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.

De la formation du gouvernement

Juste avant les élections fédérales en Octobre, j’avais participé (en compagnie de Hoi Kong) à une mini-conférence à l’Université de Montréal, intitulée « Gouvernements minoritaires et/ou de coalition : Legality and/or Legitimacy ». La chose m’avait échappé à l’époque, mais ma présentation est disponible en ligne. Évidemment, elle ne s’est pas avérée très pertinente vu le résultat du vote du 19 octobre, mais elle pourrait l’être dans quelques années, d’autant plus si le système électoral est modifié entre temps. La voici.

Keeping Secrets

I wrote, a while ago now, about the electoral practices of Georgian England, including the brazen, and fantastically expensive, corruption which elections involved. This weekend, the BBC published a fascinating story by Alasdair Gill, looking at a change in the electoral rules that happened during the Victorian age ― in 1872, to be precise ― and which helped put an end to the corruption, as well as the violence, which also used to be an inextricable part of a British election campaign: the introduction of the secret ballot.

We now take “the secrecy of the polling booth” for granted, as well as the fact that elections do not involve brawls, injury, or even death. But as Mr. Gill reminds us, “[u]ntil the Ballot Act was passed in 1872, voters had declared their candidate openly, leading to drunken fights, intimidation and bribery.” Each elector’s vote was recorded in a “poll book” ― and if he had not done as he had been told, those doing the telling would know:

[d]eciding who to vote for was previously a dilemma not just for you but for your boss at the local factory or your landlord, both of whom could see you out of your job or your house.

And for those who could not be threatened, there was always bribery of varying degrees of subtlety, including booze by the pint, quart, and gallon. For instance,

[i]n Gloucester during parliamentary elections in 1857 and 1859 the Tory party agent gave out food and drink to local supporters and lavished funds on Tory voters who acted as messengers, flag-bearers and bandsmen.

On other occasions, votes were simply bought, with supply and demand determining the price. On one occasion cited by Mr. Gill, a vote went for “about £14 – £1,200 in today’s money.”

And there was violence, ranging from “voters being kidnapped, plied with alcohol and then marched to the polls with a candidate’s name in their ear,” to “gangs” that “smashed windows around the venue of the hustings and waved poles topped with the severed heads of sheep,” to actual murder.

Incredible as it may seem now, there were quite a few people who liked things to be that way. According to a professor quoted by Mr. Gill, some thought “that it was only right for people to vote in an open fashion because that was the responsible thing to do.” Others simply “liked the parties and the bribes.” And, of course, many politicians were reluctant to let go an electoral system that had worked well for them, although it would have been interesting if Mr. Gill had discussed the effects of the Reform Acts of 1832 and, especially, of 1868 on the politicians’ views. Both of these statutes expanded the franchise, the latter quite dramatically, and the expenses on booze and thuggery which might have been sustainable with relatively few voters to bribe or intimidate might have become unsustainable as the country moved towards universal suffrage, which may well have helped overcome the resistance of some incumbent MPs.

* * *

In my post on 18th-century elections, I pointed out that it is sometimes “enough to enjoy the similarities and the differences between the past and the present for their own sake, as curiosities,” without attempting to draw lessons from them. Here, however,  there is actually a pretty obvious lesson to be learned.

It is that rules on ballot secrecy, including provisions, such as par. 164(2)(b) of the Canada Elections Act, which provides that “no elector shall … show his or her ballot, when marked, so as to allow the name of the candidate for whom the elector has voted to be known,” exist for a very good reason. When people are prosecuted for infringing such rules ― even when they are just proud and excited voters tweeting their pride and excitement for the world to see ― they are not the victims of a brutish Leviathan enforcing obsolete rules that serve no useful purpose. These rules protect us from the abuses that become possible when ballots are not secret ― abuses that are not the figments of some incumbent-protecting imagination, but a well-documented feature of our past.

Remarkably, Steven Fielding, another academic quoted by Mr. Gill, believes that the secret ballot is not that important anymore. “You might think,” muses, “that if people are voting secretly, then they are voting for their own selfish interests.” In his view, the secret ballot was introduced because “you couldn’t police [public voting] properly to protect people from intimidation, but you could do that now.”

I suspect, however, that Mr. Fielding is wrong both counts. He is certainly wrong to claim that the secret ballot causes people to vote selfishly ― simply because, as for example Jason Brennan recently pointed out over at Bleeding Heart Libertarians,

we have overwhelming empirical evidence, drawn from hundreds of studies, that they don’t vote their self-interest. Instead, they vote altruistically, for what they perceive to be in the national interest.

And Mr. Fielding is, it seems to me, much too optimistic to believe that we could police the intimidation that would result from our votes being made public. Intimidation can be subtle, and ― almost by definition ― victims will often be reluctant to complain. Add to this the pressures of this era of online shaming, and you have a recipe for abuses that will perhaps take a somewhat different form, but a no less disturbing magnitude, than those of the Victorian age.

“Maybe we don’t need the secret ballot any more,” wonders Mr. Fielding. Actually, we do. It was one of the greatest inventions of a century that did not lack for them, and there is no reason to give it up.

NOTE: The situation in Canada, before the secret ballot was introduced here in 1875, was no better than in the UK. I don’t discuss it here because I’ll probably do at least one separate post on the history of Canadian voting arrangements, based on an excellent account available at the Elections Canada website.

The Discomforts of Religion

Religion gives law a lot of trouble. Most often, the difficult question is what to do about it ― what to do about prayer at municipa council meetings, what to do about religious believers asking for exemptions from general laws. But sometimes, the law must confront a more basic, and perhaps an even more difficult question: what is religion in the first place? The Supreme Court of Canada has not had to say very much on this vexed subject. The most it did say was Justice Iacobucci’s pronouncement, without much explanation, in Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 SCR 551, at par. 39, that

[i]n essence, religion is about freely and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfilment, the practices of which allow individuals to foster a connection with the divine or with the subject or object of that spiritual faith.

The Supreme Court of the United Kingdom, however, had to address the question of the nature of religion in a case it decided earlier this week, R (on the application of Hodkin and another) v Registrar General of Births, Deaths and Marriages, [2013] UKSC 77. The issue it had to decide was whether a Scientologist church could qualify as a “place of meeting for religious worship” for the purposes of the English legislation that grants recognition to marriages performed in such “places.” And to figure out what “religious worship” means, it is necessary to have an idea of the concept of religion.

The exact same issue had arisen in the case of R v Registrar General, Ex p Segerdal [1970] 2 QB 697, where Lord Denning held that Scientology’s churches were not places of religious worship. Those, he explained, were “where people come together as a congregation or assembly to do reverence to God. It need not be the God which the Christians worship. It may be another  God, or an unknown God, but it must be reverence to a deity.” Lord Denning allowed that “[t]here may be exceptions. For instance, Buddhist temples are properly described as places of meeting for religious worship,” but Scientology did not, in his view, have anything like a diety, being more a philosophy than a religion, and so its churches did not qualify.

The Supreme Court in Hodkin declares itself unsatisfied with this reasoning. Lord Denning’s insistence on a deity as a distinguishing hallmark of religion, it says, is misplaced. Because it would exclude from the definition of religion certain groups generally recognized as religious, it would be “a form of religious discrimination unacceptable in today’s society” (par. 51). Indeed, Lord Denning himself was willing to make an exception for Buddhism ― yet his exception was unexplained and seemed unprincipled, suggesting that the rule he proposed was too. In addition, on his approach, courts would be called upon to decide whether a creed did, in fact, refer to a deity or supreme being, or whether the being it referred to was supreme enough. This is the stuff of theology, not of law, and courts would do best to stay out of it.

Embarking on its own search of the meaning of the expression “religious worship,” and thus of the concept of religion itself, the Court observes that

[t]here has never been a universal legal definition of religion in English law, and experience across the common law world over many years has shown the pitfalls of attempting to attach a narrowly circumscribed meaning to the word (par. 34).

Furthermore, the understanding of religion changes over time, and

It is no good considering whether the members of the legislature over 150 years ago would have considered Scientology to be a religion because it did not exist (par. 34).

After an in-depth review of a couple of judicial decisions, one from the US and one from Australia, the court ventures its own definition. Religion, for it, is

a spiritual or non-secular belief system, held by a group of adherents, which claims to explain mankind’s place in the universe and relationship with the infinite, and to teach its adherents how they are to live their lives in conformity with the spiritual understanding associated with the belief system. … Such a belief system may or may not involve belief in a supreme being, but it does involve a belief that there is more to be understood about mankind’s nature and relationship to the universe than can be gained from the senses or from science (par. 57).

An additional question is whether the statutory term “religious worship” involves the “adoration of a deity.” Armed with a definition of religion that does not involve a deity, the Court says no. Any religious rites will do. The statute permits

members of a religious congregation, who have a meeting place where they perform their religious rites, to carry out religious ceremonies of marriage there. Their authorisation to do so should not depend on fine theological or liturgical niceties as to how precisely they see and express their relationship with the infinite … Those matters … are more fitting for theologians than for the Registrar General or the courts (par. 63).

The Scientologists are allowed to perform marriages in their church.

This case illustrates a general and increasing reluctance of common law courts to scrutinize religious beliefs. This same feeling was one of the driving factors in the majority decision in Amselem, which held that courts cannot inquire into whether a religious believer was really required to do or not to do something by some correct interpretation of his or her faith. This attitude of the courts is fully justified: judges are not qualified to serve as theological arbiters, and, more importantly, as the agents of a secular state, they have no right to take on that role. That is something that those who defend various forms of prohibitions on the wearing of religious clothing or symbols by arguing that these are not truly required by the religion of those who wear them should keep in mind.

Then and Now

Much has been said and written in the last few years, both in Canada and in the United States, about the role of money in politics and also about the importance of electoral procedures in enfranchising ― or disenfranchising ― citizens. But this is not a new problem, as a description of the English electoral arrangements in the 18th century in E.M. Wrong’s book, History of England, 1688-1815, shows.

The role of money was perhaps most obvious in elections for county representatives, at which “the poll could be kept open for fifteen days if one voter an hour were produced, and the voters’ expenses to the county town and back was often high” (p. 71). As a result, elections were “ruinous” (71): “[i]n 1803 a contest between three candidates for the two Yorkshire seats cost nearly half a million pounds,” (71) which, in 2012 money amounts to the mind-blowing amount of more than 43.5 million pounds, according to the Bank of England’s inflation calculator. That is more than the total expenditures of all the political parties in the last general election in the UK (a sum that does not include, however, expenses by individual candidates). In consequence, though the franchise for these seats was relatively wide, “in most counties some family or alliance of families was too strong to be challenged, and these divided the representation between themselves” (71). Today, expanding voting options, for example by keeping polls open for longer (notably for early voting) is widely seen as enfranchising voters and thus making elections more democratic. In the 18th century, it wasn’t necessarily so.

In some elections the role of money was even more crude. Some boroughs were represented in Parliamenut but had very few voters ― one “had but six houses and at one time one elector” (72-73). Even in somewhat less extreme cases, the vote of every single voter in such “rotten” boroughs mattered a great deal. But contrary to what an optimist might be tempted to expect from the literature on political ignorance (which argues that voters are rationally ignorant because their individual decisions matter very little), the individual power of these voters did not necessarily motivate them to learn about the issues and choose the best candidate for the country. Rather, they chose to profit from their position: “at Stockbridge the 57 electors were known to have asked £60 each for their suffrages. As voting was open, the result of bribery could be ascertained” (73).

A more entertaining comparison concerns another much-discussed topic, the requirements that would-be voters must satisfy to prove their right to exercise the franchise. The issues in the 18th century were not ID or burqa-wearing voters, but rather the proof of one’s property qualification:

In a dozen [boroughs] any one, not receiving poor relief, who could prove himself possessed of a hearth by coaxing a kettle to boil—”pot-walloping”—had the vote. Before an election men could be seen repairing a doorway—for a door was evidence of householding—lighting a fire, spreading a table in public, to prove their electoral qualification. (72)

Invocations of history are often meant as lessons for the present, though such lessons more often then not go unlearned. But if there is a lesson here, I am not sure what it might be. Sometimes, I think, it enough to enjoy the similarities and the differences between the past and the present for their own sake, as curiosities.