Category Archives: Comparative law

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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Se-shauna Wheatle: Maurice Tomlinson v Television Jamaica Ltd: Horizontal Rights Application in Jamaica

seshauna-studio-copy1For more than twenty years Jamaica was engaged in the process of amending the Chapter of Fundamental Rights enshrined in the Constitution of Jamaica 1962. The culmination of that project was the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act 2011, which ushered in substantial changes in the application of rights (including explicit provision for horizontal rights application) and the scope of rights (for example, designing some of the equality provisions to exclude equal protection on the ground of sexual orientation). As the first case to test the terms of Jamaica’s new constitutional rights arrangements arising under the Charter, Maurice Tomlinson v Television Jamaica Ltd v Others, is of historical import. The case is significant for its assessment of the issues of horizontal rights protection, freedom of expression, and the position of gay persons under the Charter.

Tomlinson, who is a gay Jamaican and was formerly Legal Advisor to Aids-Free World, submitted a proposed Public Service Announcement (PSA) to the two major television stations in Jamaica (Television Jamaican Ltd and CVM Television Ltd). The video message encouraged tolerance towards, and respect for, the human rights of gay men in Jamaica. The stations refused to air the video, whereupon Tomlinson filed a claim in the Supreme Court of Jamaica, a court of first instance in Jamaica which has original jurisdiction in constitutional cases and is of equivalent jurisdiction to the High Court of England and Wales. Tomlinson sought declarations that the stations’ refusal constituted breaches of his right to freedom of expression under section 13(3)(c) of the Charter, and freedom to disseminate information and ideas through the media under section 13(3)(d) of the Charter. He also sought these declarations against the Public Broadcasting Corporation of Jamaica, though it was accepted during argument that as the PBCJ was a statutory body, it was limited by the terms of its statute which barred it from airing paid advertisements. The court unanimously dismissed the claim against all three defendants.

Horizontality Under the New Charter

Some of the most interesting and potentially impactful parts of the judgments delivered by the three judges of the Supreme Court concern the issue of the application of horizontal rights protection under the Charter. The Charter expressly provides for the first time that the rights and freedoms under the Charter are binding on private persons as well as the state to the extent that they are applicable in light of the right and duty under consideration. Thus, section 13(5) states:

A provision of this Charter binds natural or juristic persons, if, and to the extent that, it is applicable taking account of the right and the nature of any duty imposed by the right.

In his judgment Justice Sykes articulates an equality-based view of horizontal rights protection, stating that Jamaica copied the horizontality section in the Final Constitution of South Africa, ‘a country with significant inequality between social groups’ and that that section ‘was, perhaps, seen as a way of addressing that inequality through judicial decision on the scope and meaning of the Bill of Rights’. [191]. Indeed, constitutional scholars Stuart Woolman and Dennis Davis have argued that the inclusion of horizontal application in the South African Constitution gives recognition to the fact that power wielded by private bodies can undermine justice and that ‘inequalities in social power’ undermine the autonomy of individuals. While Justice Sykes identified horizontality as a means of addressing inequality, the Jamaican Supreme Court’s approach to horizontal protection in the Tomlinson case pays little attention to the context of inequality that surrounded the case. Justice Sykes held that the stations did not interfere with the claimant’s right to freedom of expression since the Constitution ‘does not give any private citizen … the right to use another private person’s property to disseminate his message by any technological means available.’ [311] Accordingly, he held that it was not necessary to balance the rights of the rights and responsibilities of the claimants and defendants. Justice Paulette Williams J, on the other hand, balanced the claimant’s rights to freedom of expression and the defendants’ rights to freedom of expression and held that to grant the declarations sought by the claimant would prejudice the rights of the defendants, and that since the claimant has a corresponding duty to uphold the defendants’ rights, the ‘horizontal application … is not applicable’. [98]

The judges did not sufficiently address the special position of the first and second defendants (Television Jamaica Ltd and CVM Television Ltd) as the two major television stations in Jamaica, commanding the vast majority of the market share in televised media, and their resulting dominant position in determining what is televised in Jamaica. The Court also failed to address the context of societal and structural inequalities that confront Jamaican gay men, such as the claimant. These shortcomings in the judgment are all the more striking given the emphasis placed by the members of the court on the section of the South African Constitution from which section 13(5) of the Jamaican Charter draws its influence and much of its language. The corresponding horizontality section of the South African Constitution has been said to embrace a conception of liberalism which recognizes that ‘the real issue regarding the application of fundamental rights is …about how all kinds of power are distributed throughout a polity and what that means for the lives of individuals and the associations that inhabit the larger political community.’ Despite repeated references to the South African provision and the suggestion that it was conceived in an ethos of equality, the Jamaican Court did not take sufficient notice of the context of power distribution that arose in the case before it.

A difficult issue that arises in this area is how courts should approach a conflict between the rights of private citizens. This became central to the Tomlinson case because the defendants, as media companies, also asserted their right to freedom of expression. The approach adopted by Williams J was to balance the claimant’s rights against those of the defendants. The Charter provides some guidance as to how to resolve such a conflict, section 13(2) of the Charter stating that the rights are guaranteed, ‘save only as may be demonstrably justified in a free and democratic society’. This textual guarantee ought to be a guide to determining whether a limitation of rights was justified, irrespective of whether that limitation occurred as a result of an act of the state or an act of a private party. Yet, Williams J appeared to reject the use of this section to resolve conflicting rights as between private parties, referring to the decision of the Constitutional Court of South Africa in Khumalo v Holomisa. In Khumalo the Constitutional Court balanced the media’s right to freedom of expression against the constitutional value of human dignity in determining whether the law of defamation applicable to the private parties in the dispute before the Court was consistent with the Constitution. While referring to the judgment in Khumalo, Williams J failed to note that the Khumalo Court did not actually engage with this question of whether the general limitations clause was applicable in a case of conflicts between rights. Further, the section of the Khumalo judgment that addresses horizontality has been criticised for being ‘cursory’ and there have been more recent judgments from South Africa which shed light on the horizontal application of rights and the conflict between the rights of citizens. These cases were not referred to in Williams J’s judgment. These more recent judgments are particularly interesting because they contain suggestions that the requirements in the limitations clause are relevant to cases of conflict between rights of private parties. Whichever conclusion Williams J arrived at, it would have been useful, in light of the fact that this was the first Jamaican case to raise these issues, for the judge to engage in a more comprehensive analysis of this issue.

Williams J concluded that while balancing the rights of the claimant and the defendant, the court must not tip the balance in favour of one as this would suggest that one party’s right was greater than the other. [94]-[97]. She held that to make the declarations sought against the television stations would prejudice their rights and freedoms, so the claim must be dismissed. She further held that ‘the horizontal application … is not applicable as the claimant has the duty to uphold the corresponding rights of the 1st and 2nd defendants.’ This invites a final observation on Williams J’s decision. While she ostensibly rejects the suggestion that the scale must be tipped in favour of one side, her decision actually does tip the balance in favour of the television stations, while undermining the rights of the claimants. Her denial of this result reflects a mistaken notion that preserving the status quo (that the PSA is not aired) is to refuse to choose, when in fact that preservation of the status quo is a rather demonstrative choice on the part of the court.

This case is of historical import in Jamaica and the Commonwealth Caribbean, and the issues that arose will no doubt be tested when the case is appealed. It is to be hoped that the appellate courts will engage in a more thorough and contextual analysis of some of the contested questions that arise in the field of horizontal rights application.

Se-shauna Wheatle is a Research Associate in Public Law at Durham University.

Suggested citation: S. Wheatle, ‘Maurice Tomlinson v Television Jamaica Ltd: Horizontal Rights Application in Jamaica’ U.K. Const. L. Blog (10 December 2013) (available at http://ukconstitutionallaw.org).

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Chintan Chandrachud: Beyond Ghaidan and Back: the Supreme Court of India on Rights-Compliant Interpretation

 ChintanGhaidan v Godin-Mendoza remains the leading case on rights-compliant interpretation under section 3 of the UK Human Rights Act 1998. In Ghaidan, the majority on the House of Lords held that even when the meaning of a statute seems clear, courts can depart from parliamentary intention to read legislation in a European Convention-compliant manner. Lord Nicholls emphasised that ‘the particular form of words’ used would not be determinative in ascertaining whether or not section 3 could be invoked.

The Supreme Court of India, on the other hand, has been careful over the years in ascribing to itself an interpretive power which is narrower than the Ghaidan variety. The Court consistently held that it would not distort or depart from statutory language where its plain meaning was clear. Then came Namit Sharma v Union of India (which I will, for reasons that will be self evident later, refer to as Sharma I). This was a case involving a challenge to some of the provisions of the Right to Information Act 2005 – a revolutionary law that seeks to increase transparency in the functioning of public authorities. The Act provides for the appointment of central and state information commissioners to monitor compliance. It requires commissioners to be ‘persons of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance’. The petitioner in Sharma I contended that these eligibility criteria were arbitrary and vague, and violated the right to equality under article 14 of the Constitution. In his argument, since the commissioners performed functions of a judicial nature, Parliament transgressed constitutional boundaries by failing to specify that they should possess judicial experience.

The Supreme Court’s judgment in Sharma I was remarkable. The Court considered that the provisions of the Act, as they stood, were unconstitutional. But rather than striking down the relevant provisions, it sought to interpret them so as to fall within constitutional parameters. The Court stipulated that since the commissioners performed quasi-judicial functions, they should predominantly be persons who have a judicial background and experience in adjudication. If some experts from other fields were appointed as commissioners, they should only make decisions as part of a two-member bench, along with a commissioner having judicial experience. The Act established a ‘High Powered Committee’, consisting of political leaders from the government and the opposition, for the appointment of commissioners. The Court went on to radically modify the process of appointment of commissioners, holding that since they perform quasi-judicial functions, the judiciary (more specifically, the Chief Justice of India/Chief Justice of the relevant state) should also be consulted in the appointment of commissioners with judicial experience.

This judgment clearly transgressed the dividing line between interpretation and amendment and went far beyond what even British courts, armed with the section 3 mandate, would do following the Ghaidan dictum. In Ghaidan itself, the House of Lords recognised that it would refrain from interpreting a statutory provision in a manner inconsistent with a ‘fundamental feature’ of the statute. By insisting that commissioners should consist of (and perhaps more remarkably, be appointed by) judges, the Court undermined Parliament’s intention of ensuring that a diversity of viewpoints are represented in the quest for increasing transparency and access to information. If the Court arrived at the conclusion that the absence of a robust judicial role in the composition and appointment of commissioners rendered the provisions of the Act unconstitutional, the appropriate response would have been to strike them down.

Understandably, Sharma I was received with disfavor both within the government and outside it. The government filed a petition asking the Supreme Court to reconsider its judgment, claiming that it was based on an ‘error apparent on the face of the record’. In Union of India v Namit Sharma (Sharma II), the Supreme Court agreed with the government, holding that its previous decision was an ‘encroachment’ of Parliament’s domain and ‘contrary to the principles of statutory interpretation’ recognised by the Court. So presumably, the Court hastily retreated back to its original position on interpretation.

But what was most interesting about Sharma II is the remedial path taken by the Court. Despite having similar misgivings about the eligibility requirements for commissioners as the Sharma I bench, the Court declared the relevant provisions constitutionally valid, only choosing to mention that it hoped that ‘persons with wide knowledge and experience in law will be appointed’. So why did the court refuse to invoke the power to strike down the Act? The explanation might be rooted in the nature of the strike down power. The invalidation of the relevant provisions of the Act would probably have led to the unenforceability of the entire statutory regime. How comfortable would the Court have been striking down a statute which formed part of the United Progressive Alliance government’s ‘common minimum programme’ and which was considered a hallmark of parliamentary democracy? In contrast, a British Court in the same situation would probably have made a declaration of incompatibility knowing that the statutory scheme would not be disturbed until Parliament responded. If the Supreme Court of India could issue a declaration of incompatibility, would it have done so instead of reluctantly upholding the constitutionality of the statute? Sadly, this question will remain in the realm of speculation.

Chintan Chandrachud is a PhD Candidate at Sidney Sussex College, University of Cambridge

Suggested citation: C. Chandrachud, ‘Beyond Ghaidan and Back: the Supreme Court of India on Rights-Compliant Interpretation’  UK Const. L. Blog (29th November 2013) (available at http://ukconstitutionallaw.org)

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Paul Kildea: Australia’s abandoned local government referendum

photo-paul-kildeaIt is almost forgotten now, but Australians were recently set to vote in a referendum on the constitutional recognition of local government. Had it gone ahead, the referendum would have been the first since the republic poll in 1999, and potentially would have seen the first amendment to the Constitution in 36 years.

But the planned referendum was effectively cancelled when Prime Minister Kevin Rudd announced in August that the federal election would be held on 7 September, a week earlier than anticipated. A combination of constitutional and electoral rules prevented the local government poll from running sooner than 14 September, and so it had to be abandoned. This was a huge disappointment to local government, compounded by the fact that the referendum is unlikely to run under the new conservative Liberal-National government led by Prime Minister Tony Abbott.

Given no votes were cast, analysis of the abandoned referendum naturally turns to questions of process. Now that the push for local government recognition has ended in a whimper, is there anything that we can learn from its failure? This question matters more than it usually might, as the Abbott government has indicated that it will run a referendum of its own in the coming years – on the constitutional recognition of Aboriginal and Torres Strait Islander peoples. Advocates of that reform will be hoping that the government can learn from the mistakes of the past three years. In particular, they will hoping for something different when it comes to public engagement in the process, and campaign funding.

Before turning to these process issues, it is worth sketching some background to the local government reform that didn’t quite make it to the people. The proposal was to amend section 96 of the Australian Constitution to allow the federal (ie, national) government to give funding directly to local government bodies, rather than having to go through the States. Canberra has been making direct payments to local councils for decades, but the constitutional validity of this practice was cast into doubt by recent High Court decisions in the Pape and Williams cases.

Advocates of the reform proposal argued that existing and future spending programs on essential services like road maintenance would be vulnerable to challenge unless the Constitution was altered. Local government also saw the referendum as a way to enhance its status in the eyes of the community. Opponents argued that the reform was unnecessary, given the ability of the federal government to fund councils indirectly through the States. And they viewed it as a means of enhancing central power at the expense of the States.

It is perhaps not surprising that debate about these issues never quite captured the public imagination. What was on the table was a technical amendment and, notwithstanding attempts by local government to link it to everyday concerns like road safety and local parks, encouraging citizens to take an interest was always going to be a challenge.

The cause was not helped by the fact that little groundwork had been done to educate and involve the public in the process. In 2011 the government appointed an expert panel to conduct community consultations, but gave it insufficient time and resources to do the job properly. In total the Panel held six consultations, attracting just 127 participants, most of whom were local council representatives. The chair of the expert panel, James Spigelman, later noted that the consultations ‘did not attract much in the way of public response’. It is fair to say that most Australians would have heard about local government recognition for the first time in May 2013, when the government announced its intention to hold the referendum.

It is interesting to speculate whether or not the Australian people would have approved the proposed constitutional amendment, irrespective of the absence of public engagement. An Australian Financial Review/Nielsen poll taken in May found that 65 per cent of voters supported it, but a Morgan poll in June registered support at just 47 per cent. The historical record suggests little cause for optimism: since 1901, Australians have voted ‘Yes’ in just 8 of 44 referendums.

The Gillard government no doubt had this historical record in mind when it made what was the most controversial announcement of the referendum campaign. On 17 June 2013, Local Government Minister Anthony Albanese announced that the government was going to make available $10.5 million to assist both supporters and opponents of local government recognition in promoting their arguments to the community. Albanese explained, however, that this funding was to be allocated on an unequal basis, with $10 million going to the Australian Local Government Association (to prosecute the Yes case) and just $500,000 to opponents of constitutional change.

Equal campaign funding is widely considered to be an element of good referendum practice. The Venice Commission, for instance, endorses ‘a neutral attitude by administrative authorities’ towards campaign funding in its Code of Good Practice on Referendums. But, as a result of legislative amendments made by the Parliament earlier this year, the government was free to distribute its funding as it wished.

Albanese justified the disparity on the basis that it was in line with the level of support that the proposed constitutional amendment had received in Parliament. Indeed, the proposal had attracted broad cross-party support, garnering roughly 95 per cent of votes in Parliament. An unspoken motivation might have been to ‘load up’ the Yes case in advance of the possible launch of well-financed No campaigns run by State governments.

Whatever the rationale, the decision to allocate promotional funding unequally backfired. Tony Abbott (then the Opposition Leader) accused the government of trying to ‘buy’ the referendum result, saying that ‘argument, not money, should determine the outcome’. Conservative MPs, already divided on the merits of local government recognition, were upset by the funding announcement and it was soon reported that it had placed bipartisan support in jeopardy. This was not an insignificant development, as no referendum in Australia’s history has succeeded without bipartisan support. Had the referendum proceeded, this cooling of support may have proved decisive.

The Gillard government’s approaches to public engagement and funding are each understandable in the context of a government trying to push through a rather technical reform that was never going to attract much in the way of public interest. But the constitutional recognition of Aboriginal and Torres Strait Islander peoples requires a different approach.

Unlike local government recognition, Indigenous constitutional recognition is not, at heart, a technical issue. It raises emotional questions around racial discrimination, reconciliation and cultural identity. Broad public engagement, and intensive consultations with Indigenous peoples in particular, are essential to the legitimacy of the process.

Fortunately, the Gillard government oversaw a nationwide consultation process on the issue in 2012 that attracted large numbers of participants and submissions. It also funded a campaign group, Recognise, which has helped to maintain momentum on the issue through initiatives like its Journey to Recognition. This has provided a solid foundation for public involvement that the local government referendum never had.

The challenge for the Abbott government will be to build on this. A joint parliamentary committee has been tasked with further consultation, but it is unclear what form this will take. As time passes, the case for another round of broad-based consultations becomes stronger. And mass engagement remains elusive, pointing to the need to actively raise awareness and understanding.

On campaign funding, the local government example demonstrates that the credibility of the process can be damaged where funds are allocated in a highly disproportionate way. This lesson is particularly important with respect to Indigenous constitutional recognition, given the complexity of the proposed reforms and the strength of feeling about the issues. Another ad hoc funding arrangement that favours the government’s position could impair trust in the process.

Having said that, equal funding may not be the most desirable approach on this issue. Should a broad community consensus develop around a particular suite of reforms, the government may not wish to spend millions of dollars supporting a No case that has little public support. But if the government would like some flexibility in how it spends promotional funds, it should obtain Parliament’s agreement to this well in advance of any future referendum. This will prevent a funding controversy flaring up mid-campaign like it did in 2013.

The push for constitutional recognition of local government has stalled, but Indigenous recognition need not share the same fate. Most of the attention in the coming years will naturally be on the substance of reform proposals. But, with the abandonment of the local government referendum in mind, Australia’s political leaders must also take time to build a fair and credible process that is underscored by popular ownership.

Dr Paul Kildea is a Lecturer in the Faculty of Law at the University of New South Wales, and Referendums Project Director at the Gilbert + Tobin Centre of Public Law

Suggested citation: P. Kildea, ‘Australia’s abandoned local government referendum’  UK Const. L. Blog (29th November 2012) (available at http://ukconstitutionallaw.org).

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Scott Stephenson: Federalism and Liberty in Australia Through the Lenses of Same-Sex Marriage and Organised Crime

STEPHENSON%20ScottAmerican constitutional scholarship is replete with discussions of the relationship between federalism and liberty. Some argue that a plurality of jurisdictions creates competition, allowing citizens to ‘vote with their feet’ thereby providing a potentially more effective means of resisting oppression—relocation—than attempting to challenge state action at the ballot box or in the courtroom. Federalism can also generate greater sensitivity to local welfare, creating opportunities for national minorities to employ subnational apparatuses to pursue their interests, transforming them from political outsiders to political insiders. Others contest these claims, arguing, for example, that there is no basis for assuming that one level of government will be more protective of rights than another.

With some notable exceptions, this debate plays a less prominent role in Australian constitutional theory. Partly it is because the country’s federal system has not produced the level of policy diversity necessary to substantiate such claims. While some differences exist, Brian Galligan and Cliff Walsh observe that, ‘given the cultural homogeneity of the Australian people and the fiscal dominance of the Commonwealth, there are striking similarities in the policies of the various States’. In recent decades, the tenor of Australian federalism is towards greater policy uniformity and more consistent administration under the banner of cooperative federalism or, more controversially, through unilateral federal takeover where possible. Yet, as I intend to highlight in this post, recent legislative developments in two areas—same-sex marriage and organised crime—illustrate that Australia’s federal system continues to provide a laboratory for policy experimentation and that federalism’s connection to the protection of liberty demands close, critical scrutiny.

Same-sex marriage

As in the United States, there is a prominent federal dimension to Australia’s ongoing moves to secure legal recognition for same-sex relationships. In 2004, Commonwealth Parliament amended federal marriage legislation to define ‘marriage’ as ‘the union of a man and a woman to the exclusion of all others’ and to prohibit same-sex marriages solemnised in foreign countries from being recognised in Australia. In 2006, the Australian Capital Territory (‘the ACT’) sought to provide equal legal protection for same-sex couples with the introduction of civil unions. It was the first jurisdiction in Australia to introduce a law of this kind. The Commonwealth resisted the move, understanding it to be inconsistent with its prohibition against same-sex marriage. Soon after the law’s enactment, the Commonwealth government instructed the Governor-General to disallow the law, effectively repealing it.

It is worth pausing at this point to explain briefly the Commonwealth’s power to override State and Territory legislation. Under the Australian Constitution, the Commonwealth’s legislative power is limited to specified subject areas, one of which is ‘marriage’. Section 109 of the Constitution provides that ‘[w]hen a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.’ Territories are in a more precarious constitutional position. Commonwealth Parliament has power to make laws for the Territories. In 1988, the Commonwealth granted the ACT self-government, establishing a Legislative Assembly with the power ‘to make laws for the peace, order and good government of the Territory’. But this power was qualified. The Governor-General, acting on the advice of the Commonwealth government, was empowered to disallow any Legislative Assembly law within six months of enactment. Prompted in part by the controversy of disallowing the ACT’s civil unions legislation and by a change of federal government, Commonwealth Parliament removed its power of disallowance in 2011, placing Territories in a similar position to States—Commonwealth laws prevail over inconsistent Territory laws.

The ACT’s attempt to introduce civil unions helped prompt a national discussion about the law on same-sex relationships. In 2008, the Commonwealth granted de facto same-sex couples the same rights as de facto opposite-sex couples and today some States and Territories allow the registration of same-sex civil unions. Debate has not, however, stopped there. Same-sex marriage is the new battleground and it also has a prominent federal dimension.

On 22 October 2013, the ACT enacted legislation permitting persons who are not eligible to marry under Commonwealth law to marry in the ACT. The Commonwealth government is once again resisting. Stripped of its disallowance power, it is challenging the ACT’s legislation in the High Court. In an expedited hearing, the case will be argued before the High Court on December 3 and 4. The ACT’s argument will be that its law supplements, but does not frustrate, undermine, modify or replace, the right to marry under federal law—the two can coexist. Defeat for the ACT will set back efforts in the States where bills for the recognition of same-sex marriage have been introduced, but not passed, in New South Wales and Tasmania, leaving campaigners to concentrate on the more difficult task of federal reform.

Organised crime

On 28 September 2013, around twenty members from a motorcycle group ‘stormed’ into a restaurant on the Gold Coast in Queensland. Seven people were assaulted, including four police, and eighteen were arrested. Less than three weeks later, Queensland Parliament passed a package of laws, including the Vicious Lawless Association Disestablishment Act 2013. Under these laws, it is now an offence for a person who is a member, associate member or prospective member of a ‘criminal organisation’ (a) to be knowingly present in public with two or more persons who are also participants in criminal organisations, (b) to enter or attempt to enter a ‘prescribed place’ and (c) to attend or attempt to attend a ‘prescribed event’. The minimum penalty for each offence is six months imprisonment. A criminal organisation, a prescribed place and a prescribed event can be declared by regulation. The legislation declares 26 motorcycle clubs to be criminal organisations.

Many other measures are included in the package of laws. There are mandatory custodial sentences of 15 to 25 years (in addition to the original sentence) for persons who commit certain offences in the course of participating in an association that has as its purpose the commission of these offences. Association is defined broadly, including a group of three or more persons ‘by whatever name called, whether associated formally or informally and whether the group is legal or illegal’. There are also mandatory sentences for failing to answer questions in hearings before the Crime and Misconduct Commission. A separate jail for motorcycle group members is created where inmates’ telephone calls are monitored except for those to lawyers, their mail is opened and read, there are no gym or television facilities and visitors’ contact is restricted to one hour per week.

When Queensland’s Premier described the laws as ‘very tough … the toughest in Australia’, he alluded to the issue’s federal dimension. In recent years, an admixture of policy experimentation and competition has characterised relations between the States and Territories as they vie to enact measures for the suppression of organised crime, especially motorcycle groups, that are as restrictive as, if not more restrictive than, each other. It began in South Australia with the Serious and Organised Crime (Control) Act 2008. Following a violent confrontation between two motorcycle groups at Sydney Airport in 2009 that resulted in the murder of one member, several jurisdictions followed suit: New South Wales’ Crimes (Criminal Organisations Control) Act 2009, Queensland’s Criminal Organisation Act 2009 and the Northern Territory’s Serious Crime Control Act 2009. Not to be left behind, Western Australia enacted the Criminal Organisations Control Act 2012. All these laws employ a combination of asset seizures, restrictions on the freedom to associate and mandatory minimum sentences to control the activities of motorcycle groups. After Queensland’s latest round of laws, another wave of emulation may be about to commence.

As with same-sex marriage, the High Court is implicated in policing the boundaries of acceptable policy experimentation—and the nature of its role has a strong federal dimension. Judicial intervention in this area is not directly related to the protection of rights for Australia is without a judicially enforceable bill of rights (except in the ACT and Victoria). However, Australia’s Constitution provides, according to the High Court, for a separation of judicial powers doctrine at the federal level. The doctrine places certain restrictions on Commonwealth Parliament vis-à-vis federal courts, for example, it cannot vest them with non-judicial powers. Australia’s Constitution is a document that establishes and regulates the federal government. Thus, the doctrine does not apply at the state level. However, beginning in 1996, the High Court has held that State legislatures cannot vest State courts with powers that undermine their institutional integrity. The reason is federalism. As Australia’s Constitution permits Commonwealth Parliament to invest State courts with federal jurisdiction and State courts provide the basis for the High Court’s appellate jurisdiction, the High Court has said that State legislatures must maintain State courts that are suitable for these purposes. In 2010 and 2011, the High Court invalidated aspects of South Australia and New South Wales’ organised crime legislation on this basis. Under these laws, judges or courts were tasked with issuing control orders against members of declared criminal organisations in special proceedings. As these proceedings deviated from the regular judicial process, it was held that they undermined the judiciary’s institutional integrity and were, therefore, invalid. It appears that Queensland’s latest laws will soon be challenged in the High Court on this ground.

Federalism and liberty

Placing the issues of same-sex marriage and organised crime side-by-side raises three questions about the complex relationship between federalism and liberty in Australia. First, do multiple jurisdictions promote democratic deliberation about matters of liberty? On the one hand, the States and Territories have helped invigorate public discussion about legal recognition of same-sex relationships, creating multiple sites for popular engagement and preventing government ossification. The ACT’s actions pushed opponents of same-sex marriage to mount an affirmative case for their position rather than relying on silence and obfuscation to protect the status quo. Experiments with different levels and forms of recognition—non-discrimination, unions, partnerships, marriage—provided interlocutors with tangible policies to debate. On the other hand, Australia’s subnational jurisdictions can be exemplars of poor democratic process. Queensland has a unicameral legislature after the upper house was abolished in 1922. Using its majority in Parliament, Queensland’s government enacted its collection of organised crime laws in three days with little or no public consultation and no legislative committee review despite their significant ramifications for rights. Indeed, they were enacted with such haste that Queensland Parliament had to amend the legislation just days later after an important typographical error was detected and it appears that a second grammatical error has been detected that will also require legislative remedy. While such issues can also arise in a unitary system, federalism creates an additional reason for governments to rush the passage of legislation and to ignore dissent: avoidance of spillover effects. After Queensland enacted its legislation, reports emerged that motorcycle groups were migrating to Western Australia, prompting Western Australia to expedite the implementation of its organised crime legislation. Victoria and South Australia may also be preparing to follow Queensland’s lead. The potential for spillover—an influx of criminal organisations—places pressure on jurisdictions to enact similar legislation without delay and to downplay the concerns of dissentients.

Second, does Australia’s current allocation of powers between the two levels of government create incentives to adopt policy positions that negatively implicate liberty? As Commonwealth power has directly and indirectly expanded over the course of the twentieth century, criminal law is one of the few areas where States and Territories retain a significant degree of autonomy. Consequently, as Gabrielle Appleby and John Williams note, ‘state political leaders have sought to maximise political gain from tough law and order policies’. The latest round of laws illustrates how far some politicians will go to appear ‘tough’ on crime, demonstrating a lack of respect for established constitutional principles and resorting to simplistic and potentially misleading appeals to democratic accountability. Queensland’s Premier dismissed criticism from the legal community that the new laws violate the separation of powers, calling the concept ‘more of an American thing’. He resorted to the argument that it is for the majority of voters to decide whether Parliament unduly infringed rights, stating ‘the laws that were passed recently in Parliament were passed by democratically elected people of this State and in 18 months time, the people of this State get a chance to say, “well we didn’t like those laws” and we can get rid of them’.

Third, should we look to judicial or political solutions to safeguard the boundaries of federalism and to prevent unnecessary restrictions on liberty? Next month the High Court will need to decide whether it will impose a judicial prohibition on policy experimentation in relation to same-sex marriage, forcing debate exclusively to the federal level, or whether it will step out of the arena, allowing the two levels of government to debate both (a) the substantive content of policy proposals and (b) the appropriate forum in which it should be resolved. New South Wales’ Premier illustrated the distinction between the two questions when he recently resisted the introduction of same-sex marriage laws in State Parliament, claiming that, although he is personally in favour of same-sex marriage, the issue requires national consistency and thus resolution by the Commonwealth. A further complication in this area is that different issues produce different effects depending on whether the federal dispute has horizontal or vertical dimensions—or perhaps both. Invalidation of the ACT’s legislation would not put an end to efforts to recognise same-sex marriage, but instead convert it into a national debate. Invalidation of Queensland’s legislation, by contrast, may prompt a further round of policy experimentation at the State and Territory level. Indeed, invalidation of aspects of South Australia and New South Wales’ organised crime legislation did not put an end to legislative reform, but instead prompted more creative ways of restricting the freedom of association of certain groups while remaining within constitutional limits. It seems, therefore, that reports of federalism’s death are greatly exaggerated.

Scott Stephenson is a J.S.D. Candidate and Tutor in Law at Yale University

Suggested citation: S. Stephenson, ‘Federalism and Liberty in Australia Through the Lenses of Same-Sex Marriage and Organised Crime’  UK Const. L. Blog (13th November 2013) (available at http://ukconstitutionallaw.org)

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Ian Cram: Some Thoughts on Constitutional Amendment

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How changeable ought constitutions to be? A strange question perhaps for a UK constitutional lawyer to pose given the relative ease by which political majorities in this jurisdiction can swiftly effect far-reaching constitutional revision. The prompt for this blog came whilst in Athens recently for a conference on constitutional reform, The conference had been timed to coincide with the ending of a five year moratorium on constitutional amendment laid down in the Greek Constitution. For Greeks, this has proved to be a case of especially bad timing. Since the start of the financial crisis in 2007-8, the mandatory time lapse between constitutional revision meant that no amendment to the Constitution was possible before May 2013. In the current period, any successful revision will require special majorities via complex amending formulas that necessitate an unlikely degree of consensus across Greece’s polarized political class (elections in June 2012 saw seven political parties elected to Parliament including, for the first time, the far-right, ultra-nationalist Golden Dawn with 18 MPs out of a total of 300 MPs). Unsurprisingly, one of the options being discussed is an amendment to relax the stringency of existing amendment procedures (discussed here). The flip side of avoiding rash constitutional change by a narrow majority of MPs acting for party political gain is now unfortunately plain to see -  a fragmented political elite unable to coalesce around an agreed set of reform proposals as large sections of the Greek people continue to suffer severe financial hardship.

The ease with which constitutional amendment can occur is typically described as lying on a point somewhere on a spectrum at whose polarities lie ‘rigid’ and ‘flexible’.  The more ‘rigid’ a constitution is said to be, the harder it will be to amend the constitutional text. For example, a constitution which constrains the actions of legislatures or state officials via procedurally entrenched foundational norms or basic constitutional commitments will be deemed ‘rigid’. This might be considered attractive from the perspective of establishing a set of underpinning commitments or values such as core democratic norms (eg the regular holding of free and fair elections, the protection of individual rights to vote, expression, association etc.) but how desirable is it for the commitment strategy of an earlier set of framers and their electorate to bind the hands of the current generation? And what of the yet more rigid position of putting certain constitutional provisions beyond amendment altogether as occurs in Germany where neither the federal system of government nor the basic principles of Article 1 (human dignity) or Article 20 (state order) may be amended? Can an absolute bar on amendment at any time in the future ever be justified? Or is there an optimal design of constitutional amendment that maximises (or, less ambitiously, accommodates satisfactorily) both (i) a set of core commitments and (ii) the freedom of the present-day electorate to participate in the re-making of their own constitution? Presumably a defence of entrenched core commitments need not entail putting all provisions of the constitution beyond the reach of ordinary majorities in the legislature.

In the UK, the lack of formal procedures requiring special majorities points up the ease of constitutional amendment. The obvious advantage in such a system is that it allows a democratically elected majority in the legislature to act swiftly to address unanticipated external threats as well as updating/amending laws to reflect changed social/moral attitudes. The obverse is that constitutional revision can occur in a hurried and partisan fashion, without adequate consultation among all affected/interested individuals and groups where change is forced through in an unprincipled fashion using the governing party’s (or parties’) parliamentary majority.

Take as a recent example of a major constitutional change the Fixed-term Parliaments Act 2011. The Act fixes the date of the next General Election for May 7, 2015 unless one of two triggers for an earlier election are satisfied – namely a two thirds majority of the total number of MPs in the House of Commons pass a motion for an early General Election or where a vote of no confidence is passed by the Commons, an alternative government that commands majority Commons support is not formed within 14 days. Whatever one thinks of the purposes behind and merits of the Act, the processes by which it was enacted (including the use of a three-line whip of MPs and peers) have been sharply criticised. Whilst understanding the need for progress on the matter, the Commons Political and Constitutional Reform Committee stated that,  “bills of such legal and constitutional sensitivity should be published in draft for full pre-legislative scrutiny, rather than proceeded with in haste… we regret …the rushed timetable that the Government has unnecessarily adopted for the Bill, and the incremental and piecemeal approach to constitutional change that the Bill seems to represent.” The House of Lords’ Constitution Committee took an even more critical line that extended to the merits of the measure, commenting that “the origins and content of this Bill owe more to short-term considerations than to a mature assessment of enduring constitutional principles.” It is hard to discern a sense of prevailing constitutional values or identity when constitutions are so readily alterable. Unless some version of common law constitutionalism is asserted, the UK Constitution may be thought to lack a capacity for commitment to deeper value norms.

By contrast, the formal amendment requirements of Article V of the US Constitution are said to make the US Constitution difficult to amend. Article V states that an amendment can be proposed by two thirds majorities of both the House of Representatives and Senate and ratified by three quarters of the state legislatures (38 state legislature ratifications would be needed today). Alternatively, Article V provides that two thirds of the state legislatures can request a constitutional convention to propose a constitutional amendment that in turn requires the ratification of conventions in three-quarters of the states. From a total of 27 successful amendments to the Constitution since 1787 (including ten in 1791), not a single constitutional amendment has been secured via the constitutional convention route. The onerous special majority procedures allow just thirteen states to block constitutional reform and lend the degree of rigidity that is evidenced by the infrequency of constitutional revision. In truth however, where formal amendment is onerous, ‘informal’ amendment is more likely to occur through new judicial and legislative interpretations of constitutional text. The First Amendment may not have been amended since its ratification by three-quarters of the state legislatures in 1791. Nonetheless, the nature and scope of free speech protection has undergone a radical judicial transformation in the intervening years. The landmark Holmes and Brandeis dissents in Abrams (1919) and Gitlow (1925) for example are rightly credited with fashioning ultimately a much more powerful form of constitutional protection for dissenting speech against federal and state government regulation.

Conclusion

Thomas Jefferson famously rejected the power of a previous generation to bind the present, advocating a constitution that would lapse every nineteen years which would allow the next generation to author its own framework of laws. In a letter to James Madison, he stated:

“I set out on this ground which I suppose to be self-evident: ”That the earth belongs in usufruct to the living;’ that the dead have neither powers nor rights over it… We seem not to have perceived that by the law of nature, one generation is to another as one independent nation to another.” (Letter to James Madison, Paris September 6, 1789.)

For Jefferson, constitutional amendment needed to be relatively simple to achieve. The responsiveness of constitutions to popular opinion was crucial. He would doubtless be amazed at the constitutional impasse in which Greek society now finds itself. At the same time however, it is not clear that his idea of fixed and relatively brief life spans for constitutions would offer the degree of stability that modern political and economic structures require. The search for an optimal constitutional amendment mechanism continues.

Ian Cram is Professor of Comparative Constitutional Law at the University of Leeds.

Suggested citation: I. Cram, ‘Some Thoughts on Constitutional Amendment’ U.K. Const. L. Blog (12th November 2013) (available at http://ukconstitutionallaw.org).

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