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.

All Greek

On Monday, the Supreme Court of the United States delivered its judgment in the case of Town of Greece v. Galloway, finding constitutional the town’s practice of opening the monthly meetings of its board with a prayer read by a “chaplain of the month,” chosen from among the town’s religious congregations. I have blogged about this case here and here, because the issue it presented seems, at first glance anyway, very similar to that which the Supreme Court of Canada will have to decide in Mouvement Laïque Québécois v. City of Saguenay, which is also about a town opening its council meetings with a prayer. However, the decision of the Supreme Court of the U.S. is further proof of what I had already noted: the two cases are more different than they might seem, not only in their facts but also in the relevant precedents and legal traditions, so that there relatively few lessons to be drawn from one to the other.

Briefly, there are two main components two Justice Kennedy’s majority opinion in Town of Greece. One is an originalist or, perhaps more accurately, historicist argument to the effect that, because legislative prayer has always been a feature of American life, since the very first Congress, the same one which adopted the constitutional protections of religious freedom, paid a chaplain to open its sessions with prayer, these constitutional protections cannot be read to render such prayer impermissible. Indeed,

it is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted. Any test the Court adopts must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change. (8)

The second component of Justice Kennedy’s opinion is his insistence that “non-establishment” of religion requires not the removal of religion, whether sectarian or generic, from the public sphere, but something like non-discriminatory access for different religious sects. Legislative prayers need not be generic; they can be as sectarian as the chaplains delivering them wish them to be, at least so long as they do systematically exclude or demean people of other faiths. Indeed, it would be impermissible for government (whether the Town’s authorities or a court) to police a chaplain’s words in order to expunge from them impermissible sectarianism. Short of systematic disparagement and exclusion, it is enough that the authorities inviting chaplains not unduly favour those of one religious group.

Justice Kagan’s dissent disputes not the majority’s general arguments, but its view of the practice in the case at bar. She too thinks that history justifies and validates legislative prayer. She too thinks that prayer need not be cleansed of sectarian elements. Unlike Justice Kennedy, she thinks that the Town’s almost unvarying choice of Christian chaplains amounted to an alignment of the Town with one religion, breaching the principle not so much of separation between church and state as of equality. With more diversity, including efforts to reach out to minority religious groups, the prayer would have been fine.

None of this will be very helpful to the Supreme Court of Canada when it considers the,  prayer in Saguenay. At the level of facts, Saguenay’s prayer practice is almost the opposite of that approved in Town of Greece. The text of Saguenay’s prayer is a purportedly ecumenical one, mandated by a municipal by-law, and it is read by the mayor himself. Despite a superficial inclusiveness (more apparent than real, since it excludes non-believers as well the adherents of non-monotheistic religions), it arguably entangles the municipality with religion to a greater extent than the invocations read by invited chaplains. As for reasoning, the American historicist approach is unlikely to be of much assistance to the Supreme Court of Canada, which has consistently rejected it in Charter cases.

The Supreme Court of Canada will thus need to craft its own approach to the issue of prayer before a municipal council. Although it is always best to try to learn from what our neighbours do, it is not always possible. In this case, the American approach cannot provide much, if any, useful guidance. It is, really, all Greek to us.

A Little Knowledge

Twitter and the blogosphere (ok, the parts of Twitter and the blogosphere that I frequent) are pretty excited about the Constitute Project, which sets out to “offer[] access to the world’s constitutions that users can systematically compare them across a broad set of topics.” Google, which has provided money and support for the project, proclaims that its “aim is to arm drafters with a better tool for constitution design and writing. We also hope citizens will use Constitute to learn more about their own constitutions, and those of countries around the world.” Marvelous, isn’t it? Well, please allow me to rain on the parade.

What the Constitute Project provides is not “access to the world’s constitutions.” It is access to (many of) the world’s constitutional texts. (Not all of them, mind you ― Canada isn’t there for instance, which is an interesting omission to make for people who claim to want to help constitution-drafters, given the influence which the Canadian Charter of Rights and Freedoms has had on recent constitution-making.) But a constitutional text is not the constitution. It is, at best, an incomplete statement of the constitution, and at worst a deliberate lie.

Some countries (admittedly, not many ― so far as I know, only the U.K., New Zealand, and Israel) lack an entrenched constitutional text at all.  That doesn’t mean, of course, that they lack constitutions in a substantive sense, that is to say rules that set up the institutions of state, define and limit their powers, and regulate their relationships with one another. Only there is no need, as I have argued here, for such rules to be entrenched.

Needless to say, this applies also to constitutions which are partly entrenched, and partly not, such as Canada’s and Australia’s. By looking at our constitutional texts, one could not know that Canada and Australia are parliamentary democracies, because rules which subordinate the exercise of (almost all) royal powers to the “advice” of a Prime Minister and Cabinet responsible to Parliament are not in there. They are “conventions of the constitution,” to which courts and orthodox legal doctrine deny the status of legal rules at all. Yet one could not understand the constitutions of countries such as Canada and Australia without reference to these rules.

But the point about not all constitutional rules being in entrenched constitutional texts of the sort the Constitute Project collects is broader still. Conventions can exist everywhere, including countries which consider their constitutions to be essentially written and entrenched, such as the United States. (It is convention, for instance, that requires states to set up popular elections for the presidency.) But no less important than conventions are rules found in ordinary legislation and in judicial decisions. It is ordinary legislation, for instance, that defines the composition and the jurisdiction of the U.S. Supreme Court, or the numbers of members of the U.S. House of Representatives and the Canadian House of Commons. Judicial decisions can create new constitutional rights, or extend the protections of existing ones to news groups ― or reduce rights or structural protections apparently guaranteed by a constitutional text into insignificance.

That a constitutional text does not tell the whole story of a constitution is normal even when it is taken seriously by the political actors and the judiciary. As Chief Justice Marshall pointed out in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 159 at 200,

[a] constitution [meaning, of course, a constitutional text], to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would, probably, never be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects, be deduced from the nature of the objects themselves.

But then there is also the case of polities that do not take their constitutional texts seriously at all. They have such texts because it is somehow de rigueur to have them, and also because they allow the governments that produce them lie, to their own people first and foremost, and also to some useful idiots abroad, about the wonderful rights their people have. Unless one aspires to be among the useful idiots, these constitutional texts do not deserve to be taken seriously at all. Does anyone in his or her right mind think that “[c]itizens of the People’s Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration,” as art. 35 of its “constitution” (as translated by the Constitute Project) claims?

A little knowledge, it is said, is a dangerous thing ― because “a little knowledge” means incomplete knowledge, and incomplete knowledge is often misleading. The little knowledge the Constitute Project offers about the world’s constitutions is a case in point.