Polyphony

How different constitutional orders respond to attempts at denying citizens access to adjudication

The UK Supreme Court recently delivered a judgment that will, I think, be of interest to those Canadian readers who have not yet heard of it. That is because the case, R (Unison) v Lord Chancellor [2017] UKSC 51, arises out of circumstances that are fundamentally similar to those of the Supreme Court of Canada’s decision in Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 SCR 31. Trial Lawyers, which I summarized here, concerned a challenged to the fees that litigants had to pay for each day they argued their cases in the (trial) Supreme Court of British Columbia. Unison involved fees imposed on litigants who took their cases to tribunals charged with the resolution of employment law disputes. But the ways in which the courts addressed the legal issues highlights the differences both between the respective constitutional frameworks of Canada and the UK, and between the courts’ understandings of their roles within these frameworks.

In Trial Lawyers the majority addressed the constitutionality of hearing fees, concluding that, if they are set so high as to prevent people accessing superior courts, they would contravene section 96 of the Constitution Act, 1867, which had previously been held to protect the “core” jurisdiction of the courts to which it refers. While the Chief Justice’s opinion, for the majority, also addressed the principle of the Rule of Law, it invoked this principle only as additional support for its conclusions ― Justice Rothstein’s accusations to the contrary notwithstanding. Only Justice Cromwell, in his concurrence, proposed deciding the case on administrative law grounds, and would have held that since the hearing fees were imposed by delegated legislate made pursuant to a statute that preserved the common law right of access to courts, they could not validly interfere with this right. Yet interfere with it they did, and they were therefore invalid for that reason.

By contrast, Unison was decided on administrative law grounds ― and the principle of the Rule of Law was central to the UK Supreme Court’s reasoning. Having concluded that, as a matter of empirical fact (on which more below), the fees at issue deter substantial numbers of people from pursuing their claims, the Court asked itself whether “the text of” the statute pursuant to which the fees were imposed by the executive, “but also the constitutional principles which underlie the text, and the principles of statutory interpretation which give effect to those principles”  [65] provided authority for setting the fees at their  current level. The relevant principles included, in particular, “the constitutional right of access to justice: that is to say, access to the courts (and tribunals …)”, [65] which in turn is an aspect of the Rule of Law. They also included the idea that rights granted by a statute cannot be nullified by delegated  legislation purportedly authorized by a different statute.

The Court began with what Mark Elliott, on his excellent Public Law for Everyone blog, described as

a primer — albeit a very powerful one — on what the rule of law means … . Indeed, it is difficult to escape the conclusion that the Court felt it necessary to drive home some very fundamental propositions — ones that should not really need to be driven home — because the Government’s position indicated ignorance of or contempt for them.

As part of this “primer”, the Court emphasized that

Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. … In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade. That is why the courts do not merely provide a public service like any other. [65]

In the course of adjudicating disputes, courts both ascertain important legal principles and provides the assurance that “[p]eople and businesses … will be able to enforce their rights if they have to do so, and … that if they fail to meet their obligations, there is likely to be a remedy against them.” [71] For this assurance to be effective, “people and businesses” must be able to take their disputes to courts or tribunals, if need be.

Given the importance of access to courts and tribunals, “any hindrance or impediment by the executive requires clear authorisation by Parliament”, [78] and the authorization will only be taken to extend so far as the achievement of its purposes requires. As Parliament did not clear empower the executive to levy fees that would prevent litigants from accessing tribunals, and as the fees at issue had precisely that effect, they must be held not to have been authorized by the statute under whose purported authority they were imposed. In addition, they “must be regarded as rendering … nugatory” [104] the rights which the tribunals are supposed to enforce, thought in the Court’s view this point this point overlapped with the Rule of Law one.

It is tempting for people used to constitutional frameworks where legislation can be invalidated for inconsistency with the supreme law to look down on a decision based on administrative law grounds, which can be overridden by legislation. Indeed, even prof. Elliott writes that “for all that the case represents a striking and robust reaffirmation of fundamental constitutional principles, it also hints at — or least raises questions about — the limits of those principles” ― within the UK constitutional context, that is. After all, if the UK executive insists on collecting prohibitive tribunal fees, it can (try to) get Parliament to enact them into statute, or explicitly allow fees to be set at levels that will result in impeded access. If the UK Parliament does either of these things, there can probably be no challenge to its decision within the UK’s internal legal order, subject to courts taking up the occasional musings of some judges about limits to Parliamentary sovereignty ― an unlikely, and at least arguably an undesirable prospect. (Prof. Elliott, mixing metaphors somewhat, describes as a “nuclear option”, and says that “we will cross this bridge if we ever come to it, while fervently hoping that we never do”.) It is better, we might be tempted to say, for courts to have at their disposal the more powerful weapons that an entrenched constitution, like that of Canada, can provide.

But, while there is a good deal of truth to this view, it is not the whole truth. Prof. Elliott suggests that

in some constitutional orders … administrative orders incompatible with the right of access to justice would be unlawful — because the constitution would withhold the authority to legislate in breach of such a fundamental right.

But things might not be so simple. Prof. Elliott does not say what “constitutional orders” he has in mind, but at least in the Canadian constitutional order, it is by no means clear that the constitution withholds the right to legislate in breach of the right of access to justice. In commenting on Trial Lawyers here, I said that not only does the reasoning of the majority opinion in Trial Lawyers “rest on shaky foundations” whose weaknesses are brutally exposed by Justice Rothstein’s dissent, but they “leave some important questions” ― questions about the limits of the constitutional principles that it applies ― “unanswered”. In particular, it is very doubtful that the right of access to superior courts constiutionalized in Trial Lawyers extends to provincial court and to administrative tribunals  (which is to say, to the sort of decision-maker at issue in Unison!), to which section 96 of the Constitution Act, 1867, on which that decision ostensibly rests, does not apply.

The legitimacy of judicial interventions to uphold fundamental constitutional principles can be questioned not only in constitutional systems that acknowledge Parliamentary sovereignty, but also in those that allow for judicial review of legislation ― if not in principle, then in (almost) any given case. The best answer to such questions is, of course, the existence of a clear constitutional provision in which the intervention at issue  can fairly be rested. In the absence of such constitutional authority, judges are apt to grasp at textual straws, and, at the risk of also mixing metaphors, we know that a house built of straw can easily be blown away. In short, the existence of an entrenched constitution does not always make for very solid decision-making.

Indeed, Unison has at least one substantial advantage over Trial Lawyers. Its discussion of the Rule of Law principle is relatively extensive and forthright. The UK Supreme Court makes no apologies about the Rule of Law being central to its decision. The majority opinion in Trial Lawyers, however, approached the Rule of Law somewhat gingerly, and insisted that it is not the main basis for its decision ― though this was not enough to mollify Justice Rothstein, who claimed that

[i]n using an unwritten principle to support expanding the ambit of s. 96 to such an extent the majority subverts the structure of the Constitution and jeopardizes the primacy of the written text. [93]

For my own part, I have argued here that Trial Lawyers should, and could, have been decided on the basis of the Rule of Law principle ― though my argument was a version of the “no making rights nugatory” one that the Unison Court only briefly addressed. Perhaps the Supreme Court of Canada did not address it only because it was not put it by the parties. (The cases on which it rests in the Canadian context are not well known, I suspect.) Perhaps it would have found this argument unconvincing in any event. But I suspect that the Trial Lawyers majority would have hesitated to enlist this argument even if it were convinced by it, due to the sort of concern to which Justice Rothstein appealed (unpersuasively in my view). As Jeremy Waldron observed in “The Core of the Case against Judicial Review”, constitutional adjudication under an entrenched text is liable to pay more attention to the text than to fundamental principle. In my view, this is not always a bad thing ― but it is, admittedly, not always a good one either.

Before concluding, let me note another point of contrast between Trial Lawyers and Unison: their respective treatment of empirical data. The majority opinion in Trial Lawyers is a fairly abstract one, in the sense that its focus is very much on the legal issues. It only briefly alludes to the personal circumstances of the original plaintiff in the case, pointing out that she was “not an ‘impoverished’ person in the ordinary sense of the word” (which made her ineligible for an exemption from the fees at issue). In Unison, meanwhile, statistics and data-based hypothetical scenarios intended to expose the effect of the fees at issue take up an important place in the judgment. The Court reviewed in considerable detail the nature of the disputes to which the fees at issue applied, with the aim of showing that most of them involved parties of limited means seeking to recover small amounts (or, in some cases, to obtain non-pecuniary remedies), as well as the financial effects of these fees on economically vulnerable litigants. The Court linked the precipitous drop in the number of disputes heard to the deterrent effect of excessive, and rarely recoverable, fees, providing the factual underpinning for its legal reasoning. Later on, it also discussed the fees’ failure to raise much revenue, concluding that “it is clear that the fees were not set at the optimal price: the price elasticity of demand was greatly underestimated”. [100] In that way, Unison is similar to cases that are part of what I have been discussing here, using Kerri Froc’s label, as the  “empirical turn” in Canadian constitutional law ― while Trial Lawyers was not.

Despite originating in fairly similar circumstances, then, Trial Lawyers and Unison are quite different decisions. Each has its own logic and responds to its own concerns. But it is also true that they are both parts in delivering a unified message: that of the common law courts’ endorsement, sometimes ringing and sometimes more muted, of the value of access by the citizens to the adjudication of rights claims. Beyond the differences of strictly legal issues and methods, there is a single theme: that, as a matter of political morality, a state that purports to respect and even to create rights must not prevent citizens from asserting them.

Dreaming of Dialogue

Can New Zealand courts declare statutes to be inconsistent with the Bill of Rights Act? Does this matter?

Canadians have long been used to the idea that, as the Supreme Court put it in Re Manitoba Language Rights, [1985] 1 SCR 721, “[t]he judiciary is the institution charged with the duty of ensuring that the government complies with the Constitution.” (745) In New Zealand, things are very different of course, because the constitution is not entrenched. Parliamentary sovereignty prevails, and the courts’ role is limited accordingly. Although there is a statutory bill of rights, the New Zealand Bill of Rights Act 1990, it specifically provides that courts cannot invalidate or otherwise refuse to apply legislation that is inconsistent with it, and contains no remedial provision analogous to section 24 of the Canadian Charter of Rights and Freedoms.

So it is, or at perhaps was, an open question what, if anything, a court might be able to do when it concludes that a statute is inconsistent with the Bill of Rights Act. Might it go so far as to issue a declaration to that effect, or is it limited to only stating this opinion in the course of its reasons? In Attorney-General v Taylor [2017] NZCA 215, the New Zealand Court of Appeal says that, sometimes at least, a formal declaration can be made, and upholds the very first such declaration issued by a New Zealand court, confirming that the disenfranchisement of all convicted prisoners (and not only of those serving sentences longer than the three-year Parliamentary term) is inconsistent with the Bill of Rights Act’s guarantee of the right to vote. (The Attorney-General was not contesting the substantive point, it is worth noting, but only disputing that the declaration could and should have been made.)

* * *

The first question for the Court was whether authority to make a “declaration of inconsistency” existed at all and, if so, what its source was. The answer, the Court holds, is that superior courts have such an authority as part of their jurisdiction to answer questions of law, and that the Bill of Rights Act supported it. The Court rejects the Attorney-General’s submission that express statutory authorization is required to permit the making of declarations of inconsistency. Just as Parliament’s legislative authority does not derive from positive law but from political fact, so does the judicial authority of the courts. Neither branch owes its authority to the other; rather, “a distribution of the state’s sovereign powers among the branches of government emerged from the political settlement concluded in the decades following the Glorious Revolution of 1688”. [50] Ultimately, “[i]nconsistency between statutes is a question of interpretation, and hence of law, and it lies within the province of the courts.” [62]

The Court notes that the Bill of Rights Act itself contemplates the possibility of a judicial assessment of the consistency of other legislation with its provisions, whether its results are stated in the court’s reasons (which the Attorney-General accepted was permissible) or in a formal declaration. Moreover, New Zealand has undertaken to provide domestic remedies for breaches of its obligations under the International Covenant on Civil and Political Rights, the implementation of which is one of the Bill of Rights Act’s stated purposes, so that it should be interpreted in accordance with this undertaking. Besides, in the Human Rights Act 1993, Parliament has already authorized the making of declarations of inconsistency when legislation breaches equality rights. Although the Bill of Rights Act contains no equivalent provision, this “evidences parliamentary acceptance that a court may make declarations about the inconsistency of legislation with rights protected by the Bill of Rights”. [107]

Second, the Court had to address an intervention by the Speaker of the House of Representatives, who argued that the whole case, or at least the way in which it had proceeded, was an infringement of Parliamentary privilege. In particular, the Speaker was concerned by the reliance, at first instance, on a report prepared by the Attorney-General to alert the House of Representatives of the incompatibility (in the Attorney-General’s opinion) between the blanket disenfranchisement of prisoners and the protection of the right to vote in the Bill of Rights Act. Indeed he sought sought to prevent the use of any “speeches in the House, select committee reports or submissions made to select committees” [122] to ascertain the consistency of legislation with the Bill of Rights Act, arguing that this would be tantamount to calling Parliamentary proceedings into question contrary to article 9 of the Bill of Rights 1688 and the Parliamentary Privilege Act 2014. The Court rejected these arguments, holding that “a court does not impeach parliamentary proceedings merely by describing parliamentary processes or making a finding about the same subject matter,” [129] so long as it does “not endorse or criticise Parliament’s treatment of the issues”. [130] It is permissible, too, to refer to the Attorney-General’s report, although it is important for the courts to come to their own, independent conclusions.

Third, the Court considered the conditions in which declarations of inconsistency should or should not be granted. Such declarations, thought they do not affect anyone’s rights, are part of a “dialogue” (it might have been more accurate to say “conversation”) involving the the different branches of government, which

is not unique to constitutional disputes. It describes the routine work of government, in which Parliament legislates and the executive administers and courts interpret, leading in due course to legislative reform to better meet the community’s evolving needs. [150]

The only difference is that a declaration of inconsistency is a “more pointed” [150] than usual expression of a court’s opinion, which carries with it

the reasonable expectation that other branches of government, respecting the judicial function, will respond by reappraising the legislation and making any changes that are thought appropriate. [151]

Such “pointed” expressions of judicial opinion should not be lightly; a statement in the court’s reasons for judgment is sometimes, and even “ordinarily” [162] preferable. But it is sometimes necessary to go further. However, the courts are to apply fairly strict criteria for standing (at least when compared with the Canadian “open bar” approach), and to ensure that there exists a real adversarial dispute and that they have the relevant evidence available to them before pronouncing on the rights-consistency of legislation.

Fourth and last, the Court asks itself whether a declaration should have been granted in this case. It concludes that because “[t]he undiscriminating limitation … on so central a right demanded justification [and] [n]one was forthcoming” a declaration of inconsistency “was the appropriate way both to convey the Court’s firm opinion that the legislation needs reconsidering and to vindicate the right”. [185]

* * *

To Canadian readers this all might seem like pretty tame stuff. And indeed there is no mistaking the notes of caution in the Court’s discussion, above all in its statement that “indications” rather than formal declarations of inconsistency should “ordinarily” suffice. What “ordinarily” will mean in practice remains, of course, to be seen, but at least for now the Court seems to think the step of granting a formal remedy ― even one that could produce no more than a purely symbolic effect ― is a serious, even an exceptional one.

Yet I think it would be a mistake to make light of the Court’s decision and, perhaps more importantly, of its reasoning. Although its conclusions are cautious, it still reflects a confident view of the judiciary’s constitutional position as a branch of government that is, in its own sphere, not Parliament’s subordinate, but its equal. It is worth noting that the primary ground on which the Court rests the authority to make declarations of inconsistency is not an implication from the text or nature of the Bill of Rights Act (as it had done in Simpson v Attorney-General [1994] 3 NZLR 667 (CA), a.k.a. Baigent’s Case, where it held that damages were available for breaches of the Act by the executive). Rather, the authority to make declarations of inconsistency is said to come from the judiciary’s own inherent powers, which the Court goes out of its way to say are not the product of any legislation but of the constitutional order of things (my phrase, not the Court’s). Similarly, the Court resists the Speaker’s attempt to restrict judicial deliberations about Bill of Rights Act issues, even as it cautions that judges must be seen to interfere with the deliberations of Parliament.

Indeed, this case can be seen as a clash between two competing constitutional visions. One, advanced both by the Attorney-General and the Speaker, sets Parliament, protected by its sovereignty and privilege, above the other branches of government, whose first concern must be to avoid disrespecting or challenging it. The other, which the Court adopts, treats the branches as (almost) co-equal: “each is sovereign within its sphere of authority in the sense that it may act without the permission or authority of the others”.[51] To be sure, Parliament is first among equals because it can make law, and thereby oust judicial power (though New Zealand judges, as their British counterparts, have on occasion mused about the limits of that authority) or, in other cases, royal prerogative. But at least until it does so equality, not subordination, is the rule. It is a respectful equality, but respect goes both ways: not only must the courts exercise restraint and show comity on appropriate occasions, but Parliament too ought to engage in constitutional dialogue, and go so far as to reconsider its enactments, when called upon to do so by the courts.

Yet I am quite skeptical about the potential for constitutional dialogue between the judiciary and Parliament, on which the Taylor Court rests such hopes. We know that in Canada the “dialogue” has turned out to be quite one-sided, with the Supreme Court telling Parliament what it had, and what it could not, do. As the majority put in Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 SCR 519, another prisoner disenfranchisement case,

the fact that the challenged denial of the right to vote followed judicial rejection of an even more comprehensive denial, does not mean that the Court should defer to Parliament as part of a “dialogue”. Parliament must ensure that whatever law it passes, at whatever stage of the process, conforms to the Constitution. The healthy and important promotion of a dialogue between the legislature and the courts should not be debased to a rule of “if at first you don’t succeed, try, try again.” [17]

The power dynamics in New Zealand are, of course, the opposite of those in Canada. It is Parliament, not the judiciary, that gets to have the last word in a constitutional conversation. But I do not expect it to be any more open to persuasion than the Supreme Court of Canada. I would love to be proven wrong on this, but I’d be quite surprised if ― assuming there is no change of government at the forthcoming election ― New Zealand’s Parliament chose to “reconsider and vindicate the right” to vote as the Bill of Rights Act, which it was happy to ignore on this issue, requires it to do.

* * *

Subject to an intervention by the Supreme Court, the courts of New Zealand do, then, have the ability to formally declare legislation to be inconsistent with the New Zealand Bill of Rights Act, despite the Act not authorizing them to do so. This authority rests on a conception of the constitution in which the branches of government are almost, if not quite, equal, rather than Parliament lording it over the courts (and the executive). Yet there is reason for skepticism about the vision of respectful dialogue between Parliament and the courts that this relative equality is supposed to foster. Someone gets to have the last word, and it seems likely enough that, in New Zealand as in Canada, it will be the only that will count.

NOTE: See also the comments by Andrew Geddis, on Pundit, and Edward Willis, on his Great Government blog.

The Court on Conventions

Shameless self-promotion for my latest academic article

In academia if not so much elsewhere, the sesquicentennial of Confederation is being used an occasion for some retrospectives on Canada’s constitutional development that go back further than what Ian Holloway ironically calls the “year zero” of 1982. One such retrospective was a very successful conference organized by Matthew Harrington that was held at the Université de Montréal a couple of weeks ago; another, not coincidentally, is a book/special issue of the Supreme Court Law Review edited by prof. Harrington. The book consists of chapters by various Canadian academics examining specific areas of the Supreme Court’s jurisprudence in the realms of constitutional structure, individual rights, and private law.

My own contribution deals with constitutional conventions. In a nutshell, it is a review of the Court’s engagement with constitutional conventions, from the 1930s and into the early 21st century ― I don’t discuss the Reference re Senate Reform, 2014 SCC 32, [2014] 1 SCR 704, because that discussion would have required a separate, and longer, paper. (That paper is what I presented at the UdeM conference; I hope to have it ready for submission soon enough.) I do review some of the scholarly responses to that jurisprudence, and reiterate my own view that the Court’s take on conventions is misguided and should be revisited. Here is the abstract:

Conventions are among the most important rules of the Canadian constitution. Yet orthodox legal theory does not recognize them as being rules of law, a view which the Supreme Court of Canada endorsed in the Patriation Reference. Nevertheless, both before and after the Patriation Reference, the Court’s jurisprudence engaged with existing or alleged constitutional conventions. This article reviews this jurisprudence, and the scholarly commentary that responded to it. It concludes that the Court’s endorsement of the orthodox view that there exists a rigid separation between conventions and law was poorly justified, and ought to be abandoned.

The paper is available on SSRN. As Lawrence Solum says, download it while it’s hot!

An Invitation

Can those who endorse “living tree” constitutional interpretation tell us why, and what it entails?

When Benjamin Oliphant and I wrote our twin articles on originalism in Canada, we did our best to avoid normative conclusions other than a call for further reflection on, and greater consistency in, constitutional interpretation. But, for me at least ― I cannot speak for my co-author, of course ―, the normative inquiry seems like a natural step to be taken soon. (We’ll see when and in what form.) And, right now, my preliminary view is that Canadian constitutional jurisprudence ought to be (more) originalist (than it is now), because the alternative, the “living tree” approach to constitutional interpretation, suffers from various problems.

But before really getting into an argument about why this is so, I probably need to understand what it is that I want to argue against better. I have no wish to attack a straw-man. And there is a greater than usual danger of doing so in debates about constitutional interpretation. As Mr. Oliphant and I have shown, originalism is often poorly understood in Canada, and only obsolete or caricatured versions of it are criticized. In part, this is as no doubt due to a lack of a good Canadian review of what originalism is, which is why we devoted a good deal of space and effort to producing one. Unfortunately, I am not sure that there is an equivalent statement of the views of the other side in this debate either.

So, I would like to ask for my readers’ help. Presumably, many of you think that the constitution ought to be understood as a “living tree”. That’s what the Supreme Court often tells us, after all, even as it not infrequently does something else altogether. It would be very helpful, in advancing the debate about constitutional interpretation, if both sides articulated their views clearly. Presumably, the “living tree” camp has had a while to form its beliefs, even if it has not had much need to explain them in recent decades. Can some of those in this camp take a stab at doing so now?

One way of going about it would be to bring into sharper focus the living constitutionalists’ objections to originalism. To do that, they might address some of the issues that Lawrence Solum describes, in a most helpful recent post on his Legal Theory Blog, as being the main ones “that divide originalists and living constitutionalists.” Here they are, reformulated as questions for living constitutionalists and adapted to the Canadian context:

1) Do you think that the linguistic meaning (communicative content) of the constitutional text changes over time after its entrenchment (say in 1867 or 1982)?

2) Do you think that the Supreme Court, Parliament, and the provincial legislatures should have a power to modify or override the communicative content of the constitutional text in response to changing circumstances and values?

3) Do you think that the original meaning of constitutional text is either radically indeterminate or so underdeterminate that originalism would not meaningfully constrain constitutional practice?

4) Do you think that the original meaning of our constitutional texts is epistemically inaccessible (i.e. we cannot know, or at least show that we know, what it is)?

5) Do you think that that judges are incompetent to investigate original meaning or so biased that they will be unable to act in compliance with original meaning (perhaps even if dispassionate scholars could do so)? In other words, do you think that originalist judges would simply be ideologues?

(Professor Solum asks an additional question, whether those who reject originalism want to “simply retire the Constitution as a framework of government”, but I’m pretty confident that few if any Canadian living constitutionalists do. Perhaps they have other objections to originalism though. If so, I would love to hear about those too.)

Beyond clarifying their objections to originalism, it would be great if some proponents of “living tree” constitutional interpretation clearly articulated their positive commitments or beliefs. To this end, I would like to suggest a few more questions, though I do not mean the list to be exhaustive:

6) Is updating constitutional meaning the exclusive prerogative of courts, or can other institutions (Parliament, the legislatures, the Crown) do it too? Why? If political actors can “actualize” constitutional meaning, should the courts defer to their attempts to do so?

7) When courts or other constitutional actors update constitutional meaning, what should they be taking into account? There are several possibilities: judicial precedents; popular opinion; the rules or principles expressed or implicit in non-constitutional law (perhaps especially legislation) as it stands from time to time; the judges’ own philosophical beliefs; perhaps others.

8) Are there any constraints on courts or other constitutional actors updating constitutional meaning? What are they? Are such constraints useful or indeed essential?

I am not being facetious here. When I say that these are questions to which I do not know and would like to learn the answers, I mean it. They are big questions, of course, and you might think that to answer them in an appropriately serious fashion you would need to write an article, or even a book, and have no time for that. Fair enough. Or you might make that your next project, in which case I will be looking forward to reading you whenever you are ready! But if you would like to attempt some short answers, that would be fantastic. I would be delighted to publish them, if you are ok with me doing so, or I will keep them for my own edification. It’s all up to you.

Arguing against Originalism Badly

Noura Karazivan’s flawed argument against using originalism to understand constitutional structure

Noura Karazivan has recently published an article called “Constitutional Structure and Original Intent: A Canadian Perspective” in the University of Illinois Law Review. Prof. Karazivan raises interesting questions: what is, and what should be, the mix of originalism and living constitutionalism in the Supreme Court’s treatment of constitutional structure ― understood as the set of institutions that make up Canada’s government, and the relations among them. Unfortunately, prof. Karazivan’s argument suffers from her failure to engage seriously with contemporary originalist thought, or indeed to take note of recent work exploring it in the Canadian context, and her answer to the normative question, which decisively favours living constitutionalism, is unsatisfactory.

* * *

Prof. Karazivan’s starting point is an orthodox proposition: “[i]n Canadian constitutional law, there is no doubt that a broad, purposive, and progressive approach”, described by the famous “living tree” metaphor, “is preferred” for the interpretation of any and all constitutional provisions, (630) though she acknowledges that the Supreme Court uses other interpretive methods too. In addition to being used in the interpretation of constitutional text, living constitutionalism has played a crucial role in a number of decisions concerning constitutional structure. For example, in l’Affaire Nadon, Reference re Supreme Court Act, ss 5 and 6, 2014 SCC 21, [2014] 1 SCR 433, the Court’s “conclusion would probably have been different” had it not engaged in “actualizing” its place in the constitutional structure, and only looked “its role in 1875”. (648)

Yet in a couple of recent decisions, says Prof. Karazivan, the Court adopted a more originalist approach to constitutional structure, rather than the evolutionist one that it normally favours. Prof. Karazivan focuses on Reference re Senate Reform, 2014 SCC 32, [2014] 1 SCR 704, but also mentions Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC 59, [2014] 3 S.C.R. 31. In the former, “the Court greatly relied on the intent of the 1867 framers”, (646) who wished the Upper House to supply “sober second thought”. The Court disregarded the practice of partisan appointments to the Senate, the Senate’s contemporary role, and even “the impact of the enactment of the Constitution Act, 1982”, (647) which arguably transferred the role of protector of constitutional rights from the Senate to the judiciary. Meanwhile, in Trial Lawyers, the superior courts’ historic dispute-settling role was crucial to the decision.

Prof. Karazivan argues that the Supreme Court was wrong to resort to originalism in these decisions. She gives four reasons. First, she takes Re B.C. Motor Vehicle Act, [1985] 2 SCR 486 to stand for the proposition that the judiciary is not bound by the intent of constitutional framers. Second, originalism can make no democratic claim in Canada, since the Constitution Act, 1867 was the work of “a group of white men, mostly Parliamentarians, concerned with the preservation of British institutions on Canadian soil”, while “[t]he constitutional negotiations in 1982 were even less ‘democratic'”. (651; square quotes in the original) In short, “Canada does not have a great constitutional moment”. (651) Third, the Canadian constitution is simply too rigid for the courts not to update it from time to time. Finally, a “living tree” approach to interpretation yields a fuller understanding of both the constitution as a whole and its various components, as well as being “in line with Canadian constitutional structure and tradition”. (654)

* * *

As I said at the outset, this is unconvincing. Prof. Karazivan repeats pieties about the superiority of living constitutionalism to originalism without understanding what originalism actually is. Although she refers, in passing, to the distinction between originalist interpretation that seeks the intent of constitutional framers and that which centres on the constitution’s original public meaning, her article focuses on original intent ― which relatively few contemporary originalists are still committed to. Prof. Karazivan also enlists a number of cases, such as the BC Motor Vehicle Act Reference and Reference re Employment Insurance Act (Can.), ss. 22 and 23, 2005 SCC 56, [2005] 2 SCR 669, in support of the proposition that living constitutionalism is the dominant approach to interpretation in Canada, while originalism has been rejected. Yet Benjamin Oliphant and I have shown that not only do these cases not support the claim of a wholesale rejection of originalism, but they are arguably (in the case of the BC Motor Vehicle Act Reference) or quite clearly (in the case of Employment Insurance Reference) consistent with public meaning originalism.

More broadly, we have also shown that the Supreme Court has never squarely rejected the more plausible forms of originalism, and indeed that various forms of originalist reasoning make frequent, if erratic, appearances in the Court’s reasoning. In particular, as both we and J. Gareth Morley and Sébastien Grammond have observed, originalist reasoning features heavily not only in the Senate Reform Reference, which prof. Karazivan decries, but also in the Nadon Reference, which she commends. Mr. Oliphant and I have also pointed out that cases on the jurisdiction of superior courts have had an originalist bent well before Trial Lawyers. In short, at the level of description, prof. Karazivan’s story, in which a largely living constitutionalist Supreme Court issued a couple of aberrant originalist decisions is much too simple.

Prof. Karazivan’s normative argument is even weaker. Her appeal to the authority of Justice Lamer’s opinion in the BC Motor Vehicle Act Reference has to be set against not only the arguable  consistency of this opinion with public meaning originalism, but also its author’s resort to more explicitly originalist reasoning elsewhere. For instance, in B(R) v Children’s Aid Society of Metropolitan Toronto, [1995] 1 SCR 315 he wrote that

[t]he flexibility of the principles [the Charter] expresses does not give [the courts] authority to distort their true meaning and purpose, nor to manufacture a constitutional law that goes beyond the manifest intention of its framers. (337)

Prof. Karazivan’s denial that Canada had “a great constitutional moment”, and her insistence that the drafting of the Constitution Act, 1867 (by “white men”) and that of the Constitution Act, 1982 (presumably by persons unknown) would be simply bizarre were they not sadly typical of the ritual denigration of Canadian constitutional history in which even Supreme Court judges have been known to engage. The truth, though, is that Canada did have not one, but two great constitutional moments ― in the mid-1860s and the early 1980s. My friend Alastair Gillespie has been exploring the first of these in a compelling (and ongoing) series of papers for the Macdonald-Laurier Institute, which, as I have written in a recent post for the CBA National

make clear [that] the Fathers of Confederation wrestled with such seemingly contemporary questions as whether diversity is a source of weakness of strength for a political community, what claims such a community may legitimately make on minorities within its midst, and what rights these minorities may assert against the community. The settlement of 1867 was a remarkable achievement in this regard.

To be sure, the Fathers of Confederation were indeed white men ― as were those who took part in the framing of the US Constitution, to which prof. Karazivan does not deny the status of a “great constitutional moment”. This is one reason, among others, why I do not find the democratic case for originalism very compelling. But the sexism and racism of our 19th-century forbears is not a reason for dismissing the substance of their achievements; and least of all for allowing a group nine men and women, who are if anything even less representative of society than the Fathers of Confederation on every dimension except for gender, the power to re-write the constitution. As for the enactment of the Canadian Charter of Rights and Freedoms, it was preceded by wide-ranging public consultations which resulted, for example, in the adoption of section 28 at the urging of feminist groups, as Kerri Froc has shown. Why prof. Karazivan claims it was undemocratic, I cannot understand.

That the constitution is rigid and difficult to amend is a feature, not a bug that needs to be removed by the backdoor expedient of judicial reinterpretation. The politicians who came up with and agreed to the amending formula in Part V of the Constitution Act, 1982 obviously thought it was flexible enough. Why were they wrong? That said, had prof. Karazivan taken public meaning originalism, and in particular the work of those originalists who recognize the distinction between constitutional interpretation and constitutional construction, seriously, she would have realized that many, perhaps most originalists do not advocate for a static constitutional law. They insist that the meaning of the constitution’s text is fixed, but recognize that this text can in fact be applied to facts and circumstances quite unforeseen at the time of its drafting through the development of constitutional doctrine.

Finally, I fail to see how living constitutionalism can lead us to a better understanding of the constitution. The argument, insofar as I understand it, seems question-begging. Saying treating the constitution as a “living tree” allows us to understand it better presupposes that the object of constitutional interpretation is the contemporary constitution rather than the intention of the constitutional text’s drafters or its original public meaning ― which is very much the point in issue. To be sure, Canadian constitutional tradition is laden with denunciations ― usually quite ignorant denunciations ― of originalism. But as the emerging Canadian scholarship that takes originalism seriously shows, these denunciations do not tell us the whole story. Nor can they serve as a normative justification in the absence of any more compelling ones.

* * *

As I mentioned at the outset, prof. Karazivan addresses an important question, that of the place of originalism in the Supreme Court’s understanding of constitutional structure. Unfortunately, she does so in a way that reflects a simplistic or outdated understanding of originalism, and as a result oversimplifies relevant precedents and offers thoroughly unconvincing arguments against originalism. That her arguments do not succeed does not show that the Court is right to be as originalist as it is, or that it ought to be more so. That case remains to be made. But so does prof. Karazivan’s in favour of living constitutionalism. Her article does not advance it.

Why I am Not a Conservative Either

Thoughts on Chief Justice Joyal’s very interesting speech on the Charter and Canada’s political culture

Glenn D. Joyal, Chief Justice of the Court of Queen’s Bench of Manitoba, gave the keynote address at last January Canadian Constitution Foundation’s recent Law and Freedom Conference. His talk, “The Charter and Canada’s New Political Culture: Are We All Ambassadors Now?”, was interesting and thought-provoking. Although the prepared text has been available on the website of Advocates for the Rule of Law for some time, the CCF only posted the recording of his remarks yesterday, so now is the time for me to comment. Chief Justice Joyal sought to attract his audience’s attention to fact that Canadians have come to believe that courts, rather than legislators, are the forum in which important social issues must be settled. This is both a consequence of our lack of respect for legislatures, and a reason for why elected institutions find themselves in a weak position vis-à-vis the courts. Chief Justice Joyal would like to change our political culture. I am not persuaded that change in the direction he envisions would be for the better.

Before I go any further, however, I would like to thank Chief Justice Joyal for referring to my exchange with my friend Asher Honickman on the scope and judicial approach to section 7 of the Charter in the Q&A. (My posts are here, here, and here.) After Justice Stratas on the same occasion last year, Chief Justice Joyal is the second sitting judge to mention my blogging, and this is, needless to say, most gratifying for me personally, but also as a believer in the value of this still-underappreciated medium.

* * *

Political culture, according to Chief Justice Joyal’s definition is the set of

attitudes and beliefs that citizens and its specific institutional actors hold about the political system. Political culture can also be seen as the conglomeration of ideas and attitudes which set the parameters in which debate over policy justifications take place.

(The quotes, here and below, are from the text published by ARL)

Historically, Canada’s political culture was a mix of “liberal” and “non-liberal” (partly “Tory” and partly “social-demoratic”) ideas, which were bound together by a belief in Parliament and the legislatures as the arbiters of social conflict and makers of common rules for the common weal. Since the Canadian Charter of Rights and Freedoms came into force, however, the belief in legislative authority has been eroded. Instead, “a broad cross-section of the Canadian citizenry and its institutional actors” have developed

an almost unconditional willingness to accept or endorse the idea of judicial adjudications in respect of what are often complex and even insoluble social and political problems. What were once political issues are now frequently transformed into legal issues.

This, in turn, has created a “new and imbalanced relationship between the judiciary and the legislative branch”.

According to Chief Justice Joyal, these developments were not contemplated by those who made the Charter. It was, after all, a compromise between Pierre Trudeau’s federal government, which insisted on an entrenched set of protected rights, and provinces that were wary of restrictions on Parliamentary sovereignty and the “innovations” introduced by an “extremely potent judiciary” in the United States. Measures were taken to prevent a repetition of the American experience in Canada. The Charter contains section 1, which allows rights to be limited, and section 33, which

was meant to signal to the courts, a caution, a caution in respect of any misconception that the judiciary might have were they, the judiciary, inclined to give the absolutely most expansive scope to the enumerated Charter rights.

For its part, section 7 was drafted

to avoid any language that would mandate substantive review and that would have the effect of permitting s. 7 to be interpreted to mean just about anything that could attract five votes on the Supreme Court of Canada.

Yet these “common expectations” about how the Charter would be applied and what role it would play have not been fulfilled. The Supreme Court read section 7 to require substantive review of legislative choices. It engaged in interpretation and re-interpretation of the Charter that expanded the set of rights that its framers had chosen to protect. It loosened the rules of standing and justiciability, causing more claims to be brought. It weakened precedent, allowing issues to be re-litigated just a decade or two after they were (we thought) settled. It applied section 1  by engaging in the “traditionally legislative function” of “ad hoc interest balancing and cost benefit analysis”. The notwithstanding clause, meanwhile, turned into a “nuclear option” ― and a dead letter.

Chief Justice Joyal worries that this all has caused legislatures to be marginalized. Indeed, there has been a “flight from politics toward the zero-sum game of Charter litigation”, which

often leaves the broader citizenry on the sidelines in a potentially disempowered state[,] not always able to understand, discuss or debate, the highly technical and legalistic formulations and tests which now often form the basis of a final determination concerning a significant societal issue.

This trend ought to be reversed, in part through “continuing efforts at renewal of parliamentary and political institutions”, so as to “restor[e] a peculiarly Canadian institutional balance in the judicial/legislative relationship”, featuring “a resuscitated and bold legislative branch [able] to once again assertively shape attitudes and policies”, and even to “articulat[e] and promot[e] its own interpretation” of the Charter. The traditional Canadian political culture, with its mix of liberal and non-liberal sensitivities and belief in the public good as expressed in legislation ought to prevail over the

more American liberal / rationalist approach to rights protection, [which] gives expression to what used to be a very un-Canadian distrust of government [and] arguably removes more and more areas from legitimate spheres of government action and influence.

* * *

I am, I’m afraid, part the problem that Chief Justice Joyal identifies. I distrust government ― partly because I believe that power corrupts, partly because I democratic government is subject to ineradicable problems of political ignorance (and courts might not be much of a solution), partly because of what public choice theory has taught us. I am a (classical) liberal, an unapologetic one. Whether this is un-Canadian, or indeed peculiarly American, I hesitate to say. I do, however, reiterate my belief that one should not fall for the old trope of reading differences of national psyche into the alleged contrast between “life, liberty, and pursuit of happiness” and “peace, order, and good government”. My friend Alastair C.F. Gillespie and Brian Lee Crowley pointed out, in introducing what is looking to be a fascinating series of papers on Confederation by Mr. Gillespie, that “[c]omparisons of American revolutionary ideals and Canada’s supposedly ‘Tory’ Constitution have sometimes been too crudely made” and argue that “Canadians should … take pride that our founders’ speeches breathe an atmosphere of liberty, even if that liberty was not yet wholly realized.” (4-5) But be that as it may, I am rather skeptical that a return to politics would do us much good.

Now, unlike the dominant tide in Canadian political culture against which Chief Justice Joyal wants to push back, I am not uncritical of the courts ― of their power and of the manner in which they exercise it. But when I argue that courts overstep the bounds of their constitutional role, it is not out of any special solicitude for legislatures. It is because I believe that all power must be limited, and that those who wield it must not fancy themselves the saviours of society, when they are only its servants. This applies to the judicial power ― and also to the legislative and the executive. So I share Chief Justice Joyal’s discomfort at some of the post-Charter jurisprudential developments ― at the excessive ease with which courts have sometimes granted public interest standing, the creation of constitutional “rights” out of whole cloth, the often unprincipled application of section 1 balancing.

But, to repeat, these matters worry me because they, and other things, like extra-judicial statements that call into question judges’ commitment to the Rule of Law, raise the spectre of a judiciary that denies any constraint on its power ― and not because they portend an erosion of legislative power or mark a departure from the “common understandings” of 1982. Constitutional texts have a way of not working out the way their framers expect them to (my go-to example on this is the upending of the mechanism for electing the president set up by the Constitution of the United States), especially of course when the framers rely on “understandings” instead of actually writing down what they mean. So I am not bothered by the development of the norm, perhaps even the convention, against the use of section 33 of the Charter (which, as I have argued even in the face of some decisions that I would desperately like to see undone, has served us well ). Nor am I bothered by the Supreme Court’s reading of section 7 as encompassing substantive as well as procedural principles of justice, which ― as Benjamin Oliphant and I show in our recent Queen’s Law Journal article ― was at least a defensible interpretation of that provision’s original public meaning, even though it clearly contradicted its framers’ intent. It is only the meaning, in my view, that is binds the courts. (Chief Justice Joyal suggested, in the Q&A, that we might distinguish between “garden-variety” cases in which meaning might be controlling, and other, especially important ones, in which we must refer to intent. I do not see how such a distinction could operate.)

Ultimately, I do not share Chief Justice Joyal’s concern that

judicial incursion into subject areas and issues of profound political, moral and social complexity[] has the potential effect of removing these issues from the civic and political realms where ongoing and evolving debate and discussion may have taken place.

A very similar concern motivates Jeremy Waldron’s critique of (strong-form) judicial review of legislation. The critique is a powerful one, but here is, I think, the “principled” objection to it. (Ilya Somin’s objection based on political ignorance is also an important one, but it is more contingent, in theory anyway.) The concern with what Chief Justice Joyal describes as the “de facto constitutionalization of political and social issues” assumes that some issues are inherently “political” and/or “social”, and must therefore be resolved through society’s political institutions. Prof. Waldron’s position is, in effect, that every conceivable issue is of this sort, though Chief Justice Joyal’s views do not extend so far. (Chief Justice Joyal said, in his talk, that we must “respect” the Charter.) But I am not persuaded by the claim, whether in its more radical Waldronian form, or in Chief Justice Joyal’s more moderate one.

The frontiers between law’s empire and that of politics are not immutable. There is no reason to believe that the position that every social issue is by default subject to politics is entitled to be treated as a baseline against which a polity’s constitutional arrangements ought to be measured, and any departure from it justified and limited. It is the position of some political cultures ― say that of post-New Deal political culture in the United States, which reached its peak in the 1940s before declining in the subsequent decades, as the U.S. Supreme Court started vigorously enforcing guarantees of (non-economic) individual rights, or of New Zealand even to this day. But these political cultures have no automatic claim to superiority or to permanence. They are liable to be supplanted, just as they supplanted their predecessors.

The defenders of these political cultures,think that pervasive economic regulation is the legislatures’ prerogative, should they choose to exercise it. (Prof. Waldron is explicit about this, in some of his work on the Rule of Law.) To be clear, I am not suggesting that they would support any given form of regulation as a matter of policy ― only that they think that legislatures are entitled to regulate, wisely or not. But previously, many economic issues would not have been considered to belong to the domain of politics at all; the framers of the Constitution Act, 1867 would likely have been shocked to learn about the extent of the economic regulation in which the institutions they created now engage. They would have thought an employee’s wages a matter to be settled between him and his employer, not a concern for society at large and thus not a fit subject for legislation. Of course, they did not provide mechanisms for courts to enforce these limits on legislative power, in part, one may suspect, because they did not expect them to be necessary. But that does not mean that they thought the legislatures were entitled to interfere in people’s lives in the ways that came to be increasingly accepted half a century later. The political culture changed ― not for the better in this instance, in my opinion. But why should we accept this change, and foreclose or resist subsequent change that reduces instead of expanding the domain of the political?

* * *

Chief Justice Joyal’s address is a powerful and eloquent statement of what might be described as the foundation for a (small-c) conservative constitutional vision for Canada. (This is not to say that he would accept this label, or perhaps even that it is an especially accurate one. But insofar as any label can be useful, this one is as good as any I can think of.) Having, along with Andrew Coyne and Bob Tarantino, complained about the (big-c) Conservative government’s failure to articulate such a vision in its near-decade in power, I welcome this statement. Moreover, I happen to share some of Chief Justice Joyal’s concerns about the acquiescence of the mainstream Canadian legal and political culture in the increasingly unbridled exercise of the judicial power by the Supreme Court.

However, although I may learn from conservatives, and sometimes make common cause with them, ― and am particularly happy to do so when they are as intelligent and articulate as Chief Justice Joyal ― I am not a conservative myself. I do not share the conservative vision of the constitution. Like Hayek, “I personally cannot be content with simply helping to apply the brake” (2) on whatever (constitutional) innovation might be put forward in the name of “progress”. As a liberal, I want “to go elsewhere” (2) ― not back to the 1970s, or indeed even to the 1870s ― but to a never-yet seen political culture in which, in Lord Acton’s words, “[l]iberty is not a means to a higher political end. It is itself the highest political end.” If, as Chief Justice Joyal suggested in the conclusion of his speech, this ideal is at odds with the Canadian identity, so much the worse, I say, for that identity.

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.