Constitutional Politics

Constitutional Politics

Any legal and political system has to make choices as to the nature of the constraints which are imposed on the majoritarian will as expressed through the legislature. A classic legal form which such constraints can assume is for the courts to have some power of constitutional review over acts of the legislature, including primary legislation itself. It is important to recognize at the outset that these limits on the majoritarian will can take different forms. Judicial review is a public-law remedy; so its scope is determined by the boundaries of public law. It has sometimes been said that there is no fundamental distinction between public and private law in the UK, but that is in some ways true and in some ways not. For pedagogical purposes administrative, constitutional, and criminal law are commonly termed public-law subjects, perhaps because they involved relationships between citizens and government. A different purpose for which it may be necessary to draw a dividing line between the sphere of government and private activity is that of determining whether certain EC directives can create directly enforceable individual rights in the United Kingdom against bodies that may or may not be a part of government. So what for this purpose is to be brought within the sphere of public or governmental authority?

Can the various directives against discrimination in the employment field, for example, create of their own authority directly enforceable rights against the very large number of what we term quangos, that is to say quasi-autonomous non-governmental bodies? Not, it would seem, if that label is an accurate one. But UK courts and the European Court of Justice have reached different conclusions about the criteria. Under British constitutional principles, for example, the police are certainly, in terms of control, not servants of the state or government. This paper examines constitutional politics which are of central importance for the nature of our constitutional ordering. The ensuing discussion focuses on three issues which are undoubtedly of significance to the work’s theme: supremacy, rights, and constitutional review. The immediate focus will, however, be on the ways in which this traditional concept of supremacy has been affected by constitutional changes which have occurred. I will also compare government’s constitutional policies in some countries.

Outside the common law countries, constitutional review was introduced only recently, after the Second World War. In these countries the power of constitutional review was not given to the then highest court but to a specially created constitutional court. A major feature of post-war constitutions in Europe has been the adoption of judicial review of legislation, and rejection of the unchallenged sovereignty of elected majorities. Germany and Italy, and later Spain and Sweden, followed this pattern. France was – with the United Kingdom – an exception, but in the 1970s the Conseil constitutionnel began to use the principles of the 1789 Declaration of the Rights of Man as a guide to its control of Assembly measures before promulgation – a development called by one observer a “repudiation of Montesquieu” (Cappelletti, 1900). Since then France has begun to move more explicitly in the same direction. In 1990 the Assembly debated a constitutional amendment and an organic law to extend the jurisdiction of the Constitutional Council, enabling it to rule on the constitutional propriety of laws after their promulgation on a reference from the ordinary courts.

 In England from the time of Bentham until perhaps the 1960s we find an equally abiding mistrust of ‘Judge and Co.’, and a tradition of judicial restraint and abnegation. In the United States the judicial deference to state and congressional legislatures that began in the late 1930s took a different course in the 1950s, and it is tempting to speculate that the liberal transmogrification of the Supreme Court under Chief justice Warren may have had something to do with the revival of judicial review in Europe, at least at the level of human-rights protection. In Britain, different and more particular forces were at work; none the less, a judicial revolution occurred on a minor scale. Speaking in the House of Lords in 1985, Lord Roskill said that:

As a result of judicial decisions since about 1950, both in this House and in the Court of Appeal there has been a dramatic and indeed a radical change in the scope of judicial review . . . described, but by no means critically, as an upsurge of judicial activism (Council of Civil Service Unions 374).

The reference here is, of course, to review of administrative action. The upsurge can be attributed in some degree to the example and impact of particular judges (particularly in the 1960s Lord Reid, and perhaps later Lord Diplock). But when we reflect on the way in which expansion of judicial authority has been brought about in England at various periods in the absence of any formalized constitutional principles and in the face of a sovereign Parliament, we can perhaps see the importance of certain common-law devices, particularly a willingness to manipulate the concept of jurisdictional control, and the various presumptions about parliamentary intention. One could almost say, looking back into the distance, that constitutional liberty in the United Kingdom has been preserved by a handful of maxims of interpretation and rules of public policy. This of course reinforces the point made by Maitland and others about the unconfined character of constitutional law.

The English constitution is at once everywhere and nowhere; in other words by no sort of refinement can one isolate it from Common law and Equity. . . . The constitution of one of the two Houses of the legislature is unintelligible without knowledge of the law of incorporeal hereditaments . . . while the right of redress for unlawful arrest by officers of the Executive is merely an aspect of the law of trespass (Morgan 23).

This is one reason, amongst many, why the project of codifying the constitution (ours or anybody’s) is unmanageable–the object being, like the universe, finite but unbounded.

The classic form of constitutional review is one in which the courts have the power to invalidate primary legislation on the grounds that it violates, either procedurally or substantively, principles contained in a written constitution or Bill of Rights. There are, however, other variants on the power which the courts can wield in this regard. A court may have the power to engage in pre-enactment constitutional review, even though there is no such power once the relevant legislation has actually been enacted. The Conseil Constitutionnnel in France exercises a jurisdiction of this nature. It is also possible to structure constitutional review so that while the courts can strike down legislation for infringement of the constitution or a Bill of Rights, this can be overridden by the legislature through re-enactment of the provision with a special majority. Softer forms of constitutional review, such as that which exist in the UK, do not allow the courts to strike down primary legislation. They may none the less provide for intensive judicial scrutiny with the object of reading legislation, in so far as is possible, to be in compliance with human rights, coupled with a reference back to the legislature should the judiciary not feel able to square the legislation with such rights. The picture can become more complex when it is realized that the relationship between the courts and the legislature may be affected by the very nature of the rights contained in the constitutional document, it is possible, for example, for there to be classic ‘hard’ constitutional review in relation to traditional civil and political rights, while at the same time having some ‘softer’ constitutional review in relation to social and economic interests which are contained in the framework constitution.

The idea that a cassation court like the Supreme Court is less fit to function as a court with the power of judicial review is supported by the situation in other civil law countries. In Germany, Austria, Italy, France, and, more recently, Spain and Portugal, a special constitutional court reviews statutes. Even in Belgium a limited form of constitutional review is exercised by the Arbitragehof, a court established in response to the change to a federal state. Dölle and Engels (1989) suggest that the introduction of constitutional review in these countries is related to the federal structure of the countries, which requires protection for parts of the country against the federal state (in, e.g., West Germany, Austria, Spain, or Belgium). They also suggest that introduction of constitutional review followed a period of dramatic changes in the structure of the state (in, e.g., West Germany, Austria, France, Italy, Spain, Portugal, and Belgium) and that the constitution or the revision of the constitution that made constitutional review possible in these countries was not written in the nineteenth century when legal doctrine prescribed a role of the judge as bouche de la loi.

After 1980 the Supreme Court took another course. Van Dijk (1988.) showed that in the period 1930-86 in 522 Supreme Court cases at least one human right treaty – among others the European Convention on Human Rights (ECHR) – played a role. The number of cases, however, grew from 51 (2 percent of all Supreme Court cases) in 1980 to 141 (4 percent of all cases) in 1986. The Supreme Court decided that a statute violated a treaty in 37 cases in that period, the number growing from 1 (2 percent of cases in which a party invoked a treaty) to 12 (9 percent). Thus, although the number of cases in which statutes are reviewed for conformity with treaties is growing, such judicial review is still limited in The Netherlands.

Canada has an established tradition of constitutional review of defamation cases. In the 1964 Canada Supreme Court held that the First Amendment’s guarantee of freedom of the press and free speech placed certain limits on the traditional common law of defamation. From that point on, defamation cases were subject to constitutional judicial review. In Ireland, however, there is no established tradition of constitutional judicial analysis, and the substantive influence of Bunreacht na hEireann upon Irish jurisprudence is minimal in comparison to the influence of the U.S. Constitution upon American jurisprudence. Instead, Irish courts have emphasized a continued adherence to traditional English common law, which has served as virtually the sole source of law in defamation cases.

Understanding the present state of Irish defamation law requires an understanding of why Irish courts tend to approach Ireland’s constitution with what is essentially an English constitutionalist perspective. This judicial attitude is unexpected, in part, because Ireland fought a bloody war against the British in this century in order to break free from British rule. One might expect that the Irish would be equally eager to break from, or at least critique, British common law and constitutionalism.

The UK courts have consistently attempted to blunt the edge of any conflict with Community law by the use of strong principles of construction, the import of which was that UK law would, whenever possible, be read so as to be compatible with Community law requirements, although they did not always feel able to do so. Factortame is now the seminal case on sovereignty and the EU. Factortame contains dicta by their Lordships on the general issue of sovereignty, and the reasons why these dicta are contained in the decision are not hard to find. The final decision on the substance of the case involved a clash between certain norms of the EC Treaty itself, combined with EC rules on the common fisheries policy, and a later Act of the UK Parliament, the Merchant Shipping Act 1988, combined with regulations made thereunder. One aspect of the traditional idea of sovereignty in the UK has been that if there is a clash between a later statutory norm and an earlier legal provision the former takes precedence. The strict application of this idea in the context of the EC could obviously be problematic, since the European Court of Justice has repeatedly held that Community law must take precedence in the event of a clash with national law. The dicta of the House of Lords in Factortame are therefore clearly of importance.

Some public comments on the decision of the Court of Justice, affirming the jurisdiction of the courts of the member states to override national legislation if necessary to enable interim relief to be granted in protection of rights under Community law, have suggested that this was a novel and dangerous invasion by a Community institution of the sovereignty of the United Kingdom Parliament. But such comments are based on a misconception. If the supremacy within the European Community of Community law over the national law of member states was not always inherent in the European Economic Community Treaty it was certainly well established in the jurisprudence of the Court of Justice long before the United Kingdom joined the Community. Thus, whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary. Under the terms of the 1972 Act it has always been clear that it was the duty of a United Kingdom court, when delivering final judgment, to override any rule of national law found to be in conflict with any directly enforceable rule of Community law. Similarly, when decisions of the Court of Justice have exposed areas of United Kingdom statute law which failed to implement Council directives, Parliament has always loyally accepted the obligation to make appropriate and prompt amendments. Thus there is nothing in any way novel in according supremacy to rules of Community law in areas to which they apply and to insist that, in the protection of rights under Community law, national courts must not be prohibited by rules of national law from granting interim relief in appropriate cases is no more than a logical recognition of that supremacy.

The courts do not, as is well known, have the power under the Human Rights Act to engage in ‘hard’ constitutional review: they are not able to strike down primary legislation which is inconsistent with the European Convention rights which are recognized by the Act. The Government has, rather, opted for a ‘softer’ form of constitutional review. Primary and secondary legislation must be read and given effect in a way which is compatible with the Convention rights. If the courts decide that a provision of primary legislation cannot be read in this way, then they are empowered to make a declaration of incompatibility. Such a declaration does not affect the validity or continuing operation of the primary legislation. It operates rather to send the issue back to the political forum. The relevant minister then has the power, but not the duty, to amend the offending legislation and can do so by an expedited form of procedure which allows the statute to be altered by the passage of delegated legislation. The expectation is that a judicial declaration of incompatibility will render it difficult for Parliament to resist modification of the offending provisions. Whether this proves to be the case remains to be seen. The Human Rights Act does at the very least provide the courts with a legitimate foundation for the interpretative exercise of reading primary legislation in a way which is compatible with Convention rights.

The final area which is of relevance for the discussion of constitutional review is, of course, devolution. On the traditional conception of sovereignty the power which has been devolved to the Scottish Parliament could be taken back by Westminster, although, practical political reality renders this a very unlikely eventuality. The devolution of power to Scotland and Wales does, however, raise interesting and important issues of constitutional review which are rather different from those considered thus far. It is axiomatic that any system of devolved power will, of necessity, involve the drawing of boundary lines which serve to define the spheres of legislative competence of the Westminster Parliament in relation to other bodies which have legislative power. This has been recognized in, for example, the Scotland Bill.

It should be recognized that, even on this minimalist view, the force of these practical limitations on the sovereign legislative capacity of the Westminster Parliament would be of considerable significance. The modification of sovereignty doctrine in relation to the UK and the EC now means, at a minimum, that while the European Communities Act 1972 remains in force, the courts will consider nothing short of an express statement by Parliament that it intends to derogate from EC law as sufficient to preclude according superiority to Community law. The strong rules of construction built into the Human Rights Act, combined with the political pressure which would attach to a declaration of incompatibility, will mean that it is increasingly difficult for Parliament to act contrary to judicial dictates in these matters. The need to ensure that devolution is perceived as a workable form of constitutional ordering means that the Westminster Parliament will not lightly trespass on those areas which the Scottish Parliament or Welsh Assembly are intended to regulate.

On the maximalist view, the traditional idea of Parliamentary supremacy would itself be modified. It would no longer be accepted, even in theory, that the majoritarian will as expressed in the legislature would necessarily be without limits. It might well come to be acknowledged that there are indeed rights-based limitations on what the elected Government can attain, and that these should be monitored by the courts. It might come to be accepted that Parliament could not even expressly derogate from a norm of EC law, while still remaining a member of the Community. There might be further developments relating to the structure of the UK, taking us away from devolution, and more towards federalism. This is of course conjecture, but reasoned conjecture is, in part, what this enterprise is about. Lest anyone think that these notions are too fanciful it should not be forgotten that the foundations for what is taken to be the traditional notion of supremacy were part conceptual and part empirical, and that neither aspect is, in any sense, unalterable. Nor should we forget that there are already extra-judicial utterances casting doubt on the traditional notions of sovereignty.

Proportionality itself needs some analysis. It may in one guise be merely another way of describing a misfit or lack of proportion between a given action and a permitted objective, which may be brought about by self-misdirection, by use of delegated powers for an inappropriate purpose, or by misuse of such powers in bad faith. It may signal a lack of fairness or equity in weighing evidence or in imposing a condition or penalty. In this sense it seems merely a subcategory of pure or impure unreasonableness, showing itself by the absence of a sense of proportion – as where a government department allows only four days to make objections to a statutory scheme (Department of Education and Science 211).

In Community law such disproportionateness may be invoked to condemn laws or regulations that are over-broad or sweeping in their application. So protection of public health against food additives may not justify a complete ban on all food containing additives (Commission 1227).

In recent British decisions there has been some reluctance to accept proportionality as a ground of review. In ex parte Brind the Master of the Rolls (Lord Donaldson) implied that it might threaten the role of constitutional review as a supervisory rather than an appellate remedy. That distinction, it must be said, is not as plain as it once may have been. The line between mistake of law within jurisdiction and jurisdictional error is not clear-cut, and its importance is disputed. It has been suggested that the rule now emerging is (as to errors of law) that decisions may be quashed for any decisive error either because all errors of law are now considered jurisdictional or because it is the business of the court to remedy all such errors (Sir W. Wade and C. Forsyth, 319).

We need therefore to distinguish the use of proportionality as a near-synonym for ends-means rationality in administrative review from its use by European and other constitutional courts (for example in Canada) as an ends-means test applied to the relation between permitted legislative purposes and the particular means adopted to further them. In its constitutional role, the invocation of proportionality is increasingly familiar. It contains an obvious attraction for a reviewing court, as a formula that appears to eschew interference with the merits of legislative policy. It is none the less a flexible instrument for controlling the merits. Its potentially stems from the fact that the purposes of legislative measures are not always unambiguously clear on their face and can be formulated in broader or narrower terms. By stating a statute’s purposes broadly (or sometimes narrowly) it can often be shown that they could have been achieved by a differently drafted enactment, and the measure in question can thus be presented as disproportionately broad or narrow in relation to the imputed purpose. Thus in The United Kingdom the European Court of Human Rights found that the prohibition of all adult consenting homosexual activity was a disproportionately broad means or protecting vulnerable members of society such as children. If that could properly be said to be the statute’s purpose, then no doubt it was over-broad. The same technique can be seen in some of the decisions of the Canadian Supreme Court applying the provisions of the Charter of Rights and Freedoms, for example the equality guarantee. Requiring all lawyers in a province to be Canadian citizens may be a disproportionately broad method of securing efficient legal services (Andrews 143). The elements of constitutional proportionality in Canada have been categorized as including fairness, rational relationship between ends and means, minimal interference with rights, and avoidance of broad or disproportionate to the object that the legislature is seeking to promote. It is true that, in asking the initial question about the compliance of legislation with a pressing over-severe impact on those affect by legislation. If the United Kingdom enacts a Bill of Rights, or imports the European Declaration, the House of Lords would find proportionality a useful device. Imputing irrationality to Members of Parliament is likely to attract criticism, especially from that not inconsiderable number of elected members for whom the label ‘Wednesbury unreasonable’ might have been specially invented.

A question remains to be asked about the impact of Community law and the expansion of the judicial role in Britain. Is it likely to be extended still further to embrace constitutional review of legislative action, stemming from the adoption of a domestic Bill of Rights placing limitations upon the legislative authority of Parliament? The Bill of Rights debate has been rumbling on since the 1960s, with its proponents making little headway. The history of the reform campaign has been one of repeated but doomed attempts to introduce into Parliament bills to incorporate in statutory form the European Convention on Human Rights. The members of the Lords Select Committee on a Bill of Rights in 1977 were in favor of that course of action if a Bill of Rights were to be adopted, but not unanimous as to whether it should be. Nor has there been agreement on the desirability, or possibility, of entrenching a Bill of Rights against future repeal by simple majority. The 1977 Select Committee thought (though on inadequate consideration) that it could not be done. Most sponsors of House of Commons bills also have taken a cautious – or timid – view of the matter and proposed a version of the Canadian Charter’s override or ‘notwithstanding’ clause that would allow express exclusion of the Bill of Rights by any legislation enacted after its adoption. Most recently the argument has been imprudently diverted by attempts to promote more wide-sweeping reform proposals (including changes in the electoral system and the second chamber) to be embodied in a new so-called written constitution. In 1991 Mr Tony Benn published his Commonwealth of Britain Bill, a comprehensive new constitutional instrument. In the same year the Institute for Public Policy Research published a draft United Kingdom Constitution running to 129 articles and six schedules. Both contained a newly drafted Bill of Rights – in the latter case attempting to combine elements of the European Convention with the International Covenant on Civil and Political Rights. These general flights of constitutional fancy may have delayed matters somewhat. Nevertheless the specific arguments for a Bill of Rights remain to be faced. British judges now may be heard arguing the case for action. Amongst recent judicial advocates has been Lord Justice Bingham. Those who oppose incorporation talk of politicization of the judiciary and the danger that British judges will become more like American judges (not to say Canadian, New Zealand, German, Italian, and Spanish judges). But in some degree, and almost invisibly, they already have. They would suffer no great crisis of identity if asked to move still closer in their juridical stance to the Commonwealth and to Europe.

Works Cited

Cappelletti, M. The Judicial Process in Comparative Perspective, Oxford, 1989, 190-211.

Council of Civil Service Unions v. Minister for the Civil Service, 1985, A.C. 374.

 Morgan, H. “Remedies against the Crown”, in G. E. Robinson, Public Authorities and Legal Liability, London, 1925, p. 23.

Van P. Dijk. The Attitude of the Dutch Supreme Court Toward Human Rights Treaties, in Anonymous (ed.), The Netherlands: Tjeenk Willink, 1988.

Lee v. Department of Education and Science, 1967, 66 L.G.R. 211.

Commission v. Federal Republic of Germany, 1987, E.C.R. 1227.

Wade, Sir W. and Forsyth, C. Administrative Law, 7th edn., Oxford, 1994, esp. the summary at pp. 319-20.

Andrews v. Law Society of British Columbia. 1989] 1 S.C.R. 143.