Accountability Ersatz

The Court Challenges Program shows accountable government is no substitute for a small government

Over at TheCourt.ca, Nicholas Hay offers a qualified and nuanced defence of the Court Challenges Program, which recently relaunched by the federal government. I have criticized the Program here and elsewhere, as have others ― for example the National Post’s editorial board (which mentions some of my arguments). Mr. Hay responds to one of my criticisms by arguing that the Program would benefit “an expansion to include all Charter rights” ― but this only meets my concern that it plays favourites with the constitution half-way, if there, because it would still be objectionable for the government to indicate that it values the enforcement of Charter rights more than that of the federal division of powers. In any case, in this post, I will not re-argue that. Rather, I’ll make a different point, which isn’t only about the Court Challenges Program alone, but which Mr. Hay’s argument brings to mind.

Mr. Hay argues that “the very crux of the Program is government accountability”. To allow, and even to help, citizens challenge unconstitutional government action means making the government answer for its decisions. Unfortunately, Mr. Hay adds, the Program risks being implemented in a way that pays insufficient heed to concerns about accountability within its own functioning. He argues that there is a “need for an enhanced, accountable selection process that will appoint disinterested members” to the expert panels that choose the cases the Program will fund. In addition “the Program should be open to regular review by the Auditor General, and the files should be open to the public under the Access to Information Act”. And when it comes to making the actual decisions about which cases to support, “the Program needs a robust method of allocating subsidies, and tighter spending rules, to ensure support for those truly in need, regardless of what side of the issue they’re on”.

It is hard to disagree with these recommendations, if one accepts the premise of the Program’s existence. But they show, I think, an additional reason for why that premise is worth challenging. Mr. Hay’s argument is, in effect, that the Program, a necessary or at least a most useful form of government accountability, generates demands for further accountability mechanisms in order to secure its own legitimacy. The watchers must be watched. And then, those who watch the watchers must, presumably, be watched in their turn. It’s not enough for an “accountable selection process” for the Program’s expert panels to exist: someone needs to keep an eye on what results it produces. It’s not enough for the Program’s expenses to be audited: someone needs to read the reports. It’s not enough for the Program to be subject to the Access to Information Act: someone needs to put in those requests. Of course this isn’t a flaw of the Program as such, or of Mr. Hay’s proposals to improve it. The same goes for any government accountability mechanism. And, you might think, accountability all around is good; we want as much accountability as we can get, don’t we?

But there can be too much of a good thing. Who will have the time to dig into the reports on the selection of expert panels, the Auditor General’s reports, and the further reports on the selection of cases the Court Challenges Program funds? The Program is a tiny sliver of the federal government’s total spending; most people are probably unaware of its existence; even those who, like journalists, are aware of it have bigger fish to fry. More accountability mechanisms means more things to keep an eye on, more work, more resources consumed. And the time and resources of the relatively few people or organizations with the expertise to keep an eye on the Program may well be better spent on doing other things. At some point, the margin accountability returns on additional accountability mechanisms are likely to become nil or even negative.

My point is not that we should reject Mr. Hay’s proposals for improving the accountability of the Court Challenges Program. It is, rather, that we should be skeptical of the  Program itself, and of any other mechanism that creates the need for an accountability ratchet that is likely to become counterproductive if not self-destructive. Accountability mechanisms that are part of government are still part of government, and they deserve as much skepticism as any other part of government. Their multiplication, like the growth of any other sector of government operations, creates potential for abuse, and makes government more difficult to oversee and to control. Sometimes, like other government functions, accountability mechanisms are necessary and beneficial. But it is always useful to ask ourselves whether any given one really is, and perhaps even to start with a presumption, albeit a rebuttable presumption, against government intervention. The reasons I once outlined for having such a presumption in the case of government provision of goods and services mostly apply to accountability mechanisms too.

If you have borne with me this far, you probably want to ask: isn’t this whole argument counter-intuitive to the point of absurdity? Mustn’t the government be held to account, whatever the problems attempts to do so engender? Given the government’s scope and power, aren’t accountability mechanisms a necessary safeguard against abuse? But here’s the thing: I don’t think we should accept the government’s scope and power as a given. The fewer things government does, the fewer issues there are to hold it accountable on, and the more readily external accountability mechanisms ― whether the media or citizens suing the government on their own, without its assistance ― are able to deal with it. Instead of having a Court Challenges Program to hold government to account when it legislates, and then additional accountability safeguards to make sure the Program works as intended, how about we have a government that legislates less, and thus is in less need of being held to account? As Ilya Somin says, smaller government is smarter. Or, as one might also say, an accountable government is no substitute for a small government. It is, at best, an ersatz.

Still Playing Favourites

Despite its broader focus, the Court Challenges Program remains objectionable

The federal government has officially announced that it is bringing back the Court Challenges  Program, which provides money to individuals or groups who pursue litigation in which they assert certain constitutional or quasi-constitutional rights. In comparison with past iterations, the program will subsidize claims based on a broader range of rights ― not only equality and language rights under the Canadian Charter of Rights and Freedoms and the Official Languages Act, but also those based on sections 2, 3, and 7 of the Charter (protecting, respectively, “fundamental freedoms” of religion, expression, and association; the right to vote; and the rights to life, liberty, and security of the person). Yet even with this broader focus, the program reflects a flawed and indeed disturbing approach to the constitution by the government.

As I wrote in a post for the CBA National Magazine’s blog last year, we should question the government’s decision to prioritize the enforcement of some parts of the constitution over others. I noted that the government does have a special statutory mandate, under the Official Languages Act, to promote the recognition of both official languages and, especially, the vitality of minority linguistic communities throughout the country ― but of course a court challenges programme is only one of a myriad ways in which this might be done. And there is certainly no mandate to promote some Charter rights in particular. Why are, for instance, the due process rights protected by sections 8-14 of the Charter left out? Nor is there any reason, to promote the respect of Charter rights but not that of other constitutional provisions, such as those pertaining to the division of powers.

The choice of priorities for the Court Challenges Program is symbolic, and as I wrote last year

the symbolism is wrong. In choosing to fund court litigation based on language and equality rights, Parliament isn’t just sending the message it values these rights. It also says that it values these rights more than others. In other words, Parliament is playing favourites with the different provisions or components of the constitution. Yet they are all, equally, “the supreme law of Canada,” which Parliament is bound to respect in its entirety. Thus, in my view, signalling that it regards respecting parts of the Constitution more than the rest, in itself contradicts the principle of constitutionalism.

The government’s public statements today only confirm my impression. The Prime Minister has tweeted that the Court Challenges Program “will help protect the language & equality rights of all Canadians” ― singling out the rights targeted by the old versions of the programme, and omitting even those added by the one announced today. Meanwhile, the Justice Minister brags about “reinstating the Court Challenges Program as we celebrate #Charter35 to show our commitment to human rights and the rule of law” ― without any mention of, you know, that other anniversary we are also celebrating this year, which someone committed to the Rule of Law might also want to notice.

I have other objections to the Court Challenges Program too ― notably, to the fact that it funds challenges not only against federal laws, but also provincial ones, which strikes me as disloyal behaviour for a partner in the federation. If provinces want to pay people to challenge their own laws, they do can do it on their own ― but they should have the choice. And of course, it is doubtful that such a program is really the most effective way for the federal government to uphold the Rule of Law. Giving teeth to its internal reviews of proposed legislation for Charter and Canadian Bill of Rights compliance might be one good place to start instead; there are others as well.

But as the program is first and foremost symbolic, and in light of the Prime Minister’s and the Justice Minister’s statements, my objection to the program’s symbolism, to its playing favourites with the constitution which the government ought to respect in its entirety, is perhaps the most important one. Although plenty of people in legal academia (including Grégoire Weber, who is currently an adviser to the Justice Minister) and the bar have praised the return of the Court Challenges Program, I have not seen a response to my objections. It’s not that I am entitled to have my objections responded to, of course ― but I would be very happy to publish a guest-post if anyone cares to do it. Any takers?

Justice in Masks

(Some) French judges want their names removed from the decisions they make

In the traditional iconography, Justice wears a blindfold. When we come before her, she must listen to our arguments, but not see us. But should justice also wear a mask, so that we do not see her face? This is the question raised by a report by Caroline Fleuriot for Dalloz Actualité. Ms. Fleuriot writes that the French judges’ union is demanding their names be removed from their decisions, in anticipation of these decisions being made freely available online ― although a number of judges who she quotes are opposed to this idea. And this demand might, of course, seem rather astonishing to us in the common law world. But then again, as Peter McCormick’s recent articles on decisions “by the Court” issued by the Supreme Court of Canada, about which I blogged here, suggest, the concept of judicial anonymity is not entirely foreign to us either. I think the French proposal is a good occasion to further our reflection on it.

As best I understand Ms. Fleuriot’s report, the French judges make two arguments in favour of removing their names from their decisions. They say, first, that failing to do so would encourage increased criticism and even formal complaints aimed at judges personally rather than at their decisions, potentially compromising trial fairness. Second, it would allow the performance of each individual judge to be assessed, including “to identify judges who do not issue decisions that follow the wishes of the government of the day”.

To some extent,these justifications ring hollow. In the common law world, the authors of judicial decisions are routinely identified, and while this does open the door to sometimes personal, and occasionally outright vicious and distasteful criticism, and occasionally formal complaints, this is not generally seen as imperilling judicial independence or impartiality. Neither is the existence of statistics about the decisions of individual judges, even though such statistics are routinely (at least in the United States) pressed in the service of attaching rather crude and sometimes unfair ideological labels to members of the judiciary.

To be sure, I am not at all an expert on the French judiciary; I do not know how strong the protections for judicial independence are in France. If they are much weaker than in countries such as Canada, the United Kingdom, or the United States (in the federal judiciary), perhaps the judges’ union’s concerns are more justified. But if the French judiciary is sufficiently independent now, its worries seem rather overblown, if they are sincere. Indeed, one might wonder whether what is really going on is not simply an attempt to escape criticism ― whether from the government or from parties and civil society.

That said, if we are indeed right be skeptical of the French judges’ seemingly self-serving claims, we should also ― as prof. McCormick urges us ― take a hard look at our own. The Supreme Court is in the habit of issuing decisions signed by “the Court”, without attribution to one author (or several authors, as is increasingly common). Insofar as there is a common thread to these decisions, it is that many (although by no means all) of them involve potential confrontations between the Supreme Court and either a government, whether federal (say l’Affaire Nadon, Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 S.C.R. 433) or provincial (say Quebec (Attorney-General) v Blaikie, [1979] 2 SCR 1016), whether on issues concerning the judiciary or on other politically salient topics, from the death penalty to language rights. In these cases, the Supreme Court may well be concerned, rightly or wrongly ― often wrongly, I suspect ― about deflecting criticism from its individual members and even with preserving its independence.

Admittedly there are important differences between this practice and that which the French judges’ union is looking to institute. In France, appellate decisions (rendered by multi-member panels) already are anonymous in the sense that “by the court” decisions are: they do not identify an individual author, though first instance decisions rendered by a single judge necessarily are not. If I understand the point of the judges’ union’s demands correctly, so far as appellate courts are concerned, they seek to hide the composition of the panels, as well as the identity of the actual authors of the decision. When the Supreme Court (or, on occasion, provincial courts of appeal) issue “by the court” decisions, we are always told who was on the panel. And of course, the practice of “by the court” decisions is quantitatively marginal ― although qualitatively significant ― one. On average, the Supreme Court issues only one or two decisions a year without attribution.

Indeed, these differences are a good starting point in thinking about whether the anonymity of judicial decisions is a problem, as prof. McCormick argues it is, and as I am now inclined to think too. Does it matter that we know the composition of the panels that render unattributed decisions? I suppose some information is better than none. And of course, in a very important sense, judges should be accountable, or amenable to criticism, not just for the decisions they happen to write, but also for those with which they agree ― at least in the common law world, where concurring and dissenting is (almost) always possible, if sometimes unpopular with one’s colleagues on the bench. Still, the composition of the panel ― especially a large panel at the Supreme Court ― seems insufficient. Does it matter whether only a few, or many, or all decisions are unattributed? I think it does. If the practice of “by the Court” decisions were really sporadic (and it is now a bit more than that), it would arguably matter very little. If it were clearly reserved for decisions where the Courts feel the very separation of powers, or indeed the future of the country, is at stake (as the Supreme Court may have felt in, say Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 SCR 44, and in Reference re Secession of Quebec, [1998] 2 SCR 217), it would be more readily understandable. But it is neither, and as prof. McCormick shows, it is difficult to establish a coherent narrative that would account for all of the “by the court” decisions.

Thus it may well be that the French judges’ proposal is, from our standpoint, not exactly an entirely alien idea, but rather something like a reductio ad absurdum of our own Supreme Court’s practice. It is possible to criticize the former and accept the latter, of course. But perhaps we should not be too quick to do so. Whatever we might think of justice in robes, justice in masks does not seem like a very attractive ideal.

H/t: Pierre Trudel

A Pile of Problems

A critique of Steven Penney’s take on the Supreme Court’s distinction between criminal and administrative penalties

Steven Penney has recently posted to SSRN an interesting article, published last year in the Supreme Court Law Review, criticizing the Supreme Court of Canada’s jurisprudence distinguishing the imposition of “administrative” and “criminal” penalties. People (and corporations) who risk the latter kind of penalties ― “true penal consequences” as the Court calls them ― benefit from a variety of procedural protections which section 11 of the Canadian Charter of Rights and Freedoms grants to “[a]ny person charged with an offence”. Those facing only “administrative” penalties ― which can include suspensions of licenses (to drive or to practice a profession) and fines, even fines ranging in the hundreds of thousands if not millions of dollars ― are not protected by the Charter.

Prof. Penney traces the intellectual roots of this distinction to the Canadian rejection of the “Lochner era” in American constitutional jurisprudence, which is generally thought to have involved judicial subversion of valuable economic regulation intended to protect society’s less powerful members.  Prof. Penney shares the concern that motivated this rejection, but argues that it has been taken too far. The “shadow of Lochner“, as his article’s title has it, has dimmed the guiding lights of the Charter, even as

[l]egislatures have increasingly relied on administrative and civil enforcement regimes to address forms of wrongdoing previously left to the criminal law. In many instances, the sanctions accompanying these regimes are harsh, the targets are ordinary people, and the rules protecting adjudicative fairness are weak. (309)

Prof. Penney argues that section 11 of the Charter should be interpreted more broadly, to provide procedural protections to persons involved in administrative as well as criminal proceedings. The government’s ability to justify restrictions to or departures from these protections under section 1 should be enough to prevent them from standing in the way of truly important economic regulation ― but the necessity of these restrictions or departures would have to be justified.

This is an intriguing argument. I have written here about Thibault c. Da Costa, 2014 QCCA 2347, a case in which the distinction between administrative and criminal penalties was used to uphold the imposition, on a financial advisor who had swindled some of his clients, of fines that were higher than those authorized by the applicable legislation as it stood at the time of the acts. In the criminal context, paragraph 11(i) of the Charter, which entitles persons charged with an offence “if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment”, prohibits this. But the Québec Court of Appeal took the view that the proceedings here were not really criminal, because the fines imposed were not “true penal consequences”, and so their retrospective increase was upheld. I wrote that the decision, although legally correct, was disturbing. Prof. Penney discusses two decisions of the Supreme Court that also apply this distinction to disturbing effect (as he, persuasively in my view, argues):  Guindon v Canada, 2015 SCC 41, [2015] 3 SCR 3 and Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46, [2015] 3 S.C.R. 250.

At the same time, however, Prof. Penney’s article suffers from a some flaws that are, sadly, characteristic of Canadian constitutional thought. One issue I have with Prof. Penney’s argument is that it mostly does not question the conventional wisdom on the “Lochner era” in which it finds the roots of the problem it tries to push back against. According to this conventional wisdom, the U.S. Supreme Court’s decision in Lochner v New York, 198 US 45 (1905), held up, in prof. Penney’s words, “a rigid and formalist interpretation of the Bill of Rights to limit state efforts to enact and enforce progressive economic legislation”. (308) This is questionable; indeed, recent scholarship argues that it is simply wrong. David Bernstein, whose book prof. Penney cites but does not engage with, has shown that, far from being intended to protect the vulnerable and the disadvantaged, the legislation invalidated in Lochner served to protect (relatively) big ― and unionized ― established businesses against smaller, family-owned competitors. Many other laws invalidated in the “Lochner era” ― which were never as numerous as subsequent criticism made them out to be ― were similarly objectionable. Meanwhile, this reviled jurisprudential era has served as the foundation for the subsequent expansion in the enforcement of constitutional rights in the non-economic realm.

This history matters. Rectifying the record is useful for its own sake of course. Prof. Penney says that “[t]he story of Lochner is well known” (310) ― and, in the next sentence, misstates the year in which it was decided; an accident, no doubt, but an ironic one. Prof. Penney quotes a passage from Justice Cory’s reasons in R v Wholesale Travel Group Inc, [1991] 3 SCR 154 describing the “so-called ‘Lochner era'” as the period of time when “courts struck down important components of the program of regulatory legislation known as ‘the New Deal'”. But of course the “Lochner era” began well before Franklin D Roosevelt’s New Deal, and most of the laws struck down during this period had nothing to do with it. In short, “the story of Lochner” is rather less well known than one might be tempted to suppose; what people think they know about it may be ideological myth more than reality. More importantly, however, recovering Lochner‘s philosophy ― an opposition not to any and all economic regulation, but to the sort of regulation that privileges some groups in society above others ― might also make us rightly more suspicious than we tend to be of the  regulatory schemes that the courts end up protecting by invoking the administrative-criminal distinction. In my post on Thibault I suggested that courts should be wary of “the specious claims professional organizations, and governments which choose to delegate their regulatory powers to them, make about their role” when they ask themselves whether the penalties at issue are administrative or penal in nature. Remembering Lochner‘s lesson ― that economic regulation is not always as benign and protective as it seems ― might help here.

My other, and more important, objection to prof. Penney’s argument concerns his approach to constitutional interpretation. He “claim[s] … that the Supreme Court’s construal of ‘charged with an offence'” in section 11 of the Charter as excluding administrative proceedings  “is too restrictive”. (323) It is too restrictive, prof. Penney argues, because of the bad consequences it produces ― in the sense that individual rights to “adjudicative fairness in contesting substantial state-imposed penalties” (324) are under-protected. As I suggest above, I think that prof. Penney is right to decry the under-protection of these rights. But it is not enough to say that, because interpreting a constitutional provision in a certain way produces unpleasant consequences, a different interpretation can and ought to be adopted.

The jurisprudence that prof. Penney criticizes arguably illustrates the perils of this approach. In prof. Penney’s telling, the Supreme Court is concerned about the costs of enforcing the Charter‘s procedural protections for the state’s ability to impose economic regulations, more than it is about the consequences of not enforcing these protections when “true penal consequences” such as imprisonment are not at stake. A consequentialist approach to constitutional interpretation can go either way; there is no guarantee that it will always be right-protecting. Consequentialism, in turn, is one possible way of implementing the “living tree” interpretive methodology that the Supreme Court and Canadian academia loudly insist is the only appropriate one. It’s not the only way ― one might be a living-treeist without being a consequentialist. But saying “living tree” is not enough to decide cases. Once one accepts that constitutional meaning can change, one has to figure out what it should change to, and this is where consequentialism comes in. If one wants to foreclose, or at least to limit, its influence in constitutional interpretation, one should, I suspect, abandon living-treeism, at least in the radically unspecified form in which it is practised in Canada.

Now, it is not clear that doing so will lead to results that prof. Penney or I would find pleasant in this particular case. The main alternatives to living-tree constitutional interpretation are the different versions of originalism. (For a primer, see Benjamin Oliphant’s and my paper recently published in the Queen’s Law Journal.) An originalist approach to section 11 of the Charter would consist in asking whether (depending on the version of originalism one subscribes to)  “charged with an offence” would have been understood in 1982 as applying to administrative proceedings or was intended to apply to them by the Charter‘s authors. And I don’t know the answer to these questions. What I do know is that, insofar as these questions do have an ascertainable answer (they might not; perhaps the phrase “charged with an offence” is irreducibly vague, forcing an originalist interpreter into the “construction zone” that is, on some views, not very different from living tree interpretation), this answer does not turn on competing, and potentially variable, cost-benefit analyses, which will inevitably be influenced by personal preferences, of judges or scholars. Originalism is not necessarily more rights-protective than living-treeism ― though as prof. Penney shows, living-treeism isn’t always very rights-protective either. But originalism does hold out a promise of a constitutional law that is actually law-like, in that it is independent of the individuals who apply it. In the long run, this is not only valuable in itself, but arguably also more likely to protect individual rights in situations where doing so is likely to be seen as undermining important social objectives ― which after all is the whole point of constitutional rights protection.

Prof. Penney’s article is valuable because it attracts our attention to a number of serious problems affecting our constitutional law. On the one hand, there is problem of insufficient constraints on the imposition of “administrative” penalties, which the article decries. On the other, there are the twin problems of reliance on a blinkered version of history and on open-ended “living tree” constitutional interpretation that opens the door to consequentialist reasoning unconstrained by anything other than personal preferences, which the article exemplifies. Proponents of prof. Penney’s interpretive approach might say that my argument is contradictory, since it suggests that the constitution might not give us the resources to address the problem prof. Penney identifies. But if that is so, the solution is not to surreptitiously re-write the constitution under the guise of an interpretation that will only be adhered to by those who share the interpreter’s beliefs, but to amend it in a way that will be binding on all future interpreters, whatever their personal views.

New Swearwords

The Prime Minister wants to make a meaningless addition to our unconstitutional citizenship oath

As the CBC reports, the Prime Minister’s mandate letter to the new Minister of Immigration, Refugees and Citizenship directs him to “[w]ork in collaboration with the Minister of Indigenous and Northern Affairs to make changes to the Oath of Canadian Citizenship to reflect the Truth and Reconciliation’s [sic] Calls to Action.” What the Truth and Reconciliation Commission suggested was adding the clause “including Treaties with Indigenous Peoples” to the undertaking to “faithfully observe the laws of Canada”. This addition is silly ― and, meanwhile, the oath remains unconstitutional, as I have long argued here and in an article published in the National Journal of Constitutional Law.

Having new citizens undertake to “faithfully observe … Treaties with Indigenous Peoples” is meaningless exercise in symbolic politics. The treaties in question do not bind citizens. Citizens trying to ascertain the duties they subscribe by taking the oath in this form would find none. The treaties do not require them to do or not to do anything. They impose obligations on (and give rights to) the Crown ― i.e. the government. An individual citizen can no more “observe” these treaties than he or she can fail to do so.

The addition of meaningless language further devalues the citizenship oath ― though admittedly it is already not worth very much. Many citizens, new and old alike, including indeed the authors of the guidebook used to help prepare would-be citizens for their citizenship test, misunderstand the reference to the Queen in the existing oath, thinking that it means that “we profess our loyalty to a person”. What is more, as the Court of Appeal for Ontario observed in the course of dismissing a challenge to the constitutionality of the reference to the Queen, in  McAteer v. Canada (Attorney General), 2014 ONCA 578, 121 OR (3d) 1,

a former plaintiff in this proceeding who had taken the oath of the citizenship, has publicly recanted the oath to the Queen while, at the same time, confirming the remainder of the oath. Mr. Charles was informed by the Minister of Citizenship and Immigration that his recantation had no effect on his citizenship status.

The government of Canada, in other words, thinks that the oath means nothing at all (imagine, by contrast, a judge’s reaction to a witness telling her that he “recants” his promise to say nothing but the truth), and goodness knows what those who take the oath think it means. The Prime Minister’s new plan does not change that.

Nor does it address the unconstitutionality of the oath in its current form. While it has upheld the oath, I have argued here that the McAteer decision is a “parade of judicial horribles“. It misreads the relevant precedents and relies on conclusory assertions about the value of the citizenship oath while ignoring the oath’s history as an embodiment of distrust and the distinctive way in which an oath (contrary to a statutory command) operates by enlisting the conscience of the person who takes it. As I explain in more detail in my article, the citizenship oath in its current form is an imposition on individual conscience that is not justified by any pressing and substantial objective, is not rationally connected to the purposes it supposedly serves, is not minimally restrictive (since it could easily be re-written to accommodate the scruples of those who object to it), and is not proportional to the harms it inflicts on objectors. It is, in short, contrary to s 2(a) of the Canadian Charter of Rights and Freedoms, and cannot be “saved” by s 1.

This is what the Prime Minister ought to have asked the Immigration, Refugees and Citizenship Minister to address. Instead, he chose to focus on a meaningless gesture. I have written here that “oaths of allegiance are like swearwords ― significant yet meaningless, and not something to be said in polite company”. Another feature of swearwords is that their precise contents matters very little; only the emotions they convey are of any significance, as this latest news confirms.

 

Maneant Scripta

The Supreme Court protects its sources from “link rot”

This will be an unusual post. First, it will be short. Second, it will praise the Supreme Court of Canada, for a change. Some years ago, I wrote here about the problem of “link rot” as it affects judicial decisions. Courts refer to online materials ― sometimes even blog posts, though I don’t think the Supreme Court of Canada has done that yet ― and provide references to these sources in their reasons. Unfortunately, the online addresses of these sources ― the URLs that enable the readers to find them ― can change. Indeed, the materials can simply be taken down. Finding the sources on which judges rely becomes difficult in the former case, and impossible in the latter. Unless, that is, the courts actually do something about it. And now the Supreme Court has.

Here is the Court’s announcement:

Recognizing that web pages or websites that the Court cites in its judgments may subsequently vary in content or be discontinued, the Office of the Registrar of the SCC has located and archived the content of most online sources that had been cited by the Court between 1998 and 2016. These sources were captured with a content as close as possible to the original content cited. Links to the archived content can be found here: Internet Sources Cited in SCC Judgments (1998 – 2016).

From 2017 onward, online internet sources cited in the “Authors Cited” section in SCC judgments will be captured and archived.  When a judgment cites such a source, an “archived version” link will be provided to facilitate future research.

The Supreme Court of the United States has maintained an archive of “Internet sources cited in opinions“, albeit only going back to 2005, for some time now. Having taken a quick look at the websites of the UK and New Zealand Supreme Courts, I cannot find any equivalent archive, though perhaps I haven’t searched carefully enough.

It is great that the Supreme Court of Canada follows, and indeed improves on, the initiative of its American counterpart, and rescues its sources from oblivion. This is going to be very helpful to anyone ― a journalist, a researcher, or just a citizen ― who is interested in understanding what information the court relied on in making its decisions. As I wrote in my original post on this issue, the problem of “link rot” in the Supreme Court’s decisions was quite serious:

Of the links in the five oldest cases to cite any, not a single one still works, though one … leads to an automatic re-direct, and so is still useful. The rest lead either to error messages or even to an offer to buy the domain on which the page linked to had once been posted (a page belonging  to the BC Human Rights Commission ― which has since been abolished).

The Court’s effort to remedy this problem is to be applauded.

Too Conventional

The UK Supreme Court’s conventional, and indefensible, thinking on the issue of constitutional conventions

In R (Miller) v Secretary of State for Exiting the European Union, [2017] UKSC 5, the UK Supreme Court holds that the approval of the UK Parliament, but not ― as a matter of law anyway ― of the “devolved” legislatures of Scotland, Northern Ireland, and Wales is required before the UK government can serve notice of its intention to leave the European Union. Mark Elliott has already posted a full and, to me, a largely compelling critique of the decision on his (excellent) blog, Public Law for Everyone. The Judicial Power Project has posted shorter comments by eminent public lawyers, including John Finnis and Timothy Endicott. They and others say most of what there is to say about Miller, but I want to take note of its treatment of one specific issue, that of constitutional conventions, on which I part ways both with the Court and with the commentators who, however critical they are of its reasoning on other .

The Miller Court is perfectly orthodox on this point, reaffirming the Diceyan distinction between law and convention, the former being justiciable and the latter not. In my view, the Court is wrong to do so. Its reasoning on this point shows that the line which it attempts to draw between law and convention is so thin as to be evanescent. Indeed, it is at least arguable that its reasoning on the main issue, that of the availability of the royal prerogative to trigger the UK’s withdrawal from the EU, is in direct contradiction with that which underpins its refusal to treat conventions as legal, judicial cognizable rules.

As the majority judgment explains, one of the issues in Miller concerned the effect of the so-called Sewel Convention, which

was adopted as a means of establishing cooperative relationships between the UK Parliament and the devolved institutions, where there were overlapping legislative competences.  In each of the devolution settlements the UK Parliament has preserved its right to legislate on matters which are within the competence of the devolved legislature. [136]

However, from the outset, there was an expectation that, as a matter of convention, the UK Parliament “would not normally legislate with regard to devolved matters” without the consent of the affected devolved legislature. “That expectation has been fulfilled,” says the majority. [137] It has been embodied in “memoranda of understanding” between the UK government and devolved authorities, and more recently in a statutory provision, section 2 of the Scotland Act 2016, which “recognised” the convention.

For the Court, none of that meant that it could pronounce on the applicability of the Sewel Convention to the matter at hand ― that is to say, on whether the convention required the UK government to seek the devolved legislatures’ consent before seeking to withdraw from the EU ― or indeed to any other issue. That is because “[i]t is well established that the courts of law cannot enforce a political convention.” [141] The quoted at length from the various opinions in the Patriation Reference, Re: Resolution to amend the Constitution, [1981] 1 SCR 753, finding there support for its view that the political and the legal are distinct realms, and that while courts “can recognise the operation of a political convention in the context of deciding a legal question …  they cannot give legal rulings on its operation or scope, because those matters are determined within the political world.” [146]

But why is there this impenetrable barrier between the legal and the political? The majority’s explanations are sparse, to put the matter rather generously. In addition to the quotations from the Patriation Reference, we are told that “[j]udges … are neither the parents nor the guardians of political conventions; they are merely observers”, [146] and directed to Colin Munro’s assertion that “the validity of conventions cannot be the subject of proceedings in a court of law” (“Laws and Conventions Distinguished” (1975) 91 Law Quarterly Review 218 at 228″).

Munro’s words, at least, have been flatly contradicted by events ― namely, by the Patriation Reference itself, as well as by the other cases in which the Supreme Court of Canada and other Canadian courts have pronounced on the “validity” of alleged conventions: notably Re: Objection by Quebec to a Resolution to amend the Constitution, [1982] 2 SCR 793 (a.k.a. the Québec Veto Reference), Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), 2000 SCC 45, [2000] 2 SCR 409, and Ontario English Catholic Teachers’ Assn. v. Ontario (Attorney General), 2001 SCC 15, [2001] 1 S.C.R. 470. Contrary to Munro’s assertion (and Dicey’s stated belief that conventions were matters of such exalted political importance that they were “too high” for mere lawyers ― a belief contradicted by his own magisterial treatment of the subject!), courts can deal with conventional questions.

Indeed, it seems to me that the Miller majority is less forthright about this than it really ought to have been. In introducing one of the quotations from the Patriation Reference, the majority describes it as being from “a dissenting judgment on one of the questions before the court”. [142] It does not say what question. So let me remind the reader: that’s the question of whether a convention prevented the federal government from seeking Patriation without provincial consent. The majority knows this, of course, and thinks it better not to be explicit.

Whatever the merits of this rhetorical approach, with Munro’s impossibility assertion out of the way, what is left is the Miller majority’s argument is the the claim that courts should not deal with conventions because, due to their political nature, the courts are not their “parents” or “guardians”. This echoes the position of the Patriation Reference‘s majority on the legal question that conventions are “political in inception” and thus by their “very nature” incapable of “legal enforcement”. (774-75) But this too, is not much of an argument. Statutes too are “political in inception”, yet courts enforce them ― as “guardians”, in the Miller majority’s terminology. Of course, conventions often look less like statutes than like common law rules, in that they lack a well-defined authoritative formulation ― though this is not true of the Sewel convention, which has been in fact authoritatively, if somewhat vaguely, stated for as long as it has existed. But even we take the analogy to common law rules, what is it that stops courts from being “parents”, or perhaps adoptive parents, to new common law rules into which conventions crystallize?

In the Patriation Reference, the legal question majority had to address this contention:

The leap from convention to law is explained almost as if there was a common law of constitutional law, but originating in political practice. That is simply not so. What is desirable as a political limitation does not translate into a legal limitation, without expression in imperative constitutional text or statute. (784)

This response is bizarre, in that there obviously is a “common law of constitutional law”, including the rules on the Royal prerogative at issue in Miller, as the Patriation Reference majority well knew. Is the suggestion that that law did not “originate in political practice”? But what exactly did it “originate in”? Did the judges ― say Coke in the Case of Proclamations ― simply make it up, or pluck it out of thin air?

Whatever the view of the Patriation Reference majority, the Miller majority is not entitled to its predecessor’s claim that “[w]hat is desirable as a political limitation does not translate into a legal limitation, without expression in imperative constitutional text or statute.” Its decision on the main issue in the case rests in part on its view that “[i]t would be inconsistent with long-standing and fundamental principle for … a far-reaching change to the UK constitutional arrangements to be brought about by ministerial decision or ministerial action alone,” without Parliamentary authorization. [81] This principle is not, needless to say, to be found “in imperative constitutional text or statute”. Longstanding or not, it is a view of “what is desirable as a political limitation” ― and, according to the Miller majority, it does “translate into a legal limitation” on the UK government’s powers. (To be clear: this is not the entire basis for the majority’s decision; but it is a important part of its reasoning.)

The belief that there is a fundamental difference in the nature of legal and conventional constitutional rules never rested on much of anything other than the assertions of scholars and, eventually, courts that have uncritically followed these scholars. The distinctions that they have attempted to draw between law and convention do not involve material differences.  Ironically, the Miller majority’s own reasons strongly suggest as much. When it considers the effect of the “recognition” of the Sewel convention by the Scotland Act 2016, it concludes by incorporating it into statute,

the UK Parliament is not seeking to convert the Sewel Convention into a rule which can be interpreted, let alone enforced, by the courts; rather, it is recognising the convention for what it is, namely a political convention. [148]

This seems to me to acknowledge that the source of a rule ― statute or convention, or in another case the common law ― is less material than “the nature of the content” [148] of that rule. Some rules, whether ostensibly legal or conventional, do not let themselves to judicial interpretation or enforcement. (Whether it is the case that the Sewel convention is such a rule is a separate question which I will not try answering here.) But other rules do lend themselves to judicial interpretation or enforcement ― and for them too, it should not matter whether these are ostensibly legal or conventional rules. The question the court ought to have asked itself is whether the rule is suitable for judicial application ― not whether it is law or convention.

My views on the distinction, or lack thereof, between law and convention (which I have sought to explain at greater length in my paper “Towards a Jurisprudence of Constitutional Conventions”, (2011) 11 OUCLJ 29, and briefly in a forthcoming piece in the Supreme Court Law Review) are, I am well aware, rather heretical. Yet to me the conventional thinking on the issue of constitutional conventions, and conventional arguments for distinguishing them from legal rules, are simply not convincing.