Author Archives: Constitutional Law Group

Conference Announcement: New Zealand Administrative Law Conference

NZ_flag_PhotoI write with some news from the far ends of the empire – calling all readers with an interest in New Zealand and administrative law.  NZ law in this area still tends to be closer to the English than that of most other commonwealth jurisdictions – but obviously there are significant local variations, for a variety of reasons (eg the increasingly different constitutional, political and social setting, and dare I say also the different judicial personalities).  We also have some fine administrative law scholars, but their attention often gets captured by developments in other jurisdictions.

In an attempt to help redress the dearth of academic commentary on NZ case law and other developments in this area, the Legal Research Foundation is hosting a conference specifically devoted to NZ Administrative Law on 30 January 2015 in Auckland.  The programme for the day is as follows, involving speakers from most NZ universities and two who are currently based in Australia:

 

“What is new about neo-liberalism? Reframing the debate about the use of contractual techniques of governance”

Professor Janet McLean, University of Auckland

 

“The unlamented victim – Administrative Law in times of crisis”

Dr John Hopkins, University of Canterbury

 

“The convergence of the Court’s roles in appeal and judicial review”

Marcelo B Rodriguez Ferrere, University of Otago

 

“Non-justiciability in New Zealand: Does it, and should it, have a continuing role?”

Dr Rayner Thwaites, University of Sydney

 

“The Ireland Principle for Multiple Purpose Cases: An Exploration and Defence”

Hanna Wilberg, University of Auckland

 

“Grounds, Intensity and Instinct in New Zealand Administrative Law”

Dean R Knight, Victoria University of Wellington

 

“Human Rights Law as Administrative Law: The Evolution of the Baigent Remedy”

Dr Jason Varuhas, University of New South Wales

 

“The ‘State of the Nation’ in New Zealand Administrative Law”

Professor Philip Joseph, University of Canterbury

 

The conference brochure can be downloaded from http://www.legalresearch.org.nz/events, and online registration is also available there.  For further information, please contact myself (h.wilberg@auckland.ac.nz) or the Legal Research Foundation’s Secretary Barbara Relph (barbara@legalresearch.org.nz).

Hanna Wilberg

 

Hanna Wilberg is a Senior Lecturer at the University of Auckland

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Angela Patrick: Suing the state: judicial competence, restraint and redress in Belhadj

AngelaThe coverage of last week’s Court of Appeal’s decision in Belhadj & Or. v Straw & Ors [2014] EWCA Civ 1394 has thus far generated more political heat than legal light. When a claim involves the suit of named officials and former Ministers for their alleged role in the rendition of a major political figure in the new Libya and his family to face torture under the Gaddafi regime, this is perhaps understandable. In a week where the Government – in the context of this claim – has conceded that it must disclose certain of its policies on surveillance and legal professional privilege, it is unsurprising that the press has had little time to digest the detail of this judgment.

Yet, in overturning the decision of Mr Justice Simon to strike out the major part of the claim, the carefully reasoned Court of Appeal (Lord Dyson MR, Lloyd Jones and Sharp LLJ) judgment raises a number of interesting questions for constitutional law scholars and political commentators alike about the function of domestic courts, the place of international comity in the law and the right of individuals to redress for violations of rights guaranteed in domestic and international law.

Suing the state: the role of domestic judges

The Respondents argued that both state immunity and the foreign act of state doctrine precluded the domestic courts from hearing the case. At first instance, they failed on the former but succeeded on the latter point. The Court of Appeal rejected their arguments on both counts.

State immunity

First, agreeing with Simon J, the Court of Appeal finds that the law of state immunity has no application in this case (see [32] – [50]). In reliance on the language of the UN Convention on Jurisdictional Immunities of States and their Property (a Convention not yet in force), and a broad interpretation of existing jurisprudence, the Respondents argued for an interpretation of the domestic law of state immunity which would prevent the court from exercising jurisdiction in any case which might affect the broad “rights” or “interests” of a third state or where the decision of the court would necessarily involve “findings of illegality in respect of acts on the part of officials of foreign states for which they could claim immunity had they been sued directly” [37].   In this case, the Appellants’ claim related to their treatment in China, Thailand and Malaysia and in Libya, the actions of those Governments and their agents and the activities of the United States. The Court of Appeal concludes that this argument on indirect impleading would be an “unprecedented extension” of the law on state immunity [39], which “lacks any foundation in law” [49].

Act of state doctrine

The second issue – the scope and application of the ‘foreign act of state doctrine’ is at the heart of this case. Simon J expressed his own discomfort in striking out the claim on this basis:

residual concern…that what appears to be a potentially well-founded claim that the UK authorities were directly implicated in the extraordinary rendition of the claimants, will not be determined in any domestic court; and that Parliamentary oversight and criminal investigations are not adequate substitutes for access to and a decision by, the Court (at [51]).

The Court of Appeal expressly shares this unease. It concludes that while the doctrine is engaged, significant limitations apply to prevent a strike out. The court confirms that the doctrine is subject to a geographical limitation, generally applicable only to the activities of a third state within its jurisdiction. So, the activities or interests of the US could not affect the role of the domestic court in this case. In any event, a broad policy exception to the rule operates in claims with its foundation in international human rights law.

In light of the stark conclusion of the lower court that an inquiry into the contested evidence in the case would be damaging to the national interest (see [26]), close examination of the Court of Appeal decision is warranted.

a)  The nature of “act of state” doctrine:  Long-standing arguments about the impact of the act of state doctrine are best understood in context. Although used to preclude the jurisdiction of domestic judges, the doctrine is not a creature of statute, nor required by the international legal framework. It has evolved in parallel and distinct from the law on state immunity. As a creature of Anglo-American common law – finding no direct parallel in civil law countries – its scope and the rationale for its existence has varied across the years and its application in either the US or the UK. Its foundation in this jurisdiction is found in Buttes Gas and Oil Co v Hammer (Nos 2 and 3) [1982] AC 888, a case where the courts refused to exercise jurisdiction over a claim involving questions about the lawfulness of an international settlement agreed by four sovereign states. In the UK, the doctrine has been relied upon in such varied circumstances as the seizure of aircraft (Kuwait Airways v Iraqi Airways (Nos 4 and 5) [2002] 2 AC 883) and the determination of claims in connection with intellectual property (Lucasfilm v Ainsworth [2012] 1 AC 208).

The Court of Appeal in Belhadj conducts a considered review of the historical development of the doctrine in its analysis of its application to this claim. It draws a key distinction between the narrow class of claims which may bar a court’s jurisdiction, based on judicial competence (as in Buttes) and the wider rule of law, based on judicial restraint “which may result in a refusal by the English courts to permit the vindication of rights in certain situations in which the validity or legality of certain acts of foreign states and their agents are directly challenged” [68] (recognised in Yukos v OSJC Rosneft Oil (No. 2) [2014] QB 458) .   It rejects the Claimants’ suggestion that the doctrine must be confined to cases engaging questions of competency ([Shergill v Khaira [2014] UKSC 33 (at [41] – [43]).

The foundation of the “act of state” doctrine lies in the sovereign equality of states and the principle of international comity [67]. Thus the Court of Appeal finds that restraint may yet be required in cases where there is no constitutional question about the competence of the court. However, following, Yukos, the Court of Appeal holds that the modern incarnation of the principle must start from its limits, with:

the doctrine…defined, like a silhouette, by its limitations, rather than to regard it as occupying the whole ground save as to the extent that an exception can be imposed [54].

The Court accepted that there was a limitation applicable when the facts of a case would not require the validity of the acts of a foreign sovereign state to be called into question (the Kirkpatrick limitation). However, the Court rejects the Claimants’ contention that this limitation would apply in this claim [76]. The two key limitations in this case were grounded in human rights and territoriality.

b)   The human rights ‘limitation’: The Court recognises a broad public policy limitation to the common law doctrine “where there is a violation of international law or a grave infringement of fundamental human rights” [81] (see also Kuwait Corpn v. Iraqi Airways (Nos 4 and 5) [2002] 2 AC 883). Considering the treatment of this limitation in existing jurisprudence – including in Yukos and Kuwait Airways – the Court concludes that this policy limitation must also apply even when the court must undertake some degree of legal or factual investigation in order to determine whether a violation of international law or a grave infringement of fundamental rights has occurred [89]. The Court explained:

 i.  “Judges in this jurisdiction are now frequently required to determine and rule on such conduct and, in particular, whether it is compliant with international law and international standards of human rights” [91]. Such assessments are conducted in asylum and extradition cases, and in the consideration of whether evidence has been obtained through torture and in cases where it is alleged a person has unlawfully been brought before the court from another jurisdiction. The Courts have acknowledged in commercial cases that the Court is entirely well placed to consider a claim despite reaching conclusions on the acts of state officials (see Lucasfilm v Ainsworth [2012] 1 AC 208).

 ii.  “When it is necessary to do so for the vindication of justiciable rights, courts in this jurisdiction will be under an obligation to decide issues of public international law” [92], citing Abbasi v Secretary of State for Foreign Affairs [2002] EWCA Civ 1598 and again, Shergill v Khaira [2014] UKSC 33.

iii.  Comparative case law supports this conclusion. In Habib v Commonwealth of Australia [2010] FCAFC 12, although the constitutional context was different, the human rights limitation had been determinative. The Court of Appeal reasoned: “In this way, a senior court in another common law jurisdiction has concluded, on facts which bear a striking resemblance to those in the present case, that the limitation of act of state doctrine may be applied notwithstanding the need to investigate the conduct and to rule on the legality of the conduct of foreign states [102].

iv. The Court of Appeal gave consideration of the evidence of the Respondents that this issue would be damaging to the UK’s relationship with the US (and to a lesser extent, with the other countries involved in the claim) and harmful to the national interest. The Court notes that the evolution of the doctrine in the US has led the courts there to afford a significant degree of weight – and deference – to the opinion of the executive [112]. It concludes however: “while an approach based on deference to executive suggestion as to the likely consequences for foreign relations of the exercise of jurisdiction, capable of varying according to the issues raised or the foreign state concerned, may well be suited to the very different constitutional arrangements in the US, it has played no part in the development of the act of state doctrine in this jurisdiction” [113].

In this context, the Court is keen to stress that while evidence of damage to the national interest is relevant, national embarrassment would not be a proper justification for restricting the jurisdiction of the domestic courts [111] (see also [66]).

 v.  There were strong policy justifications for the court to hear this case:

a.  The increasing role of international law in the protection of the individual and the recognition of that system as one which includes the regulation of human rights by international law, a system of which individuals are rightly considered to be subjects. A corresponding shift in international public policy has taken place [115]

b. The allegations in this case were of particularly grave human rights violation:So far as unlawful rendition is concerned, this too must occupy a position high in the scale of grave violations of human rights and international law, involving as it does arbitrary deprivation of liberty and enforced disappearance” (the court having already considered the nature of the international prohibition on torture) [116]

c. The respondents in this case were officials of the UK, not otherwise entitled to immunity: there is a compelling public interest in the investigation by the English courts of these very grave allegations”. [117]

d. The applicable principles of both international law and English law to be applied are well established [118].

e. “[U]nless the English courts are able to exercise jurisdiction in this case, these very grave allegations against the executive will never be subjected to judicial investigation…As a result, these very grave allegations would go uninvestigated and the appellants would be left without any legal recourse or remedy” [119].

 vi. The case should be heard: “despite the risk of displeasing our allies or offending other states, and even the risk of consequences of varying severity which it is said are likely to follow, cannot justify our declining jurisdiction on ground of act of state over what is a properly justiciable claim” [120].

 c) The ‘territorial’ limitation: The Court emphasised that the strike out in Khan v Secretary of State for Foreign and Commonwealth Affairs [2014] EWCA Civ 24 could not assist the Respondents. The territorial limitation had not been considered in that case [132].

Although it took a definitive view on the application of the territorial principle in this case, the Court of Appeal expressed some doubt as to whether the limitation might apply in cases which might more closely engage questions of judicial competence, for example, in connection with the transactions between states:

Indeed in the case of such activities it may often be difficult to locate with precision where different elements of the transactions took place. However, in the present case we are concerned with allegations relating to the way in which officials of one state have acted towards nationals of other states and therefore with the narrower principle of act of state. [131]

d) Article 6 ECHR:   The Court of Appeal considers the relevance of the doctrine for the purposes of securing the right of access to a fair hearing guaranteed by Article 6 ECHR. (The Court also considered Article 14 UNCAT, but did not consider it necessary to reach any firm conclusion [124] – [126].)

While its primary conclusions are grounded in the common law, the Court of Appeal thus considers that the same conclusion would be required under the Human Rights Act 1998 and the ECHR. The application of the doctrine, largely confined to Anglo-American jurisprudence, is not required by international law ([51]). Thus, Jones v UK and earlier domestic case law on state immunity is distinguished. The Court of Appeal considers that while the act of state doctrine may be applied consistently with Article 6 ECHR, in this case, its application would be disproportionate and would undermine the Appellants’ right to access the court guaranteed by the Convention [123].   Thus, as in its common law analysis, for Convention purposes, the doctrine of act of state will remain a live point for argument in these cases, with its scope, relevance and application determined on a case by case basis.

Comment

The Respondents have been granted permission to appeal the application of the act of state doctrine. A few points of note can be drawn from the Court of Appeal’s analysis.

The evidence before the Court on the risk posed by the litigation to the UK’s relationship with the United States and to our security was considered at some length. The arguments raised are very familiar to those who followed the passage of the Justice and Security Act 2013. The introduction of closed material procedures (“CMP”) into ordinary civil litigation was justified to Parliament by Government as a means to ensure that litigation of precisely this kind might proceed. The proper scope and function of CMP even under the Act remains open to argument and it is very likely that should this case proceed to trial, the Respondents may seek to rely on the Act. However, the strike-out application in this case and the albeit limited engagement of the “act of state” doctrine serves as a reminder that CMP is not the only tool in the Government’s litigation strategy in dealing with cases which raise concerns about national security or the wider public interests of the UK. Despite the case made for the extension of CMP, a pick-and-mix approach to strike-out, public interest immunity (“PII”) and CMP is likely to prevail, at least as and until the scope of the law is clarified.

An outstanding question is whether the availability of alternative means to address concerns about national interest – such as PII or CMP – may affect the courts’ consideration of the weight of evidence presented to justify an argument on strike-out based on an “act of state” doctrine based on a public policy argument for restraint, rather than a constitutional question of competence. While not considered expressly by the Court of Appeal, its analysis, and its approach to deference suggest that this should be a relevant issue for consideration by any judge considering a claim for strike-out of any otherwise valid claim [see 211].

The Court of Appeal stresses that the Supreme Court in Shergill v Khaira [2014] UKSC 33 (at [41] – [43]) did not intend to limit “act of state” doctrine to cases of non-justiciability on the grounds of competence [67].   Yet, the Court of Appeal in this case does appear to draw distinctions in the law on “act of state” between cases based on competence and restraint. It is clear – particularly in its treatment of territoriality – it envisages that the consideration of the limitations applied may be different where questions of competence may arise.   The Court of Appeal’s analysis places the Yukos “silhouette” approach on a clearer foundation. If the English doctrine of “act of state” is based on judicial restraint rather than constitutional competence, the case for the application of the doctrine should be subject to close scrutiny and its limitations drawn broadly.   Yet, if this approach stands, argument on the boundaries of competence and restraint is likely in future cases, and on the precise scope of the limitations in play.

The practical implications of the Respondents’ arguments in this case – for the extension of protection for the state under both state immunity and “act of state” doctrine – would be to shield individual states and their institutions from scrutiny in many cases where they act unlawfully but in unison or in parallel with other states, circumscribing the ability of individuals to secure redress.

The expansion of immunities to limit the right of individuals to a remedy for violations of rights acknowledged by the international community, as is the case with redress in cases of torture, must begin as an international dialogue.   The expansion of state immunity – or the creation of de facto common law immunities – by way of the unilateral development of domestic rules of jurisdiction or deference would undermine the long-term effectiveness not only of the international framework for the protection of human rights but the agreed minimum standards for state immunity.

Angela Patrick is the Director of Human Rights Policy at JUSTICE. JUSTICE, together with the International Commission of Jurists, REDRESS and Amnesty International intervened in Belhadj v Straw & Ors by way of written submissions. A copy of the submission is available, here.

 

Suggested citation: A. Patrick, ‘Suing the state: judicial competence, restraint and redress in Belhadj(7th November 2014) (available at http://ukconstitutionallaw.org).

 

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Stephen Tierney: Solomon Grundy Does Constitutional Change: The Smith Commission Timetable to Transform the Scottish Parliament

stierneyIn the month of November the Smith Commission is set to draw up the most significant programme of constitutional change for the United Kingdom since 1998. Already the period within which citizens could submit their views on this process has passed; the Commission having set a deadline of 5 p.m. on 31 October.

Such a rapid process runs counter to both the due diligence that is surely needed before any decision is taken to restructure the UK tax (and possibly welfare) systems so radically and the due process which ought to accompany such a seminal constitutional development. Unfortunately the principles of deliberative constitutional decision-making and popular democratic engagement which figured strongly in the recent independence referendum are unlikely to gain much traction in the current rush to change.

The referendum campaign was indeed a remarkable period of citizen empowerment. The turnout of 84.7% is only one dimension of this; in a deeper way many citizens were greatly invigorated by the referendum and the role they had in discussing and ultimately in making such a huge decision. The Smith Commission process, by contrast, bears all the hallmarks of a return to elite-led constitutional change; and it is deeply ironic that the impetus for such a rapid and party-led process should be the independence referendum itself. As the 18th of September approached and the polls seemed to tighten, the leaders of the main unionist parties issued ‘The Vow’, promising more powers for the Scottish Parliament and setting out a firm timetable for change.

The day after the referendum Prime Minister Cameron announced that Lord Smith of Kelvin would oversee a process to take forward these commitments, and Lord Smith announced details of the Commission only four days later, on 23 September. The five main parties (Conservative, Greens, Labour, Liberal Democrats and SNP) each appointed two members to the Committee and they rapidly formulated their individual submissions to it (each party had submitted its views by 10 October). On 3 October the public and civil society were invited to give their views, all to be done by the end of that month. This leaves only one month for the Commission to consider all of this material and to produce a cross-party Heads of Agreement by 30 November, with a view to a new draft Scotland Bill by 25 January. This is an astonishingly speedy programme. The UK constitution which has evolved slowly over centuries now faces a potentially open-ended overhaul by means of a Solomon Grundy timetable.

My first set of objections are less of principle and more of prudence. Due diligence surely demands a thorough process to assess the practicalities and implications of changes that pose very real challenges to the UK’s economic and financial integrity. It is not enough to make policy decisions and then complete an assessment of how these can best be operationalised later; the operational difficulties which present themselves in a practical review of their feasibility are themselves crucial in informing policy in the first place. The devolution of extensive tax and welfare competences within such a highly integrated state requires to be tested for their impact both on Scotland and on the rest of the UK. Tax powers were extended to Scotland by way of the Scotland Act 2012 following a much longer and more detailed review. The Calman Commission met for a year and its proposals were extensively debated in both the Westminster and Holyrood parliaments. Even then, the most important tax powers enacted in 2012 (which will in all likelihood pale into insignificance in light of the Smith recommendations) will not be in place until 2016.

The Smith timetable is also odd given that we are heading towards a UK general election. Indeed the plan is to put the Smith proposals on hold after initial agreement is reached and draft legislation prepared, with legislative implementation intended to follow after the election. But surely it makes sense to wait until the election is over before even the decisions of principle are reached. The Smith Commission is of course the result of the political commitment made in The Vow, and for political reasons the parties feel the need to move fast. But this does not seem to be a prudent or a principled way to make such huge decisions. The general election provides an entirely credible reason to set deliberation back until next year. By any measure it is better to do things correctly than to do them quickly. Instead we will have a hastily produced policy decision made by party bartering; the subsequent legislative process will serve merely to implement rather than fully deliberate on the wisdom of the proposed reforms.

And then there is the issue of due process. As a point of democratic principle fundamental constitutional change should be open, inclusive and deliberative if the people of Scotland, and more pertinently the people of the rest of the UK, are to consider it legitimate. This is no small matter. Regardless of how popular the changes prove to be or how well they work in practice, the health of democracy depends as much, if not more, upon the propriety and legitimacy of the process by which they are effected.

The bigger picture is of course the UK constitution as a whole. The Smith Commission is concerned only with additional powers for the Scottish Parliament. But is it feasible to address this issue alone without also considering the knock-on consequences for the entire country? For example, one element of The Vow was to make the Scottish Parliament ‘permanent’, but how could such a constitutional guarantee be made without significant changes to parliamentary sovereignty, the very basis of the British constitution?

More broadly, we were told that further devolution could not be an option on the referendum ballot paper because it was a UK-wide issue, and yet here we are. Already the West Lothian Question has re-appeared as a counterpoint to more powers for Scotland. Should decisions be taken on radical tax powers for Scotland without advance notice of whether, and if so how, these powers may lead to a significant loss of influence for Scotland at Westminster? We also don’t know if this process might prompt a strong campaign for an English Parliament within the UK system, further devolution for Wales and Northern Ireland, a re-worked system of intergovernmental relations, potential issues of compatibility with European Union law (something which Smith says it will address), and even moves to some kind of quasi-federal system, possibly involving a realignment of the House of Lords as a chamber of the nations and regions of the UK, a point raised by Ed Miliband in his speech to the Labour Party conference in September 2014. Scots should know whether the price of more powers will be a radically new constitutional structure within which the position of Scotland is in some ways marginalised. Instead, the Smith Commission in its media statement of 22 October, its last before it went into lockdown to produce its final proposals, asserts both that its proposals should ‘[n]ot be conditional on the conclusion of other political negotiations elsewhere in the UK’, and ‘[n]ot cause detriment to the UK as a whole nor to any of its constituent parts’. There is simply no guarantee that such a unilateral process will not have detrimental consequences for the UK as a whole or its constituent parts, including Scotland itself.

Given the importance of the issues at stake, what then of the democratic credibility of the process? Does the Smith Commission really offer scope for proper deliberation at either elite or popular levels? Deliberative democracy remains a recent and developing turn in political theory, but if we are to try to identify a principle that unites deliberative theorists across a very wide spectrum of differing approaches it is that decision-making is best made in an open and reflective manner, where participants listen as well as speak, and in doing so are amenable to changing their positions.

It is not impossible for the Smith Commission to conduct itself in such a way but the fact that its membership is open only to political parties and the limited time it has been set to reach an outcome makes reflexive deliberation very difficult. Indeed, when we see the proposals submitted to Smith they are largely the well-established positions of the political parties and not the result of any independent or cross-party review. There will of course be give and take in a process of inter-party bartering, but is this the type of democratic deliberation to which post-referendum Scotland aspires?

All of this suggests the need for restraint; for the two governments to set up a much more inclusive and wider-ranging review over a much longer period of time which can be conducted in a more independent way, relatively free from party political horse-trading. Such a process would be able to take the views of many people across civil society as well as assess the interests which are likely to be affected by the devolution of extensive tax and welfare powers; it would also consider the full implications of such changes for the UK as a whole.

In light of this recent experience why not see the referendum as the first step in a new endorsement of popular politics? The post-referendum environment offers the chance to re-engage with a public which is better educated about, engaged with and enthused by constitutional politics than ever before. There have been many experiments in popular deliberation across the world in recent years which have served to give people a meaningful say both in framing major constitutional issues and in making decisions upon these issues directly. To step back and explore such avenues would be no retreat from the democratic will of the people; on the contrary, such an engagement would help fulfil the democratic promise of the referendum.

 

Stephen Tierney is Professor of Constitutional Theory in the School of Law, University of Edinburgh and Director of the Edinburgh Centre for Constitutional Law.

Suggested citation: S.Tierney, ‘Solomon Grundy Does Constitutional Change: The Smith Commission Timetable to Transform the Scottish Parliament’  (31st October 2014) (available at http://ukconstitutionallaw.org).

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Patrick O’Brien: How active were pre-2009 judges as parliamentarians?

graph

 

(Click on graph for bigger image)

Is the question of anything more than historical interest? The Constitutional Reform Act 2005 precluded judicial peers from contributing to parliamentary debate from 1 October 2009. Many of the Law Lords were opposed to the change, and many judges are at least nostalgic for the past arrangements. The current Lord Chief Justice (LCJ) of England and Wales, Lord Thomas, and his immediate predecessor, Lord Judge, have both publicly regretted the fact that they cannot speak in Parliament on matters of importance to the judiciary. To the extent that the outlook of judges today is shaped partly by the feeling that they have lost a valuable platform, the issue is worth exploring. In fact judges were very infrequent contributors to parliamentary debate. Whilst past Lord Chief Justices – and other judicial peers – may have occasionally used the chamber of the Lords as a platform for articulating judicial viewpoints, all things considered they did so rarely.

As part of research done with colleagues as part of an AHRC project on The Politics of Judicial Independence in Britain’s Changing Constitution we created a database of the number of Hansard contributions made by each of a set of judicial peers during each year in the period between the commencement of the Appellate Jurisdiction Act 1876 on 1 November 1876 and the creation of the Supreme Court on 1 October 2009. The graph gives a figure for the ‘career average annual contribution’ (CAAC) for each judge (listed in order of appointment on the x-axis). This figure is calculated by dividing the total number of contributions by each serving judge to debate in the House of Lords by the number of years as a serving judge with a peerage. The CAAC figure is intended to provide a rough basis for comparing each judges’ overall activity in debate.

Who were the judicial peers? The Law Lords (the Lords of Appeal in Ordinary) form the bulk of those included in the database, but judicial peers also included figures like the LCJ of England and Wales, who by convention received a peerage with the job, and other senior UK judges who tended to be awarded peerages after appointment (see the ‘Summary Data’ table). For practical reasons we have not sought to track down every single judge with a peerage and so the few judges who held peerages whilst in post but fall outside of these categories are not included. The figures for each category, including ‘All judicial peers’, are calculated independently. This is because a number of judges (16 in total) served in more than one of the judicial offices considered, meaning that in some cases the same person appears in more than one category (e.g. Lord Woolf appears in the figures for Law Lord, Master of the Rolls and Lord Chief Justice).

 

   

 

 

Summary data: judicial peers and their contributions to Lords debates 1876 to 2009

Judicial Position Number with peerages Number who contributed Average/Median CAAC
Law Lord 112 87 (78%) 5.16/1.68
LCJ (England & Wales) 16 13 (81%) 4.64/3.25
Master of the Rolls 13 9 (69%) 4.74/1.75
Lord President (Scotland) 8 4 (50%) 1.16/0.06
LCJ (Northern Ireland) 2 0 0
LCJ (Ireland; pre-1920) 1 0 0
All judicial peers 133 104 (78%) 4.91/1.76

 

What do the data tell us? Contrary to the impression that is sometimes presented of the judicial peers, they were relatively inactive parliamentarians from the very beginning. Most judicial peers contributed very little to debate. A few individuals spoke a great deal by the standards of the group as a whole but this appears to be influenced by personal factors. These judges had mostly had previous careers as politicians. All four judges with CAAC figures of greater than 50 contributions per year were Law Lords. Lord Morris (1890s) and Lord Carson (1920s) were former Irish politicians who retained a keen interest in Irish affairs after their appointment to the Appellate Committee. Viscount Dilhorne (1970s) was another former politician; a prominent former Tory MP and Lord Chancellor. It seems reasonable to attribute the enthusiasm of these three for debate to their familiarity with politics and the debating chamber. The fourth of this group, Lord Ackner, did not have a political background but contributed heavily to the debates on Lord Mackay’s reforms to judicial pay and conditions and to the legal system in the late 1980s and early 1990s. This picks out another feature of judicial contributions: they were episodic and motivated by judges’ interest in specific issues (notably law reform and judicial ‘trade union’ issues).

Half of the total cohort spoke on average less than twice a year (the median CAAC figure is just 1.76 contributions per year). A fifth never spoke at all. There was no significant decline in contributions until the last decade of the Appellate Committee, and – measured as a matter of pure quantity and frequency of contributions to parliamentary debate – there was no ‘golden age’ after 1876 in which the judicial peers were active as legislators to any significant extent. The trend line in the graph above shows a very gentle and gradual decline from the first judicial peer in the sample to the last. Much of the decline is accounted for by the abrupt and almost complete reduction in contributions by the last judicial peers from around the year 2000.

It is not clear to us that judges have lost all that much in their departure from Parliament. There may be subtle ways in which judges could be influential as parliamentarians that are not captured by the Hansard data but judges are not short of ways to express themselves or of contacts in Parliament. Nor is Parliament short of legal and judicial experts, albeit that judges now must be retired before they can take their seats in the House of Lords. Serving judges can still articulate their views on law and justice issues through public lectures, direct engagement with the government and Parliament, and through the formal procedure for laying representations before Parliament (section 5, Constitutional Reform Act 2005). Of most interest to us, and the subject of a pair of papers we are due to complete shortly, is the fact that judges have become regular witnesses before Parliamentary committees. Judges have appeared before committees as witnesses 260 times in the last 35 years, most of those in the last decade. This, however, deserves another post all of its own.

Patrick O’Brien is a Fellow in the Department of Law at the London School of Economics.

 

The research into judicial peers and judicial appearances before parliamentary committees forms the basis of a pair of papers I am currently writing with Robert Hazell on dialogue between judges and Parliament. Readers may also be interested in our forthcoming book, G Gee, R Hazell, K Malleson and P O’Brien, The Politics of Judicial Independence in the UK’s Changing Constitution (CUP, due out in early 2015).

Suggested citation: P. O’Brien, ‘How active were pre-2009 judges as parliamentarians?’, UK Const. L. Blog (28th October 2014) (available at http://ukconstitutionallaw.org).

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Adam Perry: The Source of the Crown’s General Administrative Powers

AdamThe Crown has statutory and prerogative powers, and many people have said it has other powers as well. The Supreme Court clearly agreed for the first time in 2013. In R (New London College) v Secretary of State for the Home Department, Lord Sumption said for the majority: ‘the Crown possesses some general administrative powers to carry on the ordinary business of government which are not exercises of the royal prerogative and do not require statutory authority’ (at [28]). This remark was obiter, but it is in keeping with the trend of authority over the past decade. (Mark Elliott, Paul Daly, and Janet McLean blogged about New London College earlier.)

The Crown’s ‘general administrative powers’, as Lord Sumption calls them, and as I shall call them here, are unglamorous but important. They range from the power to form contracts to the power to convey property, and include powers to circulate written material, consult with officials, give gifts, and create policies. Much of the day-to-day business of government falls under the Crown’s general administrative powers.

Their importance makes it worth knowing what gives the Crown its general administrative powers. How does the Crown come by these powers? What is their basis or source? Two answers have been popular, but I have doubts about both of them.

Harris’s Account

Bruce Harris has done more than anyone else to bring attention to the Crown’s general administrative powers. Harris takes as his starting point the principle set out by Sir Robert Megarry in Malone v Metropolitan Police Commissioner that everyone is legally permitted to do what is not legally prohibited. Harris calls this the ‘principle of legality’. He thinks it gives everyone, including the Crown, a ‘residual liberty’ to do what is not prohibited. The Crown’s residual liberty is a ‘third source’ of power or (the word he prefers) ‘authority’, in addition to statute and custom. This third source is the source of the Crown’s general administrative powers.

I find Harris’s argument fascinating, but I am not convinced by it. It helps to make the steps of his argument clear. This is what Sir Robert Megarry says in Malone:

  1. The Crown is permitted to do what the Crown is not prohibited from doing.

Harris ultimately says that the Crown has a power to do what the Crown is not prohibited from doing. Note the shift from ‘is permitted’ to ‘has a power’. Permissions are very different from powers, so what Harris says does not follow directly from 1. I think Harris must be assuming this:

  1. The Crown has a power to do what the Crown is permitted to do.

Now Harris’s conclusion follows:

  1. The Crown has a power to do what the Crown is not prohibited from doing.

It seems to me that there are several problems with this argument. But the most important is that 2 is false. The Crown does not have a power to do whatever it is permitted to do. Think of some of the things the Crown is not prohibited from doing: making a will for you, solving the Middle East crisis, repealing all the laws of France, giving itself the power to repeal all the laws of France, and on and on. It follows from 1 that the Crown is permitted to do all these things. Were 2 true, it would follow that the Crown has the powers necessary to do all these things. But the Crown has no such powers, so 2 is wrong. In short, what the Crown is permitted to do is one thing, what it has a power to do is another.

This is a quick objection, of course. There are subtleties in Harris’s account that I have left out. Given the difference between permissions and powers, I can’t see how Malone or the ‘principle of legality’ could be the right starting point. But I am keen to know what others think.

The Common Law Account

Courts in this country have favoured a different account of the source of the Crown’s general administrative powers. In R v Secretary of State for Health, ex p C, the Court of Appeal claimed that the common law gives the Crown the same powers as a natural person. In Shrewsbury & Atcham Borough Council v The Secretary of State for Communities and Local Government, the Court of Appeal followed C, which it took to have established that the Crown has common law powers to do ‘anything which could be done by a natural person’ (at [44]). (The Supreme Court has also on occasion referred to the Crown’s ‘common law powers’.)

It is striking that the Court of Appeal did not offer any real argument for the claim that the common law is the source of the Crown’s general administrative powers. The closest it came was citing a passage from Halsbury’s Laws of England.

There is an obvious argument for that claim. It proceeds by process of elimination: there are only three legal sources – statute, custom, and common law; the source of the Crown’s general administrative powers is not statute or custom; so, their source must be the common law. But note the implicit assumption that the source of the Crown’s general administrative powers is a legal source.

That assumption seems half right and half wrong to me. It is half right because (with some possible exceptions not relevant here) legal powers have legal sources, and some of the Crown’s general administrative powers are legal powers. This includes its powers to form contracts, give gifts, and convey property. These are legal powers because, in essence, their use affects legal duties and rights because that is what the Crown can be taken to intend by using them. The common law is indeed the source of these powers.

The assumption is half wrong because some of the Crown’s general administrative powers are not legal powers. This includes its powers to circulate written material, consult with officials, and create policies. The relationship between non-legal powers and legal sources is tricky, but the three powers I just mentioned seem clearly not to have any legal source, including the common law. I cannot argue for that claim here, but if you are sceptical, ask: what change in the common law would make it impossible for the Crown to circulate a list or consult with officials?

So the common law account identifies the source of some but far from all of the Crown’s general administrative powers.

Those are the two existing accounts of the source of the Crown’s general administrative powers. There is a need for a new account, and in a separate working paper, I take some steps towards one. There are many other interesting questions about the Crown’s general administrative powers. What is the extent of the Crown’s general administrative powers? What distinguishes them from the Crown’s prerogative powers? How should courts treat exercises of general administrative powers? Is it consistent with the rule of law for the Crown to rule using powers not conferred by law? In my paper I try to answer some of these questions, too.

Adam Perry is Lecturer in Law at Queen Marys University of London.

 

Suggested citation: A. Perry ‘The Source of the Crown’s General Administrative Powers’ UK Const. L. Blog (25th November 2014) (available at http://ukconstitutionallaw.org)

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Seminar Announcement: Political vs. Legal Constitutionalism: fin de siècle?

School of Law, SOAS, University of London

Cordially invites you to

The Comparative Constitutional Law Series

Political vs. Legal Constitutionalism: fin de siècle?

Wednesday 29 October 2014

Room 4426, Main Building, SOAS, Thornhaugh Street, Russell Square

 

 

This workshop examines the state of the debate on political and legal constitutionalism in the UK and provides a comparative perspective on similar debates in the US, China, and India. Why does the debate persist despite scholarly efforts to address it? Why is it significant at all? What are the consequences of accepting one approach or another? Should we move beyond the debate because it is no longer interesting or relevant?

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First Session: 17:00-18:15

The State of The Debate in The UK

Graham Gee (Birmingham University): Is there More to the Political Constitution than Meets the Eye?

Jack Caird (Sussex University): Enhancing Politics through Law? Constitutional Politics in the Political Constitution

Discussant: Nick Barber (Oxford University): The Debate as a Red Herring

Moderator: Mazen Masri (City University)

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Second Session: 18:30-19:45

The Debate Elsewhere

Ernest Caldwell (SOAS): the Chinese debates

Alexander Fischer (SOAS): the Indian debates

Nimer Sultany (SOAS): the US debates

Discussant: Paul O’Connell (SOAS)

Moderator:  Ioannis Kalpouzos (City University)

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Open and free for the public

 

For more info contact: Nimer Sultany, ns30@soas.ac.uk

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Robert Hazell:You want a constitutional convention? This is what you need to think through first.

robert_hazell1

In the run up to the Scottish independence referendum, and its aftermath, calls have grown for a constitutional convention to discuss further devolution, as well as wider constitutional reforms. Yet most constitutional conventions around the world have failed to deliver subsequent reform. Careful thought therefore needs to be given to the purpose, scope and terms of reference, timetable, selection of members, budget, staffing and links to government and Parliament if a convention is to have any chance of success. Robert Hazell addresses each of these issues in turn.

Purpose

A constitutional convention is a group of people convened to draft a constitution (like the drafters of the American constitution in Philadelphia in 1787), or to consider specific constitutional reforms. In recent times conventions have come to include ordinary citizens, like the Irish Constitutional Convention which met from 2012 to 2014. A convention may be established for several reasons:

  • To build cross party consensus for further constitutional reforms
  • To harness expert opinion to chart a way forward
  • To develop a more coherent overall reform package, rather than further piecemeal reforms
  • To bring in ideas from outside the political elite
  • To create greater legitimacy and support for the convention’s proposals
  • To generate wider participation through innovative methods of public engagement.

A constitutional convention is not the only means of achieving these purposes. If the main objective is to build cross-party consensus, then cross-party talks are the obvious vehicle (as in the cross party talks which preceded the Belfast agreement, or the current talks on further devolution to Scotland led by Lord Smith of Kelvin). If the main objective is to harness expert opinion, then the best vehicle may be an expert commission. In recent years expert commissions have been successfully used to chart the way ahead for further devolution, with the Calman Commission in Scotland leading to the Scotland Act 2012, and a series of commissions leading to the grant of further legislative powers to Wales. But the extraordinary levels of public engagement during the referendum campaign in Scotland have created an expectation that for proposals to command legitimacy, there must be greater citizen involvement in producing them. The Scottish experience lies behind calls for a constitutional convention. But alternative models exist (for example, inter parliamentary talks); and there is no single model for a constitutional convention (see Alan Renwick’s excellent pamphlet, and Fournier et al’s book When citizens decide: Lessons from citizens’ assemblies on electoral reform OUP 2011).

Scope and terms of reference

One argument advanced for a constitutional convention is that it would enable development of a coherent overall reform package, rather than further piecemeal reforms. People have suggested that it should address the unfinished business from previous reforms: an elected House of Lords, a British bill of rights, reform of party funding, a written constitution. A list of reform proposals from all sides of the political spectrum could include the following:

  • Renegotiating the balance of competences. In/Out referendum on EU
  • Human rights. Repeal of the Human Rights Act. British bill of rights. Exit from ECHR, Council of Europe
  • Reform of House of Lords. Further improvements to ‘transitional’ appointed House; directly elected second chamber; federal second chamber to represent nations and regions
  • Reforms to House of Commons. Reducing size of House to 600. Changing the voting system. Votes at 16. Extending expatriate voting rights
  • Reform of party funding
  • A written constitution for the UK. This would offer the widest scope, encompassing all the above.

A convention charged with resolving such a wide range of different issues would face an impossible task. Each issue has proved intractable; in combination they are insuperable. Even if the convention is asked just to consider further devolution in the UK, the agenda would be sizeable. It includes the following items:

  • Further devolution to Scotland, of tax and welfare. What else? Devo more or Devo max?
  • Devolution finance, reform of the Barnett formula
  • Further devolution to Wales (Silk report 2 on legislative powers)
  • Further devolution to Northern Ireland (e.g. of corporation tax)
  • Devolution within England: an English Parliament. Regional assemblies, city regions.       Combined authorities, elected mayors, restructuring local government, reforming local government finance
  • Rebalancing the Centre.       English votes on English laws.       Entrenching the devolution settlement. Combined Secretary of State for the Union. Federal second chamber.

This is a big agenda, and a convention charged with considering further devolution would need to have a phased work programme and prioritise certain items. Depending on the political context, it might decide to prioritise work on the English Question (see my earlier blogpost on The English Question).

Timetable

That brings us to the timetable. This must fit the agenda of the next UK government, and the wider political and electoral cycle. What results (if any) are required before the next UK general election in May 2015, the next Scottish elections in May 2016, the introduction of a British bill of rights, or a possible In/Out EU referendum in 2017? Practical realities mean it would be almost impossible to establish a convention before the May 2015 election. In other countries the lead in time required to set up a convention from the formal decision to establish one has typically been six months (see column 2 in the table below). Informal negotiations within the governing party and with other parties can extend that time further: in British Columbia and Ontario it took two years from the initial decision to establish an Assembly to the Assembly starting work. The table below shows the scope, timetable, budget and staffing of previous conventions. It is incomplete, and I would welcome help in filling the gaps and adding details of other conventions, but the data suggest that establishing a convention is a big and complex task, requiring careful planning with long lead in times.

Data about previous constitutional conventions

 

constitutional-conventions

Once established, the timetable of a convention will depend on what it is asked to do. Three of the conventions listed above had a single task, devising a new electoral system. The Irish convention had eight tasks; the Icelandic convention a single huge task, creating a new constitution. The timetable will also depend on the size of the convention, and its working methods. The larger the convention, and the more participatory and inclusive its working methods (eg holding regional meetings), the longer it will take to complete its task.

Establishing the convention: membership, budget, and staffing

Much has already been written about the different options for selecting citizens to serve on a convention so that it is representative of all parts of the UK, and of gender, age, socio-economic background, ethnic minorities, disabled people etc (see Alan Renwick’s pamphlet and the Electoral Reform Society evidence). Ensuring adequate representation from all parts of the UK and all these different variables may result in a large convention: the Electoral Reform Society suggest 200-220 people. That in turn would require a large budget, for servicing large meetings, travel etc. The two Canadian conventions each cost $5m. The Irish convention cost only 1m euros, but was squeezed very tight: those involved say it needed twice the time and twice the money to do justice to its remit. In an age of austerity, with further cuts to come, a Rolls Royce convention may not be feasible. Proponents will need to think how far the size and cost can be scaled back without compromising the integrity of the exercise.

Even a scaled back convention is likely to cost low millions. If the government decides not to establish a convention, it is unlikely that anyone else could afford to do so. But it is conceivable that civil society organisations might try, through a large donation or innovative fund raising through crowdsourcing. They would then have to decide the terms of reference, the timetable, the membership, budget and staffing of the convention, and they would be responsible for the success or failure of the enterprise.

Working methods of the convention

Again, much has been written about this. The convention will need a strong online presence, with an excellent website, podcasts of all its sessions, and imaginative use of social media. It will need to commission and publish evidence, hold public meetings, and it may want to publish working papers and consultation papers. It will also need the ability to commission expert reports, to establish sub committees or expert committees, to commission polling data or other research. An expert panel can help to advise the convention, source and brief the relevant experts, and ensure it draws upon the widest possible research and evidence base.

Links to representative government and legislatures and the political process

Finally, the convention needs to maintain strong links with government and with Parliament to ensure that it carries them along with its thinking. Other conventions have failed in part because they have been too removed from the political process. One way of bringing the two together is to include politicians in the convention, as in Ireland where one third of the members were politicians, and two-thirds ordinary citizens (with mixed success, leading one adviser to suggest that any future convention might have only citizen members and a separate panel of parliamentarians as a conduit and sounding board). Another is to require the convention to deliver an interim report, and then to hold a parliamentary debate so that parliamentarians are informed of the convention’s thinking, and can feed back their initial reactions.

Conclusion

A constitutional convention sounds an attractive idea. But a convention established hastily, overloaded with too many tasks, inadequately staffed or required to report too quickly is almost certain to fail. That will be damaging to the cause of deliberative democracy as well as to constitutional reform. Those who call for a constitutional convention have focused almost exclusively on its membership, and how those members would be selected. As much thought needs to be given to its purpose, terms of reference, timetable, budget, leadership and staffing, as well as its links to government and Parliament. If equally careful thought and planning is given to all those things, a convention stands a much greater chance of success.

Robert Hazell is Professor of British Politics and Government & Director of the Constitution Unit.

 

This post originally appeared on the Constitution Unit Blog and is reposted with thanks.

 

Notes on Table 1

[i] The government that established the BC Citizens’ Assembly was elected in May 2001. It had promised an Assembly as part of a more ambitious reform package that included new public accounting standards, open cabinet meetings etc. There was some opposition in caucus to the idea of holding an Assembly, so it took time for the Premier to generate the necessary support. An expert, Gordon Gibson, was commissioned to prepare a plan for the Assembly, and reported in Dec 2002. In May 2003 the legislature endorsed the proposal, with amendments, and the government’s proposed chair. In August the selection process started with the first mailing of invitations. Selection meetings around the province went on over the fall and the Assembly was then ready to meet in January 2004.

[ii] It took 18 months from the Premier’s announcement of his intention to establish a Citizens’ Assembly, in November 2004, to the Regulation creating the Assembly and appointing the chair in March 2006. It then took a further six months to set up the Assembly, which started work in September 2006.

 

 

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