Tag Archives: Constitutional Interpretation

Ann Sherlock: Supreme Court ruling on Welsh legislation.

AnnOn 9 July 2014, the Supreme Court delivered its unanimous ruling that the Agricultural Sector (Wales) Bill was within the legislative competence of the National Assembly for Wales.

The Bill had been referred to the Supreme Court in August 2013 by the Attorney General for England and Wales under section 112(1) of the Government of Wales Act 2006 (hereafter GWA 2006). This provision, whose equivalents in the Scottish and Northern Irish devolution legislation have yet to be used, allows for the referral of a Bill passed by the Assembly if the Attorney General or the Counsel General, the Welsh Government’s law officer, considers that it goes beyond the Assembly’s legislative competence.

This is the second occasion on which a Bill has been referred: the first concerned the Local Government Byelaws (Wales) Bill. The Attorney General argued that the Bill exceeded the Assembly’s competence in that it flouted a general restriction on the Assembly’s competence by removing or modifying a function of a Minister of the Crown. In the event, the Supreme Court ruled unanimously that, while the Bill did remove some of the Secretary of State’s functions, that removal was saved by the exception in the GWA 2006 which permits the removal of a function as long as it is ‘incidental to, or consequential on, any other provision contained in the Act of the Assembly.’ In the case of the Agricultural Sector (Wales) Bill, the issue related to whether the legislation went outside the subject areas in which the Assembly has legislative competence.

The Assembly’s legislative competence

As will be known, unlike in Scotland and Northern Ireland where all power is devolved unless expressly reserved (or excepted) to the UK Parliament, the GWA 2006 uses a conferred powers model under which the Assembly may legislate only on those subjects enumerated in the Act. Since 2011, those subjects are set out in Schedule 7 of the GWA 2006. Section 108(4) of that Act provides that an Assembly Act will be within its competence if ‘it relates to one or more of the subjects listed under any of the headings in Part 1 of Schedule 7’ and does not fall within any of the exceptions set out under any of the headings in that Part of the Schedule. (Additional limits on competence, such as those requiring compatibility with EU law and the ‘Convention rights’, were not relevant here.) Section 108(7) of the GWA 2006 states that the meaning of the term ‘relates to’ is to be ‘determined by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances.’

The Bill under review

The Agricultural Sector (Wales) Bill was passed in order to provide for a scheme to regulate agricultural wages in Wales following the abolition of the Agricultural Wages Board for England and Wales under the (UK) Enterprise and Regulatory Reform Act 2013. Until its demise, the Agricultural Wages Board set minimum wages for workers employed in agriculture, and other terms and conditions of employment. The Welsh Government wished to retain a system for regulating agricultural wages within Wales and sought to do this in the legislation under review. In general terms, the Bill preserved a statutory regime for workers in the agriculture sector which acknowledged the distinctiveness of this sector, and sought to safeguard a succession of skilled workers, with provisions for apprentices and trainees. It preserved the level of statutory protections in the Agricultural Wages Order of 2012 which, without the provision of this Bill, would have been revoked from October 2013. That Order recognised different categories of worker based on qualifications, competence, experience and levels of responsibility: all of these grades were above the current national minimum wage. The Bill provided for the establishment of an Agricultural Advisory Panel for Wales which would carry out similar but modified functions to those undertaken by the Agricultural Wages Board.

The Attorney General questioned the competence of the Assembly to make this legislation on the basis that it dealt with employment matters and industrial relations rather than agriculture. The Counsel General submitted that the Bill related to agriculture and on that basis came within the Assembly’s legislative competence.

The Court’s ruling

In reaching its decision, a number of matters to which the Attorney General referred the Court were ruled to be irrelevant to the interpretation of Schedule 7. The Court held that a ministerial statement in Parliament regarding the purpose of the GWA 2006, as being to ‘deepen’ rather than to ‘broaden’ devolution, was too general and ambiguous to be of assistance in interpreting the GWA. It also ruled that it would be inappropriate to consider correspondence which took place prior to the introduction of the Government of Wales Bill in 2005 between the Wales Office, the Welsh Government and Parliamentary Counsel: this correspondence was said to set out the views of the two executives on the scope of the subject of ‘agriculture’ and whether it should include specific references to competence in relation to the Agricultural Wages Board. Since this was correspondence which was never referred to in Parliament or made public, the Court held that it would be inconsistent with transparency and the democratic process to take it into account. Finally, the Court held that the fact that a power had not been transferred under the first or second phases of devolution was irrelevant to the position pertaining under the third, and current, phase of devolution for Wales.

As to how the GWA 2006 should be interpreted, the Court referred to the general principles developed in the previous Welsh Byelaws case, namely that:

  1. whether the provision was outside the Assembly’s competence must be determined by the rules laid down in section 108 and Schedule 7;
  2. the GWA 2006 should be interpreted in the same way as any other statute and its description as ‘an Act of great constitutional significance’ could not be taken, in itself, as a guide to its interpretation;
  3. when enacting the GWA 2006, ‘[t]he aim was to achieve a constitutional settlement’ and it was proper to have regard to that purpose in determining the meaning of words.

The Court examined the subjects listed in Schedule 7, noting the enumeration of agriculture as an area of competence and the exceptions to that particular subject (which relate to hunting with dogs, regulation of experiments on animals, import and export controls and regulation of the movement of animals, and authorisations of veterinary medicines and medicinal products.)   Since an exception will be relevant wherever it appears in Schedule 7, the Court examined the other subject headings and the exceptions listed under each of these. The Court noted the areas listed under the heading ‘Economic development’ (which includes economic regeneration and development and promotion of business and competiveness as areas of competence) and the exceptions listed under that heading. In particular, it noted that occupational and personal pension schemes were exceptions to the Assembly’s competence: this exception related to specific aspects of employment but Schedule 7 did not include any general exception in respect of employment or remuneration of employees.

As to the meaning of ‘agriculture’, which is not defined in the GWA 2006, the Court concluded that ‘agriculture’ could not be intended to refer only to ‘the cultivation of the soil or the rearing of livestock’. Rather, it needed to be understood ‘in a broader sense as designating the industry or economic activity of agriculture in all its aspects, including the business and other constituent elements of that industry’. This view was supported by the broad definition that had been given in Schedule 5 to the ‘red meat industry’, the only area of agriculture in which the Assembly had legislative competence prior to 2011.

With agriculture thus defined, the Court had little difficulty in concluding that the Bill was ‘aptly classified’ as relating to agriculture: ‘the purpose and effect of such a regime are to operate on the economic activity of agriculture by promoting and protecting the agricultural industry in Wales.’ However, the Attorney General submitted that the Bill would have an effect on employment and industrial relations, neither of which was listed as a subject on which the Assembly had legislative competence. However, the Court observed that neither were these matters specified anywhere in the Act as exceptions to the Assembly’s competence: as noted earlier, certain aspects of employment are listed as exceptions but in the Court’s view the specifying of these particular aspects suggested that there was no intention to create a more general limitation on the Assembly’s competence.

The Court accepted the Attorney General’s submission that the Bill might be characterised as relating to employment and industrial relations. This made it necessary to consider whether a Bill relating to a listed area of competence might still be regarded as falling outside competence if it also related to an area which was not listed as devolved. The Court considered that this issue would not arise very frequently given the relatively extensive list of exceptions set out in Schedule 7: this case arose because, despite not being devolved, employment and industrial relations were not stated to be exceptions to those areas which were explicitly devolved.

The crux of the Attorney General’s argument was that, in reality, this Bill did not relate to agriculture but to employment and industrial relations and should be characterised in that way. He contended that the Court should determine the ‘real’ purpose and objective effect of the legislation. The Court refused. It accepted that, as in this case, there might be more than one way of characterising the purpose and effect of a Bill: a Bill establishing a scheme for regulating agricultural wages could ‘in principle reasonably be classified either as relating to agriculture or as relating to employment and industrial relations. Which classification is the more apt depends on the purpose for which the classification is being carried out, and on the classifactory scheme which has to be employed.’ In the Court’s view, the rules in section 108 and Schedule 7 had to be interpreted according to the ordinary meaning of the words used: doing so would achieve a ‘coherent, stable and workable outcome’. In most cases, an explicit exception to a devolved subject area would resolve a question about competence. However, when, as here, no exception to the devolved subject was stated, section 108 still provided the test: provided that a Bill ‘fairly and realistically’ satisfied the test set out in section 108(4) and (7) and did not fall within an exception, it came within the Assembly’s competence. It did not matter that it might also be capable of being classified as relating to a subject which had not been devolved, as long as the latter had not been explicitly excepted. To agree to the Attorney General’s submission would be to add exceptions to those specified in the GWA 2006 and would give rise to uncertainty and to scheme that was ‘neither stable nor workable.’ Accordingly, a Bill which undoubtedly related to a devolved subject would be within the Assembly’s competence even if it could also be characterised as a Bill relating to a non-devolved matter which was not explicitly excepted in the GWA 2006.

General comments

The ruling in this case makes a significant clarification in relation to the competence of the Assembly. The Supreme Court sets out a straightforward approach to determining whether there is competence, which is grounded in the terms of the GWA 2006: as long as a Bill ‘fairly and realistically’ relates to a subject which is listed in Schedule 7, this being determined by reference to its effect and purpose, it will be within the Assembly’s competence unless it falls within an exception listed in Schedule 7 or elsewhere in the Act.

While most cases will be determined by the express grants and exceptions in Schedule 7, there will be other cases where there is less certainty. One such case would arise if the Assembly were to enact legislation providing for a general prohibition on smacking children and young people, by removing the defence of ‘reasonable chastisement’: this was a commitment of earlier Welsh Governments but was not included in the Social Services and Well-being (Wales) Act 2014 and when the issue was raised by the Assembly’s Health and Social Care Committee during the passage of the Bill (18 April 2013), the Deputy Minister expressed concerns that if such a prohibition were included in the Bill, there would be a challenge to the legislation from the UK Government regarding the Assembly’s competence ( Under Schedule 7 is it is clear that that the Assembly has competence in relation to protecting and promoting the well-being of children and young people. Criminal law on the other hand is not listed among the devolved subjects. However, section 108(5) provides that an Act will be within the Assembly’s competence if it is to enforce a provision of legislation that is within the Assembly’s competence or is otherwise incidental or consequential on such a provision.) The Welsh Government has stated that it has no plans to legislate on this issue during the current Assembly term: if such legislation is put forward at a later stage, we can expect another reference to the Supreme Court and a further clarification of the Assembly’s competence.

There is one further reference to the Supreme Court in the pipeline, concerning the Recovery of Medical Costs for Asbestos Diseases (Wales) Bill. This Bill allows for the recovery of costs incurred by the NHS in Wales in providing care and treatment to victims of an asbestos-related disease. Interestingly, this Bill has been referred by the Welsh Government’s own law officer, the Counsel General. His statement to the Assembly made clear that he considered the Bill to be within the Assembly’s competence but, aware of the fact that the insurance industry had disputed this throughout the Bill’s passage, wished the matter to be determined by the Supreme Court before its entry into force rather than waiting for what he considered an inevitable challenge afterwards which would be more time-consuming and more expensive. Were the Bill to be found to be outside the Assembly’s competence, this ‘pre-emptive challenge’ avoids the possible need for unpicking transactions made under it. The Counsel General considered it ‘very unlikely’ that such home-grown references would be made very often, although he was reluctant to describe this approach as ‘exceptional’.

While many in Wales consider that a move to a reserved powers model would greatly improve the clarity of the devolution settlement for Wales, some disputes will arise whatever the model. Nonetheless, the particular conferred powers model in Wales with its very specific grants and exceptions, and, as in this case, issues which are not mentioned explicitly as exceptions to devolved subjects, does not help. Accordingly, the recommendation in the Silk Part 2 Report for a reserved powers model was generally welcomed in Wales. However, the current arrangements are likely to be in place for some time still – even if the UK Government were to follow the Silk recommendations, the Silk report does not envisage an Assembly operating under the new system until 2021. In the meantime, and for those disputes which concern ‘borderline’ areas under any model, the clarification provided by the Supreme Court is valuable in improving the workability of the current arrangements.

 

Ann Sherlock, Centre for Welsh Legal Affairs, Aberystwyth University

 

(Suggested citation: Ann Sherlock, ‘Supreme Court ruling on Welsh legislation’ U. K. Const. L. Blog (30th July 2014) (available at: http://ukconstitutionallaw.org/)

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Tarunabh Khaitan: Koushal v Naz: The Legislative Court

khaitan_tarunabhIn Koushal v Naz—the case being touted as one of its worst judgments—a two-judge bench of the Indian Supreme Court has overturned a 2009 decision of Delhi High Court which had struck down the criminalisation of sodomy by s 377 of the Indian Penal Code 1860 as unconstitutional. In doing so, it has recriminalized every Indian who has ever had oral or anal sex (irrespective of the gender of the person they had it with, and irrespective of consent).

Many commentators have already pointed out the spectacular lack of constitutional and judicial aptitude, understanding of human rights and compassion in the judgment (see these excellent commentaries by Vikram Raghavan, Gautam Bhatia, Pratiksha Baxi, Mayur Suresh, Siddharth Narrain, Arghya Sengupta, and Shreya Atrey among others). In this post, I will focus on the deeper structural and institutional decline of which this judgment is a painful symptom. If Koushal were read simply as the failure of a couple of judges to get the law right, India would miss a rare opportunity to treat the root causes of the malaise.

Koushal represents two structural failures of the Indian Supreme Court, at least one of which has sometimes been commended as a great success by some Indian and foreign commentators. The first structural failure, one that many progressives see as a model for how the judiciary should be organised, is the near-total abandonment by the Supreme Court of the principle of separation of powers, and its transformation into a populist, legislative court of governance. The second failure, one that flows from the first failure, is the Court’s routine dereliction of its duty to give reasons for its decisions and the Indian legal academy’s failure to hold it accountable for this dereliction. Let me explain both of these failures in turn, and how they have facilitated the decision in Koushal.

Failure I: Judiciary as a Counter-majoritarian Institution

In Koushal, the Court could barely conceal its disdain when it described lesbians, gays, bisexuals and transgendered people as ‘a miniscule fraction of the country’s population’ [43] with ‘so-called rights’ [52]. This may seem bizarre to those of us who believe that one of the primary functions of constitutional courts is the protection of vulnerable minorities. Clearly, a ‘miniscule’ minority should be of particular concern to a counter-majoritarian institution.

The Court’s position is easier to fathom if understood in the context of its history following the authoritarian Emergency imposed in India in the mid-70s by Indira Gandhi. During the Emergency, a scared Court agreed to the suspension of Habeas Corpus. After the deeply unpopular Emergency was lifted and the country returned to democracy, the Court started to reinvent itself to gain institutional legitimacy. This reinvention was, however, not in terms of pitting itself against the representative organs of the state, but by competing with these organs. The process, which began in the ‘80s, only intensified in the ‘90s which saw an end to one-party-dominance in politics. Coalition politics and weak legislatures remain a feature of Indian politics to this day. The Court, in the meantime, became a populist institution of governance—stepping in to fill the void left by an increasingly dysfunctional Parliament. In a country where the majority of the population suffers significant disadvantage, majoritarianism can often become aligned with ‘progressive’ politics. A majoritarian Court continued to play to the gallery and wrecked havoc on the principle of separation of powers. As it laid down detailed guidelines, took up cases without any litigant, appointed commissioners, created policy, and micro-managed implementation, it was cheered on by civil society, while meek politicians barely managed occasional squeals of disapproval. Its occasional retrogressive missteps were brushed aside as aberrations, and the Indian Supreme Court, regularly invoking its popular Public Interest Litigation jurisdiction, came to be seen as a model of progressive judiciary by many people in India, and outside India.

It should not surprise us that this majoritarian populist institution found it impossible to respect the ‘so-called’ rights of a ‘miniscule’ minority. Of course, Indian courts have sometimes stood up for minority rights. So has the Indian Parliament. What matters is the self-image the Court has been allowed to cultivate, which overwhelmingly determines its institutional course of action. This self-image is not that of a counter-majoritarian institution correcting the excesses of democracy, but one that is acutely conscious of the reception of its judgments by the people (such consciousness extends only to the outcome of a case, not its reasoning). Under this model, if representative bodies did a good job of representing the people, the courts would be unnecessary. The Court is a political actor, which wants to be judged as politicians are judged. Its legitimacy rests on popular acceptance, not constitutional mandate.

This political context explains, rather than complicates, how the bench in Koushal suddenly discovers the joys of separation of powers. The Court first extends the presumption of constitutionality to a pre-constitutional colonial law by suggesting that the democratic Parliament has ‘adopted’ it by failing to amend it! [28, 32]. It specifically mentions a 2013 legislation amending the law dealing with sexual assault as proof that ‘the legislature has chosen not to amend the law or revisit it’, ignoring completely the fact that there was no need for Parliament to do so after the Delhi High Court had read down s 377 to exclude private sex between consenting adults from its ambit. That the 2013 legislation was enacted after the hearing in Koushal was concluded, thereby affording no opportunity to the parties to challenge its use by the Court, is another matter.

This ostensible deference to democratic will is an opportunistic fig leaf of a populist Court with little more than contempt for the representative institutions of democracy. In an act of concluding magnanimity to the legislature, the final sentence of the judgment grants it permission to consider the ‘desirability and propriety of deleting section 377’ [56]. The fact that it thought such a clarification was necessary tells us that this is not a Court deferential to the legislature—this is a Court with unhesitant pretensions of being the legislature.

Failure II: The Duty to give Reasons

A key feature of adjudication is the public articulation of reasons after hearing principled submissions by the parties involved, on the basis of which a judge arrives at her decisions. In this respect, adjudication differs from voting, which allows a decision-maker to decide without having to articulate her reasons (or even without having any reasons). The Indian Supreme Court in Koushal fails to respect this fundamental judicial duty at so many levels that it is difficult to escape the conclusion that the Court seems to be voting, not adjudicating. The following factual inaccuracies, unsupported conclusions, and omissions in the judgment are particularly noteworthy in this regard:

    1. The Court records the Government of India’s position on the case as one defending the criminal provision under review [7]. This, despite the fact that the Government had chosen not to appeal the High Court ruling, and its top lawyer—the Attorney General of India—had clearly told the bench that the Government supported the High Court’s decriminalisation of adult consensual sex. Remarkably, the Court describes the Attorney General as ‘amicus’ [21], forcing him to publicly clarify that he had very much represented the Government’s official position in the case.
    2. The Court found itself able to ignore the voluminous material placed before it to conclude that there was no evidence to show that ‘homosexuals, gays, etc., are being subjected to discriminatory treatment either by State or its agencies or the society’ [40].
    3.  Long-standing precedent is clear that Article 14 (right to equality) of the Constitution requires every legal classification to be based on an intelligible differentia and have a rational nexus with a legitimate state objective. The Court, while repulsing the Article 14 challenge, finds it sufficient to say that the classification between ‘[t]hose who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature’ is intelligible [42]. It wastes no ink trying to identify the state objective being pursued, or asking whether the measure has any nexus with that objective.
    4. Even this half-hearted attempt to give reasons is not made when rejecting the Article 15 (right against discrimination) challenge. No reasons whatsoever are provided [44].
    5. The way the Court deals with the challenge under Article 21 (the right to life and liberty) is even more curious. After devoting several paragraphs quoting established precedents on Article 21 [45-50], the Court makes no specific finding with respect to Article 21! After these block quotations, the Court moves seamlessly to simply assert that the use of s 377 to ‘perpetrate harassment, blackmail and torture’ is ‘neither mandated by the section nor condoned by it’ [51]. How the preceding six paragraphs setting out the established doctrine under Article 21 help the Court reach this conclusion, and how this conclusion repels the Article 21 challenge, is anybody’s guess.

The judgment seems to have been written carelessly, perhaps even in a hurry—the hearing in the case concluded in March 2012, and the judgment was delivered in December 2013, on the day before the senior judge on the bench was due to retire. A cavalier attitude to its duty to give reasoned judgments is not uncommon in the Indian Court’s jurisprudence. Although unfortunate, this is hardly surprising. The Court has a total strength of 30 judges, who usually sit in benches of 2. In 2011 alone, they decided some 47,000 admission matters (the Court sets aside two days every week to hear admission applications!), of which 9,070 were admitted for regular hearing. The main reason for this staggering docket, apart from the size of the country, is its remarkably liberal invocation of its ‘special leave’ jurisdiction, which allows review petitions from any court or tribunal in the country to be placed directly before the Supreme Court (Article 136, Constitution). A direct approach to the top Court deprives it of the benefit of the considered views of the courts below, and should be allowed very rarely. The pressure of its workload also results in the constitutional requirement that any constitutional case involving a substantial question of law must be heard by at least five judges (Article 145) being routinely ignored (including in Koushal). Only 0.12% of all cases disposed of by the Court between 2005 and 2009 were decided by a bench of five judges or more.

Given such volume, what is surprising is the respectable number of cases where Indian judges do manage to give reasoned judgments. The fragmentation of the Court into small benches deciding thousands of cases every year had led to a situation where even a conscientious judge would find it next to impossible to respect stare decisis. For less conscientious judges, the opportunity to cherry-pick precedents is limitless.

Furthermore, the academy simply cannot keep up with the judicial assembly line. Academic criticism is the real check on judicial power in a democracy. In the Indian context, academics are forced to focus on the outcome of the cases alone—only a handful of cases (like Koushal) that really stand out receive proper academic attention. This reinforces the judicial belief that all they need to do is to make the outcome generally palatable; all else will probably be ignored. Thus, the judges decide as if they were politicians, and they are judged as if they were politicians—based not on how they reason but on the way they vote.

Conclusion

The outrage that this judgment has inspired amongst politicians, activists and academics in India presents an opportunity to rethink the fundamental structural weaknesses of the Indian Supreme Court. Most of the recent debate on the reform of the Court has focussed on changing the appointment system of judges (currently, the Court appoints its own judges!) and dealing with the lack of diversity in the judiciary. While who gets to be a judge is an important issue, unless these structural infirmities are addressed, even Herculean judges cannot change the situation very much. The Court needs to reaffirm its central counter-majoritarian purpose in a liberal democracy. It must do less and do it well. It must stop voting and stick to adjudicating.

Dr. Tarunabh Khaitan is Hackney Fellow in Law at Wadham College, Oxford.

Suggested citation: T. Khaitan, ‘Koushal v Naz: The Legislative Court’ U.K. Const. L. Blog (22nd December 2013) (available at http://ukconstitutionallaw.org).

Postscript: Some readers have emailed to ask about the possibility of review. Although this is a judgment of the highest court of the land, because of the proliferation of 2-judge bench rulings, the Court has had to invent two further review stages to challenge its own judgment–a (rarely invoked) review jurisdiction and then a (very rarely used) ‘curative’ jurisdiction. The  government has been the first of the parties to seek review.  Other petitioners are expected to follow suit. How the Court will react remains to be seen.

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Chintan Chandrachud: Beyond Ghaidan and Back: the Supreme Court of India on Rights-Compliant Interpretation

 ChintanGhaidan v Godin-Mendoza remains the leading case on rights-compliant interpretation under section 3 of the UK Human Rights Act 1998. In Ghaidan, the majority on the House of Lords held that even when the meaning of a statute seems clear, courts can depart from parliamentary intention to read legislation in a European Convention-compliant manner. Lord Nicholls emphasised that ‘the particular form of words’ used would not be determinative in ascertaining whether or not section 3 could be invoked.

The Supreme Court of India, on the other hand, has been careful over the years in ascribing to itself an interpretive power which is narrower than the Ghaidan variety. The Court consistently held that it would not distort or depart from statutory language where its plain meaning was clear. Then came Namit Sharma v Union of India (which I will, for reasons that will be self evident later, refer to as Sharma I). This was a case involving a challenge to some of the provisions of the Right to Information Act 2005 – a revolutionary law that seeks to increase transparency in the functioning of public authorities. The Act provides for the appointment of central and state information commissioners to monitor compliance. It requires commissioners to be ‘persons of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance’. The petitioner in Sharma I contended that these eligibility criteria were arbitrary and vague, and violated the right to equality under article 14 of the Constitution. In his argument, since the commissioners performed functions of a judicial nature, Parliament transgressed constitutional boundaries by failing to specify that they should possess judicial experience.

The Supreme Court’s judgment in Sharma I was remarkable. The Court considered that the provisions of the Act, as they stood, were unconstitutional. But rather than striking down the relevant provisions, it sought to interpret them so as to fall within constitutional parameters. The Court stipulated that since the commissioners performed quasi-judicial functions, they should predominantly be persons who have a judicial background and experience in adjudication. If some experts from other fields were appointed as commissioners, they should only make decisions as part of a two-member bench, along with a commissioner having judicial experience. The Act established a ‘High Powered Committee’, consisting of political leaders from the government and the opposition, for the appointment of commissioners. The Court went on to radically modify the process of appointment of commissioners, holding that since they perform quasi-judicial functions, the judiciary (more specifically, the Chief Justice of India/Chief Justice of the relevant state) should also be consulted in the appointment of commissioners with judicial experience.

This judgment clearly transgressed the dividing line between interpretation and amendment and went far beyond what even British courts, armed with the section 3 mandate, would do following the Ghaidan dictum. In Ghaidan itself, the House of Lords recognised that it would refrain from interpreting a statutory provision in a manner inconsistent with a ‘fundamental feature’ of the statute. By insisting that commissioners should consist of (and perhaps more remarkably, be appointed by) judges, the Court undermined Parliament’s intention of ensuring that a diversity of viewpoints are represented in the quest for increasing transparency and access to information. If the Court arrived at the conclusion that the absence of a robust judicial role in the composition and appointment of commissioners rendered the provisions of the Act unconstitutional, the appropriate response would have been to strike them down.

Understandably, Sharma I was received with disfavor both within the government and outside it. The government filed a petition asking the Supreme Court to reconsider its judgment, claiming that it was based on an ‘error apparent on the face of the record’. In Union of India v Namit Sharma (Sharma II), the Supreme Court agreed with the government, holding that its previous decision was an ‘encroachment’ of Parliament’s domain and ‘contrary to the principles of statutory interpretation’ recognised by the Court. So presumably, the Court hastily retreated back to its original position on interpretation.

But what was most interesting about Sharma II is the remedial path taken by the Court. Despite having similar misgivings about the eligibility requirements for commissioners as the Sharma I bench, the Court declared the relevant provisions constitutionally valid, only choosing to mention that it hoped that ‘persons with wide knowledge and experience in law will be appointed’. So why did the court refuse to invoke the power to strike down the Act? The explanation might be rooted in the nature of the strike down power. The invalidation of the relevant provisions of the Act would probably have led to the unenforceability of the entire statutory regime. How comfortable would the Court have been striking down a statute which formed part of the United Progressive Alliance government’s ‘common minimum programme’ and which was considered a hallmark of parliamentary democracy? In contrast, a British Court in the same situation would probably have made a declaration of incompatibility knowing that the statutory scheme would not be disturbed until Parliament responded. If the Supreme Court of India could issue a declaration of incompatibility, would it have done so instead of reluctantly upholding the constitutionality of the statute? Sadly, this question will remain in the realm of speculation.

Chintan Chandrachud is a PhD Candidate at Sidney Sussex College, University of Cambridge

Suggested citation: C. Chandrachud, ‘Beyond Ghaidan and Back: the Supreme Court of India on Rights-Compliant Interpretation’  UK Const. L. Blog (29th November 2013) (available at http://ukconstitutionallaw.org)

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Luke Beck: Swear Words and the Australian Constitution

LukeIt seems Australia’s new (and also former) Prime Minister Kevin Rudd likes to swear.

There is a leaked video posted on YouTube of Rudd using a number of colourful expressions as he expressed his frustration at the difficulty of recording a video message in Mandarin some time ago. He also swore again last Thursday (27 June 2013) in front of Australia’s Governor-General. This time, however, it was a different sort of swearing and the footage of it was broadcast live. Rudd was being sworn in as Prime Minister.

But Rudd did not need to be sworn in as Prime Minister.

Australian Ministers are appointed by the Governor-General under Section 64 of the Australian Constitution, which says simply that the Governor-General has power to appoint Federal Ministers. The Australian Constitution does not expressly mention the position of Prime Minister, but the PM is a Minister and is therefore appointed under section 64. That power of appointment is, of course, exercised in accordance with unwritten conventions. Last Thursday, the Governor-General, Quentin Bryce, exercised this power to appoint Rudd as PM.

The Australian Constitution says that MPs and Senators must take an oath or affirmation of office before taking their seats in Parliament, but it does not say that Ministers have to. The practice of Ministers taking an oath or affirmation of office is just something that has developed. It has no constitutional basis or significance.

So Rudd didn’t need to swear last Thursday. However, as with lots of constitutional issues in Australia, there is a but.

Section 64 of the Australian Constitution says that Ministers must also be members of the Federal Executive Council, which is the body the Australian Constitution establishes to give advice to the Governor-General. It is made up of all Ministers, but it is legally distinct from the Cabinet. Indeed, membership of the Federal Executive Council is for life (unless a member is removed, which is rare). However, only currently serving Ministers participate. This means that Ministers hold three positions: their seat in Parliament, their Ministerial position, and their position as a Federal Executive Councillor.

Section 62  of the Australian Constitution says that Federal Executive Councillors must be sworn in. However, Rudd was not sworn in as a Federal Executive Councillor last Thursday. He had been sworn in to that position following his win at the 2007 election and continued to hold it ever since.

So there was no constitutional need for any sort of swearing by Rudd at all last Thursday.

There is an interesting drafting anomaly in section 62’s requirement that Federal Executive Councillors be sworn in. That section only uses the word ‘sworn’. There is no mention of affirmations. This is different to section 42 of the Australian Constitution, which says MPs and Senators may take ‘an oath or affirmation of allegiance’.

‘Sworn’ is the past participle of ‘swear’, which in its relevant sense – as Wiktionary explains – means to take an oath. In 1744, the English Court of Chancery in a case called Omichund v Barker said that oaths were religious in character and that any person who holds some sort of religious belief may lawfully take an oath. Affirmations are the non-religious alternative to oaths.

If you read section 62 literally it looks like affirmations are not available to Federal Executive Councillors. After all, the Australian Constitution appears capable of providing for both oaths and affirmations when it wants.

However, because of another section of the Australian Constitution it is necessary to give ‘sworn’ a bit of a stretched non-literal meaning. Ssection 116 of the Australian Constitution says that ‘no religious test shall be required as a qualification for any office or public trust under the Commonwealth’. As I have explained elsewhere:

religious tests come in many forms. These include a requirement to participate in particular religious practices, a requirement to disclaim belief in a particular religious doctrine, a requirement to take a religious oath of office such that a person must hold some religious belief, a requirement to be or not to be of a particular religious status, as well as a requirement to swear or affirm to particular religious beliefs.

Historically, the requirement to take an oath of office has excluded from public office atheists and others, like Quakers and Moravians, who are not permitted or unwilling due to their religious beliefs from swearing oaths.

A famous British case is that of Charles Bradlaugh. Despite being elected to the House of Commons, Bradlaugh was unable to take up his seat because the law required MPs to take an oath of office and Bradlaugh was an atheist. The matter went to court a number of times. The court held that in the absence of any express legal authorisation affirmations were not available in lieu of oaths and that because Bradlaugh was an atheist he could not lawfully take the oath. After much fuss and a number of by-elections which Bradlaugh kept on winning, the Speaker of the House of Commons allowed Bradlaugh to, unlawfully, take the oath of office and take his seat.

So giving the word ‘sworn’ in section 62 of the Australian Constitution its literal meaning would have the effect of imposing a religious test for the position of Federal Executive Councillor and consequently for membership of the Australian ministry. This means that if section 62 was read literally the woman who replaced Rudd as Prime Minister in 2010 and who Rudd replaced last week, Julia Gillard, an atheist, could never have been Prime Minister.

It follows that the word ‘sworn’ in section 62 must be understood as meaning ‘sworn or affirmed’ in order to avoid a conflict with section 116. This drafting anomaly might be enough to make you swear!

Luke Beck is a PhD Candidate, Postgraduate Fellow and Associate of the Constitutional Reform Unit at the University of Sydney.

Suggested citation: L. Beck, ‘Swear Words and the Australia Constitution’, UK Const. L. Blog (1st July 2013) (available at http://ukconstitutionallaw.org).

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Emily Burke: Same-Sex Marriage Legislation in Australia

There is a global trend towards the recognition of same-sex unions, with recent expressions of support from Prime Minister David Cameron, President Obama and the new French President Hollande. In the Australian Federal Parliament there are currently two bills in the House of Representatives and one in the Senate that would legalise same-sex marriage. When the Labor Party government last year amended its official policy platform to advocate for same-sex marriage, its members were ensured a conscience vote on the issue. However the Liberal-National Party coalition in opposition has rejected same-sex marriage reform, and a recent motion to allow a conscience vote for its National party members failed. The minor Greens Party and backbenchers from all sides continue to call for the leader of the opposition to allow coalition members the freedom of a conscience vote.

A committee of the House of Representatives completed its inquiry into the same-sex marriage bills in early June, but declined to support or reject the legislation as a committee. More recently, the Senate Legal and Constitutional Affairs Committee released the report of its separate inquiry. In the latter case, of the six voting members, four were in support of the bill (one Liberal-National, two Labor, and one Greens Senator). However the remaining two voting Senators, one Labor and another Liberal-National, each issued a strong dissent. There were 10 additional participating Senators on the committee, eight of which opposed the legislation.

The public debate over these issues has been intense, with the Senate Committee alone receiving an unprecedented 79,200 submissions – 46,000 of which were in support of same-sex marriage. The House of Representatives Committee received over 250,000 responses to their online poll, with a strong majority of 64% in favour of marriage equality.

Alongside the political debate as to whether same-sex marriage should be enacted, lies a legal one concerning whether such legislation is capable of being enacted by the Commonwealth Parliament. The bills would change the statutory definition of marriage, which is currently the ‘union of a man and a woman’, to be the ‘union of two people … voluntarily entered into for life.’

The dissenting Senators relied on the submissions of several lawyers to conclude that the constitutional foundation for such legislation is weak, and a referendum is ‘worthy of serious consideration’ to allow the public to decide whether or not same-sex marriage should be legalized.

This comment aims to examine the constitutional foundation upon which the Australian Parliament could legislate for same-sex marriage, and assess its strength. Is there a case for proceeding with a referendum before legislating on such an important question?

(1)  The Constitutional Validity of Same-Sex Marriage Legislation

Under section 51(xxi) of the Australian Constitutionthe Commonwealth Parliament has power to makes laws with respect to ‘marriage’ – a term that is not further defined in that document. The Commonwealth Parliament cannot determine the ambit of its own power by defining the constitutional meaning of the word ‘marriage’ through legislation. It is exclusively the role of the High Court to determine the constitutional limits of Parliament’s powers. However there have only been sparse indications from the High Courton whether the ‘marriage power’ can support legislation for same-sex marriage.

In the cases of Singh(2004)and Re Wakim(1999), Justice McHugh commented that at 1900, the time of the Constitution’s foundation, ‘marriage’ was seen as meaning a voluntary union for life between one man and one woman to the exclusion of all others. However, his Honour noted that ‘by reason of changing circumstances’, ‘marriage’ now means, or in the future may mean, a voluntary and permanent union between two people’.

This demonstrates the two different views that the High Court could take on the scope of Parliament’s power to legislate with respect to ‘marriage’. On one view, the permissible meanings of the constitutional provision are limited by the framers’ intentions – confining ‘marriage’ to only different-sex unions.

Alternatively, as Justice McHugh’s comments indicate, the High Court could conclude that the essential concept of marriage is a commitment of two people to a voluntary and permanent union – and in contemporary society, includes both heterosexual and homosexual conceptions of marriage. In this sense, the constitutional meaning of marriage may be said to have ‘evolved’ beyond the 1900 conception of marriage as exclusively heterosexual.

The ‘evolution’ of constitutional meanings using a distinction between its ‘essential’ and non-essential features is not uncommon. For example, section 80 of the Constitutionguarantees the right to trial by jury for Commonwealth offences on indictment. In Cheatle(1993)the High Court recognized that criminal juries in 1900 were constituted exclusively by males who satisfied some minimum property qualification. However, it was held that the ‘relevant essential feature or requirement of the institution was, and is, that the jury be a body of persons representative of the wider community’. As such, they held it would be ‘absurd’ to suggest that women and unpropertied persons would be excluded from juries, ‘in the more enlightened climate of 1993’. By analogy then, if the ‘essential concept’ of ‘marriage’ is the voluntary and permanent union between two people, it is not necessary or essential that they be of opposite sex.

Another important example is the evolving power of Parliament to legislate with respect to ‘intellectual property’ under section 51(xvii) of the Constitution. The High Court has held that the ‘essence’ of the intellectual property power is that it ‘authorizes the making of laws which create, confer and provide for the enforcement of intellectual property rights’. Thus Parliament is able to create ‘fresh rights’, and the boundaries of the intellectual property power are not to be ‘ascertained solely by identifying what in 1900 would have been treated as a copyright, patent, design or trademark’. (The High Court in Grain Pool(2000) cited with approval the analogy that the meaning of trademarks in 1900 provided a ‘centre’, around which to seek the full ‘circumference of the power’.)

Comparing the intellectual property power and marriage power highlights how the High Court must have regard to the development of the common law and legislation when determining the constitutional meanings of legal terms of art. Several submissions to the Senate Committee described the same-sex marriage bill as equivalent to Parliament expanding its power to legislate with respect to lighthouses (s 51(vii) of the Constitution) by statutorily defining ‘lighthouses’ to include schools. But this comparison overlooks the ‘vital distinction’ identified by Higgins J in the Trade Markscase between subject matters that are ‘concrete, physical objects [where] the boundaries of the class are fixed by external nature’, and those that are ‘artificial products of society, and dependent upon the will of society’. By way of example, his Honour explained that while ‘[t]he class ‘cattle’ cannot well be extended by man; the class ‘trade marks’ can be extended. Power to make laws as to any class of rights involves a power… to extend the class of those who may enjoy those rights.’ Thus it is a mistake to overlook the fact that marriage, not being a concrete object fixed by ‘external nature’, is an artificial legal construct inherently capable of expansion.

An additional consideration supporting the likelihood that the High Court would uphold a law providing for same-sex marriage is that Commonwealth legislation has a presumption of validity. As Dan Meagher and Margaret Brock have argued, this presumption should be at its strongest when the legislation considered raises ‘complex and intractable moral issues of this kind’.[i]

One concern raised by opponents of the bills is the possible conflict between the legalization of same-sex marriage and freedom of religion. Section 116 of the Constitution provides that the Federal Parliament cannot make any law ‘prohibiting the free exercise of any religion’. Currently section 47 of the Marriage Act 1961 (Cth) provides that there is no obligation imposed on an authorized celebrant, being a minister of religion, to solemnize any marriage. If bills legalizing same-sex marriage were passed, this exemption would be broad enough to ensure that no ministers would be obliged to solemnize same-sex marriage. Even so, to address the anxieties of religious groups, the Senate committee has recommended the insertion of ‘for avoidance of doubt’ provisions that expressly provide that such legislation does not limit the freedom for religious ministers to decline to solemnize same-sex marriages.

On balance therefore, it appears more likely than not that the High Court would find that same-sex marriage legislation was constitutional. However, the resolution of these issues may depend on when the issue goes to the High Court. There will be four new appointments over the coming years, including two within the next six months; and it is impossible to know for certain what methods of constitutional interpretation these justices will take.

(2)  A Referendum On Same-Sex Marriage?

Given the uncertainty over whether a bill legalizing same-sex marriage would be struck down by the High Court, should a referendum be called instead? The dissenting Senators in the Senate Committee stated that they

 believe it is profoundly unsatisfactory to erect such major law reform on so weak a constitutional foundation. In particular, the possibility that people might undertake marriage pursuant to such a law, only to have their ‘marriages’ struck down by the High Court, is a highly unsatisfactory way for the Parliament to proceed. The committee majority shows contumelious disregard for the interests of homosexual Australians by advancing such a risky and ill-advised course of action.

[The] Coalition senators are of the view that, given that a number of the submissions to the committee acknowledged that same-sex marriage raises significant social, religious and cultural issues and that section 128 of the Constitution provides a mechanism to enable the people to expand the specified powers set out in the Constitution, a referendum to enable the people to pronounce on the issue of same-sex marriage is worthy of serious consideration.

This position assumes that the legislation is indeed on very weak constitutional grounds, but also appears to misunderstand the relationship between the High Court, Parliament and the people. As the majority Senate report noted, the Parliament is elected to pass legislation, and acts within its constitutional right when it passes legislation ‘which it believes to be valid, and ultimately in our system it [is] left to the High Court to determine otherwise’ (quoting from the evidence of Professor John Williams). Australia has a long history of Parliament passing legislation where there is some doubt as to its constitutional validity. Parliament does not seek separate constitutional endorsement via referendum on each occasion such an enactment is passed.

The ‘risk’ that many people may enter same-sex marriages that will then be declared void can be addressed in other ways. As a test case is likely to be brought immediately after a same-sex marriage bill passes, Parliament could suspend the same-sex marriage provisions until the High Court decides the validity of that marriage, preventing any further persons from entering into same-sex marriages that might be subsequently voided should the Court confirm a want of power.

This appears to be the better course of action than a referendum considering: the likelihood that the legislation is indeed valid; the huge cost and time involved in holding referendums; and the actual interests and desires of Australians in the LGBTI community who wish to see the legislation passed in preference to a referendum being held. Other commentators and the majority report of the Senate Committee also noted that Australian proposals to amend the constitution are far more likely to fail than to succeed – for a variety of reasons that extend well beyond the merit of the proposals in question. To date, 44 referendums have been held, of which only 8 have been carried to effect change to the Australian Constitution.

Conclusion

Although there remain constitutional uncertainties over the scope of the marriage power, there are strong arguments in favour of the constitutionality of the same-sex marriage bills currently before the Australian Parliament. As marriage is governed by our civil and not religious laws, it is for Parliament to determine who can and cannot marry. Australian law can better balance freedom of religion with the separation of church and state, by providing that every person is entitled to marry the person of their choice, whilst ensuring that religious officials are not required to solemnise any particular marriage.

Emily Burke is an intern at the Gilbert + Tobin Centre of Public Law at the University of New South Wales


[i] Margaret Brock and Dan Meagher, ‘The Legal Recognition of Same-Sex Unions in Australia: A Constitutional Analysis’ (2011) 22 Public Law Review 266, 278.

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