Tag Archives: Conventions

Nick Barber: Can Royal Assent Be Refused on the Advice of the Prime Minister?

Nick1There is a very good article in the most recent edition of the Law Quarterly Review.  It is by Rodney Brazier, and is concerned with the nature and mechanics of royal assent.  It is a fascinating read, and, as with all Brazier’s work, characterised by a dry wit.  There is, however, one claim, made almost in passing, that I think is mistaken.  Brazier addresses the question of when, if ever, a monarch could properly refuse to give assent to legislation.  He rightly concludes that it is almost impossible to imagine situations in which assent should be refused, but leaves open the possibility that it might be appropriate for the Monarch to refuse assent if advised to do so by her Ministers.  In suggesting that royal assent could be refused on ministerial advice Brazier is not alone.  The assertion has also been made by Geoffrey Marshall in Constitutional Conventions, and Adam Tomkins in Public Law – and may, for all I know, have been made by others, too.   On the other hand, Anne Twomey (in an article in Public Law in 2006) argued that the issue remains open, and gives a number of examples, mostly from Australia, which suggest the Monarch need not accept the advice of her Ministers to refuse assent.  So which position is correct?  If the Prime Minister (or the Cabinet, collectively) advised the Queen to refuse to give her assent to legislation, what, constitutionally, should she do?

Before I set about answering this question it might be worth explaining why I think it is important.  It sounds like a piece of constitutional arcana: the chances of the issue arising seem remote, given that the Prime Minister is Prime Minister because he or she normally has the support of the Commons.  But it could become very important very quickly.  The days when one party dominated the Commons seem, for now, to be over.  It is easy to imagine a minority government facing legislation they disliked, or to imagine MPs stuck in an unwanted coalition becoming increasingly willing to defy the party whips.  The Fixed-term Parliaments Act makes it less likely that such a vote would trigger the resignation of the government, but the Prime Minister might still seek to use the royal veto to stop the bill becoming law.  The issue might also become important if there was an attempt to codify the constitution.  If the convention was included in our new, written Constitution, how should it be expressed?  Would the Constitution effectively give the power to the Prime Minister to veto legislation?     But finally, as well as potentially important, the question is also interesting: it turns on the interpretation of a convention, and forces us to consider what criteria a successful interpretation would meet.

Interpreting conventions is a tricky business. Sir Ivor Jennings famously asserted that there were three elements to a convention: there were precedents, the actors involved must believe themselves to be bound by a rule, and there must be good reasons for the rule.  Geoffrey Marshall advanced a similar understanding of conventions, but did so more pithily: conventions are, wrote Marshall  ‘…the rules that the political actors ought to feel obligated by, if they have considered the precedents and reasons correctly’ (at p. 12, and also here at p. 39).

I have explored the nature of conventions at great length in The Constitutional State.  For our present purposes, though, the question turns on the role that a reason plays in our understanding of a convention.  It is only once we have identified a reason for the convention that we can start to interpret it.

Now, some hard-nosed political scientists would argue that interpretation is impossible, partly because they would reject the inclusion of a requirement of a ‘reason’ within the definition of a convention.  All we – we as academics – can do is describe the actions and beliefs of those within the political community.  It is not for us to seek to resolve uncertainties around the rule by trying to interpret it.  There is certainly some merit to this position.  After all, one of the core features of a rule is that it has an existence separate from the reasons that may underpin it.  A rule can exist, and continue to shape behaviour, even if the reasons for it have disappeared or, indeed, never existed in the first place.  It would seem unnecessarily confusing if, when providing an account of the British constitution, we refused to recognise a convention that those acting within the system followed just because we could not see a reason for their adherence to the rule.

Does this mean that consideration of the reasons for a convention fall beyond the capacities of those seeking to understand the constitution?  First, the line between the descriptive and the evaluative is notoriously hard to draw.  Even the driest account of a constitution needs to pick and choose to a certain extent.  A description of the British constitution that resolutely refused to select between competing interpretations of its rules would be worthless – radically undermined by the inclusion of crazy understandings of the constitution.  And it would also be incomplete.  A good description of a convention should try to identify why the rule is valuable.  Part of this can be done by looking at why those following the convention think it is valuable – if they have given any thought to the matter – but the further question of whether they were correct in their beliefs would remain open.  A good account of a convention would also address this issue.

A second explanation for why we – that is, those who read a blog of this type – should try to identify a good reason for a convention is that we are part of the constitutional community that contains the rule.  The political pressure that secures obedience to convention comes from our community. Our understanding of the convention may, then, affect how those in power understand the rule.  It would be hubristic to suppose Her Majesty is an avid reader of this blog, but we can be fairly certain that her office will have filed a copy of Professor Brazier’s article in some drawer, waiting for the day when there is a dispute over the exercise of royal assent.  Whilst the conclusions of an anthropologist, studying the rain-dance of an Amazon tribe, will not affect the practice she studies, the conclusions of a constitutional lawyer on the meaning of a convention may well help shape how those following a convention understand the rule.  This influence brings responsibility: we have an obligation to our community to identify bad or pointless conventions and, also, to explain why good conventions are worth having.

The correct understanding of the convention of royal assent requires us, as Ronald Dworkin would say, to put the rule in its best light.  If we are able to identify a good reason for the rule we can – sometimes – then resolve ambiguities or uncertainties around the rule by reference to this reason.  What, then, is the reason for the convention on royal assent?

Those who argue that the Queen should accept the advice of her Ministers do not explain at any length why they adopt this interpretation of the convention.  Perhaps the best explanation of their understanding is that they group the convention on royal assent along with the rest of the conventions surrounding the prerogative powers.  Practically all of the Queen’s prerogative powers are now exercised on the advice of Ministers, normally the Prime Minister.  The prerogative can be used to appoint ministers, declare war, annex territory, sign treaties, and many other things besides.  That the Queen no longer has any discretion about the exercise of these powers is important because it upholds democratic government.  Ministers are accountable to Parliament and, ultimately, to the electorate, for the ways they use these powers.  In the words of Walter Bagehot , a republic has insinuated itself beneath the folds of a monarchy.

But does this reason justify the inclusion of royal assent within the group of prerogative powers that are exercised on ministerial advice?  It is hard to see that it does.  Now the convention is operating against democratic values, rather than upholding them.  Rather than supporting parliamentary government, it would undermine it.  The point of the convention on royal assent is to uphold the primacy of the democratic element of the constitution in the making of law.  But just as it would be undemocratic to allow one person – the Monarch – to veto legislation, so too it would be undemocratic to give this power to the Prime Minister.  In short, when presented with a bill that has passed through Parliament in a proper manner, the duty of the Monarch is to give assent – irrespective of the advice of her Ministers.  There is no room for discretion.   On its best interpretation, this is what the convention requires: if the Monarch were to accept the advice of her Prime Minister on this issue, she would be acting unconstitutionally.

Nick Barber is a Fellow of Trinity College, Oxford, and University Lecturer in Constitutional Law. 

Suggested citation: N. W. Barber, ‘ Can Royal Assent Be Refused on the Advice of the Prime Minister?’   UK Const. L. Blog (25th September 2013) (available at http://ukconstitutionallaw.org).

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Gavin Phillipson: ‘Historic’ Commons’ Syria vote: the constitutional significance (Part I)

gppDoes the recent vote in the House of Commons on military action against Syria have real constitutional significance? Is it the final piece of evidence that there is a constitutional convention that the consent of the House of Commons must be sought before armed force is used?  If so, should anything be done to concretise and clarify this Convention? And what is the broader constitutional significance of this episode in terms of the evolution of controls over the prerogative power and its significance for the evolving separation of powers in the UK?

The first part of this post, below, sets out to provide some preliminary answers to the first two questions above. The second part, to be published later on this blog, deals with the third and fourth.

The facts

Rocket attacks launched in Eastern Ghouta, Syria, on 21 August used a deadly chemical agent (since confirmed as the nerve agent sarin), causing widespread civilian casualties; suspicion almost immediately fell on the Syrian government as the likely guilty party. The Cameron government then became one of those, along with France and the US, pressing hardest for a military strike against Syria, to punish the regime and deter any further use of such weapons. David Cameron recalled Parliament specifically to allow MPs to debate and vote on a Resolution approving the use of military action in principle on 29th August. Following negotiations with the Labour leader, Ed Milliband, Cameron agreed that, even following the assumed passage of that resolution, a second resolution would be put to the House, authorising the actual use of military force: the Government Resolution put to the House specifically provided for such a later Resolution. However, Labour nevertheless put down an Amendment to the Resolution, setting out a more restrictive set of criteria to be satisfied before any military action was taken. Notably, before the debate took place, the Government published both a summary of the Joint Intelligence Committee’s reasons for believing that the Syrian regime was most likely to be have been the perpetrator of the chemical attack and the Attorney General’s (brief) statement of reasons for believing that an armed intervention by the West would be lawful under international law.

The Labour amendment was defeated, but, in a shock result, the Government Resolution was also voted down,  by 285 to 272. Immediately after the result was announced by the Speaker, the Prime Minister, in response to a question from Ed Milliband, pledged that the Government had ‘got the message’ that the House did not support military action and would ‘act accordingly’. In all subsequent public statements, Ministers made clear that the vote meant a complete change in Government policy: the UK would not now take part in any armed attack on Syria. Commentators were quick to hail the result as ‘historic’ and ‘unprecedented’ in modern times, with some asserting that one had to go back to the 19th Century to find a comparable precedent.

The constitutional basics: three norms.

It is important to note that, when it comes to the use of armed force, there are not one, but two conventions in play, one very old, the other (if it exists) very new. Throw into the mix the archaic but hugely important source of  Executive legal authority known as the Royal Prerogative, and it’s no surprise that even seasoned political commentators have struggled to explain the significance of the Syria vote to their audiences. As Jeremy Paxman said, rather fretfully on Newsnight that evening: ‘What’s this about the Royal Prerogative?’ So to rehearse the basics briefly, there are three norms in play:

(1) the Queen holds the legal power to command the armed forces, through the Royal Prerogative.

(2) But by a well established convention, this power is exercised on her behalf by the Prime Minister/the Cabinet.

(3) By a second, emerging convention, it seems now to be the case that the House of Commons must be consulted before action is taken (unless urgent action is required).

That one of the most important powers any government has – to used armed force – is governed in the UK by a legal source that is both archaic and undemocratic and by two non-legal norms, one of which is of very recent pedigree and still perhaps open to doubt, says much about the nature of our ‘unwritten’ constitution.

Does the second convention exist?

History up to Iraq 2003.

Up until very recently, the lack of any necessity to seek approval from, or even consult with Parliament before committing the country’s armed forces to conflict, whether in a formal state of war or not, has been one of most remarkable features of the executive’s prerogative powers. Brazier put it well:

How odd – perhaps bizarre – it is that the approval of both Houses of Parliament is required for pieces of technical, and often trivial, subordinate legislation, whereas it is not needed at all before men and women can be committed to the possibility of disfigurement or death (R. Brazier, Constitutional Reform, 2nd edn, 1999, p 123).

Despite the absence of any legal requirement to consult Parliament, has there been a practice of doing so, or a convention that this should occur? Surprisingly, again, the historical answer has been no. Brazier notes that in the cases of the Suez crisis, the Falklands Conflict, and the Gulf War of 1991, no attempt was made to seek formal parliamentary approval before committing forces to war. To these can be added the deployment and use of the RAF in Bosnia in the 1990s by the Major Government, and the prolonged campaign of air strikes against the targets in Kosovo and Serbia authorised by the Blair Government, neither of which were the subject of formal parliamentary approval. The long campaign in Afghanistan – far more costly in lives than either of the Yugolsav campaigns – was likewise started twelve years ago (in October 2001) without such approval and long continued without it. The newly formed Backbench Business Committee (of which more later) held a debate and a vote on a substantive motion on the presence of British forces in Afghanistan on 8th September 2010, but this was almost ten years after the relevant action began. The debate was on the substantive motion “That this House supports the continued deployment of UK Armed Forces in Afghanistan” and was agreed on division by 310 to 14. However, since this vote took place so many years after troops were initially deployed, it cannot be seen as setting any meaningful precedent for consulting Parliament before or even shortly after military action is taken.

Some Ministers have claimed therefore that David Cameron has been the first Prime Minister to give the House of Commons a say on military action; however, this is mistaken, as will appear when we look at the two recent precedents.

The two previous precedents: Iraq and Syria

It was not until the Iraq war in 2003 that the Government decided that a formal vote should be held in Parliament before committing troops to that particular battle, and this was done more as a matter of political necessity than out of a sense of constitutional obligation. Nevertheless, this dramatic parliamentary debate in March of that year, which saw the resignation of Robin Cook from the Government, and a massive Labour rebellion, rapidly assumed significance as a precedent for the future. Blair’s statements to Parliament before the vote about consulting the Commons were carefully equivocal; while saying, “I cannot think of a set of circumstances in which a Government can go to war without the support of Parliament”, he steadfastly refused to give an undertaking that he would consult Parliament before undertaking military action against Iraq (see e.g. his Oral Evidence to the Liaison Committee, 21 January 2003). The way he framed it at one point, ‘ I have never had any difficulty at all with Parliament either being consulted and informed or expressing its view’ (ibid) hardly seemed to conceive of Parliament’s role as a crucial one. Moreover, very shortly before the crucial debate, the Attorney General, in answer to a Parliamentary Question, said bluntly:

“The decision to use military force is, and remains, a decision within the Royal Prerogative and as such does not, as a matter of law or constitutionality, require the prior approval of Parliament” (19 February 2003, emphasis added).

In other words, the attitude of the Blair Government seemed to be that while it was permitting a vote (and would respect its outcome, as a matter of political necessity) it did not normatively admit to the existence of a convention that it was bound to do so.

It is useful at this point to recall Jenning’s classic three fold test for the existence of a Convention:

 First, what are the precedents; secondly, did the actors in the precedents believe that they were bound by a rule; and thirdly, is there a reason for the rule? (The Law and the Constitution, (5th ed, 1959), at 136).

There certainly seems to be a clear ‘reason for the rule’ in this case: to allow the Commons to perform its constitutional role as a check upon the executive, ensuring democratic scrutiny of a vitally important decision. However, it seems very hard to argue that in this instance the Government actors believed themselves to be ‘bound by a rule’; this weakens the normative value of the Iraq precedent. In response it may be noted that this point throws up something of a paradox about Jenning’s three-fold test. Precedents are necessary to establish a convention, but, in order to count as a full ‘normative’ precedent, those engaging in the action must have believed themselves to have been bound by a (presumably) already-existing rule. But since it was the occasion itself which helped create the rule (by being the first precedent establishing it) it is hard to see how it would have been possible for the actors in that first case to have considered themselves to bound by a rule which did not then exist. Strictly applied, therefore, this criterion would therefore appear to prevent any first precedent being established.[i] To avoid this difficulty, we might conclude that Jenning’s second criterion may properly be waived in relation to the first, or foundational precedent.

Whether this argument is accepted or not, the simple fact is that the 2003 vote has been treated by subsequent constitutional actors as a precedent, as we shall see. Such is the power of the vivid example.

It was the Libya conflict in 2011 that saw the most significant progress toward the establishment of at least a basic convention of consultation. While the option of imposing a “no fly zone” in Libya via NATO air assets was under active consideration, Sir George Young for the Government stated in the House of Commons on 10 March 2011:

 A convention has developed in the House that before troops are committed, the House should have an opportunity to debate the matter… As with the Iraq war and other events, we propose to give the House the opportunity to debate the matter before troops are committed.

The promised debate duly took place on 21 March 2011. The motion, a substantive one, approving the use of UK armed forces to enforce UN Security Council Resolution 1973, by protecting civilians and enforce the No Fly Zone, was approved by a vote of 557 to 13. Notably also, the Government’s belief in the existence of such a convention was confirmed by the Cabinet Secretary, Sir Gus O Donnell, who wrote to the Commons Political and Constitutional Reform Committee in March 2011, stating that:

 “the Government believes that it is apparent that since the events leading up to the deployment of troops in Iraq, a convention exists that Parliament will be given the opportunity to debate the decision to commit troops to armed conflict and, except in emergency situations, that debate would take place before they are committed.”

Note how the Government treats the Iraq case as the foundational precedent. The Cabinet Manual was published the same year and the relevant para states:

In 2011, the Government acknowledged that a convention had developed in Parliament that before troops were committed the House of Commons should have an opportunity to debate the matter and said that it proposed to observe that convention except when there was an emergency and such action would not be appropriate (Cabinet Office, 2011, 1st ed, para 5.38).

The Libya episode then was perhaps more significant than that of Iraq in 2003 in that in this instance, the Government granted a debate because it believed that a convention required it to do so. As a precedential action it thus fulfilled all three of Jenning’s criteria, as Iraq had not. However, in terms of the substantive content of the emerging Convention, Libya is not a fully satisfactory precedent for one simple reason: the debate took place after military action had already started. The debate was held on 21 March. However, action had in fact started two days earlier: on 19 March, Royal Navy submarines had fired cruise missiles at Libya, as had RAF Tornados on the night of 19th-20th March, while on the 20th, Tornados flew an offensive mission over Libya (although not in the end bombing their targets due to intelligence of a risk of killing civilians). Despite the Government’s statement above, then, it did not appear to regard itself as bound to obtain the assent of Parliament before commencing military action and did not in fact do so. Hence it does not unequivocally support such a norm.

The significance of the Syria vote

Given, then, the two previous precedents and the fact that the current Government had stated its view that a convention already existed, what was the significance of the Syria vote? On one level it may be seen as simply providing a third precedent, which clearly satisfied all three of Jenning’s tests, and thus as the final piece of evidence required to establish firmly the existence of the convention. But beyond this simple but important role it has three particular points of significance, as follows:

(1) The Government was defeated and, as a result, publicly reversed its policy. This is the most obviously distinctive feature of the Syria episode. On one level of course, this may be seen simply as a matter of brute political chance, of the parliamentary arithmetic, and not as having normative significance. What it did though, was display in the most vivid and dramatic way that the Government did indeed accept an obligation not to use armed force if the House of Commons voted against such action. Government Ministers subsequently repeatedly spoke of the Government not being in a position to take action in the face of the vote. While it was said that Tony Blair would have withdrawn British forces from the Gulf had the vote gone against him in March 2003, that outcome of course did not transpire. The actual event of the Government publicly revoking its previously – and publicly-declared – foreign policy has tremendous importance in displaying to Britain and the world the practical force of the Commons ‘no’ vote. This establishes beyond doubt that such votes in the Commons are not just a matter of form (like say the Royal Assent to legislation), but that they amount to a real veto. In short, the Commons has shown both that it now has real teeth and that it is not afraid to use them.

(2) The debate was held before the use of any armed force (in contrast to the vote on Libya). While this was also the case in Iraq, in that case there had been a major deployment of armed forces, including thousands of personnel, to the Gulf (and limited air operations by the RAF under the same government several years earlier in the ‘Desert Fox’ action). It is, of course, far harder, politically, for Parliament to vote against such a proposal when troops have already been deployed in a neighbouring country and war is imminent, as in the case of Iraq. Such a vote would be likely to force the prime minister to resign, as Tony Blair was prepared to do had he lost the vote on the Iraq war, something that is likely to deter a negative vote by MPs from the governing party. Holding the vote well in advance of the armed forces going into action, as opposed to doing so on the eve of action, or it has already started, gives Parliament far more of a real choice: MPs voting against action cannot be accused of undermining the morale of the already-deployed or in-action personnel (‘our boys’ as the tabloids will inevitably start calling them). The point then is that, in the Syria example, Parliament was given a real choice without the pressure of a major deployment having already taken place.

(3) The Government published its legal advice on the lawfulness of military action. This may be contrasted both with the Iraq episode, in which the Government notoriously refused to publish to Parliament the AG’s advice (which itself had changed) and with the later proposals of the Brown Government for a parliamentary resolution setting out the terms of the Convention (see later post on this). This may establish a precedent-within-a-precedent requiring disclosure on the crucial issue of legality.

It may now be said with some confidence, therefore that, following the Syria episode, a constitutional convention exists to the effect that the Government must, before, commencing any military action, permit a debate and vote in the House of Commons and abide by its result, subject to a narrow exception exists where truly urgent action is required.

In Part II of this post, to follow, I consider whether this situation has now resolved the long-standing democratic deficit in this area, or whether further reform is needed; I examine in particular the option of a resolution, approved by both Houses, setting out the terms of the new convention.

 Gavin Phillipson is a Professor of Law at Durham University.

Suggested citation: G. Phillipson, ‘ ‘Historic’ Commons’ Syria vote: the constitutional significance (Part I)’  UK Const. L. Blog (19th September 2013) (available at http://ukconstitutionallaw.org).


[i]  An exception could apply to instances like the well known ‘Sewell Convention’, in which the Government announces a new convention and declares itself bound by it, before then proceeding to act in accordance with it. In such an instance, the rule may be considered to have come into being, before the first compliance with it, so that the actors in the first precedent could indeed consider themselves bound by – and cite – the rule when acting. However, even in such instances some purists argue that in such a case the announcement does not create the Convention itself (which can only be created by a web of precedents) but merely amounts to a statement of intention to create a convention. In any event, our war powers example does not fall within this category of a pre-announced rule.

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Tom Adams: Royal Consent and Hidden Power

tom-10The requirement of Royal Assent for bills which have passed through our democratic institutions is well known. Those amongst us who favour the constitutional monarch remind others that it is a power only in the symbolic sense: assent has not been refused since the reign of Queen Anne. And those amongst us who prefer our politics not to be confused with genetics comfort ourselves – although sometimes this comfort is not enough – with the reminder that it is a power only in the symbolic sense: assent has not been refused since the reign of Queen Anne.

One point upon which republicans and monarchists might agree is that it is right that both the existence and occasions of exercise of this power are publically known. They might also agree that this is an instance of an important general principle. For, if we are even to begin to engage in sensible debate about the relation between monarchy and constitutional democracy in the 21st Century we must have a good understanding of the extent of the Monarch’s powers – symbolic and real – over the content of our politics. A discussion which takes place in the dark is unlikely to shed much light.

It is with this principle in mind that we should consider the details which have emerged in the past two weeks concerning a quite different political power vested in the Monarch. It is, according to documents recently made public, an established convention in relation to those bills which affect the ‘personal interests’ of the Queen, or the Prince of Wales that the consent of the relevant party  is required before such bills are introduced to Parliament. This is the requirement of Royal Consent, as distinct from the requirement of Royal Assent.

The scope of the requirement is broad and includes, in the case of the Monarch, all bills which affect the prerogative, hereditary revenues, personal property as well as other personal interests of the Queen. The jurisdiction of the Prince is associated with the Duchy of Cornwall. It is narrower in certain respects than that of the Queen, but is considerable nonetheless. The Prince’s approval has been requested in relation to draft bills on matters as diverse as gambling and the Olympics. He has been asked to consent to at least 12 bills in the last two sessions of Parliament. Quite apart from its scope it is worth emphasising that the content of the power is absolutely damning: it is not simply that the relevant bill fails to become law if consent is not given, although this is implied. It is that the bill cannot even be properly debated by our elected politicians.

Royal Consent has not been given to bills on at least three occasions since 1990. The most notable refusal was in relation to the Military Action Against Iraq (Parliamentary Approval) Bill which sought, four years before war was eventually declared, to transfer the power to authorize military strikes in Iraq from the Monarch to Parliament. Debate stalled after the first hearing and, because Royal Consent was not given, the bill was dropped before its second hearing. It is worth noting that aspects of the media mis-described the situation as one in which the bill was not granted Royal Assent.

Indeed, one of the most extraordinary aspects of the whole scenario is that the government has done its best to keep the details hidden: it has aggressively fought a freedom of information request filed by John Kirkhope, a legal scholar, concerning the requirement.  First ordered by the Information Commissioner to reveal the details of the 30 page internal guidance concerning Royal Consent, the Cabinet Office appealed to the information tribunal and lost there too.  This, then, is an aspect of our political landscape the knowledge of which it is thought better that we do not have.

Is there anything to be said in favour of the constitutional situation? Buckingham Palace has made clear that on all occasions where consent has been refused by the Queen that this has been on the advice of the government. The Prince’s spokesperson, by way of contrast, has refused to comment on whether he has ever declined to consent and if so under what conditions.  But even if we are to assume that he too has never refused to consent absent government advice there remain two very good reasons why this knowledge should not placate us.

First, the fact that actual exercises of refusal to consent have taken place on the advice of government does not entail that the requirement has not conferred considerable power on the Royal Family. The extent of the influence which is granted by a political power should be measured not just in terms of its actual use, but also in terms of its potentiality. Even if consent has not actually been refused with regard to a particular bill, the fact that the relevant parties have the capacity to refuse bestows on them significant political influence. Daniel Greenberg, a former Parliamentary Counsel, said the following: “It is something of a nuclear-button option that everybody knows [The Prince of Wales] is not likely to push. But like the nuclear deterrent, the fact that it is there influences negotiations.”

The second point is this: even if we are to assume that the power associated with the consent requirement lies de-facto with the government it remains objectionable, for it amounts to a selective veto over Private Members’ Bills. Consider again the situation surrounding the Military Action Against Iraq (Parliamentary Approval) Bill, a private bill introduced by Tam Dalyell. Here the requirement of consent in relation to the prerogative was used by Tony Blair’s administration so as to ensure that Parliament did not debate the propriety of war power remaining with government. This constitutional anomaly merely cements the already considerable power of government within our constitutional system.

There are times at which debates between monarchists and republicans have been accused of generating too much heat and too little light. This case is different. We are just starting to get light on the situation. We would do well to accompany it with some heat.

Tom Adams is a Hauser Global Fellow at New York University. 

Suggested citation: T. Adams ‘Royal Consent and Hidden Power’ UK Const. L. Blog (26th January 2013) (available at http://ukconstitutionallaw.org)

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Hayley J. Hooper: Keep Calm and Carry On?

ON SEPTEMBER 18, 2012 the Upper Tribunal allowed an appeal, reversing decisions of the Information Commissioner relating to the release of “advocacy correspondence” between Prince Charles in his capacity as Heir to the Throne, and seven government departments. The information was originally requested by Guardian journalist Rob Evans and related to a time period between 2004 and 2005. In a piece written by Evans on October 12, 2012 in the Guardian it was reported that the “advocacy correspondence” where Prince Charles allegedly argued for changes in government policy in line with his personal viewpoint had become known as the “black spider memos” in reference to the Prince’s style of handwriting. The information requests have occupied the tribunals’ service for close to four years.

The decision in Evans v Information Commissioner [2012] UKUT 313 (AAC) is something of a novelty in several respects. First, this is likely to be one of the last decisions of its kind because as of January 19, 2011 communications between public authorities and the Heir to the Throne are now the subject of an absolute exemption under the Freedom of Information Act 2000 due to an amendment made by the Constitutional Reform and Governance Act 2010. Secondly, the decision of the Upper Tribunal created the unusual situation whereby a judicial body had to adjudicate on the scope of several constitutional conventions as they related to the Heir to the Throne.  Thirdly, it presents an opportunity to begin debating the proper conception of the public interest in knowing information about the activities of the Heir to the Throne in relation to his preparation for Kingship, and his role in public life generally.

This decision is not to be confused with other the recent FOI decision concerning Prince Charles in his capacity as head of the Duchy of Cornwall. On August 21, 2012 The Information Commissioner decided that information relating to Prince Charles’ legislative veto in relation to the Duchy of Cornwall was not exempt from disclosure under section 42(1) of the Freedom of Information Act 2000, which relates to “legal professional privilege”.

In view of this, this blog post has several aims. I begin by explaining the use of freedom of information law in the context of the case. In the next section I discuss the constitutional position of the Prince of Wales as the Heir to the Throne. Thereafter, I will consider the Upper Tribunal’s discussion of the scope of the relevant constitutional conventions. Finally, I will scrutinise the different consideration given to the concept of the “public interest” by the Upper Tribunal and Parliament in the 2010 Act.

 Exemptions under the Freedom of Information Act 2000

There are two types of exemption from the general right of access to information held by public authorities in the Freedom of Information Act 2000. The first is the “absolute exemption” which prevents to the disclosure of the information under any circumstances. Absolute exemptions historically included communications with the Sovereign, and since January 19, 2011 such an absolute exemption has also applied communications with the Heir to the Throne by virtue of section 37(1). The second type of exemption is a “qualified exemption”. Such an exemption refers to information ordinarily immune from disclosure unless it can be overridden by a public interest test. The public interest test in section 2(1)(b) places a duty on a public authority to decide whether “in all the circumstances of the case, the public interest in maintaining the exclusion of the duty to confirm or deny outweighs the public interest in disclosing whether the public authority holds the information”. Exemptions of this type apply for example to information relating to law enforcement (section 31), legal professional privilege (section 42), prejudice to the effective conduct of public affairs (section 36), environmental information (section 39), and commercial interests (section 43).

The relevant contested provisions before the Upper Tribunal in the Freedom of Information Act 2000 were section 37 and section 40, and section 41. Prior to being amended by the 2010 Act, section 37 imposed an absolute exemption from disclosure upon communications with the Sovereign entitled “Communications with Her Majesty, etc. and honours”. The 2010 Act extended this protection to similar communications with the Heir to the Throne. Section 40 is also an absolute exemption relating to personal information as defined by the Data Protection Act 1998. Section 41 also exempts absolutely information provided in confidence.   In respect of the Environmental Information Regulations 2004, the Department for the Environment, Food, and Rural Affairs DEFRA relied upon Regulation 12(5)(f) and Regulation 13 which related to  the interests of the person supplying the information and personal data, respectively. The Upper Tribunal did not decided whether Prince Charles’ communications amounted to personal data, and concluded that the environmental regulations contained a presumption in favour of disclosure that the Tribunal found no reason to depart from.

 The Constitutional Position of the Prince of Wales as Heir to the Throne

It should be noted that none of the parties to the litigation contended that Prince Charles’ activities of “advocacy” to government ministers was at any time or would be unconstitutional. The tribunal decided that there was no established constitutional position for the Heir to the Throne. However, it was noted by Counsel for Mr Evans that Prince Charles’s self-perceived role has been described on his behalf as representational, “drawing attention to issues on behalf of us all” and “representing views in danger of not being heard”. For an account of the Prince of Wales’ activities vis-à-vis his role as Heir to the Throne, the Tribunal drew heavily upon a 1995 article in Public Law by the expert witness for the seven government departments, Rodney Brazier, entitled “The Constitutional Position of the Prince of Wales”. In the 1995 article, Brazier pointed to several features of the Prince of Wales’ activity which were, in his view, “novel” or “surprising”. These included the fact that Prince Charles had arrogated for himself the right to communicate directly with Ministers on affairs of government. Also, Professor Brazier’s 1995 piece pointed out that the Prince was insisting upon enjoying the same rights as the incumbent Monarch in respect of the “tripartite convention”.

 Relevant Constitutional Conventions

Writing in 1984, Marshall wrote that the “major purpose of the domestic conventions is to give effect to the principles of governmental accountability that constitute the structure of responsible government.” All parties to the action agreed that there were three conventions which the case engaged. Both sides agreed upon Sir Ivor Jennings’ tripartite test for the existence of a constitutional convention. In The Law and the Constitution (5th ed., 1959) Jennings suggested that a constitutional convention exists if (i) there are precedents underpinning it, (ii) the parties to the relevant practice consider themselves to be bound by it, and (iii) there is a reason for the existence of the convention. Three constitutional conventions were deemed relevant to the dispute. These were the “Cardinal Convention”, which mandates that the Monarch acts on the advice of Ministers. The second was the “Tripartite Convention” which Bagehot famously described  in The English Constitution as being the Sovereign’s right to “…be consulted, the right to encourage, [and] the right to warn”. However, neither side advanced the proposition that either of these conventions applied to Prince Charles at the stage in question – when he was neither King nor Regent.

The tribunal remarked that the third convention, “the education convention”, had been regarded until now “as little more than a footnote.” This convention stated that the Heir to the Throne is entitled to be educated in the business of government. The seven government departments representing Prince Charles’ interests also argued that the scope of the education convention covered “advocacy correspondence” and required absolute confidentiality to ensure its proper operation. The Upper Tribunal ruled that the confidentiality of the education convention did not extend to advocacy correspondence. In so ruling, the Tribunal also rejected the seven departments’ contention that the advocacy correspondence merited additional protection over and above “routine” confidential correspondence because it fell within the scope of a constitutional convention.

Argument about the education convention revolved around the “admittedly new contention” advanced by the seven departments “that the education convention has been extended so that it covers all correspondence between government and the heir to the throne.” The Upper Tribunal rejected this contention, stating that “in the public examples that we have seen, the plain facts are that what Prince Charles is doing is not prompted by a desire to become more familiar with the business of government, and simply is not addressing what his role would be as king.” The conclusion of the Tribunal was that inclusion of “advocacy correspondence” within the education convention would involve “a massive extension” of that convention for which no good reason had been advanced. Moreover, the disclosure of advocacy communication would be a general benefit to the operation of the education convention because “[it] will focus the minds of the parties on the important principle that the education convention does not give constitutional status to advocacy communications.” So, because the “advocacy correspondence” fell outside of the scope of the education convention, the interest in maintaining confidentiality under that convention was not engaged.

 Differing approaches to the Public Interest of The Upper Tribunal and Parliament

The Upper Tribunal was rightly conscious of the politically charged subject matter of the case, noting in its introductory remarks that:

 “[some] will be horrified at any suggestion that correspondence between government and the heir to the throne should be published. They fear, among other things, that disclosure would damage our constitutional structures. Others may welcome such disclosure, fearing among other things that without it there will be no real ability to understand the role played by Prince Charles in government decision-making.”

 Therefore, it was common ground that the legal questions in the case revolved around one issue – the issue of disclosure – and whether or not any breach of confidence or privacy that disclosure involved would be in the public interest. The Tribunal, I think quite properly, made clear that it was not seeking “to weigh the benefits of a constitutional monarchy over those of a republic.” In this respect it successfully approached the issue in their intended manner – “dispassionately”.

The Tribunal is also to be commended for its extensive treatment of the question of public interest, which ran to twenty-one pages and covered eight separate aspects. Reference was also made to the Nolan Principles on Public Life for the purposes of general guidance. The aspects of the public interest identified were: (1) the promotion of good governance, (2) Royalty, government, and constitutional debate, (3) understanding Prince Charles’ influence, (4) the education convention and preparation for Kingship, (5) the public perception of Prince Charles, (6) chilling effects on frankness in communication between Prince Charles and Ministers, (7) maintaining confidences and preserving privacy, (8) and finally an attempt was made to take a general perspective on the overall balance. The Tribunal concluded that all eight aspects contained facets which, on balance, pointed towards disclosure in the public interest.

In the course of its evaluation of the public interest in maintaining confidences the Tribunal noted that there was a strong interest in maintaining confidentiality, following the test laid down in Prince of Wales v Associated Newspapers [2006] EWCA Civ 1776, but in view of their detailed consideration of the seven factors, that the “inherent weighty public interest in the maintenance of confidences” cited by the Information Commissioner was vital, it was outweighed by the public interest in disclosure. In respect of the overall balance the Tribunal made clear that it was not persuaded that correspondence between ministers and Prince Charles warranted “greater protection from disclosure than would be afforded to correspondence with others who have dealings with government in a context where those others are seeking to advance the work of charities or to promote views.”

Whilst the Upper Tribunal should be commended for its diligent evaluation of the public interest in respect of the areas it covered, the outgoing New Labour government, supported by Parliament were of the view that the public should simply “Keep Calm and Carry On”. Jack Straw, the Minister sponsoring the Bill during a Commons debate on March 2, 2010, claimed that there was a “lacunae” in the original Freedom of Information Act and that:

“We are blessed in this country by a constitutional monarchy of the highest standards. Whatever turmoil there might have been in our body politic, above it all, and held in continuing high respect, is the position of the sovereign… it is of great importance that we protect the political impartiality of the monarchy, the sovereign’s right and duty to counsel, to encourage and to warn the Government and the right of the heir to the throne to be instructed on the business of government in preparation for the time when they assume the monarchy.”

The former Government Minister’s position reminds the reader of Bagehot’s description of the “dignified” portion of the constitution. Bagehot, writing in the Victorian-era, opined:

“The use of the Queen, in a dignified capacity, is incalculable. [The] best reason why Monarchy is a strong government is, that it is an intelligible government. The mass of mankind understand it, and they hardly anywhere in the world understand any other.”

During the same debate Tony Wright MP (Lab) expressed the opinion that: “The question is whether such communications-after all, the amendment that we are being asked to consider is, in a sense, the Prince Charles amendment…”, and furthermore that government should have to make the case for “giving away a public interest test virtually in perpetuity”. Wright developed his case with reference to the example of homeopathic medicine:

“Let us consider homeopathy, which most sensible people think is not entirely supported by evidence. Suppose that Prince Charles, the heir to the throne, were to weigh in to the debate, giving heavy support to the idea that resources should be devoted to homeopathy. If a Government then decided to start allocating resources to homeopathy, people would be entitled to know that that act of lobbying had been extremely successful. We would want to know about it if it had come from any other source.”

However, since January 2011 Parliament has enacted a legal prohibition upon access to such information, and the only explicit justification offered by the sponsoring Minister was that this was the original intention of the Freedom of Information legislation, and protection of the Heir to the Throne had simply been overlooked by the draftsman. Despite this, there are many hypothetical examples above and beyond support for alternative medicine that would legitimately give rise to a public interest in disclosure. The overall conclusion of the Upper Tribunal is instructive:

“The media interest in Prince Charles’s interaction with ministers is substantial. It seems to us that this is not a factor which in itself necessarily favours disclosure. What is relevant is that there is a real debate, generating widespread public interest, on a matter which goes to the heart of our constitution. Sensationalism merely for the sake of it will not generally be in the public interest.”

The Tribunal noted that the 2010 Act represented “a change in legislative policy”. Such a change in policy is something parliament is constitutionally absolutely entitled to carry out. However, it is regrettable that such a fundamental change occurred in the course of a Bill which contained a laundry list of constitutional amendments, resulting in only a fleeting consideration of its potentially wide-ranging impact upon the operation of government. Bagehot’s seminal work first appeared in 1867. It now seems decidedly at odds with our information society that parliament should expect the people to remain ignorant of the persons and factors which might influence government policy.

Hayley J. Hooper is Lecturer in Law at Trinity College, Oxford.

Suggested citation: H. J. Hooper, ‘Keep Calm and Carry On?’   UK Const. L. Blog (16th October 2012) (available at http://ukconstitutionallaw.org)

Editor’s note: this post was revised on 25th October 2012.

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Peter C. Oliver: Constitutional Conventions in the Canadian Courts

Most constitutional law textbooks across the Commonwealth include in the section on constitutional conventions lengthy extracts from the Canadian case, Re Amendment of the Constitution of Canada, often referred to as the Patriation Reference.  Given that constitutional conventions are enforced not by courts but by the political process, conventions are rarely discussed in the law reports.  Courts occasionally recognize constitutional conventions in order to discuss intelligently the way the contemporary system of democratic responsible government works, but they do not accede to a party’s attempt to win a court battle by requesting that the court enforce a convention. Even in the well-known case of Jonathan Cape ((1975) 3 All ER 484, [1976] QB 752), the Attorney General would not have made any progress if he had only argued the convention (of collective ministerial responsibility); the success of his argument, so far as it went, was founded on the equitable doctrine regarding breach of confidence, with the convention supporting the factual finding of a confidential circumstance.

What was different about the Patriation Reference?  And what effect has that case had on the way Canadian courts view the justiciability of constitutional conventions? Readers of this blog may be aware that Canada has just lived through a period of minority government in which the Prime Minister’s decisions to prorogue and dissolve Parliament were hotly debated.  Political actors who were critical of the Prime Minister’s actions sought out any and all means thwarting him.  An organization called Democracy Watch, for example, challenged the 2008 dissolution of Parliament in court on the basis of both law (fixed election legislation) and convention.  Later in 2008, critics called for a Supreme Court of Canada advisory opinion regarding the Prime Minister’s controversial decision to avoid a vote of non-confidence by asking the Governor General to prorogue Parliament.

Canadian courts have so far resisted these and other calls for them to enforce constitutional conventions.  However, their resolve is not as clear and firm as it could be.  Since 2000, both the Supreme Court of Canada and the Federal Court of Canada have produced judgments (in the context of ordinary litigation rather than in an advisory role) in which the existence or non-existence of conventions is discussed in some detail, including analysis of whether Jennings’ three-part test (first adopted in the Patriation Reference) has been met. One cannot help but wonder what will happen if, as seems inevitable, a constitutional convention is eventually made out in the context of future litigation. Will the court say that it is merely recognizing the convention not enforcing it, and that, accordingly, the remedy is by way of declaration not injunction?  That would seem to misunderstand the way in which law is enforced in this day and age, especially where the government is a party: a mere declaration of the law is invariably all that is required.  Or will the court re-discover the essentially political nature of the question and declare it non-justiciable?  To do so, it would have to revisit not only the Patriation Reference which first opened up conventions to judicial consideration, but also the Secession Reference and similar Supreme Court of Canada cases which have opened up the use of principles in the fashioning what is sometimes referred to as the common law Constitution. After all, all conventions are underpinned by a principle (e.g. the democratic principle) according to Jennings’ three-part test cited in the Patriation Reference (at p. 888). What is to stop the principle, and the principle-inspired jurisprudence of the Supreme Court of Canada, from being used to transform convention into law?  How did we get from the Patriation Reference to here?

Prior to the Patriation Reference, it was as rare in Canada as it was and is elsewhere in the Commonwealth to see conventions discussed in judgments.  A number of factors help explain what happened in 1981. First, as is well known, Canada, unlike countries (e.g., U.S.A., Australia) which hold to a stricter version of the separation of powers, permits advisory opinions (or references).  The Canadian Supreme Court Act sets out in the widest terms imaginable (see s. 53) the sorts of questions that can be put before the Court. The constitutionality of these provisions was confirmed in the Secession Reference. Secondly, although the Supreme Court Act provides few hints in this direction, the Court reserves a discretion to refuse to answer questions, often on the basis of non-justiciability.  Justiciability is a question of the courts’ proper role, but it is also a question of the courts’ relevant expertise.  As it happens, any judge who wishes to understand a constitution in the British tradition must understand constitutional conventions.  As the majority on the conventional question put it in the Patriation Reference (pp. 883-4): Constitutional Law = the conventions of the constitution + the law of the constitution.  While determinations of the precise present state of a convention might be beyond most judges’ ken, most judges could be said to have considerable knowledge in this area nonetheless.  A conclusion of non-justiciability would perhaps have to come from the Court’s sense of its proper role vis-à-vis other institutions rather than from considerations of relevant expertise. Thirdly and finally, the stakes in 1981 were very high: Canada had struggled for fifty years to come to agreement on a new amending formula to replace the United Kingdom Parliament as its ultimate constitutional amendment procedure. A first referendum on Quebec’s future in the federation had just been held one year earlier.  And clearly a majority of judges of Supreme Court of Canada judges felt that they had to weigh in.

The problem with courts weighing in regarding constitutional conventions was already apparent in 1981.  When the Court determined that, as a matter of the law of the constitution, United Kingdom Parliament legislation amending the Canadian constitution was legally unobjectionable, that was in principle sufficient to justify Prime Minister Trudeau’s attempt to patriate the constitution over the objections of eight out of ten provinces.  However, when the court also stated that, as a matter of the conventions of the constitution, a substantial degree (p. 905) of provincial consent was required, the distinction between law and convention quickly faded. To all but the most informed, formalistic observers, the Court had spoken authoritatively, and it had to be followed, sending Trudeau and the provinces back to the negotiation rooms (from which they emerged, Quebec dissenting, with the compromise that became the Canada Act 1982, the Constitution Act, 1982 and the Canadian Charter of Rights and Freedoms.)

Staying for the moment with the Patriation Reference, we might want to note the way in which the judges who signed the majority reasons regarding the conventional side of that matter proceeded. They clearly felt that they had to answer the question, for the reasons that I have already set out and no doubt for other reasons.  However, the provinces opposing what they viewed as federal unilateralism asked for more than the Court was willing to give.  The provinces argued that constitutional amendments affecting provincial interests required the consent of all provinces, that is, unanimous consent. The majority may have felt that a convention pitched at such a high level was not clearly established.  It opted instead to pitch the convention at a level which could be clearly established, that is, a substantial degree of consent (which all observers assumed to be more than the existing two-province consent but less than unanimous consent).  Was the Court effectively saying that only a convention of at least substantial consent could be clearly established, but that there was an ongoing, evolving political discussion as to whether more was required, including unanimous consent?  If the Court wished to say this, it did not communicate it clearly, with the result that most observers assumed that the Supreme Court of Canada’s finding regarding convention was authoritative in the exclusionary or pre-emptive sense which Joseph Raz describes regarding law proper: the Court’s pronouncement effectively replaced the many discussions in the political arena regarding the political (i.e., conventional) morality of the pre-1982 amendment process.

Even though, as a rule in Canada, the law as stated in advisory opinions is followed by courts in ordinary litigation, there was no initial spate of litigation in which parties sought to vindicate in court their particular take on a constitutional convention.  After all, even as the Supreme Court of Canada had set out a constitutional convention in the advisory Patriation Reference, it had reiterated the orthodox rule regarding the fact that conventions are not enforced by courts (p. 880).  And the Court has never disavowed the orthodox rule.

What has changed since 1981, however, is the Court’s general jurisprudential approach.  When the Court spoke in 1981 of the law of the constitution, for example, it spoke from an essentially positivist perspective.  It was referring in the main to legislation, British and Canadian, and case law interpreting that legislation. By the mid-1990s, Canadian courts had adopted a principle-inspired method based, in part, it would seem, on the anti-positivist theories of Ronald Dworkin.  Where the law of the constitution leaves a gap (or, as Dworkin might say, presents a hard case), the Canadian courts are now less shy to fill the gap with the principle-inspired common law of the constitution. This begs the question whether the principles which underlie each and every constitutional convention can now be used to facilitate the gradual conversion of the conventions of the constitution into the law of the constitution.

I argue that the Canadian courts should ensure that this does not happen.  And yet if a principle-inspired legal method provides the tools to convert conventions into law why not?  In my view, the answer can be found in the preamble to the Constitution Act, 1867, which states that Canada has a Constitution “similar in principle to that of the United Kingdom”.  That phrase in the preamble signaled that while some parts of the Constitution were as of 1867 written, equally important elements remained mostly unwritten.  Or put another way, that while some parts of the Constitution were designed to be judicially enforced, other important elements were designed to be politically enforced.  With regard to the latter, one thinks of constitutional conventions, including those establishing responsible government, parliamentary privilege, and the very idea of parliamentary sovereignty.  The Canadian constitutional system has evolved, of course – it is a “living tree” – but the political Constitution is still an important part of our democratic constitutional set-up. The Constitution Act, 1982 replaced the pre-1982 conventions regarding constitutional amendment and limited parliamentary sovereignty, but it did not eliminate the important role of conventions, responsible government, privilege and parliamentary supremacy and the political Constitution as a whole.

Accordingly, the main reason why the courts should not use the principles underlying conventions to convert conventions into law is that there is no gap to fill.  That which appears to be a hard case is only so if one focuses exclusively on the law of the constitution.  If one considers together the conventions and the law of the constitution, the political and the legal constitution, then it is clear that judges should respect political means of enforcement rather than use the principles underlying conventions as a means of converting rules of political enforcement into rules of judicial enforcement.

Part of the difficulty here lies perhaps in lawyers’ general preference for text over practice.  Conventional rules, and much of the political constitution, look like a gap or an empty space from the perspective of the text-based legal constitution.  However, if we imagine a case where conventions are written down for ease of reference, but where it is clearly intended that enforcement remain political rather than legal, the courts would view the interpretation and enforcement of those rules as non-justiciable rather than view them as a gap or a hard case requiring conversion into new legal rules of the common law constitution by means of principle-inspired jurisprudential method.  The same approach should apply even where the conventions are not written down, until such time as a decision is made to convert conventions into law (as occurred regarding the conventions of constitutional amendment in Canada).

An additional source of concern, from my perspective, is that the Supreme Court of Canada has, with respect, turned the meaning of “a Constitution similar in principle to that of the United Kingdom” on its head.  I have already stated that, in my view (and in the view of constitutional historians and the Supreme Court of Canada itself prior to 1982) that phrase was intended as a reminder of the ongoing existence and importance of the political part of the Constitution.  In a number of important cases in the 1990s (see, e.g., the Provincial Judges Reference, para.104 and the Secession Reference, para. 53), the Court used the same phrase in the preamble as an “invitation” to the courts to fill perceived gaps in the Constitution using principles such as constitutionalism and the rule of law, democracy, federalism, the protection of minorities and judicial independence.  In fact, the Court seemed intent on finding a textual basis for its use of unwritten principles.  Unfortunately, the preamble text it used was itself a reminder of the importance of political as opposed to judicial enforcement of constitutional rules.  This is not to say that the Court should not use principles to fashion its decisions – that is a debate for another day. Rather, the point that I am trying to make is that the Court should refrain from using the very principle that underpins a conventional rule, and the very phrase from the preamble of the Constitution that is intended to recognize the ongoing importance of political enforcement of these constitutional rules, to create new parts of the common law constitution.

I have noted that the Supreme Court of Canada has already, with respect, (mis)used the phrase “a Constitutional similar in principle to that of the United Kingdom” to justify a principle-based approach to developing the common law of the Canadian constitution. Is there any sign, however, that the Canadian courts wish to go further, that is, to convert conventions into legal rules using the same method?  The signs are mixed, in my view.  In two cases in 2000-1 (Public School Boards’ Association of Alberta v Alberta (Attorney General), [2000] 2 SCR 409, paras 30 and 38; Ontario English Catholic Teachers’ Association v Ontario (Attorney General), [2001] 1 SCR 470, paras 26 and  63 et seq), the Supreme Court of Canada allowed parties in ordinary litigation to state a constitutional question regarding, inter alia, a constitutional convention.  In other words the parties were attempting to win their case by a number of means, one of which could have involved a declaration involving a constitutional convention.

One might have expected the court to simply refuse to answer the question.  It is one thing to ask a court to recognize a convention as part of the factual context necessary to understanding the legal dispute, and quite another to try to win the case on the basis of a convention.  Instead, after a reminder of the fact that conventions are not enforced by courts, the Supreme Court of Canada then went on to discuss Jennings’ test for constitutional conventions first set out in the Patriation Reference.  In my opinion, this gives potential litigants the impression that, if the convention can be made out in a future case, the Court might be willing to issue a declaration to that effect, though clearly it would refuse to award an injunction.  As I stated earlier, if that impression is right, then there is cause for concern.

Since 2000-1, conventions have continued to rear their head from time to time in litigation.  Following the Supreme Court of Canada’s ambiguous lead, the lower courts have not always felt able to refuse to discuss the granting of a declaration regarding a constitutional convention.  (See, e.g., Pelletier v Canada (Attorney General), 2007 FC 342, para 6,  and Pelletier v Canada (Attorney General) 2008 FCA 1, para 18 et seq;  Conacher and Democracy Watch v Canada (Prime Minister), 2009 FC 920, paras 2, 10-15, 30-47, 65-72; Conacher and Democracy Watch v Canada (Prime Minister), 2010 FCA 131, paras 5-6, 12, )  Instead, they have often restated the non-enforceability rule, but then gone on to discuss, sometimes in considerable detail, whether the convention is made out (applying Jennings and the Patriation Reference).  It seems to me that the courts’ approach to constitutional conventions needs to be more clearly thought through in advance of the day when a declaration regarding a credible constitutional convention is sought in ordinary litigation.  It seems inevitable that if the courts signal that they are willing to grant declarations, parties which have the financial means to litigate will seek to lift their cases out of the ongoing and evolving discussion in political forums by seeking discussion-stopping victory in the courts.

Accordingly, I would recommend the adoption of the following guidelines at least in so far as treatment of conventions by courts in Canada is concerned.  I would be interested to hear how constitutional lawyers in other jurisdictions view these suggestions.

  1. In the context of ordinary litigation, courts should refuse parties’ requests, by way of declaration or other remedy, to rule on the existence or non-existence of a constitutional convention in order to determine the legal outcome of the case.
  2. In the context of ordinary litigation, in which (consistent with 1.) the dispute turns on something other than the existence or non-existence of a constitutional convention, courts may sometimes find it necessary in the course of their reasoning to describe (or recognize) a well-established constitutional convention in order to sensibly account for our constitutional arrangements.
  3. In the context of a reference case (advisory opinion), the court should accept requests to rule on the existence or non-existence of a constitutional convention, only to the extent that the conventional rule is, in the court’s view, clear and well-established.  If the convention itself is in flux, or if the question relates to a peripheral aspect of the convention which is likewise still in flux, then the courts should regard the question as non-justiciable, both because of the courts’ lack of expertise regarding evolving political dynamics, and because of the need to maintain a proper balance between the judicial and political parts of the constitution.
  4. In the context of a reference case (advisory opinion), the court should perform an important educative function in explaining that many constitutional conventions, and the political parts of our constitution in general, are in constant evolution, and that the public’s democratic responses to perceived breaches of convention are critical to that political process.

These comments and recommendations are offered on the thirtieth anniversary of the Patriation Reference and on the fortieth anniversary of the publication of Constitutional Theory by my supervisor and good friend, the late Dr Geoffrey Marshall.

Peter Oliver is a Professor of Law at the Faculty of Law, University of Ottawa and the author of The Constitution of Independence: The Development of Constitutional Theory in Australia, Canada and New Zealand (OUP, 2005).  He was formerly Professor of Law at King’s College London.  The author was Scholar in Residence in the Constitutional and Administrative Law Section, Public Law Sector, Justice Canada in 2005-6 during which time he completed a research contract looking into the meaning  of the 1867 preamble phrase “A Constitution similar in principle to that of the United Kingdom”.  In 2006-7 he was Special Advisor, Legal and Constitutional Affairs at the Intergovernmental Affairs Secretariat of the Privy Council of Canada, and he has continued to act in that capacity from time to time from 2007 to present.  He has not advised on the issues discussed in this piece. The views expressed here are the author’s own and should not be taken to represent the views of the Intergovernmental Affairs Secretariat or of the Government of Canada.

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