Leonid Sirota

Happy Constitution Day!

A love note to a document and a tradition

Today is Constitution Day in the United States. The reverence for and celebration of the Constitution ― not just on the anniversary of its signing at the conclusion of the Philadelphia Convention in 1787, but throughout the year ― might seem as quaint to outsiders ― and indeed as irritating to a certain type of insider ― as The Queue to the Queen’s lying in state is in the United Kingdom. Indeed, the British and Commonwealth monarchy and the US Constitution have something important in common, despite the latter being the result of a rebellion, ostensibly against the former.

Despite their less-than-angelic origins ― despite the connection of both with conquest and oppression ― what they mean to their respective supporters is, on the one hand, stability and tradition, and on the other freedom and, perhaps paradoxically but still importantly in the case of the monarchy, a check on the ambition of passing office-holders. To embody these two clusters of values, which in human history have more often than not been at odds with each other, is a remarkable success, and well worthy of admiration.

The Constitution makes these commitments more explicitly, of course, and in a way that is more teachable. It has been on my mind of late because I have been preparing some introductory lectures on the UK constitution, and the American one is an excellent example at the same time as it is an excellent foil. For anyone interested in constitutionalism and in government more generally, not only in the United States but far abroad too, the Constitution and the intellectual tradition to which it gave rise ought to remain of the greatest interest.

Yet my impression is that, among those interested in comparative constitutional law, the US Constitution has become unfashionable. It is said to be too old or too odd; too absolutist in its approach to any number of problems, from the freedom of speech to judicial review of legislation; too bound up with itself and its own history. I think this view is a mistake. We need not emulate the United States, but treating the US Constitution as if it now has nothing to teach us deprives us of an example far more successful than many people either realize or care to admit.

And as for American absolutism, it is a view that we ignore at our peril. In The Federalist No. 48, James Madison wrote “that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it”. He thought that this proposition would “not be denied”. Yet there are dangerous fools who do in fact deny it. And many more, alas, simply forget it. The American constitutional tradition is the best remedy we have against such forgetfulness.

Shapes and Sizes

Public lawyers (and public law students) should think about government size―and shape

I am currently in the process of making slides for the early lectures in the constitutional law course I am due to deliver in the next month or so. One of them, for a lecture on the basic concepts of the UK constitution, looks like this:

Slide explaining government size in the United Kingdom

With this slide, I want to make three points that I thought are worth sharing here too. One is obvious, but not sufficiently thought of in public law. One was actually something of a revelation to me. And one is connected to my recent post on the “good government trilemma” ― the unpleasant trade-offs between democracy, government size, and accountability.

The obvious point is that government is very, very big. In the UK, it spent just over 40% of GDP in pre-pandemic years. The figure is substantially higher now. Another way to understand its size and complexity is the number of ministers, though in fairness the UK is something of an outlier here: it has as many ministers as New Zealand has MPs, opposition ones included. But the Canadian cabinet has almost 40 members nowadays ― and of course it does not need people to deal with provincial issues.

Although well-known (though perhaps not to first-year law students), I think this reality is worth highlighting in the context of a public law course. For one thing, it shows just how important public law is ― it would matter less in a nightwatchman state. As I hinted at in the “trilemma” post, if you think public lawyers are taking up too much space, one solution is to shrink government. But most people who want to ― metaphorically ― fist kill all the lawyers are not itching to ― metaphorically ― kill all the ministers and civil servants.

It is well known, too, that government is much bigger now than it used to be 100, let alone 150 years ago. Taxation and government spending as percentage of GDP is one convenient way of measuring this. Before the Great War, the UK government was spending 8-10% of GDP (except during the Boer War, when it was somewhat more than that) ― and that was a time when the Royal Navy was as big as its two nearest competitors combined. One could also describe the various areas of human activity that government regulates, as illustrated by the gaggles and flocks of ministers (though perhaps the better collective noun would be a meddling). This expansion, as opposed to the sheer magnitude of the end product, is often mentioned in administrative law, because writers on the subject, at least in North America, tend to think that it justifies the existence of a more-or-less unsupervised administrative state. It could, of course, just as well be taken as evidence of the administrative state’s malignancy. My point in the lecture will not be to take sides ― that’s not a lecturer’s role ― but this blog’s readers will know which way my sympathies lie.

Less well known ― indeed, something of a surprise to, though perhaps I am simply an ignoramus ― is that fact that by some measures government is now much less active than it used to be. Specifically, I mean the much-reduced number of statutes being enacted annually. My numbers, for the UK, come from a study by Chris Watson for the UK’s House of Commons Library, and those on the slide may be understating matters: in the last few years, the number of statutes enacted each year has fallen further, from the low 30s to the low 20s. (I’ve not put this on the slide because it might still be a temporary blip; but how long can something temporary last before it isn’t temporary)? It averaged about 100 if not more before WWII. Granted, these numbers don’t tell us everything; it may be that the complexity and/or length of statutes being enacted has increased, compensating for the lower numbers. But they are nonetheless suggestive. The volume of delegated legislation, by contrast, grew enormously from 1950, and indeed 1980, to the mid-1990s and stayed at that level until, it would seem, Brexit. It then fell off a cliff, relatively speaking, though there are no data for the period before 1950 ― I suspect it would have been substantially less at least until the Great War, and perhaps later.

This means that not only the size, but also the shape, if you will, of government has changed a lot over the last century. It is a great deal more executive-dominated than before. Parliament grants the executive enormous resources and vast delegated legislative powers, but it does not act as much as before for itself ― or rather, given the executive’s control of Parliamentary agenda, isn’t allowed to act. This too isn’t exactly a shocking discovery ― it is not really a discovery of any kind ―, but I think it needs to be kept mind when we assess claims about, for example, the judiciary’s real or alleged interference with Parliament, the important of the political constitution, and so on.

And this brings me to my third point, which follows from the trilemma I have previously discussed. It is that when we discuss public law, and especially when we discuss the changes that public law has undergone since, roughly, the 1960s ― both in the UK and in Canada (and New Zealand too). The judicial role has expanded a great deal in these jurisdictions, albeit in somewhat different ways. UK courts might be more intrusive vis-à-vis the executive; Canadian courts have been granted greater powers vis-à-vis Parliament. There is no question that, by the standards of 1950, let alone 1900, courts are more influential. But this development did not take place in a vacuum. It occurs, not coincidentally I would argue, in parallel with a vast expansion of government, and therefore of the government’s capacity for messing with people’s lives. To insist that the law used to control a government of the size and shape it has in 2022 should be as minimalistic as it was in 1872 or even 1922, or that Parliament can remain the primary if not the sole forum in which government is kept accountable as the government looked as it did in Dicey’s time is either mad or disingenuous.

This argument, by the way, does not in any way depend on thinking that government expansion, without more, is bad. Admittedly, I think it is ― I can say so here, though that will be beside the point in my lecture. But you can very well disagree with that, but still believe that an appropriately expanded government requires the kind of accountability and supervision that the courts have increasingly come to provide (in part thanks to their own efforts and in part because they were asked to do so). That said, I do wonder whether colleagues for whom the expansion of government over the last century is a welcome phenomenon might be less inclined to reflect on its implications, simply because they see it as natural, and it is human nature to think less about what one thinks of in this way. Small-government heretics have their uses in public law academia ― but then, I would say that, wouldn’t I?

In Memoriam Reginae

What the Queen meant to me

“Yes, man is mortal, but that would be only half the trouble. The worst of it is that he’s sometimes suddenly mortal ― there’s the rub!”
Mikhail Bulgakov, The Master and Margarita

On Tuesday, she is still at work, as she had been for 70 years, swearing in a new Prime Minister. On Thursday, she is gone. It is, I guess, the good, and ― let’s be honest ― the lucky way to go. Not everyone has this good fortune. But it is fitting for Her Late Majesty. Yes, she had it good, for the most part. Yes, she was fortunate, as our republican friends have always reminded us. But she took advantage of her good luck to serve, and made sure that her good fortune was ours too.

Much has already been said, and more will be, and it is difficult to add to it without being banal, ridiculous, or both. All the more difficult because the Queen’s death has affected me more than I would have imagined. As we know, the feeling that the time is out of joint does not make for the clearest thinking.

I did want to bring up something that is mentioned less than the really obvious (and of course true and important) things like the late Queen’s dedication and dignity: her levity. Not every Serious Person would have gone along with the James Bond stunts for the London Olympic Games opening ceremony, or the video of her having tea with Paddington Bear for her Diamond Jubilee. But just as a person truly confident of his or her strength can afford to show weakness from time to time, the Queen was secure enough in her dignity not to stand on it at all times. I’m not sure how many others could, let alone would, have pulled it off.

Let me also mention two personal memories of the Queen, which I hope capture some of what she was to me and to many others.

First, her last visit to Canada, in 2010. I was lucky enough to be in Ottawa for Canada Day ― it was my clerkship year. It was a bright and sunny day, a cheerful occasion, and good times seemed to be had by everyone around.

Canada Day, 2010. The Queen is getting out of the limousine to take place in the carriage that will carry her to Parliament.

And second, her “We will meet again” address in the darkest days of the first covid lockdown, which I watched in New Zealand. Nothing bright and cheerful about it; good times were gone and unsure of returning.

April 2020. The Queen addresses the Commonwealth during the first pandemic lockdown.

This is how it was: whichever of her Realms I was in, she had a wave for us in a time of celebration and a word of comfort in a time of anxiety. She seems to have had a preternatural talent for getting both, and every other public word or gesture, exactly right. More luck, perhaps. But it was our luck more than hers. We have had it good, and we must somehow see to it that we make as much of our good fortune as she did of hers.

Farewell, Your Majesty. And long live the King!

Nothing Doing

Why I’m not moved by the responses to my criticism of O’Bonsawin J’s appointment to the Supreme Court

I recently wrote a post that was sharply critical of the appointment of Justice Michelle O’Bonsawin to the Supreme Court of Canada. The National Post then ran a slightly modified version of it as an op-ed. Rob Breakenridge also interviewed me on my views. Somewhat to my surprise, the responses that have reached me were, on the whole, more supportive than not. While the public reaction to Justice O’Bonsawin’s appointment is almost uniformly positive (except for my post and op-ed, the only other sustained criticism came in The Line‘s editorial, which is more proof that you should subscribe to them), in reality there is a good deal of disappointment, some of it very bitter indeed, within and beyond the Canadian legal community.

That said, of course, quite a few people were also unpersuaded, or worse, by what I have had to say. I don’t think I have seen anyone attempt to rebut my argument to the effect that, considering the limitations of her career so far and the shallowness of the responses on her government questionnaire Justice O’Bonsawin lacks either the accomplishments or the intellectual excellence to be a Supreme Court judge. Instead, what has been put forward is any number of reasons why either my arguments or I should simply be ignored. In this post, I quickly respond to them, in rough descending order of seriousness and good faith.

You’re not impressed now, but Justice O’Bonsawin could still turn out to be great!

This is true, of course. She could. I’m not optimistic as to the likelihood of this, but I’ll be happy to be proven wrong. That said, I don’t think this is a good response to my criticism of Justice O’Bonsawin’s appointment. It’s a bit like saying that buying a lottery ticket is a good idea because one might end up winning. One might, but the odds are bad enough that it’s still an irresponsible decision. And while I’m content to stipulate that Justice O’Bonsawin’s odds of turning out to be a reasonably good Supreme Court judge (not everyone needs to be great!) are better than those of getting a winning lottery ticket, the cost of a bad choice is also rather more than just a few dollars. Justice O’Bonsawin could hold office for more than a quarter of a century. If she turns out to be a dud, c’est long longtemps as Quebeckers say. Appointments to the Supreme Court are not trifles to gamble with.

And, by the way, it is always important to remember the opportunity costs of decisions: appointing Justice O’Bonsawin means, among other things, not appointing some other, better qualified judge now. Realistically, it may also mean not appointing a better qualified Indigenous judge to the Supreme Court in the near or medium-term future; at the very least, the pressure for such an appointment will now be much less than it would have been otherwise. True, we’ll never hear about these unmade appointments. But the unseen is no less important than the seen.

You’re making too much of a silly questionnaire; it’s no basis to assess a future judge!

There’s something to this too. Justice Rowe turned out not to be the “judge unbound” I had expected him to be based on his questionnaire. Clearly, the method of predicting future judicial performance based on this has serious limitations. But while that may be a good argument against relying on it with respect to most appointments, Justice O’Bonsawin’s case is exceptional in that the questionnaire is well-nigh all that we can judge her appointment on. What is more, it is well-nigh all that that the government that appointed her had at its disposal. Unsurprisingly given the shortness of her career on the bench, Justice O’Bonsawin has written few judgments of importance ― few enough that she listed her PhD as one the top five pieces of writing, and that thesis has been hidden from public view. (By the way: I think some people have made too much of this; I wouldn’t expect to find some sort of smoking gun there; it’s probably boring; but having mentioned it as being one of her most significant outputs, Justice O’Bonsawin should not have kept it secret.) She has no academic publications. Her career as an in-house lawyer was also not the sort that leaves a record that lends itself to serious assessment. If we also ignore the questionnaire, we must conclude she is a cypher. Well, I don’t think cyphers are fit for appointment to the Supreme Court of Canada.

Admittedly, some people might disagree.

We shouldn’t even try assessing a newly-appointed judge! Let’s see how their career turns out and pass judgment once they retire.

First, I think it’s worth noting that this argument, which would have applied to every judicial appointment ever, seems to be brand new. Perhaps I have missed it being made in the past ― I’d be grateful if someone pointed me to previous examples ― but anyway I daresay it was not a common one. On the contrary, people were quite happy to criticize, for example, the appointments of Justice Brown to the Supreme Court and of Justices Huscroft and Miller to the Ontario Court of Appeal. People were also happy to praise the appointments of, say, Justice Jamal and indeed that of Justice O’Bonsawin to the Supreme Court, and if it’s too soon to criticize a new judicial appointment, then surely it is also too soon to praise it. I add that the government itself is obviously keen to take credit for its judicial appointments: it evidently doesn’t think that they cannot be assessed until long after it is out of office.

That said, to be sure, an argument isn’t wrong just because it’s new and convenient. But the claim that judicial appointments can only be criticized (or praised) retrospectively is simply wrong on the merits. Courts, and especially the Supreme Court, exercise considerable power. (Richard Albert has suggested that the Supreme Court of Canada might be the most powerful court in the world. Whether or not he is quite right about this, it is surely a very powerful institution.) At the same time, courts are ― by design, and rightly ― not meaningfully accountable for the exercise of their authority. It is, then, very important that the decisions as to whom to appoint to the bench, especially the Supreme Court, be made with a degree of thoughtfulness proportionate to its importance, and that these decisions be subject to meaningful accountability. Criticism of bad appointments, just like praise of good ones, is not only permissible but essential to ensure the government of the day takes this responsibility with all the required seriousness.

Are you saying only appellate judges/judges who have served on both trial and appellate courts should be appointed to the Supreme Court?

I said no such thing (and indeed I specifically got the Post to drop a proposed edit that might have carried that implication), but quite a few people seem to have concluded that I did. So, in case this clarification is useful, no I don’t think there’s a specific amount or sort of judicial, or indeed any other, experience that is mandatory for a future Supreme Court judge. Some of the smartest and most interesting judges in recent decades were appointed directly from the bar ― namely, Justices Sopinka, Binnie, and Côté. An appointment from a trial court is unusual (Beverley McLachlin was the Chief Justice of British Columbia’s Supreme Court, a trial court, when appointed to the Supreme Court of Canada, but she had served on the BC Court of Appeal before). But if a Supreme Court judge can lack any judicial experience at all, then having only trial court experience should be no obstacle. What one would want to see in appointee is a track record of excellence ― whether in practice, in the academy, on the bench, or in some mix of these ― and indications of some degree of brilliance. Again, there’s no one right route to this. Justice O’Bonsawin’s record, however, falls far short of what one would expect on the Supreme Court.

Not that this matters, according to some people. Now we’re getting into really silly territory.

Legal skills/qualifications are irrelevant anyway!

This too, I think, is a novel argument. And also a bad one. Even on the view that the law often “runs out” and decisions in hard cases have to rely on judges’ moral sense ― not by any means an uncontroversial view, and one of which I am sceptical (at least in this far-reaching form) but a widespread one ― judicial decision-making has to start with the law, even if it turns out that it cannot end there. If we aspire to anything like a government of laws rather than unaccountable personal rule, we should expect and demand that judges be skilful lawyers, whatever else they might also need to be.

You’re undermining confidence in the Supreme Court!

Sure I am. A Supreme Court one of whose members is not qualified for membership and should not have been appointed deserves less confidence than a court of which this is not true. That was the whole point of the litigation around the appointment of Justice Nadon ― another one which plenty of people thought it was permissible to criticize, by the way, including due to the perceived insufficiency of his credentials (which, whatever one makes of them, were considerably stronger than Justice O’Bonsawin). There is no question that Justice O’Bonsawin’s appointment is legal and constitutional. But, as I said in my original post, it is bad for Canada’s legal system all the same, and nothing requires me or anyone else to be an ostrich about it.

You’re racist/sexist!

We all knew this one coming, didn’t we? Criticizing the appointment of an Indigenous woman to the Supreme Court is, by itself, conclusive evidence of racism and/or sexism in some quarters of what is sometimes mistaken for polite society. Suffice it to say that attacks on, say, a John McWhorter or a J.K. Rowling from the same quarters are not held to be evidence of racism or sexism. The “principle” on which this sort of response to my post is based is just partisan horseshit. Like Pierre Trudeau, I’ve been called worse things by better people.

I think this about covers it. I should say, though, that there was less real horseshit than I had expected. Perhaps people had already decided that I am too much of a heretic to bother about. Perhaps they are quietly taking notes and not telling me. Either way, I suppose I will not be welcome in the “polite society” whence such accusations originate. That’s as well. I have as little time for it as it has for me.

I remain unpersuaded by the responses to my take on Justice O’Bonsawin’s appointment. She is not Supreme Court material, and should not be sitting on that court. And by the way, my saying so is no slight on her personally. There’s nothing wrong with not being Supreme Court material. Most lawyers aren’t. Probably even most judges, let alone most judges who have only spent five years on the bench. One can be a fine person and even a fine judge without this. But appointing someone who is not Supreme Court material to a role for which she is not qualified is a grave fault. We’re hearing much about whether this or that politician will undermine Canadian institutions. Sadly, the Prime Minister’s and the Justice Minister’s choice of Justice O’Bonsawin does just that.

A Nod to the Pod

Introducing the experimental Double Aspect Pod

Co-blogger Mark Mancini and I have been toying with this idea for a while: should Double Aspect expand into the podcasting universe? Well, we have decided to give it a shot, and we are pleased to announce the arrival of the first and very much experimental episode of the Double Aspect Pod.

We’re very new to this medium and it shows. The audio on my end is especially sub-par, I’m afraid. Still we thought that the substance of our conversation, during which we covered the merits/procedure in administrative law, our recent post on statutory interpretation and election law, and medical assistance in dying, was pretty good. If you are willing to give us a shot and overlook the technical difficulties, you can listen to it here:

Please let us know what you think!

A Little Representation

Justice O’Bonsawin is not qualified to be a Supreme Court judge

Last week, the Canadian government announced the appointment of Justice Michelle O’Bonsawin of the Ontario Superior Court of Justice to the Supreme Court. As I had done after the appointment of Justice Rowe, I have read the questionnaire in which she explains her views on her career, diversity, and the role of the Supreme Court and its judges. It brings to mind the notorious argument Roman Hruska, a US Senator from Nebraska, made on behalf of the nomination of G. Harrold Carswell to the US Supreme Court: “Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance? We can’t have all Brandeises, Frankfurters and Cardozos.” Justice O’Bonsawin, I am afraid, is also no Cardozo, and no Frankfurter either, for better and for worse.

Nothing in particular qualifies Justice O’Bonsawin for the Supreme Court. She had a seemingly ordinary career as in-house counsel, first at Canada post and then as General Counsel at the Royal Ottawa Health Care Group. I presume she has done good work there ― especially in relation to mental health, with which she seems to have been much concerned, given the nature of her job ― but it is not the stuff of stardom. She has been a Superior Court judge for five years and claims that she has “developed significant knowledge and expertise in our three areas of work: criminal, family and civil litigation”. So, presumably, does any other Superior Court judge, to say nothing of those on the Court of Appeal. Remarkably, Justice O’Bonsawin lists her PhD, for which she did most of the work while on the bench ― and which she has made inaccessible to the public! ―, among the “most significant cases or matters that [she] dealt with while in legal practice or as a judge”. Perhaps I am blasé, but this strikes me as a bit pathetic as a qualification for the Supreme Court, though of course, as Justice O’Bonsawin notes, getting it done while also having a demanding day job is a testament to her work ethic and commitment.

Justice O’Bonsawin’s answer to the question about her “insight into the variety and diversity of Canadians and their unique perspectives” is perhaps the most interesting one of the whole questionnaire, albeit for what it says about the “diversity” discourse more than about her. Tellingly, Justice O’Bonsawin speaks more about her various identities ― “as a francophone First Nations woman, a parent, a lawyer, a scholar and a judge” ― than about “the variety and diversity of Canadians”. I’m not criticizing Justice O’Bonsawin here. Of course a single person’s experience of “the variety and diversity of” soon-to-be 40 million people is limited. But her answers hold up a mirror to the way that diversity talk is usually more about oneself than it is about the diversity of one’s fellow-citizens. Another characteristic point: back when she was first applying to the bench, Justice O’Bonsawin simply said that she had grown up off-reserve. Now, she speaks of “[t]he colonial separation of my family from my First Nation”. To me this feels rote rather than heartfelt. But again, that’s what the diversity discourse requires.

That said, to her credit, Justice O’Bonsawin isn’t entirely down with the programme. She writes that “[a]s Canadians, we must stop focusing on our differences and embrace diversity in order to move our country forward in a progressive manner”. While this ― like much else in Justice O’Bonsawin’s answers ― is more about the feeling than the meaning, the idea that embrace of diversity is compatible with, and even requires, a little less narcissism of small differences is a pretty good feeling to have.

Sadly, I have little positive to say about Justice O’Bonsawin’s answers about the role of judges and of the Supreme Court. While they are banal, and no more “unbound”, to use the word I’d applied Justice Rowe, than might be expected of a generic judge appointed by the Liberal government, they are remarkably shallow. A very average first-year law student might have written something quite similar, and received a very average grade for the effort. This applies, by the way, to Justice O’Bonsawin’s writing style (and indeed grammar), though as I said about Justice Rowe, one should not be judged too harshly on the prose with which one fills a government form.

The first sentence sets the tone. The soon-to-be Supreme Court judge informs us that “The role of a judge in a constitutional democracy requires them to always apply impartiality, act independently and with integrity, and remain cognizant of the pillars of the Constitution and the Canadian Charter of Rights and Freedoms”. I’m not sure how one “applies impartiality”, or what “the pillars of the constitution and the Canadian Charter” are. I’m also not sure whether Justice O’Bonsawin actually thinks the constitution and the Charter are two different things ― this is by no means the only place in her questionnaire where she uses this sort of phrasing.

Another puzzler, from a bit later on: Justice O’Bonsawin writes that “[t]here is a fine balance between constitutional and legislative powers”. Does she mean constitutional rights (she might, because that’s what she is talking about just before). Or some kind of powers that aren’t about legislation? And another one, from the discussion of the Supreme Court’s relationship with its various “audiences”: “Decisions from the Supreme Court of Canada guide litigants through the legal system. This guidance must assure litigants proceed with legal claims well founded in fact and the law.” How can guidance from on high provide this assurance? Does Justice O’Bonsawin mean that it must help litigants formulate sound claims? That would be a sensible thought, but one can only hope that Justice O’Bonsawin’s opinions will be clearer than this, if indeed they are to guide anyone.

Let me now discuss some substantive issues that arise from Justice O’Bonsawin’s answers. First, her thoughts on the constitution. She explains that “[a] judge must continuously interpret the Constitution as a living and breathing document that is reflective of the beliefs and aspirations of generations since its original implementation.” I don’t know what a “breathing document is” ― by my lights, a living one is ghoulish enough, but that’s a minority view. But even apart from that, I’m not sure, about this “generations since” business. What if the “beliefs and aspirations” of the generations that have succeeded one another since 1982, never mind 1867, are not in agreement? Justice O’Bonsawin adds that “[t]he Constitution should not be used as an impediment to individual rights”. Does that mean that when the constitution doesn’t protect a right it ought to be ignored and the right be given “benediction”, Justice Abella-style, by the courts? Conversely, when the “generations since” the constitution’s enactment aspire to impede individual rights ― as they do on a pretty regular basis, which is precisely why rights are protected by constitutions placed out of majoritarian reach ― should judges give way to their views?

The issue of the judge’s relationship with public opinion arises more broadly throughout Justice O’Bonsawin’s answers ― and she tries very hard to have it both ways. On the one hand, “a judge must remain independent from influence or pressure”. On the other ― in the very next paragraph ―, “[a] recurring and oft heard criticism of the judiciary is that judges are out of touch. In an ever-changing climate, a judge must adapt to respond to these changes.” We are not told what changes exactly judges must adapt to, but telling the judges to evolve with the zeitgeist is not so easy to reconcile with their remaining independent from external influence. On the one hand, Supreme Court judges “do not react strategically to external political pressures”. On the other ― in the very next sentence ―, the reason for not reacting strategically is that “[t]his maintains the legitimacy of the Supreme Court of Canada’s standing and its decisions”. Is this not a strategic consideration? The worst of it is that I am pretty sure Justice O’Bonswain isn’t being sneaky ― I really don’t think she realises what a maze of self-contradiction her answers are.

One more beat on the issue of external influences. Justice O’Bonsawin warns that “[a] constitutional democracy will face threats, not only from within its borders, but also from abroad which is further facilitated with social media.” This would have been music to the government’s ears, what with its worries about foreign interference, and bodes ill for the prospects of Justice O’Bonsawin standing up its ongoing attempts to censor online communications. Justice O’Bonsawin adds that “[b]eliefs in other areas of the world should not influence or affect how our Constitution is interpreted and applied to all Canadians, absent the pressure of external forces”. Again I don’t know what to make of the last bit ― should beliefs in other parts of the world influence how the constitution is interpreted if external forces are exerted? Let’s just pretend it’s not there. The idea that the courts should pay little or no attention to “beliefs in other areas of the world” is in line with recent Supreme Court decisions such as Quebec (Attorney General) v 9147-0732 Québec inc, 2020 SCC 32, though not with the open-minded self-image that is dear to many Canadian lawyers. But then, Justice O’Bonsawin explains that Canada “must strive to be a beacon for others as to how a constitutional democracy should be protected and fairly applied to all”. So Canadian judges ought not to be influenced by foreign thought, but those foreigners will be oh-so-lucky to learn from us. This too is not new. The majority in Frank v Canada (Attorney General), 2019 SCC 1, [2019] 1 SCR 3 took just this approach. I didn’t like it then, and I don’t like now.

Lastly, let me return to the issue of rights. What does Justice O’Bonsawin have in mind? She specifically mentions equality, which she explains “is not treating everyone the same but treating everyone with fairness and equity taking their differences into account”. As it happens, I recently urged students to drop the word “fairness” from their vocabulary, because it means nothing in particular and tends either to hide a lack of thought given to the subject or to paper over disagreement. Justice O’Bonsawin, who is a prolific user of the f-word, should do the same. Alongside equality, she also mentions language rights, specifically s 16 of the Charter. And that’s it. Freedom of religion? Freedom of expression? Presumption of innocence? Not that one should necessarily expect a would-be Supreme Court judge to name-check every Charter right in their questionnaire, but the exclusive focus on equality is sadly characteristic of a certain kind of thinking about the law that strikes me as quite impoverished.

There would be still more to say, but none of it more positive than what I have already said. Let me quote just one more passage:

Charter values, such as substantive equality, dignity, fairness and human rights, are beacons for a Supreme Court of Canada Justice’s reasoning. Respecting these values support the public interest in ensuring all Canadians are treated fairly and equally for all rights protected and shared by all. They ensure national equality before the law, which is a core value of our judicial system.

Again, some of it plain silly ― Charter values include human rights! Some, incomprehensible ― national equality before the law? Is that equality before the law with Canadian characteristics? None of it is interesting or thoughtful.

I repeat my verdict: Justice O’Bonsawin is a very average lawyer who is out of her depth when it comes to the big-picture questions that a Supreme Court judge is forced ― by no means in every case, but with some regularity ― to turn his or her mind to. I’m sure she is a good and well-meaning person; she may, for all I know, have been a competent trial judge; but neither her career nor her thinking come close to qualifying her for the Supreme Court. Her appointment is transparently political, and it does a disservice to the Court that will have to welcome her, and to the Rule of Law in Canada.

The Good Government Trilemma

If you like big government, be prepared to sacrifice democracy or accountability

What is the respective role of democratic and other means of holding a government to account in a well-ordered polity? In one way or another, this question is the subject of live―and lively―debates in many (perhaps all?) democratic societies. In Canada, it manifests itself especially in controversies about the use of the Charter’s “notwithstanding clause”; in the UK, about the role of judicial review (especially of ministerial decision-making) and the Human Rights Act 1998.

At the risk of generalizing, my impression is that these debates tend to present themselves as clashes between the values of, for lack of better terms, democratic government and accountable government. One side thinks that the important thing is that elected officials get to run the show as they think best, subject to eventually being booted out by the voters. The other thinks that what matters is that the government be kept in check and made to answer for its actions on an ongoing basis, through some mix of elections, judicial supervision, and other accountability mechanisms, either internal to the government (such as ombudsmen and auditors) or external (NGOs and media).

To be clear, the democracy camp does care about accountability ― especially, that provided, or at least thought to be provided, by regular elections. For its part, the accountability side doesn’t deny the value of democracy, though it might argue that it’s a mistake to think of democracy in purely electoral terms. But there is, or so people think, a tradeoff between a focus on democracy, which calls for limiting the ability of non-electoral accountability mechanisms, especially the courts, to interfere with the work of government, and that on accountability, which requires these mechanisms to get in the government’s way with some regularity.

However, I think that the debate framed in this way is incomplete. It ignores a third factor that needs to be taken into account: the size of the government in question. This tends to go unnoticed because, whatever relative values they attach to democracy and accountability, virtually all participants in the debate are committed to keeping government big, by which I mean (substantially) bigger than a classical liberal nightwatchman state, let alone a Nozickian minimal state. I’m not sure quite where the boundary of big government lies, but I am sure that all governments in democratic states in 2022 (and for all I know the non-democratic ones as well) are on the big government side of it.

I would suggest that the apparent need to trade off between democracy and accountability is in fact only special case of what I will, again for lack of a better term, call the good governance trilemma. Of democracy, accountability, and big government, you can have two ― if you do things well; many polities won’t get two, or indeed even one ― but you cannot have all three. It is possible to satisfy the trilemma by choosing fractions ― a dose of democracy, a measure of accountability, a government not quite as big as one might dream of ― but the total cannot go above two, and it will certainly never go anywhere near three. You can’t have it all.

How does the trilemma work? Let’s start, as most people do, with big government a given. A government so big it takes scores of ― or, in the UK’s case, close to a hundred ― ministers of various sorts (or, in the US, agency heads) to run itself, to say nothing of the tens or hundreds of thousands of civil servants. This, of course, is not a Kornbluthian dystopia, but our present reality. A citizen who wanted to keep track of what the government is getting up to at a rate of, say, half an hour per minister per week would have a full-time job on his or her hands. And for at least some departments (think treasury or foreign affairs, for example, but there almost certainly many many others), half an hour per week hardly seems like it would be anywhere near enough to know what’s going on. Never mind ordinary citizens: even members of Parliament would struggle mightily to keep the tabs on the administration by virtue of its sheer size, to say nothing of the partisan and career incentives weighing on backbenchers, and of government obstructionism vis-à-vis the opposition.

Realistically, voters are in no position to keep such a government accountable (a point that Ilya Somin makes in Democracy and Political Ignorance: Why Smaller Government Is Smarter). This is why taking big government as a given, as most people today do, leaves you with a necessary trade-off between democracy and accountability. If such a government it is going to be accountable for more than an infinitesimal fraction of its innumerable decisions and actions, it will have to be made accountable to, or at least through, non-democratic or indeed counter-majoritarian institutions: courts, tribunals, ombudsmen, NGOs, and journalists. Alternatively, a big government can be made answerable to voters alone, with no judicial and other interference. But then it would be foolish to expect it to answer for even fairly major screw-ups, let alone the small-scale indignities a large administration visits on those subject to it every day that ends in-y ― not because it’s necessarily evil or even especially incompetent, let alone corrupt; but because it is run by fallible human beings. And these human beings, too, are the more likely to be pressed for time or out of their depth the more tasks the administration has been given.

If, however, one were willing to sacrifice government size, one could at least hope for a government held accountable primarily through electoral means. For one thing, as the government does less, there is simply less for courts and other non-democratic accountability mechanisms to sink their teeth into. (I have written about this here: if, for instance, government didn’t take it upon itself to regulate who can enter the country, we wouldn’t be debating the merits of judicial review of immigration decisions, which are a big annoyance to the UK government in particular.) But, less cynically, if government only does a few things, it is easier for citizens to keep track of those few things, and the odds of their using their vote to reward things done well and punish things done badly improve. Admittedly, I personally would not be all that optimistic about the degree of the improvement; but there ought to be some. By trading away government size, one could get more accountability and democracy, because democracy would be (more) sufficient to ensure accountability.

At the risk of making this post even more off-the-wall, I will add that a (very) small government system would make it possible to improve the quality of democracy and accountability further in another way. As Bastiat points out in The Law, so long as the government sticks to protecting people’s natural rights instead of being an expedient through which everyone hopes to live at the expense of everyone else, it doesn’t matter all that much whether suffrage is universal or equal: “If the law were confined to its proper functions, everyone’s interest in the law would be the same. Is it not clear that, under these circumstances, those who voted could not inconvenience those who did not vote?” Some form of epistocracy, or at least a minimal test of political knowledge, could be applied without causing the same problems it must under a big government. And a more knowledgeable electorate would likely be better at holding the government to account.

Of course, I don’t expect many people to share my interest in radically smaller government. Fair enough. But I think that it would be good if they recognized the reality of the trilemma I’ve outlined in this post. Its cause ― the difficulty for voters and even their representatives to keep track of a large administration ― should not be a matter of partisan controversy. It’s a reality that needs to be acknoweldged and responded to, whatever values will inform each person’s response.

And, as I said above, the possible solutions to the trilemma are not all-or-nothing matters. Government size, obviously, is not a binary choice. A government that withdraws from some areas of activity, or abjures some forms of regulation, could be more amenable to political accountability and less in need of non-democratic accountability at least to that extent. Conversely, a government that expands in some new direction may require the creation of entirely new accountability mechanisms to address this specific development. All this should be borne in mind even if the boot of big government as I have (sort of) defined it here remains firmly planted on our faces, and other body parts, forever.

If It’s Broke, You’re Not the One to Fix It

The Québec Court of Appeal takes it upon itself to update obsolete election legislation. That’s not its job.

This post is co-written with Mark Mancini

One of us (Sirota) has written any number of times about Québec’s Election Act, which is remarkable by the staggering restrictions it imposes on election campaigns and by its drafting that has, on many points, not been updated this century. This combination of severity and obsolescence leads to all manner of controversy and problems in the Act’s application. A recent decision of the Québec Court of Appeal, Therrien c Directeur général des élections du Québec, 2022 QCCA 1070, illustrates this.

At issue in Therrien was s 429 of the Act, which provides that, in the week after the writ for an election

is issued, no person, except the Chief Electoral Officer [CEO], may broadcast or cause to be broadcast by a radio or television station or by a cable distribution enterprise, publish or cause to be published in a newspaper or other periodical, or post or cause to be posted in a space leased for that purpose, publicity relating to the election.

As the Court (Justice Cournoyer writing with the agreement of Justice Dutil; Justice Fournier, who had also been on the panel, passed away before the decision was issued) recognizes, “when s 429 … was amended in 1995, social media did not exist. … The ordinary meaning of the words ‘post’ and ‘space leased’ could not envision virtual reality, be it virtual posters or virtual spaces”. [62]-[63] (We translate here and throughout.) The question was whether s 429 nonetheless applied to prohibit advertising on Facebook, such as an ad that the CAQ, for which the appellant was the social media manager, took out in the first week of the 2014 election campaign.

2014, you might think, is a long time ago. We’ll return to this below. You might also think that s 429 is unconstitutional. We are inclined to think so too. In Thomson Newspapers Co v Canada (Attorney General), [1998] 1 SCR 877, the Supreme Court struck down a publication ban on polls for part of an election campaign, and a part both more sensitive and shorter than the one at issue here, namely the last three days. It is hard to argue that a ban on some advertising in the campaign’s first week is more justified, although perhaps a court would accept that it is necessary to maintain fair electoral competition. But the issue does not seem to have been raised in Therrien, which is a pure case of statutory interpretation. The Court observes that the issue of the applicability of a provision to circumstances that were not and could not have been anticipated at the time of its enactment is “a classic in statutory interpretation, but its solution, as this case shows, is not always obvious”. [9] With this much we agree. The Court’s solution in this case is that s 429 does apply to social media advertising. This we believe is wrong, in light of the―to repeat, obsolete―drafting of the Act.

The Court begins by interpreting s 429 on its own terms. Its effect is to ban some―though not all―political advertising in the first week of an election campaign. Its purpose, inferred from what it prohibits, is “to foster fairness and equality among all political parties at the outset of an election campaign”, [54] by preventing the incumbent from getting a jump-start on its competitors. As the Court notes, fixed election dates weren’t in place when s 429 was enacted.

Inferring this purpose from the mischief sought to be remedied is an unremarkable tool of interpretation, but in this case, we fear the Court’s analysis is backwards. It may be true that the purpose of the provision is to foster fairness and equality at the outset of the campaign. But this purposive analysis must build on convincing evidence in the text and the choices reflected in that text. In this sense, the Court’s analysis is flipped. At a number of points, it puts no weight on the ordinary, accepted meaning of the text, seemingly allowing the Court’s own view of the statutory purpose to drive the analysis.

This leads the Court down the incorrect path. Drawing on Perka v R, [1984] 2 SCR 232 and R v 974649 Ontario Inc, 2001 SCC 81, [2001] 3 SCR 575, it states that while a statute’s terms are to be given the meaning they had at the time of their enactment, they “must not necessarily be confined to their original meaning” [65] at that time. What this means is that statutory language, provided it is sufficiently general, can be applied to facts and phenomena that weren’t or couldn’t be contemplated when it was enacted. But the focus of the analysis must be on the language used in the statute, and whether it could conceivably cover the phenomenon at issue. The issue, then, is “whether the text of s 429 prevents its extent to virtual posting in a virtual space”. [67]

The Court is right to cite these authorities at the outset, for they confirm the basic rule: the original meaning of statutory terms governs. This point was expressed most recently in R v Kirkpatrick, 2022 SCC 33, in the concurring opinion of Coté, Brown, and Rowe JJ. The concurrence articulated the accepted rule, unchallenged by the majority: “[i]t is a fundamental error to apply the ‘living tree’ methodology to the interpretation of statutes” [55]. But the Court of Appeal disregards the basic principle it cites. Rather than asking whether the words can bear the “adaptation by the courts of general concepts to these new realities” [68], it expressly concludes that the meaning of the words “post” and “space leased” “could not contemplate virtual reality” [63]. It then moves to conclude that the terms “post” and “space” “do not prevent their application to the virtual dimension specific to social networks” [67].

Here both the method and the conclusion are faulty. As we note, the accepted method asks whether the provision, in its purposive context, can accommodate the new technological developments. The Court, instead, reasons backwards: instead of asking “does this provision apply?”, it asks “why wouldn’t this provision apply?”. This is inappropriate on several grounds. Most basically, it is always for the party alleging that a provision applies―here, the CEO―to prove that this is so, and for good reason. Legislators who vote for legislative proposals do not and cannot time travel. The reach of statutes is fundamentally limited by their wording. By failing to positively affirm that a provision applies in a given circumstance, the Court distorts the reach of the law to cover phenomena that the text simply may not support. This, as we shall see, is an unacceptable form of spurious interpretation.

There are other normative reasons to reject the Court’s interpretation. Since the provision at issue is a penal one and restricts political speech, both the rule of lenity and the principle of legality counsel against applying it to doubtful or borderline cases. And substantively, the idea of a “virtual space” isn’t just a novel application of the existing concept of a space in the way that, say, same-sex marriage is a new application of the old concept of marriage. It is a metaphor and cannot do the work the Court wants it to.

The Court’s so-called purposive approach is also left wanting on its own terms, as it fails to have proper regard to the legislative context and to show why the purpose of the provision compelled its chosen interpretation. Consider the Court’s analysis of the history of s 429. In Frank v Canada, 2019 SCC 1, [2019] SCR 3, the dissenting opinion (unchallenged on this point), noted that “[t]he state of the law as it existed prior to an impugned provision coming into force can…give insight into why the provision was enacted” [131]. This, of course, is one way to discern the meaning of text; changes in wording can indicate changes in legislative purposes (as opposed to inferences based on what a legislature did not do). In this case, the appellant sought to draw the Court’s attention to the fact that s 429’s predecessor provisions were phrased in general terms and did not specify particular forms of advertising prohibited in the early campaign, arguing that the legislature’s choice to now ban some forms of ads and not others had to be respected. The Court simply isn’t interested: “the history of the amendments to s 429 does not matter as much as the parties think in interpreting its text”. [55] In our view, this is a mistake. As noted in the Frank dissent, the history of a provision can often illuminate the textual means by which a legislature was attempting to solve a particular mischief. If the appellant is right (and the Court does not even bother setting out the previous version of s 429, so we cannot tell), his argument deserved to be taken seriously.

The Court goes on to add that its interpretation of s 429 is in agreement with that of the CEO, which can be taken into account without being binding. It is a bit difficult to say how much this argument influenced the Court―it is probably not a major factor in the decision. But any reliance on it is, nonetheless, disturbing. A court would not take special notice of the police’s interpretation of the Criminal Code. There is no reason to treat an administrative enforcement agency with any more indulgence. (It is telling, too, that the case on which the Court relies here, Cayouette c Boulianne, 2014 QCCA 863, is at root a dispute among neighbours, which turns on the meaning of a municipal by-law. Giving some weight to the municipality’s views in that context is not nearly as problematic as doing that when the administrator is the prosecutor.)

All in all, the Court’s analysis on this point is backwards as a matter of method, but the result is also problematic. Some may ask why the original meaning rule should be followed in a case like this, where new technological problems are so evident. The answer relates to the point of statutory interpretation. The job of courts is to interpret the text through which legislatures seek particular objectives (MediaQMI v Kamel, 2021 SCC 23, [39]). The text discloses how a legislature wanted to achieve its ends. By updating the statute for the legislature, the Court assumes that the legislature (a) wants its law extended; and (b) wants the law extended in this particular manner. It deprives the legislature—the exclusive law-maker—of the opportunity of creating a new regime that balances on- and offline expression. Citizens can rightly begin to question where the law is made.

The Court also accepts an alternative argument based on the effect of Québec’s Act to establish a legal framework for information technology (IT Framework Act) on s 429. In a nutshell, this law is meant to ensure that digital documents are treated the same as their analogue counterparts for various purposes. Documents are defined as follows, in s 3 of the IT Framework Act:

Information inscribed on a medium constitutes a document. The information is delimited and structured, according to the medium used, by tangible or logical features and is intelligible in the form of words, sounds or images. The information may be rendered using any type of writing, including a system of symbols that may be transcribed into words, sounds or images or another system of symbols.

Moreover, pursuant to s 71

The concept of document, as used in this Act, is applicable to all documents referred to in legislative texts whether by the term “document” or by terms such as act, deed, record, annals, schedule, directory, order, order in council, ticket, directory, licence, bulletin, notebook, map, catalogue, certificate, charter, cheque, statement of offence, decree, leaflet, drawing, diagram, writing, electrocardiogram, audio, video or electronic recording, bill, sheet, film, form, graph, guide, illustration, printed matter, newspaper, book, booklet, computer program, manuscript, model, microfiche, microfilm, note, notice, pamphlet, parchment, papers, photograph, minute, program, prospectus, report, offence report, manual and debt security or title of indebtedness.

The Court holds that

the concept of document necessarily includes virtual posts, because the posts consist of information inscribed on a medium which has the same legal significance if it includes the same information, regardless of the medium … In this respect, “to post” or “cause to be post” includes the use of a medium on which information is inscribed, i.e. a document within the meaning of s 3. Meanwhile … the absence of words “poster”, “post”, or “cause to post” from the list in s 71 is of no consequence. The use of the phrase “such as” to introduce the list of many types of document is clearly aimed at excluding any restrictive interpretation of the term document, as defined in s 3. [86]-[87] (Paragraph break removed)

Here too we are not persuaded. For one thing, open-ended though it may be, we do not think that the IT Framework Act’s definition of a document extends to virtual posts, or any other media of a broadcast nature. The IT Framework Act’s purpose provision, s 1, refers to “documentary communications between persons, associations, partnerships and the State”. Elsewhere, the IT Framework Act speaks of documents producing “legal effect” or having “legal value” (e.g. ss 5 and 9). A poster―or a radio or TV ad―aren’t “documents” within the IT Framework Act’s meaning any more than in ordinary language.

Section 71 supports this view, although of course the Court is right that its enumeration is not strictly speaking closed. It is, however, remarkably exhaustive (which is why we thought it worthwhile to reproduce it above). And, tellingly, while it does include audio and video “recordings”, it does not include broadcasts. Considering the exhaustiveness, the fastidiousness even, of the enumeration, we do not think the omission is accidental or that it can be gotten around by relying on the “such as” language. This might not be the proverbial elephant, but we do not think the National Assembly hid a beaver in s 71’s mousehole. At minimum, the Court had to explain in what sense a virtual post is “such as” the objects enumerated in s 71, and it does not do this.

So much for Therrien itself. But we think it is important to point out that it is not an isolated case, but rather part of a pattern of very questionable decision-making by both the Québec Court of Appeal and successive CEOs with respect to the Act, which is in dire need of reform. In effect, those in charge of administering the Act are trying to maintain or even extend its reach while avoiding, on a case-by-case basis, consequences they find intolerable.

So far as the Court of Appeal is concerned, we have in mind the decision in Métallurgistes unis d’Amérique (FTQ), section locale 7649 c Québec (Directeur général des élections), 2011 QCCA 1043, which upheld the Act’s draconian restrictions on “third party” political spending. In that case, a union was fined for criticizing a political party in communications addressed to its own members. More generally, individuals who are not candidates and unincorporated groups are limited to spending 300$ on election advertising. Corporations, including not-for-profit ones, are prohibited from spending a penny. This is difficult to reconcile with the Supreme Court’s decisions in Libman v Quebec (Attorney General), [1997] 3 SCR 569 and Harper v Canada (Attorney General), [2004] 1 SCR 827, which recognized the right of “third parties” to engage in electoral advertising even as they also accepted the principle that such advertising can be strictly limited.

As for the CEOs, they attempted to censor “third party” interventions in each of the last two election campaigns ― that of a group opposed to the then-proposed “Charter of Values” in 2014 and that of environmentalist NGO Équiterre in 2018 ― provoking a public outcry. In 2014, the then-CEO flip-flopped and ended up withdrawing his objections. The 2018 story has only concluded recently (egregious delay is also, it seems, a pattern with the CEO), as Laura Lévesque and Thomas Laberge report in Le Soleil. The CEO has “blamed” and warned Équiterre but apparently not fined it. Yet as Sirota wrote at the time, the CEO was right to find fault with the campaigners on both occasions.

As further discussed in this post on the 2014 climb-down, the then-CEO reinterpreted the relevant provisions in a way that may have been sensible in light of the social and technological change since their enactment, as well as protective of the freedom of expression, but was not tenable in light of their text. The choice of merely “blaming” Équiterre is also, at first glance, understandable on the merits but not something provided for by the Act, except presumably as an exercise of an implicit prosecutorial discretion. In effect, the CEO is deciding what the Act means and when―and his decision to go easy on fairly clear violations by NGOs while prosecuting a debatable one by a political party is worth highlighting.

All this suggests, unequivocally to our mind, that the Act needs to be reformed so as to accommodate the social and technological realities of the 21^st century. As it happens, the Canadian Press’s Jocelyne Richer reports that the CEO wants the Act to be “updated”―but mainly so as to introduce even more restrictions, specifically on advertising during the “pre-campaign” period. (In fairness, he was already asking for such an “update” in 2016. So far, the National Assembly has not obliged.) Parliament has added such restrictions to the Canada Elections Act some years ago, and Ontario has used the Charter’s “notwithstanding clause” to extend its censorship regime, which now covers more than one year in every four.

These rules are bad and possibly unconstitutional, as Sirota argued here and here. But, quite apart from their other problems, they would hit especially hard in Québec unless the Electoral Act’s existing strictures are relaxed to some degree, and also unless it is re-drafted so as to be technologically neutral to the extent possible. In the meantime, however, it is not the role of either the CEO himself or the courts to fiddle with the Act to make it work better. The law is broke, but they are not the ones who have the tools to fix it.

Swan Upping

A medieval ritual as a metaphor for British constitutional history

Every summer, barring a plague, an age-old ritual takes places on the Thames: the Royal Swan Upping. Led by the Royal Swan Marker, “[t]he Royal Swan Uppers, who wear the scarlet uniform of Her Majesty The Queen, travel in traditional rowing skiffs together with Swan Uppers from the Vintners’ and Dyers’ livery companies”. Truth be told, the skiffs are mostly towed by a boat with an engine, but the whole thing does look pretty grand. I know, because I went to see it yesterday.

The Swan Upping arrives at Sonning Bridge: July 20, 2022

Scarlet uniform: check. Royal flag: check. Awesome swan flag on the towing boat: also check. Even Galadriel would be proud, I think. (And, come to think of it, I’m wondering if the Swan Upping has helped inspire Professor Tolkien.)

The reason I’m writing about it here, though, is that there is a fascinating legal-historical and indeed constitutional dimension to the Swan Upping story. As Katy Barnett explains in a most instructive post over at Legal History Miscellany the reason for the glorious scarlet uniforms’ presence is that her majesty has a special relationship, one might say, with the mute swans of the Thames:

[t]he ancient origins of the monarch’s ownership of swans are shrouded in mystery. The first mention of mute swans being a ‘royal bird’ comes from Gerald of Wales (‘Giraldus Cambrensis’) in the late 12^th century. It is generally deemed part of the royal prerogative by custom, then entrenched in case law and statute. (Footnote omitted)

The office of the Royal Swan Marker goes back (at least?) to the 14th century:

In 1361, Thomas de Russham was given responsibility by the king for “the supervision and custody of all our swans as well as in the water of the Thames as elsewhere within our Kingdom.” Thereafter, the king had an officer who was Master of the King’s Game of Swans (also known as the Royal Swan-herd, Royal Swannerd, or Royal Swan-master).

The Swan Uppers, now doing their own rowing: Sonning, July 20, 2022

In the Middle Ages, the scarlet uniforms were not just for show: swan ownership was tied up with social hierarchy:

In 1482 and 1483, Edward IV’s Act for Swans was passed to prevent unlawful keeping of swans by “Yeomen and Husbandmen, and other persons of little Reputation”. Accordingly, the only people who could have swan marks or own swans were noble and rich people

And “only the monarch could claim unmarked mute swans”. This is what the Royal Swan Upping was:

[p]eople would catch the swans, record the ownership of the birds and their offspring, and place markings upon the beaks of the birds. It seems that the marks were achieved by inscription with a knife or by branding. The swan-master was to meticulously maintain the marks in an ‘upping book’.

Nowadays, of course, the whole process is much more humane, and its point is no longer to ensure the steady supply of swans for royal Christmas feasts as in the Plantegenets’ and Tudors’ times. As the Royal Swan Marker explains,

Swan Upping plays an important role in the conservation of the mute swan and involves The Queen’s Swan Warden collecting data, assessing the health of young cygnets and examining them for any injuries. Cygnets are extremely vulnerable at this early stage in their development and Swan Upping affords an opportunity to help both adults and cygnets that might otherwise go untreated.

In this way, the process really is emblematic of the British constitution: its origins are in medieval royal absolutism, later reinforced and partly taken over by statute, and eventually re-thought for a more caring and democratic age, with the scarlet uniforms more or less intact. So it only makes sense that I went to see it, and that I blog about it!

End of a Swan Upping day’s work: Sonning, July 20, 2022

F-Words

Some words and arguments to avoid in law school exams

This post is the first in what I plan on making a short series dealing with some things that bother me while marking public law exams. I once wrote a post along these lines, but happily at Reading its very basic advice is not as necessary as it was where I used to teach. Do refer to it for 101-level stuff. And please also refer to Mark Elliott’s excellent and helpful post, over at Public Law for Everyone, on the importance of making an argument in an essay question (or indeed a longer-format essay). That would be the 201 module.

This, by contrast, is going to be “issues in” course. What this means, really, is a course in the professor’s pet peeves. Of course, different people have different ones, and these might only be mine. But I do hope that they are of some use, both to colleagues and to students, and I hope that they will make for some entertainment if nothing else. After all, the first lesson concerns f-words! No, no that f-word. There are others, including four-letter ones. The one I’ll mostly focus on is “fair”. But first, let me say something about “floodgates”.

Floodgates arguments generally suggest that A’s claim against B should not be entertained by a court, because if it is, other similar claims will be brought ― the floodgates of litigation will open ― and the courts will be deluged with more cases than they can handle. I don’t think that floodgates arguments are often successful in real life. If A’s claim against B is without legal basis or factual merit, it can be rejected, and the rejection ought to serve as a deterrent to analogous future claims. To invoke the floodgates argument is to implicitly concede that, at the least, there may be something to A’s claim. But having made that concession, an advocate and especially a court will find it awkward to peremptorily refuse doing justice for no other reason than to economise resources. If many analogous claims ― all possibly meritorious ― are out there, the injustice of refusing to consider them is only compounded.

As a result, floodgates arguments are rarely persuasive in student work either. Truth be told, they are often the mark of a weak script. It is sometimes difficult not to suspect that the student could think of nothing better, simply remembered this catchy name, and went with a floodgates argument for lack of an alternative. Perhaps even a weak argument, at least if it is used accurately, is better than none at all, though one might want to consider whether making an inherently feeble argument does not harm one’s cause by exposing the defects of one’s position. (This is certainly true of the “kitchen sink approach”; not only do many bad arguments not add up to a good one, but they make it clear that one hasn’t understood which arguments are worth making.) Anyway, if you are choosing among a floodgates argument and a different one, always go for the other idea, whatever it might be. I would suggest making it a rule to simply banish this particular f-word from your vocabulary. It is a crutch, and not relying on it will only help you by forcing you to think a bit harder and more creatively.

My beef with the other f-word, fair (or its derivative fairness), is much the same: it is a crutch makes students think they’ve made a satisfactory case when they haven’t. But the explanation is perhaps a little more complicated in this case, or at least harder to believe. Unlike the floodgates of litigation, fairness is not a fancy-sounding technical concept, but one that we appeal to all the time. Unfortunately, that is part of the problem. Nobody wants to be against fairness, of course. But we should all be wary when someone ― including, I am afraid, a student in an exam answer ― seeks to persuade us by making opposition emotionally difficult rather than logically impossible. We should also be wary of making such arguments ― ideally, out of respect for our readers but, failing that, out of a self-interested concern not to arouse their suspicion that we might be trying to trick them.

More substantively though, fairness ― despite its intuitive appeal ― is also an elusive notion. Just what it means in any given context is often unclear. Now, sometimes ― and in our daily life, often enough ― we have a good, and, importantly, shared, sense of what fairness requires. If you insisted on choosing where to go for dinner with your friend last time, it is fair to let the friend choose now. If you were late to the pub, it is fair to buy your friends a drink. And so on. The trouble is that shared understandings of what is fair run out quickly in the kind of situations that law school exams, and indeed a great deal of law ― perhaps especially, though by no means only ― public law in the real world deal with.

Does fairness mean that people should be subject to human rights constraints or allowed freedom from them? Does it require government to seek parliamentary approval for a given course of action? Does it mean officials need to comply with rash, perhaps untenable promises to members of the public? Students ― and not only students, to be, ahem, fair ― may think that there are answers to such questions. But there are usually people on both sides of them. If you find one in an exam paper, you can be very confident indeed that there are serious arguments on both sides. And people on both sides probably think that their answer is fair. This suggests that no real concept of fairness is doing the work of compelling an answer one way or another. At best, people rely on intuitions about what is fair. At worst, they are actively covering up their true motivations under the specious rhetoric of fairness. (To be clear, I don’t suppose students do this often, if at all.)

Of course, these questions must have answers, if only provisional ones, and there are reasons why the answers are or ought to be one way rather than another. But fairness is not such a reason. There are other considerations involved. Some have to do with specific constitutional principles such as individual liberty, government accountability, the Rule of Law, the sovereignty of Parliament, or what have you. Others are policy arguments (including the dreaded floodgates, though to repeat it is a particularly weak one). Usually, more than one reason bears on a given answer. Relevant considerations sometimes complement one another, and sometimes pull in different directions. But it is their summing up, untidy and unsatisfactory as it sometimes is, that actually answers difficult questions, rather than appeals to fair play.

As with “floodgates”, I think that students should banish the other f-word from their exam-writing vocabulary. If you feel the itch to use it ― and, given its ubiquity, that is understandable ― you should ask yourself why you think that this course of action, or this approach to the problem, or this rule, is or would be fair. And then, give that explanation, in as much detail as you have room for, instead of speaking of fairness. Again, this will force you to think harder ― but it will also make for better results, because you will be discussing actual principles and policy arguments instead of hoping that the marker shares your intuitions, or at least understands them ― and neither is a given.

Whatever their differences in detail, marking grids at every law school I have known as either a student or a lecturer reward, first, understanding of the subject and then, to get really high marks, critical thinking and creativity. Clichés and stock arguments add little to a demonstration of competence, and actively get in the way of showchasing originality. The less you rely on them, the better off you are likely to be.