Tag Archives: statutory interpretation

Natasha Simonsen:Government cannot use a ‘statutory back door’ to implement major changes to legal aid services, Divisional Court says

MatricIn a judgment released yesterday a Divisional Court unanimously struck down the government’s attempt to introduce a residence test for eligibility for legal aid, finding it incompatible with the objective of the Legal Aid, Sentencing and Punishment of Offenders Act (‘LASPO’). The ratio of the judgment was that the residence test had been introduced via an amendment to the schedule in the Act (that is, via subsidiary legislation) that was not compatible with the objective of the primary legislation. While that sounds like a rather technical decision, it has important ramifications for democratic accountability. It means, in essence, that if the government wants to make such a drastic change as this, it will need to do so via an amendment to the Act itself, with the full Parliamentary debate that that would entail. The case is also interesting because of the two rights-based grounds that were argued before it. The first, that the introduction of a residence requirement violated the fundamental right of access to a court, the court declined to engage with. The second was that residence was not a lawful ground for discriminating in the provision of legal aid between equally meritorious claims. The court accepted this claim, but apparently in obiter dicta, since only the statutory construction point was strictly required to reach the outcome.

The ratio of the judgment

Lord Justice Moses (with whom Mr Justice Collins and Mr Justice Jay agreed) held that the introduction of a residence requirement as an amendment to Schedule 1 of LASPO was ultra vires because it was not compatible with the Act. The court identified the objective of the primary legislation as being to provide legal aid to those with the greatest need. The amendment, in contrast, had ‘nothing to do with need or an order of priority of need. It is, entirely, focused on reducing the cost of legal aid’ [43]. This violated the principle that subsidiary legislation must ‘serve and promote the object of the statute’ [40].

This is important because secondary legislation does not face the same degree of scrutiny in the Parliament as does primary legislation. While primary legislation needs to be approved by a majority of votes in both Houses of Parliament, and receive Royal Assent by the Queen, secondary legislation can be either negative or affirmative. If the former, the instrument becomes law without a debate or vote but can be annulled by a contrary resolution in the Parliament. If the latter, both Houses of Parliament must expressly approve them. The respondent government had argued that, since this amendment took the form of an affirmative instrument, it had received the imprimatur of the Parliament. Notwithstanding that, the Divisional Court found that was not enough because, ‘on a true construction of the statutory powers in their context, no power to introduce such a measure can be found’ [48]. The court’s ruling reaffirms the constitutional principle that the government cannot use the means of subordinate legislation as a ‘statutory back door’ [46] to ‘widen the purposes’ of legislation that has been passed by the Parliament [40]. Changes this big need to be brought through the front door.

The residence requirement, if upheld, would have limited legal aid to those who could demonstrate ‘a meaningful connection with the UK’, unless they could demonstrate eligibility elsewhere in the legislation. Yesterday’s judgment does not foreclose the possibility of that restriction being introduced in the future. But the Court’s intervention puts the onus on the Parliament to consider and evaluate the purpose of legal aid in the UK and the objectives that LASPO aims to serve. If the legal aid is to be subjected to the pursuit of goals other than giving help to those in greatest need, then those objectives need Parliamentary approval in the form of primary legislation.

Thus, in some ways the court’s decision handballs the question back to the legislature. But the terms of any future legislative debate will no doubt be framed by the discussion of the issues in the judgment. The court discussed some powerful examples, such as P, a severely disabled adult who was starved, beaten and forced to live in a dog kennel by his mother and brother. Yet, for various reasons, it would have been impossible to prove that he had been lawfully in the UK for a continuous period of 12 months at some point in the past, and thus he would not have satisfied the proposed residence requirements. It is hard to see how depriving a person in P’s circumstances of legal aid could meet the Ministry of Justice’s specified objective of ‘targeting legal aid at the most serious cases which have sufficient priority to justify the use of public funds.’

It remains to be seen whether the government will appeal the court’s decision, or introduce amended legislation to the Parliament. Either way, the judgment has forced a fuller engagement with the question of the purpose that the provision of legal aid serves in England and Wales. This is democratic dialogue—and a culture of justification—in action.

Rights-based argument one: access to courts

The questions that the court did not decide may be almost as important as the questions that it did decide. The Public Law Project had also argued that the power contended for by the Lord Chancellor would violate the fundamental right of access to a court. But Moses LJ declined to engage with this argument, stressing that his reasoning was ‘confined to the construction of the powers that [the statute] confers’ [50]. In another passage, however, His Honour hinted at the problems that might arise in future, saying that ‘it might have been possible to draft primary legislation (I say nothing about its legality) which has the broader ambition of cutting the cost of legal aid by permitting the Lord Chancellor to adopt criteria irrespective of need…’ [45]. This foreshadows a debate which is highly likely to arise in any future legal proceedings.

The Divisional Court might be engaging in a spot of careful judicial diplomacy here. At a time when tensions are running high over the UK’s future in the European Convention system, it may not come as a surprise that the judgment turned on a narrow question of statutory construction rather than the implications of the measure for the Article 6 ECHR right of access to a court. Moreover, throughout the judgment Moses LJ referred obliquely to ‘vindicating rights’ [75] or ‘fundamental rights’ [47], [50], preferring to avoid specific reference to Convention rights or Convention case law. In this language choice, was the Court cleverly hinting here that the right of access to a court is no less entrenched in English and Welsh common law than in ECHR jurisprudence?

Rights-based argument two: discrimination

Interestingly, having reached a decision that turned on a question of statutory interpretation, and then having declined to deal with the argument based on access to justice, the Divisional Court went on to consider a third argument raised by the applicant. The judgment went on to hold that residence would not be a lawful ground for discriminating between the provision of legal aid in equally meritorious cases. This part of the judgment will no doubt provide fertile ground for equality lawyers, and has been discussed at length here and here. Rather confusingly, given that it does not appear to be part of the ratio, Moses LJ described the discrimination argument as the applicant’s ‘essential complaint’ [51]. The discussion of residence as a basis for distinguishing between worthy claimants builds on (without expressly citing) the House of Lords decision in the Belmarsh case, striking down detention of foreign nationals on the basis that the measure was not rationally tailored to the objective.

What appellate courts will make of this judgment, and how the government will respond, remains to be seen.

 

 Natasha Simonsen is a Stipendiary Lecturer in Law at St Anne’s College, Oxford .

(Suggested citation: N. Simonsen, ‘Government cannot use a ‘statutory back door’ to implement major changes to legal aid services, Divisional Court says’ U.K. Const. L. Blog (17th July 2014) (available at http://ukconstitutionallaw.org/).

 

 

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Mark Aronson: Statutory Interpretation or Judicial Disobedience?

MarkIn Australia as in England, courts began “reading down” legislative grants of broad and seemingly unfettered discretionary power long before the currently fashionable “principle of legality” entered the public lawyer’s lexicon. Judges typically explained themselves as merely engaging in an exercise of statutory interpretation, saying that in the absence of express words or an absolutely necessary implication to the contrary, they could not believe that Parliament intended to override fundamental principles, rights, or freedoms. Legislative drafters, they reasoned, were well aware of this interpretive approach, and could always respond with clearer language.

The only real novelty of the principle of legality was to add a “democratic” justification to the judicial claim of disbelief; any government seeking such an untoward power should be forced to ‘fess up to the Parliament, and face the political music. But if the actual intentions of the legislators were determinative, then both the curial expression of disbelief and the more recent democracy-forcing justification would be entirely unconvincing. Government can state its intention with absolute clarity and transparency, but to no avail if the statutory text itself leaves any loophole; what counts is statutory meaning, not legislative intent. In every case considered below, the government’s actual intentions could not have been clearer, nor more clearly stated during the Bill stages.

None of this would strike English readers as particularly noteworthy, although they might consider it further grist to the mill of the perennial debates about the limits (if any) to Parliamentary supremacy. The UK Supreme Court and its predecessor have occasionally suggested the possibility of outright disobedience to legislation threatening the rule of law itself, the usual instance being a privative clause so clearly drafted as to leave no wriggle-room whatsoever. For the moment, however, the UK Parliament has not tested the judicial mettle. Australian parliaments pushed the issue considerably further, but they have surprisingly little to show for their efforts. Indeed, they may well be playing with fire. Australia’s judicial review jurisdictions are constitutionally entrenched, and legislative attempts to get around that might end up nudging the courts beyond a judicial review jurisprudence focused primarily on good process, to a review that is overtly more substantive.

The story starts with privative clauses, which in Australia have long gone much further than the Anisminic Act’s exclusion of certiorari. Working around “no certiorari” clauses was always easy, because they could be read down to apply only to certiorari for non-jurisdictional errors of law, a work-around that English courts might now find slightly more difficult in light of their decision that all errors of law are reviewable for invalidity. However, Australian privative clauses went further, banning judicial review remedies (such as prohibition and mandamus) that were only ever available to overturn decisions or conduct that were invalid. For more than 60 years, the High Court adopted a convoluted, interpretive approach to privative clauses (see R v Hickman; Ex parte Fox and Clinton (1945) ).  As an exercise in interpretation, it was scarcely convincing, but at least it applied to both federal and State Acts, in an era when everyone had assumed that the judicial review powers of the State courts were not entrenched. That assumption has now been overturned by a decision with a dubious historical premise that nevertheless led to a result that everyone has welcomed.  Now that the interpretive approach to privative clauses is no longer needed, the High Court’s approach is much more straight forward – they can never diminish judicial review for “jurisdictional error”.

Shortly after the High Court had gutted a federal privative clause, it did the same to a limitation clause that had failed to allow the court the discretion to extend a strict statutory deadline for seeking judicial review.

With privative clauses and limitations clauses now being a waste of ink, attention is now turned to whether legislatures can use other methods to exclude some, or even all, of the basic tenets of judicial review. In all probability, the fight is still in its infancy, but it is producing some surprising results.

The common law’s procedural fairness requirements are famously indeterminate, but they did not start causing serious problems for the immigration bureaucracy until the mid-1980s. That was when the High Court expanded the protective reach of natural justice beyond legal rights to “legitimate expectations”, an expansion designed to accord fair process to migrants with no legal rights whatsoever to stay in the country. Natural justice challenges flourished, and immigration ministers responded by trying to replace the common law rules of procedural fairness with a statutory code of procedure. Their first attempt was to insert into the Act a very detailed set of procedures, supplemented by two novel features. The new procedures themselves came with a new sub-heading, namely:

Code of procedure for dealing fairly, efficiently and quickly with visa applications.

Further, they included a provision that a Minister who

deals with a visa application in a way that complies with [the new procedures] … is not required to take any other action in dealing with it.

The court acknowledged that the Minister had told parliament that his amendments would replace the common law’s natural justice requirements, but what counted was the meaning of the statutory text itself, which in this case did not actually say that it supplanted the common law.

The parliament responded by adding sections declaring that various procedural provisions were to be

taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters .. [dealt] with.

The High Court found two loopholes in that one. In 2010, the court said that the new procedures did not deal with visa applications made from abroad, with the surprising result that even though foreign-based applicants had no access to tribunal reviews, they did get some procedural protections denied to applications made within Australia.

The court went even further this year, in Minister for Immigration v Li. It struck down a migration decision because the tribunal had given no good reason for refusing to delay the hearing to give the appellant time to organise proper evidence of her work qualifications. The tribunal had forced on a hearing when it appeared fairly clear that a gap in the appellant’s documentation had been the fault of another government agency, and was in the process of being remedied.

The Li tribunal had a specific power to grant the adjournment request, but because the Act was silent on how to treat (ie, “deal with”) such requests, French CJ said that it had no procedure to supplant the common law’s natural justice requirements for dealing fairly with adjournment applications. That loophole might have been a step too far for the other judges; in any event, they chose not to explore it. Instead, they said that requirements of natural justice, “reasonableness”, and “rationality” overlap, and that even if (although this was not decided) the Act supplanted the common law’s natural justice, the tribunal had nevertheless to act reasonably or rationally in everything it did (French CJ also gave this as a reason for granting judicial review).

By itself, Li‘s manipulation of the labels was no great surprise, because the court has form in outflanking a statutory ban of one ground of review by using another ground in its stead. But in a decision that will have government lawyers pondering for some time, Li did much more than that.

Wednesbury unreasonableness was until Li the last card in an Australian lawyer’s pack – a plea for desparate counsel. In stark contrast to the English position, the Australian version of Wednesbury unreasonableness virtually required the challenged decision to have been so unreasonable that it was almost lunatic. Until Li, the fear was that anything less demanding would see Wednesbury slide inexorably into “merits in drag” (The epithet comes from New Zealand (Powerco Ltd v Commerce Commission at [24], but it has resonated in Australia, eg: Real Estate and Business Agents Supervisory Board v Carey at [58]). The court had been comfortable with the “process” grounds of judicial review, but distinctly uncomfortable with anything verging on a substantive, or qualitative, review ground.

Li now tells us that a decision need not be totally mad to be reviewable for unreasonableness, and without deciding whether “disproportionality” might become an acceptable review ground in its own right, it added that disproportionality is a good indicator of unreasonableness (at [30] and [72]-[74]). Just how unreasonable or irrational a decision must be before it will be reviewable for Wednesbury unreasonableness will vary between statutory contexts (at [67]), but it need not be mad:

The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision – which is to say one that is so unreasonable that no reasonable person could have arrived at it … (at [68])

The paradox is that this latest round of tightening the migration legislation’s procedural requirements has pushed the High Court into frankly substantive review. This might be only at the margins, but it was something the court had previously denied doing. Even Kirby J had once claimed (at [132]) that a court reviewing for serious irrationality or illogicality was looking only at process (namely, a reasoning process), rather than assessing the quality of the impugned decision.

Less than a month after the Li decision, Hayne J hinted at even further difficulties for governments seeking to limit judicial review of migration decisions (at [85]-[88]).  His Honour revived an opaque warning that the court had delivered more than a decade before (at [101]), in response to a government argument that the Act could be amended to grant the Minister plenary power over all non-citizens. The argument was that the parliament could stipulate that no breach of its requirements, nor any breach of common law requirements, would result in invalidity – in effect, that the entire Act was comprised of merely “directory” provisions. The odds of parliament actually doing that must be fairly remote, because governments themselves sometimes apply for judicial review, seeking to bring tribunals or agencies back into line. But the court’s warning is to the effect that this might not even be a “law”, because laws need to have some determinate content.

How things have changed. One can well understand a judicial distaste for the idea of an Act granting the Minister plenary discretionary power over aliens, but it is quite remarkable to threaten to strike down such an Act on the basis that it would not really be a law. Canberra’s first immigration Act ran for a mere 7 pages, which gave the Minister sufficient discretionary power to sustain the administration of a racist White Australia Policy. Almost 60 years later, and the replacement Act was still only 36 pages long, and its core was still a small group of sections granting virtually plenary power to the Minister. The Act’s first massive expansion did not occur until 1989 (when it grew by slightly more than 100 pages). It is now in two volumes totalling nearly 850 pages, and there is no sign of it getting any shorter. Is the court really suggesting that an Act without this level of detail is not a real law?

Mark Aronson is Emeritus Professor at the Law Faculty, University of New South Wales.

Suggested citation: M. Aronson, ‘Statutory Interpretation or Judicial Disobedience?’  UK Const. L. Blog (1st June 2013) (available at http://ukconstitutionallaw.org).

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

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

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

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

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

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

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

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

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

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Richard Ekins: Rights-consistent interpretation and (reckless) amendment

RichardEkins_profileDiscussion about s 3 of the Human Rights Act 1998 (HRA) tends to focus on the scope of s 3(1).  My interest in this post is in 3(2)’s direction that the section “applies to primary and subordinate legislation whenever enacted”.  I suggest that this decision to extend s 3 to statutes whenever enacted amounted to an uncertain and reckless amendment to the statute book (that is, to all statutes in force at the time the HRA came into effect in October 2000).

What “it is possible to do” under s 3(1) may be quite different in respect of pre and post-HRA statutes.  For statutes enacted after the HRA, the section grounds a strong presumption that Parliament intends to legislate consistently with the ECHR.  For statutes enacted before the HRA, at the time the enacting legislature acted there was no such (strong) presumption; indeed, the legislative act might well predate the ECHR, perhaps by several centuries.

If one presumes that Parliament does not intend to change the law in an unclear fashion, one might reason that in respect of pre-HRA statutes, s 3 directs judges to resolve any open interpretive question in favour of a rights-consistent interpretation, but not otherwise to overturn or change any settled interpretive judgment.  This would be all that it was “possible to do” when the enacting legislature had not acted in light of a strong presumption of conformity to the ECHR.  On this view, enacting s 3 would not change the statute book as it stood at October 2000.  However, the courts have never questioned that Parliament intended s 3 to change the meaning of pre-HRA statutes.  What argument there has been about the temporal scope of s 3 has concerned whether the new meanings its application warrants apply to actions and events taking place before the HRA’s commencement.  The judicial answer, in due course, was that they do not.  It has been common ground throughout the case law that the enactment of s 3 overturns or changes what were otherwise clear, unambiguous meanings prior to the HRA’s commencement.

There were reasons for this strong conclusion.  The section extends to statutes whenever enacted, without any qualification such as “unless the context otherwise demands”.  Qualifications of this kind are common to Interpretation Acts, which apply to statutes whenever enacted but which do not purport to amend them.  An Interpretation Act sets out a partial interpretive regime relevant to every statute, which may overturn unsound interpretive methods (say, literalism) and settle otherwise open questions, but does not purport to change the object of statutory interpretation or to change what statutes have always meant.  Having said this, one might think that in respect of s 3 any such qualification would have been redundant because the section already refers to what may be “possible”, plainly implying that not everything is possible.  Nonetheless, there are strong reasons to conclude that s 3 was intended to change the meaning of pre-HRA statutes.  The point of the HRA was to help bring the United Kingdom into line with the ECHR, understood as a body of international law authoritatively interpreted by Strasbourg, and hence to avoid the embarrassment of Strasbourg challenge.  The legislature may well have intended to change the meanings of pre-HRA statutes by extending the application of s 3 to statutes whenever enacted.  Thus, Parliament acted to amend the statute book to this extent.

It was of course open to Parliament to amend the statute book in this way.  But it was a reckless use of legislative authority.  Parliament in 1998 amended every statute to the extent of its inconsistency with the ECHR, as authoritatively interpreted by Strasbourg, subject to the limits of what was ‘possible’ under s 3(1).  It did not promulgate the law as amended.  Indeed, it did not consider the reasons for each amendment that it made and it did not choose each amendment.  Instead, it chose an indistinct set of amendments, the content of which was not open to it, considered by it, or chosen by it.  The legislators may have assumed that the United Kingdom was largely in conformity to the ECHR, so that very few legal changes would be required.  Any such assumption was irresponsible.  The legislature should grasp the content of the legal changes that it makes before it makes them.  To do otherwise is to fail to exercise its authority in response to reasons.  It is hard to imagine a less responsible legal act then to amend every statute by means of an opaque formula (the obscure s 3(1) taken together with the vague ECHR and often unstable Strasbourg jurisprudence) when one has no way of knowing, and has shown no inclination to discover, precisely how one is changing the law.

This analysis is relevant to the question of how Parliament should go about amending or repealing s 3.  If Parliament were to decide that s 3 (as interpreted) is unsound – because inimical to the rule of law say – it might choose to repeal the provision outright or to replace it with an alternative formulation.  The repeal of s 3 would revive the interpretation of pre-HRA statutes, which the enactment of s 3 had otherwise displaced.  This would be a relatively clear change and it would be open to Parliament to consider the law it would be acting to make by such an action and to choose it responsibly.  Still, for the choice to be responsible it would have to be preceded by careful deliberation about the substance of the relevant changes, for there might be good reason, in some or many cases, to preserve the post-2000 interpretation, notwithstanding the abrogation of s 3.  If such were the choice then that lawmaking choice ought to be given clear statutory effect, which would require detailed textual amendment on point.  Thus, repealing s 3 would be no simple legislative act: the rule of law would call for careful, extended thought and then precise, comprehensive action.

The repeal might be taken also to change the meaning of post-HRA statutes, removing the interpretive direction that grounds the (often surprising) interpretations of those statutes.  Alternatively, one might reason that those interpretations were grounded in inference about the intent of the enacting legislature, such that repeal of s 3 ought not to undermine that inference in respect of statutes already enacted (plainly it would remove the grounds of the inference for subsequent statutes).  Any repeal ought to settle this point clearly.

Amending s 3 to introduce some new formulation (say the choice of words in s 32 of the Charter of Rights and Responsiblities Act 2006 (Vic)) might have the same effect as outright repeal (it would depend on the terms of the new formulation) or it might substitute for s 3 some intermediary, alternative rule.  In the latter case, the amendment would change the existing statute book in ways that would be difficult to predict.  This would go the wisdom of amendment rather than repeal, for it may be that the legal consequences of the former are too opaque to undertake responsibly.  Also, at the very least and in sharp contrast to the enactment of the HRA itself, in making any such change Parliament ought to enact a detailed transitional scheme to avoid (or at least minimise) confusion.

Interestingly, s 6 of the New Zealand Bill of Rights Act 1990 (NZBORA), which was in some ways the precursor to s 3 of the HRA, is silent on the question of whether it applies to statutes enacted before the NZBORA.  Yet the courts have never questioned that it does so apply and indeed in some cases, notwithstanding their rejection of the relevant HRA jurisprudence, have been open to understanding the NZBORA’s enactment to amend those past statutes – an amendment which is, as I say, imprecise, unclear and irresponsible.  Contrast s 4 of the Interpretation Act 1999 (NZ), which provides explicitly that the Act applies to enactments whenever enacted unless the enactment provides otherwise or its context requires a different interpretation – a formulation which is intended to disavow any intention to change the law by changing (rather: restating) some interpretive “rules”.  The Interpretation Act acknowledges what the NZBORA and HRA do not, namely that acting to change the meaning of a statute is to amend it, and amendment should not be haphazard.

Richard Ekins is a Fellow of St John’s College, Oxford.

Suggested citation: R. Ekins ‘Rights-consistent interpretation and (reckless) amendment’ UK Const. L. Blog (24th January 2013) (available at http://ukconstitutionallaw.org)

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Tarun Khaitan: The ‘constitution’ as a Statutory Term

Constitution. A word that readers of this blog use and encounter frequently in academic, judicial and political discourse. It is one thing, however, for academics, politicians, or even judges to invoke ‘the constitution’, quite another for Parliament to do so in legislation. As that (other) great jurist Salmond once explained, unlike judgments, ‘one of the characteristics of enacted law is its embodiment in authoritative formulae. The very words in which it is expressed—the litera scripta—constitute part of the law itself.’ To use Salmond’s metaphor, ‘Case law is gold in the mine—a few grains of the precious metal to the ton of useless matter—while statute law is coin of the realm ready for immediate use.’ For this reason, words are usually employed in statutes with great care. On their precise meaning and scope—as determined by judicial interpretation—hang significant legal rights and duties.

With able research assistance from Mr Tom Pascoe who helped filter out hundreds of other uses, I have found the following statutory references to the term ‘constitution’ or its cognates which use the term to signify the British constitution (or the constitutions of England or Scotland, before the political union of these countries).

1. In the short title of the statute:

      – Constitutional Reform Act 2005

      – Constitutional Reform and Governance Act 2010

2. In the Preamble/Introductory Text:

            – Coronation Oath Act 1688

            – Claim of Right Act 1689 [enacted by the Scottish Parliament]

            – Heritable Jurisdictions (Scotland) Act 1746

            – Statute of Westminster 1931

3. In Substantive Sections:

            – Criminal Libel Act 1819 [s 1]

            – Internationally Protected Persons Act 1978 [s 1(5)(a)]

            – Fire and Rescue Services Act 2004 [s 5D(2)]

            – Constitutional Reform Act 2005 [s 1]

            – Legislative and Regulatory Reform Act 2006 [s 3(2)(f)]

            – Legal Services Act 2007 [s 1(1)]

            – Localism Act 2011 [s 6(2)]

4. In Schedules:

            – Scotland Act 1998 [Schedule 5, Part 1, Para 1]

            – Equality Act 2010 [Schedule 3, Part 1]

            – Appropriation Act 2011 [Schedule 2, Part 2, Para 1] – Similar references are found in almost every Appropriation Act since 1996.

Thus, there are at least fifteen statutes which use the term in the relevant sense. In the seventeen years since 1996, at least ten statutes making explicit references to the British constitution have entered the statute books (counting the annual Appropriation Acts only once). Compare this to a mere five statutory references in the three hundred and eight years between 1689 and 1996. It seems, therefore, that the rate at which the legislature is using the term in statutes since 1996 is about thirty-six times the rate at which it did so between 1689 and 1996!

An important implication for this burgeoning usage is that, in the absence of any statutory definition and little guidance, it falls upon judges to determine the meaning and scope of what the constitution of the UK is. Notice that at least some of these statutes, while making references to the constitution, do not refer to the legal aspects of the constitution alone. So, in the appropriate case, judges may be called upon to determine what is the scope of the political constitution. What’s more, at least under the Legislative and Regulatory Reform Act, the Localism Act and the Fire and Rescue Services Act, they will not only determine the scope of the (political and legal) constitution, but also protect it against Executive legislation. Readers who are interested in a classification of these statutory usages and further details on these and other significant implications of such usage may be interested in the full article here.

Finally, if anyone can point to a statute that uses the term in the relevant sense and is not on this list, I will be very grateful.

Tarun Khaitan is a Fellow and Tutor in Law, Wadham College, Oxford

Suggested citation: T. Khaitan, ‘The ‘constitution’ as a Statutory Term’   UK Const. L. Blog (7th October 2012) (available at http://ukconstitutionallaw.org

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Paul Daly: Taking Statutes Seriously

Drawing on English, American and Canadian material, I develop in A Theory of Deference in Administrative Law: Basis, Application and Scope (CUP, 2012) a unique approach to judicial review of administrative action. Animated by a desire to inspire change rather than wholesale implantation, I elaborate a comprehensive theoretical approach which is not tied to any particular jurisdiction. Bringing the intractable ultra vires debate to a friendly resolution was not a goal of mine (though useful sources of inspiration sprung from the debate). Nevertheless, I realized to my surprise that I might have something of relevance to say. Resolving the dilemma at the heart of the debate was beyond me: I baldly assume that judicial review is legitimate and thereby dodge the central dilemma entirely. But my approach to substantive review has something to say to both sides of the ultra vires debate. First, let me outline my approach. Second, let me amplify its implications for the ultra vires debate.

The Basis of Curial Deference in Administrative Law

I have two arguments here, one based on the delegation of authority by legislatures to administrative decision-makers, the other based on what I call practical justifications for curial deference. My delegation argument is that because the legislature has delegated (or granted – nothing turns on the terminology) variable degrees of power to administrative decision-makers, courts must also follow a variable approach in order to give effect to legislative intent. A uniform approach to judicial review would be inapposite in an era of many and varied administrative decision-makers with many and varied powers. If the same standard of review were to be applied, then the legislative choice to delegate varying degrees of power would be undermined. With such varying levels of power and such different administrative decision-makers, it would be contrary to legislative intent to apply the same standard of review across the board. Not, I hasten to add, legislative intent in some sort of literal, ‘voices in the air’ sense. Rather, legislative intent as evidenced in individual statutes and the statute book as a whole.

My practical justifications argument also flows from an obligation to take statutes seriously and runs as follows. Just as a variable standard of review would be necessary if the legislature directed courts to develop and implement one, reference to the reasons whydelegation took place would also be necessary if the legislature directed it. If reasons which explain the delegation of power can plausibly be inferred from a proper consideration of the relevant statutory provisions, then it can be argued that they influenced the legislative decision to delegate power to a body other than a court, and are thus factors that a reviewing court ought to consider. I identify four: expertise, complexity, democratic legitimacy and procedural legitimacy; as with delegations of power, these vary from statute to statute. The judicial task in this context is to ascertain by reference to the statute, and the statute alone, what plausibly can be taken to have influenced the legislative decision to delegate power.

Taking statutes seriously, then, leads to the conclusion that the intensity of judicial review ought to vary. How variable standards of review are implemented may vary from jurisdiction to jurisdiction: England has its super-, sub- and plain-vanilla Wednesbury unreasonableness, for example. I urge courts to employ a general conception of unreasonableness. To simplify greatly, what is unreasonable will be determined in individual cases by application of considerations drawn from the rule of law and principles of good administration. Where do judges get the authority to do this? On my account, a consideration of individual statutes and the statute book at a whole will suggest that courts should develop variable standards of review. Variable standards of review have to be implemented somehow. Unreasonableness, given its central importance in administrative law and its pliability, is as good a tool as any. In other words, taking statutes seriously opens up space for judges to apply the rule of law and principles of good administration.

The Ultra Vires Debate

For many years the orthodox English position was that the ultra viresprinciple was the keystone of judicial review. The legislature delegated authority within certain parameters which the courts would police, thereby giving effect to the intentions of the legislature: the judiciary was faithfully imposing on the executive limitations laid down by the legislature in statutes. However, as the ‘common law’ theorists pointed out, in reality judges were fashioning principles of good administration. They were doing so of their own volition, independent of legislative intent, and the ultra viresprinciple was merely a ‘fig-leaf’. Defenders of the orthodox position, although agreeing that the ultra viresprinciple was a fig leaf, considered it a vital one, hiding the immodesty of the courts’ challenge to parliamentary sovereignty. For, if courts were fashioning independent principles of good administration, these were, surely, fetters on the sovereignty of Parliament.

Nonetheless, the orthodox account remained deficient. The ultra viresprinciple needed to be re-conceptualised to accommodate the intentions of Parliament and the creative role of the courts in developing principles of good administration. Grasping the nettle, the defenders of orthodoxy argued that Parliament, save where it clearly indicates otherwise, intends to legislate in conformity with the rule of law and must to be taken to legitimate the courts’ role in developing the principles of good administration. As Mark Elliott explained:

While the details of the principles of review are not attributed to parliamentary intention, the judicially-created principles of good administration are applied consistently with Parliament’s general intention that the discretionary power which it confers should be limited in accordance with the requirements of the rule of law.

Because descriptive accuracy is sacrificed for theoretical consistency, even its supporters had to admit that this ‘modified ultra viresdoctrine’ was formal and conclusionary in nature. But if the ultra viresprinciplecan be relied upon to justify any decision reached by a reviewing court, the judicial obligation to give effect to legislative intent may be dissolved in an elixir of judicial creativity. For the ‘common law’ theorists, the development of judicial review is almost entirely divorced from legislative intent. Only where the legislature affirmatively specifies grounds or standards of judicial review is legislative intent said to be relevant. Judicial review would develop, on this approach, in splendid isolation from statutory language, limited only by some variant on the following principle proposed by Paul Craig: it must ‘reflect the considered judgment of the courts at that time that this was the best reading of the rule of law’.

My approach to legislative intent charts a middle course between two extremes: the common lawyers discount statutory provisions save for those extremely rare instances in which the legislature affirmatively specifies clear rules for the conduct of judicial review; and the traditionalists identify legislative intent with doctrines developed by judges. In fact, once it is accepted that judicial review is legitimate, legislative intent can play an important role in shaping the general principles of judicial review, suggesting, in particular, the development of variable standards of review. The principles of good administration need not be marginalised and will be relevant to determining whether or not a decision survives the appropriate standard of review. Following my approach, the fundamental insight of the common law theorists – that it is for judges to develop the general principles of judicial review – is incorporated, but the judicial role is relocated in such a way as to give more prominence to legislative intent, thus avoiding what Elliott described as the ‘substantial implausibility which is involved in the assertion that the complex principles of good administration simply spring from Parliament’s legislative silence’.

In short, legislative intent need not be treated as marginal, or as an empty vessel into which judicial review doctrine can be poured. Taking statutes seriously is thereby a ‘third way’ of approaching the ultra vires debate.

Paul Daly is a member of the Faculty of Law at the Université de Montréal. He can be reached at paul.daly@umontreal.ca. He blogs at administrativelawmatters.blogspot.com.

Suggested citation: P. Daly, ‘Taking Statutes Seriously’ UK Const. L. Blog (26 July 2012) (available at http://ukconstitutionallaw.org).

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Bradley W. Miller: Proportionality and Legislative Purpose

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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