Category Archives: Judiciary

Robert Leckey: Constitutionalizing Canada’s Supreme Court

Professor Robert Leckey CROSS-POSTED FROM THE I.CONNect BLOG.

A dispute over the legality of a politically questionable judicial appointment has resulted in what pundits call a stinging defeat for Canada’s prime minister and a bold assertion by the Supreme Court of Canada of its independence and constitutional status.

Recently, in Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, the Court advised that Conservative Prime Minister Stephen Harper’s appointment of the Honourable Mr. Justice Marc Nadon to the Supreme Court of Canada was void. He had been sworn in five months earlier. On a six-judge majority’s reading of the Supreme Court Act, Justice Nadon was unqualified to fill one of three spots reserved for jurists trained in the law of Quebec. Quebec is the federation’s sole civil-law jurisdiction and the only province with a French-speaking majority.

In addition, the Court opined that the Parliament of Canada’s ex post amendments to the Supreme Court Act purporting to clarify that Justice Nadon was eligible were unconstitutional. They amounted to a constitutional amendment requiring the unanimous consent of Parliament and all provinces.

While many had criticized the political wisdom of the prime minister’s selection of a semi-retired judge on nobody’s shortlist, the constitutional issues turn on the interpretation of the Supreme Court Act and of the country’s constitutional amending formula.

General qualifications for appointment appear in section 5 of the Supreme Court Act. It refers to current and former judges and to a person who “is or has been” a lawyer of at least ten years standing at the bar of a province. The controversy bore on section 6’s specification that three justices be drawn “from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province.” Justice Nadon came instead from the Federal Court of Appeal. Although formerly a member of the Quebec Bar for more than ten years, he was no longer a member. Using a process set out in the Supreme Court Act, the federal executive referred questions to the Court for its opinion.

The validity of the initial selection of Justice Nadon turned on the relationship between the Act’s general and specific provisions and the significance, if any, of the different wording in sections 5 and 6 (“is or has been,” “among”). The majority of the Court concluded that Quebec appointments needed to be current judges of the named Quebec courts or current members of the Quebec Bar. Those judges stated the primary basis for their decision to be the Act’s plain meaning and the differences in wording. A single judge dissented.

It is striking for an apex court—even when the government asks it to weigh in—to reject an appointment to its ranks on the basis that the government had misinterpreted the relevant statute. But the Court went further. It grounded a formalistic exercise of statutory interpretation turning on the niceties of “is or has been” versus “among” in the historic compromise guaranteeing one-third of the Court’s judges to Quebec. For the majority justices, their interpretation of section 6 advanced the “dual purpose of ensuring that the Court has civil law expertise and that Quebec’s legal traditions and social values are represented on the Court,” maintaining that province’s “confidence” in the Court (para. 18).

Exaggerating the opinion’s political salience would be difficult. At a moment when Quebec is governed by a separatist party, and less than three weeks before Quebecers vote in a provincial general election, the Supreme Court of Canada explicitly declared itself to be an institution that guarantees a voice for Quebec’s “social values” in federal institutions. Commentators read the entire judgment as a declaration of the Court’s independence from a prime minister and executive perceived as disdainful towards democratic institutions and tone-deaf regarding Quebec. By implication, the majority’s reasoning made the choice of Justice Nadon not only formally invalid, but also substantively disrespectful of Quebec. One can speculate on the depth of the majority’s commitment to this substantive point by asking whether it would have upheld the appointment had the federal government named Justice Nadon to an eligible Quebec court the day before appointing him to the Supreme Court.

The opinion’s most enduring contribution, though, arises from its answer to the question concerning Parliament’s attempt to amend the Supreme Court Act. Parliament had created the Court by statute in 1875. The Court did not replace the Judicial Committee of the Privy Council as the federation’s tribunal of last resort for nearly three-quarters of a century. In its final legislative exercise for Canada, the Parliament of the United Kingdom brought into life the Constitution Act, 1982. The latter lists instruments that the Constitution of Canada includes, but does not mention the Supreme Court Act. Nevertheless, the new constitutional amending formula refers twice to the Supreme Court. The Court appears among the “matters” amendable by Parliament with the consent of a majority of provinces. Its “composition” figures among the “matters” amendable only on unanimous consent of Parliament and the provinces.

In opining that Parliament’s attempt to modify the Supreme Court Act to clear the way for Justice Nadon was unconstitutional, the majority stated that reference to the Court’s “composition” in the amending formula constitutionalized sections 5 and 6 of the Act. By implication, it also constitutionalized the Court’s continuing existence, “since abolition would altogether remove the Court’s composition” (para. 91). The majority added that the more general reference to the Court constitutionalized its “essential features … understood in light of the role that it had come to play in the Canadian constitutional structure by the time of patriation” (para. 94). In effect, the amending formula drastically reduced the scope for change to the Supreme Court by ordinary federal statute.

Moreover, the Court confirmed that the sources of the Constitution of Canada now include not only the previously known hodge-podge of royal proclamations, imperial statutes and orders in council, federal statutes, and unwritten principles. Those sources also include parts of another federal statute, the Supreme Court Act—some provisions identified by number as well as whatever might in future be determined to embody the Court’s “essential features.” Indeed, by referring to the “role” that the Court has come to play, the majority judges hint that the Court’s constitutionalized features may not track directly to specifiable legislative provisions, instead arising from practice. Presumably the same applies to other institutions that the amending formula constitutionalized, such as the Senate of Canada, on which the Court will pronounce in due course.

Whatever the political fallout for the prime minister, the Court’s advisory opinion merits careful attention by those who study sources of constitutional law, amending formulae, and how institutions’ constitutional status may change over time.

Robert Leckey is an Associate Professor of Law and William Dawson Scholar at the Faculty of Law, McGill University. He is scheduled to speak in the United Kingdom and South Africa about his forthcoming book Bills of Rights in the Common Law on the following dates in 2014: King’s College London – 12 May; Oxford University – 13 May; Unisa, Pretoria – 15 May; Cape Town – 19 May; University College London – 17 June; London School of Economics – 29 October. Further details for these talks may be obtained from the venues hosting the talks.

(Suggested Citation: Robert Leckey, Constitutionalizing Canada’s Supreme Court, Int’l J. Const. L. Blog, Mar. 25, 2014, available at: http://www.iconnectblog.com/2014/03/constitutionalizing-canadas-supreme-court  or R. Leckey, ‘Constitutionalizing Canada’s Supreme Court’ U.K. Const. L. Blog (1 April 2014) (available at http://ukconstitutionallaw.org/)).

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Dawn Oliver: Does treating the system of justice as a public service have implications for the rule of law and judicial independence?

oliverIf you asked a second year LLB student, or even a professor of public law or a legal practitioner, ‘what are the most fundamental functions of judges and the system of justice?’ you would probably get ‘doing justice to all without fear or favour’ and ‘upholding the rule of law’ among the most common answers. And if you asked ‘what are the most important ways in which performance of these functions is secured?’  you would expect to get ‘independence of the judiciary’ among the answers.

But if you visit the websites of the Ministry of Justice, the Lord Chancellor and Secretary of State for Justice, you will find no mention of these matters. These websites are mostly focused on the cost of legal aid, and criminal justice. And this notwithstanding the fact that the Constitutional Reform Act 2005 – also not mentioned on the websites – specifically preserves the Lord Chancellor’s role in relation to the rule of law (section 1(b)) and requires the Lord Chancellor and other Ministers to uphold the continued independence of the judiciary (section 3(1)). Why are judicial independence and the rule of law not mentioned? I suggest that it is because another understanding of the nature of the system of justice has gained currency in political and bureaucratic circles, an understanding that can do great damage to the rule of law.

The system of justice has come to be regarded by many as a public service like any other – and even only that. The title of Her Majesty’s Courts and Tribunals Service illustrates the point. But the trend goes back some thirty years. In 1986 a JUSTICE report stated that: ‘The courts … should be seen to provide a public service, as much as … the National Health Service’. (And presumably just as it would be inappropriate for the Secretary of State for Health to seek to pressurise a consultant to treat a patient in a particular way, so it would be inappropriate for the Lord Chancellor and other Ministers to ‘seek to influence particular judicial decisions through any special access to the judiciary’ (Constitutional Reform Act 2005, section 3(5)): by implication there is nothing exceptionally ‘constitutional’ or fundamental about the independence of the judiciary as compared to that of doctors.)

Since the promotion of the ‘Citizen’s Charter’ policy in 1991 the courts publish ‘charters’ for parties, witnesses and other, laying down ‘service standards’ as to delay, information, and how to complain about administration. Of course these matters are aspects of ‘service’ and do not touch upon the substance of judging, judicial independence and the rule of law. But for those who do not understand the rule of law and why it is important, it is only a small step to regarding judges themselves as only providers of services to litigants appearing before them, rather than as performers of an important constitutional role on which much of the system of government depends. I have heard it said at a Chatham House rule seminar by a senior civil servant that the role of the judiciary is not particularly special or different from the roles of doctors or nuclear regulators or anyone else involved in the running of public services.

The fundamental importance of justice, the rule of law and judicial independence are undermined by treating the system of justice as mainly just a public service: the system is different in important respects. The maintenance of the rule of law is of a different order of importance from the provision of other public services. The government and other public bodies are not ‘customers’ of, for instance, the NHS. They are often ‘customers’ of the system of justice, especially in judicial review and other public law cases and in criminal prosecutions. They may have self-serving or personal (not public) interests in the outcomes of cases, e.g. the avoidance of political embarrassment, gaining votes,  losing votes, loss of reputation, frustration in the pursuit of their favoured policies, loss of authority if they lose a case.

This ‘public service’ perspective puts some proposals for changes to the system of justice in a new light. The availability to critics of government of recourse to the courts and the independence of the judiciary can be a nuisance. What might a government do if it wanted to avoid litigation and embarrassment and enable it to get away with illegality? Just as, when developing policy in relation to the NHS, it can seek to limit access to the service (e.g. to drugs) and costs (e.g. by cutting staff, closing hospitals), so to it can do this in relation to the system of justice – but with startling consequences for the rule of law.  It could limit access to justice and deprive the courts of jurisdiction over unwelcome cases by reducing the limitation period for claiming judicial review and limiting the standing of charitable or voluntary sector bodies; it could find ways of weakening the ability of unpopular individuals (e.g. illegal immigrants, asylum seekers, convicted criminals) to pursue their claims in court by limiting their access to legal advice and representation; it could secure that unpopular parties (especially defendants in criminal cases) are less likely to win their cases, by depriving them of competent, reasonably paid representation; it could undermine the quality and thus the authority of the judiciary, deterring able practitioners from practice leading to judicial office by drastically reducing their earning capacity.

I do not allege that any of these are the conscious intentions of the government. But the overall effect of such changes, based in part on assumptions that the system of justice is just another public service, may be to undermine the independence of the judiciary, broadly understood, and the rule of law. Thinking of the system as a service obscures its special constitutional importance.

Dawn Oliver is an Emeritus Professor of Public Law at the Faculty of Laws, University College London.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Adam Perry and Farrah Ahmed: Are Constitutional Statutes ‘Quasi-Entrenched’?

AdamFarrahThe Supreme Court issued its decision in H v Lord Advocate (pdf) in 2012. The decision has been virtually ignored by constitutional scholars, but we believe it may be of great constitutional significance. In this post we explain why, starting with some background about constitutional statutes.

Commentators have lately considered how constitutional statutes should be interpreted (for example Tarunabh Khaitan on this blog), and what exactly makes a statute ‘fundamental’ or ‘constitutional’ (for example David Feldman in the latest issue of LQR). A third issue, and our focus here, is how a constitutional statute can be repealed.

In the well-known 2002 case of Thoburn v Sutherland City Council, Laws LJ (with whom Crane J agreed) claimed that a constitutional statute is susceptible to implied repeal in a much narrower range of circumstances than an ordinary statute. At first Laws LJ put the point categorically: ‘Ordinary statutes may be impliedly repealed. Constitutional statutes may not’. Some commentators took this statement to reflect Laws LJ’s considered view. But he immediately explained that, under some conditions, even constitutional statutes can be repealed by implication. The test is whether there are ‘express words’ or ‘words so specific that the inference of an actual determination to effect [the repeal of a constitutional statute] … was irresistible’.

Initially there was intense academic interest in Thoburn. Ultimately, though, Thoburn was a decision of the Administrative Court, and leave to appeal had been denied. Also, Laws LJ’s remarks on constitutional statutes were obiter. When no higher court gave its approval, Thoburn began to seem like an outlier.

That brings us to H, the first clear judicial statement about the implied repeal of a constitutional statute since Thoburn. The proceedings in H were complicated, so what follows is a simplification.

The United States made a request under the Extradition Act 2003 for the extradition of H and BH on charges relating to the manufacture of methamphetamine. H and BH were a husband and wife who at the time were living with their children in Scotland. They argued that their extradition would violate their Article 8 right to respect for family life. The Scottish Ministers issued an extradition order anyway. H and BH appealed to the High Court of Justiciary, and their appeal was dismissed. They then sought to appeal to the Supreme Court.

According to the Extradition Act, a decision of the Scottish Ministers made under that Act could only be appealed against under that Act. And the Extradition Act did not provide a right of appeal to the Supreme Court from the High Court of Justiciary. However, the Scotland Act 1998 provided a right of appeal to the Supreme Court from the High Court of Justiciary on a ‘devolution issue’. Section 57(2) of the Scotland Act prohibits the Scottish Ministers from acting inconsistently with any of the convention rights, and whether the Ministers have violated s 57(2) is a devolution issue. There was therefore the possibility of a conflict between the Extradition Act and the Scotland Act.

Under the doctrine of implied repeal, in the event of a conflict, the Extradition Act, as the later statute, would take priority over the Scotland Act. The Supreme Court would then lack the jurisdiction to hear the appeal. Although none of the parties in H actually contended that the Supreme Court lacked jurisdiction, the Court considered the issue anyway due to its ‘general public importance’.

Lord Hope, with whom the other judges agreed on the issue of competency, concluded that the Court had jurisdiction to hear the appeal. The reason was that, properly interpreted, the two statutes were consistent. They provided ‘parallel’ remedies. Such is the ratio of H on this issue.

What interests us is Lord Hope’s obiter dictum. The crucial passage comes when Lord Hope comments on what would have happened had the Extradition Act and the Scotland Act conflicted. He says (at [30], emphasis added):

It would perhaps have been open to Parliament to override the provisions of s 57(2) so as to confer on … [the Scottish Ministers] more ample powers than that section would permit in the exercise of their functions under the 2003 Act. But in my opinion only an express provision to that effect could be held to lead to such a result. This is because of the fundamental constitutional nature of the settlement that was achieved by the Scotland Act. This in itself must be held to render it incapable of being altered otherwise than by an express enactment. Its provisions cannot be regarded as vulnerable to alteration by implication from some other enactment in which an intention to alter the Scotland Act is not set forth expressly on the face of the statute.

It is difficult to think how Lord Hope could have been clearer: the Scotland Act can only be expressly repealed; it cannot be impliedly repealed; that is because of its ‘fundamental constitutional nature’. Lord Hope never qualifies these claims. He never suggests that there are conditions under which the Scotland Act can be impliedly repealed.

Ultimately the Court in H went on to dismiss the appeals, and to uphold the extradition order against H and BH.

We believe that Lord Hope’s dictum matters for two main reasons. First, whereas Thoburn was a decision of the Administrative Court, H is a Supreme Court decision. On the issue of competency, it was unanimous. After Thoburn, constitutional scholars waited for a higher court to give its views. Now the Supreme Court has.

Second, whereas Thoburn said that a constitutional statute can be impliedly repealed by a particularly clear implication, H says that the Scotland Act cannot be impliedly repealed – no exceptions. In this respect, H is more radical than Thoburn.

These considerations alone suggest that H deserves greater attention than it has received thus far (Stephen Dimelow mentions H in a recent LQR article, ‘The Interpretation of Constitutional Statutes’, but in passing).

H may be significant for a third reason, too. Lord Hope says that the Scotland Act cannot be impliedly repealed due to its ‘fundamental constitutional nature’. Other statutes are also fundamental and constitutional in nature (e.g., the Human Rights Act, other devolution legislation). By Lord Hope’s reasoning, these other statutes should also be incapable of implied repeal.

Overall, H suggests that courts in the future will take a new approach to the Scotland Act. They will not treat that Act as exempt from express repeal – as ‘entrenched’ in the full sense of the term – but they will treat it as exempt from implied repeal – as ‘quasi-entrenched’. They are likely to treat other constitutional statutes as quasi-entrenched, too.

The quasi-entrenchment of the Scotland act raises a number of interesting questions. What is the legal or constitutional basis of its quasi-entrenchment? Is the idea that there cannot be a later statute which implies that the Scotland Act is repealed? Or is it that Parliament does not have the power to bring about the repeal of that Act by implication? Or something else? Unfortunately Lord Hope does not say. We consider the possibilities in a separate working paper.

Adam Perry is a Lecturer in Law at the University of Aberdeen.

Farrah Ahmed is a Senior Lecturer in Law at the University of Melbourne. 

Suggested citation: A. Perry and F. Ahmed, ‘Are Constitutional Statutes ‘Quasi-Entrenched’?’ UK Const. L. Blog (25th November 2013) (available at http://ukconstitutionallaw.org)

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Richard Cornes: 11-1 gender ratio Court’s Achilles Heel: Reporting of the Supreme Court’s start of the year press briefing

SCA relationship of cooperation but also competing interests

On October 2 at 10am, the United Kingdom Supreme Court held an hour long pre-term press-briefing to mark the opening of the Court’s fifth year. This blog looks not only at what was said by the Court, and asked by the journalists on the day, but also what was then reported.

The Supreme Court’s relationship with the media is marked by the same combination of common interests and tensions which mark the media’s relationship with any other public body. Yes the Court wants media coverage; and a function of the media is to cover the Court. The media though will always want more than its subjects are looking to give up, and not only that, will often frame how the subject is presented according to each outlet’s particular agendas. Further, the Court, and its justices, will also have their own goals about what messages should be highlighted.

The new transparency – Court opens year with press briefing

That a press briefing featured in the start of year events says something about this still new court. Unlike what went before – the Appellate Committee – the @uksupremecourt has a now seasoned press office (for previous analysis see here and here). While the Court will not rival Strictly for coverage (and likely would not want to – justice, while prepared to show a little leg, still likes to maintain some mystique), its communications operation, which continues to innovate, has made it a world leader amongst top courts for transparency and accessibility.

The President and Deputy President speak

First, what did the Court say in opening? The President and Deputy President both spoke for a total of about fifteen minutes. Lord Neuberger opened by seeking to set the boundaries of what he and Lady Hale would be prepared to say:

As judges we are constrained in some respects as to what we can discuss. For instance, it is inappropriate for judges to give opinions publically on political matters save in so far as they impinge on the rule of law. We have to be wary of expressing views on issues which we may have to decide in due course in court.

His remaining remarks reviewed the number of cases decided since October 2012 (82), and highlighted a selection before closing with a paean to the importance of open justice, including discussing elements of the Court’s communications innovations.

Lady Hale, still, remarkably, the only woman on the Court noted some of the forthcoming terms “highlights”. There’s a curiosity here, almost all cases require leave, and must therefore be “Supreme Court worthy”, and yet this trailing of cases the Court considers likely to be of greater public interest gives us a new gloss on the leave process: the “super-Supreme Court case”. Lady Hale closed with a reflection she must be tiring of making about the lack of women on the Court, and the need for greater diversity in the judiciary generally. It was a reflection though which, as we shall see, made for good press.

Questions from the press

Then came the press questions – each topic necessarily revealing of the questioners’ interests, and in places, their outlet’s agendas. The Court (its Chief Executive, Jenny Rowe, in the chair for this purpose) gave the prized first question to Joshua Rozenberg who asked for a reaction to Conservative policy on repeal of the Human Rights Act, with a techy follow up on what the Court would do if the Act were repealed: develop a common law equivalent of the s.3 obligation (my gloss on Rozenberg’s question)? Faced so directly with such a potentially politically charged question both the President and Deputy declined to speculate. However, coming back to the point later in the hour Dominic Casciani from the BBC did get a little further, eliciting this from Lord Neuberger:

I am now doing what I said I would not do – picking up on Joshua’s point… if we did not have the Human Rights Act, the common law might develop in certain directions to accommodate a degree of change because the common law does change with the times. How it would change and in what respect is pure speculation.

The subtle message being sent by the President that repealing the Human Rights act might not be the last word on human rights principles appearing in Supreme Court jurisprudence was not one which lent itself to an easy headline (the discussion was really only covered by the UKSC blog); the skill was in putting the idea on the record without providing material for “Supreme Court responds to Tory plan to scrap Human Rights Act” type coverage. And indeed, Rozenberg chose the elements of the briefing touching on open court processes for a subsequent Guardian piece.

Francess Gibb of the Times was called next and followed up Lady Hale’s comments about diversity – an issue she did choose for one of her subsequent reports, the others highlighting the concerns Lord Neuberger raised over legal aid, and the Court’s openness agenda. David Barrett of the Telegraph followed up on diversity asking Lady Hale whether she still did not favour positive discrimination (she does not). Barrett’s story on the topic ran under the headline, “Top female judge questions male ‘dominance’”. The other story Barrett chose for print concerned a series of comments Lord Neuberger made about the importance of open justice.

Jack Doyle from the Mail then followed with a question about the wearing of veils in court rooms, including whether the Supreme Court would allow veiled advocates before it – a question which the President chose, in his own words, to “duck”. The veil question did not headline in Doyle’s coverage (though it did make the Express). Like others, one of Doyle’s subsequent pieces also pursued the theme of judicial diversity, “Women not being made top judges because men ‘dominate’ the selection process, says Britain’s only female Law Lord.” Another “’I welcome increased openness unreservedly’ Supreme Court judge’s praise for Mail’s open justice fight”. While both headlines had a basis in what had been said by the two judges, both were the most tendentious of all the subsequent coverage. The open justice theme in particular being linked to a wider Mail campaign about openness in the justice system per se.

Owen Bowcott from the Guardian brought the discussion back to open justice issues, referring to the Supreme Court’s decision (on a 6-3 vote) to allow for closed sessions in connection with the Bank Mellat case. While subsequently reporting on that discussion, and a latter question about the appropriateness of judges attending an Anglican church service to mark the opening of the legal year (which Bowcott raised as a possible independence problem for a court system grappling with questions of veils in courts), the headline for Bowcott’s coverage was, “Lady Hale, supreme court’s sole female justice, calls for diversity.”

From the BBC, this time Danny Shaw, came a question to Lord Neuberger about his previously expressed concerns about cuts to legal aid. For political sensitivity – touching as it does on sensitive resource questions for the Ministry of Justice – the question was up there with Rozenberg’s gambits on the consequences of repeal of the Human Rights Act. Lord Neuberger’s comments on October 2 included:

Rights, whether human rights or other rights, are valueless if they cannot be enforced in court. Reductions in legal aid therefore inevitably cause one concern. … I think that legal aid cuts therefore do cause any person concerned with the rule of law a worry.

The President did couch his concern in an explicit acknowledgment that difficult economic times have to be taken into account; referring back to his opening comments, he provided more of an insight into his view of the wider role of a lead judge, “one of our functions is not merely to sit in court, but also to support and ensure the rule of law.” It was a potent point, subtly made.

With the clock heading towards 11am, Brian Farmer from the Press Association asked about the wearing of legal wigs in court, linking discussion about rules for dress in court back to earlier questions about veils in court. Jane Croft from the Financial Times then came in with a question about divorce cases which allowed Lady Hale, while commenting that the principles in the area were now mostly settled (and thus not likely to give rise to Supreme Court level questions) to note, “obviously, we are not law reformers.” The line, “we are a court, and not a law reform body”, it will be recalled was one strand of Lady Hale’s dissent in the Radmacher v Granatino decision. Croft’s story the next day though was the “First woman law lord Brenda Hale calls for more female judges.”

So far I have only mentioned press coverage. The only other media coverage I found was on Radio 4’s 6pm news which picked up Lady Hale’s comments about the lack of female appointments to the Court. Standing back then, what comes through? First, the event resulted in no media “gotchas.” In particular neither what was said about the Human Rights Act nor legal aid were written up in any sense as “judges criticise government (or Conservative party) policy”. Partly I suspect that is because the judges did not give their audience any suitably juicy sound-bite. Second, there were clearly other issues running of potentially greater controversy on which the press wanted comment on the day: specifically, veils in court, and general concerns about the openness of judicial processes.

Stand-out message? 11-1: the Court’s Achilles heel

The stand-out message emerging from the exercise though is that despite 13 appointments at the Law Lord level since Brenda Hale was appointed 10 years ago, Lady Hale remains the lone female voice on the UK’s top court. Lady Hale can take only some of the credit for this point dominating the next day coverage (including comments which made it online in video form). What actually gets covered from an event like this is the press’s call. And it is striking that of coverage of the briefing (I counted around 15 or so stories), about 75% headlined the diversity point. The Court’s 11-1 gender ratio is clearly of interest to a goodish cross section of the mainstream press. And if that is the message getting through to readers from the Guardian to the Telegraph (and all points in between and beyond), the Court should be worried.

Dr Richard Cornes (@CornesLawNZUK) is a Senior Lecturer at the @EssexLawSchool, and Associate Member of Landmark Chambers, London.

 Suggested citation: R. Cornes, ’11-1 gender ratio Court’s Achilles Heel:  Reporting of the Supreme Court’s start of the year press briefing’  UK Const. L. Blog (16th October 2013) (available at http://ukconstitutionallaw.org)

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Roger Masterman: A Tale of Competing Supremacies

rogerIn a recent interview in The Spectator, Lord Chancellor and Secretary of State for Justice, Chris Grayling MP, was given another opportunity to recite the now characteristic Tory Siren call relating to the European Convention on Human Rights and the Strasbourg court.  In the piece, Grayling bemoans the “utterly unacceptable” and “almost unlimited” ability of the European Court of Human Rights to determine “what it thinks are human rights matters” arguing that:

“We have to curtail the role of the European Court of Human Rights in the UK, get rid of and replace Labour’s Human Rights Act.  We have to make sure that there is a proper balance of rights and responsibilities in law.”

The precise means of achieving these objectives, it seems, remain works in progress (with complete withdrawal from the Convention system still one possible outcome).  But one thing seems clear; in effecting the necessary reforms the “supremacy” of the UK Supreme Court must – Grayling claims – be restored.  Grayling is recorded as having said the following:

“I want to see our Supreme Court being supreme again.  I think people want to see the Supreme Court of the United Kingdom being in the United Kingdom and not in Strasbourg.”

Though Grayling’s hyperbole is entertaining (does anyone seriously think that we are governed from Strasbourg other than after reading occasionally inaccurate reports as to the location of the Court of Justice of the European Union? (and even then?!)), it would be glib (albeit correct) to point out that the Supreme Court has never actually been “supreme”.  The UK Supreme Court is not, and nor has it ever been, a constitutional court possessing a final and definitive authority over questions of law that is binding on the other arms of government and immune from override via the ordinary legislative process.  A Lord Chancellor who holds office by virtue of the same Act (s.2, CRA 2005) which established the jurisdiction of the Supreme Court (part III, CRA 2005) should, of course, be assumed to appreciate this (though some would argue that the same assumptions could not necessarily be made in respect of other key provisions of that Act – s.1, CRA, say).

But even were the Human Rights Act done away with and the UK’s membership of the European Convention system ended, would the UK Supreme Court be rendered “supreme”?

The UK Supreme Court is at the apex of the United Kingdom’s judicial structure with general jurisdiction as the final appellate court in matters other than those falling within the remit of the High Court of Justiciary in Edinburgh.  It is “supreme” therefore in the sense that it stands at a pinnacle of the domestic judicial hierarchy and – as argued in a recent piece in Public Law ([2013] PL 800) – it exercises a significant constitutional role displaying a number of the characteristics of explicitly constitutional courts elsewhere.  But the Supreme Court’s “supremacy” needs also to be appreciated in the light of a number of other considerations.

First among these is the (competing? complementary?) supremacy of Parliament.  While we might be able to say with confidence that a Supreme Court decision in a particular area represents a definitive reading of the requirements of the law, we can also say that Supreme Court decisions – including those dealing with questions of individuals’ rights – are susceptible to changes in primary legislation.  As Lord Bingham noted in the House of Lords in Re McFarland:

“Just as the courts must apply Acts of Parliament whether they approve of them or not, and give effect to lawful official decisions whether they agree with them or not, so Parliament and the executive must respect judicial decisions whether they approve of them or not, unless and until they are set aside.”

In reality there is some circularity to claims of supremacy made on behalf of courts or Parliament.  Neither can realistically be asserted without qualification of some sort, but the bare fact is the effects of judicial decisions of the apex court (eg YL v Birmingham City Council) can be amended by primary legislation (eg Health and Social Care Act 2008, s.145).

While the idea of the unbounded legal power associated with Parliamentary supremacy may have lost some of its lustre, it undoubtedly remains an important conditioning factor of constitutional practice for actors across the branches of government.  For many, it remains the “bedrock” of the constitution (Bingham, at [9]).  Yet – to muddy the waters further – even if we accept the legislative supremacy of Parliament we need also to be mindful that it acts as camouflage for the legal supremacy of the House of Commons over the House of Lords and the practical precedence of government business in the House of Commons.

The contest for supremacy does not end here; the Supreme Court currently operates within the context of the jurisdictions of the European Court of Human Rights and the Court of Justice of the European Union.  It is the former that has been most clearly the subject of the Conservatives’ ire in recent times, though the latter through which the Supreme Court is most clearly subordinated to an external source of law claiming supremacy over national laws.  As is now well-appreciated – particularly in the light of the decisions such as Horncastle – the Supreme Court is not obliged to give effect to decisions of the European Court of Human Rights in quite the same way as it must apply directly-effective provisions of EU law.  The supremacy “lost” to the European Court of Human Rights (decisions of which – at risk of sounding like a broken record – need only to be “taken into account”) is of a different order to the supremacy asserted by the Court of Justice of the European Union over national authorities.  It seems unusual then, that the target of Grayling’s indignation is the supposed denial of supremacy caused by the non-binding influence of decisions of the European Court of Human Rights, rather than the more realistic (though perhaps equally problematic) assertion that legal competence has been ceded in some way to the Court of Justice.  (This is not to suggest that the UK’s position within the EU is not perceived as being problematic – indeed Grayling’s Spectator interview alludes to an intended “renegotiation” of the UK’s relationship with the EU – rather that the legal competence of the Court of Justice has been less the subject of recent attack than that of the European Court of Human Rights, despite its greater coercive influence).

All things told this is a slightly long-winded way of saying three things: (i) that the so-called “supremacy” of the UK Supreme Court over questions of rights is a straw figure set up to demarcate a legal non-problem as a political battle-ground and (ii) that the establishment of a legally “supreme” UK Supreme Court would be every bit as constitutionally problematic as the apparent problem to which it is the mooted solution and (iii) that attempting to explain institutional relationships in the language of legal supremacy increasing offers little other than incoherence.

 Roger Masterman is a Professor of Law at Durham University.

 Suggested citation: R. Masterman, ‘ A Tale of Competing Supremacies’ UK Const. L. Blog (30th September 2013) (available at http://ukconstitutionallaw.org)

 

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Aileen McHarg: Access To Judicial Review In Scotland

aileenReaders of this blog will be familiar with the controversial reforms to the judicial review procedure in England and Wales (discussed by Elliott and by Bondy & Sunkin), premised on the need to reduce the burden it imposes on public services by reducing the time limit for certain types of cases, reforming the permission stage, and increasing the fees charged, and recently implemented by Civil Procedure (Amendment No. 4) Rules 2013, SI 2013/1412.  Judicial review procedure in Scotland currently differs from England and Wales in having no equivalent of the permission stage, nor any fixed time limit within which to bring an application.  However, notwithstanding that the rate of applications for judicial review per capita in Scotland is only around a third of that south of the border – 342 cases in 2010-11 (Scottish Government, Civil Judicial Statistics 2010-11) as against 11,200 cases in England and Wales in 2011 (Ministry of Justice, Judicial and Court Statistics 2011) – the 2009 Report of the Scottish Civil Courts Review (the ‘Gill Review’) noted that there had been a steady increase in the numbers of judicial review petitions and considered that these cases took up a disproportionate amount of court time.  It therefore recommended following England and Wales by introducing a leave requirement and a three month time limit.

These recommendations have now been taken forward by the Scottish Government in its consultation  on the Draft Courts Reform (Scotland) Bill.  Section 84 of the Draft Bill amends the Court of Session Act 1988 to provide that:

  1. An application to the supervisory jurisdiction of the Court of Session must be made before the end of (a) the period of three months beginning with the date on which the grounds arose or (b) such longer period as the Court considers equitable having regard to all the circumstances (section 27A).  In view of the decision in the Buglife case, the Scottish Government decided not to include any overriding requirement that petitions should be brought promptly.
  2. No proceedings may be taken in respect of an application to the supervisory jurisdiction unless the Court has granted leave for the application to proceed.  Leave may be granted only if the Court is satisfied that (a) the applicant can demonstrate a sufficient interest in the subject matter of the application and (b) the application has a real prospect of success.  There is no requirement for an oral hearing at the leave stage, but if leave is refused without an oral hearing the petitioner may within seven days request a review of the decision at an oral hearing before a different judge.  There is also provision for appeal to the Inner House (sections 27B-D).

The proposals have been welcomed by some of the respondents to the consultation  – particularly, unsurprisingly, by public authorities.  However, they clearly create additional barriers to access to judicial review in Scotland, and are open to criticism on two grounds.  First, as with the recent English and Welsh reforms, they are based on inadequate evidence of their necessity.  Secondly, there is a risk of producing unintended consequences that may increase rather than reduce the burden on court time.

Leave

The Gill Review’s rationale for recommending the introduction of a leave requirement was that it would assist in encouraging early concessions by respondents in well-founded cases and provide a means of filtering out unmeritorious applications, thereby freeing up court time to deal more expeditiously with cases in which leave is granted.  A striking feature of both the Gill Review and the Scottish Government’s consultation paper, however, is the complete absence of hard evidence put forward to support the proposition that there is a significant problem in Scotland with unmeritorious cases being brought.  No statistics are given as to the outcomes of judicial review applications, while the disproportionality of the amount of court time devoted to such cases is inferred purely from the fact that they take up a higher proportion of sitting days than the total number of petitions would suggest, without any analysis of the importance or complexity of judicial review applications compared with other types of cases.  The only extended empirical study of judicial review in Scotland (Mullen, Pick & Prosser, Judicial Review in Scotland, 1996), which concluded that neither leave nor a time limit was necessary, is not cited in either paper, and the more extensive English empirical literature is used highly selectively.  Bondy & Sunkin’s research for the Public Law Project, which found a high refusal rate at the permission stage, is relied upon to support the conclusion that the English procedures work well in filtering out unmeritorious claims and prompting early settlement.  But there is little or no discussion of the nuances of that research, nor consideration of its applicability in Scotland.

Bondy & Sunkin themselves are reluctant to conclude that a high rate of refusal of permission is evidence of a high number of unmeritorious applications.  For instance, they note that the refusal rate is significantly higher where cases are decided on the papers rather than at an oral hearing.  They also note the impact of tight time limits in increasing the likelihood of weak claims and artificially inflating the caseload by reducing the time available for settlement.  In addition, neither Gill nor the Scottish Government considers the potential impact of the introduction of a leave stage – and consequent applications for reviews and appeals – on both court time and litigation costs.  Murray Stable, in their response  to the consultation, point out that the English system is both slower and more expensive than the current Scottish process, and that legal aid is not currently available for leave proceedings in Scotland.  Finally, there is no mention of the objection in principle to the introduction of a leave requirement, i.e., that it makes access to judicial review dependent upon the exercise of judicial discretion.  Bondy & Sunkin’s research confirms earlier findings of a high variation in the rate at which permission is granted by different judges.  They attribute this to the subjective nature of the ‘sufficiently arguable’ criterion applied south of the border, and report a widespread perception that judges take account of factors other than the legal merits of cases.  The ‘real prospect of success’ test proposed by the draft Courts Reform (Scotland) Bill would appear to set an even higher hurdle for Scottish applicants to overcome, without being any less subjective.

As the Faculty of Advocates has stated in its response to the consultation, the real problem with judicial review in Scotland is arguably not that there are too many cases, but that there are too few, especially outwith the immigration and asylum field which, as in England and Wales, dominates the judicial review caseload.  Insofar as there is thought to be a problem in that particular area (and again there is no evidence), reforms have already been introduced to try to promote early settlement by requiring prior notification of applications for judicial review to the UK Border Agency.  Moreover, the Court of Session could follow the English lead by transferring more of the immigration and asylum caseload to the Upper Tribunal, but so far has not done so, other than in relation to cases challenging procedural rulings or procedural decisions of the First Tier Tribunal (Act of Sederunt (Transfer of Judicial Review Applications from the Court of Session) 2008, SSI 2008/357).

Time Limits

Although the introduction of a leave requirement seems to impose an unnecessary additional hurdle in the path of applicants for judicial review, the three month time limit would appear to be the more significant change and the greater barrier to access to justice.

As noted above, there is presently no specific time within which an application must be brought in Scotland, but applications can be dismissed for undue delay under the common law doctrine of mora, taciturnity and acquiescence.  Until recently, this was a relatively rare plea in judicial review cases but there has been a marked increase (the reasons for which are not clear) in its use in the past couple of years: a Westlaw search reveals sixteen cases in which the issue was raised since 1 January 2011, compared with only four in the previous two years.  However, mora works quite differently to a statutory time bar.  For one thing, the delay in bringing proceedings must be unreasonable, which is judged in all the circumstances of the case.  Secondly, there must be taciturnity and acquiescence as well as delay – essentially failure to object to the impugned decision and passive acceptance of its consequences.  The plea is therefore successful relatively infrequently, although there is clearly scope for inconsistency in its application.  For example, in McGinty v Scottish Ministers [2011] CSOH 163, a mora plea was upheld in relation to a challenge to the legality of the Scottish Ministers’ conduct of the strategic environmental assessment of their second National Planning Framework brought a year after notice of the assessment was published in the Edinburgh Gazette.  Although the petitioner claimed that he did not become aware of the proposal until seven weeks before he lodged his petition for judicial review, the court held that he ought to have been aware of it earlier.  By contrast, in OWA v Secretary of State for the Home Department [2013] CSOH 52, a mora plea was rejected in relation to a challenge to an immigration decision taken four years earlier.  The petitioner had understandably failed to appreciate the significance of a stamp in her passport, and hence could not be said to have acquiesced in the decision.  As in England and Wales, there can also be considerable uncertainty as to when time begins to run in relation to multi-stage or continuing decisions, and differing judicial attitudes as to the reasonableness of delaying resort to litigation (compare, e.g., Packard Ptnr [2011] CSOH 93  and Portobello Park Action Group Association v City of Edinburgh Council  [2012] CSIH 69.

The Gill Review took the view that mora was undesirably vague and not well-suited to a procedure designed to provide a speedy and effective remedy to challenge the decisions of public bodies.  In such cases, it argued, there was a public interest in challenges being made promptly and resolved quickly, hence it recommended the introduction of a fixed time limit.  Once again, however, there was a dearth of hard evidence offered in support of this proposal.  In fact, the only evidence provided as to the existence of a problem of undue delay was an anecdotal claim by one respondent government agency that it was still being served with applications in relation to immigration and asylum decisions several years after the they had been taken.  This, though, is an area in which the case for fixed time limits is particularly weak because decisions rarely have implications beyond the immediate parties.  Similarly, in response to empirically-based arguments that the three month time limit in England and Wales causes problems, particularly for vulnerable applicants, Gill preferred the viewed expressed by ‘a number of our respondents … that the time limit in England and Wales does not seem to unduly inhibit well-founded claims.’ (para 37).

Of course, the draft Bill does contain provision for the time limit to be waived in appropriate cases.  Nevertheless, a statutory time bar shifts the burden of proof from the respondent to establish that the delay was unreasonable to the petitioner to prove that it was not.  Moreover, there is a worrying suggestion in the Scottish Legal Aid Board’s response to the consultation on the draft Bill that petitions brought after three months are unlikely to obtain legal aid.  Accordingly, the probable consequence of the introduction of a time limit is that, in future, applications which would be heard at the moment will not be brought, or will be refused leave.  In addition, it is bound to produce more litigation concerning whether the time limit has been breached or ought to be waived.

Procedural Exclusivity

Another unintended consequence of the reforms is likely to be increased litigation over choice of procedure.  In Scotland, judicial review is an exclusive procedure for cases invoking the supervisory jurisdiction of the Court of Session.  However, the Supreme Court has recently confirmed in Ruddy v Chief Constable, Strathclyde Police [2012] UKSC 57 that it does not have to be used when the questioning of a public law decision is only ancillary to the establishment of some other form of action.  According to Lord Hope, the test is whether or not the decision complained about has to be reviewed and set aside in order to provide the litigant with a basis for his or her claim.

The danger that cases might be time-barred because they are erroneously brought via the wrong procedure is partially addressed via the proposal in the Consultation Paper to abolish the distinction between ordinary and petition procedure in the Court of Session (and in any case provision already exists for transferring cases into and out of the judicial review procedure – chapter 58.12 of the Rules of the Court).  However, it is likely that there will be an increase in deliberate attempts to circumvent the judicial review procedure and so to avoid the imposition of the time limit.  Since the test laid down in Ruddy appears easier to state than to apply (see, e.g., Shehadeh v Advocate-General for Scotland [2012] CSOH 196), it seems inevitable that more sterile procedural disputes of the type that caused such difficulties in England and Wales in the wake of O’Reilly v Mackman [1983] 2 AC 237 will arise.

Conclusion

It is disappointing to see such an important change to judicial review in Scotland being undertaken on such a flimsy evidential basis, and particularly surprising to see a government ostensibly committed to preserving the distinctiveness of Scots law so willing to follow the English approach, especially in a case where Scottish difference genuinely seems to be worth preserving.  It is probably unlikely that the Scottish Government will be persuaded to change its mind – not least because, as Justice Scotland points out in its consultation response, it will be one of the major beneficiaries of the proposed change.  One can only hope, therefore, that the Scottish Parliament will oblige it to do so.

Aileen McHarg is Professor of Public Law at the  University of Strathclyde.

Suggested citation: A. McHarg, ‘Access To Judicial Review In Scotland’  UK Const. L. Blog (30th July 2013) (available at http://ukconstitutionallaw.org)

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Christopher Forsyth: Principle or Pragmatism: Closed Material Procedure in the Supreme Court

forsyth1 In Al Rawi & Ors v The Security Service & Ors [2011] UKSC 34; [2012] 1 AC 531 the claimants (respondents in the Supreme Court) were bringing civil claims for damages against the defendants (appellants in the Supreme Court) alleging complicity by the defendants in their mistreatment by foreign powers (including detention at Guantanamo Bay). The defendants as part of their defence wished to place before the court “security sensitive material” – presumably the evidence of intelligence agents, or similar, denying the complicity – which for security reasons could not be disclosed to the claimants. Thus the defendants submitted that the court hold a “closed material procedure”. They envisaged that the evidence would be placed before the courts in closed session, i.e. a session from which the claimants and their representatives (and the public) were excluded. In the closed session the claimants would be represented by “special advocates” appointed by the court who would have access to the evidence but would not be able to take instructions from the claimants. Such procedures are controversial since they threaten the fundamental principles of open justice and natural justice. On the other hand, the national interest would doubtless be impaired, in some cases, if intelligence agents gave evidence and their methods and secrets were exposed in open court.

Statute makes express provision for such “closed material procedure” to be adopted by judicial bodies in several cases (for instance, the Terrorism Prevention and Investigation Measures Act 2011, Schedule 4, or the Counter-Terrorism Act 2008, Part 6); but there was no specific statutory provision applicable to civil actions for damages.  Thus the question arose whether the court had power at common law (or under its inherent jurisdiction) to craft such a procedure.  Lord Dyson, giving the lead judgment in which Lords Hope, Brown and Kerr concurred, was clear. He said:

“Closed material procedures and the use of special advocates continue to be controversial. In my view, it is not for the courts to extend such a controversial procedure beyond the boundaries which Parliament has chosen to draw for its use thus far. It is controversial precisely because it involves an invasion of the fundamental common law principles to which I have referred [viz, open justice and natural justice particularly the right to know the case to be answered]. I would echo what Lord Phillips said in Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28; [2010]2 AC 269. ‘How [the] conflict [between full disclosure of the allegations against a party and other aspects of the public interest] is to be resolved is a matter for Parliament and for government, subject to the law laid down by Parliament’.”

That one might have thought was that. In the absence of clear Parliamentary warrant there could be no “closed material procedure” or its concomitant “special advocate”.  But what then is to be made of Bank Mellat v Her Majesty’s Treasury (No. 1) [2013] UKSC 38? Here the Supreme Court, in the absence of an express statutory warrant, held that it had the power to order a “closed material procedure” and indeed went on to hold such a procedure!

What had happened here was that the Treasury had made the Financial Restrictions (Iran) Order 2009 which in effect closed down the UK operations of Bank Mellat, an Iranian Bank, and its subsidiary. The Order was made under section 62 and Schedule 7 of the Counter-Terrorism Act 2008 which provides that amongst many other things if “the Treasury reasonably believes” that “the development or production of nuclear …. weapons in [a] country … poses a significant risk to the national interests of the United Kingdom”  it might give directions which had the effect mentioned. The directions had to be (and were) approved by affirmative resolution of Parliament within 28 days.

This decision could be challenged and was challenged by Bank Mellat by way of a statutory form of judicial review provided for in section 63 of the 2008 Act. The 2008 Act, in Part 6, provided for a “closed material procedure” in such proceedings. And the Treasury “took the view” (which was accepted by Mitting J at first instance) “that some of the evidence relied on by the Treasury to justify the 2009 Order was of such sensitivity that it could not be shown to the Bank or its representatives”; consequently that evidence was dealt before Mitting J by a closed material procedure (and there was a short closed judgment). On appeal to the Court of Appeal that material was dealt in a short closed session.  But now the matter had come before the Supreme Court. Part 6, and in particular section 73 of the 2008 Act, made provision for “closed material procedures” to be adopted in the High Court, the Court of Appeal and the Court of Session. But no mention was made of the Supreme Court. Where was the Parliamentary warrant for “closed material procedures” before the Supreme Court?

Lord Neuberger (with Lady Hale, Lord Clarke, Lord Sumption, and Lord Carnwath concurring), however, held that the Supreme Court had the power to conduct a “closed material procedure”. (Lord Dyson agreed with this outcome.) But here is the interesting part: the Supreme Court (or at any rate the majority) was not, in its view, disregarding or departing from Al-Rawi.  The statutory warrant to hold a “closed material procedure” was found or implied from section 40(2) and 40(5) of the Constitutional Reform Act 2005. Section 40(2) provides that “An appeal lies to the [Supreme] Court from any order or judgment of the Court of Appeal in England and Wales in civil proceedings” (emphasis added) and section 40(5) provides that “The [Supreme] Court has power to determine any question necessary to be determined for the purposes of doing justice in an appeal to it under any enactment.” Thus the majority reasoned: since “section 40(2) provides that an appeal lies to the Supreme Court against ‘any’ judgment of the Court of Appeal… that must extend to a judgment which is wholly or partially closed…[and] in order for an appeal against a wholly or partially closed judgment to be effective, the hearing would have to involve… a closed material procedure;.. such a conclusion is reinforced by the power accorded to the Court by section 40(5) to ‘determine any question necessary … for the purposes of doing justice’, as justice will not be able to be done in some such cases if the appellate court cannot consider the closed material” (Lord Neuberger, para 37). This is a powerful argument. How could the Supreme Court do justice in a case where there had been a “closed material procedure” in the Court of Appeal or at first instance, without looking at that material itself? And, ignoring the closed material, or revealing it before the Supreme Court, were not attractive alternatives.

But the dissenting judges (Lord Hope, Lord Kerr and Lord Reed) took a different view. Naturally much was made of Lord Hoffmann’s canonical words in R v Home Secretary, ex parte Simms [2000] 2 AC 115 at 131: “…the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.” Whatever else might be the case there had been no careful consideration by Parliament in enacting the 2005 Act whether the right to open justice should be overridden (in 2008!).

And Lord Kerr (paras. 124-5) explained why he was not persuaded by the claims of the pragmatic considerations of the majority. He said:

“Pragmatic considerations can – and, where appropriate, should – play their part in influencing the correct interpretation to be placed on a particular statutory provision. But pragmatism has its limits in this context and we do well to recognise them. As a driver for the interpretation of section 40(5) for which the respondent contends, pragmatism might seem, at first blush, to have much to commend it. After all, this is an appeal from courts where closed material procedures took place. How, it is asked, can justice be done to an appeal if the court hearing the appeal does not have equal access to a closed material procedure as was available to the courts whose decision is under challenge? And if one proceeds on the premise that the court will be more fully informed and better placed to make a more reliable decision, why should the Supreme Court not give a purposive interpretation to section 40(5)?

The answer to this deceptively attractive presentation is that this was never the purpose of section 40(5). It was not even a possible, theoretical purpose at the time that it was enacted. It was never considered that it would be put to this use. The plain fact is that Parliament introduced a closed material procedure for the High Court, the Court of Session and the Court of Appeal and did not introduce such a procedure for the Supreme Court. This court has said in Al-Rawi that it does not have the inherent power to introduce a closed material procedure. Only Parliament could do that. Parliament has not done that. And to attempt to graft on to a statutory provision a purpose which Parliament plainly never had in order to achieve what is considered to be a satisfactory pragmatic outcome is as objectionable as expanding the concept of inherent power beyond its proper limits.

“Closed material procedure” and “Special Advocates” will never be popular with lawyers bred, as they should be, with natural justice in their bones. So the courts, and particularly the Supreme Court, will be rightly sceptical of such devices. But Parliament has ordained that such procedures are lawful in certain circumstances. The inevitable tensions and discontinuities between what Parliament has ordained and the instincts of the courts are difficult to resolve. In this fallen world there will never be an easy resolution to this clash between pragmatism and principle. The clash between the protection of fundamental rights and the protection of national security (as well as loyalty to Parliament’s will) will always be acute.  Bank Mellat shows that the pragmatists are, on this issue, in the ascendency. But the issue is still contested and we have not heard the last of it.

In one respect the tension is resolved. Part 2 of the Justice and Security Act 2013 enacted in response to Al-Rawi provides for closed material procedures in civil proceedings; and section 6(11) provides that “relevant civil proceedings” means “any proceedings (other than proceedings in a criminal cause or matter) before (a) the High Court,  (b) the Court of Appeal, (c) the Court of Session, or (d) the Supreme Court” (emphasis added).  Alas, in enacting the Terrorism Prevention and Investigation Measures Act 2011, Schedule 4 (dealing with closed material procedures for TPIM) Parliament was presumably not mindful of Al-Rawi and refers only to the High Court,  the Court of Appeal and  the Court of Session! Presumably in TPIM cases the power to hold closed material procedures will be vouchsafed by section 40(2) & (5) of the 2005 Act.

Bank Mellat prompts a final reflection based on something that is not mentioned in any of the judgments. In R v The Lord Chancellor, ex parte Witham [1998] QB 575 Laws LJ suggested that common law constitutional rights – he had in mind the right of access to the courts but the right to open justice would serve as well -  could only be removed by express words in legislation.  He said: “I find great difficulty in conceiving a form of words capable of making it plain beyond doubt to the statute’s reader that the provision in question prevents him from going to court (for that is what would be required), save in a case where that is expressly stated. The class of cases where it could be done by necessary implication is, I venture to think, a class with no members”. But the bold approach by the majority in Bank Mellat suggests that limitations on constitutional rights may established by necessary implications from the relevant statute.

Christopher Forsyth is Professor of Public Law and Private International Law at the University of Cambridge.

Suggested citation:  C. Forsyth, ‘Principle or Pragmatism: Closed Material Procedure in the Supreme Court’  UK Const. L. Blog (29th July 2013) (available at http://ukconstitutionallaw.org)

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John Stanton: The General Power of Competence and Reshaping Local Public Service Provision

johnI wrote back in March about the way in which, despite efforts to decentralise autonomy to the local level and to inspire and empower citizens to get involved in local politics, Central Government seems reluctant to ‘let go’ and to give local authorities a free rein in relation to the exercise of local powers. New neighbourhood planning measures provided suitable example.

On a slightly different aspect of local autonomy, news comes this week that Communities and Local Government Secretary of State, Eric Pickles, has been catching up on the way in which councils are using the General Power of Competence (GPC), introduced by the Localism Act 2011 as a replacement to the well-being power.

The Chairman of the Local Government Association (LGA), Sir Merrick Cockell, notes that “the GPC is giving councils greater freedom and confidence to think outside the box, be innovative and develop new services and partnerships … However, despite the impressive examples of GPC use … it remains limited by constraints set by central government. Easing those restrictions would certainly help encourage others to unlocking the potential of using it.” Such restrictions include a limitation on the number of company structures permitted; charges made under the GPC only being made for discretionary services which recover costs but which do not generate profit or surplus; and a restriction to the effect that the GPC does not extend the ability of councils to create byelaws or undertake enforcement.

In a sense, then, it’s the same story – the government trying its utmost to push power down to the local level and to encourage councils to take the initiative and lead forward change and improvements through innovative use of local powers; but in reality, due to excessive restrictions, local government is only able to act innovatively and responsively within parameters set by centralised authorities, far removed from local problems and issues.

Consideration of the way in which the GPC has been used, however, comes at a time when the relationship between Central and Local Government, particularly within the context of local council funding, is very much at the fore.

With the Coalition recently announcing that local councils would suffer a 10% cut in funding from Central Government, serious consideration needs to be given to the way in which local government can operate effectively. Whilst such cuts are inevitable during these financially constrained times, coupled with over prescriptive and centralised supervision, there is perhaps a danger that local authorities could reach a point where they are too reliant on central government telling them what to do within the financial limits also set by Whitehall.

One solution, discussed at the recent LGA Conference, would be to merge key government departments that provide public services, predominantly through local councils, and give local authorities the power to decide issues of funding and public service provision for themselves. This would shift the emphasis away from Ministers and a large number of civil servants, currently controlling local public service provision, and ensure that such power is directed and controlled at a more appropriate level, jointly by those at Whitehall and the local governmental level. Whilst creating what has been termed ‘an office for England’ would be a dramatic change with far reaching consequences, the key objective of giving local authorities greater power and more say over their funding could more realistically be achieved. It would relieve decision and policy makers of the ‘one size fits all’ approach and empower councils to allocate money appropriate for a particular policy area.

There is, as was noted at the LGA Conference, an awful lot of waste generated by the relationship between Central and Local Government which comes as a result of wanting to push power down to the local level at the same time as ensuring that Whitehall retains directing control over the broad framework of public service provision. Eradication of such waste would be a further by-product of Sir Merrick’s proposal, which could lead more widely to a much-needed redrafting of the constitutional relationship between Central and Local Government and perhaps finally give effect to what many recent governments have promised – power to the people.

John Stanton is a lecturer in law at City University, London.

Suggested citation:  J. Stanton ‘The General Power of Competence and reshaping local public service provision’ UK Const. L. Blog (27th July 2013) (available at http://ukconstitutionallaw.org).

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