United Kingdom – Double Aspect

A Squalid Policy

The UK Home Secretary wants to ban homeless people’s tents

The Financial Times’s Peter Foster and Lucy Fisher report on plans by the UK’s Home Secretary Suella Braverman to crack down on those who are called “rough sleepers” on this side of the pond, or simply homeless people on the other. They would be banned from sleeping in ― and charities that help them would be banned from distributing ― tents. The report quotes predictable and understandable criticisms of this on the merits, but I would like to make a different point about Ms Braverman’s plan: namely, that it is yet another example of a policy that seeks to nudge people by “crapping on them”, to use the language of that noted political philosopher Emmanuel Macron.

To be a bit more specific, unlike most laws ― good or bad, smart or stupid ―, which appeal to either the moral sense or the self-interest of the people who are supposed to comply with them (or, frequently enough, to both), some operate by triggering emotional responses, from exasperation, to disgust, to fear. I have written about this a number of times.

First, in the context of Canada’s prostitution legislation and, also, of prohibitions on flavoured tobacco products. I argued that, while the former is often roundly (and I think rightly) condemned and the latter broadly accepted and indeed welcomed,

[i]n both cases, the government (and advocates urging it on) seek to deter a behaviour that prevailing morality finds reprehensible (the sale of sex, the use of tobacco) not by prohibiting it, but by subjecting those who engage in it to the heavy pressure of their own negative emotions (fear, disgust).

Something similar is at work in the widespread prohibitions on “human smuggling” ― that is, unlike human trafficking, is the transportation of consenting, indeed willing, persons across borders they are prohibited from crossing. The effect of these bans is to raise the cost of the smugglers’ services: not just the pecuniary cost of course, but also the riskiness and the exploitativeness. As a result,

[w]e say that we welcome refugees, but actually we put barriers that not only make it difficult for them to come, but ensure that those who make the attempt are more likely to suffer or even die. That this barriers are invisible makes it worse. Ostensibly we protect vulnerable people from exploitation. In reality … we create incentives for the smugglers to exploit them.

Anti-smuggling laws work similarly to prostitution legislation that follows the “Nordic model”, as Canada’s now does:

Only one side of the consensual transaction, the one allegedly exploiting the other, is criminalized (in the case of smuggling, the supply; in the case of sex work, the demand), but the putative victim is endangered, and probably also stigmatized, as a result. It is hard to avoid the suspicion that, as with sex work and other activities considered reprehensible, regulations that ostensibly protect people from their ill-effects are actually meant to scare or disgust them out of engaging in these activities; or at least that, even if this is not the intent, the supporters of such laws really do not mind if they this effect.

And then there was the pandemic policy of Mr. Macron ― and of many others, in fairness to him, though few have been as explicit about their reasoning. Faced with the reluctance of a relatively small but determined bunch of anti-social idiots to get vaccinated against the plague, the French president propounded the following doctrine:

The unvaccinated, I very much want to crap on them. And so we’ll keep on doing it, to the end. That’s the strategy. … [I]t is only a very small minority that is refractory. … How do we reduce them? We reduce them, sorry to say it this way, by crapping on them even more. … I’m not going to put them in prison; I will not forcibly vaccinate them. And so we have to tell them: … you will not be able to eat out, you won’t be able to get a coffee, you won’t be able to go to the theatre, you won’t be able to go to the movies. (Translation mine)

As I wrote here,

To crap on people, Macron-style, is not quite like telling them that they ought to live in fear, as Canadian law used to tell and still tells prostitutes. It’s not even quite like physically disgusting them, as it does with smokers. But the way in which regulation that aims to crap on them acts is not that different from regulation that acts through fear or disgust.

Ms Braverman’s plans, to return to them, are not as subtle as Mr. Macron’s. They quite transparently enlist fear, cold, and squalor. Rough sleeping, she believes, is a “lifestyle choice”, and the choice needs to be painful to be unattractive, so she is willing to inflict pain. As I wrote in my first post on this topic, the one about sex work and cigarettes, ― though I am less tentative now than I was then ― “this approach is wrong, whether in the case of sex work, abortion, or smoking” ― or rough sleeping:

As Jeremy Waldron’s work on the Rule of Law and human dignity emphasizes, law normally tries ― and ought to try ― to treat those subject to it as human beings, endowed with dignity and capacity for rational choice. It does not, and ought not to, treat them as objects or beasts who need to be prodded around. Regulatory schemes that rely on visceral negative emotions such as fear, disgust, or shame seem to me to come close to doing that. To be sure, law often relies on a certain fear of negative consequences of non-compliance with its substantive or formal requirements (whether punishment, liability, invalidity or unenforceability, etc.). But, for one thing, it seems to me that, although the difference is difficult to put into words, the nature of this fear is not the same, and not as disturbing. Perhaps more importantly, and more clearly, the unpleasant consequences of non-compliance are something the law explicitly tells people to avoid. There is no manipulation going on. They are also produced by the legal system itself ― by the judges who announce them, by the prison wardens and bailiffs who enforce them, and so on, not by external factors for the law purports not to take responsibility.

All this applies, I think. I only add two side points about Ms Braverman’s plan for crapping on rough sleepers.

First, she says she “want[s] to stop … those who cause nuisance and distress to other people by pitching tents in public spaces, aggressively begging, stealing, taking drugs, littering, and blighting our communities”. Pretty much all of these things can be and are criminalized quite independently of the possession and distribution of tents, and many of them should be criminalized. The question, perhaps especially acute in this country at present, is whether the police are willing to enforce the law. But adding to the list of laws that need to be enforced does not help address the problem.

And second, legalize housing. Just legalize housing already, instead of criminalizing tents. How’s that for a less squalid policy?

Rules Matter

Why the rules of government formation are the way they are, and why they matter

For reasons quite beyond my comprehension, Canada is apparently having a “debate” about the rules applicable to government formation in the event an election does not produce a single-party majority in the House of Commons. Philippe Lagassé has covered the essential principles ― as they have long been accepted, certainly up until, roughly, the summer of 2015, and for the most part beyond that too. Contrary to the claims of some Conservative partisans ― and, if memory serves well, to those of the leaders of all three major federal parties during the 2015 election campaign ― winning a plurality of seats (i.e. being the single biggest party in the House of Commons) does not entitle a party to form government or its leader to become Prime Minister. Only an outright majority makes this automatic.

Of course, my saying that Professor Lagassé is right won’t persuade people who dismiss his views and hallucinate about him writing out of a partisan agenda. I don’t suppose they are open to persuasion at all, really. But here is something that Professor Lagassé does not discuss, which I think bears pointing out. Canada’s conventions of responsible government, including government formation, are not special or unique. On the contrary, they at the heart of what the framers of the Constitution Act, 1867 meant when they explained, in the preamble, that they were designing a “Constitution similar in Principle to that of the United Kingdom”. The UK follows similar conventions; so does New Zealand. Unlike Canada, though, both the UK and New Zealand have recorded the relevant conventions in authoritative (though not legally binding) Cabinet Manuals. One would think that, given the deliberate similarities between our constitutional systems, these statements ― made by people who have no conceivable interest in our partisan squabbles ― are worth considering.

The UK’s 2011 Cabinet Manual begins by explaining that “[t]he ability of a government to command the confidence of the elected House of Commons is central to its authority to govern.”(2.7) This is crucial point; I will return to its significance below. The Cabinet Manual adds that “[c]ommanding the confidence of the House of Commons is not the same as having a majority or
winning every vote”. (2.7) Note that there is no mention of a plurality here. The next paragraph notes that

Prime Ministers hold office unless and until they resign. If the Prime Minister resigns on behalf of the Government, the Sovereign will invite the person who appears most likely to be able to command the confidence of the House to serve as Prime Minister and to form a government. (2.8)

This has a number of important consequences, which Professor Lagassé explains, but I’ll simply reiterate the point that likelihood of commanding the confidence of the House of Commons is decisive; again, there is no mention of a plurality of seats mattering. This is confirmed in the next paragraph, which notes that, in ascertaining “who appears most likely to be able to command the confidence of the House”,

the Sovereign should not be drawn into party politics, and if there is doubt it is the responsibility of those involved in the political process, and in particular the parties represented in Parliament, to seek to determine [this] and communicate clearly to the Sovereign. (2.9)

Of course there would be no need for warnings about drawing the Sovereign into party politics if all that mattered were who won the most seats.

All this is again reiterated in paragraphs 2.12 and 2.13, under the heading “Parliaments with no overall majority in the House of Commons”. Finally, the Cabinet Manual outlines the possible outcomes:

The nature of the government formed will be dependent on discussions between political parties and any resulting agreement. Where there is no overall majority, there are essentially three broad types of government that could be formed:

- single-party, minority government, where the party may (although not necessarily) be supported by a series of ad hoc agreements based on common interests;
- formal inter-party agreement …
- formal coalition government, which generally consists of ministers from more than one political party, and typically commands a majority in the House of Commons … (2.17)

This is a bit of an oversimplification, because these options aren’t mutually exclusive (one can imagine, say, a coalition of two parties working on an ad hoc basis with a third one), but the essential points are, first, that a single-party minority is not inherently more legitimate than a coalition, and, once again, that winning a plurality of seats doesn’t enter into the discussion at all.

New Zealand’s Cabinet Manual 2023 is to the same effect. It notes that

The Prime Minister is appointed by warrant by the Governor-General. In making this appointment, constitutional convention requires the Governor-General to:

1. act on the outcome of the electoral process and subsequent discussions between political parties. These discussions ascertain which party, or group of parties, appears able to command the confidence of the House of Representatives (expressed through public statements) and therefore has a mandate to govern the country; and
2. act on the outcome of the political process by which the person who will lead the government as Prime Minister is identified. (2.2)

Once again, there is no mention of the winner of a plurality of seats in the House of Representatives having any significance. On the contrary, what is highlighted is “discussions between political parties” that are “subsequent” (my emphasis to “the electoral process”. Again this is confirmed in a later chapter, which states

The process of forming a government is political, and the decision to form a government must be arrived at by politicians. Government formation may involve one or more parties.

In a case where government formation involves multiple parties, once the political parties have reached an adequate accommodation, and it is possible to form a government, it is expected that the parties will make appropriate public statements of their intentions. …

By convention, the role of the Governor-General in the government formation process is to ascertain where the confidence of the House lies, on the basis of the parties’ public statements, so that a government can be appointed. (6.42-6.44)

As with the similar UK provisions, there would no need for any of this is the Governor-General simply had to invite the leader of the single biggest party to form the government.

So here are my questions to those who claim that the rule in Canada is different: when did Canada’s constitution cease to be “similar in principle” to that of the mother country and our Commonwealth siblings? For what reasons did that divergence happen? And what useful purposes does it serve? If anyone wants to offer a response, I’ll be happy to publish it as a guest post.

Meanwhile, let me return to the key point from the UK Cabinet Manual: “[t]he ability of a government to command the confidence of the elected House of Commons is central to its authority to govern.” Being Prime Minister means nothing if you are unable to actually govern, which requires, at a minimum, securing money from Parliament (and more specifically from the House of Commons, whence “Bills for appropriating any Part of the Public Revenue, or for imposing any Tax or Impost” are required to “originate” pursuant to s 53 of the Constitution Act, 1867) to keep the lights on. Ideally, securing the House’s support for key legislation is part of it too, though not, as the UK Cabinet Manual notes, winning every vote.

A party that has nothing more than a plurality ― especially, but not necessarily, a narrow plurality of seats in the House of Commons may fail to secure funds and support for legislation from the rest of the House. In that case, it will lack any “authority to govern”, or indeed any ability to do so. Having its leader as Prime Minister will have as much significance as being an Admiral in the Great Navy of the State of Nebraska. This is why the ability to command the confidence of the House of Commons ― that is (oversimplifying a bit), to secure its support in votes on budgetary matters and some other key issues ― is the fulcrum of the rules on government formation, as explained by Professor Lagassé and as recorded in the UK and New Zealand cabinet manuals.

Some of the people who are claiming that winning a plurality of seats in the House of Commons is all that matters are not thinking this through because they do not understand what governing in our constitutional system actually involves. But others ― and presumably those who manufactured this whole “debate” are among them ― surely do understand, and have a further agenda. They would not be content to have a Prime Minister take office without being able to do anything with it. Instead, they would argue that their man is entitled not to be opposed by a hostile majority of Parliament, and that opposition (if not Opposition) is antidemocratic and illegitimate.

This is the end game here. We will be told that the majority of the House of Commons needs to make itself scarce, figuratively at least. And, to add insult to injury, we will be told that this is in the name of democracy and the will of the people.

I don’t suppose any disclaimers of partisanship would be particularly useful at this point. My regular readers can surely tell where my antipathies lie (everywhere, really). Others wouldn’t believe me anyway. Like Professor Lagassé, I lament the difficulty, indeed the impossibility, of “good faith discussions with partisans” who “cast academic analyses as ideological disagreements, or to think there’s a scholarly plot afoot, if our views don’t align with partisan objectives”.

Maybe because I am lawyer and not a political scientist, though, unlike Professor Lagassé I am not quite content to “understand why an academic perspective might be dismissed as irrelevant or out of touch”. Constitutional rules are, well, rules, and the fact that the person reciting them is allegedly “out of touch” is beside the point. This is as true of conventions as it is of legal rules (assuming there is a difference between the two, which I doubt). Rules matter, and they have an existence independent of misrepresentation by either political partisans or Supreme Court judges. More often than not, this blog is devoted to pointing out the latter. But now there is seemingly a need to sound the alarm about the former. Consider yourselves warned.

The Cake Bill

The flaws in the UK government’s two-faced Bill of Rights Bill

The UK government has introduced its Bill of Rights Bill: a long, if not exactly eagerly, awaited replacement for the Human Rights Act 1998, which gives effect to the European Convention on Human Rights in UK law. The Bill will limit the ability of the UK courts to enforce rights protections in the UK in various ways, some of them arguably defensible ― at least in the abstract ― and many not defensible at all. In this, I offer my initial thoughts on some of the Bill’s most salient aspects. My overarching theme will be that the government is trying to have its cake ― or rather, several different cakes ― and eat it ― or them ― too.

It may be worth briefly noting where I’m coming from on this. I think that I am more sympathetic to the concerns with judicial overreach in the implementation of the Convention and the Human Rights Act 1998 than many, perhaps most, UK public law academics. Moreover, I have no particular attachment to the Convention and especially the European Court of Human Rights, whose judgments consistently strike me as unimpressive or worse. At the same time, as readers of this blog will know, I do strongly favour protections for individual rights vigorously enforced by an independent judiciary. So if the point of human rights law reform were for the UK to go its own way and even leave the Convention so as to reject the Strasbourg Court’s mistakes, while making robust arrangements to secure rights, I would be quite happy.

But that is not at all what it is proposed. It would be an exaggeration to say that the Bill embraces the worst of both worlds ― the Convention/Strasbourg world and that of UK parliamentary sovereignty ― but it blends them in a way that strikes me as remarkably inelegant and unattractive.

For all the talk of a “British bill of rights” over the years, the Bill of Rights Bill remains closely tethered to the Convention. It (largely) eschews any definition of rights, and in clause 2 tamely incorporates by reference the substantive provisions of the Convention (which are also set out in a Schedule), just as the Human Rights Act had done. It also refers to various other definitions and provisions of the Convention. Perhaps this was the path of least resistance, but if the idea was to produce a statement of the UK’s own commitment to rights, this is a missed opportunity. Perhaps, on the contrary, the government wanted to signal that rights are simply alien to the UK’s legal system. That would be a deplorable distortion of the (admittedly complex) historical and constitutional truth. Either way, this is an example of the government trying to have it both ways: both distancing the UK legal system from that of the Convention and the Strasbourg court, but also remaining bound to it.

The main apparent exception to this refusal to articulate a distinct list of rights concerns clause 4 of the Bill, which refers to “the right to freedom of speech”. The Convention itself refers, instead, to the freedom of expression. But this distinction is mostly for show. Subclause 2 clarifies that “‘the right to freedom of speech’ means the Convention right set out in Article 10 of the Convention (freedom of expression) so far as it consists of a right to impart ideas, opinions or information by means of speech, writing or images (including in electronic form).” Again, the Bill is acting like Very Grownup child who will not stray out of mommy’s sight.

More importantly, clause 4 is mostly just for show substantively. Its first subclause says that “a court must give great weight to the importance of protecting” free speech. Put to one side the question of what this even means, and whether courts now fail to “give great weight” to the freedom of speech. This hardly matters, because subclause 3 excludes most conceivable use cases from the scope of clause 4’s application. Freedom of speech is not to be given great weight in deciding “any question [regarding] a provision of primary or subordinate legislation that creates a criminal offence”, or questions about contractual or professional duties of confidentiality, or immigration, citizenship, and national security cases. Just that! What’s left? So far as I can tell, defamation and privacy issues (and note that clause 22 of the Bill puts a thumb on the scale against pre-trial restraints on publication ― though it does not prevent them entirely). It’s not nothing, I suppose, but a provision that grandly announces the importance of an English-sounding freedom of speech (rather than the dastardly Latinate “expression”) only to clarify that it applies only to fairly narrow categories of cases is another example of the Bill’s two-facedness.

I turn now to a different aspect of the Bill, the one to which I have at least a modicum of sympathy: its interpretive provision, clause 3. The Bill does away with one of the contentious elements of the Human Rights Act, section 3 (coincidentally), which provided that “[s]o far as it is possible to do so … legislation must be read and given effect in a way which is compatible with the Convention rights”. Courts took that pretty far, holding at one point that even unnatural readings of statutory provisions were “possible”, provided they did not mess with the main thrust of the legislation at issue. Where primary legislation was concerned, such re-interpretation was the only remedy that could do an applicant some tangible good, and moreover it avoided the need to declare legislation incompatible with convention rights. But by my own lights it was inappropriate nonetheless, and I am not sorry to see it go. I wish the UK allowed the courts to disapply legislation incompatible with rights, but I don’t think that judicial re-writing is an appropriate substitute for such a remedy (see e.g. here).

I also appreciate the Bill’s gesture at textualism and perhaps even an originalism of sorts with its requirement, in clause 3(2)(a) that courts interpreting a Convention right “must have particular regard to [its] text … and in interpreting the text may have regard to the preparatory work of the Convention”. As an abstract matter, this is the right approach to interpretation. More on whether it makes sense in the context of UK human rights law presently. First, let me note that the Bill doesn’t actually embrace originalism, because it also allows the court to “have regard to the development under the common law of any right that is similar to the Convention right”. Contrast this with the Supreme Court of Canada’s rightful scepticism of jurisprudential developments post-dating the framing of the Charter in Quebec (Attorney General) v 9147-0732 Québec inc, 2020 SCC 32 (on which see here).

Anyway, the trouble is that this provision is another show of rigour and independence that will do no one much good. To the extent that the courts will follow it and adopt readings of Convention rights that are tethered to the text and “that diverg[e] from Strasbourg jurisprudence” as contemplated by clause 3(3)(b), they simply ensure that the Strasbourg court will find that the UK has violated its Convention obligations as interpreted by Strasbourg itself. It will be a pain in the neck for claimants, and it might allow the government to rage at those unconscionable European judges ― indeed, it is hard not to wonder whether this, as much as anything else, is really the point ― but that’s about it. The UK cannot unilaterally change the way the Convention is interpreted, even if its proposed interpretive methodology is better than the one endorsed by the European Court of Human Rights, and it cannot escape its Convention obligations by proclaiming that Strasbourg jurisprudence is no part of UK law.

Other interpretive provisions aren’t even well-intentioned. Clause 3(3)(a) makes adjudication of Convention rights into a one-way-ratchet by providing that courts “may not adopt an interpretation of [a] right that expands the protection conferred by the right unless the court has no reasonable doubt that” Strasbourg would do the same. While I understand discomfort with the idea that rights can be ― seemingly ― forever expanding by judicial fiat, this is unambiguously bad, though not unambiguously much else. The Bill doesn’t explain what it means by “expand” ― notably, what is the baseline? The existing Strasbourg jurisprudence? The original meaning? The original expected applications? Just what is “the protection” that must not be expanded? Does a new factual scenario count? And, fundamentally, whatever this all means, why is that (by implication) restricting the scope of a right is permitted but expanding it is not? If rights are in some sense fixed, they must be fixed against restriction as well as expansion; indeed, this is an important argument for originalism (see e.g. here), though not the most important one.

Another largely arbitrary limitation on the way rights are to be interpreted and applied is clause 5, which prohibits interpretations of Convention rights that would impose “positive obligation[s]” on public authorities ― i.e. simply require them “to do any act”. (The prohibition is categorical for the future cases, while existing interpretations that would fall afoul of it can only be retained on some stringent conditions.) Now, here too, I have some sympathy for the underlying motivations: so far as I can tell, the Strasbourg court can be fairly cavalier with demands that authorities do this or that, and its conception of the limits of the judicial role is different from that which you will find in common law jurisdictions. The Convention itself protects primarily what are known as negative rights ― that is, “freedoms from” rather than “rights to”. But understandable motivations aren’t enough.

The lines drawn by the Bill are too rigid. While it can be a useful guideline, the distinction between positive and negative rights is not nearly as clear-cut as the Bill’s drafters seem to assume. Sometimes, this is a textual evidence. Take Article 3 of the First Protocol to the Convention, by which the UK “undertake[s] to hold free elections at reasonable intervals by secret ballot”. This is manifestly a commitment to “do acts”, lots and lots of them, and if the UK should fail to live up to it, I don’t understand how a court ― let alone a court having “particular regard to the text” can decline to order the government to get on with it. Once again, Strasbourg, here we come. But this is only the most obvious example. Even a seemingly purely “negative” right, say to be free from a random arrest by a rogue police officer, can have a positive corollary ― namely, to be promptly released if so arrested. Does the government really think a UK court should not be able to infer such a right (assuming it has not already been inferred ― sorry, I am far from being fully caught up on Convention jurisprudence) from Article 5 of the Convention? Meanwhile, the Bill doesn’t address what might actually be a more disturbing aspect of Strasbourg’s positive obligations jurisprudence: the indirect imposition of such obligations on private parties, who are thus burdened with duties the Convention quite clearly didn’t intend to impose on them.

I finally turn to the last issue I want to discuss at some length: the Bill’s attempt to force courts to defer to Parliament. Specifically, clause 7 provides that, when determining whether a statutory provision is incompatible with a Convention right and, in the course of doing so, “decid[ing] whether the effect of the provision … strikes an appropriate balance between different policy aims [or] different Convention rights, or … the Convention rights of different persons … [t]he court must regard Parliament as having decided … that the Act” does strike such a balance. The Court is, further, to “give the greatest possible weight to the principle that, in a Parliamentary democracy, decisions about how such a balance should be struck are properly made by Parliament”. One problem with this is that it is all quite vague. Indeed, perhaps all this bluster means nothing at all. A court may well stipulate that Parliament decided that its law was fine and dandy and conclude that the greatest possible weight to give to this decision is precisely zero. On its face, the clause doesn’t actually preclude that.

But of course that’s not the interpretation the government will be hoping for. So let’s try taking this clause more seriously. So taken, clause 7(2)(a), which deems Parliament to have appropriately balanced all the rights and policy considerations involved is reminiscent of the late and unlamented “presumption of expertise” in Canadian administrative law, whereby courts were required (albeit by judicial precedent, not an Act of Parliament) to pretend that administrative decision-makers were experts regardless of whether the decision-maker in question had demonstrated any expertise bearing on the issue or could be plausibly expected ever to do so. I have called this “post-truth jurisprudence“, and I regard clause 7(2)(a) as a specimen of similarly post-truth legislation. It demands that the courts accept for a fact something that will by no means always be true. Many rights issues are unanticipated ― indeed, they arise precisely because they were not thought of when the legislation was being drafted. To the extent that, as the Bill’s drafters want us to believe, Parliament does take rights seriously, it will usually redress the issues it can anticipate before enacting legislation. It is no calumny against Parliament, however, to say that it cannot foresee all the problems that can arise. If anything, the calumny is to insist that whatever problems do occur, Parliament must have intended them to.

And then, there’s the matter of the assertion in Clause 7(2)(b) that decisions about balancing rights, or rights and policies, “are properly made by Parliament” “in a parliamentary democracy”. The “parliamentary democracy” bit is either a red herring or a misnomer. There are parliamentary democracies with robust judicial review of legislation ― Germany and India come to mind. What the Bill really means, but doesn’t quite want to say, is something like “a constitution based on parliamentary sovereignty”. Indeed, clause 7(2)(b) is reminiscent of the language in the preamble of Québec’s anti-religious dress code statute, which proclaims that “in accordance with the principle of parliamentary sovereignty, it is incumbent on the Parliament of Québec to determine the principles according to which and manner in which relations between the State and religions are to be governed in Québec”, by way of foreshadowing exclusion of judicial supervision of this law’s compliance with constitutional rights. I cannot help but suspect that the UK government is deliberately less forthright than its Québec counterpart because, yet again, it is trying to have its cake and eat it too. It wants to make courts to rubber-stamp parliamentary legislation instead of passing their own judgment on its compliance with rights, but it doesn’t want to admit that it is undermining the (already weak-form, and often quite deferential!) judicial review that UK courts have been engaging in. It might even be hoping to trade on the respect the European Court of Human Rights has developed for UK courts over the years to persuade the Strasbourg judges that legislation they rubber-stamped was really alright. I doubt it will work very well.

There would be a lot more to say. Much ― really, a shocking part ― of the Bill is devoted to nipping various claims in the immigration and refugee context in the bud. Some ― though less ― also tries to stick it to prisoners. I don’t like that one bit. As the most intelligent and principled opponent of judicial review of legislation, Jeremy Waldron, has come to recognise, if anyone has a claim to the assistance of the courts in order to defend their rights, it is precisely these groups, often unpopular and politically voiceless. Instead of being granted special solicitude, they are disgracefully singled out for special burdens. That said, in various smaller ways the Bill gets in the way of other rights claimants too.

But this is already a long post, and it should be clear enough that, in its present form, the Bill is not much good. To repeat, I’m no great fan of the Human Rights Act that it is meant to replace. That law’s weaknesses are mostly baked in for as long as the UK remains party to the Convention, but perhaps some of them could have been ameliorated. Instead of trying to do that, the government came up with a set of proposals that will, if enacted, make everything worse. Quite radically worse for some people, and less radically, but just enough to be noticeable, for everyone else. And for what? Chest-thumping now, and lost cases at Strasbourg later. Even a sovereign legislature in a parliamentary democracy can only ever say that it will have its cake and eat it too; it cannot actually do it.

Case Not Made

Unconvincing arguments against judicial enforcement of rights under the UK’s Human Rights Act 1998

Policy Exchange has recently posted a paper by Richard Ekins and John Larkin QC on “How and Why to Amend the Human Rights Act 1998“. Lord Sumption has written the foreword, picking up on themes explored in his Reith Lectures, which I have summarised and commented on here. There is much to disagree with in the paper, as well as some interesting ideas. Time permitting I might do a short series of posts on it. For now, I want to focus on one idea raised by Lord Sumption and addressed in a rather different way in the paper. The idea in question is that the UK’s Human Rights Act 1998, and so presumably any constitutional or statutory enactment that grants judges the authority to verify whether legislation and administrative decision-making complies with a set of enumerated individual rights, results in judges making decisions that are political rather than properly judicial.

Lord Sumption writes that the Act “treats broad areas of public policy as questions of law, and not as proper matters for political debate or democratic input”. (5) One example that seems to exercise him ― and that has exercised the UK’s political leaders for years ― is that of the franchise. He denounces the European Court of Human Rights for having rejected prisoner disenfranchisement despite its approbation by legislatures on the basis that “it was a question of law and not a matter for Parliament or any other forum for democratic input”. (5) For Lord Sumption, “the suggestion that the electoral franchise is not a matter in which the representatives of the general body of citizens have any say, seems startling”. (5)

But, more broadly, Lord Sumption argues that cases involving balancing between public policy objectives and individual rights ― which is a great many under the European Convention on Human Rights and the Human Rights Act and, in theory, all of them under the Canadian Charter of Rights and Freedoms ― are not fit for judicial resolution. Since policy-making means “a choice between competing considerations, and sometimes compromise between them … [i]t is necessarily a political question.” (6) Treating such choice “as a question of legal proportionality, requiring judges rather than elected representatives to assess the relative importance of the various values engaged before deciding which should prevail” (6) is, in his view, a fatal mistake.

As I have previously argued here in response to another distinguished, if less famous, judge, this argument is misconceived. Similarly to Lord Sumption, Chief Justice Joyal of the Manitoba Court of Queen’s Bench has expressed the worry 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.

In response, I pointed out that, taken all the way, this leads one to Jeremy Waldron’s rejection of judicial review of legislation. Chief Justice Joyal did not, ostensibly, want to go all the way. Lord Sumption might ― indeed, he may well want to go beyond Professor Waldron, who specifically objects to strong-form judicial review, where courts can actually refuse to apply legislation, not so much the weak-form arrangement that the Human Rights Act 1998 put in place. But strongly argued though it is, this position is not all that compelling. As I wrote in response to Chief Justice Joyal,

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 … 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.

Issues cannot be declared political ― or non-political, for that matter ― by stipulation. For instance, the extent of the franchise can meaningfully be addressed in the courts, as it has been under the European Convention and in Canada. It takes more than a bald assertion that this is truly a political matter, or the existence of public controversy, or the involvement of moral considerations, to show that courts should keep out of it or defer to political judgments that are, as often as not, driven by prejudice or self-interest. (As to the point about morality: courts make judgments influenced by morality when applying concepts such as reasonableness, negligence, or unconscionability. One can certainly be sceptical of the resulting jurisprudence, but it’s not plausible to claim that morality is something courts should always stay away from.)

Rather, for any given right that the designers of a constitutional order might consider, they should ask themselves whether, given their respective strengths and weaknesses, a given institution would do a better job of protecting ― better, that is, all things considered, including the downsides of allocating the task to this institution instead of a different one. Institutional considerations have to be front and centre in this analysis. Issues cannot be declared to be political or legal apart from a consideration of actual political and legal institutions that would be dealing with them. Lord Sumption only gestures at institutional factors, claiming that “judges lack the information, experience and democratic legitimacy to make … choices” involved in the proportionality analysis. Even here, the appeal to democratic legitimacy is largely question-begging. It’s not obvious that these choices need to be made democratically, as is evident from the fact that, in the absence of the Human Rights Act, many of them would be made by bureaucrats rather than Parliament.

Professor Ekins and Mr Larkin engage with the institutional issues to a greater extent. To be sure, they too assert that proportionality analysis

requires judges … to answer a series of political questions, about the legitimacy of the legislative objective, the suitability of the means adopted to that objective, and, especially, about the fairness of the balance to be struck between attaining that objective and the claimant’s interest. [33]

But they also say that these “are not questions that a court is well-placed by training or ethos to answer”. [33] They worry, too, “that courts will be drawn into political controversy, with litigation a rational means to enjoin the court to lend its authority to one’s cause”. [34] They also claim that the outcome of rights litigation often depends on the subjective and personal beliefs of the judges hearing the case (and hence on who happens to be on the relevant court and panel).

What should we make of this? To start, it’s important to note that, although Professor Eakins and Mr Larkin have very little to say about Parliament and the executive, deciding which institution should be given the role to uphold rights is necessarily a comparative exercise. It is not enough to point to the shortcomings of the courts, even if these are real enough. It is necessary to show that courts are worse than legislatures, ministers, and bureaucrats, either on a specific dimension where it is possible to compare them directly or on due to some concerns unique to them. With this in mind, I don’t think that Professor Ekins and Mr Larkin make a convincing case at all.

It is of course true that judges lack the “training” that might be helpful to answer the sort of questions that arise in the course of proportionality analysis. But what training have members of Parliament? What about Ministers? Are they trained to weigh up rights when they make policy? They are not, of course. As for ethos: for the high-minded rhetoric of the defenders of legislative articulation of rights, it is very far from obvious to me that politicians care about rights on a regular basis. They do sometimes, of course, especially if the rights of their constituents may be at issue. But their record is patchy at best, and does not suggest an ethos of weighing up rights and social needs in a rigorous fashion.

The most that Professor Ekins and Mr Larkin say on this is that, when it comes to delegated legislation, “Parliamentary scrutiny, including anticipation of political controversy, is an important discipline on ministers, even if secondary legislation is almost never rejected outright”. [48] We are, I suppose, to take this claim on faith. Meanwhile, Professor Ekins and Mr Larkin also note that there are “limits on parliamentary time” which, they say, combine with “scarcity of political capital” to “make[] it relatively difficult … for Parliament to legislate to correct judicial lawmaking” in relation to rights. [40] To their mind, this is a sign that “judicial lawmaking” needs to be curbed. But one can just as easily argue that limits on Parliament’s time and reluctance (or indeed inability) to spend political capital on decisions that will be unpopular even if right are a key reason for wanting judges to make decisions about rights, especially about the rights “discrete and insular minorities”, in the American parlance, and of especially unpopular groups such as criminal suspects and prisoners (a concern that Professor Waldron, for example, has come to acknowledge).

The concern about courts being drawn into politics is legitimate though it is all too often self-fulfilling, in the sense that it is commentators and politicians who share Professor Ekins’s and Mr Larkin’s views who generate much of the controversy. Still, it is fair to worry about the authority of the courts being undermined by their having to make decisions that are bound to be politically controversial. Then again, would the authority of the judiciary not be negatively affected by its having to blindly apply laws that disregard human rights? Besides, occasional flair-ups of criticism notwithstanding, in countries like the United States in Canada, where courts have been given the mandate to make decisions about rights long before the United Kingdom, their standing in the public opinion is much higher than that of legislatures. Indeed, there is an element of self-contradition in the arguments advanced by Professor Ekins and Mr Larkin: if the courts were really suffering from a legitimacy crisis due to all those controversial decisions the Human Rights Act foisted on them, why would Parliament need to expend scarce political capital on disagreeing with them? The authority of the courts, then, may benefit rather than suffer from their having jurisdiction over rights issues.

As for the alleged subjectivity of judicial decisions regarding rights: I think this too may be an issue. It may be more of an issue in the United Kingdom, where the Supreme Court (almost) never sits en banc, than in the United States and in Canada, whose supreme courts do (respectively always and, these days, usually). Then again, if this is acceptable in other cases, which can also divide the bench, sometimes closely, perhaps this is no more concerning where rights are involved. More importantly, though, the criticism of the courts, in the abstract, does not tell us much. In what sense is decision-making by Parliament, by ministers, or by officials not subjective? When it comes to Parliament and ministers, their inclinations and decisions will fluctuate depending on which party is in power. Precedent and legal doctrine constrain judicial decisions based on rights imperfectly. But if constraint and principle are valuable in such decision-making, then courts still do better than the other branches of government.

So neither Lord Sumption nor Professor Ekins and Mr Larkin have advanced particularly convincing arguments against having judges enforce individual rights. Rights issues are not inherently incapable of judicial enforcement, and the institutional arguments against having the judges deal with them are far from obvious. None of this fully addresses an argument along Waldronian lines, one that is purely about ineradicable disagreement and the fairness of resolving it via democratic procedures. But that argument only goes so far ― and, in particular, as Professor Waldron recognised, I think, it does not obviously apply to prevent courts from overriding decisions by the executive branch, which is what Professor Ekins and Mr Larkin want to do.

The UK Way

What a recent decision of the UK Supreme Court can teach us about courts, legislatures, and rights

A recent decision of the UK Supreme Court, R (SC) v Secretary of State for Work and Pensions, [2021] UKSC 26, might be of interest for Canadian readers. Lord Reed’s judgment for the Court addresses issues that are relevant to current Canadian debates about the relationship between courts, legislatures, and rights, equality rights in particular. To be sure, the UK context is not the same as Canada’s. Still there are lessons to be learned there.

In a nutshell, at issue in SC was a statutory rule providing that one particular tax credit available to low-income families would only be payable in respect of a first and second child, but not for any subsequent children in a family. (Other benefits remained unaffected.) This was alleged to constitute discrimination, on a number of different grounds, in the protection of a right to family life, which is guaranteed by the European Convention on Human Rights, and thus by the Human Rights Act 1998. The Supreme Court found that there was indeed prima facie discrimination against women (who were more likely to be caring for multiple children) and children living in families with three or more children, as opposed to those living in smaller ones. But the rule was still justified as a reasonable means of ensuring the fiscal sustainability of the credit programme.

One could make many interesting observations about this. Canadian readers might want to consider the different approach to equality rights under the Convention and under s 15 of the Canadian Charter of Rights and Freedoms ―no abstruse inquiries into human dignity, histories of stereotyping, and so on, and a ready recognition of what we’d term “analogous grounds”, but also a greater willingness to defer to Parliamentary judgment, except where some particularly invidious forms of discrimination are concerned. But in this post I focus on a different issue: namely, Lord Reed’s comments on the nature and scope of Parliament’s engagement with rights, and the courts’ consideration of this engagement in assessing the compatibility of resulting legislation with the Convention.

These comments are part of Lord Reed’s discussion of “the use which can be made of Parliamentary debates and other Parliamentary material when considering whether … legislation is compatible with Convention rights”. [163] This was necessary because the parties argued about whether or not Parliament gave sufficient consideration to “matters which were argued to be relevant to the proportionality of the legislation, such as its impact upon the interests of the children affected”. [163] Lord Reed, however, cautions about this kind of argument, both out of respect for Parliament’s privileges and, no less importantly, in light of Parliament’s distinct constitutional role.

Parliamentary privilege, as part of the separation of powers, means relevantly “that it is no part of the function of the courts … to exercise a supervisory jurisdiction over the internal procedures of Parliament”. [165] In particular, courts should not expect and must not demand “transparent and rational
analysis” of rights claims by Parliament, because this “would be liable to make the process of resolving political differences through negotiation, compromise and the exercise of democratic power more difficult and less likely to succeed”. [171] The quality of the reasons given by individual Members of Parliament, or even by Ministers, is not what is at issue when courts assess the effect of statutory provisions on rights or their justification and proportionality in a democratic society.

Another aspect of the separation of powers, Lord Reed points out, is the distinction between Parliament and government. Among other things, this means that “[a]s a matter of daily reality, ministers and party whips
have to negotiate and compromise in order to secure the passage of the legislation which the Government has promoted, often in an amended form.” [166] And it follows from this that “[t]he reasons which the Government gives for promoting legislation cannot therefore be treated as necessarily explaining why Parliament chose to enact it”. [166] Neither the government nor individual members can be taken to be speaking for Parliament. Its “will … finds expression solely in the legislation which it enacts”, [167] and its “intention … or (otherwise put) the object or aim of legislation, is an essentially legal construct, rather than something which can be discovered by an empirical investigation”. [172]

At most, Lord Reed says, courts inquire into “whether matters relevant to compatibility” between an impugned statute and Convention rights “were raised during the legislative process”, while “avoid[ing] assessing the adequacy or cogency of Parliament’s consideration of them”. [182] If they were, then ― regardless of the quality of these debates ― Parliament’s enactment may be entitled to an additional measure of deference. The converse, however, is not true: lack of Parliamentary consideration of the issues does not count against the statute.

Canadian courts need to take heed. The most egregious example of their failure to attend to the principles Lord Reed expounds is surely the one Maxime St-Hilaire and I have written about here: the first instance judgment in the Québec mosque shooter’s case, R c Bissonnette, 2019 QCCS 354 (since reversed in part by the Court of Appeal, and now under appeal at the Supreme Court). There, Professor St-Hilaire and I noted, the judge engaged in

play-by-play commentary on Parliamentary debate, praise for “[o]pposition members [who] did their job”, [1146] denigration of a government member’s answer as being of “dubious intelligibility” [1137] and of the Parliamentary majority as a whole for its “wilful blindness” [1146] in the face of opposition warnings.

Another recent example is provided by Justice Zinn’s comments in Smith v. Canada (Attorney General), 2020 FC 629 to the effect that “[a] statement made by the Prime Minister at the time as to the intent of Parliament and its members ought to be accorded significant weight, if not considered conclusive on the issue of Parliamentary intent”. [85]

But even the Supreme Court has sometimes succumbed to such misguided reasoning, if in less extreme forms. Thus in R v Safarzadeh‑Markhali, 2016 SCC 14, [2016] 1 SCR 180, Chief Justice McLachlin, writing for a unanimous court, picked and chose among various purposes offered by the Minister who had promoted the legislation at issue, declaring one to be the real purpose of the statute and the others “peripheral”. This arguably crosses the line into “impeaching” Parliamentary statements, and certainly wrongly attributes a Minister’s supposed purpose to Parliament, to the detriment of the separation of powers and to the advantage of the executive over the legislature.

That said, two caveats are in oder. First, Lord Reed’s emphasis on the separation of the executive and the legislature may not always be appropriate in the Canadian context, at least outside of minority government situations. When one considers the law-making practices of some governments and legislatures ― notably, ubiquitous abusive omnibus legislation, or laws interfering with constitutional rights passed in a matter of days, it is difficult to maintain that the legislatures involved are anything other than inanimate rubber-stamps, quite devoid of any “will of their own”. More generally, Canadian legislatures lack certain features and institutions that serve to maintain the Westminster Parliament’s partial independence from the executive. But that doesn’t change the principle that courts should not attribute the executive’s purposes to the legislature. Partly, this is to avoid rewarding the executive for overwhelming the legislature; partly because, as Lord Reed says, it is not the courts’ place to assess the quality of legislative deliberation, and that includes the degree of its independence from the executive.

Second, Lord Reed’s discussion of deference ― both the narrow point described above, to the effect that Parliament’s consideration of an issue should reinforce curial deference to its choices, and what he says elsewhere in the judgment ― is also to be treated with the greatest caution in Canada. Lord Reed is judging in a constitutional system where Parliamentary sovereignty rather than constitutional supremacy is the ultimate principle. But, moreover, section 1 of the Canadian Charter requires any limitations on the rights it protects to be “demonstrably justified” (emphasis mine). The wording of the European Convention is a bit different ― it speaks (for example in article 8, which was at issue in SC) of limits “necessary in a democratic society”. Those readers ― and judges ― who, like me, attach importance to the words of constitutional texts may well think that the Charter‘s emphasis on demonstrable justifications calls into question the appropriateness of judicial deference to legislative choices, and especially of deference on no stronger a basis than the fact that the legislature turned its mind to an issue.

But judges are not the only Canadians who should take note of Lord Reed’s explanations. The proponents of the use of the Charter‘s “notwithstanding clause”, which allows legislatures to maintain in operation laws that are contrary to the Charter‘s guarantees, ought also to consider what Lord Reed says about the difference between courts and legislatures. Their argument is premised, in part, on the claim ― often asserted though seldom supported ― that legislatures will serve “as a forum where rights are debated, articulated and enacted” with “the thoughtful participation of the people themselves”, in the words of Joanna Baron and Geoffrey Sigalet in a post over at Policy Options. Lord Reed’s explanations show why this claim is unlikely to be true, or at least nearly as true as its proponents make it out to be.

Lord Reed points out that the way in which Parliament does its business does not require debate and articulation of rights, or any particular degree of thoughtfulness on the part of the people’s representatives, let alone the people themselves. He writes:

First … Parliament does not give reasons for enacting legislation: it simply votes on a motion to approve a proposed legislative text. There is no corporate statement of reasons, and the individual members of Parliament do not give their reasons for voting in a particular way. …

Secondly, the decisions which Parliament takes are not necessarily capable
of being rationalised in any event. In the first place, Parliament does not operate only, or even primarily, as a debating chamber. It is also a forum for gathering evidence, and for extra-cameral discussion, negotiation and compromise. Furthermore, the way in which members of Parliament vote will usually, but by no means always, reflect party policy, and may be influenced by the discipline imposed by the party whips. [167]-[168]

Lord Reed further explains that while the courts’ task is “the production of decisions arrived at by an independent and transparent process of reasoning”, Parliament’s is

the management of political disagreements … so as to arrive, through negotiation and compromise, and the use of the party political power obtained at democratic elections, at decisions whose legitimacy is accepted not because of the quality or transparency of the reasoning involved, but because of the democratic credentials of those by whom the decisions are taken. [169]

In other words, when Parliament makes a decision, including a decision that impacts or even directly concerns the rights of citizens, it need not act on the basis of reasoned deliberation. It is just as likely to be giving effect to the results of horse-trading or to the political tactics of the majority, its ministry, and its whips. Rights, or any other considerations, need not be articulated in any sort of intelligent fashion in this process. To be sure, sometimes they will be ― but this is no more than a happy accident. It cannot be the foundation of a constitutional theory, let alone the basis on which anyone should accept that their rights can be suspended by a political faction that holds them in contempt.

For all that Canadians like to think of themselves as open to learning from the constitutional law of other countries ― and despite some reservations I have on this score! ― I think that we do not do it nearly enough. There is indeed a great deal to learn out there, and not least from the courts that, to some, might seem passé ― those of the United States and the United Kingdom. SC is a good reminder of that.

Through Which Glass, Darkly?

Introducing a new article on the Rule of Law in two decisions of the supreme courts of Canada and the United Kingdom

I followed the challenge to the “hearing fees” that British Columbia imposed on litigants who wanted to have their day in court ― or at least their days, since an initial period was free of charge ― from its beginning as Vilardell v Dunham, 2012 BCSC 748 and to its resolution by the Supreme Court of Canada as Trial Lawyers Association of British Columbia v British Columbia (Attorney General), 2014 SCC 59, [2014] 3 SCR 31, writing almost a dozen posts in the process. And then the Supreme Court of the United Kingdom decided a case that was remarkably similar to Trial Lawyers, R (Unison) v Lord Chancellor, [2017] UKSC 51, [2017] 4 All ER 903, which involved a challenge to fees charged for access to employment law tribunals. I blogged about that decision too.

The two supreme courts came to similar conclusions: the fees were invalidated in both cases, out of a concern that they prevented ordinary litigants who could not afford them from accessing the forum where their rights would be ascertained. In Trial Lawyers this was said to be a violation of section 96 of the Constitution Act, 1867; in Unison, of a common law right of access to court. Yet there was a striking contrast between the two decisions, and specifically between the ways in which they treated the Rule of Law. Trial Lawyers discusses this constitutional principle, but as something of an embarrassment, in the face of a scathing dissent by Justice Rothstein, who argues that it should not have discussed the Rule of Law at all. (He still does ― in his keynote address at this year’s Runnymede Conference, for example.) Unison‘s discussion of the Rule of Law, as a foundation of the right of access to court, is much more forthright, and sophisticated too.

This got me thinking. The result is an article that has been accepted for publication in the Common Law World Review, and which I have already posted on SSRN: “Through Which Glass Darkly? Constitutional Principle in Legality and Constitutionality Review“. The main idea is that what explains the difference in the depth and confidence with which the two courts treated the Rule of Law is that constitutional review, despite its power, is bound to be precarious in the absence of an on-point text, while legality review, although seemingly weak in that its outcome can be overturned by statute, actually makes compelling discussion of unwritten principle possible. Here is the abstract:

This article seeks to draw lessons from a comparison between the ways in which the Rule of Law is discussed in cases decided by the supreme courts of Canada and the United Kingdom on the issue of allegedly excessive fees levied on litigants seeking to access adjudication. After reviewing the factually quite similar cases of Trial Lawyers Association of British Columbia v British Columbia (Attorney General) and R (Unison) v Lord-Chancellor and it detailing these decisions’ respective constitutional settings, the article argues that, in contrast to the cursory treatment of the Rule of Law by the Supreme Court of Canada, the UK Supreme Court’s discussion is sophisticated and instructive. This suggests that legality review based on common law rights, which is not focused, and does not try to establish a connection, however tenuous, to an entrench constitutional text, may well allow for a more forthright and enlightening discussion of the principles at stake. Thus it follows that, in constitutional systems that feature strong-form judicial review based on entrenched texts, when regulations and administrative decisions are at issue, legality review should not be neglected. In those systems where strong-form judicial review is not available, legality review should not be regarded as an anomalous ersatz.

While I have argued here that Canadian courts can legitimately base their constitutional decisions on unwritten principles, rather than explicit textual provisions, in some circumstances, I do think that legality review (which, of course, Justice Cromwell favoured in Trial Lawyers) should be considered more often. Our law would be the richer for it.

Heresy!

The UK Supreme Court’s decision in “the Case of Prorogations” and the political constitution

I wrote last week about the UK Supreme Court’s decision in R (Miller) v Prime Minister, [2019] UKSC 41 (Miller (No 2)), which unanimously held that the Prime Minister’s advice that the Queen prorogue Parliament for five weeks was unlawful, and the prorogation itself, therefore invalid. There was, however, one aspect of Miller (No 2) that I did not discuss in any detail: that of the Court’s treatment of the “political constitution”, and the distinction between those constitutional rules that are part of constitutional law and those that are not. In this post, I want to come back to this issue.

It is useful to begin with the orthodox view of the political constitution, articulated by scholars such as A.V. Dicey and courts in cases like Re: Resolution to amend the Constitution, [1981] 1 SCR 753 (Patriation Reference) and R (Miller) v Secretary of State for Exiting the European Union, [2017] UKSC 5 (Miller (No. 1)). On the orthodox view, only some constitutional rules ― statutes and common law rules, such as those circumscribing the scope of the royal prerogative and, in part, of Parliamentary privilege ― are part of constitutional law. Other rules, known as constitutional conventions, are not constitutional law and the courts will not enforce them, although they can sometimes take note of them in resolving properly legal issues.

In the Patriation Reference, the Supreme Court of Canada suggests a number of reasons for distinguishing convention and law. First, the majority opinion on the conventional question insists that “unlike common law rules, conventions are not judge-made rules. They are not based on judicial precedents but on precedents established by the institutions of government themselves.” (880) The majority opinion on the legal question makes the same point, and adds that “[t]he very nature of a convention, as political in inception and as depending on a consistent course of political recognition … is inconsistent with its legal enforcement”. (774-75) In Miller (No 1) the majority of the UK Supreme Court put it more pithily: “[j]udges”, it said, “are neither the parents nor the guardians of political conventions”. [146]

Second, and relatedly, the Patriation Reference suggests that it would be inappropriate to enforce conventions, given their questionable pedigree. “What is desirable as a political limitation ”, it says, “does not translate into a legal limitation, without expression in imperative constitutional text or statute”. (784) Third, the majority opinion on the conventional question argues that the courts lack remedies to compel compliance with conventions. Fourth and last, the same opinion notes that conventions conflict with legal rules, and courts are bound to apply the latter. Others have also argued that conventions are too shrouded in uncertainty―that both their very existence and their implications for specific situations are too doubtful―for them to function as meaningful legal rules.

Miller (No 2) doesn’t explicitly engage with any of this. But by the time the UK Lady Hale and Lord Reed are done with the case, not much of the old orthodoxy is left standing. They not only regularly advert to conventions (which courts can do on the orthodox view), but seem to assimilate the exercise of conventional and legal powers, and arguably provide a way for judicial enforcement of conventions, in disregard of the traditional distinction between conventions and law. This might be a good thing, but I am uneasy at the way it is accomplished.

The tone is set early on. At the beginning of the judgment, Lady Hale and Lord Reed explain what a prorogation is, and contrast it with a dissolution of Parliament. Following the latter, they note, “[t]he Government remains in office but there are conventional constraints on what it can do during that period”. [4] There is no particular need to mention these “conventional restraints”, even for the sake of the descriptive point the Court is making (which is itself unnecessary, although perhaps helpful, to explaining the decision in the case at bar). A more orthodox court would probably have avoided mentioning conventions here. Not this one.

More relevantly to the case, Lady Hale and Lord Reed say that they “know that in approving the prorogation, Her Majesty was acting on the advice of the Prime Minister”. [15] They go on to further explain that

the power to order the prorogation of Parliament is … exercised by the Crown, in this instance by the sovereign in person, acting on advice, in accordance with modern constitutional practice. It is not suggested in these appeals that Her Majesty was other than obliged by constitutional convention to accept that advice. [30]

The double negative allows the judgment to ostensibly “express no view on” [30] whether Her Majesty was indeed “obliged by constitutional convention” to accept the Prime Minister’s advice, but the fig leaf is quickly blown away. The Court proceeds to assess the lawfulness of the Prime Minister’s advice, which makes little sense unless one assumes that Her Majesty had to follow it. If the advice was in reality what it is in name, why would the Court be looking into it? This is further confirmed by the Court’s approach to the remedy. The applicants’ lawyers, implicitly adopting a more orthodox position, only sought “a declaration that the advice given to Her Majesty was unlawful”. [62] But the Court goes further, and says that this advice “led to the Order in Council [pursuant to which the prorogation was carried out] which, being founded on unlawful advice, was likewise unlawful, null and of no effect and should be quashed.” [69] Led to? Founded on? This, I am tempted to say, is an imitation fig leaf, not even the real thing. What Lady Hale and Lord Reed mean ― the only way they reasoning makes sense ― is that the advice required the order in council to be made; that it was legally determinative, not just factually causative.

Consider: If I write a letter to Boris Johnson with a devious master plan for executing no-deal Brexit, and he follows it to the letter, my letter, which will actually be advice, in the sense of a suggestion, will not be the subject of court proceedings. The relevant choices will still be the Prime Minister’s, and, should their legality be called into question, my intervention will be no more than a part of the factual background, if that, even though it would be fair to describe it as “leading to” the Prime Minister’s actions, which would be “founded on” it. Of course, my position vis-à-vis the Prime Minister is different, in a constitutionally significant way, from the Prime Minister’s vis-à-vis the Queen. But, on the orthodox view, this would significant as a matter only of political, not legal, constitutionalism. The Supreme Court sees things differently. To repeat, Lady Hale and Lord Reed’s approach only makes sense if the Prime Minister’s advice is binding on Her Majesty, so that there is no daylight between his ostensibly conventional role and the exercise of the Crown’s legal powers.

Perhaps one might argue that the UK Supreme Court’s treatment of conventions is orthodox because it is only a necessary step towards resolving a properly legal question as to the scope of the prerogative power of prorogation. The Court, on this view, does not do what the Diceyan dogma tells us is impossible: enforce a convention. But is that so? And if it is so in this case, what about others in which the Court’s reasoning might be applied? (As discussed last week, the Court claims that Miller (No 2) is a “one off”. That remains to be seen.)

It is crucial, I think, to Lady Hale and Lord Reed’s reasoning that they are able to confidently assert that, while “Parliament does not remain permanently in session … [i]n modern practice, Parliament is normally prorogued for only a short time”. [45] They rely, moreover, on a statement by a former Prime Minister to the effect that nothing more is necessary. And they conclude that constitutional principles (specifically, Parliamentary sovereignty and executive accountability) mean departures from modern practice would require justification. Without explicitly undertaking an analysis in terms of the Jennings test adopted by the Supreme Court of Canada in the Patriation Reference, Lady Hale and Lord Reed come close to showing that the relevant constitutional actors seem to be following a rule, that they feel bound by the rule (or at least that they have no reason not to follow it), and that there are reasons, in the shape of important constitutional principles, for this rule ― in other words, that, according to the Jennings test, there exists a convention. Only, in effect, Miller (No. 2) very nearly transmutes this “modern practice” into law. (Very nearly, because in principle it is still open to a Prime Minister to justify departure from the practice.)

And beyond what has or has not happened in this particular case, I think the reasoning deployed by Lady Hale and Lord Reed can serve as a blueprint for judicial enforcement of conventions in the future. In a nutshell, what Miller (No 2) says is that the exercise of the royal prerogative is subject to implicit limits imposed by constitutional principles, and that the location of these limits ― which can be inferred, in part at least, from “modern practice” ― is a justiciable question. So consider, for example, the convention requiring the sovereign to assent to legislation passed by the House of Commons and the House of Lords (or only the House of Commons legislating pursuant to the Parliament Act 1949). Courts couldn’t enforce that convention and either require the sovereign to assent or treat a bill passed by the Commons and the Lords as law without her assent, right? Well, they could say that the power to withhold assent is subject to implicit limits imposed by the democratic principle, such that any departures from the modern ― or, this case, centuries-old practice of not withholding assent ― must be justified, and… voilà!

As readers may know, I am a longtime skeptic of the Diceyan orthodoxy on the separation between conventions and law. I think that the courts should have regarded conventions as common law rules en devenir and enforced them if and when necessary, subject however to justiciability concerns ― for example when the conventional rule is vague and/or its application in a given case involves political judgment. So the outcome of Miller (No 2) is not all bad, from that perspective.

And its reasoning makes the arguments invoked in support of the orthodoxy that much more difficult to sustain. The emphasis that Lady Hale and Lord Reed put on the development of the common law constitutional rules in cases such as the Case of Proclamations shows that the disclaimers of the creative role of the judiciary and protestations about its inability to translate “what is desirable as a political limitation” into legal rule always proved too much. Similarly, their confident treatment of the question of the remedy and of the evidentiary issues shows that concerns about the courts’ ability to engage with conventional issues have been greatly exaggerated.

That said, I have my reservations about the approach the Miller (No 2) court takes. For one thing, I wish Lady Hale and Lord Reed had been more transparent about what they were doing. Miller (No 1), where the UK Supreme Court reiterated the orthodox view that a convention could not be judicially enforced ― even a convention enshrined in statute! ― was only decided a couple of years ago. Miller (No 2) is almost a complete U-turn from its namesake, yet we have little explanation about why the ladies and lords were for turning. Here as on other issues, the suspicion of results-oriented reasoning must weigh heavily on the Court. More substantively, Lady Hale and Lord Reed may be overconfident in the courts’ ability to dispose of the factual questions that may arise when the courts enter the realm of politics. As noted above, I think that these questions will sometimes ― though by no means always ― be difficult enough that non-justiciability is a real concern. The reasoning in Miller (No 2) does not acknowledge this, and in my view this is a mistake.

Miller (No 2) thus seems to be a very significant, albeit unacknowledged, development in the UK Supreme Court’s understanding of the nature of the constitution, and specifically of what used to be thought of as its political, non-legal component. Without saying so, the Court is, perhaps, in the process of correcting the mistake made by scholars and judges who saw a sharp separation between law and politics when, at the heart of the UK’s constitution, none existed. Views on the nature and status of conventions that were just recently said to be quite heretical now appear to have prevailed.

If anything, the pendulum may have swung too far in the other direction. The Court hasn’t thought through the implications of its reasoning. Perhaps this is just how the common law develops: case by case, without the courts fully understanding the consequences of one decision for those that will follow. In that sense, Miller (No. 2) might not be an innovation at all. The system works, perhaps, but it is not always a pretty sight.

Mulling over Miller

Some thoughts on the UK Supreme Court’s decision in “the case of prorogations”

It’s been a while already, but I would like to say a few things about the UK Supreme Court’s decision that Prime Minister Boris Johnson’s advice, last moth, that the Queen prorogue the Westminster Parliament for five weeks was unlawful, and that the prorogation is a nullity. The unanimous decision by Lady Hale and Lord Reed, R (Miller) v Prime Minister, [2019] UKSC 41 (Miller (No 2)) breaks new and, in my view, shaky constitutional ground. It is an understandable response to what Lord Sumption has accurately described as Mr. Johnson’s “constitutional vandalism”. But, while understandable, I am not persuaded that it is right.

I should note, of course, that I am no great expert on UK constitutional law. Many people who are have written about Miller (No 2) already, but, due to my recent travels and speaking engagements, I haven’t been able to keep up with the torrent of commentary. Anyway, the principles at stake are similar to those that apply in Canada and New Zealand, and I wanted to produce a record of my own thoughts regarding Lady Hale and Lord Reed’s reasoning. Add salt to taste. I will also add a note on the applicability to this decision to Canada, where of course the ability of a Prime Minister to procure the prorogation of Parliament for political purposes is something that has already been done, and could be attempted in the future.

The substantive issue in Miller (No 2) was whether the Prime Minister’s advice that the Queen prorogue Parliament for a five-week period was unlawful, either because it interfered with the constitutional principles of Parliamentary sovereignty and government accountability to Parliament, or because it had an improper purpose. But as a preliminary matter the Court had to decide whether the matter was justiciable at all. If it found that it was, and that the prorogation was unlawful, it also had to consider the appropriate remedy.

The argument against justiciability was that the substantive issues were subject to political accountability rather than judicial scrutiny and that there were, in any case, no legal criteria by which the lawfulness of advice to prorogue Parliament could be determined. For the judiciary to step into this controversy would offend against the separation of powers. But the Court rejected this contention. The fact that the decision it was asked to review was made by a political actor, had political resonance, and was potentially subject to political accountability did not, without more, mean that courts should refrain from reviewing its legality. As for the separation of powers, it would only be enhanced “by ensuring that the Government does not use the power of prorogation unlawfully with the effect of preventing Parliament from carrying out its proper functions”. [34]

The power to prorogue Parliament is based in the Royal prerogative; that is to say, it is a power of the monarch that is recognized by the common law (rather than having a statutory foundation). The common law also outlines the limits of prerogative powers. Doubts about justiciability, the Court says, can legitimately arise if the dispute concerns the lawfulness of the exercise of a prerogative power within its proper limits. However, there is no question that it is the courts’ role to draw the limits in the first place. The dispute here, the Court says, involves just this sort of line drawing.

How are the limits of a prerogative power to be ascertained? Unlike with a statutory power, there is no text to guide the court. However, the scope of any prerogative power “has to be compatible with common law principles”, including “the fundamental principles of our constitutional law”, [38] which, despite the fact that the UK’s constitution is not codified and consists of “common law, statutes, conventions and practice”, “are enforceable by the courts in the same way as other legal principles”. [39]

Two such principles help circumscribe the scope of the power to prorogue Parliament: Parliamentary sovereignty, and the accountability of government to Parliament. The former means not only “that laws
enacted by the Crown in Parliament are the supreme form of law in our legal system” [41] but also that the executive cannot get int the way of Parliament “exercis[ing] its legislative authority” [42] as it would be in the absence of limits on the power of prorogation. While prospect of unlimited prorogation may be hypothetical and subject to “practical constraints”, [43] its very existence would be incompatible Parliamentary sovereignty, and therefore intolerable. The same goes for the accountability of the Ministry to Parliament,

through such mechanisms as their duty to answer Parliamentary questions and to appear before Parliamentary committees, and through Parliamentary scrutiny of the delegated legislation which ministers make. [46]

This accountability serves to ensure that “citizens are protected from the arbitrary exercise of executive power”, [46] but it too would be undermined by long-term prorogations.

It follows then that, while a short period of prorogation is acceptable as not interfering with Parliament’s legislative power or its scrutiny of the executive, the longer Parliament stands prorogued, the more these principles are put at risk. There is no bright-line limit between what is and what is not lawful. Rather,

a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. [50]

Whether a given prorogation has this effect, and whether, if so, a justification has been provided for it, are questions of fact of “no
greater difficulty than many other questions of fact which are routinely decided by the courts”. [51] The court must decide these questions “with sensitivity to the responsibilities and experience of the Prime Minister, and with a corresponding degree of caution”, [51] but it can and must decide them. In this case, the Court finds that the length of the prorogation will interfere with Parliamentary sovereignty and the accountability of government, and that the justifications advanced on behalf of the Prime Minister are unpersuasive. Its decision on the latter point is influenced by the evidence given by a former Prime Minister, Sir John Major.

The Court must, then, decide on the remedy. The applicant would have been content with a declaration to the effect that the Prime Minister’s advice to prorogue Parliament was unlawful, but the Court goes further. Having rejected the contention that the prorogation is part of “proceedings in Parliament” whose validity the courts are precluded from reviewing by Article 9 of the Bill of Rights 1688, it finds, that the Order in Council signed by the Queen to require the prorogation,

being founded on unlawful advice, was likewise unlawful, null and
of no effect and should be quashed. This led to the actual prorogation, which was as if the Commissioners had walked into Parliament with a blank piece of paper. It too was unlawful, null and of no effect. [69]

The prorogation never happened.

As noted above, one can understand why the Supreme Court decided the way it did. Indeed, the reasoning of Lady Hale and Lord Reed has a certain elegance to it, and I think it is fair to say that a constitution in which the power to prorogue Parliament cannot be abused for partisan or political purposes is preferable to one where it can be. It would indeed be shocking if the Prime Minister were to attempt proroguing Parliament for years on end. As Canadians will recall, it is equally shocking when the Prime Minister uses a prorogation to avoid being held to account by Parliament. The question, though, is whether the United Kingdom actually had such a constitution, prior to the Supreme Court’s decision in Miller (No 2).

Canadians, of course, will be interested in what our constitution has to say on this. Let me begin with that. Unlike the United Kingdom’s, Canada’s constitution is partially codified and entrenched. As it happens, this entrenched constitution includes a specific provision that speaks to the possibility of indefinite prorogations: section 5 of the Canadian Charter of Rights and Freedoms provides that “[t]here shall be a sitting of Parliament and of each legislature at least once every twelve months”. An attempt to prorogue Parliament, or a legislature, for more than a year would be flatly unconstitutional, and a court ought to be able to recognize this and, pursuant to section 24(1) of the Charter, provide any “such remedy as the court considers appropriate and just in the circumstances”.

But what about abusive attempts to prorogue Parliament for periods of time shorter than a year? In my view, the Charter settles this matter differently than the common law constitution of the United Kingdom. Instead of a standard of justification, as under the latter, the Charter sets out a bright-line rule, and it would be inappropriate for the courts to re-write the constitution that we actually have in order to improve it on a pattern suggested, decades after its enactment, in a jurisdiction whose own constitutional landscape is, on this point, somewhat different from ours. The Supreme Court of Canada rejected an attempt to invoke constitutional principles to add to the Charter’s proscription on retroactive criminal law in British Columbia v Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 SCR 473, and it should follow the same logic in rejecting an attempt to import Miller (No. 2) into Canadian law.

This is not to say that the one-year line drawn by the Charter‘s framers is especially satisfactory. Certainly shorter prorogations can be abusive, as we saw in 2008. Perhaps our constitution could be improved by an amendment to section 5 of the Charter, just as it would in my view be improved by an expanded proscription against retroactive legislation. But of course such an amendment is not for the courts to effect. And, as I will now suggest, it is not obvious that such an amendment ought simply to codify the Miller (No. 2) decision.

Indeed it is not clear that the authors of Miller (No. 2) viewed it as a model for anything else that would follow. At the outset, the insist that the case “arises in circumstances which have never arisen before and are unlikely ever to arise again. It is a ‘one off'”. [1] It is worth pointing out that this is an unusual statement for a court to make, and it should, I think, ring some alarm bells. (Consider another instance where a court said something similar: Bush v Gore, 531 US 98 (2000) where the per curiam majority opinion noted that its “consideration is limited to the present circumstances”. (109))

At the very least, one suspects that, despite its confident assertions about its ability to resolve factual claims about the necessity for a prorogation, the Court probably hopes that it will not have to do so again. And, perhaps even more fundamentally, the Court may well realize that it has not really articulated a principle against which to judge the lawfulness of prorogations so much as asserted the power to do so on a case-by-case basis. The Court gets away with it by shifting the burden of proof onto the Prime Minister, who is asked to justify his request for a prorogation instead of the applicants having to actually show that it was flawed in some legally cognizable way (as opposed to “merely” stinking to high heaven). Mr. Johnson was not prepared to discharge the burden. His successors, presumably, will not make the same mistake.

Seen in this light, Miller (No. 2) looks less as a re-assertion of constitutional principle in the face of a band of governing vandals, and more like a power grab. The vandals, admittedly, are real, so the power grab is for a good cause, but it’s a power grab all the same. This impression is only reinforced by the way in which the Court re-framed the issue from the legitimacy of a particular (albeit disturbing in the extreme) exercise of an undoubted prerogative power (namely, that of proroguing power) to that of the scope the prerogative. The cases on which the Supreme Court purports to rely sought to preserve a space for the exercise of prerogative powers that would not be amenable to judicial review, being too bound up with issues of policy and politics. Miller (No. 2) does not repudiate these cases, but it suggests a way around them: it is enough to say that, correctly understood, the issue concerns the scope of a prerogative power rather than the lawfulness of its exercise within its acknowledged scope.

If the prerogative of dissolution had not been abolished in the UK, this trick could have been applied to engage the courts in reviewing its exercise. (Of course, this prerogative has been preserved in Canada, even in jurisdictions that have adopted purportedly fixed election dates; this is an additional consideration that ought to give pause to Canadian courts urged to import the Miller (No. 2) reasoning here.) The same goes for the prerogative of mercy and the prerogative powers in relation to foreign affairs or war. In fairness to the Supreme Court, I doubt that it really wants to go there. If urged to embark on this sort of review, it can still say that, this time, the issues do not go to the scope of the prerogative. But that only highlights the fact that the reasoning in Miller (No. 2) is results-oriented. A one-off indeed. I don’t think this is the stuff of great constitutional law.

There are at least a couple of additional issues worth addressing about Miller (No. 2), one of which I will make here, and the other in a separate post. The former is that the Supreme Court’s conception of Parliamentary sovereignty is, in my view, something of a departure from how this concept has been understood until now. The orthodox view is that it referred to the supremacy of the law enacted by the existing Parliament over any other law ― common law, regulations, and even statutes enacted by Parliaments past. In recent decades, this view has been somewhat tempered by a growing acceptance Parliaments dictating the “fanner and form” ― but not the content ― of future statutes. Of course Parliamentary sovereignty in this orthodox sense is not at all affected by prorogation. But the Supreme Court expands this principle, by saying that it requires that there be no obstacles, or at least no obstacles created by the executive, in the way of a Parliament that might legislate, as opposed to one that already has.

I wonder how much the Court has thought this through. There is a tension between this understanding of sovereignty and the few that Parliament can complicate the life of its successors by enacting “manner and form” requirements. There is an even stronger tension between this view and the musings of some judges (Lady Hale among them!) about the possibility that Parliamentary sovereignty isn’t quite absolute, and that there might be some laws that Parliament cannot enact (or rather, that Courts would be justified in not giving effect to some laws). Again, future courts might resolve this tension by saying that the expanded version of Parliamentary sovereignty is a single-purpose idea meant to control the executive and not the other branches of government. But I wonder whether, in trying to stave of off the absolutist claims of the executive, the Supreme Court hasn’t provided intellectual ammunition for similar claims by Parliament.

The other way in which Miller (No. 2) departs from past, and indeed very recent, understandings of how the UK constitution (and other constitutions derived from it) works, which I will not address in detail here, has to do with the distinction between the legal and the political constitution. This distinction was a sharp one, or so we were told told by writers such as A.V. Dicey and courts in cases like Re: Resolution to amend the Constitution, [1981] 1 SCR 753 (Patriation Reference) and R (Miller) v Secretary of State for Exiting the European Union, [2017] UKSC 5 (Miller (No. 1)). Statutes and common law rules were legal and legally enforceable rules; constitutional conventions, political and not legally enforceable. In Miller (No. 2) the lines between these types of constitutional rules are are blurred. This might not be all bad, but I will defer this to a separate post, which I will try to write in a not-too-distant future.

To repeat yet again, I am not criticizing the reasoning in Miller (No. 2) because I approve of, or even regard as at all defensible morally, the actions of the Prime Minister that led to it. The Supreme Court acted out of genuine and perfectly understandable concern with gross abuse of power, for which it found no redress in the orthodox legal toolkit, and so took unorthodox measures. As H.L.A. Hart wrote long ago, in cases where constitutional fundamentals are at stake, courts can reshape them and so transform our understandings of what law even is; “all that succeeds”, he observed, “is success”. Clearly, the UK Supreme Court has been successful. And perhaps that’s all that history will remember.

But the price of present success is, at best, considerable uncertainty about the future. Will the reasoning in Miller (No. 2) ever be followed, and if so, to what end? Will it serve to involve the courts in review of deeply political decisions about foreign affairs, war, and peace? Will the expansion of the understanding of Parliamentary sovereignty rebound it ways we may yet regret? Again, I wonder how much the Supreme Court ― pressed for time as it was, and apparently hoping to deliver a “one off” decision ― has really pondered all this. We, at any rate, have the leisure ― and the need ― to reflect on what it has done.

The Fault Will Be Ours

Lord Sumption on politics, law, and the meaning and decline of democracy

A couple of months ago, Jonathan Sumption, former barrister extraordinaire, recently-retired UK Supreme Court judge, and well-regarded historian too, delivered the BBC’s Reith Lectures for this year, speaking on Law and the Decline of Politics. Despite my delay in getting to them, I think they are worth writing about. Lord Sumption’s arguments challenge most if not all of us in one way or another. I expect that those used to the North American way of thinking about constitutional law will find them more uncongenial than many lawyers in the United Kingdom or in New Zealand, but Lord Sumption’s views do not neatly fit into any pre-defined category, and will have something that will force just about anyone to reflect. (I particularly recommend the lectures to any students who are about to start studying law; they are quite accessible, but will give you an excellent preview of many of the debates you will confront in the coming years, and expose you to a way of thinking that is not exactly prevalent in North American law schools.)

In a nutshell, Lord Sumption’s argument is that, as he put it in the first lecture, “Law’s Expanding Empire“,

law does not occupy a world of its own. It is part of a larger system of public decision making. The rest is politics. The politics of ministers and legislators of political parties, of media and pressure groups, and of the wider electorate. (2-3)

The question is, how does law relate to this larger system? What is the place of law vis-à-vis politics? Should it, in particular, be used to control political outcomes and bring them into alignment with some set of substantive values? Lord Sumption wants to caution us against the dangers he says lying in wait if we go down this path. But it is not because he takes an especially optimistic view of politics. In this post, I summarize the five lectures. (It will, I am afraid, be quite long.) I will comment separately.

Lord Sumption’s misgivings appear especially strongly in his first lecture. Law, he says, is an alternative to chaos. But just how much law (and how many lawyers) do we need? Lord Sumption observes that

Until the 19th century, most human interactions were governed by custom and convention. The law dealt with a narrow range of human problems. It regulated title to property, it enforced contracts, it protected people’s lives, their persons, their liberty and their property against arbitrary injury, but that was about all. Today, law penetrates every corner of human life. (3)

It need not be that way. The Rule of Law requires limitation of government power and the protection against interference with life, liberty, and property, as well access to the courts to enforce these limits and protections, but it does not necessarily follow that law needs to be pervasive. Rather, this is something that the voters have chosen, in an ongoing fit of general optimism about the prospects of collective action. Democracy “has inevitably led to rising demands of the State as a provider of amenities, as a guarantor of minimum standards of security and as a regulator of economic activity”. (4)

Moreover, after a retreat over the course of the 19th and 20th centuries, “a growing moral and social absolutism … looks to law to produce conformity”. Even when there is no real consensus in the community about what how a particular moral issue ought to be treated,

we resort to law to impose uniform solutions in areas where we once contemplated a diversity of judgment and behaviour. We are afraid to let people be guided by their own moral judgments in case they arrive at judgments which we do not agree with. (6)

It is as if moral judgment, which would have been individual in the past, has increasingly been collectivized. In a growing number of cases, moreover, this judgment has been delegated to the judiciary.

At the same time, there has been a push to take judgments about safety and security away from individuals and hand them over to public authorities, under judicial supervision. As more misfortunes appear preventable, the demands are made for them to be prevented; “we are no longer willing to accept the wheel of fortune as an ordinary incident of human existence”. (7) Yet this is achieved only by “restricting the liberty of the public at large in order to deprive them of the opportunity to harm themselves”. (7)

The result of it all, Lord Sumption says, is the comeback of the Hobbesian Leviathan: “[t]he 17th century may have abolished absolute monarchy but the 20th century created absolute democracy in its place”. (8) And unlike when government was an external, antagonistic force, democratic government “is us”. (8) We both fear and repose our fondest hopes in it.

In his second lecture, “In Praise of Politics“, Lord Sumption asks, “how do we control the potentially oppressive power of democratic majorities without undermining democracy itself?” (2) He focuses on the notion of legitimacy, which he defines as “a collective instinct that we owe it to each other to accept the authority of our institutions, even when we don’t like what they are doing”. (2) Any government, but especially a democratic one, must preserve its legitimacy. Democracy does this by accommodating differences between majorities and minorities, and securing compromises that mean that minorities do not become “permanently disaffected groups [with] no common bonds to transcend their differences with the majority”. (2) This can be done through representative government or through law.

Representative institutions, in contrast to winner-take-all direct democracy, exist in part to accommodate the interests and demands of minorities. They make compromise possible. Building on the thought of James Madison and Edmund Burke, Lord Sumption argues that “political elites have their uses. Professional politicians can fairly be expected to bring to their work a more reflective approach, a broader outlook and a lot more information than their electors”. (3) They are also better placed to further national “collective interests which extend over a longer time scale and a wider geographical range than are ever likely to be reflected in the public opinion of the moment”. (3)

Bypassing the processes of representative government, as was done with the Brexit referendum is dangerous. Compromise becomes impossible, as

52 per cent of voters feel entitled to speak for the whole nation and 48 per cent don’t matter at all. … It is the mentality which has created an unwarranted sense of entitlement among the sort of people who denounce those who disagree with them as enemies, traitors, saboteurs, even Nazis. This is the authentic language of totalitarianism. It is the lowest point to which a political community can sink, short of actual violence.

Lord Sumption warns, however, that disengagement from politics calls into question the ability of the political process to generate compromise and legitimacy. Political parties play an important role in securing the accommodation of various interests in policy-making, but as their membership has declined greatly, they are no longer representative of the broader citizenry, and the candidates whom they put forward are increasingly out of touch with the voters. All this “is, in the long
run, likely to lead to a far more partisan and authoritarian style of political leadership”. (5)

Law, the other barrier to oppressive majorities, has become more important as politics has lost its lustre. The politicians’ authority is waning, but the judges’ is undiminished; indeed it is growing:

Judges are intelligent, reflective and articulate people. They are intellectually honest, by and large. They are used to thinking seriously about problems which have no easy answer and contrary to familiar clichés, they know a great deal about the world. The whole judicial process is animated by a combination of abstract reasoning, social observation and ethical value judgment that seems, to many people, to introduce a higher morality into public decision-making. (5)

The judiciary is now more active than it used to be in policing the actions of other public authorities. It does so, in particular, by enforcing the principle of legality, which Lord Sumption suggests should rather be called “the principle of legitimacy”. The principle is appropriately applied to ensure that Parliament faces the consequences of measures that would amount to, notably, “retrospective legislation, oppression of individuals, obstructing access to a [c]ourt, [or] acts contrary to international law”. However, it can be taken further, and made into a barrier to Parliament acting, even advisedly, in ways the courts simply disagree with.

However much we may agree with the outcomes in particular cases, we should be wary of this empowerment of politically unaccountable institutions. It is not the courts’ function to generate compromise, and therefore legitimacy. The law’s strengths are also its weaknesses:

Law is rational. Law is coherent. Law is analytically consistent and rigorous. But in public affairs these are not always virtues. Opacity, inconsistency and fudge maybe intellectually impure, which is why lawyers don’t like them, but they are often inseparable from the kind of compromises that we have to make as a society if we are going to live together in peace. (7)

Lord Sumption’s third lecture, “Human Rights and Wrongs” focuses on what he describes as “an unfriendly meeting” (1) between law and politics. The idea of fundamental rights is not new; in earlier times it was expressed through the concept of natural rights. The trouble with it, however, is that

[t]o say that rights are inherent in our humanity without law is really no more than rhetoric. It doesn’t get us anywhere unless there is some way of identifying which rights are inherent in our humanity and why, and that is essentially a matter of opinion. (2)

Indeed, “[r]ights … are the creation of law which is a product of social organisation and is therefore, necessarily, a matter of political choice”. (2) How is the choice to be made, how are the differences of opinion to be settled? Appealing to democracy is a problem since the point of rights is to protect people from what democratic majorities might do to them. But what else is there? Neither religion nor ideology work in a democratic society.

Still, there is wide agreement that there are some truly fundamental rights: those having to do with due process of law (though Lord Sumption does not use this label), and democratic rights, such as “freedom of thought and expression, assembly and association, and the right to participate in fair and regular elections”. (3)

Legislators can create further rights, including by subscribing to rights-creating treaties. But what Lord Sumption describes as “dynamic treaties”, such as the European Convention Human Rights (ECHR), as it has been interpreted by the European Court of Human Rights (the Strasbourg Court), whose content keeps being developed by supranational institutions after their implementation in law “escape[] parliamentary control”. (3) As Lord Sumption describes the Strasbourg Court’s jurisprudence, it “develops [the ECHR] by a process of extrapolation or analogy so as to reflect its own view of what additional rights a modern democracy ought to have”. (3) This goes beyond “applying an abstract statement of principle to concrete facts” that weren’t originally anticipated, or giving effect to “concepts … such as the notion of inhuman or degrading treatment [that] plainly do evolve over the time with changes in our collective values”. (4) Such developments are “a form of non-consensual legislation”. (4)

Good or bad, this judicial legislation is controversial; in any case, law should not be made judges, disempowering citizens. In particular, questions about the limitation of rights, the purposes for which it can be undertaken, and the degree to which it is necessary, “are all intensely political … . Yet, the [ECHR] reclassifies them as questions of law”, (6) to be settled by the courts rather than the political process.

We can think of democracy, Lord Sumption says, either as “a constitutional mechanism for arriving at collective decisions and accommodating dissent” or as “a system of values”, (7) of substantive requirements that a political system must fulfill. A political system that is democratic in one sense is not necessarily democratic in the other. Lord Sumption worries that “[d]emocracy, in its traditional sense” (that is, the first one) “is extremely vulnerable to the idea that one’s own values are so obviously urgent and right that the means by which one gets them adopted don’t matter”. (7) And he worries that many lawyers are tempted to attribute such urgency to liberal values. For his part, he rejects this view, which he finds

conceptually no different from the claim of communism, fascism, monarchism, Catholicism, Islamism and all the other great isms that have historically claimed a monopoly of legitimate political discourse on the ground that its advocates considered themselves to be obviously right. (7)

Lord Sumption’s fourth lecture, “Rights and the Ideal Constitution” takes on a constitutional system that has implemented a number of substantive, values-based constraints on democratic decision-making: that of the United States. Lord Sumption is skeptical of what he calls the “legal model” of the state, since “in the long run, political constraints on the part of majorities are likely to be a great deal more effective than legal ones”. (2) To be sure, the “legal model” promises constraint “based on a body of principle applied by judges” (3) immune from the sort of pressures and incentives to which politicians are subject. This model is based on mistrust of “elective institutions” and their ability “to form opinions about [rights] with the necessary restraint, intelligence or moral sensibility”. (3)

Against that, Lord Sumption argues, we need to count the value of legitimacy: “‘We, the people,’ is the emotional foundation of democracy in Britain as well as in the United States”. Democratic decision-making is also egalitarian. A constitution that enforces a set of substantive values, be they those of “liberalism, human rights, Islamic political theology or the
dictatorship of the proletariat” (4) is neither egalitarian nor legitimate in the eyes of those who do not share these values. It is, therefore, not the right kind of constitution: “the proper function of a constitution is to determine how we participate in the decision-making processes of the state and not to determine what the outcome should be”. (4) Instead of looking for “the right answers to … moral dilemmas”, a polity should content itself with “a political process in which every citizen can engage whose results, however imperfect, are likely to be acceptable to the widest possible range of interests and opinions”. (4)

Echoing the arguments made in the previous lecture in the context of the ECHR, Lord Sumption reiterates that in deciding rights claims based on vague constitutional language judges are deciding not so much “whether the right exists but whether it ought to exist. Yet, that is surely a question for lawmakers and not judges.” (5) Anyway, “on politically controversial issues, the decisions of judges almost always involve a large element of political value judgment”, and “are not necessarily wiser or morally superior to the judgments of the legislature”. (5) Lord Sumption also reiterates his earlier point that judicial resolution of essentially political disputes does not leave room for compromise and accommodation. By contrast, political compromise may succeed at resolving differences in the community, as it did over abortion in Britain (in contrast to the United States).

All that said, Lord Sumption cautions that it does not follow “that there are no rights which should be constitutionally protected in a democracy”. (6) Rather, “one must be very careful about which rights one regards as
so fundamental as to be beyond democratic choice”. (6) Again, life, liberty, property, due process, and democratic rights fit the bill. But they will not be enough to protect against the tyranny of the majority. Ultimately, “the Courts cannot parry the broader threat that legislative majorities may act oppressively unless they assume legislative powers for themselves”. (7) If any barrier can do that, it must be found in the political culture, not in the law.

Lord Sumption’s fifth and last lecture, “Shifting the Foundations“, addresses the proposals for introducing the “legal model” of the state to the United Kingdom. Lord Sumption suggests that, although presented as a solution to the ongoing crisis of political institutions, this idea, like all calls for institutional reform in response to crises real or supposed, has little to do with the problems it purports to address. There is something, Lord Sumption says, to the criticisms of the UK’s existing constitutional arrangements, said to be “obscure, old-fashioned, out of step with international practice and giv[ing] far too much power to Parliament”. (3) But there is also something to be said in defense of these arrangements.

Lord Sumption points out that “[t]he godparents of written constitutions have been revolution, invasion, civil war and decolonisation”. (3) Nothing of the sort has happened in the UK in centuries. As a result, there is no blank slate on which to write a new constitution. If this were nevertheless done, the result, even if

an artefact of perfect rationality, a thing of great intellectual beauty … would have no basis in our historical experience, and experience counts for a great deal in human affairs; more than rationality, more even than beauty. Ultimately, the habits, traditions and attitudes of human communities are more powerful than law. (3)

Besides, the flexible political constitution has been able “to adapt to major changes in our national life which would have overwhelmed much more formal arrangements”. (3)

The problem, and not just in the UK but elsewhere, Lord Sumption argues, is not with institutions but a political culture struggling with

long term decline in the membership … of all the major national political parties, falling turnout at elections, widespread contempt for professional politicians, the rise of powerful regional nationalisms offering a more immediate source of legitimacy. (4)

The reason for this malaise, Lord Sumption suggests, is that democracy cannot meet the unrealistic expectations for it that result “from the eternal optimism of mankind, … a misunderstanding of the role of politicians, and … an exaggerated view of their power to effect major change”, as well as “the auction of promises at every general election”. (5) This produces “a sense of impotent frustration [that] undermines public confidence in the whole political process”. (5) Those who are disappointed with the representative institutions (Lord Sumption specifically mentions environmentalists frustrated by inaction on climate change) are prepared to look to a strongman who will “get things done”. A further problem is that “[p]eople expect their representatives, not just to act for them, but to be like them”, yet “all political systems are aristocracies of knowledge. Democracy is only different in that the aristocracies are installed and removable by popular vote”. (5) This exacerbates “[r]esentment of political elites”, (6) which plays a large role in current politics.

For Lord Sumption, constitutional change is not the answer to these difficulties, although he is interested in electoral reform “if it boosted public engagement with politics and enabled them, once more, to accommodate differences of interest and opinion across our population”. (7) An entrenched constitution subject to judicial interpretation, by contrast, “will simply produce a partial shift of power from an elective and removable aristocracy of knowledge to a core of professional judges which is just as remote, less representative and neither elective nor removable”. (6)

Lord Sumption ends on a dark note:

we will not recognise the end of democracy when it comes, if it does. Advanced democracies are not overthrown, there are no tanks on the street, no sudden catastrophes, no brash dictators or braying mobs, instead, their institutions are imperceptibly drained of everything that once made them democratic. The labels will still be there, but they will no longer describe the contents, the facade will still stand, but there will be nothing behind it, the rhetoric of democracy will be unchanged, but it will be meaningless – and the fault will be ours. (7)

As noted above, there is much to reflect on here. I am not suggesting that everything Lord Sumption says is right; indeed, it cannot be, because his arguments are not altogether consistent with one another. I will set out some reflections on Lord Sumption’s views in my next post. For now, suffice it to say that, if we are to avoid the dark future whose possibility Lord Sumption asks us to confront, we need to think seriously about the issues he cogently outlines.

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 points, follow conventional wisdom on this one.

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.