The 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.
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/).
The 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/).
RE-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:
- judicial supremacy
- 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/).
On 21 February 2014, Mr Justice Sweeney ordered a stay in the proceedings against John Anthony Downey, who had been charged with four counts of murder and one of doing an act with intent to cause an explosion. The charges related to the 1982 Hyde Park bombings. This post briefly explores the judgment’s constitutional significance.
Mr Downey was one of the so-called “on the runs” (or “OTRs”), that is, persons suspected of but not charged with offences relating to the Troubles, or persons charged who thereafter escaped, or persons charged and convicted who thereafter escaped. In accordance with the Good Friday Agreement, the Northern Ireland (Sentences) Act 1998 made provision for early release of some prisoners then serving sentences for offences relating to the Troubles. However, no such provision extended to the OTRs. Sinn Fein argued this was an anomaly, and the British Government, at first in private but then in public, agreed.
In an attempt to deal with the anomaly, the Government developed an “administrative scheme” whereby the authorities would review a list of names put forward by Sinn Fein, with a view to determining if there was sufficient evidence to prosecute and perhaps also whether any prosecution would be in the public interest. Successive Attorneys-General noted that there could be no amnesty apart from legislative action and that no decision to prosecute could be made about a class of person as opposed to some particular case. Reviewing the evidence in each case proved tricky, such that the focus shifted instead to whether the person was wanted by any police force in the United Kingdom.
The Government proposed a kind of amnesty by way of the Northern Ireland (Offences) Bill, introduced to Parliament in November 2005. However, the Bill was widely opposed, with even Sinn Fein, which had agitated for its introduction, withdrawing support in view of its extension to security personnel. Having withdrawn the Bill, the Government returned to the administrative scheme, reviewing the position of each of the remaining OTRs, including Mr Downey, and sending to some a standard letter to this effect:
“The Secretary of State for Northern Ireland has been informed by the Attorney General that on the basis of the information currently available, there is no outstanding direction for prosecution in Northern Ireland, there are no warrants in existence nor are you wanted in Northern Ireland for arrest, questioning, or charge by the police. The Police Service of Northern Ireland are not aware of any interest in you from any other police force in the United Kingdom. If any other outstanding offence or offences came to light, or if any request for extradition were to be received, these would have to be dealt with in the usual way”.
In 2007, such a letter was sent to Mr Downey. The letter was in error because in fact he was still wanted by the Metropolitan Police in relation to the Hyde Park bombings. Mr Justice Sweeney termed the error in question “catastrophic”, at , and understandably much attention has been paid to the error, which remains somewhat mysterious. Having received this letter, Mr Downey travelled within the United Kingdom a number of times, before being arrested in May 2013, passing through Gatwick Airport.
Much of the judgment’s 57 pages concern the background to the administrative scheme in general and the position of Mr Downey in relation to the scheme in particular. The main legal question concerned whether it would be an abuse of process to allow the prosecution to proceed, viz. whether “it offends the court’s sense of justice and propriety to try the accused in the particular circumstances of the case” (R v Maxwell  1 WLR 1837, per Lord Dyson at ). Mr Justice Sweeney noted, at , but did not analyse in detail, the various cases on abuse of process which turn on breach of a promise not to prosecute. In a critical passage, at , he reasoned that while “the public interest in ensuring that those who are accused of serious crime should be tried is a very strong one”, in this particular case:
“it seems to me that it is very significantly outweighed in the balancing exercise by the overlapping public interests in ensuring that executive misconduct does not undermine public confidence in the criminal justice system and bring it into disrepute, and the public interest in holding officials of the state to promises they have made in full understanding of what is involved in the bargain”.
There is to be no appeal, which the Attorney-General maintains would certainly fail. However, the First Minister of Northern Ireland, Peter Robinson, has been “incandescent with rage” on hearing about the administrative scheme (the relative secrecy of which is disputed), and his threat to resign has prompted the Prime Minister, David Cameron, to announce an inquiry into the scheme, to be led by Lady Justice Hallett.
The administrative scheme seems to me in urgent need of close examination, for which the stay of proceedings has been the spur. Still, it seems to me a pity that there is to be no appeal for, with respect to the Attorney-General, the decision was certainly contestable.
Consider again the reasoning of Mr Justice Sweeney, which turns, without extensive elaboration, on the public interest in (a) ensuring that executive misconduct does not undermine public confidence in criminal justice and (b) in holding officials to promises they make. The abuse of process jurisdiction is not disciplinary, but the gravity of executive wrongdoing is relevant, for that gravity goes to the integrity of the resulting trial and thence to public confidence in the justice system. What was the executive misconduct here? It was incompetence in relaying (and correcting a misstatement about) the facts about the interest other police forces had in Mr Downey. There was no intention to deceive, no sharp practice, no unconscionable treatment of the defendant. The misconduct may well shake public confidence in the criminal justice system – but only because it has resulted in Mr Downey’s effective immunity to prosecution by reason of the stay. Absent that consequence, I suggest that the incompetence in question would be thought problematic but not such as to undermine public confidence. However, perhaps public confidence is merely the label one gives to any process that would be disreputable or otherwise unconscionable. That is: the actual confidence of the actual public is irrelevant.
Was prosecution in this case disreputable, unconscionable? It is hard to see how if the executive misconduct was incompetence in communicating facts about the intentions of other police forces, facts to which the person in question had no lawful right and on which he was not lawfully entitled to place any reliance. The judgment turns instead, it seems to me, on tacitly characterising the misconduct in question to be no mere incompetence in conveying facts but rather to be the making and breaching of a promise not to prosecute. Mr Justice Sweeney, at , takes Mr Downey – like all the other recipients of the standard letter – in effect to have been unequivocally assured that unless new facts came to light he would not be prosecuted in relation to offences predating the Good Friday Agreement. The letter would seem to state no such thing, but it is plausible that it may have been intended to convey this and to have been understood to convey as much.
Say the point of the letter was to promise Mr Downey (as with others who received similar letters) that he would not be prosecuted. It is not obvious that this is a promise that the court should respect, which it should effectively enforce by way of its jurisdiction to avoid an abuse of its processes. The discretion to prosecute may of course be exercised so as not to prosecute, if, after considering the sufficiency of evidence and the public interest, the prosecutor chooses to refrain from exercising his or her legal power to initiate proceedings. However, apart from any statute of limitations, this exercise of the discretion does not extinguish the continuing legal power to initiate proceedings, which may be exercised quite apart from the discovery of any new evidence. Enforcing a promise not to prosecute is to uphold a fetter on what should be a continuing discretion. (I note also that enforcing the promise in this case may permit officials in Northern Ireland to bind prosecutors in England; perhaps the unity of Her Majesty’s Government supports this outcome, although it may be hard to square with the constitutional position of prosecutors in England.)
Is there not then a public interest in holding officials to the promises they make “in full understanding of what is involved in the bargain”? Here, there was no “bargain”, not only because the relevant officials were mistaken about the relevant facts but also because there was no exchange. Nothing was required of Mr Downey in exchange for this “promise” nor was anything undertaken. The judgment mentions that he was a supporter of the peace process, but such support was not a quid pro quo of immunity. And there would be very real dangers to the rule of law in respecting such bargains not to prosecute. True, there are cases in which breach of a promise not to prosecute has been held to be an abuse of process, but those cases involve detrimental reliance. The reliance in this case was Mr Downey’s entry into the jurisdiction in the mistaken belief that he was not wanted by the police. This is sharply different to volunteering evidence that incriminates oneself or cooperating with the authorities in a way that risks life and limb or is otherwise costly. The present case is analogous instead to coming out of hiding – ceasing to flee the reach of the law – in the mistaken belief that proceedings will not be initiated. The law should have no respect for any such “reliance” and the extra-territorial dimension here does not change matters.
The situation would be different had the promise in question been a deception intended to lure the defendant out of hiding or into the jurisdiction, for in that case the judicial process would plausibly be thought to be being abused, to rest on unconscionable executive conduct. The matter might remain finally balanced for recall that the jurisdiction is not disciplinary and the public interest in prosecuting serious crimes may (and should) often be decisive.
There was never any executive power to provide an amnesty for the OTRs or anyone else. The Government’s efforts to secure an amnesty by legislation failed, hence it may have attempted to square the circle by way of an administrative scheme that provided information to the OTRs about prosecutorial decisions already made or about the intentions of police forces but which did not amount to an assertion of immunity. The irony of this judgment would seem to be that it in effect confers on the executive a legal power to realise an amnesty apart from legislative action: the act of assuring someone that he will not be prosecuted, notwithstanding the absence of any power to grant an immunity to prosecution to that person, has the effect that he cannot lawfully be brought to trial.
Perhaps Mr Justice Sweeney was right to stay these proceedings and perhaps the Attorney-General was right that any appeal against that judgment must fail. All the more reason then, one might say, to review urgently the administrative scheme with a view to securing the rule of law and to avoid instituting or maintaining an unlawful amnesty by way of the courts’ jurisdiction to avoid an abuse of process.
Richard Ekins is an Associate Professor in the University of Oxford and the TC Beirne School of Law, University of Queensland.
Suggested citation: R. Ekins, ‘Amnesty and Abuse of Process’ U.K. Const. L. Blog (3rd April 2014) (available at http://ukconstitutionallaw.org/).
CROSS-POSTED FROM THE I.CONNect BLOG.
A dispute over the legality of a politically questionable judicial appointment has resulted in what pundits call a stinging defeat for Canada’s prime minister and a bold assertion by the Supreme Court of Canada of its independence and constitutional status.
Recently, in Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, the Court advised that Conservative Prime Minister Stephen Harper’s appointment of the Honourable Mr. Justice Marc Nadon to the Supreme Court of Canada was void. He had been sworn in five months earlier. On a six-judge majority’s reading of the Supreme Court Act, Justice Nadon was unqualified to fill one of three spots reserved for jurists trained in the law of Quebec. Quebec is the federation’s sole civil-law jurisdiction and the only province with a French-speaking majority.
In addition, the Court opined that the Parliament of Canada’s ex post amendments to the Supreme Court Act purporting to clarify that Justice Nadon was eligible were unconstitutional. They amounted to a constitutional amendment requiring the unanimous consent of Parliament and all provinces.
While many had criticized the political wisdom of the prime minister’s selection of a semi-retired judge on nobody’s shortlist, the constitutional issues turn on the interpretation of the Supreme Court Act and of the country’s constitutional amending formula.
General qualifications for appointment appear in section 5 of the Supreme Court Act. It refers to current and former judges and to a person who “is or has been” a lawyer of at least ten years standing at the bar of a province. The controversy bore on section 6’s specification that three justices be drawn “from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province.” Justice Nadon came instead from the Federal Court of Appeal. Although formerly a member of the Quebec Bar for more than ten years, he was no longer a member. Using a process set out in the Supreme Court Act, the federal executive referred questions to the Court for its opinion.
The validity of the initial selection of Justice Nadon turned on the relationship between the Act’s general and specific provisions and the significance, if any, of the different wording in sections 5 and 6 (“is or has been,” “among”). The majority of the Court concluded that Quebec appointments needed to be current judges of the named Quebec courts or current members of the Quebec Bar. Those judges stated the primary basis for their decision to be the Act’s plain meaning and the differences in wording. A single judge dissented.
It is striking for an apex court—even when the government asks it to weigh in—to reject an appointment to its ranks on the basis that the government had misinterpreted the relevant statute. But the Court went further. It grounded a formalistic exercise of statutory interpretation turning on the niceties of “is or has been” versus “among” in the historic compromise guaranteeing one-third of the Court’s judges to Quebec. For the majority justices, their interpretation of section 6 advanced the “dual purpose of ensuring that the Court has civil law expertise and that Quebec’s legal traditions and social values are represented on the Court,” maintaining that province’s “confidence” in the Court (para. 18).
Exaggerating the opinion’s political salience would be difficult. At a moment when Quebec is governed by a separatist party, and less than three weeks before Quebecers vote in a provincial general election, the Supreme Court of Canada explicitly declared itself to be an institution that guarantees a voice for Quebec’s “social values” in federal institutions. Commentators read the entire judgment as a declaration of the Court’s independence from a prime minister and executive perceived as disdainful towards democratic institutions and tone-deaf regarding Quebec. By implication, the majority’s reasoning made the choice of Justice Nadon not only formally invalid, but also substantively disrespectful of Quebec. One can speculate on the depth of the majority’s commitment to this substantive point by asking whether it would have upheld the appointment had the federal government named Justice Nadon to an eligible Quebec court the day before appointing him to the Supreme Court.
The opinion’s most enduring contribution, though, arises from its answer to the question concerning Parliament’s attempt to amend the Supreme Court Act. Parliament had created the Court by statute in 1875. The Court did not replace the Judicial Committee of the Privy Council as the federation’s tribunal of last resort for nearly three-quarters of a century. In its final legislative exercise for Canada, the Parliament of the United Kingdom brought into life the Constitution Act, 1982. The latter lists instruments that the Constitution of Canada includes, but does not mention the Supreme Court Act. Nevertheless, the new constitutional amending formula refers twice to the Supreme Court. The Court appears among the “matters” amendable by Parliament with the consent of a majority of provinces. Its “composition” figures among the “matters” amendable only on unanimous consent of Parliament and the provinces.
In opining that Parliament’s attempt to modify the Supreme Court Act to clear the way for Justice Nadon was unconstitutional, the majority stated that reference to the Court’s “composition” in the amending formula constitutionalized sections 5 and 6 of the Act. By implication, it also constitutionalized the Court’s continuing existence, “since abolition would altogether remove the Court’s composition” (para. 91). The majority added that the more general reference to the Court constitutionalized its “essential features … understood in light of the role that it had come to play in the Canadian constitutional structure by the time of patriation” (para. 94). In effect, the amending formula drastically reduced the scope for change to the Supreme Court by ordinary federal statute.
Moreover, the Court confirmed that the sources of the Constitution of Canada now include not only the previously known hodge-podge of royal proclamations, imperial statutes and orders in council, federal statutes, and unwritten principles. Those sources also include parts of another federal statute, the Supreme Court Act—some provisions identified by number as well as whatever might in future be determined to embody the Court’s “essential features.” Indeed, by referring to the “role” that the Court has come to play, the majority judges hint that the Court’s constitutionalized features may not track directly to specifiable legislative provisions, instead arising from practice. Presumably the same applies to other institutions that the amending formula constitutionalized, such as the Senate of Canada, on which the Court will pronounce in due course.
Whatever the political fallout for the prime minister, the Court’s advisory opinion merits careful attention by those who study sources of constitutional law, amending formulae, and how institutions’ constitutional status may change over time.
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 Bills of Rights in the Common Law on the following dates in 2014: 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: Robert Leckey, Constitutionalizing Canada’s Supreme Court, Int’l J. Const. L. Blog, Mar. 25, 2014, available at: http://www.iconnectblog.com/2014/03/constitutionalizing-canadas-supreme-court or R. Leckey, ‘Constitutionalizing Canada’s Supreme Court’ U.K. Const. L. Blog (1 April 2014) (available at http://ukconstitutionallaw.org/)).