Category Archives: Human rights

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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Richard Clayton: The Curious Case of Kennedy v Charity Commission

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

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

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

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

The issues before the Supreme Court

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

The Art 10 issue

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

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

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

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

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

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

The common law alternative

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

 

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

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

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Alan Bogg and Virginia Mantouvalou: Illegality, Human Rights and Employment: A Watershed Moment for the United Kingdom Supreme Court?

boggav_mantouvalouUnder what circumstances can the illegal work status of a migrant worker bar a statutory tort claim for race discrimination through the common law doctrine of illegality? Such a question is due to be considered later this month by the United Kingdom Supreme Court in an appeal from the Court of Appeal decision in Allen v Hounga. Ms Hounga arrived in the UK from Nigeria in 2007 to work as a domestic worker for Mr and Mrs Allen. Her age was indeterminate but she may have been as young as fourteen when she entered the arrangement. Despite the promise of schooling, Ms Hounga never had an opportunity to get an education, and it was alleged that she suffered serious physical abuse at the hands of Mrs Allen. Eventually, she was ejected from the house and, having slept rough, Ms Hounga was found wandering in a distressed state in a supermarket car park. According to the Court of Appeal, Ms Hounga’s race discrimination claim was ‘inextricably bound up’ with the illegality in question and so to permit her compensation would be to appear to condone her unlawful conduct. In the eyes of many commentators, Hounga marked a new low for common law reasoning in the sphere of statutory employment rights. This was compounded by the context of legally sanctioned exploitation of a particularly vulnerable migrant worker, whose vulnerability had been constructed by the legal order in the first place, a situation that can also be described as ‘legislative precariousness’.

The narrowest approach to the legal issue would be to consider the Court of Appeal’s holding in Hounga with respect to legal authority. Rimer LJ in the Court of Appeal purported to follow the approach to illegality set out in the earlier case of Hall v Woolston Leisure. In Hall the Court of Appeal had insisted on a strict causation test. In Hounga this had been loosened to encompass situations where the illegality was merely ‘linked’ to the discrimination claim. Perhaps a better approach to formulate the question in the way that Lord Hoffmann did in the House of Lords decision in Gray v Thames Trains: ‘Can one say that, although the damage would not have happened but for the tortious conduct of the defendant, it was caused by the criminal act of the claimant? …or is the position that although the damage would not have happened without the criminal act of the claimant, it was caused by the tortious act of the defendant?’ If we pose the question in this way on the facts in Hounga, then the gist of the tort – the violation of Ms Hounga’s right not to be discriminated against because of her race – was caused by the tortious act of the defendant. That should be the end of the causation enquiry. And perhaps the Supreme Court might be content to dispose of the case on that narrow basis, ensuring the internal coherence of the common law doctrine of illegality in accordance with the precedents in Hall and Gray. Certainly, there are recent examples of the Employment Appeal Tribunal dealing with the illegality doctrine in a manner that is more sensitive to the various legitimate interests at stake, while reasoning within the four corners of the illegality doctrine.

There is a larger set of perspectives, however, given that Hounga sits at the intersection between labour law, human rights and migration law. Rather than refine the common law doctrine of illegality and ensure its internal coherence, it may be appropriate to consider whether illegality should have any role at all in this regulatory sphere. It might be helpful to consider this from two different vantage points, one that characterizes Hounga as a ‘labour law’ case; the other of which characterizes Hounga as a ‘migration’ case. It might be useful to regard both kinds of approach as based upon an anti-exploitation principle, which would set itself against unfair-advantage taking in the employment context. From a labour law perspective, the unfairness consists in the violation of legal rights that exist for the protection of those engaged in personal work. From a migration law perspective, the unfairness consists in the targeting of an especially vulnerable group within the wider category of personal work relations, viz migrants working illegally. Human rights issues arise in both of these perspectives.

If we take first the ‘labour law’ perspective, there is a respectable argument to be made that there is something special about labour rights, or a subset of labour rights that can be classified as human rights, that means that illegality should be excluded entirely from this regulatory context. At its broadest, it is possible to argue that all labour rights should be insulated from the illegality doctrine. Labour rights, such as the right not to be unfairly dismissed or working time protections, are not simply rights that benefit the individual worker implicated in illegality. These rights are also justified in their contribution to a wider public good, ensuring a culture of respect for workers’ rights in a well-functioning labour market that promotes decent work. Illegality should not be permitted to impede this public good by inculcating an ethic of disregard for employment rights amongst unscrupulous employers. Illegality also adds an extra incentive to employ undocumented migrant workers by ensuring a supply of labour that is cheaper still through the denial of basic employment rights. An intermediate labour law approach might be to focus on those employment rights that are reciprocally bound up with the provision of work, so that denial of the right corresponds to an unjust enrichment for the employer who has already had the benefit of the work. The obvious example here is the provision of back pay or the right to paid annual leave.

The narrowest labour law perspective would focus on a tighter category of fundamental human rights, such as the right not to be discriminated against because of race or sex, the prohibition of forced labour or freedom of association. The fundamentality of these human rights means that any illegality of the claimant should be disregarded. There would be something unconscionable for a legal system to permit the violation of fundamental human rights in circumstances of illegality; it would undermine the “integrity of the legal system” which, after all, is one of the functional concerns of the illegality doctrine itself. In Hall both Peter Gibson L.J. and Mance L.J. identified the sex discrimination claim as vindicating the claimant’s fundamental human right not to be discriminated against on grounds of sex. This fundamental rights dimension was a vital factor in insulating the statutory tort claim from the doctrine of illegality. This labour law perspective, focused on the nature of the legal right, would treat the migration dimension to Hounga as part of the background context, but not especially salient. It might be regarded as an extra attraction of this approach that in avoiding a focus on whether labour was forced or a person was trafficked, it avoids the implicit legitimization of other situations where an employer violates the fundamental human rights of workers (whether or not migrants) behind the protective cloak of illegality.

By contrast, the ‘migration law’ perspective would focus on the distinctive nature of the claimant in Hounga as a member of an especially vulnerable group within the labour market. In respect of their labour rights, undocumented migrant workers are effectively ‘outlaws’. The doctrine of illegality exacerbates their existing vulnerability through the law, and makes them even more prone to exploitation than other migrant workers. This seems difficult to defend even from the perspective of migration policy itself. For just as migration policy is concerned to regulate and restrict migration, it is equally concerned to ameliorate the circumstances of extreme exploitation that can be classified as ‘modern slavery’, which might be thought to characterize the situation of claimants such as Ms Hounga.

In terms of European human rights law, this situation can raise issues under the European Convention on Human Rights (ECHR), which may provide the tools to address workers’ exploitation in certain circumstances. The Convention protects the rights of everyone within the Contracting States’ jurisdiction (article 1 ECHR), without drawing any distinction on the basis of nationality. Article 4 of the ECHR, which is an absolute provision, prohibits slavery, servitude, forced and compulsory labour. The European Court of Human Rights (ECtHR) has previously examined the exploitation of a migrant domestic worker in the case of Siliadin v France, which had similarities with Hounga (but without the element of physical abuse). The ECtHR recognized the applicant’s vulnerability, whose passport had been confiscated, and ruled that she was held in servitude, forced and compulsory labour, which should be criminalized. Even though the focus was on criminalization, the Court did not rule out that other labour protective legislation may be required. In terms of the legal regime that the doctrine of illegality sets up for the undocumented, the case Rantsev v Cyprus and Russia is also important to highlight. In that case, which involved a victim of sex trafficking, the ECtHR held that an immigration regime (that of the ‘artiste visa’ in that case) limited the freedom of Rantseva to such a degree that it violated article 4. The doctrine of illegality may raise similar issues, as it limits the undocumented workers’ freedom to an extreme, leaving them in a legal black hole.

The prohibition of discrimination (article 14 ECHR) taken together with the right to the peaceful enjoyment of one’s possessions (article 1 of Protocol 1 ECHR) may also be at stake in cases of an illegal contract of employment. Should a worker not be awarded her salaries, the Court may view this as discrimination in the enjoyment of her possessions, as salaries have been classified as possessions in the case law. The ECtHR has explored the social rights of a documented migrant in Gaygusuz v Austria, and ruled that for a difference of treatment on the basis of immigration status to be justified, ‘very weighty reasons would have to be put forward before the Court’. The control of immigration may be a legitimate aim, but the means employed to meet the aim may violate the Convention.

The ECtHR has not examined the rights of undocumented workers under the prohibition of discrimination in conjunction with other Convention rights. However, the Inter-American Court of Human Rights addressed the issue in its advisory opinion ‘Juridical Condition and Rights of the Undocumented Migrants’. In this context, the Court referred to the vulnerable status of migrants and emphasised that their human tights should be protected regardless of their legal status. It stated that workers’ rights can only be dependent on the status of someone as a worker, and not on the status of someone as a lawful migrant:

‘Labor rights necessarily arise from the circumstance of being a worker, understood in the broadest sense. A person who is to be engaged, is engaged or has been engaged in a remunerated activity, immediately becomes a worker and, consequently, acquires the rights inherent in that condition […] [T]he migratory status of a person can never be a justification for depriving him of the enjoyment and exercise of his human rights, including those related to employment.’

This opinion suggests that fundamental labour rights found in legislation cannot be made conditional upon immigration status because this violates the prohibition of discrimination. The Inter-American Court accepted that states have a sovereign power to deny employment to undocumented migrants. However, once they are employed, they should be protected equally to other workers. The list of rights that undocumented workers must enjoy, on this analysis, does not only include the ILO’s fundamental rights at work. It also encompasses fair pay, reasonable working hours, health and safety rules and other fundamental labour rights.

Hounga is possibly the most important employment case yet to be considered by the United Kingdom Supreme Court. We hope that it takes the opportunity to step beyond the formalism of a narrow approach to the illegality point, sensitive to the wider human rights issues. Nothing less than the integrity of the English legal system is at stake.

Alan Bogg is Professor of Labour Law; Fellow and Tutor in Law, Hertford College, University of Oxford.

Virginia Mantouvalou is Reader in Human Rights and Labour Law and Co-Director of the Institute of Human Rights, University College London (UCL).

This piece has also been endorsed by Professor Hugh Collins (Oxford), Dr Nicola Countouris (UCL), Dr Cathryn Costello (Oxford), Professor Mark Freedland (Oxford), John Hendy QC (UCL) and Professor Tonia Novitz (Bristol).

Suggested citation: A. Bogg and V. Mantouvalou,’Illegality, Human Rights and Employment: A Watershed Moment for the United Kingdom Supreme Court?’ U.K. Const. L. Blog (13th March 2014) (available at http://ukconstitutionallaw.org/)

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Jacob Rowbottom: Laws, Miranda and the Democratic Justification for Expression

jacob-rowbottom-photoThe Divisional Court’s decision in the David Miranda case has provoked much controversy and debate about freedom of the press and national security issues. About halfway through his judgment, Laws LJ makes a number of comments about the justifications for freedom of expression and media freedom. While these may not be the most pressing or immediately important issues raised by this particular case, it is worth noting what Laws LJ says at paras [41-46] as he seems to move away from what has been something of an orthodoxy in the British and European jurisprudence – the importance placed on the democratic justification for expression.

Laws LJ takes this step away from the democratic justification only in relation to individual freedom of expression, and not media freedom. On his view, media freedom is justified ‘to serve the public at large’ – in other words to scrutinize government and provide useful information to the public. These are classic features of the democratic justification. In this, Laws (correctly in my opinion) takes an instrumental account of media freedom, an approach that is reflected in many of the cases and in the Leveson Report. By contrast, he states that freedom of expression ‘belongs to every individual for his own sake’. Here Laws LJ states that ‘the promotion or betterment of democratic government’ is not the ‘essential justification of free expression’. Instead, individual freedom of expression ‘is a condition of every man’s flourishing’.

The implication of this distinction is that when applying the proportionality test in the case of media freedom, the courts are balancing ‘two aspects of the public interest’. By contrast, freedom of speech is about balancing the rights of the individual with the interests of the community. This should not, however, be taken to mean that media freedom rights are more easily outweighed. There may be instances where the public interest in expression serving the needs of the audience is stronger than the interest held by the individual. There will be cases where the audience-focused public interest justification makes a very strong case for heightened protection.

In his discussion of the democratic justification, Laws LJ describes Alexander Meiklejohn’s view that free speech is ‘a collective, not an individual, interest’ and a ‘servant of democracy’. We can see the collective approach to free speech reflected in Meiklejohn’s famous comment that ‘What is essential is not that everyone shall speak, but that everything worth saying shall be said’. According to this approach, the key is that all the relevant viewpoints get a hearing and are considered. The goal is to ensure that the audience is well informed. This thinking suggests that if every person were to speak in a debate, then similar views would be likely to be repeated – while this might make speakers feel better about themselves, it does not give the audience new information (except indicating strength of feeling). Laws LJ argues that this justification, while relevant to the media, does not provide a foundation for individual freedom of expression.  In short Laws LJ seems to take the following approach: the collective Meiklejohnian justification for the media, and a liberty theory for individual speakers.

One of the main criticisms of the democratic justification/collective interest advanced by Laws is that it tends ‘to devalue non-political speech and justify the prohibition or abridgement of speech advocating undemocratic government’. It is certainly true that the democratic justification, as advanced under Article 10, has led to a hierarchy in which political speech is given strongest protection. If what Laws LJ means is that the democratic justification is not the sole justification and needs supplementing in some instances to give broader protection, then this is a valid point. I have argued elsewhere that in some cases more protection is needed for the non-political speech of individuals. But the democratic justification still plays an important role in relation to individual expression and there are strong arguments to support the robust protection of political speech. Furthermore, some hierarchy among categories of speech may be practically necessary – not every utterance can be given exactly the same intensity of protection. If all types of expression were treated as a single category then it might weaken the protection of expression overall (ie treating all speech types equally might lead to a leveling down of protection rather than a leveling up).

Laws LJ’s concern that the democracy argument justifies ‘the prohibition or abridgement of speech advocating undemocratic government ‘ is less persuasive. An account of speech that focuses on the collective democratic interest does not necessarily lead to a conclusion that prohibitions on undemocratic speech are to be permitted. The audience interest in hearing diverse views can extend to those that challenge democratic values. One can still oppose restrictions on ‘extreme speech’ while staying within the framework of the classic democratic justification for expression rights. Furthermore, if Laws LJ’s maintains the collective/democratic justification in the case of media freedom, then why doesn’t his objection to the justification apply in this context as well as to individual speakers?

None of this is dismiss the important distinction drawn between individual speech rights and media freedom (with which I strongly agree). However, we can support that distinction for reasons that still connect free speech with democracy. Meiklejohn provides a powerful argument that captures one very important role for free speech in a democracy. But there are other additional reasons why free speech is necessary in a democracy. When thinking about the free speech rights of individuals, we also need to consider the perspective of the speaker.  While this seems to be what Laws LJ is getting at, the speaker-based perspective can fit within a democratic justification. Expression can be a form of participation in the political process. To speak out in a democracy is valuable not solely as a means of informing the public, but also as a way of having your say and engaging with collective decision-making. For example, protests are important not just to publicize a cause, but in allowing people to publicly register their thoughts.

My point is that we need not marginalize the democratic justification for expression to go beyond an audience-focused approach. Instead, some of the classic theory’s shortcomings can be addressed by developing the understanding of democracy that underpins the justification for free speech rights.

Jacob Rowbottom is a Fellow of University College, Oxford.

Suggested citation: J. Rowbottom, ‘Laws, Miranda and the Democratic Justification for Expression’  U.K. Const. L. Blog (22nd February 2014) (available at : http://ukconstitutionallaw.org/)

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Richard Ekins: A modest proposal: prudence, proportionality and (forced) prostitution

richardekins2009-200x300Late last year, in Bedford, the Supreme Court of Canada struck down a set of legislative provisions prohibiting the running of brothels, living on the proceeds of prostitution, and communicating in public with clients.  The court ruled that while Parliament had authority to regulate nuisances, the legislation in question was grossly disproportionate to this end, arbitrarily undermining the life, liberty and security of prostitutes engaged in their – lawful – trade.  The legislation in question is subject to a suspended declaration of invalidity, such that Parliament has one year within which to enact alternative legislation if it wishes.

Meanwhile, on the other side of the Atlantic, the French Parliament has acted to repeal the equivalent provisions, but has at the same time imposed criminal liability on clients, specifically a fine of €1,500, rising to a maximum of €3,750 for repeat offenders.  Thus, France is following Sweden, with other European countries reported to be considering similar change.  In arguing for this change, I understand the French government stressed the high proportion of prostitutes in France who are victims of people trafficking.

The Canadian and French experience confirms the obvious: legislation about prostitution is always controversial.  The controversy, as with so many issues in our public life, plays out in part in constitutional law and practice.  This blog post considers the constitutionality of legislating about prostitution by thinking through the proportionality (and prudence) of a proposal for legislation, outlined below, which addresses the problem of forced prostitution.  The problem is that, while accurate figures are hard to come by, it would seem that a high proportion of trafficked persons are bound for the sex trade, which means that at least some proportion of prostitutes in the Western world have been trafficked and are forced to undertake and to endure sexual acts without consent.  That is, these women (and men, and sometimes children) are the victims of repeated rapes, for which those who profit as well as the rapists themselves should be held criminally liable and severely punished.

But is the client of a forced prostitute a rapist?  Perhaps not, for there is an asymmetry in the law of rape, especially stark in cases where a person is sold into prostitution, is forced into sexual acts – maybe even (often) is forced to seem willing, to act as if consenting.  The asymmetry is this: the woman so forced does not in fact consent and yet the person(s) paying for sex with her may reasonably (or at least arguably, which may be sufficient to avoid conviction and hence even to deter prosecution) believe that she consents.

The possibility that any particular ‘prostitute’, even if British (and hence unlikely to have been trafficked from elsewhere in the world), does not in fact consent is one that should weigh heavily in the judgment of any reasonable person as to whether in fact she consents.  That is, it may very often be unreasonable to believe that a woman with whom a man has paid for sex in fact consents.  But this is a very thin reed on which to secure a rape conviction of a man who pays for sex with a person who, it turns out, is forced to be a prostitute.  And perhaps rightly so, for the man who fails to consider the possibility that the woman in question has been trafficked – who has not thought about the reach of person trafficking – may simply be careless and unthinking, not vicious or reckless, such that it would be wrong to condemn his action as an instance of that most serious sexual crime, rape.

Interestingly, the criminal law does rule out, or at least sharply bears on, certain kinds of argument about whether it was reasonable for the accused to believe that the complainant consents.  Section 75 of the Sexual Offences Act 2003 provides a rebuttable presumption that the complainant did not consent and that the defendant did not reasonably believe she consented if the defendant is aware that at the time of the relevant act, or immediately before, the complainant was in fear of violence (against herself or another), was unlawfully detained, was asleep or otherwise unconscious, was incapable of communicating consent by reason of physical disability, or was subject (without her consent) to a stupefying substance.  Section 76 provides that the accused does not have a reasonable belief in consent if he intentionally deceives the complainant about the nature or purpose of the relevant act or if he intentionally induces the complainant to consent to the relevant act by impersonating a person known personally to the complainant.

The equivalent New Zealand legislation, s 128A of the Crimes Act 1961, is more prescriptive still, specifying various circumstances (including excessive consumption of alcohol or other drugs) in which a person does not consent.  However, while this rules out any argument that the complainant in fact consented, it does not in terms specify that the defendant cannot reasonably believe the complainant consented (if drunk, etc.).  Still, the significance of these provisions is that they limit the scope for argument, avoiding some uncertainty about when and why it is reasonable to believe the complainant consented.

Consider this modest proposal.  Amend s 76 of the Sexual Offences Act to provide a conclusive presumption that no complainant consents, and no defendant reasonably believes she consents, when (the defendant knows that) the payment of money (by the defendant or on his behalf) is a condition of the defendant doing the relevant act.  Would this amendment be reasonable?  Would it be constitutional?

One might argue that this proposal, which would make it impossible in law for any person paying to have sex with a ‘prostitute’ to be reasonable in his belief that she consents, interferes with his right under Article 8 of the European Convention on Human Rights, if respect for one’s private and family life is ‘engaged’ when one makes unlawful paying for sex.  (I set aside an analogous argument that a willing, non-trafficked prostitute might make: by hypothesis, any interference would be with her trade not her private life).  I doubt whether one should think that respect for one’s private life requires respect for one’s desire to pay for sex, but Article 8(1) is understood so capaciously that likely it would be so understood (indeed, perhaps it already has been).  The interference would not, on my argument, be intended for the protection of health or morals but rather for the protection of the rights and freedoms of others, viz. the bodily integrity and personal liberty of the trafficked persons whom, absent the proposed amendment, the unsuspecting customer is otherwise free to rape.  Relatedly, the interference would be intended to prevent crime to the extent that it would imperil the market for trafficked persons, deterring (somewhat) the crimes involved in forcing women into prostitution.

The interference would be a rational means to the ends in question, for it would vindicate the rights of the trafficked woman to be free from sexual acts to which she does not consent by bringing closer into line the man’s legal liberty and her actual non-consent: that is it would close the asymmetry in a way consistent with the law’s focus on the reasonableness of the defendant’s belief.  And by exposing every client to liability for rape the interference would very sharply deter at least some (and increasingly more if the regime were applied forcefully) from paying for sex or even from considering paying for sex.  I take it that the question of proportionality stricto sensu is easily answered: securing the rights of all persons to be free from rape is not an end to be set aside because it involves limiting, or expunging, the freedom to pay for sex, which freedom is close to worthless.

The hardest question might be whether the proposed amendment is the least restrictive alternative.  For why amend s 76 when one might just as easily, and perhaps more obviously, amend s 75?  That is, why not introduce a rebuttable presumption that if money is paid (by or on behalf of the defendant) the complainant does not consent and the defendant does not reasonably believe she consents?  This narrower presumption would avoid an obvious implication of the broader proposal, which is that the latter deems some persons (willing, non-trafficked prostitutes) not to have consented when in fact they have consented.  This deeming is an awkward fit with the structure of ss 75-76, which take for granted that the presumptions – conclusive or rebuttable – track the facts.  Hence, avoiding this artificiality might be thought an obvious advantage of the narrower formulation, such that the broader is disproportionate.  However, there is an advantage to the broader, which is that it constitutes a clear rule, which makes unarguable the proposition that it was reasonable to believe the complainant consented because she was a prostitute.

The question of whether to privilege the narrower is a difficult question, not to be answered solely on the grounds of the apparent logic of proportionality.  The artificiality of the broader proposal would be intended precisely to protect the persons who will suffer from a vaguer proposition which aims to discern the actually consenting from the non-consenting.  Further, the proposed amendment may be understood not just, or even mainly, as an evidential rule concerning what is or is not reasonable belief in consent, as s 75 clearly is and s 76 is in part, but rather as a provision that makes it the case that there is no reasonable belief in consent in these circumstances, even if some (even many or most) prostitutes are willing, non-trafficked and in some sense do in fact ‘consent’.  The law in question would, in one way, make the latter persons incapable of consenting to sex in exchange for payment, which incapacity (which would not change their legal position save to the extent of removing a power to make what would otherwise be rape not rape) is imposed for the sake of the (unknown number of) persons who do not consent and are forced into prostitution.

An amendment to s 76 would thus perhaps be proportionate, consistent with Article 8.  In one sense, of course, it would not be at all proportionate, for it has the effect that men who pay for sex are liable for conviction for rape, even when the person with whom they have sex in fact consents, which seems heavy-handed at best.  Doubtless such persons would be sentenced much more leniently than other rapists (rapists properly so-called even), and doubtless the authorities would prosecute only a fraction of those persons.  This gives rise to a general worry, which is that while the proposal may not be obviously illogical, it may be wildly imprudent, for it introduces into law a strained artificiality that sharply extends the scope of the criminal law in a fashion that is unlikely to be publicly supported.  I refer here not to the related worry that no Parliament would ever enact this proposal, but rather to the prospect that the (liability to) conviction for rape of many men who pay for sex would be viewed as absurd, as devaluing the gravity of the charge of rape.

These are, I think, difficult questions.  The merits of the proposal turn in part on one’s sense of the scale of the relevant problem and on one’s speculation about how the introduction of the new rule would change the practice of persons who would otherwise pay for sex, persons who are in the business of preying on the vulnerable to supply the former with objects for their gratification, and of the authorities charged with enforcing the law.

Proportionality is a virtue, but it does not rule out sweeping rules that sharply change the legal position.  Prudence is another (related) virtue, which may rule out exactly such rules.  It is obviously imprudent (not to mention straightforwardly illogical) to reason that something must be done, that this is something, and hence it must be done.  Still, the desperate plight of the unknown numbers of persons forced into prostitution at least warrants consideration of such changes, however sweeping, as may perhaps prove to be intelligent, if inevitably partial, means better to protect them.  And if nothing else, thinking through the (limited but nonetheless real) appeal of what is clearly a rather extreme proposal has the virtue of putting the Swedish and French laws in perspective, making clear that they are not arbitrary interferences with someone’s lawful trade (as the Canadian courts might say), but are prudent, measured attempts to address very serious injustices.

Richard Ekins is a Fellow and Tutor in law at St. John’s College, Oxford.

Suggested  Citation: R. Ekins, ‘A Modest Proposal:   prudence, proportionality and  (forced) prostitution’  U.K. Const. L. Blog (12th Feb 2014) (available at   http://ukconstitutionallaw.org/).

 

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Stuart Lakin: The Sovereignty of Law: Freedom, Constitution and Common Law by Professor Trevor Allan: Some Preliminary Thoughts

stuart1 Most readers of this Blog will undoubtedly be familiar with the work of Professor TRS Allan.   It is difficult to think of anyone who has made a more significant contribution to UK public law scholarship in recent decades.  For the uninitiated, Allan is best known for his radical challenge to constitutional orthodoxy in Britain.    Over the course of several impressive books – with suitably grand titles – he has set about dismantling just about every last (supposedly) well established doctrine, distinction and conceptual dichotomy.   In their place, he advances a fluid vision of the constitution in which the rights, duties and powers of individuals and institutions depend on moral argument about the rule of law, freedom, justice and due process.  Allan is arguably the pioneer of ‘common law constitutionalism’ (not to be confused or conflated with ‘legal’ constitutionalism – more on that below).

In his latest book,The Sovereignty of Law (2013) (hereinafter ‘Sovereignty’) Allan takes both his critique of orthodoxy and his own rule of law thesis to a new level of cogency and philosophical   rigour.  Whether or not one agrees with his arguments, it is a tremendous accomplishment.   The aim of this post is to provide a short, preliminary review.  I shall divide my thoughts into four sections: general observations, methodology, substantive claims, and potential objections.    Where I refer to the book directly, I shall use numbers in brackets.

1.  General observations

 There are eight chapters in total, all around the 30-40 page mark, plus an appendix.   As Allan explains (15-16), the chapters are closely interconnected and can be read in any order.   Broadly speaking, they cover: 1. constitutionalism, 2. constitutional convention, 3. the rule of law, 4. parliamentary sovereignty, 5. legislative supremacy and the rule of law, 6. constitutional foundations of judicial review, 7. judicial restraint, 8. democracy, rights and the common law.   Such is the close link between the themes and arguments within chapters, Allan breaks his discussions up with Roman numerals rather than specific sub-headings.   Each chapter begins with a clear and accessible introduction, aimed especially at students.  The appendix pursues some of Allan’s more abstract methodological arguments in greater detail.

Sovereignty as a whole reads rather like a set of colloquium-style ruminations.   Allan continually refers backwards and forwards to different aspects of his argument, restating, refining and anticipating his central claims.  For every abstract argument, he gives numerous concrete illustrations.  Indeed, the defining strength of Allan’s work, I think, is his ability to weave together complex debates in legal and political theory with detailed doctrinal analyses of cases, statutes and contemporary constitutional developments.   That strategy, we shall see below, is central to his methodological and substantive commitments.    Readers who lack the time or will to read Sovereignty from cover to cover will get a very good sense of Allan’s thought-world just by focusing on some of his excellent case studies.  Here are some particularly good examples: Liversidge v Anderson (21-25), Prolife (25-31), Factortame and Thoburn (146-150), Jackson (150-153), R v A (186-88), Bellinger (319-321), and **Bancoult (ch 8 generally).

Every leading thinker inevitably has their own intellectual heros.  Allan’s are (principally): Kant, Hayek, Fuller and Dworkin. Rather surprisingly, given the progressive nature of Sovereignty, Dicey also features prominently (see, for instance, 31-36).   Here, as elsewhere, Allan seems determined to enlist Dicey’s work to his own cause.

2.  Methodology

It is striking that Allan gives far greater coverage to questions of constitutional methodology in Sovereignty than in his earlier books.    Legal philosophers endlessly debate the nature of their own discipline: is it descriptive, evaluative, conceptual, interpretative or whatever?  The same sort of debates are slowly creeping into the work of constitutional theorists (alongside Sovereignty, see also, for instance, Nick Barber, The Constitutional State (2010), ch 1).

Allan attacks a ‘positivist’ approach to constitutional argument, one that involves describing the constitution without making any evaluative argument about why it – and the content of English law – should be understood in a particular way.    People who take this approach, he claims, mistakenly adopt the ‘external perspective’ of a political scientist, anthropologist or historian, rather than the ‘internal perspective’ appropriate to legal reasoning (chapters 1, 2 and the appendix are particularly good on this distinction). Their error is to suppose that there is a ‘fact-of-the-matter’ about the constitution and questions of public law (6-7).     Allan returns to this external/internal distinction again and again during Sovereignty.  His running contention, we shall see below, is that many of the different doctrines, distinctions and labels that public lawyers use make little sense once we abandon the positivist perspective.

The constitutional lawyer who takes the internal perspective, Allan explains, necessarily interprets statute and common law in the sense of ‘presenting reasons of justice or political morality for reading them in one way rather than another’ (6).  In this way, ‘legal analysis cannot be detached from…constitutional theory’ (22), and ‘legality is always connected to legitimacy’ (23).     Allan is careful to deny that he is inventing a new (ideal) constitution rather than elucidating the existing one.  The interpreter of the constitution, he insists, cannot bring any moral theory to their task.  They are constrained by the particular scheme of principle latent within current legal and political practice (340-346).   Allan draws heavily on the work of Dworkin in making these arguments.  However, there may be a fundamental methodological difference between the Dworkin and Allan, one which calls into question Allan’s external/internal distinction.   I shall return to this point below as a potential avenue for criticism.

3. Substantive Claims

Allan’s interpretative/internal approach generates a raft of bold, unconventional claims about the constitution.   Let me attempt to summarise some of them, roughly in the order that they appear.   Needless to say, I cannot do justice to the detail and nuance of Allan’s arguments here.  At best, I hope to capture their general spirit.    As you work through these claims, keep in mind the methodological distinction above.   In general, the view under attack is incorrect, according to Allan, because it is made from an external, descriptive perspective; and the correct view is correct because it is made from an internal, morally engaged perspective.   It is this ‘all or nothing’ stance that I think separates Allan from Dworkin.   More on this in section 4 below.

a)  There is no a priori distinction between law and constitutional convention, justiciable and non-justiciable powers, the ‘political’ and ‘legal’ constitution.  Whether a particular aspect of governmental practice raises questions of legal principle better enforced by courts, or questions of ‘good governmental practice’ better enforced by politicians will depend on a judgment about all of the relevant facts, reasons and values that apply in the specific context (ch 2).

b) The British constitution is founded on a model of rule of law that invokes the idea of   ‘liberty as independence’ (12).   This is ‘ultimately a principle of equal citizenship, precluding arbitrary distinctions between persons, irrelevant to any legitimate public purpose’.  The principle ‘…imposes a requirement of justification, connecting restrictions on liberty to a public or common good, open to fearless public debate and challenge’ (91).  (ch 3)

c)   Parliament does not possess absolute, sovereign legislative power.  Legislative supremacy (Allan’s preferred term) ‘may [only] operate within the constitutional framework of the rule of law‘ (133).   ‘Parliament’s authority is confined by the limits of our ability (in any concrete context) to interpret its enactments as contributions to the public good’ (12).   It follows that a statute is only recognisable as such if it can be read in a way that is compatible with the principle of equal citizenship (33).  (ch 4)

d)  Statutes do not mean what parliament intended, in the sense of communicating a ‘speaker’s meaning’ (193).   The interpretation of a statute instead requires us to construct the intent of the ‘ideal or representative legislator’ who seeks to reconcile ‘current policy and overarching legal principle’ (194).  There is then no conflict between Parliamentary supremacy and the rule of law.   These ideas are interdependent, embodying the twin imperatives of democracy and respect for individual dignity and autonomy (168). (ch 5)

e)  The traditional judicial review debate is loaded with positivist assumptions, notably that Parliament may abrogate fundamental rights using express language, and that there are discrete heads of judicial review which separately address issues of procedure and substance.   For Allan, fundamental rights ‘can be ‘overridden’ [i.e. defined] only in circumstances that justify curtailment‘   (258); ‘Judicial review…enforces standards of due process, which resist any neat division between procedure and substance’ (242); and the principles of legality, rationality and proportionality are all subsumed within a general right to fair treatment (260). (chs 6 and 7)

f)    There is no independent doctrine of judicial deference.   ‘The relevant considerations of constitutional legitimacy and institutional expertise are already implicit constraints on judicial review – reflected in ordinary legal reasoning…’ (241).   (ch 7)

g)  Section 3 of the HRA merely replicates the pre-existing common law order.  Common law reasoning involves precisely the same balancing of relevant considerations (176). It should not have mattered in the ex parte Smith case that the ECHR had not been incorporated (245).    ‘The court’s appraisal… fell short of what was necessary to protect the basic rights in issue (255).    If Parliament were to repeal the HRA, ‘the underlying common law constitution would remain untouched…’ (324) (chs 7 and 8).

h)  There is no distinction between the ‘legal’ and ‘political’ constitution: every account of the constitution is both legal and political in so far as it must include some coherent account of the separation of powers (305).  Nor is there any meaningful distinction between ‘weak’ and ‘strong’ judicial review.  The common law constitution is distinct from both arrangements.  Courts have a duty to interpret statutes in line with basic common law rights, and so it will rarely be necessary to quash a provision (as exemplified in Anisminic). (230) (323).  (ch 8)

4. Potential Objections

Every reader of Sovereignty will find in it their own points of interest and controversy.    The book is bursting with provocative claims and arguments.    I shall pick out two areas where I think Allan may be vulnerable to criticism.   I shall use small letters in brackets to refer back to the substantive claims above.

Interpretation and the Internal v External Perspective

We have seen that, for Allan, the only way to understand the existing British constitution is to interpret legal and political practice from the internal point of view of a lawyer of judge.  This means, he tells us, that legal doctrines can only be defended with ‘arguments of principle… consistently with our commitment to constitutionalism‘ (10).    One cannot simply describe the constitution from the outside.

The thrust of my first criticism is this: while we can agree with Allan that no account of the constitution can be descriptively correct, the various positivist-inspired doctrines, distinctions, labels, and so on that he attacks in Sovereignty need not be understood in this way.   They can instead be understood, in line with the method Allan recommends, as interpretations of British legal and constitutional practice.   It can be argued that a lawyer or judge arguing from the internal point of view may have entirely plausible moral reasons to distinguish between law and convention a), to propound a narrow, formal conception of the rule of law b), to separate the extent of Parliament’s legislative powers from the justification for those powers c), to understand statutes in terms of a ‘speaker’s meaning’ d), to understand judicial review as a set of discrete rules e), to separate questions about the content of the law from question about how judges should decide cases (e.g. to fashion an extra-legal doctrine of deference) f).    Legal theorists such as Hart and Raz strongly resist this moral ‘recasting’ of their theories, but it is central to the interpretative method – as least as developed by Ronald Dworkin – that legal positivism is only intelligible in this form.

By automatically equating the interpretative, internal point of view with his own moral/theoretical approach to legal and constitutional argument, Allan rather rigs the interpretative debate.   In my view, he needs to confront the orthodox positivist account of the constitution – along with every other account – as a rival interpretation rather than dismiss it as belonging to a separate ‘external’ intellectual discipline (sociology, political science, etc).      Both Barber (above) and Goldsworthy (see, for instance, The Sovereignty of Parliament (1999), ch 10) have offered explicitly interpretative bases for their broadly positivist claims.    It may be that Allan can defend his approach as a better interpretation of the constitution than the positivist one, but that aim immediately encourages a far healthier debate than is perhaps envisaged by Sovereignty.

The Impact of the HRA 1998 on the Common Law

Let us grant for the sake of argument that Allan’s interpretation of the constitution is correct: that the content of the law – including the powers of Parliament and courts – depend on the particular scheme of principle embedded within current legal and political practice.  A second criticism of Sovereignty is that some of Allan’s claims pay too little attention, or no attention to the evolution of practice and principle in Britain.   I have in mind the claims contained in g) and h) above.     Allan can be understood as saying, first, that the enactment of the HRA had no meaningful impact on the British constitution; and, secondly, that his favoured model of common law protection of rights by judges is the only legitimate form of institutional protection of rights.     Both of these claims are highly contentious.

In terms of the first claim, whether or not one would ideally support the structure and aims of the HRA, an interpreter of the constitution must adjust their account of the practice in light of that important Parliamentary ‘decision’ (just as they would have to adjust their account in the event of its repeal).  The Act plausibly introduces a novel division of labour in respect of rights protection; or, to put this point in more philosophical language, it contributes a scheme of institutional morality that arguably differs from what went before.   The ‘declaration of incompatibility’ mechanism in HRA s 4 is almost invisible in Sovereignty.   My argument – which I cannot develop here – is that Allan’ account of the constitution must accommodate rather than erase this mechanism.   His discussion of Bellinger (319-321) is particularly revealing on this point.

A similar objection can be made to the second claim.   Whether or not the labels ‘strong’ and ‘weak’ review serve any useful purpose, Allan seems to preclude different forms of rights protection altogether.    He repeatedly tells us that Charters of Rights and Bills of Rights cannot affect the judicial role (e.g. 282, 327): that (his account of) the separation of powers is an ‘essential component of [a] conceptual polity, enshrining the rule of law…’(295).      Despite extensive discussion of the work of Waldron and Bellamy – both of whom wish to make the legislature the primary forum for decisions about rights – (304-329), I think there is greater scope in Sovereignty for argument on whether a political community can protect rights in different ways.

Closing Thought 

These are exciting times for scholars of the British constitution.   What had been a rather arid, doctrinal, area of study is now rich with philosophical interest.   We should be grateful to Allan for spearheading that transformation.    Many public lawyers will feel rather battered and bruised by their treatment in Sovereignty; the ‘externalists’ are a populous group!    But Allan’s aim is undoubtedly to encourage a particular style of debate rather than delivery knockout blows.   It will fascinating to see how that debate unfolds.

Dr. Stuart Lakin is a Lecturer in public law and jurisprudence at the University of Reading.

(Suggested citation:  S. Lakin, ‘Review: TRS Allan’s The Sovereignty of Law (OUP, 2013)’ U.K. Const. L. Blog (4th February 2014) (available at http://ukconstitutionallaw.org/)).

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Alison Young: Horizontality and the EU Charter

young_alison-l2Concerns are often raised as to the impact of EU’s human rights provisions in English law, particularly concerning the impact of the EU’s Charter of Fundamental Rights and Freedoms. How far does the Charter apply and, in particular, can this be used in purely horizontal situations – i.e. where a dispute arises between two private parties and EU law is sought to be used, in and of itself, to impose an obligation on an individual they would not otherwise have but for the effect of EU law? The UK government is currently carrying out a review on the balance of competences between the EU and its Member States. Unfortunately the call for submissions on the EU and human rights closed before the decision of the Grand Chamber of the Court of Justice of the European Union in C-176/12 Association de médiation sociale v Union locale des syndicats CGT (AMS) was delivered on 15 January. Whilst the decision does provide some answers to the complex nature of the application of the Charter in national law, it raises more questions than it resolves.

 AMS concerned the appointment of Mr Laboudi as the local CGT union representative at AMS. AMS is an association in Marseille that implements social mediation measures and measures for the prevention of crime in Marseille. The French law implementing Directive 2002/14, which establishes a framework for informing and consulting with employees, required Unions to designate a representative for firms with 50 or more employees. However, in calculating the number of employees, the French law did not take account of apprentices.  AMS employed 11 full time members of staff and employed between 120 and 170 individuals on ‘accompanied employment contracts’.  AMS argued that those employed on ‘accompanied employment contracts’ were apprentices. Therefore, it had less than 50 employees and CGT were not able to insist on the appointment of a Union representative at AMS. CGT argued that the French law was contrary to the Directive and Article 27 and that they were able to insist on the appointment of Mr Laboudi as their representative. Two questions arose. First, does Directive 2002/14, either by itself or as interpreted in line with Article 27 of the Charter require that those employed on ‘accompanied employment contracts’ be counted as employees for the purposes of the Directive? Second, could the Directive, interpreted in line with the Charter, be used in a dispute between private parties so as to exclude national law?

The first issue was relatively straightforward. The court concluded that the Directive does not permit Member States to exclude certain categories of employees from its provisions. The second issue was more complicated. The provision of the Directive was sufficiently clear and precise to have direct effect. But, as a Directive, it was not capable of having horizontal direct effect: As the union and AMS were both private parties, the Directive could not be relied on. Nor was it possible to interpret the French law in line with the Directive. Any duty to interpret national law in line with Directives reaches its limit when it would require a contra legem interpretation, as would be the case here. The question remains, however, whether Article 27 of the Charter, protecting the worker’s right to information and consultation, could nevertheless apply to this dispute between two individuals.

For the Charter to apply, two hurdles need to be cleared. First, as established in C-617/10 Åkerberg Fransson, it has to be demonstrated that the situation before the court is ‘governed by European Union law’ as the Court of Justice of the European Union ‘has no power to examine the compatibility with the Charter of national legislation lying outside the scope of European Union law’. [paragraph 19, Fransson]. As the French law in question was designed to implement Directive 2002/14, then the case clearly was one that was governed by European Union law. Second, it needs to be established whether the Charter was able to have horizontal direct effect. The answer given is ‘yes – but not always and not in this specific case’. Article 27 requires that ‘[w]orkers or their representatives must, at the appropriate levels, be guaranteed information and consultation in good time in the cases and under the conditions provided for by Community law and national laws and practices.’. The Court concluded that ‘for this article to be fully effective, it must be given more specific expression in European Union or national law’. [AMS paragraph 45]. Therefore, the Charter could not be invoked in this instance to exclude the operation of national law in a dispute between parties. Nor could the Charter and the Directive operate together to grant horizontal direct effect to the Charter provision and exclude the operation of national law in a dispute between private parties. If the Charter did not have the ability to apply in this manner in and of itself, then it could not acquire this ability by being combined with the Directive [AMS paragraph 49]. So, the only remedy available to the applicant is to invoke the principle of state liability, established in C-6/90 Francovich, to claim damages from the French state for its failure to implement the provisions of the Directive. What is important here is what is not said. At no point did the Grand Chamber state that the provisions of the Charter, like Directives, cannot have horizontal direct effect. This leaves open the possibility that the Charter could be used in and of itself to exclude the application of national law in a dispute between private parties when the Charter provision did not need to be given more specific expression in European or national law.

Which Charter provisions can have horizontal direct effect?

The judgment leaves open more questions than it answers: although we know that the Charter can exclude the application of national law in a dispute between parties, it is hard to know which Charter rights will do so. What we do know from the judgment is that Article 27 is an example of a Charter provision that does not have horizontal effect, whereas Article 21(1) of the Charter, as applied in C-555/07 Kücükdeveci is provided as an example Charter right that is capable of having such an effect [see AMS paragraph 49].

Article 21(1) of the Charter states:

Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.

Article 27 of the Charter states:

Workers or their representatives must, at the appropriate levels, be guaranteed information and consultation in good time in the cases and under the conditions provided for by Community law and national laws and practices

There are two obvious differences between the two Articles. First, Article 21(1) specifically prohibits certain conduct, whereas Article 27 guarantees information and consultation as provided for by Community law or national laws and practices. Second, the Articles are in different Chapters of the Charter. Article 21(1) is in the Equality Chapter and Article 27 is in the Solidarity Chapter. It could be argued that these differences point to the greater clarity and precision to be found in Article 21 as contrasted with Article 27. However it is hard to conclude that clarity is the sole distinguishing feature. Whilst Article 21 may be clearer in that it provides for the protection of a particular right – the right not to be discriminated against on the grounds lists in the Article – there is still uncertainty surrounding its scope. Does it extend to a protection against indirect and direct discrimination and how do we distinguish between these two concepts? Would it be breached if the discrimination occurred because of positive action – e.g. a policy making it easier for people of a particular social origin to enter University courses? How does the law determine the relative comparator to ensure that discrimination does not occur? The difference is perhaps better understood not as turning on the relative clarity of the Charter provisions, but, instead, as to whether the clarification of the scope of the right is regarded as better suited to the judiciary or better suited to the legislature or executive. There may also be a secondary factor of whether the right is one where there should be greater or lesser area of discretionary judgment granted to the national courts as opposed to the European Union. This stems perhaps from Article 27’s reference to ‘national laws and practices’.

Cruz Villalón AG, in his opinion, drew on the distinction between rights and principles to help determine which Charter provisions could have horizontal direct effect. Whilst Charter rights are meant to have the same legal effect as Treaty provisions, principles, according to Article 52(5) of the Charter, ‘may be implemented’ by legislative or executive acts of the Union institutions, or of the Member States when implementing European Union law and are ‘judicially cognisable only in the interpretation of such Acts and in the ruling on their legality’. However, although the Charter draws this distinction, and provides a few examples in the Explanations to the Charter, there is no precise account of this difference. Cruz Villalón AG starts his analysis by remarking that Article 27, as a social right, was a ‘right’ by virtue of its subject matter, but a ‘principle’ by virtue of its operation [paragraph 45]. He was influenced, first, by a similar distinction drawn in the constitutional documents of some of the Member States – Ireland, Spain, France, Austria and Poland – as well as concerns regarding the protection of social and economic rights, which could lead to the judicialisation of public policy. Second, referring to the language of the Charter, he argues that principles impose obligations on public authorities, whereas rights are designed to protect individuals in defined legal situations. Action is needed by the public authority to transform the principle into a defined legal right (paragraphs 50-51]. The wording of Article 27 demonstrates that it is designed to impose an obligation on public authorities. This is confirmed by its content, which is too vague to provide for the specification of a particular Act. Moreover, there were examples of this specification of Article 27 in EU legislation prior to the enactment of the current version of the Charter – including in Directive 2002/14. [paragraphs 54 and 55]. In addition, the Charter provision is found in the ‘Solidarity’ Chapter, classifying it as a social right, which leads to the presumption that the provision is a principle and not a right.  All three factors led Cruz Villalón AG to conclude that Article 27 was best understood as a principle and not as a right.

It is hard to know how much of this analysis of the AG was endorsed by the Grand Chamber. The Grand Chamber makes no reference at all in its judgment to the distinction between rights and principles. Moreover, the Court of Justice reaches an opposite conclusion to Cruz Villalón AG, who advised that Directive 2002/14 could be regarded as the specification of Article 27 by a public authority and that its provisions could then be relied upon in a dispute between private parties, in a manner similar to Kücükdeveci. Yet, despite the differences as to outcome, and the lack of reference to principles, both the court and the AG recognise that Charter rights appear to be more likely to apply to a dispute between private parties if they:

(i)              Are clear and precise enough to give rise to individual rights in and of themselves without the need for legislative intervention/intervention by a public authority

(ii)            Can be understood as the expression of a right that can be relied upon by an individual as opposed to an expression of an obligation to be imposed on a public authority

(iii)           Are not social or economic rights

It is not clear how far any of these criteria are necessary or sufficient to determine the of horizontal application of a Charter provision. They are probably best understood as indications or guidelines.

How should the court make this assessment?

Even if we can provide some clarity as to what may influence the classification of a Charter right as one that can or cannot have horizontal direct effect, it is not clear whether these issues are discussed in the abstract or in relation to the specific facts of the case before the court. Article 27 of the Charter guaranteed worker information and consultation. Article 3 of Directive 2002/14 provides that Member States have a choice between whether the provisions of the Directive apply to firms with more than 50 employees in one Member State, or to firms with more than 20 employees in more than one Member State, and that it is for the Member States to determine how these employee numbers are to be calculated. Consequently, nothing in Article 27 or in Directive 2002/14 provided a clear answer to the factual issue before the court. In the words of the Grand Chamber:

It is not possible to infer from the wording of Article 27 of the Charter or from the explanatory notes to that article that Article 3(1) of Directive 2002/14, as a directly applicable rule of law, lays down and addresses to the Member States a prohibition on excluding from the calculation of the staff numbers in an undertaking a specific category of employees initially included in the group of persons to be taken into account in that calculation. [paragraph 46]

This can be contrasted with the situation in Kücükdeveci

 as the principle of non‑discrimination on grounds of age at issue in that case, (author’s emphasis) laid down in Article 21(1) of the Charter, is sufficient in itself to confer on individuals an individual right which they may invoke as such. [paragraph 47]

                  This reading of the judgment of the Grand Chamber also provides an explanation for the different conclusions of the Court of Justice and Cruz Villalón AG. This, in turn, suggests that the decision of the Grand Chamber may have a wider application than at first appears. Cruz Villalón AG concluded that the Charter could have horizontal direct effect, despite its classification as a principle, because it had been given substance by the Directive. The court concluded that, given that Article 27 did not have horizontal direct effect in and of itself, it could not have horizontal direct effect when applied in combination with Directive 2002/14 [paragraph 49]. This would appear to imply that, for the Grand Chamber, a Charter provision that is not sufficiently clear and precise can never have horizontal direct effect in and of itself. Even if a Directive were enacted to implement an unclear Charter provision, the Charter, in combination with the Directive, could not have horizontal direct effect.  However, if we interpret the Grand Chamber’s comments as relating to the specific issue before the court, a different conclusion is reached. If a Directive were to add to an unclear Charter right in a manner that did provide an answer to the specific question before the court, even if the Directive did not clarify all applications of the unspecific Charter right, then it may be that the Charter as applied through the Directive can have horizontal direct effect in a manner similar to Kücükdeveci. Therefore there may be two situations in which the Grand Chamber would grant horizontal direct effect to a Charter provision:

(i)              When the Charter provision is sufficiently clear and precise

(ii)            When the Charter provision is not sufficiently clear and precise, but nevertheless the Charter in addition to a Directive related to the Charter provision provides an answer to the specific question before the court.

Is ‘clarity’ enough?

The judgment of the Grand Chamber appears to focus predominantly on whether the Charter right is sufficiently clear and precise to have horizontal direct effect. Yet, this question is relevant not just to horizontal direct effect, but to direct effect more generally. Any provision of European Union law needs to be sufficiently clear, precise and unconditional if it is to have direct effect at all. This need not mean that an assessment of whether a Charter provision can have horizontal direct effect adds nothing to our assessment of whether it can have direct effect. But it does lend further grist to the mill in support of reading the decision of the Grand Chamber as one that distinguishes between Charter provisions that require specification from further legislative acts as opposed to merely focusing on their clarity and specificity. However, there is still one assessment missing from the Grand Chamber’s assessment that is present in the opinion of Cruz Villalón AG – whether the Charter provision is one that is suitable for application between private parties. For Cruz Villalón AG this was the case for Article 27 of the Charter. Article 27 refers to worker’s rights. Therefore it is clearly suitable for horizontal application. The objective of the Article would not be achieved if private employers were not meant to be subject to its obligations, once these were fleshed out by the action of public authorities of the EU or the Member States.

This issue of ‘suitability’ for horizontal application should be a necessary, albeit not a sufficient, component of the assessment of whether a Charter provision should have horizontal direct effect. Horizontal direct effect operates to impose obligations on private individuals. It is precisely this element that creates concerns as to the horizontal application of human rights. To impose an obligation on an individual in this manner may be problematic if the individual herself has human rights that could potentially conflict with her obligation to uphold the human right of another. This is not to argue generally against horizontal direct effect of Charter provisions. Nor is it an argument against the horizontal direct effect of Charter provisions that could give rise to conflicts between different human rights. However, it is an argument for further assessment of the need for care when assessing whether a Charter provision should have horizontal direct effect. Where the imposition of obligations on individuals could give rise to human rights conflicts there may be a greater need to ensure that these potential human rights conflicts have been taken into account through the specification of particular duties on private individuals by the legislature of the EU or by the legislature or judiciary of Member States that may be more aware of the relative importance of different human rights in their particular Member State.

Conclusion

The decision of the Grand Chamber in AMS paves the way for the potential horizontal application of Charter provisions, with the possible disapplication of national laws in disputes between private parties when these disputes occur within the sphere of European Union law. It is not clear from the decision whether this will apply to the vast majority, or merely a minority of Charter provisions. I would argue that Charter provisions should be capable of having horizontal direct effect, but that this should be limited to Charter provisions that:

(i)              are suited to imposing obligations on private parties, and

(ii)            are clear and precise enough to give rise to individual rights in and of themselves without the need for legislative intervention/intervention by a public authority, or

(iii)           are sufficiently clear and precise when applied in combination with a Directive to provide a clear answer to the specific issue before the court

It remains to be seen how far the decision in AMS will be applied in the future; but the case does illustrate the potential for the Charter to play a more important role in the protection of human rights than the Human Rights Act 1998, in particular as the former may provide for the disapplication of legislation whereas the latter does not. Whether this will occur in practice remains to be seen.

Alison Young is a Fellow and Tutor in law at Hertford College, University of Oxford.

(Suggested Citation: A. Young, ‘Horizontality and the EU Charter’  U.K. Const. L. Blog (29 January 2014) (available at http://ukconstitutionallaw.org).

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Joshua Braver: Counter-Interpretation, Constitutional Design, and the Right to Family Life: How the Conservatives Learned to Stop Worrying and Love the HRA (Briefly)

Joshua BraverUK Conservatives and the right wing papers continue to denounce the Human Rights Act (HRA).  Recognizing that the HRA is in crisis, some of its supporters have proposed new education efforts and some have even supported a rebranding in the form of a new Bill of Rights essentially similar to the HRA.  Both these arguments support the position that structural change is unnecessary.  The problem is perception, not the HRA itself.  Opponents are either irrational, misinformed or both.  The irrational, motivated by xeno and europhobia, maliciously spreads outright lies.  The misled, after reading salacious stories in the Telegraph and in the Daily Mail, are enraged that the HRA enables terrorism and also prevents the deportation of illegal immigrants who have committed horrible crimes.

No doubt absurd misunderstandings about the HRA are rampant.  But I will to argue that they and the HRA’s legitimacy deficit are derivative of a deeper structural problem, specifically the HRA’s intermediate constitutional status.  The HRA is neither ordinary nor higher law.  This intermediate status was designed to empower the judiciary to protect rights, but still prevent its domination over political issues.  Parliament too would play a substantive role in the interpretation of rights, and Parliament’s last word over the law was preserved. Ironically, even though it has the formal power to ignore court decisions, so far Parliament has almost always implemented the court’s incompatibility declarations.   My argument is that both the legitimacy deficit of and judicial domination over the HRA can be traced back to its peculiar middling status.  In conflicts between legislatures and courts, constitutional supremacy is a necessary condition for the democratization of rights.  I call this democratization, “counter-interpretation”, which occurs when a legislature interprets constitutional rights independently of and sometimes in conflict with the court.  I illustrate my thesis with the conflict between the courts and Home Secretary Theresa May over the right to family life in 2011 and 2012.  In it, a brief period of de-facto constitutional supremacy led to counter-interpretation; the Conservative party that led the opposition to the HRA briefly invoked it to support their stance on reducing illegal immigration.

General Rights Disagreement, Counter-Interpretation and Constitutional Supremacy

This is a thesis about discourse.  When fighting against a court, parliaments can wield two different languages.  The first is general rights disagreement.  Both the court and Parliament value rights, but disagree over which set of rights are valid.  For example, the UK Parliament asserts a right to violate the HRA because its rights are alien to the English tradition.  By attacking the court, it stands up for traditional English civil liberties.  As David Cameron stated, before he became Prime Minister, “In many ways the Government has a choice between this country’s ancient rights of habeas corpus and the right not be detained without trial; between Magna Carta and the ECHR.”

The second language is counter-interpretation.  The parliament disagrees, not with the right, but with the judge’s interpretation of the right.  Counter-interpretation legitimates constitutional rights because all parties are wielding it.

In this battle over constitutional meaning, the odds are stacked against the legislature.  Courts are more popular, focused, and wield superior expertise. For these reasons, we should not be surprised that the UK Parliament has almost always declined to counter-interpret.  Instead, conservative opponents of court decisions condemn the HRA as “the world’s worst law” and a “charter for terrorists, perverts, malcontents and illegal immigrants.”

However, constitutional supremacy can restructure the incentives.  The intermediate status of the HRA offers both counter-interpretation and general rights disagreement.  By contrast, in the U.S., constitutional supremacy removes the option of general rights disagreement.      The Constitution proclaims itself the “Supreme Law of the Land”, and each officer must take an oath to it.  It is the only language of legitimation.  If the legislature disagrees with the court, its only way to fight back is to counter-interpret.

Hence, counter-interpretation is and has always been prominent in U.S. constitutional history.  Despite extensive and intense opposition to ratification of the Constitution, counter-interpretation began very quickly.  Those who opposed the Constitution now called upon it, claiming to understand it better than those who wrote it.  Jefferson, Madison, Jackson, Lincoln and Franklin Roosevelt all asserted the President’s right to interpret the Constitution independently of and in conflict with the courts.  Prominent activists, such as Frederick Douglass and Susan B. Anthony denounced Supreme Court doctrine as invalid because it violated the people’s understanding of its own highest law.  Without addressing counter-interpretation, one cannot understand the U.S.’ most important moments of constitutional and political change.  This tradition continues today in battles over the meaning of free speech, religious freedom, and abortion.

UK De-facto Constitutional Supremacy

In the UK, through a quirk of coalition politics, we have a natural experiment providing substantial evidence that constitutional supremacy would encourage counter-interpretation of the HRA.  We can view the changes in counter-interpretation in the UK before de-facto constitutional supremacy, during it, and after it fades.  During de-facto constitutional supremacy, conservative counter-interpretation was robust.  As the coalition weakened so too did counter-interpretation leaving the conservative party torn over how best to fight back against the judiciary.

De-facto constitutional supremacy resulted from coalition government. In the 2010 election, the Conservative Party campaigned to “scrap” the HRA, but they were unable to fulfill this pledge because the election produced a hung parliament.  Six days after the election, on May 12th, 2010, The Conservative and Liberal parties formed a coalition government.  Very early into the Coalition, Nick Clegg warned that “any government would tamper with the HRA at its peril.”  In contrast to the Conservative pledge to scrap the Human Rights Act, the Coalition agreement promised a Commission on a UK Bill of Rights that “builds on all our obligations under the European Convention on Human Rights” and also “ensures that these rights continue to be enshrined in British law.”

Coalition policy and discourse was premised on the idea that compliance with the Human Rights Act was mandatory.  Politics granted what law had not.  By law, Parliament could repeal or ignore the HRA; it had an intermediate status subordinate to the Parliament’s supremacy.  However, coalition politics forced the government to treat the HRA as supreme and binding on all parties.  When controversy arose, the Conservatives in government could no longer trample on the HRA.  At the very least, the option of repeal was off the table.  Conservatives would have to find new ways to express their outrage and alter the constitutional policy.  In the case of the Right to Family Life, that new way was counter-interpretation.

On October 14th, 2011, Home Secretary Theresa May promised to introduce new executive rules to reduce immigration at the Conservative Party Conference.  The speech is infamous for the claim that a deportation was prevented because the immigrant had a pet cat.  Little-noted is that May began to shift from the language of general rights disagreement to that of counter-interpretation.  May stated that the new immigration rules would “ensure that the misinterpretation“ of Article 8 of the ECHR – the right to a family life – no longer prevents the deportation of people who shouldn’t be here.”  The problem is not Article 8 itself, but the “British courts” who have interpreted “the right to a family life as an almost absolute right.”  However, the draftsmen intended and the wording indicates that the right is limited: “The meaning of Article 8 should no longer be perverted.”  May would promulgate new executive immigration rules that would reflect the correct interpretation of Article 8 so that when foreign nationals “should be removed, they will be removed.”

On June 19th, 2012, May laid a resolution before the House of Commons to endorse the new immigration rules:

That this House supports the Government in recognizing that the right to respect for family or private life in Article 8 of the European Convention on Human Rights is a qualified right and agrees that the conditions for migrants to enter or remain in the UK on the basis of their family or private life should be those contained in the Immigration Rules.

May explained that “Parliament had never before been given the opportunity to set out” the meaning of Article 8.  Judges have had to decide the meaning “in each and every individual case, and without the benefit of the views of Parliament.”  The new immigration rules take into account Article 8 and the relevant case law.  It is “in complete compliance with the principles of human rights.”  May emphasized that according to the Convention and the HRA, the right to family life is a limited one.  It must be balanced against the prevention of crime and the UK’s economic well-being.  The problem was that in the balances, judges had given insufficient weight to the public interest.  The Immigration rules clarified the appropriate weigh for judges to balance these competing interests.  Judges would no longer conduct a separate analysis outside the immigration rules, but rather apply the immigration rules to test whether there was an Article 8 violation.

At the end of January 2013, in Izuazu (Article 8 – new rules) [2013] UKUT 45 (IAC), the Upper Tribunal of the Immigration and Asylum Chamber refused to defer May’s counter-interpretation because “the rules are those of the Secretary of State not Parliament.”  While Parliament and its statutes are supreme, the executive and its rules are subordinate.  Unlike a statute, May’s rules had not passed through both houses of Parliament.  Even more importantly, Parliament had not given the rules the same scrutiny as they would a statute.  “Only the parliamentary process for” a statute “permits a clause by clause discussion of the measures, with opportunity for amendment and revision.”

In response to and about two weeks after the Izuazu decision, Theresa May pledged to meet the court’s criticisms by introducing a statute to ensure “that foreign nationals who commit serious crimes shall, except in extraordinary circumstances, be deported.”  In an editorial in the Daily Mail, May reaffirmed that the immigration rules had correctly interpreted Article 8:

This is not a dispute about respect for human rights, which I certainly agree is an essential part of any decent legal system.  It is about how to balance rights against each other: in particular, the individual’s right to family life, the right of the individual to be free from violent crime, and the right of society to protect itself against foreign criminals.

Furthermore, May lamented that judges’ activism damaged the “notion of human rights” and its prestige among the public: “in the popular imagination, ‘human rights’ are wrongly, but perhaps understandably becoming synonymous with legal dodges that allow criminals to escape proper punishment and to continue to prey on the public.”

The court still stuck to its guns.  Several months after May’s speech, in MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192, the UK Court of Appeal again thwarted May.  The Court differed with the “form but not the substance” of the lower court decision and the Izuazu approach.  Rather than directly clash with Theresa May, the Court of Appeal interpreted the immigration rules to conform to and confirm its pre-existing Article 8 jurisprudence.  According to the Court, May did not want to bend judges to her will, but rather she would accommodate the well-established case law. (I plan to discuss this case further in a subsequent post).  On the surface the court agreed with May, but for practical and immediate purposes the court had almost completely refused to change its approach to Article 8.

At the beginning of 2013, ties between the Liberals and Conservatives were severely strained.  Both sides felt betrayed by the other for not showing full support over key issues.  Conservative backbenchers revolted against the Liberal’s and the Government’s bill to reform the House of Lords.  In retaliation, Liberals refused to support boundary reforms that would have increased the likelihood of future Conservative electoral victories.

In the midst of this strain, on Feb. 28th, 2013, a special election was held in Easterleigh. In the previous election, the Liberal Democratic candidate had narrowly beaten his Conservative opponent.  Conservatives had targeted the constituency as a potential gain for the party, as they had just narrowly lost the seat to the Liberal Democrats in the last election.  The race risked exacerbating tensions within the coalition.  The Liberal Democrats won the seat.  It was a dramatic and painful loss for the Conservatives whose candidate came in third behind the UK Independent Party (UKIP), a radically right wing populist party.  It was UKIP’s best electoral performance to date.

Many conservative backbenchers interpreted the election as a warning that their party should not compromise their values to retain the coalition.  UKIP’s victory signaled that the Conservative party must move right to retain its core supporters.  They should take tough stances on crime, immigration and Europe. It also stirred up the beginnings of competition over the party leadership.  Anticipating that Cameron might lose the next election, MPs began to position themselves to replace him.

Less than a week after the Easterleigh election, there was a small flurry of prominent MP proposals concerning the HRA and the ECHR.  The Sunday telegraph reported that the Justice Secretary “‘cannot conceive of a situation where a Tory majority administration would not repeal Labour’s legislation.”  Despite having called for counter-interpretation a few weeks before, May now proposed including in the manifesto an option to withdraw from the European Court of Human Rights altogether.  More recently at the Conservative Party Conference in late September, multiple speakers denounced the HRA, and May promised that “the next conservative manifesto will scrap the Human Rights Act.”  As the coalition’s unity waned, the HRA was no longer treated as supreme.  As the de facto supremacy of the HRA faded, conservative politicians shifted back to the language of general rights disagreement.  Rather than counter-interpret the HRA, they began to call for an exit from it.

Yet, constitutional supremacy still lingers on and so too with it some gasps of counter-interpretation.  On October 22nd, May made good on her promise to introduce a statute codifying her severe interpretation of Article 8 and demanded that judges’ defer to it.  The codification was but one of many measures in the bill designed to reduce illegal immigration, so it received limited attention by May and Parliament in the second reading.  Nonetheless, May again counter-interpreted.  She condemned judges who had ignored Parliament’s opinion, as embodied in the previous immigration rules, on the balance between the right to family life and the public interest.  “This Bill will require the courts to put the public interest at the heart of their decisions.”  The Bill passed overwhelmingly with support from all parties.

Notably, unlike her previous 2011 immigration rules speech in the House of Commons and her February editorial in the Daily Mail, May did not explicitly affirm the validity of Article 8, human rights or the UK judiciary.  This may simply reflect the fact that this time May have limited time to address HRA issues.  Alternatively, the waning of constitutional supremacy may have freed May from paying tribute to what she truly opposed.

The Conservative Party approach to the HRA is now schizophrenically split between two modes.  When trying to govern and create policy that will address the problem of blocked deportation, it counter-interprets.  Since Conservatives lack the votes to repeal the HRA, it can only satisfy its constituents’ demands for solutions to the blocked deportation problem by trying to work within the HRA.  On the other hand, when the party is in campaign mode looking ahead to the election, its language returns to general rights disagreement.  It anticipates the regaining of a majority in government that will have the power to repeal the HRA.

Conclusion

The legitimacy problem of the HRA is not a result of its content, but its structure.  Rights should be supreme over both judges and Parliament.  The HRA gave Parliament the means to assert the final word on the validity of law, but it has failed to structure incentives so this power is wielded on behalf of the rights in the HRA.  Constitutional supremacy would direct the UK Parliament and Conservatives to counter-interpret the HRA rather than trample upon it.  Counter-interpretation is both a good in its own right, and a means to create public ownership over constitutional rights.

What would this supremacy look like?  I can only give a brief sketch here, but I think there are three important features.  First, the text should include a constitutional supremacy clause i.e., but also reserve to Parliament the final word over the meaning of constitutional rights.  Second, to overturn a court ruling Parliament must prove that its actions express a counter-interpretation rather than a derogation of the right.  A variety of mechanisms are possible, but it may include requiring Parliament to have a full and open debate if it wishes to refuse to comply with a court ruling.  That debate should be informed by the work of the Joint Committee of Human Rights, but that Committee would be redesigned to express its own opinion on the HRA rather than echoing judicial doctrine.  Lastly, overturning the new Bill of Rights should require a substantial supermajority in Parliament.  This would discourage political parties from running on overturning the document and redirect their energies towards ensuring that its interpretation fits with their own political commitments.

There are no simple fixes or easy answers in constitutional design, especially in its relationship to constitutional discourse and legitimacy.  No one variable ensures success.  But Theresa’s May’s brief flirtation with counter-interpretation is testament to the great power of constitutional supremacy.  The UK ignores the lesson at its peril.

Joshua Braver holds a J.D. from Yale Law School and is a Ph.D. student in Yale Political Science.

Suggested citation: J. Braver, ‘Counter-Interpretation, Constitutional Design, and the Right to Family Life:  How the Conservatives Learned to Stop Worrying and Love the HRA (Briefly)’ UK Const. L. Blog (6 January 2014) (available at http://ukconstitutionallaw.org/blog/).

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Filed under Human rights, Judicial review, UK Parliament