Category Archives: Comparative law

Greg Weeks – Comment on Australia: School Chaplains and Commonwealth Funding

Gregory WeeksRon Williams, a father of four from Queensland, brought a case before the High Court in 2012 which argued that the National School Chaplaincy Program (NSCP) was constitutionally invalid, as was the agreement between the Commonwealth and Scripture Union Queensland (SUQ) under which the funds for the NSCP were administered. Mr Williams’ children attend a public school and his concern was in essence that the NSCP violated the separation between church and state. His challenge was reported as Williams v The Commonwealth (2012) 248 CLR 156 (‘Williams (No 1)’).

Before the High Court, his primary argument was that the NSCP was in breach of s 116 of the Constitution, which prohibits the Commonwealth from making:

any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

He failed comprehensively on this ground, since none of the elements of s 116 were made out and, in any case, the chaplains had been hired by SUQ and therefore did not hold an “office … under the Commonwealth” (Williams (No 1) at [109]).

Given the completeness of Mr Williams’ failure on the point of central concern to him, there is some irony to the fact that he won a far-reaching and highly influential victory over the Commonwealth in Williams (No 1). That victory has now been compounded with his success in Williams v Commonwealth of Australia [2014] HCA 23 (‘Williams (No 2)’). This post will explain both decisions, which come down to the point that, while the Commonwealth was entitled to put chaplains into public schools, the funding arrangements by which they did so were invalid.

The decision in Williams (No 2) is the latest in a series of statements from the High Court about the extent of, and limits to, the spending power of the Commonwealth government. In Pape v Commissioner of Taxation (2009) 238 CLR 1, a majority of the High Court held that s 61 of the Constitution, which reposes powers in the Commonwealth executive which go beyond “the prerogative”, allowed the Commonwealth government to legislate for a response to the Global Financial Crisis using the express incidental head of legislative power. Every member of the Court further concluded that no substantive spending power is conferred by ss 81 and 83 of the Constitution, a conclusion that the High Court now says was more important than the Pape Court’s division of opinion as to the coverage of s 61.

Williams (No 1) refined what had been said in Pape about the operation of s 61. The Court rejected the Commonwealth’s claim that it possessed contractual power equivalent to its legislative capacities under s 51 of the Constitution and that it had all the powers of a natural person, thereby rejecting the “Ram doctrine”, which has continued to have its correctness assumed in recent UK cases. The arrangements under which the Commonwealth had entered into contracts for the provision of chaplaincy services and spent money to perform its obligations under those contracts were held to be invalid in Williams (No 1) because they were not supported by the executive power under s 61. A key element in this result was that:

the Commonwealth parties …did not submit that making the funding agreement in issue, or the payments for which it provided, was supported by those aspects of executive power which might be referred to loosely as the Executive’s power to deal with or respond to a national emergency (considered in Pape) or other matters of the kind commonly grouped under the heading ‘nationhood’. (Williams (No 2) at [23])

Importantly for the third matter in this series, both Pape and Williams (No 1) had indicated that expenditures in reliance on the “appropriations power” in s 81 would be invalid. As the majority in Williams (No 2) have summarised the position:

[T]he premises which underpinned the decision [in Williams (No 1)] … were established in Pape.  They are, first, that the appropriation of moneys in accordance with the requirements of ss 81 and 83 of the Constitution does not itself confer a substantive spending power and, second, that the power to spend appropriated moneys must be found elsewhere in the Constitution or in statutes made under it. (Williams (No 2) at [25])

The Commonwealth had responded to Williams (No 1) by rushing through legislation (the Financial Framework Legislation Amendment Act (No 3) 2012 (Cth)) with the support of the opposition and minor parties. The amending legislation aimed to protect schemes which the government believed to be threatened as a result of the High Court’s decision in Williams (No 1) and was clearly intended to allow the government to continue much as it always had, with several sections specifically “reserved” for grants yet to be made. Otherwise, it simply listed grants and schemes, with the intention of making them Williams-proof by placing what were previously executive schemes on a legislative footing, rather than simply making the necessary payments following the passage of an Appropriations Act. In Williams (No 2), the Court left open the question of whether the relevant Appropriation Acts “are to be construed as providing statutory authority to make either the funding agreement or any of the payments in issue in this proceeding” but noted that, if they do, “the same questions about the validity of the relevant provisions (in that operation) are presented as arise in relation to the other statutory provisions said to support the making of the relevant payments and agreement” (Williams (No 2) at [55]).

In Williams (No 2), Mr Williams successfully challenged the validity of the amending legislation, s 32B of the Financial Management and Accountability Act 1997 (Cth), and Part 5AA and Schedule 1AA of the Financial Management and Accountability Regulations 1997 (Cth). The Court held that all that it was required to consider in this case was whether any of the “impugned provisions” is supported by a head of legislative power within s 51 of the Constitution. The Commonwealth and SUQ argued that the impugned provisions were relevantly supported by s 51(xxiiiA) of the Constitution, which empowers the Commonwealth Parliament to legislate with respect to “the provision of … benefits to students”.

The amending legislation had inserted the following “objective” into Sch 1AA of the FMA Regulations:

To assist school communities to support the wellbeing of their students, including by strengthening values, providing pastoral care and enhancing engagement with the broader community

The joint judgment held that the reference to providing “benefits” to students in s 51(xxiiiA) is about more than conferring advantages in a general sense. Without attempting to define comprehensively what is encompassed within the constitutional expression “benefits to students”, the joint judgment observed that it:

cannot be construed piecemeal.  That is, the expression is not to be approached as if it presented separate questions about whether there is a ‘benefit’ and whether that ‘benefit’ is provided to or for ‘students’. (Williams (No 2) at [45])

The joint judgment held that the meaning which had been attached to the word “benefits” in other cases to have considered s 51(xxiiiA) did not apply to the provision of school chaplains, because:

Providing those services does not provide material aid to provide for the human wants of students.  It does not provide material aid in the form of any service rendered or to be rendered to or for any identified or identifiable student.  There is no payment of money by the Commonwealth for or on behalf of any identified or identifiable student.  And the service which is provided is not directed to the consequences of being a student.  There is no more than the payment of an amount (in this case to an intermediary) to be applied in payment of the wages of a person to “support the wellbeing” of a particular group of children:  those who attend an identified school.  And the only description of how the “support” is to be given is that it includes “strengthening values, providing pastoral care and enhancing engagement with the broader community”.  These are desirable ends.  But seeking to achieve them in the course of the school day does not give the payments which are made the quality of being benefits to students. (Williams (No 2) at [47])

This reasoning draws a distinction between providing benefits on the one hand and providing funds to pay persons to provide services on the other. Crennan J agreed with the joint judgment as to the result of the case, but held that it was unnecessary for the Court to “conclude, or to imply, that the services of student welfare workers or student counsellors could not be the subject of a federal government scheme for “the provision of … benefits to students”, within the scope of s 51(xxiiiA)” (Williams (No 2) at [111]). Rather, her Honour held that “s 51(xxiiiA) is a plenary power which should be given a wide and liberal interpretation” and “construed with all the generality which the words used admit” (Williams (No 2) at [106]-[107]).

The Commonwealth courageously – in the sense immortalised by Sir Humphrey Appleby – elected to argue that Williams (No 1) should be reopened (and overturned). Given that five of the judges who decided Williams (No 1) also sat in Williams (No 2), and further given that the High Court has shown a marked distaste for overturning even previous decisions of the Court with which it now disagrees, this approach never looked likely to succeed. The manner in which it was dismissed by the joint judgment came as no surprise. It first noted that Williams (No 1) built directly on Pape (which the Commonwealth did not seek to reopen) and went on to note that, to the extent that Williams (No 1) did not “answer … every question that may be asked about Commonwealth expenditure powers”, it had “decided the issues which were tendered for decision in the case” (Williams (No 2) at [64]). To the extent that the Commonwealth attempted to relitigate Williams (No 1) by stealth, it was equally unsuccessful (Williams (No 2) at [69]).

Williams (No 2) adds to what the High Court had already said about Commonwealth spending powers in Pape and Williams (No 1). However, in a sense, what it adds is a proposition so simple that every undergraduate student of Federal Constitutional Law would consider it trite: the Commonwealth’s legislative provisions were invalid simply because they were unsupported by any Constitutional head of legislative power. At a broader level, Williams (No 2) marks the failure of the Commonwealth’s attempt to prop up a large number of schemes purportedly funded under s 61 prior to Williams (No 1). However, Mr Williams’ dual victories may yet be Pyrrhic. The Commonwealth government may yet seek to fund State-based school chaplaincy programs through financial grants to the States under s 96 of the Constitution, which states that ‘… the Parliament may grant financial assistance to any State on such terms and conditions as the Parliament thinks fit.’

Such a grant would be substantially more difficult to challenge than either of the funding schemes in Williams (No 1) and Williams (No 2). Mr Williams’ war was always about the separation of church and state, rather than about the ways that the Commonwealth may validly spend money. Having won two High Court battles, he may yet lose the war.

  Greg Weeks is a Lecturer in the Faculty of Law, University of New South Wales, a Member of the Gilbert + Tobin Centre of Public Law, and Member of the Andrew and Renata Kaldor Centre for International Refugee Law.  He is the United Kingdom Constitutional Law Blog’s Australia Correspondent.

(Suggested citation: G. Weeks, ‘School Chaplains and Commonwealth Funding’ U.K. Const. L. Blog (19th June 2014) (available at  http://ukconstitutionallaw.org/)).

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David Erdos: Mind the Gap – The CJEU Google Spain Judgment Profoundly Challenges the Current Realities of Freedom of Expression and Information Online

david.erdosCROSS-POSTED FROM OPENDEMOCRACY.NET.

The European UnionData Protection Directive of 1995 has always had lofty, and in many ways implausible, ambitions. As regards the private sector, it seeks to outlaw the input, storage or other processing on computer of any information relating to a living individual “data subject” (irrespective of whether the information is innocuous and/or widely available in the public domain) unless in each and every case that processing complies with a set of provisions put in place to ensure the protection of “the fundamental rights and freedoms of natural persons, and in particular their right to privacy” (Art. 1 (1)).

Subject to certain qualified and limited exemptions, that code requires that all data “controllers” – that is anyone who either “alone or jointly” determines the “purposes and means” of processing (Art. 2 (d)) – comply with a set of detailed rules designed inter alia to ensure fairness and transparency for the data subject and, in most circumstances, to completely outlaw processing of whole categories of “sensitive” information (for example regarding political opinion, religious belief and criminality) absent the subject’s explicit consent or unless this information is currently being manifestly made public by her (which may be taken as an albeit very tenuous kind of implicit consent) (Arts. 8, 10, 11 and 12).

In terms of legal principle, this code should have deeply structured the entire architecture of publication and dissemination of information on the World Wide Web. And yet, long before even the advent of Web 2.0, it was clear that the Web was largely operating according to an almost diametrically opposed understanding, namely, that information – in particular, publicly-available information – should, except in extraordinary circumstances, be “free”. This ethic is certainly at the heart of Google’s operations – indeed, its public mission is “to organise the world’s information and make it universally accessible and useful”.

The recently handed down Court of Justice of the European Union (CJEU) decision of C-131/12 Google Spain, Google v Agencia Espanola de Protection de Datos (2014) brings into stark relief the chasm between these two different understandings. The case originated from an attempt by a Spanish individual to use Spanish data protection legislation to get Google to delete from its search engine publicly available information relating to his bankruptcy from over ten years previously. His case, along with some 200 or so others, received the backing of the Spanish Data Protection Authority.

Google, however, contested liability on the basis that (i) it was not subject to Spanish law, (ii) it was not a “controller” of the processing and (iii) that making it comply would have a chilling effect on fundamental rights. Whilst many of these arguments received support in the advisory Advocate General Opinion of last June, the CJEU has now strikingly rejected all three. In sum it held that:

* Google search engine was bound to comply with Spanish law since the activities of its advertising subsidiary (Google Spain), unquestionably established on Spanish territory, were “inextricably linked” to the search engine itself (at 56). Therefore, all the processing was carried out “in the context of the activities” of the Spanish subsidiary. (As an aside, this implies that European Data Protection Authorities have been wrong to hold that Facebook is only subject to Irish law and can therefore ignore the data protection provisions of all the other 28 EU Member States).

* Google was clearly determining the “purposes and means” of processing data as it was deciding to create a search engine (at 33). It therefore was a “controller”. It was not relevant that the data in question had “already been published on the internet and are not altered by the search engine” (at 29).

* Far from constituting a chilling effect on fundamental rights, placing responsibilities on Google was essential to securing the “effective and complete” protection of data subjects’ rights and freedoms envisaged by the Directive (at 38). This was particularly the case since inclusion of information on a list of search engine results “may play a decisive role in the dissemination of that information” and “is liable to constitute a more significant interference with the data subject’s fundamental right to privacy than the publication on the web page” (at 87).

What was particularly striking and unexpected was that the Court went out of its way to enunciate both the ambit and substantive duties of Google in an even more expansive way than that suggested by the Spanish Data Protection Authority (DPA). As its Press Release following the judgment indicated, the Spanish DPA’s argument was limited to the idea that it was only on being asked by the data subject to remove material that Google became liable under data protection law. Moreover, Google would only have to accede to a “right to be forgotten” if its dissemination lacked “relevance or public interest” and was “causing harm to the affected individual”. On each of these aspects, however, the understanding of the CJEU was much broader.

Firstly, the Court stated that a search engine would be a controller not as a result of receiving a data subject request but merely because it was “processing” on its own behalf or, in other words, collecting and disseminating information from the web. It followed that:

Inasmuch as the activity of a search engine is … liable to affect significantly, and additionally, compared with that of publishers of websites, the fundamental rights to privacy and to the protection of personal data [as noted above, the Court found that this would often be the case], the operator of the search engine … must ensure, within the framework of its responsibilities, powers and capabilities, that the activity meets the requirements of [Data Protection] Directive 95/46 in order that the guarantees laid down by the directive may have full effect and that effective and complete protection of data subjects, in particular of their right to privacy, may actually be achieved. (at 38)

Secondly, the Court stated that there could be a valid opposition to the search engine’s inclusion of personal data irrespective of whether inclusion in the search engine results “causes prejudice to the data subject” (at 96).

Even more strikingly, the Court found that the simple making of an opposition would “override, as a rule, not only the economic interest of the operator of the search engine but also the interest of the general public in finding the information upon a search relating to the data subject’s name” (at 97). As a partial caveat, the Court did add that, at least as regards ordinary personal data “that would not be the case if it appeared, for particular reasons such as the role played by the data subject in public life, that the interference with his fundamental rights is justified by the preponderant interest of the general public in having, on account of inclusion in the lists of results, access to the information in question” (at 97). In stark contrast to the Advocate General’s Opinion, the Court made no mention at all of how the much stricter, sensitive information rules were meant to operate in this context.

The Court was right to find that Google was subject to Spanish law and was indeed a controller of its search engine results. What is surprising and more troubling were the Court’s views on the breadth and depth of search engines’ data protection responsibilities.

It is particularly striking that vis-à-vis Google the Court made no mention of freedom of expression even though this is enunciated in both Article 10 of the European Convention on Human Rights and Article 11 of the EU Fundamental Rights Charter. There was therefore no express attempt to balance this right against the data protection provisions set out in the Data Protection Directive and Article 8 of the EU Charter.

Instead, data protection was given priority, subject only to the partial caveat of a rather narrowly construed public interest centred on public figures. This approach can indeed be seen as required in order to secure the “effective and complete” protection of data subjects intended by the founders of European data protection.

However, such a vision is in profound tension with the whole way in which information is disseminated and sought out online including not only by large corporations such as Google but also by hundreds of millions of individuals. Much of the legal debate in the months and years to come will focus on dissecting exactly what the few limits left in play by the Court, which relate not only to public interest but also the “responsibilities, powers and capabilities” of search engines, actually mean.

But, in terms of real implementation, what is likely to matter more is how powerful the ideal of data protection enunciated in this judgment is when placed against the vast cultural, political and economic power of “internet freedom”. Whatever results from this, interesting times are ahead for the future development of this legal framework, with profound implications for the freedom of expression and information of us all.

 

David Erdos is a University Lecturer in Law and the Open Society and a Fellow of Trinity Hall, University of Cambridge.

 (Suggested citation: D. Erdos, ‘Mind the Gap’ Open Democracy (15th May 2014) (available at OpenDemocracy) OR D. Erdos, ‘Mind the Gap – The CJEU Google Spain Judgment Profoundly Challenges the Current Realities of Freedom of Expression and Information Online’ U.K. Const. L. Blog (15th May 2014) (available at  http://ukconstitutionallaw.org/).

 

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Grégoire Webber: On the ‘lawful’ premise and prostitution

gregoi7‘It is not a crime in Canada to sell sex for money.’ This factual assertion opens the unanimous judgment of the Supreme Court of Canada in Bedford v Attorney General, 2013 SCC 72. It is the first and a repeated premise leading to the judgment’s conclusions: the criminal prohibitions on keeping a bawdy-house, living on the avails of prostitution, and communicating in public with respect to a proposed act of prostitution are unconstitutional for violating the rights to life and security of the person. This post evaluates the factual premise that prostitution is a lawful activity and, more generally, the significance of liberties in the law.

The Supreme Court places much significance on the liberty in law to sell sex for money. Here is a sample:

[59] “Here, the applicants argue that the prohibitions on bawdy-houses, living on the avails of prostitution, and communicating in public for the purposes of prostitution, heighten the risks they face in prostitution — itself a legal activity.”

[60] “The prohibitions at issue do not merely impose conditions on how prostitutes operate. They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky — but legal — activity from taking steps to protect themselves from the risks.”

[61] “It is not an offence to sell sex for money.”

[62] “Working on the street is also permitted, though the practice of street prostitution is significantly limited by the prohibition on communicating in public.”

[87] “… even accepting that there are those who freely choose to engage in prostitution, it must be remembered that prostitution — the exchange of sex for money — is not illegal.”

[89] “The impugned laws deprive people engaged in a risky, but legal, activity of the means to protect themselves against those risks.”

The judgment’s repeated assertion that there is a legal liberty to sell sex for money draws on the unstated premise that there is a moral quality to this liberty or to all liberties in the law, such that that which is not criminally prohibited is therefore just, choice-worthy, and not to be discouraged by government or law. The unsound character of this reasoning is evident from an examination of some fundamental juridical categories.

A ‘liberty to’ is the opposite of a ‘duty not to’. That it is not a crime to sell sex for money is equivalent to the absence of a criminal duty not to sell sex for money. The absence of a criminal duty need not imply the absence of another (non-criminal) legal duty: for example, my criminal liberty to break my contract with you does not imply my legal-contractual liberty to do so. More fundamentally, the absence of any legal duty need not imply the absence of a moral duty; equivalently stated, the presence of a liberty in law need not imply the presence of a liberty in morality.

Consider how foreign the Court’s repeated emphasis on the criminal liberty to sell sex sounds when other legal liberties are substituted for it:

The applicants argue that the prohibition on assault heightens the risks they face in bullying – itself a legal activity.

Adultery is a risky – but legal – activity.

It is not an offence to lie to one’s friends.

In each of these cases, the legal liberty to engage in the activity confronts a moral duty not to. It is a moral wrong to bully another, to commit adultery, to lie to one’s friends, a wrong in no way camouflaged by the absence of a legal duty not to do so.

Of course, many legal liberties track moral liberties, among them: the liberty to contract (itself bounded by legal and moral duties not to contract with certain persons and over certain matters); the liberty to express oneself (itself bounded by legal and moral duties not to defame, to libel, falsely to shout fire in a crowded theatre, . . .); and the liberties to assemble peacefully, to associate, to practice one’s religion or none at all, to follow one’s conscience, to . . . (all bounded by . . .).

The mere presence of a liberty in the law does not conclude the question whether there is a liberty in morality. And yet, the Supreme Court of Canada’s regular reference to the legal liberty to sell sex is intended to convey that it equated the absence of a legal duty not to sell sex with the absence of a moral duty not to do so, and, therefore, the absence of any ground to discourage the sale of sex.

This resulted in a misguided characterisation of the relationship between the criminal liberty to exchange sex for money and the criminal duties not to keep a bawdy-house, to live on the avails of prostitution, or to communicate in public with respect to a proposed act of prostitution. The Court reasoned that the criminal duties rendered the ‘lawful activity [of prostitution] more dangerous’, drawing the following ‘analogy’:

[87] “An analogy could be drawn to a law preventing a cyclist from wearing a helmet. That the cyclist chooses to ride her bike does not diminish the causal role of the law in making that activity riskier. The challenged laws relating to prostitution are no different.”

The Court’s analogy is telling. One has both a legal and a moral liberty to ride one’s bike (as bounded by duties not to do so on another’s property, on the motorway, etc). The assumed persuasiveness of this analogy rests on the Court’s unstated and undefended premise that one also has a moral liberty to sell sex for money. Absent that premise, the analogy can do no work, just as it would do no work if appealed to in support of the legal liberties to bully, to commit adultery, and to lie to one’s friends.

How then to characterise the relationship between the criminal liberty and criminal duties? The Attorneys General of Canada and of Ontario argued that the criminal duties were to be understood as seeking to deter prostitution (para. 131). The Court dismissed the argument, affirming that the record established that ‘the [only] purpose of the prohibition[s] is to prevent community harms’, with ‘community harms’ to be understood as excluding any harms inherent to the sale of sex for money (para. 131; see also paras. 132, 137-138, and 146-147). This misunderstanding was directed by the Court’s unwillingness to divorce a legal liberty from a moral liberty.

Consider this alternative characterisation of the relationship between the criminal duties surrounding prostitution and the criminal liberty to sell sex for money.[1]  Prostitution is a moral wrong. It is harmful both to the prostitute and to the other engaging in the contracted sexual activity. One has a moral duty both not to sell and not to purchase sex. To do so is inimical to the community’s common good and a violation of equality and dignity. Prostitution is, therefore, an act worthy of legal prohibition. However, the act is also deeply personal and if truly private not one that the law should seek to regulate directly if undertaken between adult persons. Rather, the law should frustrate prostitution by indirect means, chief among them: prohibiting keeping a bawdy-house, living on the avails of prostitution, and communicating in public with respect to a proposed act of prostitution. Such prohibitions of relatively public acts pursuant to prostitution are not to be analogised to the reckless or purposeless regulation of a moral liberty (as would be the prohibition against wearing a helmet when riding a bicycle); their objective is to frustrate with a view to eliminating a deeply private, but immoral activity that wrongs the prostitute, the client, and the community. In doing so, the legislature can be taken to have acted on the view that failure to intervene to frustrate prostitution would be an injustice against those persons for whom it is responsible, persons including the seller and the purchaser of sex.

It may be that these prohibitions are to be abandoned in favour of an alternative approach to the wrong of prostitution. I take no position on that question, except to say this: it is a question not best approached by assuming that the criminal liberty to sell sex for money implies a moral liberty to do so.

Grégoire Webber is Associate Professor of Law at the London School of Economics.

[1] This paragraph is indebted in part to Bradley Miller ‘Proportionality’s Blind Spot: “Neutrality” and Political Philosophy’ in Huscroft, Miller, and Webber (eds) Proportionality and the Rule of Law (Cambridge, 2014) 382-383.

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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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Alexander Horne: Is there a case for greater legislative involvement in the judicial appointments process?

Alexander HorneThe dramatic increase in public law and human rights cases coming before the UK Supreme Court (and the Appellate Committee before it) means that the UK’s top court is more frequently determining essentially socio-political questions. In addition, in recent years, the judiciary has pressed for a rather more expansive definition of judicial independence, with a greater emphasis on the institutional independence of the judiciary. This has tended to lead to more powerful leadership roles, for senior judges in particular.

These changes, coupled with a greater focus – by both the judiciary and the executive – on the doctrine of the separation of powers, has resultedin judges taking responsibility for matters which, prior to theConstitutional Reform Act 2005, would most likely have been left to the Lord Chancellor (and his former Department). In the light of this expanding judicial role, now seems an appropriate time to question whether any new mechanisms for increasing political accountability, such as a parliamentary confirmation procedure, are needed for appointment to the most senior judicial offices (including, but perhaps not limited to, the UK Supreme Court, given the growing managerial roles played by the Lord Chief Justice and Heads of Division).

Confirmation processes are often dismissed out of hand – frequently with negative references to the partisan approach seen in the United States of America. Lord Neuberger (then Master of the Rolls) captured the common view of hearings before the USSenate Judiciary Committee, when he observed:

“Once you start muddying the water and involving the legislature in the appointment of judges, you risk going down a slippery slope, not quite knowing where it will end. The last thing that we want is the sort of thing you see in the United States. I do not pretend that it happens with every appointment to the Supreme Court but we all remember interviews and proposed appointments that led to something of a jamboree or a circus. I do not think that we want that.” (Evidence to the House of Lords Constitution Committee, November 2011)

 Of courseviews on the US experience do not go entirely one way. Graham Gee has previously considered whether the lessons drawn by UK commentators are necessarily justified; suggesting that most hearings do not generate political conflict and that in any event, “hearings are not the primary source of the politicization of the process” given the important role that partisan considerations play in the President ‘s nominations for the federal bench. Nonetheless, it must be acknowledged that a knee jerk reaction against the US procedure remains commonplace.

Critics of hearings frequently point to the potential impact on judicial independence. In its report on Judicial Appointments, published in March 2012, the House of Lords Constitution Committee summarised many of the oft-heard objections when it concluded that:

“Parliamentarians should not hold pre- or post-appointment hearings of judicial candidates, nor should they sit on selection panels. Political considerations would undoubtedly inform both the selection of parliamentarians to sit on the relevant committees or panels and the choice of questions to be asked.”

In spite of this, issues around judicial independence and accountability are now receiving more interest from academics and some parliamentarians. The question of whether to introduce parliamentary hearings received some attention during the consideration of theconstitutional reformswhich eventually led to the passage of the Constitutional Reform Act 2005. Scholars such as Keith Ewing and Robert Hazell and the former Permanent Secretary of the then Lord Chancellor’s Department, Sir Thomas Legg QC,argued that nominees for the new Supreme Court could be interviewed or confirmed by Parliament. The Study of Parliament Group published The Changing Constitution: A Case for Judicial Confirmation Hearings?, a short report by this author, in 2010.  Areport by Policy Exchange in 2011 suggested that:

“[A] more radical approach to judicial selection should at least be considered – namely legislative oversight of appointments to the Supreme Court. This would have the advantage of ensuring that judges retained their independence, but would be subject to Parliamentary scrutiny prior to their appointment.” (Policy Exchange, Bringing Rights Back Home)

And in 2012, the think-tank CentreForum published a report by Professor Alan Paterson and Chris Paterson, entitled Guarding the Guardians (the title may give some clue as to their conclusions)

The recently concluded project on the Politics of Judicial Independence, involving the Constitution Unit, Queen Mary and the University of Birmingham, is another good example – posing challenging questions about the balance between judicial independence and accountability – asking“who is now accountable for the judiciary, and to whom?” and “what are the proper limits of judicial independence?”.  Views on the subject of confirmation hearings were splitin a seminar on the subject of Judicial Independence, Judicial Accountability and the Separation of Powers, but a number of potential advantages were identified, including the fact that hearings could enhance the legitimacy of judges. Moreover, recent experience of the introduction of hearings in Canada, addressed in a series of articles (e.g. Peter Hogg, Appointment of Justice Marshall Rothstein to the Supreme Court of Canada, (2006) 44 Osgoode Hall Law Journal 527), suggest that one does not have to emulate the contentious US model.

Following in the footsteps of these earlier studies, the Study of Parliament Group has just published a new research paper, by the author of this post, entitled Is there a case for greater legislative involvement in the judicial appointments process?  It seeks to address some of the conceptual arguments for greater political accountability in the appointment process and also considers the expanding ambit of judicial independence. Focusing on whether parliamentarians should have a role in the judicial appointments process, it asks what is meant by political accountability in the context of judicial appointments and considers what evidence there is that greater accountability is necessary.

The paper examines whether new methods of accountability could be introduced in the UK without impacting on judicial independence, and seeks to shed light on these questions by assessing the recent move by the UK Parliament to introduce pre-appointment hearings for other public appointments. Finally, it evaluates whether such processes are readily transferable and, if so, whether UK parliamentary committees are well placed to undertake this task.

The paper concludes that the introduction of pre-appointment hearings for the most senior judicial appointments would have a number of benefits and could help ensure that independent and robust candidates are appointed.  As to the question of politicisation, it considers that as long as there is a continued role for an independent judicial appointments commission to recruit and screen candidates at first instance, any significant politicisation of the process could be avoided.

Whether recent examples of workable models from the UK, or from other jurisdictions, can convince the senior judiciary of the merits of such a change is clearly open to some doubt. But the author hopes that this new work might nonetheless inform any future debate on these issues.

This blog post is published to coincide with the launch of a new Study of Parliament Group Research Paper on Judicial Appointments.

 Alexander Horne is a Barrister (Lincoln’s Inn) and is currently the Legal and Senior Policy Adviser at the House of Commons Scrutiny Unit. The SPG Paper ‘Is there a case for greater legislative involvement in the judicial appointments process?’ is based on an MPhil thesis undertaken part-time at Queen Mary, University of London between 2010-13.  The views expressed are those of the author and should not be taken to reflect the views of any other person or organisation.

(Suggested Citation: A. Horne, ‘Is there a case for greater legislative involvement in the judicial appointments process?’ U.K. Const. L. Blog (27th March 2014) (available at  http://ukconstitutionallaw.org/).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Obvious developments to report on include two significant reviews of New Zealand’s constitutional and electoral arrangements:

  • the Electoral Commission’s independent review of the MMP electoral system; and
  • the Constitutional Advisory Panel’s consideration of constitutional issues.

But, sadly, neither of these look likely to led to any real change – at least in the short-term.

The one other development worthy of mention – mandatory legislative disclosure requirements designed to improve the quality of legislation – was introduced without fanfare but perhaps has greater potential for influence.

Some brief comments on the first two, along with a more detailed explanation of the latter, follow. 

A         Review of MMP: sensible suggestions forestalled

The Electoral Commission completed its review of the MMP electoral system and proposed a number of – in my view, sensible – tweaks to the electoral system that has been running for nearly 20 years in New Zealand. Amongst other things, it proposed changing the thresholds for the entitlement to party list seats (reducing the party vote threshold from 5%-4% and removing the controversial one electorate seat threshold). It also dismissed concerns about some features of MMP that had caused some public disquiet (dual electorate/list candidacy and list MPs contesting by-elections).

But any reform stalled – with the government indicating that it would not be actively progressing the recommendations, in the absence of parliamentary consensus or wide-spread agreement. Consensus or wide-spread agreement was, of course, unlikely. Changing the thresholds would be the death-knell for some smaller parties, and consequently would probably hamper the governing National party’s prospects of garnering a majority coalition at the next election. (On the stale-mate, see Geddis, “Stop Wasting Our Time” and Johannson, “National quiet on MMP changes”.) An opposition Labour MP recently had his Member’s Bill seeking to implement some of the review’s recommendations drawn from the ballot; however, it looks unlikely his Bill will have the numbers to pass.

Despite an independent review, political self-interest continues to present a barrier to updating and reforming the MMP electoral system in the light of years of practice and experience.

B         The constitutional review: a long conversation, beginning not ending

The Constitutional Advisory Panel also reported on its consideration of constitutional issues – or, rather, “The Constitutional Conversation”. Unsurprisingly it lacked tangible recommendations for reform.

The independent panel had been charged with considering a range of important constitutional issues, including a written constitution, term and composition of parliament, human rights protections, the Treaty of Waitangi and other issues relating to Crown-Māori relations.

The process of wide-spread public engagement by the independent panel was impressive, and stirred up quite a lot of activity and debate about matters constitutional. (Even, for example, a two-day workshop I was involved in, where 50 young people drafted a new constitution from scratch!) Over 5,000 submissions from a wide-range of people and groups were received.

But the Panel’s final report tended to only recount the (divided) public opinion on the issues, rather than generating concrete suggestions for reform. Firm recommendations were quite limited and process orientated:

  • the continuation of the constitutional conversation generally;
  • the inevitable call for greater civics education;
  • further work and consultation in relation to particular issues; eg, the role and status of the Treaty of Waitangi, a longer parliamentary term, and, notably, strengthening the NZ Bill of Rights Act (including socio-economic rights; entrenchment; enhanced judicial remedies).

Given the mammoth task the Panel was charged with, the diluted response was perhaps not unexpected. The government’s response to the report is due later this year.

C         Legislative Disclosure Requirements: unheralded but significant

Modest in nature, but perhaps with significant potential, one other initiative is of some constitutional interest. In the middle of last year, Cabinet quietly issued a circular on new vetting and disclosure requirements for government legislation (CO(13)3).

“The government wants to ensure that its policies get translated into legislation that is robust, principled and effective. … The requirements draw on existing expectations about what makes good legislation to:
– bring attention to specific features of a piece of proposed legislation and/or the key processes through which it was developed and tested;
– make this information publicly available in an accessible and cost-effective way; and
– thereby facilitate greater and more effective scrutiny of that legislation by Parliament and the general public.
The increased provision of information, and scrutiny of that information, is expected to improve legislative quality over time by increasing the attention given to follow good practices during the development of legislation.”

The regime builds on other legislative vetting, such as the regulatory impact analysis and reporting on consistency with the NZ Bill of Rights Act and seeks to pull together information useful to those scrutinising legislation. It includes a mixture of the elaboration of the policy objectives, disclosure of testing and analysis, and explanation of consistency with a range of standards and norms. (Compare some of the recent work proposing legislative standards for Westminster: eg, House of Commons PCR Committee “Ensuring standards in the quality of legislation” and Caird, “A Code of Constitutional Standards”.)

The norms and standards which trigger disclosure are pretty well-established and, in a large part, echo the Legislative Advisory Committee’s long-standing Guidelines on the Process and Content of Legislation. Disclosure statements, prepared by departments based on a set template, are expected to explain the policy background, set out details of consultation and testing, and report on the following matters:

  • consistency with New Zealand’s international obligations
  • consistency with the government’s Treaty of Waitangi obligations
  • consistency with the New Zealand Bill of Rights Act 1990
  • creation, amendment or removal of offences, penalties and court jurisdictions
  • privacy issues
  • compulsory acquisition of private property
  • charges in the nature of a tax
  • retrospective effect
  • strict liability or reversal of the burden of proof for offences
  • civil or criminal immunity
  • significant decision-making powers
  • powers to make delegated legislation
  • other unusual provisions or features.

Disclosure statements must be made publicly available, through a central repository, when the relevant Bill is introduced into Parliament, and later amended, if any substantive amendments are subsequently made to the Bill (see www.legislation.disclosure.govt.nz). Initially deployed under a Cabinet circular, the government’s intention is that the disclosure regime subsequently be enacted in legislation.

The disclosure regime has its genesis in a number of failed efforts to enact aggressive and enforceable legislative standards, driven mainly by the small, right-wing ACT party which is presently a member of the coalition government. It proposed a Regulatory Standards Bill, which would have seen the courts being given some powers to enforce prescribed standards (an interpretative direction similar to those found in human rights legislation, as well as an express power to issue declarations of inconsistency). However, the proposal proved controversial, particularly the loaded legislative standards proposed and judicial enforcement (see eg Ekins, “Regulatory Standards in New Zealand; Treasury, “RIS: “Regulating for Better Legislation”; Thwaites and Knight, “Administrative Law Through a Regulatory Lens”). A compromise was eventually reached where improvements would instead be made at the departmental and parliamentary level. From that came this enhanced and comprehensive vetting and disclosure regime.

Will the disclosure regime improve things though? Time will tell.

There is some reason to be optimistic. Anecdote and intuition suggest that pre-parliamentary legislative vetting pays dividends (although it is difficult to measure). And, like regulatory impact statements and Bill of Rights consistency-reports, disclosure statements will provide politicians and interested parties with ammunition against problematic legislative provisions. Witness, already, disclosure statements being deployed a number of times in the critique of Bills by parliamentarians and commentators.

But one weakness is that the disclosure regime is not directly interwoven into the parliamentary process or given institutional support within Parliament itself. Its impact would be stronger if, for example, a specialist select committee was charged with assessing compliance (much like the non-partisan and respected work of Regulations Review Committee in relation to delegated legislation). Otherwise, whether the disclosure regime improves the quality of legislation will depend whether it is taken seriously by parliamentarians and the extent to which it melds itself into the constitutional culture. Or whether it becomes merely a perfunctory, “tick-box” exercise. We will see.

Dean Knight is a Senior Lecturer in the Faculty of Law, Victoria University of Wellington, New Zealand.

 

(Suggested citation: D. Knight, ‘Report from New Zealand: MMP Review, Constitutional Review, and Legislative Discloure’ U.K. Const. L. Blog (10th March 2014) (available at: http://ukconstitutionallaw.org/)).

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Janet McLean: Hard power but soft law: second thoughts about the third source?

Janet McLeanDoes government have the power of an ordinary person, to do that which is not prohibited? Two recent cases, one from UK and one from NZ, raise this question and suggest it needs re-examining.

In the UK, statute deals with the requirements to be satisfied by international students applying to enter or remain under its migrant points system. Rules made under the statute must be laid before Parliament. Government “guidance” requires that student migrants must be sponsored by an educational institution holding a sponsor’s licence and sets out the requirements that educational institutions must satisfy in order to qualify for such a licence. The “guidance” is not laid before Parliament, and is frequently changed without notice.  An institution which loses its licence, and hence all of its international students and most of its business, attempts unsuccessfully to challenge the guidance.  In the UK Supreme Court, Lord Sumption (with whom Lords Hope, Clarke and Reed agreed) suggested that the “guidance”, though mandatory in part, had no necessary statutory or prerogative underpinning [28]. The publication of guidance does not require statutory authority and can be an exercise of the residual freedom government has to do anything an ordinary person can do which is not prohibited by law (R (on the application of New London College Ltd) v Secretary of State for the Home Department [2013] UKSC 51. Lord Carnwath disagreed, denying the existence of any authority for such a proposition and finding the impugned powers to be wholly derived from statute.

Highly controversial emergency powers are granted by an Act of Parliament (Canterbury Earthquake Recovery Act 2011) to assist in New Zealand’s recovery from the Canterbury Earthquake. These allow for the formulation of a recovery plan after formal consultation and hearings and the suspension of the usual planning laws after a notification procedure. The Minister issues “information” about different zones to which different compensation criteria apply without invoking the procedures required by the statute. This is treated by the New Zealand Court of Appeal (Ministry for Canterbury Earthquake Recovery v Fowler Investments [2013] NZCA 588 (Quake Outcasts case)) as an exercise of the residual power government has to do anything that is not prohibited by law. The “information” that a building is in a Red Zone and that a particular compensation package will apply is treated as not affecting the rights and liberties of property owners.  Being in the Red Zone does not of itself prohibit building or the granting of a building consent, prohibit residents from living there or require the demolition or repair of houses (the Court of Appeal affirmed here the High Court ruling in O’Loughlin v Tower Insurance [2013] NZHC 670). And yet, the Court of Appeal accepted that the Crown was pursuing a clearance programme to remove all buildings and improvements from Red Zone land, followed by the removal of infrastructure. The practical effect of the creation of the Red Zone and the terms of the compensation offer has been the exit of most residents from the area “leaving those who remain in a very difficult and unattractive position” [104].

In both cases the guidance has important practical consequences for the claimants but is treated as having no legal effect on the claimants’ rights and liberties. Both cases raise again the controversial question of the extent to which the government enjoys residual, “third source”, or ordinary law power, and if so what should be the appropriate legal controls on the scope and exercise of such power. And both raise the issue of whether we need to rethink judicial review doctrines in the light of new techniques of governance (see recently K Yeung, “Better Regulation, Administrative Sanctions and Constitutional Values” (2013) 33 Legal Studies 312-339).

These cases are examples of the informal “soft law” interventions favoured by the “better regulation” movement. In regulatory terms the New London College case concerns the co-option of educational institutions as private regulators engaged in the implementation of government policy. It is private institutions which must verify the seriousness of students’ study plans, their financial resources and their ability to follow their chosen course – with the incentive that their licence depends on it.  The guidance allows for different conditions to be placed on different institutions depending on whether they have “Highly Trusted” Status.   The Quake Outcasts case also involves the use of “soft power” – in the form of financial incentives rather than formal zoning laws. It leaves matters to be determined by individualised regulatory negotiations. These techniques are only “soft” in relation to the instruments they use rather than in their practical effects.

Lord Sumption in New London College admits that  the formal law is not a good fit with the regulatory framework: “the Immigration Act 1971 has not aged well” [1].  He helpfully raises the question of whether the idea that the government has the same residual powers as a natural person “is really apt in the case of public or governmental action, as opposed to purely managerial acts of a kind that any natural person could do, such as making contracts, acquiring or disposing of property, hiring and firing staff and the like” [28]. This distinction between “ordinary” and “governmental” powers sounds promising – especially given that judges tend instinctively to resist the imposition of public law controls on the “ordinary law of contract”. Such an approach would leave “ordinary contract law” relatively “untouched”. Even then the line may sometimes be hard to draw – would the acquisition of property in the Red Zone be more governmental (in pursuit of a government clearance programme) or managerial (a simple purchase)? He did not need to resolve the question in this case because he thought that there would be ancillary power to issue the guidance under the statute in any event.

The appellants in New College were challenging the existence of the power to issue guidance. They do not appear to have addressed the issue of whether the manner of the exercise of the power could be the subject of judicial review. A challenge to the way in which the power had been exercised may have been more useful in assisting them to recover their sponsor licence or obtain Highly Trusted Status. The New Zealand Court of Appeal did allow for the possibility that the exercise of residual freedom could be reviewable on reasonableness or rationality grounds [81] but it did not need to decide the point. (It left intact the declaratory relief awarded to the claimants in the High Court given on another basis.) The New Zealand Court of Appeal’s approach is surely the correct one. The availability of judicial review should not depend on the regulatory techniques chosen by governments in order to pursue their policies.

These issues are unlikely to go away any time soon. The regulatory theorists and the black letter lawyers need to engage in a better dialogue if we are to have a chance to resolve them.

Janet McLean is a Professor of Law at the University of Auckland.

 (Suggested citation: J. McLean, ‘Hard power but soft law: second thoughts about the third source?’ U.K. Const. L. Blog (27th February 2014) (available at http://ukconstitutionallaw.org/).

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UKCLA event: Margit Cohn on non-statutory powers, 30 January 2014

Margit Cohn (Hebrew University of Jerusalem)

‘Non-Statutory Executive Powers in Five Regimes: Assessing Global Constitutionalism in Structural-Institutional Contexts’ 

Thursday 30 January 2014,  6.00-7.30 pm

Venue: Room 1.2, School of Law, Queen Mary, University of London (Lincoln’s Inn Fields Campus), 67-69 Lincoln’s Inn Fields London WC2A 3JB

 

Members of the UK Constitutional Law Association and readers of the blog are all welcome to attend. No need to book.

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