Author Archives: Constitutional Law Group

Cambridge conference on Public Law: Process and Substance

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In September 2014, the University of Cambridge’s Faculty of Law and its Centre for Public Law will host a major international conference on Public Law. Following an outstanding response to the call for papers, the conference convenors are delighted to be able to publish the conference programme. The conference will bring together around 60 speakers—along with approximately 100 other participants—from across the common law world, to engage in debate on the theme of “Process and Substance in Public Law”. The conference will consist of four plenary sessions and fifteen parallel panel sessions. A full list of speakers, together with the titles of their papers and abstracts, can be found on the conference website here.

Information about how to register for the conference, together with a link to our secure online booking facility, can be found here. Any queries about registration that are not answered by the information on our website should be directed to the conference administrator via publiclawbookings@law.cam.ac.uk.

Further information about the conference can be found on our website. Updates are posted to our Twitter account: @PublicLawConf. The conference convenors are very grateful to Hart Publishing for their generous sponsorship of this event.

Professor John Bell, Dr Mark Elliott and Dr Jason Varuhas (convenors) 
Dr Philip Murray (assistant convenor).

 

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Scot Peterson: Constitutional Entrenchment in England and the UK

peterson_scotFrequently people think that there are only two ways address flexibility in a constitution: to legally entrench an entire document and to protect it with strong judicial oversight, or to have a political constitution and a sovereign parliament, which, in the words of A.V. Dicey, ‘has … the right to make or unmake any law whatever….’ One aspect of this sovereignty is that parliament cannot bind itself: ‘That Parliaments have more than once intended and endeavoured to pass Acts which should tie the hands of their successors is certain, but the endeavour has always ended in failure.’

Parliament has regularly used language limiting its future options. The Bill of Rights (1688) says that the rights declared there ‘shall be declared, enacted, and established by Authority of this present Parliament, and shall stand, remain, and be the Law of this Realm for ever’. More recently, Parliament promised in the European Union Act 2011 to hold a referendum on any law that increased the competencies of the EU and put in place mechanics for holding itself accountable through judicial review. Are these attempts really as pointless as Dicey claims?

The intention of the convention parliament in 1689 was to put an end to the conflicts of the preceding seventy years (interrupted by the reign of Charles II). The more recent act, too, was a product of what preceded it. Originally the Labour government had ruled out a referendum on the Treaty Establishing a Constitution for Europe (2004), which among other things introduced new shared competencies with member states. When the press speculated about Labour’s prospects before the 2004 European Parliament Elections (June 2004), Tony Blair announced that there would be a referendum on the treaty. After the treaty collapsed (because it was rejected in France and the Netherlands), the member states entered into the Lisbon Treaty, which had many of the same characteristics as the proposed constitution. Conservatives accused Labour of inconsistency in being unwilling to hold a referendum on the Lisbon Treaty, and in their manifesto promised a referendum lock on any future transfers of competencies, so that politicians would not be able to waver for short-term, political purposes. That promise became part of the coalition agreement in 2010 and was enacted into law.

The language used by parliament in both of these cases is a commitment device. It need not even be judicially enforceable to constrain (impose additional costs on) future choices by the legislature. Public embarrassment, through a newspaper’s exposure of inconsistency, is a practical means of ensuring accountability, so long as the newspapers do their job. And, as under the Human Rights Act 1998, the legislature may permit the courts to point out, but not to correct, inconsistency with entrenched law. An overly simplistic distinction between codification and a political constitution eliminates complex differences between these tools, and wastes resources that should be available to policy makers.

Scot Peterson is the Bingham Research Fellow in Constitutional Studies and Junior Research Fellow in the Social Sciences at Balliol College, University of Oxford.

(Suggested citation: S. Peterson, ‘Constitutional Entrenchment in England and the UK’ U.K. Const. L. Blog (25th March 2014) (available at  http://ukconstitutionallaw.org/).

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Call for Papers: Gilbert + Tobin Centre of Public Law 2014 Postgraduate Workshop in Public Law Call for Papers

The Gilbert + Tobin Centre of Public Law in the Faculty of Law, University of New South Wales invites abstracts for its 2014 Postgraduate Workshop in Public Law which will be held on 17-18 July. The Workshop is an opportunity for higher degree research students in the field of public law to gain experience in presenting their work to their peers and the wider academic public law community in a critically constructive yet supportive environment. While there are several generalist conferences held each year which postgraduate students can attend, the Centre’s biennial Postgraduate Workshop in Public Law is focused on public law issues and as such is an opportunity for students to network with others working in their area.

We invite abstracts from currently enrolled postgraduate research students (Masters, PhD and SJD students) studying full-time or part-time in the field of public law. We welcome abstracts that bring a constitutional or administrative law focus to a range of contemporary issues such as human rights protection, native title and indigenous land rights, national security, federalism, refugees and migration law, executive power, electoral law, and the judiciary.

The Workshop will follow a roundtable discussion-based format, with presenters having 15-20 minutes to speak and then ample time being left in each session for questions and discussion by all participants. The event thus provides an opportunity for participants to receive detailed feedback on their work and establish what will hopefully become an ongoing dialogue with others researching in the field. In preparing abstracts, presenters should bear this format in mind. Ideally they should aim to briefly convey the broader context of their thesis before focussing on a discrete aspect for more detailed consideration. Methodological or substantive issues may be selected as the basis of the presentation. The collected abstracts from the Workshop will be published online at the Gilbert + Tobin Centre website, enabling further contact between those attending the Workshop and others interested in their research.

We typically receive more proposals for papers than we are able to accommodate in the program, so abstracts will be refereed for clarity and suitability to a workshop focussed upon public law (broadly defined). Upon acceptance the presentations will be organised into thematic streams which will comprise the bulk of the final program for the Workshop.

Keynote

The 2014 Workshop will open with a keynote address by Professor Kim Rubenstein from the Australian National University, reflecting on her research in the public law field and how this speaks to the experience of conducting higher degree research in public law. Her paper will examine different conceptions of citizenship and membership in Australian public law and public life.

Logistics and Registration

The event, including a dinner for Workshop participants on the evening of 17 July, is FREE to all delegates, who are asked to cover their own costs for accommodation and travel to Sydney. Some limited funds are available for travel assistance to those delegates who can make a case based on special need. But we request that support is sought in the first instance from a delegate’s home institution.

To register, please send the following to gtcentre@unsw.edu.au, being sure to put ‘Postgraduate Workshop’ in the subject line:

• Your name, institutional affiliation and contact details; and

• a brief abstract of your paper (max. 400 words).

Registrations with abstracts must be submitted by 19 May 2014. Acceptance will be confirmed by correspondence no later than 2 June.

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Nick Barber: After the Vote: Regulating Future Independence Referendums

 Nick1In a few months time Scotland will vote on independence.  In my last post on the topic I discussed some of the consequences of a yes vote: the problems that would be raised around the currency, Scotland’s membership of the EU, and, more generally, the difficulties presented by the tight time-fame set by the Scottish Government for negotiation.  That post should have given wavering ‘yes’ voters pause for thought; the path to independence is harder and riskier than the Scottish Government’s optimistic White Paper claims.   In this post I will discuss one of the consequences of a no vote: its implications for subsequent independence referendums.  This post should, perhaps, cause wavering ‘no’ voters to reflect. The independence referendum is, or should be, a once in a generation chance to leave the Union.  It would be a mistake to assume that a second referendum will be held any time soon.

There are problems with constitutionalising a right to secession.  In a classic article,  written as the states of Eastern Europe were recasting their constitutional orders in the early 1990s, Cass Sunstein argued that constitutions should not normally incorporate a right to secede.  Sunstein argued that such rights inhibited the creation of a united, effective, state.  The constitutional possibility of secession might encourage regions to consider independence on a regular basis, and, on the other side of the equation, the remainder of the state will be aware of secession as an ever-present possibility.  As Sunstein argues, this may inhibit long-term planning: why should the state engage in projects that principally benefit the region, knowing that the region might leave at anytime?  And when the project benefits the whole state, but requires regional cooperation, how can the state be sure of this support?  More darkly, Sunstein warns there is a risk of blackmail.  The region can use a threat of secession to put unfair pressure on the remainder of the state.   Finally, as Sunstein points out – and as we have reason to know all too well – questions of secession tend to stir emotions more deeply than other political questions.  The intemperate character of debate around the issue can, in itself, harm the capacity of the state to act as a coherent unit.

Sunstein’s prescription – a denial of the right to secession – is not open to the United Kingdom, which has already recognised the right of certain of its territories to leave the Union.  The Northern Ireland Act 1998 contains a legal right for that territory to secede in some circumstances, and whilst Scotland and Wales lack such a legal right, it has been accepted, perhaps for quite sometime, that they are entitled to determine their own constitutional fate.  After the SNP gained control of the Scottish Parliament it was a matter of when, not if, a vote on independence would be held.

But whilst Sunstein’s prescription may be inappropriate, his diagnosis remains accurate.  The bare possibility of a second referendum after 2014 may have a destabilising effect on British politics for the reasons he identified.  The risk of a second referendum may cause the rest of the UK to be reluctant to adopt schemes or make decisions that benefit Scotland at the expense of the remainder of the country: why buy warships from Scottish shipyards, rather than from their English competitors, when Scotland may become a separate state at any time?  And, recalling Sunstein’s fear of blackmail, there is a risk that Scotland will use the threat of independence to exercise a disproportionate say over UK policy-making: agree with us, or we leave.  In short, the continued possibility of independence may frame political debate within in the UK in negative and corrosive terms, with Scotland’s interests understood as distinct from, and potentially in tension with, those of the rest of the UK.  There is a danger that the possibility of secession will lead to Scotland becoming a semi-detached part of the Union, always on the verge of exit.

This problem could be addressed by regulating the capacity of the Scottish Parliament to call independence referendums.  Under the current devolution settlement the Scottish Parliament is able to hold an advisory referendum on independence at any time.  Admittedly, this point is not beyond dispute:  most notably, Adam Tomkins has argued against this view, contending that the Scottish Parliament lacks this power, but, for reasons I have set out on this blog, I think it unlikely he is correct on this point.  The Scottish Parliament does, though, clearly lack the power to hold a binding referendum on independence: at present, this requires the agreement of Westminster.  The status of the 2014 referendum was secured after an agreement between the Scottish and Westminster Governments.   Whilst as a matter of law, the United Kingdom Parliament could still refuse to accept the outcome of the 2014 referendum, as a matter of political practice the Edinburgh Agreement is sufficient to render the vote binding.

Any attempt to regulate the holding of independence referendums after 2014 would, if the Sewel Convention were adhered to, require the support of both the Scottish and Westminster Parliaments.  Conferring on the Scottish Parliament the capacity to hold a binding referendum might render the concomitant regulation of that power more attractive.  The  Scotland Act 1998 could be amended to legally recognise what is an existing constitutional fact: that the Scottish people have constituent power, that they possess the capacity to create a sovereign state by seceding from the United Kingdom.  In addition to this, the Scottish Parliament could be accorded the power to call a binding referendum on independence.  The Scottish Parliament, rather than Westminster, is best placed to determine when the Scottish people wish to hold such a vote.

Coupled with the conferral of this new power on the Scottish Parliament should come limitations on its exercise, to mitigate – if not cure – the problems that the right to secession brings.  Just because the constitution accords Scotland the right to secede, it does not follow that the United Kingdom need accord the Scottish Parliament an untrammelled power to determine the procedures through which that right is exercised.  It is common for the constitution of a country – determined at the level of the state – to set the conditions for secession.  Having accorded a region the right to secede it would be wrong for the state, through the constitution, to limit the right in ways that make secession effectively impossible.  But it would be appropriate for the state to set conditions on the secession right that serve to protect the remainder of the state’s territories and the political community of the state as a whole.  With this in mind, the capacity of the Scottish Parliament to hold a referendum should be constrained in two respects.

First, there should be a constraint of the frequency of independence referendums.  They should be rare: there should be a long period of time between the 2014 referendum and the next vote.  The capacity of the Scottish Parliament to call a vote should, then, be time-limited.  The Scottish Parliament should be given the power to call, by simple majority, an independence referendum only if (say) 30 years have elapsed since the previous vote.  Making the independence vote a rare and decisive event makes it less likely that the secession right will have the destabilising consequences identified by Sunstein. The issue is taken off of the political agenda for a substantial period of time, allowing decisions to be made at the national level without being unsettled by constant doubts about Scotland’s continuing membership of the Union.

It might be objected that such a long period between votes leaves Scotland vulnerable: what if the rest of the United Kingdom embarked on a scheme so hazardous (such as resolving to leave the European Union, for example) that Scotland’s vital interests were imperilled by remaining part of the Union?  Indeed, a benefit of secession rights is that they can give smaller regions some protection against larger units.  The time-constraint on referendums should, then, be balanced by a second measure.  The Scottish Parliament should be given the power to call a referendum at anytime by super-majority: a referendum would be held if (say) two-thirds of MSPs eligible to vote supported it.  This would be a hard standard to meet, but not an impossible one; in extreme cases the Scottish Parliament could hold an independence vote before the specified time between referendums had elapsed.

In summary, my proposal is that following a ‘no’ vote the Scotland Act be amended to empower the Scottish Parliament to hold a binding referendum on independence, but only if 30 years have elapsed since the last referendum or if two-thirds of all MSPs vote for such a referendum.

There are a number of objections that might be made to this proposal.  Practical-minded people I have spoken to warn me that it is unrealistic.  They may well be right.  If independence is rejected, the United Kingdom Government and Parliament are unlikely to have much appetite to continue to debate and discuss the issue.  The SNP is unlikely to want to accept restrictions on the chance to secure a future vote – and may regard such limitations as, in themselves, constraints on a power that ought to reside in the hands of the Scottish Parliament.  Consequently, each side has incentive to let the matter drop.  But whilst constitutional ambiguity is sometimes desirable – allowing us to avoid unnecessary conflicts  – it can sometimes store up trouble for the future.  The possibility of a second referendum will ensure that, after a brief period of quiet, the question of independence will return as a live political issue. Worse still, there is a chance that it will be harder to secure agreement between Scotland and Westminster on the significance of this referendum.  Westminster might, reasonably, decline to accept the validity of a second referendum held in the near future: it might be argued that the SNP cannot keep repeating the question until they get the answer they want.  The period immediately after a ‘no’ vote is probably the best possible time to set the parameters under which the secession right should be exercised.  Leaving it unaddressed will bring significant costs.

The recent pronouncements of the future of the currency in Scotland from British politicians have generated criticism: to some this looks like bullying, threatening the people of Scotland with the loss of the pound.  Such criticism is misguided.  It is right that Scottish voters are given as much information as possible about the likely outcome of a ‘yes’ vote.  Part of that information is the negotiating stance that will be adopted by the rest of the UK when dealing with the putative Scottish state, a political entity that will become, it should be remembered, as much a foreign country as France or Germany.  But Scottish voters ought also to reflect on the consequences of a ‘no’ vote and, ideally, British politicians should also address this question.  There may well be more powers that can be devolved to the Scottish Parliament – a ‘no’ vote is not a vote against devolution – but the vote will settle the question of Scottish independence for a generation.  It will – or it should – rule the question of secession out of political debate for a long period of time, and the Scotland Act should be amended to help bring about this end.

Nick Barber is Associate Professor of Constitutional Law at Oxford University, and a Fellow of Trinity College, Oxford. 

Suggested citation: N. W. Barber, ‘After the  Vote: Regulating Future Independence Referendums’  U.K. Const. L. Blog (21st March 2014) (available at  http://ukconstitutionallaw.org).

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Dawn Oliver: Does treating the system of justice as a public service have implications for the rule of law and judicial independence?

oliverIf you asked a second year LLB student, or even a professor of public law or a legal practitioner, ‘what are the most fundamental functions of judges and the system of justice?’ you would probably get ‘doing justice to all without fear or favour’ and ‘upholding the rule of law’ among the most common answers. And if you asked ‘what are the most important ways in which performance of these functions is secured?’  you would expect to get ‘independence of the judiciary’ among the answers.

But if you visit the websites of the Ministry of Justice, the Lord Chancellor and Secretary of State for Justice, you will find no mention of these matters. These websites are mostly focused on the cost of legal aid, and criminal justice. And this notwithstanding the fact that the Constitutional Reform Act 2005 – also not mentioned on the websites – specifically preserves the Lord Chancellor’s role in relation to the rule of law (section 1(b)) and requires the Lord Chancellor and other Ministers to uphold the continued independence of the judiciary (section 3(1)). Why are judicial independence and the rule of law not mentioned? I suggest that it is because another understanding of the nature of the system of justice has gained currency in political and bureaucratic circles, an understanding that can do great damage to the rule of law.

The system of justice has come to be regarded by many as a public service like any other – and even only that. The title of Her Majesty’s Courts and Tribunals Service illustrates the point. But the trend goes back some thirty years. In 1986 a JUSTICE report stated that: ‘The courts … should be seen to provide a public service, as much as … the National Health Service’. (And presumably just as it would be inappropriate for the Secretary of State for Health to seek to pressurise a consultant to treat a patient in a particular way, so it would be inappropriate for the Lord Chancellor and other Ministers to ‘seek to influence particular judicial decisions through any special access to the judiciary’ (Constitutional Reform Act 2005, section 3(5)): by implication there is nothing exceptionally ‘constitutional’ or fundamental about the independence of the judiciary as compared to that of doctors.)

Since the promotion of the ‘Citizen’s Charter’ policy in 1991 the courts publish ‘charters’ for parties, witnesses and other, laying down ‘service standards’ as to delay, information, and how to complain about administration. Of course these matters are aspects of ‘service’ and do not touch upon the substance of judging, judicial independence and the rule of law. But for those who do not understand the rule of law and why it is important, it is only a small step to regarding judges themselves as only providers of services to litigants appearing before them, rather than as performers of an important constitutional role on which much of the system of government depends. I have heard it said at a Chatham House rule seminar by a senior civil servant that the role of the judiciary is not particularly special or different from the roles of doctors or nuclear regulators or anyone else involved in the running of public services.

The fundamental importance of justice, the rule of law and judicial independence are undermined by treating the system of justice as mainly just a public service: the system is different in important respects. The maintenance of the rule of law is of a different order of importance from the provision of other public services. The government and other public bodies are not ‘customers’ of, for instance, the NHS. They are often ‘customers’ of the system of justice, especially in judicial review and other public law cases and in criminal prosecutions. They may have self-serving or personal (not public) interests in the outcomes of cases, e.g. the avoidance of political embarrassment, gaining votes,  losing votes, loss of reputation, frustration in the pursuit of their favoured policies, loss of authority if they lose a case.

This ‘public service’ perspective puts some proposals for changes to the system of justice in a new light. The availability to critics of government of recourse to the courts and the independence of the judiciary can be a nuisance. What might a government do if it wanted to avoid litigation and embarrassment and enable it to get away with illegality? Just as, when developing policy in relation to the NHS, it can seek to limit access to the service (e.g. to drugs) and costs (e.g. by cutting staff, closing hospitals), so to it can do this in relation to the system of justice – but with startling consequences for the rule of law.  It could limit access to justice and deprive the courts of jurisdiction over unwelcome cases by reducing the limitation period for claiming judicial review and limiting the standing of charitable or voluntary sector bodies; it could find ways of weakening the ability of unpopular individuals (e.g. illegal immigrants, asylum seekers, convicted criminals) to pursue their claims in court by limiting their access to legal advice and representation; it could secure that unpopular parties (especially defendants in criminal cases) are less likely to win their cases, by depriving them of competent, reasonably paid representation; it could undermine the quality and thus the authority of the judiciary, deterring able practitioners from practice leading to judicial office by drastically reducing their earning capacity.

I do not allege that any of these are the conscious intentions of the government. But the overall effect of such changes, based in part on assumptions that the system of justice is just another public service, may be to undermine the independence of the judiciary, broadly understood, and the rule of law. Thinking of the system as a service obscures its special constitutional importance.

Dawn Oliver is an Emeritus Professor of Public Law at the Faculty of Laws, University College London.

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Strathclyde/LSE: Crowd-Sourcing the UK Constitution – or Indeed a Scottish One

Expert Panel at the University of Strathclyde

Wednesday 19 March, 6 – 8 pm

If Scotland does choose independence it will need to devise a new constitution. There is no British precedent.  The UK has no constitution written down in one document. Instead it has laws, conventions, practices, activities scattered all over the place that constitutional lawyers gather together and describe as the UK constitution. In a unique project, LSE’s Institute of Public Affairs (IPA) and Department of Law have come together to pioneer the crowdsourcing of a new UK constitution, in other words to ask members of the public to participate in, advise on and eventually to draft a new UK constitution. If Scotland chooses independence exactly the same questions will need to be asked before a Constitution for this newly independent country can be written.  Join Professor Conor Gearty, Human Rights Law Professor at LSE and have your say on what should be included in creating this important new document, whether it is British or Scottish. There will be an expert panel from Scotland who will be discussing their views and ideas on the ConstitutionUK project. What could be included in a constitution to better protect and represent the Scottish people, whether as an independent country or as part of the UK?  Come along to this discussion to voice your opinions and contribute to ConstitutionUK!

Chair and Moderator:    Professor Conor Gearty, LSE

Panellists:

Jean McFadden, former leader, Glasgow City Council

Professor Aileen McHarg, University of Strathclyde

Shelagh McKinlay, political blogger

Professor James Mitchell, University of Edinburgh

Venue: Room S209, Stenhouse Building, 173 Cathedral St, Glasgow

(http://www.strath.ac.uk/maps/stenhousebuilding/)

Registration: Attendance at this event is free and all are welcome.  However, numbers are limited, so please register in advance by visiting https://ecrowds.eventbrite.co.uk.

For further information about the ConstitutionUK project, see http://blogs.lse.ac.uk/constitutionuk/.

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Alan Bogg and Virginia Mantouvalou: Illegality, Human Rights and Employment: A Watershed Moment for the United Kingdom Supreme Court?

boggav_mantouvalouUnder what circumstances can the illegal work status of a migrant worker bar a statutory tort claim for race discrimination through the common law doctrine of illegality? Such a question is due to be considered later this month by the United Kingdom Supreme Court in an appeal from the Court of Appeal decision in Allen v Hounga. Ms Hounga arrived in the UK from Nigeria in 2007 to work as a domestic worker for Mr and Mrs Allen. Her age was indeterminate but she may have been as young as fourteen when she entered the arrangement. Despite the promise of schooling, Ms Hounga never had an opportunity to get an education, and it was alleged that she suffered serious physical abuse at the hands of Mrs Allen. Eventually, she was ejected from the house and, having slept rough, Ms Hounga was found wandering in a distressed state in a supermarket car park. According to the Court of Appeal, Ms Hounga’s race discrimination claim was ‘inextricably bound up’ with the illegality in question and so to permit her compensation would be to appear to condone her unlawful conduct. In the eyes of many commentators, Hounga marked a new low for common law reasoning in the sphere of statutory employment rights. This was compounded by the context of legally sanctioned exploitation of a particularly vulnerable migrant worker, whose vulnerability had been constructed by the legal order in the first place, a situation that can also be described as ‘legislative precariousness’.

The narrowest approach to the legal issue would be to consider the Court of Appeal’s holding in Hounga with respect to legal authority. Rimer LJ in the Court of Appeal purported to follow the approach to illegality set out in the earlier case of Hall v Woolston Leisure. In Hall the Court of Appeal had insisted on a strict causation test. In Hounga this had been loosened to encompass situations where the illegality was merely ‘linked’ to the discrimination claim. Perhaps a better approach to formulate the question in the way that Lord Hoffmann did in the House of Lords decision in Gray v Thames Trains: ‘Can one say that, although the damage would not have happened but for the tortious conduct of the defendant, it was caused by the criminal act of the claimant? …or is the position that although the damage would not have happened without the criminal act of the claimant, it was caused by the tortious act of the defendant?’ If we pose the question in this way on the facts in Hounga, then the gist of the tort – the violation of Ms Hounga’s right not to be discriminated against because of her race – was caused by the tortious act of the defendant. That should be the end of the causation enquiry. And perhaps the Supreme Court might be content to dispose of the case on that narrow basis, ensuring the internal coherence of the common law doctrine of illegality in accordance with the precedents in Hall and Gray. Certainly, there are recent examples of the Employment Appeal Tribunal dealing with the illegality doctrine in a manner that is more sensitive to the various legitimate interests at stake, while reasoning within the four corners of the illegality doctrine.

There is a larger set of perspectives, however, given that Hounga sits at the intersection between labour law, human rights and migration law. Rather than refine the common law doctrine of illegality and ensure its internal coherence, it may be appropriate to consider whether illegality should have any role at all in this regulatory sphere. It might be helpful to consider this from two different vantage points, one that characterizes Hounga as a ‘labour law’ case; the other of which characterizes Hounga as a ‘migration’ case. It might be useful to regard both kinds of approach as based upon an anti-exploitation principle, which would set itself against unfair-advantage taking in the employment context. From a labour law perspective, the unfairness consists in the violation of legal rights that exist for the protection of those engaged in personal work. From a migration law perspective, the unfairness consists in the targeting of an especially vulnerable group within the wider category of personal work relations, viz migrants working illegally. Human rights issues arise in both of these perspectives.

If we take first the ‘labour law’ perspective, there is a respectable argument to be made that there is something special about labour rights, or a subset of labour rights that can be classified as human rights, that means that illegality should be excluded entirely from this regulatory context. At its broadest, it is possible to argue that all labour rights should be insulated from the illegality doctrine. Labour rights, such as the right not to be unfairly dismissed or working time protections, are not simply rights that benefit the individual worker implicated in illegality. These rights are also justified in their contribution to a wider public good, ensuring a culture of respect for workers’ rights in a well-functioning labour market that promotes decent work. Illegality should not be permitted to impede this public good by inculcating an ethic of disregard for employment rights amongst unscrupulous employers. Illegality also adds an extra incentive to employ undocumented migrant workers by ensuring a supply of labour that is cheaper still through the denial of basic employment rights. An intermediate labour law approach might be to focus on those employment rights that are reciprocally bound up with the provision of work, so that denial of the right corresponds to an unjust enrichment for the employer who has already had the benefit of the work. The obvious example here is the provision of back pay or the right to paid annual leave.

The narrowest labour law perspective would focus on a tighter category of fundamental human rights, such as the right not to be discriminated against because of race or sex, the prohibition of forced labour or freedom of association. The fundamentality of these human rights means that any illegality of the claimant should be disregarded. There would be something unconscionable for a legal system to permit the violation of fundamental human rights in circumstances of illegality; it would undermine the “integrity of the legal system” which, after all, is one of the functional concerns of the illegality doctrine itself. In Hall both Peter Gibson L.J. and Mance L.J. identified the sex discrimination claim as vindicating the claimant’s fundamental human right not to be discriminated against on grounds of sex. This fundamental rights dimension was a vital factor in insulating the statutory tort claim from the doctrine of illegality. This labour law perspective, focused on the nature of the legal right, would treat the migration dimension to Hounga as part of the background context, but not especially salient. It might be regarded as an extra attraction of this approach that in avoiding a focus on whether labour was forced or a person was trafficked, it avoids the implicit legitimization of other situations where an employer violates the fundamental human rights of workers (whether or not migrants) behind the protective cloak of illegality.

By contrast, the ‘migration law’ perspective would focus on the distinctive nature of the claimant in Hounga as a member of an especially vulnerable group within the labour market. In respect of their labour rights, undocumented migrant workers are effectively ‘outlaws’. The doctrine of illegality exacerbates their existing vulnerability through the law, and makes them even more prone to exploitation than other migrant workers. This seems difficult to defend even from the perspective of migration policy itself. For just as migration policy is concerned to regulate and restrict migration, it is equally concerned to ameliorate the circumstances of extreme exploitation that can be classified as ‘modern slavery’, which might be thought to characterize the situation of claimants such as Ms Hounga.

In terms of European human rights law, this situation can raise issues under the European Convention on Human Rights (ECHR), which may provide the tools to address workers’ exploitation in certain circumstances. The Convention protects the rights of everyone within the Contracting States’ jurisdiction (article 1 ECHR), without drawing any distinction on the basis of nationality. Article 4 of the ECHR, which is an absolute provision, prohibits slavery, servitude, forced and compulsory labour. The European Court of Human Rights (ECtHR) has previously examined the exploitation of a migrant domestic worker in the case of Siliadin v France, which had similarities with Hounga (but without the element of physical abuse). The ECtHR recognized the applicant’s vulnerability, whose passport had been confiscated, and ruled that she was held in servitude, forced and compulsory labour, which should be criminalized. Even though the focus was on criminalization, the Court did not rule out that other labour protective legislation may be required. In terms of the legal regime that the doctrine of illegality sets up for the undocumented, the case Rantsev v Cyprus and Russia is also important to highlight. In that case, which involved a victim of sex trafficking, the ECtHR held that an immigration regime (that of the ‘artiste visa’ in that case) limited the freedom of Rantseva to such a degree that it violated article 4. The doctrine of illegality may raise similar issues, as it limits the undocumented workers’ freedom to an extreme, leaving them in a legal black hole.

The prohibition of discrimination (article 14 ECHR) taken together with the right to the peaceful enjoyment of one’s possessions (article 1 of Protocol 1 ECHR) may also be at stake in cases of an illegal contract of employment. Should a worker not be awarded her salaries, the Court may view this as discrimination in the enjoyment of her possessions, as salaries have been classified as possessions in the case law. The ECtHR has explored the social rights of a documented migrant in Gaygusuz v Austria, and ruled that for a difference of treatment on the basis of immigration status to be justified, ‘very weighty reasons would have to be put forward before the Court’. The control of immigration may be a legitimate aim, but the means employed to meet the aim may violate the Convention.

The ECtHR has not examined the rights of undocumented workers under the prohibition of discrimination in conjunction with other Convention rights. However, the Inter-American Court of Human Rights addressed the issue in its advisory opinion ‘Juridical Condition and Rights of the Undocumented Migrants’. In this context, the Court referred to the vulnerable status of migrants and emphasised that their human tights should be protected regardless of their legal status. It stated that workers’ rights can only be dependent on the status of someone as a worker, and not on the status of someone as a lawful migrant:

‘Labor rights necessarily arise from the circumstance of being a worker, understood in the broadest sense. A person who is to be engaged, is engaged or has been engaged in a remunerated activity, immediately becomes a worker and, consequently, acquires the rights inherent in that condition […] [T]he migratory status of a person can never be a justification for depriving him of the enjoyment and exercise of his human rights, including those related to employment.’

This opinion suggests that fundamental labour rights found in legislation cannot be made conditional upon immigration status because this violates the prohibition of discrimination. The Inter-American Court accepted that states have a sovereign power to deny employment to undocumented migrants. However, once they are employed, they should be protected equally to other workers. The list of rights that undocumented workers must enjoy, on this analysis, does not only include the ILO’s fundamental rights at work. It also encompasses fair pay, reasonable working hours, health and safety rules and other fundamental labour rights.

Hounga is possibly the most important employment case yet to be considered by the United Kingdom Supreme Court. We hope that it takes the opportunity to step beyond the formalism of a narrow approach to the illegality point, sensitive to the wider human rights issues. Nothing less than the integrity of the English legal system is at stake.

Alan Bogg is Professor of Labour Law; Fellow and Tutor in Law, Hertford College, University of Oxford.

Virginia Mantouvalou is Reader in Human Rights and Labour Law and Co-Director of the Institute of Human Rights, University College London (UCL).

This piece has also been endorsed by Professor Hugh Collins (Oxford), Dr Nicola Countouris (UCL), Dr Cathryn Costello (Oxford), Professor Mark Freedland (Oxford), John Hendy QC (UCL) and Professor Tonia Novitz (Bristol).

Suggested citation: A. Bogg and V. Mantouvalou,’Illegality, Human Rights and Employment: A Watershed Moment for the United Kingdom Supreme Court?’ U.K. Const. L. Blog (13th March 2014) (available at http://ukconstitutionallaw.org/)

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Robert Leckey: Suspended Declarations of Invalidity and and the Rule of Law

Professor Robert LeckeyIn December 2013, the Supreme Court of Canada declared the constitutional invalidity of three major provisions in the domestic criminal law on sex work. Specifically, in Canada (Attorney General) v Bedford, the Court struck down prohibitions against keeping a bawdy-house, living on the avails of prostitution, and communicating for the purposes of prostitution. The judges accepted argument by current and former prostitutes that the challenged provisions deprived them of their security of the person in a way incompatible with the principles of fundamental justice, contrary to s 7 of the Canadian Charter of Rights and Freedoms. For the Court, the challenged provisions constrained sex workers’ ability to take steps to protect themselves. Sex work itself being legal, those prohibitions exacerbated its risks in a way that marked them as grossly disproportionate or overbroad.

Although the decision’s substance offers much for scholars of fundamental liberties to chew on, my present concern is the order issued and its implications for constitutional review. Whilst s 4 of the Human Rights Act 1998 merely empowers judges to declare that primary legislation infringes rights, without affecting its legal force, s 52(1) of Canada’s Constitution Act, 1982 affirms the Constitution of Canada’s ‘primacy’. It stipulates that any law inconsistent with the Constitution, of which the Charter is part, ‘is, to the extent of the inconsistency, of no force or effect’. On prevailing readings, this provision empowers the Court to strike down legislation it determines to be unconstitutional. Thus, although taxonomists of Bills of Rights debate the precise implications of the Charter’s distinctive elements, such as its derogation or ‘notwithstanding’ clause, the Canadian form of constitutional review appears to be relatively strong.

In Bedford the Supreme Court declared the challenged provisions to be invalid, but suspended its declaration of invalidity for one year. The Court expects Parliament to avoid an eventual regulatory void by enacting replacement legislation before that year elapses. Indeed, the Government of Canada has already launched online consultations.

This delayed remedy is doubly significant. Most concretely, it means that despite their ostensible legal victory, sex workers will continue to suffer risks to their safety seen by the Court as severe enough to make the provisions incompatible with fundamental rights. Early experience indicates that local authorities are enforcing the provisions to varying extents. Indeed, this state of legal uncertainty arguably undermines the rule of law. Still, strictly speaking, the provisions remain in force.

In addition, the suspended remedy in Bedford represents the culmination of judges’ reshaping of their role under the Charter. The initial position in Canadian law was that declaring legislation to be inconsistent with the Constitution made it immediately invalid. The first major exception arose in 1985, when the Supreme Court of Canada concluded that a century’s lawmaking by a provincial legislature was invalid for failure to follow a constitutional manner-and-form requirement to enact laws in French as well as English. The Court invoked the rule of law – its imperative to avoid a legal vacuum – in order to deem the legislation valid for the time required to translate and reenact the provincial statute book.

A few years later, in its leading judgment on constitutional remedies, the Court contemplated that, exceptionally, it might suspend a declaration of invalidity made under the Charter. A delay would be warranted where striking down legislation with nothing in its place would threaten the rule of law or pose a danger to the public.

The Court has never disavowed that discussion, but it has subsequently changed its approach. The judges have developed the habit of suspending declarations of invalidity in Charter cases. In doing so, they commonly refer not to threats to the rule of law or to the public, but to the appropriateness of making space for a legislative response. For some commentators, this approach fosters a democratically healthy ‘dialogue’ between judiciary and legislature.

Speaking comparatively, the Canadian judges have fashioned for themselves a remedial discretion that the Constitution of South Africa bestows on its judges. Section 172(1)(b)(ii) of the South African constitution contemplates that the judges may make ‘an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect’.

The Supreme Court of Canada’s brief remedial discussion in Bedford merits scrutiny. The Court takes it as ‘clear that moving abruptly from a situation where prostitution is regulated to a situation where it is entirely unregulated would be a matter of great concern to many Canadians’. In contrast, ‘leaving the prohibitions … in place in their present form leaves prostitutes at increased risk for the time of the suspension – risks which violate their constitutional right to security of the person’. The judges hold that the ‘choice between suspending the declaration of invalidity and allowing it to take immediate effect is not an easy one’. They do little, however, to show themselves grappling with the difficulty. Without any explicit effort to weigh the opposing considerations or to compare their foreseeable costs and benefits, the Court concludes that the unconstitutional law should remain temporarily in force.

In effect, the Supreme Court of Canada has turned 180 degrees from its position twenty years ago. Danger used to be a reason for, exceptionally, suspending a declaration of invalidity. Now the Court suspends a declaration – in deference to the ‘great concern’ of ‘many Canadians’ and to Parliament’s prerogative to tackle a policy issue – in the face of evidence that the unconstitutional laws daily imperil the vulnerable class of sex workers.

More broadly, then, Bedford crystallizes the Court’s shift from using orders under the Charter to cease the effect of laws violating rights to using them to identify legislative priorities. To be sure, there are non-negligible political effects to the Court’s declaration that the prostitution laws harm their intended beneficiaries and to its 12-month countdown for Parliament. Still, that the sex workers should exit the courthouse as ‘victors’ while continuing to bear the brunt of laws shown to violate their fundamental rights suggests that the judges have used the remedial discretion they ascribed to themselves so as to weaken constitutional review in Canada.

The Canadian judges’ apparent underuse of their constitutional powers invites further study. Might this phenomenon countermand democratic theorists’ disappointment about how rarely Canadian parliamentarians have used their legislative override? It may also be a counterexample to the hunch – think of American judges’ recognition of the right to privacy in the penumbra of the First Amendment – that when judges reach beyond the constitutional text, they do so to expand rather than to restrain their powers.

For me, the crucial methodological takeaway – whatever your politics on rights, courts, and legislatures – is how partial a story about the character of judicial review emerges from a Bill of Rights’ text. To understand the political impact of a Bill of Rights, we need to scrutinize the procedural dimensions of its application by judges – matters too often dismissed as lawyerly ‘technicalities’. I contribute to this endeavour in my forthcoming book, Bills of Rights in the Common Law.

Robert Leckey is an Associate Professor of Law and William Dawson Scholar at the Faculty of Law, McGill University. He is scheduled to speak in the United Kingdom and South Africa about his forthcoming book on the following dates:  King’s College London – 12 May;  Oxford University – 13 May; Unisa, Pretoria – 15 May; Cape Town – 19 May; University College London – 17 June; London School of Economics – 29 October.  Further details for these talks may be obtained from the venues hosting the talks.

(Suggested citation: R. Leckey, ‘ Suspended Declarations of Invalidity and the Rule of Law’ U.K. Const. L. Blog (12th March 2014) (available at http://ukconstitutionallaw.org/)).

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SLS Conference 2014: Call for Papers (Civil Liberties and Human Rights Section)

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 a.r.williams@durham.ac.uk. 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.

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Dean Knight: Report from New Zealand: MMP Review, Constitutional Review, and Legislative Disclosure

Knight - Headshot H1Some constitutional tid-bits from New Zealand from the last wee while.

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/)).

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