Ruthann Robson: US Supreme Court in Schuette: Michigan Can Ban Affirmative Action

Ruthan RobsonCROSS-POSTED FROM Constitutional Law Professors Blog (US).

The Court’s opinion in Schuette v. BAMN (Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary),  clearly upheld Michigan’s Proposal 2, enacted as Article I §26 of the Michigan Constitution barring affirmative action in state universities and subdivisions. The plurality opinion for the Court was authored by Justice Kennedy, and joined by Chief Justice Roberts and Justice Alito.  Chief Justice Roberts also authored a brief concurring opinion. Justice Scalia’s concurring opinion was joined by Justice Thomas.  Justice Breyer also wrote a concurring opinion.  Justice Sotomayor’s impassioned dissent was joined by Justice Ginsburg.  Justice Kagan was recused.

The state constitutional amendment was a reaction to the Court’s opinion in Grutter v. Bollinger (2003), upholding the University of Michigan Law School’s use of diversity in admissions.  But since Grutter, the Court has been decidely less friendly to affirmative action, as in  Fisher v. University of Texas.

Recall that the en banc Sixth Circuit majority had relied upon the so-called “political process” aspect of the Equal Protection Clause which asks whether a majority may vote to amend its constitution to limit the rights of a minority to seek relief, relying on Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982) and Hunter v. Erickson, 393 U.S. 385 (1969).  At oral arguments, the Justices had seemed hostile to that theory.

Justice Kennedy’s plurality opinion for the Court carefully rehearses the cases, but it is probably his rhetoric that is most noteworthy:

This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it. There is no authority in the Constitution of the United States or in this Court’s precedents for the Judiciary to set aside Michigan laws that commit this policy determination to the voters.

As for Justice Scalia’s opinion, it admits that the “relentless logic of Hunter and Seattle would point to a similar conclusion in this case” as the Sixth Circuit understood.  However,  both Hunter and Seattle should be overruled.  Justice Breyer, concurring, would distinguish Hunter and Seattle because Schuette  “does not involve a reordering of the political process; it does not in fact involve the movement of decisionmaking from one political level to another.”

It is Justice Sotomayor’s dissent, joined by Justice Ginsburg, that displays the most heft.  At more than 50 pages and almost as lengthy as all the other opinions combined, Sotomayor’s opinion is an extended discussion of equal protection doctrine and theory, as well as the function of judicial review.  In her last section, she also addresses the “substantive policy” of affirmative action and the difference it makes.

The stark division among the Justices is clear.  Sotomayor writes that “race matters.”  Scalia reiterates that the constitution is “color-blind.”  Roberts implies that racial “preferences do more harm than good.”  And Kennedy invokes a First Amendment right to debate race:

Here Michigan voters acted in concert and statewide to seek consensus and adopt a policy on a difficult subject against a historical background of race in America that has been a source of tragedy and persisting injustice. That history demands that we continue to learn, to listen, and to remain open to new approaches if we are to aspire always to a constitutional order in which all persons are treated with fairness and equal dignity. . . . The respondents in this case insist that a difficult question of public policy must be taken from the reach of the voters, and thus removed from the realm of public discussion, dialogue, and debate in an election campaign. Quite in addition to the serious First Amendment implications of that position with respect to any particular election, it is inconsistent with the underlying premises of a responsible, functioning democracy. One of those premises is that a democracy has the capacity—and the duty—to learn from its past mistakes; to discover and confront persisting biases; and by respectful, rationale deliberation to rise above those flaws and injustices. . . . It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds. The process of public discourse and political debate should not be foreclosed even if there is a risk that during a public campaign there will be those, on both sides, who seek to use racial division and discord to their own political advantage. An informed public can, and must, rise above this. The idea of democracy is that it can, and must, mature. Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people. These First Amendment dynamics would be disserved if this Court were to say that the question here at issue is beyond the capacity of the voters to debate and then to determine.

Given this passage, perhaps it is not surprisingly that Justice Kennedy does not cite Romer v. Evans - – - which he authored in 1996 – - – in today’s plurality opinion in Schuette.  In Romer v. Evans, Kennedy had this to say about Colorado’s Amendment 2, which prohibited the enactment of anti-discrimination laws on the basis of sexual orientation:

It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution’s guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. . . . A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.

Ruthann Robson is a Professor of Law, City University of New York School of Law & and Visiting Professor at City University London School of Law.

(Suggested citation: R. Robson, ‘Court in Schuette: Michican Can Ban Affirmative Action’ Const. L. Prof. Blog (22nd April 2014) (available at: http://lawprofessors.typepad.com/conlaw/2014/04/court-in-schuette-michigan-can-ban-affirmative-action.html) or R. Robson, ‘US Supreme Court in Schuette: Michican Can Ban Affirmative Action’ U.K. Const. L. Blog (24th April 2014) (available at: http://ukconstitutionallaw.org)).

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Tarunabh Khaitan: NALSA v Union of India: What Courts Say, What Courts Do

khaitan_tarunabhThe Indian Supreme Court has recently delivered an important judgment in the case of National Legal Services Authority v Union of India (NALSA). A two-judge bench comprising Justices Radhakrishnan and Sikri declared, among other things, that hijras (a traditional Indian male-to-female trans group) must be treated as a ‘third gender’ for all legal purposes, and that transpersons in general have the right to decide whether they want to be identified as male, female or belonging to the third gender. [129] (Given the specific declaration that hijras belong to the third gender, it is not clear whether the general right to choose one’s gender is available to hijras too, or only other transpersons.) The Court also issued a number of other directions to the state—remarkable in their breadth and, perhaps for that reason, vulnerable to remaining unimplemented.

In some respects, this judgement is in sharp contrast to the one delivered by another bench of the same Court in December 2013. In Koushal v Union of India, two other judges had overturned a Delhi High Court judgment declaring the criminalisation of sodomy to be unconstitutional. In effect, Koushal recriminalized India’s LGBT minority after a brief and hard-won respite from the Delhi High Court (the Koushal ruling still stands and is not affected by NALSA, although the Supreme Court has agreed to hear a ‘curative petition’ seeking its review by a larger bench).

Unlike Koushal’s complete failure to appreciate the counter-majoritian judicial function in a constitutional democracy, the NALSA judges are acutely aware of their special duty to protect a ‘marginalised section of the society’ which is ‘very small in number’ [118, 82]. Contrary to Koushal’s rejection of comparative law, NALSA is replete with lengthy references to international and foreign judgments and legislation, surprisingly including material not only from the usual Western liberal democracies but also India’s less liberal and less democratic neighbours such as Pakistan and Nepal [21-42, 70-73].

Unlike Koushal’s miserliness in understanding the scope of fundamental rights, NALSA adopts expansive interpretations of fundamental rights. The right to equality in Article 14 is read to include positive obligations (such as the duty to take affirmative action and make reasonable accommodation) [54, 88]. The right against discrimination in Articles 15 and 16 is read to prohibit not only direct but also indirect discrimination [59]. Prohibition of discrimination on the ground of ‘sex’ specified in these Articles is read to include a prohibition on discrimination based on gender identity [59]. The court compares gender identity to the paradigm ground in Indian discrimination law—caste—by acknowledging that transpersons are treated like ‘untouchables’ [1]. It also sees the parallels between the protection of disability and that of gender identity [112]. Noticing such continuity between different forms of discrimination is rare for Indian courts.

The Court especially notes Articles 15(4) and 16(4), which allow the state to make special provisions for the advancement of socially and educationally backward classes. The judgment doesn’t fully explain how this constitutional permission can lead to the conclusion that the state ‘is bound to take some affirmative action for their advancement so that the injustice done to them for centuries could be remedied’ [60, emphasis supplied]. One possibility is that the Court is relying on its earlier premise that the right to equality under Article 14 imposes positive as well as negative obligations. Alternatively, the Court may be implying that once the state relies on the constitutional permission to take affirmative action for some backward classes, it must do so for all of them. It would have been better if the Court had clarified the precise reasoning behind the directions to the state to extend affirmative action benefits to transpersons—effectively a recognition of a right to affirmative action [60, 129].

The right to freedom of expression in Article 19 is read expansively to include the freedom to express oneself through dress, words, action, behaviour etc [61]. Thus, gender-non-conforming dress and behaviour are constitutionally protected. The right to life and personal liberty under article 21 is declared to rest upon notions of positive freedom, personal autonomy, self-determination and human dignity and not simply freedom from unjustified state interference [67, 69, 99, 101, 102]. Thus, the state has a duty to enable transpersons to be free in the positive as well as the negative sense.

The remedies that the court grants are also very interesting. Three directives have already been mentioned: that hijras are now recognised as the third sex, that transpersons have the right to choose between being male, female or belonging to the third gender, and that transpersons are to be given affirmative action benefits, since they are a ‘backward class’. The Court goes on to give a slew of other directions, including some very specific orders (direction to provide specific toilets and HIV care centres for transpersons), some rather broad ones (direction to provide them with medical care in all hospitals, to frame various social welfare schemes for their betterment, and to take steps to create public awareness to ensure their social inclusion) and some wonderfully imprecise ones (direction to seriously address problems being faced by them and to take measures to ensure a respectful place for them in social and cultural life). To top it all, the Court notes that the government has already constituted an ‘Expert Committee’ to study the problems faced by the transpersons. Without specifically mentioning what its findings or recommendations actually are (the Committee submitted its report in January 2014), the Court orders the Executive to implement its recommendations within six months.

It is only when we examine the remedies the Court grants in NALSA that we can see a common understanding of the judicial function with the Koushal bench. I had argued in a previous post that the Koushal Court wasn’t being deferential to Parliament in refusing to hold the colonial anti-sodomy provision unconstitutional. On the contrary, the judgment showed a characteristic lack of respect for separation of powers. The NALSA judges are much more benign and progressive, with a much better understanding of the counter-majoritarian judicial role than the Koushal judges. But when it comes to its attitude to the legislature, they match Koushal’s contempt for Parliament with indifference.

Its champions as well as its critics agree that the Indian Supreme Court does not generally waste much time worrying about separation of powers. It makes drastic and frequent forays into the legislative domain with little hesitation. This is broadly true, but the manner in which these incursions are made is interesting and NALSA offers a good illustration. In its social rights jurisprudence, one can see two very different types of remedies provided by the Court. On the one hand, one sees judicial legislation, usually in the form of an endorsement of a policy or a set of recommendations framed by the Executive, like the recommendations of the Expert Committee in this case. These recommendations are often precise and detailed, and therefore legislative in character. Frequently the government lawyer would have informed the Court of the Executive’s support for these recommendations. What the Court effectively does is collude with the Executive to stamp consultation documents and ad hoc committee reports with constitutional authority, entirely bypassing Parliament. In fact, faced with an un-obliging Parliament paralysed by obstructionist politics, governments often find it easier to legislate through the courts than through Parliament. Even in Koushal, the government had—rather unusually—admitted before the Court that the criminalisation of sodomy was unconstitutional. It would have very much liked the Court to affirm the Delhi High Court order, one that it had chosen not to appeal. Ministers publicly endorsed gay rights only after the court refused to play ball, but the Executive response was to seek judicial review rather than go to Parliament. The Indian courts are no doubt legislating. But on the whole, the initiative remains with the Executive. Courts have simply become a parallel, albeit less predictable, forum for endorsing legislative proposals that still originate from the Executive.

On the other hand, there are orders that are so expansive and vague that it is impossible to hold anyone to account for failing to implement them. The Court must know that its overbroad directive to take measures to help transpersons is capable of neither implementation nor breach. However, the Court is not simply interestes in whether its vague orders are implemented—it also cares about participating actively in and shaping the political discourse on various issue. The Indian SC is an explicitly political institution which does not pretend to be otherwise. Even in NALSA, the judges are very clear that law must transform social realities [119]. The Koushal judges were very keen to ensure that the law did not disturb the social status quo. Both positions, although diametrically opposed, are self-consciously political. Of course, all courts are political. The difference in India is that judges are not coy about acknowledging this reality. Whether this honestly is a virtue—or whether at least the judicial pretence of functioning outside politics nonetheless imposes useful restraints on courts—is a matter for another day.

The reason that Indian courts spend time penning these unimplementable orders is that they know it is not just what they do that matters, but also what they say. As prominent political players whose words carry a lot of weight in the public discourse, these expansive and vague directions are not simply pious platitudes. They will be relied upon by activists, reported by the media, debated by politicians and as soft-law instruments lay the foundations for future judicial and legislative development. Like its legislative role, the Indian Supreme Court has adopted a very expansive understanding of its expressive function. Debates on separation of powers need to consider the proper limits not only of what courts do, but also what they say.

 

Tarun Khaitan is the Hackney Fellow in Law at Wadham College and Associate Professor at the Faculty of Law, University of Oxford.

(Suggested citation: T. Khaitan, ‘NALSA v Union of India: What Courts Say, What Courts Do’ U.K. Const. L. Blog (24th April 2014) (available at: http://ukconstitutionallaw.org)).

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Richard Clayton: The Curious Case of Kennedy v Charity Commission

richard_claytonOn 26 March 2014 the Supreme Court gave a lengthy judgment in Kennedy v Charity Commission [2014] UKSC 20, running to 248 paragraphs. The Supreme Court decision is full of surprises. The Court decided to depart from the arguments of the parties- the majority insisted that common law rights rather than the Human Rights Act were the key to the case; and then embarked on an extended and wide ranging obiter discussion of public law issues, revealing further disagreements between the Justices.

Mr Kennedy, a Times journalist, raised concerns about how George Galloway MP ran his controversial Iraq charity, the Miriam Appeal. He alleged that public donations were used to fund visits by Mr Galloway to Iraq and to support political campaigns against UN sanctions and against Israel. As a result, the Charity Commission which held three inquires under the Charities Act 2006, which dismissed the complaints in very brief terms, leaving unanswered questions which the Supreme Court thought were of considerable public importance.

Mr Kennedy then requested disclosure from the Commission of documents which might explain the inquiries’ conclusions under the Freedom of Information Act (FOIA). He accepted that some information might attract absolute exemption from disclosure under FOIA (such as confidential information under s 41) and that other parts came within the scope of qualified exemptions and therefore required weighing up rival public interests under s 2(2).

However, the Commission said that all the documents were subject to an absolute exemption under s 32, on the basis that s 32 exempts the Commission from any duty to disclose documents held by a Court or persons conducting an inquiry or arbitration.   Mr Kennedy responded by arguing that the absolute exemption under s 32(2) fell away once the inquiry concluded, either as a matter of ordinary construction or by interpreting s 32 in accordance with s 3 of the Human Rights Act. The protracted litigation began with a FOIA request in June 2007, followed by a detailed consideration by the Information Commissioner, two hearings before the First Tier Tribunal, a High Court hearing and two hearings before the Court of Appeal, which Mr Kennedy appealed to the Supreme Court.

The issues before the Supreme Court

The principal issues before the Supreme Court were whether the absolute exemption ended with the inquiry’s conclusion, either as a matter of ordinary construction or under the extended meaning permitted by s 3 of the HRA. The Supreme Court had little difficulty in deciding against Mr Kennedy that the absolute exemption under s 32 continued after the inquiries ended. The principal battleground therefore focused on the scope of Art 10.

The Art 10 issue

Unfortunately, the Strasbourg jurisprudence on whether freedom of expression entails a right of access to information is not entirely straightforward. In the older cases (which include Grand Chamber decisions), Leander v Sweden (1987) 9 EHRR 433, Gaskin v UK (1989) 12 EHRR 36, Guerra v Italy (1998) 26 EHRR 357 and Roche v UK (32555/96) (2005) 42 EHRR 30, the ECtHR deny that a right of access to information falls within the scope of Art 10. However, a series of later cases, Matky v Czech Republic Judgment 10 July 2006, Tarsasag v Hungary (2011) 53 EHRR 3 and Kenedi v Hungary (31475/05) (2009) 27 BHRC 335 say what Article 10 conferred a right of access to information, at any rate for those who exercise of the functions of a social watchdog, like the press.

Lord Judge CJ in Independent News and Media [2010] 1 WLR 2262 [41]observed that the Strasbourg jurisprudence appeared to have developed a wider scope since Leander. But when the point was argued before the Supreme Court in Sugar v BBC [2012] 1 WLR 439, Lord Brown disagreed, holding in trenchant terms [88-96] that Art 10 creates no general right to freedom of information. Lords Mance and Wilson agreed with his analysis.

Since Sugar there have been four more ECtHR cases indicating that Art 10 confers a right of access to information: the Grand Chamber decision in Gillberg v Sweden (2012) 34 BHRC 247, Shapovalov v Ukraine, Judgment 32 July 2012, Youth Initiative for Human Rights v Serbia Judgment, June 25, 2013 and Österreichische v Austria, Judgment, 28 November 2013 (which was in fact given after the oral argument).

Mr Kennedy asked the Supreme Court to overrule Sugar before a seven judge court. Lord Mance, in giving the leading judgment (with which Lords Neuberger, Clarke and Sumption agreed) scrutinised the four new Strasbourg decisions [76-96]. He concluded, on the unsatisfactory state of the case law, that Art 10 did not confer a positive right of access to information [94]. He also said [59] that it was unfortunate that the ECtHR chambers did not refer cases to the Grand Chamber where it disagreed with older Grand Chamber judgments.

Lord Mance’s approach is open to question on several grounds. His views appear to be out of line with current Strasbourg practice concerning referrals to the Grand Chamber, fail to acknowledge the dynamic interpretative techniques it uses when considering the scope of Convention rights (which Lord Wilson stressed in his dissenting judgment at [188]) and seem to imply that Strasbourg applies a system of precedent- which it does not.

One critical question the Supreme Court had to consider is how the ECtHR would, itself, decide the Art 10 issue. The reality is that the direction of travel is all one way- every recent ECtHR decision has said that Art 10 confers a right of access to information. Lord Wilson in his dissent stated that the Supreme Court could ‘confidently conclude’ that Art 10 required an unwilling public authority to disclose information [189], whereas Lord Carnwath held in his dissenting judgment [217] that the general direction of travel (unless the Grand Chamber ruled otherwise) was clear. In R(Gentle) v Prime Minister [2008] 1 AC 1356 Lady Hale indicated [56-57] that she considered the Strasbourg jurisprudence, she would be guided by what she could reasonably foresee what the ECtHR would decide; and in Ambrose v Harris [2011] 1 WLR 2435 Lord Dyson looked for a ‘sufficient indication’ of how the ECtHR would decide the case. It is respectfully submitted that the conclusion of the majority on the scope of Art 10 is, therefore, unconvincing

The common law alternative

Another curious feature of the decision is how the majority seized on a reference in the Commission’s printed case to s 78 of FOIA- which states that nothing in the Act ‘is to be taken to limit the powers of a public authority to disclose information held by it’. Section 78 was mentioned by the Commission for the limited purpose of arguing that its refusal to disclose was not an ‘interference’ with Art 8. However, the majority used s 78 as a launch pad to discuss obiter extending the common law principles of open justice, as developed by R(Guardian Newspapers) v City of Westminster Magistrates’ Court [2013] QB 618, where the Court of Appeal held that the magistrates acted unlawfully in refusing to disclose the skeleton arguments, witness statements and other documents.

The majority’s extension of the Guardian News principle presented a number of difficult issues (which were not raised before the parties). Lord Mance [48-50] appeared to regard this development as a modest one, taking the view that, having regard to the terms of the Charity Act, the Commission should accede to Mr Kennedy’s request for disclosure in the public interest- unless there were powerful countervailing arguments to be advanced: see, also Lord Toulson at [124-129]. By contrast, Lord Carnwath was sceptical about such a broad proposition [236-242], pointing to a basic fallacy, that statutory tribunals did not sit in public, so that the cornerstone principle of Guardian News was absent. In Lord Carnwath’s view the alternative common law approach was, ‘arguably, a bolder leap into the unknown than the modest step’ the Supreme Court was being asked to take (after full argument) in relation Art 10.

The Supreme Court also disagreed about the standard to be applied when assessing whether the principle of open justice was overridden by countervailing factors. Lord Mance stated [52-54]- that the Wednesbury standard had developed an issue-sensitive scale of intervention to enable the Courts to perform their constitutional function in an increasing polity and concluded that the proportionality test is relevant to judicial review outside the scope of Convention and EU law, apparently performing the burial rights to the Wednesday principle which Dyson LJ foreshadowed in [34-37] in R(ABCIFER v Secretary of State for Defence [2003] QB 1397. Lord Carnwath was much more cautious [246], pointing out that the jurisprudential basis for this flexible approach remains uncertain and that it was, at best, uncertain whether proportionality had become part of domestic public law.

Another curiosity in the judgment concerns how Mr Kennedy can now take his case forward. Lord Sumption emphasised [159] that a fresh request based on common law grounds would not necessarily result in a favourable outcome. Furthermore, if Mr Kennedy tried to judicially review a refusal to provide the documents requested, those new proceedings might be time-barred under CPR 54.5(1) since the ground of challenge arose so long ago. Lord Toulson suggested [151] that it would be harsh for the claim to be treated as time barred under CPR 54.5(1) because of the legal uncertainty concerning the correct route he should take. However, it is far from clear whether legal uncertainty in these circumstances will constitute a ‘good reason’ for extending time under the Civil Procedure Rules: so that any future judicial review case will fall at the first hurdle. Assuming the Administrative Court reached the stage of deciding the case on common law grounds, it is equally uncertain whether Mr Kennedy will prevail.

The upshot is Mr Kennedy may yet find that he will need to obtain a ruling from the ECtHR concerning whether Art 10 entails a right of access to information- sooner that the Supreme Court appear to have assumed.

Richard Clayton QC practises from 4-5 Grays’ Inn Square and Kings Chambers, Birmingham and is an Associate Fellow at the Centre for Public Law, Cambridge University. He represented an intervener in Kennedy.

(Suggested citation: R. Clayton, ‘The Curious Case of Kennedy v Charity Commission’ U.K. Const. L. Blog  (18th April 2014) (available at:  http://ukconstitutionallaw.org/)).

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ALBA/UKCLA Seminar: Right to an Oral Hearing

UKCLA logoOn 14 May 2014 the UK CLA will hold its first joint seminar with ALBA ( the Constitutional and Administrative Law Bar Association). The topic addresses questions of procedural fairness  in relation to the right to an oral hearing.  The speakers are  Hugh Southey QC and Professor David Feldman, with Mr Justice Silber as Chair. The speakers will consider recent case law in which the courts have considered the circumstances in which fairness requires (and does not require) an oral hearing. The seminar will be held from 17.45-19.15, in Gray’s Inn, in the   Large Pension Room. 1½ CPD  points will be applied for. The seminar is free, but it is necessary to register in advance.  This can be done through the ALBA website  www.adminlaw.org.uk.

 

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Graham Gee: The Lord Chief Justice and Section 5 of the Constitutional Reform Act

graham-gee-webThe Constitutional Reform Act redrew relationships between the senior judiciary and Parliament in a number of ways. Amongst the most significant was removing the right of the LCJ to speak in the Lords. Earlier this month, the new LCJ Lord Thomas repeated the lament of his immediate predecessors that it was a mistake to deprive the LCJ of the right to address Parliament on the floor of the House on important matters relating to the administration of justice. In this context, some have read the LCJ’s suggestion of a new approach to s5 of the CRA as significant. Drawing on interviews conducted between 2011-13 as part of an AHRC-funded project on The Politics of Judicial Independence, I want to shed some light on tensions that have arisen about the use of s5.

Section 5

Under s5, each of the LCJ, the LCJ for Northern Ireland and the Lord President “may lay before Parliament written representations on matters that appear to [the officeholder] to be matters of importance relating to the judiciary, or otherwise to the administration of justice”. In debates ten years ago on the bill that became the CRA, the then LCJ and Lord Chancellor—Lord Woolf and Lord Falconer—both suggested that s5 would be used rarely and only for high profile matters of serious concern to the judiciary. Subsequently, both Lords Phillips and Judge appeared to confirm this by describing s5 as a “nuclear option” to be used only in the face of a serious threat to judicial independence or the rule of law. (See here and here). But, in practice, neither used s5 in this way, invoking it instead for the more humdrum matter of laying before Parliament periodic reports on the management of the judiciary. Behind this lies a surprising and even at times rather silly disagreement between senior judges and parliamentary authorities; or what an interviewee called “a storm in a teacup”.

“A Storm in a Teacup”

In late 2007 and early 2008, there were lengthy discussions between the LCJ, the Procedure Committee, the Journal Offices in the Commons and Lords and others about the most appropriate way of getting the LCJ’s reports before Parliament. At issue were rival interpretations of the proper scope and purpose of s5. Reversing his previous position, Lord Phillips now argued that s5 was not only to be used in “a crunch situation” to raise pressing issues of concern, but that it also supplied a statutory mechanism whereby the LCJ can lay periodic reports before Parliament. The clerks did not dispute that a report can be laid under s5, provided it contained “written representations”. Rather, they relied on statements by ministers and Lord Phillips himself to argue that s5 was only for raising serious concerns.

Driving the clerk’s arguments were rules regulating who has authority to formally “lay” papers in the Commons. Under these rules, ministers are effectively the only officeholders authorized to do so. (See this guidance from the Journal Office from April 2009). The clerks suggested instead that the Speaker and the Lords Speaker should place the report in the libraries of the Commons and Lords as a deposited paper on behalf of the LCJ. Lord Phillips initially agreed to this, only to change his mind shortly before publication of his first report, insisting that he should be able to lay his report independently, without relying on the Speaker, the Lords Speaker or anyone else. Lord Phillips’s eleventh-hour reversal surprised the clerks. As one interviewee observed, “it was frankly all a bit of shambles, and there was a lot of misunderstanding and a lot of crossed wires”. In the end, Lord Phillips invoked s5 to lay his report before Parliament, with this fact noted on the face of the report itself—although, as one interviewee told us, in reality what actually happened was that the report was laid before the House on his behalf by the Clerk of the House.

In 2009 Lord Judge’s officials approached clerks in the Commons to discuss using s5 to lay the then new LCJ’s report before Parliament, but they were “sent away with a flea in their ear”, leading to what an interviewee labelled “a bit of a tiff”. In 2010, Lord Judge issued his report, but without using s5. Subsequently he initiated negotiations with the House of Lords authorities, agreeing with them that in the future the Lords would accept reports issued under s5. Two years later, a similar agreement was reached with the Commons, and in both 2012 and 2013 the LCJ’s reports were laid before both Houses under s5.

This back-and-forth, together with all of the tensions and frustration it generated, is aptly described as “a storm in a teacup”. But like many a storm in a teacup, it reveals something about the actors involved as they fumbled to redefine working relationships following the 2005 changes. These relations have been redefined less in a systematic fashion, and more by touch-and-feel, with missteps along the way. These missteps resulted largely from a failure to understand the other’s concerns and anxieties. The judges underestimated the cautiousness of the clerks and their concern to protect Parliament’s privileges and customs. The clerks in turn did not adequately grasp the importance that senior judges placed on finding new ways of communicating with politicians, especially in light of changes to the role of Lord Chancellor. Matters were not aided by successive LCJs sending mixed messages on s5. Similar patterns can be seen in other aspects of judicial-legislative relations: some parliamentary officials feel that senior judges have sent mixed signals on the appropriate scope of questioning of judicial witnesses by select committees.

Relations are improving, with the agreement that was eventually reached over s5 evidence of this. And careful coordination is taking place on both sides to nurture mutual understanding of and respect for each other’s concerns. The previous LCJ, Lord Judge, and the current Clerk of the House of Commons, Sir Robert Rogers, are both more outward looking than their predecessors and have developed more frequent informal contacts. To aid a better mutual understanding, the Clerk of the House has begun holding regular informal meetings with the LCJ and President of the UK Supreme Court, where topics discussed have included sub judice, the use of parliamentary materials in court and parliamentary privilege. The new guidance from the Judicial Executive Board in 2012 on judicial appearances before select committees is in part a product of these contacts.

When should s5 be used?

The tone of his evidence before the Justice Committee earlier this month suggests that Lord Thomas wants to build on this more outward-looking approach. In his evidence, he referred to the enduring respect that exists between Parliament and the judiciary, but hinted at concern about a lack of understanding between them. It was in this context that the LCJ suggested that he took a different view on s5 than his predecessors, eschewing the description of it as a nuclear option. He did not elaborate on the circumstances in which he envisaged using s5, although it is safe to assume that he will continue to invoke s5 to lay reports before Parliament. Although it is sensible for the senior judiciary to search out new and fruitful ways of communicating with Parliament, s5 is best retained as a measure of last resort.

The reason can be simply stated: the LCJ already has a suite of tools available for articulating concerns to ministers, parliamentarians, lawyers or the public at large. These include monthly meetings with the Lord Chancellor and, in a fairly recent innovation, twice yearly meetings with the Prime Minister. As and when serious concerns arise, the LCJ can request an extraordinary meeting with the PM. This happened in 2001, when the LCJ and a team of senior judges went to 10 Downing Street and persuaded Tony Blair to abandon a planned reorganization in Whitehall under which responsibility for the courts would have shifted to the Home Office. Other tools include speeches, press conferences and appearances before select committees. Where bills concern the administration of the courts or constitutional matters pertaining to the judiciary, judges already routinely provide evidence—oral and written—to committees. The chairs of both the Commons Justice and the Lord Constitution Committees have indicated that the LCJ can approach them to request an urgent session to hear from the LJC on topics of serious concern to the judiciary. Under HMCTS’s Framework Document, special processes are now also available to the LCJ to raise concerns about court funding.

These tools will usually be sufficient for voicing judicial concerns. They will alert stakeholders, generate coverage in the press and often secure favorable results for the judges. Absent a real constitutional crisis, it is difficult to imagine what using s5 could add; almost always there will be more appropriate, and more effective, ways of highlighting judicial concerns short of submitting formal representations to Parliament. A prudent LCJ will engage with ministers in private first, and only slowly escalate the matter in public. When relations with government are proving troublesome, the LCJ must decide whether to raise a concern publicly, how and where, reflecting on whether putting ministers on the spot in public will advance the judicial cause over the long haul. Knowing how to advance judicial interests inside Whitehall and Westminster requires political judgment. Almost always the LCJ will be well advised to avoid escalating matters through s5. Above all, there is something to be said for having an identified measure of last resort recognized by ministers, MPs, peers and civil servants as a tool that the LCJ would only use in the most strained circumstances. Seeking to employ 5 as something other than a measure of last resort to be used only in the most serious circumstances ultimately risks undercutting its potency.

A Final Word on the LCJ’s Reports

There are more appropriate ways than s5 for ensuring that the LCJ’s reports are laid before Parliament. Only four such reports have been prepared over nearly 10 years. They offer a selective, high-level account of the stewardship of the judiciary, with their irregular frequency rendering it impossible to compare performance of the senior judiciary over time. Successive LCJs have resisted producing the reports annually on the grounds that it would be administratively burdensome. This seems a poor excuse given the wide array of management and leadership responsibilities exercised by, or in the name of, the LCJ. It seems that Lord Thomas now intends to issue reports annually. Talk is cheap: Lord Phillips made a similar commitment in 2007, only for his successor to resile from it. To ensure regular reports, the LCJ should be under a statutory duty to produce an annual report similar to that on the Senior President of Tribunals, except that it should include explicit statutory authority to enable the LCJ to lay reports directly with each House.

 

Graham Gee is a law lecturer at the University of Birmingham. In 2011-2013 he worked with Robert Hazell, Kate Malleson and Patrick O’Brien on an AHRC-funded project on The Politics of Judicial Independence.

 

 Suggested citation: G. Gee, ‘The Lord Chief Justice and Section 5 of the Constitutional Reform Act’ U.K. Const. L. Blog (14th April 2014) (available at: http://ukconstitutionallaw.org/).

 

 

 

 

 

 

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Jacob Rowbottom: McCutcheon and the US campaign finance laws: Responsiveness to money or people?

jacob-rowbottom-photoThe decision of the US Supreme Court in McCutcheon v Federal Election Commission represents another judicial gutting of American campaign finance laws. Following Citizens Unitedv Federal Election Commission (2010), the ruling makes another inroad into the law, with a 5-4 majority by finding a cap on the aggregate level of political donations to violate the First Amendment. The decision is of interest to those of us outside the US in highlighting different views about the role of free speech in the political system and the threats that money can pose to the integrity of that system.

Under American law, the amount that any person can donate to a candidate is capped at $2,600 per election (which means a maximum of $5,200 per candidate that is standing in a primary and general election). That limit remains in place. The decision concerned a law that capped the aggregate amount a person can contribute to multiple federal candidates at $48,000 and to other campaigning organisations (such as political action committees and party committees) at $74,600. This meant that individuals could donate a maximum of $123,200 to candidates and other campaign groups.

In the plurality opinion given by Chief Justice Roberts, the aggregate limits were found to violate the First Amendment. Part of his reasoning turned on the definition of corruption. In the case of Buckley v Valeo (1976), the Supreme Court had famously ruled that campaign finance laws cannot restrict speech rights in order to promote equal opportunities to influence elections. The definition of corruption in the US therefore became a high stakes question – if a broad definition is taken, then a wider range of campaign regulations can be justified.

The different views of corruption can be seen in the plurality and dissenting opinions. Justice Roberts followed a narrow view, which had been mentioned in Citizens United, which viewed corruption primarily as about quid pro quos and the appearance of such deals. By contrast, he thought corruption does not extend to ‘mere influence or access’ secured by large donations. Taking this position, Roberts argued that donating money is an important form of political participation, which ensures politicians remain responsive to the public. At the end of the opinion, he stressed this point after quoting Edmund Burke:

 

‘Constituents have the right to support candidates who share their views and concerns. Representatives are not to follow constituent orders, but can be expected to be cognizant of and responsive to those concerns. Such responsiveness is key to the very concept of self-governance through elected officials.’

On this view, representatives should listen to those that have expressed their support through a donation, just as he or she would listen to and meet volunteers on a campaign. Roberts reasoning seems to compare donations to other forms of participation that the First Amendment protects – though he does not challenge the distinction between contributions and expenditures drawn in Buckley v Valeo, and does not require a strict scrutiny standard for contributions controls (on which see the opinion of Justice Thomas). Roberts did not have to determine the standard of review for his conclusion, but the logic of the reasoning and emphasis on donations as participation suggests the issue may be revisited in the future. While the government has an interest in preventing corruption, Roberts argued that this should not be defined so broadly as to compromise this type of responsiveness.

In the dissenting opinion, Justice Breyer also stressed the role of political communications to make elected representatives responsive to the people. This, he argued, is the central reason why the First Amendment protects expression:

‘the First Amendment advances not only the individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters.’

Corruption, he argued, breaks this ‘chain of communication’ as elected representatives are diverted from considering the views of the people. The prevention of corruption is, therefore, not simply another countervailing factor to be weighed up against speech rights, but is ‘rooted in the First Amendment’. Unlike Roberts, Breyer thought the concern with responsiveness requires a view of corruption beyond quid pro quos. Even if no backroom deals are made, large donations can undermine this responsiveness if they ‘drown out the voices of the many’. In taking this view, Breyer treats donations as distinct from other types of participation. A representative should be responsive to the views of the people, and not direct their attention to those with the most economic resources.

Both Breyer and Roberts used the language of responsiveness, but they hold very different views about the role of political donations in the system. For Roberts, the election finance laws are the threat to responsiveness, while for Breyer it is the presence of big political spenders. Of the two, I find Breyer most convincing. Giving access and influence to donors is not simply a matter of showing gratitude to supporters – it allows the well resourced to buy themselves a seat at the table and secure a politician’s ear. The potential for corruption can occur in more subtle ways than direct deals. There is no reason to risk these more subtle types of threat to protect a form of participation that is available only to the very wealthy. Ultimately, what should politicians be responsive to: people or dollars?

Aside from this issue, the other major area of disagreement was whether the aggregate limits were necessary to prevent corruption even in the narrow sense – for example, can large donations to party committees generate a danger of a quid pro quo, and can large aggregate donations provide a loophole to circumvent the low contribution limits to individual candidates. In defending their positions, both the plurality and dissenters considered a number of complex arrangements that could be used to channel donations to an individual candidate in a system without aggregate limits. Roberts found the aggregate limit was not necessary and that other rules are effective in preventing circumvention. The dissenters took a more skeptical view of such controls. Again, I found Breyer to be more persuasive. The experience of campaign finance laws shows that loopholes are fully exploited, and there is no reason to expect any exception here.

What should we make of this decision in the UK? It underlines the radical difference in the free speech jurisprudence over the Atlantic. As I have shown earlier on this blog, the Article 10 ECHR jurisprudence accepts that expression can be restricted to promote equality of opportunity in political communication and prevent distortion, as well as to deal with corruption. The fierce debate about the rationale and the definition of corruption is therefore sidestepped under the ECHR, which is more permissive in relation to campaign finance. The case also underlines the different system of election regulation in the two countries. In the UK, there is not even a base limit on donations to candidates or parties, so the question of aggregate limits does not arise. While the US judges discussed the fear of very large donations going to candidates, that is has always been permissible in the UK.

Will this decision unleash even more money into future US elections? As many commentators have noted, there has been no shortage of funds in recent campaigns. Instead, some have wondered whether this decision means that more of the money will now flow to parties, rather than unregulated independent organisations. It is hard to know whether it will have such an effect. One certain effect of the decision is that it makes regulating money in American politics harder than ever. The question is which remaining parts of the system will be next to come under the Court’s scrutiny? One leading scholar believes that McCutcheon paves the way for a challenge to the controls on soft money contributions. Unless there is a fairly dramatic change to the composition of the court, more inroads into the law seem likely.

 

Jacob Rowbottom is a Fellow of University College and Associate Professor at the Faculty of Law, University of Oxford.  He is the author of Democracy Distorted (CUP 2010).

Suggested citation: J. Rowbottom, ‘McCutcheon  and the US Campaign Finance Laws: Responsiveness to Money or People?’ U.K. Const. L. Blog (9th April 2014) (available at  http://ukconstitutionallaw.org/).

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Stephen Tierney: Constituting Scotland: A Retreat from Politics?

stierneyRE-POSTED FROM DISCOVER SOCIETY.

The Scottish Government has recently announced its intention to introduce a draft Scottish Independence Bill into the Scottish Parliament which will set out an interim constitution for Scotland in the event of a Yes vote in September’s referendum. It will also describe the process by which a permanent written constitution will be drafted following the Scottish Parliament elections in 2016. The announcement by Deputy First Minister Nicola Sturgeon that this latter process will be participative and collaborative is to be welcomed, as is the Government’s commitment to the principle of the sovereignty of the people. In this article, however, I wish to challenge the modern inclination to embed more and more values beyond the reach of legislatures, arguing that popular sovereignty is best maintained by modest constitutional arrangements which leave as many policy choices as possible to elected parliaments.

As yet of course we don’t know what the final constitution will contain, but if Scotland does become independent it will do so at a time when more and more countries are opting for ever more elaborate written constitutional documents. It seems that this fashion is likely to rub off on any constitutional convention established to draft a Scottish constitution.

The Scottish Government in its White Paper, Scotland’s Future has already suggested that Scotland’s constitutional structure is likely to be radically different from the current unwritten arrangement of the United Kingdom, entrenching issues as specific as a minimum standard of living, a ban on nuclear weapons and environmental protections. In this desire it is not alone; many constitutional activists at UK level would love such an opportunity to turn the UK constitution into a rigid structure of supposedly settled values, and who knows, Scottish independence may well provide that opportunity should the break up of the state prompt a moment of fundamental constitutional reconstruction also at UK level.

I should say immediately that my argument is not against a written constitution for Scotland per se. In the event of independence some form of foundational written document will be needed to replace the Scotland Acts of 1998 and 2012; even if an unwritten constitution were considered desirable, it is simply impossible today to replicate the conditions under which the UK Parliament acquired its authority. The powers of the Scottish Parliament and Scottish Government will require to be defined, as will the court structure, its hierarchy and the limits of its jurisdiction. A proposal to make provision for local government (proposed by the White Paper) would also fit within this model of a limited, institution-framing constitution; all of which would serve as a democracy-facilitating rather than a democracy-constraining set of provisions. But is it necessary to go beyond such a minimal constitutional model which would still leave policy choices to the new parliament? A new constitution will be needed, but it does not require to contain detailed policy issues which should rightfully remain the preserve of the elected parliament.

Notably the White Paper anticipates a document that will collate a very broad range of principles and detailed policies. For example:

  • entitlement to public services and to a minimum standard of living;
  • protection of the environment and the sustainable use of Scotland’s natural resources;
  • a ban on nuclear weapons being based in Scotland;
  • rights in relation to healthcare, welfare and pensions;
  • children’s rights; and
  • rights concerning other social and economic matters, such as the right to education and a Youth Guarantee on employment, education or training.

And this captures only a few of the policy preferences that will be put on the table during any drafting process. Certainly all of these issues will be for any constitutional convention drafting the constitution to determine, but the very fact that the White Paper considers such detailed policies to be appropriate for constitutional protection will serve to invite others to put forward their particular agendas and preferences, and these may well find their way into a new constitution, no matter how specific, contingent and deeply contested they may be.

I would like to sketch very briefly six key concerns with such a detailed model of constitutional codification:

  • legitimacy
  • judicial supremacy
  • rigidity
  • the stifling of political debate
  • a marginalisation of the political power of citizens, and
  • the creation of a constitutional battleground.

First, it seems highly questionable from the perspective of democratic legitimacy that the first generation of post-independence Scots should take upon themselves the power to crystallise a broad range of current predilections – some of which may well be fads – as constitutional principles. This will immediately constrain the decision-making capacity of successive generations of voters across a potentially vast array of policy issues.

Secondly, by constitutionalising specific values and policies, the constitution will significantly ramp up the powers of judges. The authority to resolve disagreements which are currently matters of political deliberation will be handed to a small unelected group which is arguably both unsuited and, in democratic terms, unentitled to determine these issues.

Thirdly, such a constitutional arrangement would bring a radical transformation to the constitutional culture of the country itself. Scots would be leaving what is arguably the most flexible constitutional system in the world and creating potentially one of the least flexible. It is fashionable (mainly among academics) to criticise the UK constitutional system precisely because of its unwritten form and the concomitant privilege given to the Westminster Parliament as sovereign law-maker. But this model has worked very well over several centuries, allowing the UK body politic to adapt itself smoothly to new developments: the creation and amendment of the devolution settlements for Scotland, Wales and Northern Ireland since 1998, and the conclusion of the Edinburgh Agreement paving the way for the independence referendum, being good examples. The principle underpinning parliamentary supremacy is a sound one: it is for Parliament, elected by the people, to debate and determine how law should manage competing political and moral values. If Parliament later changes its mind, this legislation is open to amendment or repeal by the same process. A written constitution replaces this with a form of rigidity which could lead to constitutional stasis. Furthermore, we also don’t know how deeply entrenched the new Scottish constitution will be because the convention which will draft the constitution will no doubt also determine its amendment procedure. But there is now a tendency around the world to make certain constitutional provisions virtually unamendable. At the very least, any issue given constitutional protection in a new Scottish state will be very hard to shift; that after all is the point of constitutional entrenchment. One mechanism which does serve to keep the people involved in constitutional deliberation is the referendum. It will be interesting to see what role, if any, is intended for referendums in the process of constitutional amendment under any new arrangements.

Beyond this, there is a danger that a highly detailed constitution can serve to supplant, and in so doing foreclose, political debate. Later attempts to amend issues which have been accorded constitutional protection will not only be difficult in practical terms but could be burdened with the stigma of illegitimacy. A constitution is not, after all, merely a regulatory device. It sets out the values of the state (particularly when it is a new state), and in doing so can help to shape the public identity of citizens. Once something is entrenched in a constitution it can become reified as a moral principle that transcends transient policy choices; extolled as a metaphysical value, the merits of which are rendered unimpeachable and to which citizens are called upon to owe unswerving allegiance. To campaign to amend such principles can lead to charges of disloyalty to the constitution and the political system itself. Incidentally, another recent move is to suggest that all holders of public office must pledge allegiance to the constitution and to its provisions: this is a particularly pernicious innovation, presenting the constitution as modern day Test Act, transforming dissent into heresy. It is to be hoped that this form of intolerance will be disavowed in any move towards a constitution for Scotland.

This raises a fifth issue: why do so many issues need to be entrenched beyond the decision-making competence of ordinary citizens? If matters of wealth distribution, international responsibility and good environmental policy are the preference of a majority of right-thinking people, why not leave it to the Scottish Parliament to legislate in these areas? Is there a failure of trust in the capacity of the people and/or the Parliament of an independent Scotland to make the right decisions? The rush to elevate so many issues beyond the realm of the political would seem to demonstrate a lack of confidence in a new country. Should the first step after ‘independence’ really be a detailed circumscription of the areas over which the Scottish people can, from generation to generation, determine and re-determine their own policies, in order to ‘protect’ them from their own ignorance or poor judgment? If Scots are fit for self-government then surely they are big enough and old enough to build their future through the rough and tumble of the political process.

A final danger is that if a signal is sent that the constitution is intended to micro-manage political and moral values then the constitution-drafting process could well become a battle for the soul of the country. The birth of the state could lead to a culture war resulting in a sharp delineation between victors and losers, and in turn leaving a large number of people feeling excluded from an elaborate, highly specific and deeply partial vision of national identity solidified in the constitution. Such a dispute could be just as acute, or indeed more acute, than the referendum campaign itself. It is not hard to imagine that certain pressure groups will be glad for the opportunity to see their own value preferences privileged within a constitution, placing these beyond the opposition of a simple majority of the people or their elected representatives. This, as I say, is a parlous game and a potentially undemocratic (as well as an entirely avoidable) one. It risks the drafting process being heavily influencedby the most vocal and best organised interest groups, including those which cast their opponents not only as wrong but as bad, thereby inhibiting debate and claiming that political victories which they manage to achieve are thereafter morally unquestionable and immune from any residual dissensus. By this construction it is not in reality the founding generation that gets to play for keeps, but rather activist elites within this generation which may well be both unelected and unrepresentative.

What then of the proposed process by which such a detailed constitution will come about? Until the Scottish Independence Bill is published we must rely upon the White Paper which suggests that a constitutional convention will ‘prepare the written constitution’ following the elections to the Scottish Parliament of May 2016 (some six weeks after Independence Day, set for 24 March). As yet we don’t know much about the proposed convention other than that it is intended to be ‘open, participative and inclusive’ and that the new constitution ‘should be designed by the people of Scotland, for the people of Scotland’. Given the potential that a highly detailed document will emerge from this convention, the composition of this body, who decides on its composition, how it deliberates and how it reaches decisions will each be a vital, and potentially deeply contentious, issue. We should watch keenly to see how the Scottish Independence Bill approaches these issues.

Independent statehood will itself be a massive step. Citizens will have to reorient their focus away from Scotland’s relationship with the UK political system, addressing one another in all their diversity as co-authors of a new polity. It should be a time for modesty and moderation, to take stock and consider the future carefully, to respect other views, to accommodate the deep differences that have always marked Scottish society but which have not been fully vocalised during a period in which attention was diverted from internal identities towards external influence. It will also be a time to heal divisions that may still be sensitive following the referendum campaign. I would counsel against rushing into an expansive process of constitution-building. Once the essential organs of government have been established, why not leave the democratic will of the people, expressed through their Parliament, to shape policy for the new state? It seems strange that the newly won autonomy of an independent people should be immediately truncated by the deep entrenchment of a highly partial set of policy preferences. The September referendum in itself encapsulates the spirit of vernacular politics – letting the people decide. If independence comes about, why would we abandon this inheritance?

 

Stephen Tierney is Professor of Constitutional Theory at the University of Edinburgh and Director of the Edinburgh Centre for Constitutional Law.  He is currently ESRC Senior Research Fellow under theFuture of the UK and Scotland programme. His book Constitutional Referendums: The Theory and Practice of Republican Deliberation has just been released in paperback by Oxford University Press.

Suggested citation: S. Tierney, ‘Constituting Scotland:  A Retreat from Politics?’ U.K. Const. L. Blog (8th April 2014)  (available at  http://ukconstitutionallaw.org/).

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