Tag Archives: constitutional review

Douglas Edlin: Will Britain Have a Marbury?

edlind Marbury v Madison is the most famous judicial decision in US history, written by the most important judge in US history.  According to the traditional understanding, Chief Justice John Marshall brilliantly side-stepped a looming political clash between former President John Adams and newly elected President Thomas Jefferson.  In doing so, Marshall declined the additional power Congress attempted to confer upon the US Supreme Court through section 13 of the Judiciary Act of 1789, while simultaneously claiming for the Court the much more important authority to review the constitutionality of federal legislation and government action.  It is a terrific story.  As is frequently the case, however, there is more to the story.  Marbury did not actually emerge from the legal ether and the political acumen of Marshall as the deus ex machina of US constitutional politics.  For years prior to Marbury, courts had claimed and employed the authority to review legislation for conformity with fundamental principles of law.  Nevertheless, if we consider Marshall’s decision in relation to the US rule of recognition, the conventional understanding is, in some meaningful sense, more important than the historical specifics.  US legal and political officials have long viewed the Marbury ruling as the established legal basis for the power of judicial review, and officials generally comply when the Court determines that their actions have violated the US Constitution.

Now that the United Kingdom has a Supreme Court that is separated formally and physically from Parliament, I wonder if the UK Supreme Court will, sooner or later, issue an opinion – like Marshall’s in Marbury – in which it expressly claims the authority to review primary legislation and ensure its conformity with the British constitution.

Does Britain Need a Marbury?

As with Marshall’s opinion, if the UK Supreme Court writes its Marbury, that decision will not appear from nowhere.  For one thing, of course, prominent British judges such as Lord Justice Laws, Lord Justice Sedley, and Lord Woolf have suggested for some time in extra-curial writings that the doctrine of absolute parliamentary sovereignty may no longer be the only or the best understanding of British constitutional principles.

Moreover, and more to the point where the UK rule of recognition is concerned, a shift in official attitudes and behavior may be occurring, or may already have occurred.  In decisions such as Anisminic, Pierson, Simms, Belmarsh, Jackson and Cart, the courts have indicated that the meaning and force of the British constitution cannot be determined by Parliament alone.

In fact, in the first appeal heard by the newly constituted Supreme Court of the United Kingdom, Ahmed v H.M. Treasury , the Court considered the scope of authority delegated to (or claimed by) the Treasury under the United Nations Act of 1946 with respect to combating terrorism by freezing the assets of suspected terrorists.  Purporting to act under the authorization of the 1946 Act, the Treasury froze the assets of a number of citizens and residents of the UK.  According to the Court, the case raised a series of significant issues that “concern the separation of powers.”

A critical issue in Ahmed was the contention that § 1(1) of the 1946 Act,  allowed the Treasury to impede the fundamental rights of individuals while simultaneously preventing those individuals from questioning the legality of the government’s actions in court.  As Lord Mance put it, “At common law, the submission is that s 1(1) cannot be taken to have contemplated or permitted orders which would interfere with, or at all events violate, fundamental rights . . . The real issue is whether s 1(1) permits the making of an order which interferes with such rights on a basis which is immune from any right of challenge on the merits before a court or other judicial tribunal.”  (Ahmed, [2010] UKSC 2, [238], [239]).

According to Lord Mance (and several other members of the UK Supreme Court), the 1946 Act could not be read to permit the Treasury to freeze personal assets and to preclude judicial review of the Treasury’s actions – with the practical effect of interfering with individuals’ fundamental rights of movement, property, and privacy, as well as their right of access to the courts – so that the legality and legitimacy of the Treasury’s actions could functionally be immunized from judicial assessment:

 The basic common law right at issue on these appeals is [the appellants’] right to access to a domestic court or tribunal to challenge the basis for including their names in the list of persons associated with Al-Qaida or the Taliban and so freezing their property with the severe personal consequences already indicated     . . . The words of s 1(1) are general, but for that very reason susceptible to the presumption, in the absence of express language or necessary implication to the contrary, that they were intended to be subject to the basic rights of the individual . . . As an extreme form of restriction of individual liberty, internment without the right to challenge its basis before any court or judicial tribunal would, if it were to be possible at all, at the least require primary legislation. . . . It is a matter which one would expect to be subject to judicial control, before or after the designation.  So here, in my view, s 1(1) was and is an inappropriate basis for the Al-Qaida Order, freezing indefinitely the ordinary rights of individuals to deal with or dispose of property on the basis that they were associated with Al-Qaida or the Taliban, without providing any means by which they could challenge the justification for treating them as so associated before any judicial tribunal or court . . . (Ahmed, [2010] UKSC 2, [246], [249] (Lord Mance) (citation omitted) (emphasis supplied)).

This passage suggests (in the italicized language) that certain acts of the government, in the absence of any possible judicial assessment of their legality, are so fundamentally contrary to the principles of the British constitution that they would not be sustained by the courts and cannot be achieved by the government.

In Ahmed, the UK Supreme Court may already have said that the constitutional status of certain common law principles cannot be altered by statute.  If this is becoming the prevailing judicial perspective, the UK rule of recognition and the UK constitution may require a somewhat more complicated formulation than “whatever the Queen enacts in Parliament is law.”

Does Britain Want a Marbury?

In response to the notion that the UK rule of recognition has already shifted, traditionalists would argue (as Jeffrey Goldsworthy does in his most recent book) that a rule of recognition can change only through the actions and beliefs of all senior officials of the system, not just judges.  And since the judges cannot alter the rule of recognition by themselves, and since we do not yet see a consensus among all legal and political officials in Britain with respect to the courts’ authority to exercise judicial review over parliamentary legislation, sovereignty remains the cornerstone of the British constitution and the core of the UK rule of recognition.

In addition, proponents of sovereignty might point out that none of the cases I have mentioned contains an explicit assertion of a Marbury-style form of judicial review.  Perhaps this authority can be found in the subtext of these opinions, by those who seek it, but subtextual and inferential and indirect references to this judicial authority are not enough.  For the UK rule of recognition to change, the courts must claim this power for themselves, as Marshall did.  Then Britain must see what the reaction of its officials is to that ruling.

For defenders of parliamentary sovereignty as the constitutional orthodoxy of British law and politics, the answer to this question is no.  A thousand times, no.  Whether in terms of history and tradition, or in terms of theory and practice, sovereignty’s defenders believe an (explicit) assertion by the courts of co-equal institutional and constitutional authority will threaten the solid foundations on which centuries of British law have been built.  And in return Britain will be left with the unconstrained judicial activism of the US courts.

The concern that a British Marbury would inevitably supplant traditional parliamentary sovereignty in the UK with US-style “judicial supremacy” is widely shared, and not just by proponents of traditional absolute sovereignty.  In a recent post on this blog (2 April 2013), Dawn Oliver noted that the US Supreme Court has failed to prevent some of the worst political and human rights abuses in US history.  Professor Oliver’s point is beyond dispute.  And so Britons might reasonably conclude that the Supreme Court of the UK should not presume to fix what is not broken.

The problem is that governments do occasionally break things.  That is why decisions such as Ahmed and Belmarsh arise.  Professor Oliver’s well-taken observation about the historical and theoretical and practical differences between a presidential model of government contained within a written constitutional framework and a parliamentary model that has evolved through an unwritten constitutional tradition means that the UK Supreme Court will never transform itself into a reproduction of the US Supreme Court (even when it or its predecessor writes opinions such as Ahmed and Belmarsh).

Should Britain Have a Marbury?

So maybe the UK does not want or need a Marbury.  Should the UK Supreme Court write one, anyway?  Fig leaves and fairy tales may have their place, but a Supreme Court that no longer sits in Parliament’s building, a separate and independent institution in all respects, which is seen that way and which sees itself that way, should be able to say that it has the authority to invalidate governmental acts that violate constitutional principles.  The rule of recognition is defined by what the officials of the system do.  One of the most important things judges do as officials of the system is write opinions.  Professor Oliver is right to point out that the US Supreme Court did not prevent or correct important abuses of power throughout US history.  She is also right to note that it did correct some.  The UK courts have, too.  The time may have come for the UK Supreme Court to say that is what the UK courts are doing, when that is what they are doing.

The concern raised by Professor Oliver, which is shared by defenders of sovereignty such as Professor Goldsworthy, is that “A move to judicial review of legislation in the UK could well undermine the positive pro-constitutionalism, non-partisan aspects of the political and governmental culture.”  But as Professor Oliver reminded us, many of those problems in the US result from distinctive aspects of the political process in the US (i.e., a sometimes ambiguous written constitution that created a federal and presidential system of government, and a more aggressive and less civil political culture), which are not present in the UK.  It seems unlikely that the UK Supreme Court’s explicit refusal to countenance governmental abuses of power would change these other aspects of British government and politics.

Douglas Edlin is an Associate Professor and Chair at the Department of Political Science, Dickinson College, Carlisle, Pennsylvania.

Suggested citation: D. Edlin,  ‘Will Britain Have a Marbury?’  UK Const. L. Blog (7th June 2013) (available at http://ukconstitutionallaw.org)

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Derek O’Brien: The Basic Structure Doctrine and the Courts of the Commonwealth Caribbean

derek-obrien-33The basic structure doctrine, as first expounded by the Indian Supreme Court in the early 1970s in Kesavanand Bharati v Kerala (A.I.R. 1973 SC 1461), asserts that the law-making powers of a legislature are not unlimited in as much as they do not extend to altering the ‘basic structure’ of the constitution. Some 40 years later the same doctrine has been invoked in two cases by the Supreme Court of Belize to strike down amendments to the Constitution of Belize. In both cases the legislation amending the Constitution had secured the special majority in the House of Representatives required by the Constitution, but was nevertheless struck down by the Supreme Court on the grounds that the legislation violated the basic structure of the Belize Constitution. The cases are of interest not only because they are the first, and so far the only, examples of the basic structure doctrine being invoked by a Commonwealth Caribbean court, but also because they offer a valuable insight into how a dispute between the courts and the executive with regard to the implied limits on a legislature’s law-making powers might play out.

In the first case, Bowen v Attorney General BZ 2009 SC 2, a group of landowners sought to challenge the constitutionality of the Belize Constitution (Sixth Amendment) Bill 2008 (the Sixth Amendment). This was intended to enable the Government to exploit the recent discovery of oil in the country. Clause 2 of the Sixth Amendment thus sought to disapply the protection afforded by s. 17(1) of the Constitution to the owners of :

‘petroleum minerals and accompanying substances, in whatever physical state located on or under the territory of Belize…the entire property and control over which are exclusively vested, and shall be deemed always to have been so vested, in the Government of Belize.’

The purported effect of the legislation would thus have been to deny to the owners of any such interests in land the right to apply to the courts for compensation in the event of being arbitrarily deprived of such interests by the State.

Lawyers for the Attorney General argued that since the Sixth Amendment had been approved by the special three quarters majority required by s.69 of the Constitution there could be no challenge to its constitutionality. Chief Justice Conteh, however, disagreed. In his view the law-making powers of the Belizean Parliament are not unlimited in as much as the Belizean Parliament cannot ‘legitimately’ make laws that are contrary to the ‘basic structure’ of the Constitution itself. In the Chief Justice’s view, the basic structure comprised not only the fundamental rights guaranteed by Chapter II of the Constitution, but also the principles, ideas, beliefs and desires of the people of Belize as enshrined in the Preamble of the Constitution, which include, among other things, respect for the rule of law and the right of the individual to the ownership of private property. The Chief Justice also had regard to the principle of the separation of powers, which had previously been recognised by the Judicial Committee of the Privy Council (JCPC) into be a basic feature of the structure of the Westminster type Constitutions adopted by Commonwealth Caribbean countries upon independence (Hinds v The Queen [1977] AC 195) . This principle would be violated if the citizens of Belize were to be denied access to the courts for compensation for the arbitrary derivation of their property by the State.

But what about the approval of the legislation by a special majority of the National Assembly? Was this to count for nothing? In the Chief Justice’s view, s.69 was a mere ‘manner and form’ requirement, no more than a ‘procedural handbook’[101], and was certainly not determinative of the constitutionality of legislation enacted by Parliament. Quite apart from the formal procedures laid down by s.69, any prospective amendment of the Constitution had to conform to the Constitution’s normative requirements as captured by section 68, which provides that all laws enacted by Parliament must be ‘subject to the Constitution’[105] – [107]. Any other view would entail subordinating the supremacy of the constitution in favour of parliamentary supremacy, for once the required majority for an amendment is obtained then absolutely no constitutional provision would be beyond alteration or revocation [120].

Following the judgment in Bowen, the Government amended clause 2 of the Sixth Amendment to provide that nothing in the amended s. 17 would affect the rights of the owner of any private land beneath which any petroleum deposits are located to receive royalties from the Government (For an account of the fall out from the ‘Bowen’ litigation see Prime Minister Belize v Vellos [2010] UKPC 7).  As we shall see, however, this did not mean that the Government was prepared to accept the limitations placed on the Belizean Parliament’s law-making powers by the Supreme Court in Bowen.

In the second case, British Caribbean Bank Ltd v AG Belize Claim No. 597 of 2011, the applicant had originally challenged the constitutionality of the Belize Telecommunications (Amendment) Act 2009 (TCA 2009), the purpose of which had been to enable the Government compulsorily to acquire the properties, rights and interests held by the applicants in Belize Telemedia Ltd, a major provider of telecommunications services in Belize. Though the challenge to the constitutionality of the legislation had been dismissed at first instance it had been upheld by the Court of Appeal on the grounds, inter alia, that the TCA 2009 was contrary to the right to property under s.17(1) of the Constitution in so far as it did not prescribe the principles on which reasonable compensation was to be paid for the acquisition of the applicant’s property within a reasonable time.

In response to the Court of Appeal’s judgment the Government secured the enactment of the Belize Telecommunications (Amendment) Act 2011 (TCA 2011), which sought to address some of the problems with the TCA 2009 that had been identified by the Court of Appeal.  At the same time, and in order to put the renationalisation of the telecommunications industry beyond doubt, the Government also secured the enactment of the Belize Constitution (Eighth) Amendment Act 2011 (the Eighth Amendment). The Eighth Amendment not only sought to disapply the ‘supreme law’ clause of the Constitution to ‘a law to alter any of the provisions of this Constitution which is passed by the National Assembly in conformity with s.69 of the Constitution,’ but also expressly declared that ‘the provisions of [s.69] are all-inclusive and exhaustive and there is no other limitation, whether substantive or procedural, on the power of the National Assembly to alter this Constitution.’ As the Prime Minister frankly admitted, this was in direct response to the judgment of the Supreme Court in Bowen (See A Fiadjoe, ‘Legal Opinion on the Ninth Amendment Bill of Belize)Additionally, the Eighth Amendment added a new Part XIII to the Constitution, the effect of which was, firstly, to define the meaning of ‘public utilities;’ secondly, to vest majority ownership and control of all public utility providers in the Government; and, thirdly, by s.145(1) and (2), to declare that the Government’s acquisition of such public utilities was duly carried out for a public purpose.

A challenge to the constitutionality of the Eight Amendment was, however, upheld by the Supreme Court, which concurred with the judgment of Chief Justice Conteh in Bowen in concluding that the National Assembly is not legally authorised to make any amendment to the Constitution that would remove or destroy any of the basic structure of the Constitution of Belize [45]. Since the cumulative effect of the Eighth Amendment was to preclude the Court from determining whether the arbitrary deprivation of property by the Government was for a public purpose, the Eighth Amendment offended the principle of the separation of powers and the basic structure doctrine of the Constitution. To this extent the amendments to the Constitution were unlawful, null and void.

Though the basic structure doctrine has now been prayed in aid by the Belize Supreme Court on two occasions, it has not yet been endorsed by any higher court in the region; an appeal to the Caribbean Court of Justice against the Court of Appeal’s refusal to award consequential relief to the applicants following its original judgment in British Caribbean Bank Ltd v Belize having been stayed pending the challenge to the TCA 2011. It is, as a consequence, difficult to predict whether the basic structure doctrine is likely to be taken up by other courts in the region. Potentially, at least, it is a very interesting jurisprudential development in a region where governments seem to be increasingly willing to amend their country’s constitution with a view to depriving their courts of the right to review the constitutionality of actions of the executive when implementing the death penalty even if they violate the right not to be subject to torture or inhuman or degrading treatment or punishment and to preserve legislation which criminalises homosexuality (See, for example, Jamaican Charter of Fundamental Rights and Freedoms).

However, the basic structure doctrine represents a significant departure from over a century’s worth of jurisprudence on the powers of legislatures, like those of the Commonwealth Caribbean, which are empowered by their constitution: to ‘make laws for the peace, order and good government ’ of their country. The plenary nature of the power thus granted was recognized by the JCPC in a series of historic decisions at the close of the nineteenth century, such as Riel v The Queen (1885) 10 AppCas 675, in which Lord Halsbury rejected the contention that a statute was invalid if a court concluded that it was not calculated as a matter of fact and policy to secure ‘peace, order and good government.’ The basic structure doctrine is also very difficult to reconcile with the following dicta of Lord Diplock in Hinds:

Where…a constitution on the Westminster model represents the final step in the attainment of full independence by the peoples of a former colony or protectorate, the Constitution provides machinery whereby any its provisions, whether relating to fundamental rights and freedoms, or to the stratum of government and the allocation to its various organs of legislative, executive or judicial powers, may be altered by those peoples through their elected representatives in the Parliament acting by specific majorities, which is generally all that is required (at 214).

Judicial attitudes towards constitutional review of legislation have, however, changed dramatically since Lord Diplock’s judgment in Hinds. In addition to the further development of the basic structure doctrine by the Indian Supreme Court, the South African Constitutional Court has asserted its power to review the content of constitutional amendments if they violated certain implied limits, (Premier of Kwazuly Natal v President of South Africa CCT 36/95) and the High Court of Australia has recognized that its Parliament’s law-making powers are subject to limitations which may be implied ‘in and from the text of the Constitution’(Nationwide News Pty Ltd v Willis (1992) 108 ALR 681 at 701-722). Even in Britain, in the absence of a codified constitution, a theory of common law constitutionalism has emerged, which is reflected in the dicta of a number of their Lordships in the case of Jackson v Attorney General [2005] UKHL 56 to the effect that the British Parliament, which has traditionally been regarded as legislatively supreme, may be subject to certain implied constitutional limits. As Lord Steyn remarked:

In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the House of Lords may have to consider whether this is a constitutional fundamental which even a sovereign Parliament cannot abolish [102].

It is, of course, one thing to pronounce hypothetically on the possibility of striking down legislation which infringes an implied constitutional limit: it is quite another to do as the Supreme Court of Belize has done and to strike down legislation to amend the constitution which has the support of no less than three quarters of the National Assembly. The challenge to representative democracy by the Supreme Court in these two cases could not be clearer. It is worthwhile noting, however, that, notwithstanding the radical nature of the Supreme Court’s decision in both cases the Government has not sought to appeal against either judgment and may be assumed, therefore, to have accepted ultimately that there are, indeed, some implied limits on the legislature’s power to amend the Constitution, irrespective of the support for the legislation that the Government may have been able to garner in Parliament.

Derek O’Brien is Principal Lecturer, Law School, Oxford Brookes University.

Suggested citation: D. O’Brien, ‘The Basic Structure Doctrine and the Courts of the Commonwealth Caribbean’  UK Const. L. Blog (28th May 2013) (available at http://ukconstitutionallaw.org).

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Dawn Oliver: Parliamentary Sovereignty in Comparative Perspective

oliver

I Parliamentary sovereignty in other countries

 In this post I defend the absence of judicial strike down powers in the UK by exploring the ways in which other countries besides the UK manage to function well as liberal democracies without courts enjoying strike down powers, and looking at some of the negative aspects of the USA system, which is sometimes held up as a model to which the UK should look.

A doctrine of parliamentary sovereignty in the particular sense that the courts will give effect to legislation passed by the Parliament on any subject matter, even if it is ‘unconstitutional’, is not unique to the UK. It applies in common law based New Zealand which – like the UK – does not have a formally entrenched written constitution (though a 75% majority in a referendum is required to certain aspects of the electoral system). It also applies in some of our Northern European neighbours, notably Finland, Sweden and the Netherlands.

New Zealand

Politics in New Zealand resembles that of the UK in a number of respects, including the development of constitutional conventions of political restraint in relation to the constitution and the cultivation of good relations between the courts, the Parliament and the executive (M. Palmer ‘Open the door and where are the people’ The white population of New Zealand is relatively homogeneous and cohesive. Special measures – the Treaty of Waitangi – protect the Maori.

The New Zealand Parliament enacted a Constitution Act in 1986 which describes the country’s constitutional arrangements but leaves the traditional doctrine of parliamentary sovereignty broadly in place. The principal purpose of the 1986 Act was to patriate the New Zealand constitution by breaking its links with and dependence on the United Kingdom’s legal system.

The constitutionality of laws in New Zealand, not being protected by American-style judicial review, is promoted in a range of informal ways. In 1986 Minister of Justice, later Prime Minister, Geoffrey Palmer established a non-statutory Legislation Advisory Committee. The Committee is serviced by the Ministry of Justice and generally meets every six weeks. Its terms of reference are as follows:

(a) to provide advice to departments on the development of legislative proposals and on drafting instructions to the Parliamentary Counsel Office;

(b) to report to the Attorney General on the public law aspects of legislative proposals that the Attorney General refers to it;

(c) to advise the Attorney General on any other topics and matters in the field of public law that the Attorney General from time to time refers to it;

(d) to scrutinise and make submissions to the appropriate body or person on aspects of Bills introduced into Parliament that affect public law or raise public law issues;

(e) to help improve the quality of law-making by attempting to ensure that legislation gives clear effect to government policy, ensuring that legislative proposals conform with the LAC Guidelines and discouraging the promotion of unnecessary legislation.

Its members include the President of the Law Commissioners, academics, practising barristers, judges and parliamentary counsel and civil servants. While it has no delaying power and it is open to the government to ignore its reports, it is assumed to have an effect upstream in government during the preparation and then the parliamentary processing of bills. It is very rare for the New Zealand Parliament to pass laws that would be regarded as ‘unconstitutional’. I shall return to lessons that may be drawn from the New Zealand approach in due course.

Sweden, Finland and the Netherlands

Doctrines of parliamentary sovereignty in the sense that the courts may not hold an act passed by the primary legislator to be invalid as being ‘unconstitutional’ also operate among some of our Northern European neighbours (see Jaakko Husa‘ Guarding the Constitutionality of Laws in the Nordic Countries: A comparative perspective’ in 48 American Journal of Comparative Law, 2000, p. 345). Practice in these non-common law, small country jurisdictions may seem of little relevance to the UK, but we share a number of important and influential characteristics with them which can cast light on how they, and the UK, manage quite well without constitutional review by the courts.

There is very little American or German style ‘judicial review’ of legislation in Sweden: judicial review is only permitted if the conflict with the Constitution or another higher law is ‘clear’ or ‘manifest’ (see Thomas Bull ‘Judges without a Court:  Judicial Preview in Sweden’ in T. Campbell, K. D. Ewing and Adam Tomkins The Legal  Protection of Human Rights: Sceptical Essays, Oxford, Oxford University Press, 2011;  Lars-Goran Malmberg in X. Contiades, ed. Engineering Constitutional Change: A Comparative Perspective on Europe, Canada and the USA, Abingdon, Routledge, 2012); in Finland there is none (see Jaakko Husa The Constitution of Finland, Oxford, Hart Publishing, 2011; Tuomas Ojanen ‘Constitutional amendment in Finland’ in Contiades ed, above; M. Suksi ‘Finland’ in Oliver and Fusaro, How Constitutions Change, Oxford, Hart Publishing, 2011; Kaarel Tuori in T. Campbell, K. D. Ewing and Adam Tomkins The Legal Protection of Human Rights: Sceptical Essays, above). These countries rely substantially on pre-legislative, abstract scrutiny – preview – of bills by special parliamentary committees: for instance the important and highly regarded Constitutional Committee of the Finnish Parliament; and, in the case of Sweden, on the work of its extra-parliamentary legislative committees in preparing proposals for legislation, and its Law Council, an official independent body similar to the French Conseil d’état or the New Zealand Legislation Advisory Committee, which scrutinises and reports on bills.

The Netherlands also lacks judicial review of Acts for constitutionality by the courts: this is forbidden by article 120 of the Constitution (see C A J M Kortmann and P P T Bovend’Eert The Kingdom of the Netherlands: An Introduction to Dutch Constitutional Law, Boston, Kluwer Law and Taxation Publishers, 1993). The Netherlands system relies on its Council of State to ‘control’ [scrutinise] and report on bills before they are passed. Its parliamentary committees are weak.

Each of the ‘preview’ bodies in these three countries includes lawyers in its membership – judges, academics or practitioners – and in some respects they adopt formal procedures which resemble those of the courts: hence the phrase ‘judicial preview’ may be applied to them, though they are none of them ‘courts’. In summary, each of these countries has developed a system of constitutional preview involving extensive consultation about and expertly advised non-partisan scrutiny of legislative proposals at a number of stages in the legislative process which has proved effective in preventing the making of ‘unconstitutional’ laws.

Despite the restrictions on or absence of judicial review for constitutionality only seldom, if at all, are laws passed which seriously conflict with constitutional principles in these countries. (Readers may be thinking that ‘seldom’ is not as good as ‘never’; and why does only ‘serious’ conflict matter? Perfection is unachievable in these matters. Is it the fact that bad laws of a constitutional nature have never been passed and given effect by the courts under their written constitutions in countries with judicial review? Surely not. (I shall consider the position on this issue in the United States briefly below.) On the other hand the Netherlands is a monist system and thus treaties, including for instance human rights treaties, have direct legal effect and give rise to rights that individuals may enforce in the courts. Thus there is in practice a form of judicial review of provisions in Acts which a court in the Netherlands may ‘disapply’ in case of incompatibility with treaty provisions, some of which are ‘constitutional’ in nature.

Sweden and the Netherlands, like the UK, are constitutional monarchies: they have evolved continuously over at least two centuries gradually subjecting the exercise of formerly wide powers by the head of state and government to legal and conventional constraints. The Constitution of Sweden dates from the Instrument of Government, 1809. The Constitution of the Netherlands as an independent state and monarchy dates back to 1814. Finland was part of Sweden until it became a Russian Grand Duchy – similar to a monarchy – of Russia in 1809. The Finnish Constitution of 1917-1919 was drafted on the assumption that the country would be a monarchy or German Grand Duchy, but this became impossible after the defeat of Germany in World War I and Finland turned to electing a President who enjoyed some powers of a King. Thus although the Finnish Head of State is a President the country has retained some of the traditions of continuity that constitutional monarchies possess ( see Seppo Hentila in The Parliament of Finland (Helsinki, The Parliament of Finland, 2000) pp. 35-45; Jaakko Husa,  above.)

Each of these countries has a parliamentary executive, thus allowing constitutional traditions and conventions of responsible and responsive government to evolve and regulate the relations between the parliament and the executive in ways that are not possible in non-parliamentary, presidential systems; each has a fairly homogeneous population most of whose members share senses of common identity and common interests. Where, as in the Aland Islands of Finland, a population has a separate identity, special arrangements for their protection have been made. These countries have fairly consensual political traditions (see for instance Arend Lijphart, The Politics of Accommodation: Pluralism and Democracy in the Netherlands, 2nd edn. , Berkeley: University of California Press, 1975, on The Netherlands), and there are cultures of non-partisan approaches to constitutional matters or political traditions of pragmatic compromise: these tendencies may be reinforced by the fact that each uses a system of proportional representation in elections. The Finnish Constitutional Committee and the Swedish and Netherlands Councils of State act in quasi-judicial ways, taking advice from lawyers, often academics, and  evidence, formulating their opinions in terms of constitutional legality, and generally adopting non-political positions.

Where a non-partisan approach to constitutional matters does not exist in a substantial section of the population of a state, where for instance a population is seriously divided on class, racial, sectarian, tribal or religious grounds, non-partisan politics, especially in relation to minorities and constitutional matters, may be impossible: experience in Northern Ireland, with its divided unionist and nationalist communities, in the middle of the twentieth century illustrates the point. In such countries there may well be a need for a judicially enforceable Constitution –and/or international agreements to resolve conflicts – as are provided for by the Northern Ireland Act 1998 and the Belfast Agreement (Cm 3883, 1998).

The UK shares many characteristics with New Zealand, Sweden, Finland and the Netherlands including evolution of constitutional arrangements over many years and parliamentary executives.  Of course, the UK does not have a tradition of consensual party politics or coalition government. This may be due to the first past the post electoral system and to the fact that British politics retains elements of a class system, which in turn are reflected in some of the policies of the main political parties: class is less important in New Zealand and our Northern neighbours than in the UK. The UK does however, I suggest, have cultures and traditions that are hostile to partisan, and in favour of non-partisan, constitutional politics – again, Northern Ireland has been an exception: there consociationalism now provides a new form of consensus politics. But among the general public and in opposition parties opposition to partisanship in constitutional politics is deeply embedded in Great Britain.

It is broadly agreed and understood among Westminster parliamentarians and among the general public that constitutional change should not be brought about with a view to benefiting the party or parties in government or their supporters; rather constitutional changes should promote honestly held views about the public interest and where the balance between individual rights and conflicting public interests lies. Allegations of partisanship are of course made, especially by opposition parties and the critical press, when constitutional changes are under consideration. But Governments proposing change in the UK will never admit to partisanship: if they were to do so this would attract general public disapproval.

Partisan party political considerations no doubt influence the priority given to some proposals for constitutional change over others: commitments by the Labour government that was elected in 1997 to devolution to Scotland and Wales were no doubt influenced by fear of the Scottish National Party and Plaid Cymru winning over Labour voters if no such promise was made. That consideration does not however of itself detract from the merits of devolution, which are based in senses of shared national and regional identities and desires for government in these areas to promote general interests within each territory and for public servants to prioritise the interests of their populations, and not sectional interests.

This non-partisan understanding about constitutional change in the UK may exist because each government is an opposition in waiting and each opposition party is a government participant in waiting. The electoral system operates so that there are regular changes of government. It is not therefore in the interests of either government or opposition parties to concede a right to the others to use their power in relation to the constitution for party political advantage without any public interest justification. The terms of such debates take for granted that constitutional change should be non-partisan.

To sum up, nowadays the systems in New Zealand, Sweden, Finland and the Netherlands, and in the UK, include informal procedures, legal and political cultures and traditions which enable their constitutional arrangements to function reasonably well and generally without discriminating against parties and classes of people – without judicial strike down powers.

II Countries in which the courts may disapply or strike down legislation: the case of the USA

As is well known doctrines of parliamentary sovereignty in the specific sense that the courts will apply Acts passed by the Parliament regardless of their wisdom, workability or constitutionality do not apply in many countries with written and entrenched constitutions: the Constitution itself may contain clauses which limit the legislator’s power to make certain laws, for instance laws which interfere with federal principles or constitutionally protected human rights, or the independence of the judiciary either forever (eternity clauses, as in the German Basic Law) or unless and until the text of the Constitution is amended in accordance with special procedures such as two thirds majorities in the legislature and assent by three quarters of the states (as in the USA), referendums (as in Switzerland) and so on. And in those countries the courts – either all courts, or a Constitutional or Supreme Court – may disapply (in a concrete case) or strike down (for universal effect) legislation passed by the legislator/Parliament which breaches the Constitution: the USA and Germany are well known examples of countries in which a strike down power exists, but this is the case in very many liberal democracies.

The USA

The USA is an interesting example of how a system based on the common law has evolved differently from that of New Zealand and the UK and its Northern European neighbours. The USA was formed in a revolution and rejected the hereditary monarchy; it introduced instead an elected, rather monarchical, Presidency many of whose powers are very broad and ill-defined in the Constitution, legally controlled to an extent by Congress and by judicial review by the Supreme Court – but not, politically, by conventions. Other presidential powers are so constrained by Congress, in which the President may not have a majority, that it becomes almost impossible for even the most basic new laws to be passed without protracted political wrangling.

Why is this not the case in the UK – and in New Zealand and Canada and other Commonwealth nations? (s ee for instance T. Kahana ‘Canada’, M. P. Singh ‘India’, and P. Rishworth ‘New Zealand’ in Oliver and Fusaro, eds, above). In these countries conventions have evolved over time to deal with the fact that the Crown was not subject to judicial review – individual ministerial responsibility to Parliament being the most significant of these conventions. No such evolution took place in the USA because, the system being presidential rather than parliamentary, no confidence relationship exists between the President and Congress, and because all the ground rules are assumed to be contained in the Constitution and the decisions of the Supreme Court: in this respect the USA is a highly positivist system. The fact that the USA took a different and ‘non-conventional’ route from that taken by the UK and many Commonwealth countries and many other constitutional monarchies may go some way to account for the development of constitutional judicial review in the USA and in other states with executive presidencies, and for its absence in the UK and its legally related cousins.

The positivist approach and the absence of political conventions that constrain the exercise of executive power may also account for the fact that neither party political nor constitutional politics in the USA are consensual: the Constitution itself has been subject to political manipulation, the appointments to the Supreme Court have become politicised, and many executive and Supreme Court decisions on constitutional issues are wide open to allegations of political partisanship. Given that the United States Supreme Court’s constitutional judicial review jurisdiction is commonly looked to as an example to be followed by the UK, we should bear in mind that America is very different from the UK in many respects. It is not a parliamentary system. It is federal while the UK is a union state:  it is essential in a federation that the states are judicially protected against encroachment on their powers by the federal institutions. By contrast the devolution arrangements in the UK specifically preserve the UK Parliament’s sovereignty. America’s political culture is even more aggressive than that of the UK and far less civil in its political and legal affairs: incivility is recognised as a problem in the USA (see for instance Susan Herbst, Rude Democracy: Civility and Incivility in American Politics,  Philadelphia, Temple University Press, 2010; Dr Leslie Gaines-Ross ‘Incivility is harming America’s reputation’ at http://reputationxchange.com/2011/06/21/incivility-is-harming-americas-reputation/) whereas it is not – so far – seen to be a real problem in UK politics and legal practice.

The US Supreme Court has of course a positive record in relation to the Constitution, in particular human rights, in some areas, including the desegregation of schools (Brown v Board of Education 347 US 483 (1954)), and abortion (Roe v Wade 410 US 113 (1973). American arrangements are not, however, by any means watertight guarantees of human rights or good government (see generally T. Campbell, K.D. Ewing and A. Tomkins The Legal Protection of Human Rights: Sceptical Essays, above), and this should be borne in mind by those arguing for the adoption of constitutional review in the UK. No system is watertight. The USA Constitution and the Supreme Court’s role in interpreting and upholding the Constitution, and the political and public cultures there have not prevented the following:

a)     Slavery (abolished by the Thirteenth Amendment, 1865; compare the ending of slavery throughout the British Empire by Act of Parliament in 1833, and its ending at common law in Somersett v Steuart (1772) 20 St Tr 1 (England) and Knight v Wedderburn  (1778) Moor 14545 (Scotland)).

b)    Racial segregation (upheld by the Supreme Court  in Plessy v Ferguson  163 US 537 (1896), but later declared unconstitutional by the Supreme Court in Brown v Board of Education 347 US 483 (1954); the move to constitutionally required integration came with the Supreme Court decision in Green v School Board of New Kent County  391 US 430 (1968)).

c)     Discrimination (phased out in a series of Civil Rights Acts in 1964, 1965 and 1968).

d)    The denial of voting rights to slaves (ended by the Fifteenth Amendment, 1870, which guaranteed the right to vote without regard to race) and women (the Nineteenth Amendment, 1920, completed the extension of the franchise to women, providing that the right to vote could not be denied ‘on account of sex’).

e)     Denial of many labour rights (Lochner v New York 198 US45 (1905)).

f)     Prohibition (established by the Eighteenth Amendment in 1920, ended by the Twenty First Amendment in 1933).

g)     The race based gerrymandering of district boundaries (found to be unconstitutional by the Supreme Court in Gomillion v Lightfoot 364 US 339 (1960); see also Miller v Johnson 515 US 900 (1995) and Hunt v Cromartie 532 US 234 (2001). Partisan gerrymandering continues).

h)    The widespread use of the death penalty,

i)      The upholding of unfair campaign financing practices (Buckley v Valeo 424 US 1 (1976); Citizens United v Federal Election Commission 558 U.S. 310 (2010)).

j)      Resolution by the top court of a major presidential election dispute in favour of the candidate who received fewer votes than his opponent, reinforcing the incentives for a President to pack the Supreme Court with sympathetic judges (Bush v Gore 531 US 98 (2000)).

k)    Detention of suspects without trial off-shore for lengthy periods.

Such problems should be borne in mind by those encouraging the UK and its courts to adopt US style judicial review, especially if they are encouraged to do so unilaterally and without a mandate in the form of legislation passed by Parliament or the adoption of a written constitution for the UK. A move to judicial review of legislation in the UK could well undermine the positive pro-constitutionalism, non-partisan aspects of the political and governmental culture.

III Concluding remarks

Of course other countries with entrenched written constitutions and Constitutional or Supreme Courts exercising judicial review of Acts may have different experiences of the workings of their arrangements. Such a system works well in Germany, for instance. But each has its own history and political and legal cultures. These should not be overlooked when fundamental changes to the British arrangements by virtue of unilateral and thus irreversible assumption of a strike down power by the courts is contemplated or argued for. Hints by some of the judges in Jackson v. Attorney General ([2006] 1 AC 262) to the effect that the courts may exercise a reserve power to refuse to give effect to a provision in an Act that was contrary to the rule of law should ring alarm bells. If the UK were to adopt an entrenched written constitution providing for a Supreme or Constitutional Court with strike down powers the controversies about such powers would not go away. But at least the Court could point to the Constitution as granting it that power. Our current courts cannot point to any such legitimating source: they should not assume such a power.

Dawn Oliver is Emeritus Professor of Constitutional Law at University College London. 

 Suggested citation: D. Oliver, ‘Parliamentary Sovereignty in Comparative Perspective’ UK Const. L. Blog (2nd April 2013) (available at http://ukconstitutionallaw.org)

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Se-shauna Wheatle: The Residual Powers of the Court

There has, justifiably, been much debate about the implications of the judgments of the Supreme Court of the United Kingdom in R (Jackson) v Attorney General [2005] UKHL 56, [2006] AC 262 and AXA General Insurance Ltd v The Scottish Ministers [2011] UKSC 46, [2011] 3 WLR 871. What is perhaps the most constitutionally significant aspect of these judgments is the court’s professed residual power to review legislation on common law grounds. The term ‘residual power’ is the coinage used by Lord Reed in a seminar conducted at Balliol College, Oxford, on May 2, 2012. The very labelling of the power as residual is significant because it evokes questions about the source of the power and the frequency with which it be deployed. The label ‘residual’ suggests that the power is not to be located in the text of a statute. This is rather basic, but is of course, one source of controversy surrounding the very assertion of this residual power. The fact that it is not located in a statutory text raises questions as to the democratic legitimacy of the power; it also heightens concerns about the scope of such a power and about the wisdom of permitting judges to delineate the scope of that power. Beyond the question of legitimacy lie further questions about the implications of the judgments in Jackson and AXA with respect to the definition and application of the purported residual power to review legislation. I will first distinguish the residual powers asserted by judges in the two cases, discuss whether the vagueness of the residual powers poses a problem, and end with a note on the precedential impact of the judgments.

1.     The Purported Residual Powers of the Court

Two residual categories have been identified by the Law Lords in these two cases. The first of these is ‘exceptional circumstances review’ as outlined by Lord Steyn in Jackson and Lord Hope in AXA. This category of review may arise where a statute violates the rule of law and the court is required to invalidate the statute because of its duty to protect the rule of law. The second is where review can be justified on the principle of legality as outlined by Lord Reed in AXA. The latter branch of residual power is potentially more limited than the former in at least two senses. It is conceptually more limited in that, though Lord Reed invokes the rule of law in support of this power, it is based more specifically on the principle of legality. For Lord Reed, then, the court’s residual power to invalidate legislation rests on the presumption of legality, which ‘means not only that Parliament cannot itself override fundamental rights or the rule of law by general or ambiguous words, but also that it cannot confer on another body, by general or ambiguous words, the power to do so.’ This is a restatement of the principle of legality as articulated by Lord Steyn in Reg. v. Secretary of State for the Home Department, Ex parte Pierson [1998] AC 539 and Lords Steyn and Hoffmann in R v Secretary of State for the Home Department, ex p Simms [2000] 2 AC 115. Secondly, legality-based power is of more limited scope in its applicability. Insofar as it allows courts to disapply or invalidate legislation, it appears to only be applicable to subordinate legislatures because Lord Reed’s reasoning on the principle of legality is that Parliament cannot, by general or ambiguous words, confer on another body the power to override fundamental rights or the rule of law [152-153].  The principle is therefore quite potent as applied to legislation of a subordinate legislature because it would allow the court to invalidate a statute or statutory provision as outwith the powers of that legislative body. As applied to a sovereign Parliament such as the UK Parliament, the principle allows for (creative) interpretation of Acts of Parliament but not outright judicial rejection of such legislation. By contrast, the power identified by Lord Steyn in Jackson and Lord Hope in AXA has the potential to be much broader, encompassing the potential for review of legislation enacted by the UK Parliament.

2.     Vagueness: Problem? What Problem?

Commentators have rightly indicated that the residual categories (particularly ‘exceptional circumstances’ review based on the rule of law) suffer from a vagueness problem. The vagueness arises in at least two areas. The first is the lack of clarity as to what constitutes ‘exceptional circumstances’. This in turn raises questions as to the rule of law values which would have to be threatened and as to degree of threat to such values which would provoke the court’s intervention. The second area of vagueness is that it is unclear what action or intervention such a threat might provoke from the courts. Will the court’s intervention appear in the form of extremely creative (re)interpretation of statute, disapplication of a statute in a particular case or invalidation of a statute? The vagueness inherent in the exceptional circumstances category may be defended on the ground that as a residual power, there must be uncertainty in its formulation. Yet, it is not entirely convincing that a residual category must necessarily be vague. A residual power could be formulated to permit the court’s intervention only in circumstances where legislation seeks to abolish judicial review, thereby interfering with access to the courts. This was one of the examples given by Lord Steyn in Jackson [102] and it is conceivable that exceptional circumstances review could be limited to exceptional possibility. The problem is that Lord Steyn did not limit the circumstances to such cases nor did he provide a definite indication of the scope of ‘exceptional circumstances’. It is arguable that the judges have quite deliberately left the category vague in order to allow flexibility for the court to develop the category as it sees fit and to craft what it deems to be an appropriate response to circumstances it has not, and perhaps could not have foreseen. Perhaps more importantly, Lord Reed in the seminar at Balliol College, took the view that it was ‘not a problem’ that the content of the ‘rule of law’ and ‘fundamental rights’ which underlie both categories of residual power are vague. In his view, this may encourage authorities to be more careful. This argument in defence of the vagueness of the scope of the residual powers emphasizes the inter-institutional dialogue that is at play in AXA and Jackson.

3.     Inter-Institutional Dialogue and Setting Precedents

It has been accurately observed that some of the obiter dicta in Jackson were a direct response to the proposed Asylum and Immigration (Treatment of Claimants etc.) Bill, which would have sought to oust judicial review of decisions of the court, even where those decisions were alleged to be in breach of natural justice. One could therefore be tempted to relegate these judicial pronouncements to the realm of inter-institutional dialogue and as mere warning shots directed at the government and Parliament. This, however, does not mean that we must not take the judges seriously. AXA is proof of the need to take the assertion of residual powers of the court seriously and of the need to debate the practical implications of the purported residual powers of the courts and to interrogate the normative justification for such powers. It is true that the actual judgment in AXA was limited to finding that the Supreme Court had power to review Acts of the Scottish Parliament on the common law grounds identified by the judges, however, this in itself is a significant development which was based, in part, on the dicta in Jackson regarding the power to review Acts of the UK Parliament.  Further, Lord Hope’s judgment in AXA, with which the other Law Lords concurred, stated that ‘[t]he question whether the principle of the sovereignty of the United Kingdom Parliament is absolute or may be subject to limitation in exceptional circumstances is still under discussion.’ [50] Out of inter-institutional dialogue, the roots of dramatic precedent may spring up. We should not discount the role of persuasive precedent in developing the law, particularly the ‘uncharted territory’ of constitutional law which arose for discussion in these two cases.

It remains to be seen exactly how these judgments will affect the development of constitutional theory and practice. The issues raised in this piece, and others that have been discussed elsewhere, must be addressed. The judgments are, at least, one step in grappling with the tension that may arise between parliamentary sovereignty and other constitutional principles.

Se-shauna Wheatle is a DPhil Candidate at Balliol College, and Lecturer in Law, Exeter College, University of Oxford.

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Mike Gordon: What is the Point of Exceptional Circumstances Review?

A great deal of the controversy surrounding the recent case of Axa General Insurance Ltd v Lord Advocate [2011] UKSC 46, already much discussed on this blog, stems from the notion of ‘exceptional circumstances review’.  The Supreme Court’s decision that it has the authority as a matter of common law to reject Acts of the Scottish Parliament (ASPs) in exceptional circumstances raises a range of important constitutional questions:  is the Supreme Court’s interpretation of the Scotland Act 1998, and in particular section 29, compelling, or could the legislation be read to exhaust the possibility of common law limits on ASPs?  Is it normatively attractive for courts to arrogate to themselves the final say over the constitutionality of legislation enacted by a democratic legislature?  Is the power outlined by the Supreme Court in Axa only effective against the primary legislation enacted by devolved legislatures, or is the sovereignty of the UK Parliament also now threatened?

Doubtlessly other critical questions can also be identified, and yet, as important as these issues are, this post will focus on a more general matter.  Is the very notion of exceptional circumstances review, detached from some of the particularities of the UK constitution, a useful one?  Such an approach seems appropriate in light of Lord Hope’s comments in Axa that in developing such a power, the Supreme Court was in ‘uncharted territory’, with the issue therefore having ‘to be addressed as one of principle’ [48].

It might initially be objected that the point of exceptional circumstances review is obvious – it serves to prevent gravely iniquitous legislation from being recognised as law – rendering further reflection on its purpose essentially redundant.  Yet while we may all agree that the avoidance of bad law is a worthwhile objective, it is not at all clear that giving courts the authority to review legislation in exceptional circumstances is an effective way to achieve it.  Two particular issues with the concept can be discerned.

1)    What circumstances count as exceptional?

The very notion of exceptional circumstances is inherently vague, offering little indication as to the scope or content of the power claimed.  Even if we accept that such a power would be exercised only in genuinely exceptional situations (although as Jeffrey Goldsworthy and Mark Tushnet have both argued, it is in the nature of courts to seek to test the boundaries of a power once obtained, and in so doing expand its scope beyond what was originally envisaged), we will necessarily be reliant on judicial evaluations of exceptionality.  And while such judgments may well be contestable, perhaps the bigger problem is that they are likely to be difficult to predict.

If we return to Axa for a moment, the consideration there given to exceptional circumstances offers sparse guidance as to the situations in which the Supreme Court’s new authority will be invoked.  The rule of law is cited by both Lord Hope [51] and Lord Reed [149] as constituting the ‘ultimate controlling factor’ at the root of the court’s new power, but the deployment of such a disputed, fluid concept only serves to amplify, rather than cure, the already conspicuous uncertainty.  An alternative (or perhaps complementary?) foundation suggested by both judges is that of fundamental individual rights, yet even if an account of such rights could be agreed, little clarity is gained unless we can also establish the level of interference that will be unjustifiable.

Beyond Axa, other immutable values that require absolute protection might also be identified; Lord Steyn, for example, argues in R. (Jackson) v Attorney General [2005] UKHL 56 that ‘oppressive and wholly undemocratic legislation’ could not be tolerated [102].  Yet the difficulty persists in relation to this formulation too, for the truly critical problem is not in identifying appropriate abstract values, but that those values must remain abstract to attract broad acceptance.  Indeed, it is when we come to differentiate between those violations of the rule of law, or fundamental rights, or democracy that are tolerable, and those that are exceptionally intolerable, that consensus is liable to break down, with the corollary that the likelihood of judicial intervention becomes hard to foresee.

The uncertainty inherent in determining what is an exceptional violation of constitutional principle makes this power remote from ordinary citizens and inadequate for political decision-makers.  Citizens will find it a challenge to determine whether legislation that offends their conception of justice will be similarly received by the judiciary, making a decision to seek judicial review fraught with complexity.  Legislators and officials will glean little useful guidance as to how they should properly exercise their power from the underdeveloped premise that flawed legislation may be exceptionally struck down.  And with so little which is clear and certain settled in advance, any judicial decision to exercise, or not to exercise, this authority may appear arbitrary to aggrieved parties.  There is therefore little to recommend the cultivation of a power of exceptional circumstances review over the protection of fundamental values through some variety of Bill of Rights, regardless of how imperfect we might believe such rights instruments to be.

2)    Is this a legal power at all?

One potential response to what has been argued above is that such a power to reject legislation should only be used where there is no uncertainty.  The judicial exercise of such a power would, in other words, be justified where there existed comprehensive agreement as to the exceptional deficiency of some specific legislative act.  But how, in practice, would it ever be possible for the circumstances of such agreement to be satisfactorily established?

We might then, in contrast, question whether such a power which can only be imprecisely formulated is really a legal power at all.  This is not to claim that such a vague power is conceptually incapable of being considered legal, but to query whether the Supreme Court has actually articulated exceptional circumstances review as a legal doctrine.  It seems clear that this is a power designed not to be used.  It would be extremely difficult for courts to settle definitively the kind of constitutional crises in which an exceptional power to reject legislation could conceivably be invoked.  Would we really seek to challenge a genuinely fundamental repudiation of constitutional values through litigation?  Even if an expedited means of bringing legal proceedings were available, courts are simply not equipped to prevail over other institutions of government in brute constitutional conflicts, and would be unlikely to be able to provide any effective relief in times of severe political strife.  While this power remains unused, however, it also goes essentially unchallenged, and maintains a degree of relevance in constitutional discourse, even if this is only notional.

It might, then, be better to understand judicial assertions about exceptional circumstances review as an emanation of inter-institutional manoeuvring, rather than a claim about the power of the courts under the present constitutional order to reject legislative acts in crisis situations.  Courts as institutions lack a formal outlet through which they can encourage the legislature, or the government that controls it, to take rights, or the rule of law, or democracy, seriously.  Yet it is possible for the courts to communicate with the other institutions of government through their reported judgments, and a threat to establish a supervisory jurisdiction over legislative functions could be seen to have a similar effect as such encouragement.  In light of this, it is perhaps significant that the only specific example of exceptional circumstances offered both in Axa [51] and Jackson [102] is legislative action to oust or abolish the courts’ ordinary power of judicial review over administrative action, with the notion of the rule of law arguably used here as a conduit to protect the judges’ jurisdiction against encroachment by other institutions.  A court may purport, therefore, to be developing a jurisdiction to reject legislation in extreme situations, yet we can make sense of such endeavours without concluding that this is a power they do in fact possess as a matter of constitutional law.

Yet if judicial claims about the potential for exceptional circumstances review are simply a means of reemphasising the importance of a number of fundamental constitutional values to the other institutions of government, are they really of any great interest?  After all, when it is considered that these fundamental principles must already underpin the existing constitutional settlement, and be embedded to a substantial extent in constitutional practice, the judicial reiteration of their significance may appear to be a rather banal message, in contrast with the controversial means of its delivery.  Further, given the abstraction necessarily involved in their formulation, the invocation of such elementary principles, devoid of critical detail, will do little to assist with the resolution of the sort of difficult constitutional questions which must be confronted in mundane, as well as exceptional, situations.

What then, we might wonder, is the point of exceptional circumstances review?

 

Dr Mike Gordon is Lecturer in Public Law at the Liverpool Law School, University of Liverpool.

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Bradley W. Miller: Proportionality and Legislative Purpose

In conducting constitutional review with a proportionality test, much depends on the how the purpose of the challenged legislation is characterized by the reviewing court.  It is a commonplace that the loftier the purpose attributed to the legislation, the more difficult it will be to judge that legislation to be disproportionate at the balancing stage.  The less important the attributed purpose, the easier it will be.  The importance of getting the purpose right, in this sense, is well-documented by academics and well-understood by counsel; succeed in characterizing the purpose, and success on the ultimate question will likely follow.

Somewhat less studied is this short-cut:  If the purpose can be characterized as wholly improper, the legislation will fail at the very first stage of the proportionality analysis.  So there is a powerful incentive for those challenging the legislation to characterize the purpose as improper.  Nevertheless, a finding of an improper legislative purpose is something of a rarity.  Why should that be?

For one thing, we would expect that governments that pre-vet their draft bills through battalions of constitutional lawyers should pick up on these sorts of problems at an early stage.  So contemporary legislation, at least, should only suffer from obvious defects of this nature in extraordinary circumstances.  The situation might be different, though, for legislation that pre-dates contemporary vetting procedures.  It might be thought that the legislators of, say, the 19th century not only lacked this institutional support, but also lacked the inclination to suborn to the principles that were later posited in contemporary bills of rights.  The real surprise, according to this line of thought, would not be that some pre-bill of rights legislation carried an improper legislative purpose, but rather that any such legislation was enacted with what we now would accept as a proper purpose.

Another reason for the rarity of condemnations of legislative purpose of new legislation is the confrontational nature of the finding.  It is one thing for a reviewing court to tell Parliament that it chose the wrong means to achieve a salutary objective, or that it overlooked some of the side-effects of a laudatory program.  It requires rather more nerve to assert that legislation was enacted by Parliament precisely to carry out an unlawful, corrupt, or even vicious purpose.

Would it make any difference if the responsible Parliament sat two or three generations ago?  It would be less confrontational to impute improper motives to legislators whose electoral mandates expired, say, 70 years ago.  They will not have left behind the same volumes of paper as their successors to speak to the purposes behind their legislation.  And the legislators of the previous century will have few contemporary defenders, particularly if they sat at a time that contemporary judicial and legislative elites tend to caricature or disparage for its putative lack of sophistication.

What I am suggesting is that there may be a special hazard in conducting proportionality analysis with respect to the constitutionality of ‘vintage’ legislation.  The passage of time since the legislative enactment can block the inhibitory pathways that make courts more reluctant to attribute bad faith to contemporary Parliaments.  And misunderstandings of language and patterns of thought – not to mention self-congratulatory attitudes about moral progress – can derail attempts to understand the reasoning behind older legislation.

This hazard of mischaracterization is amply illustrated in Canadian case law where courts have characterized the purposes of criminal offences related to sexual acts.  The most recent example (and one could draw almost at random from the dockets of the past 20 years) is from a decision of the Court of Appeal for Ontario that invalidated several of the Criminal Code R.S.C., 1985, c. C-46 provisions criminalizing matters related to prostitution, Canada (Attorney General) v. Bedford, 2012 ONCA 186.

The Ontario Court of Appeal came to the surprising conclusion that none of the various Criminal Code provisions related to prostitution (prohibitions on maintaining a bawdy house, living off the avails of prostitution, or communicating for the purposes of prostitution) could be characterized, either separately or taken as a suite of provisions, as directed towards the eradication of prostitution.  Parliament’s attitude towards prostitution, it was said, is no different than its attitude towards any other legal commercial enterprise.  Prostitution was not to be discouraged, but to be tolerated.

The conclusion seems open to question, resting, as it does, on the mere absence of a parliamentary record needed that positively establishes the contrary.  We can contrast the Court of Appeal’s treatment of this question with the Supreme Court of Canada’s treatment of the Tobacco Act, S.C. 1997, c.13 in Canada (A.G.) v. JTI-Macdonald Corp., [2007] 2 S.C.R. 610,  which is not only more recent legislation but addresses a less controversial subject.  Like Parliament’s approach to prostitution, the Tobacco Act does not prohibit the acts of manufacture, purchase, or consumption of tobacco products.  Instead, pursuant to the federal criminal law power, it prohibits most tobacco marketing practices, and severely restricts the ability of cigarette manufacturers to communicate with consumers.  When reviewing this legislation, the Supreme Court of Canada had no difficulty coming to the conclusion that its purpose was to discourage tobacco use, even though the means chosen did not include a ban on the sale of cigarettes.

Why the difficulty in concluding that the prostitution-related offences were intended to discourage or hamper prostitution?  What can explain the difference in the characterization of the purposes of these statutes?  If there is no relevant difference in the policy approach, the explanation must lay elsewhere.

The timeline may provide a partial answer.  The bawdy house provision, for example, has been on the books for over a century, and was inherited from English common law.  Documentation of its purpose is slim and provides the reviewing court with a great deal of room to construct a purpose.  The Tobacco Act, in contrast, was enacted in 1997 and, in keeping with contemporary drafting practices, is much more explicit as to its purpose.

The rest of the answer comes through an examination of the judiciary’s peculiar treatment of historical legislation (and case law) predicated on a normative evaluation of sexual acts.  Victorian legislators (and their successors up to the mid-20th century) who criminalized acts of indecency or obscenity are often portrayed as acting so as to preserve conventional morality per se.  That is, they are understood as acting for the comparatively trivial purpose of preventing the offence to the public that is caused by others flouting social conventions.  The conventions themselves are understood to be mere matters of taste – matters that are indifferent in themselves – such that there can be no genuine, free-standing wrong in breaching them.  In contrast, contemporary criminal prohibitions are usually characterized in terms of combating ‘harm’ (usually understood thinly, in the sense of empirically observable acts of violence, theft, fraud, and the like) rather than as preserving ‘morality’ (understood as individualistic, subjective, and incapable of being true or false).

In this respect, the reasoning in Bedford as to what constitutes a proper legislative purpose is both typical and fallacious.  The objectives of the historical bawdy-house provisions are characterized in Bedford as ‘safeguarding the public peace and protecting against corruption of morals.’  This is condemned as illegitimate, on the basis that it constitutes ‘imposing certain standards of public and sexual morality’ for no greater reason than these are the mores of the community.  In contrast, a prohibition of bawdy-houses could be maintained, the Court said, if it were enacted for the purpose of advancing ‘modern objectives of dignity and equality’ [190].

I have argued elsewhere that prohibiting acts for no better reason than to maintain social solidarity, and without regard to whether the acts in question were truly immoral (as Patrick Devlin famously championed), would indeed be an improper purpose.  But it is not at all clear that the bawdy-house provision is well-described in these terms.  It seems implausible that the purpose of legislation such as the prohibition of bawdy houses and related offences was simply to preserve conventional standards of morality qua conventional.   Surely legislators then, as now, were motivated by the moral judgment that certain acts are seriously wrong, including the moral judgment that persons (particularly children) are treated unjustly if they are not protected from observing the occurrence of these acts, and from the inference that their toleration shows that they are accepted by the political community as an acceptable kind of conduct.  That is, Parliament can be taken to have believed: (1) that there is a need to protect the public from a genuine threat, and (2) that it would be an injustice to the people for whom they are responsible (both actors and third parties) if they fail to act legislatively against that threat.

The legislation would have flowed, not from a concern to prevent offence, but precisely from those sorts of considerations that the Court of Appeal for Ontario accepted as properly grounding legislation: concerns about the harms to persons that flow from a denial of their dignity and equality.  Legislatures then as now were motivated to prevent genuine harms to persons.   The judgment that an act is immoral typically flows from the judgment that it causes some harm (either to the actor or to a third party).  Contemporary courts risk misunderstanding (and devaluing) legislation (old and new) to the extent that they manifest the misunderstanding that legislators then were not concerned with “morals” (understood without reference to harm, equality, or dignity), and that contemporary legislators are not manifesting moral judgments, but merely judgments about what is “harmful” (understood without reference to the moral nature of the harm).  The difference between contemporary and vintage legislation with respect to morals laws is often a difference of vernacular, not substance.

Bradley W. Miller is an Associate Professor in the Faculty of Law at the University of Western Ontario.

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