of state have on occasion welcomed public interest challenges as a means of clarifying the law. In 1990, for instance, a consortium consisting of the Child Poverty Action Group, two London borough councils and the National Association of Citizens’ Advice Bureaux challenged the way social security legislation was being interpreted and administered by the department and the independent adjudicators. The department did not contest their standing; the ruling helped everyone.
Following a barrage of criticism, including a sharp response from the judiciary, the proposal to restrict standing has now been dropped. Thanks apparently to a sudden conversion, Grayling’s response to the consultation begins: ‘I believe in protecting judicial review as a check on unlawful executive action …’ Whether the abolition of public interest standing was a serious proposal or an example of the distraction technique I wrote about in the LRB of 12 September 2013, we may never know.
One possibility the threatened advance of the constitutional bulldozer threw up was a revival of relator actions: proceedings authorised by the attorney-general in the public interest so as to cure the claimant’s lack of standing. The use of this power has become rare as public interest standing has developed, but it is a judge-made instrument (not a prerogative power) for securing justice. The problem is that the attorney-general, like the justice secretary, is something of a pantomime horse: both custodian of the public interest in the observance of the law (and in that regard the government’s legal adviser) and a government minister with political obligations of collective responsibility. In 2007 the Commons’ Constitutional Affairs Committee, in a well-reasoned report, concluded that the attorney’s dual role was constitutionally unsustainable: ‘Real and perceived political independence has to be combined with a role of an intrinsically party political nature in one office holder.’ The committee advised that the attorney-general’s functions should be split between a non-political legal adviser and a government minister. Nothing has been done to act on the advice.
In 1977 John Gouriet and his Freedom Association tried to obtain an injunction to stop the Union of Post Office Workers boycotting mail destined for South Africa. Gouriet’s lawyers recognised that he had no personal standing and therefore needed the attorney-general’s authority to sue. The attorney-general, Sam Silkin, refused his consent and turned up in person to submit that his decision was final and beyond judicial review. He found himself before an incandescent Court of Appeal which included Lord Denning and Lord Justice Lawton. In a judgment memorable not only for its rhetoric but for the spoof law report it generated, Denning held that if the attorney-general improperly refused his consent the court could proceed without it.[*]
Denning’s premise, at least, is not fanciful. A refusal on the ground that it is not in the public interest for well-founded proceedings to be brought is entirely possible – indeed it was Silkin’s ground for refusing to authorise Gouriet to sue in his name. It is here, however, that the two meanings of public interest collide. For the intending claimant the public interest lies in maintaining the rule of law; for the attorney-general it will lie in an amalgam of legal and political considerations dominated by the interests of the government of which he or she is a member. The consequence is that the attorney-general, if asked to authorise a claim such as the Pergau Dam claim, may recognise, as the government’s legal adviser, that the claim is entirely sound but decide, as a member of the government, that it is not in the public interest for it to be litigated in open court.
This is among the reasons why the courts have developed their own principles of standing, and why Parliament, recognising that it is for the courts to decide whom they will hear, has not – or not so far – attempted to restrict or define what amounts to a sufficient interest for a judicial review claim. Grayling’s proposal was thus rather more than an attempt to adjust court procedures: it was part of a renewed assault on the constitutional separation of powers.
Denning’s conclusion that if necessary the courts could proceed without the attorney’s consent is, however, problematical. A legislative roadblock on public interest claims may mean that the court cannot simply decide to entertain such proceedings in the absence of the attorney-general’s fiat. But it does not mean that the court cannot require the attorney-general to reach his decision about authorising the proceedings without regard to political considerations and with exclusive regard to the maintenance of the rule of law. Such a course would at least have the virtue of disaggregating his inconsistent roles; it would also give the concept of public interest a single and intelligible meaning dovetailing with the rule of law.
But reliance on the attorney-general’s support would not work in the most critical class of case, where the decision under challenge is one for which the attorney is responsible. In 2006 the director of the Serious Fraud Office decided that it was in the public interest to discontinue the SFO’s investigation into possible corruption affecting British Aerospace’s arms dealings with Saudi Arabia, because Saudi Arabia had threatened to withhold its co-operation in combating terrorism within the UK if the investigation was pursued. The director had acted throughout in consultation with the attorney-general, to whom he was answerable, and the attorney-general in turn had consulted his ministerial colleagues. A group of NGOs, led by Corner House Research, challenged the director’s decision as an unlawful abdication of his duty to investigate serious crime, and in the High Court, before a panel of two lord justices of appeal, they succeeded. The House of Lords, not long before its transmutation into the Supreme Court, reversed the decision, holding that the choice made by the director of the SFO, with the attorney-general’s authority, was a legitimate choice between two competing public interests: the prosecution of crime and the safety of British citizens. But the lawsuit itself crystallised two things. One was the complex of factors going to make up a government decision about where the public interest in relation to the investigation lay. The other was that, unless disinterested groups like Corner House Research were able to bring as serious an issue as this before the courts, the public interest in the maintenance of the rule of law would be rendered impotent – for who, other than British Aerospace and the Saudi government, would have had a ‘direct and tangible interest’ in the issue?
[*] The case (the work of Marcel Berlins) was Grenouille v. National Union of Seamen, in which Denning grants a frog an injunction to stop trade-union militants picketing its pond.
Sir Stephen Sedley is a former Lord Justice of Appeal and is a Visiting Professor at the Faculty of Law, University of Oxford.
Suggested citation: S. Sedley, ‘Not in the Public Interest’ 36:5 London Review of Books 29-30 (2014).
As commentators we seem to end many of our contributions to the independence debate with the rather unhelpful conclusion that much remains, and will continue to remain, uncertain; a state of affairs accentuated by recent comments on the prospect of currency union and EU membership. This must frustrate those hardy souls who read to the end of our blogs seeking enlightenment. Perhaps then we owe readers an explanation as to why it is so hard to offer a clear picture of how an independent Scotland will be brought about and what it would look like.
In trying to envisage life after a Yes vote it is natural to begin with the Scottish Government’s White Paper published in November 2013 which, at 648 pages, cannot be accused of failing to set out the SNP’s broad vision for independence. But for several reasons we must treat this only as the start of our quest and certainly not as a definitive template for a new Scottish state.
Here are some reasons why:
1. The White Paper is selective
The White Paper is certainly comprehensive but inevitably offers if not a Panglossian then at least an optimistic picture of the future, using evidence that supports the Scottish Government’s case for economic success and relatively easy transition to statehood. Inevitably many of these claims have been subject to contestation, and since they are dependent upon varying circumstances and the cooperation of other actors, not least the UK Government, they cannot be taken to be the last word on independence.
2. Are we sure there will be negotiations?
This is surely the easiest question to answer. The White Paper not unreasonably assumes a process of mutually cooperative negotiations given the Edinburgh Agreement in which the UK and Scottish governments undertook ‘to work together constructively in the light of the outcome, whatever it is, in the best interests of the people of Scotland and of the rest of the United Kingdom.’ This has recently been restated by a UK Government minister. It can also reasonably be assumed that despite the bluster of the referendum campaign it will be in the interests of the UK to build a constructive relationship with its near neighbour. But there are still many unknowns concerning the negotiation process and its possible outcomes.
3. Who will negotiate?
On the one hand we would expect the Scottish Government to take the lead for Scotland. But let’s not forget the Yes campaign is a broader church than simply the SNP, and different contributors to this, such as the Green Party, will have their own agendas which they would seek to advance in negotiations with the UK. Furthermore, in the White Paper the Scottish Government announced that it ‘will invite representatives from the other parties in the Scottish Parliament, together with representatives of Scottish civic society, to join the Government in negotiating the independence settlement.’ (para 2.7) Who might take part, what influence would these other actors have, and how might their influence re-shape the negotiations? Also, on the UK side different uncertainties present themselves. We assume the UK Government will negotiate for the UK, but with a general election in May 2015 a new government may take a different view of the negotiation process.
4. What if negotiations break down?
An unlikely scenario but one which does add more uncertainty to the mix is the possibility of failure of these negotiations to result in agreement. If negotiations do indeed break down, what then: a unilateral declaration of independence? This possibility has rarely been considered within the Scottish debate but it would raise a new set of issues regarding both the terms of separation between Scotland and the UK, at which point international law would provide some guidance as to the default position, and for Scotland’s status internationally.
5. Will there be a deal?
We can expect a deal at the end, but in light of the ‘personnel’ issues considered at point 3 the terms of any negotiated deal are hard to predict. How many of the goals to which it aspires in the White Paper will the Scottish Government achieve, and on which issues will it have to compromise, not only with the UK but with other parties to the negotiations on the Scottish side?
6. Surely experts can predict the outcome of negotiations?
Given that a UDI is highly unlikely, as commentators we can reasonably focus upon the terms of negotiations, but here voters must be struck by how we suffix our references to the most likely outcomes by restating how many variables are at work. It is no surprise that on the various issues at stake experts will reasonably disagree about different scenarios. As commentators we also have a duty not to enter the debate in a polemical way, using expert knowledge to advance the cause of one particular side. It is important to remain objective, presenting the evidence for the different sides of each argument as best we can.
7. Clarity and simplicity are not synonyms
The subject matter for negotiations could scarcely be more complex – disentangling a state with a highly integrated advanced economy. So many issues will need to addressed together that even listing the topics to be dealt with is a difficult, and inevitably an incomplete, task: the economy, the currency, debt, welfare, pensions, oil and gas, higher education, the environment, defence, the European Union, security and intelligence, borders, citizenship, broadcasting etc. etc. Issues surrounding each of these issues will have to be negotiated. Therefore, there is reasonable disagreement among commentators about the nature of the competence which an independent Scotland would acquire in relation to each of these, and as to the prospects for some degree of on-going cooperation or union with the UK in relation to each area of competence. And even if we commentators can reach some kind of consensus about a particular issue taken in isolation we need to factor in that each is a potential bargaining chip in negotiations. There may well be trade-offs which see some aspects of the Scottish Government’s preferred model of independence subject to compromise in return for other gains.
8. It’s politics, stupid
What would make things clearer? Well the obvious solution to a lot of uncertainty would be agreement between the two governments on a range of issues ahead of the referendum. The Electoral Commission (paras 5.41-5.44) has recommended ‘that both Governments should agree a joint position, if possible, so that voters have access to agreed information about what would follow the referendum. The alternative – two different explanations – could cause confusion for voters rather than make things clearer.’
But this is not going to happen. Uncertainty among voters is an important card for the Better Together campaign. It is simply not in the political interests of the UK Government to work with the Scottish Government to clarify possible negotiation outcomes. And in any case it may not be in the interests of the Scottish Government either should such pre-referendum discussions result in stalemate, thereby serving only to heighten rather than diminish uncertainty before the vote.
9. After independence: designing Scotland’s constitution
Even if negotiations are concluded and independence formally endorsed we will not have a final picture of Scotland’s constitutional future. Scotland will not at that stage have a constitution. According to the White Paper there will be an interim period during which some form of transitional arrangement will be needed. There will then be a Scottish parliamentary election in May 2016, and only after this, according to the White Paper, will a constitutional convention be established to draft a constitution. So many of the proposals set out in the White Paper concerning Scotland’s constitution are contingent upon how this convention is established, how it will draft a constitution, what this will contain, and how it will be ratified (i.e. will it be approved by the Scottish Parliament or by way of another referendum).
And what would the institutions of government in an independent Scotland look like: will the Queen be head of state? Will there be a one chamber or two chamber parliament? Will Scotland have a new constitutional court? The Scottish Government has views on these issues but also accepts they will be for the constitutional convention to determine. And what institutional arrangements would be needed to maintain areas of cooperation or union with the UK? All of these issues will remain to be settled.
10. It takes three to tango
And of course the foregoing issues focus upon Scotland’s relationship with the UK. What of Scotland’s external relations? Issues such as state recognition; succession to international rights, obligations and treaties; and membership of international organisations, all remain to be fully worked out. And most crucially, the European Union presents two huge issues. The first is how Scotland will be admitted to membership, something which remains a focus for debate, not helped by the bizarre interventions of senior EU politicians. The second issue is surely much more salient and the source of more reasonable disagreement, namely the terms of such admission.
11. What is ‘independence’ anyway?
All of these questions raise a larger issue, namely the heavily integrated nature of the modern nation-state and the web of international relations which bind states within Europe. As the details of the Scottish Government’s proposed model of independence emerge, for example in relation to the currency, what is envisaged is in fact the continuation of important relationships with the UK as well as new and close relations with international partners. But clarity on these points is obscured by campaign gaming. The Yes side is reluctant to voice these aspirations in detail since this will invite the ‘we will never agree to that’ response which we have seen in relation to currency union. This will inevitably mean that much of the detail of what the Scottish Government aspires to will most likely remain unstated at the time of the referendum. The challenge for voters then is a broader one: it concerns how they understand the very meaning of statehood and sovereignty in today’s Europe. The reality today is that any new state emerging from within the EU and intending to remain within the EU will, by definition, instantiate a novel form of statehood which delivers independence but not separation. This, a unique state of affairs, is the factor which poses the deepest analytical challenges to political actors, to constitutional theorists and practitioners, and, since a referendum is the mechanism assigned to determine such an outcome, ultimately to voters.
Is there any point in expert commentary?
Yes of course. There are many technical issues which can be clarified. This will not fully explain how Scottish negotiations will go with either London or Brussels but it can make clearer the issues which will be subject to negotiation.
Secondly, much of the uncertainty stems from the political positions of the two sides: Better Together which does not want to suggest negotiations will go smoothly for the Scottish Government; Yes Scotland which claims that they will. However, the UK Government’s position following the hard reality of a Yes vote is likely to be significantly different from that as stated in the heat of the referendum campaign. Again academics must try to disentangle these two different positions. At the same time they can probe the viability of the claims made by the Scottish Government in its White Paper.
In the end some kind of bigger picture may emerge, albeit through a glass darkly. People when they vote will do so with two rival visions of the future in mind. These will not be perfect predictions of what either an independent Scotland or an on-going UK (we must also remember that a No vote also carries many uncertainties concerning the future) will look like in 1, 5 or 10 years’ time, but they will need to make sense to the people casting their votes. As commentators, all we can do is try to offer some objective guidance so that these visions bear closer resemblance to reality than they otherwise might. A modest aim maybe, but no one ever said constitutional change was simple.
Stephen Tierney is a Professor of Constitutional Theory at the University of Edinburgh and Director of the Edinburgh Centre for Constitutional Law. He is currently ESRC Senior Research Fellow under the Future of the UK and Scotland programme.
Suggested citation: S. Tierney, ‘Why is Scottish Independence Unclear?’ U.K. Const. L. Blog (25th February 2014) (available at: http://ukconstitutionallaw.org/).
William Wade’s analysis of the second Factortame case ((1996) 112 Law Quarterly Review 568) is well known, and justly so. The facts, too, require little in the way of rehearsal. Briefly, and simplifying somewhat: the House of Lords, as it was then known, decided in 1990 to ‘disapply’ a 1988 statute of the UK Parliament – the Merchant Shipping Act (hereafter the MSA) – which may otherwise have frustrated the exercise of rights recognized in EU law, specifically, the rights of a number of Spanish fishermen to trawl in UK waters. In doing so, the court took itself to be acting under the auspices of the European Communities Act 1972 (hereafter the ECA), itself an Act of Parliament. The ECA provides, by section 2 (4), that European Union Law is to prevail over inconsistent Acts of Parliament ‘passed or to be passed’. Wade’s view was that, in ‘disapplying’ the 1988 Act, the House of Lords altered the fundamental rule of recognition in UK law and thereby affected a technical legal ‘revolution’, one which all but overthrew the doctrine of Parliamentary Sovereignty:
‘When in the second Factortame case the House of Lords [refused to apply the MSA] it was natural to suppose that something drastic had happened to the traditional doctrine of Parliamentary sovereignty. The established rule about conflicting Acts of Parliament, namely that the later Act must prevail, was evidently violated, since the later Act in this case was the [MSA], yet it was disapplied under the [ECA]… When that Act was nevertheless held to prevail it seemed to be fair comment to characterize this, at least in a technical sense, as a constitutional revolution.’
A number of issues arise out of Wade’s analysis, and in this note we focus on two lesser explored but, nonetheless, fundamental questions. The first concerns whether the ‘established rule’ that Wade cites properly applied in Factortame, and hence can be seen to have been modified by the ruling. The second concerns the implications of our first point for Wade’s description of the case. Our aim will be to cast doubt, from within the traditional framework, upon the thesis that Factortame was a ‘revolutionary’ ruling.
Was There A Conflict?
Doubtlessly there was. EU law granted rights to fish which would have been explicitly curtailed by the MSA, had it been applied. But was this the right type of conflict? Wade cites, as having been amended in the case, the following ‘established rule’:
Where two statutes conflict, the latter is to prevail over the former.
Does this rule apply in Factortame? Importantly, the question is not whether EU law itself conflicts with the MSA, because the requirements of the former, as interpreted by the European Court of Justice, are not themselves statutory. The relevant objects of interpretation for the purpose of the rule are the ECA, which requires courts to give effect to EU law, and the MSA, which restricts the rights of non-nationals fishing in UK waters.
Two statutes may be said to conflict if one requires a result that the other denies, if one affirms a proposition of law which the other repudiates. So, for example, a statute prohibiting the consumption of alcohol by those under the age of 18 conflicts with a statute granting children over 15 the right to drink alcohol under the supervision of their guardians. And under the established rule that which was formerly enacted should give way to the latter. What proposition did the MSA stand for? That UK nationals be granted a special dispensation to fish that was to be denied to EU citizens more generally. The question, then, is whether the ECA rejects this legal result and the answer must be that it does not. The ECA says nothing substantive about the rights of EU citizens, UK or otherwise, to fish and so cannot be said, itself, to conflict with the MSA.
One way to see this is to ask the question whether the ECA could be taken to conflict with the MSA if EU law did not grant directly enforceable rights to fish in UK waters to EU nationals. The answer, of course, is that it would not. But the question of whether two statutes conflict cannot be taken to depend upon factors other than their own content. If the ECA and MSA would not conflict in this situation, despite nothing having been changed in our imagined circumstances about the meaning of the statutes, then they cannot be taken to have been in conflict on the facts of Factortame. We cannot settle a matter of interpretation, in other words, on the ground of external contingencies.
To repeat, there was a legal conflict: between the MSA and directly enforceable EU law, which was required to be given effect to under the ECA, but not between the ECA and MSA. Why does this matter? It matters for the reason that the traditional rule that Wade cites – that where two statutes conflict the former must give way to the latter – did not apply in Factortame, and hence cannot be said to have been modified by the result. What the court did in that case was not to alter, or set aside, a long established and fundamental rule of UK Constitutional Law, but to fashion a novel principle – that legislation be given effect subject to EU law, that is, in accordance with the terms of the ECA so long as that statute remained on the books – in a novel constitutional situation. Note, moreover, that this rule does not contradict the central aspect of the doctrine of Parliamentary Sovereignty, the principle that Parliament may make or unmake any law whatsoever. The question of whether Parliament would have to repeal the ECA in order to legislate contrary to EU law, or simply decree that such legislation was to have effect ‘notwithstanding’ the ECA is a nice question of constitutional law, and the answer would probably be settled in favor of the latter.
Recognition and Revolution
Wade’s question, in light of his analysis, was this: ‘Has the House of Lords adopted a new “rule of recognition” or “ultimate legal principle”?’ Having concluded that the traditional rule concerning statutory conflict had been amended he answered in the affirmative, describing the situation as ‘revolutionary’. Disagreeing with Wade’s analysis, we may pose a different question in the terms suggested by our own argument: does the fact that the House of Lords established a rule in a situation of constitutional uncertainty entail that their verdict was one of revolutionary import? Does, in other words, the fact that the court made decision which, in this sense, affects the rule of recognition constitute a technical legal ‘revolution’? Seeing why it does not requires a better understanding of recognition rules, and their place in a constitutional order.
The constituent parts of a legal system, H.L.A. Hart famously argued, have synchronic identity in virtue of the fact that they are identified, by the courts, in accordance with the system’s ultimate criteria of recognition. These criteria – shown in use but rarely, if ever, stated in anything close to canonical form, complex and in various ways indeterminate – both fix the court’s ultimate duties within the system and bestow upon them a further responsibility. Because, ultimately, it is for the courts to interpret and apply the rule of recognition it falls on them, also, to resolve doubts and indeterminacies relating to its application. Such a task is not merely desirably placed within the hands of the courts, as legal experts, buts falls on their shoulders of necessity.
The courts have, in this sense, an inherent jurisdiction, in the context of controversy, to determine the limits of their own powers. This authority is, of course, limited by the central, uncontroversial tenets of constitutional doctrine, so no paradox arises, but the capacity is real nonetheless. Hart makes the point:
‘The possibility of the courts having authority at any given time to decide… limiting questions concerning the ultimate criteria of validity, depends… on the fact that, at that time, the application of those criteria to a vast area of the law… raises no doubts, though their precise scope and ambit do.’
At the limits of their role the courts must make decisions not controlled directly by the constitution, but at any rate within their power; this is what happened in Factortame. Is it right to call such judgments ‘revolutionary’? The answer, perhaps, may be less exciting than we have been lead to believe.
Thomas Adams is a D.Phil candidate at Balliol College, University of Oxford.
Suggested citation: T. Adams, ‘Wade’s Factortame’ U.K. Const. L. Blog (24th February 2014) (available at: http://ukconstitutionallaw.org/).
The Divisional Court’s decision in the David Miranda case has provoked much controversy and debate about freedom of the press and national security issues. About halfway through his judgment, Laws LJ makes a number of comments about the justifications for freedom of expression and media freedom. While these may not be the most pressing or immediately important issues raised by this particular case, it is worth noting what Laws LJ says at paras [41-46] as he seems to move away from what has been something of an orthodoxy in the British and European jurisprudence – the importance placed on the democratic justification for expression.
Laws LJ takes this step away from the democratic justification only in relation to individual freedom of expression, and not media freedom. On his view, media freedom is justified ‘to serve the public at large’ – in other words to scrutinize government and provide useful information to the public. These are classic features of the democratic justification. In this, Laws (correctly in my opinion) takes an instrumental account of media freedom, an approach that is reflected in many of the cases and in the Leveson Report. By contrast, he states that freedom of expression ‘belongs to every individual for his own sake’. Here Laws LJ states that ‘the promotion or betterment of democratic government’ is not the ‘essential justification of free expression’. Instead, individual freedom of expression ‘is a condition of every man’s flourishing’.
The implication of this distinction is that when applying the proportionality test in the case of media freedom, the courts are balancing ‘two aspects of the public interest’. By contrast, freedom of speech is about balancing the rights of the individual with the interests of the community. This should not, however, be taken to mean that media freedom rights are more easily outweighed. There may be instances where the public interest in expression serving the needs of the audience is stronger than the interest held by the individual. There will be cases where the audience-focused public interest justification makes a very strong case for heightened protection.
In his discussion of the democratic justification, Laws LJ describes Alexander Meiklejohn’s view that free speech is ‘a collective, not an individual, interest’ and a ‘servant of democracy’. We can see the collective approach to free speech reflected in Meiklejohn’s famous comment that ‘What is essential is not that everyone shall speak, but that everything worth saying shall be said’. According to this approach, the key is that all the relevant viewpoints get a hearing and are considered. The goal is to ensure that the audience is well informed. This thinking suggests that if every person were to speak in a debate, then similar views would be likely to be repeated – while this might make speakers feel better about themselves, it does not give the audience new information (except indicating strength of feeling). Laws LJ argues that this justification, while relevant to the media, does not provide a foundation for individual freedom of expression. In short Laws LJ seems to take the following approach: the collective Meiklejohnian justification for the media, and a liberty theory for individual speakers.
One of the main criticisms of the democratic justification/collective interest advanced by Laws is that it tends ‘to devalue non-political speech and justify the prohibition or abridgement of speech advocating undemocratic government’. It is certainly true that the democratic justification, as advanced under Article 10, has led to a hierarchy in which political speech is given strongest protection. If what Laws LJ means is that the democratic justification is not the sole justification and needs supplementing in some instances to give broader protection, then this is a valid point. I have argued elsewhere that in some cases more protection is needed for the non-political speech of individuals. But the democratic justification still plays an important role in relation to individual expression and there are strong arguments to support the robust protection of political speech. Furthermore, some hierarchy among categories of speech may be practically necessary – not every utterance can be given exactly the same intensity of protection. If all types of expression were treated as a single category then it might weaken the protection of expression overall (ie treating all speech types equally might lead to a leveling down of protection rather than a leveling up).
Laws LJ’s concern that the democracy argument justifies ‘the prohibition or abridgement of speech advocating undemocratic government ‘ is less persuasive. An account of speech that focuses on the collective democratic interest does not necessarily lead to a conclusion that prohibitions on undemocratic speech are to be permitted. The audience interest in hearing diverse views can extend to those that challenge democratic values. One can still oppose restrictions on ‘extreme speech’ while staying within the framework of the classic democratic justification for expression rights. Furthermore, if Laws LJ’s maintains the collective/democratic justification in the case of media freedom, then why doesn’t his objection to the justification apply in this context as well as to individual speakers?
None of this is dismiss the important distinction drawn between individual speech rights and media freedom (with which I strongly agree). However, we can support that distinction for reasons that still connect free speech with democracy. Meiklejohn provides a powerful argument that captures one very important role for free speech in a democracy. But there are other additional reasons why free speech is necessary in a democracy. When thinking about the free speech rights of individuals, we also need to consider the perspective of the speaker. While this seems to be what Laws LJ is getting at, the speaker-based perspective can fit within a democratic justification. Expression can be a form of participation in the political process. To speak out in a democracy is valuable not solely as a means of informing the public, but also as a way of having your say and engaging with collective decision-making. For example, protests are important not just to publicize a cause, but in allowing people to publicly register their thoughts.
My point is that we need not marginalize the democratic justification for expression to go beyond an audience-focused approach. Instead, some of the classic theory’s shortcomings can be addressed by developing the understanding of democracy that underpins the justification for free speech rights.
Jacob Rowbottom is a Fellow of University College, Oxford.
Suggested citation: J. Rowbottom, ‘Laws, Miranda and the Democratic Justification for Expression’ U.K. Const. L. Blog (22nd February 2014) (available at : http://ukconstitutionallaw.org/)
Let me lay my cards on the table. I remain inclined to vote ‘no’ in September’s referendum. I put it no stronger than ‘inclined’ in part because I believe, in the spirit of democracy – even democracy referendum-style – that those of us who have not signed the party pledge should keep an open mind as long as possible. That, indeed, is one of the reasons why, 18 months ago, some of us set up the Scottish Constitutional Futures Forum and its accompanying blog. But my reservations are also partly because recent events have fuelled my anxiety about the climate in which the debate is taking place. They have made me wonder whether the case for independence is getting a fair crack of the whip on the international stage, and have caused me to ponder the implications of lending my vote to a position that remains so reliant upon negative rather than positive arguments.
I am not talking about the shenanigans over a Currency Union. It may be a minority position, but I believe both sides have been giving as good as they get on this question, and that neither comfortably occupies the moral high ground. There has always been something both opportunistic and wishful in the nationalist stance. Sterling, once derided as a busted flush, is reclaimed as a joint birthright. The Euro, once hailed as the bright new monetary dawn, is conveniently relegated to the status of a political lifestyle choice rather than faced up to as an obligation of EU membership that can, at most, be deferred.
The Unionist response may be no more elevated than this, but is surely ranks no lower. There is an arguable case, if a far from compelling one, that it would be in rUK’s best interest to refuse the departing Scots a Currency Union. There are certainly risks either way, and rUK might well change tack in the cold light of a ‘yes’ vote. But Better Together is being no more narrowly strategic than the nationalists in arguing forcefully for the position that best suits its immediate interests. It is a position that could backfire – may already be backfiring – as it allows the nationalists to play the victim card, and to point out that, as the residual sovereign in the event of post-yes-vote negotiations, rUK enjoys the ‘bully’s' advantage of being able to make promises – or threats – that it can credibly deliver upon in self-fulfilment of its prophecies and prejudices. But in the final analysis, the Better Together position, like the nationalist one, is a democratically legitimate one. It is articulated by elected politicians of various parties in favour of a constituency – the UK – whose right to retain the decisive constitutional voice is the very issue at the heart of the referendum. And while nationalists may proclaim the inconsistency of Better Together’s new position with its previous self-denying ordnance against pre-specification of the terms and conditions of independence, they must also acknowledge that the Unionist parties, by building a united front on sterling, have at least answered another widely aired doubt. For once they have demonstrated their ability to get their act together and find common voice when it really matters.
The issue of democratic credentials, however, brings me directly to the point of my comment: namely that other awkward union, the European Union, and the position of Jose Manuel Barroso, President of the European Commission, on the subject. Barroso has previously given strong indications of where he stands, so perhaps we should not be too surprised by his remarks on the BBC’s flagship Andrew Marr Show last weekend. The novelty of his latest contribution may only have been one of emphasis, but the tone was nevertheless striking. Apparently the prospects of membership for an independent Scotland, never untroubled in his perspective, are now to be assessed as “extremely difficulty… If not impossible.”
These remarks have been well publicised. Predictably, they have been seized upon by Better Together as vindicating their long-standing scepticism about an independent Scotland’s EU future, and as further evidence of the emptiness of nationalist promises. But why should anyone listen to Barroso on this topic? Does he have a legitimate political voice in the debate? Does he speak from a position of legal authority? Or, regardless of his political or legal standing, does he simply have a good insider argument, and one that we should heed? The answer, on all three counts, would seem to be ‘no’. Why is this so, and why is it important to the integrity of the debate that the kind of intervention Barroso has sought fit to make should be challenged?
First, there is the question of legitimate political voice. Barroso is not an elected politician. One upon a time he was. Between 2002 and 2004 he was Prime Minister of Portugal. Since then he had done two stints and ten years as the unelected President of the European Commission. His position, which he will vacate this year, does depend upon that of two elected institutions – on the Council ( made up of nationally elected politicians) which proposed him, and on the European Parliament which was required to approve his appointment. Under new rules introduced by the recent Treaty of Lisbon, the appointment of his successor will be subject to an additional indirect democratic check – namely the requirement that his or her nomination by the European Council should ‘take account’ of the results of the latest European Parliamentary elections. In fact, the last European elections in 2009 already saw a move towards an overtly political style of appointment, with Barroso the chosen candidate of the European People’s Party. But none of these developing procedures and practices can make an elected politician out of an unelected public servant. Barroso has no popular mandate, and perhaps some sense of that lay behind his protestations to Andrew Marr, rendered not a jot more credible by their repetition, that his words did not constitute an attempt ‘to interfere’ in a matter of internal Scottish and British politics.
But even if Barroso represents no electoral constituency, does he, as head of the Commission, nevertheless possess a clear legal authority, or even a duty, to step into the Scottish debate? The Commission certainly has an extensive legal remit. According to Article 17 of the Treaty on European Union, it ‘shall promote the general interest of the Union’. Yet in so doing we should understand the Commission’s role as servants of the Treaty framework rather than its master. Article 17 continues by specifying the Commission’s role in ways that reflect and confirm its status as the EU’s administrative college. Its responsibilities are largely downstream. They include the monitoring of the application of European law, the performance of various budgetary, management, executive and management functions, as well as the power to initiate ( but not decide) legislation under the Treaties. In all of this the Commissioners, including the President, like civil servants everywhere, are charged to act independently of external influence.
None of this suggests any stand-alone authority for the Commission or its President on the high political question of new membership, except insofar as this is directly specified in the Treaties. But if we look at the relevant provisions – Article 49 on accession and Article 48 on the alternative route of general Treaty revision – the standing of the Commission is a distinctly modest one. As regards accession, its role is only one of consultation, with the key decision-making reserved to the European Parliament and the Council. As regards general Treaty revision, the Commission is one of a number of institutions that may make proposals, but here the decisive voice lies squarely with the national governments.
If the Commission does not command a central legal role in these matters, should we not nonetheless be prepared to listen carefully to the views of its President simply as an expert in Union-craft - as someone who has the knowledge and experience gained from a decade of independently ‘promoting the general interest of the Union’? Absolutely. Of course we should! The snag here is that the President has chosen to say nothing worth saying – nothing that would draw upon a considered sense of that general interest, but instead restricts himself to well-worn prognostications about what others might do in pursuit of their particular interests. He trades on the symbolic authority of his position to do nothing more than profound than recall that the reception of an independent Scotland into the European Union, whether through the Article 49 route that he envisages, or through the relatively ‘seamless’ Article 48 route that the nationalists argue for, would require the approval of all 28 existing member states; and then to advise that this is an arithmetically formidable threshold, especially given the reservations of certain member states about independence movements in their own backyards – a caution that, as Barroso proceeds to reminds us, has led Spain, concerned with Catalonian and Basque claims, even to refuse to permit a precedent as distant as the recognition of Kosovo as an independent Balkan state.
What is glaringly absent from the debate, both in the knowing buck-passing of Barroso’s intervention and in the broader silence of the EU’s main movers and players on the Scottish question, is the articulation of any kind of public philosophy that would provide good reasons, rather than simply motivations of base political self interest, why an independent Scotland should or should not be welcomed with open arms. How, precisely, is the EU, still resolved by common commitment of the member states in the preamble to the Treaty on European Union ‘ to continue the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as closely as possible to the citizen in accordance with the principle of subsidiarity’, to justify the exclusion of an independent Scotland? Why should a country of 5 million citizens, who have also been EU citizens for 40 years and who have expressed no desire to leave the European Union, be treated less generously than the 110 million new EU citizens – over 20% of the EU’s total population – who have joined from Central and Eastern Europe since 2004? Why should Scottish citizens instead be placed in the same category of Kosovo, or any other potential candidate from beyond the Union’s distant borders?
The point in posing these rhetorical questions is not to suggest that the propositions they contain will simply collapse under the weight of their own absurdity. For there may well be a principled case to make against automatic and accelerated membership of an independent Scotland. We find the embryo of such a case, for example, in the analysis of Joseph Weiler, the current President of the European University Institute in Florence. He has argued, with special reference to the Catalan case,(see http://www.ejiltalk.org/catalonian-independence-and-the-european-union/) that just as national minorities in existing member states who presently enjoy extensive forms of individual and collective freedom have no automatic right to secede as a matter of general international law, so, too, the European Union in its accession policy should not be expected to indulge the independence claims of these unoppressed sub-state nations.To the contrary, the very ethos of integration, reconciliation and continental solidarity that has fed the European project from its post-War beginnings, according to Weiler, should lead the European Union to take a dim view of any separatist impulse that seems to betray these very founding virtues. From this perspective, therefore, far from having a stronger claim than those external candidates who have benefited from the post-Cold War Enlargement, those nations already comfortably nested in the EU’s Western European heartland of multi-level governance should be promised no safe European haven if they insist on the path to independence.
I happen to disagree with both the specific thrust and the wider implications of the Weiler thesis. To begin with, and most narrowly, even if Weiler’s reasoning is applicable to the situation of Catalonia, where no constitutionally permissible route to referendum and independence is presently countenanced at the level of the wider Spanish state, the Scottish case is quite different. Here, the Edinburgh Agreement reflects the preparedness of the UK’s flexible constitution to accommodate the prospect of independence. So for the EU to set its face against Scottish independence would be to dismiss the significance of the member state’s own recognition of the legitimacy of secession. Secondly, and more broadly, whether we are dealing with the Scottish or the Catalan case or that of any other national minority, surely more store than Weiler allows should be set by an aspiring nation’s own sense of what is the constitutionally adequate vindication of its desire for collective autonomy. If nothing short of independence is deemed adequate from the perspective of the constituency in question as an affirmation of shared political identity, it is difficult to see why such a subjective aspiration should be dismissed in favour of a supposedly objective standard of adequate individual and collective freedom. Thirdly, even if a special case for the EU as an entity possessing and pursuing a unique historical mission to make internal secession both unnecessary and unacceptable can be advanced, it seems unduly dogmatic to use this to justify a rigid policy against continued membership of new internal states. There are, after all, other and rival views of the deeper purpose of the European Union. The priority given in the Preamble to the TEU to the principle of subsidiarity has already been mentioned, and this surely reflects an alternative and more independence-friendly perspective. In the face of these competing narratives, should the public policy of the EU on accession not remain more agnostic?
Whether or not my arguments convince, they surely serve to demonstrate that the EU’s accession policy is and always has been intimately linked to the deep purposes of the world’s first supranational polity, and to ongoing debate, inevitably controversial, over what precisely these deep purposes demand. It is, therefore, a matter that requires reasoned public argument and justification of the sort that Weiler attempts rather than a mere weighing of the strategic ‘private’ preferences of national parties. Yet all we get from Barroso is the latter. Not only is this less than we might expect from someone committed to the general interests of the Union, but it also allows the prejudices of national parties to be entered to the calculation without the embarrassment of a first person airing.
In a nutshell: If any of the key players on the EU stage is opposed to Scottish membership then they should either show the courage of their convictions through a discourse of public justification linked to the interests of the Union as a whole or, failing that, they should at least be prepared to declare their intentions to act out of national self-interest. Barroso’ s intervention allows a significant oppositional note to be struck without either of these tests of public candour being met. The danger increases that our independence debate become hijacked to poorly specified and undefended external considerations. That surely is bad news for anyone interested in the referendum as a means to the long-term, widely accepted resolution of our national conversation.
Neil Walker is Regius Professor of Public Law and the Law of Nature and Nations at the University of Edinburgh.
Suggested citation: N. Walker, ‘Hijacking the Debate’ Scottish Constitutional Futures Forum Blog (18th February 2014) (available at: http://www.scottishconstitutionalfutures.org) or N. Walker, ‘Hijacking the Debate’ U.K. Const. L. Blog (18th February 2014) (available at: http://ukconstitutionallaw.org/).
The Justices of the Constitutional Court of South Africa are pleased to invite applications from outstanding recent law graduates and young lawyers interested in serving as foreign law clerks. Candidates may be appointed to start as soon as 1 July 2014.
South Africa continues to be regarded as one of the most intriguing and compelling examples of constitutionalism in the transition to democracy. Its Constitution is viewed as one of the world’s most progressive founding charters.
The Constitutional Court, the country’s highest court, is the guardian of that promise. It has, in a range of ground-breaking decisions, given content to the Constitution’s guarantees by, for instance, ruling the death penalty unconstitutional; upholding full equality for gay and lesbian people; declaring that resident non-citizens are entitled to social benefits; and ordering the government to make anti-retroviral treatment available to pregnant mothers living with HIV/AIDS.
A highly respected commentator, Justice Ruth Bader Ginsburg of the United States Supreme Court, stated the following in the context of a discussion of new democracies:
“I would not look to the U.S. Constitution, if I were drafting a Constitution in the year 2012. I might look at the Constitution of South Africa. That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, had an independent judiciary. . . . It really is, I think, a great piece of work that was done.”
About the Position of a Foreign Law Clerk
Each year, six to ten young lawyers from around the world serve as foreign law clerks to the Constitutional Court. Working alongside two South African law clerks, foreign law clerks assist a specific judge in performing his or her duties.
The responsibilities of foreign law clerks are essentially the same as those of their South African counterparts and similar to judicial clerks elsewhere in the common law world. These include extensive legal research and writing, as well as the formulation, drafting, and editing of judgments. The Court itself is highly collaborative, allowing for substantial engagement among clerks from all Chambers.
Foreign clerks are generally appointed to serve one six-month term. Some may, however, serve for longer and sometimes in more than one Chambers.
Foreign law clerks are not remunerated by the Court. So, it is essential that they seek their own funding to cover their expenses, including food, accommodation, travel to South Africa, visas and travel to and from work.
Further details on the programme may be found on the Constitutional Court website: www.constitutionalcourt.org.za
Applicants requiring additional information, or wishing to confirm receipt of their application, may also contact Mr Mr Mosala Sello in the Chambers of Justice Johann van der Westhuizen via email (email@example.com) or telephone (+27 11 359 7427).