Category Archives: Comparative law

by Constitutional Law Group | May 14, 2013 · 7:35 am

Paul Daly: Death, Democracy and Delegation

Decisions on when to end one’s life are unquestionably of the greatest intimacy. Yet there is a clear public interest in ensuring that these decisions are carefully regulated to ensure the safety of the vulnerable. Accordingly, quite what legal framework should govern end-of-life-decisions — if, indeed, there should be any framework at all — is a contested question.

Recent developments in Ireland and the Canadian province of Québec offer a new angle on the question. An interesting contrast can be perceived between the decision taken by the Irish High Court in Fleming v. Ireland, [2013] IEHC 2, and the “Ménard report” commissioned by Québec’s Parliament. In Fleming, the High Court dismissed as undemocratic guidelines which would structure the discretionary power to prosecute. Whereas the Ménard report concluded that prosecutorial guidelines would be the only way to give effect to the Québec Parliament’s desire to legalize assisted suicide within defined parameters.

In Fleming, the High Court, and subsequently the Supreme Court ([2013] IESC 19), upheld the provisions of the Criminal Law (Suicide) Act, 1993 against constitutional challenge. One aspect of the case — which was not appealed to the Supreme Court — was whether the Director of Public Prosecutions could be obliged to issue guidelines explaining the factors to be taken into consideration in deciding whether or not to prosecute the offence of assisted suicide.

As I have explained elsewhere, the High Court did not follow the decision of the House of Lords in Purdy v. Director of Public Prosecutions, 2009 UKHL 45. There, the House of Lords addressed a materially identical prohibition on assisted suicide which left discretion to prosecute in the hands of the Director of Public Prosecutions. The failure to set out in published guidelines the considerations which would be weighed in the balance in deciding whether or not to prosecute was held to violate the legality principle of the European Convention on Human Rights: the necessary foreseeability and accessibility were lacking. Significant contortions were required for the High Court to twist away from Purdy and towards its ultimate (quite odd) conclusion that the Director of Public Prosecutions has no power at all to issue guidelines (a fact which doubtless came as a shock to the Director of Public Prosecutions, who issued a set of general guidelines several years a go).

More remarkable still was another conclusion: that it would be undemocratic for the Director of Public Prosecutions to issue guidelines. This conclusion rested on Article 15.2 of the Irish Constitution. As judicially interpreted, this provision has functioned as a “non-delegation” clause. Sweeping grants of discretion to administrative decision-makers are unconstitutional. Principles and policies must be specified in the governing legislation. In the High Court’s view, requiring the Director of Public Prosecutions to issue guidelines would violate the democratic principle of Article 15.2:

It seems clear to this Court that the effect of any direction requiring the Director to issue guidelines of the kind now sought by the plaintiff would infringe these basic constitutional principles. While the plaintiff asserts that she is seeking no more than a statement of factors which would influence the decision of the Director whether or not to prosecute, the reality of course is that, for her own very good reasons, she wishes to know that the Director will not in fact prosecute in her case. Whatever the stated objective of seeking guidelines may be, there can be no doubt but that the intended effect of obtaining such relief would be to permit an assisted suicide without fear of prosecution. No amount of forensic legerdemain can alter that fact. For, absent such effect, one is driven to ask what practical purpose or value lies in seeking such guidance? There is, in truth, none. It follows therefore that in this context ‘effect’ is every bit as important as ‘object’…Once guidelines may be characterised as having the effect of outruling a prosecution, they must be seen as altering the existing law and must therefore fall foul of Article 15.2 of the Constitution…

This conclusion is implausible. The High Court was presented with two options: maintain the status quo, or order guidelines. The status quo involves essentially unreviewable decisions taken behind closed doors in the office of the Director of Public Prosecutions. As a rule, reasons are not given (although a pilot project has been mooted).

Guidelines would involve (possibly) public consultation and (certainly) release to the public of the factors considered relevant in deciding to prosecute. The publication of guidelines could foment public debate. If public opinion were to pitch decisively one way or another, the Irish Parliament could always intervene to more carefully delineate the Director of Public Prosecutions’ discretion. It is very difficult to see how the status quo is more democratic than a world with guidelines. And this is quite apart from the benefits to affected individuals of increased foreseeability and accessibility.

Indeed, the High Court recognized that the Director of Public Prosecutions was bound to take some factors into account in exercising prosecutorial discretion. It suggested that the U.K. guidelines should be taken into account, as well as factors laid out by a Canadian judge. But it did not explain how taking into consideration guidelines developed in another jurisdiction and factors identified by a foreign judge would be more democratic than ordering the Director of Public Prosecutions to issue guidelines.

Of course, this was probably just about as much as the plaintiff could hope for, in the absence of an order striking down the Act altogether. Not appealing was probably prudent, even though the High Court’s reasoning was questionable.

The contrast with the Ménard report is stark. Québec operates in a different legal environment. In Canada, criminal law is the domain of the federal government and s. 241 of the Criminal Code prohibits assisted suicide. This prohibition was (narrowly) upheld by the Supreme Court of Canada in Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519. More recently, it was struck down by a British Columbia trial court (Carter v. Canada (Attorney General), 2012 BCSC 886), a decision which is under appeal and is likely to wend its way to the Supreme Court of Canada. This process could take some time, however, and the ultimate outcome is uncertain.

In the meantime, Québec is anxious to find some means of giving effect to a policy of permitting assisted suicide, within carefully defined parameters. The process that culminated in the Ménard report began in 2009. A special commission was struck and set about sounding public opinion. Its recommendations were adopted unanimously by the Québec Parliament in 2012. Subsequently, the three authors of the Ménard report were tasked with providing a legal framework in which the recommendations could be implemented.

The path taken in the Ménard report is interesting, though unlikely to survive constitutional challenge.

In the division of powers set out in Canada’s Constitution Act, 1867, criminal law falls in the domain of the federal government, but health care is indisputably a provincial concern. Accordingly, Québec could certainly pass legislation regulating end-of-life care. But in doing so, it could not impede federal criminal prohibitions. Legislation legalizing, or seeking to legalize, assisted suicide would be plainly unconstitutional.

The ingenious suggestion in the Ménard report is to capitalize on the provincial power over “administration of justice”. Although criminal offences in Canada are set out in the federal Criminal Code, provincial attorneys general are responsible for prosecution. Prosecutorial discretion is, moreover, reviewable only in very limited circumstances.

Accordingly, the Ménard report suggests (albeit without being clear on the precise means of implementation) that Québec could introduce guidelines cabining prosecutorial discretion. These would not be binding and thus would not displace the federal prohibition on assisted suicide. They would seek to regulate provincial discretion, not to undermine federal law. Something similar to the U.K. guidelines is envisaged.

The contrast with the Irish position is stark. Where the Irish High Court rejected guidelines as undemocratic, in Québec, guidelines are proposed as the only means to give effect to the desire of the population to permit assisted suicide.

That is not necessarily to say that the approach taken in the Ménard report will be successful. The precise means of implementation are left unclear by the authors, but would have to be carefully calibrated. The slightest misstep would take Québec into the exclusively federal territory of criminal law. Moreover, given the generous Canadian approach to standing, the courts are unlikely to be impressed by an argument based on the unreviewability of prosecutorial discretion. A general challenge to the existence of such guidelines, on the basis that the provincial attorney general simply had no authority to issue them, would probably receive a sympathetic hearing.

Any Québec attempt to liberalize the rules on assisted suicide is likely to run into significant constitutional difficulties. In Canada, federal law is paramount over provincial law. Provincial laws (or actions) which frustrate the purpose of federal laws are inoperative. And of course, the very purpose of the provisions — binding or not — envisaged by the Ménard report is to frustrate the operation of the federal prohibition on assisted suicide.

Whatever its ultimate fate, the Ménard report’s orientation is preferable to that of the Irish High Court. Legislators cannot foresee every eventuality. A legitimate response is to vest discretion in administrative actors. Once this has been done, however, decision-making with a public aspect is preferable (from a democratic point of view) to decision-making behind closed doors. Moreover, published guidelines can provoke popular debate and legislative reaction, thereby playing a democracy-enhancing role. Even if the Ménard report proves legally flawed, it has highlighted the democratic potential of administrative guidelines.

Paul Daly is a member of the Faculty of Law at the Université de Montréal. He can be reached at paul.daly@umontreal.ca. He blogs at administrativelawmatters.blogspot.com.

Suggested citation: P. Daly, ‘Death, Democracy and Delegation’ U.K. Const. L. Blog (14th May 2013) (available at http://ukconstitutionallaw.org).

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Tagged as Assisted suicide, Canada, Ireland, Purdy

by UKCLG blog editors | April 11, 2013 · 5:08 am

Kate Malleson: Is the UK the only OECD country that does not have excellent women lawyers fit for our highest courts?

Readers will be forgiven for not noticing, but on 8 April 2013 Lord Justice Hughes and Lord Justice Toulson were sworn in as Justices of the UK Supreme Court.

Their appointment, together with that of Lord Hodge (who will succeed Lord Hope when he retires in October 2013), leaves the Court rock bottom of the list Supreme Courts of the 34 OECD (Organisation for Economic Co-operation and Development) countries when it comes to the gender composition of bench. Fifteen new judges been appointed to the court since 2009 when the court opened its doors. All have been male. Lady Hale remains the only woman ever appointed to the highest court in the land.

It is now well established that there are many barriers to women reaching the higher ranks of the judiciary: from the unreconstructed working arrangements of the legal profession and the bench to the wider social context of the gendered division of labour around caring responsibilities. But all of these barriers are equally present in other countries which have done so much better than us in appointing women to their judiciaries.

Numerous detailed proposals for reform have been put forward in the UK over the last 20 years for encouraging greater diversity on the bench. All of them are necessary but they are not sufficient. What Adam Wagner has described as an ‘attack of the clones’ continues. In fact, in the last two appointment rounds – though which five Supreme Court Justices were appointed – just one woman sat on the appointing committee.

Ultimately, to change the composition of an institution of power such as the judiciary and to allow in those who are not drawn from the same background as the traditional recruits requires political will. Not just from politicians, but from all the key stakeholders, in this case the judges and the legal profession.

In Northern Ireland after the Good Friday agreement was signed there was political will to change the composition of the bench, in that case to include those from the catholic community. It would no longer have been acceptable for the majority catholic community to be tried by an almost exclusively protestant bench. Quietly and effectively the change was made within a few years. The same political will is evident in countries such as Canada which have transformed their Supreme Court composition in terms of gender. The latest round of appointments to the UK Supreme Court shows that the same political will is lacking here.

The claim – evidenced by these appointments – that after 30 years of women entering the legal profession in large numbers and almost a decade after the first woman was appointed to the House of Lords – we still don’t have enough highly talented women to appoint to the bench is simply incredible. Do we really believe that we are the only country in the OECD that does not have excellent women lawyers fit for our highest courts? They may not look identical to the men who have traditionally been appointed, but they are there. It is time for the discussions, the official reviews and the hand-wringing to stop. It is time for some of these excellent women to be put on the bench where they belong.

Kate Malleson is Professor of Law at Queen Mary, University of London. Equal Justices Initiative is a forum for bringing together academics, practitioners, judges and policy-makers to work towards gender parity on the bench.

Suggested citation: Kate Malleson, ‘ Is the UK the only OECD country that does not have excellent women lawyers fit for our highest courts? ’ , UK Const. L. Blog (11 April 2013) (available at http://ukconstitutionallaw.org).

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Tagged as diversity, Equal Justices Initiative, judicial appointments, judiciary diversity, UK Supreme Court

by Constitutional Law Group | April 2, 2013 · 2:51 pm

Dawn Oliver: Parliamentary Sovereignty in Comparative Perspective

I Parliamentary sovereignty in other countries

In this post I defend the absence of judicial strike down powers in the UK by exploring the ways in which other countries besides the UK manage to function well as liberal democracies without courts enjoying strike down powers, and looking at some of the negative aspects of the USA system, which is sometimes held up as a model to which the UK should look.

A doctrine of parliamentary sovereignty in the particular sense that the courts will give effect to legislation passed by the Parliament on any subject matter, even if it is ‘unconstitutional’, is not unique to the UK. It applies in common law based New Zealand which – like the UK – does not have a formally entrenched written constitution (though a 75% majority in a referendum is required to certain aspects of the electoral system). It also applies in some of our Northern European neighbours, notably Finland, Sweden and the Netherlands.

New Zealand

Politics in New Zealand resembles that of the UK in a number of respects, including the development of constitutional conventions of political restraint in relation to the constitution and the cultivation of good relations between the courts, the Parliament and the executive (M. Palmer ‘Open the door and where are the people’ The white population of New Zealand is relatively homogeneous and cohesive. Special measures – the Treaty of Waitangi – protect the Maori.

The New Zealand Parliament enacted a Constitution Act in 1986 which describes the country’s constitutional arrangements but leaves the traditional doctrine of parliamentary sovereignty broadly in place. The principal purpose of the 1986 Act was to patriate the New Zealand constitution by breaking its links with and dependence on the United Kingdom’s legal system.

The constitutionality of laws in New Zealand, not being protected by American-style judicial review, is promoted in a range of informal ways. In 1986 Minister of Justice, later Prime Minister, Geoffrey Palmer established a non-statutory Legislation Advisory Committee. The Committee is serviced by the Ministry of Justice and generally meets every six weeks. Its terms of reference are as follows:

(a) to provide advice to departments on the development of legislative proposals and on drafting instructions to the Parliamentary Counsel Office;

(b) to report to the Attorney General on the public law aspects of legislative proposals that the Attorney General refers to it;

(c) to advise the Attorney General on any other topics and matters in the field of public law that the Attorney General from time to time refers to it;

(d) to scrutinise and make submissions to the appropriate body or person on aspects of Bills introduced into Parliament that affect public law or raise public law issues;

(e) to help improve the quality of law-making by attempting to ensure that legislation gives clear effect to government policy, ensuring that legislative proposals conform with the LAC Guidelines and discouraging the promotion of unnecessary legislation.

Its members include the President of the Law Commissioners, academics, practising barristers, judges and parliamentary counsel and civil servants. While it has no delaying power and it is open to the government to ignore its reports, it is assumed to have an effect upstream in government during the preparation and then the parliamentary processing of bills. It is very rare for the New Zealand Parliament to pass laws that would be regarded as ‘unconstitutional’. I shall return to lessons that may be drawn from the New Zealand approach in due course.

Sweden, Finland and the Netherlands

Doctrines of parliamentary sovereignty in the sense that the courts may not hold an act passed by the primary legislator to be invalid as being ‘unconstitutional’ also operate among some of our Northern European neighbours (see Jaakko Husa‘ Guarding the Constitutionality of Laws in the Nordic Countries: A comparative perspective’ in 48 American Journal of Comparative Law, 2000, p. 345). Practice in these non-common law, small country jurisdictions may seem of little relevance to the UK, but we share a number of important and influential characteristics with them which can cast light on how they, and the UK, manage quite well without constitutional review by the courts.

There is very little American or German style ‘judicial review’ of legislation in Sweden: judicial review is only permitted if the conflict with the Constitution or another higher law is ‘clear’ or ‘manifest’ (see Thomas Bull ‘Judges without a Court: Judicial Preview in Sweden’ in T. Campbell, K. D. Ewing and Adam Tomkins The Legal Protection of Human Rights: Sceptical Essays, Oxford, Oxford University Press, 2011; Lars-Goran Malmberg in X. Contiades, ed. Engineering Constitutional Change: A Comparative Perspective on Europe, Canada and the USA, Abingdon, Routledge, 2012); in Finland there is none (see Jaakko Husa The Constitution of Finland, Oxford, Hart Publishing, 2011; Tuomas Ojanen ‘Constitutional amendment in Finland’ in Contiades ed, above; M. Suksi ‘Finland’ in Oliver and Fusaro, How Constitutions Change, Oxford, Hart Publishing, 2011; Kaarel Tuori in T. Campbell, K. D. Ewing and Adam Tomkins The Legal Protection of Human Rights: Sceptical Essays, above). These countries rely substantially on pre-legislative, abstract scrutiny – preview – of bills by special parliamentary committees: for instance the important and highly regarded Constitutional Committee of the Finnish Parliament; and, in the case of Sweden, on the work of its extra-parliamentary legislative committees in preparing proposals for legislation, and its Law Council, an official independent body similar to the French Conseil d’état or the New Zealand Legislation Advisory Committee, which scrutinises and reports on bills.

The Netherlands also lacks judicial review of Acts for constitutionality by the courts: this is forbidden by article 120 of the Constitution (see C A J M Kortmann and P P T Bovend’Eert The Kingdom of the Netherlands: An Introduction to Dutch Constitutional Law, Boston, Kluwer Law and Taxation Publishers, 1993). The Netherlands system relies on its Council of State to ‘control’ [scrutinise] and report on bills before they are passed. Its parliamentary committees are weak.

Each of the ‘preview’ bodies in these three countries includes lawyers in its membership – judges, academics or practitioners – and in some respects they adopt formal procedures which resemble those of the courts: hence the phrase ‘judicial preview’ may be applied to them, though they are none of them ‘courts’. In summary, each of these countries has developed a system of constitutional preview involving extensive consultation about and expertly advised non-partisan scrutiny of legislative proposals at a number of stages in the legislative process which has proved effective in preventing the making of ‘unconstitutional’ laws.

Despite the restrictions on or absence of judicial review for constitutionality only seldom, if at all, are laws passed which seriously conflict with constitutional principles in these countries. (Readers may be thinking that ‘seldom’ is not as good as ‘never’; and why does only ‘serious’ conflict matter? Perfection is unachievable in these matters. Is it the fact that bad laws of a constitutional nature have never been passed and given effect by the courts under their written constitutions in countries with judicial review? Surely not. (I shall consider the position on this issue in the United States briefly below.) On the other hand the Netherlands is a monist system and thus treaties, including for instance human rights treaties, have direct legal effect and give rise to rights that individuals may enforce in the courts. Thus there is in practice a form of judicial review of provisions in Acts which a court in the Netherlands may ‘disapply’ in case of incompatibility with treaty provisions, some of which are ‘constitutional’ in nature.

Sweden and the Netherlands, like the UK, are constitutional monarchies: they have evolved continuously over at least two centuries gradually subjecting the exercise of formerly wide powers by the head of state and government to legal and conventional constraints. The Constitution of Sweden dates from the Instrument of Government, 1809. The Constitution of the Netherlands as an independent state and monarchy dates back to 1814. Finland was part of Sweden until it became a Russian Grand Duchy – similar to a monarchy – of Russia in 1809. The Finnish Constitution of 1917-1919 was drafted on the assumption that the country would be a monarchy or German Grand Duchy, but this became impossible after the defeat of Germany in World War I and Finland turned to electing a President who enjoyed some powers of a King. Thus although the Finnish Head of State is a President the country has retained some of the traditions of continuity that constitutional monarchies possess ( see Seppo Hentila in The Parliament of Finland (Helsinki, The Parliament of Finland, 2000) pp. 35-45; Jaakko Husa, above.)

Each of these countries has a parliamentary executive, thus allowing constitutional traditions and conventions of responsible and responsive government to evolve and regulate the relations between the parliament and the executive in ways that are not possible in non-parliamentary, presidential systems; each has a fairly homogeneous population most of whose members share senses of common identity and common interests. Where, as in the Aland Islands of Finland, a population has a separate identity, special arrangements for their protection have been made. These countries have fairly consensual political traditions (see for instance Arend Lijphart, The Politics of Accommodation: Pluralism and Democracy in the Netherlands, 2nd edn. , Berkeley: University of California Press, 1975, on The Netherlands), and there are cultures of non-partisan approaches to constitutional matters or political traditions of pragmatic compromise: these tendencies may be reinforced by the fact that each uses a system of proportional representation in elections. The Finnish Constitutional Committee and the Swedish and Netherlands Councils of State act in quasi-judicial ways, taking advice from lawyers, often academics, and evidence, formulating their opinions in terms of constitutional legality, and generally adopting non-political positions.

Where a non-partisan approach to constitutional matters does not exist in a substantial section of the population of a state, where for instance a population is seriously divided on class, racial, sectarian, tribal or religious grounds, non-partisan politics, especially in relation to minorities and constitutional matters, may be impossible: experience in Northern Ireland, with its divided unionist and nationalist communities, in the middle of the twentieth century illustrates the point. In such countries there may well be a need for a judicially enforceable Constitution –and/or international agreements to resolve conflicts – as are provided for by the Northern Ireland Act 1998 and the Belfast Agreement (Cm 3883, 1998).

The UK shares many characteristics with New Zealand, Sweden, Finland and the Netherlands including evolution of constitutional arrangements over many years and parliamentary executives. Of course, the UK does not have a tradition of consensual party politics or coalition government. This may be due to the first past the post electoral system and to the fact that British politics retains elements of a class system, which in turn are reflected in some of the policies of the main political parties: class is less important in New Zealand and our Northern neighbours than in the UK. The UK does however, I suggest, have cultures and traditions that are hostile to partisan, and in favour of non-partisan, constitutional politics – again, Northern Ireland has been an exception: there consociationalism now provides a new form of consensus politics. But among the general public and in opposition parties opposition to partisanship in constitutional politics is deeply embedded in Great Britain.

It is broadly agreed and understood among Westminster parliamentarians and among the general public that constitutional change should not be brought about with a view to benefiting the party or parties in government or their supporters; rather constitutional changes should promote honestly held views about the public interest and where the balance between individual rights and conflicting public interests lies. Allegations of partisanship are of course made, especially by opposition parties and the critical press, when constitutional changes are under consideration. But Governments proposing change in the UK will never admit to partisanship: if they were to do so this would attract general public disapproval.

Partisan party political considerations no doubt influence the priority given to some proposals for constitutional change over others: commitments by the Labour government that was elected in 1997 to devolution to Scotland and Wales were no doubt influenced by fear of the Scottish National Party and Plaid Cymru winning over Labour voters if no such promise was made. That consideration does not however of itself detract from the merits of devolution, which are based in senses of shared national and regional identities and desires for government in these areas to promote general interests within each territory and for public servants to prioritise the interests of their populations, and not sectional interests.

This non-partisan understanding about constitutional change in the UK may exist because each government is an opposition in waiting and each opposition party is a government participant in waiting. The electoral system operates so that there are regular changes of government. It is not therefore in the interests of either government or opposition parties to concede a right to the others to use their power in relation to the constitution for party political advantage without any public interest justification. The terms of such debates take for granted that constitutional change should be non-partisan.

To sum up, nowadays the systems in New Zealand, Sweden, Finland and the Netherlands, and in the UK, include informal procedures, legal and political cultures and traditions which enable their constitutional arrangements to function reasonably well and generally without discriminating against parties and classes of people – without judicial strike down powers.

II Countries in which the courts may disapply or strike down legislation: the case of the USA

As is well known doctrines of parliamentary sovereignty in the specific sense that the courts will apply Acts passed by the Parliament regardless of their wisdom, workability or constitutionality do not apply in many countries with written and entrenched constitutions: the Constitution itself may contain clauses which limit the legislator’s power to make certain laws, for instance laws which interfere with federal principles or constitutionally protected human rights, or the independence of the judiciary either forever (eternity clauses, as in the German Basic Law) or unless and until the text of the Constitution is amended in accordance with special procedures such as two thirds majorities in the legislature and assent by three quarters of the states (as in the USA), referendums (as in Switzerland) and so on. And in those countries the courts – either all courts, or a Constitutional or Supreme Court – may disapply (in a concrete case) or strike down (for universal effect) legislation passed by the legislator/Parliament which breaches the Constitution: the USA and Germany are well known examples of countries in which a strike down power exists, but this is the case in very many liberal democracies.

The USA

The USA is an interesting example of how a system based on the common law has evolved differently from that of New Zealand and the UK and its Northern European neighbours. The USA was formed in a revolution and rejected the hereditary monarchy; it introduced instead an elected, rather monarchical, Presidency many of whose powers are very broad and ill-defined in the Constitution, legally controlled to an extent by Congress and by judicial review by the Supreme Court – but not, politically, by conventions. Other presidential powers are so constrained by Congress, in which the President may not have a majority, that it becomes almost impossible for even the most basic new laws to be passed without protracted political wrangling.

Why is this not the case in the UK – and in New Zealand and Canada and other Commonwealth nations? (s ee for instance T. Kahana ‘Canada’, M. P. Singh ‘India’, and P. Rishworth ‘New Zealand’ in Oliver and Fusaro, eds, above). In these countries conventions have evolved over time to deal with the fact that the Crown was not subject to judicial review – individual ministerial responsibility to Parliament being the most significant of these conventions. No such evolution took place in the USA because, the system being presidential rather than parliamentary, no confidence relationship exists between the President and Congress, and because all the ground rules are assumed to be contained in the Constitution and the decisions of the Supreme Court: in this respect the USA is a highly positivist system. The fact that the USA took a different and ‘non-conventional’ route from that taken by the UK and many Commonwealth countries and many other constitutional monarchies may go some way to account for the development of constitutional judicial review in the USA and in other states with executive presidencies, and for its absence in the UK and its legally related cousins.

The positivist approach and the absence of political conventions that constrain the exercise of executive power may also account for the fact that neither party political nor constitutional politics in the USA are consensual: the Constitution itself has been subject to political manipulation, the appointments to the Supreme Court have become politicised, and many executive and Supreme Court decisions on constitutional issues are wide open to allegations of political partisanship. Given that the United States Supreme Court’s constitutional judicial review jurisdiction is commonly looked to as an example to be followed by the UK, we should bear in mind that America is very different from the UK in many respects. It is not a parliamentary system. It is federal while the UK is a union state: it is essential in a federation that the states are judicially protected against encroachment on their powers by the federal institutions. By contrast the devolution arrangements in the UK specifically preserve the UK Parliament’s sovereignty. America’s political culture is even more aggressive than that of the UK and far less civil in its political and legal affairs: incivility is recognised as a problem in the USA (see for instance Susan Herbst, Rude Democracy: Civility and Incivility in American Politics, Philadelphia, Temple University Press, 2010; Dr Leslie Gaines-Ross ‘Incivility is harming America’s reputation’ at http://reputationxchange.com/2011/06/21/incivility-is-harming-americas-reputation/) whereas it is not – so far – seen to be a real problem in UK politics and legal practice.

The US Supreme Court has of course a positive record in relation to the Constitution, in particular human rights, in some areas, including the desegregation of schools (Brown v Board of Education 347 US 483 (1954)), and abortion (Roe v Wade 410 US 113 (1973). American arrangements are not, however, by any means watertight guarantees of human rights or good government (see generally T. Campbell, K.D. Ewing and A. Tomkins The Legal Protection of Human Rights: Sceptical Essays, above), and this should be borne in mind by those arguing for the adoption of constitutional review in the UK. No system is watertight. The USA Constitution and the Supreme Court’s role in interpreting and upholding the Constitution, and the political and public cultures there have not prevented the following:

a) Slavery (abolished by the Thirteenth Amendment, 1865; compare the ending of slavery throughout the British Empire by Act of Parliament in 1833, and its ending at common law in Somersett v Steuart (1772) 20 St Tr 1 (England) and Knight v Wedderburn (1778) Moor 14545 (Scotland)).

b) Racial segregation (upheld by the Supreme Court in Plessy v Ferguson 163 US 537 (1896), but later declared unconstitutional by the Supreme Court in Brown v Board of Education 347 US 483 (1954); the move to constitutionally required integration came with the Supreme Court decision in Green v School Board of New Kent County 391 US 430 (1968)).

c) Discrimination (phased out in a series of Civil Rights Acts in 1964, 1965 and 1968).

d) The denial of voting rights to slaves (ended by the Fifteenth Amendment, 1870, which guaranteed the right to vote without regard to race) and women (the Nineteenth Amendment, 1920, completed the extension of the franchise to women, providing that the right to vote could not be denied ‘on account of sex’).

e) Denial of many labour rights (Lochner v New York 198 US45 (1905)).

f) Prohibition (established by the Eighteenth Amendment in 1920, ended by the Twenty First Amendment in 1933).

g) The race based gerrymandering of district boundaries (found to be unconstitutional by the Supreme Court in Gomillion v Lightfoot 364 US 339 (1960); see also Miller v Johnson 515 US 900 (1995) and Hunt v Cromartie 532 US 234 (2001). Partisan gerrymandering continues).

h) The widespread use of the death penalty,

i) The upholding of unfair campaign financing practices (Buckley v Valeo 424 US 1 (1976); Citizens United v Federal Election Commission 558 U.S. 310 (2010)).

j) Resolution by the top court of a major presidential election dispute in favour of the candidate who received fewer votes than his opponent, reinforcing the incentives for a President to pack the Supreme Court with sympathetic judges (Bush v Gore 531 US 98 (2000)).

k) Detention of suspects without trial off-shore for lengthy periods.

Such problems should be borne in mind by those encouraging the UK and its courts to adopt US style judicial review, especially if they are encouraged to do so unilaterally and without a mandate in the form of legislation passed by Parliament or the adoption of a written constitution for the UK. A move to judicial review of legislation in the UK could well undermine the positive pro-constitutionalism, non-partisan aspects of the political and governmental culture.

III Concluding remarks

Of course other countries with entrenched written constitutions and Constitutional or Supreme Courts exercising judicial review of Acts may have different experiences of the workings of their arrangements. Such a system works well in Germany, for instance. But each has its own history and political and legal cultures. These should not be overlooked when fundamental changes to the British arrangements by virtue of unilateral and thus irreversible assumption of a strike down power by the courts is contemplated or argued for. Hints by some of the judges in Jackson v. Attorney General ([2006] 1 AC 262) to the effect that the courts may exercise a reserve power to refuse to give effect to a provision in an Act that was contrary to the rule of law should ring alarm bells. If the UK were to adopt an entrenched written constitution providing for a Supreme or Constitutional Court with strike down powers the controversies about such powers would not go away. But at least the Court could point to the Constitution as granting it that power. Our current courts cannot point to any such legitimating source: they should not assume such a power.

Dawn Oliver is Emeritus Professor of Constitutional Law at University College London.

Suggested citation: D. Oliver, ‘Parliamentary Sovereignty in Comparative Perspective’ UK Const. L. Blog (2nd April 2013) (available at http://ukconstitutionallaw.org)

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Filed under Comparative law, Judiciary, UK Parliament

Tagged as America, comparative law, constitutional review, New Zealand, Parliamentary sovereignty

by Constitutional Law Group | February 25, 2013 · 8:47 am

Greg Weeks: Can you stop the Revenue from acting on a change of mind?

A recent judgment in an interlocutory hearing in the Federal Court of Australia has raised the fascinating question of what redress might be available against a revenue authority for changing its mind. In Macquarie Bank Limited v Commissioner of Taxation, the applicant sought to restrain the Commissioner of Taxation from acting on his changed view on the law relating to Overseas Banking Unit (‘OBU’) expense allocations. The applicant has commenced judicial review proceedings against the Commissioner which are yet to be heard. The interlocutory application was for urgent injunctive relief to prevent the Commissioner acting on his stated intention for the Australian Taxation Office (ATO) to “apply retrospectively the Commissioner’s new view on the law concerning the allocation of OBU expenses”. Griffiths J rejected the interlocutory application.

Assuming that Macquarie Bank pursues the substantive proceedings in this matter, it will need to overcome some significant hurdles in order to succeed. There is, at present, little scope for preventing a public authority from changing its mind in Australia. There is no doctrine of public law estoppel; public authorities are not bound to their promises in Australia if this would cause them to act ultra vires or would fetter their discretion. The Australian High Court has also consistently rejected substantive enforcement of legitimate expectations and, more recently, has stated that the phrase should be “disregarded” even in reference to the obligation to provide procedural fairness. The extent of the problem facing Macquarie Bank is neatly summarised by the grounds of judicial review on which they propose to rely:

There are several grounds of judicial review challenge. They include a primary claim that the decision [to act on a revised view of the law relating to OBU expenses] is Wednesbury unreasonable. Further grounds are also raised of illogicality or irrationality, no evidence to support the decision, failure to take into account a relevant consideration or taking into account of an irrelevant consideration, failure to observe the requirements of natural justice, excess of authority resulting in the decision being ultra vires, and a failure to comply with procedures which the decision-maker, it is said, was required to observe.

There are few modern examples of Wednesbury unreasonableness being argued successfully in Australian courts. Like the related ground of illogical or irrational fact finding, it demands nothing short of absurdity on the part of a decision maker. This would be difficult to prove particularly where Macquarie Bank has deliberately avoided making any allegation of bad faith against the Commissioner or the ATO (although the two grounds are not coextensive, they share substantial overlap which has been noted in regard to Warrington LJ’s famous example in Short v Poole Corporation [1926] Ch 66). As a “primary claim”, an argument that the Commissioner has acted in a Wednesbury unreasonable manner does not inspire great confidence, given that it is a ground which has never had better than a remote chance of success.

A secondary problem is that the Australian High Court has interpreted the legislative scheme contained in the Income Tax Assessment Act 1936 as limiting the opportunities to challenge decisions of the ATO through judicial review where statutory review or appeal procedures are provided. The rare exceptions to this approach relate to “allegations of bad faith or fraud or abuse of power”, which have not at this stage been articulated in the proceedings commenced by Macquarie Bank.

The fact that Macquarie Bank’s case will be hard to make out does not, however, mean that it lacks merit. Specifically, the applicant’s claim that “the indication given by the Commissioner as to his change of view is in breach of the ATO practice statement PSLA 2011/27” demands consideration. The Practice Statement in question is a soft law instrument entitled “Matters the Commissioner considers when determining whether the Australian Taxation Office (ATO) view of the law should only be applied prospectively”. If the Commissioner acts on his stated intention to apply his altered view of the law concerning OBU expenses retrospectively, and to do so falls outside the terms of the Practice Statement, one might justifiably conclude that those (including Macquarie Bank) who have arranged their affairs in reliance on the ATO’s previously stated legal view as to OBU expenses, along with the terms of the Practice Statement, have been penalised without any fault.

The facts are reminiscent to some extent of those in R (Davies) v The Commissioners for Her Majesty’s Revenue and Customs, in which the Supreme Court considered a vaguely expressed soft law guidance note which purported to indicate when a person ceased to be resident in the UK for tax purposes. The Supreme Court held by majority that the guidance note had not been complied with by the applicants in any case but the case was troubling (and members of the Court of Appeal gave voice to their concerns in this regard) given that the soft law guidance note was on every account very poorly drafted but was nonetheless sufficiently convincing to guide the commercially sophisticated applicants to arrange their affairs on the faith of it.

There can be no doubt that soft law issued by revenue authorities is treated seriously by those looking to arrange their affairs in accordance with the law. It is frequently the case that the view of the law taken by the revenue authority is incorrect, a circumstance which may be pointed out by a court or which the revenue authority may come to realise unaided. In such cases, the revenue authority must of course revise its stated view of the law on a given subject. I doubt that Macquarie Bank would contest this statement in its proceedings. However, this need not oblige a revenue authority to apply its changed view retrospectively. The discretion invested in revenue authorities with regard to the collection of revenue has been recognised at least since the Fleet Street Casuals Case and the Commissioner’s powers to secure an optimal (rather than the maximum) collection of revenue is recognised in Australia both by the ATO and the legislature.

While it is to be hoped, however, that the court which hears the substantive application brought by Macquarie Bank will bear in mind the immense practical power of soft law, it will be confined by the legal framework of judicial review in Australia. There is, on the current state of the law, little hope that Macquarie Bank will be able to constrain the broad discretion invested in the Commissioner with regard to the collection of taxation revenue.

Greg Weeks is a Lecturer in Law at the University of New South Wales

Suggested citation: G. Weeks, ‘Can you stop the Revenue from acting on a change of mind?’ UK Const. L. Blog (25th February 2013) (available at http://ukconstitutionallaw.org)

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Filed under Comparative law, Judicial review

Tagged as Australia, Judicial Review, legitimate expectations, public law estoppel, soft law

by Constitutional Law Group | November 29, 2012 · 9:11 am

Paul Kildea: Reforming Australia’s federation: The People Lead the Way

As another fractious year in politics comes to an end, Griffith University has released the results of its third biennial survey on how Australians view their federal system. It reveals a public that is losing faith in both the current structure of the federation and the ability of different tiers of government to work together to solve national problems. But the poll also reveals a public appetite for reform to which political leaders should pay close attention.

The survey finds that 38 per cent of Australians believe that the current three-tiered federal system – made up of federal (national), state and local government – does not work well. This is up from 30 per cent of respondents when the poll was first taken in 2008.

State governments are seen to be the worst performers. While their rating has improved slightly since 2010, it is apparent that the recent move to conservative rule in Victoria, New South Wales and Queensland has not altered many people’s dim view of state government. Indeed, a mere 14 per cent of Queensland residents view state government as the most effective level – just months after the Liberal National Party’s landslide victory in the March election.

Local government is now rated as the most effective level. This is in large part due to a massive collapse of faith in the national level of government, which until this year had been rated as the most effective level by a handsome margin. Four years ago it was viewed as the best performer by half of Australians, but fewer than a third of people (29 per cent) now hold this view. The deep unpopularity of both federal leaders – Prime Minister Julia Gillard and Opposition Leader Tony Abbott – and the fierce partisanship of the hung parliament (elected in August 2010) have no doubt played a part here.

But if many Australians are unhappy with individual levels of government, they also feel that the federal system is suffering due to a lack of cooperation between the federal, state and local tiers. Australians overwhelmingly see intergovernmental collaboration as a desirable feature of a federal system – more than 90 per cent have said as much in successive surveys. But fewer and fewer people think that the system actually delivers on this – only a third feel that it does collaboration well, down eight points since 2008. Perhaps more worryingly, two-thirds of Australians feel that the federal and state governments are not working well together. On this measure, Australians are less satisfied with their federal system than their counterparts in the United States, Canada and Germany.

This last finding is concerning because intergovernmental cooperation is arguably more important in the Australian federal system than in these other federations. This is because the division of legislative and financial powers, while favouring the central government, gives rise to a high degree of overlap between the federal and state governments. As a result, some of Australia’s most pressing problems – whether in health, education, water management, disability or Indigenous wellbeing – cannot be addressed in the absence of effective collaboration across different tiers of government.

The last year has seen a number of public spats between Canberra and the states that have no doubt shaped people’s views about the amount of cooperation taking place in the federation. Disagreements about the collection of state mining royalties, the distribution of consumption tax (GST) revenue and the funding of major disability and education initiatives have all escalated over the last several months. These conflicts have been sharpened by partisan divisions – while government at the national level is held by Labor, Australia’s four largest states are now governed by conservative Coalition parties.

But it would be a mistake to dismiss the public’s dissatisfaction with federal-state collaboration as a superficial response to passing quarrels. The better view is that public opinion is responding to very real problems in Australia’s federal system that prevent effective cooperation occurring – and that the time has come to address them.

For some years now there has been a steady stream of reports and commentary pointing to the need to strengthen intergovernmental institutions so that they better foster federal-state collaboration. In particular, there is an emerging consensus on the need to reform the Council of Australian Governments (COAG). Despite being the hub of intergovernmental relations in Australia for over 20 years, COAG still has no formal legal status and remains in the grip of the Prime Minister – meaning that is vulnerable to being ignored when it does not suit the federal government.

Building institutional structures through which different levels of government can cooperate is not only an Australian problem. Similar challenges arise in Canada where its First Ministers’ Conference also lacks a permanent institutional base. Reform ideas floated in both Canada and Australia range from forging political agreements on improved processes, through to constitutional recognition of key intergovernmental bodies. The South African constitution goes some way towards the latter by recognising several principles of ‘cooperative government and intergovernmental relations’. The need for constitutional change along similar lines has been discussed in Australia, particularly in light of a view expressed in the High Court that ‘cooperative federalism’ is no more than a ‘political slogan’ with no part to play in constitutional interpretation.

Giving COAG formal legal status, with improved processes, would go a long way to improving federal-state cooperation. But for many members of the public, the Australian federation needs to undergo more fundamental reform. Indeed, a full two-thirds of Australians would like to see the federal system being structurally different in 20 years’ time, with the strongest preference being for a stronger system of regional government.

With their stomach for major federal reform, Australians are way out of ahead of their political representatives. In recent years governments have shown themselves reluctant to consider minor changes to cooperative arrangements, let alone the much larger task of structural reform.

It is time for the political elites to start taking seriously the views of Australians on the shape of their federation. As the lead researcher on the federalism survey, AJ Brown, wrote last week, national and state leaders need ‘to show more tangible commitment to charting the future of the federal system’. And with a federal election looming next year, there is no better time for them to start.

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, ‘Reforming Australia’s federation: The People Lead the Way’ UK Const. L. Blog (29th November 2012) (available at http://ukconstitutionallaw.org).

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Tagged as Australia, Canada, Federalism

by Constitutional Law Group | November 28, 2012 · 8:31 am

Nick Barber: Does China Enjoy Greater Legitimacy Than Any Western State?

I was listening to the radio a little while ago, and heard Martin Jacques talking about China. I listened with renewed concentration. Jacques was formerly editor of Marxism Today, so he is a man who knows a thing or two about oppressive pseudo-socialist regimes. Much of what Jacques had to say was insightful, but one of his claims seemed surprising. Warning his audience he was about to shock them, Jacques asserted that ‘the Chinese state enjoys greater legitimacy than any Western state’. This is, by any standards, a courageous claim to make. Jacques advanced three, connected, arguments to support it. First, he drew our attention to the support expressed by China’s people for their government. In recent surveys it seems that between 80 and 95% of Chinese citizens were either relatively or extremely satisfied with central government. Secondly, he pointed to the stunning economic success that China has enjoyed over the last thirty years, enjoying a growth rate of about 10% per year. And this success has not just caused the rich to get richer: Jacques could also have pointed to China’s remarkable success in lifting its people out of poverty. Allied to these claims, Jacques argued that the Chinese have a different conception of the state to that found in the West: for the Chinese, the state is viewed in terms of the family. Under this conception of the state, the leadership stands as the head of the family, intimately connected to, and entitled to exercise authority over, the people.

Each of these three claims deserves further reflection.

Jacques’ first point, resting on statistics that quantified the satisfaction of the Chinese people with their state, may demonstrate rather less than he hopes. In Thinking, Fast and Slow, the psychologist Daniel Kahneman warns of a trick that our minds tend to play on us. When faced with a difficult question we are tempted to unknowingly substitute an easier question, and answer that instead. So, a question about the importance of preserving an animal species or, perhaps, the effectiveness of the market in the NHS, is transmuted into a question about the cuteness of the animal or our how we feel about people making money from healthcare. Similarly, in presenting this poll as a test of legitimacy, Jacques has shifted from examining the legitimacy of the government to assessing the perception of the legitimacy of the state. Just because people believe that a government is entitled to rule, this thought alone does not make it so. Given the control China exercises over its media, and the absence of any real opposition to the government, a general belief in the legitimacy of the government might not be all that surprising.

Indeed, it is even possible that the questions asked by Jacques’ surveys were directed towards something other than the legitimacy of the government. The surveys appear to have asked after people’s satisfaction with the state, or their assessment of the government’s handling of the economy. This is a very different thing to the entitlement of the government to rule. It is easy to imagine a person – perhaps a subject in an imperial territory – admitting that the dominating power was competent, but still challenging its right to rule. The Romans are still Romans, no matter how well they govern. On the other hand, a citizen might regard her government as poor, on the verge of incompetence, but still endorse its legitimacy. Many Labour Party supporters would bitterly criticise the Coalition’s policies, but still recognise that the United Kingdom possesses a legitimate government.

This is not just a semantic quibble. Political scientists distinguish between two forms of legitimacy: input legitimacy and output legitimacy. Jacques has focused almost exclusively on output legitimacy in his talk. Output legitimacy is a function of the competency of the state. People do, or should, support the state and comply with its commands because doing so will make their community a better place to live. Input legitimacy, in contrast, is a function of the way decisions are made. People do, or should, support the state and comply with its commands because of the way the government has been formed and the way the commands have been produced. Ordinarily, some form of democracy is at the heart of input legitimacy. These two forms of legitimacy are complementary and interconnected. Perhaps one form of legitimacy is valueless without at least an element of the other. That the people of China are satisfied with their government, coupled with the strong economic success of that country, shows that China has a plausible case to make in terms of output legitimacy. The lack of input legitimacy may, though, still throw into question the broader entitlement of the Chinese government to rule.

Jacques’ third point – about the Chinese conception of the state as a family – might be an indirect response to this point. In the family, the authority parents enjoy over their children, especially young children, rests on their ability to make decisions in the best interests of their child. Parents’ right to tell their children what to do does not rest on a vote or even on consent. Perhaps Western preconceptions of legitimacy cannot be applied in the context of China?

The difficulty with this reply is that China does have democratic structures in its Constitution. These are just not very effective.

In a valuable recent book, Professor Qianfan Zhang explains the structures and operation of the Chinese Constitution. The Constitution asserts that China should be governed democratically. It sets out a bottom-up structure of democratic control. The people elect representatives to the lowest levels of assembly at town and county levels. These assemblies then elect deputies to sit in Local People’s Congress that, in their turn, elect deputies to sit in the Congress at the next level up. The process continues all the way to the National People’s Congress, which is the highest representative body. In reality, though, the Communist Party exercises control over every stage of the process: the bottom-up approach of the Constitution is, as Zhang explains, countered by a top-down system of Party control. Party committees, controlled from the centre, are able to vet candidates standing for election. In effect, the appointment of representatives at each level of legislature is subject to the review, or even control, of the Party committee that sits at a governmental level one stage higher than that body. The 1982 Constitution calls for a system that starts with the citizen and works up to the NPC, with each deputy accountable to the lower body that elected her. The constitution with a small ‘c’, in contrast, starts with power vested at the top of the Party and then devolves power down to the regions, with each deputy accountable to the higher body that selected her.

Jeff King has written of constitutions as mission statements, as declarations of the type of polity the state wishes to be. In China’s case there is a sharp contrast between this declaration and the realities of state power. China’s government fails to achieve legitimacy even in the terms set by its own Constitution. This creates a sort of constitutional cognitive dissonance: a discomfort caused by the gap between peoples’ actions and the way they think they ought to behave. It is a discomfiture that is very evident amongst Chinese public law scholars who struggle to connect the Constitution with the actual rules that structure the state. It is also evident in the speeches of China’s leaders, whose rhetorical exhortations sometimes seem remote from the state they have fashioned.

Trying to ground a polity largely or entirely in terms of its competency is a dangerous business. It may prove successful whilst the economy is booming, but economic success never lasts forever. And the stability it brings can be quite shallow. After the defenestration of Bo Xilai tanks were seen on the streets. If this had occurred in London, people would have thought it was the start of a parade. In Beijing, people thought it was the beginnings of a coup. Chinese people’s satisfaction in the conduct of their state may be high, but their faith in their leaders, and their confidence in the stability of their country, may be less buoyant.

Nick Barber is a Fellow of Trinity College, Oxford, and, in 2012, Visiting Professor at Renmin University, Beijing.

Suggested citation: N. W. Barber, ‘Does China Enjoy Greater Legitimacy Than Any Western State?’ UK Const. L. Blog (28th November 2012) (available at http://ukconstitutionallaw.org).

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Filed under Comparative law, Human rights

Tagged as China, Constitutional Theory, Democracy, Legitimacy

by UKCLG blog editors | November 22, 2012 · 8:12 pm

Paul Daly: Clinging to Gun Data

On the afternoon of December 6, 1989, Marc Lépine entered the École Polytechnique in Montréal. Over the course of about 30 minutes, Lépine prowled the corridors, classrooms and cafeteria, rifle in hand. He shot and killed fourteen women before turning his gun on himself. Fourteen others were wounded.

That horrific event still has significant political salience in the province of Québec. It forms something of a backdrop against which to consider a dispute between Québec and Canada’s federal government. The dispute centres on whether information about rifles and other long-guns should be stored in a database which can be accessed by the authorities for law-enforcement purposes.

Nobody seriously questions the requirement that gun owners be licensed. Nor does anybody seriously question the registration – or outright prohibition – of handguns and automatic weapons. The current dispute is about one thing only: the registration of long guns.

Registration of these weapons by the federal authorities began only in the late 1990s, under the Firearms Act. That legislation established an interlocking scheme: both federal and provincial officials contributed to the scheme’s operation. An agreement between the federal and provincial governments regulated how data was collected, used and accessed.

Last year, Stephen Harper’s Conservatives were returned to the federal Parliament with a majority. One of the planks of their platform was the abolition of the long-gun registry. Its critics decried the registry as ineffective in combating crime and effective only at exposing law-abiding citizens to criminal sanctions. Defenders of the registry countered that it is used by police officers on a daily basis. And in Québec the lingering psychic effects of the Polytechnique massacre mean that stringent registration requirements have significant symbolic value.

Earlier this year, Bill C-19 was introduced in the federal Parliament. It received Royal Assent in April. The legislation, entitled An Act to amend the Criminal Code and the Firearms Act, prospectively abolished the requirement to register long guns. More dramatically, section 29 provided for the destruction “as soon as feasible” of all the data that had been collected during the operation of the long-gun registry.

The Québec government sprang into action, attacking the constitutionality of the federal legislation, with the ultimate goal of establishing its own long-gun registry. Shortly after passage of the legislation, it successfully invoked the inherent jurisdiction of the Québec superior court and obtained an injunction preventing the destruction of the data. After a subsequent hearing on the merits, section 29 was held to be unconstitutional, but only as it applied to data from Québec: Québec (Procureur général) c. Canada (Procureur général), 2012 QCCS 1734.

Meanwhile, in Ontario, a charitable organization unsuccessfully sought a more radical injunction compelling the federal government to maintain the long-gun registry: Barbra Schlifer Commemorative Clinic v. HMQ Canada, 2012 ONSC 5271.

My focus here will be on the latter two decisions. Of those, the Québec decision is of greater importance: the federal government has already appealed to the Québec Court of Appeal. Review by the Supreme Court of Canada is a strong possibility.

One final preliminary remark is necessary. Canada is a federation. Jurisdiction is regulated by the provisions of the Constitution Act, 1867, especially sections 91 and 92. Section 91 sets out the powers of the federal government: trade and commerce, creation of criminal laws, and banking are some representative examples. Those of the provinces are set out in section 92: for example, taxation within the province, solemnization of marriage and – broadest of all – property and civil rights in the province.

Guns fall comfortably within the very broad understanding of property and civil rights in the province. From where, then, did the federal government get the authority to establish the long-gun registry in the first place? In 2000, the Supreme Court of Canada upheld the constitutionality of the Firearms Act on the basis that it was a legitimate exercise of the federal government’s power to pass criminal laws. Regulation of firearms was said to have a “double aspect”. Accordingly, it was open to either the federal or provincial authorities to enact legislation, under the criminal law and property and civil rights jurisdictions respectively.

For the Québec and Ontario courts, the questions raised by the data-destroying legislation were novel, revolving around the federal government’s power to decriminalize some types of behavior (i.e., not registering one’s weapon) and to undo unilaterally a registry which had been created, in reliance on the double aspect doctrine, in cooperation with the provinces.

In Québec (Procureur général) c. Canada (Procureur général), Québec claimed that the federal government had no jurisdiction to destroy the long-gun registry data. The federal government’s response was straightforward: just as it could invoke the criminal law power to establish the long-gun registry in the first place, so too could it invoke the criminal law power to repeal the existing law.

Unfortunately for the federal government, Conservative politicians had crowed rather too loudly about the destruction of the long-gun registry. Blanchard J. seized on remarks which suggested that the whole purpose of Bill C-19 was to prevent the provinces from creating their own long-gun registries. Given that gun registration clearly falls within provincial jurisdiction over property and civil rights, these remarks revealed a naked attempt on the part of the federal government to interfere in the governance of the provinces. This rendered the purported exercise of the criminal law power ultra vires the federal government.

Moreover, Blanchard J. held that the unilateral destruction of the long-gun registry data violated the principle of cooperative federalism. This principle aims at harmonious coexistence between the federal and provincial governments, and indeed underpins the double aspect doctrine that allowed the federal government to create the long-gun registry in the first place. For one level of government to deliberately stand in the way of another to prevent it from legislating within its area of competence was to violate the principle of cooperative federalism.

Finally, Blanchard J. considered the question of ownership of the long-gun registry data. Striking down the provision authorizing the destruction of the existing data would have represented merely a symbolic victory for Québec. To establish its own long-gun registry, it needed in addition an order compelling the federal government to transfer the data to it. Blanchard J. concluded that the agreement between the federal government and the provinces did not identify any “owner” of the data. However, he held that because of its contribution to the collection of the data, Québec had as much of an interest in the data as any other entity. Accordingly, Blanchard J. ordered the federal government to transmit them to Québec.

Meanwhile, in Ontario, the Barbra Schlifer Commemorative Clinic, a body set up in memory of an Osgoode Hall law student murdered in the 1980s, did not fare so well in Barbra Schlifer Commemorative Clinic v. HMQ Canada.

With the other provinces shying away from asserting claims to ownership of the long-gun registry data, the Clinic’s claim was inevitably different in nature. It was also weaker.

The Clinic relied on the Canadian Charter of Rights and Freedoms: section 7, which protects life, liberty and security of the person, and section 15, which guarantees equal treatment. The Clinic argued that the abolition of the long-gun registry imperiled bodily integrity, and in a way that would disproportionately impact on women, because long-guns are instruments of domestic violence.

Just as Québec had initially done, the Clinic sought an injunction to prevent the federal government from destroying the data. This fell to be analyzed under the familiar American Cyanamid principles – serious case, irreparable harm and balance of convenience – which apply universally in Canada. The federal government countered with a motion to strike the Clinic’s claim.

The federal government successfully characterized the logical conclusion of the Clinic’s argument as the imposition of a positive obligation to maintain a long-gun registry. This was an entirely novel argument. If the Clinic were to demonstrate that prospective abolition of the long-gun registry breached sections 7 and 15 of the Charter, the federal government would have to legislate for the registration of long guns. At such an early stage of the litigation, Brown J. was reluctant to strike the Clinic’s claim entirely. Nevertheless, the federal government’s characterization of the Clinic’s claim influenced Brown J.’s decision not to grant an injunction.

After a thorough analysis of the Clinic’s arguments and the statistical evidence adduced in support, Brown J. held that the Clinic had raised a serious question to be tried, but only just: the statistical evidence it could muster was weak. Domestic homicides have been, on Brown J.’s reading of the statistics, on a long decline to which the long-gun registry seemed not to have contributed. The weakness of the statistical evidence also tended to suggest that no irreparable harm would be suffered were the injunction to be denied.

Brown J. also noted that, if the Clinic succeeded on the merits in imposing a positive obligation to maintain a long-gun registry, the result would be a financial burden on the taxpayer rather than the infliction of irreparable harm.

Finally, for the purposes of the balance of convenience analysis, the Clinic could not demonstrate any public interest that would be furthered by granting the injunction. This conclusion may seem odd, but Brown J. noted that legislation is presumed to promote the public interest for the purposes of the balance of convenience analysis. Critically, unlike Québec, the Clinic could not demonstrate any ownership interest in the data, and it did not itself have any authority to create or recreate a long-gun registry.

One nuance that can be perceived in Blanchard J.’s judgment does not appear to have influenced his Ontario counterpart, Brown J. There is arguably a distinction between imposing a prospective positive obligation to criminalize acts or omissions and imposing a restriction on destroying existing data. Indeed, a restriction on destroying existing data can stand independently of a prospective positive obligation. The significance of the distinction is that if the present federal government were prevented from destroying the existing data, it would leave the door open for a future federal government of a different ideological bent to repatriate the data to the provinces or to reanimate the long-gun registry. This might have been enough to ground a sufficient ownership interest in the existing data. Since these decisions were handed down, however, the October 1 deadline to commence destruction of the data has passed. The data having been destroyed, the point is now moot.

We have thus reached the anomalous position that all of the long-gun registry data has been deleted, except for that relating to the province of Québec. This data remains in the hands of the federal government. Its ultimate fate will lie in the hands of the Québec Court of Appeal and Supreme Court of Canada.

Paul Daly is a member of the Faculty of Law at the Université de Montréal. He can be reached at paul.daly@umontreal.ca. He blogs at administrativelawmatters.blogspot.com.

Suggested citation: P. Daly, ‘Clinging to Gun Data’, UK Const. L. Blog (22nd November 2012) (available at http://ukconstitutionallaw.org).

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Tagged as Canada, Federalism, gun control

by Constitutional Law Group | November 20, 2012 · 9:52 am

Derek O’Brien: Judicial Independence in the Caribbean and Petitions Pursuant to Section 4 Judicial Committee Act

The case of Chief Justice of the Cayman Islands v The Governor and Judicial Legal Services Commission ([2012] UKPC 39) is, arguably, at least as interesting for the questions that the Judicial Committee of the Privy Council (JCPC) did not answer as for the ones that it did and I will, therefore, address both in this blog. I will begin with a brief overview of the unanswered questions, which help to explain the context in which the questions that the Board did answer arose.

The first relates to the extension of the appointment of a Justice of the Grand Court of the Cayman Islands. This is governed by s.96 of the Cayman Islands Constitution, which provides that the Governor may permit a judge of the Grand Court who has reached the age of 65 to continue in office until he has attained such later age, not exceeding the age of 70 years, as agreed between the judge concerned and the Governor, following the recommendation of the Judicial and Legal Services Commission (JLSC). The JLSC is an independent body comprising one ex offico member, being the President of the Court of Appeal, and seven other members appointed by the Governor including: a chairman and one other member, appointed in consultation with the Premier and Leader of the Opposition; a senior judge with recent knowledge of Cayman’s courts; two senior judges from another Commonwealth country or Ireland; and two lawyers qualified to practice in the Cayman Islands. Members of the Legislative Assembly and candidates for elections are disqualified from membership of the JLSC.

Justice Henderson, a Justice of the Grand Court, whose appointment expired in June 2011, by which time he would have been older than 65 (his appointment having preceded the coming into force of the 2009 Constitution), had asked the Governor in December 2010 for an extension of his appointment. The Governor, in turn, sought the advice of the JLSC, which recommended that there was no basis upon which it was necessary in the interests of the administration of justice for Justice Henderson to continue in office beyond the age of retirement, and the Governor duly notified him that he would not be extending his appointment. The Chief Justice objected to this decision, arguing that the JLSC had wrongly approached the question of the extension of Justice Henderson’s appointment on the basis that it required ‘exceptional circumstances’ before an extension would be granted and, as a result, had reached an incorrect interpretation of s.96, bearing in mind the way that the section was expressed and the need to preserve judicial independence so that Justices of the Grand Court enjoyed security of tenure free from discretionary intrusion by the Executive.

The second question relates to the power of the Governor, acting in accordance with the advice of the JLSC, to exercise disciplinary control over judges. In early 2012, the JLSC published a Code of Conduct and a Complaints Procedure in relation to the Cayman Islands judiciary, which permits the JLSC after it has investigated a complaint against a judge to advise the Governor that the case calls for the exercise of such powers of disciplinary control short of removal from office as are conferred upon the Governor by s106 (1) of the Constitution, which empowers the Governor to exercise disciplinary control over the judiciary. The Chief Justice objected to this aspect of the Complaints Procedure on the ground that the Constitution did not permit the Governor to ‘impose disciplinary sanctions short of removal.’ I will return to both of these questions later, but first I must sketch out the background to the questions that were answered by the Board.

Ordinarily, it would be expected that in the first instance the two questions outlined above would have to be answered in the Grand Court of the Cayman Islands by way of judicial review proceedings. The Chief Justice, however, instead petitioned Her Majesty to refer the two questions directly to the JCPC for advice, which she did pursuant to pursuant to s.4 of the Judicial Committee Act 1833, which provides that:

“It shall be lawful for his Majesty to refer to the …judicial committee for hearing or consideration any such other matters whatsoever as his majesty shall think fit; and such committee shall thereupon hear or consider the same, and shall advise his Majesty thereon in manner aforesaid.”

The Governor having objected to the substantive questions raised in the Petition being dealt with by the JCPC before they had been considered by the Grand Court of the Cayman Islands, the JCPC was obliged to consider whether it was open to it to decline to rule on issues raised in a Petition referred to it by the Monarch and, if so, the circumstances in which it would be appropriate for it to do so?

In answer to the first of these questions the Board concluded that in the absence of any clear authority on the point it was open in principle to the Board to advise that it was inappropriate to provide substantive answers to the issues raised in a s.4 Petition, if it considered that this was the right course to take. Not only would it be unattractive for a tribunal to be precluded by law from answering a question referred to it in terms which it considers to be right, but it was also highly unlikely that s.4 was intended to preclude the Board from considering this very issue.

This still left the question of whether this was the right course to take in the instant case and in the Board’s view it was because it would be inappropriate, in the absence of special factors, to consider issues raised in a s.4 petition when, as here, those issues could be raised in the first instance by way of ordinary proceedings in the courts of the territory in which the issues arose. This is, in part, because in a tiered court system the conclusions and reasonings of a higher tier court are likely to be better than that of a lower tier court, as the arguments of the parties tend to become refined and improved as the case progresses up the system, and the judges in a higher tier court benefit from the reasoning of the lower tier courts. It is also in part because respect for the courts of the territory concerned requires that they should have the opportunity to express a view before the JCPC is seised of the case.

But were there any special factors in the instant case, which might justify the questions raised by the petition being considered substantively by the JCPC? In the Board’s view there were none. The Board was not persuaded by the Chief Justice’s argument that no permanent judge of the Grand Court could deal with the issues raised by the petition because they all supported the position of the Chief Justice and, besides, had an interest in the outcome. As the Board pointed out, it was open to the Governor to appoint a temporary judge under s.97 of the Constitution to hear the judicial review application; the Governor having made it clear that in such a case he would ask the Lord Chief Justice of England and Wales to nominate a temporary judge for that purpose. The Board also rejected the Chief Justice’s other arguments, namely: that it would be difficult to find a suitable Court of Appeal panel; that the issues raised by the Petition were of such high constitutional importance that they ought to dealt with by the Board; that the Board ought to give weight to the wishes of the Chief Justice to have the Petition determined by the Board, and that it would save time and costs to do so. In the Board’s view, the fact that the matters raised were of high constitutional importance only reinforced their conclusion that they ought to be dealt with, initially, by the Grand Court; and whilst weight must be given to the Chief Justice’s wishes, this was counterbalanced by the fact that the Governor did not wish the Board to rule substantively on the Petition.

All of this means that the two substantive questions raised by the Petition will now have to be considered in the first instance by the Grand Court. In dealing with the first of these questions the Grand Court may wish to have regard to the constitutional position in other countries in the Commonwealth Caribbean. In most of these there is simply no possibility of extending a judge’s appointment once they have reached retirement age save for example, for the purposes of delivering a judgment in proceedings that have already begun. This is presumably to avoid the incentive that the prospect of such an extension might offer to judges to hand down judgments that favour the government. However, in those few countries in which an extension of a judge’s appointment is permitted by the Constitution – The Bahamas, Barbados, Belize and the member states of the OECS (Antigua, Dominica, Grenada, St Lucia, St Kitts and St Vincent) – it is notable that there is considerably more political input than is contemplated by the provisions of the Cayman Constitution to which the Chief Justice objected . Thus, in the Bahamas and Barbados, decisions about extending a judge’s appointment are taken more or less exclusively by the Prime Minister. Though the Prime Minister is required to consult with the Leader of the Opposition this is usually no more than a formality. In Belize, decisions about the extension of the Chief Justice’s appointment are taken by the Prime Minister after consultation with the Leader of the Opposition, and in the case of the other judges extensions are granted upon the advice of the JLSC, but require the concurrence of the Prime Minister after consultation with the Leader of the Opposition. Amongst the OECS countries the power to extend a judge’s appointment ostensibly lies with the JLSC, but the JLSC can only act with the concurrence of the Heads of Government of all the member states. Viewed from a comparative perspective then the position under the Cayman Constitution, where the extension of a judge’s appointment must have been recommended by the JLSC, arguably affords considerably more protection against political manipulation than is afforded in those neighboring countries that permit extensive Prime Ministerial input into decisions about the extension of a judge’s appointment.

The Chief Justice’s objection to the Governor’s powers to impose disciplinary sanctions upon a judge short of removal, however, looks at first glance much stronger from a comparative perspective, since such a power does not exist in any other Commonwealth Caribbean country. The closest parallel is, possibly, Guyana where a judge, who has persistently failed to give written or oral decisions and reasons for the decisions within the period prescribed by the Time Limit for Judicial Decisions Act 2009, may be notified that if he persists in his default action may be taken to remove him from office. However, it is arguable that at the time the independence constitutions of these countries were drafted there was a quite different understanding of the concept of judicial accountability and that they are not, therefore, the best guide to current practice.

If the Grand Court looks outside the Commonwealth Caribbean, however, it will see that a power to discipline judges short of removal from office exists in a number of common law countries, such as the United States, Canada and the United Kingdom. It might also note, however, that in these countries the disciplinary process short of removal is kept very much in-house, being administered entirely by the judiciary. This, at least, addresses the objection, based on the principle of the separation of powers, that the power to impose sanctions short of removal should not be vested in someone like the Governor, who is the Head of the Executive branch. But this is not the only possible objection to the existence of such a power, which has also been criticised by some for having a chilling effect on the capacity of judges to render impartial justice because it invites dissatisfied litigants to harass judges who rule against them (Irving R Kaufman, ‘The Essence of Judicial Independence,’ Columbia Law Review, Vol.80, No.4 671-701).

It remains to be seen whether the Chief Justice’s objections are upheld by the Grand Court. It seems likely, however, based on constitutional practice elsewhere in the Commonwealth Caribbean, that the Grand Court will not regard the involvement of the Governor in decisions about a the extension of a judge’s appointment as fatal. Moreover, while there may be principled objections to the imposition of sanctions upon judges short of removal, precedents for the existence of such a power can be found in a number of other jurisdictions, including the UK.

Derek O’Brien is Principal Lecturer, Law School, Oxford Brookes University.

Suggested citation: D. O’Brien, ‘Judicial Independence in the Caribbean and Petitions Pursuant to Section 4 Judicial Committee Act’, UK Const. L. Blog (20th November 2012) (available at http://ukconstitutionallaw.org).

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Filed under Comparative law, Judiciary

Tagged as Cayman Islands, Judicial Independence, Privy Council

by Constitutional Law Group | October 30, 2012 · 4:46 pm

Jacob Rowbottom: Campaign Lies and the First Amendment

It is now a tradition that during an America presidential election year, commentators shall declare the campaigns to be the ‘nastiest’ and ‘dirtiest’ ever. It is difficult to know whether such a claim is true of the 2012 election, as tough campaigning has a long history in the USA (as a NY Times article from last month explains). There is, however, no doubt that candidates at all levels of the American system have engaged in and been subject to some fierce attack messages (a recent Campaigns and Elections article provides some notable examples). Yet negative messages do not breach campaign ethics. Strong criticism of parties and candidates is part of the cut and thrust of elections. The real problem arises when electoral messages turn out to be false – and a quick viewing of websites such as FactCheck.org show the doubts about the truth of some campaign messages in the current American election.

Given the seemingly free exchange of robust (and sometimes brutal) campaign communications, it may surprise some readers that several US states have laws that prohibit certain false statements about candidates during an election campaign. These are the American equivalents of British law that led to Phil Woolas being forced out of his seat following the 2010 general election (s.106 of the Representation of the People Act 1983). For example, the key state of Ohio has laws prohibiting knowingly or recklessly false statements being published about a candidate. It employs a combination of administrative remedies (through an Election Commission finding or a fine) and criminal penalties (as a last resort). Despite the presence of such a law, a recent article in the Cleveland Plain Dealer casts doubt on the effectiveness of these measures. Much the same can be said about its British counterpart.

A bigger constitutional question is whether such laws are consistent with the right to freedom of speech under the First Amendment. This is something I considered briefly in an article for OJLS published over the summer. On my reading, the US case law was ambiguous. The US Supreme Court has not addressed the issue directly. Previous statements from the Supreme Court point in different directions, with some emphasizing the importance of political expression and others stressing that knowingly false statements have no value. Since my article was finalized, the Supreme Court’s decision in June in US v Alvarez sheds more light on this issue and drops some hints as to how the Court might approach false campaign statement laws.

Alvarez did not concern campaign communications, but a statute called the Stolen Valor Act, which made it a criminal offence to falsely claim to have been awarded ‘any decoration or medal authorized by Congress for the Armed Forces of the United States’. The issue for the Court was whether the First Amendment protected false statements. A majority of the court decided that while lies can be prohibited in some circumstances, falsity alone does not preclude First Amendment protection. In his plurality opinion, Justice Kennedy thought the system of free speech is self-correcting and that the normal ‘remedy for speech that is false is speech that is true.’ Applying strict scrutiny, he found the Stolen Valor Act to be unconstitutional. In a concurring opinion, Justice Breyer reached the same conclusion, but applied a less intense standard of intermediate scrutiny.

The government relied on a number of cases, including New York Times v Sullivan (1964) to support the Stolen Valor Act. The ruling in Sullivan famously protects those making statements about public figures from defamation actions. However, the Sullivan ruling still allows defamation actions to be brought when malicious (ie knowingly or recklessly false) defamatory statements are made about public figures. One reading of Sullivan is therefore that knowingly or recklessly false statements can be restricted – even on political matters – without raising First Amendment concerns. The argument is of interest as many of the American campaign speech laws have been drafted to conform to this reading of Sullivan, prohibiting only those false statements about candidates that are made with ‘actual malice’.

The Supreme Court in Alvarez, however, rejected this reading. The basic thrust of Justice Kennedy’s reasoning is that defamatory statements normally fall outside the First Amendment. The public figure defence in Sullivan is a way of softening that exclusion to give breathing space for political speech. On this view, Sullivan merely deprives the malicious speaker of the public figure defence and in such cases restores the normal position that defamatory statements fall outside the First Amendment. While I am still thinking through the implications of this reasoning, it means that the Supreme Court now treats the Sullivan rule on malicious statements as specific to defamation and does not deal with false statements more generally.

Alvarez also provides some indication of how campaign speech laws might be treated. In a recent analysis of the decision, Prof Rick Hasen, a leading US election lawyer, notes that there is ‘unanimous skepticism of laws targeting false speech about issues of public concern.’ For example, Justice Breyer, in a concurring opinion, said that controls on ‘false statements about philosophy, religion, history, the social sciences, the arts, and the like’ would risk suppressing true as well as false statements, and that such controls could call for strict scrutiny. He went on to say:

‘In the political arena a false statement is more likely to make a behavioral difference (say, by leading the listeners to vote for the speaker) but at the same time criminal prosecution is particularly dangerous (say, by radically changing a potential election result) and consequently can more easily result in censorship of speakers and their ideas.’

Breyer’s remarks suggest that it would be difficult to tailor a control on false campaign speech in a way that would not chill some true expression and that such controls could also be open to abuse by prosecutors and adjudicators.

Justice Alito offered a dissenting opinion, stating ‘false statements of fact merit no First Amendment protection in their own right’. While he thought the Stolen Valor Act should be upheld, he too hinted that laws prohibiting false campaign speech might fall foul of the First Amendment. Even though false statements have no intrinsic value, Alito reasoned that this should not be the end of the question. Restrictions on false statements of fact can still have a chilling effect. For this reason, restrictions on certain types of false speech may still be afforded some ‘instrumental constitutional protection’. Like Breyer, Alito thought that in relation to ‘philosophy, religion, history, the social sciences, the arts, and other matters of public concern’ it would be ‘perilous to permit the state to be the arbiter of truth.’ The dissenters also argued that such a power ‘opens the door for the state to use its power for political ends’.

These statements are only indications of where the Court might go and do not address the campaign speech issue directly. These initial sentiments of the US Supreme Court stand in contrast to the position of the British courts following Woolas, which concerned the British law on false electoral statements. In that case, Thomas LJ stated that Article 10 of the European Convention ‘does not extend to a right to be dishonest and tell lies’ and that this is applies to lies about the ‘political position of a candidate’ as well as those about a candidate’s ‘personal character’. Thomas LJ argued that dishonest statements in an election campaign ‘are aimed at the destruction of the rights of the public to free elections’ and thereby relied on Article 17 to exclude any protection under the European Convention. The British approach appears to give the government a free hand in restricting dishonest campaign messages.

Ultimately, the issue is a difficult one and the British and the emerging American approaches show two different paths. My feelings on this are mixed, as I think the campaign lies do pose a substantial harm to the electoral process and in some cases it cannot be remedied with ‘more speech’. At the same time, I have serious reservations about allowing courts or agencies to determine the truth of campaign messages. In any event, I think false statement laws have limited effect and can only ever be enforced in a small number of cases.

It remains to be seen what will happen in the USA. Prof Hasen concludes in his paper that following Alvarez ‘we are likely to see more false campaign speech in elections, including some brazen lies.’ Just as Citizens United unleashed new channels for money to enter politics, Alvarez could open the door for more lies to enter campaign debate. Yet you may ask whether protecting dishonest campaign speech would really make such a difference. Given the limited enforcement of the existing state laws, the removal of the campaign speech laws may not in practice be such a great change from the status quo. If campaigners under the current rules feel free to mislead and lie, what difference will it make if those laws are struck down? The significant development would be the recognition of constitutional right to tell lies in elections, which might be taken as a signal for people to eschew certain campaign ethics. If that happens, then maybe the next election cycle really will be nastiest and dirtiest ever.

Jacob Rowbottom is a Fellow of University College, Oxford.

Suggested citation: J. Rowbottom, ‘Campaign Lies and the First Amendment’ UK Const. L. Blog (30th October 2012) (available at http://ukconstitutionallaw.org)

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Filed under Comparative law, UK Parliament

Tagged as America, election law, freedom of expression

by UKCLG blog editors | October 22, 2012 · 8:32 am

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The website of the International Association of Constitutional Law (IACL) has had a make-over: see here. Paid-up subscribers to the UK Constitutional Law Group (which is the British section of the IACL) automatically become members of the IACL. If you would like to support the work of the UKCLG, and have not yet paid for your 2012 subscription, please consider joining (details here). Funds are used to pay the UKCLG institutional membership fee to the IACL and to cover the costs of running this blog. Any queries about the IACL should be sent to Andrew Le Sueur (contact details here), who serves on the IACL executive committee.

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