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ALBA/UKCLA Seminar: Right to an Oral Hearing

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

 

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Graham Gee: The Lord Chief Justice and Section 5 of the Constitutional Reform Act

graham-gee-webThe Constitutional Reform Act redrew relationships between the senior judiciary and Parliament in a number of ways. Amongst the most significant was removing the right of the LCJ to speak in the Lords. Earlier this month, the new LCJ Lord Thomas repeated the lament of his immediate predecessors that it was a mistake to deprive the LCJ of the right to address Parliament on the floor of the House on important matters relating to the administration of justice. In this context, some have read the LCJ’s suggestion of a new approach to s5 of the CRA as significant. Drawing on interviews conducted between 2011-13 as part of an AHRC-funded project on The Politics of Judicial Independence, I want to shed some light on tensions that have arisen about the use of s5.

Section 5

Under s5, each of the LCJ, the LCJ for Northern Ireland and the Lord President “may lay before Parliament written representations on matters that appear to [the officeholder] to be matters of importance relating to the judiciary, or otherwise to the administration of justice”. In debates ten years ago on the bill that became the CRA, the then LCJ and Lord Chancellor—Lord Woolf and Lord Falconer—both suggested that s5 would be used rarely and only for high profile matters of serious concern to the judiciary. Subsequently, both Lords Phillips and Judge appeared to confirm this by describing s5 as a “nuclear option” to be used only in the face of a serious threat to judicial independence or the rule of law. (See here and here). But, in practice, neither used s5 in this way, invoking it instead for the more humdrum matter of laying before Parliament periodic reports on the management of the judiciary. Behind this lies a surprising and even at times rather silly disagreement between senior judges and parliamentary authorities; or what an interviewee called “a storm in a teacup”.

“A Storm in a Teacup”

In late 2007 and early 2008, there were lengthy discussions between the LCJ, the Procedure Committee, the Journal Offices in the Commons and Lords and others about the most appropriate way of getting the LCJ’s reports before Parliament. At issue were rival interpretations of the proper scope and purpose of s5. Reversing his previous position, Lord Phillips now argued that s5 was not only to be used in “a crunch situation” to raise pressing issues of concern, but that it also supplied a statutory mechanism whereby the LCJ can lay periodic reports before Parliament. The clerks did not dispute that a report can be laid under s5, provided it contained “written representations”. Rather, they relied on statements by ministers and Lord Phillips himself to argue that s5 was only for raising serious concerns.

Driving the clerk’s arguments were rules regulating who has authority to formally “lay” papers in the Commons. Under these rules, ministers are effectively the only officeholders authorized to do so. (See this guidance from the Journal Office from April 2009). The clerks suggested instead that the Speaker and the Lords Speaker should place the report in the libraries of the Commons and Lords as a deposited paper on behalf of the LCJ. Lord Phillips initially agreed to this, only to change his mind shortly before publication of his first report, insisting that he should be able to lay his report independently, without relying on the Speaker, the Lords Speaker or anyone else. Lord Phillips’s eleventh-hour reversal surprised the clerks. As one interviewee observed, “it was frankly all a bit of shambles, and there was a lot of misunderstanding and a lot of crossed wires”. In the end, Lord Phillips invoked s5 to lay his report before Parliament, with this fact noted on the face of the report itself—although, as one interviewee told us, in reality what actually happened was that the report was laid before the House on his behalf by the Clerk of the House.

In 2009 Lord Judge’s officials approached clerks in the Commons to discuss using s5 to lay the then new LCJ’s report before Parliament, but they were “sent away with a flea in their ear”, leading to what an interviewee labelled “a bit of a tiff”. In 2010, Lord Judge issued his report, but without using s5. Subsequently he initiated negotiations with the House of Lords authorities, agreeing with them that in the future the Lords would accept reports issued under s5. Two years later, a similar agreement was reached with the Commons, and in both 2012 and 2013 the LCJ’s reports were laid before both Houses under s5.

This back-and-forth, together with all of the tensions and frustration it generated, is aptly described as “a storm in a teacup”. But like many a storm in a teacup, it reveals something about the actors involved as they fumbled to redefine working relationships following the 2005 changes. These relations have been redefined less in a systematic fashion, and more by touch-and-feel, with missteps along the way. These missteps resulted largely from a failure to understand the other’s concerns and anxieties. The judges underestimated the cautiousness of the clerks and their concern to protect Parliament’s privileges and customs. The clerks in turn did not adequately grasp the importance that senior judges placed on finding new ways of communicating with politicians, especially in light of changes to the role of Lord Chancellor. Matters were not aided by successive LCJs sending mixed messages on s5. Similar patterns can be seen in other aspects of judicial-legislative relations: some parliamentary officials feel that senior judges have sent mixed signals on the appropriate scope of questioning of judicial witnesses by select committees.

Relations are improving, with the agreement that was eventually reached over s5 evidence of this. And careful coordination is taking place on both sides to nurture mutual understanding of and respect for each other’s concerns. The previous LCJ, Lord Judge, and the current Clerk of the House of Commons, Sir Robert Rogers, are both more outward looking than their predecessors and have developed more frequent informal contacts. To aid a better mutual understanding, the Clerk of the House has begun holding regular informal meetings with the LCJ and President of the UK Supreme Court, where topics discussed have included sub judice, the use of parliamentary materials in court and parliamentary privilege. The new guidance from the Judicial Executive Board in 2012 on judicial appearances before select committees is in part a product of these contacts.

When should s5 be used?

The tone of his evidence before the Justice Committee earlier this month suggests that Lord Thomas wants to build on this more outward-looking approach. In his evidence, he referred to the enduring respect that exists between Parliament and the judiciary, but hinted at concern about a lack of understanding between them. It was in this context that the LCJ suggested that he took a different view on s5 than his predecessors, eschewing the description of it as a nuclear option. He did not elaborate on the circumstances in which he envisaged using s5, although it is safe to assume that he will continue to invoke s5 to lay reports before Parliament. Although it is sensible for the senior judiciary to search out new and fruitful ways of communicating with Parliament, s5 is best retained as a measure of last resort.

The reason can be simply stated: the LCJ already has a suite of tools available for articulating concerns to ministers, parliamentarians, lawyers or the public at large. These include monthly meetings with the Lord Chancellor and, in a fairly recent innovation, twice yearly meetings with the Prime Minister. As and when serious concerns arise, the LCJ can request an extraordinary meeting with the PM. This happened in 2001, when the LCJ and a team of senior judges went to 10 Downing Street and persuaded Tony Blair to abandon a planned reorganization in Whitehall under which responsibility for the courts would have shifted to the Home Office. Other tools include speeches, press conferences and appearances before select committees. Where bills concern the administration of the courts or constitutional matters pertaining to the judiciary, judges already routinely provide evidence—oral and written—to committees. The chairs of both the Commons Justice and the Lord Constitution Committees have indicated that the LCJ can approach them to request an urgent session to hear from the LJC on topics of serious concern to the judiciary. Under HMCTS’s Framework Document, special processes are now also available to the LCJ to raise concerns about court funding.

These tools will usually be sufficient for voicing judicial concerns. They will alert stakeholders, generate coverage in the press and often secure favorable results for the judges. Absent a real constitutional crisis, it is difficult to imagine what using s5 could add; almost always there will be more appropriate, and more effective, ways of highlighting judicial concerns short of submitting formal representations to Parliament. A prudent LCJ will engage with ministers in private first, and only slowly escalate the matter in public. When relations with government are proving troublesome, the LCJ must decide whether to raise a concern publicly, how and where, reflecting on whether putting ministers on the spot in public will advance the judicial cause over the long haul. Knowing how to advance judicial interests inside Whitehall and Westminster requires political judgment. Almost always the LCJ will be well advised to avoid escalating matters through s5. Above all, there is something to be said for having an identified measure of last resort recognized by ministers, MPs, peers and civil servants as a tool that the LCJ would only use in the most strained circumstances. Seeking to employ 5 as something other than a measure of last resort to be used only in the most serious circumstances ultimately risks undercutting its potency.

A Final Word on the LCJ’s Reports

There are more appropriate ways than s5 for ensuring that the LCJ’s reports are laid before Parliament. Only four such reports have been prepared over nearly 10 years. They offer a selective, high-level account of the stewardship of the judiciary, with their irregular frequency rendering it impossible to compare performance of the senior judiciary over time. Successive LCJs have resisted producing the reports annually on the grounds that it would be administratively burdensome. This seems a poor excuse given the wide array of management and leadership responsibilities exercised by, or in the name of, the LCJ. It seems that Lord Thomas now intends to issue reports annually. Talk is cheap: Lord Phillips made a similar commitment in 2007, only for his successor to resile from it. To ensure regular reports, the LCJ should be under a statutory duty to produce an annual report similar to that on the Senior President of Tribunals, except that it should include explicit statutory authority to enable the LCJ to lay reports directly with each House.

 

Graham Gee is a law lecturer at the University of Birmingham. In 2011-2013 he worked with Robert Hazell, Kate Malleson and Patrick O’Brien on an AHRC-funded project on The Politics of Judicial Independence.

 

 Suggested citation: G. Gee, ‘The Lord Chief Justice and Section 5 of the Constitutional Reform Act’ U.K. Const. L. Blog (14th April 2014) (available at: http://ukconstitutionallaw.org/).

 

 

 

 

 

 

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Stephen Tierney: Constituting Scotland: A Retreat from Politics?

stierneyRE-POSTED FROM DISCOVER SOCIETY.

The Scottish Government has recently announced its intention to introduce a draft Scottish Independence Bill into the Scottish Parliament which will set out an interim constitution for Scotland in the event of a Yes vote in September’s referendum. It will also describe the process by which a permanent written constitution will be drafted following the Scottish Parliament elections in 2016. The announcement by Deputy First Minister Nicola Sturgeon that this latter process will be participative and collaborative is to be welcomed, as is the Government’s commitment to the principle of the sovereignty of the people. In this article, however, I wish to challenge the modern inclination to embed more and more values beyond the reach of legislatures, arguing that popular sovereignty is best maintained by modest constitutional arrangements which leave as many policy choices as possible to elected parliaments.

As yet of course we don’t know what the final constitution will contain, but if Scotland does become independent it will do so at a time when more and more countries are opting for ever more elaborate written constitutional documents. It seems that this fashion is likely to rub off on any constitutional convention established to draft a Scottish constitution.

The Scottish Government in its White Paper, Scotland’s Future has already suggested that Scotland’s constitutional structure is likely to be radically different from the current unwritten arrangement of the United Kingdom, entrenching issues as specific as a minimum standard of living, a ban on nuclear weapons and environmental protections. In this desire it is not alone; many constitutional activists at UK level would love such an opportunity to turn the UK constitution into a rigid structure of supposedly settled values, and who knows, Scottish independence may well provide that opportunity should the break up of the state prompt a moment of fundamental constitutional reconstruction also at UK level.

I should say immediately that my argument is not against a written constitution for Scotland per se. In the event of independence some form of foundational written document will be needed to replace the Scotland Acts of 1998 and 2012; even if an unwritten constitution were considered desirable, it is simply impossible today to replicate the conditions under which the UK Parliament acquired its authority. The powers of the Scottish Parliament and Scottish Government will require to be defined, as will the court structure, its hierarchy and the limits of its jurisdiction. A proposal to make provision for local government (proposed by the White Paper) would also fit within this model of a limited, institution-framing constitution; all of which would serve as a democracy-facilitating rather than a democracy-constraining set of provisions. But is it necessary to go beyond such a minimal constitutional model which would still leave policy choices to the new parliament? A new constitution will be needed, but it does not require to contain detailed policy issues which should rightfully remain the preserve of the elected parliament.

Notably the White Paper anticipates a document that will collate a very broad range of principles and detailed policies. For example:

  • entitlement to public services and to a minimum standard of living;
  • protection of the environment and the sustainable use of Scotland’s natural resources;
  • a ban on nuclear weapons being based in Scotland;
  • rights in relation to healthcare, welfare and pensions;
  • children’s rights; and
  • rights concerning other social and economic matters, such as the right to education and a Youth Guarantee on employment, education or training.

And this captures only a few of the policy preferences that will be put on the table during any drafting process. Certainly all of these issues will be for any constitutional convention drafting the constitution to determine, but the very fact that the White Paper considers such detailed policies to be appropriate for constitutional protection will serve to invite others to put forward their particular agendas and preferences, and these may well find their way into a new constitution, no matter how specific, contingent and deeply contested they may be.

I would like to sketch very briefly six key concerns with such a detailed model of constitutional codification:

  • legitimacy
  • judicial supremacy
  • rigidity
  • the stifling of political debate
  • a marginalisation of the political power of citizens, and
  • the creation of a constitutional battleground.

First, it seems highly questionable from the perspective of democratic legitimacy that the first generation of post-independence Scots should take upon themselves the power to crystallise a broad range of current predilections – some of which may well be fads – as constitutional principles. This will immediately constrain the decision-making capacity of successive generations of voters across a potentially vast array of policy issues.

Secondly, by constitutionalising specific values and policies, the constitution will significantly ramp up the powers of judges. The authority to resolve disagreements which are currently matters of political deliberation will be handed to a small unelected group which is arguably both unsuited and, in democratic terms, unentitled to determine these issues.

Thirdly, such a constitutional arrangement would bring a radical transformation to the constitutional culture of the country itself. Scots would be leaving what is arguably the most flexible constitutional system in the world and creating potentially one of the least flexible. It is fashionable (mainly among academics) to criticise the UK constitutional system precisely because of its unwritten form and the concomitant privilege given to the Westminster Parliament as sovereign law-maker. But this model has worked very well over several centuries, allowing the UK body politic to adapt itself smoothly to new developments: the creation and amendment of the devolution settlements for Scotland, Wales and Northern Ireland since 1998, and the conclusion of the Edinburgh Agreement paving the way for the independence referendum, being good examples. The principle underpinning parliamentary supremacy is a sound one: it is for Parliament, elected by the people, to debate and determine how law should manage competing political and moral values. If Parliament later changes its mind, this legislation is open to amendment or repeal by the same process. A written constitution replaces this with a form of rigidity which could lead to constitutional stasis. Furthermore, we also don’t know how deeply entrenched the new Scottish constitution will be because the convention which will draft the constitution will no doubt also determine its amendment procedure. But there is now a tendency around the world to make certain constitutional provisions virtually unamendable. At the very least, any issue given constitutional protection in a new Scottish state will be very hard to shift; that after all is the point of constitutional entrenchment. One mechanism which does serve to keep the people involved in constitutional deliberation is the referendum. It will be interesting to see what role, if any, is intended for referendums in the process of constitutional amendment under any new arrangements.

Beyond this, there is a danger that a highly detailed constitution can serve to supplant, and in so doing foreclose, political debate. Later attempts to amend issues which have been accorded constitutional protection will not only be difficult in practical terms but could be burdened with the stigma of illegitimacy. A constitution is not, after all, merely a regulatory device. It sets out the values of the state (particularly when it is a new state), and in doing so can help to shape the public identity of citizens. Once something is entrenched in a constitution it can become reified as a moral principle that transcends transient policy choices; extolled as a metaphysical value, the merits of which are rendered unimpeachable and to which citizens are called upon to owe unswerving allegiance. To campaign to amend such principles can lead to charges of disloyalty to the constitution and the political system itself. Incidentally, another recent move is to suggest that all holders of public office must pledge allegiance to the constitution and to its provisions: this is a particularly pernicious innovation, presenting the constitution as modern day Test Act, transforming dissent into heresy. It is to be hoped that this form of intolerance will be disavowed in any move towards a constitution for Scotland.

This raises a fifth issue: why do so many issues need to be entrenched beyond the decision-making competence of ordinary citizens? If matters of wealth distribution, international responsibility and good environmental policy are the preference of a majority of right-thinking people, why not leave it to the Scottish Parliament to legislate in these areas? Is there a failure of trust in the capacity of the people and/or the Parliament of an independent Scotland to make the right decisions? The rush to elevate so many issues beyond the realm of the political would seem to demonstrate a lack of confidence in a new country. Should the first step after ‘independence’ really be a detailed circumscription of the areas over which the Scottish people can, from generation to generation, determine and re-determine their own policies, in order to ‘protect’ them from their own ignorance or poor judgment? If Scots are fit for self-government then surely they are big enough and old enough to build their future through the rough and tumble of the political process.

A final danger is that if a signal is sent that the constitution is intended to micro-manage political and moral values then the constitution-drafting process could well become a battle for the soul of the country. The birth of the state could lead to a culture war resulting in a sharp delineation between victors and losers, and in turn leaving a large number of people feeling excluded from an elaborate, highly specific and deeply partial vision of national identity solidified in the constitution. Such a dispute could be just as acute, or indeed more acute, than the referendum campaign itself. It is not hard to imagine that certain pressure groups will be glad for the opportunity to see their own value preferences privileged within a constitution, placing these beyond the opposition of a simple majority of the people or their elected representatives. This, as I say, is a parlous game and a potentially undemocratic (as well as an entirely avoidable) one. It risks the drafting process being heavily influencedby the most vocal and best organised interest groups, including those which cast their opponents not only as wrong but as bad, thereby inhibiting debate and claiming that political victories which they manage to achieve are thereafter morally unquestionable and immune from any residual dissensus. By this construction it is not in reality the founding generation that gets to play for keeps, but rather activist elites within this generation which may well be both unelected and unrepresentative.

What then of the proposed process by which such a detailed constitution will come about? Until the Scottish Independence Bill is published we must rely upon the White Paper which suggests that a constitutional convention will ‘prepare the written constitution’ following the elections to the Scottish Parliament of May 2016 (some six weeks after Independence Day, set for 24 March). As yet we don’t know much about the proposed convention other than that it is intended to be ‘open, participative and inclusive’ and that the new constitution ‘should be designed by the people of Scotland, for the people of Scotland’. Given the potential that a highly detailed document will emerge from this convention, the composition of this body, who decides on its composition, how it deliberates and how it reaches decisions will each be a vital, and potentially deeply contentious, issue. We should watch keenly to see how the Scottish Independence Bill approaches these issues.

Independent statehood will itself be a massive step. Citizens will have to reorient their focus away from Scotland’s relationship with the UK political system, addressing one another in all their diversity as co-authors of a new polity. It should be a time for modesty and moderation, to take stock and consider the future carefully, to respect other views, to accommodate the deep differences that have always marked Scottish society but which have not been fully vocalised during a period in which attention was diverted from internal identities towards external influence. It will also be a time to heal divisions that may still be sensitive following the referendum campaign. I would counsel against rushing into an expansive process of constitution-building. Once the essential organs of government have been established, why not leave the democratic will of the people, expressed through their Parliament, to shape policy for the new state? It seems strange that the newly won autonomy of an independent people should be immediately truncated by the deep entrenchment of a highly partial set of policy preferences. The September referendum in itself encapsulates the spirit of vernacular politics – letting the people decide. If independence comes about, why would we abandon this inheritance?

 

Stephen Tierney is Professor of Constitutional Theory at the University of Edinburgh and Director of the Edinburgh Centre for Constitutional Law.  He is currently ESRC Senior Research Fellow under theFuture of the UK and Scotland programme. His book Constitutional Referendums: The Theory and Practice of Republican Deliberation has just been released in paperback by Oxford University Press.

Suggested citation: S. Tierney, ‘Constituting Scotland:  A Retreat from Politics?’ U.K. Const. L. Blog (8th April 2014)  (available at  http://ukconstitutionallaw.org/).

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Richard Ekins: Amnesty and Abuse of Process

RichardEkins_profileOn 21 February 2014, Mr Justice Sweeney ordered a stay in the proceedings against John Anthony Downey, who had been charged with four counts of murder and one of doing an act with intent to cause an explosion. The charges related to the 1982 Hyde Park bombings. This post briefly explores the judgment’s constitutional significance.

Mr Downey was one of the so-called “on the runs” (or “OTRs”), that is, persons suspected of but not charged with offences relating to the Troubles, or persons charged who thereafter escaped, or persons charged and convicted who thereafter escaped. In accordance with the Good Friday Agreement, the Northern Ireland (Sentences) Act 1998 made provision for early release of some prisoners then serving sentences for offences relating to the Troubles. However, no such provision extended to the OTRs. Sinn Fein argued this was an anomaly, and the British Government, at first in private but then in public, agreed.

In an attempt to deal with the anomaly, the Government developed an “administrative scheme” whereby the authorities would review a list of names put forward by Sinn Fein, with a view to determining if there was sufficient evidence to prosecute and perhaps also whether any prosecution would be in the public interest. Successive Attorneys-General noted that there could be no amnesty apart from legislative action and that no decision to prosecute could be made about a class of person as opposed to some particular case. Reviewing the evidence in each case proved tricky, such that the focus shifted instead to whether the person was wanted by any police force in the United Kingdom.

The Government proposed a kind of amnesty by way of the Northern Ireland (Offences) Bill, introduced to Parliament in November 2005. However, the Bill was widely opposed, with even Sinn Fein, which had agitated for its introduction, withdrawing support in view of its extension to security personnel. Having withdrawn the Bill, the Government returned to the administrative scheme, reviewing the position of each of the remaining OTRs, including Mr Downey, and sending to some a standard letter to this effect:

 “The Secretary of State for Northern Ireland has been informed by the Attorney General that on the basis of the information currently available, there is no outstanding direction for prosecution in Northern Ireland, there are no warrants in existence nor are you wanted in Northern Ireland for arrest, questioning, or charge by the police. The Police Service of Northern Ireland are not aware of any interest in you from any other police force in the United Kingdom. If any other outstanding offence or offences came to light, or if any request for extradition were to be received, these would have to be dealt with in the usual way”.

 In 2007, such a letter was sent to Mr Downey. The letter was in error because in fact he was still wanted by the Metropolitan Police in relation to the Hyde Park bombings. Mr Justice Sweeney termed the error in question “catastrophic”, at [173], and understandably much attention has been paid to the error, which remains somewhat mysterious. Having received this letter, Mr Downey travelled within the United Kingdom a number of times, before being arrested in May 2013, passing through Gatwick Airport.

Much of the judgment’s 57 pages concern the background to the administrative scheme in general and the position of Mr Downey in relation to the scheme in particular. The main legal question concerned whether it would be an abuse of process to allow the prosecution to proceed, viz. whether “it offends the court’s sense of justice and propriety to try the accused in the particular circumstances of the case” (R v Maxwell [2011] 1 WLR 1837, per Lord Dyson at [13]). Mr Justice Sweeney noted, at [147], but did not analyse in detail, the various cases on abuse of process which turn on breach of a promise not to prosecute. In a critical passage, at [175], he reasoned that while “the public interest in ensuring that those who are accused of serious crime should be tried is a very strong one”, in this particular case:

 “it seems to me that it is very significantly outweighed in the balancing exercise by the overlapping public interests in ensuring that executive misconduct does not undermine public confidence in the criminal justice system and bring it into disrepute, and the public interest in holding officials of the state to promises they have made in full understanding of what is involved in the bargain”.

 There is to be no appeal, which the Attorney-General maintains would certainly fail. However, the First Minister of Northern Ireland, Peter Robinson, has been “incandescent with rage” on hearing about the administrative scheme (the relative secrecy of which is disputed), and his threat to resign has prompted the Prime Minister, David Cameron, to announce an inquiry into the scheme, to be led by Lady Justice Hallett.

The administrative scheme seems to me in urgent need of close examination, for which the stay of proceedings has been the spur. Still, it seems to me a pity that there is to be no appeal for, with respect to the Attorney-General, the decision was certainly contestable.

Consider again the reasoning of Mr Justice Sweeney, which turns, without extensive elaboration, on the public interest in (a) ensuring that executive misconduct does not undermine public confidence in criminal justice and (b) in holding officials to promises they make. The abuse of process jurisdiction is not disciplinary, but the gravity of executive wrongdoing is relevant, for that gravity goes to the integrity of the resulting trial and thence to public confidence in the justice system. What was the executive misconduct here? It was incompetence in relaying (and correcting a misstatement about) the facts about the interest other police forces had in Mr Downey. There was no intention to deceive, no sharp practice, no unconscionable treatment of the defendant. The misconduct may well shake public confidence in the criminal justice system – but only because it has resulted in Mr Downey’s effective immunity to prosecution by reason of the stay. Absent that consequence, I suggest that the incompetence in question would be thought problematic but not such as to undermine public confidence. However, perhaps public confidence is merely the label one gives to any process that would be disreputable or otherwise unconscionable. That is: the actual confidence of the actual public is irrelevant.

Was prosecution in this case disreputable, unconscionable? It is hard to see how if the executive misconduct was incompetence in communicating facts about the intentions of other police forces, facts to which the person in question had no lawful right and on which he was not lawfully entitled to place any reliance. The judgment turns instead, it seems to me, on tacitly characterising the misconduct in question to be no mere incompetence in conveying facts but rather to be the making and breaching of a promise not to prosecute. Mr Justice Sweeney, at [173], takes Mr Downey – like all the other recipients of the standard letter – in effect to have been unequivocally assured that unless new facts came to light he would not be prosecuted in relation to offences predating the Good Friday Agreement. The letter would seem to state no such thing, but it is plausible that it may have been intended to convey this and to have been understood to convey as much.

Say the point of the letter was to promise Mr Downey (as with others who received similar letters) that he would not be prosecuted. It is not obvious that this is a promise that the court should respect, which it should effectively enforce by way of its jurisdiction to avoid an abuse of its processes. The discretion to prosecute may of course be exercised so as not to prosecute, if, after considering the sufficiency of evidence and the public interest, the prosecutor chooses to refrain from exercising his or her legal power to initiate proceedings. However, apart from any statute of limitations, this exercise of the discretion does not extinguish the continuing legal power to initiate proceedings, which may be exercised quite apart from the discovery of any new evidence. Enforcing a promise not to prosecute is to uphold a fetter on what should be a continuing discretion. (I note also that enforcing the promise in this case may permit officials in Northern Ireland to bind prosecutors in England; perhaps the unity of Her Majesty’s Government supports this outcome, although it may be hard to square with the constitutional position of prosecutors in England.)

Is there not then a public interest in holding officials to the promises they make “in full understanding of what is involved in the bargain”? Here, there was no “bargain”, not only because the relevant officials were mistaken about the relevant facts but also because there was no exchange. Nothing was required of Mr Downey in exchange for this “promise” nor was anything undertaken. The judgment mentions that he was a supporter of the peace process, but such support was not a quid pro quo of immunity. And there would be very real dangers to the rule of law in respecting such bargains not to prosecute. True, there are cases in which breach of a promise not to prosecute has been held to be an abuse of process, but those cases involve detrimental reliance. The reliance in this case was Mr Downey’s entry into the jurisdiction in the mistaken belief that he was not wanted by the police. This is sharply different to volunteering evidence that incriminates oneself or cooperating with the authorities in a way that risks life and limb or is otherwise costly. The present case is analogous instead to coming out of hiding – ceasing to flee the reach of the law – in the mistaken belief that proceedings will not be initiated. The law should have no respect for any such “reliance” and the extra-territorial dimension here does not change matters.

The situation would be different had the promise in question been a deception intended to lure the defendant out of hiding or into the jurisdiction, for in that case the judicial process would plausibly be thought to be being abused, to rest on unconscionable executive conduct. The matter might remain finally balanced for recall that the jurisdiction is not disciplinary and the public interest in prosecuting serious crimes may (and should) often be decisive.

There was never any executive power to provide an amnesty for the OTRs or anyone else. The Government’s efforts to secure an amnesty by legislation failed, hence it may have attempted to square the circle by way of an administrative scheme that provided information to the OTRs about prosecutorial decisions already made or about the intentions of police forces but which did not amount to an assertion of immunity. The irony of this judgment would seem to be that it in effect confers on the executive a legal power to realise an amnesty apart from legislative action: the act of assuring someone that he will not be prosecuted, notwithstanding the absence of any power to grant an immunity to prosecution to that person, has the effect that he cannot lawfully be brought to trial.

Perhaps Mr Justice Sweeney was right to stay these proceedings and perhaps the Attorney-General was right that any appeal against that judgment must fail. All the more reason then, one might say, to review urgently the administrative scheme with a view to securing the rule of law and to avoid instituting or maintaining an unlawful amnesty by way of the courts’ jurisdiction to avoid an abuse of process.

 Richard Ekins is an Associate Professor in the University of Oxford and the TC Beirne School of Law, University of Queensland.

Suggested citation: R. Ekins, ‘Amnesty and Abuse of Process’ U.K. Const. L. Blog (3rd 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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Cambridge conference on Public Law: Process and Substance

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In September 2014, the University of Cambridge’s Faculty of Law and its Centre for Public Law will host a major international conference on Public Law. Following an outstanding response to the call for papers, the conference convenors are delighted to be able to publish the conference programme. The conference will bring together around 60 speakers—along with approximately 100 other participants—from across the common law world, to engage in debate on the theme of “Process and Substance in Public Law”. The conference will consist of four plenary sessions and fifteen parallel panel sessions. A full list of speakers, together with the titles of their papers and abstracts, can be found on the conference website here.

Information about how to register for the conference, together with a link to our secure online booking facility, can be found here. Any queries about registration that are not answered by the information on our website should be directed to the conference administrator via publiclawbookings@law.cam.ac.uk.

Further information about the conference can be found on our website. Updates are posted to our Twitter account: @PublicLawConf. The conference convenors are very grateful to Hart Publishing for their generous sponsorship of this event.

Professor John Bell, Dr Mark Elliott and Dr Jason Varuhas (convenors) 
Dr Philip Murray (assistant convenor).

 

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Call for Papers: Gilbert + Tobin Centre of Public Law 2014 Postgraduate Workshop in Public Law Call for Papers

The Gilbert + Tobin Centre of Public Law in the Faculty of Law, University of New South Wales invites abstracts for its 2014 Postgraduate Workshop in Public Law which will be held on 17-18 July. The Workshop is an opportunity for higher degree research students in the field of public law to gain experience in presenting their work to their peers and the wider academic public law community in a critically constructive yet supportive environment. While there are several generalist conferences held each year which postgraduate students can attend, the Centre’s biennial Postgraduate Workshop in Public Law is focused on public law issues and as such is an opportunity for students to network with others working in their area.

We invite abstracts from currently enrolled postgraduate research students (Masters, PhD and SJD students) studying full-time or part-time in the field of public law. We welcome abstracts that bring a constitutional or administrative law focus to a range of contemporary issues such as human rights protection, native title and indigenous land rights, national security, federalism, refugees and migration law, executive power, electoral law, and the judiciary.

The Workshop will follow a roundtable discussion-based format, with presenters having 15-20 minutes to speak and then ample time being left in each session for questions and discussion by all participants. The event thus provides an opportunity for participants to receive detailed feedback on their work and establish what will hopefully become an ongoing dialogue with others researching in the field. In preparing abstracts, presenters should bear this format in mind. Ideally they should aim to briefly convey the broader context of their thesis before focussing on a discrete aspect for more detailed consideration. Methodological or substantive issues may be selected as the basis of the presentation. The collected abstracts from the Workshop will be published online at the Gilbert + Tobin Centre website, enabling further contact between those attending the Workshop and others interested in their research.

We typically receive more proposals for papers than we are able to accommodate in the program, so abstracts will be refereed for clarity and suitability to a workshop focussed upon public law (broadly defined). Upon acceptance the presentations will be organised into thematic streams which will comprise the bulk of the final program for the Workshop.

Keynote

The 2014 Workshop will open with a keynote address by Professor Kim Rubenstein from the Australian National University, reflecting on her research in the public law field and how this speaks to the experience of conducting higher degree research in public law. Her paper will examine different conceptions of citizenship and membership in Australian public law and public life.

Logistics and Registration

The event, including a dinner for Workshop participants on the evening of 17 July, is FREE to all delegates, who are asked to cover their own costs for accommodation and travel to Sydney. Some limited funds are available for travel assistance to those delegates who can make a case based on special need. But we request that support is sought in the first instance from a delegate’s home institution.

To register, please send the following to gtcentre@unsw.edu.au, being sure to put ‘Postgraduate Workshop’ in the subject line:

• Your name, institutional affiliation and contact details; and

• a brief abstract of your paper (max. 400 words).

Registrations with abstracts must be submitted by 19 May 2014. Acceptance will be confirmed by correspondence no later than 2 June.

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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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Strathclyde/LSE: Crowd-Sourcing the UK Constitution – or Indeed a Scottish One

Expert Panel at the University of Strathclyde

Wednesday 19 March, 6 – 8 pm

If Scotland does choose independence it will need to devise a new constitution. There is no British precedent.  The UK has no constitution written down in one document. Instead it has laws, conventions, practices, activities scattered all over the place that constitutional lawyers gather together and describe as the UK constitution. In a unique project, LSE’s Institute of Public Affairs (IPA) and Department of Law have come together to pioneer the crowdsourcing of a new UK constitution, in other words to ask members of the public to participate in, advise on and eventually to draft a new UK constitution. If Scotland chooses independence exactly the same questions will need to be asked before a Constitution for this newly independent country can be written.  Join Professor Conor Gearty, Human Rights Law Professor at LSE and have your say on what should be included in creating this important new document, whether it is British or Scottish. There will be an expert panel from Scotland who will be discussing their views and ideas on the ConstitutionUK project. What could be included in a constitution to better protect and represent the Scottish people, whether as an independent country or as part of the UK?  Come along to this discussion to voice your opinions and contribute to ConstitutionUK!

Chair and Moderator:    Professor Conor Gearty, LSE

Panellists:

Jean McFadden, former leader, Glasgow City Council

Professor Aileen McHarg, University of Strathclyde

Shelagh McKinlay, political blogger

Professor James Mitchell, University of Edinburgh

Venue: Room S209, Stenhouse Building, 173 Cathedral St, Glasgow

(http://www.strath.ac.uk/maps/stenhousebuilding/)

Registration: Attendance at this event is free and all are welcome.  However, numbers are limited, so please register in advance by visiting https://ecrowds.eventbrite.co.uk.

For further information about the ConstitutionUK project, see http://blogs.lse.ac.uk/constitutionuk/.

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Robert Leckey: Suspended Declarations of Invalidity and and the Rule of Law

Professor Robert LeckeyIn December 2013, the Supreme Court of Canada declared the constitutional invalidity of three major provisions in the domestic criminal law on sex work. Specifically, in Canada (Attorney General) v Bedford, the Court struck down prohibitions against keeping a bawdy-house, living on the avails of prostitution, and communicating for the purposes of prostitution. The judges accepted argument by current and former prostitutes that the challenged provisions deprived them of their security of the person in a way incompatible with the principles of fundamental justice, contrary to s 7 of the Canadian Charter of Rights and Freedoms. For the Court, the challenged provisions constrained sex workers’ ability to take steps to protect themselves. Sex work itself being legal, those prohibitions exacerbated its risks in a way that marked them as grossly disproportionate or overbroad.

Although the decision’s substance offers much for scholars of fundamental liberties to chew on, my present concern is the order issued and its implications for constitutional review. Whilst s 4 of the Human Rights Act 1998 merely empowers judges to declare that primary legislation infringes rights, without affecting its legal force, s 52(1) of Canada’s Constitution Act, 1982 affirms the Constitution of Canada’s ‘primacy’. It stipulates that any law inconsistent with the Constitution, of which the Charter is part, ‘is, to the extent of the inconsistency, of no force or effect’. On prevailing readings, this provision empowers the Court to strike down legislation it determines to be unconstitutional. Thus, although taxonomists of Bills of Rights debate the precise implications of the Charter’s distinctive elements, such as its derogation or ‘notwithstanding’ clause, the Canadian form of constitutional review appears to be relatively strong.

In Bedford the Supreme Court declared the challenged provisions to be invalid, but suspended its declaration of invalidity for one year. The Court expects Parliament to avoid an eventual regulatory void by enacting replacement legislation before that year elapses. Indeed, the Government of Canada has already launched online consultations.

This delayed remedy is doubly significant. Most concretely, it means that despite their ostensible legal victory, sex workers will continue to suffer risks to their safety seen by the Court as severe enough to make the provisions incompatible with fundamental rights. Early experience indicates that local authorities are enforcing the provisions to varying extents. Indeed, this state of legal uncertainty arguably undermines the rule of law. Still, strictly speaking, the provisions remain in force.

In addition, the suspended remedy in Bedford represents the culmination of judges’ reshaping of their role under the Charter. The initial position in Canadian law was that declaring legislation to be inconsistent with the Constitution made it immediately invalid. The first major exception arose in 1985, when the Supreme Court of Canada concluded that a century’s lawmaking by a provincial legislature was invalid for failure to follow a constitutional manner-and-form requirement to enact laws in French as well as English. The Court invoked the rule of law – its imperative to avoid a legal vacuum – in order to deem the legislation valid for the time required to translate and reenact the provincial statute book.

A few years later, in its leading judgment on constitutional remedies, the Court contemplated that, exceptionally, it might suspend a declaration of invalidity made under the Charter. A delay would be warranted where striking down legislation with nothing in its place would threaten the rule of law or pose a danger to the public.

The Court has never disavowed that discussion, but it has subsequently changed its approach. The judges have developed the habit of suspending declarations of invalidity in Charter cases. In doing so, they commonly refer not to threats to the rule of law or to the public, but to the appropriateness of making space for a legislative response. For some commentators, this approach fosters a democratically healthy ‘dialogue’ between judiciary and legislature.

Speaking comparatively, the Canadian judges have fashioned for themselves a remedial discretion that the Constitution of South Africa bestows on its judges. Section 172(1)(b)(ii) of the South African constitution contemplates that the judges may make ‘an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect’.

The Supreme Court of Canada’s brief remedial discussion in Bedford merits scrutiny. The Court takes it as ‘clear that moving abruptly from a situation where prostitution is regulated to a situation where it is entirely unregulated would be a matter of great concern to many Canadians’. In contrast, ‘leaving the prohibitions … in place in their present form leaves prostitutes at increased risk for the time of the suspension – risks which violate their constitutional right to security of the person’. The judges hold that the ‘choice between suspending the declaration of invalidity and allowing it to take immediate effect is not an easy one’. They do little, however, to show themselves grappling with the difficulty. Without any explicit effort to weigh the opposing considerations or to compare their foreseeable costs and benefits, the Court concludes that the unconstitutional law should remain temporarily in force.

In effect, the Supreme Court of Canada has turned 180 degrees from its position twenty years ago. Danger used to be a reason for, exceptionally, suspending a declaration of invalidity. Now the Court suspends a declaration – in deference to the ‘great concern’ of ‘many Canadians’ and to Parliament’s prerogative to tackle a policy issue – in the face of evidence that the unconstitutional laws daily imperil the vulnerable class of sex workers.

More broadly, then, Bedford crystallizes the Court’s shift from using orders under the Charter to cease the effect of laws violating rights to using them to identify legislative priorities. To be sure, there are non-negligible political effects to the Court’s declaration that the prostitution laws harm their intended beneficiaries and to its 12-month countdown for Parliament. Still, that the sex workers should exit the courthouse as ‘victors’ while continuing to bear the brunt of laws shown to violate their fundamental rights suggests that the judges have used the remedial discretion they ascribed to themselves so as to weaken constitutional review in Canada.

The Canadian judges’ apparent underuse of their constitutional powers invites further study. Might this phenomenon countermand democratic theorists’ disappointment about how rarely Canadian parliamentarians have used their legislative override? It may also be a counterexample to the hunch – think of American judges’ recognition of the right to privacy in the penumbra of the First Amendment – that when judges reach beyond the constitutional text, they do so to expand rather than to restrain their powers.

For me, the crucial methodological takeaway – whatever your politics on rights, courts, and legislatures – is how partial a story about the character of judicial review emerges from a Bill of Rights’ text. To understand the political impact of a Bill of Rights, we need to scrutinize the procedural dimensions of its application by judges – matters too often dismissed as lawyerly ‘technicalities’. I contribute to this endeavour in my forthcoming book, Bills of Rights in the Common Law.

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

(Suggested citation: R. Leckey, ‘ Suspended Declarations of Invalidity and the Rule of Law’ U.K. Const. L. Blog (12th March 2014) (available at http://ukconstitutionallaw.org/)).

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