Tag Archives: Parliamentary sovereignty

Edward Kirton-Darling: Missing: political genius. If found, please return to the British People, care of Palace of Westminster, SW1A.

Edward2If Scottish voters chose independence in the referendum in September, the SNP confirmed on 16 June that a written constitution for Scotland would be drawn up. Where does that leave the rest of the UK? In an endeavour to consider what Scottish independence would mean for the rUK, this post considers Lord Bingham’s accounts of the proper relationship between the Rule of Law and Parliamentary Sovereignty, and, drawing on his concern about an imbalance within Parliament, argues that if Scottish were to secede, this would further unbalance the rUK’s constitutional order.

Lord Bingham, the Rule of Law and Parliamentary Sovereignty

In 2007, Lord Bingham set out his perspective on the relationship between the rule of law and parliamentary sovereignty in a Commemoration Oration at Kings. Much of the speech was subsequently reproduced in 2010 in Chapter 12 of his book, but for one significant amendment, which I will come to below. Bingham argued that fundamental rights must be incorporated into any proper account of the rule of law, and having set out the rights contained in the ECHR, which are “as good a check list as any,” he paused to wonder that “It is hard to understand how this very basic and practice catalogue of rights has come to be portrayed to the public as some ill-conceived, European-inspired, affront to the commonsensical conduct of government.” For Bingham, rights are not enough; at the heart of the rule of law is democracy, and the ability of a citizen to have a say in the laws by which they are bound.

Lord Bingham then turned to parliamentary sovereignty and dismissed arguments suggesting there were legal limits on Parliament’s ability to constitutionally legislate howsoever it wished. Where legislation which interfered with fundamental rights was clear and unambiguous, the courts have no power to annul or modify such enactments. Where courts do have such power, it exists by operation of Acts of Parliament, and if Parliament told them to do so, courts would stop interfering. He reserved particular ire for arguments based on common law fundamental rights – whether founded in obiter remarks by Sir Edward Coke in 1610 or Lord Steyn in 2005 – concluding that “The British people have not repelled the extraneous power of the papacy in spiritual matters and the pretensions of royal power in temporal in order to subject themselves to the unchallengeable rulings of unelected judges.”

However, this stirring paean to a sovereign British Parliament left Lord Bingham with the problem of the protection of fundamental rights. He was not persuaded by the argument that in practice, Parliament will not interfere with fundamental rights, indeed it was not hard for him to envisage such interference. Instead, checks and balances within the concept of Parliamentary Sovereignty hold the key, and traditionally, the rule of law was protected by the existence of 3 powerful independent players in the Crown, the Lords and the Commons. In this context, the contemporary “vice at the heart of our constitutional system” is the overweening unrestricted power of whoever is in a majority in the House of Commons. Such a party can effectively act as it wishes, including passing legislation which interferes with the rule of law, and Lord Bingham argues that this serious problem, once squarely confronted, can surely be resolved by “the political genius of the British people.”

Crucially, the speech at Kings does not prescribe or even suggest what such a solution might look like. The tenor of the lecture, grounded in respect and admiration of the UK’s constitutional traditions, points towards a political solution to the tension between Parliament and the rule of law; maintaining a Parliament capable of legislating in any way it wished, but fixing the malaise by resolving the imbalance in the constituent parts of the sovereign Parliament; shackling the House of Commons, rather than the sovereign Parliament.

By 2010, this argument had changed (as I discuss below), but in relation to Scottish independence, there are two aspects of Bingham’s analysis which are important: (1) whether the Union with Scotland limited Parliament’s law making powers, and 2) how Scottish independence might affect the already unbalanced constitution.

Act of Union with Scotland & Devolution

In relation to devolution, Lord Bingham entirely dismissed any argument that Parliament had lost the power to legislate for Scotland (or Wales or NI). He maintained that as with the HRA and the EU, Parliament had curtailed its own power by express authority, and could revoke that power, at least in theory. However, the only chink which Bingham partially conceded in the armour of an all-powerful sovereign Parliament related to the question of Scotland. Bingham said:

It has been suggested, with some judicial support, that the principle of parliamentary sovereignty did not obtain in Scotland before 1707 and that the Union with Scotland Act 1706 cannot itself be amended or abrogated since it gave effect to the Treaty of Union in which certain provisions were agreed to be and were described in the Act as unalterable. The merits of this argument are far from clear. It is hard to see how the pre-1707 Scottish Parliament could have done anything more fundamental than abolish itself, and it is hard to accept that the Westminster Parliament could not modify the Act of Union if there were a clear majority in favour of doing so. But if, which I doubt, there is an exception here to the principle of parliamentary sovereignty, it is a very limited exception born of the peculiar circumstances pertaining to the union with Scotland and throws no doubt on the general applicability of the principle.

If Scotland votes yes to independence, we will shortly find out if Lord Bingham is correct, and political reality suggests his doubts are valid. The recent House of Lords Constitution Committee report on constitutional implications of the referendum concludes that a, relatively short, Act of Parliament would be capable of recognising independence for Scotland and the end of the UK’s legislative competence over Scotland. Clearly, If Scotland votes yes, and the UK Parliament passes legislation amending the Acts of Union, whether or not it existed before, this one possible exception cannot survive. However, this argument for a limited UK Parliament has been primarily limited to Scottish jurists and academics, as Baroness Hale acknowledged in Jackson v. AG [2005] UKHL 56, at para 159, stating “The concept of Parliamentary sovereignty which has been fundamental to the constitution of England and Wales since the 17th century (I appreciate that Scotland may have taken a different view) means that Parliament can do anything.” A resolution of the Scottish question will consequently have limited impact on arguments about sovereignty in the rUK.

Similarly, arguments over devolution’s role in undermining the classic theory of a sovereign Parliament (dismissed by Lord Bingham, and argued by Gavin Little in Scotland and Parliamentary Sovereignty (2004) 24(4) Legal Studies 540) will become outdated if Scotland votes yes to independence. For critics of Bingham’s approach, it may make little difference, as other putative substantive limits on Parliament remain and judges will continue to engage in constitutional analysis (see for example, M. Elliott U.K. Const. L. Blog (23rd January 2014) and Vernon Bogdanor Imprisoned by a Doctrine 32(1) OJLS 179). Thus Scottish independence will not definitively settle the question of legal limits to Parliament’s power either way, but as I argue below, it will have an impact on Parliament itself.

An Unbalanced Constitution

Lord Bingham’s 2007 resolution of the tension between a sovereign Parliament and fundamental rights under the rule of law was to turn to a critique of Parliament. In his account, there are no permissible legally enforceable limits to Parliament’s power, but the existence of checks and balances within a sovereign democratic Parliament would prevent express interference with rights. As such he proposes a Madison-style approach to avoiding majoritarianism, emphasising productive tensions within the legislative branch of government.

Alison Young’s post on this blog on 17th February 2014 argued that debate over whether judges or Parliament are supreme misses the point. Instead constitutional pluralism is evidenced by courts and Parliament checking each other’s excesses, with both asserting sovereignty in different circumstances, and neither able to finally demonstrate supremacy. The argument suggests that constitutional strength comes from the tension between institutions and their ability to exert restraint on each other.

Combining these two accounts suggests that intra-institutional checks and balances are important, and constitutional plurality is protected by tensions, both between constitutional institutions and within those institutions. Taking Bingham’s argument one step further, and focussing on Parliament in particular, productive tensions within the House of Commons, ensuring effective scrutiny of legislation and restricting a Government by requiring it to take different perspectives into account, is part of what ensures legitimacy and authority – and protects rights – in the UK’s constitutional order.

Concern about an imbalance within Parliament is not a recent development – Lord Bingham quotes a Victorian Lord Chief Justice with approval:

The constitution has lodged the sacred deposit of sovereign authority in a chest locked by three different keys, confided to the custody of three different trustees … One of them is now at length, after ages of struggle, effectually prevented from acting alone; but another of the two is said to enjoy the privilege of striking off the other two locks, when, for any purpose of its own, it wishes to lay hands on the treasure.

What difference will the independence of Scotland make to this debate? It is instructive to compare mid-Victorian Britain to a future rUK to consider this question. The criticism of an over-powerful House of Commons was made in a context in which the Monarch had been prevented from acting alone, but the House of Lords retained the power to veto, and in which party discipline (and consequent executive power over both Houses) was much weaker. Powerful local government, championed by J. Toulmin Smith and exemplified by the activities of Joseph Chamberlain in Birmingham, provided a political counterweight to Westminster, and economic power was split between London, established regional centres like Manchester and Glasgow, and newly developing industrial hubs like Middlesbrough, Gladstone’s “infant Hercules.”

Many of these political and economic balances are either gone or are dramatically denuded; with London, the House of Commons and the government within Parliament now far more dominant. Other restricting factors have emerged. The devolved institutions are one example, and while other limiting factors could be identified – some might point to the impact of social media and more transparent government, while stronger English regional voices may be emerging, see for example the launch of the North East Party on 26 May this year, – it is clear that the secession of Scotland would have an impact on the political checks and balances within the Commons itself.

Firstly, this is because the removal of Scottish MPs will result in a concurrent increase in the proportion of MPs voting with the government as part of the ‘payroll’ vote. Around 140 members (95 paid, and an estimated 45 unpaid Parliamentary Private Secretaries) are obliged by convention to vote with the government. The 95 members figure is fixed as an absolute number in primary legislation (while the number of PPS’ is not included and fluctuates). The result following Scottish independence – if no amendment is made to the payroll vote – will be that almost a quarter of the House of Commons will not generally be permitted to exercise an independent judgment on legislative matters. Such an increase may not have a dramatic impact on the Commons by itself (the current figure is approximately 22%), but is part of a long term trend of an increase in the ‘payroll’ vote which has already been subjected to fierce criticism (see the Public Administration Select Committee report “Too Many Ministers?” 9th Report, Session 2009-10).

Furthermore, as Keating has argued, Scottish MPs have traditionally operated on a regionally distinctive basis (See Michael J. Keating Parliamentary Behaviour as a Test of Scottish Integration into the United Kingdom, Legislative Studies Quarterly, Vol. 3, No. 3 (Aug., 1978), pp. 409-430). He showed (albeit pre-devolution) that the involvement of the majority of Scottish MPs in UK-wide politics was primarily aimed at seeking Scottish advantages. It could be argued therefore that removal of Scottish MPs would have little impact on a rUK, however, Keating shows disproportionately strong involvement by Scottish MPs on UK-wide Bills on economic affairs, in particular agricultural and fisheries (now devolved) and trade and industry (which is not devolved). Keating also argues that UK-wide legislation has been affected by Scottish members acting in a regionally distinctive way, illustrating this with the example of a failed attempt to legalise homosexuality across the UK in 1965 (subsequently applied to England and Wales only). Thus a Scottish MP arguing for the (perceived) best interests of Scotland affects the rUK, either through pushing UK-wide policies which are (perceived to be) best for Scotland, or through raising an argument for Scottish exceptionalism, with resulting negotiation, debate and scrutiny of proposed policies.

In a more recent paper, Keating and Cairney have shown that in a political culture moving towards a political class dominated by university educated middle class professionals, Scottish MPs were traditionally more diverse, “conforming more closely to the class stereotypes” (See Michael J. Keating and Paul Cairney, A New Elite? Politicians and Civil Servants in Scotland after Devolution Parliamentary Affairs (January 2006) 59 (1): 43-59). Although the upper class/public school/military representatives have subsequently disappeared from Scottish politics, Scottish MPs remain more likely to be from working class backgrounds than their English and Welsh counterparts.

Thus regionally distinctive behaviour by Scottish MPs has had implications for legislation affecting the whole of the UK, and the removal of Scottish members will have an homogenising effect on the Commons post-independence, as well as removing one political party in the shape of the SNP entirely. Furthermore, the removal of Scottish devolution would also remove an inter-UK test of subsidiary; a hurdle which demanded attention when any policy was considered or legislation introduced.

Conclusion

Potential Scottish independence can be put into a context in which the UK might conceivably leave the EU and repeal the HRA. Many of the arguments for these steps appeal to a sense in which Parliament has lost its democratic sovereign right to govern. Their appeal is to a Diceyean Britain in which Parliament is supreme. However, in Dicey’s late-Victorian Britain, significant checks on majority rule remained; formally in the shape of a still powerful Lords and far more interventionist Monarch; politically in a UK with far more powerful economic and political regional traditions; and theoretically, with powerful arguments opposing an unlimited Parliament built on the Acts of Union.

Checks and balances remain part of the UK’s constitutional order, but a result of Scottish membership of the UK will be a reduction in the potential restrictions on a majority party in the House of Commons. If intra-institutional plurality is a source of legitimacy and authority, this reduction in plurality in the Commons undermines Parliament itself. Did Lord Bingham predict this? His later (2010) formulation of the way to resolve the tension between Parliament’s sovereignty and the rule of law was to tentatively propose a written constitution. Perhaps he had given up on the political genius of the British people in the interim, or perhaps he had higher hopes of us than we have recently been able to evidence.

 

Edward Kirton-Darling is a doctoral candidate in socio-legal studies at the University of Kent.

(Suggested citation: E. Kirton-Darling, ‘Missing: political genius. If found, please return to the British People, care of Palace of Westminster SW1A’  U.K. Const. L. Blog (26th June 2014) (available at http://ukconstitutionallaw.org/)).

 

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Scot Peterson: Constitutional Entrenchment in England and the UK

peterson_scotFrequently people think that there are only two ways address flexibility in a constitution: to legally entrench an entire document and to protect it with strong judicial oversight, or to have a political constitution and a sovereign parliament, which, in the words of A.V. Dicey, ‘has … the right to make or unmake any law whatever….’ One aspect of this sovereignty is that parliament cannot bind itself: ‘That Parliaments have more than once intended and endeavoured to pass Acts which should tie the hands of their successors is certain, but the endeavour has always ended in failure.’

Parliament has regularly used language limiting its future options. The Bill of Rights (1688) says that the rights declared there ‘shall be declared, enacted, and established by Authority of this present Parliament, and shall stand, remain, and be the Law of this Realm for ever’. More recently, Parliament promised in the European Union Act 2011 to hold a referendum on any law that increased the competencies of the EU and put in place mechanics for holding itself accountable through judicial review. Are these attempts really as pointless as Dicey claims?

The intention of the convention parliament in 1689 was to put an end to the conflicts of the preceding seventy years (interrupted by the reign of Charles II). The more recent act, too, was a product of what preceded it. Originally the Labour government had ruled out a referendum on the Treaty Establishing a Constitution for Europe (2004), which among other things introduced new shared competencies with member states. When the press speculated about Labour’s prospects before the 2004 European Parliament Elections (June 2004), Tony Blair announced that there would be a referendum on the treaty. After the treaty collapsed (because it was rejected in France and the Netherlands), the member states entered into the Lisbon Treaty, which had many of the same characteristics as the proposed constitution. Conservatives accused Labour of inconsistency in being unwilling to hold a referendum on the Lisbon Treaty, and in their manifesto promised a referendum lock on any future transfers of competencies, so that politicians would not be able to waver for short-term, political purposes. That promise became part of the coalition agreement in 2010 and was enacted into law.

The language used by parliament in both of these cases is a commitment device. It need not even be judicially enforceable to constrain (impose additional costs on) future choices by the legislature. Public embarrassment, through a newspaper’s exposure of inconsistency, is a practical means of ensuring accountability, so long as the newspapers do their job. And, as under the Human Rights Act 1998, the legislature may permit the courts to point out, but not to correct, inconsistency with entrenched law. An overly simplistic distinction between codification and a political constitution eliminates complex differences between these tools, and wastes resources that should be available to policy makers.

Scot Peterson is the Bingham Research Fellow in Constitutional Studies and Junior Research Fellow in the Social Sciences at Balliol College, University of Oxford.

(Suggested citation: S. Peterson, ‘Constitutional Entrenchment in England and the UK’ U.K. Const. L. Blog (25th March 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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Douglas Edlin: Will Britain Have a Marbury?

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

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

Does Britain Need a Marbury?

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

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

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

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

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

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

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

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

Does Britain Want a Marbury?

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

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

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

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

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

Should Britain Have a Marbury?

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

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

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

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

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Dawn Oliver: Parliamentary Sovereignty in Comparative Perspective

oliver

I Parliamentary sovereignty in other countries

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

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

New Zealand

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

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

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

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

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

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

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

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

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

Sweden, Finland and the Netherlands

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The USA

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

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

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

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

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

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

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

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

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

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

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

h)    The widespread use of the death penalty,

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

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

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

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

III Concluding remarks

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

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

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

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Stuart Lakin: Parliamentary Privilege, Parliamentary Sovereignty, and Constitutional Principle

stuart1While this was probably not its primary objective at the time, the Daily Telegraph scoop on MPs’ expenses  in 2008 has led to the reinvigoration of debates about Parliamentary privilege.    Since then, this area of law and Parliamentary practice has hardly left the news, both mainstream and legal.  We have had the Chaytor decision, the arrest of Damien Green MP, the flouting of super-injunctions by MPs, phone hacking as a possible contempt of Parliament, questions about whether certain forms of contempt of Parliament (e.g. refusing to give evidence to a Select Committee) should be enforceable by the courts, and so on.    The CLG held a brilliant seminar on this topic towards the end of last year.

The latest stage of this doctrinal resurgence is a Green Paper, Parliamentary privilege Cm 8318, published at the behest of the Government in April 2012 (all references in parenthesis below will be to this Paper unless otherwise indicated).    The overarching question in the Paper, in the words of David Cameron, is:

“whether the balance is right in all cases between the necessary protection afforded by privilege, and the important principle that MPs and peers should be subject wherever possible to ordinary criminal and civil laws”  (para 32, quoting a letter by the PM)

The Government broadly answers that question with a ‘yes’:

 “The Government believes that, notwithstanding the discrete areas discussed in this paper where there may be a case for legislative change, the boundaries of parliamentary privilege have for the most part been very clear, and its operation has not been sufficiently problematic to justify such a radical departure from the UK’s basic constitutional underpinning.”  (para 39)

Among some of the more interesting recommendations (or options) for legislative change  (or maintenance of the legislative status quo) are the following:

-  That codification of the law on privilege is not necessary (paras 37-39)

-  That the phrases ‘proceedings in Parliament’ and ‘place out of Parliament’ in Art IX of the Bill of Rights 1689 do not need to be clarified in legislation (para 59-61 and para 80-82)

-  That a general rule might be introduced disapplying privilege in cases of alleged criminality, subject to certain excepted offences “where the alleged criminal offence related closely to the principal reason for the protection of privilege” (see, generally chapter 3)

-  That a ‘safeguard’ should be introduced whereby the consent of the DPP (or equivalent) is needed before evidence of ‘proceedings in parliament’ can be used in a criminal prosecution (para 141)

-   That, given the Speaker’s discretion on the use of the House sub judice rules, there is no need for legislative change on civil liability (e.g. for defamation or breach of court injunctions) (para 167)

-  That, given the Chaytor decision, there is no need for legislation to clarify the exclusive cognisance of Parliament (para 206-217)

Discussion

In this post, I want to make three points about the issues covered in the Green Paper (and in debates about Parliamentary privilege more generally).     First, I want to say something about the nature of the privilege debate: the type of reasoning that can inform this issue.  I shall suggest that both the Green Paper and the decision in Chaytor correctly approach questions about the meaning and scope of Parliamentary privilege as a matter of constitutional principle.  Apologies to readers for banging the same old drum!

Secondly, I want to consider the relationship between the privilege debate and debates about Parliamentary sovereignty.    I shall argue that these two debates are coterminous:  they each involve competing arguments of constitutional principle about, for instance, the separation of powers, democracy, and the rule of law.     Both the powers of each House of Parliament to regulate its internal workings, and the powers of Parliament to legislate, will depend on the meaning that one ascribes to these principles.

Thirdly, I shall argue that constitutional principles of the sort just described, properly understood, recommend a narrow account of Parliamentary privilege and legislative power.    The undoubted democratic justification for these Parliamentary powers must always be sensitive, I shall say, to the demands of individual rights and the principle of equality before the law.    Judges must be left to strike the correct balance between these principles in each given case.   (For a compelling recent argument to this effect, see Sir Stephen Sedley’s recent LRB piece on privilege and superinjunctions).

I shall take these three points in turn.

A.   The Nature of the Privilege Debate

What is striking as one reads the Green paper is the normative character of its reasoning.  Each of the different issues for consideration are presented in terms of a range of competing principles.        We could begin with David Cameron’s words (above) which refer, in substance, to the balance between Parliamentary privilege and the principle of equality before the law.    Take the following additional examples:

Freedom of speech is necessary for “free and frank debate” and to “freely represent the views of [an MP’s] constituents”  (para 45).

 “[I]t is unsatisfactory that anyone should not know, in any given circumstance, whether the actions they are undertaking are covered by absolute privilege.” (para 51)

 “Though an individual’s right to approach their MP is an essential part of the democratic process, this has to be balanced against the rights of others, including potentially the right to a fair trial and the right to privacy. Extending qualified privilege to all forms of correspondence could…undermine the rule of law” (para 73)

 “It can be argued that it is wrong in principle to deny the courts access to any relevant evidence when the alleged act is serious enough to have been recognised as a criminal offence.” (para 94)

 “The draft clauses are therefore one way in which it might be possible to balance two competing requirements – ensuring that parliamentary privilege cannot be used to evade the reach of the courts where criminality is suspected, while protecting the right of free speech and debate in Parliament by minimising any chilling effect to free speech in parliamentary proceedings.” (para 101)

“the issues [in relation to super-injunctions]  are similar to a longstanding concern about anonymity injunctions and the balance between the legal and human rights of others and the ability of parliamentarians to make statements about them in proceedings under the protection of absolute privilege. (para 164)

Any lawyer could be forgiven for thinking that they were reading passages from a Lord Steyn judgment rather than a set of governmental proposals.    Expressed in this way, the debate about Parliamentary privilege is rightly cast as one of constitutional principle.     Where one stands on the correct balance between the principles mentioned above (and other relevant principles), will depend, in part, on one’s general theory of the correct distribution of powers between Parliament and courts.  Someone who believes that representative democracy is the paramount principle in the constitution will likely defend a robust account of Parliamentary privilege, one that elevates MPs’ freedom of speech and the exclusive cognisance of Parliament, over judicially enforceable individual rights.    Someone who, by contrast, believes that the rule of law and individual rights lie at the foundations of the constitution may advance a much weaker account of Parliamentary privilege.   He may think that democracy must sometimes give way to those principles – or that democracy entails the judicial protection of those principles.    I shall explain in the third section below why I am with those who favour the latter account.

The Chaytor decision sets the tone for the Green Paper.  Throughout its judgment, the Supreme Court places the concept of Parliamentary privilege in the context of the written and unwritten principles of the constitution.     The threshold question of kompetenz-kompetenz (i.e. who gets to decide on the limits of Parliamentary privilege) is a good early example.   That the courts have the power to decide on the scope of Parliamentary privilege is justified by the principle that the Houses of Parliament cannot be a judge in their own cause about the extent of their own jurisdiction (see paras 14-16 of Chaytor, applying the seminal case of Stockdale v Hansard).    Similarly, the key finding in Chaytor that privilege applies only to the ‘core or essential business of Parliament’ stems from the principles that justify the very purpose of the Bill of Rights 1689: the need for collective  deliberation and decision-making (para 62 of Chaytor).     I shall return to this reasoning about the Bill of Rights in the next section when I turn to the notion of Parliamentary sovereignty.

Two points occur about the privilege debate just described.    First, the type of reasoning in both the Green Paper and Chaytor is in stark contrast to more traditional debates on this topic.    One customarily finds dry, textual debates about the meaning of the phrases ‘proceedings in Parliament’ and ‘place out of Parliament’.     People compile and compare lists based on the ‘ordinary language’ meaning of those statutory phrases.   And when this exercise fails (as it inevitably does), they call for the creation of a new committee to draw up further lists.   The Green Paper and Chaytor decision are refreshing for their rejection of that unreflective approach.  As we have seen, they each focus instead on the constitutional principles that determine whether any given form of conduct should or should not be covered by Parliamentary privilege.   It is little surprise that the Government has counselled against codification of the law of privilege in the Green Paper.     Beyond relatively abstract statements of principle, constitutional law simply does not lend itself to this kind of formalism  (a point made very well by Forsyth and Elliott in relation to administrative law in their recent post).

Secondly, we should welcome the open-minded approach taken both by the Government and the Supreme Court towards constitutional doctrine in general.    Note the following phrase in the Ministerial Forward to the Green Paper:

 “[The Chaytor decision] served as a reminder that even the most durable of constitutional tenets should periodically be reviewed.”

A more elaborate way of putting this same point is as follows.   The correct understanding of the British constitution must depend on a constant reassessment of how the underlying principles of the constitution – democracy, individual rights, the rule of law, the separation of powers, and so on – impact on the practices of institutions, officials and individuals.

B.   Parliamentary Privilege and Parliamentary Sovereignty

The two points I have just made about the privilege debate bring me to my second argument in this post.   It is that debates about Parliamentary sovereignty (i.e. the legislative powers of Parliament) should be conducted in precisely the same way as debates about Parliamentary privilege.  Indeed, these two debates, I suggest, are coterminous:  they revolve around the same types of principles, and they generate identical accounts of the proper scope of Parliament’s powers (or each type) vis-a-vis courts.

Before I develop this argument, let me first contrast the privilege debate described in the last section with traditional Parliamentary sovereignty debates.    Where the debate about Parliamentary privilege in the Green Paper and Chaytor is principled and open-minded about the tenets of the constitution, the sovereignty debate in the UK is typically unprincipled and dogmatic (can you imagine a periodic review on the question of the whether or not Parliament is still sovereign?!)   Parliamentary sovereignty, it is often contended, is just a fact about law and the constitution; it requires no justification in its defence, and no argument of principle can dislodge it from its preeminent position.     This latter approach is, of course, the legacy of influential figures such as Dicey.   Dicey is often lauded as the Father of the constitution, but he is really the Father – or at least one important ancestor – of a morally sterile mode of constitutional argument, one that embraces empirical observation of what ‘actually happens’ in the constitution (as if everybody agrees on this!) over normative argument about why and how different facts about the constitution are morally significant.

This blog is not the place to delve too deeply into the case for one or other of these approaches (or some other approach) to constitutional analysis.  I have had a tentative go at this elsewhere.     For now, I shall take my lead from the Green Paper and the Chaytor decision, and explain how the principled arguments of the Government and Supreme Court about Parliamentary privilege can be applied equally to the issue of Parliamentary sovereignty.

Our starting point is John Locke, the Glorious Revolution of 1688, and the Bill of Rights 1689.    Locke’s arguments in his Second Treatise on Government are often thought to have precipitated the Glorious Revolution, or at least to have provided the ex post facto justification for it.    At the heart of Locke’s argument is a repudiation of the idea of absolute authority.     His immediate target was Monarchical power.   But his argument against absolute authority is wider than that. It is an argument against any form of absolute authority, and an argument in support of authority limited or defined by law.    Locke gives his own detailed account of the nature of those limits.    Parliament (or ‘the Commonwealth’), he said, must act in a way that honours peoples’ natural rights of liberty and quality, and the fundamental law of nature (the preservation of life).    But again, we should not lose sight of Locke’s bigger point.  It is this:  an authority only has the legal power to act in a way that accords with the principles or reasons that justify the existence of that authority (whatever those principles or reasons might be).

The Bill of Rights 1689, I suggest, is an attempt to enshrine the broad Lockean principle just stated.    Art IX tells us – to put it a plainly as possible – that Parliament has the legal right to do its particular job, and that, in so far as it is doing that job, no person or body has the legal power to interfere;  but Art IX also suggests that there may be a need for some other person or body to interfere if Parliament does things that are not part of its job.    This is precisely the way that the Supreme Court approached the Bill of Rights in Chaytor.   As noted above, Lord Phillips said, first, that Art IX should be given a “narrow ambit restricted to the important purpose for which it was enacted”  (para 62 of Chaytor); and secondly, that it must be the courts that decide what that purpose is, and whether or not Parliament has acted contrary to it.     Crucially, Lord Phillips’s point speaks as much to Parliamentary sovereignty as it does to Parliamentary privilege.    The idea that Parliament can do anything in its legislative capacity is equally inimical to the Lockean principle as the idea that Parliamentarians are protected by privilege for any type of conduct.    There is no principled basis, in my view, on which to treat these two sets of Parliamentary powers differently.      (It therefore makes no sense to suggest, as the Government occasionally does in the Green Paper (e.g. para 23), that Parliamentary privilege is justified by Parliamentary sovereignty.   This is entirely circular.)

Three points need to be made on the back of these conclusions.   First, a clarification.    I said above that the Bill of Rights 1689 enshrines the Lockean principle;  it does not create that principle.    In other words, even without the Bill of Rights, the powers of Parliament and courts would depend on the principles that justify the existence, role and functions of those institutions in the constitution.     The need for principled justification of the powers of Parliament and courts is fundamental to the constitution; it is not something that any Act of Parliament or judicial ruling can dispense with.

That first point leads to a second.   Given that Parliament’s powers arguably derive from the principle of democracy (properly understood), it is doubtful whether it even has the legislative power to control some of the issues canvassed in the Green Paper.   If, as I shall argue in the next section, the principle of democracy needs to be understood in the light of individual rights and the rule of law, then some individual rights (and corresponding civil or criminal law duties) may be among the principles that define Parliament’s powers (of each type).      In familiar public law parlance, certain proposals/recommendations in the Green Paper are arguably ultra vires the powers of Parliament.

That second point raises a third.  The conclusion that Parliament and courts must act in accordance with the principles that justify their existence, role and functions still leaves much work to do.    We need to advance arguments about which principles, understood in which way, have which effect in the constitution.    There is plenty of room for disagreement on these questions.  My point in this section is that these questions apply as much to the issue of Parliament’s legislative power as they do to the issue of Parliamentary privilege.

C. Parliamentary Power and the Role of Courts

And so we come to the crunch question.   What are Parliament’s powers (of each type) vis-a-vis courts in the British constitution?    Those who take an expansive view of the ‘core or essential business of Parliament’ rely, whether explicitly or implicitly, on a particular model of democracy, rights, the rule of law and the separation of powers.    Democracy, they suppose, means that elected representatives should be free to say or do whatever is necessary to promote the collective interest.    Individual rights and the principle of equality before the law must yield to that democratic imperative.   The role of courts, they say, is simply to implement Parliament’s will (or to acquiesce to the different forms of conduct of MPs): judges have no legitimate power to question any aspect of Parliament’s work.

These arguments, I think, misunderstand the principles of the constitution.   If democracy has any value at all, it must be that each member of a political community is treated as an equal in the way that political decisions are taken.  On this understanding, democracy entails that individuals enjoy certain political rights against Parliament, rights that protect them against discriminatory or arbitrary treatment (the right not to be defamed or subjected to hate speech may well be among such rights).     Closely allied to that conception of democracy is an egalitarian model of the rule of law.   The legal rights and duties that flow from Parliamentary enactments or judicial decisions must be applied rigorously and consistently to institutions, officials and individuals alike.    As Dicey himself said: noone is above the law.   And to return to Locke: “where law ends, tyranny begins”.

These understandings of democracy, rights and the rule of law recommend a narrow account of Parliamentary privilege and Parliamentary legislative power (or perhaps even the negation of the former).  Whether or not an individual MP, or Parliament as a legislature has the power act in a given way must depend on how that form of action impacts on individual rights.    Only exceptionally, if ever, can the interests of the many override these rights.    What concrete implications do these arguments of principle have for the questions raised in the Green Paper?     To take the central question of the Paper, I do not think that MPs should enjoy blanket protection against any form of criminal or civil liability.   Much is made in the Green Paper (and elsewhere) of the ‘chilling effect‘ on MPs of potential liability (para 100); but an MP’s licence to operate outside the law, I suggest, is a far more chilling prospect.     A judgment must be made in each case on whether MPs have acted lawfully or not.   For example, MPs should be free to debate hate speech, but not to engage in hate speech (see para 118-119).   The criminal law concept of mens rea should apply in Parliament as everywhere else.

What, then is the role of courts.   Should Parliament itself have the power to punish/prevent the infringement of individual rights through its contempt jurisdiction (and should Parliament have the power to determine the legality of its own enactments); or should courts have this power?    The answer, I think, is clear for at least two reasons.   First, Parliament cannot be a judge in its own cause about the legality of its Members’ conduct, or the legality of its own enactments.  An independent branch of government must perform this role (can Chaytor be read as a British Marbury v Madison?)    Secondly,  specifically in relation to privilege, for Parliament itself to exercise coercive powers, and impose coercive penalties and punishments would surely fall foul of ECHR art 6 and its common law equivalent.  If Parliament was once the ‘High Court’ of Parliament, that is manifestly no longer the case.

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

 Suggested citation: S. Lakin ‘Parliamentary privilege, Parliamentary sovereignty, and Constitutional Principle’ UK Const. L. Blog (11th February 2013) (available at http://ukconstitutionallaw.org)

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

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

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

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

1)    What circumstances count as exceptional?

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

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

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

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

2)    Is this a legal power at all?

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

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

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

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

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

 

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

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Cormac Mac Amhlaigh: W(h)ither Sovereignty?

Harbingers of the demise of sovereignty are not new.  At least since Karl Marx prophesized the withering away of the state, the heralding of the end of sovereignty has been an almost recurrent theme in political theory.  In recent times, however, these prophecies have become increasingly insistent and have, perhaps for the first time, emanated predominately from the field of public law.  In the European context, the debate about whether and to what extent EU membership compromises state sovereignty has been a central preoccupation of scholars of European integration for a generation, a debate which has intensified in the aftermath of the Euro crisis. In the U.K., a host of developments, both European and domestic, continue to fuel the discussion as to whether Parliament is indeed still sovereign, a notable recent catalyst being the ECtHR’s role in clipping Parliament’s wings over issues such as immigration and prisoner voting.

The concept of sovereignty, including its institutional expression in parliament in the UK constitution, provides part of the deep grammar of public law.  Thus for public lawyers, the question of the fate of sovereignty is of central concern to our discipline.  However, if it is a commonplace that sovereignty is somehow affected by recent political developments, what is less clear, is how.  Logically speaking there are three possible answers to this question:  sovereignty hasn’t changed, is undergoing a slow and steady demise or is evolving and adapting to new realities.  Holders of the no-change position have disputed that sovereignty has changed at all.  They rely on Schmittian scenarios of unilateral Member state withdrawal from the EU, or repeal of the various ‘constitutional statutes’ of which a substantial part of the UK constitution is apparently made, if for no other reason than to allow Parliament to flex its sovereign muscle, to argue their case.  Others dispute the continuing relevance of sovereignty to the contemporary world, seeing demise as the only possibility.  Given the supposedly categorical nature of the concept – either you have it or your don’t – then the notion of sovereignty evolving rather than simply being surrendered doesn’t make sense, and so we must get used to our new post-sovereign realities, recalibrating our practices, including public law, accordingly.

An emerging more nuanced view is that sovereignty is indeed evolving but not to such an extent that it is no longer relevant.  This ‘late sovereignty’ position holds that the concept still retains its purchase on law and politics, both domestic and supranational, but that its has evolved from the Westphalian paradigm of hermetically sealed sovereign states to incorporate transnational actors such as the EU and ECtHR and their influence on domestic public law.  This evolution denotes a change in the nature of sovereignty claims from categorical to more relative claims of authority such that simultaneous sovereignty claims, both national and supranational, are not incommensurable.

This more nuanced account which views sovereignty in phases from early, high to late forms, implicitly relies on a conception of sovereignty which is flexible and context-specific, rather than immutable and rigid meaning the same thing in all times and places.

As the grammar of public law, the concept of sovereignty entails a series of rules governing the idea of ultimate authority in legal and political practice providing the ground rules of ‘sovereignty games’.  The constitutive rules of sovereignty games constitute the actors participating in the game, that is those agents which makes ultimate authority claims, as well as providing the primary indicator that a particular ‘game’ is being played – that a sovereignty game and not some other sort of game, such as post-sovereignty, is being played. The regulative rules provide standards against which to measure how well the game is played and as such provide criterion for what constitutes a ‘good’ or legitimate claim to ultimate authority.  It is the evolution of this grammar, the constitutive and regulative rules of sovereignty games, which mark the passage from high to late sovereignty.

The rules of sovereignty games played during the high sovereignty era, then, were played primarily by sovereign states, making claims to ultimate authority over a territory and people (the constitutive rules of high sovereignty), justified according to notions of constituent power, popular sovereignty, divine right or even mere convention (the regulative rules of high sovereignty).  In late sovereignty games, the grammar has evolved such that the constitutive rules of late sovereignty games relate not, or not exclusively, to territory and people, but to functional domains such as trade, the environment or human rights.   Furthermore the constitutive rules of late sovereignty games imply that the actors making such claims to ultimate authority no longer fit the mould of the sovereign state.  Thus, the EU makes claims to ultimate authority over certain sectorally defined functions without being, or claiming to be, a sovereign state.

The regulative rules of late sovereignty games, that is, the criteria for what constitutes a ‘good’ sovereignty claim, have also evolved.  First of all, the repertoire of reasons that count as ‘good’ or legitimate claims to ultimate authority has expanded beyond those of high sovereignty.  For example, the justification of ultimate authority claims by the EU over specific functional domains does not rely on constituent power or popular sovereignty, the reason of choice in the high sovereignty era, but rather on grounds of functional necessity.  Thus, the paradigmatic EU late sovereignty claim, the claim to the primacy of EU law by the ECJ, was justified, not according to the will of a European people(s) but with reference to the need to achieve the objectives and aims of the EU Treaties.   In this way, the reasons which justify and legitimate late sovereignty claims have expanded beyond popular sovereignty to include what Fritz Scharpf has called ‘output legitimacy’.

Moreover, conventional justifications of ultimate authority in particular contexts have also shifted in the era of late sovereignty.  Whereas the vestiges of high sovereignty are still traceable in the sovereignty claims of EU Member states, they are arguably not unaffected by the transition from high to late sovereignty in Europe.  This is because the conventional justification for sovereignty in a specific national context in the high sovereignty period no longer provides the justification for national sovereignty in late sovereignty.  Two examples of recent EU Member state sovereignty claims serve to illustrate this point; the German Federal Constitutional Courts (GFCC) Lisbon decision and the UK Parliament’s European Union Act 2011, both of which have received attention in previous posts on this blog.

In June 2009, the GFCC handed down its decision on a challenge to German ratification of the Lisbon Treaty of 2008 finding that such ratification would not per se violate the German constitution.  Significantly, the Court found that, notwithstanding the constitution’s ‘openess’ to European integration, that there were absolute limits on the level of integration possible under the German constitution.  The rationale for this conclusion was based on a strong assertion of German sovereignty, references to which were littered throughout the judgment.  In particular the court justified German sovereignty according to the principles of constituent power, popular sovereignty and the self-determination of the German people which created a particularly robust constitutional identity reflected in the provisions of the German constitution.  This identity set absolute limits to the level of integration possible under the constitution.  Nothing, not even the constitutions ‘openess’ to European integration, could undermine this identity.

Similarly, the European Union Act of 2011, can be read to entail sovereignty claims on behalf of the UK vis-à-vis European integration. In particular two features stand out in this regard, the s. 18 ‘sovereignty clause’  which states that EU law falls to be recognised and available in law in the United Kingdom only by virtue of Acts of Parliament as well as the various ‘referendum locks’ triggering a referendum inter alia whenever further powers are transferred to Brussels.  In terms of justifications of these claims to UK sovereignty, the sovereignty clause has been justified according to nebulous references to the common law’s recognition of Parliamentary sovereignty, whereas the referendum locks are implicitly invoking the will of the people and theories of popular sovereignty and constituent power.

On an initial reading, these assertions of national sovereignty by Germany and the U.K. are unremarkable.  They seem to be rather typical assertions of national state sovereignty according to the classic tropes of high sovereignty games.  A closer reading, however, shows that given the context within which they were made, are better understood as forms of late sovereignty claims prompted by the process of European integration.

Firstly, with respect to the GFCC’s Lisbon decision, the assertion of German sovereignty based on the people and a German constituent power marks a shift from the conventional justifications of German state sovereignty in the post-war era.  In the reconstruction of post-war Germany, and particularly in the drafting of the new constitution, the previously unhappy experiences with popular sovereignty based on a constituent power were suppressed in favour of a strong assertion of the rule of law and the supremacy of the constitution over the political process, which was instrumentalized by a powerful Constitutional Court which frequently undid the will of Parliament.  As Christoph Mollers has argued, this was copper-fastened in the basic law itself through an absolute prohibition on the holding of referendums or plebiscites. It was also explicitly recognized by the GFCC itself in the Lisbon decision where it found that:

‘The [post-war constitution] … breaks with all forms of political Machiavellianism and with a rigid concept of sovereignty which until the beginning of the 20th century regarded the right to wage war – even a war of aggression – as a right due to sovereign state as a matter of course’ (para. 199).

Thus, the post-war German constitutional landscape was marked by a ‘constitutional patriotism’ crystallizing around the constitution and the rule of law rather than strong assertions of popular sovereignty or constituent power.  Against this background the justificatory claims of German sovereignty in the Lisbon decision, mark a shift from the constitutional patriotism which has underpinned and justified German sovereignty in the post-war era in the light of the integration experience to an assertion of constituent power and popular sovereignty in the late sovereign period.  Similarly in the UK, the sovereignty clause and the referendum locks in the European Union Act 2011 mark a shift in conventional justifications of UK sovereignty.  Conventionally, UK Parliamentary sovereignty was, as Wade argued, justified according to its social ‘facticity’ rather than by references to the common law as the Ministerial statements surrounding the sovereignty clause seem to suggest (and the Courts have recently supported with gusto).  More strikingly, perhaps, however is the novel justification of UK sovereignty, not based on Parliamentary sovereignty, but by reference to popular sovereignty based on a constituent power as evidenced in the referendum locks.  As Martin Loughlin has argued, the idea of a constituent power is almost completely alien to modern British constitutional practice.  Thus, this shift in the justifications of national sovereignty in Germany and the UK in the face of European integration qualify these claims as ‘late’ rather than ‘high’ sovereignty claims.

Sovereignty is still prevalent in our political vocabulary and is still providing the grammar of the practices of public law.  However, if we scrape beneath the surface, we can see how the grammar of this constitutive concept is itself subtly evolving.  This evolution is essential for understanding constitutional change in the contemporary world.

 Cormac Mac Amhlaigh is Lecturer in Public Law at the University of Edinburgh.   

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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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Dawn Oliver: Parliamentary Sovereignty: A Pragmatic or Principled Doctrine?

Imagine that Parliament has recently passed a provision authorising the indefinite detention without trial of suspected terrorists. The measure was passed during a public panic about terrorism. Public opinion and the press and parliamentarians of the party in government which promoted the legislation were strongly in favour of using such powers. The Home Secretary orders the detention under that provision of suspect A. A applies to the court for release on the ground that the provision in the Act is contrary to fundamental common law principles and the European Convention on  Human Rights. The court finds that the Act is indeed defective in these ways, that compliance by state bodies with fundamental common law principles and the ECHR is a requirement of the rule of law (as it is understood by the courts), a constitutional principle which binds all bodies including Parliament.   The court orders the minister to rescind his order for the detention of A and orders the prison governor to release A.

What would happen if the minister refused to obey the court order? It would be easy to reply: ‘The minister would be committed for contempt of court if he refused to release or order the release of the suspect, of course’, implying that this is an obvious answer to an obviously stupid question. But the implications of such a finding for the relationships between politicians and the courts need to be thought through before such an answer is accepted.

Our system, particularly because we lack a written constitution which is considered by the institutions of government and by the public to legitimate such activities of the courts, depends for its working in part upon mutual respect between institutions, particularly between the courts on the one hand and Parliament and executive bodies on the other. Lord Carswell had this in mind in his speech in the Jackson case when he referred to the mutual respect which has long existed between the legislature and the courts, and he expressed reluctance to endanger that tradition.

According to M v Home Office, a court might, having made an order which a minister disobeyed, just declare the minister to be in contempt. A mere declaration would not do the court’s authority any good at all in this hypothetical situation. It is unlikely that the press or the members of the House of Commons would take the court’s side and press the government to respond positively to the declaration. If the declaration were ignored, the lesson that the executive learned would be that it can get away with such responses to the courts. Would we want that?

Alternatively the court could commit the Home Secretary to prison for contempt. The Minister of Justice might then order the prison governor to release the Home Secretary on the basis that it was unconstitutional, anti-democratic and unlawful – a breach of the rule of law as understood by politicians – for the court to refuse to give effect to an Act of Parliament. The prison governor might obey the Minister of Justice and release the Home Secretary while continuing to detain A, and so himself be committed for contempt, along with the Minister of Justice.  The battle would continue, with press and public opinion probably behind the ministers.

So such a court order might turn out not to be practically enforceable if resisted by government on the ground that it was not legitimate for the courts to change the law unilaterally in such a way. Or, if the order was enforced, the backlash might be that Parliament legislates to politicise the judicial appointment system, the courts could then be packed with judges sympathetic to the government, the Court Service could come under ministerial directions as to the deployment of judges and the listing of cases so as to ensure that ‘unreliable’ judges did not sit on certain kinds of case, ouster clauses could become commonplace. And so on. I think the courts would be defeated, and in the end the Supreme Court would exercise its power under the Practice Statement of 1966 to reverse its position and reinstate the doctrine of parliamentary supremacy. But by then untold damage would have been done to the respect in which the courts are held in government, in Parliament and by the general public and to good relations between those institutions. The rule of law itself (as generally understood in legal circles) would have been weakened. The culture would have changed.

The relationship between the executive and the courts in the UK, lacking as it does a written constitution which defines that relationship, depends upon reciprocity, trust, cooperation – the basic elements of human social interaction.  Any system of government involves such interaction. If those collapse then the very constitutional system itself might collapse into recurring conflicts between the courts and the executive, tit for tat battles, ostracism of the courts by ministers, and mistrust. It is by no means certain that the rule of law would win over politics and parliamentary supremacy in such a situation.

But, you will be thinking, surely this hypothetical is fanciful: normally ministers do obey court orders. Yes – and that is part of the culture of the rule of law. But if the courts were to challenge parliamentary supremacy, ministers would be able to invoke a whole lot of arguments in support of their refusal to obey the court, arguments which do not apply in relation to other cases – democracy, separation of powers, etc. Indeed it is likely that there would be a great hue and cry against the courts not only from the government, but from MPs, the press and the public. In my view therefore it could well be extremely unwise, damaging to the authority of the judiciary and the rule of law itself and to the stability of our constitutional arrangements, and counter- productive for the courts to strike down a provision in an Act, however much it is contrary to some of the elements of the rule of law and other constitutional ‘principles’. Bear in mind that the duties of judges are not limited to upholding individuals’ rights. They include ensuring the practical working of constitutional arrangements, for instance relationships with the EU and between the UK and devolved bodies, which in turn facilitate the rule of law. There are in other words respectable consequentialist reasons for judges in the UK accepting parliamentary sovereignty and holding back from making judgments that might be impossible to enforce against the executive in such a nuclear option situation, especially when we take into account the non-legal environment in which government and Parliament operate in the UK and which uphold constitutional principles.

So in my view a ‘principle’ that the rule of law is the controlling principle and might entitle courts to disapply statutory provisions – as Lord Hope indicated in Jackson – would come up against the typical, pragmatic and wise English response: that is all very well in principle and theory, but what about the practice? The practice of striking down legislation in our unwritten constitution and constitutional culture would not work.

Thus I suggest that an important rationale for the British courts’ recognition of Acts of Parliament as the highest form of law is based in comity between institutions and workability: pragmatic principles established over centuries that the courts will refrain from questioning the legal validity of Acts passed by the UK Parliament, and members of the two Houses of Parliament will respect the courts and their decisions and will not seek to undermine them and the rule of law.

I suspect therefore that the dominant though unarticulated reason why courts in the UK accept parliamentary sovereignty is that it represents a way of avoiding a conflict between the courts and the executive which the courts could not win. It could well be different if the UK had a written Constitution which mandated the courts to refuse to give effect to ‘unconstitutional’ laws. But that is not the current position.

This is not something that the judges, or others as far as I know, have discussed publicly. But Lord Justice Stephen Sedley had the following to say in his LRB review of Vernon Bogdanor’s book The New British Constitution (2009).

‘…what would happen in real life if the higher courts treated … a withdrawal of their jurisdiction [by a provision in an Act which ousted judicial review of a tribunal’s decisions on asylum claims] as unconstitutional, ignored it and allowed an asylum seeker’s appeal? The home secretary, not recognising their jurisdiction, would proceed with deportation, and the court would arraign him for contempt. How would it end? We do not know, and most of us would prefer not to find out’.

Sedley discussed the issue again in Ashes and Sparks (2011). Commenting on what would have happened if the ouster clause in the Immigration and Asylum (Treatment of Claimants) Bill had been passed, if the courts had refused to give effect to it, and if the Home Secretary had been found to be in contempt for disobeying their order, he wrote:

‘And then? There would be no winner, no famous victory even, in such a confrontation. Even so …. it was  not necessarily a bad thing that [the proposed ouster clause] had gone as far as it had: the government had realised that there were limits to what it could properly ask Parliament to do; constitutional lawyers had realised that the limits were less secure than they had thought, and the sky still seemed to be in place’.

Interestingly, in relation to our close constitutional cousin, New Zealand, Matthew Palmer has recently written that:

‘Institutionally, over the long term and particularly in New Zealand, the independence of the judiciary depends on the forbearance of the political branches of government. Cabinet and Parliament have the formal tools available in New Zealand’s constitution to undermine the independence of the judiciary if they wished: through appointments, dismissals, under-resourcing or restructuring various benches.’

Palmer suggests that the approach of parliamentarians is based in part on the high standing of the judiciary in public opinion; that standing could be damaged by a series of negative public reactions to judicial decisions and ‘… whether consciously or unconsciously, the judiciary, especially at the level of Heads of Bench and the Supreme Court, understands and should understand the importance of public opinion, according to a medium and long-term perspective, for the sustenance of its branch of government’.

Griffith was right in ‘The Political Constitution’ that many parts of our constitution (not all) are the outcome of conflicts. The restoration of parliamentary sovereignty would be the outcome of a conflict between the courts and the executive, but the courts would have lost authority and face in the course of that conflict.

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

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