Category Archives: Judicial review

Natasha Simonsen:Government cannot use a ‘statutory back door’ to implement major changes to legal aid services, Divisional Court says

MatricIn a judgment released yesterday a Divisional Court unanimously struck down the government’s attempt to introduce a residence test for eligibility for legal aid, finding it incompatible with the objective of the Legal Aid, Sentencing and Punishment of Offenders Act (‘LASPO’). The ratio of the judgment was that the residence test had been introduced via an amendment to the schedule in the Act (that is, via subsidiary legislation) that was not compatible with the objective of the primary legislation. While that sounds like a rather technical decision, it has important ramifications for democratic accountability. It means, in essence, that if the government wants to make such a drastic change as this, it will need to do so via an amendment to the Act itself, with the full Parliamentary debate that that would entail. The case is also interesting because of the two rights-based grounds that were argued before it. The first, that the introduction of a residence requirement violated the fundamental right of access to a court, the court declined to engage with. The second was that residence was not a lawful ground for discriminating in the provision of legal aid between equally meritorious claims. The court accepted this claim, but apparently in obiter dicta, since only the statutory construction point was strictly required to reach the outcome.

The ratio of the judgment

Lord Justice Moses (with whom Mr Justice Collins and Mr Justice Jay agreed) held that the introduction of a residence requirement as an amendment to Schedule 1 of LASPO was ultra vires because it was not compatible with the Act. The court identified the objective of the primary legislation as being to provide legal aid to those with the greatest need. The amendment, in contrast, had ‘nothing to do with need or an order of priority of need. It is, entirely, focused on reducing the cost of legal aid’ [43]. This violated the principle that subsidiary legislation must ‘serve and promote the object of the statute’ [40].

This is important because secondary legislation does not face the same degree of scrutiny in the Parliament as does primary legislation. While primary legislation needs to be approved by a majority of votes in both Houses of Parliament, and receive Royal Assent by the Queen, secondary legislation can be either negative or affirmative. If the former, the instrument becomes law without a debate or vote but can be annulled by a contrary resolution in the Parliament. If the latter, both Houses of Parliament must expressly approve them. The respondent government had argued that, since this amendment took the form of an affirmative instrument, it had received the imprimatur of the Parliament. Notwithstanding that, the Divisional Court found that was not enough because, ‘on a true construction of the statutory powers in their context, no power to introduce such a measure can be found’ [48]. The court’s ruling reaffirms the constitutional principle that the government cannot use the means of subordinate legislation as a ‘statutory back door’ [46] to ‘widen the purposes’ of legislation that has been passed by the Parliament [40]. Changes this big need to be brought through the front door.

The residence requirement, if upheld, would have limited legal aid to those who could demonstrate ‘a meaningful connection with the UK’, unless they could demonstrate eligibility elsewhere in the legislation. Yesterday’s judgment does not foreclose the possibility of that restriction being introduced in the future. But the Court’s intervention puts the onus on the Parliament to consider and evaluate the purpose of legal aid in the UK and the objectives that LASPO aims to serve. If the legal aid is to be subjected to the pursuit of goals other than giving help to those in greatest need, then those objectives need Parliamentary approval in the form of primary legislation.

Thus, in some ways the court’s decision handballs the question back to the legislature. But the terms of any future legislative debate will no doubt be framed by the discussion of the issues in the judgment. The court discussed some powerful examples, such as P, a severely disabled adult who was starved, beaten and forced to live in a dog kennel by his mother and brother. Yet, for various reasons, it would have been impossible to prove that he had been lawfully in the UK for a continuous period of 12 months at some point in the past, and thus he would not have satisfied the proposed residence requirements. It is hard to see how depriving a person in P’s circumstances of legal aid could meet the Ministry of Justice’s specified objective of ‘targeting legal aid at the most serious cases which have sufficient priority to justify the use of public funds.’

It remains to be seen whether the government will appeal the court’s decision, or introduce amended legislation to the Parliament. Either way, the judgment has forced a fuller engagement with the question of the purpose that the provision of legal aid serves in England and Wales. This is democratic dialogue—and a culture of justification—in action.

Rights-based argument one: access to courts

The questions that the court did not decide may be almost as important as the questions that it did decide. The Public Law Project had also argued that the power contended for by the Lord Chancellor would violate the fundamental right of access to a court. But Moses LJ declined to engage with this argument, stressing that his reasoning was ‘confined to the construction of the powers that [the statute] confers’ [50]. In another passage, however, His Honour hinted at the problems that might arise in future, saying that ‘it might have been possible to draft primary legislation (I say nothing about its legality) which has the broader ambition of cutting the cost of legal aid by permitting the Lord Chancellor to adopt criteria irrespective of need…’ [45]. This foreshadows a debate which is highly likely to arise in any future legal proceedings.

The Divisional Court might be engaging in a spot of careful judicial diplomacy here. At a time when tensions are running high over the UK’s future in the European Convention system, it may not come as a surprise that the judgment turned on a narrow question of statutory construction rather than the implications of the measure for the Article 6 ECHR right of access to a court. Moreover, throughout the judgment Moses LJ referred obliquely to ‘vindicating rights’ [75] or ‘fundamental rights’ [47], [50], preferring to avoid specific reference to Convention rights or Convention case law. In this language choice, was the Court cleverly hinting here that the right of access to a court is no less entrenched in English and Welsh common law than in ECHR jurisprudence?

Rights-based argument two: discrimination

Interestingly, having reached a decision that turned on a question of statutory interpretation, and then having declined to deal with the argument based on access to justice, the Divisional Court went on to consider a third argument raised by the applicant. The judgment went on to hold that residence would not be a lawful ground for discriminating between the provision of legal aid in equally meritorious cases. This part of the judgment will no doubt provide fertile ground for equality lawyers, and has been discussed at length here and here. Rather confusingly, given that it does not appear to be part of the ratio, Moses LJ described the discrimination argument as the applicant’s ‘essential complaint’ [51]. The discussion of residence as a basis for distinguishing between worthy claimants builds on (without expressly citing) the House of Lords decision in the Belmarsh case, striking down detention of foreign nationals on the basis that the measure was not rationally tailored to the objective.

What appellate courts will make of this judgment, and how the government will respond, remains to be seen.

 

 Natasha Simonsen is a Stipendiary Lecturer in Law at St Anne’s College, Oxford .

(Suggested citation: N. Simonsen, ‘Government cannot use a ‘statutory back door’ to implement major changes to legal aid services, Divisional Court says’ U.K. Const. L. Blog (17th July 2014) (available at http://ukconstitutionallaw.org/).

 

 

2 Comments

Filed under Judicial review

Emily MacKenzie: The Lawfulness of Detention by British Forces in Afghanistan – Serdar Mohammed v Ministry of Defence

Emily MacKenzie-Brick Court ChambersOn 2nd May, the High Court held that the UK Government must pay Serdar Mohammed (SM) compensation because British troops detained him unlawfully in Afghanistan. The case raised a myriad of international law issues, which are dealt with elegantly in an extensive judgment by Mr Justice Leggatt. This post will attempt to summarise some of the key issues involved.

SM is an Afghan citizen, who was captured (as a suspected Taliban commander) by British forces, operating as part of the UN’s International Security Assistance Force (ISAF), during a 2010 military operation in northern Helmand. He was imprisoned on UK military bases for 110 days, after which he was transferred to Afghan detention where he remains to this day.

He alleged that his detention by British forces was unlawful under (a) Afghan law (which applied to any tortious action committed by UK forces under Section 11 of the Private International Law (Miscellaneous Provisions) Act 1995), and (b) the right to liberty and security under Article 5 of the European Convention on Human Rights (the Convention).

Leaving Afghan law aside for now, the Judge found that SM’s detention breached Article 5 once it passed 96 hours in duration.

Leggatt J found that the ISAF detention policy, which permitted 96 hours of detention before a detainee must be handed over to the Afghan authorities, was compatible with Article 5. However, the UK had adopted a separate national policy in 2009, which permitted detention beyond 96 hours for the purpose of “interrogating a detainee who could provide significant new intelligence” (para 4). That was the basis on which SM was held for 25 days after the initial 96 hour period. Leggatt J held that this was not a purpose permitted by Article 5. SM was then held for a further 81 days in what Leggatt J termed “logistical” detention because the Afghan authorities were struggling with prison overcrowding. Leggatt J held that this also breached Article 5 because it was not in accordance with any ISAF/UK policy for detention and so was “arbitrary” (para 356).

The substantive analysis of Article 5 aside, the most interesting issues dealt with in this judgment arose as defences the MOD raised against the Article 5 claim. This post will discuss the following issues in brief:

      1. the territorial scope of the Convention;
      2. extraterritorial derogation from the Convention;
      3. legal responsibility for the actions of ISAF forces;
      4. the relationship between UN Security Council Resolutions and the Convention;
      5. whether there was a basis for detention in international humanitarian law;
      6. the “act of state” defence.

The territorial scope of the Convention

Leggatt J found that the actions of the British troops in this case were within the territorial scope of the Convention. Many considered this to be inevitable following Al Skeini v United Kingdom and Smith v Ministry of Defence, although Leggatt J professed his own disquiet about the state of the law, stating:

I find it far from obvious why a citizen of Afghanistan, a sovereign state which has not adopted the Convention, should have rights under the Convention in relation to events taking place in Afghan territory. (Para 116)

As Marko Milanovic writes in his excellent post for EJIL: Talk!, Leggatt J’s decision puts paid (for now, and possibly for good) to the government’s strategy of attempting to distinguish the situation in Iraq (where the facts of Al Skeini and Smith took place) from the situation in Afghanistan: a strategy deployed by the MOD in this case on the grounds that the UK “did not have such complete control over the detention facilities in Afghanistan” (para 144). Leggatt J held that this distinction was “unsustainable” because

the decision of the European Court in the Al-Skeini case unequivocally decides that jurisdiction under Article 1 over an individual detained in a prison controlled by a state on foreign soil does not depend on whether the state has sovereignty over the prison, such that officials of the state on whose territory the prison is situated have no legal right to enter it. Indeed, the state’s jurisdiction does not even derive from the control exercised over the prison as such at all. In the Court’s words (para 136): “What is decisive in such cases is the exercise of physical power and control over the person in question. (Para 147)

Extraterritorial derogation

Perhaps more notably, Leggatt J went on to say that Article 15 of the Convention could be invoked in an extraterritorial context. Article 15 gives States the ability to derogate “[i]n time of war or other public emergency threatening the life of the nation” from some of its obligations under the Convention “to the extent strictly required by the exigencies of the situation”.

Lord Bingham had previously expressed doubt in Al-Jedda v Secretary of State for Defence that the Article 15 conditions could ever be met “when a state had chosen to conduct an overseas peacekeeping operation, however dangerous the conditions, from which it could withdraw”, but, as Leggatt J noted, Lord Bingham was speaking at a very different time. Now it is clear that the Convention has extensive extraterritorial reach, Leggatt J considered that Article 15 must be interpreted “in a way which is consonant with that position” to permit derogation to the extent that it is strictly required by the exigencies of the situation.

This, Leggatt J concluded, “can readily be achieved without any undue violence to the language of Article 15 by interpreting the phrase ‘war or other public emergency threatening the life of the nation’ as including, in the context of an international peacekeeping operation, a war or other emergency threatening the life of the nation on whose territory the relevant acts take place.” (Para 156)

The concern expressed by some is that states should not be encouraged to derogate their human rights responsibility when they have voluntarily entered conflicts which do not directly impact the “life of the [home] nation”. There are, I think, at least two counters to this.

The first is that Leggatt J’s suggestion makes practical sense. The use of the power of derogation may be the only way that human rights standards can become a workable set of norms in the context of armed conflict. The second counter is that when states derogate they formally acknowledge what human rights protections they feel able to uphold in a given situation. This pushes into the open what might otherwise be a clandestine deployment of emergency powers (see this post by Fionnuala Ní Aoláin on the Just Security Blog). It allows public debate and (potentially) judicial review of the restriction on the one hand, and the government to demand some realism from the courts on the other. It may operate to ensure that human rights are respected to the greatest extent possible; now that we know (post Al-Skeini) that the Convention obligations can be “divided and tailored”. This at least has the potential to ensure that the degree of respect for human rights in armed conflict increases in practice, if not in theory. Clearly, however, the nuances of this have yet to be worked out.

Who is responsible: the UK or the UN?

The MOD argued that the UN, rather than the UK, was responsible for the actions of the British troops because they operated under a UN mandate as part of ISAF: an argument rooted in the controversial Behrami; Saramaticase. As expressed by Lord Bingham in Al-Jedda, the ultimate test is one of “effective control”.

Leggatt J concluded that the UN Security Council did have effective control over ISAF “in the sense required to enable conduct of ISAF to be attributed to the UN” (Para 178). However, he found that the detention of SM was attributable to the UK and not the UN because it was not authorised under an ISAF detention authority, but under the UK’s own national detention policy.

The relationship between human rights law and UNSC Resolutions

Bound by Al-Jedda, Leggatt J held that the obligations imposed by the authorising UNSCRs were capable of displacing obligations imposed by Article 5 of the Convention. This occurs by virtue of Article 103 of the UN Charter, which gives Charter obligations primacy over obligations “under any other international agreement.”

Crucially, however, Leggatt J found that the UNSCRs (i) did not authorise detention for longer than necessary to pass the detainee into Afghan hands, and (ii) did not authorise detention which violated international human rights law (para 226). Here, he applied dicta of the Strasbourg Court in Al-Jedda, to the effect that:

In the absence of clear provision to the contrary, the presumption must be that the Security Council intended States . . . to contribute towards the maintenance of security . . . while complying with their obligations under international human rights law. (Para 105)

The upshot was that there was no question of the UNSCRs displacing the UK’s obligations under Article 5 as the UK was not operating within the mandate of the UNSCRs because (i) they gave no authority for detention beyond 96 hours, and (ii) the detention policy violated international human rights law.

The role of international humanitarian law (IHL)

Leggatt J reached two important conclusions on IHL. First, he found that IHL provided no legal basis for the detention of SM. Second, he found that IHL did not displace Article 5 as lex specialis.

Rejecting the arguments of some academics, Leggatt J refused to accept that Common Article 3 of the Geneva Conventions or Additional Protocol II provide a legal power to detain, but rather found that these provisions “guarantee a minimum level of humanitarian treatment for people who are in fact detained during a non-international armed conflict” (para 251).

On the question of IHL as lex specialis, Leggatt J commented (obiter, since the question did not need to be decided given his conclusion that there was no basis for the detention in IHL) that:

At least arguably . . . the only way in which the European Court or a national court required to apply Convention rights can hold that IHL prevails over Article 5 is by applying the provisions for derogation contained in the Convention itself, and not by invoking the principle of lex specialis(Para 284)

The “act of state” defence

In relation to the claim under Afghan law, Leggatt J concluded that this was indeed barred by the defence that the detention of SM was an “act of state”, finding that the doctrine operated analogously to the conflict of laws rule. He explained that UK detention policy and practice in Afghanistan:

 . . . can be reviewed by the English courts in accordance with established principles of public law. But if and insofar as acts done in Afghanistan by agents of the UK state in carrying out its policy infringe Afghan domestic law, that in my opinion is a matter for which redress must be sought in the courts of Afghanistan. It is not the business of the English courts to enforce against the UK state rights of foreign nationals arising under Afghan law for acts done on the authority of the UK government abroad, where to do so would undercut the policy of the executive arm of the UK state in conducting foreign military operations.  (Para 396)

Because Leggatt J saw the act of state doctrine as a rule of comity, rather than a rule of non-justiciability, the logic behind the doctrine only applies where the lawfulness of an act falls to be determined in accordance with a foreign source of law. Therefore, it did not apply in relation to the claim under the Human Rights Act, which was a claim in English law.

Conclusion

In holding that SM had an “enforceable right” to compensation, Leggatt J noted that this:

. . . will not come as a surprise to the MOD which formed the view at an early stage that there was no legal basis on which UK armed forces could detain individuals in Afghanistan for longer than the maximum period of 96 hours authorised by ISAF. (Para 6 (xi))

The fact that the result was predictable will provide little comfort to those who point out that commanders are being placed in the unenviable position of having to choose whether to release a suspected insurgent back into the battlefield or to accept that he will be held illegally and entitled to compensation for that. In light of Leggatt J’s judgment, there are at least two routes, neither free from difficulty, that could be taken to avoid this in any future armed conflict. First, the government could seek to have greater powers of detention conferred under the authorising UNSCRs. Second, it could attempt to derogate from Article 5. The fall-out from such an attempt would no doubt be great. For now we will have to wait and see whether the government appeals – as it is expected to do – and, if it does, how the higher courts tackle these issues.

 

Emily MacKenzie is a barrister at Brick Court Chambers and is currently working as an International Law Fellow at the American Society of International Law

(Suggested citation: E. MacKenzie, ‘The Lawfulness of Detention by British Forces in Afghanistan – Serdar Mohammed v Ministry of Defence’ U.K. Const. L. Blog (2nd June 2014) (available at: http://ukconstitutionallaw.org/).

 

2 Comments

Filed under Human rights, Judicial review

Merris Amos: Scotland, Independence, and Human Rights

Merris Amos.jpgIn its weighty tome, Scotland’s Future, the Scottish Government promises that at its heart, an independent Scotland will have “the respect, protection and promotion of equality and human rights.” Furthermore, this will not be just an empty gesture but will be “enshrined in a written constitution to bind the institutions of the state and protect individuals and communities from abuses of power.” The promise is also made that as an independent state, Scotland will live up to its international obligations on equality and human rights. Furthermore, protections already enjoyed will continue in a written constitution. These will include the rights contained in the European Convention on Human Rights (ECHR) but other rights will also be considered for inclusion. Specifically mentioned are the rights contained in the UN Convention on the Rights of the Child and principles designed to “deliver greater equality and social justice.” Any new rights or future changes will be developed in “full consultation with the people of Scotland”. It is also promised that Scotland will continue to have its own human rights body.

If the intention is to encourage a “yes” vote from those basing their vote for or against Scotland’s independence on human rights protection alone, this is a very good start. Leaders of the major political parties in the rest of the UK find it difficult to mention the words “human rights” let alone make promises to improve the legal protection of human rights or explore the possibility of adding new rights to those already protected by the Human Rights Act (HRA). Officially, the most recent pronouncement was from the Commission on a Bill of Rights which reported in 2013. Unable to agree on much, a majority of the Commission concluded that there was a strong argument in favour of a UK Bill of Rights which would build on all of the UK’s obligations under the ECHR and provide no less protection than was contained in the HRA. However, a different majority concluded that socio-economic rights were not something that should be included and that the present declaration of incompatibility contained in section 4 of the HRA should be retained as “there was no desire for conferring on courts a power to strike down inconsistent Acts of Parliament.” There has been very little progress on human rights law reform since.

By contrast, whilst the details are limited, the Scottish Government’s promises about human rights would address at least three of the problems with the current state of legal protection of human rights in the UK which the Commission on a Bill of Rights failed to do. First, as the Scottish Government itself recognised, whilst Scotland’s current equality and human rights framework is strong, that framework’s future cannot be guaranteed under current constitutional arrangements. The same goes for the rest of the UK. Once campaigning gets under way for the 2015 UK general election, it is likely that the repeal of the HRA will once again be a feature of the Conservative Party’s campaign as it was for the 2010 general election. Including human rights protection in a written constitution offers much more effective protection from the political winds of change than that offered by a mere Act of Parliament. Although it is likely that politicians would continue to criticise politically unpalatable judgments, such as those concerning prisoner voting, such criticism would be unlikely to be accompanied by promises to repeal or amend the constitution, particularly if the new constitution occupied a special place in the hearts and minds of the Scottish people. The experience of other countries demonstrates that including human rights protection as a key part of a written constitution also improves knowledge of and respect for human rights law, particularly if changes to present arrangements are developed in full consultation with the people of Scotland.

Second, whilst the details are not clear, it is likely that a written constitution containing human rights protection would mean that the legislation of the new independent Scottish Parliament would be vulnerable to legal challenge in the courts were it to be incompatible with human rights law. Whilst under the Scotland Act 1998 this is the situation at present in relation to the devolved legislation of the Scottish Parliament, it is not the situation in respect of the laws of the Westminster Parliament. Under section 4 of the HRA all a court can do is issue a declaration of incompatibility and wait for government, and Parliament, to change the law with all the delay and uncertainty that this entails. And finally, given the traditionally strong commitment to social justice in Scotland and willingness to include in the written constitution rights additional to those in the ECHR such as children’s rights and principles designed to “deliver greater equality and social justice”, it is likely that by contrast to the rest of the UK, human rights protection in an independent Scotland would extend to justiciable economic, social and possibly cultural rights. As appreciated during the lengthy process towards a Bill of Rights for Northern Ireland, often such rights have a more concrete meaning for people than civil and political rights and can help to muster support for human rights law generally whilst providing much needed protection for vulnerable individuals in an era of growing inequality.

Involving the people of Scotland in the future of human rights law, entrenching the outcome in a written constitution to which the legislature was subject, extending protection to economic, social, cultural and other human rights and support for a strong independent human rights commission would undoubtedly place an independent Scotland in the leading position on the protection of human rights when compared to the remaining countries of the United Kingdom. Were the HRA to be repealed following the next general election, the comparison would be even starker. But before planning a move to Scotland, it is important to be realistic about what will actually be achieved in relation to human rights protection were Scotland to achieve independence.

With a limited portfolio, it is fairly simple for the present Scottish government to be positive about human rights protection. Issues which have caused consternation for politicians at Westminster, such as the detention, control and deportation of terrorist suspects, have not arisen in the Scottish legal or political system. An independent Scotland would have responsibility for all matters including immigration and national security and much more difficult human rights questions would arise. Whilst it may be resisted, there would be a strong temptation to water down promised human rights protection in the face of public perceptions that human rights law is a “villain’s charter” an “obstacle to protecting the lives of citizens” and “practically an invitation for terrorists and would-be terrorists to come to Scotland”. Such notions have been prevalent in the UK print media over the last 14 years, including Scotland. Much initial work would have to be done to essentially rebrand the idea of human rights in the minds of the public, ensure sufficient education and promotion and encourage respect for the human rights parts of the written constitution. As the experience of other states demonstrates, the budget for an “open, participative and inclusive constitutional convention” would be considerable.

A related issue is what relationship Scottish courts in an independent Scotland would have with the European Court of Human Rights (ECtHR) when adjudicating on human rights claims. It is assumed that Scotland would be a party to the ECHR and thereby accept the right of individual petition to the ECtHR. Were the new constitution to be silent on the matter, it is also likely that Scottish judges would make full use of the jurisprudence of the ECtHR. Whilst there is considerable political mileage in the idea of a “Scottish” approach to human rights interpretation and application, which would garner respect and a margin of appreciation for Scotland before the ECtHR, again it is necessary to be realistic. It is only in a small minority of claims that there is actually room for a national approach. A recent example is the UK broadcasting ban on political advertising which was upheld by the ECtHR in Animal Defenders International v United Kingdom 2013. Other attempts to seek respect for a UK approach to human rights from the ECtHR, the blanket ban on prisoner voting for example, have not been successful.

In relation to the range of rights to be protected, it is important to appreciate that there exists a strong narrative force in the UK, and other national jurisdictions, against making economic and social rights justiciable in the same way as civil and political rights. As noted above, this was the conclusion of the Commission on a Bill of Rights and despite the promise of the Scottish government, the result of further consultation with powerful interests groups may mean that this promise is impossible to deliver. As it was for the HRA, a first step may be simply to offer protection to the rights contained in the ECHR and Protocol No.1, as noted in Rights Brought Home, the White Paper accompanying the Human Rights Bill, “ones with which the people of this country were plainly comfortable”. And finally, it is not clear from Scotland’s Future how the written constitution would limit the power of the Scottish Parliament to legislate. It is possible that human rights protection may afford Scottish judges something more than a declaration of incompatibility but less than a strike down power raising similar problems of delay and effectiveness which have bedevilled section 4 of the HRA.

Whatever the outcome of the referendum, by making the protection and promotion of equality and human rights as a part of a written constitution one of the issues for consideration, the Scottish Government has set an excellent example. Should the vote be for independence, those with the power to embrace and reform human rights law in the rest of the UK should take careful note.

Merris Amos is a Senior Lecturer at the School of Law, Queen Mary, University of London.

(Suggested citation: M. Amos, ‘Scotland, Independence, and Human Rights’ U.K. Const. L. Blog (13th May 2014)  (available at  http://ukconstitutionallaw.org/).

3 Comments

Filed under Constitutional reform, Devolution, Human rights, Judicial review, Scotland, UK Parliament

Andrew Le Sueur: Imagining judges in a written UK Constitution

Andrew Le SueurThe tide of interest (among those who care about these things) in the idea of a written, codified constitution for the United Kingdom rises and falls. At the moment the tide is quite high, but certainly not high enough to flow into the estuaries of government policy making.

In 2010, Richard Gordon QC —a public law scholar-practitioner at Brick Court Chambers, London —wrote a book length blue print for a codified constitution (though expressing himself tentatively in terms of aiming to stimulate a debate). In Repairing British Politics, he rejects parliamentary supremacy as a defining principle and envisages judges having broad and deep powers to enforce the constitution. As my Essex colleague Anthony King put it in a review of the book: “By implication — and notwithstanding a passing reference to ‘the available resources of the State’— unelected judges would even have the power to order other authorities to provide citizens with the aforementioned food, water, clothing, housing and free health and social care services”.

Meanwhile, across the road at the LSE, Conor Gearty is leading a “trailblazing project that invites members of the public to participate in, offer advice on and eventually to draft a new UK constitution through crowdsourcing”. On Thursday 26 June 2014, the project will be hosting a “Constitutional Carnival”when “All those involved in the project, and many others joining for the first time, will be invited to come together to have their say on what should be included in a UK constitution”. One session will be on “Where should judges fit in a written constitution?”. It will be interesting to see what emerges.

The latest contribution to the debate comes today from the House of Commons Political and Constitutional Reform Committee, which publishes its report on Constitutional role of the judiciary if there were a codified constitution (14th report of Session 2013-14, HC 802). Chaired by veteran Labour MP Graham Allen, this cross-party select committee has been toiling away since it was set up in June 2010 “to consider political and constitutional reform, scrutinising the work of the Deputy Prime Minister in this area”. Two major planks of Nick Clegg’s agenda have fallen off the lorry since then: House of Lords reform and an alternative vote electoral system for the House of Commons. With time on its hands to mull over the bigger picture, the PCRC launched a wide ranging inquiry in September 2010 on “Mapping the path to codifying — or not codifying — the UK’s Constitution”, supported by researchers at the Centre for Political and Constitutional Studies at King’s College London. Today’s report on the role of the judiciary is one aspect of that inquiry.

The PCRC’s report starts by acknowledging that the British judiciary already have a role in relation to constitutional matters, quoting examples I gave in my written evidence:

determining legal disagreements about the respective powers of different institutions within the constitution, for example between the UK Parliament and the UK Government, or between the central and local government;

dealing with legal questions about the division of powers between the UK and the European Union, under the guidance of preliminary rulings by the European Court of Justice;

adjudicating on legal questions about the exercise of powers by executive and legislative institutions in Scotland, Wales and Northern Ireland in accordance with the devolution settlements created by the UK Parliament;

protecting fundamental rights of individuals, including those in the Human Rights Act 1998, taking into account the case law of the European Court of Human Rights. [...]

judicial review of executive action and delegated legislation, ensuring that public bodies remain within the powers conferred on them by Acts of Parliament and operate in accordance with judge-made legal principles of (for example) fairness and rationality.

The report goes on to “welcome the fact that the Constitutional Reform Act 2005 enshrined judicial independence in law”.

From there, however, the committee feels unable to say much more about what would change, in relation to the judiciary, if there were to be a written constitution:

The role of the judiciary would undoubtedly change should the UK adopt a codified constitution, but the precise nature of that change will be difficult to assess until there is an agreed definition of the current constitutional role of the judiciary. In our terms of reference we set out to explore the current constitutional role of the judiciary but this needs further work.

That’s quite right. There are a number of different ways in which the British constitution could be “written”and each model —including a non-legal constitutional code, a consolidation Act bringing together current statute law on the constitution into a single enactment, and a full blown constitution —would have different implications for the role of judges.

Having rehearsed some well trodden pros and cons of parliamentary supremacy (and whether it should or indeed could be retained in a written constitution), the PCRC expresses interest in the idea (which I share) of a “declaration of constitutionality” modelled on similar lines to section 4 of the Human Rights Act 1998, which would give courts power to declare that an Act of Parliament is inconsistent with a norm of the constitution without striking down the offending provision. It would then be left to government and Parliament to decide how to respond.

In a statement that will I’m sure provide inspiration to setters of undergraduate essay questions in years to come, the committee states “Before the UK could move towards a codified constitution there would need to be a precise definition of the ‘rule of law”’. I am not sure that is right: arguably, the committee gets this back to front. A better way of understanding the umbrella concept of the rule of law is to say that it includes what is written down in a constitution.

Sharing a view previously expressed by the House of Lords Constitution Committee, the PCRC shows little appetite courts having power to undertake  pre-enactment review of legislation. Nor is there much support for setting up a specialist constitutional court: based on the evidence received (including mine), the report concludes that “the Supreme Court could adjudicate on constitutional matters”.

All in all, it is difficult to resist the view that the PCRC’s report is a damp squib on the big issues. It offers little new on the key question of whether parliamentary supremacy could or should be retained under a new constitutional document. To be fair, it is unrealistic to expect a cross-party select committee, midway through a larger inquiry, to say much more on this contentious issue. In the press release accompanying today’s report, the committee’s chair Graham Allan is quoted as saying “The Committee expects to publish the results of its wider inquiry into codifying, or not codifying, the UK’s constitution in the summer.” Let’s see.

In my written evidence to the committee I argued for political realism in the debate about the role of the judiciary. I said that, thinking about the topic of judges in the constitution generally, it is possible to envisage a range of possible roles.

At the maximalist end of the spectrum would be a design that (for example) empowers the judges to adjudicate on the constitutionality of Acts of the UK Parliament with a remedial power to quash Acts that are incompatible with the UK Constitution; the UK Constitution might also include legally enforceable socio-economic rights (to health, housing, education and so on); there might also be ‘abstract’ judicial review of bills before they receive Royal Assent. A design of this sort would involve a shift in the balance of power to decide matters of national interest away from the UK Parliament and Government towards the courts.

A minimalist design of the judicial role in the UK Constitution would not give the courts power to quash Acts of Parliament (so preserving the existing principle of parliamentary supremacy), would avoid creating justiciable socio-economic rights (confining rights to the civil and political ones familiar from the European Convention on Human Rights currently incorporated into national law by the Human Rights Act 1998), and would not have a system for abstract judicial review of bills.

Where on the maximalist-minimalist spectrum a UK Constitution should sit has to depend on (a) efficacy and (b) political acceptability. Efficacy is concerned with what is needed, from a ‘technical’ legal perspective, for the UK Constitution to make a real improvement compared to current constitutional arrangements. Political acceptability is about being realistic as to what political elites and the general public would find attractive or tolerable.

In the current political climate it is difficult to imagine that mainstream political opinion would accept an enlargement of the role of judges in adjudicating on legal questions that relate to controversial matters of public policy. The existing powers of courts under the Human Rights Act 1998 and in judicial review claims are regularly called into question by members of the Government and have few champions within Parliament. There is little public understanding of the role of courts in these areas and the constitutional function of the judges is routinely disparaged and misrepresented in the press. This political background against which the continuing debates about a UK Constitution take place is unlikely to change in the foreseeable future. Politically realistic constitutional reformers should therefore favour a minimalist role for judges in a codified constitution and provide reassurance to sceptics and opponents of judicial power that adoption of a UK Constitution need not involve the judges in novel legal tasks.

I stick to that view. At a time when the government, including the Lord Chancellor, find judicial review of administrative action unpalatable, it is not practical politics to argue for greater powers for the UK courts to strike down “unconstitutional”Acts of Parliament. Anti-judicial review sentiments were not invented by the present coalition government. Under previous administrations, ministers did not see the point of it. In 2003, David Blunkett MP, when a minister in Tony Blair’s Labour government, captured what I sense to be the dominant view of all recent governments: “Frankly, I’m personally fed up with having to deal with a situation where Parliament debates issues and the judges then overturn them”.

Andrew Le Sueur is Professor of Constitutional Justice at the University of Essex and president of the UK Constitutional Law Association.

(Suggested citation: A. Le Sueur, ‘Imagining judges in a written UK Constitution’ U.K. Const. L. Blog (14th May 2014) (available at: http://ukconstitutionallaw.org/).

3 Comments

Filed under Constitutional reform, Human rights, Judicial review, Judiciary

Event tomorrow: ALBA/UKCLA Seminar on Right to an Oral Hearing

UKCLA logoA reminder to UKCLA members and blog readers … Tomorrow, 14 May 2014, the UKCLA will hold a joint seminar with ALBA (the Constitutional and Administrative Law Bar Association). The topic addresses questions of procedural fairness  in relation to the right to an oral hearing.  The speakers are  Hugh Southey QC and Professor David Feldman, with Mr Justice Silber in the chair. The speakers will consider recent case law in which the courts have considered the circumstances in which fairness requires (and does not require) an oral hearing. The seminar will be held from 17.45-19.15, in Gray’s Inn, in the Large Pension Room. 1½ CPD  points will be applied for. The seminar is free, but please register in advance through the ALBA website  www.adminlaw.org.uk.

Leave a comment

Filed under Events, Human rights, Judicial review

Grégoire Webber: On the ‘lawful’ premise and prostitution

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

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

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

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

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

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

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

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

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

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

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

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

Adultery is a risky – but legal – activity.

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

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

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

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

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

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

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

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

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

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

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

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

5 Comments

Filed under Canada, Comparative law, Human rights, Judicial review, Uncategorized

Emily MacKenzie: Successful Challenge to Levels of Asylum Support – R (on the application of Refugee Action) v Home Secretary

Emily MacKenzie-Brick Court ChambersThe High Court recently upheld an important challenge in the field of asylum support. In June 2013, the Home Secretary decided that weekly cash payments to “destitute” asylum seekers in the 2013-14 financial year should remain frozen at the rate which had applied since 2011. In R (on the application of Refugee Action) v Home Secretary, Popplewell J quashed that decision, which now falls for reconsideration by the Home Secretary in light of the judgment.

The legislation provides that the cash payments are to cover “essential living needs” other than accommodation, which (including utility bills, council tax and basic furnishings) is provided for separately. However, as most asylum seekers and their dependents are prohibited from claiming benefits and from seeking work, the payments represent the sole source of income for these households.

The frozen weekly payments amount to £36.63 for a single adult, £43.94 for a single parent, £39.80 for 16-17 year olds and £52.96 for a child under 16 (although this does not apply to unaccompanied children, to whom separate provisions apply). Pregnant women and babies under the age of two receive additional payments of up to £5 weekly and pregnant women also receive a one-off maternity payment of £300.

The charity Refugee Action sought judicial review of the freeze on multiple grounds. While rejecting or declining to decide other grounds, Popplewell J upheld the claim for the following two reasons:

  1. In reaching her decision to freeze the payments, the Home Secretary left out of her consideration certain needs, which qualify as “essential living needs”.
  2. In setting the level of the payments, her analysis was flawed in several significant ways. For example, the fact that she proceeded on the “erroneous footing” that asylum support rates had increased in absolute terms by 11.5% when in fact they had decreased by that amount.

The case is an interesting read, not only on its own merits, but also because it raises at least two important constitutional issues: two-tiered standards of review and NGOs as judicial review claimants.

1. A two-tiered standard of review

In setting the level of asylum support, the Home Secretary had to conclude that the payments are adequate to meet “essential living needs”. It was therefore necessary for her to identify what living needs are “essential”. The claimants challenged her assessment, asserting that she had left out of consideration various items, which should be considered to qualify as “essential living needs.”

Faced with this challenge, the first question for the court is who gets to decide what is an “essential living need”? Is it an objective question (and thus suitable for the Court to define), or is it to be subjectively judged by the Secretary of State?

Popplewell J’s answer that it was both – and thus he outlined a two-tiered approach to reviewing the Home Secretary’s assessment.

It was an objective question insofar as the area had been the subject of an EU Directive, which imposes “minimum reception conditions” for countries receiving asylum seekers. The Marleasing principle (that national legislation must be interpreted in a manner which gives effect to EU law) therefore required that “[p]rovision for essential living needs . . . be interpreted as including, as a minimum, provision of the minimum reception conditions required by the Directive,” which conditions constitute an objective standard (para 85).

However, this is an example of a Directive setting a baseline minimum of protection. Essentially all that is required is that asylum support ensures respect for human dignity, maintenance of an adequate standard of health and that subsistence living needs are met. Most countries, including the U.K., go further in terms of providing for the destitute.

Popplewell J considered that once you exit the territory of the Directive and provide further guarantees, the question of what is an “essential” living need becomes a matter for the subjective assessment of the Home Secretary (para 90). The reason given is that what is “essential” (beyond the bare minimum, on which we can all agree) is “a criterion on which views may differ widely” and thus involves the making of a “value judgment”, which function has been conferred by Parliament on the executive.

The result of this is that, outside the territory of the Directive, the Home Secretary’s decision as to what constitutes essential living needs is only open to challenge on the Wednesbury standard of review.

The present case is an example, though, of a situation where the notoriously high Wednesbury hurdle was overcome because the Home Secretary had failed to take into account relevant considerations to a sufficient extent to vitiate her decision. Counsel for the Home Secretary accepted that certain items (including washing powder, cleaning materials and non-prescription medication) were essential living needs (para 99), yet the evidence was that they were not considered by the Secretary of State in her decision (para 100). Similarly, the provision of certain equipment for babies and new mothers was implicitly accepted as being essential because the governments asserted (incorrectly, the Judge concluded) that it was provided for by the extra payments made to pregnant women and children under the age of 2.

Further, Popplewell J was able to find that costs associated with the asylum application not covered by legal aid (para 104) and the cost of participating in social, cultural and religious life (para 113-116) fall within the ambit of the “minimum” conditions imposed by the Directive and thus are certainly deserving of consideration by the Secretary of State, if not precise delimitation by the court.

The case is thus an example of a two-tiered approach to review. Basic guarantees are not discretionary, meaning that the court can flex its interventionist muscles if it disagrees with the executive’s conclusion as to what is included. However, beyond that we are in the realm of discretionary decision-making, where the courts will back off and defer to the executive in the absence of irrationality.

This bifurcated approach to review is not particularly controversial, but is likely to structure future challenges in this sector. It will also make it very difficult to challenge a decision in the discretionary realm in a case where a proper process has been followed and errors such as were abundant on the facts of this case have been avoided.

  1. Judicial review challenges brought by NGOs

This case is an example of a successful claim by an NGO. The Government has been strident in its opposition to NGOs acting as claimants in judicial review (see Justice Secretary Chris Grayling’s most recent comments on the matter in The Telegraph). The Government’s earlier proposals for judicial review reform would have seen NGOs denied standing to bring judicial review claims. Fortunately, that proposal has been abandoned in the Criminal Justice and Courts Bill, but the latter still introduces numerous reforms to the costs regime that will cripple the ability of many organisations to take on the risk of litigation (see this earlier UK Constitutional Law Association Blog post by Ben Jaffey and Tom Hickman).

However, one should be careful before deploying this case as an example of why squeezing NGOs out of judicial review would be a bad thing. At several stages, Popplewell J makes clear that, in his view, the challenge was hampered by the fact that it was “general” in nature, as opposed to being “brought by an individual whose personal circumstances were in evidence” (para 43). For example, he ascribes the difficulties he has in determining what local authorities provide to asylum seekers as being:

“no doubt the result of the general nature of the present challenge, which led in the course of argument to hypothetical examples of particular individual circumstances giving rise to particular needs. Such hypothetical examples would have been easier to address on a case by case basis with the assistance of the specific applicable powers and duties of local authorities, and, importantly, evidence of how they were applied as a matter of policy and practice. Local authorities might have wished to be heard on some aspects. The result is that the following analysis has been undertaken on a less well informed basis and at a higher level of generality than I would have liked, and than would have been possible in a challenge by an individual whose personal circumstances were in evidence.” (Para 43)

Similarly, the Judge was unwilling to engage in the hypothetical that some asylum seekers might fall into a “gap” in protection in the absence of evidence that an actual person in that situation existed, concluding:

“there is no evidential basis on the current generic challenge for concluding that there are infirm children of asylum seekers whose additional non accommodation related essential living needs are not being met by local authorities and whose circumstances are not to be categorised as exceptional.” (Para 82)

If this case is used, as it should be, to illustrate the role of NGOs in bringing to light faulty decision-making by the government, it is likely that these dicta will be cited in an attempt to show that NGOs should not be using judicial review in this way. The criticisms can, however, be answered.

Part of the answer lies in the judgment itself. Whilst suggesting in the passages cited above that an individual challenge would have presented fewer difficulties, Popplewell J also criticises other parts of the evidence as coming from too few affected individuals. This is in relation to material that the claimant served evidencing the problems asylum seekers encounter under the current payments, such as having to miss meals and being unable to afford adequate clothing (para 133). Popplewell J commented that:

“…it is a partial body of relevant evidence, in both senses of the word. It can not properly be regarded as conclusive. The Claimant’s survey was based on the responses of a relatively small group and did not paint a homogenous picture. None of the material could be treated as demonstrably representative or beyond doubt.” (Para 134)

What this shows is that both evidence relating to the situations of specific individuals and wide-ranging survey evidence can be useful in challenging policy decisions in this sector. An NGO such as Refugee Action is best placed to collect both kinds of evidence. It is clearly more capable of collecting the wide-ranging “demonstrably representative” evidence than an individual challenger would be. However, arguably, it is also just as – if not more – capable of collecting evidence relating to the situations of a specific individual because it is more likely to be able to locate the relevant person. Indeed, the publicity attendant with bringing the claim in the first place might bring individuals out of the woodwork, whose situations would otherwise have remained unknown to the court.

Conclusion

This case has been lauded by some commentators as a “damning” judgment for the Home Secretary (see, for example, this post by Chris Yeo on the Free Movement Blog). Not only is it a landmark decision in this subject-area, it is well worth reading for its contribution to the discussion surrounding the appropriate standard of review in relation to policy decisions. And –perhaps most importantly – it is the latest example of a successful claim by an NGO bringing to light manifest failures in government decision-making that affects some of the most vulnerable in our society.

Emily MacKenzie is a barrister at Brick Court Chambers and is currently working as an International Law Fellow at the American Society of International Law

(Suggested citation: E. MacKenzie, ‘Successful challenge to levels of asylum support – R (on the application of Refugee Action) v Home Secretary’ U.K. Const. L. Blog (8th May 2014) (available at: http://ukconstitutionallaw.org/).

1 Comment

Filed under Human rights, Judicial review

Mark Elliott: Judicial Review Reform — The Report of the Joint Committee on Human Rights

MarkEarlier this week, the parliamentary Joint Committee on Human Rights has published its report on The implications for access to justice of the Government’s proposals to reform judicial review (HL 174 HC 868 2013-14). The report is, perhaps unsurprisingly, generally critical of the proposals and of the way in which they have been or are being introduced. I have already summarised the proposals and commented on some of them in earlier posts. In this post, I draw attention to some key passages in the JCHR’s report, commenting on them briefly and, at the end of the piece, offering some reflections on some of the underlying constitutional issues highlighted by the Committee.

The rule of law and the role of the Lord Chancellor

The JCHR is highly critical of the “politically partisan” way in which Chris Grayling, the Lord Chancellor and Justice Secretary, has sought to justify the proposed changes to judicial review:

In an article in The Daily Mail on 6 September 2013, the day on which the Government’s judicial review consultation was launched, the Lord Chancellor suggested that the rationale for the Government’s proposed reforms is that judicial review is being used as “a promotional tool by countless Left wing campaigners.” Such politically partisan reasons for restricting access to judicial review, in order to reduce the scope for it to be used by the Government’s political opponents, do not qualify as a legitimate aim recognised by human rights law as capable of justifying restrictions on access to justice, nor are they easy to reconcile with the Lord Chancellor’s statutory duties in relation to the rule of law.

The Committee concludes that as well as casting doubt upon the legitimacy of the reasons for the present reforms, the role played by the Lord Chancellor and Justice Secretary raises deeper constitutional questions about that combined role:

In our view, the Government’s proposals on judicial review expose the conflict inherent in the combined roles of the Lord Chancellor and Secretary of State for Justice. This raises issues which should be considered by a number of parliamentary committees, including the Commons Justice Committee and the Lords Constitution Committee. We think the time is approaching for there to be a thoroughgoing review of the effect of combining in one person the roles of Lord Chancellor and Secretary of State for Justice, and of the restructuring of departmental responsibilities between the Home Office and the Ministry of Justice that followed the creation of the new merged office.

The Committee raises an important point here; I offer some brief reflections on it, and on related matters, in the final section of this post.

Evidence

In making its case for reform, the Government has made much of the supposed increase in recourse to judicial review in recent years and decades. As my co-authors and I pointed out in the Bingham Centre’s response to the first set of proposals for reforming judicial review, the evidence base upon which the Government’s claims are made is very weak. In evidence given to the Committee, Professor Maurice Sunkin said:

if one leaves aside the immigration case load, the evidence does not show that there has been a substantial increase in the use of judicial review. In fact, the official statistics [...] reveal that, in non-immigration civil judicial reviews over the last 15 years or so, case numbers have remained fairly constant at just over 2,000 a year. [...] By any measure, that is not a large number compared with the number of decisions taken by Government annually.

Sunkin makes a compelling point (which, toghether with Varda Bondy, he makes at greater length in a blog post published in January 2013). The Committee concluded that the Government has not

demonstrated by clear evidence that judicial review has “expanded massively” in recent years as the Lord Chancellor claims, that there are real abuses of the process taking place, or that the current powers of the courts to deal with such abuse are inadequate.

Procedural defects and substantive outcomes

As presently drafted, cl 52 of the Criminal Justice and Courts Bill will insert new provisions into s 31 of the Senior Courts Act 1981 such that relief in judicial review cases must be refused “if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred”. This would represent a substantial departure from current practice, whereby the threshold is set at the higher level of inevitability. I have argued elsewhere that this proposal is highly problematic. The JCHR has reached the same view, citing both constitutional and practical difficulties. As to the former, the Committee says:

We note that Lord Pannick, the Bingham Centre for the Rule of Law and Tom Hickman and Ben Jaffey, are all of the view that the proposed reform in clause 52 of the Criminal Justice and Courts Bill is objectionable for constitutional reasons, because it instructs courts to ignore unlawful conduct by public authorities, even where that unlawfulness is material in the sense that it might have made a difference to the outcome. We agree with this view: it is in the public interest for public bodies to make lawful decisions.

As far as the practical implications are concerned, the Committee endorses the following passage from the Senior Judiciary’s response to the Government’s consultation paper:

In a small number of cases it may be obvious that a procedural flaw can have made no difference to the outcome. In these cases, permission will be refused. However, in most cases, the decision whether a procedural flaw made a difference to the outcome cannot be taken without a full understanding of the facts. At permission stage the requisite full factual matrix is rarely before the court. As foreshadowed in question 13, an obligation to focus further on the no difference principle at the permission stage would necessarily entail greater consideration of the facts, greater (early) work for defendants, and the prospect of dress rehearsal permission hearings. It is difficult to see how this outcome could be avoided.

The Committee concludes that cl 52 should be removed from the Bill, and that, if the Government insists on retaining it, that it should be redrafted in order to reflect the current approach based on an inevitability threshold.

Legal aid

I have written elsewhere—in this post, and as co-author of the Bingham Centre’s response to a later Government consultation—about the implications of legal aid changes for judicial review and access to justice. I will not therefore seek to summarise the changes here. Suffice to say that the Committee expresses two major concerns. First, it argues that one of the key proposals is not justified by reference to reliable evidence:

We do not consider that the proposal to make payment for pre-permission work in judicial review cases conditional on permission being granted, subject to a discretion in the Legal Aid Agency, is justified by the evidence. In our view, for the reasons we have explained above, it constitutes a potentially serious interference with access to justice and, as such, it requires weighty evidence in order to demonstrate the necessity for it—evidence which is currently lacking.

Second, it raises an important constitutional concern about the way in manner of the enactment of the reforms:

We also regret the fact that the Government has chosen to bring forward by a negative resolution statutory instrument a measure with such potentially significant implications for effective access to justice … In our view, the significance of the measure’s implications for the right of effective access to court is such that it should have been brought forward in primary legislation, to give both Houses an opportunity to scrutinise and debate the measure in full and to amend it if necessary. The Government could have given both Houses of Parliament the opportunity to do so by including a provision expressly authorising the change in the Criminal Justice and Courts Bill which is currently before Parliament, Part 4 of which contains some other significant proposals for reforming judicial review.

Other matters

The Committee takes a dim view of the proposal concerning interveners. As presently drafted, the Criminal Justice and Courts Bill would introduce a presumption that interveners must pay their own costs and any costs involved by other parties resulting from their intervention—a presumption that is rebuttable only if there are “exceptional circumstances”. The Committee recommends that the present discretionary approach be preserved:

Third party interventions are of great value in litigation because they enable the courts to hear arguments which are of wider import than the concerns of the particular parties to the case. Such interventions already require judicial permission, which may be given on terms which restrict the scope of the intervention. We are concerned that, as the Bill stands, it will introduce a significant deterrent to interventions in judicial review cases, because of the risk of liability for other parties’ costs, regardless of the outcome of the case and the contribution to that outcome made by the intervention.

The Committee also disagrees with the proposal to limit the availability of protective costs orders. While it welcomes some aspects of the proposals in this area, including the proposal to place PCOs on a statutory footing, the JCHR is concerned that the Government proposes to permit the making of PCOs only if leave to apply for judicial review has been granted. Criticising this aspect of the proposals, the Committee quotes with approval from the following submission it received from the Bingham Centre:

[D]efendants and interested parties not infrequently run up massive pre-permission bills, especially where the Defendant is a regulator or private body acting in a public capacity, or there is a private interested party. Cases may have pre-permission costs that comfortably exceed £30,000. The risk of unknown and potentially substantial pre-permission costs is a risk that those who would otherwise qualify for costs protection cannot possibly take. If a PCO cannot be obtained to protect against such a costs risk, very many claims with substantial wider public interest will not be brought. A PCO that cannot be obtained until it is too late to prevent the chilling effect of uncertain and unlimited costs exposure is a pointless PCO: it does not achieve the aim of enabling access to justice for those who cannot expose themselves to substantial costs risk. Here, again, the proposals appear to give with one hand (endorsing PCOs) but take back with the other through hidden financial disincentives that will in practice undermine PCOs and negate the attainment of the purpose they are intended to serve.

Finally, the Committee welcomes the Bingham Centre’s very recent report on Streamlining Judicial Review in a Manner Consistent with the Rule of Law, concluding that “the Government could go some way towards achieving its aims of reducing unnecessary cost and delay by other reforms which would make the process of judicial review more expeditious and therefore cheaper”.

Concluding remarks

The JCHR’s thoughtful analysis and sensible—if unsurprising—conclusions are to be welcomed. But perhaps more important, in the long term, than its conclusions in relation to individual aspects of the proposals are its comments, towards the beginning of the report and noted above, concerning the constitutional roles of the Lord Chancellor and Justice Secretary. Albeit relatively short, the history whereby those roles have emerged in their present forms is tortuous and complex. It has its roots in a botched Cabinet reshuffle undertaken by Tony Blair. Premised on the assumption that the centuries-old office of Lord Chancellor could be abolished via a Government press release, the reshuffle resulted in the departure from the New Labour government of Lord Irvine, Blair’s first—and the last old-style—Lord Chancellor. Irvine was succeeded by Lord Faulkner, who became both Lord Chancellor and Secretary of State for Constitutional Affairs.

At that point, the change was largely nominal, but reforms of a more seismic nature took place in 2007. The Department for Constitutional Affairs—which itself had only recently succeeded the Lord Chancellor’s Department—was replaced by the Ministry of Justice. This, however, was no mere rebranding exercise. Instead, it signified the transfer to the new Department of responsibility for swathes of policy that had hitherto fallen within the Home Office’s domain. The Lord Chancellor and Justice Secretary then assumed a more overtly political role, finding himself at the forefront of contentious policy areas including prisons and probation. Over time, therefore, the balance of emphasis within the combined Lord Chancellor/Justice Secretary role has changed, and the aspects of the role that relate to being a “regular” Minister have begun to eclipse those aspects that recall the traditional role of the Lord Chancellor as a guardian of constitutional propriety and judicial independence. It is perhaps no surprise that concerns of the type expressed by the JCHR in its recent report have arisen in a particularly acute form during the tenure of Chris Grayling, a non-lawyer for whom the Justice Secretary aspect of the role is clearly the more compelling one.

I think, however, that the issue goes even deeper than the tensions that are inherent in the Lord Chancellor/Justice Secretary role. Indeed, it is arguable that those tensions are merely superficial manifestations of more profound, and deeply-embedded, features of our constitutional architecture. That government Ministers (other, perhaps, than old-style Lord Chancellors) regard judicial review as an irritant is natural enough. Judicial review plays a key role in upholding the rule of law by ensuring that Government acts lawfully, and it is unsurprising that Ministers do not welcome adverse judicial rulings. In many legal systems, that courts are able to discharge such a role is a constitutional given, the relationship between the judicial and executive branches being a function of the terms of a written constitution over which no single organ of government has unilateral control.

In contrast, the system in the UK—in the absence of hierarchically-superior constitutional text capable of determining the balance of power between different governmental institutions—depends upon the courts and the executive exhibiting mutual respect for one another’s constitutional roles. Both the content of the Government’s recent judicial review proposals and the ways in which it has sought to introduce them evidence an erosion of executive respect for the courts’ constitutional function, and so a reluctance to observe the self-denying ordinance that previous governments—no doubt cheered on by old-style Lord Chancellors—have adhered to in the face of adverse judicial rulings. None of this is to suggest that there exists some sort of golden age in which the executive was entirely passive in the face of judicial admonishment—tensions between the executive and the judiciary are an inevitable and necessary feature of our system. It is, however, arguable that the present Government’s approach to judicial review reform evidences an unusually acute erosion of administrative respect for the courts’ constitutional role. If, therefore, the JCHR’s suggestion is taken up and there is a debate about the constitutional appropriateness of the combined roles of Lord Chancellor and Justice Secretary, it is to be hoped that these deeper, underlying issues about how to secure institutional comity within an unwritten constitutional order will form part of that debate.

Mark Elliott is Reader in Public Law at the University of Cambridge. He can be found on Twitter as @DrMarkElliott. This post originally appeared on Dr. Elliott’s blog Public Law for Everyone.

Leave a comment

Filed under Judicial review

Jason N.E. Varuhas: Should the common law of review and the law under the Human Rights Act 1998 be “synthesised”?

JNE VaruhasIn the recent decision of Kennedy v The Charity Commission [2014] UKSC 20 Lord Mance speculated that in time some form of “synthesis may emerge” between the common law of review and the law under the HRA. Consonant with this view he said, more specifically, that “there seems no reason” why a proportionality test or something akin to a proportionality test “should not be relevant in judicial review even outside the scope of the Convention and EU law”. No doubt the implications of this statement will be debated endlessly. But it is difficult to see Lord Mance’s statement as establishing proportionality as a head of review at common law: an appeal specifically on point, in which the Court heard full arguments on the matter and itself traversed all relevant arguments, overruled Brind [1991] 1 AC 696, and in clear and express terms stated that proportionality was now a head of review and addressed the implications for Wednesbury, would be required to effect such radical change (see similarly Lord Carnwath’s judgment at [247]).

In similar vein to Lord Mance, some commentators have argued in favour of the “unification” of common law review and HRA law around a set of common functions, norms, methods and concepts (technically they have argued against “bifurcation”, but given – as we shall see – the two fields are bifurcated, what these commentators really desire is unification). Most importantly for proponents of this heady vision, and consonant with the gist of Lord Mance’s views, such unification would entail the mainstreaming of proportionality across common law review.

This post argues against the idea that there ought to be a grand “synthesis” or “unification” of the common law of review and the law under the HRA. The post also advises caution in the reading across of norms, concepts or methods developed in one field to another. For example the justification and character of a particular norm may be dependent on considerations peculiar to the field in which that norm has been developed. Equally, its importation into a different field may cause incoherence, and undermine the distinctively valuable functions performed by the “receiving” body of law. Such considerations, of the distinctiveness of different doctrinal contexts, have largely been ignored in the long-stale Wednesbury-proportionality debate; though Lord Carnwath was attune to them in the final paragraphs of his judgment in Kennedy. In general the focus of the longstanding debate has been a running comparison of the relative advantages and disadvantages of adjectival features of each method, such as whether one is more “structured” or “transparent” than the other. The narrow focus of the debate on such second-order concerns distracts from deeper, far more significant matters.

Consideration of significant features of common law review and human rights law indicate that they are distinct bodies of doctrine which perform radically different functions. While each performs a range of functions the primary function of human rights law is, like certain actions in tort, to afford strong protection to and vindicate fundamental individual, personal interests, whereas the primary function of common law review is to ensure that public power is exercised properly and in the public interest. Once this is recognised it is difficult to make sense of calls for unification. Such claims are akin to arguing that equity and the law of torts ought to unify; the proposition is perplexing.

The Law under the HRA

The primary function of human rights law, and the law’s individualistic rights-based nature, are evident in its significant features:

  • Only the individual rights-holder may bring a claim. Claims are the property of the rights-holder and may not be assigned.
  • Claims are actionable per se: what matters is whether the claimant’s basic rights have been interfered with rather than whether the interference leaves them materially worse off; an interference may well leave a victim materially better off, but it remains the case that their basic interests ought not to have been interfered with.
  • Liability is strict: a defendant authority may be held liable for an interference with basic interests even if they acted reasonably, with meticulous care or with benevolent intentions. This reflects the prime importance the law places on fundamental interests, and their protection against outside interference.
  • Defences, such as proportionality or statutory authorisation, are narrow and construed strictly. For some rights, such as that against torture, there is no defence to breach under the HRA, other than express statutory authorisation.
  • The discretion to refuse relief is exceptionally limited due to the demands of Article 13: there must be an effective remedy for violation of basic rights.
  • Damages are available to redress personal losses; damages claims are paradigms of individuated, personal claims.
  • Claims may be brought via ordinary procedure, alongside other claims based in individual rights such as those in tort. Where they are brought via review procedure, the usual restrictions have been loosened so that, in significant respects, the procedure comes to resemble ordinary procedure.
  • Substantive questions, such as whether a risk was “real and immediate” or “reasonable steps” were taken in the context of the Osman duty, or whether interferences are proportionate, are determined objectively by the judiciary. This follows from the nature of the claim as one of individual right; determination of questions of individual right is a quintessentially judicial function.

There are striking similarities between these features of human rights law and those of the torts actionable per se, which have long performed similar protective functions and are based in individual rights. For example, in trespassory torts, only the rights-bearer may bring a claim, the claim is actionable per se, liability is strict, defences are narrow, specific relief will generally issue to halt ongoing wrongs, damages are available (although approached differently from HRA damages), and claims proceed via ordinary procedure. Such clear links are often obscured by fuzzy thinking in terms of a grand division between public and private law.

The common law of review

Whereas the primary function of human rights law is to afford strong protection to personal interests, the primary concern of common law review is the near-inverse: to ensure public powers are properly exercised according to basic precepts of good administration and in the interests of the public. The law’s principal focus is on the exercise of power itself. This is not to say the law evinces no concern for the individual. It does. But the concern is subsidiary.

Significant features of the law demonstrate this primary function:

  • Public interest standing rules. Unaffected groups or citizens may bring a claim where they have an arguable case. The reason for this is that what is at stake at common law is something we all have a legitimate interest in: the proper exercise of public power for the common good. A rights-based standing rule would be inconsistent with and undermine such function.
  • Remedies are limited to specific-type relief, reflecting the law’s functions: remedies are geared towards regulating and guiding public power so that it is exercised as it ought to be. Relief is discretionary and may be refused where its grant would compromise the public good. Damages are not available; such remedy, which redresses personal losses, would be out of place in a field concerned with the public good, rather than personal interests.
  • The review procedure evinces the law’s public interest ethos. It provides for many safeguards – restrictions on disclosure and oral evidence, short limitation period, permission stage – which serve to protect authorities from disruption in carrying out their tasks in the public interest.
  • Administrative action is presumed valid and the onus is on the applicant to demonstrate unlawfulness, in contrast to human rights law where the onus of justification lies with the defendant. These features are indicative of the law’s principal concern for the public interest: the presumption serves to protect public interests in administrative certainty and citizen compliance with decisions. One might argue that onus is not of great practical significance; but even if this is correct it is nonetheless a marker of the law’s purpose.
  • Review on common law grounds is a supervisory jurisdiction and a measure of last resort. There are several reasons for this. First, it is for the administrative decision-maker to determine what lies in the public interest. Second, administrators know a great deal more about good administration than judges. Third, judicial restraint is necessary so that in seeking to ensure power is exercised in accordance with precepts of good administration and for the public good, judges do not unwittingly undermine those goals through overzealous interference with administration; thus, good administration and pursuit of the public interest form the basis of the review jurisdiction, and the rationale for restraint in exercise of that jurisdiction.
  • The grounds of review also reflect the law’s principal functions.

o   Judges consistently emphasise that public power is only to be used for the public good. Of course, it is not for the judges to say what lies in the public interest; rather the judicial role is to keep administrators broadly “on track” in the exercise of their power. Thus, courts will in general only intervene in circumstances where it is clear that power has not been exercised for the public good, for example where its exercise is shown to have been captured by private or extraneous concerns. To act on irrelevant concerns or with bias or for improper purpose is to deviate from the basis upon which the power has been granted. Similarly, where an administrator acts wholly irrationally, this is indicative of a deviation from the purposes for which power is conferred.

o   A central concern of common law review is to ensure public power is exercised according to ordinary expectations of good administration. Making material errors of fact or making a decision which affects a person without giving them notice or the chance to be heard is not in accord with basic expectations of good administrative practice, and will lead to unreliable decision-making.

These fundamental features indicate the law’s primary function is to ensure public power is exercised properly and in the public interest. Of course, aspects of the law evince a concern for individual interests. But how the law approaches this concern is molded by its primary functions. As Lord Donaldson MR said in Argyll Group [1986] 1 WLR 763, 774, “Good public administration requires a proper consideration of the legitimate interests of individual citizens … But in judging the interest, however legitimate, regard has to be had to the purpose of the administrative process concerned”. Consider the anxious scrutiny reasonableness test applied in human rights cases. The only real onus on the primary decision-maker is to take into account the “human rights” and balance them against other concerns. If she does that, the court will only intervene if the balance struck was wholly irrational. The law’s concern is principally one of good administration: to ensure legitimate interests that might be affected by the decision are accounted for. Beyond that, the decision is for the official. In Kennedy Lord Carnwath similarly observed that even in human rights cases, “the role of the courts [at common law] is often more process than merits”.

Of course, many applicants bring review claims on the basis that they wish to preserve their individual interests. But one must keep separate an applicant’s subjective motivations for bringing a claim and the nature of the body of law which forms the basis of their claim. You may punch me, thereby giving me a claim in battery against you. I bring a legal claim because of my idiosyncratic subjective desire to test some arguments I once made in a journal article on the law of torts. This does not change the fact that the basis of the claim is breach of a personal right not to be beaten up.

The normative basis for a claim at common law is not breach of an individual right, as it is under the HRA. It is breach of a public duty, owed by authorities to the community, for the benefit of the public at large; this is a public wrong, not an individual wrong. This is why, for example, unaffected members of the community are entitled to initiate proceedings, and why damages for personal loss are not available and would be out of place. Individual interests may be taken into account in setting the specific content of these public duties – as in anxious scrutiny cases – but this does not alter the public nature of the duty: a duty on authorities, owed to the polity, not to act irrationally.

It is also worth noting that the principal reason we have this human rights dimension in the common law in the first place is, as Lord Rodger acknowledged candidly in Watkins [2006] 2 AC 395, [64], one of bare politics: English courts were, in the 1980s and 1990s, seeking to ensure compliance with Strasbourg requirements in the absence of a domestic rights-instrument. Some might see it as more than mere coincidence that Lord Mance’s observations in Kennedy come at a time when repeal of the HRA is being mooted by senior Ministers. Where courts alter doctrine according to extrinsic concerns, the result is nearly always to introduce confusion and incoherence into the law.

Synthesis?

Thus we have two bodies of law which have radically different internal structures. These differences reflect the radically different functions that the two fields perform. In this light, it is difficult to make sense of claims for unification, synthesis etc: how could one sensibly unify a body of law concerned principally with preservation of the public interest, and a body of law concerned principally with preservation of individual interests? Further, why would we want to do this? The common law serves to ensure administrators exercise their powers properly and for the benefit of the public whom they ultimately serve, while human rights law serves to protect basic individual interests which may be prejudiced by powers otherwise exercised properly for the public good. This all seems perfectly sensible.

Recognition of the importance of doctrinal context provides an answer to the well-worn claim that it is inconsistent that where administrative action touches on “human rights”, challenges will be approached differently under the HRA and at common law. A HRA claim is a claim of right within a body of law dedicated to protection of fundamental individual interests. A review claim is a claim that a court should exercise a secondary remedial jurisdiction to ensure public power is used as it ought to be. Given these differences it makes perfect sense that different approaches are taken. Fundamental features of proportionality under the HRA are only explicable in the light of the doctrinal context in which the test applies. The structure of the test and its strictness derive from the law’s principal concern, to afford strong protection to basic interests. It is because the test is applied within a claim of individual legal right that the primary, objective judgment as to whether an interference is proportionate is for the judiciary. The onus of justification lies with the defendant because proportionality is in the nature of a defence to breach of an individual legal right. None of these contextual features are present at common law. The fundamental error, too often made, is to think of proportionality under the HRA as a ground of review, conceptually analogous to Wednesbury, so that replacing Wednesbury with proportionality would be to replace like with like. But proportionality is not a ground of review: it is a defence in an action for breach of an individual, fundamental legal right, and all of its significant features flow from that context; a context far removed from the common law supervisory jurisdiction and its principal concerns. As Lord Carnwath said in Kennedy, under the HRA “[t]he court’s function … is to decide for itself whether the decision was in accordance with Convention rights; it is not a purely reviewing function”.

Because the focus in proportionality/Wednesbury debates is far too often on the proportionality method, it is worth pausing to reflect on what would be being balanced within the rubric of that method, if it were mainstreamed at common law. Some prominent protagonists of proportionality, such as Paul Craig ([2010] NZ L Rev 265), appear to argue that individual rights and interests ought to anchor the proportionality method, whether these rights and interests are of fundamental status or not. Craig’s normative argument tends to focus on the benefits of proportionality method – the importance of reasoned justification, structure in judicial analysis and simplicity. But Craig offers no serious normative argument to justify a radical shift of focus in the law of review from a central concern for preservation of the public interest (specifically those public interests Parliament intended the relevant administrative powers to be used in aid of), to the central concern of the law being preservation and protection of private interests of individuals and legal entities, such as corporations. Why should the focus of public power in general be upon such special interests rather than the common good?

English law already recognises a body of law concerned with protecting private interests: private law. By virtue of the Diceyan principle of equality, private law applies, in principle, to public authorities just as it applies to private citizens. Why is further protection of individual interests required, especially when human rights, employment, family and equality legislation, and EU law have plugged the most significant gaps in protection of private interests?

And if further protection is warranted, why should that be through review? Why not argue for a new body of law specifically dedicated to protection of the relevant interests, rather than undermine valuable, distinctive functions performed by common law review and/or distort the coherence of the common law.

Further, if common law review is to directly protect private interests, why should that protection stretch to any possible interest that might be affected by administrative action, regardless of its importance? We would need a good argument as to why each possible interest potentially affected by administrative action warrants the intervention of the law. I have not seen such arguments. Further, would it not be preferable that claims concerning low-level interests be left to informal mechanisms such as the Parliamentary Ombudsman? Unification theorists do not generally consider such possibilities, nor do they seriously consider potential detriments which may accompany a radical expansion of judicial review, such as the impact on public interests in administrative certainty, flexibility, efficiency, effectiveness, and expeditiousness, in the exercise of public functions which ultimately serve the interests of all.

 Dr Jason N. E. Varuhas is Dean’s Postdoctoral Research Fellow at the University of New South Wales Faculty of Law and Junior Research Fellow at Christ’s College, University of Cambridge.  This post is a summary of parts of a longer paper, “Against Unification: Recognising the Distinctiveness of the Common Law of Review, and the Law under the Human Rights Act 1998”, forthcoming in H. Wilberg and M. Elliott (eds), The Scope and Intensity of Substantive Review: Traversing Taggart’s Rainbow (Hart Publishing, Oxford).

(Suggested citation: JNE Varuhas, ‘Should the common law of review and the law under the Human Rights Act 1998 be “synthesised”?’ U.K. Const. L. Blog (28th APril 2014) (availabl at: http://ukconstitutionallaw.org/).

Leave a comment

Filed under Human rights, Judicial review, Uncategorized

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)).

Leave a comment

Filed under America, Comparative law, Human rights, Judicial review