Tag Archives: Constitutional Theory

Thomas Adams: Wade’s Factortame

Thomas CarterWilliam Wade’s analysis of the second Factortame case ((1996) 112 Law Quarterly Review 568) is well known, and justly so. The facts, too, require little in the way of rehearsal.  Briefly, and simplifying somewhat: the House of Lords, as it was then known, decided in 1990 to ‘disapply’ a 1988 statute of the UK Parliament – the Merchant Shipping Act (hereafter the MSA) – which may otherwise have frustrated the exercise of rights recognized in EU law, specifically, the rights of a number of Spanish fishermen to trawl in UK waters. In doing so, the court took itself to be acting under the auspices of the European Communities Act 1972 (hereafter the ECA), itself an Act of Parliament. The ECA provides, by section 2 (4), that European Union Law is to prevail over inconsistent Acts of Parliament ‘passed or to be passed’. Wade’s view was that, in ‘disapplying’ the 1988 Act, the House of Lords altered the fundamental rule of recognition in UK law and thereby affected a technical legal ‘revolution’, one which all but overthrew the doctrine of Parliamentary Sovereignty:

‘When in the second Factortame case the House of Lords [refused to apply the MSA] it was natural to suppose that something drastic had happened to the traditional doctrine of Parliamentary sovereignty. The established rule about conflicting Acts of Parliament, namely that the later Act must prevail, was evidently violated, since the later Act in this case was the [MSA], yet it was disapplied under the [ECA]… When that Act was nevertheless held to prevail it seemed to be fair comment to characterize this, at least in a technical sense, as a constitutional revolution.’

A number of issues arise out of Wade’s analysis, and in this note we focus on two lesser explored but, nonetheless, fundamental questions. The first concerns whether the ‘established rule’ that Wade cites properly applied in Factortame, and hence can be seen to have been modified by the ruling. The second concerns the implications of our first point for Wade’s description of the case. Our aim will be to cast doubt, from within the traditional framework, upon the thesis that Factortame was a ‘revolutionary’ ruling.

Was There A Conflict?

Doubtlessly there was. EU law granted rights to fish which would have been explicitly curtailed by the MSA, had it been applied. But was this the right type of conflict? Wade cites, as having been amended in the case, the following ‘established rule’:

Where two statutes conflict, the latter is to prevail over the former.

Does this rule apply in Factortame? Importantly, the question is not whether EU law itself conflicts with the MSA, because the requirements of the former, as interpreted by the European Court of Justice, are not themselves statutory. The relevant objects of interpretation for the purpose of the rule are the ECA, which requires courts to give effect to EU law, and the MSA, which restricts the rights of non-nationals fishing in UK waters.

Two statutes may be said to conflict if one requires a result that the other denies, if one affirms a proposition of law which the other repudiates. So, for example, a statute prohibiting the consumption of alcohol by those under the age of 18 conflicts with a statute granting children over 15 the right to drink alcohol under the supervision of their guardians. And under the established rule that which was formerly enacted should give way to the latter. What proposition did the MSA stand for? That UK nationals be granted a special dispensation to fish that was to be denied to EU citizens more generally. The question, then, is whether the ECA rejects this legal result and the answer must be that it does not. The ECA says nothing substantive about the rights of EU citizens, UK or otherwise, to fish and so cannot be said, itself, to conflict with the MSA.

One way to see this is to ask the question whether the ECA could be taken to conflict with the MSA if EU law did not grant directly enforceable rights to fish in UK waters to EU nationals. The answer, of course, is that it would not. But the question of whether two statutes conflict cannot be taken to depend upon factors other than their own content. If the ECA and MSA would not conflict in this situation, despite nothing having been changed in our imagined circumstances about the meaning of the statutes, then they cannot be taken to have been in conflict on the facts of Factortame. We cannot settle a matter of interpretation, in other words, on the ground of external contingencies.

To repeat, there was a legal conflict: between the MSA and directly enforceable EU law, which was required to be given effect to under the ECA, but not between the ECA and MSA. Why does this matter? It matters for the reason that the traditional rule that Wade cites – that where two statutes conflict the former must give way to the latter – did not apply in Factortame, and hence cannot be said to have been modified by the result. What the court did in that case was not to alter, or set aside, a long established and fundamental rule of UK Constitutional Law, but to fashion a novel principle – that legislation be given effect subject to EU law, that is, in accordance with the terms of the ECA so long as that statute remained on the books – in a novel constitutional situation. Note, moreover, that this rule does not contradict the central aspect of the doctrine of Parliamentary Sovereignty, the principle that Parliament may make or unmake any law whatsoever. The question of whether Parliament would have to repeal the ECA in order to legislate contrary to EU law, or simply decree that such legislation was to have effect ‘notwithstanding’ the ECA is a nice question of constitutional law, and the answer would probably be settled in favor of the latter.

Recognition and Revolution

Wade’s question, in light of his analysis, was this: ‘Has the House of Lords adopted a new “rule of recognition” or “ultimate legal principle”?’ Having concluded that the traditional rule concerning statutory conflict had been amended he answered in the affirmative, describing the situation as ‘revolutionary’. Disagreeing with Wade’s analysis, we may pose a different question in the terms suggested by our own argument: does the fact that the House of Lords established a rule in a situation of constitutional uncertainty entail that their verdict was one of revolutionary import? Does, in other words, the fact that the court made decision which, in this sense, affects the rule of recognition constitute a technical legal ‘revolution’? Seeing why it does not requires a better understanding of recognition rules, and their place in a constitutional order.

The constituent parts of a legal system, H.L.A. Hart famously argued, have synchronic identity in virtue of the fact that they are identified, by the courts, in accordance with the system’s ultimate criteria of recognition. These criteria – shown in use but rarely, if ever, stated in anything close to canonical form, complex and in various ways indeterminate – both fix the court’s ultimate duties within the system and bestow upon them a further responsibility. Because, ultimately, it is for the courts to interpret and apply the rule of recognition it falls on them, also, to resolve doubts and indeterminacies relating to its application. Such a task is not merely desirably placed within the hands of the courts, as legal experts, buts falls on their shoulders of necessity.

The courts have, in this sense, an inherent jurisdiction, in the context of controversy, to determine the limits of their own powers. This authority is, of course, limited by the central, uncontroversial tenets of constitutional doctrine, so no paradox arises, but the capacity is real nonetheless. Hart makes the point:

‘The possibility of the courts having authority at any given time to decide… limiting questions concerning the ultimate criteria of validity, depends… on the fact that, at that time, the application of those criteria to a vast area of the law… raises no doubts, though their precise scope and ambit do.’

At the limits of their role the courts must make decisions not controlled directly by the constitution, but at any rate within their power; this is what happened in Factortame. Is it right to call such judgments ‘revolutionary’? The answer, perhaps, may be less exciting than we have been lead to believe.

Thomas Adams is a D.Phil candidate at Balliol College, University of Oxford.

 Suggested citation: T. Adams, ‘Wade’s Factortame’ U.K. Const. L. Blog (24th February 2014) (available at: http://ukconstitutionallaw.org/).

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Stuart Lakin: The Sovereignty of Law: Freedom, Constitution and Common Law by Professor Trevor Allan: Some Preliminary Thoughts

stuart1 Most readers of this Blog will undoubtedly be familiar with the work of Professor TRS Allan.   It is difficult to think of anyone who has made a more significant contribution to UK public law scholarship in recent decades.  For the uninitiated, Allan is best known for his radical challenge to constitutional orthodoxy in Britain.    Over the course of several impressive books – with suitably grand titles – he has set about dismantling just about every last (supposedly) well established doctrine, distinction and conceptual dichotomy.   In their place, he advances a fluid vision of the constitution in which the rights, duties and powers of individuals and institutions depend on moral argument about the rule of law, freedom, justice and due process.  Allan is arguably the pioneer of ‘common law constitutionalism’ (not to be confused or conflated with ‘legal’ constitutionalism – more on that below).

In his latest book,The Sovereignty of Law (2013) (hereinafter ‘Sovereignty’) Allan takes both his critique of orthodoxy and his own rule of law thesis to a new level of cogency and philosophical   rigour.  Whether or not one agrees with his arguments, it is a tremendous accomplishment.   The aim of this post is to provide a short, preliminary review.  I shall divide my thoughts into four sections: general observations, methodology, substantive claims, and potential objections.    Where I refer to the book directly, I shall use numbers in brackets.

1.  General observations

 There are eight chapters in total, all around the 30-40 page mark, plus an appendix.   As Allan explains (15-16), the chapters are closely interconnected and can be read in any order.   Broadly speaking, they cover: 1. constitutionalism, 2. constitutional convention, 3. the rule of law, 4. parliamentary sovereignty, 5. legislative supremacy and the rule of law, 6. constitutional foundations of judicial review, 7. judicial restraint, 8. democracy, rights and the common law.   Such is the close link between the themes and arguments within chapters, Allan breaks his discussions up with Roman numerals rather than specific sub-headings.   Each chapter begins with a clear and accessible introduction, aimed especially at students.  The appendix pursues some of Allan’s more abstract methodological arguments in greater detail.

Sovereignty as a whole reads rather like a set of colloquium-style ruminations.   Allan continually refers backwards and forwards to different aspects of his argument, restating, refining and anticipating his central claims.  For every abstract argument, he gives numerous concrete illustrations.  Indeed, the defining strength of Allan’s work, I think, is his ability to weave together complex debates in legal and political theory with detailed doctrinal analyses of cases, statutes and contemporary constitutional developments.   That strategy, we shall see below, is central to his methodological and substantive commitments.    Readers who lack the time or will to read Sovereignty from cover to cover will get a very good sense of Allan’s thought-world just by focusing on some of his excellent case studies.  Here are some particularly good examples: Liversidge v Anderson (21-25), Prolife (25-31), Factortame and Thoburn (146-150), Jackson (150-153), R v A (186-88), Bellinger (319-321), and **Bancoult (ch 8 generally).

Every leading thinker inevitably has their own intellectual heros.  Allan’s are (principally): Kant, Hayek, Fuller and Dworkin. Rather surprisingly, given the progressive nature of Sovereignty, Dicey also features prominently (see, for instance, 31-36).   Here, as elsewhere, Allan seems determined to enlist Dicey’s work to his own cause.

2.  Methodology

It is striking that Allan gives far greater coverage to questions of constitutional methodology in Sovereignty than in his earlier books.    Legal philosophers endlessly debate the nature of their own discipline: is it descriptive, evaluative, conceptual, interpretative or whatever?  The same sort of debates are slowly creeping into the work of constitutional theorists (alongside Sovereignty, see also, for instance, Nick Barber, The Constitutional State (2010), ch 1).

Allan attacks a ‘positivist’ approach to constitutional argument, one that involves describing the constitution without making any evaluative argument about why it – and the content of English law – should be understood in a particular way.    People who take this approach, he claims, mistakenly adopt the ‘external perspective’ of a political scientist, anthropologist or historian, rather than the ‘internal perspective’ appropriate to legal reasoning (chapters 1, 2 and the appendix are particularly good on this distinction). Their error is to suppose that there is a ‘fact-of-the-matter’ about the constitution and questions of public law (6-7).     Allan returns to this external/internal distinction again and again during Sovereignty.  His running contention, we shall see below, is that many of the different doctrines, distinctions and labels that public lawyers use make little sense once we abandon the positivist perspective.

The constitutional lawyer who takes the internal perspective, Allan explains, necessarily interprets statute and common law in the sense of ‘presenting reasons of justice or political morality for reading them in one way rather than another’ (6).  In this way, ‘legal analysis cannot be detached from…constitutional theory’ (22), and ‘legality is always connected to legitimacy’ (23).     Allan is careful to deny that he is inventing a new (ideal) constitution rather than elucidating the existing one.  The interpreter of the constitution, he insists, cannot bring any moral theory to their task.  They are constrained by the particular scheme of principle latent within current legal and political practice (340-346).   Allan draws heavily on the work of Dworkin in making these arguments.  However, there may be a fundamental methodological difference between the Dworkin and Allan, one which calls into question Allan’s external/internal distinction.   I shall return to this point below as a potential avenue for criticism.

3. Substantive Claims

Allan’s interpretative/internal approach generates a raft of bold, unconventional claims about the constitution.   Let me attempt to summarise some of them, roughly in the order that they appear.   Needless to say, I cannot do justice to the detail and nuance of Allan’s arguments here.  At best, I hope to capture their general spirit.    As you work through these claims, keep in mind the methodological distinction above.   In general, the view under attack is incorrect, according to Allan, because it is made from an external, descriptive perspective; and the correct view is correct because it is made from an internal, morally engaged perspective.   It is this ‘all or nothing’ stance that I think separates Allan from Dworkin.   More on this in section 4 below.

a)  There is no a priori distinction between law and constitutional convention, justiciable and non-justiciable powers, the ‘political’ and ‘legal’ constitution.  Whether a particular aspect of governmental practice raises questions of legal principle better enforced by courts, or questions of ‘good governmental practice’ better enforced by politicians will depend on a judgment about all of the relevant facts, reasons and values that apply in the specific context (ch 2).

b) The British constitution is founded on a model of rule of law that invokes the idea of   ‘liberty as independence’ (12).   This is ‘ultimately a principle of equal citizenship, precluding arbitrary distinctions between persons, irrelevant to any legitimate public purpose’.  The principle ‘…imposes a requirement of justification, connecting restrictions on liberty to a public or common good, open to fearless public debate and challenge’ (91).  (ch 3)

c)   Parliament does not possess absolute, sovereign legislative power.  Legislative supremacy (Allan’s preferred term) ‘may [only] operate within the constitutional framework of the rule of law‘ (133).   ‘Parliament’s authority is confined by the limits of our ability (in any concrete context) to interpret its enactments as contributions to the public good’ (12).   It follows that a statute is only recognisable as such if it can be read in a way that is compatible with the principle of equal citizenship (33).  (ch 4)

d)  Statutes do not mean what parliament intended, in the sense of communicating a ‘speaker’s meaning’ (193).   The interpretation of a statute instead requires us to construct the intent of the ‘ideal or representative legislator’ who seeks to reconcile ‘current policy and overarching legal principle’ (194).  There is then no conflict between Parliamentary supremacy and the rule of law.   These ideas are interdependent, embodying the twin imperatives of democracy and respect for individual dignity and autonomy (168). (ch 5)

e)  The traditional judicial review debate is loaded with positivist assumptions, notably that Parliament may abrogate fundamental rights using express language, and that there are discrete heads of judicial review which separately address issues of procedure and substance.   For Allan, fundamental rights ‘can be ‘overridden’ [i.e. defined] only in circumstances that justify curtailment‘   (258); ‘Judicial review…enforces standards of due process, which resist any neat division between procedure and substance’ (242); and the principles of legality, rationality and proportionality are all subsumed within a general right to fair treatment (260). (chs 6 and 7)

f)    There is no independent doctrine of judicial deference.   ‘The relevant considerations of constitutional legitimacy and institutional expertise are already implicit constraints on judicial review – reflected in ordinary legal reasoning…’ (241).   (ch 7)

g)  Section 3 of the HRA merely replicates the pre-existing common law order.  Common law reasoning involves precisely the same balancing of relevant considerations (176). It should not have mattered in the ex parte Smith case that the ECHR had not been incorporated (245).    ‘The court’s appraisal… fell short of what was necessary to protect the basic rights in issue (255).    If Parliament were to repeal the HRA, ‘the underlying common law constitution would remain untouched…’ (324) (chs 7 and 8).

h)  There is no distinction between the ‘legal’ and ‘political’ constitution: every account of the constitution is both legal and political in so far as it must include some coherent account of the separation of powers (305).  Nor is there any meaningful distinction between ‘weak’ and ‘strong’ judicial review.  The common law constitution is distinct from both arrangements.  Courts have a duty to interpret statutes in line with basic common law rights, and so it will rarely be necessary to quash a provision (as exemplified in Anisminic). (230) (323).  (ch 8)

4. Potential Objections

Every reader of Sovereignty will find in it their own points of interest and controversy.    The book is bursting with provocative claims and arguments.    I shall pick out two areas where I think Allan may be vulnerable to criticism.   I shall use small letters in brackets to refer back to the substantive claims above.

Interpretation and the Internal v External Perspective

We have seen that, for Allan, the only way to understand the existing British constitution is to interpret legal and political practice from the internal point of view of a lawyer of judge.  This means, he tells us, that legal doctrines can only be defended with ‘arguments of principle… consistently with our commitment to constitutionalism‘ (10).    One cannot simply describe the constitution from the outside.

The thrust of my first criticism is this: while we can agree with Allan that no account of the constitution can be descriptively correct, the various positivist-inspired doctrines, distinctions, labels, and so on that he attacks in Sovereignty need not be understood in this way.   They can instead be understood, in line with the method Allan recommends, as interpretations of British legal and constitutional practice.   It can be argued that a lawyer or judge arguing from the internal point of view may have entirely plausible moral reasons to distinguish between law and convention a), to propound a narrow, formal conception of the rule of law b), to separate the extent of Parliament’s legislative powers from the justification for those powers c), to understand statutes in terms of a ‘speaker’s meaning’ d), to understand judicial review as a set of discrete rules e), to separate questions about the content of the law from question about how judges should decide cases (e.g. to fashion an extra-legal doctrine of deference) f).    Legal theorists such as Hart and Raz strongly resist this moral ‘recasting’ of their theories, but it is central to the interpretative method – as least as developed by Ronald Dworkin – that legal positivism is only intelligible in this form.

By automatically equating the interpretative, internal point of view with his own moral/theoretical approach to legal and constitutional argument, Allan rather rigs the interpretative debate.   In my view, he needs to confront the orthodox positivist account of the constitution – along with every other account – as a rival interpretation rather than dismiss it as belonging to a separate ‘external’ intellectual discipline (sociology, political science, etc).      Both Barber (above) and Goldsworthy (see, for instance, The Sovereignty of Parliament (1999), ch 10) have offered explicitly interpretative bases for their broadly positivist claims.    It may be that Allan can defend his approach as a better interpretation of the constitution than the positivist one, but that aim immediately encourages a far healthier debate than is perhaps envisaged by Sovereignty.

The Impact of the HRA 1998 on the Common Law

Let us grant for the sake of argument that Allan’s interpretation of the constitution is correct: that the content of the law – including the powers of Parliament and courts – depend on the particular scheme of principle embedded within current legal and political practice.  A second criticism of Sovereignty is that some of Allan’s claims pay too little attention, or no attention to the evolution of practice and principle in Britain.   I have in mind the claims contained in g) and h) above.     Allan can be understood as saying, first, that the enactment of the HRA had no meaningful impact on the British constitution; and, secondly, that his favoured model of common law protection of rights by judges is the only legitimate form of institutional protection of rights.     Both of these claims are highly contentious.

In terms of the first claim, whether or not one would ideally support the structure and aims of the HRA, an interpreter of the constitution must adjust their account of the practice in light of that important Parliamentary ‘decision’ (just as they would have to adjust their account in the event of its repeal).  The Act plausibly introduces a novel division of labour in respect of rights protection; or, to put this point in more philosophical language, it contributes a scheme of institutional morality that arguably differs from what went before.   The ‘declaration of incompatibility’ mechanism in HRA s 4 is almost invisible in Sovereignty.   My argument – which I cannot develop here – is that Allan’ account of the constitution must accommodate rather than erase this mechanism.   His discussion of Bellinger (319-321) is particularly revealing on this point.

A similar objection can be made to the second claim.   Whether or not the labels ‘strong’ and ‘weak’ review serve any useful purpose, Allan seems to preclude different forms of rights protection altogether.    He repeatedly tells us that Charters of Rights and Bills of Rights cannot affect the judicial role (e.g. 282, 327): that (his account of) the separation of powers is an ‘essential component of [a] conceptual polity, enshrining the rule of law…’(295).      Despite extensive discussion of the work of Waldron and Bellamy – both of whom wish to make the legislature the primary forum for decisions about rights – (304-329), I think there is greater scope in Sovereignty for argument on whether a political community can protect rights in different ways.

Closing Thought 

These are exciting times for scholars of the British constitution.   What had been a rather arid, doctrinal, area of study is now rich with philosophical interest.   We should be grateful to Allan for spearheading that transformation.    Many public lawyers will feel rather battered and bruised by their treatment in Sovereignty; the ‘externalists’ are a populous group!    But Allan’s aim is undoubtedly to encourage a particular style of debate rather than delivery knockout blows.   It will fascinating to see how that debate unfolds.

Dr. Stuart Lakin is a Lecturer in public law and jurisprudence at the University of Reading.

(Suggested citation:  S. Lakin, ‘Review: TRS Allan’s The Sovereignty of Law (OUP, 2013)’ U.K. Const. L. Blog (4th February 2014) (available at http://ukconstitutionallaw.org/)).

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Rogier Creemers: The Constitutionalism Debate in China

RogierOver the past few months, a heated debate about the role of the Constitution in Chinese political life has emerged. This debate comes in the wake of the 18th Party Congress and the handover of power to the fifth generation of leaders with Xi Jinping becoming General Secretary of the Party, and equally importantly, Chairman of the Party’s Central Military Commission. Before the handover, there were hopes that Xi, who was seen as more affable and less rigid than the wooden Hu Jintao, would bring political reform initiatives to a country in which social tensions are becoming rampant, were corruption is endemic, and scares about food security have led to worldwide panic buying of milk powder by Chinese citizens.

Those calling for reform, however, had to do so in cautious and circumspect terms, couched in language that would not directly contravene the Party’s core ideological pillars. A previous reform call, Charter 08, landed its drafter Liu Xiaobo both a Nobel Peace Prize and a prison sentence for subversion. Hence, the call for reform was made under the heading of “constitutional governance” (xianzheng 宪政). On New Year’s Day, the activist intellectual journal Yanhuang Chunqiu posted a New Year’s message, Constitutional Governance is the Consensus for Political Structural Reform, which claims that “Although the existing Constitution is not perfect in every way, as long as it is satisfactorily implemented, our country’s political structural reform will make a great step forward.” A few days later, the well-known outspoken newspaper Southern Weekend published an editorial, The Chinese Dream, the Dream of Constitutional Governance, which claims that “Only under constitutional governance will it be possible for the country to continue to become strong and wealthy, only under constitutional governance will it be possible for the people to become truly formidable. Only by fulfilling the dream of constitutional governance will it be possible to strive for national sovereignty abroad even better, and safeguard the freedom of the nation; will it be possible to even better strive for civil rights at home, and safeguard the people’s freedom. And the freedom of the country must, in the end, rest on the freedom of the people, it must rest on the fact that everyone may speak their hearts, and everyone may have dreams in their hearts.

Both articles were censored. In Yanhuang Chunqiu’s case, the website was taken offline for a number of days, while the Southern Weekend editorial was replaced by a more neutral text, allegedly through a decision of the Guangdong provincial censorship chief Tuo Zhen. By that time, the new leadership had already started deploying its own ideological campaign, that of the Chinese Dream of the great rejuvenation of the Chinese nation. This campaign is predicated on the notion that China is finally coming close to realizing the ideal of modernization after suffering humiliating colonial subjugation in the 19th and early 20th Century. The successes that have been reached so far are deemed to be largely due to the enlightened leadership of the Chinese Communist Party, and the ideological/theoretical system of Socialism with Chinese Characteristics.

Understanding this system is important in framing the discussion about constitutionalism. Some of its key components, while often informed by classical Chinese political concepts, clearly bear a Marxist imprint. In this discussion, the most important ones are monism, historicism and positivism. These interlinked concepts respectively refer to the idea that there is only one correct way to understand and evaluate systems in an epistemological and moral sense; the idea that history is predetermined and follows a necessary path; and the idea that the social world is underpinned by ‘laws of nature’ that can be understood, and used to manipulate society. The ultimate objective is to lead Chinese civilization towards a predetermined Utopia, which has at various terms been known as Communism, the Great Harmony, the Chinese Dream and the Harmonious Society.

This view strongly influences the Chinese concept of law in general and the Constitution in particular. As it posits that the future is predetermined and largely known, the legitimacy of rules and norms is the contribution they make to progress towards that future. Hence, they legitimize capricious and arbitrary policy decisions, as long as these can somehow be justified as “progressive”. In turn, this term is operationalized in, amongst others, cadre and official evaluation systems that measure performance in a limited, quantitative set of output indicators. Unsurprisingly, this leads actors up and down the hierarchy to behave strategically, in order to respond to the incentive structure in which they are placed, often resulting in corruption and arbitrariness.

Little room is left for rights in the Dworkinian sense, which are ‘trumps’, or entitlements to expectations of treatment that can only be denied or infringed upon with justified cause. This presupposes, however, an acceptance of the fact that often, legitimate interests in society legitimately conflict, and an equitable balance between them needs to be found. In Chinese monist political-legal system, however, such conflicts are often unmentionable, as they would seem to imply that economic exploitation still takes place, and that therefore, the Socialist project failed. Also, it would imply having to recognize that the benefits of crossing the river might not be shared by all, harming the project’s legitimacy.  Most of all, it would be beyond the pale to suggest that citizens need protection against the Party-State, as this – in the official view – only strives to serve the people. Rather, the view is that “contradictions” are caused by the fact that knowledge about society and development remains imperfect, and that these will be resolved in the end.

While the official point has been forcefully made in a number of theoretical and editorial articles in major Central journals and newspapers, the counterarguments are somewhat less clear. To a certain extent, this can be explained by the risks incurred by franc-parler. For example, the constitutional scholar Zhang Qianfan recently published an article in which he analyzed the preambles of different constitutions, concluding that it is not necessary to include references to specific persons or ideologies in a constitution. While this could be interpreted as removing references to Marx, Mao and the CCP from the Constitution, Zhang refrains from saying so directly. But there is a deeper question of thinking as well for those opposing the system. There are different levels at which dissent and protest can take place: from the individual actions of officials and cadres, past specific policies, to the institutional arrangements of the country and ending up with the fundamental philosophy that informs the structure of state and society. The official line claims that the basic philosophical foundations are correct, and therefore, so are the fundamental institutional structure and the general policies of the State. Nonetheless, circumstances change and knowledge increases, so in order to progress, specific policies must be adjusted flexibly. Any further imperfect outcome in society must therefore be the result of officials not implementing policies well, either because of corruption or because of a lack of sufficient knowledge and effort. The notion that it might be the very arbitrariness of policy (which in the public eye is often confused with corruption) that causes popular dissatisfaction is anathema.

Interestingly, a number of constitutionalist voices share a number of aspects of this official narrative, particularly where it relates to the claim to progress to an ideal society. This is, however, hard to reconcile with the increasing complexity of a modern society, where it is impossible to fully harmonize interests, values and outcomes, and it is necessary to develop channels for political negotiation and bargaining to share unavoidable harm and risk. In China, however, this point remains moot: whatever the chatter about constitutionalism, Xi’s leadership has manifested itself as strongly neo-Dengist: willing to engage in deep economic reform, but also to maintain political and social stability at all costs. Perhaps the leadership style goes even further back: a few days ago, the Standing Committee launched a rectification campaign in classic Maoist tradition, aimed at removing those Party members who are unwilling to forsake perks and privileges, but who want to toil and struggle for progress towards the Chinese Dream. But the nasty question will remain: when will the Party-State keep the promises that it made in its own Constitution?

 Dr. Rogier Creemers is a Rubicon Scholar at the Centre for Socio-Legal Studies and a Senior Fellow of St. Antony’s College, University of Oxford. He mainly researches Chinese media, communications and intellectual property law.

Suggested citation: R. Creemers ‘The Constitutionalism Debate in China’  UK Const. L. Blog (22nd June 2013) (available at http://ukconstitutionallaw.org)

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David Mead: “Don’t Think Of An Elephant”: How Conceptualising Is Able To Skew The Outcome In Human Rights Cases

davidmeadIn his 2004 book “Don’t think of an elephant” cognitive linguist George Lakoff offered his view on the recent US political landscape. I’m very grateful that Daithí Mac Síthigh made me aware of it. Specifically, Lakoff tried to set out what he thought accounted for the success of the Republican right in winning the battle for the public’s hearts and minds during the 1990s. He analysed the debates surrounding several contentious issues, and the manner in which those debates, literally, were constructed. For example, on the issue of tax, instead of campaigning for “tax cuts” for the rich, Republicans framed the debate as one in which they were arguing for tax relief. As Lakoff wrote, “When the word tax is added to relief, the result is a metaphor: taxation is an affliction. And the person who takes it away is a hero, and anyone who tries to stop him is a bad guy. This is a frame. It is made up of ideas, like affliction and hero. And if people try to stop the hero, those people are villains for trying to prevent relief.”

This short post summarises some of my own “work in progress” which applies Lakoff’s idea of framing, or “conceptualising”, to the law specifically when human rights issues come to the fore. My primary aim in doing so is to seek views on whether it offers anything new and coherent. I vacillate between thinking that the argument it presents seems rather like the emperor’s new clothes and thinking there might somewhere be a relatively rich seam to be mined.

Not being much of a legal theorist or legal reasoner, it has dawned on me several times that I may be barking not up the wrong tree, but up a non-existent tree. That said, the decision – by either counsel or judge – about how to “conceptualise” the case in hand, or more precisely, the facts of the case in hand, doesn’t seem to be given much attention in legal literature. Yet, the way in which any legal scenario is conceptualised, that is to which area of law the factual matrix is best or most appropriately linked, can go a long way to determining the outcome or ultimate disposition, exactly as it can with framing contentious political questions. This happens in most cases at an almost subliminal level and for the most part is unlikely to be disputed, and unlikely to affect the outcome. That’s not always the case. For a plaintiff wrongly to decide – or to be wrongly advised – that a case raises a public law issue, rather than being simply a private law dispute – public sector employment contracts for example – can have serious consequences, as it did in, say, Evans v University of Cambridge.

In the human rights field, how the matter has been framed or conceptualised has the potential to affect how the case is resolved, if not the actual outcome in every instance. The remainder of this blog outlines some of the ways in which this might occur. The fuller article will plot a formal typography. Issues and concerns surrounding the conceptualisation of a case is neither new nor unique to human rights cases – or even public law. This much, I hope, is obvious. We might think of arguments over administrative vs. judicial hearings, in the days of Nakkuda Ali and Ridge v Baldwin, or categorising civil wrongs as actions on the case or damages as pure economic loss. The point is more that it has the potential to have greater effect, simply because of the issues in play and the public nature of the rights at stake.

First and most obviously, a case may not be framed as raising a rights-issue at all. The pre-HRA case of Sultan Khan in 1996 exemplifies this well. There, the House of Lords did not see the placing of a bug on a suspect drug dealer’s house as being about privacy at all. It was, in their eyes, simply a case about the admissibility of evidence. Secondly, there are cases where the courts do not see the facts as engaging a right at all. A good example would be the employment law case Pay where the EAT did not consider that being dismissed by the probation service for engaging in sado-masochistic sexual activity outside of and unconnected to work, raised Article 8 issues at all. Another would be Gillan. There, a half-hour stop and search under s.44 of the Terrorism Act 2000 was held by the House of Lords not to be a deprivation of liberty (within Article 5) and they doubted if it engaged the right of privacy in Article 8. In both, the European Court held (Gillan v UK) or in Pay v UK assumed otherwise – though Mr Pay lost on the facts. It’s crucial, of course, that the engagement issue is “correctly” disposed of, if for no other reason than that – in the case of qualified rights – the burden of showing the proportionality of the measure then falls on the state. Whether the facts are framed as to prefer one right over another is the third way in which conceptualisation rears its head. Was Mendoza really a case about equality and non-discrimination – or is it possible to see it as raising questions about the allocation and regulation of that scarce socio-economic resource, housing supply – albeit in the private market? The extent to which a court is prepared to defer to the primary decision-maker may depend on such categorisations. Last, whether we – and judges – view a case as being about private rights or about public rights, and values, is important too – and will clearly affect the outcome. Of course, the Occupy cases like Samede are about how private landowners can use their own land – but are they not also about how groups of citizens, perhaps disenfranchised, are able to utilise their public rights of free speech and protest? In an area I have written about recently – police searches by consent ([2012] Crim LR 97) – seeing the only issue as one of giving the police licence to do that which would otherwise be trespass and not as raising public law issues of accountability, transparency and power does not fully convey the position when the police come knocking.

Framing is not new – nor confined to law. We see it every day in newspapers – fitting an item into our pre-existing world view or sensitivities, or even expectations. Was Hilary Mantel’s LRB piece, really an attack on royalty – and on Kate Middleton – or was it a comment on the workings of the press, something concealed in the press reports themselves? The press of course “frame” the human rights debate too – by selective inclusion and language, and even perhaps deliberate conflation of that two-headed European beast, the EU and the ECHR. Framing and conceptualisation in the law though is qualitatively different. By its nature, litigation has the potential to juridify social relations and scenarios – they exist no longer on the street or at work but are legally enshrined and given legal form  – and not, of course, simply for that one case. Deciding, to take another example, whether a claim for misusing private information is a bastardised equitable claim or a new type of tort will dictate whether damages are can be refused for future claimants on a discretionary basis. It’s important we work at seeing the law through the right lenses.

David Mead is Professor of Public Law & UK Human Rights at the University of Essex

Suggested citation: D. Mead, ‘”Don’t Think Of An Elephant”: How Conceptualising Is Able To Skew The Outcome In Human Rights Cases’ UK Const. L. Blog (26th February 2013)(available at http://ukconstitutionallaw.org).

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Filed under Human rights, Judicial review

Nick Barber: Does China Enjoy Greater Legitimacy Than Any Western State?

Nick1I was listening to the radio a little while ago, and heard Martin Jacques talking about China.  I listened with renewed concentration.  Jacques was formerly editor of Marxism Today, so he is a man who knows a thing or two about oppressive pseudo-socialist regimes.  Much of what Jacques had to say was insightful, but one of his claims seemed surprising.  Warning his audience he was about to shock them, Jacques asserted that ‘the Chinese state enjoys greater legitimacy than any Western state’.  This is, by any standards, a courageous claim to make.  Jacques advanced three, connected, arguments to support it.  First, he drew our attention to the support expressed by China’s people for their government. In recent surveys it seems that between 80 and 95% of Chinese citizens were either relatively or extremely satisfied with central government.  Secondly, he pointed to the stunning economic success that China has enjoyed over the last thirty years, enjoying a growth rate of about 10% per year.  And this success has not just caused the rich to get richer: Jacques could also have pointed to China’s remarkable success in lifting its people out of poverty.  Allied to these claims, Jacques argued that the Chinese have a different conception of the state to that found in the West: for the Chinese, the state is viewed in terms of the family.  Under this conception of the state, the leadership stands as the head of the family, intimately connected to, and entitled to exercise authority over, the people.

Each of these three claims deserves further reflection.

Jacques’ first point, resting on statistics that quantified the satisfaction of the Chinese people with their state, may demonstrate rather less than he hopes.  In Thinking, Fast and Slow,  the psychologist Daniel Kahneman warns of a trick that our minds tend to play on us.  When faced with a difficult question we are tempted to unknowingly substitute an easier question, and answer that instead.  So, a question about the importance of preserving an animal species or, perhaps, the effectiveness of the market in the NHS, is transmuted into a question about the cuteness of the animal or our how we feel about people making money from healthcare.  Similarly, in presenting this poll as a test of legitimacy, Jacques has shifted from examining the legitimacy of the government to assessing the perception of the legitimacy of the state.  Just because people believe that a government is entitled to rule, this thought alone does not make it so.   Given the control China exercises over its media, and the absence of any real opposition to the government, a general belief in the legitimacy of the government might not be all that surprising.

Indeed, it is even possible that the questions asked by Jacques’ surveys were directed towards something other than the legitimacy of the government.  The surveys appear to have asked after people’s satisfaction with the state, or their assessment of the government’s handling of the economy.  This is a very different thing to the entitlement of the government to rule.  It is easy to imagine a person – perhaps a subject in an imperial territory – admitting that the dominating power was competent, but still challenging its right to rule.  The Romans are still Romans, no matter how well they govern.  On the other hand, a citizen might regard her government as poor, on the verge of incompetence, but still endorse its legitimacy.  Many Labour Party supporters would bitterly criticise the Coalition’s policies, but still recognise that the United Kingdom possesses a legitimate government.

This is not just a semantic quibble.  Political scientists distinguish between two forms of legitimacy: input legitimacy and output legitimacy.  Jacques has focused almost exclusively on output legitimacy in his talk.  Output legitimacy is a function of the competency of the state.  People do, or should, support the state and comply with its commands because doing so will make their community a better place to live.  Input legitimacy, in contrast, is a function of the way decisions are made.  People do, or should, support the state and comply with its commands because of the way the government has been formed and the way the commands have been produced.  Ordinarily, some form of democracy is at the heart of input legitimacy. These two forms of legitimacy are complementary and interconnected.  Perhaps one form of legitimacy is valueless without at least an element of the other.  That the people of China are satisfied with their government, coupled with the strong economic success of that country, shows that China has a plausible case to make in terms of output legitimacy.  The lack of input legitimacy may, though, still throw into question the broader entitlement of the Chinese government to rule.

Jacques’ third point – about the Chinese conception of the state as a family – might be an indirect response to this point.  In the family, the authority parents enjoy over their children, especially young children, rests on their ability to make decisions in the best interests of their child.  Parents’ right to tell their children what to do does not rest on a vote or even on consent.  Perhaps Western preconceptions of legitimacy cannot be applied in the context of China?

The difficulty with this reply is that China does have democratic structures in its Constitution.  These are just not very effective.

In a valuable recent book, Professor Qianfan Zhang explains the structures and operation of the Chinese Constitution.  The Constitution asserts that China should be governed democratically.  It sets out a bottom-up structure of democratic control.  The people elect representatives to the lowest levels of assembly at town and county levels.  These assemblies then elect deputies to sit in Local People’s Congress that, in their turn, elect deputies to sit in the Congress at the next level up.  The process continues all the way to the National People’s Congress, which is the highest representative body.  In reality, though, the Communist Party exercises control over every stage of the process: the bottom-up approach of the Constitution is, as Zhang explains, countered by a top-down system of Party control.  Party committees, controlled from the centre, are able to vet candidates standing for election.  In effect, the appointment of representatives at each level of legislature is subject to the review, or even control, of the Party committee that sits at a governmental level one stage higher than that body.  The 1982 Constitution calls for a system that starts with the citizen and works up to the NPC, with each deputy accountable to the lower body that elected her.  The constitution with a small ‘c’, in contrast, starts with power vested at the top of the Party and then devolves power down to the regions, with each deputy accountable to the higher body that selected her.

Jeff King  has written of constitutions as mission statements, as declarations of the type of polity the state wishes to be.  In China’s case there is a sharp contrast between this declaration and the realities of state power.  China’s government fails to achieve legitimacy even in the terms set by its own Constitution.  This creates a sort of constitutional cognitive dissonance: a discomfort caused by the gap between peoples’ actions and the way they think they ought to behave.  It is a discomfiture that is very evident amongst Chinese public law scholars who struggle to connect the Constitution with the actual rules that structure the state.  It is also evident in the speeches of China’s leaders, whose rhetorical exhortations sometimes seem remote from the state they have fashioned.

Trying to ground a polity largely or entirely in terms of its competency is a dangerous business.  It may prove successful whilst the economy is booming, but economic success never lasts forever.  And the stability it brings can be quite shallow.  After the defenestration of Bo Xilai  tanks were seen on the streets.  If this had occurred in London, people would have thought it was the start of a parade.  In Beijing, people thought it was the beginnings of a coup.  Chinese people’s satisfaction in the conduct of their state may be high, but their faith in their leaders, and their confidence in the stability of their country, may be less buoyant.

Nick Barber is a Fellow of Trinity College, Oxford, and, in 2012, Visiting Professor at Renmin University, Beijing. 

Suggested citation: N. W. Barber, ‘Does China Enjoy Greater Legitimacy Than Any Western State?’ UK Const. L. Blog (28th November 2012) (available at http://ukconstitutionallaw.org).

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Filed under China, Comparative law, Human rights

Colin Harvey: Reconstructing the ‘Political Constitution’ of Northern Ireland

For reasons that are not difficult to grasp, the constitutional process in Northern Ireland has been marked by fragility and instability. The entity ‘Northern Ireland’ – carved out in the early 1920s – rested on insecure foundations and struggled to establish legitimacy. It was a constitutional creation mapped onto stark ‘facts on the ground’, embedded within a divided society, and designed with precision along ethno-national lines, with demographic and democratic objectives firmly in view (it was engineered to create a permanent pro-union majority). ‘Northern Ireland’ was born from, and emerged into, political violence and the question would remain alive of how it was ever going to secure legitimacy for itself across its diverse population, given the complex and contested constitutional histories of these islands. Northern Ireland’s creation rested both on recognition of the express wishes of a pro- union community in the north of Ireland and an understanding of their willingness to use force to resist membership of a re-unified Ireland. The pro-union majority that had won ‘Northern Ireland’ had to then share a jurisdiction with a substantial ‘minority’ community that felt alienated from the new entity from its inception. Formal legality did not map onto legitimacy. As with other constitutional contexts, it was a societal mix that the traditional Westminster model was hopelessly ill-equipped to address (a fact which Westminster itself had originally given some recognition to).

The violent conflict which re-emerged in the 1960s led to decades of thought around constitutional processes and practices that might achieve political stability in the context of sharp ethno-national division. What constitutional forms might assist, and what political and legal values should underpin them? In these processes the question of how ‘the people’ or ‘the peoples’ of Ireland (North and South) would be defined and engaged gained prominence. It is not coincidental, for example, that endorsement for the present arrangements included concurrent votes in the island of Ireland on the Belfast/Good Friday Agreement 1998, a fact – along with many others – which appeared to set in motion a ‘dualist’ constitutional process, or at least a constitutional discourse that looks and sounds essentially, in Bruce Ackerman’s term, ‘dualist’ in nature.

The acceptance that no purely internal solution was credible (or likely to work) meant constitutional thinking had to transcend traditional approaches to Westminster-style constitutionalism, and be informed by perspectives that travelled ‘beyond the state’. In designing such an approach an intriguing question would always be: what would happen to the innovations once they had to be carried into legal and political life?

The aim here is to make an argument about developments in Northern Ireland, which has wider implications for discussions of constitutionalism in these islands. The argument, that I have made before, is straightforward: that Northern Ireland is best viewed as governed by a form of political constitutionalism that has given rise to a series of extra-conventional constitutional fundamentals. These are ‘extra-conventional’ in the sense that they spring from definite political and constitutional interventions and have a basis beyond traditional UK constitutionalism. This has given rise to a form of (to borrow Bruce Ackerman’s language, if not his approach) ‘constitutional dualism’; and they stand as constitutive principles of the ongoing political/peace process.  These are underpinned, and often driven forward, as much by external factors and actors as by any intra-Northern Irish processes. Although they possess explanatory and normative force (they assist us in explaining constitutional politics as well as telling us what we should do), they also can stand in tension with practice, and do not always necessarily cohere.

The argument is advanced in two parts. First, what is meant by ‘political constitutionalism’ is outlined in this specific context. The focus is on the ‘political constitution’ in its extra-conventional sense – the interest is not principally in legal standards or institutions, but in the essentially political principles that appear to be embedded in, and animate, the process of constitutional practice in Northern Ireland. Many of these have gained some form of legal recognition, but the question addressed here focuses on what precedes or constitutes this formal practice, as well as the societal practice of constitutionalism in action. Is this a practical example of a ‘constitutive moment’, anchored within the ‘political’, which confronts a model of constitutionalism in the UK that struggles to recognise or accommodate this political fact?   The intention is to move beyond discussions of legal and/or political accountability to explore the extra-conventional principles which operate as a direct challenge to practice, as well as those which appear to have become embedded and guide it.

Second, what lessons, if any, might be learned from this exercise in protracted constitutional practice in and about Northern Ireland in terms of ‘sharing society’? If the argument is that something of constitutional significance (in an extra-conventional sense) has been ‘constituted’, what is its nature and how does it relate to or challenge conventional practices (if at all).  Does this result in a form of chronic constitutional conservatism, or even constitutional originalism (with the Agreement or Agreements becoming narrowly understood ‘sacred texts’)? What happens when some of these fundamentals remain ‘under-enforced’ (and what could that possibly mean in this context), or have not been implemented, or are in tension with each other? If Northern Ireland is also the site of constitutional experimentation, and the intersection of constitutional relations within these islands, are there lessons from this experience – could some of the emergent principles provide guidance for new forms of political constitutionalism on these islands?

The Values and Limitations of Political Constitutionalism?

Political constitutionalism is often contrasted starkly with legal constitutionalism to denote a connection to – and preference for – political accountability and its associated democratic mechanisms. In this sense, it reflects a profound scepticism about grand constitutional gestures (the idea of ‘the moment’), the judicial role in relation to governing institutions (and generally), and matters such as constitutional review, and strong forms of judicial review. Advocates of political constitutionalism invest their faith primarily in democratic institutions and in improving their practical operation, and, in recent work one such advocate, Adam Tomkins, has defend an explicitly republican reading of the British constitution. Political constitutionalism seeks the restoration of the dignity of politics through a return to values of democratic participation, deliberation and engagement as the best way to secure the normative potential of democratic life. There is a concern about the consequences of the erosion of democratic participation that can flow from the weight placed on the more ‘mysterious’ (if not just as politicised) branches of government. The mistake here is to think that those who advocate political constitutionalism are any less committed to societal, political, economic and cultural transformation. The values of human rights, equality and social justice are advanced and upheld but the principled way forward is not to invest excessive or exclusive belief in the judiciary as their guardians. The argument is precisely that this form of constitutionalism is potentially more transformative. Political constitutionalists should be expressly for forms of political and legal mobilisation around democratic participation, rights, equality and social justice that create conversational space.

The term is used in both explanatory and normative ways, to describe what currently happens and argue for the way things should work. Recent attempts, such as that of Graham Gee and Grégoire Webber in The Oxford Journal of Legal Studies, to address the complexities of political constitutionalism have sought to unearth its normative commitments, as well as its explanatory potential, and to understand in what sense the term ‘political constitution’ is deployed. It now seems evident that political constitutionalism must be more explicit about its normative basis, commitments and practical implications for all institutions – and that work continues to flesh out precisely what it means for a range of institutional and societal actors.  For example, it may be that the ‘political’ in constitutionalism needs to be fleshed out to embrace more broadly based forms of mobilisation that go beyond formal democratic institutions. Political constitutionalism, if it is gain life at all, must be able ‘to see’ work on legal and political mobilisation that is injecting meaning into its core values in practical ways.

What is the sense of political constitutionalism informing the perspective here? In Gee and Webber’s argument, an understanding of political constitutionalism is explored that moves between the normative and the descriptive. Political constitutionalism is used to refer to the essentially political underpinning of key constitutional moments – thus referring to the element of constituent political power and its historical context that may get lost or absorbed – and the values that they endorse and reflect.  The argument is in support of forms of political constitutionalism that keep alive the normative potential of historical moments, their disruptive potential, and their challenge to the capacity of politics and law to retreat into forms of constitutional conservatism that simply absorb any transformative potentialities.

These include commitments to human rights, equality and even instruments such as bills of rights, and can be viewed as part of the ‘normative turn’ in thinking about political constitutionalism.  Unlike descriptive and normative accounts of, for example, the political constitution which are deeply sceptical about rights-talk, the argument is in support of forms of political constitutionalism that can fully accommodate rights and equality as well as their promotion and protection (by a range of institutional actors), while at the same time respecting the centrality and ultimate primacy of political forms of accountability. One of the precise reasons for keeping the politics of constitutive moments alive – particularly as this applies in transitional societies emerging from conflict – is to ensure that the normative force of these principles is realised. A political constitutionalism that could not capture the force and power of global and local movements for rights and equality – and the often innovative and creative ways in which they engage and argue – would surely be an odd one? Without abandoning a critical perspective – and a critique of some of the practical arguments advanced – the modern human rights movement is frequently giving meaning to political constitutionalism, normatively understood. Mobilisation around rights and equality should be more fully included within the sphere of political forms of constitutionalism.

But is this not simply a convenient merger of legal and political constitutionalism? Does this depart so radically from existing understandings that it merits any interest at all? The overriding commitment in the understanding advanced here is a belief in democratic and political processes as the primary generators of positive constitutional value, which can then be carried into peace/political/transitional processes. This is how constitutional basics are forged and continue to remain in play and enable other institutions (such as the courts) to make progress.  During peace processes, for example, we often see the precise dignity of the political sphere at work – as political actors strive together to find negotiated ways forward which sketch the parameters of future imagined societies. Institutions then become, in the words of Adam Tomkins, ‘instruments of the political constitution’ and ways in which the contested norms are taken forward.  There is recognition here, particularly significant in the context of Northern Ireland, that conflict is unavoidable and does not simply dissolve in the face of the ‘constitutional moment’; conflict is something that needs to be managed, and even transformed over time through engagement, disagreement and dialogue.  However ‘thin’ they are, some constitutional fundamentals need to be present if the work of transition is to progress. The principles flowing from these constitutional moments owe their origins to political processes and are anchored in the ‘political’ (and the subsequent constraints are ultimately political in nature), but that does not mean that they are empty of normative content.  Participants in the legal and political worlds must accord appropriate weight to these principles – which can be reflected in legal instruments (and thus can also be ‘upheld’ in formal constitutional arenas). The application of these principles may alter over time, but they retain a core that should be understood and respected.

Whatever formal footholds they have gained, or not, sustained disrespect for the ‘constitutional fundamentals’ which emerge from these constitutional moments can cause significant negative disturbance for the worlds of politics and law.  If the argument here were merely that constitutional change has its basis in politics then it would conform to standard accounts. The question raised is whether the Northern Ireland experience – as a constitutional site of contestation and collision within and between these islands – is a laboratory for new forms of extra-conventional constitutionalism which might even point the way towards future constitutional configurations in these islands?

Constitutionalism in Northern Ireland: Moments and Fundamentals

A constitutional process in conflict

One of the objectives is to locate the analysis of Northern Ireland in ‘constitutional’ terms. This is not to deny the explanatory power of a transitional justice lens, and therefore one that views events within the terms of a violent conflict and what has followed.  It is to suggest that constitutional discourses themselves often arise and become embedded in the midst of and following conflict – and we should not neglect the sharpness of the contestation and conflict that precedes, and is implanted within, traditional forms of constitutionalism. What are the risks of detaching ‘constitutionalism’ and ‘transitional justice’ in such ways, and might this simply encourage processes of forgetting the sheer force of the origins of constitutional moments and their historical context? Should constitutionalism have more confidence in its own intellectual resources?

The stress on the constitutional (and competing ‘constitutionalisms’) is also to place weight on the idea of the ‘constitution of Northern Ireland’ as reflecting values which might guide a post-conflict society. These values are not easily accommodated within the British constitutional tradition (which has been undergoing its own transition). The conflict in and about Northern Ireland is primarily ethno-national in nature, and tied in particular to contested notions of self-determination connected to two national identities and traditions: Britishness and Irishness. A limited constitutional appeal to one national tradition within a framework of UK constitutional law is not going to ‘work’ in a context such as this, where mechanisms have been put in place to acknowledge the equal legitimacy of competing national aspirations. Designing a relatively complex constitutional architecture, which owes its origins to the intense politics of a localised peace process, was the result.

A constitutional moment?

Was there a constitutional moment? The suggestion is that 1998 represented a constitutional moment in the history of Northern Ireland and Ireland, and in constitutional relations between these islands. In terms of the island of Ireland and Northern Ireland – I would tie this to two dates, 10th April 1998 (adoption of ‘The Agreement’ and 22nd May 1998 (all-island vote). For the purposes of this argument these dates have ‘extra-conventional’ significance – both politically and legally – in other words, a normative significance beyond that accorded to them in standard accounts of constitutional law in the UK. The argument is that the process led to the endorsement on the island of Ireland (and with the bilateral agreement also adopted, inter-governmental endorsement from the UK and Ireland) of defined constitutional fundamentals/principles which stand in, and over, this peace/political process. This can be pushed further to suggest that in the event of Irish reunification (achieved through this constitutionalised process) these principles would and should remain. In other words: that these are fundamentals that should function in the event of a democratic decision in favour of Irish reunification and subsequent constitutional debate about the future of Northern Irish representation in an Irish democratic context.

What are the constitutional fundamentals?

If there are constitutional fundamentals – born out of political contestation and alive now within it – what are they? A plausible case can be made for the following – in no particular order:

  • First, democratic consent (North and South) to any change in the constitutional status of Northern Ireland.
  • Second, internal power-sharing (liberal consociational) government in NI.
  • Third, recognition of the equal legitimacy of divergent national aspirations – with all that this implies re British-Irish intergovernmental engagement.
  • Fourth, a commitment to democratic and peaceful means only as the method of advancing these equally legitimate political aspirations (a commitment to politics and persuasion ‘the force of argument only’).
  • Fifth, good relations, mutual respect and structured co-operation on the island of Ireland (North – South) and between these islands (East-West, British-Irish).
  • Sixth, through the concept of ‘equivalence’, the centrality of human rights, equality and democratic participation to current and future constitutional arrangements (regardless of constitutional status)– the principled normative basis for sharing society – not just sharing political power.

Living with Fundamentals: Sharing Power and Sharing Society?

It is evident from the core language of the agreements reached that politics, democracy, consent and participation are all given a meaning that can only accord an express dignity to ‘politics’. In its sharpest sense this means rejecting political violence as the way of resolving disputes, as well as recognising the stumbling nature of an emergent political process. And it is here that a familiar tale emerges of the tensions between stabilisation of faltering politics and the normative aspirations generated by the ambitions of a peace process.

It is worth taking just two of the above fundamentals as illustrative of current debates. I suggest here that while there has been extensive focus on sharing political power (and the intricate ways this is structured and negotiated at a practical level), and stabilising power-sharing government, less attention is paid to the question of sharing society on the sort of principled basis envisaged in the various agreements. What this means is the normative basis on which the peace process was constructed (conceptions of a ‘better society’) can lose out to narrow understandings of stability and thin theories of economic advance as ultimate ends. It is in precisely this area that the significance of resurrecting constitutive politics (the normative basis of the new political constitution) becomes pressing and can take on profound practical value.

First, the idea of power-sharing government. The Agreement and Northern Ireland Act 1998 (as amended) reflect particular arrangements to give life to power-sharing government (and the ideas underpinning this were around for decades). This results in an Executive where all the major political parties are ‘in government’ together (a grand coalition) allocated on a proportionate basis – as with committee chairs and structures as well: the D’Hondt mechanism. The system of designation – ‘nationalist, unionist and other’ within the Assembly allows for the operation of cross-community voting rules for key decisions.

Debate has raged since 1998 about this model. It tends towards slow and ponderous government, gestural communal politics, a lack of legislative initiative, often does not pay due regard to principles of collective responsibility, and can create coalitions even more remarkable than the one operating in London now. This said, it remains hard to see how any other system could have functioned – or would have been acceptable to participants. The system was designed precisely to accommodate the particular circumstances of Northern Ireland and in many senses it has ‘worked’. It has now achieved a measure of sustained stability (the last Northern Ireland Assembly, unlike all of its predecessors, served its full term 2007-2011). The question for future reference, however, is when the time may be felt appropriate to discuss possible amendment, starting with the current designation system. Would that undercut a constitutional fundamental? The implication of the argument here is that it is possible to respect the constitutional fundamentals of power-sharing (the principle) through a variety of mechanisms of application. The discussion could safely be commenced without compromising Agreement-based constitutional fundamentals.

Second, the idea of sharing society; with express reference to human rights and equality. The Belfast/Good Friday Agreement is filled with the language of rights and equality. Over the course of decades it became an accepted ‘basic’ of the process that any resolution would have to contain such express commitments. The Agreement makes clear that whatever government has jurisdiction in Northern Ireland there must be no disadvantage in terms of rights. The document therefore endorsed the idea that constitutional status (UK or Ireland) should not determine the level of rights protection enjoyed. The Agreement provided for a new Northern Ireland Human Rights Commission, and is infused with the language of rights and equality. As with the emergence of a new rights regime in Britain, ‘Convention rights’ are mainstreamed in the Northern Ireland Act 1998 – and have the status with regard to the Assembly that the whole traditional conception of a subordinate legislation implies.

The Agreement suggested more than mere ‘giving further effect’ to Convention rights. It contained reference to a Bill of Rights for Northern Ireland that would supplement the Convention, draw on international instruments and experience, and reflect the particular circumstances of Northern Ireland. This was where the essentially new normative underpinning would come (the Convention rights were in a sense coming along regardless via the Labour government’s constitutional reform process and the Human Rights Act 1998). The advisory role was allocated to the Northern Ireland Human Rights Commission, and the Bill of Rights process was formally launched on 1 March 2000. It included an extensive participative process of consultation and revealed areas of agreement and disagreement (as would be expected of any such constitutional process). It included the work of the Human Rights Commission, a specially established Bill of Rights Forum comprising membership of political parties and civil society (with an independent international chair), and civil society participation that included the formation of an ‘umbrella’ organisation called the Human Rights Consortium. The final advice of the Commission was submitted to the Secretary of State for Northern Ireland on 10th December 2008 (chosen symbolically to align with the 60th anniversary of the Universal Declaration of Human Rights 1948). The Commission, following on from the consultation process, decided to include a broad range of rights (civil, political, economic, social and environmental). While the Commission opted for traditional judicial enforcement routes, it is quite explicit about the centrality of democratic institutions, including reference to a reporting mechanism to the Northern Ireland Assembly from the Executive on socio-economic rights, and the creation of an Assembly Committee modelled on the Joint Committee at Westminster. Following a period of consultation, the process is now effectively stalled. The Secretary of State has pointed to the absence of full cross-party consensus (and his unwillingness to act in its absence), and well as indicating disagreement with specific aspects of the Commission’s final advice.

The later stages of the Northern Ireland process also coincided with the emergence of a debate about a British Bill of Rights, which was to lead to the creation of a new Bill of Rights Commission that is due to report before the end of the year. One of the questions arising is how precisely the Northern Ireland process will be taken forward in a way that reflects its particular process of constitutionalisation, and it will be intriguing to see what answers – if any – are provided. Simply noting Northern Ireland, or even Scotland, as an uncomplicated ‘add-on’ to a set of UK-wide recommendations will seem odd in the constitutional context sketched here.

Is it possible to realise the constitutional fundamentals with reference to rights and equality without a Bill of Rights? Is this another ‘fundamental’ in need of further work? While there may be different ways to realise these other than with this instrument, there was a reasonable expectation that a Bill of Rights would be enacted. There is a risk that the failure to achieve a Bill of Rights further undermines ‘sharing society’ in Northern Ireland on a principled basis. The Bill of Rights is only one example of where the priority accorded to stabilisation has led to ‘under-enforcement’ of constitutional fundamentals around the development of an equal and shared society. This observation flows from analysis of contributions from societal participants within the current constitutional conversation, and gains its normative foothold less through formal recognition than through the advocacy of constitutional politics and practical mobilisation.

Conclusion

With all the flaws, failings and ongoing challenges taken fully into account, it remains credible to assert that the recent experience of Northern Ireland lends weight to the ‘dignity of constitutional politics’ and shows why a belief and faith in the hard, grinding and comparatively unrewarding work of constitutional politics should not lightly be surrendered. The constitutional moments are often precisely that – they do not arrive without the effort of constitutional practice at localised levels, and their normative aspirations are not easily realised without a continuation of societal engagement. Political constitutionalism will only ever gain real life through practical mobilisation beyond the institutions of government and governance.

The tentative suggestion here is that a ‘political constitution of Northern Ireland’ was born from the peace/political process. It is a constitutional experiment – because of all the intersections that occur here – that has deeper significance for the democratic configurations of these islands. It is one that owes its origins to, and is constituted by, a defined historic period and political context. This constitutional moment was reflective of the essential ‘dignity of constitutional politics’, and it generated constitutional fundamentals that are ‘extra-conventional’, in the sense that they may not gain precise recognition in practice or by participants in legal forms as currently understood. They retain normative value nonetheless. The ‘dualism’ that emerges rests on constitutional fundamentals/principles that can be realised in a range of ways. These principles carry explanatory and normative potential in seeking to grasp the tensions within constitutional politics, and the standards driving debate and momentum. The continuing conversation about constitutional law and politics in Northern Ireland is filled with competing understandings of what they might mean, and how they might be realised. The empirical evidence suggests that so long as the fundamentals are respected, then the political/peace process in Northern Ireland is stabilised and advances. ‘Disrespect’ results in negative disturbance and disruption and can generate breakdown (‘under-enforcement’ is potentially one of the most serious forms of such disrespect). This does not imply rigidity (although inertia can be one of the consequences of the consociational model, even in a liberal form) – there is much flexibility within this context. But it is to suggest that systematic disrespect for the newly emergent ‘political constitution’ of Northern Ireland (whether emanating from London or Dublin) will lead to practical political and legal problems for all participants.

Colin Harvey is Professor of Human Rights Law at Queen’s University Belfast.

This paper was presented at the ‘Political Constitutions’ workshop, held in GCU London, 7-8th June 2012.

Suggested citation: C. Harvey, ‘Reconstructing the ‘Political Constitution’ of Northern Ireland’ UK Const. L. Blog (2 August 2012) (available at http://ukconstitutionallaw.org).

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Stuart Lakin: How to Defend a Theory of the British Constitution

In two recent contributions to this blog, Professors Goldsworthy and Oliver have put forward two quite different bases for Parliament having sovereign power (and for courts not having the power to strike down legislation).  For Goldsworthy,  Parliamentary sovereignty is a fact about the constitution: it reflects the beliefs of most officials about the power of Parliament vis-a-vis courts. For Oliver, by contrast, Parliamentary sovereignty is a pragmatic necessity based on the practical need for mutual respect or comity between Parliament and courts

Which, if either, of these accounts is correct?  In this post, I want to say something about how to answer that question.     The topic, we might say, is constitutional methodology.    My aims are twofold.   First, I want to introduce this topic and some of the problems it throws up.   Secondly, I want to offer an outline defence of one particular method of doing constitutional theory.   I shall suggest after Ronald Dworkin that the theories of Goldsworthy and Oliver (along with every other theory of the constitution) must be understood as rival interpretations of British constitutional history and practice.    A theory is correct, I shall say, if it provides the most morally appealing interpretation of the constitution.

Constitutional Methodology: Some Issues and Problems

Public lawyers disagree about many aspects of the constitution.    They disagree, for instance, about whether, or in what sense, parliament is sovereign.  They disagree about whether judges have the power to invalidate statutes.    They disagree about the nature of the judicial role in judicial review proceedings.   And they disagree about whether individuals have rights that cannot be removed by parliament.  What is sometimes less obvious is that public lawyers also disagree about how to answer those types of questions.   They disagree, that is, about what makes it the case that parliament has absolute legislative powers, or that parliament’s powers are limited by judicially enforceable legal rights and principles, or that some other distribution of rights, duties and powers obtains in the constitution.

Here are just three of the different constitutional methods that one can detect in the public law literature, beginning with an elaboration on the work of Goldsworthy and Oliver (above).

1.      Goldsworthy implies in his work that constitutional theory is descriptive and morally-neutral in character.     Parliament is sovereign, he says, because this is what most  officials accept (i.e. say, believe, or otherwise practice).  It is the Hartian ‘rule of recognition’ in the constitution. Whether Parliamentary sovereignty is morally acceptable is irrelevant to its existence.  Those theorists who argue for a judicial strike-down power, he says, are simply making a factual mistake about the practice of officials.

2.      Oliver argues in her work that constitutional theory involves a pragmatic (non-principled)judgement about what works in the constitution.    The reason that Parliament is sovereign, and that judges respect that sovereignty, she says, is that a range of undesirable consequences would flow from any attempt by judges to upset that arrangement (e.g. damage to the reputation of the courts, institutional gridlock).     A distinction has to be made, Oliver contends, between the theoretical/principled case for judges having a strike-down power and the practical workability of them having such a power.

3.      For theorists such as Allan, Jowell, Craig and Laws, constitutional theory is thoroughly normative in character.  The legislative powers of Parliament, and the adjudicative powers of judges, they argue, depend on the moral principles that justify those powers.   It follows that if Parliament possesses absolute legislative power, there must be a compelling moral basis for such power.  Allan, in particular, contends that there is no plausible justification for Parliamentary sovereignty.   A more convincing moral reading of the constitution, he says, points to a theory of liberal constitutionalism and ‘strong’ judicial review.

Even taking this very small sample of different approaches to constitutional theory, it is not difficult to see the potential for confusion.    If different theorists are using different methods to identify the powers of Parliament and courts, then their disagreements suddenly look rather futile.   Indeed, it might be said that they are not disagreeing at all: that they are talking past each other or pursuing different projects.  We can reinforce that gloomy diagnosis by imagining the following dialogue between Goldsworthy and Allan:

G -  Parliament is sovereign because this is what most officials accept.

A -  It doesn’t matter what most officials accept.   My constitutional method does not depend on acceptance by officials, but on the normative justification for the legal powers of institutions.    Parliamentary sovereignty cannot be justified.  The principles of the rule of law and the separation of powers demand that judges have the power to invalidate legislation.

G  – You are making a factual mistake.  For centuries, judges and theorists have denied that judges can strike down legislation.

A  – That may be so, but what judges and theorists accept, or have historically accepted, may diverge from the true normative powers of institutions.

G and A – (Audible sigh)

There is clearly something deeply unsatisfactory about this imaginary exchange.    Each theorist begins their analysis in a different place: one begins their analysis with acceptance; the other begins with justification (incidentally, this is precisely the way that I read the actual exchanges between Goldsworthy and Allan).  Is there any hope of resolving such a fundamental difference in approach?     Before I attempt to provide a positive response to that question, let me first consider a possible negative response.

It may be that some constitutional theorists, at least, are indeed pursuing different projects.    Goldsworthy and Allan (along with most other constitutional theorists, we can suppose) seem to be interested in identifying the true rights, duties and powers of institutions and individuals in the British constitution.   In other words, they are trying to offer a theory of the normative effects of British constitutional practice.   Other theorists seem to be less interested in, or less sympathetic to, that project. For political constitutionalists such as Bellamy, constitutional theory involves constructing an ideal model of the relationship between Parliament and courts.    The theory of Parliamentary sovereignty, he implies, may or may not reflect the prevailing balance of power in the constitution, but it is the theory that approximates most closely to the ideals of political constitutionalism.    In a different vein, Griffith can be read as bringing the perspective of a political scientist to constitution analysis.  His interest is in the realpolitik of the constitution (i.e. where the sources of brute power can be found).    Thus, it is the Government rather than Parliament, he says, that possesses sovereign power (perhaps it would be Rupert Murdoch or Tesco today…).    There are hints of Griffith’s approach in the work of Oliver (above).    By her claim that there is a gap between the reality of institutional powers in the constitution and the (normative) theory of those powers, Oliver is perhaps similarly attempting to offer the descriptive view of a political scientist rather than the normative view of a constitutional theorist. I shall resist that reading of Oliver in the section that follows.

Interpreting the British Constitution

I now want to offer a positive response to the question that I posed above (viz. is there any hope of resolving the fundamental difference in approach taken, for instance, by Allan and Goldsworthy?)    Let me first try to sharpen the inquiry a bit.    Our interest is in whether theorists who seem to employ very different methods of constitutional analysis (as illustrated in 1-3 above) can intelligibly disagree with each other.    At the same time, we want to be in a position to say that one theory of the constitution provides the correct theory, or a better theory than some other theory.      The object of the inquiry, then, is to arrive at some common framework, or some common measure of success for all theories of the constitution.    It is the interpretive approach mentioned at the start of this blog item that, I think, holds the key to this ambition.

Rather than attempt a long and detailed exposition of Dworkin’s interpretive approach, let me spell out as plainly as possible a) how I think this approach makes disagreement between Goldsworthy, Oliver and Allan possible; and b) how, according to this approach, one of these theories can potentially provide the correct understanding of the constitution.

In answer to a), the level at which the disagreement between Goldsworthy, Oliver and Allan can take place must be more abstract than we have so far considered.   In the imaginary dialogue above, both Goldsworthy and Allan make arguments that are internal to their preferred constitutional method: Goldsworthy argues on an empirical level about official acceptance, while Allan argues on a normative level about how to justify institutional powers.    The real disagreement between Goldsworthy and Allan, I suggest, concerns the deeper question of why the powers of Parliament and courts should depend either on empirical argument or normative justification (or, to include Oliver’s approach, pragmatic judgment).   These are rival approaches to constitutional analysis which each require a positive argument in their favour.   Goldsworthy must explain why acceptance by officials is the decisive factor; Oliver must explain why pragmatic judgment is the decisive factor; and Allan must explain why moral justification is the decisive factor.   By extension, each theorist must try to show why the factors identified by other theorists are erroneous.

This brings us to b).   It will be tempting for some theorists to claim that their favoured method of constitutional analysis is descriptively correct: that their method is not so much a theory as a factual statement of the way the constitution works.    This recalls the claims made by Griffith (and perhaps Oliver) above.   It also recalls the way that Herbert Hart sought to characterise his approach to legal theory (it is not altogether clear to me whether Goldsworthy endorses that characterisation).     Unfortunately, such a descriptive claim is doomed to fail.    Every theorist presumably believes that his or her method provides the correct understanding of the constitution, and that other methods provide an inferior understanding.   Every method identifies particular facts, features or standards of constitutional practice as representing the reality of the constitution.     There is no way that any theorist can stand above or outside these mainstream debates. They must defend their method with arguments like every other theorist.      That defence, I suggest, can only be an interpretive (or justificatory) one.    Each theorist must attempt to show that their preferred method provides the most morally appealing interpretation of British constitutional history and practice.

These responses to a) and b) now require some unpacking.   What exactly does an interpretive defence of any particular constitutional method involve?  Goldsworthy, Oliver and Allan (along with all other constitutional theorists), I suggest, must show two things at once.   They must first show that their preferred method has independent moral appeal as an account of law, government and the state.   If a theorist relies on (or presupposes) a defective general legal and political theory, then we can almost certainly discount their theory as a viable account of the constitution.   Secondly, assuming that their underlying legal and political theories are sound, a theorist must then show that their preferred method is capable of making sense of the salient facts and features of British constitutional practice.   In other words, they must show that they are advancing, not a Utopian theory, but a theory of the particular constitutional practices and traditions in Britain.

What might an interpretive defence of the methods of Goldsworthy, Oliver and Allan look like?

Goldsworthy’s argument might (and, in part, does) go something like this.  That the powers of Parliament and courts depend on a consensus of acceptance among officials can be justified by such values as certainty, clarity and constitutional stability.   If members of each branch of government must agree to the powers of Parliament and courts, then the risk of a constitutional crisis is minimal.    Neither Parliament nor courts can unilaterally unsettle the system.    A theory based on official consensus also fits the day-to-day practice of judges and officials.   Judges give effect only to the clear meaning of statutory text or to clear rules contained in previous judgments.    There is no sense in which judges make moral judgments either about the proper powers of institutions or about the substantive content of the law.

Oliver’s argument might go something like this.   That the powers of Parliament and courts depend on pragmatic, all things considered judgments can be justified by the values of comity and mutual respect.    If courts and Parliament do not trample on each other’s territory, then things will work out better in the long run.   Courts will maintain their authority, and there is less scope for a clash between branches of government.    A theory based on comity and respect fits the day-to-day practice of courts and officials.   Judges frequently defer to the opinion of officials, and they suppress any thought of striking down legislation.   Likewise, Parliament and the Government generally refrain from criticising judges or judgments.

Allan’s argument goes something like this.   That the powers of Parliament and courts depend on moral principles can be justified by values such as integrity, equality and a range of basic liberties.   The very point of law and government is to ensure that people are treated in accordance with these fundamental principles.   It follows that the state does not have the power to act in a way that contravenes such principles.    A theory based on moral values and principles fits the democratic structures of government.   It also fits the way in which judges bring arguments of constitutional principle to their adjudicative task.

These are merely sketches of what an interpretive defence of these different constitutional methods might look like.  The crucial point to note for our purposes is how each theorist must go about defending their constitutional method and the theory they derive from it, and how they must go about attacking other methods and theories.    Constitutional theory, I have suggested (at greater length than I initially hoped), must be interpretive (rather than descriptive, conceptual, logical or whatever).

Stuart Lakin is a Lecturer in Law at the University of Reading

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Colin Harvey: Engaging With Human Rights in a Disunited Kingdom

The world is saturated with the normative discourse of rights. Rights-talk is to be found almost everywhere; in sugary political speeches, in legal texts, and in the pleas of those experiencing abuse and those advocating on their behalf. Complex societies become ever more fractured as enclosed language games provide a basis for professional progression and advancement of a field; as well as legal and political mobilisation.  Our wordplay and our transnational networks co-exist with shameful levels of inequality, barbarism and brutality. We know it.  We watch it happen. We keep talking about human rights.

That modernity binds both sides together is old news; the 20th century demonstrated the capacity of humanity to reach remarkable heights, as we butchered each other along the way. Understanding the flawed humanity enthroned within human rights seems just as urgent as pressing hard on the potential normative force of personhood. The human within human rights contains all the wonderful, strange, sad, destructive and contradictory tendencies that make our short lives so intriguing. When we struggle for human rights we surely know this. No one wishes to inhabit a world of dull and cramped uniformity.

For all the complexities it remains plausible to assert that although we arrive into a world not of our making, carrying all the inherited limitations of our species,  we have it within each of us, and in solidarity with others, to resolve many of the problems we face. We know enough still to believe that collectively determined action in the world is possible. No human person alive today need live a less than fully human life. If she does, we – as a species – have made it so. How taunting then the surplus of norms must seem, how ripe for future condemnation we are?

Why indulge in such lacerating critique? It is to make a simple point: a commitment to human rights is not ethically neutral, and this engaged perspective should be deployed against forms of legalism that risk suffocating the critical resources of the subject. To insist on human rights brings substantive political and legal consequences, and a basis for assessing practical action. The outcomes will depend on how rights are conceptualised, and there is no easy way to duck declared forms of commitment.

It may not seem like it, but this is of relevance when thinking critically about the Bill of Rights discussions in the UK.

First, the debate is not usefully considered in isolation from political context. Those who wish to know what a Bill of Rights worth that title looks like should be enlightened. But there is little value in pretending that those historically hostile to the aspirations of the global human rights movements have suddenly been converted to the cause. No amount of sunny verbiage about a British Bill of Rights can mask the grubbier political realities. A war against the ambitions of the global rights movement can be conducted within the discourse itself. Everyone believes in human rights now, but what sort of rights culture do you hold to? A constant effort is required to ensure a justifiable conception is promoted and defended. These are interpretative battles with worldly consequences.

Second, from a critical human rights perspective let’s be provocative: worship of one piece of legislation (the Human Rights Act 1998) does not seem that persuasive either. Whether a ‘constitutional measure’ or not it is still a grounded form of law.  The literature is impressive. The Act continues to have a positive impact, often in situations that do not make headlines. Empirical work is ongoing. Whatever the evidence suggests, the worry is that lines are now drawn; on occasion in contrast to what that evidence demonstrates. The constitutional significance of the Act will always confront its direct political heritage. Churchill can be cited as a reminder of the Convention’s origins. The ‘Britishness’ of the law can be defended and rehearsed ad nauseam. The historic cross-party noises in support of bills of rights can be dusted off. But this will, to many people, always be a New Labour legacy (either positively or negatively depending on your party politics). A contextual assessment of the Human Rights Act 1998 cannot dodge the long-term strategic question of whether this is the end for rights in the UK, and should not sidestep the political realities of its achievement.

Third, the voices that historically propel the human rights movement forward are prone to be rendered invisible by forms of narrow legalism. Hope is often invested in the promise of closure that a significant legal judgment can bring. The notion of the last word in bounded time feeds a worldly desire for decisions that is effectively absorbed into the concept of the rule of law. The idea that we might well be in a conversation without end – even over the contested meaning of established norms -  can cause either despair or offer a spur to action. As political constructs erect hierarchies of interpretation to limit the damage, the discourse of human rights imports a tension that cannot be removed; the door will continue to remain slightly ajar. To talk of who has the last word in historical time is rendered meaningless within such a conception of political and legal life. There will be moments of decision, but there will be a going on with human rights as a path that seeks to always comprehend the person first over all and every human construct.

Finally, new constitutional configurations are emerging across these islands. There will be those who seek to instil fearfulness around these trends. From a rights perspective the challenges and opportunities can be embraced. The potential is there for a dialogue among equals to open up public space for a less defensive engagement on how we might promote and protect human rights, and thus show leadership in our age of anxiety and hope.  The outcomes are not pre-determined; those who sow seeds of mistrust can also prosper. It is thus necessary to be open to post-devolutionary experiments in rights protection. The risk is that human rights are submerged in an insecure wave of political unionism. The creativity and energy of the human rights movement should not be undermined even by notionally progressive forms of political and legal unionism in the UK. Such an approach would bury a global movement in the rubble of a partial and frequently distorted ‘national/nationalist’ conversation.

These may all be irrelevant reflections, a distraction. The purpose here is just to pause to consider why we engage with human rights. Setting aside the often bewildering nature of personal motivations (that human again in human rights), we must do this work at some level because we feel profoundly uncomfortable with the world we are in, and thus wish to change it – in the time we have – using whatever forms available: political, cultural, social, economic, and even legal. The risk, it seems to me, is to mistake the contested tools for the contested objectives, and thus forget the ethical imperatives silently pressing us on.  That we are re-enacting the arguments of centuries is no reason for despair or retreat. All those who suffer now, and those silenced brutally in historical time, provide all the foundations necessary to keep going on. To keep talking about the best conceptions of human rights, and insisting on practical realisation.

Colin Harvey is Professor of Human Rights Law at Queen’s University Belfast.

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Arthur Dyevre: The Czech Ultra Vires Revolution: Isolated Accident or Omen of Judicial Armageddon?

On the face of things, the CCC’s judgment, by declaring an EU act, namely a ruling of the Court of Justice, ultra vires, constitutes a momentous and unprecedented display of judicial defiance. To my knowledge, no domestic court has ever taken this step before in a final judgment on the merits; and certainly not in so explicit a manner. In recounting the background of the case and the sequence of events that led to the CCC’s decision, Jan Komarek points to a number of intriguing aspects of the case. One, which has already been highlighted in connection with the Melki case, is the difficulty for the CJEU to avoid alienating domestic judges when it is dragged into domestic judicial politics by way of the preliminary ruling mechanism. Here, however, my primary interest is in the significance and implications of the CCC’s decision for the EU multi-level legal system. In a non-hierarchical court system, where courts at the upper echelon do not have the power to strike down the decisions of courts at the lower level, judicial cooperation appears to be essential to the effectiveness of the higher-level law. So, by defying the authority of the Court of Justice in such blatant fashion, the CCC’s judgment may be viewed as striking a terrible blow to the authority of EU law. Doomsayers may see it as the first event in a chain reaction that will ultimately bring down the whole constitutional edifice of EU law. From now on, every domestic judge will assume that she can safely ignore EU law whenever she sees fit. Still, while there is no gainsaying that judicial defiance at domestic level may potentially raise major problems, I would nonetheless suggest, borrowing insights from game theory and international relations, that this judgment is more likely to remain an isolated event. An all-out war with the CJEU is not in the long-term strategic interest of any domestic court. Hence there is a fairly good chance that, one way or another, the CCC will soon come to its senses and will repudiate a decision that seems to be driven by anger rather than by reason. If it wants to remain a player in the multi-level judicial game, the CCC should take a closer look at the German Federal Constitutional Court (GFCC), which has so far proved a more thoughtful strategic player in its relations with the CJEU.

Of Hawks, Doves and Chicken

Of the classical game forms found in the game-theoretic literature, the one that seems to best approximate the conflictual relations between the CJEU and national courts such as the GFCC and the CCC is the game of Chicken. Most people, presumably, know it from the classical presentation where two drivers head for the same single lane bridge from opposite ends, with the last to swerve counting as the winner. The same game, with the same payoff structure, is also known as the Hawk-Dove game. There two players compete over a resource and have to decide whether to fight (play Hawk) or to acquiesce (play Dove). For each player, the best outcome is, of course, when she plays Hawk and the other player plays Dove, while the worst outcome sees both players choosing to play Hawk. This game form has been widely used in international relations to analyse crisis situations. What strategy should a country adopt, knowing that it will incur severe losses if it acquiesces to the demands of its neighbour but knowing at the same time that a war would be even more costly? I see several reasons why this approach also constitutes an appropriate way to model judicial interactions in the EU legal system. First, jurisdiction is a rivalrous good. Assuming that courts want to expand – or at least preserve – their jurisdiction, courts on opposite sides of a jurisdictional dispute, like the two players in a Hawk-Dove game, have opposite institutional interests. When one court expands its jurisdiction, it normally does so at the other’s expense. (More powerful domestic courts have obviously more to lose, which would explain why the mighty GFCC has been at the forefront of the judicial resistance to integration.)

Second, analogous to the players in a Hawk-Dove game, the courts perceive, or should perceive, the disastrous consequences that would ensue, should both pursue a strategy of defiance. For the CJEU, a single case of overt non-compliance by an influential domestic court may set a dangerous precedent, damaging its authority as well as the effectiveness of EU law. But putting a threat of non-compliance to execution may attract problems to domestic courts, too.  A ruling that comes to be regarded as detrimental to the country’s interests and membership in the EU may trigger adverse political reactions. Legislators may decide to punish the unruly court by rolling back its jurisdiction, changing its rules of procedure, appointing new judges, etc. On that score, it is worth remembering that a group of respected German academic lawyers reacted to the GFCC’s ruling on the Lisbon Treaty – which stopped short of holding the Treaty unconstitutional but was nonetheless regarded as articulating a strongly Eurosceptic position – by calling on legislators to amend the Federal Constitutional Court Act (Bundesverfassunggerichtsgesetz). The proposed amendment would have required that the GFCC send a reference for a preliminary to the Court of Justice before entering any judgment on the ultra vires character of an EU act. Had it become law, the amendment would certainly have dealt a severe blow to the GFCC’s institutional standing. More generally, despite the growing anti-EU sentiment among their voters, government parties in the Member States, even the more Eurosceptic ones, usually agree about the fact of EU membership. This entails that domestic courts can ill-afford to make decisions that would imperil their country’s full membership in the supranational club. In my view, this fact places an upper limit on the level of defiance of domestic judges. The doctrines of direct effect and supremacy are now part – though not necessarily in the form expounded by the CJEU in its jurisprudence – of the “acquis communautaire”. Thus, unless the government parties wish to leave the EU, a court that blatantly defies it will face a political backlash. This is why the decision of the Czech constitutional judges looks daft. As the GFCC understood early on, going to war should always be the ultima ratio.

Bluff and Brinkmanship in the Judicial Cold War

In the situation we are concerned with, the courts’ strategic choice mirrors the one faced by the players in a Hawk-Dove game. Assuming that a constitutional crisis is a worse outcome than a jurisdictional loss, a domestic court’s best response to a dovish CJEU is hawkish judicial expansion or reassertion, but its best response to a hawkish Court of Justice is judicial restraint. Hence it is easy to see to that each court would ideally be the Hawk and have the other be the Dove. Yet strategic decision-making – again, as in the standard formulation of the Hawk-Dove game – is rendered difficult by the fact that the courts do not have a dominant strategy – i.e. a strategy that remains the best whatever strategy the other court happens to choose. This difficulty is further compounded by the iterative character of judicial interactions in the EU court system. We’re not dealing with a one-shot game but with repeated interactions.

Now, when we repeat a game indefinitely many different equilibriums are possible. But if the players are allowed to communicate about their future choices, they may be able to use communication so as to induce an equilibrium more favourable to their interests. A country’s leader may thus want to signal hawkishness and announce he is ready to go to war. Similarly, a court may hint that it is ready to risk a constitutional crisis to force the other to acquiesce to its jurisdictional demands. The resolve of the judges just as that of the leader may be impossible to establish with certainty. But credible enough the signal may well work. This I would argue is the game the GFCC has been playing ever since its first Solange decision. On numerous occasions, the German Court threatened to disapply EU legislation if found to be ultra-vires or to violate basic human rights. Yet it has never put its threat to execution. To many legal scholars, this is proof that the GFCC is a dog that barks but never bites. But in fact this may be a sign of its success in countering the CJEU’s activist impulses. Without ever setting aside a single EU act, the Karlsruhe court may have managed to set limits on the European Court’s jurisdictional expansion. Perhaps it was bluff all along (the judicial Hawk was in reality a judicial Dove). But if bluff it was, it seems to have worked, at least some of the time. The Court of Justice’s human rights jurisprudence is often presented as a response to Solange. The GFCC’s decision on the Lisbon treaty, meanwhile, invites comparison with the Cuban missile crisis. By designating its most Eurosceptic judge, Udo di Fabio, as rapporteur and by issuing an opinion with strong sovereigntist overtones, the GFCC may have successfully emulated President Kennedy’s cautious firmness with the Soviet Union. Having made its voice heard, the Honeywell ruling was then similar to the Kennedy’s decision to withdraw nuclear warheads from Turkey: a face-saving exit for the CJEU that would ease and bring tensions back to a more manageable level.

Conclusion

I do not mean to say that the GFCC is always a force for good in the EU legal system. Its role in the ongoing debt crisis, where it seems to serve as pre-commitment device for the German government in negotiations with other Member States (“We can’t accept this because our constitutional court will say no”), is, for my money, highly objectionable on normative grounds. So too is the declaration of its President, Andreas Vosskuhle, that the German Constitution “hardly admits of more integration”, whose subtext seems to be “We, the Court do not want to see more integration”. But this is not my point. Rather my point is that thoughtful domestic judges, even if they take a sceptic view of integration, should first seek negotiations with the judges in Luxembourg before even thinking about pressing the big red button. Those who fear a judicial Armageddon will find some comfort in experiments that have shown that the iterated Hawk-Dove game (in its Snowdrift variant) leads to consistently higher levels of human cooperation than other iterated games such as the iterated Prisoner’s Dilemma. As with superpowers during the Cold War, the threat of mutually assured destruction seems to provide human beings with a strong incentive to cooperate. Let’s hope judges are human beings too.

Arthur Dyevre is Senior Research Fellow at the Max Planck Institute for Comparative and International Public Law in Heidelberg

This post originally appeared in the Verfassungsblog, and is reposted here with thanks. 

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Stuart Lakin: What Role Should Judges Play in the Constitution Justice Sumption?

In his recent F.A. Mann lecture Jonathan Sumption Q.C., the newly appointed member of the Supreme Court, took up the question of the proper role of judges vis-a-vis the political branches of government in the UK.   Tom Adams has already provided a fine summary and analysis of the lecture in his January post.   I urge readers to follow the link to this post (and to read the lecture itself ) before continuing.

In this short comment, I want to offer some thoughts on Sumption’s central theme, namely that judges should not intervene in matters of politics or policy.     I shall make two general points, one positive and one negative.   In the positive, I shall support Sumption’s call for judges to engage directly with constitutional theory in determining which branches of government should decide which types of questions (for a more general argument about the importance of theory for public law, see my earlier post.)  In the negative, I shall support Tom Adams’s conclusion that Sumption’s own constitutional theory is rather unbalanced.   While Sumption makes many cogent arguments about the distinctive virtues of politics and governmental policy-making, he needs to say far more about the precise role of judges in the constitution.    This task, in turn, requires a far more detailed and nuanced account of the nature and importance of law, the rule of law and individual rights.

Before I move into my arguments, it is worth sounding a few notes of caution.  A public lecture of about 9,000 words (or an hour) in length, given just a few months before taking up judicial office (for the first time) in the highest court in the land, with lawyers, journalists and others hanging on your every word, is probably not the ideal occasion to mark someone’s score sheet.    Sumption is an unusually bright lawyer.   I doubt that his arguments are the best he has, or even that he fully endorses everything he says.    It certainly seems premature, to me, to conclude from his lecture that he is ‘conservative’ and ‘naive’ in his views (see Joshua Rozenberg’s article in The Guardian, November 9, 2011.).  But I may be wrong.  We shall have to wait and see whether, or to what extent, the arguments of Sumption Q.C. find their way into the judgments of Justice Sumption…

The need for judges to do constitutional theory

My positive argument can be made very briefly.  It is less of an argument, and more of a textual ‘hear, hear’ for the following passage towards the end of Sumption’s lecture:

“English judges have traditionally been shy about resorting to large constitutional theories to explain their judgments. This is consistent with the pragmatic and undemonstrative traditions of English law, and its distaste for rhetoric and all-embracing propositions. However, the reticence of English judges about the constitutional implications of their decisions has had unfortunate consequences. It has meant that English public law has not developed a coherent or principled basis for distinguishing between those questions which are properly a matter for decision by politicians answerable to Parliament and the electorate, and those which are properly for decision by the courts”  (22)

Whether or not this is a fair assessment of the record of English judges, the broad implications of the passage must be correct.   The proper division of responsibilities between courts, the executive and the legislature is a deeply controversial, moral question.   It can only be answered by reference to some theory of why certain types of decisions should be left to one or other branch of government.    The greater the willingness of judges to make explicit their constitutional theory, the greater the prospects for a coherent and principled model of the separation of powers.

Sumption supports this general view with a careful account of the relevance of judicial deference/restraint/reticence (call it what you will) to public law adjudication.

First, judicial deference, where appropriate, is not deference to the minister; it is deference to “the constitutional separation of powers which has made the minister the decision-maker, and not him.”  (18)     To put this point differently, judges should not defer at all; they should simply exercise their proper constitutional function on some principled account of what that function should be.   This is a point made repeatedly by Trevor Allan in his work on deference.

Secondly, Sumption plays down the significance of ‘institutional’ reasons for judicial deference.   Factors such as “the lack of justiciable standards by which to assess [particular areas of policy-making], the limitations of the court’s expertise, and the indirect impact which an adverse decision may have on interests not represented before the court”, Sumption argues, “reduce to the level of a practical impediment what is actually an important issue of principle.” (20)   The proper basis for judicial power, Sumption reiterates, must be the general application of an underlying constitutional principle across the whole range of government activity.

This distinction between ‘institutional/practical’ reasons and principled reasons for judicial restraint recalls Jeffrey Jowell’s distinction between the ‘institutional’ and ‘constitutional’ competence of courts.  Jowell and Sumption may not be in full agreement though.   For Jowell, institutional reasons for deference are themselves moral reasons (as opposed to practical, unprincipled reasons).    Jowell must be right on this point.    The question of what counts as a ‘justiciable standard’ must depend on some principled account of what types of standards judges should apply.    Similarly, the extent to which courts require special ‘expertise’ must depend on some principled account of what type of judgement courts should make about the evidence before them (I shall  have more to say about these points below).

Perhaps Allan, Sumption and Jowell are all ultimately saying roughly the same thing: that  an account of the proper role of judges requires a principled theory of a range of constitutional and institutional factors.    As Allan has helpfully put it, the label ‘deference’ is a conclusion about how we should understand those factors.

So What Should Courts Do?

Having encouraged judges to get stuck into constitutional theory, how far does Sumption himself take us towards a convincing theory of role of judges?    This brings me to my negative argument.   It is striking as one reads Sumption’s lecture how little argument there is about what judges should do.    There are heaps of warnings about what judges should not do, and how judges have strayed outside their proper constitutional role (whatever that might be): judges should not intervene in areas of ‘macro-policy’ (6), judges should not use judicial review as a means of expressing their ‘aversion’ to a policy (6), judges should not legislate (7), judges should not balance competing policies (9), judges should not attempt to resolve inherently political issues (18-19), etc, etc.     At the same time, Sumption gives plenty of rich and insightful argument about the value of politics as a mode of policy-making:   politics is an “essential tool of compromise” (17), the only means of determining the public interest, and the only way of ensuring democratic, public accountability on sensitive issues of public policy (21).

There is no question that a comprehensive theory of the role of judges vis-a-vis the political branches of government must include a detailed account of legislation, politics, policy, and democratic accountability   Those theorists who advocate a so-called ‘political’ or ‘republican’ understanding of the constitution place particular emphasis on these types of things.   As does Jeremy Waldron in his own uniquely challenging way.     But these types of things make up just one side of the constitutional equation.     We also need a positive account of precisely what role judges and courts should have in the constitution.   How should judges interpret statutes?   What limits should judges place on the exercise of executive discretion?   As I have said, Sumption doesn’t take us very far at all with those types of questions.   He assures us that judicial review is not ‘unnecessary’ (18); and he insists that we need to ‘sort out the law which judges [should] administer’ (19);  but, beyond that, he offers only the most indistinct account of judges’ job description.

Take the following familiar situation described by Sumption early on in his lecture (6).  A statute gives a minister an apparently unqualified power to act ‘as he or she thinks fit’.  The court has to decide whether the minister has abused this power.    How should a judge decide this question?    We can infer from Sumption’s account of what judges should not do that they should apply the “clear literal meaning [of] the statute”, or they should try to find “sufficient and admissible evidence of the actual [Parliamentary intention].”  (7)    But the text of statute will very often (if not always) bear many different possible meanings; and it may be altogether unclear from the text (or indeed from Hansard) what meaning Parliament intended.   What should a judge do then?      Sumption seems to have no answer to this question beyond telling us that, at this point, a judge’s decision will cease to be a legal decision: judges will instead inevitably cross over into the forbidden territory of policy-making and legislation.

Sumption’s failure (at least in this lecture) to advance a rigorous theory of the judicial role is symptomatic of an unfortunate tendency among British constitutional lawyers and theorists.  Different views on the role of judges are all too often expressed in metaphors or empty slogans: judges should apply ‘a light touch’ or a ‘hands-off’ approach, or a ‘progressive’ approach to judicial review.    The fix for this tendency, I think, is a much closer engagement with legal theory alongside political theory.     If it is thought that judges should give effect to the law, then judges and theorists need to grapple with the question of what counts as a legal right, duty or power; and they need to think about what it means for officials or institutions to be governed by law (or the rule of law).    These are difficult and controversial questions, but judges and theorists have no option but to confront them.    Judges can only make a principled judgment about when to impugn a ministerial decision if they have put together a theory both of politics, policy and democracy, and of law, the rule of law, and individual rights.   I would add that judges should be as willing to spell out their legal theory as their political theory.    Given his general sympathy to judges doing theory, it would be surprising if Sumption were to disagree with me about this.

Stuart Lakin is a Lecturer in Law at the University of Reading

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