Tag Archives: Rule of Law

Dawn Oliver: Does treating the system of justice as a public service have implications for the rule of law and judicial independence?

oliverIf you asked a second year LLB student, or even a professor of public law or a legal practitioner, ‘what are the most fundamental functions of judges and the system of justice?’ you would probably get ‘doing justice to all without fear or favour’ and ‘upholding the rule of law’ among the most common answers. And if you asked ‘what are the most important ways in which performance of these functions is secured?’  you would expect to get ‘independence of the judiciary’ among the answers.

But if you visit the websites of the Ministry of Justice, the Lord Chancellor and Secretary of State for Justice, you will find no mention of these matters. These websites are mostly focused on the cost of legal aid, and criminal justice. And this notwithstanding the fact that the Constitutional Reform Act 2005 – also not mentioned on the websites – specifically preserves the Lord Chancellor’s role in relation to the rule of law (section 1(b)) and requires the Lord Chancellor and other Ministers to uphold the continued independence of the judiciary (section 3(1)). Why are judicial independence and the rule of law not mentioned? I suggest that it is because another understanding of the nature of the system of justice has gained currency in political and bureaucratic circles, an understanding that can do great damage to the rule of law.

The system of justice has come to be regarded by many as a public service like any other – and even only that. The title of Her Majesty’s Courts and Tribunals Service illustrates the point. But the trend goes back some thirty years. In 1986 a JUSTICE report stated that: ‘The courts … should be seen to provide a public service, as much as … the National Health Service’. (And presumably just as it would be inappropriate for the Secretary of State for Health to seek to pressurise a consultant to treat a patient in a particular way, so it would be inappropriate for the Lord Chancellor and other Ministers to ‘seek to influence particular judicial decisions through any special access to the judiciary’ (Constitutional Reform Act 2005, section 3(5)): by implication there is nothing exceptionally ‘constitutional’ or fundamental about the independence of the judiciary as compared to that of doctors.)

Since the promotion of the ‘Citizen’s Charter’ policy in 1991 the courts publish ‘charters’ for parties, witnesses and other, laying down ‘service standards’ as to delay, information, and how to complain about administration. Of course these matters are aspects of ‘service’ and do not touch upon the substance of judging, judicial independence and the rule of law. But for those who do not understand the rule of law and why it is important, it is only a small step to regarding judges themselves as only providers of services to litigants appearing before them, rather than as performers of an important constitutional role on which much of the system of government depends. I have heard it said at a Chatham House rule seminar by a senior civil servant that the role of the judiciary is not particularly special or different from the roles of doctors or nuclear regulators or anyone else involved in the running of public services.

The fundamental importance of justice, the rule of law and judicial independence are undermined by treating the system of justice as mainly just a public service: the system is different in important respects. The maintenance of the rule of law is of a different order of importance from the provision of other public services. The government and other public bodies are not ‘customers’ of, for instance, the NHS. They are often ‘customers’ of the system of justice, especially in judicial review and other public law cases and in criminal prosecutions. They may have self-serving or personal (not public) interests in the outcomes of cases, e.g. the avoidance of political embarrassment, gaining votes,  losing votes, loss of reputation, frustration in the pursuit of their favoured policies, loss of authority if they lose a case.

This ‘public service’ perspective puts some proposals for changes to the system of justice in a new light. The availability to critics of government of recourse to the courts and the independence of the judiciary can be a nuisance. What might a government do if it wanted to avoid litigation and embarrassment and enable it to get away with illegality? Just as, when developing policy in relation to the NHS, it can seek to limit access to the service (e.g. to drugs) and costs (e.g. by cutting staff, closing hospitals), so to it can do this in relation to the system of justice – but with startling consequences for the rule of law.  It could limit access to justice and deprive the courts of jurisdiction over unwelcome cases by reducing the limitation period for claiming judicial review and limiting the standing of charitable or voluntary sector bodies; it could find ways of weakening the ability of unpopular individuals (e.g. illegal immigrants, asylum seekers, convicted criminals) to pursue their claims in court by limiting their access to legal advice and representation; it could secure that unpopular parties (especially defendants in criminal cases) are less likely to win their cases, by depriving them of competent, reasonably paid representation; it could undermine the quality and thus the authority of the judiciary, deterring able practitioners from practice leading to judicial office by drastically reducing their earning capacity.

I do not allege that any of these are the conscious intentions of the government. But the overall effect of such changes, based in part on assumptions that the system of justice is just another public service, may be to undermine the independence of the judiciary, broadly understood, and the rule of law. Thinking of the system as a service obscures its special constitutional importance.

Dawn Oliver is an Emeritus Professor of Public Law at the Faculty of Laws, University College London.

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Robert Leckey: Suspended Declarations of Invalidity and and the Rule of Law

Professor Robert LeckeyIn December 2013, the Supreme Court of Canada declared the constitutional invalidity of three major provisions in the domestic criminal law on sex work. Specifically, in Canada (Attorney General) v Bedford, the Court struck down prohibitions against keeping a bawdy-house, living on the avails of prostitution, and communicating for the purposes of prostitution. The judges accepted argument by current and former prostitutes that the challenged provisions deprived them of their security of the person in a way incompatible with the principles of fundamental justice, contrary to s 7 of the Canadian Charter of Rights and Freedoms. For the Court, the challenged provisions constrained sex workers’ ability to take steps to protect themselves. Sex work itself being legal, those prohibitions exacerbated its risks in a way that marked them as grossly disproportionate or overbroad.

Although the decision’s substance offers much for scholars of fundamental liberties to chew on, my present concern is the order issued and its implications for constitutional review. Whilst s 4 of the Human Rights Act 1998 merely empowers judges to declare that primary legislation infringes rights, without affecting its legal force, s 52(1) of Canada’s Constitution Act, 1982 affirms the Constitution of Canada’s ‘primacy’. It stipulates that any law inconsistent with the Constitution, of which the Charter is part, ‘is, to the extent of the inconsistency, of no force or effect’. On prevailing readings, this provision empowers the Court to strike down legislation it determines to be unconstitutional. Thus, although taxonomists of Bills of Rights debate the precise implications of the Charter’s distinctive elements, such as its derogation or ‘notwithstanding’ clause, the Canadian form of constitutional review appears to be relatively strong.

In Bedford the Supreme Court declared the challenged provisions to be invalid, but suspended its declaration of invalidity for one year. The Court expects Parliament to avoid an eventual regulatory void by enacting replacement legislation before that year elapses. Indeed, the Government of Canada has already launched online consultations.

This delayed remedy is doubly significant. Most concretely, it means that despite their ostensible legal victory, sex workers will continue to suffer risks to their safety seen by the Court as severe enough to make the provisions incompatible with fundamental rights. Early experience indicates that local authorities are enforcing the provisions to varying extents. Indeed, this state of legal uncertainty arguably undermines the rule of law. Still, strictly speaking, the provisions remain in force.

In addition, the suspended remedy in Bedford represents the culmination of judges’ reshaping of their role under the Charter. The initial position in Canadian law was that declaring legislation to be inconsistent with the Constitution made it immediately invalid. The first major exception arose in 1985, when the Supreme Court of Canada concluded that a century’s lawmaking by a provincial legislature was invalid for failure to follow a constitutional manner-and-form requirement to enact laws in French as well as English. The Court invoked the rule of law – its imperative to avoid a legal vacuum – in order to deem the legislation valid for the time required to translate and reenact the provincial statute book.

A few years later, in its leading judgment on constitutional remedies, the Court contemplated that, exceptionally, it might suspend a declaration of invalidity made under the Charter. A delay would be warranted where striking down legislation with nothing in its place would threaten the rule of law or pose a danger to the public.

The Court has never disavowed that discussion, but it has subsequently changed its approach. The judges have developed the habit of suspending declarations of invalidity in Charter cases. In doing so, they commonly refer not to threats to the rule of law or to the public, but to the appropriateness of making space for a legislative response. For some commentators, this approach fosters a democratically healthy ‘dialogue’ between judiciary and legislature.

Speaking comparatively, the Canadian judges have fashioned for themselves a remedial discretion that the Constitution of South Africa bestows on its judges. Section 172(1)(b)(ii) of the South African constitution contemplates that the judges may make ‘an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect’.

The Supreme Court of Canada’s brief remedial discussion in Bedford merits scrutiny. The Court takes it as ‘clear that moving abruptly from a situation where prostitution is regulated to a situation where it is entirely unregulated would be a matter of great concern to many Canadians’. In contrast, ‘leaving the prohibitions … in place in their present form leaves prostitutes at increased risk for the time of the suspension – risks which violate their constitutional right to security of the person’. The judges hold that the ‘choice between suspending the declaration of invalidity and allowing it to take immediate effect is not an easy one’. They do little, however, to show themselves grappling with the difficulty. Without any explicit effort to weigh the opposing considerations or to compare their foreseeable costs and benefits, the Court concludes that the unconstitutional law should remain temporarily in force.

In effect, the Supreme Court of Canada has turned 180 degrees from its position twenty years ago. Danger used to be a reason for, exceptionally, suspending a declaration of invalidity. Now the Court suspends a declaration – in deference to the ‘great concern’ of ‘many Canadians’ and to Parliament’s prerogative to tackle a policy issue – in the face of evidence that the unconstitutional laws daily imperil the vulnerable class of sex workers.

More broadly, then, Bedford crystallizes the Court’s shift from using orders under the Charter to cease the effect of laws violating rights to using them to identify legislative priorities. To be sure, there are non-negligible political effects to the Court’s declaration that the prostitution laws harm their intended beneficiaries and to its 12-month countdown for Parliament. Still, that the sex workers should exit the courthouse as ‘victors’ while continuing to bear the brunt of laws shown to violate their fundamental rights suggests that the judges have used the remedial discretion they ascribed to themselves so as to weaken constitutional review in Canada.

The Canadian judges’ apparent underuse of their constitutional powers invites further study. Might this phenomenon countermand democratic theorists’ disappointment about how rarely Canadian parliamentarians have used their legislative override? It may also be a counterexample to the hunch – think of American judges’ recognition of the right to privacy in the penumbra of the First Amendment – that when judges reach beyond the constitutional text, they do so to expand rather than to restrain their powers.

For me, the crucial methodological takeaway – whatever your politics on rights, courts, and legislatures – is how partial a story about the character of judicial review emerges from a Bill of Rights’ text. To understand the political impact of a Bill of Rights, we need to scrutinize the procedural dimensions of its application by judges – matters too often dismissed as lawyerly ‘technicalities’. I contribute to this endeavour in my forthcoming book, Bills of Rights in the Common Law.

Robert Leckey is an Associate Professor of Law and William Dawson Scholar at the Faculty of Law, McGill University. He is scheduled to speak in the United Kingdom and South Africa about his forthcoming book on the following dates:  King’s College London – 12 May;  Oxford University – 13 May; Unisa, Pretoria – 15 May; Cape Town – 19 May; University College London – 17 June; London School of Economics – 29 October.  Further details for these talks may be obtained from the venues hosting the talks.

(Suggested citation: R. Leckey, ‘ Suspended Declarations of Invalidity and the Rule of Law’ U.K. Const. L. Blog (12th March 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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Conor Gearty: The Important Inconvenience of the Rule of Law

conorOmar Othman is a resident of this country – guilty of no crime and up to now facing no charges – whose home country wants to put him on trial in a case where the key evidence against him will in all likelihood have been procured by torture. The only reason he probably won’t be tortured is because the state concerned has reluctantly promised (as an inducement to get him back) not to follow its usual routine.

If this person’s name were MacKinnon or Giles or Gary and the country Syria or Sudan, we’d have outraged Daily Mail editorials and a civil libertarian Home Secretary.  But it is Abu Qatada and the state is Jordan.

In politics universal values (the rule of law; the protection of human rights; the prohibition on torture) are fine – but only so long as they don’t get in the way of our diplomatic or political interests, the career ambitions of our leading politicians, or the propensity of our allies to do evil.

The law doesn’t work like this.

It deals in legal commitments.  No bit of the Human Rights Act or of the European Convention on Human Rights or the Convention Against Torture has a proviso ruling out their protection for foreigners with ‘funny’ names or for those with the ‘wrong’ ethnic or religious backgrounds.  The three senior judges who have just reminded the government of this yet again in the latest ruling on Abu Qatada are not necessarily liberal, or progressive, or devotees of some kind of judicial cult worshipping at the shrine of Shami Chakrabarti.  They are just doing in a dull old-fashioned kind of way what is made inevitable by their training, their culture, and the unequivocal democratic laws that it is their job to apply.

The facts of this case are surely by now well-known.  It concerns the refusal by the Secretary of State to revoke the deportation order against Abu Qatada notwithstanding the ruling of the European Court of Human Rights that to send him to Jordan for trial would in the circumstances amount to a flagrant denial of his article 6 right (under the European Convention) to a fair trial.  The Special Immigration Appeals Commission having made the decision to uphold the application, it was always a long shot that the Court of Appeal – with oversight only on issues of law – would overrule its specialist subordinate, and so it turned out.  Here was a ‘detailed and careful judgment by an experienced tribunal’ (para 42) on the nature of the burden of proof and on what is entailed by the ‘flagrant denial of justice’ test that applied to cases such as the one before the court.

The subject matter also mattered.

As the Master of the Rolls, speaking for the Court of Appeal, put it:

‘Torture is universally abhorred as an evil.   A state cannot expel a person to another state where there is a real risk that he will be tried on the basis of evidence which there is a real possibility may have been obtained by torture.  That principle is accepted by the Secretary of State and is not in doubt.  That is the principle which SIAC had to apply in the present case in the light of all the evidence that it heard and read.  This included evidence as to what had happened and what there was a real risk would happen if Mr Othman faced a retrial on the very serious charges that he faces.  SIAC found that there was a real risk that evidence obtained by torture would be admitted at the retrial and that, as a consequence, there was a real risk that he would be subject to a flagrant denial of justice’  (para 58)

Successive governments and the Tories in particular have long had a problem with the rule of law.  It seriously inhibits the security services in their desire to take national security wholly back – Cold War style – into the realm of the executive.  It also inconveniently stands against the populist manoeuvring favoured by the dark side of both main Parties.

But ….

The rule of law is what Conservatives in particular were brought up to believe in, a bit of the imperial history (Magna Carta, Blackstone, Dicey; etc) that Michael Gove will soon be making all little Englanders learn by rote.   In the good old days the judges saved embarrassment by looking the other way when radicals were shafted, shocking bail conditions imposed, foreigners unceremoniously thrown out.  This went on right into the 1980s (Spycatcher; the Birmingham Six; the miners’ strike).   But things have changed.  The Hales, Neubergers, Dysons of today are not the ex-servicemen, rabid anti-Communists and Tory placemen of yesteryear.  And there is now the European Court of Human Rights to keep them honest, as it did in the Abu Qatada case itself last year when overruling our judges’ effort to be relaxed about torture evidence as long as it was being allowed in Amman and not the Old Bailey.

This is how the Court of Appeal dealt with the politics, what in cricket might be called the straightest of straight bats:

‘Mr Othman is considered to be a dangerous and controversial person.  That is why this case has attracted so much media attention.  It is entirely understandable that there is a general feeling that his deportation to Jordan to face trial is long overdue.   But the principles that we have to apply do not distinguish between extremely dangerous persons and others who may not constitute any danger in the United Kingdom and whom the Secretary of State wishes to deport to face trial in another country.  The fact that Mr Othman is considered to be a dangerous terrorist is not relevant to the issues that are raised on this appeal.  It would be equally irrelevant if we were deciding the question whether there was a real risk that he would be tortured if he were returned to Jordan.‘ (para 56).

What will the government do?

In the short term it has enough legal devices to hand to continue to make the life of Abu Qatada and his family hell without exposing their hand against him in any kind of fair prosecution for a serious offence.  If they get the chance they might even press charges if they can be assured of the secret justice for which they have been fighting so hard in recent weeks.

In the longer term the Conservatives only get away with supporting universal values like the rule of law and human rights while also condemning non-white foreigners, deadbeat immigrants and benefit scroungers because they are always silently whistling that none of the values we supposedly uphold really in truth applies to these reprobates.  Nigel Farage has thrown the Party into a panic precisely because he is talking about this, not covertly whistling.

Short of abolishing the rule of law and universal human rights  the party is left with the poor consolation of being able only to shout insults at the judges –like a political version of the limbless black knight in Monty Python and the Holy Grail who roars at his adversary ‘Come back and I’ll bite your legs off.’

 Conor Gearty is Professor of Human Rights Law, LSE, and a Barrister at Matrix Chambers.

Suggested citation: C. Gearty ‘The Important Inconvenience of the Rule of Law’ UK Const. L. Blog (30th March 2013) (available at http://ukconstitutionallaw.org)

An earlier version of this post appeared in The Guardian.

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Anitta Hipper: In Hungary’s Footsteps: Different Victor, Same Strategy

On January 1, 2012 with an amended Constitution in place, a once praised EU accession candidate, Hungary, proved that rule of law and consolidated judicial institutions are not at all irreversible. A new shift of power allowed Viktor Orbán, the Hungarian Prime Minister and the FIDESZ government to silence the Hungarian Constitutional Court, one of the strongest and most active Courts in Central and Eastern Europe.

It does not come as surprise, when Romania, considered by EU officials a laggard in fulfilling EU’s conditions for membership, goes along the same path as Hungary, by depriving the Romanian Constitutional Court of its powers. Unlike Hungary, which was considered a role model in Central and Eastern Europe due to its independent and efficient judiciary, Romania remained a concern for the EU despite considerable progress in reforming its judiciary as its political system is plagued by a chronic lack of consensus, with personalized institutional appointments and a judiciary that was not allowed to reach the same level of independency from the executive as in Hungary. Furthermore, skeptics of Romania’s readiness to join the EU both from the political praxis and academia were proven right when Monica Macovei, a disputed Minister of Justice at home, but considered a reformist force by Brussels, was dismissed from her office after the country joined EU in 2007.

Since Romania’s application for EU membership on June 1995, the judiciary suffered from continuous institutional redesign and personnel change according to the interests of successive governments. An overly rapid legislative process relied upon a ‘copy and paste’ method of transplanting Western legislative and institutional models and complex reform packages into the Romanian legal system.  These were adopted by subsequent governments in a hasty manner, using votes of confidence and emergency ordinances.  This eliminated the possibility of critical discussion and limited the chances of building political consensus over the quality of the reforms.

The instrumentalization and politization of the judiciary is not a novelty in Romania, which has remained trapped in this legacy since Communism. In the current political crisis, rule of law institutions are kept hostage in order to prepare the political battle between the Prime Minister Ponta and the now suspended President Traian Basescu. The tense relationship between the Prime-Minister and the President Basescu has been repeatedly put to the test due to Romania’s unclear semi-presidential system and Basescu’s desire to be an ‘active’ president.  This escalated into an open conflict on 27 June 2012, when the Romanian Constitutional Court was called to decide if the President or the Prime Minister has the right to represent Romania at the European Council’s meetings. The RCC decided in favor of President Basescu. Prime Minister Ponta’s accusations that President Basescu had overstepped his powers and influenced the judiciary triggered a vote in the Parliament in which the leftist Social Liberal Union (USL) succeeded in suspending the President and requiring a referendum to be held on 29 July 2012. According to Article 96 (1), the Chamber of Deputies and the Senate may decide the impeachment of the President of Romania for high treason, in a joint session, based on the votes of at least 2/3 of the number of deputies and senators (Romanian Constitution 2003). In the vote on President Basescu, the measure of impeachment was overwelmingly decided with 256 of the votes for and 114 against.

According to Article 95, the president may be suspended only after consultation of the Constitutional Court (RCC). The RCC’s consultation role has been changed from a simple advisory one in 2010 (due to an amendment to Article 95 proposed by Dan Sova, a Social Democrat senator) into an obligatory consultation. Accordingly, the RCC’s consultation on the constitutionality of the Parliament’s law and ordinances transformed the RCC into a last institutional filter on the decision of the impeachment of the President. The amendments envisaged by USL intended to remove this filter by depriving the RCC of its right to rule on the constitutionality of the Parliament’s decisions and amended through an emergency ordinance (EO 38/4 July 2012) on 5 July 2012 the Law on the organization and functioning of the Constitutional Court (Law 47/1992).

While according to the Constitution, amendments to complex and fundamental laws such as the Law on the organization and functioning of the Constitutional Court are prohibited from being passed through emergency of ordinance, the USL has succeeded in limiting the independence of the rule of law through several measures:

1. The replacement of the People’s Advocate Gheorge Iancu (the Ombudsman) with a former counselor of the president Iliescu, Valer Dorneanu. The Romanian Ombudsman acts as an institutional filter that could stop the emergency of ordinance to impeach the president, as he has the right to notify the Constitutional Court to adjudicate on the constitutionality of laws of the government before their promulgation by the Parliament (Art. 146a Romanian Constitution 2003);

2. The replacement of the President of the Senate, Vasile Blaga (National Liberal Party) with Crin Antonescu. According to Art. 98 (1), the president of the Senate serves at the interim President (Constitution of Romania 2003). Hence through the successful suspension of President Basescu, and the replacement of Blaga, as of July 3rd 2012 Romania has a new interim president, the President of Senate, Crin Antonescu.

3. The replacement of Roberta Anastase, the President of the Chamber of Deputies.

4. The Romania’s National Ethics Committee has been disolved, while still debating charges of plagiarism against Prime Minister Ponta. Ponta has been accused of plagiarism  by a scientific journal, which claimed that more than half of his PhD thesis consists of copied pasted work.

Further, the removal of President Basescu occurred through an emergency ordinance, which changed Art. 10 of the Law 3/2000 on the referendum law, and loosened the impeachment procedures of the president. The previous provision of half plus one of all voters registered on permanent electoral lists has been changed to half plus one of those who are voting on the referendum day set on July 29, 2012 to be sufficient for a valid referendum.

On July 10, 2012 the RCC declared the decision  to impeach the president constitutional, but maintained the provision that half plus one of all registered voters on electoral lists (around 9 million voters) as valid, supporting the previous position, opening a gate for Basescu on July 29 2012 to become reelected. The RCC, while admitting the constitutionality of the removal of both presidents of the Parliament, Blaga and Anastase, defended its right to decide upon the constitutionality of the Parliament’s laws and ordinances by stating that “the legislative solution that excludes the Parliament’s decisions from the constitutional control and impacts on values and constitutional principles is unconstitutional”.

Is Romania following in Hungary’s footsteps?  According to Prof. Scheppele, as Ponta did not take over the presidency and the RCC yet, as opposed to Hungary, where the Constitution has been already rewritten and the institutions silenced, there is still a chance that the RCC will survive these attacks. There is no doubt, however, about the speed of the political crisis and the fact that the USL’s legislative proposals are severe violations of the Constitution. On the other side, the increasingly unpopular President Basescu considered an active veto-player in political battles is not at all uninvolved in the political crisis and in the fight over the institutions. The call for normality intensifies, as Romanian experts argue that the political struggle between the government and the opposition is causing massive damage to the quality of Romanian democracy and its international credibility as the constant institutional redesign and misuse of the judicial institutions for political purposes continues.

Anitta Hipper is a PhD candidate at the International Relations Department, University of Freiburg. 

A version of this post originally appeared in the Verfassungsblog, and it is reposted here with thanks. 

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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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Andrew Le Sueur: ‘Fun-loving guys’, government ‘doing anything that individuals do’ and the rule of law

In my administrative law lectures, I get students to practise an action that I explain ought to become instinctive in the minds of lawyers working for (or against) government. You extend your index finger and, in a sweeping movement, point to a law in the book in front of you, or on the library shelf, or on Westlaw, or wherever. As Mr Justice Laws said in Fewings, ‘For private persons, the rule is that you may do anything you choose which the law does not prohibit … But for public bodies the rule is opposite, and of another character altogether. It is that any action to be taken must be justified by positive law’.

Pointing at positive legal authorisation for an act of government is not always straightforward – and that is half the fun and challenge in studying administrative law. The ‘positive law’ may be implied; it may be unclear. The issue in Fewings was whether Somerset County Council could lawfully ban hunting on its own land (a decade before the Hunting Act 2004 put in place a national ban on hunting with dogs). There was some awkward scrabbling around for any statutory basis for local authority management of open spaces but the parties alighted on (and the judges agreed) that s 120(1)(b) of the Local Government Act 1972 was a good enough foundation, even though it was ostensibly about the acquisition rather than the on-going management of land for ‘the benefit, improvement or development of their area’. Laws J and the majority of the Court of Appeal held, for somewhat different reasons, that s 120(1)(b) did not enable a hunting ban on council-owned land. The council had mistakenly assumed it could act like a private landowner and had not applied its collective mind to the purposes or limits of the power conferred on it by s 120. The judgments were regarded as undemocratic by some.

Another complication in the finger pointing approach is s 111 of the Local Government Act, which gives local authorities ‘subsidiary powers’ to do anything ‘which is calculated to facilitate, or is or conducive or incidental to, the discharge of any of their functions’. This wriggle-room can’t be taken too far into things that are ‘incidental to the incidental’. If we had time in my lectures, we could go into the ‘wellbeing powers’ created by s 2 of the Local Government Act 2000 and the twists and turns that ensued from that.

My finger-pointing exercise will need a radical re-think for the 2012-13 academic year. Section 1 of the Localism Act 2011 came into force in February, several weeks earlier than anticipated as a government response to the High Court’s ruling that Bideford Town Council had no powers to allow Christian prayers to be said at the start of council meetings. Mr Justice Ouseley held ‘There is no specific statutory power to say prayers or to have any period of quiet reflection as part of the business of the Council’.

The situation is now different under s 1(1) of the 2011 Act, which says ‘A local authority has power to do anything that individuals generally may do’. This includes ‘power to do it anywhere in the United Kingdom or elsewhere’, ‘power to do it for a commercial purpose or otherwise for a charge, or without a charge’ and ‘power to do it for, or otherwise than for, the benefit of the authority, its area or persons resident or present in its area’ (s 1(4)). This general power ‘is not limited by the existence of any other power of the local authority which (to any extent) overlaps with the general power’ (s 1(5)).

At second reading of the bill that became the 2011 Act, Eric Pickles MP (Con), Secretary of State for Communities and Local Government, said:

‘The reason why the general power of competence is so important is that it turns the determination requirements on their head. All those fun-loving guys who are involved in offering legal advice to local authorities, who are basically conservative, will now have to err on the side of permissiveness. That is a substantial change …’.

The government believes that the formula used is judge-proof. Junior minister Andrew Stunell MP (Lib Dem) assured colleagues on the public bill committee ‘just how broad that power is’ and, thanks to subsections (5) and (6), the ‘courts will find it difficult – we have been advised that they will find it impossible – to unpick that’. Later he said, clarifying the intended reach of the new general power:

‘In the past, local authorities could only do things that were permitted to them by legislation. We are now inverting that and saying, “You can do anything that isn’t forbidden by legislation.” That does not mean that we are taking away the current forbidden territory and saying to authorities that they can go into the forbidden territory. It is not saying that they can abandon their statutory and legal duties that are imposed by existing legislation.’

The idea of a power of general competence (PGC) for local authorities is neither peculiarly English nor is it new.

For example, the pros and cons of a PGC were hotly debated a decade ago in New Zealand, where it was seen variously as a ‘coming of age’ for local authorities to be ‘responsive to local needs’ or ‘an unhindered invitation for small-minded politicians and bureaucrats to meddle and construct empires funded by the taxes of their passive citizens no longer protected by the check and balance that prescription provides’.

In England in 1967, the Maud committee report on the management of local government recommended a PGC. The report argued ‘ultra vires as it operates at present has a deleterious effect on local government because of the narrowness of the legislation governing local authorities’ activities. The specific nature of legislation discourages enterprise, handicaps development, robs the community of services which the local authority may render, and encourages too rigorous oversight by central government. It contributes excessive concern over legalities and fosters the ideas that the clerk should be a lawyer’ (para 283). Forty-three years on, similar sentiments led to the promise of a PGC as a promise in the Coalition Government’s agreed programme.

So far as I can see, the introduction of the PGC for local authorities has sparked very little constitutional concern or even interest in England. There was, for example, no report from the House of Lords Constitution Committee drawing attention to the implication of a PGC for the rule of law. Debate on the bill leading to the Localism Act 2011 was rarely couched in constitutional terms. Why so? I have two suggestions.

First, in the UK there is a general lack of interest in local government from a constitutional standpoint. This seems to be the first post on this blog focusing on local authorities. In law schools, local government has squeezed off the syllabus of most undergraduate public law courses degrees by the Human Rights Act, devolution and Europe. It’s also noteworthy that the House of Lords Constitution Committee has never tackled central-local relations, or local government in and of itself, in an inquiry.

Second, it is possible that the PGC is less constitutionally and legally significant than at first sight it appears to be. In 1967, Maud committee report did consider the constitutional implications of its recommendation to create a PGC. The report sought to reassure the ‘fun-loving guys’ in local government: ‘the modification we propose would not mean that local authorities would cease to be subject to the rule of law. The supremacy of Parliament is not in question. Nor are we advocating the abolition of the doctrine of ultra vires for local authorities would still have to work within the statutes. They would continue to have statutory duties and limitations imposed on them and permission powers granted to them, and their governmental and coercive powers would be regulated by law’ (para 284). Some commentators, looking at the version of a PGC contained in the Localism Act 2011, have sought to downplay the scope of councils’ room for manoeuvre. For example, Tim Kerr QC argues that ‘the usual public law constraints (rationality, relevant considerations, procedural fairness, disregard of irrelevant considerations)’ would apply ‘to exercise of the power of general competence, even though an “individual” in the private sphere is not subject to them’. Sections 2 and 3 of the 2011 Act also needs to be considered: the former defines ‘boundaries of the general power’ (in particular, that the PGC doesn’t override express prohibitions of local government action contained in the statute book) and the latter ‘limits on charge in exercise of general power’. To this can be added the controlling force of ‘constitutional legislation’ such as the Human Rights Act 1998 and the Equality Act 2010. Clearly, the 2011 Act does not do away with the idea the local authorities are creatures of statute subject to the constraints of ultra vires.

The truth of the matter is that we do not yet know what councils will do with the PGC. In June 2011, the House of Commons Communities and Local Government select committee, in their report on localism, called on the ‘Government work with the Local Government Association to set out examples of specific ways in which the general power of competence will enable local authorities to extend their role beyond that conferred by the well-being powers.

However the power is used something of significance affecting the rule of law has been brought about by s 1 of the Localism Act. As Laws J explained in Fewings, ‘The rule [that any action by a public body must be justified by positive law] is necessary in order to protect people from arbitrary interference by those set in power over them’. Section 1 is ‘positive law’ but of such breadth that it looks as if it will largely be down to the political constitution to shape its use; that, at least, is the Government’s goal. Whether a revitalised local politics is up to the job remains to be seen.

Andrew Le Sueur is Professor of Public Law at Queen Mary, University of London and co-convenor of the UK Constitutional Law Group.

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Douglas Edlin: Executing the Laws

Lethal Force and Legal Process

According to Article II, Section 3 of the US Constitution, the President of the United States must “take care that the laws be faithfully executed.”  In a speech delivered earlier this month, Eric Holder, the Attorney General of the United States, offered a legal defense of actions taken by the United States government to kill American citizens living abroad who pose an imminent threat to US national security.  In the speech, Attorney General Holder explained the Obama Administration’s approach to the identification, detention, and prosecution of suspected terrorists.  Holder also explained that, in certain circumstances, the United States must use lethal force rather than the legal process to combat the threat of terrorism.  Here is a brief excerpt:

[J]ust as surely as we are a nation at war, we also are a nation of laws and values.  Even when under attack, our actions must always be grounded on the bedrock of the Constitution – and must always be consistent with statutes, court precedent, the rule of law and our founding ideals . . . Some have argued that the President is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al Qaeda or associated forces.  This is simply not accurate.  “Due process” and “judicial process” are not one and the same, particularly when it comes to national security.  The Constitution guarantees due process, not judicial process.

After reading this, my immediate thought was:  is that correct as a statement of US law?  And a thought that occurred to me shortly thereafter (with this blog and its readership in mind) was: would this be an accurate statement of UK law?

What Process is Due?

The fundamental requirements of due process are adequate notice and a fair hearing.  The US government may not deprive someone of his life, liberty, or property without first advising him of the claims against him and providing him an opportunity to defend against those claims before an impartial decision maker.

On this understanding of due process, a judicial hearing is not always required.  In the US, as in the UK, administrative agencies and other non-judicial bodies often conduct hearings in which competing claims are resolved and rights are enforced.  This satisfies due process in the absence of a judicial process.

But this does not really respond to Holder’s argument.  The question is whether the government can bypass a judicial process where an American citizen is suspected of “levying War” against the United States, or “in adhering to their [those of the United States] enemies, giving them Aid and Comfort.”  The problem for Holder is that Article III, Section 3 of the United States Constitution specifically anticipates the threat to national security posed by treason and explains how citizens suspected of treason must be treated by the government: “No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”

The reference to “open court” in Article III, Section 3 seems to indicate that the process that is due to a citizen accused of treason is a judicial process.  It is a hearing in court.  The reference to a person being “convicted of treason” (and the placement of this language in Article III) establishes this as a power held solely by the judiciary.  In fact, in Marbury v. Madison, Chief Justice John Marshall noted that this specific “language of the constitution is addressed especially to the courts.”  The courts alone have the power to convict defendants of crimes, and treason is the only crime defined by the US Constitution.

This reading is consistent with the US Supreme Court’s decision in Hamdi v. Rumsfeld, 542 U.S. 507 (2004).  In Hamdi, the US government claimed the authority to detain US citizens indefinitely without a hearing.  Although the majority and dissenting justices disagreed about the specifics of the process, they agreed that, at a minimum, due process required the government to give Hamdi notice of its claims against him and an opportunity to contest these claims before “a neutral decisionmaker.”  The majority believed that this neutral decision maker could be a military tribunal or a federal court.  In dissent, Justice Scalia (possibly the most ideologically conservative member of the Court at this time) and Justice Stevens (perhaps the most liberal) concluded that only a federal court hearing would meet the requirements of the Constitution:

“Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime . . . The gist of the Due Process Clause, as understood at the founding and since, was to force the Government to follow those common-law procedures traditionally deemed necessary before depriving a person of life, liberty, or property.”

Holder’s claim that the US government may kill a US citizen in the absence of any judicial process seems inconsistent with his reassurances that the United States government may act, even in the fighting of a war, only in a manner consistent with “the rule of law and our founding ideals.”  In her opinion for the plurality in Hamdi, Justice O’Connor was careful to emphasize that “it is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.”  Justices Scalia and Stevens expressed their understanding of the relationship between the rule of law and the founding ideals of the US in this way: “The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.”

The Hamdi Court held that the US government cannot unilaterally and indefinitely detain a US citizen.  Some judicial process is required to ensure that the requirements of due process are maintained when the US government deprives someone of his liberty.  It would seem that the same process would be needed when the US government intends to deprive a US citizen of his life.

Traitors pose a unique threat, but not an unanticipated one.  In their rejection of shared values and in their access to protected locations and information, their betrayal undermines the security of our lives and our beliefs.  These threats were well known to the authors of the US Constitution.  That is why the language of Article III, Section 3 exists.

A Shared Tradition

In adverting to “our constitutional tradition” in Hamdi, Justice Scalia was referring quite specifically to the Anglo-American constitutional tradition.  The language of Article III, Section 3 itself is adapted from the Treason Act of 1351 (levying war, adhering to enemies, and giving them aid and comfort) and the Treason Act of 1695 (requiring a trial and the evidence of two witnesses to the same act).  In his Hamdi opinion, Justice Scalia includes references to the Statute of Treasons, the Habeas Corpus Act of 1679, and several English cases from the seventeenth and eighteenth centuries.

Is Justice Scalia’s understanding of our constitutional tradition accurate?  If Eric Holder were speaking about British policy, would due process require a judicial process in the UK?  I think the answer is yes.

The argument has been made frequently since 11 September 2001, at least in the US, that evidence of potential terrorist threats may be extracted from detainees through torture (or “enhanced interrogation,” or “degrading treatment,” or whatever one may choose to call it).  In the UK, the courts have refused to accept this argument.  In A v. Sec. of State for the Home Dept. (No. 2), [2005] UKHL 71, the House of Lords reaffirmed the common law prohibition against the use in court of any evidence obtained by torture.

Even more recently, in R (on the application of Mohamed) v. Sec. of State for Foreign and Commonwealth Affairs (No. 2), [2011] QB 218, the Court of Appeal was asked to consider the scope of the prohibition against torture in relation to the principle of “open justice.”  As Justice Scalia did in Hamdi, the Court of Appeal referred to “our shared traditions.”  In Mohamed, the Court was particularly concerned with a court’s obligation to explain the reasons for its decision:

“The public must be able to enter any court to see that justice is being done in that court, by a tribunal conscientiously doing its best to do justice according to law . . . [T]he principle of open justice represents an element of democratic accountability, and the vigorous manifestation of the principle of freedom of expression.  Ultimately it supports the rule of law itself.  Where the court is satisfied that the executive has misconducted itself . . . all these strands, democratic accountability, freedom of expression, and the rule of law are closely engaged.”

If Holder were describing British policy, it seems almost inarguable that due process would require some judicial involvement.  As with Hamdi and detention, if the rule of law and British constitutional principles prohibit the British government from torturing individuals suspected of terrorism (or using evidence obtained through torture against suspects), it is difficult to imagine that those same constitutional principles could permit the British government to kill individuals suspected of terrorism without any legal accountability in a judicial forum.

Where an individual claims that the government has violated his fundamental rights, due process requires a judicial process.  The notion that the government may violate the law in the course of executing the law – whether that is in the detention of suspects, the use of torture to obtain evidence, or the summary execution of criminals – fundamentally contradicts the principle that the government is limited by the law.  In our shared constitutional tradition, claims that the executive has violated the law are heard in court:

[T]he English conception of the rule of law requires the legality of virtually all governmental decisions affecting the individual to be subject to the scrutiny of the ordinary courts . . . The rule of law rightly requires that certain decisions, of which the paradigm examples are findings of breaches of the criminal law and adjudications as to private rights, should be entrusted to the judicial branch of government.  This basic principle does not yield to utilitarian arguments that it would be cheaper or more efficient to have these matters decided by administrators.  (Begum v. Tower Hamlets London Borough Council, [2003] UKHL 5, per Lord Hoffmann)

 The question remains whether and how the UK and US governments can protect their citizens by pursuing terrorist elements and threats in a manner that is consistent with our constitutional tradition.  Maybe it is more difficult for constitutional democracies to fight terrorists.  Maybe that is because what we are fighting for actually makes the fighting more difficult.

Traitors and Terrorists

Benedict Arnold received a trial.  So did Guy Fawkes.  So did John Walker Lindh.

According to Nils Melzer, Targeted Killing in International Law, Britain shifted its police policy after 11 September 2001 to a “shoot-to-kill” approach in certain instances of imminent threats of terrorist violence.  Of course, this is quite different from drone attacks against citizens on foreign soil.  The tragic shooting of Jean Charles de Menezes can be distinguished from the killing of Anwar al-Awlaki in many ways.  One distinction is that al-Awlaki was a US citizen and de Menezes was not a British citizen.  A second distinction is that de Menezes was killed on British soil and al-Awlaki was killed in Yemen.  And another distinction is the activity each man was engaged in immediately prior to his death.  The challenge is to decide which distinctions matter, and which do not, when considering how the UK and the US can combat terrorism without allowing the rule of law to become a casualty of that war.

It is easy for the government to say that it cannot wait when a terrorist is located.  It must act before that individual escapes from view and has the opportunity to plan or carry out an attack against the UK or the US.  It is easy for the government to say that it cannot conduct a trial of a citizen who has taken up arms against his nation.  It has to fight the war first.  But if the threat of terrorism means that the goal must be killing a citizen rather than trying him, even though trying him is what we have done in the past, the principles of law must still control the government.  Not just the principles of the law of war, but the principles of the law of the constitution.  There must be a process by which the rights of that person are considered along with his military value as a target.

This might not be as daunting as it seems.  The judges of the US Foreign Intelligence Surveillance Court have for decades reviewed ex parte requests by the government for permission (or occasionally retroactive approval) to conduct covert surveillance operations in the US.  Congress could create a separate court similar in composition and procedure to the FISC, or amend the Foreign Intelligence Surveillance Act to empower the FISC itself, to permit expedited review of government requests to engage in targeted killing.  The court would be able to review the basis for the government’s claims of imminent threat, the target’s involvement, and satisfaction of the principles of necessity, distinction, proportionality, and humanity, which govern the use of force in war (and which Holder discussed in his speech).  Although this would not provide the traditional judicial hearing envisioned by due process, it would provide judicial involvement in determining the legality of the government’s actions as well as some independent consideration of the rights and interests of the individual involved.

In his speech, Holder claimed that the US will not target one of its citizens without first engaging in “a thorough and careful review.”  Holder also said that the President is not “required to get permission from a federal court before taking action.”  But when the action the President is contemplating is intended to take the life of an American citizen, the Constitution prohibits the government from taking that action without due process.  And in the famous phrase of Justice Brandeis in Crowell v. Benson, 285 U.S. 22 (1932):  “under certain circumstances, the constitutional requirement of due process is a requirement of judicial process.”  The government’s first effort should always be to capture a citizen warring against his nation, and to try him in court, for treason or another crime.  Where that truly is not an option, however, an alternative judicial process, such as the FISC, must be invoked to ensure that lethal force is never substituted for legal process by a government limited by law.

The United Kingdom and the United States must be able to defend themselves from the threats of terrorism, and from the threats of treason.  However unprecedented the threats of terrorism may be, the threats of treason are not new.  For hundreds of years, the UK and the US have used judicial processes to try those accused of betraying their nation.  In a nation of laws and values, it seems impossible to reconcile indefinite detention and torture with due process.  There may be a need for targeted killing.  But a nation cannot defend its principles by violating them.  The shared tradition of the UK and the US requires some judicial process by which the actions of the executive in conducting the war on terrorism may be evaluated according to the principles of Anglo-American constitutionalism.

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

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